People v. Banks ( 2010 )

Docket No. 103933.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DION
BANKS, Appellant.
Opinion filed February 19, 2010.–Modified upon denial of
rehearing May 24, 2010.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,
Garman, and Burke concurred in the judgment and opinion.
OPINION
Defendant, Dion Banks, was indicted in Cook County in numerous
counts of first degree murder in the shooting death of Rose Newburn,
attempt (first degree murder), armed robbery, aggravated vehicular
hijacking, aggravated kidnapping, aggravated discharge of a firearm,
possession of a stolen motor vehicle, and aggravated unlawful
restraint. The State elected to try defendant on only five counts of
murder and one count of aggravated discharge of a firearm. The jury
returned a general verdict of guilty of first degree murder and a
verdict of guilty of aggravated discharge of a firearm. Thereafter, the
jury found defendant eligible for the death penalty on two statutory
grounds and, after considering evidence in aggravation and mitigation,
found no mitigating factor sufficient to preclude the imposition of a
death sentence. The circuit court sentenced defendant to death and
therefore his appeal was brought directly to this court. Ill. Const.
1970, art. VI, §4(b); 134 Ill. 2d R. 603.
On appeal, defendant contends that (1) the State presented
inadmissible hearsay that linked defendant to the carjacking of Rose
Newburn’s Dodge Intrepid; (2) the State mocked defendant during
closing argument, compared the strength of its case against defendant
to other cases, and claimed that the jury had to believe all of the
State’s witnesses were lying to acquit defendant; (3) he was tried by
a juror with a bias against gang members; (4) the trial court erred
when it excused a potential juror who merely would have had
difficulty in imposing a death sentence; (5) the death sentence must be
vacated because the jury was not instructed on the elements of the
felonies in the felony-murder aggravating factor; (6) the State
presented irrelevant evidence of privileges received by prison inmates;
(7) the State violated defendant’s right to confront witnesses when it
had a records keeper testify about his prison disciplinary record and
had an assistant State’s Attorney read to the jury a statement and the
grand jury testimony of a witness to the killing that resulted in
defendant’s prior murder conviction; (8) the trial court erred when it
instructed the jury that the defendant should be sentenced to death if
no mitigating factor was sufficient to preclude a death sentence,
because that prevented the jury from performing its constitutionally
required task of measuring the totality of the mitigation against the
aggravation; (9) the State improperly argued that defendant should be
sentenced to death because he would kill someone if he received life
in prison, that the jury should weigh the aggravation against the
mitigation, and that defendant displayed no remorse for the murder;
(10) the trial court failed to adequately inquire into defendant’s
statements that his trial lawyers were ineffective; and (11) the Illinois
death penalty statute violates due process under Apprendi v. New
Jersey, because the State is not required to prove beyond a reasonable
doubt that aggravating factors outweigh the mitigating factors.
BACKGROUND
About 3 p.m. on March 24, 2001, Rose Newburn drove her sons,
Tyrone, age 5, and Quincy, age 4, to Ford City Mall. Tyrone, who
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was 11 years old at the time of trial, testified that he and his younger
brother Quincy were sitting in their mother’s car, while she was
looking through some papers. He saw a man, later identified as
defendant, approach the driver’s side window with a gun in his hand
and heard defendant tell his mother to “get out of the fucking car.”
When she did not get out, he saw defendant break the driver’s side
window, unlock and open the door, drag his mother out onto the
ground, and shoot her. Tyrone said that after shooting his mother,
defendant got into the car and drove off while he and Quincy were still
in the car. After a short time, defendant stopped the car and told the
children to jump out the window, but then he opened the driver’s side
door and let the boys out. After getting out of the car, Tyrone said, he
saw defendant talking to someone in a black car, and he watched both
cars drive off together. Tyrone and his brother hid behind a stop sign
until the defendant drove off, and then they ran to the front of the mall
where their mother was.
John Southward testified that he was walking in the mall
parking lot that afternoon when he heard an argument and saw a man,
whom he later identified in a police lineup and in court as the
defendant, standing next to the driver’s side of a green Dodge Intrepid
about 40 or 50 feet ahead of him. He had a clear look at the man’s
face.
Southward heard defendant say, “bitch, hurry up and get the fuck
out of the car,” and heard the victim respond, “please just let my kids
out.” He then heard a shot and ran toward the car. As Southward was
running, he observed defendant break the glass of the driver side
window with the butt of the gun, reach into the car, unlock the door,
open it, and throw the victim to the ground. He saw the defendant
drive away in the victim’s car and observed another car that had been
parked next to the Intrepid drive off after the defendant, but he did not
see anyone inside the other car. During his testimony, Southward
admitted to multiple previous convictions in the State of North
Carolina, as well as having two outstanding warrants from North
Carolina.
Joseph Harrison testified that he and his fiancee, Retrenia Smith,
were driving home from a shopping trip and while he was stopped at
a red light at 79th Street and Talman, he noticed two cars, a green
Intrepid and a dark-colored Corolla, “jumping in and out of lanes.”
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Harrison explained that defendant, in the Intrepid, pulled up next to
him on the driver’s side, but the Corolla hit Harrison’s car in the rear.
Harrison got out to inspect his car and then went to talk to the driver
of the Corolla, a woman later identified as codefendant Shakina
Feazell. She refused to roll down her window or respond to him. The
Intrepid drove off but then backed up. Defendant exchanged
profanities with Harrison and defendant told codefendant to “forget
about [Harrison] and take off.” She put the Corolla in reverse and
then drove off, with defendant following. Harrison said he jumped
back into his car and started following them east on 79th Street, as his
fiancee called the police.
Harrison stated that he stopped for a red light in the far right lane
at 79th and Western, the Corolla was next to him in the middle lane,
and the Intrepid next to the Corolla in the left-turn lane. He and
defendant again exchanged profanities and defendant told the woman
in the Corolla to take off when the light changed. As the light changed
the Corolla driven by codefendant left first, followed by Harrison, who
was followed by defendant. Defendant then pulled up to the left of
Harrison’s car and yelled at Harrison to “back the fuck off.”
Harrison’s fiancee testified that she saw a gun in defendant’s hand.
Harrison said he heard two shots, but he did not see defendant fire
them. Harrison then made a U-turn, and he and his fiancee called the
police while waiting at a gas station. Harrison later positively
identified defendant in a police lineup. His fiancee identified someone
other than the defendant in the lineup.
Steve Kelly testified that about 5:35 p.m. on March 24, 2001, he
was standing outside the field house in Garfield Park when he heard
a big crash and a bang. He went to investigate and saw a woman, later
identified as codefendant, lying on the ground next to a Corolla car
that had run into a parked van with such force that the van was now
on its side. Kelly said that as he attended to her, defendant pulled up
in a green Intrepid. Defendant asked the woman if she was all right,
helped her up, and told Kelly he would take her to the hospital. Kelly
said he pointed them in the direction of the nearest hospital. Kelly said
he saw defendant and the woman drive north in the green Intrepid on
Central Park Avenue.
By this time, the police had begun their investigation of the
carjacking and shooting that occurred at Ford City Mall, as well as the
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events reported by Harrison and Smith. Detective Jose Cardo, a
uniformed officer on patrol, testified that he received a series of flash
messages over the police radio. The first message was about a hit and
run accident, which included the description of a green Dodge
Intrepid, license plate MSV 43, fleeing the scene of the accident. He
said immediately following that message was another, informing the
officers that the Intrepid had been taken in a carjacking and shooting
at Ford City Mall.
Cardo said he was on Ohio Street traveling west when he received
the messages, and he immediately observed the green Intrepid
proceeding east on Ohio toward him. Cardo closed in on the Intrepid
and saw a male driving, with a female in the passenger seat. He
activated his emergency equipment and the Intrepid sped off. After a
chase lasting a few blocks, the Intrepid failed to make a left turn onto
Lake Street and slammed into a Chicago Transit Authority (CTA)
elevated-train pillar. Defendant jumped out of the vehicle and ran.
Cardo was able to apprehend defendant when defendant fell after a
short foot chase. After taking defendant and codefendant into custody,
Cardo stated, he observed a revolver on the floor of the driver’s side
of the Intrepid.
Officer Jackie Frausto testified that she arrived at scene of the
crash at the CTA elevated-train pillar and arrested a woman sitting in
the passenger seat of a green Dodge Intrepid. She saw a black
revolver with a brown handle on the floor of the driver’s side of the
Intrepid. She identified a photograph of codefendant as the woman
she arrested.
Assistant State’s Attorney Jennifer Gonzalez testified that, in the
early afternoon hours of March 26, 2001, detectives contacted the
Cook County State’s Attorney’s office, felony review unit, and she
responded. Gonzales testified she knew defendant had been in custody
since March 24, 2001. After introducing herself and explaining who
she was, she informed defendant of his Miranda rights. Defendant told
her he understood his Miranda warnings and responded in the
affirmative to her question: “Do you want to tell me about what
happened at Ford City Mall?” In this interview, defendant said he met
codefendant, Shakina Feazell, in a drug and alcohol rehabilitation
program; that she got most of their money by shoplifting; that he and
Feazell had gone to Ford City planning to steal a car; that he brought
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his revolver with him; that when he saw the Intrepid, he decided that
was the car he wanted; that he went up to the Intrepid, but the woman
inside would not roll down the window or open the door, so he shot
her, got into the car and started to drive off with the woman’s children
in the backseat; that the children would not stop screaming so he let
them out; and that after codefendant wrecked the Corolla they drove
to a gas station and codefendant tried to use the victim’s credit cards,
which would not work. Defendant also told Gonzales he did not want
to talk about firing the gun at anyone else; that he was sorry, he
wanted to do the right thing, and he would change places with the
victim if it were possible.
Forensic Investigator Peter Larcher testified that he recovered
blood and broken glass from the Ford City crime scene and from the
scene of the Intrepid crash. He also recovered a loaded revolver with
three live cartridges and three spent cartridges, and blood samples.
Illinois State Police Forensic Scientist Carlee Konig, an expert in
forensic biology, stated that the swabs collected from the Intrepid
contained human blood. Forensic Scientist Charity Noreuil explained
that she tested the swabs of the stains recovered from the Intrepid and
found them to contain a mix of blood from defendant and another
contributor she could not positively identify, but who definitely was
not the victim.
Robert Berk, a trace evidence analyst with the Illinois Forensic
Science Center and an expert in the area of trace analysis and gunshot
residue (GSR), testified that he received samples from defendant’s
clothing and performed GSR tests on them. Berk found trace particles
on defendant’s clothing and found elevated levels of GSR on the
samples from defendant’s hands, which indicated that he either
handled a weapon, discharged a weapon, or was in close proximity to
a weapon when it was fired.
Marc Pomerance, a forensic scientist with the Illinois State Police
and an expert in the area of firearms and ballistics evidence, testified
that he had examined the two bullets recovered from the victim’s body
and clothing as well as the cartridges found in the revolver taken from
the Intrepid. He testified that the two bullets and the empty cartridge
cases found in the revolver had been fired from the gun recovered in
the Intrepid to the exclusion of all others.
Dr. Edward Donaghue, the chief medical examiner for Cook
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County, was qualified as an expert in forensic pathology without
objection and testified that he performed an autopsy on Rose
Newburn on March 25, 2001. He stated that the cause of death,
within a reasonable degree of scientific certainty, was the gunshot
wound to the left thigh and that her manner of death was homicide.
He noted a hole in the victim’s clothing that indicated there had been
a second shot.
After the State rested, defendant made a motion for a directed
verdict, which was denied. Defendant did not testify or present any
evidence on his behalf. The jury returned with verdicts of guilty of first
degree murder and aggravated discharge of a firearm.
The case immediately moved on to the death penalty eligibility
phase. The State entered all of the evidence from the trial, as well as
a birth certificate for defendant showing his birth date as February 25,
1962, and a certified copy of both an indictment and a 1986
conviction for the intentional murder of Alfred Evans. Detective
Thomas Kelly testified he was assigned to Gang Crimes in March
1985 and was one of the officers who arrested defendant for the
murder of Evans. A stipulation was entered into by the parties that
Jane Klewin, if called to testify, would state that she was employed as
an assistant State’s Attorney in March 1986 and that defendant
pleaded guilty to the murder of Evans and to one count of attempted
murder for the shooting of Robert Brown. Defendant presented no
evidence at the eligibility phase.
The jury found defendant eligible for the death penalty based on
two statutory factors: first, that defendant was convicted of murdering
two or more persons, and, second, that Rose Newburn was killed
during the commission of another felony. The proceedings then moved
on to the second phase of the death penalty hearing to determine
whether defendant would be sentenced to death or life in prison.
The State called various witnesses in aggravation, including
Pamela Tiggins. She testified that on April 5, 1982, she was at the
home of her friend Danielle White and heard White arguing with
defendant. White screamed for her to come upstairs, where she saw
defendant holding White down on a bed. Tiggins asked defendant to
stop and went back downstairs, but she did not leave or summon help.
White then came downstairs with defendant. Defendant asked Tiggins
to remove her clothes. When she declined to do so, he produced an
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ice pick, whereupon she took off her clothes and lay on the floor next
to White. Defendant then had sexual intercourse with her while
holding the ice pick to White’s throat. After defendant left, Tiggins
went home and told her mother, who called the police and took her to
the hospital.
Peter Earl testified that on February 27, 2001, he stopped at a gas
station while driving his 1996 Toyota Corolla. As he was filling his
tire with air, an individual stole his Corolla. Earl stated that three
weeks later, he saw his car near 69th and Western, and it was being
driven by a “black male with bushy hair, an Afro,” in his “mid-thirties”
whom he could not identify. His car was the Corolla wrecked by
codefendant in Garfield Park.
The State also called personnel from both the Illinois and the
Cook County Department of Corrections to testify regarding various
situations involving the defendant during his time in these institutions.
Officer Damewood testified that on May 2, 1988, at Hill
Correctional Center, defendant was permitted to leave his grade
equivalency diploma (GED) class, but he did not return as required.
Damewood wrote a ticket for defendant because of this infraction. On
September 30, 1988, defendant repeatedly refused to leave the dining
area after being asked to do so. As he approached defendant,
defendant stuck his finger near Damewood’s face and told him that
with a 25-year sentence, he did not need guards telling him what to
do. Finally, on October 4, 1988, he searched defendant’s cell and
found a steel wood screw about 2½ inches long, a wooden dowel rod
about 4 inches long, and some National Football League wagering
papers. Damewood explained that wood screws can be attached to
dowels to make a weapon.
Sergeant Art St. George testified that he worked at Hill
Correctional Center and on August 28, 1990, he was in charge of
lining inmates up for yard privileges. Defendant and another inmate
were late lining up and St. George told them because of this they
could not go to the yard. Defendant and the other inmate continued
toward the yard but were turned back by other guards. Defendant was
very hostile and told St. George he had better not stop him from going
to the yard.
Officer Thomas Hart stated he was working at Hill Correctional
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Center when he spotted defendant wearing an unauthorized shirt. He
informed defendant he would have to remove the shirt. Defendant
refused to remove the shirt and told Hart he would have to kick his
ass to get the shirt. Hart explained there were other inmates around at
the time and they started encouraging defendant not to give up his
shirt. Defendant eventually gave the shirt to Hart’s supervisor and no
one was harmed.
Lieutenant Jason Henton testified that on September 11, 1994, he
was working at Big Muddy Correctional Center. While he was
overseeing orientation defendant kept walking in and out of the
program. He asked defendant for his identification card to write him
a ticket. When he did defendant replied, “you better watch yourself
around me, I don’t give a fuck about you, I’m not a new jack,”
meaning, new to being incarcerated.
Officer Balmares testified that on May 11, 2005, he was working
in the Cook County Department of Corrections, Division 11, Tier AB,
where defendant was housed. Defendant told him, “We can step
outside so that I can kick your ass with your smart ass mouth.”
Defendant did not touch Officer Balmares.
Tayna Rambo testified that on August 29, 2001, she was passing
out razors to the inmates at the Cook County Department of
Corrections. Defendant yelled at her to hurry up and observed she was
so slow she “must not be getting any dick.” Rambo stated she issued
defendant a ticket. Defendant was locked in his cell when he made
those remarks.
Sergeant Krauskopf testified that he was assigned at the time of
trial to Division 11 of the Cook County Department of Corrections,
where defendant was housed. He saw defendant daily or weekly and
said that defendant’s attitude toward authority figures was “bad” and
many times verbally abusive. He thought defendant did this to curry
favor with the other inmates and he felt defendant’s behavior made the
other inmates more hostile as well.
Officer Jack Hamilton testified that on March 20, 1995, he was
working at the Western Illinois Correctional Center. Around 11 p.m.,
he opened the doors to the wings and defendant, who was housed on
the “A” wing, ran through to the “C” wing. He had to yell at
defendant repeatedly to come off the “C” wing, and when defendant
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finally did, he held open the “C” wing door, which was a breach of
security. Defendant told him that he “couldn’t make him shut that
door and to go ahead and write him a ticket.”
Officer Bryk testified that on April 10, 2003, he was working at
Cook County jail and saw defendant get in a fight with another
inmate. Defendant threw three or four punches at the other inmate,
who was taken to the dispensary. Defendant claimed the other inmate
spit at him through the opening in his cell door.
Tim Zeeck testified on March 4, 1995, he was working at the
Western Illinois Correctional Center. He did a strip search of
defendant and discovered two $5 bills in his underpants. He said that
inmates are not allowed to possess paper currency. He also found a
razor blade after searching defendant’s cell. Zeeck explained razor
blades were generally used to make weapons. Defendant was punished
only for possessing currency.
Dolores Drennan testified that she was a nurse who was working
at Western Illinois Correctional Center on June 17, 1996. As she was
dispensing medication to inmates, defendant got into an argument
with a guard, insulted her, called her an obscene name, and told her
she could shove the medications up her ass. Defendant told her to
write him a ticket, but that the warden would just throw it out. She
believed defendant was waiting to receive psychotropic medications.
Stephen Klimek, a Cook County corrections officer, testified that
on March 9, 2006, he was working at the Cook County Department
of Corrections. He observed an incident between defendant and a
female civilian commissary worker. Klimek stated defendant was
questioning where his items were and said, “ok bitch, I see how it is”
to the civilian worker and then walked out.
Cook County jail officer Christopher Moore stated that on
September 22, 2002, he was working in the barber shop of Division
11 in the Cook County jail. He observed defendant get into a fight
with another inmate and strike him about a dozen times. Both
defendant and the other inmate were taken to the infirmary.
The State also offered testimony from two other employees of the
Illinois Department of Corrections (DOC), Glen Jackson, the chief
records officer for DOC, and Robert Griffin, the assistant warden at
Pontiac Correctional Center. Each testified, over defendant’s
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objection, regarding privileges offered to an inmate serving a term of
natural-life imprisonment. This testimony and its admissibility will be
discussed later in this opinion.
Jackson also testified, over defendant’s objection, to some of the
contents of defendant’s DOC master file which involved five incidents
of rules violations. This testimony and its admissibility at the
sentencing phase will be discussed later in this opinion.
Former Assistant State’s Attorney Barry Gross was called by the
State to testify over defendant’s objection. The State told the court
that Mark Carrington, who was dead by the time of trial, was a
witness to the murder of Alfred Evans. The State wanted to present
Carrington’s grand jury testimony about Evans’ murder through
Assistant State’s Attorney Gross. Defendant argued this created a
confrontation clause problem. The circuit court ruled that the
transcript was sworn testimony, and therefore reliable, particularly
since defendant pleaded guilty to the murder. The court also found
that the testimony was relevant to the case, but it did not make a
finding as to the confrontation clause objection. The testimony of
former Assistant State’s Attorney Barry Gross and its admissibility at
the sentencing phase will be discussed later in this opinion.
Kim Evans, Alfred Evans’ brother, testified that in March 1985 his
brother was killed after having been shot four times, twice in the back,
once in the groin and once in the thumb.
Finally, the State called Quincy Newburn, who testified as to what
he remembered about the day his mother was shot. After Quincy read
a victim impact statement, which was admitted into evidence, the
State rested in aggravation.
Defendant began his case in mitigation with the testimony of his
sister, Germaine Kimber. Against the wishes of her mother, she
testified regarding their childhood and life with their parents,
Gwendolyn and Austin Banks. She and defendant would get
“whoopings” with belts and electrical cords that left welts on their
bodies, that her father “drank obsessively” and that he had two
temperaments–one nice and one “evil.” She could tell by the way he
shut his car door in the evening if there would be trouble. Her father
carried a gun for his job as a tow-truck driver for the Chicago police
and would pull it out around the house. One time he drunkenly fired
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his weapon over defendant’s head. In their house, it was “ok to lie and
be dishonest” as long as it was for good; for example, it was
acceptable for defendant to bring money home from selling drugs as
long as he used the money to pay bills.
Kimber testified there had once been a confrontation between
defendant and their father and that defendant was “put out” by their
father and went to live somewhere else. She admitted that she knew
defendant was a drug addict and that she was also an addict. She had
seen defendant use both heroin and cocaine. Defendant would try to
get help and would get clean for a while, but never for good.
Rita White worked at Cornell Interventions as a clinical
coordinator. Cornell Interventions was one of the drug treatment
centers defendant had previously attended. She stated defendant
voluntarily admitted himself to the program in November 2000 as a
heroin addict. He completed the standard 30-day program and she
never found defendant to be violent.
Sylvia Dillard was defendant’s case manager at Cornell
Interventions. She stated that defendant was compliant and
successfully completed their program. She was defendant’s primary
counselor and she saw him five days a week during both group and
individual sessions. She stated that he was never belligerent, violent,
or inappropriate toward women and he did not make her feel
threatened.
Dr. Robert Smith, a clinical psychologist, testified on behalf of
defendant and was qualified as an expert in the field of psychology
with a specialty in chemical dependency. He was hired by the Cook
County public defender’s office to conduct an evaluation of defendant.
He had reviewed several documents, including: the State’s “Notice of
Intent to Seek Death”; statements from codefendant and Shirley
Baldwin, a friend of Gwendolyn Banks; summaries of interviews with
defendant’s friends and family; defendant’s school records; all
defendant’s medical and hospital records; Cornell Interventions
records; the judgment of dissolution of marriage for defendant’s
parents; and defendant’s Chicago criminal record. He also met with
defendant three times, and interviewed Gwendolyn Banks, Rafaelle
and Germaine Banks, Maryann Kimber Davis (defendant’s niece),
Katherine and Jacqueline Johnson (defendant’s aunts), Anthony
Robinson, and Rita White.
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Dr. Smith testified to several incidents which he felt were significant
in defendant’s development, including the defendant (who was 15 years
old at the time) learning that he was the product of a rape, and that
Austin Banks was not his actual father. He also recited an incident that
occurred when defendant was 18 months old and was left by his mother
in the care of Austin Banks. When defendant’s mother returned she
discovered Austin had beaten defendant, causing bruises and welts all
over the defendant’s back. He went on to say that when defendant was
too old to be afraid of being beaten, Austin Banks took to threatening
him with the gun he carried for his job. Austin Banks would fire his gun
in the home when he was angry, and he once shot a relative. Another
incident occurred when defendant was in ninth grade and he got into a
fight with another student. During this incident, instead of stopping the
fight, defendant’s parents encouraged him to fight with the student, and
defendant’s mother slapped the other child across the face.
According to Dr. Smith, defendant’s school attendance started to
decline when he was 10 years old. Among children in his socioeconomic
class defendant’s scores ranged from a best of having 57% of the
children do better than him, to his worst category, where 90% did
better. Smith testified that by seventh grade, between 99% and 61% of
the children in his socioeconomic class were doing better than defendant
in various categories measured by the test. Dr. Smith stated he did not
believe that defendant was mentally retarded, but his scores indicated a
low IQ. At the age of 13, his school reported defendant did not have
basic skills in math, science, or social studies.
Dr. Smith testified that when defendant learned Austin Banks was
not his father, he became depressed and felt a sense of abandonment.
Around that same time, Austin Banks’ behavior also became more
erratic, including an incident where he shot a family member in the
home. It was around this time when defendant confronted Austin Banks
about his abusive behavior and cheating on defendant’s mother. After
being confronted, Austin Banks threatened defendant with a gun and
kicked him out of the house. At age 17, a year after Austin Banks
forced defendant from the family home, defendant dropped out of
school and joined a gang.
Dr. Smith also testified about some of defendant’s previous
infractions with the law. At age 19 defendant was convicted of robbery,
and at age 20 he was charged with rape, attempted rape, “agg. violence”
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[sic], and unlawful restraint. Defendant ended up pleading guilty to
unlawful restraint and received three years in prison. In March of 1985
defendant was charged with murder and he pleaded guilty a year later.
Defendant was twice charged in 1998 with possessing a controlled
substance and in 1999 he was charged with possessing stolen property.
Dr. Smith also testified to defendant’s long history of drug and
alcohol addiction, and defendant’s unsuccessful attempts to seek
treatment for his drug and alcohol issues. Defendant underwent
treatment for drug and alcohol addiction in 1999, and again in August
and November of 2000. He testified that people with drug addictions
often have a “co-existing” mental illness and both need to be treated or
neither can improve. Dr. Smith stated defendant’s underlying mental
illnesses were not treated along with his addiction. In his professional
opinion, defendant suffered from dysthymia, or long-term depression,
a borderline personality disorder, and an addiction to alcohol, heroin,
and cocaine. He also commented that codefendant had said the crime
was committed to obtain money to purchase drugs and explained he
thought the defendants were going through withdrawal the day of the
crime. Because Smith felt these disorders were present at the time the
offense was committed, he said it was his professional opinion that
would have impacted or diminished defendant’s ability to conform his
conduct to the requirements of the law and would constitute an extreme
mental or emotional disturbance.
Anthony Robinson also testified for the defense. He met defendant
in 1997 or 1998 after defendant was released from prison upon
completion of his previous sentence for murder. Robinson said he tried
to be a mentor for defendant and defendant visited his home several
times a week and helped around the yard and house. At one point,
defendant accompanied Robinson to an alcohol and substance abuse
program Robinson had been attending, although defendant later stopped
attending. He began seeing defendant with codefendant, of whom he did
not approve, and that on March 21 and 22 of 2001, defendant appeared
as though he had been using drugs. After defendant was charged with
murder he visited defendant in jail. Defendant told Robinson that the
shooting of Rose Newburn was an accident and the gun had discharged
as he struck the window with it, although defendant had initially told
Robinson he had nothing to do with the murder. Robinson also stated
that defendant had told him he did not know there were children in the
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car and that he was sorry.
Kathryn Jackson, defendant’s cousin, spoke primarily of defendant’s
childhood. She remembered that the family used to joke that their
parties did not end until the police arrived. She stated that at one party,
Austin Banks shot a burglar, and at another party, he shot a niece.
Jackson’s testimony confirmed much of what Kimber had stated: that
defendant’s parents were not good role models and defendant’s father
beat him.
In contrast to the Department of Corrections employees who
testified for the State, defendant had several DOC officers who testified
on his behalf. Officer Frederick Kincaid testified that he had been
assigned as defendant’s tier officer about two to three years prior to
trial. He had used defendant as a tier worker, which entitled him to extra
privileges. Kincaid also testified that defendant once helped him diffuse
a situation that seemed to be escalating into a fight, and that he gave
defendant a Bible and had Bible discussions with him. He had also seen
defendant give needy inmates certain things, like soap or underwear.
Finally, Kincaid stated that defendant had never been a management
problem.
Defendant called Cook County Department of Corrections Officer
Chevelle Alberts as his final witness in mitigation. She testified that she
had known defendant in the jail for several years, that she had previously
used him as her worker, and that an inmate with a bad record would not
have been chosen as a worker. She believed defendant believed in God
and was interested in scripture and spirituality. She believed he was
really concerned about moving in another direction.
ANALYSIS
1. Admissible Testimony or Inadmissible Hearsay
Defendant’s first point for review is that the State presented
inadmissible hearsay evidence to the jury that linked defendant to the
carjacking of Rose Newburn’s Dodge Intrepid. Detective Cardo testified
that he was on his way to a burglary when there was a series of flash
messages sent over the radio. When a crime happens and someone flees
the scene, a responding officer will give out a flash of either a person
fleeing the scene or a vehicle fleeing the scene so that other units in the
area can look for this person or vehicle. Cardo’s testimony continued as
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follows:
“Q. [Assistant State’s Attorney] When you receive[d] that
flash message, what information did you receive?
[Defense counsel]: Objection.
THE COURT: Objection overruled. The jury can regard this
matter only not for the truth of the matter asserted in it, but only
to show what the officer did when he did it next, if anything.
Q. Thank you. What information did you receive?
A. [Officer Cardo] There’s flash message initially of a
hit-and-run incident, and they gave a description of a green
Dodge Intrepid with a plate of Mary, Sam, Victor four, three,
and that vehicle had fled the scene of the accident.
Q. That Mary, Sam, Victor, that’s ‘MSV’?
A. That’s correct.
Q. Now did you receive any other flash messages after that?
A. Yes.
Q. What was that?
A. A message was sent that that vehicle was taken in a
carjacking and a shooting from Ford City Mall.”
Defendant contends that the State sought to establish defendant’s
identity as the killer by showing a string of offenses in which he was
involved beginning with the carjacking and murder. He argues that
Cardo should have testified that he received a message to look for a
green Dodge Intrepid and that it was not necessary to explain why he
was looking for it.
Defendant argues that Cardo’s testimony was inadmissible hearsay.
Hearsay is an out-of-court statement offered to establish the truth of the
matter asserted (People v. Tenney, 205 Ill. 2d 411, 432-33 (2002);
People v. Rogers, 81 Ill. 2d 571, 577 (1980)) and testimony about an
out-of-court statement which is used for a purpose other than to prove
the truth of the matter asserted in the statement is not hearsay (People
v. Simms, 143 Ill. 2d 154, 173 (1991) (and cases cited therein)).
We note initially that the flash messages described in Cardo’s
testimony did not mention anyone’s identity or that there had been a
murder. It is clear that the State did not present Cardo’s testimony to
prove the truth of the statement that “that vehicle was taken in a
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carjacking and a shooting from Ford City Mall.” The trial court had
already instructed the jury that the similar testimony from the prior flash
message was to be considered only “to show what the officer did when
he did it next, if anything.” Cardo testified after Southward and
Harrison, both of whom had already recounted that they saw defendant
in the green Intrepid and Southward testified as to defendant’s vehicular
hijacking and shooting of Rose Newburn. We find that the flash
messages were not improperly offered to link defendant to the
carjacking and shooting.
The admission of an out-of-court statement that is not offered to
prove the truth of the matter asserted but rather to explain the
investigatory procedure followed in a case is proper (see, e.g., People
v. Jones, 153 Ill. 2d 155, 160-61 (1992)) and to show that the police
officers had probable cause to arrest on the basis of the communication
(see People v. Louisville, 241 Ill. App. 3d 772, 781 (1992)). Because
Cardo was not part of the initial investigation, the admission of the flash
messages explained the course of the investigation, the subsequent
actions of the police officers, which included a high-speed chase, a car
crash into a CTA elevated-train pillar, a foot chase, and the basis for
placing defendant under arrest.
Defendant cites In re Guttierrez, 71 Ill. App. 3d 537 (1979), and
People v. Jura, 352 Ill. App. 3d 1080 (2004), in support of his
contention that the flash messages contained inadmissible hearsay.
However, these cases are distinguishable. In re Guttierrez involved a
flash message that was broadcast of an offender who was a “male white,
Mexican, 5 feet 5 inches in height, wearing dark trench coat and ski
mask.” In re Guttierrez, 71 Ill. App. 3d at 538. The appellate court held
that the trial court’s “substantive reliance” on the flash message was
improper, in particular since there was no other evidence that the
offender was Hispanic and that the evidence was clearly offered to
prove both that respondent made the statement and the verity of its
contents. In re Guttierrez, 71 Ill. App. 3d at 541. In Jura, the appellate
court held that the testimony admitted had the effect of proving the
matter asserted, that the defendant was the individual who committed
the offense, and that it failed to satisfy any other relevant, nonhearsay
purpose. Jura, 352 Ill. App. 3d at 1088.
Defendant finally asserts that admitting testimony of the flash
messages violated his sixth amendment right to be confronted by
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witnesses against him. See U.S. Const., amend. VI. The confrontation
clause “does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted.” Crawford v.
Washington, 541 U.S. 36, 59 n.9, 158 L. Ed. 2d 177, 197 n.9, 124 S.
Ct. 1354, 1369 n.9 (2004).
As we found earlier, the testimony of the flash messages was
admitted into evidence for purposes other than establishing the truth of
the matter asserted and the jury was so instructed by the trial court.
2. Alleged Prosecutorial Error During Rebuttal Argument
The defendant’s second point for review is that he should be granted
a new trial because the State mocked defendant during closing
argument, compared the strength of its case against defendant to other
cases, and claimed that the jury had to believe all of the State’s
witnesses were lying to acquit defendant.
Defendant alleges the mocking occurred when the prosecutor began
his rebuttal argument by stating, “Bravo. Bravo for Mr. Wonderful over
here. Bravo that he didn’t fight with Officer Cardo. Bravo that he didn’t
struggle with Officer Cardo. Bravo. Let’s give him a hand. He’s Mr.
Wonderful.” Defendant’s objections “to the theatrics” and that “this is
not proper argument” prompted the court to remark, “Stick to the facts,
Mr. [Prosecutor].”
Defendant argues that the prosecutor’s performance was calculated
to inflame the passions of the jury and cause the jury to despise
defendant, citing People v. Johnson, 119 Ill. 2d 119, 139 (1987) (it is
improper to refer to the defendant as an animal), and People v. Johnson,
208 Ill. 2d 53, 80 (2003) (it is improper to refer to defendant as evil).
Defendant concluded by arguing the jury should not have been goaded
into despising him.
The State argues that this was proper rebuttal argument because it
was made in direct response to the argument made by defense counsel.
In her closing statement, defense counsel said:
“So, let’s look at the other evidence. The arresting officer,
Officer Cardo, who handle[d] the chase. He took [defendant]
into custody at 5:56 p.m. on March 24th. After a short foot
chase, [defendant] did not resist arrest. He did not try to strike
or shoot at any of the officers. He did not grab the gun from the
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vehicle. He did not try to toss the gun. The officer told you,
after a short foot chase, [defendant] did not resist arrest.”
We agree with the State that the prosecutor was not attempting, as
defendant claims, to “cause the jury to despise the defendant,” but rather
was responding to defense counsel’s argument. The wide latitude
extended to prosecutors during their closing remarks has been held to
include some degree of both sarcasm and invective to express their
points. See People v. Kirchner, 194 Ill. 2d 502, 549 (2000); People v.
Armstrong, 183 Ill. 2d 130, 146 (1998); People v. Burton, 338 Ill. App.
3d 406, 418 (2003).
Defendant next contends that the prosecutor improperly compared
the strength of the case against defendant to other cases when he
argued, “The evidence in this case is overwhelming. Most cases have
eyewitness testimony, and that’s it. Some cases don’t have DNA, or
fingerprints, or gunshot residue, or ballistics. Other than fingerprints,
you’ve got it all. This case has it all.” An objection to this argument was
overruled.
Defendant asserts that the prosecutor may not argue assumptions or
facts not based upon the evidence in the record, citing People v.
Johnson, 208 Ill. 2d 53, 115 (2003). He contends this argument was
prejudicial because it implied that guilt depends upon the quantity and
variety of evidence presented, rather than upon the quality of the
evidence.
The State argues that it is well established that comments by a
prosecutor on the strength of the State’s evidence are permitted. See,
e.g., People v. Emerson, 122 Ill. 2d 411, 434 (1987). The clear focus of
the prosecutor’s argument was the overwhelming strength of the
evidence presented in this case. The State also argues that the remarks
here bear out that there was eyewitness testimony, DNA analysis,
gunshot residue evidence, and ballistics evidence, and that was all the
prosecutor was pointing out with his remarks. We do not agree with
defendant’s contention that the prosecutor’s argument “was prejudicial
because it implied that guilt depends upon the quantity and variety of
evidence presented, rather than upon the quality of the evidence.”
With regard to defendant’s claim that the State improperly argued
the jury would have to believe all the State’s witnesses were lying in
order to acquit defendant, he points to the prosecutor’s argument that
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“[t]hey would have you believe that each of those witnesses that
testified from the jury box, from the witness stand, got in here and lied
to put a case on [defendant].” Defendant argues that he did not testify,
and because the prosecutor referred to the defense’s “story,” the
argument told the jury that it could not acquit defendant unless it
believed each of the State’s witnesses was lying.
The State argues that defendant misstates the proper application of
the law, citing People v. Coleman, 158 Ill. 2d 319 (1994), wherein this
court examined a similar complaint by a defendant. In examining the
issue, this court drew a distinction between situations where a
prosecutor permissibly argues that a jury would have to believe the
State’s witnesses were lying in order to believe the defendant’s version
of events and where a prosecutor improperly argues that a jury would
have to believe the State’s witnesses were lying in order to acquit
defendant. Coleman, 158 Ill. 2d at 346. Since in Coleman the argument
represented the former, and was a direct response to a defense attack on
the credibility of the State’s witnesses, the argument was not a
misstatement of the law or an attempt to distort the burden of proof.
The same is true here. See People v. Pecoraro, 144 Ill. 2d 1, 16 (1991);
People v. Williams, 147 Ill. 2d 173, 232 (1991).
Defendant cites several other cases in support of his argument, but
they are distinguishable. In People v. Crossno, 93 Ill. App. 3d 808, 822
(1981), and People v. Miller, 302 Ill. App. 3d 487, 497 (1998), the
prosecutors improperly distorted the burden of proof by incorrectly
intertwining the burden with the jury’s credibility determinations. That
did not happen in this case. Rather, the prosecutor was simply
responding to defendant’s attack on the credibility of the State’s
witnesses.
We find that the three complained-of arguments by the prosecutor
during rebuttal argument were not improper.
3. Bias Against Gang Members
The third point for review is that defendant is entitled to a new trial
because he was tried by a juror with a bias against gang members.
During the examination of Juror A by defense counsel, the following
colloquy ensued:
“[Defense counsel]: Would the fact that [defendant], our
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client, was a member of a street gang prevent you from giving
him a fair and impartial hearing?
[Juror A]: That might, yes.
[Defense counsel]: In what way?
[Juror A]: Well, my husband used to be involved with gang
crimes, and he talked a lot about the different offenders involved
and victims and that kind of thing. And so–and I do have some
views about gang members and that whole–
[Defense counsel]: I guess the question is, would you be
able to put that aside, or are your feelings that strong that you
wouldn’t be able to put it aside?
[Juror A]: I think I could put it aside.”
Defendant now argues that the trial court committed plain error in
seating Juror A because she said she had a bias against gang members;
that she only thought she could put the bias aside, and therefore she was
not an impartial juror. Because the jury was not impartial, defendant
argues he is entitled to a new trial and sentencing hearing.
The State argues that the seating of Juror A on the jury did not
constitute error. “In addressing defendant’s plain-error contention, it is
appropriate to determine whether error occurred at all.” People v.
Bannister, 232 Ill. 2d 52, 65 (2008); People v. Harris, 225 Ill. 2d 1, 31
(2007).
After the above colloquy between Juror A and defense counsel, both
the State and defense counsel were given the opportunity to and did
pose additional questions to Juror A. Thereafter both the State and
defense counsel accepted Juror A without any further discussion or
challenge with regard to the now claimed bias. Defendant does not
argue that the court was required, sua sponte, to challenge or decline to
seat Juror A. Indeed, in People v. Metcalfe, 202 Ill. 2d 544, 557 (2000),
we held that while a trial court has the discretion to remove a juror sua
sponte, it has no duty to do so. Accordingly, the trial judge here did not
commit any error in seating Juror A. In any event it is evident, given
Juror A’s responses, that she would be fair and impartial. Clearly,
defendant’s trial counsel agreed with that assessment.
We find that the trial court did not err in seating Juror A and
defendant was not denied his constitutional right to be tried by a fair and
impartial jury.
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4. Potential Juror Excused for Cause
Defendant’s fourth point for review is whether the trial court erred
when it excused a potential juror (Juror B) who merely would have had
difficulty in imposing a death sentence. During the examination of Juror
B, the following ensued:
“THE COURT: I mentioned in the courtroom, if the
defendant is found guilty of the offenses charged in this case, the
[S]tate will seek the death penalty in a separate sentencing
proceeding. Do you have any scruples, by which I mean strong
feelings by reason of religion, morals, or conscience, against the
imposition of the death penalty?
[Juror B]: Generally, it’s not something that I agree with.
THE COURT: Are your beliefs such that regardless of the
facts of the case or the background of the defendant, that under
no circumstances could you consider signing a verdict directing
the Court to sentence the defendant to death?
[Juror B]: I think I would find that difficult.
THE COURT: Would there be circumstances that you
would be able to do that, or you think you could? Whether or
not it’s easy or not, that’s not a question right now but–
[Juror B]: I honestly don’t know how I feel in the situation,
itself, but certainly in a general principle, it’s–I think it would be
difficult for me to feel that I had sentenced someone to death.
THE COURT: Okay. Would your beliefs about the death
penalty prevent or substantially impair your ability to reach a fair
and impartial decision as to whether the defendant was guilty?
[Juror B]: No, I don’t think so.
THE COURT: Do you have any strong feelings in favor of
the death penalty? You have already answered that, but I want
you to answer that again.
[Juror B]: No.
THE COURT: Are your beliefs such that regardless of the
facts of the case or the background of the defendant, that if the
defendant were found guilty as charged, you would
automatically vote to impose the death penalty and not consider
signing a verdict which would result in a sentence of life
-22-
imprisonment?
[Juror B]: No.
THE COURT: You’d be able to look at both of those
aspects–
[Juror B]: I think so.
THE COURT: –before making up your mind?
[Juror B]: Yes.
THE COURT: If there is such a sentencing hearing that I’m
talking about, at the conclusion of that hearing or the conclusion
of your deliberations, you could be asked to sign a verdict that
would direct the Court to impose a sentence of death.
Do you think if the facts–if you think the facts and the
background of the defendant would be appropriate, do you think
you’d be able to sign such a verdict?
[Juror B]: I honestly don’t know. I certainly would find that
difficult.
THE COURT: Nobody said its going to be easy, but–and
it’s hard to imagine or you’re in a position where it’s maybe the
first time you have thought about this particular situation, but
it’s kind of–is that the best answer you can give us at this time?
[Juror B]: I guess I don’t know exactly how I would react
in the situation, but certainly, it’s not something that I’m
comfortable with.
***
[Defense counsel]: As you already know, if [defendant] is
convicted, there may be a hearing to determine if he receives the
death penalty. You would hear evidence against him in
aggravation, evidence for him in mitigation. Would you be able
to keep an open mind in considering this question?
[Juror B]: The question being?
[Defense counsel]: Death or no death, or death versus life
imprisonment, whatever way.
[Juror B]: I would certainly try to.
[Defense counsel]: Would you be able to though?
[Juror B]: I just don’t know how to answer that. Certainly
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it’s not something that I’m comfortable with, and I don’t know
how I would react in the situation, but–I don’t know that I can
give you a better answer.”
After examination of Juror B concluded, the following colloquy ensued
between the court and counsel outside the presence of the prospective
jurors:
“THE COURT: Anything [sic] want to say about [Juror B]?
[Assistant State’s Attorney]: We’d ask he be excused for
cause. He was so equivocal in his responses and uncomfortable
with the concept that he shows clearly he wouldn’t be able to
sign the verdict form.
[Defense counsel]: I’d object to cause. Certainly in death
penalty, many people here are uncomfortable, and he did say,
basically, he didn’t–he did say he’d be able to consider and–he
said he would consider it even though it was difficult.
THE COURT: Looking at the totality of his answers,
however, I don’t think he’s going to be able to sign a verdict in
this case, even if he thought the evidence warranted it. I am
going to excuse him for cause based on the totality of his
answers.”
Defendant argues that a trial court may not exclude a prospective
juror for cause for voicing general reservations about capital
punishment, citing People v. Seuffer, 144 Ill. 2d 482, 505 (1991), or
simply because the person opposes the death penalty and cites
Witherspoon v. Illinois, 391 U.S. 510, 522, 20 L. Ed. 2d 776, 784-85,
88 S. Ct. 1770, 1777 (1968). Witherspoon and its progeny provide that
the right to an impartial jury, guaranteed by the sixth and fourteenth
amendments to the United States Constitution, prohibits removal of a
prospective juror for cause where the prospective juror voices only
general objections to the death penalty. People v. Gilliam, 172 Ill. 2d
484, 509 (1996). In determining whether a prospective juror in a capital
case may be removed for cause because of the person’s views toward
the death penalty, the “standard is whether the juror’s views would
‘prevent or substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath.’ ” Wainwright v. Witt,
469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52, 105 S. Ct. 844, 852
(1985), quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581,
-24-
589, 100 S. Ct. 2521, 2526 (1980). “The trial judge is in a ‘superior
position to gauge the meaning of the prospective juror’s responses’ to
the examination, and the judge’s determination is therefore entitled to
deference.” People v. Tenner, 157 Ill. 2d 341, 363 (1993), quoting
People v. Emerson, 122 Ill. 2d 411, 439 (1987).
In People v. Harris, 225 Ill. 2d 1 (2007), this court examined a
challenge to an exclusion for cause where the potential juror gave
“ambiguous” responses to questions regarding whether he could sign a
verdict sentencing a defendant to death, first indicating that he would
automatically vote against the death penalty and then later responding
that it was a “possibility” that he would sign a verdict of death. Harris,
225 Ill. 2d at 36-37. In finding that the juror was properly dismissed,
this court noted that “ ‘[i]t is precisely in situations such as this, where
the cold record suggests an apparent contradiction, that we defer to the
circuit court’s discretion.’ ” Harris, 225 Ill. 2d at 37, quoting People v.
Shaw, 186 Ill. 2d 301, 317 (1998); see also People v. Sims, 192 Ill. 2d
592, 632-33 (2000).
Based on Juror B’s repeated equivocal responses to questions from
the court and counsel about his ability to sign a verdict for the death
penalty, we hold that the trial court did not abuse its discretion in
dismissing Juror B for cause. Harris, 225 Ill. 2d at 34-39; Tenner, 157
Ill. 2d at 359-63.
5. Jury Not Instructed on Elements of the Felonies in the
Felony-Murder Aggravating Factor
Defendant’s fifth point for review is that his death sentence must be
vacated because the jury was not instructed on the elements of the
felonies in the felony-murder aggravating factor. After argument and
instruction from the court during the death penalty phase of the
sentencing hearing, the jury found defendant eligible for the death
penalty based on two statutory factors: (1) defendant was convicted of
murdering two or more persons, and (2) Rose Newburn was killed
during the course of the commission of another felony. 720 ILCS
5/9–1(b)(3), (b)(6) (West 2006).
Defendant claims that none of the eligibility-stage instructions set
forth the elements the jury had to find to decide whether defendant
committed armed robbery, aggravated kidnapping, or aggravated
-25-
vehicular hijacking, the underlying felonies in the felony-murder
aggravating factor. He concludes this was plain error because it
deprived him of both a substantial right and a fair sentencing hearing,
citing People v. Fuller, 205 Ill. 2d 308 (2002), and People v. Ramey,
151 Ill. 2d 498 (1992). In addressing defendant’s plain-error argument,
we will first determine whether error occurred at all. Bannister, 232 Ill.
2d at 65.
The State argues, and defendant concedes, that the instructions
defendant claims were lacking during the eligibility phase of his hearing
were given to the same jury prior to deliberation during the guilt phase
of his trial, which took place earlier the same day. The guilt-phase
instructions included separate elements instructions for armed robbery,
aggravated kidnapping, and aggravated vehicular hijacking. Thus, the
jurors were aware of the elements of the underlying felonies in the
felony-murder aggravating factor and did not need to be reinstructed
before deliberating on the eligibility phase of the proceedings.
In Ramey the trial court did not instruct the jury that the State must
prove that defendant “ ‘acted with the intent to kill the murdered
individual or with the knowledge that his acts created a strong
probability of death or great bodily harm to the murdered individual’ ”
(Ramey, 151 Ill. 2d at 539-40, quoting Ill. Rev. Stat. 1985, ch. 38, par.
9–1(b)(6)(b)), “[a]n essential element which the State was required to
prove in order to establish the existence of the sixth aggravating factor”
(Ramey, 151 Ill. 2d at 545). This court also found that “the sentencing
jury never found that the defendant acted intentionally or knowingly.”
Ramey, 151 Ill. 2d at 545. The court then vacated the defendant’s death
sentence and remanded for a new sentencing hearing.
In Fuller, the jury instructions, “just like those in Ramey, failed to
mention that the defendant acted with knowledge or intent in causing
the death of the victim. Also like Ramey, the required finding was not
made by the jury at any other stage of the proceeding ***.” Fuller, 205
Ill. 2d at 344. Just like in Ramey, this court vacated defendant’s
sentence and remanded for a new sentencing hearing. Fuller, 205 Ill. 2d
at 346.
The Fuller and Ramey cases are distinguishable because, here, the
trial court did instruct the jury in the sentencing phase that “defendant
acted with the intent to kill the murdered person, or with the knowledge
that his acts created a strong probability of death or great bodily harm
-26-
to the murdered person.” Furthermore, unlike Ramey and Fuller, the
jury was instructed at the guilt phase on the underlying elements of the
felonies in the felony-murder aggravating factor.
Under the circumstances of this case, where the trial court instructed
this same jury as to the elements of the predicate felonies for felony
murder during the guilt phase of the trial, we find the trial court did not
err by failing to repeat those instructions during the eligibility phase.
6. Evidence of Privileges Received by Prison Inmates
Defendant’s sixth point for review is that the State presented
irrelevant evidence of privileges received by prison inmates. Glen
Jackson, the chief records officer for the DOC, testified regarding
privileges offered to inmates serving a term of natural life imprisonment.
He explained that these inmates are allowed privileges based upon their
good behavior. They initially could be assigned to a maximum-security
facility, where there are fewer programs than in other institutions, but
they could be stepped down to a medium-security facility based upon
their behavior. He said that the natural life inmates received recreation
privileges like other inmates, including going to the yard for two hours
a day to play basketball, softball, and lift weights; that they were able to
engage in vocational training, such as educational adult basic education,
General Educational Development (GED) programs, culinary arts
programs, wood shop, and auto shop; and that they were able to use the
library and the commissary, as well as have a television and a radio in
their cell. In a typical day, the inmates are counted in the morning and
then eat breakfast. After breakfast, inmates go to their assignments and
then eat lunch. After lunch they go to the yard, then to dinner, and after
dinner they return to their cells.
Defendant’s motion in limine to preclude the State from presenting
this evidence was denied.
Defendant argues that “[evidence] is not proper at the sentencing
hearing if it does not bear on the aggravating or mitigating factors, the
circumstances of the offense or the character or rehabilitative potential
of the particular defendant,” citing People v. Barrow, 133 Ill. 2d 226,
280 (1989). He contends the evidence about prison privileges did not
bear on his character or the nature of the offense, and it was therefore
irrelevant.
-27-
Defendant also argues that this prison-privileges evidence was
prejudicial when the prosecutor in closing argument said that defendant
should be sentenced to death “[b]ecause if he knows he’s going to spend
the rest of his life walking around the yard, lifting weights, playing
basketball, watching TV, he’ll do whatever he wants. He’ll take that
sentence as a joke.” The State also appears to refer to this evidence,
stating, “Don’t give him what he wants. Life in general population is like
sending him to his room.”
The State contends that the trial court properly admitted evidence
regarding privileges received by inmates at the DOC, citing People v.
Smith, 176 Ill. 2d 217 (1997). In Smith we stated: “ ‘Wide latitude is
granted to the parties in introducing evidence in aggravation and
mitigation at a capital sentencing hearing. The testimony presented need
not satisfy the more restrictive rules of evidence that govern the
guilt-innocence phase.’ People v. Tenner, 157 Ill. 2d 341, 380 (1993);
720 ILCS 5/9–1(e) (West 1994). Rather, the only requirement is that
the evidence be relevant and reliable.” Smith, 176 Ill. 2d at 242-43. See
also People v. Caffey, 205 Ill. 2d 52, 125 (2001).
The State and defendant agree that the only issue is whether the
prison-privileges evidence was relevant.
Defendant relies heavily on the South Carolina Supreme Court case
of State v. Burkhart, 371 S.C. 482, 640 S.E.2d 450 (2007). During the
sentencing phase in that capital case, the Director of Inmate
Classification for the Department of Corrections testified that an inmate
receiving a sentence of life without parole was eligible to receive
privileges that “include[d] access to the yard, work, education, meals,
canteen, phone, library, recreation, mail, television, and outside
visitors.” Burkhart, 371 S.C. at 487, 640 S.E.2d at 453. On
cross-examination, the Director acknowledged that prison life is “very
regimented” and “is not a country club.” Burkhart, 371 S.C. at 487, 640
S.E.2d at 453. Burkhart presented evidence through his own witness
that prison is a harsh environment with violent predators where one’s
freedom is severely curtailed. Burkhart, 371 S.C. at 487, 640 S.E.2d at
453.
The South Carolina court stated: “[E]vidence in the sentencing
phase of a capital trial must be relevant to the character of the defendant
or the circumstances of the crime. We are aware of the tension between
evidence regarding the defendant’s adaptability to prison life, which is
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clearly admissible, and this restriction on the admission of evidence
regarding prison life in general. We note, however, that evidence of the
defendant’s characteristics may include prison conditions if narrowly
tailored to demonstrate the defendant’s personal behavior in those
conditions.” (Emphasis omitted.) Burkhart, 371 S.C. at 488, 640 S.E.2d
at 453.
The five-member South Carolina Supreme Court unanimously found
that the evidence concerning prison conditions was not relevant and
should not have been admitted into evidence. Based on a South Carolina
statute, three of the justices found the admission of this evidence was
reversible error and two found it was harmless error. The majority
stated, “A capital jury may not impose a death sentence under the
influence of any arbitrary factor. S.C. Code Ann. §16–3–25(C)(1)
(2003). When the jury is invited to speculate about irrelevant matters
upon which a death sentence may be based, §16–3–25(C)(1) is violated.
State v. Sloan, 278 S.C. 435, 298 S.E.2d 92 (1982). Accordingly, we
reverse appellant’s death sentence and remand for resentencing.”
Burkhart, 371 S.C. at 488-89, 640 S.E.2d at 453.
The dissenting justices stated they would find that although the trial
court admitted irrelevant evidence during the sentencing proceeding,
they could find nothing that indicated the introduction of this evidence
prejudiced the defendant. Burkhart, 371 S.C. at 490, 640 S.E.2d at 454
(Toal, C.J., dissenting, joined by Burnett, J.). They further held that the
South Carolina statute was subject to harmless-error analysis. Burkhart,
371 S.C. at 490-95, 640 S.E.2d at 454-57 (Toal, C.J., dissenting, joined
by Burnett, J.).
Here, the State asserts that the evidence of inmate privileges was
offered to help “the jurors make their determination regarding whether
defendant would be able to adjust to a life of incarceration.” It argues
that the South Carolina Supreme Court recognized that there is an
important distinction between permissible evidence designed to show a
defendant’s adaptability to prison life and evidence of prison conditions
in general. Burkhart, 371 S.C. at 488, 640 S.E.2d at 453. However, at
trial, the State did not argue that the evidence of privileges in prison
showed that defendant could not adapt to prison life. Rather, the
prosecutor argued that the prison privileges meant life in prison was too
good for defendant. Accordingly, the prison-privileges evidence was not
relevant to the circumstances of the offense or the character or
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rehabilitative potential of defendant (People v. Williams, 97 Ill. 2d 252,
301 (1983)) and it should not have been admitted.
Because of this error, defendant argues that this court should grant
him a new sentencing hearing. We have previously found that the
admission of improper aggravation evidence during a sentencing
proceeding is subject to harmless-error analysis and reversal is not
mandated in every instance. People v. Towns, 174 Ill. 2d 453, 469
(1996); see also People v. Chapman, 194 Ill. 2d 186, 246 (2000). Here
the State’s evidence was very strong and showed that defendant was a
repeat offender with a history of preying on innocent victims for whom
he showed no remorse or concern. The State’s case included 23
witnesses in aggravation, many of them DOC officials. These DOC
witnesses discussed defendant’s many disciplinary infractions during his
incarcerations, which included fights with other inmates, abusive
behavior toward guards and civilian staff, and refusal to conform to the
rules and regulations of the institutions. The State also offered testimony
from Pamela Tiggins, who told how defendant sexually assaulted her
while holding an ice pick to her friend’s neck and testimony regarding
defendant’s murder of Alfred Evans, whom he gunned down from the
back, allegedly in retaliation for the killing of another gang member.
Defendant, on the other hand, presented testimony from family
members and a clinical psychologist, all of whom spent most of their
time detailing defendant’s childhood as the reason behind his criminal
behavior. This mitigation did not present any reason sufficient to
preclude the death penalty and was far outweighed by the aggravation
evidence.
We find that the error in admitting the improper testimony was
harmless beyond a reasonable doubt and that no prejudice resulted to
defendant from its admission.
7. The Right to Confront Witnesses at the Capital Sentencing
Hearing
Defendant’s seventh point for review is that the State violated his
right to confront witnesses when a Department of Corrections records
keeper testified for the State about defendant’s prison disciplinary
record and an assistant State’s Attorney read to the jury a statement and
the grand jury testimony of a witness to the killing that resulted in
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defendant’s prior murder conviction.
Defendant argues that the jury learned at the eligibility stage that
defendant had pleaded guilty to the murder of Alfred Evans. At that
stage of the sentencing hearing, the State told the court that Mark
Carrington, a witness to that murder, was dead, but the State still
wanted to present Carrington’s grand jury testimony about Evans’
murder. The defense objected, but the court found that because
Carrington was under oath before the grand jury and defendant had
pleaded guilty to the murder, the evidence was relevant and reliable and
was therefore admissible.
The State placed into evidence Carrington’s signed statement to the
police and a transcript of his grand jury testimony. Barry Gross then
testified that as an assistant State’s Attorney in 1985, he conducted the
grand jury investigation into Evans’ murder. Gross read Carrington’s
grand jury testimony to defendant’s sentencing jury. Carrington testified
that he met with defendant on March 15, 1985, when defendant was a
“general,” and Carrington was a member, of the Gangster Stones.
Defendant told Carrington to accompany him to get narcotics. They
walked to a building a block away and defendant told Carrington to wait
outside. Defendant went inside and talked to two men in the hallway.
Defendant pulled a gun and shot the shorter of the two men in the back.
As Carrington fled, he heard more shots. Carrington met defendant later
that night and defendant told him he had done it because “Fred” had
been shot earlier. Carrington said he was not told more because
“[g]enerals don’t really talk. They don’t really do nothing else about
what they do.”
Defendant requested a mistrial or, in the alternative, that the
testimony be stricken, because he was unable to cross-examine
Carrington. Again, the trial court stated that the evidence was relevant
and reliable.
The court also overruled defendant’s objection that his right to
confront witnesses would be violated if Glen Jackson, the DOC record
keeper, should be permitted to testify concerning the details of certain
violations reported in defendant’s master file. The court ruled the
evidence was admissible. Jackson testified that defendant accumulated
133 rules violations between 1983 and 2000 and provided more specific
information as to five of those violations as set forth below.
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First, Jackson testified that on September 11, 1990, while defendant
was at Hill Correctional Center, defendant approached an officer and
berated him because the officer would not let defendant leave the yard
early. Forty or fifty inmates watched, and the officer felt intimidated.
Jackson said a disciplinary ticket was filed and the adjudicatory
committee found defendant guilty of the charges.
Next Jackson stated that on February 12, 1991, defendant was
housed at Illinois River Correctional Center and was issued a ticket for
insolence, unauthorized movement, and disobeying a direct order.
Jackson explained that defendant was asked to leave the dietary area
because he was finished eating, and he refused to comply with three
orders to leave the area. Defendant left when a higher ranking officer
ordered him to do so. The adjudicatory committee found him guilty of
those charges.
Jackson also testified that defendant was issued another ticket on
May 19, 1992, at Illinois River Correctional Center for creating a
dangerous disturbance, insolence, and unauthorized movement.
Defendant attempted to avoid a shakedown as he was leaving lunch. As
a number of other inmates watched, defendant became loud and insolent
when a lieutenant asked him to empty his pockets. The adjudicatory
committee found defendant guilty of insolence and unauthorized
movement, but not of creating a dangerous disturbance.
Jackson further testified that defendant received a ticket on January
23, 1993, at the Illinois River Correctional Center for intimidation,
threats, disobeying a direct order, insolence, violation of rules, and
sexual misconduct. An officer had seen defendant holding a door open,
and as the officer shut it, defendant pushed past him into a different
wing of the facility. Defendant then refused to return to his wing,
refused to produce his identification card, swore at the officer, and
shook his finger in the officer’s face. When defendant finally left, he
started yelling “turn around, I got something for you” and when the
officer turned around, he saw defendant with his pants pulled down and
his penis exposed through his shorts. The adjustment committee found
him guilty of all charges except sexual misconduct.
Finally, Jackson testified that on January 25, 1994, defendant was
ticketed for insolence, intimidation, and threats based on his going to the
correctional office, telling the reporting officer that he did not like being
at Danville Correctional Center and that he wanted to go back to
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Pontiac. Defendant said, “I just want to let you know, my name is
Banks, I’m a Stone, and I want to see the warden about getting out of
here. I’m telling you, I’m letting you know, you have been warned, if
anything happens, it’s on you.” The adjudicatory committee found
defendant guilty.
Defendant contends that the admission of Carrington’s statements
through Gross’ testimony, and the admission of the various prison
guards’ accounts of rule violations through Jackson’s testimony,
violated defendant’s sixth and fourteenth amendment right to confront
witnesses, citing Crawford v. Washington, 541 U.S. 36, 58 L. Ed. 2d
177, 124 S. Ct. 1354 (2004). The trial court’s ruling that the evidence
was relevant and reliable did not address the defendant’s confrontation
objection.
The sixth amendment’s confrontation clause, which applies to both
federal and state prosecutions (Crawford, 541 U.S. at 42, 158 L. Ed. 2d
at 187, 124 S. Ct. at 1359), provides: “In all criminal prosecutions, the
accused shall enjoy the right *** to be confronted with the witnesses
against him ***.” U.S. Const., amend. VI. In Crawford, the Supreme
Court further interpreted the confrontation clause and held that the
testimonial hearsay statements of a witness who is unavailable at trial
may not be admitted against a criminal defendant unless the defendant
had a prior opportunity for cross-examination. Crawford, 541 U.S. at
68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. The Court in Crawford
declined to spell out a comprehensive definition of “testimonial,” but it
found that: “Whatever else the term covers, it applies at a minimum to
prior testimony at a preliminary hearing, before a grand jury, or at a
former trial; and to police interrogations.” Crawford, 541 U.S. at 68,
158 L. Ed. 2d at 203, 124 S. Ct. at 1374.
The State argues that both the testimony from the records officer
and the testimony recounting a deceased witness’ grand jury testimony
were properly admitted in aggravation during defendant’s sentencing
hearing. The ordinary rules of evidence are relaxed at the
aggravation/mitigation stage of a capital sentencing hearing. People v.
Caffey, 205 Ill. 2d 52, 125 (2001). The only requirement for the
admissibility of evidence at this stage of a capital sentencing hearing is
that the evidence be relevant and reliable. Caffey, 205 Ill. 2d at 125.
Furthermore, “it is well settled that the introduction of hearsay evidence
in a capital sentencing hearing violates neither the due process clause
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(People v. Jones, 94 Ill. 2d 275, 286 (1982)), nor the confrontation
clause (People v. Brown, 172 Ill. 2d 1, 49 (1996)). Therefore, the
arguments based on the sixth and fourteenth amendments also fail.”
People v. Jackson, 182 Ill. 2d 30, 83 (1998).
These well-established rules in Illinois are consistent with Williams
v. New York, 337 U.S. 241, 93 L. Ed. 1337, 69 S. Ct. 1079 (1949),
where the Supreme Court stated:
“Highly relevant–if not essential to [a court’s] selection of an
appropriate sentence is the possession of the fullest information
possible concerning the defendant’s life and characteristics. And
modern concepts individualizing punishment have made it all the
more necessary that a sentencing judge not be denied an
opportunity to obtain pertinent information by a requirement of
rigid adherence to restrictive rules of evidence properly
applicable to the trial.” Williams, 337 U.S. at 247, 93 L. Ed. at
1342, 69 S. Ct. at 1083.
There is nothing in Crawford to indicate that the confrontation
clause does or does not apply to the aggravation/mitigation phase of a
capital sentencing hearing. There is a split of authority on the issue by
the courts that have considered the issue. The parties have cited cases
which hold that the confrontation clause does not apply, namely, People
v. Jackson, 182 Ill. 2d 30, 83 (1998), Szabo v. Walls, 313 F.3d 392 (7th
Cir. 2002), United States v. Fields, 483 F.3d 313 (5th Cir. 2007),
United States v. Jordan, 357 F. Supp. 2d 889 (E.D. Va. 2005), United
States v. Johnson, 378 F. Supp. 2d 1051 (N.D. Iowa 2005), State v.
McGill, 213 Ariz. 147, 140 P.3d 930 (2006), State v. Stephenson, 195
S.W.3d 574 (Tenn. 2006), and Summers v. State, 122 Nev. 1326, 148
P.3d 778 (2006); and cases which hold that the right to confront
witnesses does apply, namely, Proffitt v. Wainwright, 685 F.2d 1227
(11th Cir. 1982), United States v. Mills, 446 F. Supp. 2d 1115 (C.D.
Cal. 2006), Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005),
State v. Bell, 359 N.C. 1, 603 S.E.2d 93 (2004), and Rodriguez v. State,
753 So. 2d 29 (Fla. 2000).
Defendant contends that the argument against applying the
confrontation clause to the aggravation/mitigation phase of a capital
sentencing hearing relies upon Williams. But, defendant argues, a
growing number of jurists have questioned the continued vitality of
Williams. Because the sixth amendment right to confrontation was not
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extended to the states until over 15 years after Williams was decided,
Williams was decided on due process grounds and it “is thus quite
questionable whether Williams is controlling with respect to the
determination of whether the Sixth Amendment right to confrontation
extends to capital sentencing hearings.” United States v. Hall, 152 F.3d
381, 405 n.13 (5th Cir. 1998). “The bases of the Williams decision,
written in 1949, well before the modern death penalty era of Furman [v.
Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972)] and
Gregg [v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909
(1976)], have been eroded as applied to capital cases.” United States v.
Taveras, 424 F. Supp. 2d 446, 457 (E.D.N.Y. 2006).
A similar argument was presented to this court in People v.
Patterson, 217 Ill. 2d 407 (2005), which involved the question of
whether a Crawford violation was subject to harmless-error review. In
Patterson we stated:
“What defendant is arguing, in essence, is that Crawford
implicitly overruled Harrington [v. California, 395 U.S. 250, 23
L. Ed. 2d 284, 89 S. Ct. 1726 (1969)], [Delaware v.] Van
Arsdall, [475 U.S. 673, 89 L. Ed. 2d 674, 106 S. Ct. 1431
(1986)] and any other Supreme Court decision holding that
confrontation clause violations are subject to harmless-error
review. Crawford does not explicitly overrule these decisions,
and we may not assume an implicit overruling of a previous
Supreme Court decision. Agostini v. Felton, 521 U.S. 203, 237,
138 L. Ed. 2d 391, 423, 117 S. Ct. 1997, 2017 (1997)
(reaffirming rule that it is the prerogative of the Supreme Court
to overrule its own decisions). In view of the well-established
rule, pre-Crawford, that confrontation clause violations were
subject to harmless-error analysis, and the numerous
post-Crawford decisions applying harmless-error review to
Crawford violations, as well as the Supreme Court’s admonition
not to assume the implicit overruling of a Supreme Court
decision, we conclude that Crawford violations are subject to
harmless-error analysis.” Patterson, 217 Ill. 2d at 427-28.
Applying the rationale of Patterson, we hold that the confrontation
clause does not apply to the aggravation/mitigation phase of a capital
sentencing hearing. People v. Jackson, 182 Ill. 2d 30, 83 (1998). As we
stated earlier, the only requirement for the admissibility of evidence at
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this stage of a capital sentencing hearing is that the evidence be relevant
and reliable. People v. Caffey, 205 Ill. 2d 52, 125 (2001).
We further find that the trial court did not abuse its discretion in
admitting the complained-of hearsay evidence. First, the testimony of
Glenn Jackson, the chief records officer, detailed defendant’s prior
behavior in the Department of Corrections, which directly impacts
defendant’s potential for rehabilitation and his ability to adjust to a life
of incarceration. Traditionally, this type of evidence has been found
relevant and admissible. People v. Casillas, 195 Ill. 2d 461, 494 (2000);
People v. Terrell, 185 Ill. 2d 467, 506 (1998); People v. Ward, 154 Ill.
2d 272, 328-29 (1992).
The testimony from former Assistant State’s Attorney Barry Gross
was also properly admitted at the sentencing hearing. Gross testified that
he presented a now-deceased witness named Mark Carrington to the
grand jury in 1985, and then proceeded to read Carrington’s sworn
testimony to defendant’s sentencing jury. In that testimony before the
grand jury, Carrington described watching defendant shoot Alfred Evans
in the back. The testimony was also reliable, as it consisted of
Carrington’s signed handwritten statement and his sworn grand jury
testimony regarding a crime to which defendant pleaded guilty, and it
was relevant because it shed light for the jurors on not only the
circumstances surrounding defendant’s first conviction for murder, but
also his street gang affiliations.
8. Jury Instructions Regarding Consideration of
Mitigation Evidence
Defendant’s eighth point for review is that the trial court erred when
it instructed the jury that the defendant should be sentenced to death if
no mitigating factor was sufficient to preclude a death sentence, because
that prevented the jury from performing its constitutionally required task
of measuring the totality of the mitigation against the aggravation.
Defendant contends that the instructions informed the jury that it had to
consider each mitigating factor singly rather than aggregating the
mitigation factors in determining whether defendant should be sentenced
to death. Therefore he argues that the jurors were prevented from
reaching the decision that death was inappropriate because they had to
weigh each mitigating factor against all of the aggravation. Finally, he
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contends that a juror who believed that all of the mitigation outweighed
the aggravation could not conclude death was inappropriate unless that
juror also believed that there was one single mitigating factor that
outweighed all of the aggravation.
Defendant elected to be sentenced under the death penalty statute in
effect at the time of the crime on March 24, 2001, rather than the statute
in effect at the time of his trial in 2006. The instructions given by the
court, which defendant now argues are objectionable, are Illinois Pattern
Jury Instructions, Criminal, Nos. 7C.05 and 7C.06 (4th ed. 2000) (IPI
Criminal 4th), which instructions were promulgated for use under the
death penalty statute in effect at the time of the crime. Those instructions
were as follows:
“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 of natural life
imprisonment, and no person serving a sentence of natural life
imprisonment can be paroled or released, except through an
order by the Governor for executive clemency.” See IPI Criminal
4th No. 7C.05.
“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. 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.
Aggravating factors include:
First: The defendant has been convicted of murdering two or
more persons so long as the deaths were the result of an intent to
kill more than one person; or the murdered person, Rose
Newborn, was killed in the course of another felony if the
murdered person was actually killed by the defendant; and, in
performing the acts which caused the death of the murdered
person, the defendant acted with the intent to kill the murdered
person or with the knowledge that his acts created a strong
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probability of death or great bodily harm to the murdered person;
and, the other felony was one or more of the following: armed
robbery, aggravated kidnaping, or aggravated vehicular hijacking.
Second: Any other reason supported by the evidence why the
defendant should be sentenced to death.
Where there is evidence of an aggravating factor, the fact that
such aggravating factor is not a factor specifically listed in these
instructions does not preclude your consideration of the
evidence.
Mitigating factors include:
First: Any or all of the following if supported by the evidence:
The murder was committed while the defendant was under
the influence of an extreme mental or emotional disturbance,
although not such as to constitute a defense to the prosecution.
The defendant has expressed remorse for the crime.
The defendant has plead guilty on previous cases.
The defendant’s background includes a history of extreme
emotional or physical abuse.
Second: Any other reason supported by the evidence why the
defendant should not be sentenced to death.
Where there is evidence of a mitigating factor, the fact that
such mitigating factor is not a factor specifically listed in these
instructions does not preclude your consideration of the
evidence.
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.” See IPI Criminal 4th No. 7C.06.
Defendant argues that the jury should have been instructed that it
could sentence defendant to death only if there were no mitigating
factors sufficient to preclude imposition of a death sentence. In support
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of this argument he cites Mills v. Maryland, 486 U.S. 367, 100 L. Ed. 2d
384, 108 S. Ct. 1860 (1988). He states that in Mills the verdict form
could be interpreted to require jurors to disregard any mitigating factor
that all 12 jurors could not unanimously agree existed. This was
unconstitutional because “[i]f eleven jurors agree that there are six
mitigating circumstances, the result is that no mitigating circumstance is
found. Consequently, there is nothing to weigh against any aggravating
circumstance found and the judgment is death even though eleven jurors
think the death penalty wholly inappropriate.” Mills, 486 U.S. at 373-74,
100 L. Ed. 2d at 393, 108 S. Ct. at 1865. In such a case, the result is that
the jury “may not give mitigating evidence any effect whatsoever, and
must impose the sentence of death.” Mills, 486 U.S. at 375, 100 L. Ed.
2d at 394, 108 S. Ct. at 1865.
Defendant then goes on to analogize his case with the Mills case. He
asserts: “His jurors were instructed that they were to vote for death if no
‘mitigating factor’ was sufficient to preclude death. If all his jurors
believed that death was inappropriate because the entirety of his
mitigation precluded a death sentence, but none of them believed that any
single mitigating factor precluded a death sentence, they were required
to sentence him to death. The jury could not give [defendant’s]
mitigation ‘any effect whatsoever’ in those circumstances.”
In People v. Ramey, 152 Ill. 2d 41 (1992), defendant raised basically
the same contention as defendant in this case and cited the Mills case in
support of his argument. In rejecting this argument we said: “In Illinois,
unlike Maryland, the belief by one juror that any one mitigating factor
sufficient to preclude the death penalty exists is sufficient to do so. As
such, Illinois’ death penalty procedure clearly provides for meaningful
consideration of any and all mitigating factors.” People v. Ramey, 152 Ill.
2d at 77.
In examining a challenge to jury instructions, a reviewing court must
determine whether the instructions, taken as a whole, fairly, fully and
comprehensively apprised the jury of the relevant legal principles. People
v. Parker, 223 Ill. 2d 494, 501 (2006).
Here the jury was instructed under IPI Criminal 4th No. 7C.06 to
consider “all mitigating factors supported by the evidence,” that
“[m]itigating factors are reasons why the defendant should not be
sentenced to death” and that “[m]itigating factors include *** [a]ny other
reason supported by the evidence why the defendant should not be
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sentenced to death,” even if such reason or mitigating factor “is not one
of the specifically listed factors.”
It is clear from these instructions that defendant’s conclusion in his
hypothetical is not correct–the jury was not “required to sentence him to
death.” On the contrary, the instructions clearly state that if any one of
the jurors believed that death was inappropriate, based on all of the
mitigating evidence, that is, in itself, a “reason supported by the evidence
why the defendant should not be sentenced to death.” Accordingly, IPI
Criminal 4th No. 7C.06 then directs the jury to sign the verdict requiring
the court to impose a sentence other than death.
Furthermore, this court has upheld substantially the same language
of IPI Criminal 4th Nos. 7C.05 and 7C.06. See, e.g., People v. Simms,
192 Ill. 2d 348, 411-15 (2000); People v. Emerson, 189 Ill. 2d 436, 503-
05 (2000); Bannister, 232 Ill. 2d at 81-82.
In Boyde v Calfornia, 494 U.S. 370, 108 L. Ed. 2d 316, 110 S. Ct.
1190 (1990), the Supreme Court held that the proper legal standard for
reviewing a claim that an instruction was ambiguous and therefore
subject to erroneous interpretation was whether there was a reasonable
likelihood that the jury has applied the challenged instruction in a way
that prevents the consideration of constitutionally relevant evidence.
Boyde v. California, 494 U.S. at 380, 108 L. Ed. 2d at 329, 110 S. Ct.
at 1198. The Supreme Court further said, “Jurors do not sit in solitary
isolation booths parsing instructions for subtle shades of meaning in the
same way that lawyers might.” Boyde v. California, 494 U.S. at 380-81,
108 L. Ed. 2d at 329, 110 S. Ct. at 1198. Accord People v. Bannister,
232 Ill. 2d at 81 (correctness of instructions “depends not on whether
defense counsel can imagine a problematic meaning, but whether
ordinary persons acting as jurors would fail to understand them”).
The Supreme Court noted in Middleton v. McNeil, 541 U.S, 433,
158 L. Ed. 2d 701, 124 S. Ct. 1830 (2004), that “[n]othing in Boyde
precludes a state court from assuming that counsel’s arguments clarified
an ambiguous jury charge.” Middleton v. McNeil, 541 U.S. at 438, 158
L. Ed. 2d at 708, 124 S. Ct. at 1833. Here, in closing argument, defense
counsel apprised the jury, without objection:
“[The prosecutor] talked about mitigation and aggravation. This
is not a balancing test in the sense that you put things on a scale.
We don’t have to prove mitigation outweighs aggravation. You’ll
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get the instructions. All we have to do is show you there is a
mitigating factor or factors which are sufficient to preclude
death.”
Defense counsel later reiterated:
“Remember this is not a balancing test. We don’t have to prove
mitigating factors outweigh aggravating factors; just that there is
a single mitigating factor or factors, just one sufficient to
preclude that.”
The instructions directed the jurors to examine all the mitigating
evidence offered by defendant during the hearing in deciding whether
there was sufficient mitigation to preclude the imposition of a death
sentence. Defense counsel properly argued that the mitigating factors
did not have to outweigh the aggravating factors “just that there is a
single mitigating factor *** just one” to preclude death. Construing the
instructions as a whole, and the record before us, we find that the trial
court properly instructed the jury regarding consideration of the
mitigation evidence. We further find that there is not a reasonable
likelihood that the jurors understood the challenged instructions to
preclude proper consideration of all the relevant mitigating evidence and
we conclude that the jury understood and properly followed the
applicable law in reaching its verdict.
Defendant also tendered a verdict form to the court stating that he
could be sentenced to death only if “no mitigating factor or factors”
precluded a death sentence and it was rejected by the court. The decision
to give a non-IPI rests within the sound discretion of the trial court.
Caffey, 205 Ill. 2d at 127. Here, the court did not abuse its discretion by
refusing to give defendant’s proposed verdict form and instead give the
verdict forms from IPI Criminal 4th Nos. 7C.08 and 7C.09A, which
properly stated the law.
9. The State’s Remarks at the Sentencing Hearing
Defendant’s ninth point for review is that the State improperly argued
that defendant should be sentenced to death because he would kill
someone if he received life in prison, that the jury should weigh the
aggravation against the mitigation and that defendant displayed no
remorse for the murder. The State conceded that defendant had said he
was sorry, but commented that he “was sorry he was sitting in jail
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awaiting his trial.” The State then argued, “He didn’t show any remorse,”
and “he shows no remorse.” Defendant argues that the State cannot
argue that a defendant has shown no remorse when he has. People v.
Gosier, 145 Ill. 2d 127, 153-54 (1991). Defendant argues that he told the
assistant State’s Attorney from felony review that he was sorry, that he
wanted to do the right thing, and that he would change places with Rose
Newburn if it were possible. That was remorse.
The State contends that in Gosier this court did not set forth a rule
of law regarding commentary on a defendant’s lack of remorse, as
defendant seems to imply in his brief. Rather, the issue in Gosier was
whether the prosecutor had made a blatantly untrue statement when he
argued that the defendant “had shed no tears for what he had done”
considering the fact that the defendant had broken down in tears several
times before the jury, and the detective in the case had testified that the
defendant had cried during their interview. Gosier, 145 Ill. 2d at 153-54.
Here, there was no such incorrect statement of fact. The prosecutor
conceded during his remarks that defendant had said that he was sorry,
but argued that the apology alone was not enough to show genuine
remorse, thereby distinguishing this case from Gosier. Further, this court
has consistently held that “ ‘ “a convicted defendant’s remorse or the
absence of it is a proper subject for consideration at sentencing.” ’ ”
Bannister, 232 Ill. 2d at 91, quoting People v. Burgess, 176 Ill. 2d 289,
317 (1997), quoting Barrow, 133 Ill. 2d at 281.
Defendant also asserts that the prosecutor improperly argued that
defendant should be sentenced to death because he would kill someone
if he were to receive life in prison. This court has held “[t]he fact that a
defendant is parole-ineligible does not prevent the State from arguing
that the defendant poses a future danger, as the State may reasonably
argue that defendant will pose a danger to others in prison and that
executing him is the only means of eliminating the threat to the safety of
other inmates or prison staff.” People v. Mertz, 218 Ill. 2d 1, 56 (2005).
In People v. Hudson, 157 Ill. 2d 401, 457 (1993), this court found
that the prosecutor’s statement that the defendant “will kill again if he is
given the chance” was proper because it was supported by the evidence
and based upon testimony regarding prior misconduct. Defendant argues
that “the State presented no evidence that [defendant] threatened to kill
anyone.” We agree with the State that there was testimony, however,
that defendant sexually assaulted a young girl while holding an ice pick
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to her friend’s throat, that he had an actual prior murder in his
background, and that he had threatened violent behavior in prison,
including possession of a weapon.
Finally, defendant contends that the State improperly argued that
death was mandatory if the mitigation did not outweigh the aggravation.
Under the Illinois death penalty statute as it existed at the time of the
crime, the defendant had to show that there is mitigation “sufficient to
preclude imposition of the death penalty.” People v. Olinger, 112 Ill. 2d
324, 351 (1986).
Defendant’s argument fails, however, because the prosecutor’s
argument was essentially a correct statement of the law. As he noted, the
law under which defendant elected to be sentenced did state that “[i]f 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). In stating that
all the jurors had to find was that the “aggravation outweighs the
mitigation,” the prosecutor was simply rephrasing the standard, to
explain that all the jurors had to decide was that the mitigation offered
was not justification to preclude the death penalty.
Here, the remarks in question did not substantially prejudice
defendant, particularly since there was an overwhelming amount of
evidence offered in aggravation, including testimony regarding
defendant’s 133 disciplinary infractions in the Department of Corrections,
his prior murder conviction, and his prior sexual assault.
10. Inquiry Into Defendant’s Claim of Trial Lawyers’
Ineffectiveness
Defendant’s tenth point for review is that the trial court failed to
adequately inquire into defendant’s statements that his trial lawyers were
ineffective. After denying counsel’s motions for a new trial and new
sentencing hearing, the court asked defendant if he had anything to say.
Defendant said that his attorneys were ineffective for failing to call a law
enforcement officer who would have testified on his behalf during the
trial and that counsel had selected a biased juror. Asked by the court to
comment, defense counsel stated, “We did everything in our power we
thought to defend him in this case.” The court asked, “Including the
examination of any possible witnesses or any possible other avenues that
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could be presented on his behalf?” Counsel replied that he had.
Defendant argues that when a defendant asserts that his trial counsel
had been ineffective, he may be entitled to different counsel to investigate
those claims. People v. Johnson, 159 Ill. 2d 97, 124 (1994). The trial
court must conduct an adequate inquiry into allegations of ineffective
assistance of counsel, that is, inquiry sufficient to determine the factual
basis of the claim. Johnson, 159 Ill. 2d at124; People v. James, 362 Ill.
App. 3d 250, 256 (2005). Here, defendant contends the trial court did
not inquire into the factual basis of his claims. The court merely asked
counsel whether he believed that the defense had been diligent. He
asserts that this court should remand the cause for the appointment of
new counsel to investigate defendant’s claims that his trial attorneys were
ineffective, citing People v. Krankel, 102 Ill. 2d 181, 189 (1984).
The State contends the trial court adequately inquired into
defendant’s claim that his counsel was ineffective and it was not required
to appoint new counsel. Defendant’s ineffectiveness claims were twofold:
(1) that defense counsel had failed to call “a law enforcement officer that
could have testified in [his] trial,” and (2) that counsel had seated a juror
whom he did not want.
The State concedes that this court has held that in some
circumstances, new counsel should be appointed to investigate a
defendant’s claims of ineffectiveness by his trial attorneys. See People v.
Krankel, 102 Ill. 2d 181 (1984). The law is clear, however, that new
counsel is not required in every case, and that the operative concern for
a reviewing court is whether the trial court conducted an adequate
inquiry into the pro se defendant’s claim of ineffective assistance.
Johnson, 159 Ill. 2d at 125. Where the claim lacks merit or pertains to
matters of trial strategy, no counsel should be appointed. People v.
Crane, 145 Ill. 2d 520, 533 (1991).
In this case, the trial court conducted an adequate inquiry and thus
rightfully declined to appoint counsel for defendant. Defendant claims
that the trial court’s entire inquiry into his complaint regarding the
witness consisted of the court asking defense counsel whether he
examined “any possible witnesses or any possible other avenues that
could be presented on his behalf,” but this statement fails to take into
account that the trial court had been presented with the exact same
complaint regarding defendant’s trial counsel twice previously. On May
16, 2005, prior to commencement of the trial, defense counsel informed
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the court that his client wanted to talk to the court about the same
witness. Counsel explained to the court that he talked to his client about
it at length and that counsel did not believe the witness should be called.
On the next court date, the issue was addressed again by the court via
a motion to withdraw filed by defense counsel. Counsel explained to the
court that defendant’s family had located a potential witness, specifically,
a state trooper who had stopped defendant on two occasions, but that
counsel did not want to call the trooper as a witness, and that he
considered the potential testimony aggravation. The trial court talked to
defendant regarding the witness and explained to him that he had “four
competent attorneys” and told defendant that he needed to realize that
they were not calling the witness because “in their expert opinion, it
would do more harm than good.”
These two exchanges between defendant and the court explain why
the trial court’s inquiry on September 19, 2006, did not need to be
lengthy. The court was already familiar with the substance of defendant’s
complaint regarding his counsel since it was presented on the two prior
occasions. As such, the inquiry conducted by the trial court was sufficient
to satisfy the requirement set forth in Johnson. It is well established that
decisions concerning whether to call certain witnesses for the defense are
matters of trial strategy left to the discretion of trial counsel. People v.
Enis, 194 Ill. 2d 361, 378 (2000).
Defendant’s other complaint revolved around counsel’s decision to
seat a juror whom defendant believed to be biased. The law is equally
clear that defense counsel’s conduct during voir dire involves matters of
trial strategy that generally are not subject to scrutiny under Strickland
v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
See also People v. Metcalfe, 202 Ill. 2d 544, 561-62 (2002). Here, both
of defendant’s complaints fell under the parameters of trial strategy and
therefore the trial court did not err in choosing not to appoint counsel.
11. Death Penalty Statute
Defendant’s eleventh point for review is that the Illinois death penalty
statute violates due process under Apprendi v. New Jersey, 530 U.S.
466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), because the State is not
required to prove beyond a reasonable doubt that aggravating factors
outweigh the mitigating factors. Defendant notes that he chose to be
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sentenced under the old statutory scheme in effect at the time of the
crime, which required the jury to sentence him to death if it found no
mitigation sufficient to preclude a death sentence. 720 ILCS 5/9–1(g)
(West 2000). He argues that this court’s rejection of an Apprendi
challenge to the constitutionality of our death penalty statute should be
reconsidered.
The State contends that the Illinois death penalty statute does not
violate the principles announced in Apprendi 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. We agree. This court has repeatedly rejected
defendant’s argument. See, e.g., Bannister, 232 Ill. 2d 52; Harris, 225
Ill. 2d at 50; People v. Thompson, 222 Ill. 2d 1, 52-54 (2006); Mertz,
218 Ill. 2d at 93-94; People v. Ballard, 206 Ill. 2d 151 (2002); People v.
Davis, 205 Ill. 2d 349 (2002). We decline to reconsider these decisions.
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, September 14, 2010, 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
2008). 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.
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