also dissenting:
Nine years ago, defendant, Rolando Cruz, was tried before 12 persons who had been accepted by the State and the defense as fair and impartial jurors. Following a trial, that jury returned a verdict of guilty and found that defendant was eligible for and should receive the death penalty. This court subsequently overturned defendant’s conviction on the ground that his trial should have been severed from the trials of his codefendants. In 1990, upon remand of this cause, a new jury of 12 persons who had been accepted by the State and the defense as fair and impartial jurors was empaneled. At trial, both the State and the defense presented a substantial amount of evidence on the question of whether or not defendant was guilty of the crimes with which he was charged. At the conclusion of that trial the jury again returned a verdict of guilty, and then found that defendant was eligible for and should receive the death penalty.
Defendant once again appeals and raises a number of alleged errors as grounds to set aside the jury’s findings and award him a third trial. In all of this, a host of legal and factual questions has been debated. All of these concerns are quite valid. Yet it is important to bear in mind the true, core purpose of this appeal. At its most fundamental, the issue in this appeal is whether the defendant received a fair trial — not a perfect trial, or the best trial in all possible worlds, but a fair trial. Also, the issue is not whether the members of this court of review would have convicted defendant of the crimes for which he was charged and stood trial if we had been called to serve as members of the jury that tried and determined the defendant’s guilt, but rather the question is whether sufficient evidence had been presented upon which the jury could have found the defendant guilty.
I have carefully reviewed the evidence of record, the arguments of the defendant and the State, the applicable law, and the views expressed by my colleagues. Contrary to the conclusions of the plurality, the record demonstrates that the defendant did receive a fair trial. I find no sound basis to disturb the jury’s verdict that the defendant is guilty of the Nicarico assaults and murder.
There was no abuse of discretion in the trial court’s decision to admit evidence that Brian Dugan admitted to having committed the Nicarico assaults and murder, and that Dugan confessed to and was convicted of two other murders and three other sexual assaults. The trial court also properly exercised its discretionary authority when it excluded from evidence the facts and details surrounding Dugan’s confession to the two additional murders and three assaults. The trial court’s rulings regarding the impeachment of Erma Rodriguez, as well as the trial court decision to admit the bloodhound trailing evidence, were not reversible error.
Numerous State witnesses testified to various statements made by defendant Cruz in which he either admitted involvement in the Nicarico crimes or recounted certain facts which were consistent with facts discovered during the investigation of these crimes. The jury had the power and right to conclude from the evidence presented through the State’s witnesses that the defendant had participated in the Nicarico kidnapping, assault and murder. The jury also had the lawful right and power to conclude that only someone who had participated in committing the Nicarico crimes would have been able to recount the details known to defendant Cruz and described by Cruz in his incriminating statements to the State’s witnesses. The evidence presented by the State was sufficient for the jury to find defendant guilty of the Nicarico crimes. The grounds proffered by defendant in support of reversal do not warrant a new trial. I wish to note that the record reveals that defendant was represented at trial by very able counsel.
For these reasons, I dissent from the plurality’s decision to reverse defendant’s convictions and remand the cause for a new trial. Because I also disagree with some of the views expressed in the dissent of Justice Heiple, I write separately to record my departure from certain identified portions of the dissenting opinion as well as the plurality opinion.
I
One of the most sharply contested issues in this appeal pertains to the admissibility of the hearsay evidence regarding Brian Dugan’s admissions to the Nicarico crimes, as well as his confession to two other murders and three sexual assaults. The trial court allowed introduction of the evidence that Dugan admitted that he alone committed the Nicarico crimes. This was a discretionary ruling by the trial court, which is subject to reversal only if the court clearly abused its discretion. (People v. Bowel (1986), 111 Ill. 2d 58, 68.) Since defendant sought introduction of the evidence of the Dugan confession to the Nicarico crimes, he does not challenge the trial court’s ruling on its admissibility. The State cannot appeal from the trial court’s decision to admit the evidence of Dugan’s confessions. (134 Ill. 2d R. 604(a); see generally People v. Young (1980), 82 Ill. 2d 234.) As a result, the issue is not directly before this court for review on appeal. Nevertheless, the plurality concludes that the trial court’s ruling was correct; the other dissenters strongly disagree.
I find no abuse of discretion in the trial court’s decision to admit hearsay evidence to show that Dugan admitted that he alone had kidnapped, assaulted, and murdered Jeanine Nicarico. The record discloses that the trial court conducted a full pretrial evidentiary hearing wherein the State and the defense presented considerable factual evidence and made extensive legal arguments in support of their respective positions. After considering the evidence of record and the parties’ arguments, the trial court found that Dugan’s statements were against his penal interest. The trial court also ruled that corroborative facts and circumstances presented sufficient indicia of reliability to justify admission of Dugan’s statements that he assaulted and killed Jeanine Nicarico. Although the dissent authored by Justice Heiple disputes these factual determinations, a review of the record reveals adequate factual basis to justify the trial court’s ruling.
Most importantly, in my opinion, fundamental interests of justice, fairness, and the pursuit of truth permitted the admission of Dugan’s incriminating statements about his involvement in the Nicarico crimes. (See Chambers v. Mississippi (1973), 410 U.S. 284, 302, 35 L. Ed. 2d 297, 313, 93 S. Ct. 1038, 1049; People v. House (1990), 141 Ill. 2d 323, 390; People v. Lettrich (1952), 413 Ill. 172, 179.) The basic interests of justice, fairness, and the pursuit of truth allowed the introduction of evidence that Dugan admitted that he alone forcibly entered the Nicarico home, kidnapped, sexually assaulted and murdered Jeanine. These same basic interests permitted the introduction of evidence that Dugan correctly described the tape used to bind Jeanine’s head, that he led investigators to the Nicarico home, that he led investigators to the approximate location where Jeanine’s body was found, and that he accurately described several other significant aspects of the crimes committed upon the child. In my view, it was also proper, in the interests of justice, fairness, and the pursuit of truth, that the trial court permitted introduction of evidence to show that Dugan also confessed to, and was convicted of, the sexual assaults and murders of Melissa Ackerman and Donna Schnorr, as well as three other sexual assaults. The jury did hear all of this evidence. In my opinion, the trial court did not abuse its discretion in these evidentiary rulings.
The paramount fact which permeates all of the issues involving Dugan is the following: all of the details of Dugan’s statements concerning the Nicarico crimes, including his assertion that he alone committed the crimes, and the evidence that Dugan also confessed to two other murders and three other sexual assaults were introduced at trial and heard by the jury. The jury saw and heard the witnesses, weighed their testimony, and determined the importance to be attached to Dugan’s statements before reaching its verdict. The jury heard and observed the witnesses and examined the exhibits. It had the prerogative to believe or disbelieve some or all of Dugan’s incriminating statements. The jury also had the right to believe or disbelieve the witnesses and the evidence that incriminated defendant Cruz in the Nicarico crimes. The evidence considered by the jury included testimony that impeached or attacked the credibility of the State witnesses who recounted the statements made by defendant that incriminated him in the Nicarico crimes.
After weighing all of the evidence, the jury found defendant Cruz guilty of the Nicarico crimes beyond a reasonable doubt. By its verdict, the jury did not believe or accept all of Dugan’s Nicarico statements as determinative of the issue of defendant Cruz’s guilt. By its verdict, the jury indicated it believed Cruz’s statements in which he implicated himself in the Nicarico murder.
It is not the function of this court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261.) In criminal appeals, this court is not empowered to set aside the jury’s verdict unless the verdict is so palpably erroneous that there is a reasonable uncertainty of the defendant’s guilt. (People v. Harre (1993), 155 Ill. 2d 392, 397-98.) "Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” (Emphasis in original.) (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins, 106 Ill. 2d at 261.) The law compels us in this case, as in every criminal case, to determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789; People v. Collins, 106 Ill. 2d at 261.) As already noted, to date 24 impartial jurors have found defendant Cruz guilty beyond a reasonable doubt. Justice Heiple forcefully observes in his dissent that the evidence against the defendant in this case was more than sufficient to support the jury’s verdict. (See 162 Ill. 2d at 426.) Considering all of the evidence in this case, I submit that it cannot be concluded that the jury’s determination that defendant was guilty was palpably erroneous.
II
Constrained by the rule that this court cannot reweigh the evidence in order to make a de novo determination of the defendant’s guilt, the plurality nevertheless gives credence to its own skepticism of defendant’s guilt and awards defendant a new trial. To do so, the plurality engages in circuitous reasoning to find that certain decisions of the trial court were reversible error. Specifically, the plurality concludes that the trial court improperly excluded from evidence the details and facts of the other crimes to which Dugan confessed, i.e., the Ackerman and Schnorr murders, and the three sexual assaults. The plurality’s decision is patently insupportable.
The trial court’s decision to exclude the facts and details of the Ackerman and Schnorr murders and the three other sexual assaults was neither legally erroneous nor an abuse of discretion. Defendant sought to introduce the details of the other Dugan crimes on the sole theory that they were admissible to prove modus operandi. The plurality acknowledges that in order to be admissible on this basis, there must be a high degree of similarity between the crimes. This strict requirement is not lessened when the evidence is offered by the defense to show that another person committed the offense charged. 162 Ill. 2d at 351, citing People v. Tate (1981), 87 Ill. 2d 134, 141, 143.
The plurality believes that evidence of Dugan’s confession to Ackerman’s abduction, assault and murder was admissible under a theory of modus operandi. Specifically, the plurality finds there was a "substantial and meaningful linkage” between the Ackerman and Nicarico crimes "such that Dugan’s confession to the Ackerman murder was probative of the truth of his account of the Nicarico murder.” (162 Ill. 2d at 351.) I disagree. A comparison of the Nicarico crimes to the details of the Ackerman crimes does not reveal sufficient similarities to find a modus operandi.
The verifiable facts of the Ackerman and Nicarico murders do not share sufficient distinctive features that would demonstrate that both crimes were committed by the same offender. The primary similarities between the Ackerman and Nicarico murders are the following: both victims were female children, both were abducted during daylight hours, both were sodomized, and both were murdered. These shared features are insufficient to prove a distinctive modus operandi.
The plurality enumerates several other purported similarities in Dugan’s accounts of the two crimes. For example, the plurality notes that prior to the kidnappings, Dugan was aimlessly driving around in his car smoking marijuana when he "encountered” each victim, that he "perhaps” placed each of the girls in the front passenger seat of his car, that he attempted to hide or cover both of them with some type of bedding, and that he tied the victims’ hands. (See 162 Ill. 2d at 351.) The plurality accepts Dugan’s claims as fact, although none of these particulars was verified. However, even accepting the truth of Dugan’s claims on these specific matters, they are not sufficiently distinctive to prove a modus operandi on the part of the perpetrator. (See Tate, 87 Ill. 2d at 142-43.) The trial court correctly noted that a car is a common mode of transportation in kidnapping cases, and that sexual assaults often take place in secluded locations. Especially when a car is used in a kidnapping, it is not unusual for the abductor to restrain and conceal the victim from public view.
It is noteworthy that the plurality does not discuss the dissimilarities in Dugan’s own accounts of the two crimes, or the dissimilarities between some of the known facts of each crime. The following are some of the dissimilarities: Melissa Ackerman was abducted from a public street in La Salle County. In contrast, Jeanine Nicarico was kidnapped from inside her locked home in Du Page County, a considerable distance from La Salle County. According to Dugan, the sexual assault of Jeanine took place in the back seat of his car. The assault on Melissa occurred in the clearing of a field. In Melissa’s case, Dugan claimed that the assault involved only anal sex. With respect to Jeanine, Dugan stated that she was sodomized and vaginally assaulted. Melissa was drowned; Jeanine was bludgeoned to death. When Melissa’s body was found, it was completely unclothed and she was not blindfolded. Jeanine was found with her nightshirt still wrapped around her body and a blindfold taped tightly around her head. The Nicarico murder took place in February 1983. The Ackerman murder was one of four abductions and assaults, or attempted assaults, committed by Dugan in less than four weeks in May and June of 1985.
In light of all of these considerations, the details and facts of the Ackerman murder were not admissible under a theory of modus operandi. The record reveals marked differences in: (1) the manners in which the victims were abducted, (2) the nature of the sexual assaults committed upon the victims, (3) the ways in which the victims were killed, (4) the distances between the crime locations, and (5) the conditions of the bodies once the victims were found. In addition, there was a substantial lapse in time — over two years — between the dates of the Nicarico murder and the Ackerman murder. The record supports the trial court’s determination that the high degree of identity between the Nicarico and Ackerman murders required to earmark both crimes as the work of the same offender had not been shown. The trial court correctly ruled that the details of Dugan’s confession to the Ackerman crimes were inadmissible at defendant’s trial.
Based on the foregoing, I cannot conclude that the trial court abused its discretion in excluding evidence of the facts and details of the Ackerman crime in the defendant’s trial for the Nicarico crimes. I agree with the dissent of Justice Heiple that the trial court correctly ruled that the Ackerman murder evidence does not meet the modus operandi standard for admissibility. See 162 Ill. 2d at 421.
III
With respect to the remaining crimes to which Dugan confessed, the plurality agrees with the trial court’s ruling that there were not such distinctive features among all the remaining crimes to which Dugan confessed and the Nicarico murder as to be admissible under the theory of modus operandi. The plurality nevertheless holds that "there was a sufficient degree of similarity [between them and his account of the Nicarico murder] to support their entire admission for [other] purposes.” (162 Ill. 2d at 352.) The plurality rules, first, that the facts and details of and the circumstances surrounding Dugan’s confessions to the Schnorr murder and the other sexual assaults corroborated Dug-an’s statements about the Nicarico murder and thus were probative of the reliability of his Nicarico statements, and, secondarily, that the evidence was admissible to rebut the alternative theory advanced by the State that Dugan participated with defendant in the Nicarico crimes. As previously noted, the only basis upon which defendant sought to have this evidence admitted at trial was to show Dugan’s modus operandi.
I do not agree that these other crimes had significantly similar characteristics to the known facts or Dug-an’s account of the Nicarico crimes. As summarized in the plurality’s statement of facts and in Justice Heiple’s dissent, the remaining crimes were the abduction, sexual assault and drowning murder of 27-year-old Donna Schnorr in Kane County in July 1984, and the abductions, sexual assaults and attempted kidnapping of three other young adult women ranging in age from 16 to 21 in Kane and Will Counties between May 6 and May 29, 1985. Justice Heiple correctly points out that in all of these crimes the young women were abducted from public roadways, and none involved sodomy. In addition to the other distinguishing features noted by Justice Heiple, two of the abductions occurred late at night, and two others were in the early evening. In only one of the cases was a blindfold used, and the blindfolding occurred only after Dugan had engaged in face-to-face conversation with the victim. In that incident, as well as one other, Dugan drove the victims home after the sexual assaults, and told them his name and where he had gone to high school. Although there are several common features among these other crimes, three of which took place within a three-week time period, they bear almost no similarity to the Nicarico crimes, except that the various crimes involved kidnapping or attempted kidnapping and sexual assaults. Thus, the facts of these crimes do not factually corroborate Dugan’s Nicarico statements.
The plurality correctly states that this court should not engage in a de novo review of the propriety of the discretionary ruling of the trial court to admit testimony concerning Dugan’s Nicarico statements. The plurality then proceeds, however, to conduct just such a de novo review of the trial court’s discretionary ruling to exclude evidence concerning the facts and details of other crimes to which Dugan confessed. The plurality holds that the details of the other crimes were probative of the reliability of Dugan’s Nicarico statements because they corroborated the Nicarico statements. For the reasons explained above, I do not agree that Dugan’s accounts of the other crimes he committed corroborated his statements concerning the Nicarico crimes. Moreover, the trial court had already ruled, at the conclusion of the pretrial hearing, that the hearsay evidence regarding Dugan’s Nicarico statements had been shown to be sufficiently reliable to justify its admission. Since Dug-an’s Nicarico statements had already been ruled admissible, the admission of additional hearsay evidence regarding other crimes, unrelated to and factually different from the Nicarico crimes, to support the reliability of a third party’s Nicarico statements, was neither necessary nor proper. Highly significant and deserving of emphasis is the fact that at trial defendant did not seek introduction of the details of Dugan’s other crimes on the ground that those details demonstrated the reliability of Dugan’s Nicarico statements. Defendant sought admission of the other-crimes evidence on the sole basis that the other-crimes details established that Dugan employed a certain modus operandi in his commission of crimes which was consistent with the conduct of the perpetrator of the Nicarico crimes.
In his appeal to this court, defendant advances, for the first time, the argument that the details of Dugan’s other crimes and the circumstances of his confessions to them was probative of the reliability of Dugan’s Nicarico statements. The plurality now gratuitously determines that the trial court should have admitted the evidence of the facts and details of Dugan’s other crimes on a basis (as being probative of the reliability of Dug-an’s Nicarico statements) that was never raised or argued at trial. Aside from the issue of waiver, I am not persuaded by defendant’s newly advanced theory. The plurality’s attempt to make a distinction between "corroboration” to support the reliability of Dugan’s Nicarico statements and modus operandi simply fails.
Neither am I persuaded that the details and facts of the other crimes to which Dugan confessed should have been allowed to rebut the State’s alternative theory that Dugan and defendant jointly participated in the Nicarico murder. The plurality admits that Dugan’s other crimes were not sufficiently distinctive to support the admission of them all under the theory of modus operandi, but holds that their probative value is in "the consistency of Dugan’s solitary conduct in similar situations.” (162 Ill. 2d at 355.) I fail to see the distinction the plurality attempts to make between consistency of conduct in similar situations and modus operandi. In my opinion, the attempted distinction is not valid. The Nicarico murder and the other criminal offenses to which Dugan confessed are not "similar situations.” The plurality attempts to infer a modus operandi of "solitary conduct in similar situations.” However, the plurality bases this inference on disparate offenses which, even by the plurality’s acknowledgment, are so dissimilar that the rules of modus operandi do not apply.
The jury heard testimony that Dugan had been charged with Ackerman’s murder and several abductions and sexual assaults in Kane County, that he was also a suspect in the Schnorr murder, and that pursuant to a plea agreement, Dugan confessed to and was convicted of all of those crimes in exchange for natural life sentences for the murders and maximum sentences for the other kidnappings and sexual assaults. In his brief testimony, Brian Dugan admitted that he was convicted of the murders of Ackerman and Schnorr. Defendant was thus allowed considerable latitude in presenting evidence to support the defense theory he sought to present, i.e., that Brian Dugan was the sole perpetrator of the Nicarico crimes. The plurality engages in a strained and result-oriented analysis to reach the conclusion that the details of Dugan’s other crimes should also have been admitted. The plurality analysis is couched in terms of corroboration of the truth of Dug-an’s Nicarico statements, the consistency of Dugan’s solitary conduct, and rebuttal of the State’s theory. However, each reason, when reduced to its core, is merely another way of saying that the evidence of Dug-an’s past conduct should have been admitted to show that Dugan employed a certain modus operandi from which it could be inferred that he was also the sole perpetrator of the Nicarico crimes.
I further suggest that the plurality’s analysis is wrong because it opens the door to a fundamental problem of significant proportion. Evidence that another person has confessed or admitted his involvement in the crime for which defendant is standing trial is relevant to the accused’s defense. But allowing the defense to introduce the details of other crimes committed by the third person, where those details bear no substantial relation or similarity to the crime charged, will cause a fundamental metamorphosis of the trial itself. An accused may, by properly admissible evidence, show that someone else may have committed the crime for which he is being tried. However, the focus should remain on whether the evidence is sufficient to prove the defendant’s guilt beyond a reasonable doubt, not whether a third person can be proven guilty beyond a reasonable doubt.
By permitting the introduction of irrelevant evidence of the dissimilar details and facts of the other crimes to which Dugan confessed, the plurality essentially places Brian Dugan, rather than the defendant, on trial for the Nicarico crimes. In light of these considerations, the potential for jury confusion is significant and the plurality is remiss to wholly ignore this important factor. For example, in United States v. Aboumoussallem (2d Cir. 1984), 726 F.2d 906, cited by the plurality, the court noted that relevant other-crimes evidence may nevertheless be excluded "if its probative value is substantially outweighed by 'the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay ... .’ Fed. R. Evid. 403.” (Aboumoussallem, 726 F.2d at 912.) The reviewing court noted that the trial court had excluded the proffered evidence because of "unfair prejudice and jury confusion,” and added that the court was "reluctant to substitute [its] judgment for that of the trial judge.” (Aboumoussallem, 726 F.2d at 912.) The plurality in the instant case engages in no equivalent analysis, and accords no deference to the discretionary powers of the trial court.
Citing People v. King (1986), 109 Ill. 2d 514, the plurality believes that Dugan’s confessions to the other crimes were "admissible to corroborate his statements about the Nicarico murder.” (162 Ill. 2d at 352.) However, the King case is factually inapposite. The crimes at issue in King, unlike the case at bar, shared many similar characteristics, including, for example, the use of the same weapon in both offenses. See King, 109 Ill. 2d at 531.
The plurality also relies upon People v. Kokoraleis (1989), 132 Ill. 2d 235. (See 162 Ill. 2d at 352.) The Kokoraleis decision is also inapposite, since the court found the other crimes "shar[ed] a core of facts indicative of a common criminal agency.” (Kokoraleis, 132 Ill. 2d at 258.) Such cannot be said of the present case.
Lastly, I believe reasoning from this court in People v. Boclair (1989), 129 Ill. 2d 458, bears emphasis. In that case, the court restricted the defendant’s cross-examination of a witness "to the date and nature, but not the circumstances, of [the witness’] murder conviction.” (Boclair, 129 Ill. 2d at 477.) Upon review, this court found no abuse of discretion in the trial court’s ruling:
"The scope of cross-examination concerning the circumstances of a witness’ prior conviction is within the trial court’s sound discretion, and absent an abuse of that discretion which results in manifest prejudice to the defendant, the ruling will not be overturned on review. [Citation.] *** [L]imits may be placed on the scope of cross-examination once the door has been opened [to a witness’ past offenses]. The opening is not a funnel through which the circumstances of prior convictions can be poured. The witness was not the one on trial and to dredge up the details of his prior conviction would only muddy the waters. [Citation.] The jury, following [the witness’] testimony and the defense’s probing cross-examination, was in the position to judge his demeanor and credibility. The trial court’s ruling did not interfere with the jury’s duty or ability to make those judgments, nor did it prejudice the defendant. Accordingly, we cannot say that the trial court abused its discretion in limiting the scope of cross-examination. [Citation.]” Boclair, 129 Ill. 2d at 477-78.
Similar to the circumstances in Boclair, the trial court in the present cause properly exercised its discretion when it excluded from evidence the details and facts surrounding the two murders and three assaults to which Dugan had confessed. Dugan was not the accused who was standing trial for the Nicarico crimes, and to include this additional evidence would have only served to "muddy the water.” The jury heard the evidence and weighed the importance to be attached to Dugan’s statements regarding the Nicarico crimes, as well as Dugan’s confessions to and convictions of two other murders and three sexual assaults. The trial court’s ruling that excluded details surrounding the other crimes did not deprive defendant of his right to present properly admissible evidence to support the defense theory that Brian Dugan was the sole perpetrator of the Nicarico crimes. Nor did the court’s ruling interfere with the jury’s ability to assess the credibility to be given to Dugan’s Nicarico admissions. The exclusion of the facts and details of the other crimes to which Dugan confessed did not deny defendant a fair trial. Accordingly, I find no abuse of discretion in the trial court’s exclusion of the details and facts of the other crimes to which Dugan confessed.
IV
It is agreed by the plurality and the other dissenters that the impeachment of Erma Rodriguez was error, and the State’s proffering of it as substantive evidence in closing argument was improper. The plurality holds that these improprieties rose to the level of reversible error, whereas the other dissenters conclude that they were rendered a nullity by the erroneous admission of Dugan’s statements. I find that, although the impeachment evidence was erroneously allowed and improperly used, it did not result in prejudice so substantial as to constitute reversible error.
With regard to the alleged link between Dugan and defendant, Rodriguez consistently testified that she had never seen defendant and Dugan together anywhere, and emphatically denied that she had told either Ramon Mares or Detective Wilkosz that Dugan was the man in defendant’s car on Easter 1983, or that defendant and Dugan had "hung around” together when they were younger. She stated that Mares was a second cousin with whom she was not close and whom she had not seen or spoken to in several years. She also testified that she knew Dugan because he had lived in the house next door to her mother, but that he did not move into that house until July 1984. This fact was confirmed by Wilcosz during his cross-examination, as was the fact that defendant had been incarcerated since the spring of 1984.
The record indicates that the trial court repeatedly admonished the jury of the limited purpose of impeachment evidence. For example, during Mares’ testimony, the trial court advised the jury:
"[A]ny evidence that was received for a limited purpose should not be considered by you for any other purpose, and the believability of a witness may be challenged by evidence that on some former occasion he or she made a statement that was not consistent with his testimony in this case. Evidence of this kind may be considered by you only for the purpose of deciding the weight to be given the testimony you heard from the witness in this courtroom.”
The trial court repeated these limiting instructions to the jury again during a later portion of Mares’ testimony. It also so admonished the jury during Wilkosz’s examination, and at the close of the evidence. The jury was similarly instructed during closing arguments and before retiring to deliberate, and was also repeatedly advised that closing arguments are not evidence. It is well recognized that statements by the prosecution during closing argument are ground for a new trial where "the prosecutor’s remarks so infected the entire trial proceedings that they denied him a fundamentally fair trial.” (People v. Jones (1993), 156 Ill. 2d 225, 247.) The trial court’s repeated admonitions to the jury, reminding the jurors of the limited effect to be given to impeachment evidence, served to lessen the possibility that the jury would consider the testimony as substantive evidence rather than simply as impeachment evidence against Rodriguez.
Summarizing, I agree that the impeachment of Rodriguez should not have been allowed or argued by the State as if it were substantive evidence. However, the State also presented Robert Turner’s testimony that defendant admitted to Turner that he (defendant), Hernandez and Dugan acted together in the kidnapping, sexual assault and murder of Jeanine Nicarico. Thus, properly admissible evidence independent of the impeachment of Rodriguez was presented to establish a link between Dugan and defendant. Moreover, Rodriguez was resolute and unwavering during her lengthy examination that she never saw or told anyone she saw defendant and Dugan together or knew of any relationship between them. She was similarly resolute in her certainty that the mail-request incident occurred one week before Easter, not in late February. Further, as a result of the strenuous objections by defense counsel in the presence of the jury that the evidence and the State’s arguments on it were improper, the jury was instructed several times that the impeachment evidence was to be considered only for the limited purpose of judging Rodriguez’s credibility as a witness. Having examined the testimony and arguments on this issue in their entirety, I do not believe that the improper impeachment of Rodriguez was so prejudicial as to have been a material factor in the jury’s verdict.
V
The plurality reaffirms this State’s longstanding rule that evidence of animal trailing is inadmissible. (162 Ill. 2d at 369-70.) It is not my position that we should now depart from that precedent. However, I cannot agree that the admission of Towns-end’s testimony regarding the bloodhound trailing amounted to reversible error in this case.
Bloodhound evidence is usually offered for the purpose of identifying the perpetrator of a crime. In most jurisdictions admission of such evidence is conditioned, on a case-by-case basis, upon a showing that the results of the trailing are supported by sufficient independent evidence so as to be reliable and thus probative on the issue of the identity of the offender. (See 162 Ill. 2d at 371-72.) In People v. Pfanschmidt (1914), 262 Ill. 411, this court rejected the individualized approach, holding that "the 'conclusions of the blood-hound are generally too unreliable to be accepted as evidence.’ ” (Pfanschmidt, 262 Ill. at 462, quoting Brott v. State (1903), 70 Neb. 395, 398, 97 N.W. 593, 594.) The plurality concurs in that determination, but also concludes that even under the individualized approach the dog-trailing evidence in this case lacked the relevancy or probative value necessary for admission. As the plurality correctly observes, the evidence "failed to show any connection with Jeanine’s abduction.” 162 Ill. 2d at 372.
For example, Towns-end testified that his dogs are not trained to track an actual path taken by an individual but, rather, only to trail scents which are introduced to them. Towns-end conceded that the body cells from which the scents emanate can be dispersed by the wind, thus making it impossible to reconstruct the exact path taken by the person whose scent material the dog is trailing. Towns-end also stated that, in most cases, the dogs are placed at a location or on a path known to be one connected with the crime or the person being pursued. The dogs then follow the scent to which they are directed along that path to an ultimate destination. In contrast, Towns-end stated, in this case there was "no known path”; instead the dogs were searching for paths.
Although Towns-end testified at length regarding the mechanics of the trailing exercises conducted in this case, the sum of his testimony amounted to nothing more than that his dogs travelled the same routes between the Nicarico house and the street after scenting items from Jeanine’s bed and the shoeprint on the front door, and that one of the dogs travelled a slightly different route between the house and a "depression,” made by an unknown object at an unknown time, in the lawn. Towns-end acknowledged that by the time he arrived at the Nicarico house, numerous police officers and vehicles were on the scene and in the driveway. Ultimately, and most significantly, Towns-end stated that he merely led the dogs through the procedures and could not say that their actions in any way related to this case.
As such, Towns-end’s testimony was irrelevant not only because, as Pfanschmidt held, the conclusions of the dogs were unreliable but because the dogs’ actions in this case produced no conclusions whatsoever. The entirety of the evidence was ambiguous at best. The State did not show, nor did Towns-end himself even opine, that the dogs’ behavior had any connection to Jeanine’s abduction.
The defendant argues that the prosecutor improperly exaggerated the nature and significance of Towns-end’s testimony. However Towns-end’s admission as to the lack of probativeness on the issues of by what route and by what person or persons Jeanine was abducted was also pointedly remarked upon by defense counsel in his closing statement. On the basis of my review of the testimony, the arguments and the instructions, it is my belief that the jury’s verdict in this case could not have been influenced either by Towns-end’s testimony, which it is agreed was devoid of probativeness, or by the State’s hyperbolic argument. Consequently, I would hold that the error in the admission of the evidence relating to bloodhound trailing was harmless.
VI
In closing, I must record my unequivocal disagreement with the dissenters’ views regarding the persons and groups who filed amici briefs in this case (162 Ill. 2d at 387-89). The dissenters’ remarks concerning the amici are irrelevant, inappropriate, and unjustified. The amici were granted leave to file briefs before this court and it is unfair to now castigate the amici or to deprecate the positions they advocate. There is no justification for the dissenters’ disparaging references to the amici as a "questionable cabal” (162 Ill. 2d at 388) or a "curious melange of religious leaders, law school deans, former prosecutors, special interest bar associations and law professors [who] suddenly surfaced and filed a variety of amicus briefs” in support of a "carefully orchestrated and well-executed extrajudicial campaign” undertaken to improperly influence this court in defendant’s behalf. 162 Ill. 2d at 387.
I disagree with Justice Heiple’s remarks in his dissent concerning the law school deans who filed an amicus brief before this court. In my view, the dissenters’ references to these individuals as "oracles of the law” (162 Ill. 2d at 388) is a caustic denigration of the important roles they play in overseeing the education of future attorneys. There is no foundation for the accusation that the deans "joined forces *** to use their good offices, their prestige and their leadership status to influence and sway the court’s decision” on the basis of the irrelevant and inappropriate factor of their prestige. (162 Ill. 2d at 388.) Nothing in the brief submitted by these amici suggests such improper motive. Also, I emphatically reject the notion that "[hjonorable mention is due those law deans who were invited but who had the wisdom and ethical sensibilities to reject the invitation to join this questionable cabal.” (162 Ill. 2d at 388.) The obvious implication of this comment is that those deans who filed an amicus brief lack wisdom and ethics. To my knowledge, the deans of this State’s law schools are highly principled and highly ethical individuals. Unfounded remarks which impugn their character and intent are, in my opinion, injudicious and unwarranted.
In addition, while I agree that defendant received a fair trial, I do not believe it is appropriate to speculate on the future of this case in the wake of reversal (see 162 Ill. 2d at 426-27). These matters should have no more bearing on the legal decision of this court than public opinion, the identity of the amici, or any of the other matters Justice Heiple correctly states are irrelevant to the resolution of this or any other criminal case.
CONCLUSION
This case has been highly publicized. It has garnered an enormous amount of media attention and scrutiny. All of this is understandable, since the case involves a defendant upon whom the death penalty has been imposed for heinous crimes perpetrated upon a small, defenseless child. However, this court has the duty to rule on matters of record and the applicable law, and not be influenced by the opinions or agenda of the media. Further, this court is not afforded the luxury or indulgence to try the case on an ad hoc basis. The members of this court cannot act as quasi-jurors to reweigh the evidence in order to decide whether we believe that the defendant is guilty of the crimes charged.
Like the jury, we are bound by the evidence of record and the applicable rules of law. As Justices of the highest court in this State, it is our sworn and solemn duty to apply the law to the facts of record, in order to determine whether there were errors at defendant’s trial, and if so, whether those errors so infected the fundamental fairness of the trial that they rendered the jury’s decision inherently suspect or palpably erroneous. I am mindful of the grave responsibility of this court in all cases, but particularly in capital cases, to ensure that the defendant’s trial was not contaminated by errors which served to deprive him of a fair trial or which could be said to have had a material effect on the verdict. The record in the case at bar does not support a conclusion that the defendant received a trial that was unfair or infected with substantial error that would justify setting aside the jury’s verdict and awarding defendant a new trial. Therefore, defendant’s convictions and sentence should be affirmed.