also dissenting:
“This Constitution *** shall be the supreme law of the land; and the Judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.” U.S. Const., art. VI, cl. 2.
“Justice, justice you shall pursue ***.” Deuteronomy 16:20.
I join in Justice Clark’s dissent and write to make some additional observations. In affirming the trial court’s imposition of the death penalty in this case, the majority disregards both fundamental principles of justice and this court’s obligation to uphold the United States Constitution as the supreme law of the land. The Supreme Court recently ruled that the admission of testimony regarding the impact of the victim’s death on the victim’s family members in a capital sentencing hearing violates defendants’ constitutional right not to be sentenced to death in an arbitrary and capricious manner. This is the rule of law that should control the disposition of this case rather than the doctrine of waiver, which the majority applies to avoid this clear mandate.
In Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, the Supreme Court held that admission of victim impact evidence at a capital sentencing hearing violates the eighth amendment to the Constitution. The victim impact statement in Booth reflected interviews with the victims’ family and described the personal characteristics of the victims and the emotional impact of their deaths on the family. It also included the family members’ opinions of the crimes as well as their opinions of the defendant. The statement was read to the jury during the defendant’s capital sentencing hearing.
Information in a victim impact statement, the Court decided, is irrelevant to the blameworthiness of a particular defendant, and the introduction of the statement and the defendant’s efforts to rebut it “could well distract the sentencing jury from its constitutionally required task — determining whether the death penalty is appropriate in light of the background and record of the accused and the particular circumstances of the crime.” (Booth v. Maryland (1987), 482 U.S. 496, 507, 96 L. Ed. 2d 440, 451, 107 S. Ct. 2529, 2535.) The Court also emphasized that the decision whether to impose the death penalty should not turn on the victim’s standing in the community or the ability of family members to articulate their grief. Booth v. Maryland (1987), 482 U.S. 496, 504-07, 96 L. Ed. 2d 440, 449-50, 107 S. Ct. 2529, 2534. See also People v. Walker (1985), 109 Ill. 2d 484, 511 (Simon, J., concurring in part and dissenting in part) (testimony regarding the victim’s personal characteristics should not have been admitted because a victim’s standing in the community is not relevant to sentencing).
The Court concluded that victim impact information is irrelevant to a capital sentencing decision and that “its admission creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner.” (Booth v. Maryland (1987), 482 U.S. 496, 503, 96 L. Ed. 2d 440, 448, 107 S. Ct. 2529, 2533.) The Court vacated the affirmance of the capital sentence and remanded the case for further proceedings. Booth v. Maryland (1987), 482 U.S. 496, 509, 96 L. Ed. 2d 440, 452, 107 S. Ct. 2529, 2536.
The majority concedes that the testimony of probation officer Ahlstrand at the defendant’s death penalty hearing regarding the effects of the crimes on the victim’s family members and on the woman who survived the attack would now be prohibited by Booth. The majority thus frames the issue by its acknowledgment that the defendant was sentenced to death in a manner which has now been adjudicated unconstitutional. Nevertheless, the majority lets the death sentence stand. In reaching this result, the majority ignores the Constitution, clearly established case law, and principles of fundamental fairness.
In Booth, the Supreme Court made it clear that the admission of victim impact evidence such as that of Ms. Ahlstrand is a serious infringement on a defendant’s constitutional rights and must be prohibited. The majority chooses to disregard the Supreme Court’s decision in Booth v. Maryland and instead concludes that the defendant has waived any objection to being sentenced to death in an unconstitutional manner.
Waiver, however, unlike the rule announced by the Supreme Court in Booth, does not stem from a constitutional provision. The majority, in an attempt to circumvent the Booth decision, raises waiver to a position above the Constitution and allows a doctrine which has no constitutional foundation or significance to override the affirmative constitutional guarantee against cruel and unusual punishment. The result violates the supremacy clause, which establishes the primacy of the Federal Constitution over all conflicting law.
The majority argues that the defendant has waived any objection to the admission of the victim impact testimony because the defendant’s first post-conviction petition did not assert as a basis for relief trial counsel’s ineffectiveness in failing to object to the victim impact testimony on the ground that it was prejudicial, inflammatory or irrelevant. The majority relies on section 122 — 3 of the Post-Conviction Hearing Act, which provides that “[a]ny claim of substantial denial of constitutional rights not raised in the original or in an amended petition is waived.” Ill. Rev. Stat. 1985, ch. 38, par. 122-3.
As the majority acknowledges, however, the first amended post-conviction petition did assert as a basis for relief that “the petitioner was denied equal protection and due process by the Illinois Courtsf] inconsistent decisions on death penalty cases as to the admission of evidence relating to the effect of the death on the victim’s family.” Thus there was no true waiver because in his first post-conviction petition the defendant did in fact raise the unconstitutionality of the admission of the vietim impact testimony. Although the Supreme Court declared admission of the testimony unconstitutional under the eighth amendment, it would be unreasonable to hold that the defendant waived any objection simply because he used a different constitutional amendment to challenge the testimony. While the majority notes that the first post-conviction petition challenged the constitutionality of the admission of the victim impact testimony, it fails to explain how waiver can be attributed to the defendant in the face of that challenge. Instead it merely states that this court affirmed the dismissal of the first post-conviction petition.
Notwithstanding its adherence to the waiver rule, the court did discuss Free’s objection to the admission of the victim impact testimony in both his direct appeal (People v. Free (1983), 94 Ill. 2d 378, 425-27) and his first post-conviction appeal (People v. Free (1986), 112 Ill. 2d 154, 170). Booth v. Maryland tells us that the majority reached the wrong result both times. In fact, Justice Clark and I dissented from the court’s affirmance of the defendant’s sentence on the very grounds announced by the Supreme Court in Booth. (See People v. Free (1983), 94 Ill. 2d 378, 435-37 (Simon, J., concurring in part and dissenting in part) (admission of the victim impact testimony was highly prejudicial and violates the defendant’s right not to be sentenced to death in an arbitrary and capricious manner).) Why is it now too late for this court to correct its previous errors, especially where a death sentence is at stake?
Moreover, even if, contrary to the majority’s admission, the defendant had not raised the issue of the constitutionality of the admission of victim impact testimony in his first post-conviction petition, section 122 — 3 of the Post-Conviction Hearing Act, as the majority concedes, “is not an ironclad bar on multiple post-conviction petitions.” (122 Ill. 2d at 376.) Although waiver is a useful principle, “we have not hesitated to relax its application where fundamental fairness so requires.” (People v. Hamby (1965), 32 Ill. 2d 291, 294.) This court has repeatedly relaxed the requirements of section 122 — 3 of the Post-Conviction Hearing Act and allowed new issues to be raised in a second post-conviction petition where fundamental fairness so requires. See, e.g., People v. Nichols (1972), 51 Ill. 2d 244, 246; People v. Hollins (1972), 51 Ill. 2d 68, 70; People v. Slaughter (1968), 39 Ill. 2d 278, 285; People v. Hamby (1965), 32 Ill. 2d 291, 294.
Relaxation of the rule is particularly appropriate in a case such as this one, where both at the time the defendant filed his original appeal and at the time he filed the post-conviction appeal, it was not at all clear under existing Illinois law that the defendant could have raised a colorable eighth amendment argument against the use of the victim impact testimony. In fact, when this court considered the defendant’s objection to the testimony on appeal, it suggested that victim impact testimony was admissible because “[i]n this phase of the sentencing hearing the State and defendant are allowed considerable leeway in the presentation of relevant evidence.” (People v. Free (1983), 94 Ill. 2d 378, 426.) It is now clear that this court misstated the law in upholding the defendant’s death sentence.
The majority argues that cases in which this court relaxed the waiver doctrine are distinguishable from the instant case because in those cases the proceedings on the original post-conviction petitions were “deficient in some fundamental way.” But that is precisely the situation here. The Supreme Court has now made it clear that this court and the circuit court committed a fundamental error of great magnitude in allowing the imposition of the death penalty to stand when confronted by the unconstitutional admission of irrelevant and highly prejudicial victim impact testimony in the capital sentencing hearing. Because the court in Booth recognized the serious shortcoming of a capital sentencing hearing that included such testimony, it vacated the imposition of the death penalty and remanded the case. Instead of following the same procedure, this court is compounding the errors it committed in the direct appeal and in the first post-conviction appeal by refusing to vacate the death sentence that was improperly imposed. The majority decision will simply result in unnecessary use of judicial resources for an appeal to the United States Supreme Court, a habeas corpus petition in the United States District Court, or a petition alleging ineffective assistance.^ counsel.
This post-conviction petition, which anticipated the Supreme Court’s holding in Booth v. Maryland, presents this court with the opportunity to cure its two previous errors and ensure that justice is done. Instead, the majority is sending the defendant to his death in spite of its recognition that his sentence was “based on considerations that are ‘constitutionally impermissible [and] totally irrelevant to the sentencing process.’ ” Booth v. Maryland (1987), 482 U.S. 496, 502, 96 L. Ed. 2d 440, 448, 107 S. Ct. 2529, 2533, quoting Zant v. Stephens (1983), 462 U.S. 862, 885, 77 L. Ed. 2d 235, 255, 103 S. Ct. 2733, 2747.