People v. Bull

(No. 81578. ILLINOIS,

THE PEOPLE OF THE STATE OF Appel- lee, BULL, v. DONALD Appellant.

Opinion Rehearing November denied filed 1998.— February 1999. MILLER, J., joined by FREEMAN, C.J., McMORROW,J., and specially concurring.

BILANDIC, J., joined NICKELS, J., by specially also concur- ring.

HEIPLE, J., specially concurring. also HARRISON, J., concurring part dissenting part. and Defender, Schiedel, Springfield, of Deputy M.

Charles Defender, of Chicago, of both Clark, Assistant and Steven Defender, appellant. for the State Appellate the Office of General, and Attorney Springfield, of Ryan, James E. Attorney, of Lewistown Danner, State’s Edward R. (Barbara L. General, and William Preiner, Solicitor A. Attorneys George, M. Assistant Penelope and Browers counsel), People. General, Chicago, the opinion FREEMAN delivered JUSTICE CHIEF of the court: court of Fulton in the circuit jury trial

Following Bull, defendant, was convicted Donald County, daugh- her Tompkins murder of Donna degree first deaths, their homicidal Justine, ter, the concealment 720 ILCS their home. See arson of aggravated and the 1992). 1.1(a)(1) (West Defen- 1(a), 3.1(a), 20 — 5/9 — 9— his sentence. judge trial determine to have the dant chose judge trial found hearing, sentencing a separate At further penalty for the death eligible to be defendant circumstances mitigating were no determined that there of that sentence. imposition preclude sufficient sentenced judge the trial Accordingly, convictions, five- to a consecutive murder death on the convictions, and death the homicidal term on year prison arson convic aggravated on the term 30-year prison to a concurrent penalty to the death tion, consecutive been death sentence has term. The prison the other with Ill. Const. this court. by review direct stayed pending 609(a). af We 4(b); Ill. 2d Rs. VI, § 1970, art. firm.

BACKGROUND fol- essentially as trial was evidence at The State’s victim, worked 30-year-old Tompkins, lows. The Donna Bank. in the Beginning spring at the Canton National also worked as a waitress at the part-time she apart- Canton Elks Club. In October she rented an ment at 367 S. First Avenue Canton for herself case, three-year-old for the other victim this her daughter, Justine. Club, Price,

A at the Elks Iona coworker Donna’s introduced Donna to defendant. He worked with Price’s husband, Mike, delivering furniture. Donna told defen- dant that she wanted to buy apart- sofa bed for her new ment, and responded that he had one to sell. Later that evening, Price warned Donna not to allow de- fendant her if apartment she were ever there alone. into

Defendant soon thereafter sold Donna a used sofa arranged bed. She for defendant to deliver the sofa while mailbox, she and Justine were not at home. her she left for defendant a check for the key sofa bed and the her apartment. a.m., 13, 1993,

At 9 on January Donna had yet coworker, Sisk, arrived at the bank. A Sheila reported Donna’s absence supervisor, to her David Haynes. He telephoned apartment Donna’s and received her answer- ing later, machine. A time again short Sisk telephoned Haynes and this time reported Justine was not at day her care center. suggested Sisk that Haynes go to apartment Donna’s and check on her.

At a.m., approximately Haynes 9:15 left the bank and drove a few apartment. blocks to Donna’s He parked behind Donna’s car in the garage driveway. He knocked on her apartment door and did not hear an answer. He attempted to look apartment into the through windows door, next to the but could not see anything. Haynes went to adjoining apartment speak with the owner of the building, Pauline did Newcomb. She not know if the victims Haynes were still at home. telephoned the from Donna was not there. apartment;

bank Newcomb’s Haynes telephoned police department then the Canton for assistance. Haynes

While on the heard knocks on the wall phone, hanging up, puff or floor. After he noticed a faint emanating adjoining Haynes smoke from the wall. her apartment. instructed Newcomb to leave door; Haynes open ran to Donna’s he still could pulled it. He ran to a window and out from the window Smoke, an air conditioner. under billowed out pressure, to the opening. Haynes apartment from the ran back door, and door, broke a window in the reached inside only bright the door. He could see smoke and a opened building, ran to the rear of the broke orange glow. Haynes windows, Reaching and called out to the out victims. victims, furniture. Haynes only inside for the felt arrived, depart- A who called for the fire police officer extinguished arrived and the fire. Firefighters ment. soon set, fast, intentionally The fire had and had been been intense, extremely hot. charred remains of the

Firefighters discovered the metal framework of the They were found on the victims. lay bed, from the sofa. Donna extending sofa bed mattress; her legs what had been the rigidly faceup on lay frame. Justine over the of the mattress hung edge curled on her side next to her mother. had been saturated with

The victims and the sofa bed A trail of the acceler- kerosene, whiskey. gasoline, the door. The pool by had to a formed poured ants been probably the victims pathologist opined prosecution to the prior or to death strangled had been smothered death, to her Also, prior Donna had drunk alcohol fire. to when. the evidence conflicted as but fire, living ap- was before the night On the home, at 10 blocks from victim’s proximately Also Hillemeyer. new Rochelle girlfriend, home of his They were David Nell and several others. present played a.m., drank approximately cards and beer. At defen- dant car to Hill- Hillemeyer’s borrowed drive Nell home. emeyer a.m., to bed. at went When she awoke around yet defendant had not returned. home,

Instead of to defen- driving directly Nell his dant drinking drove around Canton beer for approxi- mately 30 minutes. Defendant twice drove Donna’s past apartment. Each time defendant drove he past, pointed apartment to the victims’ and told that Nell “he would her,” f —k referring Nell, like to to Donna. According to “he girls [defendant] said that about all though.” mother,

Hillemeyer’s Jacqueline Day, drove to Hill- emeyer’s home on the morning the fire to take one of her children to Day errands, school. While was out doing she noticed Hillemeyer’s parked car within a block of the apartment. Day car, victims’ and her stopped exited and inspected Hillemeyer’s Day tire, car. did not see a flat or anything wrong Day else with the car. returned Hill- emeyer’s home at around 8:30 a.m. Defendant had not yet returned. a.m.,

At around 9:45 defendant Hill- returned with emeyer’s car. Defendant told Hillemeyer that he had a injured flat tire and had leg attempting his while change the tire. Defendant Hillemeyer further told he had However, entered the car and slept. upon inspec- tion, did Hillemeyer any injury not see to defendant’s leg. Defendant also mentioned that he had bloodstains on his a injury. coat as result of his When Hillemeyer him, told defendant that she had not seen any cuts on he responded that the stain probably was transmission fluid. He washed his coat in their machine. washing sleep. stayed

Defendant went to He home from work though even he was day. scheduled to work that When he awoke, defendant took car and Hillemeyer’s garage to a had all four replaced. during tires Sometime the next months, that “if the Hillemeyer

several defendant told my you want to don’t have to police things, ever search let them.” 1993, investigators learned January police

On had the sofa bed from defendant. On bought that Donna date, to the what he told repeated police Hillemeyer morning on the of the fire. 21, 1993, Wright Jo Ann overheard defen- On March “he could kill talking dant in a bar. He said that get caught.” it and not somebody get by with recovered from Donna’s remains. sperm Intact was blood from Donna’s Investigators requested samples husband, her then-current estranged Tompkins; Jon Franciskovich; Terry prior boyfriend, Rod a boyfriend, and defendant. The first four vol- Haynes; Haynes; David Defendant refused until around March untarily complied. in a different case. when he was arrested case, warrant the State obtained search hair, blood, clothing fibers. samples of defendant’s Laboratory Police Forensic Science The Illinois State men, that, only of the five defendant’s DNA determined recovered from Donna’s sperm matched that of the Indeed, according prosecution to the DNA remains. from Donna the chance of the DNA recovered expert, defendant was at least one anyone other than matching in 210 million. 29, 1993, obtained police investigators March

On defendant’s possessions. consent to search Hillemeyer’s that defendant box in the bedroom Officers found a closed box, In the officers found sev- Hillemeyer. had with shared rings of these as identified one rings. eral Witnesses further, it off. Donna; she never took belonging Harold Crosier that 15, 1993, defendant told July On De- to her death. days prior Donna a few he had sex with watching program a television and Crosier were fendant also told Crosier Defendant that discussed DNA. apartment found in Donna’s not have been could blood Defendant also it have incinerated. been because would Hille- had left at ring over a he concern expressed home. meyer’s 17, 1993, defen- July Mike Price dated

In a letter Saturday on the he had with Donna dant stated that sex “that He further wrote: Sunday to her death. prior or my her and last.” my second time with was to Chris Chester In March defendant confessed Defendant told Ches- he had murdered the victims. relationship had a with following. ter the Defendant murder, had been drink- night Donna. On the of her he and apartment key He her from her mailbox ing. took her and a.m. Donna told de- midnight woke between them, it was over that it a bad fendant that between was he idea, money and that all wanted was and sex. Donna defendant. The next defendant remem- slapped thing to, waking up was on of her. he came his top bered When her; face, hands were on on she was leaning Donna’s did room, dead. Defendant heard Justine the next and left thing” “the same her. Defendant then Donna’s Hillemeyer’s car, apartment parked and walked to around later, junkyard. corner A near short time apartment fingerprints. returned to the his wiped something. forgot He set the on fire because he apartment 30, 1994, charged in a 10- On June defendant was mur- degree with of first count indictment seven counts der, i.e., intentional, knowing, felony murder (a)(3) (720 1(a)(1) through ILCS Donna and Justine 5/9 — (West 1992)); two counts of concealment homicidal (720 (West 3.1(a) 1992)); and count death ILCS one 5/9 — 1.1(a)(1) (West (720 ILCS aggravated arson 5/20 — 1992)). was on all Defendant tried counts. case that the State failed essentially defense was charged beyond of the offenses prove guilty defendant presented

a reasonable doubt. The defense evidence the strangled smothered, victims were not or charged as counts, in most murder but rather died from inhal- ing superheated gases the the fire produced. The presented defense evidence that criticized the State’s method, testing DNA showed defendant’s DNA did not match that found in the semen recovered from alia, inter defense, Donna’s remains. The attacked the and fairness of the adequacy police investigation, the credibility of and Chester, Crosier and the identification ring. of Donna’s The defense argued that there was no evidence that had sexually assaulted, Donna been as in felony the murder charged count. The defense also argued that the murderer true was David Haynes. the evidence,

At close of jury gen- the returned charged. eral verdicts of for the crimes guilty jury. Defendant a sentencing judge waived The trial a presence found statutory aggravating factor: de fendant had been convicted of or murdering two more (West 1992). 1(b)(3) See Thus, individuals. 720 ILCS 5/9 — judge trial concluded that eligible defendant was penalty. the death stage

At the second of the capital sentencing hearing, presented included following. State evidence that was charged defendant Donna strangling with his former Rupe, sister-in-law, nearly to the point He repeated death. this several times until she eventu- ally escaped. Defendant was of aggravated convicted bat- tery and sentenced a five-year prison term. charged

Defendant strangling was with Valerie Hilton, 23, 1993, an On a acquaintance. March after few bar, drinks Hilton for a asked ride home. route, there, En he her defen- park. directed to a Once dant he explained that wanted to have sex with Hilton. away. She turned refused started drive Defendant strangled car and until passed off the Hilton she out. regained consciousness, When she was she facedown she told defendant that her car. Hilton seat of the back Defen- if he her home. police drove go not would her home, she brother. telephoned drove her and dant to a and then took her to the police brother Hilton’s of- for that was incarcerated While defendant hospital. Defendant was charged in this case. fense, he was other battery. Two ultimately aggravated convicted defendant, encounters with testified about their women charges. in did not result criminal which follow- mitigation evidence included the Defendant’s it at the IQ ranked average; Defendant’s was low ing. indica- There clear population. 2% of the were bottom a resulting from dysfunction possibly tions of brain learning He has a motorcycle language-based accident. slowly, mentally impaired. and is Defen- disability, thinks Also, his drugs. abused alcohol and defendant loved dant mother, in had him. Defen- whose death devastated father, de- close to who had often called dant was not his always had tried to fendant or dumb. Defendant stupid However, and to him. please obtain his father’s attention drinker; he was excessive also was defendant’s father an womanizer; family a and left the when gambler, a and he years old. Defendant had married defendant was after They and had children. divorced Rupe’s sister two defendant attacked Rupe. "the sentencing hearing, judge

At the trial close mitigating concluded that there no circumstances were the death preclude imposition penalty: sufficient Bull, please “THE Mr. COURT: Will the defendant rise? aggravation mitigation and I have in reviewed factors find, essentially, State’s] in this I that [the case. character- statutory in There factors ization is the correct one. are no mitigation. aggravation, you In caused the death have you fac- people two and a criminal record. other have your brought concerning in mitigation tors that forth were your background concerning problems, and academic up your in fam- concerning problems you growing had ily, mitigation do rise to the level of Court’s they help understand, fact don’t anyone view. even or understand, you what have done here. young snuck this apartment,

You into [sic] women’s at night, you raped you her. strangled And her to death. you And if have I think stopped would there life without parole acceptable sentence, would been an you have but stop didn’t You girl you there. heard little strangled you her and your then set them on fire cover you But your tracks. didn’t cover tracks because this isn’t totally your deposit, circumstantial case. You left little DNA, your your young despite [sic]. women And ef- up, you to cover forts have been unsuccessful. said, I you stopped Like if have with [sic] would Donna I Tompkins think life parole without would have been ac- ceptable, you Justine; but didn’t. You heard who couldn’t you. you. identify hurt Who couldn’t Couldn’t have testi- against her, you, you that, fied and killed and for Donald Bull, I you sentence to death.” earlier, As stated the trial also judge sentenced defen- dant on prison Also, terms the other convictions. defendant’s in prison sentences this case were consecu- tive to the prison serving sentence he then was his attack on Hilton.

Defendant appeals. pertinent Additional facts will be in the of appeal. context the issues raised on discussed

DISCUSSION (1) Defendant contends: the search of closed box his (2) Hillemeyer’s unreasonable; bedroom was questioning juror of a his denied him absence several (3) constitutional and rights; the evidence was insuf- ficient him a prove guilty beyond reasonable doubt. Defendant also contends that was denied a fair trial he (4) the trial court: because barred defense cross- examination of the DNA prosecution expert regarding his with crime labora- disciplinary police record the state (5) an tory, and admitted out-of-court statement Iona during Price her testimony portions testimony (6) did not he Defendant contends Tompkins. of Jon eligibility at the death hearing sentencing receive fair mental made as to the were not findings because phase Defendant penalty eligibility. for death required states (7) by denying his several erred the trial court contends hearing. evidentiary an without motions pro post-trial se (8) death the Illinois contends also Defendant death because statute unconstitutional penalty to innocent persons, be penalty inevitably applied will consideration of meaningful precludes the statute circumstances. mitigating

I. of Closed Box Search erred in first trial court Defendant contends ring as suppress motion to evidence denying his to Donna. Defendant claims that belonging identified as Hillemeyer’s his box in bedroom was the search of closed and, he receive a new consequently, must unreasonable trial. on elicited the hearing suppress the motion January facts. In

following uncontested He lived Hillemeyer’s into home. belongings his moved on her until his arrest with her and shared bedroom 23, 1993, Included the Hilton attack. regarding March box, a cardboard which possessions with defendant’s was for a Defendant liqueur. had been a container bottle bank”; box,” a or he “piggy the box as “collection a used in it.” he the box kept and ends Sometimes “threw odds dresser; the box beside the kept in a sometimes he Hillemeyer had never permitted dresser. Defendant box; she asked to do so. in the had never look jail. in the local 29, 1993, was On March and Canton Police Kenneth Kedzior Agent Illinois State Hillemeyer’s home Ayers David went Sergeant Police consented her home. She they asked if could search and The officials asked consent form. signed printed and a any area whether there was Hillemeyer specifically premises to access; which she did not have she answered in negative. the bedroom,

In the the officials discovered the closed box on the floor beside a dresser. Hillemeyer stated that the box its belonged contents to defendant. The of- if ficials asked her she had access the box, and she answered that she did. The officials also asked Hille- if meyer she what in box, knew was the and she answered that she did not. police opened the box. It coins, key, contained a a a

ring setting, with black and a ring a clear setting. with Hillemeyer told the officials that defendant previously had shown her the ring with the black setting. She had not previously key seen the or the ring with the clear setting. Witnesses subsequently ring identified the with the clear as setting belonging to Donna. At the close the trial hearing, the court denied defendant’s motion to suppress.

Defendant contends the search of his box violated the United States and Illinois Constitutions. See IV¡ Const., XIV; U.S. 1970, I, § amends. Ill. Const. art. 6. court, general rule, We note that this as a interpreting provision search seizure in the Illinois Constitu tion, looks to the United States Supreme Court’s inter pretation of the fourth amendment. See Mitch People v. ell, Ill. 2d (1995); 217-23 People Krueger, cf. (1996) (“We 175 Ill. 2d knowingly from depart tradition applying [of here for lockstep doctrine] below”). Also, reasons set forth court reviewing generally will not disturb a trial court’s determination a motion to suppress manifestly evidence unless it is er However, case, roneous. this the parties ques do not credibility Thus, tion the facts or the of de witnesses. novo review is appropriate. See 136 Ill. Foskey,

The fourth prohibits amendment warrantless

197 se unreasonable. per home as person’s a search of and well- a established However, specifically there are few One requirement. the warrant exceptions delineated to consent. conducted pursuant is a search exception such Ed. Bustamonte, 218, 219, 36 L. 412 U.S. v. Schneckloth 2041, 854, 858, Ct. 2043-44 2d 93 S. only from indi may obtained not consent be

This a third searched, but also from property whose vidual premises. over the authority common possesses who party 177, 181, 2d 111 L. Ed. 497 U.S. Rodriguez, Illinois v. (1990). A should 2793, court 148, 156, 110 Ct. 2797 S. from authority property common the mere infer authority in third has person property. interest a the law consent is not based on justifies third-party Rather, authority such is based on mutual property. of joint ac by generally having of the property persons use Therefore, it is reason purposes. cess or control for most recognize any of the coinhabitants has able right, or her own right permit inspection his and that the others have assumed the risk that one area to be might their number the common permit 164, n.7, Matlock, v. 415 U.S. 171 searched. United States 988, (1974), 242, n.7, L. 2d 250 94 Ct. 993 n.7 39 Ed. S. (1974). The v. 2d 83 Stacey, 58 Ill. adopted People authority on the establishing burden of common rests Ed. at 181, 497 at 111 L. 2d government. Rodriguez, U.S. 156, Ct. 110 S. at 2797. challenge the voluntariness

Defendant does not consent, De- challenges scope. rather its Hillemeyer’s but legally could consent argues Hillemeyer fendant to a only property, to a of her own and not search search to a “A consent his closed container. homeowner’s to a effective consent may of the home not be search object inside the home.” United States search of closed 548, 705, 725, 530, 104 S. Karo, 468 82 L. Ed. U.S. (1984) (O’Connor, J., concurring, 3296, joined Ct. 3308 198 accord United Rodriguez, States v.

by J.); Rehnquist, 888 (7th Gonzalez, 88 F.2d 1989); Cir. n.1, N.Y.2d 667 N.E.2d n.1, (1996) cases). N.Y.S.2d n.1 675 (collecting When a homeowner permits into entry guest’s her home of a private container to which the owner does not the have right access, the effectively homeowner a surrenders segment privacy of her home to the the privacy of container’s owner. Such a homeowner lacks the to power give effective consent to the search the closed con Karo, tainer. 468 at 548-49, U.S. 82 L. Ed. 2d at 104 (O’Connor, J., Ct. S. at 3309 concurring, joined by Rehn J.). quist, case,

In this police when officials found defendant’s box, they questioned Hillemeyer as her specifically to box, common over authority the from her separate com- mon authority over the premises.

Defendant police counters that officials should have known that Hillemeyer’s consent was inadequate. However, a warrantless search on based the consent aof having person apparent, though actual, authority give if, search, such consent is lawful at the time of the police reasonably believe that person to have com- authority mon the place over or item to be searched. Rodriguez, 186-89, 497 at 160-61, U.S. 111 L. at Ed. 2d 110 S. Ct. at 2800-01. case,

In Hillemeyer this stated that she was familiar and had with access to the box. The mere de fact fendant alone may have used the box does not indicate Hillemeyer of, to, was denied mutual use access Stacey, 89-90; or control over it. 58 2d at See Ill. Ford, (1980); LaFave, 83 Ill. App. W Search (3d 1996). § 8.3(f), & at n.92 Seizure ed. Based on facts, these police uncontested we hold that officials could Hillemeyer believe that had common reasonably author over the box. trial ity agree We with the court that Hill- authority, requisite emeyer either actual common had the box. apparent, of defendant’s the search to consent to or Questioning Juror from Defendant’s Absence II. by court erred the trial contends that next Defendant pres- juror conducting in the dire of in camera voir an attorneys, defendant. in the absence of but ence of him denied several this conference He claims rights, requiring trial. a new constitutional juror prior During trial, Catherine the weekend judge him of a to inform the trial McCormack contacted response, regarding the case. she had conversation immediately prior judge an in camera conference held being opening jury made. Pres- statements sworn attorneys, prosecution defen- and defense but ent were dant was absent. day jury On the after stated as follows.

McCormack unexpectedly to Mc- came selection, a former coworker had fact, said that she home. In the visitor Cormack’s stopped They spoke by looking McCormack. earlier topics. During conversation, McCor- their a number of jury duty. The visi- that she was on mack told the visitor yeah, responded: I trial. hear he’s “Oh the murder tor left, real- McCormack done this before.” After the visitor discussing they trial, worried ized that had been judge. telephoned trial conversation, and about any judge if she had asked McCormack The trial regarding trial; McCormack other conversations responded However, fur- had not. McCormack that she subsequent jury selection, that, she to ther stated During jury chapter past. her selec- remembered a from jurors any judge prospective if tion, the trial asked say failed to crime victims. McCormack had been past in relation- had been battered her mother she judge’s response ships. further However, the trial prior questioning, incidents added that these McCormack charges. response any criminal did not result questioning by counsel, defense McCormack stated that had she undergone therapy, she thought that her emo- flowing tions from these abusive relationships were her, behind and she was shocked to discover that they were not. McCormack stated that if defendant and the victim knew each other and had an abusive relationship, she did not know if she could be impartial.

Defendant’s trial requested recess, counsel left the conference, and conferred with defendant. On their return, defense counsel informed the judge that did they object not to McCormack remaining jury. on the The trial judge instructed McCormack not to consider what she had learned outside of the record. The judge noted that every juror brings to a trial his or her “baggage,” which we take to mean personal history and experiences, and expressed McCormack confidence that she would be fair and impartial. jury subsequently chose McCor- mack to be their foreperson.

Initially agree we with the State that this issue is waived for review. Defendant first raised the issue in his post-trial motion; he did object prior jury to the be “ ing sworn. ‘An may by accused not sit ir idly and allow regular proceedings objection to occur without afterwards seek to reverse his by conviction reason of ” those same irregularities.’ People v. Ramey, Ill. 2d (1992), quoting People Ford, 19 Ill. 2d (1960). Thus, 478-79 the issue is waived. See Towns, 157 Ill. 2d 99-100

Defendant further asks this court to consider the is sue doctrine, under the error plain claiming the denial of 615(a). several constitutional rights. 134 Ill. R. Plain error is a narrow and limited exception general to the waiver rule. only Plain error is invoked the where evi balanced, closely dence is or the alleged error is so that it deprived substantial the defendant of a fair trial. (1992). People 71, 149 Ill. 2d Hampton, right pres to be general has a A criminal trial, jury selection. including of every stage ent at of this broad in the denial However, which the situations and United the Illinois actually violates right presence of Illinois Con limited. Under the are States Constitutions denied a constitu defendant “is not stitution, a criminal trial, his during he not every present time right tional in a of an denial his absence results only when but words, a in other constitu right, underlying substantial error plain a case that only and it is such right; tional 80-81 Bean, 137 Ill. is committed.” absence from contends his Defendant to an right denied him the conference McCormack I, § 8. Ill. art. jury. Const. impartial Mc from the contends that his absence Defendant due of process denied him the Cormack conference also Const., U.S. United States Constitution. under the law four clause of the process Under the due amend. XIV amendment, right pres defendant’s a criminal teenth defendant’s absence only when the ence is violated Specifically, trial. just denial of a fair and results impartiality case, the fairness issue concerns in this must answer is we jury. question of defendant’s the Illinois Constitu I, article section same under McCormack from the Did defendant’s absence tion: tried, convicted, and sen him to be conference cause Bean, 137 him? See jury against aby prejudiced tenced Ill. 2d at 82-85. McCormack, jury reasons that because

Defendant him outside knowledge foreperson, possessed history experiences record, personal and had Mc- then impartial, to be ability her to doubt her caused was forced to rely on his trial reports counsel’s of McCor- statements, mack’s rather than his own firsthand observation of McCormack. argues Defendant that had he been present, he “could have seen how upset juror had been and how she reacted to his presence,” *** would have “been in a position better judge to juror whether was likely to share her in- prejudicial formation and experiences with the other jurors.”

We cannot accept argument. defendant’s The record does not in any way indicate that McCormack was “upset” about anything. The record also does not indicate how McCormack would have “reacted to his presence” differently during or, than jury selection matter, that during the remainder of the trial. This court has observed: necessary

“It is jurors be unaware of the case they Crimes, before assume their jury roles box. es pecially crimes, great heinous are public interest and are extensively reported. It is expect unreasonable to average intelligence individuals of average and at least interest in their community would not any have heard of they cases which upon judge are called in court. ignorance Total exceptional, of the case is and it is not required. required [Citation.] What is the assurance that juror a will be able to set aside all information he has acquired courtroom, outside the along any opinions with formed, he has and decide strictly the case on the evidence presented as in the People Taylor, [Citation.]” courtroom. (1984). 101 Ill. 2d

Also, despite McCormack’s personal history and ex periences, she previously stated voir dire during that she would be fair and impartial. conference, At the the trial judge was position evaluate McCormack’s respon ses questioning, and to determine that McCormack record, would be fair and On impartial. this we cannot set judge’s See, aside trial determination. e.g., People Johnson, App. Ill. 954-55

The record suggest McCormack, does not even against whole, actually prejudiced as a was jury or the he failed to show that Thus, that defendant him. we hold an trial. impartial did not receive that he was related claim note defendant’s lastly We counsel with re- assistance of right denied his to effective Const, VI, XIV Defen- U.S. amends. to this issue. spect on failure to insist that his trial counsel’s dant contends conference, and at the McCormack presence defendant’s amounted to juror,” of “the prejudiced to seek dismissal a new requiring deficient constitutionally performance trial. of a claim ineffective assistance

To establish of familiar counsel, satisfy defendant must the a criminal 466 U.S. Washington, Strickland test. See Strickland v. (1984). 668, 674, 104 Ct. 2052 The test is 80 L. Ed. S. deficiency To es composed prongs: prejudice. two prove tablish the defendant must that there is prejudice, that, unprofes a but for counsel’s probability reasonable errors, have proceeding sional the result of the would different. A a probability probability been reasonable sufficient to undermine confidence in the outcome. The perfor defendant must show that counsel’s deficient the mance rendered the result of the trial unreliable or proceeding fundamentally People Griffin, unfair. v. 178 (1997). Ill. 2d

However, a court need not consider whether counsel’s examining was deficient performance prior preju alleged dice that the defendant suffered as a result of the deficiency. If the ineffective-assistance claim can be ground of on the that the defendant did not suf disposed fer the court need not decide whether counsel’s prejudice, constitutionally Griffin, deficient. performance was 74; Flores, Ill. 2d at 153 Ill. 2d 283-84 People (1992). case, that defendant previously this we concluded jury

failed or the as a whole to show that McCormack actually prejudiced against Thus, was him.

fails the prejudice prong the Strickland test. holdWe that defendant’s absence from the McCormack confer- ence deny did not him his rights constitutional to an impartial jury, law, due or process effective assistance of counsel. Sufficiency

III. of the Evidence Defendant next contends that the evidence was insuf ficient him prove guilty a beyond reasonable doubt. Where a criminal conviction is challenged based on insuf evidence, court, ficient a reviewing considering all of the light evidence most to the prosecution, favorable any must determine whether rational fact finder could beyond have found a reasonable doubt essential ele A ments of the crime. criminal conviction will be set aside unless the evidence is so improbable or unsatisfac tory as create reasonable doubt of the defendant’s guilt. 133 Ill. 2d Eyler, Defendant can argues State’s case be as explained consistent with his innocence. Defendant to the points expert testimony defense DNA and the conflict it created with the prosecution expert DNA testimony. Defendant if further notes that even his DNA remains, explained by was found Donna’s it can be evidence that he and Donna had a sexual relationship to her prior murder. Defendant also attacks the cred- ibility Chester, of Crosier and and the identification Donna’s found in defendant’s Defendant ring box. also to points implicates evidence which he claims David in Haynes the murders. reviewing retry

It is not the function of a court to a sufficiency defendant when a to the considering challenge Rather, of the it the function of the fact evidence. witnesses, finder to of the the credibility assess to weight given testimony, to be their and the inferences McDonald, from v. 168 Ill. People be drawn the evidence.

205 (1995); 1, v. 141 Ill. 2d 13 420, People Tye, 2d 448-49 (1990). or for the fact finder to resolve conflicts It is in of the witnesses. testimony People inconsistencies (1989). weighing 2d Phillips, 127 Ill. When evidence, required disregard the fact finder is not evidence, nor is it required inferences that flow from the in out all consistent with possible explanations search nocence and raise them to a level of reasonable doubt. McDonald, Also, Ill. an speculation 2d at 447. might other have committed the offense does not person necessarily guilt raise a reasonable doubt of the Herrett, accused. 137 Ill. arguments jury

Defendant’s address functions of the and in reviewing not of this court. After the record light say most favorable to the we cannot prosecution, the evidence was or improbable unsatisfactory so that no rational fact finder could have found defendant guilty beyond charged. a reasonable doubt of the crimes

IV Cross-Examination of Prosecution Expert DNA Defendant contends he denied a fair trial was because the trial court barred defense cross-examination of David Metzger, the prosecution expert, regarding DNA his disciplinary record with the State Police crime labora- trial, tory. Prior to the trial court the State’s mo- granted in Metzger tion limine to bar cross-examination In regarding disciplinary Metzger a incident. The Police performed DNA tests this case. State accus- brought charges against Metzger, administrative him of ing stealing microscope January 1995. 1995, the into a May Metzger State Police and entered agreement. settlement Police not to agreed State discharge Metzger, disciplined 100-day him with a suspension pay. Metzger agreed perform without by directed and monitored community hours service as Police, voluntarily the State forfeited his accrued vacation time. right

The sixth amendment of confrontation includes regarding the to cross-examine a witness the wit right interests, biases, testify. or motives to A ness’ witness her may impeached by attacking Only be character. crim used; may proof inal convictions be of arrests or other However, are charges accepted inadmissible. another bias, method of is to show a witness’ inter impeachment est, testify. or this method of impeach motive With ment, or into the fact may inquire the defendant show or charged that a witness has been arrested otherwise it tend reasonably with a crime where would to show might by influenced inter testimony that the witness’ be Lucas, testify falsely. bias, est, or a motive to People Triplett, (1992); 491-92 108 Ill. 151 Ill. 2d Thus, other although charges evidence of arrests or such impeach credibility generally, is not admissible to evidence is admissible to show that the witness’ testi by bias, interest, influenced or motive to mony may be However, the evidence that is used must testify falsely. give something rise to the inference that the witness has Therefore, gain by testimony. or lose his or her ev remote or uncertain. Triplett, idence used must be 108 Ill. 2d at 475-76. case, defendant present contends testify record motive to

Metzger’s disciplinary shows his testimony please employ- or to his his falsely embellish trial, ers. Defendant as follows. At the time of argues Metzger disgrace” “remained under a cloud of with job security” State Police. He had with “perilous Indeed, standing his increased risk agency. poor job such as from negative critiques performance, his him to be fired. expert, the defense DNA would cause Therefore, reasons, Metzger strongly “was in a biased manner in defense his testify motivated to performance.”

However, agree Metzger’s we with the trial court been disciplinary administrative record would have specula- him. The record is too impeach inadmissible Metzger something tive and remote to infer that had noted, gain by testimony. or his As the trial court lose charges approximately years the administrative arose two had Metzger completed reported his DNA anal- after ysis Further, case. trial occurred approximately this trial, one after At year Metzger disciplined. Metzger’s was testimony regarding analysis his DNA of defendant was three-year-old based on the We the trial report. uphold order defense barring court’s cross-examination his Metzger regarding disciplinary administrative record. Erroneously V Admitted Evidence Defendant assigns next error to the of a admission portion of the testimony of Iona Price and much of the testimony Tompkins. Jon The admission of evidence at trial is a matter within the sound discretion of the court, trial and its ruling may be reversed absent a Ward, clear abuse of discretion. v. People 101 Ill. 2d (1984). 455-56

A. Iona Price Defendant by contends trial court erred admit- an ting into evidence out-of-court statement of Price Iona repeated during testimony. that she her Price testified defendant, that after she introduced Donna to she warned Donna not to allow defendant into her apart- if argues ment she were ever there alone. Defendant Price’s out-of-court statement was inadmissible because irrelevant, prejudicial hearsay. it was at Although objected this statement trial, he concedes that trial counsel failed to include this Thus, issue in the issue is post-trial defendant’s motion. (1989); People waived. 128 Ill. 2d 38-40 Young, Enoch, 122 Ill. 2d Defendant invokes (134 615(a)), claiming error rule Ill. R. plain was the evi highly prejudicial this statement because closely disagree; dence was balanced. We the record of defendant’s After guilt. contains abundant evidence record, we conclude that this issue does reviewing not warrant our consideration under the error doc plain trine.

B. Jon Tompkins by Defendant contends that the trial court erred also testimony much of the of Don- admitting into evidence husband, na’s Jon Defendant estranged Tompkins. testimony characterizes much of as concern- Tompkins’ ing prejudicial grief “the irrelevant of his and his aspects mur- loving relationship daughter prior with his to her responds testimony der.” The State this admis- was prior evidence of the victims’ activities sible as relevant to their murder. at object

The record shows that trial counsel failed to Thus, the portions Tompkins’ testimony. trial to these of Enoch, 2d at further issue is waived. 122 Ill. 186-87. We our consider conclude that this issue does warrant plain ation under the error doctrine. Assistance Counsel

C. Effective We note defendant’s related claim that his trial constitutionally failing counsel was deficient conclude that preserve the above issues for review. We of the Strickland test. defendant fails the prejudice prong erroneously assuming Even the above evidence was admitted, no prob we conclude that there is reasonable the trial would have been differ ability that the result of in this allegedly performance ent. Counsel’s deficient the trial unreliable or did not render the result of regard Griffin, See 178 Ill. fundamentally unfair. proceeding 2d at 74. Eligibility Death

VI. process he denied due Defendant next contends was eligibility sentencing of law at the death of the phase findings because were not made as to the mental hearing for death required penalty eligibility. states The statu- tory aggravating making eligible factor for the penalty death was that he had been convicted of murder- or more ing aggravating two individuals. This factor includes an intent either requirement: the defendant intends to kill person, more than one or kills with knowl- edge separate strong probability his acts create a 1(b)(3) (West death or great bodily harm. 720 ILCS 5/9 — 1992). jury

Defendant notes that the trial was instructed as to all intentional, three forms of knowing, and murder — felony only murder —but returned a general verdict of guilty each for Also, Donna and Justine. sentencing judge found the presence statutory aggravating factor by taking judicial notice convictions, of the murder additional, without an making express finding as to intent. Defendant claims that this omission requires new sentencing hearing.

We disagree. Johnson, 149 Ill. 2d 118 (1992), this court noted that the general guilty verdict of included a murder, conviction of intentional and that the sentencing judge judicial took notice of the verdict. This court reasoned that “[s]ince the verdict encompassed necessary finding intent, there was no omission on the part of the trial judge, and argument defendant’s must Johnson, fail.” Also, 149 Ill. 2d at 157. as recently noted in the special concurrence in People Harris, 182 Ill. 2d (1998), verdicts, “the jury’s when in conjunc viewed tion with all of the evidence adduced at the trial which the heard, trial judge form the basis for affirming the trial judge’s specific finding of death eligibility ap on peal.” (Emphasis Harris, in original.) 182 Ill. 2d at 163 (Freeman, C.J., specially concurring). Defendant’s argu ment must fail.

210 Pro Se Post-Trial Motions

VII. by- erred next contends the trial court Defendant motions without an eviden- post-trial his se denying pro filed that defendant sev- tiary hearing. The record shows motions, for a including motions pro post-trial eral se counsel, sentenc- trial, delay of new substitution assistance of counsel. ing. alleged The motions ineffective hearing to remand this cause for a on Defendant asks us counsel, “which ineffective assistance of allegations his to investi- of new counsel may require appointment failings of trial counsel.” gate argue claim post-trial se presents pro a defendant When counsel, may, the trial court of ineffective assistance circumstances, to as new counsel appoint under certain However, the his claim. presenting the defendant sist examine the factual basis trial court should first examination, if the trial After this defendant’s claims. pertains merit or the claim lacks court determines need then new counsel strategy, matters of trial only to motion can be denied. pro and the se appointed not be However, neglect if show allegations possible v. Robin People case, appointed. counsel should be new Towns, (1993); v. 174 son, 68, People 2d accord 157 Ill. 86 (1996). can then counsel appointed 2d 466 Ill. claim and would the defendant’s evaluate independently ex trial counsel would the conflict of interest avoid contrary to her her actions justify if had to she perience Ill. 3d App. v. People Pope, position. client’s (1994). 833, 847 Giles, Ill. 3d (1996); App. People court reviewing concern for operative “[T]he adequate inquiry an court conducted whether the trial as of ineffective allegations defendant’s into the se pro Johnson, 159 Ill. of counsel.” sistance inquired adequately trial court We conclude De- assistance. of ineffective allegations into defendant’s nothing did “the trial court contends fendant now whether the of allegations ascertain ineffective assis- tance of counsel at trial were or spurious pertained However, the record strategy.” shows that the trial court did investigate allegations. defendant’s The court heard from defendant and Only his two trial counsel. after this did examination the court find that allega- defendant’s and, spurious accordingly, tions were denied defendant’s uphold motions. We the trial court’s ruling. Constitutionality Penalty VIII. of Death Statute Defendant lastly the penalty contends Illinois death (U.S. statute Const., VIII, is unconstitutional amends. 11) XIV; I,§§ 2, Ill. Const. art. for two reasons. A. Inevitable Execution Innocent Persons of Defendant first claims that the death penalty Illinois statute is unconstitutional inevitability because of “the persons that innocent wrongly will be convicted capital of crimes and executed.” examples, As defendant points to several cases in which those defendants have been exonerated and released from death they row after had been convicted of capital crimes and sentenced to death. Defendant argues that the irreversibility of the death penalty “makes the inevitability of error in the imposi- tion of the death penalty constitutionally unacceptable.”

The State’s sole response description many is a of the meaningful procedural safeguards that a criminal defen- dant enjoys throughout the stages judicial various process, trial, including post-trial, review, direct appellate post-conviction and federal review, habeas and ex- corpus clemency. However, ecutive defendant expressly argues: procedural “No amount of process prevent due can all of miscarriages justice. errors that can result in such of Peijury, identifications, testing, mistaken errors in forensic bias, racial remain, and countless other sources of factual error will counsel,

despite right the confrontation clause, right impartial jury, right appeal to an or the added.) corpus.” (Emphasis habeas justice process the criminal goal An important an against accused errone- of the innocent protection goal it is the Many argue would ous conviction. Israel, Criminal 1 W. LaFave & J. highest priority. in the ac- 1.6(c), The interest § at Procedure an individual’s places criminal curacy proceeding of a compelling. The uniquely at risk is almost liberty life or over the developed the law has safeguards many stand risk of erroneous conviction to diminish the years Oklahoma, 470 concern. Ake v. a testament to this as 1087, 53, 63, 68, 78, L. Ed. 2d 105 S. Ct. U.S. (1985). system, safeguards of in the the number

Whatever necessarily justice process is American criminal are by people and operated people it is imperfect because in the Nonetheless, it remains one of the best imperfect. States we The United world, only system and the have. a penalty “the death is not has held that Supreme Court regard may imposed, that never be form of punishment offense, regardless of circumstances less of the procedure regardless offender, character of it.” impose the decision reaching (Emphasis followed added.) Gregg Georgia, 2d 153, 187, 49 L. Ed. 428 U.S. view this 882-83, 2909, 2932 We 96 S. Ct. guilt. We note the determination holding including as See, argument. this exact rejected courts have that other Bradley, e.g., United States 271, 291-92 Supp. 880 F. Pretlow, States v. (M.D. United Supp. 779 F. 1994); Pa. 1991) (both citing Gregg); (D. see also 758, 777-78 N.J. Stenson, 132 Wash. n.24, 940 P.2d State v. (court (1997) issue, but acknowledged 1284 n.24 death absent penalty of the suspend operation declined deficiency). of constitutional finding argu- defendant’s accept tempted One be might unconsti- statute is penalty death ment the Illinois inevitably be will persons innocent tutional because crimes, capital death, convicted of sentenced to and exe- However, cuted. it must be remembered defendant’s argument does not address the defi- procedural issue of ciency justice system. the criminal de- We stress that fendant argues procedural “[n]o amount of due pro- prevent cess can all of the errors that can in” result an innocent person being convicted of a crime. capital added.) Thus, (Emphasis defendant’s strident protest against the concept Anglo-American criminal trial itself as the determining means of the guilt or innocence of an accused. inexplicable

This attack on the American criminal trial as the means of determining guilt requires discus- sion of fundamental principles. system

“The justice of criminal America uses to deal with those it prevent crimes cannot and those criminals it monolithic, cannot deter is not a or even a consistent system. It designed was not piece or built in one at one philosophic time. Its person may punished core is that a be by if, if, only the Government proved by it has been an impartial and process deliberate that he has violated a specific layer law. Around that upon layer core of institu- procedures, tions and inspired by principle some and some *** by expediency, have system accumulated. The entire represents adaptation an English common law to peculiar government America’s structure of ***.” Presi- dent’s Comm’n on Law Enforcement and Administration Justice, of Challenge The Society of Crime in a Free 7 (1967). country this and in state, this a defendant has a constitutional right to have the charges brought against him proven beyond a reasonable doubt. The forum for such a determination is a trial. The guilt or innocence “ determination in a criminal trial is a ‘decisive and portentous event.’ ‘Society’s resources have been concen- trated at that decide, time and place order to within the limits of human fallibility, the of in- question guilt or ” nocence of one of Collins, its citizens.’ Herrera v. 506 214 853, 217, 861 401, 203, 2d 113 S. Ct. 390, 122 L. Ed.

U.S. 72, 90, 53 Sykes, v. Wainwright 433 U.S. (1993), quoting (1977). 610, 2497, 2508 594, 2d 97 S. Ct. L. Ed. and evi- to have witnesses of a trial is purpose of fact before the trier put the defendant against dence cross-examination, the by way tested they so can be as a apparent truth will become the being belief trial, defendant has an At the process. of this result and to behalf on his own to call witnesses opportunity L. Piec- to do so. 6 the defendant choose testify should (1989). 212 Additional 26.1, § at Illinois Practice zynski, trial include criminal of an American features not innocence, of the defendant right presumption as- behalf, to the effective right testify on his own illegally counsel, exclusion of evidence and the sistance Israel, Criminal 1 LaFave & J. the state. W. by obtained (1984); 1 W LaFave 1.4, generally see § at 28 Procedure (1984); 2 LaFave § 1.6 W. Israel, Procedure Criminal & J. 11.10 through §§ 11.1 Israel, Procedure & J. Criminal (1984). innocent, is defendant, or guilty whether

A criminal trial, described as fair, orderly, impartial entitled to a Kalpak, v. People to law. above, according conducted (1957). by right protected This is 411, 2d Ill. Const., U.S. Constitutions. and Illinois United States (due I, art. clause); Ill. Const. process amend. XIV People (1942); Hoffman, v. 379 Ill. People 2; § see (1975). “It is an 786, 801 Garrett, v. App. 26 Ill. human like the judicial system, fact that our unalterable Herrera, 506 U.S. it, is fallible.” administer beings who court at 868. This 226, 113 S. Ct. 415, 122 Ed. 2d at at L. er conducted without trials cannot be has observed virtually trial procedure ror, that perfection 22 Ill. 2d Agnello, People unattainable. criminal in a that a defendant fundamental

Thus, it is trial, one. perfect fair to a case is entitled 215 65, (1997); Ruiz, 94 Ill. Ill. 2d 90-91 Griffin, 178 States, (1982), citing 260 Lutwak v. United 344 619-20, 593, 605, 481, 97 L. Ed. 73 S. Ct. U.S. (1952); § accord 23A C.J.S. Criminal Law at 5 (1989). is the American complaint simply

Defendant’s trial, determining guilt criminal as the means of or accused, However, perfect. innocence of an is not as imperfect system, as he describes the defendant does not of suggest system a substitute for this as the means determining guilt Indeed, sense, or innocence. in a protest defendant’s is unanswerable. Have mistakes been made? Will mistakes be made? Certainly. justice system regards

“The American criminal the trial as determining guilt. the best method for a defendant’s Yet a calm, trial not a process. scientific Instead of consistent evidence, unpredictable evaluations of trials involve hu- *** [Tjrials perceptions very man and reactions. are hu- processes, man guaranteed emerge and the truth is not Smith, in the final verdict.” G. Cole & C. The American (8th 1998). System of Criminal Justice 372-73 ed. However, the American justice system, criminal like perhaps system world, no other in the provides maximum protection necessary to guard against mistakes being made. significantly distinguishes

“What most [criminal justice] system country of one from that of another is the extent and the form protections it offers individuals process in the determining guilt of imposing punish- and system justice deliberately ment. Our much in sacrifices *** efficiency and even in in protect effectiveness order to may the individual. Sometimes it seem too much.” Presi- dent’s Comm’n on Law Enforcement and Administration Justice, Challenge Society of Crime in a Free We note that the dissent partial “legisla asserts that appear tures the courts abandoned any gen have uine concern with insuring reliability the fairness and system.” (Harrison, J., 185 Ill. 2d at concurring However, this court part dissenting part). both included additional Assembly

and the General have a de- many protections the that criminal safeguards with in of the criminal enjoys continuing process fendant the justice system. Constitution, Illinois this court has

Based on the against a defendant’s self- recognized right deny the an at police incrimination is violated where her knowl torney, retained for the defendant without during the defendant the edge, physical access and the do not inform the de interrogation police where her seeking is to consult with attorney fendant McCauley, v. 163 Ill. 2d 414 at the station. police (1994). Constitution, the Illinois this court Also based on newly claim of standing has a free recognized of innocence raises a constitutional discovered evidence peti in a post-conviction considered question properly (1996). Also, People Washington, 171 Ill. 2d 475 tion. a to allow recently prison has enacted law legislature of rele testing ers to obtain unavailable DNA previously (West of evidence. 725 ILCS pieces physical vant 5/116-3 1997). Supp. decreasing goal

This reflects of protection even at the convicting person price chance of an innocent may escape a increasing guilty person of the chance that True, of a trial is purpose conviction. the basic Nevertheless, it is fundamental determine the truth. justice the American criminal value determination person an innocent it is far worse to convict system that Israel, free. 1 W LaFave & J. guilty person go than to let a (1984). 1.6(c), We note that § Procedure at 45 Criminal the sources has have criticized one of scholars in Justice Miscarriages (H. Radelet, Bedau & M. cited (1987)) Crimes, 40 Potentially Capital 21 L. Rev. Stan. have persons innocent for the that numerous proposition Herrera, crimes. erroneously capital been convicted

217 n.15, n.15, 122 2d at 226 113 S. U.S. at 415 L. Ed. n.15, Cassell, & Com- citing Ct. at 868 S. Markman P. ment, A to the Bedau— Protecting Response the Innocent: Study, Radelet 41 Stan. L. Rev.

Indeed, Burrows, (1996), Ill. 2d and People v. (1996) 2 — 94—1199 People Gauger, (unpublished No. 23), in Supreme order under Court Rule referred to (185 (Harrison, J., partial dissent Ill. 2d at 226 concur in ring part dissenting part)), exemplify how care ful justice system imposing the American criminal Burrows, penalty. the death the defendant was indicted murder robbery. and armed His first trial retried, resulted in a He hung jury. was convicted as review, and sentenced charged, to death. On direct this court upheld defendant’s convictions death sentence. (1992). Burrows, People v. 148 Ill. 2d 196 Subsequent retrial, defendant’s his two recanted their accomplices incriminating testimony. At the close of a for hearing and post-conviction post-judgment relief, the circuit court vacated defendant’s convictions and death sentence and ordered a Burrows, new trial. This court affirmed. 172 (1996). Ill. 2d 169 Subsequent affirmance, to this court’s the charges against defendant were dropped.

In the Gauger, defendant was convicted of two counts of murder and sentenced to death. The circuit court vacated subsequently penalty the death and sentenced to two terms of natural life imprisonment. The court appellate found that defendant’s inculpatory and, statements were the fruits of an illegal arrest consequently, the trial court by denying erred defendant’s motion to suppress. appellate The court re versed defendant’s conviction and remanded the cause (1996) for a new trial. v. People Gauger, No. 2 — 94—1199 23). (unpublished order under Court Rule The Supreme prosecutor cases, the In these the dropped charges. two criminal justice system, many with its procedural protec- tions, only truly as it should to ensure operated are guilty defendants convicted. protest against

Since defendant’s unanswerable American criminal trial fallibility the inherent of the itself, then his is reduced to a mere attack on position se: he feels that penalty per wrong the death it is imposed. it should not be He notes that other justice systems capital “inferior” criminal have abolished Gregg, However, at at least since 428 U.S. punishment. 882-83, 2932, United 49 L. Ed. 2d at 96 S. Ct. at the repeatedly rejected States Court has conten- Supreme any under imposition penalty tion “that of the death in viola- punishment circumstances is cruel unusual Jurek Eighth tion of the and Fourteenth Amendments.” Texas, 929, 936, 262, 268, 49 L. Ed. 2d 96 S. 428 U.S. Ct. The Court has concluded: invariably penalty “It is now settled that the death is not punishment meaning cruel and unusual within Amendment; inherently or an un- Eighth it is not barbaric crime; punishment neither is it acceptable mode of always disproportionate to the crime for which it is 584, 591, Georgia, Coker v. L. Ed. 2d imposed.” 433 U.S. (1977) 982, 989, (plurality). 97 Ct. 2865-66 S. Thus, regard- views personal it is clear that defendant’s are not reflected ing propriety capital punishment eighth jurisprudence. amendment from attempts to shift attention partial dissent speak do not to this past case to cases which present Kidd, (1996), one issue 175 Ill. 2d issue. to a fitness hear was whether the defendant was entitled drugs. allegedly taking psychotropic because he was ing the that he opinion members of this court were of Six Kidd, In In re 175 Ill. 2d at 17-20. was not so entitled. Skahan, court, Marriage of pursuant 178 Ill. 2d this court ordered the authority, appellate to its supervisory on merits. This court’s appeal to consider the its power grant is a constitutional supervisory authority rules, and is undefined, by any specific not limited that is that call for its exercise. by exigencies the only bounded (1993). Williams, 156 Ill. 2d 300-02 McDunn v. a “should be dissenting opinion note that a We also reasoning supporting the to the decision or to challenge the decision; objective majority it the same as the seeks B. Wit correctly applied.” doctrine opinion good legal — § at 233 kin, Opinions Manual on Court Appellate (1977). in tone rather impassive “A dissent should be 11.5, Aldisert, § at 170 angry.” Opinion Writing than R. beliefs personal One must be careful not to elevate thoughtful analysis. question above constitutional the ultimate enlightened penalty whether it is assess commit the most heinous of crimes is against those who subject not to our review. simply legislative judg- Judicial restraint and deference to regarding punishment. ments are As required capital may legislators. we not act as we as a judges, might court, not a is established to democracy, legislature, to the will and moral values of the respond people. Indeed, peculiarly ques- the selection of punishments Therefore, legislative policy. determining tion of by of a selected a democrati- constitutionality punishment cally legislature, presumes elected a court A punishment may require is valid. court penalty possible to select the least severe so legislature inhumane or long cruelly as the selected is not penalty crime involved. 428 U.S. disproportionate Gregg, 174-76, 875-76, L. Ed. 2d at 96 S. Ct. at 2925-26. at has recognized: This court likewise legislature empowered to de- “that is the which has been it constituting a crime and to clare and define conduct it. punishment and extent of determine the nature legislature, institutionally, is more aware [Citations.] The and, confronting society than the courts of the evils our therefore, gauging the seriousness of capable is more 220 310, People Steppan,

various offenses.” 2d v. 105 Ill. 319 (1985). We note that 12 although states and the District of Co- penalty any offense, lumbia do not have a death states and the federal government have selected the penalty death for the most abominable crimes. United Justice, States Department of Bureau of Justice Statis- tics, 1996 Sourcebook of Criminal Justice Statistics 556 (1997); Denno, see D. Getting to Death: Are Executions Constitutional?, 319, 82 Iowa L. Rev. 439-64 The any justice issue is not whether of court this Rather, capital punishment. favors or personally opposes solely the issue is whether the federal and state constitu- prohibit legislature tions from mandating capital punishment for certain of types degree first murder. Clearly, the legislature prohibited regard, is not this notwithstanding any personal may views which we have subject on the of See District At- capital punishment. Watson, 648, 701, 1274, v. torney 381 Mass. 411 N.E.2d (1980) J., (Quirico, This dissenting). emphatically is a for the question legislature. Defendant’s ac- protest, dissent, cepted by partial to the properly addressed Assembly and General not to this court. Meaningful

B. Consideration Mitigation lastly penalty Defendant claims that the Illinois death it places statute is unconstitutional because burden proof meaningful on the defendant that precludes mitigating consideration of circumstances. This court See, has repeatedly rejected argument. e.g., People this Munson, 158, (1996); Page, 171 Ill. 203-05 (1993); Hampton, 155 Ill. 2d 149 Ill. 2d at 116- 17. see no reason to reach a different result here. We

CONCLUSION reasons, the of the circuit foregoing judgment For the of this court County court of Fulton is affirmed. clerk March setting Tuesday, to enter an order is directed entered of death date on which the sentence as the The defendant shall imposed. is to be in the circuit court ILCS by law. 725 provided in the manner be executed (West 1992). shall send a The clerk of this court 5/119—5 Director case to the certified of the mandate this copy Correctional Corrections, the warden of Stateville defen- Center, of the institution where and the warden dant is now confined.

Judgment affirmed. MILLER, concurring: specially JUSTICE court, join and I judgment I concur in the of the add I to several majority opinion. separately write by dissent filed Justice partial observations about of concerning Harrison and his comments our review cases. capital case,

In the Justice Harrison contends present the state’s sentenc capital we are unable to administer in a ing just suggests legislatures statute manner. He and courts are unconcerned with the fairness and reli he ability capital sentencing system, and maintains that their “dominant are to achieve final goals” instead ity in death cases and to do so 185 penalty expeditiously. Ill. 2d at 227. Justice Harrison asserts that this court the sake specifically willing “disregard is law” for (185 227-28), of a death sentence Ill. 2d at affirming administering he concludes that because of our actions in penalty the death statute we “will feel ashamed.” 185 Ill. 2d at 228. remarked,

Justice once “If the law Harrison himself result, this court commands a certain result need to find fault personal should reach. We do not also shortcoming on the parties with the or establish some justify position.” their in order to our part attorneys of Inc., Zimmerman v. Buchheit 29, Ill. 2d 51 Sparta, 164 of (1994) to the admoni- (Harrison, J., dissenting). Contrary 222 Zimmerman, however,

tion Justice Harrison frequently chooses, case, as he does this to impugn integrity of other members of the court and impute improper Thus, motives those with whom he disagrees. at vari times, ous he has characterized majorities of this court (City Belvidere v. Illinois as enemies of labor unions Board, State Labor Relations 191, 181 Ill. 2d 211-12 (1998) dissenting); American Federation of J., (Harrison, State, County & Municipal Employees Department Services, (1996) Central Management 299, 173 Ill. 342 (American (Harrison, J., dissenting)), as foes of children State, Federation County & Municipal Employees, Barnett v. Zion (Harrison, J., Ill. 2d at 337 dissenting); District, (1996) Park 378, (Harrison, J., 171 Ill. 2d 393-94 dissenting); Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., (1995) (Harri 169 Ill. 2d son, J., dissenting)), against plaintiffs as biased in civil (Burrell Truss, v. Southern actions 176 Ill. 2d (1997) (Harrison, J., and even dissenting)), vigilantes as Kidd, (People (1996) (Harrison, J., 175 Ill. 2d dis senting)). often

Judges disagree about what result the law in requires particular a case. The existence these disagreements, ability legal system and the of our to them, thrive on are virtues of the judicial process and of system debate, our government. terms of the however, civility must be framed and and by respect, reason, by suspicion eclipses and untruths. When rancor diminished, the of the debate is the col quality bonds of strained, legiality judicial are and the is de process prescribe civility meaned. We cannot to members of the opinions disfigured by bar when our own are comments we lawyers as offensive as those have admonished Kidd, e.g., See, making. 175 Ill. 2d at 53-54. We should colleagues receive no less from our than we from expect in lawyers appear who our courts. Mc- and FREEMAN JUSTICE

CHIEF JUSTICE join special in this concurrence. MORROW BILANDIC, concurring: specially JUSTICE also the agree in I also with majority opinion. I the join are “[m]y colleagues the dissent observation of to 2d at 228. I hasten decent and 185 Ill. good people.” would return my colleagues majority add that compliment. my col- my view, partial by dissent learned penalty. a the death This

league is for abolition of plea branch, legislative be directed to the argument should has to or a statute which power modify repeal which it enacted. must not overlook the fact that addition

We branch, judicial safeguards provided by a in a has the of the exec capital protection case additional 12). (Ill. V, January § branch Const. art. utive On 16, 1996, granted executive clemency was Guinevere A. Garcia. becoming Benjamin Prior a Cardozo judge, N. “ because, me it is

argued against penalty the death ‘To far from clear creatures more that weak-minded would be by deterred than form of by punishment. it some other Beyond this, ever-present and above all there is the by great chance of error. The risk is too to be incurred unfortunately to large enough fallible mortals —a class ” Kaufman, and high include A. Cardozo judges, low.’ (1998) Cardozo). However, Benjamin N. (quoting judge responsibility, ap- “[h]e he became a and had when af- New York’s death statutes voted to plied penalty Kaufman, firm A. Cardozo numerous death sentences.” eloquently personal The dissent convic- expresses tion but does not address the sound authoritative opinion majority. joins special

JUSTICE NICKELS in this concurrence. specially concurring: JUSTICE HEIPLE, also portion I majority take issue with but one of the opinion. majority interpreting holds that provision search and seizure in the Illinois Constitution (Ill. 6),§ Const. I, art. this court “looks to the Supreme interpretation United States Court’s fourth amendment” to the United States Constitution. light opinion 185 Ill. 2d at 196. In of this court’s recent People Krueger, (1996), 175 Ill. 2d 60 I believe this statement to be both unfortunate and incorrect. Krueger, we noted that this court “has the author ity interpret provisions of our state constitution more broadly Supreme interprets than the United States Court provisions Krueger, similar of the federal constitution.” proceeded analyze 175 Ill. 2d at 74. We then whether provision the search and seizure of the Illinois Constitu subject exception illegal tion is to an searches by “good conducted law enforcement authorities in Concluding exception faith.” that such an would fail to adequately protect right of Illinois citizens to be free governmental explicitly from unreasonable intrusion, we rejected, as a matter of state law, constitutional Supreme adoption good-faith United States Court’s of a exception Krueger, to the federal constitution. 175 Ill. 2d Krueger firmly at 75. Our decision in thus establishes the principle I, that article section of the Illinois Constitu interpreted independent tion is to be in a manner Supreme jurisprudence. United States Court Nevertheless, I because believe the search conducted

in the instant case violated neither the United States Constitution nor the Constitution, Illinois I concur in the judgment. court’s dis- in and HARRISON, concurring part

JUSTICE in senting part: constitutional defendant’s colleagues turn aside

My American crimi- the the with observation challenge The in the of the best world. system is one justice nal tone, it reassuring but pleasant has a sentiment The “inferior” fact. important supposedly an overlooks abandoning capital are of nations justice systems other Hood, Death an rate. The punishment unprecedented at L. in Transnat’l Perspective, The USA 6 J. Penalty: World (1997). the 517, Japan, & 519 the of Pol’y exception With democracy only States is now the well-established United inor penalty expressly not abolished the death that has is The Death Wyman, Whose?: practice. Vengeance Law, 6 in and Cultural Relativism International Penalty (1997). Europe L. & 544 Pol’y J. Transnat’l Western (6 Pol’y J. L. & punishment is of Transnat’l capital free (6 in our J. 525), hemisphere at as are most countries 570). States, in & Even the United Pol’y Transnat’l L. at no 12 and the of Columbia have presently states District A. offense, no matter how severe. penalty any death Any Thou Kill People: Shalt Not Nice Phillips, Statements in Sentenc- Impact Capital Problem Victim of (1997). n.54 35 Am. Crim. L. Rev. ing, judge enough I do not know about international law punish- the have abolished capital whether nations who fact, of human are, ment individual protective less know, the United I do rights than courts in the States. insured however, nations have at least abolitionist fallibility. ultimate for their pay price that no one will United States decidedly That is not the case those Illinois. including jurisdictions penalty, the death retaining penalty a death efforts fashion Despite courts’ reliable, just, fair, is system scheme that to death. being Innocent are sentenced working. people arrested, tried of innocent who were Examples people are and well and convicted of offenses numerous capital Staff documented. See of on House Subcomm. Civil & Constitutional Rights, Committee on the Judiciary, 103d Cong., Sess., Innocence and the Death Penalty: As- sessing the Danger (1994); Mistaken Executions H. Miscarriages Justice in Poten- Radelet, Bedau & M. tially Cases, Capital Stan. L. Rev.

In Illinois, the best-known case an individual wrongfully of capital convicted murder and sentenced to death Cruz, is that of actually Rolando who was convicted and given the death sentence twice before being found innocent in 1995. Cruz’s codefendant, Alejandro Hernan- dez, had charges against him dropped after being convicted of murder twice and capital having the death sentence imposed once. Verneal Jimerson and Dennis Williams being were exonerated after convicted and sentenced to for the death 1978 murders of Li- Larry onberg and Schmal. year, Gary Carol The same Gauger, who had been on placed Death the murder Row for of his parents, was free after set his conviction was reversed alia, inter on, based 1996, insufficient in evidence. Also Carl acquitted Lawson on was his second retrial after having been to the sentenced death for murder of an eight-year-old Joseph child. Burrows was released after spending years five on Death Row for the Dulin, murder of William a crime he did not commit. (Tillis) in Finally, 1987, Perry Darby Cobb and Williams were after eventually acquitted having previously been convicted and sentenced to death the 1977 for double murder of Melvin Kanter and Guccion. Charles

Some suggest would the now enjoyed by freedom these nine men justice demonstrates that our criminal system effectively adequate safeguards. is with working If only wrongful there had been one or death penalty two cases, I might persuaded be to that view. accept When there have such a many span been so mistakes short time, however, I can only the conclusion draw is that requires it as Constitution the system the does not work to. executioner, only it was dodged

If men the these attorneys, of the the of luck and dedication because who labored and volunteers family members reporters, criminal the They despite survived to win their release. that left to of it. The truth is justice system, not because have they probably would system, the of the court devices the for crimes hands of state all dead at the up ended many wonder how others they not commit. One must did have so fortunate. not been facing accused defendants wrongly prognosis contrary, To the charges

capital improving. courts have abandoned legislatures appear and reli- insuring fairness any genuine concern with cases, “finality” in death ability system. Achieving possible, as as have become doing expeditiously so in death goals penalty jurisprudence. the dominant long provided meaning- the federal courts ago, Not so inway ful state courts exercised oversight which authority oversight their to death. That put people U.S. Collins, has all Callins v. disappeared. but 435, 448-49, 1158-59, 127 L. S. Ct. Ed.

(1994) (Blackmun, J., dissenting). practical For all left to their own devices. purposes, the states have been Illinois, consequences Based on recent experience grave. are to be apt Assembly drastically

The General has shortened sought, in relief can be period post-conviction which reducing exonerating the time in evidence thereby which (West 1996). may discovered. See 725 ILCS be 5/122—1 rising, The of cases of execu- pace number death is court, responsible tions and our which is quickening, is in reviewing penalty for all cases the death is which willingness has demonstrated an unfortunate imposed, in affirm a of disregard the law order to sentence (1996) (Har Kidd, death. See 175 Ill. 2d 59-60 rison, J., note, moreover, I dissenting). that it apparently no longer feels constrained to follow its own rules of court, when they jurisdictional even are and mandatory (see (1998) In re Skahan, Marriage Ill. 2d 577 (Harrison, J., dissenting)). result, inevitably, will be that persons innocent are to be going sentenced to and death be executed in Il linois. A sentencing permits scheme which such horrific and irrevocable results cannot meet the requirements the eighth and fourteenth amendments to the United (U.S. XTV) States Constitution Const., VIII, amends. or (Ill. I, article section of the Illinois Constitution Const. 2). I, § art. say It is no answer to that we are best doing the we can. If do, this is the our best state can we no have busi- sending ness people to their As deaths. as we outraged may personally feel over the terrible acts committed by case, the defendant justification this that is no for perpetuating a system that violates our most basic principles. constitutional any gets

Before righteous us too what a about despicable is, character defendant we should stop also a moment and on reflect how it was to easy condemn an individual such as Cruz, Rolando who was ultimately determined to be innocent. This is suggest this case actually guilty was not either. is My point simply that when a is system prone as to er- is, ror making as ours we should not be irrevocable deci- human any sions about life.

My colleagues good are decent people. Just as of an person inevitable, execution innocent is it is in- evitable one day majority will no be able longer deny scheme, Illinois death as penalty pres- ently administered, profoundly unjust. day When that comes, must, it my colleagues they as see what will have allowed to happen, they will feel ashamed. affirmed, his but should be

Donald Bull’s conviction vacated, and the cause should be of death should sentence aof imposition court for the circuit remanded to be other than death. sentence

(No. 82186. ILLINOIS, OF Appel- OF THE STATE THE PEOPLE BROWN, lee, Appellant. v. ANTHONY Rehearing Opinion denied November 1998.— filed February 1999. notes Defendant him. against prejudiced Cormack was he and if she learned statements that McCormack’s she did relationship, then had an abusive Donna he argues that Defendant impartial. if could be know she

Case Details

Case Name: People v. Bull

Court Name: Illinois Supreme Court

Date Published: Nov 10, 1998

Citation: 705 N.E.2d 824

Docket Number: 81578

Court Abbreviation: Ill.