concurring in part and dissenting in part:
I concur in that portion of the opinion upholding the conviction of the defendant; however, I dissent from the majority’s conclusion that the death penalty must be vacated.
Once again, I deplore the lack of consistency in the application of waiver-plain error demonstrated by the opinions of this court. I wrote at length on this subject by way of dissent in People v. Szabo (1983), 94 Ill. 2d 327, 369 (Ryan, C.J., concurring in part and dissenting in part). This lack of consistency is demonstrated by Szabo and People v. Free (1983), 94 Ill. 2d 378, which appear one following the other in the Illinois Reports. Both were death penalty cases. Free held that the failure of the defendant to object to the introduction of certain evidence and the comments made by the prosecutor during final argument prevented the raising of those questions on appeal. (People v. Free (1983), 94 Ill. 2d 378, 419, 425.) However, the Szabo court held that unobjected-to remarks by the prosecutor in closing argument could be urged as error on appeal by virtue of the plain error doctrine. (People v. Szabo (1983), 94 Ill. 2d 327, 362.) In my partial dissent in Szabo I noted the inconsistencies in Szabo and Free and stated that there was a compelling need for this court to establish a degree of certainty in the application of plain error. People v. Szabo (1983), 94 Ill. 2d 327, 370. (Ryan, C.J., concurring in part and dissenting in part.)
The continuation of the uncertainty of the application of plain error in capital cases, as demonstrated by the opinion in the case now before us, raises a further serious question. One commentator had this to say to this court’s vacillation on the waiver - plain-error question:
“Many modern [Illinois] cases are implicitly or explicitly contradictory, exemplifying a basic conflict among the various justices of the Illinois court regarding interpretation of the plain error exception. This conflict among the justices has led to the problems predicted by writers who, with great prescience, asserted that discretion in the context of procedural defaults in a sure road to unfair and arbitrary results.” Wangerin, “Plain Error” and “Fundamental Fairness”: Toward a Definition of Exceptions to the Rules of Procedural Default, 29 DePaul L. Rev. 753, 784 (1980).
The author quoted above suggested in the article that the impression given by the opinions of this court on the plain error issue and the differences of opinion among the members of this court on that subject may have produced some judgments that may well be based merely upon the “luck of the draw”; that is, the result may depend upon which judge writes the opinion. If this is the case, are we not perilously close to the situation described by the oft-quoted statement of Justice Stewart:
“These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Furman v. Georgia (1972), 408 U.S. 238, 309, 33 L. Ed. 2d 346, 390, 92 S. Ct. 2726, 2762 (Stewart, J., concurring).
In the case now before us, as in Szabo, the comments of the prosecutor which the opinion finds objectionable were not objected to. The court in this case has conjectured as to what the effect of these unobjected-to comments may have been. The opinion contains such language as “the likelihood that this occurred,” “had potential for distracting the jurors,” “the remarks might have led the jury,” “this possibility is enhanced,” “it seems not unlikely that the jury,” “the likelihood of misleading the jury was enhanced,” “may have served to enlist the juror’s sympathy,” and several other such speculative statements.
That the prosecutor’s comments “might” or “might not” have had such conjectured effect on the jury is not the test used in determining whether or not the plain error exception is to be applied. If an alleged trial error is not objected to, the rule is that it. cannot be raised on review. Waiver, or “procedural default,” as it is sometimes referred to, constitutes the general rule. The plain error doctrine is a limited exception to this rule. The alleged error, in order to fall within this exception, must be so serious that it reasonably appears that the jurors have “been influenced or prejudiced to the extent that they could not be fair or impartial.” People v. Carlson (1980), 79 Ill. 2d 564, 578.
We have held in our decisions that it is appropriate to consider on review unobjected-to trial error: (1) which deprives an accused of a substantial means of enjoying a fair and impartial trial or (2) which occurs in criminal cases in which the evidence is closely balanced. People v. Carlson (1980), 79 Ill. 2d 564, 576-77; People v. Howell (1975), 60 Ill. 2d 117, 121; People v. Pickett (1975), 54 Ill. 2d 280, 283.
Likewise, the Federal cases recognize that plain error is a doctrine to be strictly and sparingly applied. The Supreme Court has stated that plain error “grants the courts of appeals the latitude to correct particularly egregious errors on appeal regardless of a defendant’s trial default.” (Emphasis added.) (United States v. Frady (1982), 456 U.S. 152, 163, 71 L. Ed. 2d 816, 827, 102 S. Ct. 1584, 1592.) The Federal courts of appeal have also recognized that plain error must be used sparingly and only in situations where it is necessary to prevent a great miscarriage of justice. See United States v. Gerald (5th Cir. 1980), 624 F.2d 1291, 1299; United States v. DiBenedetto (8th Cir. 1976), 542 F.2d 490, 494; United States v. Mooney (8th Cir. 1969), 417 F.2d 936, 939; Eaton v. United States (5th Cir. 1968), 398 F.2d 485, 486; Black v. United States (8th Cir. 1962), 309 F.2d 331, 342.
Conjecturing that the unobjected-to comments of the prosecutor may have had some prejudicial effect upon the jury just does not satisfy the rigid standards that have been established for the application of plain error. Plain error was created to ameliorate the hardships of the waiver (procedural default) rule. It was not created for the purpose of authorizing a nitpicking excursion through the record to find some conjectured prejudice upon which to base the reversal of a conviction or, as in this case, the vacation of a death penalty. The vacation of the death sentence in this case is based solely upon some conjectured prejudice stemming from statements by the prosecutor to which the defense counsel at trial elected not to object.
My dissent is not based solely on the fact that the majority elected to apply plain error instead of holding that the alleged errors were waived. I have examined the final arguments of both the prosecutor and defense counsel in detail, and I do not consider that the comments of the prosecutor constituted reversible error.
The opinion, under the heading, “The Sentencing Phase,” first discusses the statements made by the prosecutor concerning the justifications for the death penalty. The discussion centers on the arguments the prosecutor made concerning deterrence as a justification. The majority quotes a paragraph of the prosecutor’s argument, which is followed by three asterisks indicating that some of the argument was omitted. (103 Ill. 2d at 161-62.) The part of the argument omitted, as represented by those three asterisks, constitutes six pages of the transcript. The paragraph quoted constitutes a part of the argument which refutes the general contention of those opposed to the death -penalty that capital punishment serves no useful purpose. It does not relate specifically to the subject of deterrence. Following the quoted paragraph in the transcript is a discussion refuting the argument that the death penalty should not be imposed because a killer may be rehabilitated. This part of the argument is not quoted in the opinion. This is followed then by a discussion refuting the contention that the death penalty does not deter. This also is not set out in this part of the opinion. The second paragraph quoted in the opinion which appears below the three asterisks relates to the prosecutor’s argument refuting this contention that the death penalty does not deter and is introduced by the following statement not quoted in the opinion: “But let’s now approach it from the point of view of those who are opposed to the death penalty, [who] state that capital punishment does not deter other people and we simply shouldn’t have it.” The part of the argument which is then quoted in the opinion below the three asterisks (103 Ill. 2d at 162) sets forth the justification for the death penalty, even if one accepts the fact that the death penalty does not act as a deterrent to others. This is again followed by three asterisks between the paragraphs. The quoted part of the argument following these asterisks seems to be an assertion that “we can show and we believe that capital punishment deters some killings.” This is not the context in which that statement was made. The part omitted, as indicated by the asterisks, ties these two paragraphs together all as a part of the same argument. The part omitted immediately following the words “prison guards” in the paragraph preceeding is as follows, “but what if capital punishment serves as a deterrent, as I believe it does if it is a proper case for the imposition of the death penalty.” These two paragraphs then, when read in proper context, simply argue that even if we accept the view of those who oppose the death penalty that capital punishment does not deter other people, capital punishment is justified for the reasons stated in that paragraph. If it does serve as a deterrent, then it is justified as stated in the second paragraph. This entire argument is simply and clearly a statement by the prosecutor that the death penalty is a justified form of punishment whether or not it has a deterrent effect on others. To say, as the majority does, that “the clear import of the prosecutor’s words is that the jury, by. sentencing Holman to prison, would run the risk that he would kill a prison guard or would escape and kill again” is a gross distortion. Holman was never referred to in this part of the argument. This was a general discussion of the death penalty, the sanctity of human life, and deterrence and retribution. It was not until some three pages later in the transcript that the prosecutor stated, “now I’d like to talk a little bit about this case.” He then turned from the general discussion I previously mentioned to the specifics of this case. The statements which the opinion finds objectionable were simply arguments by the prosecutor pointing out to the jury the justifications for the imposition of the death penalty. In People v. Lewis (1981), 88 Ill. 2d 129, 149, this court held that a prosecutor could properly urge the imposition of death as a deterrent to murder.
The opinion next finds something wrong in certain references by the prosecutor in his rebuttal closing argument to the fact that the decedent and his family had substantial accomplishments in spite of adversity (103 Ill. 2d at 165-66.) The opinion finds that these statements and reference to the decedent’s family were not invited by the defense counsel’s closing argument and constitute error. I do not agree. As to the references to the decedent’s family, defense counsel in his closing argument, urging that the death penalty not be applied in this case, stated, “and it is not just the fact that Tafford Holman has a young baby, it’s not just the fact that he does have family somewhere. He’s got sisters.” After having made the defendant’s family a focal point in arguing against the death penalty in this case, it is no wonder that defense counsel did not object to the inti-, dental reference to the decedent’s family. Further, a substantial part of defense counsel’s argument was based on the contention that our criminal justice system had failed. Counsel talked about the defendant’s experience in the courts as a juvenile and about rehabilitation. He concluded by urging that we “correct the aberrations in our society that have created the Tafford Holmans and Richard Specks and the Hansons.” Defense counsel placed the blame on society for the fact that Holman had killed. It was a logical response to that argument for the prosecutor to state “you can get ahead in this country if you truly try to make something of yourself.” He then went on to refer to Mrs. Townsend and her children as an example of the truth of that statement. I cannot understand how the majority can conclude that the statements by the prosecutor were not invited by the argument of defense counsel to the effect that because of unfortunate circumstances and the errors of society the defendant Holman never had a chance.
The majority conjectures that the prosecutor’s reference to four convictions of murder might have “led the jury to focus on the multiple convictions rather than on the finding of guilt and the aggravating factor.” (103 Ill. 2d at 168.) I do not understand what deficiency in the prosecutor’s argument the majority finds to be erroneous. The jury knew that only one person had been killed. It was also well aware of the fact that it had returned verdicts of guilty on three counts of felony murder and one count of murder. To say that some prejudice might have flowed from the prosecutor’s simple recital of facts already within the jury’s knowledge is just pure speculation.
The opinion also takes issue with the prosecutor’s discussion of self-defense, voluntary manslaughter, and mercy. (103 Ill. 2d at 168-70.) The opinion refers to these remarks as misstatements of the law. They are not. The discussion of the prosecutor concerning self-defense was in response to the defense counsel’s statement: “If you strip away deterrence and retribution there is no justification for capital punishment.” The prosecutor responded that self-defense is justifiable homicide. He then gave an example of self-defense and likened the death penalty to a form of societal self-defense. He concluded that argument by urging that “we have the right to use deadly force and send Mr. Holman to the electric chair if it will save other people’s lives.”
The above argument had nothing to do with the argument concerning mercy and voluntary manslaughter, although the opinion sets them out as though they are all a part of the same argument. The prosecutor’s statement concerning mercy and voluntary manslaughter were in response to what he characterized as the defense counsel’s plea for mercy. The prosecutor argued that despite the fact that the defendant was utterly merciless, in that he had shot the 17-year-old boy and left him to die on the floor, and had then tried to kill the boy’s mother, his counsel was urging the jury to have mercy. The prosecutor went on to state that if the jury chose to afford Mr. Holman mercy, it was within its power to do so. The prosecutor followed that statement with the part of the mercy argument that is set forth in the opinion. (103 Ill. 2d at 169-70.) With this background we have a better understanding of the nature of the argument. The discussion by the prosecutor in no way limited mercy to the factors pertinent in assessing whether a homicide constitutes voluntary manslaughter as the opinion suggests. The voluntary-manslaughter example is clearly labeled in the argument as only an example. There clearly was no misstatement of legal principles critical to the case as the opinion asserts.
The opinion next refers to “numerous instances in which the prosecutor advanced his personal beliefs concerning the desirability of the death penalty.” (103 Ill. 2d at 170.) The personal beliefs which the prosecutor allegedly asserted were general statements concerning the death penalty. This is not a case where the prosecutor stated his opinion as to the guilt of the defendant or as to the truth or falsity of particular facts in issue or evidence presented, all of which have been held to constitute error. (See People v. Vriner (1978), 74 Ill. 2d 329, 344; People v. Prim (1972), 53 Ill. 2d 62, 77.) The desirability of the death penalty was not an issue in this case. That had been decided by the legislature of this State. The prosecutor was simply restating arguments in favor of the penalty.
As to deterrence, the prosecutor did not assert the specific results of any studies or any public opinion polls concerning the death penalty. He made no reference “to various studies and public opinion polls concerning the death penalty” as the opinion asserts. (103 Ill. 2d at 173.) Thus the facts in this case are in no way similar to those references to statistics not in evidence which were held to be error in People v. Szabo (1983), 94 Ill. 2d 327, 363-64. The prosecutor’s reference to Mr. Harris and Mr. Gallup was not a reference to public opinion polls taken by those pollsters. Nor was there any implication as to the results of any such poll. It was simply a reference to the manner in which such polls are taken and the possibility that those polled would be reluctant to answer completely and fairly.
The prosecutor stated that as to the deterrent effect of the death penalty it cannot be statistically proved that capital punishment deters. He stated that there were studies that indicated both that it was a deterrent and that it was not. Defense counsel, in his final argument in response to the prosecutor’s statement that it cannot be statistically proved that capital punishment deters, stated, “He’s right. Where is the evidence?” Thus, there was no assertion to the jury that there were statistics that proved that capital punishment acted as a deterrent on the criminal activities of others, and the response by defense counsel agreeing with the prosecutor’s statement could leave the jury with only one impression, that is, that there was no such statistical evidence. The opinion acknowledges that this case, unlike Szabo, recited no statistics but somehow seems to think that the law as announced in Szabo also condemns the general argument made to the jury in this case.
The opinion asserts that the prosecutor’s reference to his small boy “may have served” to enlist the jury’s sympathy. (103 Ill. 2d at 174.) However, the defense counsel likewise referred to his son by stating in his closing argument:
“My young child asked me what I had been doing for the past four or five weeks. I told him about my client, and I, quite frankly, told him that I pleaded for a condemned man. I would like to think that there is hope.”
It would therefore appear that any sympathy that might have been envoked by the prosecutor’s comments was evenly offset by the remarks of defense counsel. The unobjected-to comment by the prosecutor opened the door for defense counsel to make his sympathy-evoking argument. Now the majority of this court finds error in the prosecutor’s even though used to defendant’s advantage.
The opinion likewise finds error in the prosecutor’s critical comments concerning the Supreme Court’s decision outlawing the death penalty. (103 Ill. 2d at 172.) During defense counsel’s argument to the jury he raised the question as to why Speck and Hanson had not received the death penalty since they had committed multiple murders, whereas Holman had committed only one murder. The prosecutor had the right to tell the jury that Speck and Hanson were not sentenced to death because the death penalty statutes in existence at that time had been held unconstitutional. (See People v. Speck (1972), 52 Ill. 2d 284; People v. Manson (1976), 61 Cal. App. 3d 102, 132 Cal. Rptr. 265.) He stated that the Supreme Court “began hallucinating about the death penalty in 1972.” Defense counsel objected, and the court struck the word “hallucinating” but permitted the prosecutor to comment on the action of the Supreme Court. The prosecutor then stated, “In my opinion, they made a very tragic mistake.” This was not an expression of opinion on an issue in the case. It was simply a statement on the controversial issue that was and is constantly aired in the media and of which the jury had to be aware. I cannot see how this statement could have prejudiced the jury. The opinion also states that in his statement on this subject the prosecutor gave “the jury the impression that the death penalty was favored by a significant majority of the nation’s citizens.” (103 Ill. 2d at 175.) There is not one word in the prosecutor’s final argument that implies that “the death penalty was favored by a significant majority of the nation’s citizens.” What he did state, and this is a matter of general public knowledge, is that “three-quarters of the legislatures in this nation quickly reimposed the death penalty statute.” The use of the phrase “three-quarters of the legislatures” may not be exactly accurate, although it is approximately so. A recital of this matter of general public knowledge which is not misleading certainly cannot be said to have prejudiced the defendant.
I have attempted to point out that the comments found by the majority to constitute reversible error not only did not constitute plain error, warranting their consideration in the absence of an objection, but also did not constitute error warranting reversal even if they had been properly preserved by objections. The majority opinion has combed the final argument of the prosecutor, has lifted statements out of context, has applied unreasonable inferences to statements that were made, and has used the plain error concept as an instrument for vacating a death penalty, when all else failed.
The legislature, as a body representative of the people of this State, has decreed that death is an appropriate penalty for murder when certain aggravating factors are present. This court has held that the death penalty statute enacted by the legislature is constitutional. (People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531.) Our criminal justice system is founded on an adversarial basis. Certain procedural rules have come to be accepted as the means of maintaining an appropriate balance in such an adversarial system and of insuring a fair trial to both the defendant and the People. These procedural rules include the principles of waiver and plain error. It is the court’s function to apply the constitutional laws enacted by the legislature, and in doing so, it should follow established rules of procedure. As distasteful as the penalty of death may be, we must, nonetheless, apply it in cases in which it has been properly found by the sentencing body to be appropriate. We should not bend or distort the accepted procedural rules in order to circumvent that penalty in a particular case. Also, we must not construe procedural rules, or apply them in such a rigid manner, that we thwart the will of the people by making it nearly impossible to apply the death penalty statute enacted by the legislature. By applying the test of what prejudicial effect the prosecutor’s argument “might or could have had” on the jury, by examining each statement of the prosecutor out of context, and by drawing conjectured inferences therefrom, it is doubtful if any final argument for the prosecution could be found free from error. I therefore dissent from that portion of the majority opinion which vacates the penalty of death.
UNDERWOOD and MORAN, JJ., join in this partial concurrence and partial dissent.