People v. Bannister ( 2008 )

Docket No. 100983.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
JOSEPH BANNISTER, Appellant.
Opinion filed October 17, 2008.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Thomas, Garman, Karmeier,
and Burke concurred in the judgment and opinion.
Justice Kilbride dissented, with opinion.
OPINION
Following a bench trial in the circuit court of Cook County,
defendant, Joseph Bannister, was convicted of first degree murder
(720 ILCS 5/9–1(a) (West 2000)), attempted first degree murder (720
ILCS 5/8–4, 9–1(a) (West 2000)), and home invasion (720 ILCS
5/12–11(a) (West 2000)). At a separate sentencing hearing, a jury
found defendant eligible for the death penalty. After considering
evidence in aggravation and mitigation, the jury concluded that death
was the appropriate sentence. 720 ILCS 5/9–1(g) (West 2006).
The trial court sentenced defendant to death on the murder
conviction. The trial court also sentenced defendant to concurrent
prison terms of 45 years on the attempted murder conviction and 30
years on the home invasion conviction. The death sentence has been
stayed pending direct review by this court. Ill. Const. 1970, art. VI,
§4(b); 134 Ill. 2d Rs. 603, 609(a). We affirm.
I. BACKGROUND
Because defendant does not challenge the sufficiency of the
evidence, we need not set forth a detailed recitation of the facts.
Defendant was charged in a multicount indictment with, inter alia,
the first degree murder of Henrietta Banks; the attempted murder of
Henrietta’s sister, Sharon Banks; and home invasion. Following
admonishments from the trial court, defendant waived a jury for the
guilt-innocence phase of the proceedings, and the court conducted a
bench trial.
The State’s evidence at trial was essentially as follows. Defendant
and Sharon met in September 1992. They were living together when
their daughter, Britnee Bannister, was born in 1993. Sometime in
1997, Sharon moved to 1904 N. Kedzie Avenue in Chicago, where
she lived with Britnee and her three other children. Also living with
Sharon and her children were Sharon’s mother, Arritta Banks;
Sharon’s sister, Henrietta; and Henrietta’s two children. Defendant
did not initially move into the Kedzie Avenue residence with Sharon,
but sometime in 1998, defendant lived there for six or seven months
as he and Sharon attempted to nurture their relationship. Defendant
contributed to Britnee’s support. However, defendant did not pay any
rent and his name was not on the lease.
A few months prior to his crimes, defendant had threatened
Sharon during several altercations. On August 21, 2000, Sharon was
driving east on Jackson Boulevard, with Henrietta in the front
passenger seat, when she encountered defendant driving westbound.
Defendant saw Sharon, turned his car around and followed her.
Defendant then rear-ended Sharon’s car twice, causing her bumper to
fall off. They stopped their cars. Defendant exited his car, approached
the driver’s side of Sharon’s car, banged on her window, and ordered
her to get out of her car. Sharon refused and called the police. Sharon
then moved her car out of the way of traffic. Defendant returned to
Sharon’s car and ordered her to get out of the car, saying that he was
going to kill Sharon. The next day, Sharon went to the circuit court,
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where she received an emergency order of protection and a court date
of September 12, 2000.
On September 12, 2000, Sharon, accompanied by Henrietta and
Arritta, went to court. Outside of the courtroom, in front of Henrietta
and a court advocate, defendant threatened Sharon, saying: “Bitch,
I’m going to kill you.” On September 16, 2000, Sharon and Henrietta
were with their children at a playground on West Harrison Street.
Defendant arrived and wanted to speak with Sharon, who told
defendant to leave them alone. Defendant warned Sharon that he was
going to “fuck her up,” which Sharon interpreted as defendant was
going to take her life. Sharon called out for someone to gather her
children and, as she telephoned police, defendant left the area.
On September 23, 2000, defendant committed the acts giving rise
to this prosecution. At approximately noon, Sharon, Henrietta, their
children, and Arritta were all at their Kedzie Avenue residence. It was
a duplex apartment with bedrooms on the second floor and the
kitchen and living room on the first floor. In addition to the front
door, their apartment had another door connecting to an outside
stairway on the side of the building. Defendant broke open this side
door, damaging the door and locks thereto. Defendant entered the
residence, wearing all black and holding a handgun. Sharon’s children
ran to her, but she ordered them to move away from her. Sharon was
looking into defendant’s eyes when he raised the gun and shot her.
The first bullet grazed Sharon’s face, entered her left shoulder, and
exited her back. Sharon collapsed on the floor.
Defendant stepped over Sharon and approached Henrietta, who
was sitting on a couch. Defendant shot Henrietta three times: in the
forehead, in the right side of the head over the ear, and in the right
upper back. Defendant returned to Sharon, stood over her, and shot
her again, saying, “Die bitch.” This bullet entered Sharon’s rib cage
and was still lodged there when she testified at trial. Defendant then
turned to Arritta, with his gun pointing at her. Britnee jumped into
Arritta’s arms and asked defendant whether he was going to kill all
of them. Defendant then ran out of the apartment. Emergency
personnel were summoned.
Sharon; Arritta; and Sharon’s children, Latoria Moore and Torie
Moore, each testified in court as to defendant’s acts in the apartment
that day. By stipulation, the trial court admitted into evidence the
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depositions of Britnee and Cedric Hunter, another of Sharon’s
children. In their depositions, Britnee and Cedric each related
defendant’s acts in the apartment in accord with each other and with
the in-court witnesses.
Anibal Alvarado’s father lived next to the Banks residence at
1906 N. Kedzie Avenue. At approximately noon on September 23,
2000, Alvarado was working on a car in the backyard of his father’s
residence. Alvarado saw defendant, who was wearing all black, walk
toward 1904 N. Kedzie Avenue, but did not see him enter the
building. Alvarado visited his father every day, and had seen
defendant in the past “with the kids and throwing out trash and all of
that.” Alvarado heard gunshots and children screaming; he then saw
defendant retrace his steps through the alley, get into a car parked on
Cortland Street near the alley, and drive away. Alvarado walked up
the outside stairway of the 1904 building into the apartment. He saw
Henrietta slumped over on a couch and Sharon lying on the floor.
Alvarado checked Henrietta for a pulse, could not find one, and
observed that she was not breathing. Alvarado assisted Sharon until
paramedics arrived.
Chicago Police Detective James DeLaFont was assigned to
investigate the shootings and arrived at the scene early that afternoon.
After interviewing witnesses, Detective DeLaFont learned that he was
looking for defendant, and received a photograph of defendant. On
the afternoon of February 11, 2001, Chicago Police Officer Robert
Walker and his partner, Officer Robert Burrell, responded to a report
of a wanted person. They proceeded to the alley behind 11594 S.
State Street, where Officer Walker saw defendant standing. Officers
Walker and Burrell exited their squad car, approached defendant, and
asked him for his name. Defendant identified himself as Robert
Wallace. During this time, additional officers arrived. The officers
arrested defendant as Joseph Bannister, transported him to the local
police station, and notified detectives. Defendant was subsequently
transported to Area Five police headquarters.
Defendant eventually gave the following statement. On
September 23, 2000, defendant responded to a page from Sharon. He
told her that he was coming to the apartment to take a television and
some furniture and clothing. Defendant also wanted to see his
daughter Britnee. Sharon replied that defendant could not have those
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items because they were for the family and not for him. Sharon also
informed defendant that he could not see Britnee without a court
order. Defendant told Sharon that he would wait until Britnee was old
enough to decide for herself if she wanted to see him. Defendant told
Detective DeLaFont and his partner that defendant was exasperated
with Sharon and the way she treated him. Defendant stated that he
went to Sharon’s apartment, used the outside stairs, let himself in
with his key, shot Sharon, and then immediately left the apartment.
Defendant noticed that Sharon’s mother, sister, and several children
were there, but nothing else happened.
Upon further questioning, defendant stated that he had said
enough and that he would say no more unless he received certain
guaranties. The detectives rejected defendant’s attempt to bargain
with them.
Defendant did not present evidence and, after receiving
admonishments from the trial court, elected not to testify. The defense
case was that the State failed to prove defendant guilty of the charged
offenses beyond a reasonable doubt. In closing argument, defense
counsel attacked the credibility of the State’s witnesses and described
purported discrepancies in their testimony. The trial court found
defendant guilty of the murder of Henrietta, the attempted murder of
Sharon, and home invasion.1
Following admonishments from the trial court, and against the
advice of defense counsel, defendant chose to have the death
sentencing hearing conducted before a jury. At the eligibility phase,
the State presented the in-court testimony of Sharon, Cedric, Latoria,
Arritta, Alvarado, and Detective DeLaFont, which was consistent
with their testimony at the guilt phase of the trial. By stipulation, the
trial court admitted into evidence Britnee’s deposition testimony. The
State also presented the testimony of additional witnesses.
1
Defendant was also charged with the attempted murder of Arritta, and the
trial court found defendant guilty as charged. However, the court
subsequently vacated that conviction. Also, defendant was charged with
aggravated battery with a firearm in relation to Sharon. The trial court found
that this charge merged with the conviction for Sharon’s attempted murder.
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Chicago Police Officer Debra Woldeit testified that she and her
partner were among the first law enforcement officers to arrive at the
scene of the shooting, where she observed damage to the side door.
Dr. Michelle Mellett testified that she treated Sharon for multiple
gunshot wounds. One of the bullets caused a large graze wound
across Sharon’s left cheek, entered the area of the left collarbone and
exited out of the back. Another bullet entered the right side of
Sharon’s chest, broke the fifth rib, and lodged in the spine. Sharon
was in critical condition, having difficulty breathing, and required
insertion of a chest tube to save her life. Sharon was conscious and
repeatedly stated that the father of her child had broken into her home
and shot them, and that her sister was dead.
By stipulation, the trial court admitted into evidence a certified
copy of: (1) defendant’s conviction of the first degree murder of
Henrietta, the attempted murder of Sharon, and home invasion; and
(2) defendant’s birth certificate, bearing a birth date of December 11,
1966. Following admonishments from the trial court, defendant
elected not to testify or call any witnesses at the eligibility phase of
the death sentencing hearing.
After hearing closing arguments and receiving the trial court’s
instructions, the jury found beyond a reasonable doubt that: (1)
defendant was over 18 years old at the time of the murder; and (2)
defendant committed the murder in the course of another felony, i.e.,
home invasion. Thus, the jury found defendant eligible for the death
penalty. The trial proceeded to the second stage of the death
sentencing hearing.
The State’s evidence in aggravation included the testimony of
Wellington Rolle. In December 1984, Rolle was a member of a street
gang, and he knew defendant to be a member of a rival street gang.
Rolle was attending a party in an apartment. Hearing a “commotion,”
he stepped out of the apartment into the building’s “breezeway,”
which he described as a hallway on the exterior of the building. Rolle
heard a gunshot. He then saw defendant produce a handgun and aim
it at Rolle’s face. Defendant then shot Rolle in the face. Defendant
continued to shoot at Rolle as he ran to his mother’s apartment in the
housing complex. He was taken to a hospital where he was not
expected to live. The bullet struck Rolle’s jaw, grazed his windpipe,
and lodged in the back of his neck, two inches from his spine. In July
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1985, defendant was convicted of attempted murder, aggravated
battery, and armed violence. In August 1985, defendant was
sentenced to a 15-year prison term. Having violated his probation for
the 1984 robbery, defendant was sentenced on that conviction to
seven years’ imprisonment.
Sharon testified in aggravation. As recited earlier, defendant met
Sharon in September 1992, and they were living together when their
daughter Britnee was born in 1993. Sometime that year Sharon and
defendant had an altercation, and Sharon filed a child support claim
and obtained an order of protection. Sharon told defendant he could
no longer live with her family. In May 1993, defendant was arrested
for selling drugs and, in 1995, he pled guilty to possession of a
controlled substance with intent to deliver and was sentenced to four
years’ imprisonment. After defendant was imprisoned, Sharon moved
to the Kedzie Avenue residence without informing defendant because
she was afraid of him. During this incarceration, defendant harassed
Sharon with letters and telephone calls from prison.
In January 1997, defendant was released from prison. He learned
that Sharon was living at the Kedzie Avenue address and went to see
her. Sharon did not allow defendant to move in with her and her
family, but allowed him occasionally to spend the night and to visit
Britnee.
In August 1997, the relationship, according to Sharon, became
“very violent.” Defendant took Britnee away from Sharon and kept
her for a week. According to Sharon: “I called the police constantly.
He comes back with the baby playing the baby game. I will give you
your baby if you will come and talk to me.” Defendant returned
Britnee. When he did so, however, he also pushed Sharon to the
ground. When Sharon attempted to defend herself, defendant struck
her head with his hands. Sharon’s mother, Arritta, intervened. Sharon
called the police; defendant was still there when they arrived.
Defendant told the officers that he was returning the baby. He was not
arrested and he left the residence.
Sharon testified regarding many subsequent encounters with
defendant. For several years, defendant repeatedly threatened Sharon
with violence if she did not speak to him. Indeed, one such encounter
resulted in defendant being convicted of domestic battery and phone
harassment, and ultimately sentenced to 130 days in the Cook County
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jail. This pattern continued until September 23, 2000, when defendant
committed the first degree murder of Henrietta, the attempted murder
of Sharon, and home invasion.
The State also presented evidence of defendant’s significant
disciplinary infractions while in the custody of the Illinois
Department of Corrections, from 1985 to 1992, and of Cook County
jail pending trial. The infractions included assault, intimidation, and
possession of narcotics and homemade weapons. The State rested in
aggravation.
At the outset of the mitigation portion of the death sentencing
hearing, defendant informed the trial court that he did not want to
present any evidence in mitigation. Despite this request, the trial court
allowed defense counsel to present mitigation evidence. Anita Henry,
defendant’s half-sister, and Michael Herring, defendant’s half-
brother, testified in mitigation. They testified essentially that
defendant maintained a relationship with Britnee and provided for
her. Herring never saw defendant hostile or angry at Sharon or
Britnee. However, Henry acknowledged that there were areas of
Sharon and defendant’s relationship about which she did not know,
including that Sharon had an order of protection against defendant.
At the close of the death sentencing hearing, the jury found that
death was the appropriate sentence. The trial court ultimately denied
defendant’s motions for a new trial and a new sentencing hearing.
The court entered judgment on the finding of guilt and sentenced
defendant to death. The court also sentenced defendant to a
concurrent 45-year prison term on the attempted murder conviction
and a concurrent 30-year prison term on the home invasion
conviction.
Defendant appeals. Additional pertinent facts will be discussed in
the context of the issues raised on appeal.
II. ANALYSIS
We will discuss defendant’s allegations of error in the sequence
in which the alleged errors occurred in the proceedings below.
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A. Jury Waiver for Guilt Phase
Defendant first contends that he did not knowingly and
voluntarily waive his right to trial by jury at the guilt/innocence phase
of the proceedings. Defendant argues that the trial court incorrectly
informed him of the minimum and maximum penalties for his several
charged offenses.
We initially observe that defense counsel failed to object to any
of the court’s allegedly erroneous admonitions at trial and failed to
include some of them in his posttrial motion. “Both a trial objection
and a written post-trial motion raising the issue are required for
alleged errors that could have been raised during trial.” (Emphases in
original.) People v. Enoch, 122 Ill. 2d 176, 186 (1988). Therefore,
this issue is procedurally forfeited.
Seeking our review, defendant invokes the plain-error doctrine of
Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). The doctrine
serves as “ ‘a narrow and limited exception to the general [rule of
procedural default].’ ” People v. Szabo, 113 Ill. 2d 83, 94 (1986),
quoting People v. Pastorino, 91 Ill. 2d 178, 188 (1982). This court
will review unpreserved error when a clear and obvious error occurs
and: (1) the evidence is closely balanced; or (2) that error is so serious
that it affected the fairness of the defendant’s trial and challenged the
integrity of the judicial process. People v. Piatkowski, 225 Ill. 2d 551,
565 (2007); People v. Hall, 194 Ill. 2d 305, 335 (2000). When a
defendant fails to establish plain error, the result is that the
“procedural default must be honored.” People v. Keene, 169 Ill. 2d 1,
17 (1995). In addressing defendant’s plain-error contention, it is
appropriate to determine whether error occurred at all. People v.
Harris, 225 Ill. 2d 1, 31 (2007); People v. Sims, 192 Ill. 2d 592, 621
(2000).
The right to a trial by jury is a fundamental right guaranteed by
the federal Constitution (U.S. Const., amends. VI, XIV; Duncan v.
Louisiana, 391 U.S. 145, 149, 20 L. Ed. 2d 491, 496, 88 S. Ct. 1444,
1447 (1968)) and the Illinois Constitution of 1970 (Ill. Const. 1970,
art. I, §§8, 13). Indeed, based on our state constitution, an Illinois
criminal defendant’s right to a trial by jury includes the right to waive
a jury trial. People ex rel. Daley v. Joyce, 126 Ill. 2d 209, 222 (1988).
However, to be valid, the defendant must make the jury waiver
knowingly and voluntarily. People v. Bracey, 213 Ill. 2d 265, 269
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(2004); People v. Wesley, 30 Ill. 2d 131, 133 (1964) (and cases cited
therein); accord United States ex rel. Williams v. DeRobertis, 715
F.2d 1174, 1178-79 (7th Cir. 1983).
Consistent with these constitutional requirements, section 103–6
of the Code of Criminal Procedure of 1963 provides: “Every person
accused of an offense shall have the right to a trial by jury unless ***
understandingly waived by defendant in open court ***.” 725 ILCS
5/103–6 (West 2006). To the same end, our decisions have imposed
on a trial court the duty of ensuring that a defendant waives the right
to a jury trial expressly and understandingly. People v. Smith, 106 Ill.
2d 327, 334 (1985) (collecting cases). However, a trial court need not
give any specific admonition or advice for a defendant to make an
effective jury waiver. In re R.A.B., 197 Ill. 2d 358, 364 (2001);
People v. Tooles, 177 Ill. 2d 462, 469 (1997); Smith, 106 Ill. 2d at
334. The determination of whether a jury waiver is valid cannot rest
on any precise formula, but rather depends on the facts and
circumstances of each particular case. Bracey, 213 Ill. 2d at 269
(collecting cases); Tooles, 177 Ill. 2d at 469. The statutory
requirement of a written jury waiver (725 ILCS 5/115–1 (West 2006))
does not define or give substance to the constitutional right to choose
whether to have a jury trial. Rather, a written jury waiver merely
memorializes the defendant’s decision, allowing a court to review the
record to ascertain whether a defendant’s jury waiver was made
understandingly. Tooles, 177 Ill. 2d at 468. Because the facts of this
case are not in dispute, the issue is a question of law and our review
is de novo. See Bracey, 213 Ill. 2d at 270; R.A.B., 197 Ill. 2d at 362.
In the present case, approximately one month prior to defendant’s
trial, the trial court explained to defendant the two phases of a death
penalty proceeding, with the first phase determining guilt or
innocence and the second phase determining the appropriate penalty.
The trial court also explained to defendant that, for the
guilt/innocence phase, “you’re entitled to a jury or you can waive the
jury, and the Court, myself, would be solely responsible for deciding
whether or not the State has proved you guilty beyond a reasonable
doubt.” The court further explained to defendant that, during the
second phase of the proceedings, if necessary, “you are also entitled
to a trial by jury, or if you waive the same, you place the fact finding,
the sentencing finding in that case, in the hands of the Court, myself.”
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The court explained to defendant the trial procedure and defendant’s
right to a jury so that defendant could “think about it” prior to the
commencement of trial.
On the date scheduled for jury selection, defense counsel stated
that defendant had signed a written jury waiver for the
guilt/innocence phase of the trial and signed a jury waiver for the
death sentencing hearing. The trial court then, sua sponte, delivered
an extended lecture, addressed to defendant individually, regarding
defendant’s charged offenses with their minimum and maximum
penalties. The record evinces the trial court’s difficulty with meshing
familiar sentencing ranges with the relatively recent “15/20/25-to-
life” firearm sentencing enhancements. See generally People v.
Sharpe, 216 Ill. 2d 481 (2005) (discussing Pub. Act 91–404, eff.
January 1, 2000).
Defendant contends that the trial court erroneously informed him
of: (1) the minimum sentence he could receive for first degree
murder; (2) his possible minimum and maximum sentences for
attempted first degree murder and home invasion; and (3) the
possibility that he could receive concurrent sentences of
imprisonment. Defendant invokes the general constitutional principle:
“ ‘Waivers of constitutional rights not only must be voluntary but
must be knowing, intelligent acts done with sufficient awareness of
the relevant circumstances and likely consequences.’ ” People v.
Johnson, 75 Ill. 2d 180, 187 (1979), quoting Brady v. United States,
397 U.S. 742, 748, 25 L. Ed. 2d 747, 756, 90 S. Ct. 1463, 1469
(1970). Citing Brady, defendant argues that his jury waiver was not
knowing in that he could not understand “the consequences of a
conviction after a bench trial where the trial court misinformed him
of the mandated sentencing requirements ***. The consequences of
a conviction, by either a jury or by the trial court, are the penalties to
which the defendant will be subjected.” (Emphases added.) We
cannot accept defendant’s argument.
Defendant does not even suggest how the completeness or
correctness of the sentencing information related by the trial court
would have caused him to make a different jury waiver decision. We
fail to see how such information could have had any bearing on his
jury waiver. “Defendant apparently attempts to equate a jury waiver
with a plea of guilty where concededly the potential sentence is a
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weighty consideration. Here, however, defendant had entered a plea
of not guilty ***.” People v. Taylor, 3 Ill. App. 3d 313, 316 (1972).
In hearings on pleas of guilty, or in any case where the defendant
offers to stipulate that the evidence is sufficient to convict, our Rule
402(a)(2) requires a trial court to inform a defendant of “the
minimum and maximum sentence prescribed by law, including, when
applicable, the penalty to which the defendant may be subjected
because of prior convictions or consecutive sentences.” 177 Ill. 2d R.
402(a)(2). This requirement “is based upon the assumption that notice
of both the minimum and maximum [sentence] will give the
defendant a more realistic picture of what might happen to him.”
(Emphasis added.) 177 Ill. 2d R. 402(a)(2), Committee Comments,
at lxxvii. “Contrary to the situation with a jury trial waiver,
sentencing is a consequence of the acceptance of a guilty plea.
Sentencing, however, is not a consequence of the election to waive a
jury trial.” Horsman v. State, 82 Md. App. 99, 104, 570 A.2d 354,
357 (1990); accord People v. McCleary, 353 Ill. App. 3d 916, 919-20
(2004) (distinguishing admonition required for guilty plea pursuant
to Rule 402(a)(2) from requirement that jury waiver be knowingly
and intelligently made). A defendant who pleads not guilty receives
a full and fair trial before either a jury or the court sitting without a
jury. Regardless of who serves as the trier of fact, the defendant’s
possible sentences would be the same.
Whether the general constitutional test of waiver is satisfied
depends on the particular right being waived. Brady, 397 U.S. at 748,
25 L. Ed. 2d at 756, 90 S. Ct. at 1469 (observing that constitutional
rights must be waived “with sufficient awareness of the relevant
circumstances”). When a defendant waives the right to a jury trial, the
pivotal knowledge that the defendant must understand–with its
attendant consequences–is that the facts of the case will be
determined by a judge and not a jury. State v. Conroy, 168 Ariz. 373,
376, 814 P.2d 330, 333 (1991); Williams, 715 F.2d at 1180.
In the present case, following the trial court’s sentencing
discourse, the following colloquy occurred:
“THE COURT: Okay. Again, on the guilt or innocence
phase, it’s your choice as to whether or not you wish a jury or
the bench trial, meaning I would decide whether the State has
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proven you guilty beyond a reasonable doubt of any or all of
these charges.
If there is a finding of guilt on any or all of these charges,
whether by jury or by the Court, you have a second election,
and that is, the death penalty phase of it.
***
If, however, you want [sic] you are entitled to a jury or a
bench in the death penalty phase as well. So you could elect
for a jury on the guilt or innocence and waive it for the death
penalty, or you could select a jury for both the guilty or
innocence [and] the death penalty phase, or you could take a
bench for the guilt or innocence and also demand a jury for
the death penalty phase, or you could waive the jury on both
the guilt or innocence and the death penalty phase. A lot of
options. You understand that?
THE DEFENDANT: When you say ‘the phase,’ if I take
a bench, and then the penalty phase, I could have you as the
impose [sic] or the jury?
THE COURT: Yes. You have two choices in each stage.
You don’t have to make the choice for the second phase at
this point ***. You can leave that in here until such time as
you have the trial on the guilt or innocence phase.
THE DEFENDANT: I’ll wait until that point come.
***
THE COURT: On the guilt or innocence phase, do you
wish to be tried by the jury or the Court?
THE DEFENDANT: That would be you?
THE COURT: That’s right.
THE DEFENDANT: All right.
THE COURT: And you wish to be tried by jury or by the
Court?
THE DEFENDANT: So I have to decide now?
[Defense Counsel]: For guilt or innocence.
THE DEFENDANT: For guilt or innocence, yeah, the
Judge.
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THE COURT: You’re sure?
THE DEFENDANT: Yeah.
THE COURT: Is anyone forcing you or threatening you
to give up your right to a jury?
THE DEFENDANT: No.
THE COURT: You’re doing that freely and voluntarily?
THE DEFENDANT: Yes.
THE COURT: Any promises made to you in the event
you gave up your right to a trial by jury, any promises made
to you?
THE DEFENDANT: No, no.
THE COURT: And this is your signature on the jury
waiver?
THE DEFENDANT: Yeah.
THE COURT: And that’s what you want to do, waive
your right to a trial by jury in the guilt or innocence phase?
THE DEFENDANT: Yeah.
THE COURT: Leave granted to file the jury waiver. The
Court finds the defendant knowing and intelligently, freely
and voluntarily executed a jury waiver on the guilt or
innocence phase.”
The record here establishes that defendant knew the difference
between a bench trial and a jury trial and voluntarily chose the
former. See People v. McGee, 268 Ill. App. 3d 582, 585 (1994);
People v. Geary, 8 Ill. App. 3d 633, 635 (1972).
Further, our earlier recitation of defendant’s criminal record
indicates that he was no stranger to the criminal justice system. For
example, we recall that defendant was convicted of several offenses
relating to the December 1984 shooting of Wellington Rolle. The
record in this case includes the report of proceedings of defendant’s
July 1985 trial for those crimes. Defendant chose a bench trial after
the court admonished him that he had the right to a jury trial, which,
the court advised, “takes place when twelve persons are selected by
the parties and sworn that they will hear the evidence and they make
the determination of questions of fact, including the ultimate question
of guilt or not guilty.” Therefore, in this case, when the trial court
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advised defendant, in the presence of counsel, of his constitutional
right to a jury trial, defendant was already familiar with this right and
the relevant consequence of waiving it–that he would receive a bench
trial. See, e.g., Tooles, 177 Ill. 2d at 471; Wesley, 30 Ill. 2d at 133-34.
We uphold the trial court’s finding that defendant knowingly and
understandingly waived his right to a jury trial at the guilt phase of
the proceedings and that there was no denial of his constitutional right
thereto. See, e.g., Tooles, 177 Ill. 2d at 470; People v. Steenbergen,
31 Ill. 2d 615, 617 (1964); Williams, 715 F.2d at 1180; Conroy, 168
Ariz. at 376, 814 P.2d at 333. Having found no error, there can be no
plain error. See, e.g., Harris, 225 Ill. 2d at 31-32.
B. Jury Waiver for Death Sentencing Hearing: Who Decides?
An Illinois criminal defendant has a statutory right to choose a
jury for the death sentencing hearing, even when convicted at a bench
trial. 720 ILCS 5/9–1(d) (West 2006); see People v. Brown, 169 Ill.
2d 132, 155-56 (1996). Defendant next contends that the trial court
erred in denying defense counsel’s request for a bench death
sentencing hearing and granting defendant’s demand for a jury to
determine his sentence. Defendant contends that defense counsel, as
a matter of trial strategy, should have made the ultimate choice of jury
or bench death sentencing hearing.
As we earlier recounted, prior to trial defendant signed a written
jury waiver for the death sentencing hearing. However, he
subsequently decided to postpone that decision until the conclusion
of the guilt-innocence phase of the trial. After defendant was
convicted of the charged offenses, the trial court explained to
defendant the two parts of a death sentencing hearing: determining
death eligibility and weighing evidence in aggravation and mitigation.
The trial court repeated to defendant that he was entitled to have a
jury make the sentencing determination, or defendant could waive
that right and have the court decide the sentence. Defendant stated
that he understood the two-step nature of the death sentencing
hearing; he indicated that he had discussed his choice with his
attorneys; and he requested a jury for sentencing. Defense counsel
immediately asked for a recess.
-15-
When the proceedings resumed, defense counsel informed the
court: “Judge, the issue prior to our taking a break was whether
[defendant] was going to waive a jury for the sentencing phase after
having been found guilty ***. [Defendant] is not waiving jury. He is
requesting a jury.” The proceedings were continued for one week. At
the next court date, defense counsel told the court that defendant
wished to speak. However, before defendant could speak, the trial
court again described to defendant the two-step nature of the death
sentencing hearing, emphasizing that either a jury or the court,
whichever defendant chooses, will make the sentencing decision. The
trial court then advised defendant of the possible minimum and
maximum penalties for his convictions. Defendant then stated that he
wanted a jury for sentencing. The trial court asked defendant if he had
spoken with counsel about his choice and if he was sure that he
wanted a jury and not the court for sentencing. Defendant responded:
“I told her [trial counsel] a jury three times, your Honor, and I’m still
telling her a jury.” The court explained to defendant that once
selected, the jury would remain for both steps of the death sentencing
hearing, and defendant responded that he understood. Defense
counsel then asked defendant in open court: “Do you want the judge
or the jury to decide your sentence? That is what I’m asking you.”
Defendant answered: “The jury.”
The next day, prior to jury selection, defense counsel filed a
written “Motion for Bench Hearing on Eligibility and Sentencing
Phase of Above Cause.” In this motion, defense counsel requested the
trial court “to grant a bench hearing for the eligibility and sentencing
in the above cause not withstanding [sic] defendant’s desire for a jury
for the penalty phase.” Defense counsel asserted therein that “the
decision for either a bench or jury at this juncture is trial strategy and
lies with defendant’s attorney.” The trial court denied defense
counsel’s motion and defendant received a jury death sentencing
hearing.
While an Illinois criminal defendant has a constitutional right to
choose a jury at the guilt/innocence phase of the proceedings, the
defendant’s right to choose a jury at the death sentencing hearing is
wholly statutory. 720 ILCS 5/9–1(d) (West 2006); People v.
Strickland, 154 Ill. 2d 489, 517 (1992) (collecting cases). Defendant
does not, and based on this record, cannot, contend that the trial court
-16-
did not advise defendant of his option of sentencers at the death
sentencing hearing. Rather, defendant posits that “there are certain
decision[s] involving constitutional rights that are ultimately for the
defendant to decide.” According to defendant, since the right to a jury
at a death sentencing hearing is statutory and not constitutional, then
it is not “a personal decision left to the defendant.” Therefore,
defendant argues, the election or waiver of a jury at the death
sentencing hearing is a matter of trial strategy ultimately for defense
counsel to decide. We cannot accept this argument.
It is generally established that “certain decisions regarding the
exercise or waiver of basic trial rights are of such moment that they
cannot be made for the defendant by a surrogate.” Florida v. Nixon,
543 U.S. 175, 187, 160 L. Ed. 2d 565, 578, 125 S. Ct. 551, 560
(2004). Courts have affirmed that a criminal defendant has “the
ultimate authority” to decide one such basic trial right–whether to
waive a jury. Nixon, 543 U.S. at 187, 160 L. Ed. 2d at 578, 125 S. Ct.
at 560; People v. Segoviano, 189 Ill. 2d 228, 240 (2000).
Prevailing standards of practice elucidate this conclusion. Courts
have widely recognized the American Bar Association (ABA)
Standards for Criminal Justice as a guide for discerning professional
norms. See, e.g., Strickland v. Washington, 466 U.S. 668, 688, 80 L.
Ed. 2d 674, 694, 104 S. Ct. 2052, 2065 (1984); Canaan v. McBride,
395 F.3d 376, 384 (7th Cir. 2005); People v. Manning, 227 Ill. 2d
403, 417-18 (2008). The ABA Standards for Criminal Justice provide
that certain decisions relating to the conduct of the case are ultimately
for the defendant and others are ultimately for defense counsel. The
decisions that are for the defendant to make after full consultation
with counsel include: “(i) what pleas to enter; (ii) whether to accept
a plea agreement; (iii) whether to waive a jury trial; (iv) whether to
testify in his or her own behalf; and (v) whether to appeal.” ABA
Standards for Criminal Justice 4–5.2, at 199-200 (3d ed. 1993). The
commentary to this section advises:
“In making each of these decisions *** the accused should
have the full and careful advice of counsel. Although it is
highly improper for counsel to demand that the defendant
follow what counsel perceives as the desirable course or for
counsel to coerce a client’s decision through
misrepresentation or undue influence, counsel is free to
-17-
engage in fair persuasion and to urge the client to follow the
proffered professional advice. Ultimately, however, because
of the fundamental nature of decisions such as these, so
crucial to the accused’s fate, the accused must make the
decisions himself or herself.” (Emphasis added.) ABA
Standards for Criminal Justice 4–5.2, Commentary, at 201 (3d
ed. 1993).
We are hard-pressed to conceive of a decision more “crucial to the
defendant’s fate” than whether a single judge or a jury will determine
whether the defendant lives or dies.
Although not constitutionally required (see Spaziano v. Florida,
468 U.S. 447, 459-60, 82 L. Ed. 2d 340, 351-53, 104 S. Ct. 3154,
3161-62 (1984); People v. Erickson, 117 Ill. 2d 271, 289 (1987)), a
jury serves two significant functions in a death sentencing hearing.
First, the jury acts as a bulwark between the defendant and the State.
Spaziano, 468 U.S. at 462, 82 L. Ed. 2d at 354, 104 S. Ct. at 3163.
The right to trial by a jury composed of laypersons from the
community is a safeguard against a corrupt or overzealous
prosecution and against a compliant, biased, or eccentric judge.
Williams v. Florida, 399 U.S. 78, 100, 26 L. Ed. 2d 446, 460, 90 S.
Ct. 1893, 1905-06 (1970), cited in Spaziano, 468 U.S. at 462, 82 L.
Ed. 2d at 354, 104 S. Ct. at 3163. Second, in selecting between
imprisonment and death for a capital defendant, a jury maintains a
link between contemporary community values and the penal system.
Witherspoon v. Illinois, 391 U.S. 510, 519 n.15, 20 L. Ed. 2d 776,
783 n.15, 88 S. Ct. 1770, 1775 n.15 (1968), cited in Spaziano, 468
U.S. at 462, 82 L. Ed. 2d at 354, 104 S. Ct. at 3163.
For the foregoing reasons, we uphold the trial court’s denial of
defense counsel’s motion for bench sentencing notwithstanding
defendant’s exercise of his statutory right to a jury for the death
sentencing hearing. See, e.g., Ware v. State, 360 Md. 650, 703-04,
759 A.2d 764, 792 (2000) (“Whether a defendant is to be sentenced
by the court or the jury is a decision for the defendant”).
C. “De Facto Natural Life” Imprisonment
Defendant next contends that the trial court denied him a fair
death sentencing hearing by giving the jury misinformation through
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comments during voir dire and through written jury instructions. The
court told the jury that if the jury found that death was not an
appropriate sentence, the court would impose a sentence other than
death. Defendant characterizes this information as “incomplete” and
“misleading.” According to defendant, the trial court should have
instructed the jury that his convictions subjected him to a “mandatory
minimum” prison term of 107 years, which for defendant, who was
36 years old at the time of trial, was effectively “de facto natural life”
imprisonment.
The State initially responds that this contention is procedurally
forfeited. The record shows that defendant failed to object to the trial
court’s comments during voir dire, failed to offer an alternative jury
instruction, and failed to include this issue in his posttrial motion. To
preserve this issue for appeal, defendant was required to make a
contemporaneous objection at the sentencing hearing and to raise the
issue in a postsentencing motion. See Hall, 194 Ill. 2d at 352; Enoch,
122 Ill. 2d at 186. Likewise, a defendant generally forfeits review of
any purported jury instruction error if the defendant does not object
to the instruction, or tender an alternative instruction at trial, and does
not raise the instruction issue in a posttrial motion. People v. Herron,
215 Ill. 2d 167, 175 (2005); People v. Simpson, 172 Ill. 2d 117, 150
(1996). Accordingly, this contention is procedurally forfeited.
Seeking our review, defendant invokes the plain-error doctrine.
See 134 Ill. 2d R. 615(a); Piatkowski, 225 Ill. 2d at 565; Hall, 194 Ill.
2d at 352. Supreme Court Rule 451(c) (177 Ill. 2d R. 451(c)) likewise
provides a limited exception to the procedural forfeiture of purported
jury instruction error in criminal cases and is construed identically
with Rule 615(a). Piatkowski, 225 Ill. 2d at 564; People v. Durr, 215
Ill. 2d 283, 296-98 (2005). However, in addressing defendant’s plain-
error contention, it is appropriate to determine whether error occurred
at all. Harris, 225 Ill. 2d at 31; People v. Durr, 215 Ill. 2d 283, 298-
99 (2005); Sims, 192 Ill. 2d at 621.
The trial court told jurors during voir dire that if the jury did not
conclude that death was an appropriate sentence, the court “would go
on to sentencing other than the death penalty” or “[i]t will be a
sentence of years in the penitentiary, and the death sentence will be
off the table.” Correspondingly, the court informed the jury in written
jury instructions that if the jury found that defendant was ineligible
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for the death penalty, or subsequently concluded that death was not
an appropriate sentence, then the “court will impose a sentence other
than death.” See Illinois Pattern Jury Instructions, Criminal, Nos.
7B.01, 7C.05 (4th ed. 2000) (hereafter IPI Criminal 4th). According
to defendant, this information was incomplete and misleading
because his convictions subjected him to a “mandatory minimum”
prison term of 107 years, which for defendant, was “de facto natural
life” imprisonment.
Defendant invokes People v. Gacho, 122 Ill. 2d 221 (1988), in
which this court held that, in a multiple-murder case, the trial court
should instruct the jury that, if the jury does not sentence the
defendant to death, the defendant will be sentenced to natural life
imprisonment, and that no person serving a natural life term can be
paroled or released, except through executive clemency. Gacho, 122
Ill. 2d at 262. Indeed, a plurality in Simmons v. South Carolina, 512
U.S. 154, 129 L. Ed. 2d 133, 114 S. Ct. 2187 (1994), observed that in
assessing future dangerousness, the actual duration of the defendant’s
prison sentence is indisputably relevant to the sentencing
determination. Holding all other factors constant, it is reasonable for
a sentencing jury to view a defendant who is eligible for parole as a
greater threat to society than a defendant who is not. According to the
plurality, there may be no greater assurance of a defendant’s future
nondangerousness to the public than the fact that the defendant never
will be released on parole. Simmons, 512 U.S. at 163-64, 129 L. Ed.
2d at 142, 114 S. Ct. at 2194 (plurality op.). The plurality opinion
notes that, based on Gacho, Illinois is in accord with “a large majority
of States.” Simmons, 512 U.S. at 166-67 & n.7, 129 L. Ed. 2d at 144
& n.7, 114 S. Ct. at 2195 & n.7. Defendant argues that the sentencing
jury could have believed that he could be sentenced to probation or
to a minimal term of imprisonment, which would lead the jury to vote
for death to protect the public. According to defendant, the trial court
should have instructed the jury that defendant was subject to a prison
term that was so long that it was effectively “de facto natural life”
imprisonment. Had the jury been so informed, it might have found
that death was not appropriate.
This contention lacks merit. The United States Supreme Court
and this court have already rejected this “functional approach” and
have limited the protection recognized in Gacho and Simmons to
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cases where defendants are ineligible for parole as a matter of law.
Ramdass v. Angelone, 530 U.S. 156, 169, 181, 147 L. Ed. 2d 125,
138, 145, 120 S. Ct. 2113, 2121, 2128 (2000) (plurality op.)
(“Simmons applies only to instances where, as a legal matter, there is
no possibility of parole if the jury decides the appropriate sentence is
life in prison”); Ramdass, 530 U.S. at 181, 147 L. Ed. 2d at 145, 120
S. Ct. at 2128 (O’Connor, J., concurring) (“Simmons entitles the
defendant to inform the capital sentencing jury that he is parole
ineligible where the only alternative sentence to death is life without
the possibility of parole”); Turner v. Quarterman, 481 F.3d 292, 296-
97 (5th Cir. 2007); Campbell v. Polk, 447 F.3d 270, 286-89 (4th Cir.
2006); Simpson, 172 Ill. 2d at 150-51 (“A defendant is not entitled to
have the jury informed that if defendant is not sentenced to death, he
is eligible for a range of possible alternate sentences, including
natural life imprisonment”). To accept defendant’s contention, in a
single-murder case, the jury would have to be informed of all the
sentencing alternatives possible under the determinative sentencing
system in Illinois. Such information would divert the jury’s attention
from the defendant’s character and the circumstances of the offense
and would invite the jury to speculate on possibilities that may or may
not occur. People v. Williams, 161 Ill. 2d 1, 70-71 (1994); People v.
Simms, 143 Ill. 2d 154, 180-82 (1991). Accordingly, we find no error
in the trial court’s failure to inform the jury that defendant was
subject to a “de facto natural life” term of imprisonment. Having
found no error, there can be no plain error. See, e.g., Harris, 225 Ill.
2d at 31-32.
Defendant alternatively contends that he was denied the effective
assistance of counsel when his trial counsel failed to preserve this
issue for review. Claims of ineffective assistance of counsel at a death
sentencing hearing are reviewed pursuant to the two-prong Strickland
standard. Hall, 194 Ill. 2d at 354. To demonstrate ineffective
assistance, a defendant must show that: (1) the attorney’s
performance fell below an objective standard of reasonableness, and
(2) the attorney’s deficient performance prejudiced the defendant in
that, absent counsel’s errors, there is a reasonable probability that the
sentencer would have concluded that death was not an appropriate
sentence. Because the defendant must satisfy both prongs of this test,
-21-
the failure to establish either is fatal to the claim. Strickland, 466 U.S.
at 687, 697, 80 L. Ed. 2d at 693, 699, 104 S. Ct. at 2064, 2069.
In the present case, we have already found no error in the
information that the trial court gave to the jury. Therefore, trial
counsel’s failure to object to such information cannot be deemed
deficient in terms of Strickland. See, e.g., Hall, 194 Ill. 2d at 354;
People v. Alvine, 173 Ill. 2d 273, 297 (1996).
D. Jury Instruction on Unanimity
Defendant next claims that certain jury instructions at the
aggravation/mitigation phase of his death sentencing hearing were
conflicting and misleading. Defendant contends that the trial court
committed reversible error in giving the State’s modified version of
IPI Criminal 4th No. 7C.06. According to defendant, the last
paragraph thereof contained confusing double-negative language that
rendered the paragraph unnecessarily difficult to read. Defendant
argues that this paragraph misstated the law regarding when and how
the jury was to enter a “no-death” verdict and conflicted with the
other instructions and verdict forms. Although the verdict forms
contained correct statements of law, defendant argues that “this could
not cure the confusion created by the double negative instruction.” As
such, defendant asks this court to reverse his death sentence and
remand the cause to the circuit court for a new death sentencing
hearing.
The purpose of jury instructions is to provide the jury with the
correct legal principles applicable to the evidence, so that the jury
may reach a correct conclusion according to the law and the evidence.
People v. Parker, 223 Ill. 2d 494, 501 (2006); People v. Ramey, 151
Ill. 2d 498, 535 (1992); People v. Hester, 131 Ill. 2d 91, 98 (1989).
Jury instructions should not be misleading or confusing. Their
correctness depends not on whether defense counsel can imagine a
problematic meaning, but whether ordinary persons acting as jurors
would fail to understand them. Herron, 215 Ill. 2d at 187-88. If IPI
instructions contain an applicable instruction on a subject about
which the trial court determines the jury should be instructed, the trial
court must use that instruction, unless the court determines that the
instruction does not accurately state the law. 177 Ill. 2d R. 451(a).
-22-
That is, where a pattern instruction does not accurately state the law,
Rule 451(a) authorizes the trial court to modify it. 177 Ill. 2d R.
451(a); Harris, 225 Ill. 2d at 43. The decision whether to give a
nonpattern instruction rests within the sound discretion of the trial
court. People v. Caffey, 205 Ill. 2d 52, 127 (2001); People v. Buss,
187 Ill. 2d 144, 232-33 (1999); People v. Bush, 157 Ill. 2d 248, 253
(1993). Whether a court has abused its discretion will depend on
whether the nonpattern instruction is an accurate, simple, brief,
impartial, and nonargumentative statement of the law. 177 Ill. 2d R.
451(a); People v. Pollock, 202 Ill. 2d 189, 211 (2002).
Under our death penalty statute, the second phase of a death
sentencing hearing requires the trier of fact to weigh and balance any
mitigating factors against the aggravating factors. People v. Macri,
185 Ill. 2d 1, 77 (1998); People v. Munson, 171 Ill. 2d 158, 185
(1996); People v. Brownell, 79 Ill. 2d 508, 533-34 (1980). Prior to
November 2003, subsection (g) of the Illinois death penalty statute,
which prescribes the procedure for a jury at a death sentencing
hearing, provided in pertinent part: “If the jury determines
unanimously that there are no mitigating factors sufficient to preclude
the imposition of the death sentence, the court shall sentence the
defendant to death.” 720 ILCS 5/9–1(g) (West 2002).
IPI Criminal 4th Nos. 7C.05 and 7C.06 correspond to former
subsection (g). For a defendant who has been convicted of a single
murder, No. 7C.05 provides:
“Under the law, the defendant shall be sentenced to death
if you unanimously find that there is no mitigating factor
sufficient to preclude imposition of a death sentence.
If you are unable to find unanimously that there is no
mitigating factor sufficient to preclude imposition of a death
sentence, the court will impose a sentence other than death.”
IPI Criminal 4th No. 7C.05.
Where a single murder is involved, No. 7C.06 provides in relevant
part:
“In deciding whether the defendant should be sentenced
to death, you should consider all the aggravating factors
supported by the evidence and all the mitigating factors
supported by the evidence.
-23-
Aggravating factors are reasons why the defendant should
be sentenced to death. Mitigating factors are reasons why the
defendant should not be sentenced to death.
***
If you unanimously find from your consideration of all the
evidence that there is no mitigating factor sufficient to
preclude imposition of a death sentence, then you should sign
the verdict requiring the court to sentence the defendant to
death.
If you do not unanimously find from your consideration
of all the evidence that there is no mitigating factor sufficient
to preclude imposition of a death sentence, then you should
sign the verdict requiring the court to impose a sentence other
than death.” IPI Criminal 4th No. 7C.06.
This court has upheld these instructions. See, e.g., People v. Simms,
192 Ill. 2d 348, 411-15 (2000); People v. Emerson, 189 Ill. 2d 436,
503-05 (2000).
Subsequent to the adoption of IPI Criminal 4th Nos. 7C.05 and
7C.06, the General Assembly amended the death penalty statute. See
Pub. Act 93–605, §10, eff. November 19, 2003 (amending 720 ILCS
5/9–1 (West 2002)). Subsection (g), which formerly provided that a
death sentence would be imposed if the jury found “no mitigating
factor sufficient to preclude imposition,” now includes the following
new language:
“If the jury determines unanimously, after weighing the
factors in aggravation and mitigation, that death is the
appropriate sentence, the court shall sentence the defendant
to death. ***
If after weighing the factors in aggravation and
mitigation, one or more jurors determines that death is not
the appropriate sentence, the court shall sentence the
defendant to a term of imprisonment under Chapter V of the
Unified Code of Corrections.” (Emphases added.) 720 ILCS
5/9–1(g) (West 2006).
However, IPI Criminal 4th Nos. 7C.05 and 7C.06 have not yet been
revised to track the amended statutory language. Thus, at the time of
defendant’s trial, the court was confronted with the amended death
-24-
penalty statute, which required the jury to apply a specific guideline
in making its determination (unanimously determining that death is
the appropriate sentence), and IPI Criminal 4th Nos. 7C.05 and
7C.06, which provided the jury with a different guideline in reaching
its verdict (unanimously finding that there is no sufficient mitigating
factor sufficient to preclude the death sentence). As such, it was
necessary for the trial court to use a modified IPI instruction in this
case. See Harris, 225 Ill. 2d at 43.
At the jury instruction conference, the State tendered its modified
version of IPI Criminal 4th Nos. 7C.05 and 7C.06. Defendant
objected and tendered his modified version. The trial court accepted
the State’s version and refused that of defendant. In refusing
defendant’s modified No. 7C.06, the trial court found that the State’s
version was “more in conformance with the I.P.I. book.” The trial
court instructed the jury with the following modified version of IPI
Criminal 4th No. 7C.05:
“Under the law, the defendant shall be sentenced to death
if you determine unanimously, after weighing the factors in
aggravation and mitigation, that death is the appropriate
sentence.
If, after weighing the factors in aggravation and
mitigation, you are unable to determine unanimously that
death is the appropriate sentence, the court will impose a
sentence other than death.”
The trial court also instructed the jury with the following modified
version of IPI Criminal 4th No. 7C.06, the last two paragraphs of
which instructed the jury as follows:
“If you unanimously find from your consideration of all
the evidence and after weighing the factors in aggravation and
mitigation that death is the appropriate sentence, then you
should sign the verdict requiring the court to sentence the
defendant to death.
If you do not unanimously find from your consideration of
all the evidence and after weighing the factors in aggravation
and mitigation that death is not the appropriate sentence,
-25-
then you should sign the verdict requiring the court to impose
a sentence other than death.” (Emphasis added.)2
The trial court also gave to the jury modified verdict forms, one,
submitted by the State, reading: “We the jury unanimously find that
death is the appropriate sentence” (see IPI Criminal 4th No. 7C.08),
and the other, submitted by defendant, reading: “After weighing the
factors in aggravation and mitigation, one juror or more has
determined that death is not the appropriate sentence.” See IPI
Criminal 4th No. 7C.09 (hereafter “no-death verdict”).
In English grammar, a double negative refers to a “now
substandard syntactic construction containing two negatives and
having a negative meaning.” Webster’s Third New International
Dictionary 678 (1993). Defendant argues that the challenged
paragraph told the jurors that they must unanimously find that death
is not the appropriate sentence before they could sign the no-death
verdict. This would obviously be a misstatement of the law. As
reflected in the no-death verdict form, the jury need not unanimously
find that death is inappropriate before it signs the no-death verdict. In
other words, if even one juror found that death was inappropriate, the
jury was required to sign the no-death verdict.
Defendant’s argument rests on the premise that the apparent
double negative reverses the meaning of the challenged paragraph. “It
is a truism of traditional grammar that double negatives combine to
form an affirmative.” The American Heritage Guide to Contemporary
Usage and Style 148 (2005); see The World Almanac Guide to Good
Word Usage 78 (1989) (“The objection to such constructions is that
the negatives cancel each other out and reverse the meaning of the
sentence”). However, as a matter of grammar, the challenged
paragraph in modified No. 7C.06 does not contain “closely placed
self-cancelling negatives.” R. Burchfield, The New Fowler’s Modern
English Usage 227 (3d ed. 1996). A double negative “consists of
2
Defendant’s tendered version of this paragraph, which the trial court
refused, read: “If after weighing the factors in aggravation and mitigation,
one or more of you determine that death is not the appropriate sentence, then
you should sign the verdict requiring the court to impose a sentence other
than death ***.”
-26-
more than one negative *** for a single negation.” (Emphasis added.)
M. Steinmann & M. Keller, Good Grammar Made Easy 112 (1995).
A double negative “is a statement that contains two negative
modifiers, the second of which repeats the message of the first.”
(Emphasis added.) L. Troyka, Handbook for Writers 295 (2d ed.
1990). The two “nots” in the challenged paragraph were not used for
a single negation. The first “not” modifies the words “unanimously
find.” The second “not” does not repeat the message of the first, but
rather modifies the words “the appropriate sentence.” This is not the
forbidden, self-cancelling usage as exemplified in phrases such as “do
not have no money” or “do not hear nothing.”
Additionally, the challenged paragraph in modified No. 7C.06
correctly states the law. It begins: “If you do not unanimously find.”
This plainly refers to one or more, but less than all. Thus, if one juror
or more, but less than all jurors, find that death is not the appropriate
sentence, then the jury should sign the no-death verdict form. This is
almost exactly what the jury was instructed in the no-death verdict
form.
Further, we must not consider modified No. 7C.06 in an artificial
isolation. Rather, we examine the instruction in light of the overall
charge, and construe the instructions as a whole. See Parker, 223 Ill.
2d at 501; Ramey, 151 Ill. 2d at 537; Hester, 131 Ill. 2d at 98. It is
sufficient if the instructions given to the jury, considered as a whole,
fully and fairly announce the applicable law. Parker, 223 Ill. 2d at
501; Pollock, 202 Ill. 2d at 210. This court has recognized that to
“require absolute and technical accuracy in instructions would, as a
general rule, defeat the ends of justice and bring the administration of
the criminal law into disrepute and contempt. It is sufficient when
instructions, considered as a whole, substantially and fairly present
the law of the case to the jury.” People v. Banks, 7 Ill. 2d 119, 129
(1955) (collecting cases).
Construing the entire series of instructions as a whole, we
conclude that the jury was more than adequately instructed on how to
enter a no-death verdict. While the phrasing of the challenged
paragraph in modified No. 7C.06 was less than ideal, we have
concluded that the paragraph was legally correct. Further, the
challenged paragraph accords with the no-death verdict form,
modified by defendant, and which defendant concedes includes a
-27-
correct unanimity standard: “After weighing the factors in
aggravation and mitigation, one juror or more has determined that
death is not the appropriate sentence.” Thus, after weighing the
factors in aggravation and mitigation, had the jury chosen to sign a
no-death verdict, it would have signed a piece of paper recognizing
that one or more of the jurors had determined that death was not the
appropriate sentence. IPI Criminal 4th instructs: “Verdict forms are
included within the term ‘instructions.’ ” IPI Criminal 4th, User’s
Guide, at ix. When examining a challenged jury instruction in light
of the overall charge and construing the instructions as a whole, this
court’s review includes verdict forms. See, e.g., Harris, 225 Ill. 2d at
43 (concluding that “the instructions and verdict form” conveyed the
correct legal principle); People v. Shaw, 186 Ill. 2d 301, 329 (1998)
(reading instructions collectively and in their entirety, concluding that
jury was correctly instructed through “the several instructions and
verdict forms”); People v. Fields, 135 Ill. 2d 18, 71 (1990)
(concluding that “the verdict forms and the other instructions clearly
informed” jury of correct legal principles). Indeed, defendant
concedes that the instructions contained several correct statements of
the unanimity requirement. We cannot say that the trial court abused
its discretion by instructing the jury with the challenged instruction.
While defendant’s argument fails, our determination of this issue
should not be read as an endorsement of the challenged paragraph in
modified No. 7C.06 tendered by the State. Rather, defendant’s
version of No. 7C.06 should be used until this court’s Committee on
Pattern Jury Instructions in Criminal Cases formally revises this series
of instructions to track the language of amended section 9–1(g) of the
Criminal Code (720 ILCS 5/9–1(g) (West 2006)).
E. Prosecution Comment on Defendant’s Lack of Remorse
Defendant next contends that the prosecutor, during the death
sentencing hearing, made several comments on defendant’s lack of
remorse that violated defendant’s constitutional right to remain silent.
The State responds that the prosecutor’s comments were proper
references to defendant’s lack of remorse and did not infringe upon
his right to remain silent.
-28-
A criminal defendant has a fifth amendment right not to testify as
a witness in his or her own behalf, and the prosecutor is forbidden to
make direct or indirect comment on the exercise of that right. Griffin
v. California, 380 U.S. 609, 615, 14 L. Ed. 2d 106, 110, 85 S. Ct.
1229, 1233 (1965); People v. Arman, 131 Ill. 2d 115, 125-26 (1989)
(collecting cases); 725 ILCS 5/115–16 (West 2006) (prohibiting
comment on criminal defendant’s failure to testify). The test for
determining if improper comment has been made on a defendant’s
failure to take the witness stand and testify is whether the reference
was intended or calculated to direct the jury’s attention to the
defendant’s neglect to avail himself of his legal right to testify. In
making this determination, a court should examine the challenged
comments in the context of the entire proceeding. Arman, 131 Ill. 2d
at 126 (and cases cited therein).
We earlier recounted that, at the second stage of the death
sentencing hearing, defendant presented as mitigation evidence the
testimony of his half-sister, Anita Henry. The prosecutor ended cross-
examining Henry as follows:
“[Prosecutor]: Miss Henry, has the defendant ever told
you that he is sorry for what happened on September 23, of
2000?
[Defense Counsel]: Objection, Judge.
THE COURT: I will sustain the objection.
[Prosecutor]: Has he ever shown you any remorse?
[Defense Counsel]: Objection.
THE COURT: Objection sustained.
[Prosecutor]: Nothing else, Judge.
[Defense Counsel]: I have nothing further. Thank you,
Miss Henry.
THE COURT: Thank you. (Witness excused).”
During closing argument, the prosecutor remarked as follows:
“Look at his time when he’s in custody. What does being
in custody mean to Joseph Bannister because we got to look
at it because that’s one of the things you are going to consider.
The death sentence is appropriate in light of all the
aggravation you have before you, but if he doesn’t get a death
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sentence, he’s going to be in custody, so you might as well
look at what life is going to be for Joseph Bannister[,] In
custody, it’s not too bad. He gets to talk to people, he gets
mail, he gets to watch TV, and he gets to use gang
paraphernalia, he gets to be respected by guards. He gets to
beat up other prisoners and/or guards. He gets to hang with
his fellow GD’s, that’s Joseph Bannister’s life in prison, and
he’s not there contemplating the horror of what he did. He’s
not sitting there, ‘Say, you know what, I’ve done some wrong
in my life,’ have you heard that from Joseph Bannister?
[Defense Counsel]: Objection.
THE COURT: Sustained.
[Prosecutor]: ‘I’m sorry,’ have you heard any remorse
from Joseph Bannister?
[Defense Counsel]: Objection.
THE COURT: I will sustain the objection. Ask the jury to
disregard.”
The prosecutor further remarked:
“When we were questioning you during jury selection, we
told you that you would hear some bad things about Joseph
Bannister and some good things about Joseph Bannister. I
want–and you would hear some statutory factors. *** Each of
us gets to present any non-statutory factors we wish, and I’m
going to tell you and you’re going to even think of some more
because there’s a lot out there, you’ve listened to this
evidence for a bit, some of the non-statutory aggravating
factors that you can hold against Joseph Bannister when you
make your determination that he is more than deserving of the
death sentence. *** Henrietta Banks was defenseless. She’s
defenseless, and he shoots her in the head at close range.
Sharon was defenseless for that matter, and he shot her, put
that down as another aggravating factor. ***
***
Ladies and gentlemen, [in] this country we only survive
by obeying the laws. Put it down in bold letters in aggravation
that he killed people that had been in court willing to testify
against him earlier, that there had been an order of protection,
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a whole set of laws had been developed, to protect people
when people are in their violent cycles or violent period, and
he disobeyed it. *** Put that down in aggravation. *** [P]ut
down that he killed a woman that he knew had two small
children. *** Put down the other children were present.
Latoria, Cedrick [sic], you heard them. He couldn’t have
missed them being there, and they’re screaming, and he killed
Henrietta in front of small children, and them paying a price
for that forever, and put that down in aggravation.
And while you’re at it, put down his flight, that from
September 23, 2000 to February 11 of 2001, he’s at large. ***
Can you imagine the horror and the fear that Sharon Banks
felt every time she looked over her shoulder knowing that
Joseph Bannister was out there? *** Put that down in
aggravation; caught with his false I.D., there’s another one.
And while you are at it, put down all the abuse he gave to
Sharon all those years, off and on through those years, put that
down. Disobeying the Court orders, the judge’s order, bond,
counseling, domestic violence, having a handgun *** have
that down. *** Joseph Bannister doesn’t care about us, he
doesn’t care about the court system, put that in aggravation,
and no remorse, put that down.
[Defense Counsel]: Objection.
THE COURT: I’ll sustain the objection.”
Defendant now argues before this court: “By arguing to the jury that
it was a factor in aggravation that [defendant] had not taken the stand
during his trial and expressed remorse for his actions, the prosecutor
penalized [defendant] for exercising his Fifth Amendment right to
remain silent.” (Emphasis added.)
This contention lacks merit. The prosecutor did not say anything
about defendant’s failure to testify, and the above-quoted remarks
plainly were not intended or calculated to draw attention thereto.
Rather, the prosecutor’s remarks were fair comments on defendant’s
lack of remorse. In determining the appropriate sentence, the
sentencing body is to consider all matters that reflect upon the
defendant’s personality, propensities, purposes, tendencies, and every
aspect of the defendant’s life relevant to the sentencing decision.
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People v. Barrow, 133 Ill. 2d 226, 281 (1989). “ ‘This court has
consistently held that a convicted defendant’s remorse or the absence
of it is a proper subject for consideration at sentencing.’ ” People v.
Burgess, 176 Ill. 2d 289, 317 (1997), quoting Barrow, 133 Ill. 2d at
281. The challenged remarks did not derive from defendant’s failure
to incriminate himself, but rather from defendant’s apparent lack of
remorse for the shooting, which resulted in Henrietta’s death,
Sharon’s severe injury, and the endangerment and traumatization of
their mother and children. See, e.g., Burgess, 176 Ill. 2d at 317;
Barrow, 133 Ill. 2d at 281.
Further, any improper inferences from the prosecutor’s comments
were cured by the trial court sustaining defense counsel’s objections
and the court’s instructions to the jury to disregard comments to
which objections were sustained. People v. Neal, 111 Ill. 2d 180, 196
(1985). Defendant argues that “any cure was nullified where the
prosecutor deliberately ignored the trial court’s ruling and continued
with the improper argument.” Defendant cites People v. Weinstein, 35
Ill. 2d 467 (1966), in which the prosecution represented to the jury
that it was the defendant’s burden to present evidence creating a
reasonable doubt of guilt. After five or six such statements, defense
counsel finally objected and the trial court sustained the objection.
“Undaunted by the court’s ruling, the prosecutor then immediately
continued ***. Over all, it appears that some seventeen objections
were made, and sustained, as the prosecutors argued to the jury.”
Weinstein, 35 Ill. 2d at 469. This court observed: “Such persistence
eliminates the salutary effect of the court’s ruling in sustaining
objections to the argument.” Weinstein, 35 Ill. 2d at 471.
However, unlike the obviously improper remarks in Weinstein,
the challenged comments in this case pertain to defendant’s lack of
remorse, which is a proper subject for consideration at sentencing.
See Barrow, 133 Ill. 2d at 281. Further, unlike the persistent improper
remarks in Weinstein, the challenged remarks in this case were few
and fleeting in the context of the entire death sentencing hearing. The
jury was instructed that closing arguments are not evidence and that
the jury should disregard arguments not based on the evidence. The
jury was also specifically instructed not to consider defendant’s
failure to testify in arriving at its verdict. Thus, any alleged error
resulting from the challenged remarks was cured. See, e.g., People v.
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Moore, 171 Ill. 2d 74, 105-06 (1996); People v. Baptist, 76 Ill. 2d 19,
30 (1979).
F. Apprendi and Ring
Defendant lastly contends that the Illinois death penalty statute,
as amended, violates the principles announced in Apprendi v. New
Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and
Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428
(2002), because the statute does not require the State, at the second
stage of the death sentencing hearing, to prove beyond a reasonable
doubt that aggravating factors outweigh mitigating factors. This court
has repeatedly rejected this argument. See, e.g., Harris, 225 Ill. 2d at
50; People v. Thompson, 222 Ill. 2d 1, 52-54 (2006); People v. Mertz,
218 Ill. 2d 1, 93-94 (2005). Defendant has not persuaded us to
overturn these decisions.
III. CONCLUSION
For the foregoing reasons, the judgment of the circuit court of
Cook County is affirmed. The clerk of this court is directed to enter
an order setting Tuesday, January 13, 2009, as the date on which the
sentence of death entered in the circuit court is to be imposed. The
defendant shall be executed in the manner provided by law. 725 ILCS
5/119–5 (West 2006). The clerk of this court shall send a certified
copy of the mandate in this case to the Director of Corrections, the
warden of Tamms Correctional Center, and the warden of the
institution where defendant is now confined.
Affirmed.
JUSTICE KILBRIDE, dissenting:
While I agree with the majority’s analysis of nearly all issues in
this case, I am compelled to dissent from its approval of the State’s
modified IPI Criminal 4th No. 7C.06. I am most disturbed by the
majority’s decision to obfuscate defendant’s true argument and focus
instead on an extended dissection of the argument’s grammatical
particulars. This unusual approach ignores, rather than seriously
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addresses, the underlying merits of the core assertion stated in
defendant’s brief, asserting that the instruction “was confusing and
misstated the law concerning when and how the jury was to sign a ‘no
death’ verdict.”
Moreover, the majority’s extensive reliance on highly technical
grammar treatises further illustrates the error in applying this
approach when reviewing jury instructions. As the majority notes,
“[t]he purpose of jury instructions is to provide the jury with the
correct legal principles applicable to the evidence, so that the jury
may reach a correct conclusion according to the law and the evidence.
People v. Parker, 223 Ill. 2d 494, 501 (2006); People v. Ramey, 151
Ill. 2d 498, 535 (1992); People v. Hester, 131 Ill. 2d 91, 98 (1989).
Jury instructions should not be misleading or confusing. Their
correctness depends not on whether defense counsel can imagine a
problematic meaning, but whether ordinary persons acting as jurors
would fail to understand them. [People v.] Herron, 215 Ill. 2d at 187-
88.” (Emphasis added.) Slip op. at 22. Thus, the critical consideration
is the layperson’s understanding of the law, as stated in the jury
instructions. Herron, 215 Ill. 2d at 187-88. While it is possible that
the jurors were all thoroughly trained in the identification and
interpretation of grammatical aberrations such as double negatives,
that assumption remains a highly unreliable basis for proper appellate
review. The jurors were also unaided by the six grammar references
guiding the majority’s analysis, leaving them ill-prepared to parse the
linguistic intricacies of the jury instruction ostensibly provided to lead
them to the no-death verdict form. Indeed, the highly abstracted and
artificial nature of the majority’s analysis of this issue should itself be
sufficient to give this court pause.
While the majority’s careful grammatical analysis has indeed
persuaded me that the precise source of the problem with the
instruction is not the presence of “the ‘now substandard syntactic
construction’ ” commonly known as a double negative (slip op. at 26,
quoting Webster’s Third New International Dictionary 678 (1993)),
that conclusion does not even purport to address the real problem
asserted by defendant. A careful analysis of the plain meaning of the
instruction reveals that it is inherently confusing and legally
inaccurate.
The problematic final paragraph of the instruction states:
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“If you do not unanimously find from your consideration
of all the evidence and after weighing the factors in
aggravation and mitigation that death is not the appropriate
sentence, then you should sign the verdict requiring the court
to impose a sentence other than death.” (Emphasis added.)
Defendant argues that this language is confusing and inaccurate
because, when read literally, it tells the jury it must unanimously find
that a death sentence is not appropriate before it may sign the no-
death verdict.
The majority rejects defendant’s interpretation and instead
declares the challenged paragraph to be a correct statement of the law
based only on a cursory examination of its first six words: “If you do
not unanimously find.” See slip op. at 27. The majority concludes that
these words “plainly refer[ ] to one or more, but less than all,” thus
instructing the jury to sign the no-death verdict form “if one juror or
more, but less than all jurors, find that death is not the appropriate
sentence.” Slip op. at 27. Unfortunately for defendant, this
abbreviated analysis fails to consider the remaining language in the
clause.
The problem with the majority’s interpretation is apparent when
the second “not” is eliminated from the instruction given. The
instruction would then state:
“If you do not unanimously find from your consideration
of all the evidence and after weighing the factors in
aggravation and mitigation that death is *** the appropriate
sentence, then you should sign the verdict requiring the court
to impose a sentence other than death.” (Emphasis added.)
Stripped to its barest bones, this instruction would say:
“If you do not unanimously find *** that death is *** the
appropriate sentence, then you should sign the verdict
requiring *** a sentence other than death.” (Emphasis
added.)
That is undeniably a complete and accurate statement of when the
jury is to sign the no-death verdict form. It defies both logic and
common sense for the majority to conclude, based solely on the initial
few words of the instruction, that it could convey the same meaning
both with and without the second “not,” located, not surprisingly, in
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the portion of the instruction remaining wholly unexamined by the
majority.
In addition, a comparison of instruction given and the relevant
language in the applicable statute further proves the point. The
applicable statute states:
“If after weighing the factors in aggravation and
mitigation, one or more jurors determines that death is not
the appropriate sentence, the court shall sentence the
defendant to a term of imprisonment under Chapter V of the
Unified Code of Corrections.” (Emphasis added.) 720 ILCS
5/9–1(g) (West 2006).
When reduced to its simplest form, the statute reads:
“If *** one or more jurors determines that death is not
the appropriate sentence, the court shall sentence the
defendant to a term of imprisonment under Chapter V of the
Unified Code of Corrections.” (Emphasis added.) 720 ILCS
5/9–1(g) (West 2006).
The statutory language is simple and clear. It provides an ideal basis
for drafting a proper jury instruction. Standing in stark contrast, the
instruction approved by the majority states, “[i]f you do not
unanimously find *** that death is not *** appropriate.” That clause
bears a markedly different meaning from that of the plain statutory
language. Thus, the instruction given to the jury does not correctly
state the applicable law, contrary to the majority’s conclusion. Slip
op. at 27.
Indeed, the majority’s recommendation of the instruction tendered
by defendant but rejected by the trial court acknowledges that it best
echoes the statutory language. Slip op. at 28. Defendant’s instruction
states:
“If after weighing the factors in aggravation and mitigation,
one or more of you determine that death is not the appropriate
sentence, then you should sign the verdict requiring the court
to impose a sentence other than death ***.” See slip op. at 25
n.2.
A direct comparison shows that defendant’s instruction clearly and
accurately reflects the statute’s simple terminology and structure.
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Nonetheless, the majority justifies affirming the trial court’s
rejection of defendant’s accurate instruction in favor of the State’s
flawed No. 7C.06 by looking at the jury instructions as a whole. The
majority specifically relies on the presence of the correct unanimity
standard in the no-death verdict form, noting that “had the jury
chosen to sign a no-death verdict, it would have signed a piece of
paper recognizing that one or more of the jurors had determined that
death was not the appropriate sentence.” (Emphasis added.) Slip op.
at 27-28. The hypothetical nature of the premise underlying this
rationale is the key to its undoing. The jury’s selection of a verdict
form is obviously dependent on its understanding of the verdict-
choice instructions, the very instructions defendant maintains are
incorrect and confusing. Without the benefit of clear and accurate
instructions on the unanimity standard, the jury cannot reliably be
expected to review the no-death verdict form that mentions the
correct standard. Thus, the assertion that providing the correct
standard on the no-death form somehow overcomes the confusing and
legally inaccurate standard in the challenged instruction merely
creates the illusion of a causal connection when none properly exists.
We cannot assume that the jury ever examined the no-death verdict
form when the instruction leading to its selection was fatally flawed.
Finally, having approved the trial court’s decision to give the
State’s modified No. 7C.06 to the jury despite its acknowledgment
that the instruction was “less than ideal” (slip op. at 27), the majority
limits the damage done by its ruling only to the instant defendant. The
majority directs that
“our determination of this issue should not be read as an
endorsement of the challenged paragraph in modified No.
7C.06 tendered by the State. Rather, defendant’s version of
No. 7C.06 should be used until this court’s Committee on
Pattern Jury Instructions in Criminal Cases formally revises
this series of instructions to track the language of amended
section 9–1(g) of the Criminal Code [citation].” (Emphasis
added.) Slip op. at 28.
Thus, ironically, defendant’s appeal has ensured that other,
similarly situated, capital defendants will receive the “benefit” of
sentencing juries that have received clear and accurate instructions on
a key component of the deliberative process, namely, the selection of
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the proper verdict form. Defendant himself, however, fails to obtain
the benefit of having a properly instructed jury decide whether he
lives or dies.
Although defendant may well have erred in specifying the exact
grammatical source of the confusion and critical legal errors inherent
in the State’s modified No. 7C.06, he clearly argued that the
instruction was confusing and legally inaccurate. My examination of
that instruction reveals that he is correct; his sentence should be
vacated and the cause remanded for a new sentencing hearing before
a properly instructed jury. At a minimum, defendant’s core argument
deserves to be evaluated on its merits, with a complete examination
of the relevant language. Because the majority’s analysis has failed to
provide this minimal review, I must respectfully dissent.
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