People v. Bean

question asked him an investigating officer. close, evidence in this is

Although case we very it conclude that is sufficient to con- defendant’s support viction. question of the guilt or inno- cence turns upon weight and which should credibility be given the State’s witnesses. Such evidentiary determi- nations are not for Instead, this court to make. it jury’s resolve responsibility “to factual assess disputes, of the credibility witnesses, and determine the weight and of the evidence.” sufficiency (People v. Yates Ill. 2d 518.) must, as we Assuming, believed the State’s over witnesses those we defendant, conclude that the evidence was sufficient support convictions. We therefore must remand cause to trial court for retrial. For the reasons, foregoing the defendant’s convic- tions are reversed and the cause is remanded to the cir- cuit court of McLean County for a new trial in accord- ance with this opinion.

Reversed remanded. JUSTICE MILLER took no in the part consideration or decision of this case.

(No. 65062 . THE ILLINOIS, PEOPLE OF THE STATE Appellee, OF . BEAN, HAROLD Appellant.

v Opinion April 18, Rehearing filed 1990. October denied 1990.

CLARK, J., dissenting. (cid:127) Schiedel, Defender, Charles M. Deputy Springfield, Hoffman, and Charles Defender, W. Assistant of Chi- both of cago, of the Defender, Office State Appellate for appellant.

Neil F. Hartigan, General, Attorney Springfield (Robert Ruiz, J. General, Solicitor Terence and M.

Madsen and P. Pistorius, William Assistant Attorneys General, of Chicago, counsel), for the People.

JUSTICE STAMOS delivered the of the opinion court:

Defendant, Bean, Harold was of the mur- convicted 1979, 38, der of ch. (Ill. Polulach Rev. Stat. Dorothy par. trial in court of 1(a)) the circuit Cook following jury

9— motion, On the a death County. hearing State’s penalty held; the had at- was same found the time tained the of 18 or more at of the age years two fac- that, aggravating murder while statutory existed, factors sufficient to tors no existed mitigating (Ill. Rev. death preclude imposition penalty 1979, (g)). court 38, 1(b)(5), (b)(6), Stat. ch. pars. 9— to death on the murder convic then sentenced defendant of armed robbery tion. The also convicted defendant he 38, 1979, 2), Stat. ch. which (Ill. par. Rev. 18— solicita to 30 years’ imprisonment, sentenced 1979, 38, pars. Rev. ch. (Ill. tion and Stat. conspiracy convic with murder 2(a)), merged which 1(a), 8— 8— direct pending execution was stayed tion. Defendant’s VI, §4(b); art. (Ill. to this court. Const. appeal Ill. Rules We affirm. 609(a).) 2d

FACTS in the murder of Dorothy Defendant’s involvement he talked with in December when began Polulach father, for Ann’s after the wake Wayne Ann and Walters mother suicide. Ann’s father and who had committed Po- her father had then married divorced, had and been Ann December lulach. this conversation in During fact and hated the how she hated Polulach talked about the her had built own house father Polulach would Ann and her hus- mother, for her who was with living of time, At to the band, testimony this Wayne. according Walters, to “off defendant offered Wayne gratuitously Polulach, kill in return for “mon- bitch,” the to meaning Over next year intermittently the defendant etary gain.” this Polulach with the Walterses. killing discussed idea did not have the they When the Walterses explained $2,500 advance, asked for in defendant that defendant from a and neighbor, borrow the suggested they money fee for so; killing, the the they did rest later, $23,000, to after agreed paid to be about was be Ann the Polulach’s will was favored probated. While idea, his wife defend- had to Wayne persuaded by ant to accede. the it out

Defendant and carried planned killing their in Flor- the were at home while Walterses Chicago guns. ida. Defendant obtained a cassock and two priest’s 17, 1981, On after an February setting up appointment Polulach, with he and an to her house went accomplice while another waited in a car. After ad- accomplice being Polulach, defendant, dressed as a mitted to house by and feet and dragged handcuffed her hands priest, kicked' of stairs while she flight woman 80-year-old up fire, defendant sent did gun and screamed. When the second get gun; back to their car his accomplice in the back of then shot Polulach twice defendant finding but After house valuables searching head. took, and his defendant some which jewelry, they

only left. accomplice for money looking then went to Florida

Defendant there, Walterses, little. While very but got from Polulach. he had killed how defendant told Walterses Chicago to the confessed Later, Walterses April, heard in the When defendant killing. their police part his girlfriend, this, he, one of his accomplices, Illinois, only car out of fled Youngbrandt, Deborah truck in a stolen pickup return to few Chicago days arrested for a traf- who had been minus the accomplice, to Chi- After returned they fic violation in Nebraska. from defendant managed escape

cago, Youngbrandt and testified she only considered herself (she kidnapped, Defendant during journey). learned of the killing later and arrested police. found were and one of his accomplices Originally, offenses, and defend- murder and other tried for jointly death; this court to but ant was convicted and sentenced that the trial, for new holding reversed and remanded a defend- grant refused to trial court original erroneously v. Bean (People ant’s for severance. motion and death Defendant’s conviction 80, 84.) pending Ill. 2d from a second trial. sentence resulted

ANALYSIS consideration, and 19 issues for Defendant presents for reverse and remand he that either we should argues his sentence and trial, or we vacate death a new should of or hearing imposition a new death penalty remand for also seeks re- death; other than a sentence on his armed rob- sentencing hearing mand for a new as: can be arranged conviction. Defendant’s issues bery dire; to the trial court’s conduct voir a (1) challenge this court of the trial court and (2) challenges rulings mental of witness’ that denied defendant discovery admissibility to the of evi- records; (3) challenges health court’s conduct of dence; challenges to the trial (4) claims of ineffective hearing; (5) trial and death penalty counsel; (6) challenges appropriate- assistance of (7) of death and and imprisonment; ness of his sentences death to the the Illinois challenges constitutionality statute. penalty Absence a Portion Voir Dire

Defendant’s from his for reversal of convic- argument Defendant’s first during a new trial is that the indi- tions and remand for members, each was voir dire of five venire vidual for further ques- back into the chambers brought judge’s from which defendant himself was tioning, questioning in each instance. Defendant that his ab- argues absent from these in camera voir dire sessions deprived sence entire se- during him of right his and lection secured Illinois United process, is not clear as States Constitutions. Because defendant to what Illinois United provisions particular he is States Constitutions we relying upon, analyze claim we find most using provisions appropriate of his section 8 of most the success claim: promising I the fourteenth article of the Illinois Constitution and amendment to the United States (Ill. Constitution Const. I, §8; art. Const., U.S. XIV). amend. we note

Initially, there were six venire actually members the trial questioned by chambers, in his judge defendant’s although refers to five argument venire only members. These discussions were initiated the trial' individual voir dire of each of the six judge during venire when three members of them said that had they murder, read or heard when about two of publicity them had their views on the death difficulty expressing and when one of them said that his ser- previous penalty, in trial him to not vices as a a murder cause juror might time, fair and in this trial. Each impartial open trial in- judge court and in defendant’s presence, come to his cham- structed the venire member to back discussions, Also these in-chambers be- attending bers. member, and each venire were judge

sides trial the two assistant attorneys, prosecuting two General, and a court who transcribed reporter Attorneys the discussions.

Defendant’s is divided into a broader argument argu- ment and a more his broader argument; argu- specific from the in cam- ment is that as a of his result absence era voir dire he was of his to be deprived present at all of trial at which his was stages presence necessary, argument whereas defendant’s more is that he specific from the his only prejudiced by absence actually camera voir dire of one venire member, venire member B***. In both levels of this we addressing argument six (1) make two observations: none of these venire defendant, members served on the which convicted if defendant had he could have in- (2) been fluenced B*** served on whether venire member only because, members, This the six four venire jury. were for cause the trial and one was a judge, excused alternate but all of the alternate potential juror jurors reached. (Further negating chosen before she was were to this al- relating potential to defendant any prejudice jurors excusal of alternate ternate juror was Thus, deliberated.) case before on his rests actual argument prejudice necessarily from camera voir dire of venire member the in absence ***, chal- 6 whom defendant's attorney peremptorily lenged. is that of the of review on this issue

Our standard not raise is- doctrine, error for defendant did plain post-trial or in his objection sue either a trial through 16-17; 7, (1978), v. 73 Ill. 2d 107 (People Precup motion. A when a only Ill. 2d R. error occurs 615(a).) plain is a substantial and thus is right, defendant of deprived made trial, of a or when an error is in a fair deprived v. Carlson (People case with balanced evidence. closely 564, 576-77.) 79 Ill. The evidence defend- 2d (1980), the State balanced, ant’s trial was not for closely pre- a sented more than sufficient evidence to convic- support and chose not a defense. tion defendant to present Therefore, if of a substan- deprived only voir to recognize tial could we in camera dire right error. plain be a has a

Undeniably, general right criminal defendant stage trial, including to his present every be at 337, (1970), 338, v. 25 (Illinois selection. Allen 397 U.S. 353, 356, 1057, 1058; People L. Ed. 2d 90 S. Ct. v. 414, (1955), 6 Ill. 2d This court 416.) Smith Court, however, States have limited the United Supreme denial of right pres- situations which the this broad ence a of the Illinois and United constitutes violation examine first States Constitutions. We this issue ap- law, Illinois constitutional then Fed- by applying plying eral constitutional law. “right

In we have declared that broad past a right is not itself substantial under present trial” (1985), Martine People v. (See the Illinois Constitution. it a lesser the ob Instead, right is 429, 439.)

106 Ill. 2d is a means to substantial securing of which servance is not denied a a defendant a defendant. Thus rights during not present time he is right constitutional every in a denial of his results trial, when absence only but words, a consti in other right, an substantial underlying er a case that plain and it is such right; only tutional Ill. at 439-40 Martine, 106 2d ror committed. (See v. People offer of proof); an (defendant during absent absent (defendant Ill. 2d 493-94 Kubat (1983), v. Devin conference); People instructions during later sentenced (defendant, Ill. 2d 333-34 (1982), 93 scene); of crime Peo view death, during jury’s absent absent (defendant 56 Ill. v. Pierce 2d ple an considered how to trial judge attorneys when witnesses).) of two swer jury’s request testimony to con are the rights right Some of these substantial defense, and the witnesses, front case, the right In the present to an right impartial jury. right possibly the only

to an is substantial impartial jury denied defendant. because, al- error occurred conclude that no plain

We improp- of presence defendant’s broad though right of have affected the impartiality denied and could erly voir from the in camera defendant’s absence the jury, the im- effect on not, fact, have the slightest dire did Indeed, even defendant selected. jury of partiality Instead, claim that his was not impartial. does not of right presence the broad his is based argument upon he might that if he had been present and the possibility mem- venire challenge not to peremptorily have decided Yet the a B***, juror. who then have become might ber to an right impar- a merely grants Illinois Constitution challenge does not thus, tial because jury; him, the pos- convicted of the 12 who jurors impartiality 82 this one would have become venire member

sibüity is of no juror consequence. cases citing Defendant tries to his support position by absolute, of right he believes established an inflexible Illinois; each of trial but these presence throughout one fact: The defendants limiting cases shares significant v. Davis People testified. were absent when witnesses Ill. 2d 325 from entire (1968), (defendant 39 absent v. Mallett People 136 trial); (1964), (defendant 30 Ill. 2d to the absent when witness testified of busi- burglary ness, re-entered courtroom he was and when defendant told the re- complete testimony testimony before v. Smith People Ill. 414 sumed); (defendant 2d (1955), of his defense and when during absent own presentation verdict of and sentence were guilty entered).

Therefore, to an un- right defendant’s impartial der Illinois no plain Constitution was preserved, error on these occurred. Now we consider grounds under the United States right presence Constitution. Constitution,

Under the United States criminal also to be general right defendants have trials; Federal though, right their significantly, is arises right not an constitutional but presence express fourteenth from the due clause of the amend- process v. Stincer (Kentucky 730, 745, (1987), ment. 482 U.S. United States 631, 647, 2658, 2667;

L. 2d 107 S. Ct. Ed. v. Gagnon 526, 486, 522, 84 L. Ed. 2d U.S. v. Massachusetts Snyder 1482, 1484; 105 S. Ct. 97, 105-06, U.S. 78 L. Ed. 54 S. (1934), 291 it 330, 332.) Ct. Because the due originates process clause, absolute, not an the Federal presence instead, inviolable its is contained within the right; scope (Snyder, 105-08, 116, 291 at of due U.S. scope process. 678-79, 683-84, 332-33, 336; 78 L. Ed. at 54 S. at see Ct. Gagnon, 526, 490, 470 at 84 L. 105 U.S. Ed. 2d at S. Ct.

83 at 1484 (citing Snyder Stevens, J., and quoting favorably in Rushen in the v. Spain concurring judgment, 114, 125-26, 464 267, 277, U.S. 78 L. Ed. 2d 104 Ct. S.

453, an ex of parte (“ mere occurrence con- ‘[T]he a a not con- juror versation between trial does judge stitute a of constitutional The de- any deprivation right. at every

fense has no to be present constitutional Thus, a and a as juror’ ”)).) interaction between judge a of his trial long portion as a defendant’s from absence him violation does not of due there is no deprive process, aof due of process right presence defendant’s derivative under the States Constitution. United of has the concept

The further explained Court fair and due in this is the of a equivalent context process the due just trial; consequently, process right presence a in his is when absence results violated only fair “So the Four a trial. far as just denied being a concerned, teenth Amendment is presence extent of due to the process is condition his ab just hearing a fair and would be thwarted Snyder, at sence, and to that extent U.S. only.” (See 107-08, Ed. at at To 333.) phrase 78 L. 54 S. Ct. rule another “a defendant way, guaranteed at of the criminal

right to any stage proceed if his ing that is critical to outcome would presence its (Stincer, to the the procedure” fairness of contribute at 2d at 107 S. Ct. 482 U.S. L. Ed. de means that in a case it must be

2667). particular This if in an unfair termined a defendant’s absence resulted resulted, If it not that an unfair trial trial. does appear violated; the defendant’s were not rights constitutional if a cir is true even defendant’s absence similar to be usually cumstances is considered improper. does

Court has warned that the fourteenth amendment presence when privilege presence “assure[ ] (Snyder, useless, or the benefit but shadow.” would be 84 106-07, 678,

291 at 54 at 332.) U.S. at 78 L. Ed. S. Ct. have shadow” Whether benefit would been “but a because the fairness of the trial was not affected by defendant’s absence from a of his trial “must be portion Snyder, determined in the of the whole record.” light 683, 336; 115, 291 U.S. at 78 L. Ed. at 54 S. Ct. at see Gagnon, 490-91, 470 U.S. at 84 L. Ed. 2d at 105 S. Ct. at 1484-85.

Defendant that his of is recognizes right presence limited to those situations when his is neces- presence trial, words, to a fair in other a critical sary stage trial. selection is a critical of trial. Defendant Jury stage that his at this critical argues right present stage moment of the selection encompasses every process, jury and thus the fairness of his trial was his impaired ab- sence from the in camera voir dire. we that criminal defendants

Although agree generally right throughout have to be selection jury and that the exclusion of a defendant process, usually trial, from selection will result in an unfair dis- jury we in this agree with assertion case the fairness of trial Defendant’s impaired. was argument based on broad and is not to the principles adapted spe- cifics this case. Here defendant from a was absent selection, and so the fairness portion issue case concerns of defendant’s impartiality jury. (See Rushen, 118-21, 464 273-75, U.S. at 78 L. Ed. 2d at ex parte S. Ct. 455-57 conversations with (juror’s judge about fact that a defense had witness been convicted of murdering juror’s childhood friend were harmless error juror because testified at hear- post-trial ing that she was impartial, judge juror did not Howard v. Kentucky discuss facts or of case); law U.S. 50 L. Ed. 26 S. Ct. 189 (defendant not of due deprived an ac- process by judge’s excusing but after cepted unsworn him juror questioning about and defendant’s in the absence of defendant impartiality a constitutional for defendant had attorney, merely an and did contend be tried by impartial The issue is: Did replacement juror prejudiced).) dire cause from the in camera voir defendant’s absence and sentenced tried, convicted, by jury prej- him to be if ordered only A trial will be udiced him? new against is yes. answer no. Defendant was with a question answer We from the his absence tried an impartial jury despite does in voir dire. As we said earlier, defendant camera rather, his defendant jury; of impartiality not dispute times to at all an be right present claims he had absolute not have allowed might he that for his absence but venire member challenge to attorney peremptorily in interviewed who was one B***, juror potential al We have judge. excused the trial and not chambers right pres is no that there absolute ready explained cites in defendant address the cases ence, and will later he have might if present As to his claim support. a juror, member B*** as that he wanted venire

decided violation, a due establishing process it falls short of served not assert who juror defendant does B*** was prejudiced. of venire member place Illinois Constitu Constitution, as does the United States not a jury, jury a defendant an tion, impartial guarantees at 173-74, at 50 L. Ed. (Howard, 200 U.S. of his choice. due

425, 191.) process rights 22 Ct. at Defendant’s S. from a his absence as result of were also not violated members; dire of the other five venire in camera voir the trial so judge, excused for cause by four were or not they could not have influenced whether defendant al fifth, a potential and as to the jurors, would become the alternate reached, ju never ternate who was juror arguments trial excused after closing rors in his were (see Gagnon, trial of the the guilt-innocence phase 490, (if Ed. 2d at 105 S. Ct. at 1485 527, at 84 L. U.S. in camera discussion present defendant had been concerned about a among judge, juror could defendant him, attorney, and defendant’s sketching remain to affect whether would juror have done nothing jury)). on had a constitutional

Defendant’s that he argument selec- moment right presence during every v. Hopt cases, relies on two Court Supreme tion process Utah Ct. 28 L. Ed. S. 110 U.S. (1884), and Lewis v. United States 370, 36 L. 146 U.S. in Hopt 1011, 13 S. 136. Defendant believes Ed. Ct. and Lewis the Court a consti- held that a defendant has the entire selec- during tutional right from denies portion and that exclusion any tion process, of his a fair trial and reversal requires rationale for this pres- conviction. The absolute see and hear every ence is that a defendant is entitled to can decide he, attorney, so that not his venire member on his own challenge unique based peremptorily whom reactions on and subjective perspective and highly rationale, In defend- member. of this support each venire of dicta Hopt concerning ant quotes passage his de- a defendant contribute own may special insight Hopt fense; the fact disregards but defendant of the criminal code of provisions Court was analyzing Utah, ignores import of and defendant Territory enti- “The prisoner of the first of that part quotation: not dis- an composed, persons tled to impartial jury (Hopt, 110 U.S. at 28 L. statute, ***.” qualified of that 204.) quota- at The import Ed. at S. Ct. is that a extent the entire tion, opinion, and to a lesser to ensure em- is needed presence personal not a of defendant’s jury, jury of an impartial panelment as well as his active assist- choice, for his presence anee he venire members’ may preju- of his counsel reveal dices. nor held that there

Furthermore, neither Lewis Hopt se throughout to be right present is a constitutional the Utah criminal The facts in were Hopt lection. trials defendants must be that in all felony

code provided the par a at which trial, hearing including at the present “tried”; the Court are for actual bias ties’ challenges ex who had been attorney, and his that defendant held to attend right had a hearing, from such a cluded challenge any to elicit facts supporting in order hearing L. Ed. at 576-78, 28 110 U.S. at (Hopt, for actual bias. Thus, Hopt the Court held 203-04.) Ct. at

263-65, 4 S. his liberty, been deprived that defendant had of law due life, process without would be deprived of trial at which a stage his exclusion from as a result of presence. a defendant’s code required the criminal clause of process the due did not hold Court present. be right created fourteenth amendment 265, 4 S. Ct. at at L. Ed. 110 U.S. (Hopt, an unusual Lewis, In the Court reviewed 204-05.) the State and gave The trial court procedure: selection them to use and required defendant a list of venire first seeing without challenges their peremptory dire; of to voir or them submit having venire members the first 12 were members, venire unchallenged this procedure The Court disapproved as jurors. sworn criminal defendants gives that the common law and held to face and as a face to meet venire members the right so that challenges, exercising peremptory before group did not them. The Court choose among defendants can of pres such a right created hold that the Constitution meet the did case defendant ence. in the (And present demands.) Our face, as Lewis face to venire members not rec and Lewis did Hopt that the Court conclusion has been constitutional ognize at Allen, itself. 397 U.S. reached thrice Court by 291 358, 1060; 25 L. at S. Ct. at 342, Snyder, Ed. 2d 90 n.2, L. 684 54 at 336 n.2, at 117 Ed. at S. Ct. U.S. 458-59, n.2; 442, 223 U.S. (1912), Diaz v. United States 250, Ed. 32 S. 255. 56 L. Ct. a case by

Defendant also cites as decided support reversing burglary Idaho Court defendant’s Supreme defend- trial because the ordering conviction and new (State v. Carver during ant was selection. jury absent In 676.) clear contrast Idaho 496 P.2d case, is fact that though, with present from the entire se- was defendant Carver absent had into the exercise of pe- lection no process input Given this factual differ- challenges. significant remptory that the fundamental nature ence, we are not persuaded the Carver court of the of right presence recognized warrants a trial this case. new of defendant’s agree exposition we with

Although selec- throughout he have been present should why not an abso- tion, argument defendant’s does establish to the lute, of which if right presence, applied inviolable though trial require case would a new even present dire could the in camera voir presence affected the excusal of four venire judge’s not have members, has not shown and even though on juror serving his resulted in a absence prejudiced due process Yet we hold that defendant’s jury. while case, in this we note violated right presence voir camera dire without procedure defendant’s express and without defendant’s presence cases, and, in will some right improper waiver in the fundamen- result denial of a defendant’s inevitably jury. tal to a fair trial an rights impartial hold to be conclude, To we that defendant’s him the facts at his trial was not denied because present he ei- case are was not denied such the Illinois Constitution ther under rights his substantial the fourteenth rights guaranteed or his due process Constitution; defendant amendment of the United States convicted, and sen- tried, fair trial and was enjoyed an impartial jury. tenced by Health Records Mental Witness’

Discovery of amendment rights asserts that his sixth Defendant him against witnesses and to cross-examine confront not give trial court did violated because were of an health records to all of the mental access counsel witness, Youngbrandt. Deborah State important at defend- for the State both testified Youngbrandt similar both. her was trials, testimony ant’s and time of at the girlfriend was defendant’s Youngbrandt In April follows. early testified as the murder and he admitted that who defendant, Danny Egan, and she, murder, drove her car and from the "to drove defendant heard that the Walterses after defendant out of Illinois Defendant told her initially to the police. had confessed the Illinois-Mis- let out of the car at that she would be not, instead with border, staying she was souri but he through a week as drove defendant approximately where Chicago, then of States and returned number arrested in this During journey Egan she escaped. defendant stole a violation, for a traffic and

Nebraska then truck and aban- and a plates pickup set of license during car. Most Youngbrandt’s importantly, doned in detail Youngbrandt described journey an woman as a elderly by dressing he murdered how had fire, the first did gun the fact that not including priest, he stated that disgust Youngbrandt expressed and when woman; defendant also tortured the said he had not have “business,” and there should not the murder was risk involved but he had expected been any further testified that to confess. Youngbrandt Walterses her her recover had helped office Attorney’s the State’s her rent and had given find a new apartment car and money. an order moved for counsel trial, defense

Before as a generated records all psychiatric the State disclose on hospitalization voluntary of Youngbrandt’s result 1986 for and March June 1981 between seven occasions chronic alcoholism. with depression problems exami- psychiatric also a court-ordered sought Defendant The court hearing. a fitness Youngbrandt nation of all of subpoenaed but it last two requests, denied the re- The trial judge health records. mental Youngbrandt’s camera, disclosing any without records viewed these or the prosecution. counsel records to defense camera held two in at which hearings then judge were present. and the prosecutors defense counsel both he had re- that hearings, explained At these judge information that would for looking the records viewed and as a witness competence on Youngbrandt’s bear He orally her credibility. impeach would be relevant relevant and also he found certain information disclosed com- six pages of records. These disclosed six pages hospitalizations for two summaries discharge prised revealing 1981 she had used and marijuana prescribed been lith- ium, alcoholic, an and had taken was Valium to to try wean off herself alcohol. But Youngbrandt also stated that in she April 1981 had drunk or excessively Further, taken she Valium. testified that at the time of the trial she not using medication. Defense any counsel also asked other questions try discredit her as a witness. Yet reliability defense counsel did notably 92 or hospitalizations; about her Youngbrandt many

not ask that she re- in 1981 to a therapist her statement about included in the disclosed defendant, which was sented in rec- indications the disclosed records; or about other stress and great that entire incident created ords her life. disrupted to con right that argues granting

Defendant the sixth amendment front and cross-examine witnesses defendants, or at least Const., amend. (U.S. VI) grants the mental through their to read right attorneys, that recognizes Defendant health records witnesses. confidential, privileged, Illinois mental health records are proceeding in any judicial and not to disclosure subject 1979, 91½, 803), argues ch. but (Ill. par. Rev. Stat. are over paramount sixth amendment rights Defendant rests his ar rights.

Youngbrandt’s statutory of Davis v. Alaska (1974), on the gument authority 347, 1105, our affirm 308, 39 L. Ed. 2d 94 S. Ct. U.S. Dace People v. Ill. (1983), ance of the decision Ill. 2d and other deci 3d (1984), App. aff'd sions of court. appellate Davis from the distinguishing

The State counters by case, courts have noting repeatedly stated that to cross-examine is not absolute but to the control of trial judges, by is subject discretionary in camera in this case the trial judge’s contending of the mental health records fairly protected inspection rights Youngbrandt, both defendant v. People Foggy 121 Ill. to our decision in citing statuto- 2d disclosure of a victim’s concerning rape crisis counselors. rily privileged rape communications Foggy, the trial court denied defendant’s In motion an in camera if of records in order to determine review crisis coun- records, created aby rape which were the coun- selor and contained communications between contained rape, any selor and the victim about rape

93 evidence, defendant did not impeaching though even seek to have his at the review. This attorney present court the trial court’s upheld ruling, finding defendant’s to confront right constitutional witnesses was not violated because the defendant had not shown that the records he contained in- sought any impeaching formation and of strong because under- public policy of for com- lying unqualified privilege confidentiality munications to crisis counselors. rape

After defendant considering arguments both State, and the sixth we conclude him amendment were not denied when the trial rights refused to him and his access to all give attorneys judge In mental health records. denied Youngbrandt’s being records, an access to these defendant was not denied op- (See to cross-examine portunity effectively Youngbrandt. 673, 679,

Delaware v. Van Arsdall 475 U.S. (1986), 1431, 1435; 674, 683, L. Ed. 2d 106 S. Ct. Delaware v. 15, 19-20, 15,

Fensterer 474 U.S. 88 L. Ed. 2d 19, 106 S. Ct. To be more (per curiam).) spe- cific, defendant was denied neither an to dis- opportunity credit Youngbrandt’s recall, abilities to and re- perceive, late events, nor an her impeach opportunity or she revealing any improper might biases motives have had for Because the to confront and testifying. right Arsdall, cross-examine is not absolute 475 U.S. at (Van 89 L. Ed. 2d at 106 S. Ct. at our conclu- 1435), sion facts of depends upon necessarily particular Nonetheless, case. we also on certain rely governing Court, that control crimi- established a principles, nal defendant’s access to information. privileged Davis,

In the Court first dealt with the conflict be- tween a criminal defendant’s to cross-examine a witness and interests of the State and of the witness certain information confidential. Defendant keeping views Davis as that a supportive proposition mental all of witness’ health

court’s refusal disclose constitu- effectively records deprives and to cross-examine. The confront rights tional hand, thinks that Davis established a State, on the other error if, A constitutional rule: court commits narrower to on it defense counsel ask cross- questions while allows biased, that a the examination witness suggesting from the of informing defense counsel court bars find be We the might the reason the witness biased. why Davis to of the holding State’s characterization closer to the mark. Davis, the trial was a burglary

In crucial witness a at the and at the time who, the time of burglary juvenile trial, adjudicated on after been probation having was This juvenile on two delinquent charges burglary. and had identified had identified defendant’s photograph on the man he with the spoke in a as lineup defendant stolen the the safe spot near where day burglary of this found, juvenile’s which was on property was as a was arrested result parents. Apparently, trial, this juvenile And at of this identification. juvenile’s link bur- defendant with lay was the witness only testified, moved juvenile prosecutor Before glary. all to the juve- reference barring for a order protective explained Defense counsel delinquency. nile’s record to make a general that he would not use this evidence character, argued he juvenile’s attack on but the juvenile to inform the jury should be allowed the defendant misidentifying motive for possible had himself and divert from thus suspicion and lying any —to trial The court probation. the revocation of prevent the protect- counsel and granted with defense disagreed Davis, Ed. 2d 309-12, 39 L. at ive order. 415 U.S. 350-51, 94 S. Ct. at 1108. counsel’s cross-examination was defense

Regardless, elicit admission from the juvenile an designed when the him police questioned about safe’s being found on his he worried that the parents’ property police might he was the But the suspect burglar. juve- nile, that he although conceding thought police might him, said this had not him. He suspect worried also de- nied ever having been “like questioned by police that” Davis, before. 415 U.S. at 39 L. Ed. 2d at 352, 94 S. Ct. at 1109. began Court that the to cross-ex by stating right

amine a witness included the the wit impeach ness by revealing possible biases and ulterior motives the witness have for might (Davis, 415 U.S. at testifying.

315-16, 353-54, 39 L. Ed. 2d at 94 S. Ct. at 1109-10.) The Court then held that defendant was denied the right of effective cross-examination because “[o]n th[o]se facts” defense counsel was not able to the is “develop sue of bias to the properly jury,” “[wjhile counsel was permitted to ask whether he was bi [the witness] ased, counsel was unable to make a record from which to argue why might have been biased or otherwise [he] lacked that degree of impartiality expected of a witness at trial.” (Emphasis original.) (Davis, 318, 415 U.S. at 39 355, L. Ed. 2d at 94 S. Ct. at 1111.) As a conse of quence defense counsel’s to inability present evidence showing a witness why might biased, a might view defense counsel’s cross-examination with disap proval as a groundless attack on the witness. In addi tion, the Court believed that the juvenile improperly used the order as a shield protective to an untruthfully swer that he had never been questioned by police “like before, that” despite record. The delinquency Court concluded its analysis by declaring the wit ness’ and the State’s interests confidentiality juvenile records are justice subordinate to a defendant’s constitutional to right cross-examine an effectively ad-

96 Davis, verse to 319-20, witness show bias. 415 U.S. at 355-56, L. Ed. 2d 94 S. Ct. at 1111-12. We think Davis established the rule that a trial court cannot bar defense counsel from exploring subject cross-examination, crucial witness’ bias on in potential bias, the reason for that if cluding even this in potential formation is protected by statutory intended privilege witness; to such information is protect valuable in evaluation truthfulness of the witness’ jury’s case, In the this rule was not vio testimony. lated; full defendant was rein to cross-examine given health. Davis does not her mental Youngbrandt about demand that we hold that the to effective cross-ex amination the trial required court allow defendant or his counsel to read all of Youngbrandt’s privileged men tal health records to assure themselves that all relevant and otherwise information that could proper be used to decline, had been disclosed. impeach Youngbrandt We hold defendant’s sixth amendment were vio rights lated. Our conclusion is the Court’s subse supported by its Davis Pennsylvania quent holding explanation v. Ritchie 40, 94 L. U.S. Ed. 2d 107 S. Powell, J., C.J., Ct. 989 (opinion by joined by Rehnquist, See also Van Arsdall, O’Connor, JJ.). White U.S. at 89 L. Ed. 2d at 106 S. Ct at 1435 (confrontation clause is violated when defense counsel is barred from all about a witness’ bias and inquiry possible motive for but trial retain testifying, judges power limit such cross-examination on such as bases irrelevancy ex rel. issues); United States Black and confusion of the well v. Franzen (7th 1982), (defend Cir. 688 F.2d 496 ant’s sixth amendment not violated when his at rights allowed, cross-examination of a torney during was witness, to of reasons government develop variety why witness’ not was unreliable but was allowed to testimony

97 conversation between of a privileged elicit contents his attorney). witness and in the the situation dealt with

Ritchie specifically a constitutional has a defendant case: whether information about privileged to review right statutorily and admissibility argue relevancy so he can witness awas Ritchie to the court. Although of the information concurred in the judgment five Justices plurality opinion, a constitu- while the defendant had and concurred that in stat- material information contained tional to all right no to review records, right he had utorily privileged instead, the his attorney; full himself or through records in camera the records alone should review trial judge Rit- material information. only then disclose and should 58-60, 107 S. Ct. chie, 58-61, 94 L. Ed. 2d at at U.S.

at 1002-04. defendant records. The

Ritchie involved child abuse was the who abusing daughter, tried for sexually He disclosure sought main witness him at trial. against investi- a State which agency of records compiled by was an that his daughter a number gated reports motion The trial denied defendant’s judge abused child. some, after but reviewing of the records disclosure in camera. Neither the all, prosecutor of the records of the records. had access to any

nor defense counsel Ritchie, 48-49, L. Ed. 2d at 107 S. 43-45, U.S.

Ct. at 994-95. did Justices among concurring

The disagreement access to not concern had a right whether defendant con- records; rather, the disagreement these privileged a right right gave cerned which constitutional rec- in these privileged to material information contained to material of access right ords. Four Justices found the due process information be encompassed by that is either known to the prosecution to all information or guilt punish- to the accused or material favorable 98

ment (material that, evidence is information if disclosed to the defense, have probably would the out- changed come of the trial). (Ritchie, 57-58, 480 at U.S. 94 L. Ed. 2d at 57-58, 107 S. at 1001-02.) Ct. rejected They claim that clause, confrontation as in interpreted Davis, gave defendant a right of this any privileged Davis the confronta- information. that They explained tion clause was because the trial implicated had in- judge fringed confrontation, defendant’s right which is a trial right, by barring defense counsel from cross-exam- a ining witness about information known privileged counsel; defense in contrast, trial right of Ritchie because the confrontation was not infringed trial court did not limit defense counsel’s cross-examina- tion, even though trial court did defendant deny pre- (Ritchie, trial discovery privileged information. 480 n.9, U.S. at 52-53 & 94 n.9, L. Ed. 2d at 54 & 107 S. Ct. at 999 & n.9.) to these four According Justices, the right to confrontation is not violated when the of cross- scope examination is not limited at trial directly but rather is limited indirectly by barring pretrial discovery of privi- leged Blackmun, information. Justice the fifth concur- ring Justice, he disagreed; thought it was the right to effective cross-examination a gave defendant a right to discover information impeaching contained privileged records, and Justice Blackmun stated that de- such nying violated the pretrial discovery con- frontation as as did just surely barring defense counsel from a witness cross-examining about infor- impeaching as in Davis. mation counsel, known to defense already Nevertheless, Justice Blackmun agreed that the confron- tation clause did not give a defendant a right to review records himself or privileged to have his do so. attorney Ritchie, 480 U.S. at 94 L. Ed. 2d at 107 S. Ct. at 1006. of the Ritchie decision for this case part

The critical constitutional provision requires not which informa privileged have access to material these tion, privileged procedure reviewing but as not viola Court approved by majority records tive the fourteenth of either sixth amendment or (Ritchie, clause. 480 U.S. at process amendment’s due S. Ct. at 58-61, 65, 58-60, 62-63, 94 L. Ed. 2d Powell, J., 1002-04, joined Rehnquist, (opinion JJ.; Blackmun, J., con O’Connor, C.J., and White and in concurring in the curring part judgment).) defendant five of the concluded that a Justices majority the a either due right, does not have constitutional under confrontation clause or the sixth amendment process records; of clause, to make his own search the privileged due to trial is as is a fair process fully protected, the the to statutory right preserve State’s and witness’ records, the of if the trial confidentiality child abuse in camera and uses its court discre reviews records information, includes only tion to disclose material which A no right information. defendant has to impeaching ” “ cast his ‘advocate’s over statutorily privileged eye’ But if knows in particular records. any records, contained in “he is free formation the privileged court, to it from the in favor directly argue and request Ritchie, 60, 480 U.S. at 94 L. Ed. 2d materiality.” its at 59, 107 S. Ct. at 1003.

The in camera review procedure prescribed by Ritchie Court in was used procedure precisely in trial case: He reviewed judge and, psychiatric records himself without Youngbrandt’s prosecu- access to either defense counsel or the giving tion, hearing parties held a at which both were allowed disclosed, to trial their then argue positions; judge of certain rec- pages orally by releasing copies was and could ords, all information he relevant thought be used impeach Furthermore, Youngbrandt. this pro cedure as in this appropriate case mental involving health records the Mental Health privileged by and De Disabilities velopmental Act Confidentiality (Ill. Rev. 1979, Stat. 91½, ch. 801 et par. as it was in Rit seq.) chie, which involved privileged child abuse records. In passing Act, the Illinois legislature expressed strong public policy maintaining the confidentiality records and communications made inor connec “during *** tion with mental health providing services to a recip ient” (Ill. 91½, Rev. Stat. ch. in all cir par. 802(1)) cumstances for stated except exceptions (Ill. Rev. Stat. 91½, ch. pars. 804(a), through 812.2), none of which interest, this case. This apply and the in public dividual interest, recipient’s maintaining secrecy of this personal information in order to assist the indi vidual’s (see Novak v. Rathnam recovery (1985), 106 Ill. 2d its 483) justifies protection from the unlimited of a scrutiny criminal defendant or defense counsel wielding the sixth amendment aas before which weapon all other interests must fall.

We conclude procedure did violate defendant’s sixth amendment to confront rights have an opportunity cross-examine effectively wit- nesses him. against (See v. Barkauskas People (1986), 147 Ill. 3d 360 App. (defendant’s sixth amendment rights not violated when trial court a inspected witness’ mental health and, records in camera without from either input the defense, or prosecution decided what information would be The disclosed).) rights to confront and to cross- examine do not the full encompass knowledge about witness’ mental health in the problems hope finding impeaching information that a trial judge might overlook; these are rights secured even a defend- though ant has to a court’s rely upon judgment of what is rele- vant and And as a trial can limit impeaching. just judge are irrele- that inquiries cross-examination to prevent that harass the too vant, time-consuming, or repetitive, the from the witness, or that threaten to distract details of wit- actual issues by unduly emphasizing access to life, statutorily privileged ness’ a defendant’s can the same considerations. information be limited asserts the Thus, therapist privi- when the or patient camera, disclo- a trial can review in without lege, judge health records a witness’ mental sure to any attorneys, that are when those relevant only portions disclose factors. that relevance is not other outweighed by review con Defendant that in camera argues under this improper ducted case was (1984), court’s decision v. Dace previous People 114 Ill. 3d and we Ill. 2d aff'g App. hold were vio rights

should therefore Dace, lated. In of an testimony accomplice sole the defendant had committed a bur evidence committed involuntarily had been glary. accomplice health to a mental V-k before hospital years burglary. counsel from discov

The trial court had barred defense mental health information the witness’ about ering any on cross-examina subject and from into inquiring too old to be rele the information was tion, ruling 911-12.) 3d at The appellate 114 Ill. (Dace, App. vant. that a wit it reasonably appears

court held that when should relevant, a court history health ness’ mental then, if the wit the information and discovery permit at hearing hold a which the privilege, ness asserts the admissibil argue and defense over may prosecution credi to the witness’ as relevant the information ity affirmed 915.) We 114 Ill. 3d (Dace, App. bility. and we other grounds, on judgment court’s

appellate the appellate with agree that “we commented briefly the evi shown that, the circumstances court under was reversible the discovery the refusal to dence, permit 103.) error.” 104 Ill. 2d at Defendant (Dace, erroneously reads this dictum as a this court that the holding by only in procedure when appropriate discovery privileged formation is is the sought outlined procedure ap pellate court in Dace.

We find not used here review only procedure was but that the trial court did not err in its de- proper, cision as to what information was relevant and properly should have been disclosed to defendant. re- We have viewed all of mental health Youngbrandt’s records and discretion, cannot the trial court its abused say prejudicing (See defendant. v. Collins manifestly People 237, 269; 106 Ill. 2d United States v. Cameron (7th Cir. 814 F.2d All 1987), 406.) undisclosed information contained the records was irrelevant for it neither Youngbrandt’s credibility, any indicated bias against defendant nor revealed Youngbrandt remember, lacking her abilities to or relate perceive, the occurrences about which she testified. The trial court disclosed all of the information relevant to impeachment of Youngbrandt, information about her chronic including alcoholism, use, her and her resentment drug toward her life disrupting (defendant he argues should have had access to the records to determine the reasons why Youngbrandt resented him and was de- pressed because she had to part testify trials, his but the records contain no information on these issues beyond disclosed). Furthermore, what the trial court did not in limit defense any way counsel’s use dis- closed information the cross-examination during Youngbrandt. We find no error on this issue.

Defendant further claims that counsel appellate should have been allowed review men- Youngbrandt’s records; tal health defendant reasons that his appellate counsel had to be allowed to learn the contents of these records in order to to this court convincingly argue to re- trial counsel have been allowed should contain relevant they impeach- view records because We denied defense counsel’s ing appellate information. such Now defendant claims that motion for access.

prior him of his that motion this court by denying deprived of ap- sixth amendment to the effective assistance 387, 469 Lucey (1985), counsel Evitts v. U.S. pellate (see 821, (due 83 L. Ed. 2d 105 S. Ct. 830 process requires of counsel that a defendant receive effective assistance right)). his first as of during appeal of that defend- recognize argument

Although we to counsel limited appellate inability ant’s was to of the mental health records and portions argue point discoverable, this limitation did not cause they that were ineffective when ar- counsel appellate a claim of as- deciding issue. When ineffective guing of a standard of fair- sistance counsel we appellate apply 392, 396-97, Evitts, 469 at 83 L. Ed. 2d (See ness. U.S. 833, 827, 830-31, (Court 105 S. at Ct. decided grounds

case on and held that be effec- process due of give tive counsel must assistance such appellate qual- also appellate fair); as to make the see ity proceedings Washington (1984), v. 466 U.S. Strickland 674, 692, 699, 2052, 2063, S. 80 L. Ed. 104 Ct. 2d of assistance that in a claim ineffective (stresses deciding of focus is “the fairness of counsel the on fundamental challenged” is being whose result proceeding system of was justice the adversarial our whether quality not unfair in This was appellate proceeding preserved).) limitation we on imposed of the discovery consequence As of our consideration part counsel. appellate defense the mental health counsel’s we reviewed argument knowledge limited of the records mindful of defendant’s addition, knowl- greater the State had no contents. In at either the trial or ap- of these records’ contents edge Thus, neither was able party pellate proceedings.

make the kind of detailed adversarial that argument oth- erwise would have been possible, comparative quality of these arguments two adversaries was unaffected our ruling.

Admissibility Other Evidence Defendant he argues was also of his deprived constitutional rights to confront and cross-examine wit- nesses because he was not allowed to confront and cross- examine two Ann people, Walters and defendant’s ex- wife, Gerri Smith, who were not called as witnesses but whose statements were admitted at trial through the tes- timony Wayne Walters. Defendant contends Wayne Walters’ testimony and defendant hearsay, further contends the admission of this testimony, despite the State’s failure to call Ann Walters or Gerri Smith witness, as a caused him to be of his deprived rights. constitutional Defendant asks us to him grant new trial basis, on this no although was made objection to this at trial and the testimony issue was not included in defendant’s post-trial motion for a new trial. de-We cline to do for so, we find that this issue was waived and does not constitute plain error our warranting attention (107 Ill. 2d R. 615(a)). about which testimony con- complains

sists of the following statements made by Wayne Walters during direct examination: ***

“Q. Now the 17th of February, did you re- ceive a call from Gerri Smith? *** A. Yes. We phone received a call from Gerri Smith morning.

* * * Q. phone Smith, After call from Gerri on the 17th of February, did Harold Bean call your house?

A. Yes.

* * * Q. you Who told Harold Bean had called?

A. wife. My

Q. Ann?

A. Yes.

Q. regarding did Ann tell Harold Bean’s you What phone call? says, coming

A. She ‘Harold is back into town. He it, money.’ needs to talk to us. He did and he needs And I said—

Q. you Did understand what Ann meant when she said, ‘He it’? did Oh, called, said, yes. A. Because when Gerri she ”

‘That has done. was killed.’ Dorothy been Defendant characterizes the above as testimony because testi- highly prejudicial hearsay Wayne Walters fied that defendant had confessed to Ann and Gerri both that he killed Polulach, had defense counsel was yet never able to Ann or Gerri about these confes- question sions. We characterize this It was testimony differently.

not highly prejudicial, the tes- immediately following timony quoted above Walters testified that Wayne when he met with defendant the next defendant described day in detail how he had killed Polulach.

The admission of this testimony was error. plain The other evidence trial was more than suf- presented ficient defendant’s conviction—the evidence support was not (see balanced v. Carlson closely People Furthermore, 79 Ill. 2d 576). assuming are rights substantial involved and that error was com- mitted, we do not find that the error was so devastating that defendant was denied a fair trial. See v. People 117,120-21. Howell 60 Ill. 2d (1975),

Because we to recognize decline as error the plain trial court’s admission of the above and failure testimony to initiative, exclude on its own we testimony do not it decide whether in fact was it hearsay because was of- that defendant fered to the truth of assertion prove or it offered for another killed Polulach whether was to subsequent such as Walters’ purpose, explain Wayne actions; nor we decide whether this fell un- testimony do rule’s for statements made hearsay exception by der the as the State. suggested by co-conspirators, next he his consti- Defendant asserts that was denied tutional to have a determine his or jury fairly guilt innocence of the crimes for which he was tried because n witnesses testified that defendant said he had murdered someone in that defendant threatened to mur- the past, der and that defendant committed two various people, crimes out of Illinois. Defendant ar- during journey that either was irrelevant or its rele- gues testimony its outweighed prejudicial implication vance was by defendant a to commit murder. had propensity

Defendant waived these claims by failing object failing of this at trial and to raise any testimony v. Ad- (People trial. these claims in his motion for new ams 109 Ill. 2d 'error doc- 116.) plain these claims as to each piece trine does save because find that either it cited defendant we testimony or, inadmissible, its admission although was admissible did error defendant of a not constitute plain depriving Carlson, 576-77; fair Ill. 2d Ill. 2d R. trial. See 615(a).

Defendant most attacks strenuously admissibility to the of a statement Walters made Wayne response if further there discus- prosecutor’s question “any sion what Mr. Bean had volunteered to do.” about Ann Walters answered that asked defendant Wayne why “ said, Well, he would murder Polulach and defendant before,’ before,’ or, done it or some- it’s been done ‘I’ve of that nature.” Defendant believes thing prose- cutor elicited this testimony merely per- gratuitously had committed suade

107 in the and so had a to past propensity murder-for-hire murder. find to have been We this admissible testimony was out- because it was relevant and its relevance not to defendant. This weighed by any potential prejudice intent and willing- was relevant to defendant’s testimony ness to Polulach. The statement reveals how se- murder rious the murder dur- committing defendant was about this ing co-conspirators. initial conversation with of other is not admissible if it While evidence crimes shows that a defendant has a bad character or only to in other commit crime evidence of propensity general, if crimes is admissible relevant to other material is- any 19; sue. v. 76 Ill. 2d M. Gra- E.g., People Baptist (1979), ham, & Graham’s Handbook of Illinois Evidence Cleary §404.5, 162-63 see v. (4th 1984); People Lindgren ed. Ill. trial (new 2d ordered because exten- arson,

sive evidence of an not relevant to material any trial, issue in might defendant’s murder have led to jury convict defendant where would not have done so if evidence had not been admitted).

Furthermore, we think that any prejudice against defendant created minds this jurors’ by testimony very would have been for a of reasons. slight variety confused, itself Wayne Walters’ was and it testimony that defendant conveyed merely might have claimed have murdered someone before. The not re- subject was State, vived either other by introducing evidence of such a murder mentioning or this its testimony addition, In or closing statement. whether State effect elicited this has no on testimony “gratuitously” Besides, our of whether error occurred. analysis plain reading disagree context we with testimony defendant that the elicited” this prosecutor “gratuitously murder; instead, ambiguous it testimony prior ap- pears prosecutor was establish the element trying that defendant the case the mur- paid der, for the next asked defendant would prosecutor why commit a then murder and Walters said defendant said he wanted to be for it. paid

Defendant also objects following testimony was inadmissible and improperly prejudiced him: that defendant Ann against testimony threatened Walters that he would kill her husband or her mother if $5,000; not him pay Egan’s Walterses did tes- Danny that, that learning after Walterses had con- timony fessed to defendant said he and would have police, Egan kill Walterses; that, to and when Egan’s testimony their car was a stopped Nebraska by policeman during Illinois, their from defendant said flight would have they to kill the not because could policeman they stopped.

We find that the defendant’s threats testimony about $5,000 to Ann if he were not to was relevant paid prove the State’s that defendant to allegations get expected for Polulach. As to the that paid murdering testimony defendant to kill the and a threatened Walterses police- man, it was relevant to defendant’s consciousness of because in both instances the threat was made guilt as of his to arrest for part defendant evade plan Ill. (See People murder. v. Turner 2d 540 (1989), (not error for trial court to admit that plain testimony defendant told a cellmate that he to escape planned kill would who in his 76 Ill. 2d got way); Baptist, anyone kill an (evidence that defendant to attempted eye- witness relevant consciousness of guilt); People show v. 35 Ill. 2d 219 of other (1966), (evidence McGuire crime if it indicates that defendant resisted admissible arrest for crime and so shows consciousness of charged v. 309 Ill. 292 guilt); People (evidence Spaulding that defendant to or did evidence attempted destroy him, witness, or he admis- that killed against always consciousness of guilt).) sible to show defendant’s these threats as evidence of could consider properly Polulach, defendant’s guilt murder of believing that an innocent man would not threaten to kill three The threat to kill the people. was also rele- policeman vant because it refuted thoughts jurors any have out of State with might Egan driven Youngbrandt for some reason unconnected to the mur- der. that this

Concerning allegation testimony him improperly prejudiced because the have jury might concluded from it that defendant had a propensity murder, commit we find the of the testi- probativeness to have mony outweighed any possible prejudice, these were threats of only murder which defendant did out. carry Additionally, any possible was prejudice minimized because the State did not refer any these threats in its closing statement. v. (Cf. People Lampkin (1983), 98 Ill. 2d 418 defend- (testimony ant being tried for the murder of a policeman had told another six policeman, murder, before the he years would “get” “white too old and coppers” general- ized to relevant, be and a new trial ordered because the prosecutor referred to threat repeatedly and made it of the part State’s Thus, of the theory case).) the trial court did not commit error in plain of admitting any testimony.

Defendant also alleges error due to the admission of evidence that he stole a during flight set of license plates and a truck. Defendant pickup contends merely this evidence should have been excluded as being more prejudicial than probative. We the evi- disagree; dence of these crimes was to relevant show defendant’s consciousness guilt like the threat to kill the they, police officer, revealed that defendant was fleeing and to trying arrest, evade and that he had not left Illinois for some innocent Nor purpose. was this evidence unduly prejudicial, for two reasons. First, these thefts were the jury to murder

such minor crimes compared on the of murder not convicted defendant would have charac- him to have a that these thefts showed bad basis the to con- Second, jury ter. the trial court instructed related to the “circum- sider these crimes as only they and not for any stances of defendant’s and arrest” flight Instructions, Crimi- other Pattern (Illinois Jury purpose nal, 2d)), IPI Criminal (2d 1981) (hereinafter No. 3.14 ed. resultant minimizing any possible prejudice. thereby of this evi- Thus, find no error in the admission we plain dence. Trial and Death Penalty Hearing

The Conduct a num- that the trial court erred Defendant contends of the trial and death penalty of times its conduct ber him a fair and impartial hearing, depriving thereby defendant, one of these sentencing jury. According court, made when the trial after critical errors was had returned verdicts and before weekend guilty jury was to hearing which the death following penalty recess to discuss the held, jury failed admonish be the case. Defend- all media accounts of case and to avoid him to a new sen- this error entitles ant believes error find that no We tencing hearing. disagree which caused defendant made, much less an error jury. an hearing impartial a fair death penalty denied not to admonished The trial court frequently all ac- to disregard with anyone discuss .case venire, Addressing in the media. counts news chosen as ju- all who would be trial court so admonished before The trial court also admonished rors. of the made, at the end of each statements were opening trial, of the guilt-innocence phase first three of the days sentencing phase first day end of the and at the the sen- jury the second day trial the end of (at of the did not admonish The court death). defendant to tenced however, the the end fourth jury, day trial, on all after returned verdicts guilty this sole to charges. Defendant views failure admonish as critical had accustomed to jurors because become an admonition at the end of the at this hearing day yet, trial, decisive when had found juncture they defendant him after a week- and were sentence guilty recess, court them with no admoni- end dismissed defendant, that the “inconceivable,” ju- tion. It is states admonition, of an would not rors, the absence noticing about the case read and listened news reports have discussed the case over the freely and would have friends, to their listening weekend relatives with as to what sentence would be appropriate. opinions nature, human this observation about making Besides cases holding relies on two Federal appellate time to admonish juries every that courts are required a failure to do so warrants new they separate, showing prejudice. a defendant’s actual trial without 744; 635 F.2d 1980), v. Williams Cir. (United (8th States F.2d 1957), 608.) v. Cir. (D.C. Carter United States this court also relies on two cases decided Defendant were ordered be- penalty hearings which new death cause in those cases had decided that juries before the ju- were for the death eligible penalty defendants the defendants had previously rors had learned that been in another case. v. (People Hope sentenced death 97 Ill. 265; (1983), Ill. 2d v. Davis 2d People state- containing general Defendant also cites cases 1.) will be danger jurors improp- ments about how the of these is averted admonitions. None influenced erly us that the absence of admonition cases persuade as to error, much less error so prejudicial this case was sentencing jury. defendant of a fair deprive has never decided the issue whether

This court it sepa- trial failure to admonish a before court’s rates is error a new trial or warranting hear- sentencing ing. (But see v. People (1985), Brisbon 106 Ill. 2d 355-56 (no reversible error when trial court denied defendant’s motion to sequester and jury inadequately admonished about jury avoiding news for court reports, admonished repeatedly trial and jury throughout defend- ant did not show actual Defendant, however, prejudice).) believes that this court’s prior decisions and Hope Davis are similar enough to provide for a hold- support ing that such conduct is error. We do share defend- ant’s belief because in Hope and Davis a critical reason why new death were penalty hearings ordered was that it was that undisputed some or all of the jurors knew, before had they determined that the defendant was eligi- ble for the death the defendant had penalty, been sentenced to death another case. Two or three of the jurors in learned Hope through news which reports appeared after the trial told the judge jury the end of the first day the sentencing it did not hearing matter if read the they newspapers. Davis, And entire was told State of the defendant’s death sentence. pending

We contrast Hope Davis jurors’ harmful to the knowledge case in which there is no evi- dence that during the weekend recess any news reports appeared stating defendant had been sentenced to death in his trial, first or discussing part of the case. any Defendant presents no evidence that such news reports existed, but rather speculates that such news reports have may existed and have contained may in- prejudicial formation. Nor does defendant present evidence that any a juror gained such from knowledge source. any Com- v. pare People Barrow (1989), 133 Ill. 2d 233-34 (trial court did not err in denying defendant’s motion to to read jurors newspaper article published during trial and ask them if it, them had read any defend- ant never trial court the article and thus gave precluded from court its and also the evaluating prejudiciality, court admonished at the start of and throughout v. Ill. trial), People with Cain 2d v. Coppedge (D.C. 1959), United States Cir. 272 F.2d 504 (in both cases defendant court to requested question ju- rors about articles that trial specific during appeared court, and that defendant and new trial gave ordered because court’s found to inquiry be inadequate). essence,

In hold, this court asking without any evidence support allegation preju- dice, that he denied an was his sen- impartial jury during because the court’s lone failure to ad- tencing hearing monish the have resulted in jury might jurors receiving information from the prejudicial media and have might caused to discuss the case with others. jurors recog- We nize that the court’s failure to the jurors admonish cre- a risk ated would discuss the case and attend they to news but without evidence the reports, any ju- rors acted that that we cannot find risk re- improperly sulted in an unfair death or a penalty hearing prejudiced short, In jury. we will not make the defend- presumption ant without evidence that the risk was realized. requests Defendant must show on the of a actual prejudice part or, juror, such a given difficulty making showing, at the least very demonstrate circumstances reasonably a conclusion that a justifying was juror improperly preju- diced him. He cannot us against that he was persuade denied a fair and impartial hearing by merely observing that it human would be nature for a to have talked juror about this murder trial unless admonished at the end of of trial. Of course it would have if every day been better the trial court had again, admonished but jury and, thus, court did not err when it to do so failed did defendant of a fair and at his deprive impartial jury death penalty hearing. this court a case similar to the decided

Previously, (Brisbon, one 106 Ill. and 342), 2d we approve in Brisbon there. Before the trial reasoning used television news mentioned that when defendant report committed the murder for which he to be going tried he was sentence for another serving long murder. Defendant the trial court denied him a argued had fair and trial because it had refused to impartial seques ter the and because it had jury, admonished inadequately to avoid news This court jury reports. disagreed; trial court’s admonitions of and beginning (our the trial were did not throughout adequate opinion state when admonitions as given), these were long as a is admonished and the defendant adequately fails to actual he is not denied a fair prejudice show v. Yonder People (not trial. See 44 Ill. 2d 376 re (1969), error motion to if ade deny versible sequester admonitions and defendant does not show quate given actual prejudice). dicta Williams we with the disagree

Finally, Carter, cited as that a new trial support, if warranted a trial court does not admonish the jury v. (see People Stansberry each time it before separates 47 Ill. (Illinois 2d courts not bound by Furthermore, decisions of lower Federal courts)).

facts Williams and Carter were so distinct from the facts in this case it that is not that those courts apparent of dicta to the facts would their broad statements apply of this case to hold the defendant us to hold. urges way Williams, In the entire case to the was presented jury and, in one without the at day admonishing any jury time it during that the court allowed day, separate; soon its the next morning after deliberations resuming case, the In the returned verdict. jury guilty the was not admonished at the end of the although jury one in the trial, an day, admittedly important juncture times and so already had admonished five the been jury Williams the as warning was ignorant was not to admonish Carter, the trial court failed In jury. that inter- of two recesses week-long either before

jury had not admonished trial, and also apparently rupted these rea- in the trial. For time earlier the jury any in Williams not sons, opinions we are persuaded and Carter. showing case, any in the absence

Therefore, in this not de- we find that defendant of actual prejudice, as jury an hearing by impartial nied a fair death penalty the jury trial court’s failure to admonish a result of the recess. before the weekend he a fair and also that was denied argues

Defendant the trial court because penalty hearing reliable death inform the about of his attempts barred both serve if the jury terms of he could imprisonment possible that, him to death. Defendant contends did not sentence required was not assured that law because if it did for more than a few years him to be imprisoned death, have sen- might not sentence him to the jury he than it die thinking tenced him to death better if in a on the streets few years that he be back possibly term of impris- trial sentenced him to short judge sentenced him to death be- onment, not that the jury die. cause he deserved to the trial court defendant argues

In particular, it refused to ask the venire question, erred when Bean if think will to Harold W. happen do you “What death?” and rather than imprisonment vote for you at the refused to instruct the jury the trial court when if it could hearing of the death stage penalty second shall be the death sentence not find that “unanimously to im- shall sentence the the court imposed, *** sentence that defendant’s prisonment would] [and natural life up than twenty years less is no from a life sentence.” The There prison. parole court, instruction, instead of giving proposed 7A.15, IPI 2d less informative Criminal No. gave that if the does not find unanimously which states jury an factors a death sen- mitigating precluding absence tence, the court sentence the defendant to impris- “will onment”; this instruction does not state the possible length of that imprisonment. erred,

To the trial court argument support in holding defendant cites an of this court opinion all trials in which a defendant has been convicted of mul- the sentenc- murders the trial court has to instruct tiple the defend- ing not that the court will sentence jury only if ant to a term of finds imprisonment jury factors sufficient the death mitigating preclude pen- that “the defendant but also will be sentenced alty, life and no a term serving natural imprisonment, person released, of natural life can be or imprisonment paroled v. executive Gacho except through clemency.” (People 122 Ill. 262.) argues 2d Defendant that we holding extend the to allow the type should Gacho instruction he jury proposed voir dire question cases, case, involving such as the multiple hold the rationale we murders. We decline to so because defendant’s argument. used Gacho does not support case, this fact made Gacho was a multiple-murder of IPI 2d No. 7A.15 it that the Criminal possible giving because, stating would mislead the sentencing jury that if the does not sentence defendant to death jury IPI a sentence of Crimi imprisonment, court will impose nal 2d -7A.15 have led the believe might No. sentenced to a term of years the defendant could be im one sentence of when the law allowed actually only in such a the defend imprisonment prisonment case— (Gacho, of parole. life without possibility ant’s natural case contrast, in the present In 261-62.) 122 Ill. 2d at if it would have been correct had surmised that the court could sentence defendant to a term of years; defendant himself out that the court could have points to 80 sentenced him to from 20 anywhere years’ years’ life or to for his natural imprisonment, imprisonment 38, 1979, 8—1(a)(1), Rev. Stat. ch. (Ill. pars. 1005— that a sentenc- we held Gacho 8—2(a)(1)).While 1005— is to told that case be multiple-murder a ing jury death, do sentence to we there is one alternative only case in a single-murder think that a sentencing jury not of imprisonment of all the terms possible should told be not if the does jury on a defendant a court might impose result that might to The confusion sentence him death. in multiple- a given 2d No. 7A.15 is IPI Criminal

when But case. single-murder created in a case is not murder im- it have been we hold would there is another reason alter- the of the jury trial court to inform for the proper fact that the besides native sentences of imprisonment, holding. not warrant such a does Gacho alternative the of the jury and inform fully

To fairly re- case would have in this sentences of imprisonment defendant, by the that the to also tell jury court quired the rules credits good-conduct provided earning Corrections, could of regulations Department and of than half after less serving released from prison than (other imprisonment of imprisonment sentence any 1979, him Rev. Stat. (Ill. on life) for his natural imposed would have to after which he 38, 6—3), ch. par. 1003— term of three release mandatory supervised serve a 1003—3— ch. pars. or less Rev. Stat. (Ill. years inform the short, In 8—1(d)). fairly fully 1005— the have required alternative sentences would of jury entire determi- trial court to inform about jury this informa- in Illinois. Without nate sentencing system branch could the executive tion, knowing without he had served the before defendant from prison release court, trial of imposed by full sentence imprisonment had the which defend- would not have jury capability, valuable, fairly accurately comparing ant deems of sentences of imprisonment death sentence to alternative the court might have imposed. Gacho

Indeed, jury while we held should told sentence only have been alternative parole, was natural life without we imprisonment death instruction suggested the defendant’s be- disapproved It cause it was not did tell comprehensive enough: ex- that such a sentence could be commuted jury Thus, inform a alterna- clemency. fairly jury ecutive informing would also about require tive sentences early an re- being given a defendant’s possibility would be im- lease. Yet such information to a giving that, for the Illinois’ previous same reason under proper held it was im- indeterminate we sentencing system, to inform a about the that proper jury possibility his full serving defendant would before sen- paroled be the to speculate tence: information invites jury the in the what executive branch do future may about from the jury’s and thus diverts the attention issue of sentence the offender and given what of- appropriate Brisbon, E.g., 367; fense involved. 106 Ill. 2d at see Gacho, to 122 Ill. 2d at 257-59 prosecutor (improper the discuss defendant be possibility may paroled). not

Therefore, hold that the court did err we trial voir the either during when it refused to inform jury, or the dire of the of jury, range possi- instruction terms of to which might ble imprisonment fact, if he not sentenced to death. In sentenced was giv- the such information would have been error. ing jury defendant, to the trial court made

According another the of stage error the second the instructing jury the trial court allowed penalty hearing death when the the to consider of jury statutory aggravating both fac- tors which the had found to exist jury a reason- beyond able doubt at the of stage the These eligibility hearing.

two factors statutory aggravating were: “defendant contract, committed the murder to a pursuant agree- ment or he to which was receive understanding or of in return for committing value money anything murder” Stat. ch. and (Ill. 1(b)(5)), Rev. par. 9— in the course of an- defendant committed the murder 1979, ch. other an armed Rev. Stat. felony, robbery (Ill. that, allowing Defendant par. 1(b)(6)). argues 9— consider both factors aggravating jury statutory sentenced to whether defendant should be deciding

when in- artificially trial court allowed death, offense; of his thus circumstances aggravating flate in favor of death. the scales improperly weighted were defend- the murder The evidence showed before he found in Polu- ant considered that half of any money as a share house he killed her would be his lach’s when $23,000. fee, he set at No money of his which about from the house and found, defendant stole jewelry but compensa- considered this to be part apparently tion. penalty hearing,

At the second death stage IPI instructed the Criminal jury, pursuant trial court 7A.15, aggravating it consider any 2d No. was to to the imposition factors relevant any mitigating facts factors those being the death penalty, aggravating penalty a reason for death imposing providing to, limited the statutory aggra- including, being but found to exist at the factors which the had vating the times we hearing. Many end of the first stage stat- the in our death provisions penalty have held that factors mitigating (Ill. ute for and balancing aggravating which 1979, 38, 1(c), (g)), upon Stat. ch. pars. Rev. 9— modeled, limit and direct adequately this instruction is so to satisfy as sentencing juries the discretion of capital 120 (1984), v. Stewart (E.g., People demands.

constitutional sentencing also explained have 22.) 105 Ill. 2d We owing discretion broad improperly are not given juries to assign precise failure statute’s penalty our death factor a jury and mitigating to each weight aggravating (1980), v. Brownell (People will consider. potentially our death pen case find that 508, In this we 534.) Ill. 2d the er alleged constitutionally applied; was statute alty error de (for constitute plain did not ror in instructions in his post-trial at trial and failed to object fense counsel other than instruction, error waiving any motion to this Ill. 2d 16- (1978), v. (see People Precup error plain 17)). circumstances that the argues aggravating

Defendant for motive inflated because were artificially from Polu- of jewelry armed robbery the committing some of get he her was to at the time killed lach’s house he by which was owed or of value” “money anything In other the murder. committing for Walterses the armed committing for motive words, defendant’s committing the same as his motive was robbery to con- allowing monetary gain murder — —and court the trial factors statutory aggravating sider both his motiva- weigh to twice allowed improperly inaccurate balanc- in an gain, resulting tion of monetary This proce- factors. mitigating ing aggravating defendant, in defendant’s dure, resulted according capriciously, arbitrarily sentenced to death being amendment, the particu- because violation of eighth consid- case not properly of his were lar circumstances Const., VIII; amend. U.S. sentencing jury. ered 49 L. 2d Ed. v. Texas U.S. Jurek 2950. 96 S. Ct. that, because this with defendant agree

We do for the of his part compensation stolen property whether murder, deciding when jury, entitled to con- death, was not should be sentenced robbery during he committed an armed sider both further get compen- and that he expected the murder the Su- hearings, In death penalty sation for murder. that the sentenc- only has been concerned Court

preme circumstances of to “the particularized attend ing body offender.” the individual offense and individual 939, 2d at 96 S. Ct. at 49 L. Ed. 428 U.S. (Jurek, sentencing by allowing conclude that 2957.) We and murder-for- robbery consider both armed jury factors, with statutory aggravating along compensation it found to or factors aggravating mitigating other any in the case ensured relevant, the trial court these circum- particularized considered jury are discretion to sentencing juries given stances. Capital factors on balancing weigh mitigating aggravating nor the neither this court making; scales of their own factors, those as weigh tell how to legislature juries may case, In this as the factors are relevant. long jury instructed that it could consider both only statutory was factors; the was not told how to jury weigh aggravating was entitled to consider those factors. both conduct—that defendant had to com- agreed courses of that, he mit murder for a sum of after money her Polulach, looking he ransacked house valu- killed of the fact that stole her jewelry regardless ables and — get courses of conduct was to his motivation both conclude that the manner And we cannot money. factors considered aggravating

which the both improper. People on v. argument primarily

Defendant rests Brownell, 79 Ill. and on decisions of the courts 2d in armed States death sentences rob- holding of other the sentencing body cases invalid because bery-murder fac- statutory aggravating had considered the redundant an armed during robbery tors that the murder occurred and that the murder was committed for “pecuniary gain,” even though gain was the pecuniary proceeds of the armed v. robbery. (Ala. Cook State 369 So. 1978), 1251; 2d (Fla. Provence v. State 1976), 783; So. 2d State v. Quesinberry (1987), 319 N.C. 354 S.E.2d 446.

Neither Brownell nor the cases cited foreign defendant Brownell, thwart our In holding. we re- manded for a new sentencing hearing because sen- the tencing to death the trial had relied judge on the statutory aggravating factor that the defendant had murdered an eyewitness him, against as well as the factor that defendant murdered the victim in the course of two other felonies. heldWe that the murder-of-an-eye- witness factor did not because the apply legislature had intended it to when a apply only witness was murdered an impede ongoing criminal investigation, whereas in Brownell the defendant had killed the victim when she tried to after he had her—he escape raped did not kill to impede any contrast, In in the ongoing investigation. case defendant present was both convicted of armed rob- armed bery and was found to robbery statutory ag- factor; gravating this was a valid factor to be applied the present case. Defendant’s is that only argument considering factor the applicable aggravating jury might have undue to his given weight motivation mon- etary gain both the armed committing robbery the murder.

We disagree. allowed con- jury correctly sider both defendant’s conduct in murdering Polulach and his conduct in her house and her ransacking stealing if at the he intended to even the time of jewelry, robbery subtract the from his total fee for the murder proceeds and thus motivation for courses of conduct was both the same. the to consider both factors By allowing case, when the total circumstances of the considering to consider defendant’s mo- court in no told way as heinous because gain especially tivation monetary the murder and the armed it was the motive behind both robbery.

As the three decisions relied foreign upon by defendant, are different from the they significantly in that in statutory ag- case those cases two sentencers, murder factors considered gravating commission of an armed and murder for during robbery course of were the result of identical gain, pecuniary identical The mur- conduct and were evidence. proven by robberies, during ders were committed armed robberies; were inev- pecuniary gains proceeds an the course of armed rob- itably by murdering during gain. the defendants also murdered for bery pecuniary in those cases This situation concerned the courts be- all during felony cause defendants who murdered in the automatically disadvantaged armed were robbery as to defendants who com- sentencing process compared mitted other which did involve any felony inherently Provence, E.g., 337 So. 2d 786. monetary gain. if statute,

In under our defendant had comparison, murder-for-hire, or committed commit- merely merely the of an ted a murder course armed no during robbery, factor of murder for statutory aggravating pecu- second Defendant, have inevitably applied. would niary gain actions the however, aggravat- his own by compounded of the murder to com- ing proceeding circumstances he mit the crime of after mur- separate stealing jewelry to consider Polulach, dered and the was entitled jury him. The fact sentencing both courses of conduct when that the evidence indicates that the armed robbery incidental to defendant’s scheme of Po- grand murdering lulach in return for not that the does mean compensation was not entitled to consider both jury statutory aggra- fact, In is no reason to factors. there believe vating light these factors just did not consider jury factors; these evaluate properly and that did does not other- prove the court’s instruction certainly claim that failed to his Thus, prove wise. defendant has him to death on these sentenced the jury improperly grounds. he entitled believes is

Another reason defendant why that, during prose- hearing to a new death penalty of the hear- stage at the second cutor’s closing argument testi- the relevance discounted ing, prosecutor he was a situation when defendant’s family about mony about for the defense child. Two witnesses testified home; of defendant’s childhood atmosphere tempestuous father, facts, other that defendant’s related, among they old, caus- defendant was drank, years who died when her two and jobs preventing his mother work ing told how his him, and they from closely supervising Defendant argued. grandmother frequently mother to re- amendment has found notes that been eighth from sentencer “not precluded that a quire capital mitigating factor, as a of a any aspect considering, of the circum- character or record and any as a the defendant proffers stances of the offense (Emphasis origi- basis for a sentence less than death.” v. Ohio nal.) (Lockett 57 L. U.S. of Bur- 973, 990, Ed. 2d 98 S. Ct. 2964-65 (opinion Powell, Stevens, C.J., Stewart, JJ.).) ger, joined by dissuaded improperly Defendant believes prosecutor childhood, from the evidence of considering amendment, in his declaring of the eighth violation Bean with Harold as closing dealing “We’re argument: *** in a per- he there now. This is not a course sits *** it is not here to discern how son’s We’re psychology. Further, Harold Bean.” that Harold Bean to be gets so prejudicial these comments were believes not at trial or (the object as to be error defense did plain

125 in its which was not post-trial motion) corrected trial instruction, court’s IPI accord with Criminal 2d 7A.15, No. that the jury any “shall consider aggravating factors are any mitigating that relevant the impo- *** sition of death are penalty. Mitigating factors or facts any circumstances that reasons for im- provide posing sentence less than the death penalty.” We find the prosecutor’s comments pre- did not clude the from considering the evidence of his child- hood in mitigation thus did not cause defendant be of a fair deprived and reliable sentencing hearing. Court has considered cases Supreme involving many issue whether sentencer imposed pen- death without

alty considering certain relevant fac- mitigating tors of the defendant’s individual character and history.

In all cases in which the Court has vacated death it sentences has found that what the sentencer precluded from those considering factors was either the mitigating death statute 438 penalty (Lockett, 606-08, U.S. 57 L.

Ed. 990-92, 2d at 98 S. Ct. at 2965-66 (statute mandated death without allowing sentencer to consider miti- any or the gating factors)) trial judge’s (Penry instructions v. 302, 328, U.S. L.

Lynaugh (1989), 256, 106 Ed. 2d 2934, S. 284, Ct. 2952 (jury effectively precluded from considering evidence of defendant’s family back- ground in trial court’s failure to so mitigation by instruct jury); Dugger 393, 398-99, Hitchcock v. 481 U.S. (1987), 353, 95 L. 2d 347, Ed. 107 S. Ct. 1824 (trial judge and instructed thought, advisory jury, only statutory could see v. mitigating considered); Eddings factors 104, 113-14, Oklahoma 71 L. 2d U.S. Ed.

10-11, believed, 102 S. Ct. 876-77 (sentencing judge law, as a matter that he could not consider defend- family ant’s as a The sit- background mitigating factor)). case,

uation in where the prosecutor argued should be consid- family background 126 it present the was defendant’s jury

ered because mattered, character, that not how he that got character in that to situation those cases they is so dissimilar the comments did not do simply apply: prosecutor’s in case the the from preclude sentencing jury background. of defendant’s considering family evidence There are reasons the was not why jury pre- two mitigation. from this evidence in considering cluded First, role is not to instruct as prosecutor’s jury is, the law and the this case was jury properly to what it should closing argu- instructed about how consider Thus, the ments. to prosecutor’s attempt persuade that it not consider childhood should jury a sentencing him cannot be with trial equated when it instruction that cannot consider such jury court’s to Second, here were prosecutor’s evidence. comments tell at no time did the persuasive; only prosecutor it the law not allow consider this did evi- jury mitigation. dence in Prosecutors have wide latitude v. 121 Ill. argument Thompkins (1988), closing (People a cold cannot 445), and, convey 2d record because comments, effect attorney’s appellate the actual of an it is a courts a trial clear accept judge’s judgment (unless that a has not exceeded discretion) prosecutor abuse (Peo- latitude comment making prejudicial that wide Ill. 2d 172, 176). v. Smothers 55 ple do not find that the comments prosecutor’s We so as to be error which de- case were prejudicial plain hearing; prose- defendant of a fair sentencing prived not create a risk that cutor’s comments did substantial it from prevented would think the law consider- when mitigation of defendant’s childhood as ing evidence not defendant should be sentenced whether or deciding 486 U.S. v. (see Maryland (1988), to death Mills 384, 399-40, L. S. Ct. 382-84, 100 Ed. 2d there was a substantial sentence vacated because (death risk that the trial judge’s instructions caused the misunderstand it how was to consider evidence in miti-

gation)).

Defendant next challenges of his death validity sentence the trial by asserting court violated his amendment eighth when it instructed the rights jurors at the second hearing death phase penalty influence” “[njeither nor should sympathy prejudice them, 1.01(5). in accordance IPI 2d No. with Criminal Defendant this instruction caused the jury believes re- evidence the defense introduced mitigating disregard and thus defendant’s character and garding background, must the amendment that a eighth principle jury violated in miti- not from such evidence considering be precluded Lockett, 586, 973, L. Ed. 2d 438 U.S. 57 gation. (E.g., this court’s 2954.) recognizes 98 S. Ct. While defendant this instruction does not violate previous holdings 105 (1985), the amendment v. Del Vecchio eighth (People 414, 445; 463, Ill. v. Ill. 2d People (1984), 2d Stewart 104 he us to these 493-94), urges holdings given reconsider the recent decision of v. Brown California 538, 934, 93 L. 837. have U.S. Ed. 2d 107 S. Ct. We read Brown and have the procedures applied analytical Brown outlines for of a determining the constitutionality conclude instruction we jury concerning sympathy, yet the was con- challenges use of instruction defendant stitutional.

The in Brown that Court whether Supreme explained or not a instruction is unconstitutional depends how a reasonable could have understood upon juror at 541, instruction. 479 U.S. at 93 L. Ed. 2d (Brown, 940, at In how a reasonable 839.) determining 107 S. Ct. court has instruction, could understood the

juror have if first instruction challenged; to focus on particular is to unconstitutional, that is found to then the court be if the entire on “the instructions as a whole to see focus law.” interpretation delivered a correct charge 107 Ct. 940, at 93 L. Ed. 2d at S. (Brown, 479 U.S. in Brown referred to “mere sen-

at The instruction 839.) timent, passion, prejudice, public conjecture, sympathy, L. (Brown, 479 U.S. at or opinion public feeling” The Court held that 838). at 107 S. Ct. at Ed. 2d instruction, alone, was constitutional. This standing the existence of the ad- modifying on holding depended “mere,” “sympathy” word jective placement nouns, and the of 13 testimony in the midst of list the trial. during penalty phase defense witnesses facts cause that all of these would Court concluded an to understand the instruction “as a reasonable juror not emotional that are responses admonition to ignore intro- evidence mitigating rooted in the aggravating Brown, 479 U.S. at phase.” duced during penalty 940-41,107 L. at S. Ct. at 839-40. 541-43, 93 Ed. 2d Brown, our in- In instruction comparison or It struction refers plainly “sympathy prejudice.” could conclude that juror could a reasonable argued all, not just sympa- he should consider sympathy and unrelated to the evidence general mitigating thy a defendant. Because the which sen- introduced by to consider “any tenced defendant was also instructed relevant,” factors that are which the court mitigating as facts or circumstances that jury “any defined for the than the reasons for a sentence less provide imposing death and four penalty,” presented because witnesses at the death who testified to penalty hearing character, con- and we background reject tention that or instruction “sympathy prejudice” it this miti- caused the to believe could consider jury v. Franklin Ill. People (See evidence. 135 gating (1990), 112-13, 2d court did not err in 78, (trial giving jury instruction it also instructed because “sympathy” consider conclude that a mitigating evidence).) We only reasonable all of the instructions as a juror interpreting would the emotion in disregard sympathy gen whole defendant, would sentencing eral when consider yet in mitigation defendant’s evidence and base sentenc ing decision in on that evidence and part any feelings or it sympathy juror’s elicited in that heart or mercy v. People Phillips 499, mind. See 127 Ill. 2d 543- (Illinois death statute does not unconstitution penalty ally bar sentencer from considering sympathy on defendant which is based evidence statute re because sentencer to consider evidence of quires any mitigating factors in defendant, introduced this case sen by tencing judge evidence be apparently properly weighed Brown, sentencing defendant); fore see also 479 U.S. at 545-46, 942, 93 L. Ed. at at 2d 107 S. Ct. 841 (O’Con nor, J., (jury instructions as whole “must concurring) inform the clearly are to consider rel they any evant mitigating evidence about a defendant’s back ground character”).

(As aside, an we note that in to the subsequent case, trial Supreme Illinois Court Committee on Pattern Instructions Jury Criminal Cases adopted instructions be pattern jury given at death hearings. penalty among Included these in- new structions is an instruction to given second stage of a death penalty hearing" identi- virtually Brown, cal to the instruction approved 479 U.S. L. Ed. 2d S. 837; 107 Ct. it “You states: are not

to be swayed sentiment, mere conjecture, sympathy, passion, prejudice, or IPI public opinion feeling.” public Criminal 2d No. 7C.01 (Supp. 1989).)

To summarize, do not we find that error any committed the trial court or the prosecutor during the conduct of the trial that caused defendant be de- nied a fair death or an penalty hearing impartial sen- tencing jury.

130 Assistance Counsel

Claims Ineffective his occurring during that errors To cap arguments him a fair trial hearing sentencing deprived trial and coun claims that his defendant sentencing hearing, these errors acting ineffective prevent was sel of these ineffec their effects. dispose or ameliorate We the stand of counsel claims by applying tive assistance 466 Washington (1984), v. ards announced Strickland 2052, and 674, 104 S. Ct. 668, 80 L. Ed. 2d U.S. 104 v. Albanese People this court adopted 2d 526. Ill. that for Strickland,

In Court established Supreme assistance of on an ineffective prevail a defendant that his has to both prove claim the defendant counsel deficient constitutionally counsel’s representation Rep as a result. the defendant was prejudiced and that court can conclude reviewing if a resentation is deficient as counsel viewed that, the circumstances considering time of the errors and alleged strongly pre them at the and sound counsel’s conduct was proper suming standard of reasonableness” objective it “fell below an trial strategy, (Stric L. 2d 466 U.S. at 80 Ed. kland, and caused a breakdown 2064) 104 S. Ct. at at 688-90, U.S. process (Strickland, the adversarial 693-95, 2064-66). 104 S. Ct. at L. Ed. 2d at representation that deficient explained Court further proba if there was a “reasonable a defendant prejudiced errors, that, unprofessional counsel’s but for bility different.” would have been result of the proceeding 698, 104 S. 694, 80 L. Ed. 2d at 466 U.S. at (Strickland, is chal conviction defendant If it is his 2068-69.) Ct. at a “rea has to prove these defendant grounds, on lenging factfinder errors, that, absent probability sonable if guilt”; respecting a reasonable doubt have had would defend- challenging, is it his death sentence that, ant has to a “reasonable absent prove probability *** errors, the sentencer would have concluded the balance of circumstances aggravating mitigating Strickland, 466 U.S. at did not warrant death.” 698, 104 L. Ed. 2d at S. at 2068-69. Ct. case,

In the we conclude that defendant has not of his of proved claims of ineffective assistance any on counsel. Our conclusions each instance are based the Strickland test, of of competence component counsel or resultant most was obviously which prejudice, not without whether or not the other proved, deciding Strickland, See 466 U.S. at component proved.

80 L. Ed. 2d at 104 S. Ct. at 2069 court (reviewing and, of claim either component may dispose by applying if it is not need not consider the other com- proved, v. Johnson People see also 128 Ill. 2d ponent); 253, 271.

We defendant’s claims that his counsel made reject errors trial during guilt-innocence of his con- phase ineffective assistance of counsel. As to each al- stituting leged error we find either that not defense counsel did err or that the error did not defendant. That prejudice defendant was not his counsel’s to prejudiced by failure to the object alleged hearsay portion Wayne Walters’ that Ann Walters and Gerri Smith testimony said defendant had confessed to them follows from inevitably our that prior holding this did not testimony prejudice because, defendant after so immediately testifying, Walters testified that defendant described in de- Wayne tail how he had killed Polulach. find that defense We might counsel have made a sound decision strategic when he did not object to the relevance another por- tion of that dur- Wayne testimony, testimony Walters’ a discussion about whether Polulach should be killed ing “ ‘Well, commented, defendant had it’s been done be- fore,’ or, before,’ it or that something ‘I’ve done

nature.” Defense counsel might have decided not wisely to this object vague highlight to statement so as not to conclusion that defendant fears the very jury may have drawn: Defendant had committed a mur- previously der-for-hire. As to defendant’s claim that his counsel erred not objecting defendant testimony Walterses, threatened to kill the Ann mother, Walters’ and a policeman, we found this previously evidence was relevant prove State’s that this was a allegations murder for which defendant expected get paid thus, relevant to defendant’s of guilt; consciousness counsel’s would not have affected the admis- objections sion of this and counsel’s failure to testimony object not could have defendant. while an prejudiced (Also, ob- to the kill jection threatened to testimony Ann sustained, Walters’ mother have been it is might reasonably probable affected testimony conviction.) counsel’s failure to Similarly, ob- to evidence of the defendant ject crimes committed dur- ing flight did not defendant. because this prejudice evidence was to his consciousness of so guilt, relevant conclude, would have overruled. To any objections been defense counsel defendant at his effectively represented trial. each of defendant’s claims of ineffective

Concerning assistance of counsel at the death hearing, as to penalty each claim defendant has failed to that his coun- prove sel’s errors for he alleged him, has not estab- prejudiced lished a reasonable that if his counsel had not probability made these alleged errors the would not have found jury that sufficient mitigating preclude factors existed to death sentence. This conclusion to the claim that applies the trial defense counsel erred when he did not object court’s failure to admonish the the weekend jury before recess; this conclusion to the claim that defense applies counsel erred when he failed to to the trial argue judge that should be instructed not to consider in ag- both that the gravation murder was committed for com- and that defendant an pensation committed armed rob- in the bery murder; course and this conclusion to defendant’s claim that applies his counsel erred when he did not to the object comments prosecutor’s closing argument the jury should not consider defendant’s childhood when if determining factors ex- any mitigating isted sufficient to of the death preclude imposition pen- alty, instead should consider defendant’s character as it existed the time of There is not sentencing. even a reasonable that the probability trial judge would have sustained an objection comments, these much less that a defense objection would have resulted in the jury’s finding mitigating factors sufficient to preclude of a imposition death existed; sentence the trial judge’s most to an likely response would have objection been to blandly state that the prosecutor commenting on the evidence as he do, allowed and that had heard the evidence and could judge worth of these comments. conclude,

To defendant was not deprived of his consti- tutional to the effective assistance of counsel. Sentences Death and Imprisonment

Defendant’s Next, defendant requests this court to vacate his death sentence and his sentence of 30 years’ imprison- ment. In of his first support request, points to the sentences of imprisonment on imposed Wayne and Ann Walters for their involvement the murder of Po- lulach, them compares to his death, own sentence of and asserts that his death sentence is unfair and dis- grossly proportionate, and therefore should be vacated court in order “to do him justice between and his co- defendants.” In short, defendant asks this court to con-

134 his sen- review of duct a comparative proportionality tence and those of the Walterses. and under the United States

This court’s both duty, a death Constitutions, whether Illinois is to determine or or arbitrarily capriciously sentence has been imposed of the of- the circumstances considering is severe unduly prospects fense and the character and rehabilitative 37, 79 v. Harris Pulley (1984), U.S. the defendant. does amendment 29, (eighth L. Ed. 2d 104 S. Ct. 871 if statute review not require comparative proportionality consistent, non- rational, contains that ensure provisions as a statute of death such penalty, arbitrary imposition the death pen- that narrows the of cases which types the existence an sentence by requiring available alty factors, al- that one more statutory aggravating or evidence, and that mitigating sentencer to consider lows v. Ji- review); People meaningful provides appellate v. Brownell 12, 54; People merson 127 Ill. 2d (1989), I, 1970, art. 508, 542-44; Ill. Const. 79 Ill. 2d (1980), §11. to determine this court has used

One procedure case is unduly in a particular a death sentence whether of an accomplice it to the sentence severe is to compare at 54-55 (while 127 Ill. 2d or a codefendant. (Jimerson, death sen- it compares this court acknowledged codefendants, and accomplices tences with sentences case, compara- the court declared did so in this of capital is not a feature review tive proportionality on the our focus is Nonetheless, Illinois).) sentencing in the of- extent of involvement particular offense, the character back- fense, of the the nature record, criminal defendant, including any ground v. People (See, e.g., for rehabilitation. potential and his v. North Woodson 378, Free (citing 94 Ill. 2d (1983), L. Ed. 2d 280, 304, 428 U.S. Carolina This focus cases).) and other 961, 96 S. Ct.

135 guarantees sentencing individualized required by v. Lockett Ohio amendment. 438 eighth (See U.S.

586, 605, 973, 990, Ed. 2d S. 2965.) L. Ct. To sum in of a death reviewing up, appropriateness sentence, this court will examine the facts that partic- ular case and the evidence introduced at the trial and and, reference, death as a matter of it penalty hearing, consider the sentence on an or may imposed accomplice a in codefendant of his involvement in the offense. light case,

After the evidence in this hold reviewing we that defendant’s death is not sentence excessive. Defend- ant the prime mover behind this murder: He gratui- offered to kill Polulach in tously (“off bitch”) return Ann compensation when Walters to- expressed anger funeral; ward her after her stepmother father’s he pres- sured Ann and hire him kill Walters to to Polu- Wayne lach, even from suggesting borrow they money told him neighbor when did not have the they they $2,500 advance; to him money he the de- pay planned tails of the how he like killing, would dress to priest house, access to the with gain handcuff Polulach the help her, an shoot and accomplice, then a car escape driven a second accomplice; he carried out his plan, as a dressing priest guns and two and two ac- obtaining feet, and complices, handcuffing Polulach’s hands drag- her a set of she ging up stairs while kicked and screamed, waiting with her after his first would gun fire while his and accomplice got went a second gun which defendant had the to foresight and then bring, her shooting addition, twice the back the head. In there was evidence that defendant had been previously convicted for after he had as a robbery masqueraded po- liceman to into another woman’s house gain entry and her, her, then held a on handcuffed and blindfolded gun and robbed her house. The State also read into evidence for interstate previous transpor- convictions extortion, securities, burglary, forged attempted

tation of goods. of stolen possession not an excessive penalty that death is Our conclusion the fact not altered by on defendant impose murder, was sen- Walters, Ann pleaded guilty who man- three years’ imprisonment tenced 25 years’ Ann sentenced release. The who judge datory supervised no crimi- Ann had he had considered that explained herself, and was not the murder record, nal did commit had murder, for it been force the moving the fact the by idea. is our decision altered Nor im- sentenced to seven years’ that Walters was Wayne guilty conspiracy, after pleading prisonment and minor in this venture yielded had a part Wayne wife, Ann. and his on him defendant the pressure put no mur- would have been It is true that there probably $2,500 in ad- defendant if the had not paid der Walterses afterward, that the him more pay and promised vance murder, in the of participated planning Walterses statu- a murder is a another to commit hiring and that pen- one for the death factor qualifying tory aggravating But 1979, 38, 1(b)(5)). ch. par. Rev. Stat. alty (Ill. 9— the death cause us to conclude none of these facts The sen- on defendant was excessive. sentence imposed of this the circumstances appropriate given tence was character. murder and defendant’s his sen this court to vacate of request

Defendant’s for his armed robbery tence of 30 years’ imprisonment im the trial judge on the fact conviction is based of a presentence without benefit this sentence posed section 5—3—1 as required investigation report, 1979, ch. Rev. Stat. (Ill. Code of Corrections Unified held has In the this court 3—1). past par. 1005 — sen after valid although imposed death sentences Madej (1985), v. (People Ill. 2d 106 hearings tencing v. (People hearings sentencing and 211-12) nonjury Gaines (1981), 373-74) Ill. 2d without the sen- s tenced benefit of a having presentence investiga- tion have held report. imprison- We also sentences of ment although valid without the sentencer’s imposed benefit a having presentence investigation report when these sentences after death were imposed pen- had been conducted on the same defend- alty hearing v. (People Gacy ant’s other murder convictions. 1.) Ill. 2d In each of these cases our was holding

based on the reasoning re- sentencing judge ceived information the trial during penalty and death hearing that was any substantial infor- equivalent mation about background, the defendant’s criminal his- and tory, physical mental condition that would have been included in presentence investigation report.

The same in this case. The reasoning applies judge who sentenced on the armed robbery convic- tion was present the entire trial death during pen- alty hearing and so heard all the evidence then produced concerning defendant’s character and Fur- background.

thermore, defendant does not claim that he preju- diced—he does not claim that there was any information to the relevant judge’s sentencing decision that was not presented these during but have proceedings would been included a presentence There- investigation report.

fore, the we hold that sentence of imprisonment imposed on defendant is valid.

Constitutionality the Death Penalty Statute of We now consider defendant’s that arguments various of aspects the Illinois death statute penalty (Ill. Rev. 1979, 38,

Stat. ch. par. 1) violate the eighth and four- 9— teenth amendments (U.S. Const., VIII, amends. XIV).

As each to of these we reaffirm our arguments, prior that holdings the Illinois death is not penalty statute un- constitutional. eighth does not violate the death statute penalty the

or to on by failing fourteenth amendments impose a of a doubt beyond State reasonable proving burden to the that no factors exist sufficient mitigating preclude a v. Kokoraleis (People of death sentence. imposition 235, Ill. 2d have be- (1989), 292.) As we explained fore, a a hearing at the second of death stage penalty factors aggravating mitigating pre- of weighing occur, sented the State and is to defendant State no of of these has burden that proving weight that should factors is such a death sentence be imposed. 44, 68; 101 Ill. 2d v. People (1984), People v. Eddmonds Ill. 421. Free 2d (1983), con-

Next, arguments defendant makes two related stat- of the of the cerning constitutionality provision determines “If that ute stating: jury unanimously to there are no factors sufficient mitigating preclude sentence, shall sen- of the death court imposition 1979, ch. tence to Rev. Stat. (Ill. the defendant death” Defendant that this par. 1(g)). argues provision 9— on a defendant to places persuade jury burden owing mitigating he should not be sentenced death circumstances, and tells the that death is pre- so that the sumed to correct sentence and must this to defend- presumption. According overcome of ant, placement and the a burden this presumption and the process on a defendant violates due persuasion sentencing. of individualized eighth amendment principle bur- Likewise, defendant an unconstitutional argues on him as result den persuasion placed instructions, statutory which tracked the materially argument. and the language, prosecutor’s closing hold- to misunderstand our appears prior Defendant it such a burden ings place unconstitutional v. on Whitehead (People a defendant. persuasion court In 465.) 116 Ill. 2d Whitehead

139 stated its on this in one It “re- holding issue sentence: the defendant’s that the jected argument sentencing pro- vision on the the unconstitutionally defendant bur- places den of on the sufficient persuasion whether question circumstances mitigating preclude imposition exist of the death 116 at penalty.” (Whitehead, Ill. 2d 465.) We this for holding restate defendant’s edification: Such a of is on persuasion burden defendant the stat- placed by ute, but this is burden not unconstitutional. See People 324, v. 112 Ill. Olinger (1986), 2d (placing upon defendant of the burden evidence producing mitigat- ing factors is constitutional).

Placing such burden of on a defendant persuasion is constitutional at point hearing because this the the has prosecution already proven beyond a reasonable doubt that a factor statutory aggravating exists making eligible defendant for the death penalty (Ill. Rev. 1979, 38, Stat. ch. par. 1(f)), and the is now 9— weighing aggravating mitigating presented factors both the State and is by defendant. This precisely kind of capital sentencing procedure Su- approved Court; this preme procedure prevents both arbitrary imposition of the death class of penalty specifying murderers are who for the death eligible penalty, provides consideration of mitigating factors unique the offense and offender. See v. (1976), Jurek Texas U.S. 49 L. Ed. 2d 96 S. Ct. 2950.

We note that the defendant does not alone have a burden persuasion stage, for the balancing movant, State is the the death party seeking penalty, and so bears the primary burden persuading that, as the states, statute are mitigating there no fac- tors sufficient to preclude the sentencer from imposing the sentence of death for is which eligible.

See v. People Ramirez 98 Ill. (it 2d for the proper State have a rebuttal at the argument 140 “the af- the State bears because hearing penalty

death the death issue, penalty to show of the firmative imposed”). should be is a of balanc- this process note also that because

We it is to facts, improper not of intangibles, proving ing the After as a “burden.” having of defendants speak the the jury has attempted persuade State as movant at- a defendant may should be imposed, death sentence so. Whether doing the from to dissuade tempt he de- the whether jury, to dissuade attempts defendant “burden,” him; the law is up cides to take up him to take it up. require does not penalty hold that the death same we logic the

By create a presumption not unconstitutionally statute does instead, it requires the appropriate penalty; that death is is eligible that a defendant first to prove the State that, the jury and then persuade the death penalty, factors mitigating presented, aggravating given Furthermore, hold we penalty. death is appropriate nor instructions in the case neither to this issue relating closing argument the prosecutor’s improper. of the Illi- the constitutionality challenging Further that by contends statute, defendant nois death penalty decide whether discretion to unguided giving prosecutors decide, after a con- and to charge a capital to prosecute the statute vi- the death viction, penalty, to seek whether has not con- amendment; eighth olates rejections our previous should abandon us that we vinced v. Terrell People (See, e.g., (1989), contention. of his rel. v. Cousins Carey ex People 178, 226; Ill. 2d holding are aware 531, 539-43.) Ill. 2d We District for the Central District Court States United Court of States to the United Illinois, now on appeal Illinois death Circuit, for the Seventh Appeals 1) par. ch. Rev. Stat. statute penalty (Ill. 9— unconstitutional on grounds. these States ex rel. (United (C.D. v. Peters Ill. Silagy 1989), 1246, 1258, 713 F. Supp.

appeal (7th 1, 1989), docketed June 2129.) Cir. No. 89— But we state that in again on Federal constitu- passing tional State questions courts and Federal courts lower have the same responsibility occupy same posi- tion. Until United States Court has Supreme spoken, State courts are not from their own precluded exercising on judgments Federal constitutional questions. Because lower courts exercise Federal no jurisdiction appellate courts, over State decisions of lower Federal courts are on courts, State insofar as the de- conclusive except cision of a lower Federal court of become law may the case. ex rel. (7th United States Lawrence v. Woods Cir. 432 1970), 1072; F.2d see City also v. Chicago of 112; 2d People Stansberry Ill. v. Groffman Ill. 2d (1971), 47 541. we have also defendant’s

Recently, rejected argument that various of the each of aspects statute, which we have individually constitutional, held in combination result in the arbitrary and capricious imposition of death penalty. (People v. 127 Ill. Phillips (1989), 2d 542-43.) In Phillips we considered the combined effect of six of the seven aspects by defendant, identified inclusion of contention that the statute places defendant, a burden of on a proof contention we have already case, this does our disapproved not alter conclusion in Phillips.

CONCLUSION For reasons above, set forth we affirm defend- ant’s convictions and sentences of death and imprison- ment. We direct the of clerk this court to enter an order 13, 1990, as setting Tuesday, November the date on which the sentence of death entered by circuit court of Cook is County to be carried out. Defendant is in the manner by injection provided by

executed lethal Criminal of 119—5 of the Code of Procedure section clerk par. 5). Rev. Stat. ch. The (Ill. 119— of this mandate of court is to send a certified copy this Corrections, to the of State- to the Director of warden insti- Center, and to the ville Correctional warden tution where confined.

Judgment affirmed. CLARK, dissenting: JUSTICE correctly

Because I that defendant argues believe he of his constitutional to be was deprived at trial his exclusion from in-chambers I re- voir dire and would dissent prospective jurors, for a trial. in this case verse and remand new retained found sentencing phase; for the death and sen- eligible the defendant penalty him to tenced death.

Based on concern regarding public- defense counsel’s and on the prior on both the present proceedings ity court, the trial trial and this reversal subsequent who judge suggested any prospective jurors court case questioned indicated would be knowledge so to taint the further chambers as not remainder record, I note that six the venire. On review of the retired to the chambers for fur- venirepersons judge’s along reporter, ther with the court questioning prosecu- counsel counsel. The defendant appar- tion and defense in the these during remained courtroom ently the event, In he was not in proceedings. any Each instance of in-chambers voir judge’s chambers. dire will inher- detailed to a of the prior legal analysis be trial ent the undertaken the problems with approach court and accepted majority. the trial court had initially

While stated judge to for jurors would taken back chambers prospective further knowledge when indicated a questioning they this case due to the first to prior venireperson publicity, be taken into for a completely chambers was questioned B***, different reason. in to Venireperson responding indicated in court that he judge’s questions, open had on in previously served a murder case and this him from fair “perhaps” might being prevent At the trial court re- impartial. point judge that he come quested along back chambers with court and counsel. Before the court- leaving reporter room, trial court indicated to those judge courtroom: else where are.” “Everybody stay right you occurred in following exchange chambers: right.

“THE COURT: All Let the record reflect that juror, we are in chambers with counsel and the back Okay. you B***. Could elaborate? Well, lady

A. the trial was 1978. The approximately murdering was accused of her husband in We bed. subse- quently guilty. my found her not It was a case much to trial, chagrin long where first a it period was eleven to one and I being holding guilty. one out I my And either sold conscience down the stream or rec- on It either ognized handwriting going the wall. was or I going be a mistrial was to cave in and I caved in. Well, here, THE COURT: look at that was in right?

A. ’78.

Q. ’78?

A. Yes.

Q. All right. feelings regard You had these with your as a juror you services that case. You found— eventually guy guilty. found the know,

You there nothing wrong finding with some- guilty. one not At the same time— Well,

A. excuse me. If I It may interrupt. just was my feeling my lady guilty heart and I think job. the State’s did a Attorney poor Well, things

THE these Okay. you COURT: know happen, okay?

A. But I did what I—I followed the law. Well, you right thing.

THE COURT: did the Okay. feelings Even these concern- though you have time, as that are ing your juror you service forth it’s supposed to follow law and so and whether guilty guilty, you you or not know whatever that’s what So, are to do. supposed you would be able to follow again? law Well,

A. I it I it again. did once. could do Q. Well, that’s all I am to do. asking you I just beings. You know what mean. We are all human am, too, is, These are I Mr. Bean people everybody you is over here. Will to listen to the evi- able merits, dence and decide the case on its own is that cor- rect?

A. Um hum. Q. telling I Okay. by just you Uninfluenced am —if that I on its own you now want to decide this case courtroom, you merits and the law that I instruct in this would you be able do that?

A. Yes. right.

THE All Fine. Let’s Okay. go COURT: back out.” court,

Once open exchange back in-chambers on record the benefit recapitulated Rather, continued, as if defendant. trial court judge without from his interruption, previous questioning court: open *** you

“THE COURT: But have not otherwise been case, is that cor- any involved in other civil or criminal rect? No,

A. sir. now, sir, Q. you All here do Okay. right. you As sit who would be able to you’re type person believe here a fair and trial? give impartial both sides A. I am. background

Q. anything your All Is there right. assessing here in ought think we to know about you impartial juror? a fair and you whether could be No, A. sir.

Q. impartial? think fair and you you Do would be Yes, A. sir. the law

Q. you as I instruct you follow law Would is? Yes, sir.”

A. does not indicate that

The record exchange Venireperson

ever told of the chambers. until juror B*** as a prospective remained on venire the use of a pe- excused him with the defense counsel challenge. remptory indi- to chambers go

The second back venireperson not think that she could court that she did cated in open victim was (the fair victim age because her from The trial court judge stopped senior citizen). to chambers. comment and took her back

further counsel, N***, defense court reporter, venireperson to chambers judge counsel prosecution accompanied occurred: the following exchange where N***, a seat.

“THE COURT: Ms. have very looks familiar. The defendant Okay. MS. N***: look at him. you The more you. familiar to The defendant looks

THE COURT: close that door? you Could famil- mean, him, he does look I I never met but

A.

iar. know or somebody you like

THE COURT: He looks what? him, the news- mean, maybe I seen maybe

A. I have something. paper picture, talk about right. you All What did

THE COURT: talking your with friend? you when were alone, Well, attacked that lives someone

A. woman go I did, wrong. it was would thought we way they I against go go would for the State. wouldn’t for the —I defendant at all. So, you got your THE COURT: kind of have mind now, you saying? made is that what are up A. Yes. you

THE Based on what heard in these dis- COURT: cussions— me, know, you living

A. have alone. Could been So, you THE don’t feel could be a fair you COURT: and impartial juror? No, I

A. couldn’t. going you, THE I am to excuse ***.” Okay. COURT: N*** was then instructed to leave the Venireperson court via the back door and did not return to court- room. the record does indicate Again, defendant was informed about the in-chambers discus- sion.

The third to taken back to chambers for person be S***, questioned further was questioning, venireperson her concerns the death In penalty. open about regarding concerns, that “I have grave stating court she indicated that I to to put put anyone never felt could any —vote in cham- The occurred following exchange their death.” bers: *** Now, I a little right. All am bit

“THE COURT: my questions, okay? to your response confused about right. A. All am not

Q. circumstances—I maybe, unique You said you that I heard what said here. sure is, there some cases in I want to know are What capital punishment? you impose which could A. No.

Q. appropriate? If the law said it was A. No. it circumstances?

Q. any You could not do under just really I could. I don’t. A. I don’t think * * ^[*] excused, right. All You’re Okay. THE COURT: ma’am.” that the defendant indication record is devoid any

The when in chambers the proceedings informed about was court. and returned to open trial court counsel judge juror go C***, the fourth prospective Venireperson chambers, the first venireperson to the court’s read some an that he had on indication based questioned following exchange about this case. publicity pretrial occurred chambers: you tell us about what sir. Will Okay

“THE COURT: or— and saw you heard couple at that Well, newspaper

A. I read that were the time, living Chicago, I vic- they think were they later on or there were relatives and tims either that money. kill insurance hired her for someone So, just hum. that was a bare THE Um COURT: thing? type bones Yes, the newspaper

A. out of article. Now, right. just All know Okay. you THE COURT: newspaper, would something the fact that [in] here? being impartial from fair and prevent you No, A. sir. words, were

Q. right. they reporting In All other so allegations in the some something newspaper, judge this be able to set aside you forth. Would merits? case on own its Yes,

A. sir. mere fact that Q. you, would not affect That ago? years that in the some you paper have seen No, A. sir. was,

Q. many years how you remember when Do it ago long or was? how while, Oh,

A. it a about— Q. you, really? no on So that have effect Okay. would No, A. sir. out, bringing it

Q. know, you I appreciate You Okay. out, unduly single you you I don’t want

you know. just you It may know. have a better than memory it, some of the other people, they might have seen too. Another I am thing,

A. not sure whether this is one, might same but I think the accused be a Roman priest Catholic that been has thrown out of the order. No,

THE COURT: I don’t think is that the case. Then

A. that’s not one. right.

THE COURT: All one, But the right.

A. other THE something COURT: There was a priest about know, that I to you, you read dressing up about someone you know, or priest, Okay. uniform robe and so forth. All right.

Now, you too, didn’t answer I question, another think? Yes,

A. sir. Q. says It that would be in you favor imposing death on penalty every case? No, thought

A. sir. I I if answered the one only there is—

Q. About age something? or No, him, if against A. criminal evidence if the isman every guilty, yes, found case—

Q. Well, I Okay. what meant or let me back track. me, you Perhaps okay? misunderstood Okay. A.

Q. asking is, know, What I was you time there are some people that feel sort of like an an eye for tooth, or tooth eye okay? for a Let me break it down you. some That feel that if a people person guilty cases, and they’re murder convicted in all no matter what is, mitigation if it’s a who even husband murders his what, she pain, wife and is in extreme no matter even given that kind of mitigation always they should be Is put way you to death. that the feel? Yes,

A. sir.

Q. Youdo? Yes,

A. sir. THE Okay. right. much, COURT: All Thank you very sir. You’re excused.”

The trial court court judge, reporter re- attorneys turned to court open with no indication that the defend- ant was ever informed about the in-chambers proceed- ings.

The trial court judge to proceeded question prospec- jurors tive until the of 12 was The panel selected. court then recessed. When court reconvened the process of two alternates choosing was begun. prosecution and defense each had two challenges for this portion of the selection process. H***

Venireperson was the fifth prospective juror be asked to go back to chambers further questioning.

The trial court judge her questioned about a statement which seemed to indicate that she was against death in all. penalty cases. The following exchange occurred in chambers: Now,

“THE COURT: why reason I you called back here, ***, is I’m a little confused your about answer. And I realize that you are not placed in this position every day, in people asking you your about in capital belief pun- ishment and so forth.

I want to make sure that I understand what your feelings this, are respect with okay? I don’t want to have to do this in front of the jurors, rest of the because you know, So, okay? let me see if I understand what I— are you saying.

Are there some cases in you which could vote in fa- vor of capital punishment?

A. I don’t even know.

Q. give Let me you an example. Let’s talk about a case that received some publicity well, forget let’s about — that. I don’t give want to you particular examples. Let’s say it was just the worst crime that you ever heard about, horrible crime which the Defendant had a terri- ble record and it just crime, a rotten no-good rotten

no-good nothing good Defendant. There is him at about all; babies, just killed ten okay, you horrible. Could vote capital on such a impose punishment case? it,

A. I would feel bad about with kids.

Q. Oh, sure. Well, I’m asking you, any are there cases in which you voting could conceive penalty, favor of the death you just or would automatically against every it in case? No,

A. I don’t think I in against could be it all cases. that, you put Since it like I couldn’t.

Q. Well, I’m asking. that’s what Now, guide there will be law that will with you re- forth, spect mitigation to this determination and so and presented, aggravation and presented, get should we means, point. that There is no you just know—I’m ask- ing get about this in the you event we to this.

So, there in you are some cases which could vote favor of capital punishment, is that correct?

A. Yes.

Q. Okay, go fine. Let’s back out there.” In court, the trial court open judge reiterated the ques- if tion that asked in some cases the could juror impose answer, the Upon death her affirmative the trial penalty. court with The record judge proceeded questioning.

void of reference that that any would indicate defendant was made aware of the question- in-chambers ing. sixth, last,

The and to be venireperson questioned outside of the presence chambers defendant was This 0***. second venireperson only person on an that he based indication had read questioned in the about the crime oc- newspapers. following chambers, curred in with the court attor- reporter and but outside the neys, presence defendant: *** you you “THE Can tell us what remem- COURT: ber this? about I re- ago, Well, year, years two maybe about

A. Tribune, Magazine, Sunday Chicago in the member IAnd believe happened. about what big did a article they were involved. to all of the Defendants talked they detec- police is a retired friend’s father my And wife’s were tive, people he knew some of guess and I area, all in that case, we lived in the because involved that. a half a mile from about are on Keeler?

THE You COURT: out, came fact, paper day A. In that same case, we drove over talking about we were what her told us about girl house. And the looked at the our- the case between talked about father said. And we the man who until mentioned you It wasn’t selves. I started re- in and then as a and went up priest

dressed all the details. membering what me if I understand I see. Let see

THE COURT: pretty mind you your me so far. Do have you telling are into it going we are made this case as up much about right now? on it back of discussion Probably.

A. We had a lot they were wanted And I think some of the details then. in- her husband was money,

to kill the woman for that, large like and had trucking, something or volved dollars, and hundred thousand money, couple amounts of that. they wanted So, something have read right. you

THE All COURT: friends, your have discussed it with about this case. You is that correct?

A. Um-hum. set you could Do believe you

THE COURT: this case and the decision on your all that and base aside and not in this courtroom would hear you evidence that this outside material? be influenced I know.

A. don’t not you whether or You don’t know THE COURT: case, in other juror in this impartial could a be fair words, right? right. That’s

A. THE you COURT: Have discussed this with other ju- rors?

A. No. guess

THE I you COURT: didn’t have a chance to.

A. No.

THE COURT: I’m going discharge you from ser- vice in this case.”

The trial court court judge, reporter re- attorneys turned to court open where the judge continued ques- tioning alternate Two prospective jurors. alternates were chosen the State’s use one following of and the challenge defense counsel’s use of challenges. two Based on the or- der the alternates prospective were questioned, H*** venireperson chosen as an alternate.

To summarize far, the so proceedings this capital case six venirepersons were individually questioned the judge’s chambers outside the presence defend- ant. The court and defense reporter, prosecution attor- neys six, were Of the four present. were discharged by the court cause, trial for one judge remained available for the but was jury eventually challenged the de- counsel, fense and one remained as an alter- available but, nate on based number alternates needed and the order of those questioned, was not chosen ultimately sixth (she was alternate prospective questioned, 1, 3, and 4 numbers were numbers and 5 challenged, were as alternates). selected the defendant majority argues does not have

a constitutional selection right be- cause the to a right guarantees to an only Furthermore, unbiased jury. insists that majority Court decisions which address Supreme issue base their on or presence holdings statutory common law here. absent These en- principles arguments issue; miss crux it tirely nearly century has been well that: accepted leading principle pervades entire law of

“[a] procedure that, found, criminal after indictment noth- ing shall be done in the absence of the prisoner. While has, times, this rule misdemeanors, at and in the cases of relaxed, felonies, been somewhat yet in it is not in the of power prisoner, by counsel, either himself or his waive right personally present during be the trial. *** '*** Utah,

In Hopt v. 110 U.S. 578 it is said: prisoner is entitled to an impartial composed per- sons not disqualified statute, by and his or liberty life may upon which, depend aid his by personal presence, may give he triers, counsel and to the court and in the jurors. selection of The necessities of the may defense by not met the presence be only. his counsel For every therefore, purpose, involved in the requirement defendant shall be personally present trial, at the where the indictment is for a felony, trial commences at least from the time when the work of impaneling the jury begins.’ And further: are opinion it was not ‘We within the power of the accused or his counsel to dis- pense with the statutory requirement as personal to his *** presence at the trial. That which the law makes es- sential in proceedings involving the deprivation of life or liberty cannot dispensed with or affected the con- accused,. sent of the much less failure, mere when on trial custody, and in to object to unauthorized meth- ” ods.’ (Emphasis added.) Lewis v. United States (1892), 370, 372-74, 146 U.S. 36 L. 1011, 1012-13, Ed. 13 S. Ct.

136, 137-38. While the Court in Hopt obviously discussed Supreme the statutory construction of law, the Utah Lewis recognized the common law rights granted to the indi- vidual, of particular importance to this case, Hopt Lewis noted that an to be present individual’s trial begins with the impaneling jury.

The Supreme Court has not expressly rejected broad and Lewis Hopt language cases. subsequent My review of the cases indicates that although the Court cases, its two it did so

limited the of earlier application to the basic continuing recognize very concept while only the defendant has a to all right present during be of his trial. stages

Diaz v. United States 442, 56 223 U.S. L. Ed. a who 500, 250, 32 S. Ct. dealt with absented the examination and cross-examination of during himself issue of the witnesses. Before the addressing two courtroom, from the withdrawal voluntary first the Court noted: courts, accord, of felony

“In cases our substantial with during regarded right it to as present have trial] [the trial, extending to- of the inclusive of the em- every stage verdict, the the paneling reception of the and of and than being important as less to the accused the scarcely they of trial And with accord have re- right itself. like one garded custody an who is and who is accused as of charged incapable waiving with a offense capital one, his is not right; presence or absence because because, in control, his and the addition within own other being he deemed to suffer the usually custody, to incident to of the naturally apprehension constraint an (223 follow penalty awful that would conviction.” U.S. at 455, 505, 254.) Ed. at 56 L. at 32 S. Ct. after this basic not disavow- acknowledging right,

Only it, to note that in cer- go did Court on ing Supreme The inoperative. Supreme tain cases the could be at from of Columbia Court District Court quoted length reasoning which it found sound: Appeals of decision’s “ whether question public policy, ‘The is one broad crime person, placed upon pro- an accused trial for and safeguards humanity all with tected which him, law surrounds can sedulously our criminal law, paralyze impunity processes of that defy with juries, and and turn them into of courts proceedings farce, ultimately society, its own compel a solemn and principle per- safety, operation restrict in criminal in civil cases will the liberty. sonal Neither nor law a take person advantage allow of his wrong. own And it if yet precisely would be what would do it per- prison, an or escape absconding mitted from an from the jurisdiction large bail, while during at on the pendency of ” a jury, operate trial before a shield.’ (223 as U.S. 506, 255,

at 56 L. Ed. at 32 S. at quoting Ct. Falk v. (1899), App.

United 460-61.) States D.C. Diaz Court held that defendant could not purpose- himself then fully absent claim that he was wrongly on convicted based The Court in- specifically absence.

dicated the prior rulings Hopt Lewis did Diaz, prevent present ruling. its 223 U.S. at 56 L. 506-07,

Ed. S. Ct. at 255. The Court next addressed the of Supreme issue a v. defendant’s trial Snyder presence at proceedings Massachusetts L. (1934), 97, 674, 291 U.S. 78 Ed. 54 S. Snyder

Ct. 330. a claim involved defendant’s of error based on absence his from view of a jury’s specific Snyder Court, scene. The specifying about language a Hopt Lewis dic- presence defendant’s found in and was tum (291 n.2, at 117 78 L. n.2, U.S. Ed. at 684 S. 54 Ct.

at 336 without n.2), which explicitly stating language, spe- noted that of cifically “[njowhere the decisions dictum, court is a and there still less a ruling, that Fourteenth Amendment assures the privilege presence when would presence useless, be or the benefit but a 106-07, 678, shadow.” U.S. at 78 Ed. at S. (291 L. 54 Ct.

at that, The Court as 332.) held far the Fourteenth “[s]o concerned, Amendment of a defendant is presence a condition of due to the extent that a fair process and just absence, would hearing be thwarted and by to that 107-08, extent U.S. at only.” (291 78 L. Ed. at 679, 54 Ct. at Rather, S. 333.) defendant’s presence ], must or be assumed to may fairly bear, rela- “bear[ tion, substantial, reasonably to his to de- opportunity fend.” U.S. (291 106, 678, at 78 L. Ed. 54 Ct. at at S.

156 The defendant’s is a 332.) presence “privilege [which] at be lost consent or times even misconduct.” may by 106, 678, at 78 L. Ed. at at 332. U.S. S. Ct. did not overrule its decisions in prior Hopt Court Lewis, and wherein the Court had found the defendants’ error; rather, every absence the Court said that not ab- In sence is error. the defendant’s at Snyder, presence have offered it would jury’s nothing, view would have been “useless.”

In 25 L. Ed. 337, Illinois v. Allen 397 U.S. 2d 353, 1057, 90 S. Ct. the Court confronted with voir dire question presence during trial when “he portions engages speech is so and conduct which noisy, disorderly, disruptive it difficult or is exceedingly wholly impossible on the at 25 L. 2d at (397 trial.” U.S. Ed. carry 356, 90 S. Ct. at The trial court had removed 1058.) courtroom; defendant from the conviction the following he convicted defendant asserted that had been wrongly in his unchanged posi- absence. The Court reiterated its tion, Lewis, as enunciated in of the most ba- that “[o]ne guaranteed sic of the Confrontation Clause rights is the at accused’s in the courtroom his trial. every stage (Emphasis added.) [Citation.]” 25 L. Ed. at at (Allen, U.S. 2d 90 S. Ct. However, the Court relied on Mr. 1058.) Justice Cardo- zo’s statement in the held that Snyder, wherein Court lost, the could and held: privilege be

“Although indulge every mindful that courts must rea- against sonable the loss of constitutional presumption rights [citation], today we hold that a defendant explicitly if, right present can lose his at trial after he has be if judge been warned the that he will be removed he behavior, continues his he insists disruptive nevertheless on in a manner conducting disorderly, disrup- himself so tive, the court that trial cannot disrespectful and of

157 be carried with in lost, on him the courtroom. Once the can, course, right to be of present be reclaimed as soon as the willing consistently defendant is to conduct himself respect with the decorum of concept inherent in the (397 343, courts and judicial proceedings.” L. U.S. at 25 358-59, 2d at 1060-61.) Ed. 90 S. atCt.

Once again, the Court Supreme recognized the of a right defendant present before it concluded that could, circumstances, in certain be lost.

Furthermore, the Supreme Court’s decision United States v. Gagnon (1985), 486, U.S. Ed. L. 2d 105 S. Ct. is not on point. Gagnon an involved in- chambers conference on the afternoon of first day trial between the trial judge, juror, and defendant Gagnon’s counsel. defendants, The other defendants’ at torneys prosecution were excluded. The attorneys conference was necessitated aby juror’s concern over defendant Gagnon’s sketching of the jurors during morning’s proceedings. The had judge ordered already Gagnon, court, open to cease the practice drawing.

The conference, purpose suggested by Gagnon’s lawyer, was to ascertain if the juror was prejudiced now against defendant and to assure the juror defendant had been instructed to refrain from making further any drawings. Court cited to language Snyder which indicated that the presence defendant’s when there is a substantial required relation reasonably ship against charge to defend opportunity be fore it held there no was such substantial relation 526-27, in this case. 470 U.S. L. Ed. 2d at ship 490, 105 S. Ct. at 1484. no court

Though previously case decided this is ex- court on has addressed the is- actly point, previously sue v. at trial. Smith presence People 6 Ill. 2d a case in which the presented the close of State’s through the remainder of the proceed- from

case but was absent This court noted He was convicted in absentia. ings. that the to be and right present both the of defendant that, in finding before the ab- could be waived right that the defendant’s sence of an affirmative statement that he had his to voluntary right absence was or waived must remanded for a new trial. be the case be present, This court noted: right ap-

“The is clear that an accused has the to law counsel, in that by and as well as and pear person defend participate every to and to at present he is entitled be *** the accused is stage of the trial. Where [Citation.] pres- the error is not present person, not cured counsel, power his no to attorney of as has' ence his his to right present. waive be [Citation.] that It is well established this constitutional also his every step may, to taken in case right present be Thus rights, prisoner. like other be waived many from the voluntarily a absents himself where rendered, a runs at the moment verdict or courtroom *** verdict, he he away from the court after learns right have to be and can- present is deemed to waived any advantage claim on account his absence. not [Cita- (6 416-17.) Ill. 2d at tions.]” that, the record failed to

This court concluded because voluntary absence was or show that the defendant’s he had waived the be right present, the defendant a new trial. 6 Ill. 2d at 419. was entitled to to be The waiver question v. this court Mallett People further addressed by In had taken 30 Ill. 2d 136. Mallett court resumed, the trial began brief recess. When witness noted defense counsel answer before questions brought The defendant was present. defendant was had occurred started to what explain court interrupted his absence. during prosecutor the testimony asked the defense counsel stipulate would Both same. defense counsel and the defend- ant (30 “Yes.” Ill. 2d at replied 141.) Despite the defend- ant’s acquiescence, this noted court that: assumes and it knowledge cannot be

“[w]aiver [citation] said defendant to knowingly right waived his be present unless he was to fully advised as the testimony which had (30 142.) been heard in his Ill. 2d at absence.” See People also v. Davis 39 Ill. (1968), (conviction 2d reversed and remanded for a new trial where entire trial was held defendant’s absence). court’s

This decision in v. Martine People Ill. is not 2d to the law enunciated. contrary already In Martine the defendant was being on redi- questioned rect when prosecutor to the objected questioning, that it stating beyond was of scope the cross-exami- nation. At the prosecution, of the suggestion defend- ant was asked to leave the courtroom an while offer made proof was defense counsel. Ill. by (106 2d at 438.) This court noted its agreement with the there was no reason her valid for exclusion but held that it did not “violate her constitutional rights, she absent only on a during argument law, and question this did not violate her to be right present every step of the 106 Ill. 2d at proceedings.” 440.

Martine not so should be read as to broadly suggest that a right defendant’s to present be is satisfied when he is to allowed meet witnesses and face-to-face hear tes timony presented against him. This court acknowledged that a a defendant has to be right present order to protect right. a substantial Ill. (Martine, 106 2d at 439.) when a defendant’s Only would be or presence useless when the court is a to addressing only question law which the defendant could add is the nothing presence (106 440.) Ill. 2d at The required. defend ant’s presence during voir dire is neither useless nor a matter only of law. involving question the fol- offers the Illinois Constitution

Moreover, lowing protection: After Indictment Rights

“§8. shall have the the accused prosecutions, In criminal counsel; to person and defend right appear and have of the accusation the nature and cause demand and to thereof; face to face to meet witnesses copy of witnesses in compel the attendance process have impartial trial an behalf; speedy public to have a alleged to have the offense is county in which I, 1970, art. Ill. Const. committed.” §8. been from and distinct separate to be right as both Though, confront witnesses. right held, court have Court and this States Supreme United to certain or not attach may waived may useless, neither would be presence where proceedings has ever Court Supreme nor the United States this court “useless” of the was such a that the selection jury held noted the by Supreme of the As proceedings. portion Lewis, above, and never Hopt discussed Court In the of the is crucial. disavowed, jury the selection life of the lie the very 12 people may hands of these with a deci- court not here confronted This is defendant. in- the have no may over which defendant sion law a so, jury the process impaneling put —were used questioning process not the extensive require would choose the first 12 in voir dire and we would merely The present into the room. walk happen who people not indication of record, give of the does case, on review the or of waiver intelligent by a knowing as to require on the of the defendant such conduct part in-cham- included in the He was not simply his removal. voir dire process. bers ju- that of the prospective the majority argues

While had any could not have the defendant rors questioned, dis- most were the selection because process impact upon court, for cause the charged argument begs The end does not the means used. question. justify Only after the cer- right was denied are we able to with say that the as to tainty defendant would have had no input the four. Such not excuse the denial of hindsight may such an important right.

Even one without the defendant’s juror’s discharge much, full is too as this case shows. presence clearly B***, above, ex- Venireperson length discussed at was cused with the exercise of a challenge peremptory defendant’s own counsel. This action taken without benefit of defendant’s full into selection input It that the selection of a is is well process. accepted on the defend- based Had extensively subjective analysis. dire,

ant been for all of the voir it is phases demeanor and answers quite possible juror’s would have caused the defendant his attor- persuade not to exercise a ney challenge and peremptory keep case, on the In venireperson where jury. capital one juror’s may prevent vote of the death imposition this court should that a penalty, not conclude absence when even be single juror questioned may error, allowed. Neither can this be called harmless for a basic our Constitution and our right guaranteed by sys- tem of was denied the defendant justice without his waiver or fault. The defendant lacked vital information on to assist his which counsel with selection as to B*** and H***. venirepersons

Errors of such a constitutional must not magnitude on a of the issue. I negated based misconstruction do that a defendant is entitled to an deny impartial jury. note, however, I that that is not the crux of the issue be- fore this court. The defendant right was denied during all him. The denial of proceedings against is not cured or corrected instead by arguing that it does not matter he had because an impartial jury.

It does not matter the defendant had an impartial The defendant’s jury. presence is vital to our system I justice and therefore dissent. .

(Nos. 67480, 67481, 67482, 67483 cons THE ILLINOIS, PEOPLE OF THE STATE OF Appel

lant, NEWS, INC., v. CAPITOL Appellee. — THE THE ILLINOIS, PEOPLE OF STATE OF Appel lant, MIDWEST, v. CENTRAL VIDEO Appellee.— THE PEOPLE OF THE ILLINOIS, STATE OF Ap v. pellant, BOOKSTORE, GENTLEMEN’S ADULT INC., PEOPLE OF THE STATE Appellee. — THE ILLINOIS, OF PHILLIP Appellant, MORGAN, v. D. Appellee.

Opinion May 23, Modified on denial filed 1990. 1, 1990. rehearing October notes of handwritten 1981 and two pages In these therapists. conversations with Youngbrandt’s many identified personnel six pages, psychiatric to ex- Youngbrandt caused of the stress that had sources alcoholism, and suicidal tendencies. depression, perience “kidnapping” included These sources custody in protective her Youngbrandt, being placed being her worries about Chicago, when she returned re- threats had trial, and she witness in defendant’s first that The records revealed ceived from defendant’s sister. murder case in the her involvement she felt about guilty that she resented her effect on family, its had to of his actions she as a result because get new apartment, a new job, and new friends. The disclosed records also contained statements about her depression, chronic alcoholism, and other of her aspects mental state, and contained information about what were drugs prescribed her, her use of illegal drugs, and some of the other in her life problems and how they affected her. the trial Additionally, judge told the attor- that neys Youngbrandt had been depressed February 1986 in because she part would have to at testify defend- ant’s second trial. The trial all found irrelevant other judge information in the records that he had not disclosed, and he stated records did not indicate that Youngbrandt had time delusional or from a any suffering been mental illness her affecting abilities or perceptual memory. records, he refused to disclose these other Though trial did not restrict extent the judge any scope defense’s cross-examination of Youngbrandt her about addition, mental health In problems. access to the other records was denied the as prosecution, well as the de- fense. trial, At defense counsel used some disclosed information in Youngbrandt. cross-examination of De- counsel asked fense her if she had told her psychiatrist that she murder, had witnessed a as one of the discharge stated; summaries Youngbrandt explained incorrect and her have psychiatrist must misunderstood. Under cross-examination admitted Youngbrandt

Case Details

Case Name: People v. Bean

Court Name: Illinois Supreme Court

Date Published: Apr 18, 1990

Citation: 560 N.E.2d 258

Docket Number: 65062

Court Abbreviation: Ill.