*1 (No. 54680.
THE PEOPLE OF THE STATE ILLINOIS, OF Appel-
lee, CABALLERO, v. JUAN Appellant.
Opinion 28, 1984. Rehearing March filed denied June 1984.
SIMON, J., dissenting. *5 (Marc Defender, Chicago of Public Doherty, J.
James counsel), for Defender, of Assistant Public Fogelberg, appellant. General, of Springfield, Attorney F. Hartigan,
Neil (Mi- of Chicago Attorney, State’s Daley, Richard M. and General, of Chi- Assistant Weinstein, Attorney chael B. and Mi- Shabat, S. Cherry, E. Joan and Michael cago, counsel), of Attorneys, Assistant State’s chael J. Kelly, for the People. of the the opinion delivered RYAN
CHIEF JUSTICE court: Ruiz, were Luis and
Defendants, Juan Caballero of court Cook in the circuit filed information charged by males, Mi- three teenage of the murders with County Frank Mussa. Addi- Salcido, and Salcido, Arthur chael 1979, Rev. Stat. (Ill. of armed violence tionally, charges (Ill. Rev. restraint 38, 33A— and unlawful 2) ch. par. each victim 3(a)) regarding ch. par. Stat. 10 — to a sever- Pursuant the defendants. were filed against one su- judge tried before defendants were ance, the two were con- Both defendants separate juries. two pervising were hearings sentencing counts. Separate on all victed imрosition at of the defendants held for each defendants Both was penalty requested. the death (87 were stayed sentences to death. Both were sentenced this court un- appeal R. direct 609(a)), pending Ill. 2d con- have 603). previously Ill. 2d R. We 603 (87 der Rule and sentence the conviction affirmed sidered and v. Ruiz (People 94 Ill. 2d for Luis Ruiz. death the convictions consider only In we 245.) opinion, affirm both We of Juan Caballero. and death sentence death. sentence convictions murder victims, Salcido, Chicago Michael One Illinois, to see Princeton, a visit to resident. Following friend, Frank and a Arthur, his the two brother brothers February on Mussa, Chicago drove from Princeton The three to his home. 1979, in to return Michael order around visited with midnight, youths Chicago arrived then proceeded Michael’s mother at her apartment, at 1 a.m. to a restaurant about neighborhood encountered the defend- restaurant, At the the three Al- Ruiz, and Nelson Aviles. LaBoy, ant and Luis Plaсedo *6 other, Michael to each ap- were though they strangers he could buy asked if he knew where Ruiz and proached as to a ignorance possi- some Ruiz marijuana. professed a relationship source. Michael to establish sought ble he a with the knew Jose Cor- strangers by asserting the Latin tez, Eagles. a of a known as gang member Ruiz Michael if he was an by asking Eagle. responded he Michael and went on to had yes answered boast rival gang, assisted Cortez in members of a killing Michael, to Ruiz was actually Latin Unbeknownst Kings. the Latin and not the Latin Kings Eagles. a member of Michael, Arthur, Ruiz, however, did not this to reveal Caballero, Aviles, Instead, he, and Frank. Ruiz said that like Michael. Ruiz then said that and were LaBoy Eagles he could take them to buy marijuana. Caballero, to a all
According signed by confession Michael his seven then entered the car which and youths Arthur, and Frank using. Michael, friends were occupied Caballero, Ruiz, while and the front seat Avilеs LaBoy, instructions, to the back seat. Pursuant Ruiz’ occupied the car into an and The occu- alley parked. was driven Mi- then and instructed alighted back seat pants chael, alone, to and follow them around bring money turned, explained corner. After corner was Ruiz at Michael to Michael his anger and deception expressed followed by for to kill his friends. This was helping four Michael until were “satisfied.” Kings beating they car, Ruiz and then returned to the took control of LaBoy wheel, drove the comer to Mi- pick up and around chael, After was Aviles, everyone and Caballero. so the other
car, began to talk Kings Spanish four would of the conversa- subject not understand. boys and friends killed be- tion was that Michael his should be cause seen their and could them. they identify had faces then into a alley. drove second They took LaBoy After Caballero and parking alley, car, Michael Frank out of the down the alley, them into а where stood over LaBoy guard gangway to with a then returned the car where he gun. Caballero and heard him for stabbing gasping saw Aviles Arthur as it came out of his gurgling and the of blood breath from then Frank brought gangway throat. LaBoy At was the opportu- the car. Caballero offered point, he Frank; however, he stated that would stab nity him. Caballero encouraged shoot prefer Ultimately, throat, Frank’s which was accomplished, cut LaBoy re- and Caballero went retrieve Michael. Caballero to lie Michael, turned with who told in the back seat he car, of the car. As Michael to enter evi- began *7 the the bodies of his friends in front dently observed related he had seat as Caballero Michael push the car. then Michael’s pulled headfirst into Caballero back, throat, his then Michael head stabbed slit murders, times. the the four Following the chest several Socks from through men Michael’s suitcase. rummaged attempt the used in an unsuccessful suitсase were so, the as defendant fingerprints car clean wipe left stated, then get caught.” “we wouldn’t They Ruiz on charged Caballero and were arrested and scene. 3, finger- Ruiz’ 1979, March after matched police to a on the car. found fingerprint prints included the Further the defendant against evidence of Julio a Latin which was testimony Lopez, King, also the four together night saw on the Kings .he murder of the crime. Dr. Robert Kirsch- vicinity ner, a also testified pathologist, regarding stab wounds on the victims. His of the wounds description on found Michael’s corroborated Caballero’s version body of how Michael had killed. Following been defense presentation, testified in Raymond Wesolowski rebuttal for the State that he was arrested and the cell placed next to Caballero’s. Wesolowski testified that they shared a He he cigarette. asked defendant what was “in for.” Caballero related that he had been charged with murder. Caballero asked if Wesolowski he had read about the three Latin Eagles had been killed. When Ca- ballero if them, was asked he had killed he said that he had.
We will first comment on a in this record deficiency which has been in other occurring criminal appeals with No increasing frequency. motion has filed post-trial been in this case specifying grounds upon relies for reversal. The Code of Criminal Procedure of that a requires written motion for a new trial speci- fying grounds therefor shall be filed by defend- ant within 30 days the return of the following verdict. (Ill. Rev. Stat. ch. par. 1.) general 116— rule followed this court is that the failure raise an issue in the written motion for new trial constitutes a waiver of that issue and it cannot be as a urged grounds for reversal on review. v. Pickett (People Ill. Failure 282.) to raise issues in the trial court de- nies that court the trial, a new if opportunity grant warranted. This casts a needless burden preparing and processing appeals counsel for the upon appellate defense, the the court of prosecution, review. upon Without a motion the consideration post-trial limiting errors considered significant, appeal open-ended. *8 for sem- comb the record every counsel may
Appellate on whether or not and raise issues appeal of error blance In this any importance. considered them trial counsel on instance, appeal, 18 issues have been raised case, for by considered insignificant some of which were obviously trial counsel. with to this court obligation comply
Counsel has an an for the has prosecution trial counsel statute, oral statements made by object general obligation oral motion as an be viewed may defense counsel followed, are If procedures trial. prescribed for a new and considering in briefing, arguing needless time spent In this case errors can be saved. countless superficial discussion, a motion for a not about there was a gеneral to a trial, objection proposed judg- of an way new but by attack on order, general in which ment and execution statute was of the death penalty the constitutionality effect made to the was made, and a statement of seek- for the purpose impaneled was improperly reasons, “and many those For death ing penalty. at this I do not care to elaborate more reasons on which the judgment counsel time,”' objected defense point no made objection order. The prosecution and execution it in- is it clear whether Nor to this oral statement. for a as oral motion this be considered an tended that thereafter requested trial. The defense counsel new trial, for a new to file a motion the defendant be allowed could file the counsel stated that defense and the court filed. motion. None was case, under our
Since is a death penalty this court (Ill. reviewed automatically constitution the case we must review VI, 4(b)), art. sec. Const. trial has been for a new not a written motion whether or for an auto- Otherwise, the constitutional provision filed. restate, wishWe meaningless. matic would be appeal to review duty this court’s that, however, regardless cases, death trial obligation counsel has an to see penalty *9 that the statute is so that the complied with review will be limited to issues of some significance.
The defendant first contends the trial court erred in oral and refusing written confes- suppress sions which he made following his arrest. The defend- ant’s is argument that the confessions were involuntary and is, therefore It course, inadmissible. true that it is the State’s burden to establish by preponderance the evidence that the confessions (Ill. were voluntary. 1979, 38, Rev. Stat. ch. v. par. 11(d); Lego Twomey 114— (1972), 477, 489, 404 U.S. L. Ed. 618, 627, 2d 92 S. 619, 627; Ct. v. People Harper 2d 402.) It is also true that the trial court’s findings will not be reversed unless are the manifest they against weight of the evidencе. v. People 86 Ill. 2d Holloway (1981), 91.
A preliminary issue raised the defendant by concerns the breadth of the evidence which a court of review may consider in if the determining trial court committed re- versible error in the motion to denying It suppress. defendant’s that his position that Officer testimony Ep- plen Officer Flood had beaten him to his prior con- fession has not been He rebutted. that the argues State therefore has not proved that his confession was volun- made. At the tarily suppression trial, hearing prior Epplen denied that he had beaten defendant. Although Flood testified at the suppression the defendant hearing, argues Flood was not asked whether he had beaten the defendant. The court ruled that the confession was admissible. At the trial it was introduced into evidence. The defendant then testified in his own behalf charging that the two officers had beaten him to the confes- prior sion. On rebuttal, Flood testified that he never struck the defendаnt. Thus the record contains a denial of defendant’s charges Flood; both by Epplen however at trial after the confession Flood’s denial was made into had been admitted evidence. Braden citing Ill. defendant,
The court is limited to con- that a of review argues hearing suppression at sidering presented evidence prior admis- introduced trial to the and to evidence at confession. sion of obtained allegedly illegally an court consider may is that position appellate State’s all evidence to the evidence at in addition trial presented hearing. from the suppression Braden, had been be given
In at trial testimony This evidence. questioned fore introduction the addi framed the issue in that case as “whether court at the trial introduction prior tional testimony cures the error of the search the evidence obtained *10 motion to sup the trial court the denying preliminary that 516, The court concluded (34 2d 520.) Ill. рress.” In of support such evidence could considered. in Commonwealth
conclusion, the opinion court from quoted the Young (1965), v 175, Mass. 206 N.E.2d . 349 in 694, of evidence consideration appellate upheld Young at for its troduced trial. court was quoted the comment error motion to sup that “any denying [in was not for cause press] prejudicial, probable appeared (349 in evidence.” before confession was admitted 175, that 178, 694, 696.) Following 206 Mass. N.E.2d that since this court said that conclude quotation, “[w]e legality the evidence at the trial established avail case, in this defendant cannot arrest and the search People on the motion to suppress.” himself of error any Braden v. 516, Ill. 2d 520. (1966),
The Braden court’s refer does not holding explicitly to admission to introduced at trial prior evidence only Nonetheless, some appel- evidence. allegedly illegal the fram- late in reliance upon court opinions, evidently language оf the mentioned ing previously issue and from reflect a belief that defendant is quoted Young, correct in that Braden limits court arguing reviewing trial evidence which introduced considering only prior the admission obtained allegedly illegally See, evidence. v. Ill. e.g., People (1977), Griswold 246, 250; 3d 53 Ill. App. People (1977), v. Meacham App. 762, 766; 3d v. 33 Ill. (1975), Glanton 3d People App. 124, 137-38. But v. People see 92 Ill. Sledge App. 1056-57. 3d 1051,
This court has cited Braden for the proposition “it is also for the court to permissible reviewing consider those of fact which are from findings drawn the testi- elicited at trial.” v. mony (People Conner 78 Ill. 2d 525, In this court not limit 532.) Conner did the evi- dence that be considered to that may produced before material was questioned introduced.
We note that Braden involved a motion to il- suppress legally seized evidence. Under (Ill. the statute Rev. Stat. ch. burden is par. 12(b)), the on the 114— the search was prove unlawful. We noted above that statute the burden places on thе State that a confession prove Braden voluntary. does not discuss question, but burden-of-proof ap- State, consider the pears being burden as on the which it if the would be defendant has made a prima fa- cie of an showing illegal search and seizure.
Clark (1977), App. 385.
For the following reasons, we find Braden did not announce the rule which the panels some of *11 appellate court the for which perceive defendant ar- gues. out, As the Braden court the is pointed defendant required to pretrial make a motion to to suppress simply avoid extended collateral at trial. inquiries (People v. Castree Ill. 392, 311 as (1924), 397.) Additionally, Braden, court noted in the on pretrial ruling suppression is not final and be at time may or reversed changed any v. Braden (People (1977), to prior judgment. final Fox People v. Ill. 516, 520; 2d see also Therefore, rather than sub- the rule 609.) procedural not to any there seem spe- stantive. does Accordingly, the the to ad- priоr cial evidence introduced sanctity which should evidence allegedly illegal mission the the trial evi- reviewing a of review from preclude court that dence introduced after admission. Braden did not discuss
Although the court La Bostrie Ill. decision specifi- 2d that review, consider trial ev- court, a on may holds that cally the court’s trial decision idence in whether determining correct. The court was suppress motion denying stated: the consider whether evidence unnecessary it
“We find motion, alone, standing was suffic- hearing the on the at to sus- ient, the trial was sufficient for if the evidence at evidence, it is im- the narcotics tain introduction the have might inadequacy there been material the We hearing on motion. evidence at [Citation.] evidence, therefore, at the shall, all of both consider trial, at to determine hearing on motion and trial court admitted evidence properly whether the person found on defendant’s at nаrcotics which were 617, 620-21.) Ill. (14 time of his arrest.” we above, stated reaffirm the For the reasons we have Bostrie. of La holding considered, we if at trial is find testimony
Even hearing supports at the testimony given pretrial The defendant testi- the motion suppress. the denial of af- were hearing given only that his confessions fied at he washroom where ter taken he was twice The defendant asserts Flood. beaten by Epplen At the the State. sup- his rebutted was never testimony take the that he did testified hearing, pression Epplen into he However, going denied to the washroom. *12 to accommo- is not large enough it the washroom because not that he did remember Flood testified date two people. The defend- the defendant to the washroom. taking ever 503, 10 373 U.S. Washington (1963), ant, citing Haynes of that failure 513, 83 Ct. contends L. Ed. 2d S. the defendant makes that he beat Flood to explicitly deny burden of sustained its it for the State have impossible proof. case the bеcause our Haynes inapposite
We find was beaten by Epplen that charges at the suppression hearing. Flood denied expressly were officer any Chicago police Flood testified that he never saw of- defendant; any Chicago police strike that he never saw he saw that never any- ficer abuse defendant any way; he saw defendant; anyone and that never one threaten these answers do not Although explicitly strike defendant. Flood, himself, defendant, did strike implicit that not say in this the denial that he did. in his testimony Epplen, said hearing, at likewise he suppression testimony else never officer or defendant. anyone saw beat any police He he he stated denied that had beaten defendant and Flood did not strike defendant. Flood Epplen
Defendant’s that both testimony His were administered. present beatings were when Although Flood, does stand uncontradicted. testimony defendant, an himself, striking did not explicitly deny is found in Epplen’s denial Flood’s involvement express testimony. our decision on the above, need not base
As we noted alone, hearing at but suppression may given evidence However, at the trial. we given also evidence consider that the of the testimony must from the above conclude he was beaten hearing defendant at the suppression at the not stand uncontradicted and Flood did by Epplen hearing. of the suppression close of the trial on the
The first attack conduct defendant’s focuses upon statements made closing argument one The prosecutors. defendant claims that the state- ments improperly informed the evidence not in the record corroborated the testimony Raymond Weso- lowski regarding Caballero’s admission guilt while in jail. State counters that the statements were proper *13 comment invited by defense counsel’s closing argument. Each side’s argument depends on a different interpretation as to whom defense counsel was referring closing argu- ment, Hoffman Sergeant Wesolowski, or when he used the ambiguous pronoun, “he.” Both are interpretations plausi- ble and we shall not to the attempt resolve matter. It is possible that the jury understood the reference in the same that the way did, is, prosecution that that the re- pronoun ferred to Hoffman. Sergeant understood, So the argument of defense counsel was improper did invite the reply now of. complained Furthermore, the jury was thoroughly admonished, counsel, both court and to ignore closing arguments which did not state accurately the evidence. We also find that this question was not for properly preserved review. Although defense counsel to objected the state- ment, the did not judge rule on the and defense objection counsel did not a or request ruling call the judge’s atten- tion to the fact that ruling no had been made. The question is therefore not for рreserved review. People v. Rossi 13,17. Ill. 2d
The defendant next raises several issues regarding accountability instruction which was given jury. jury instructed that:
“A person is responsible for the conduct of another per- the commission of a son when either during before or crime with the promote intent or facilitate the commis- crime, a sion of solicits, aids, he knowingly abets or agrees or attempts to aid the other person planning or commission of a crime.” added.) (Emphasis The italicized of the portions instruction differs from the below. as noted accountability, instruction on pattern jury of an- for conduct “A person is legally responsible the commis- during or when, either before person other or facil- the intent offense, sion of an promote and with solicits, offense, of knowingly he itate the commission aid, abets, attempts or to aid the other aids, agrees to or commission of planning person offense.” (IPI), added.) (Illinois Jury Pattern Instruction (Emphasis Criminal, (2d 1981).) No. 5.03 ed. in the changed given argues language
Defendant in this case created the jury instruction possibility Frank murder of have convicted the defendant may because merely Arthur Salcido by accountability Mussa and re- the crime of unlawful the defendant was committing murders. facilitate the thereby straint without intending sent a to the judge note During deliberation, which stated: if holding law mean this: interpret
“We Juan Michael, on Frank and while is mur- gun nearby Popeye Arthur, dering though may even Juan not know the mur- committed, being equally der is Juan is as guilty Pop- as *14 murder. eye interpretation?” Is this a correct the receiving the court called counsel Upon question, if what, to should be any, into chambers discuss response had Defendant’s that the given. argued jury trial counsel not be supple- received instructions which should proper to inform the at all. He the court simply mented urged the instruc- existing to continue its with deliberations jury trial court called the jury the objection, tions. Over them: to into the courtroom and said instructions, found in the
“Your answer should two in- very specific, basically there are which are them, you if I that read cannot see how you structions in- accountability is the any problems, can have the con- for responsible struction which reads a person before, during the either or person duct of another when or fa- intent crime, promote, of a with the commission crime, solicits, cilitate the commission of a knowingly he aids agrees attempts or abets or or per- aid the other planning son-in or the commission of a crime.
If read that you and read the murder instruction that, which basically reads the defendant or one [for] whose conduct he is the responsible performed acts which second, caused the death of Michael Salcido and when the defendant or one for whose conduct he is responsible did so, he or one responsible whose conduct he is in- [for] Salcido, tended kill great bodily or do harm to Michael he, or or one for whose responsible conduct he is knew *** his acts if you conjunction, read those two in I really you can’t see where any great problems.” have court, The trial resolve question posed by jury, did not itself confine or only rereading ac- redefining addition, for In countability jury. court reread an is- sue instruction for murder which he followed by telling to consider the jury two instructions together. By linking the two together instructions for the believe that jury, we the trial court obviated the for error which the potential defendant now argues. Linking instructions made it clear that the could convict for murder by accountabil- if defendant’s ity only unlawful restraint of some victims was intended to facilitate the murder of others. Therefore, we cannot the defendant’s claim that the accept instruction, court, as accountability explained was so vague as to constitute reversible error.
As to the variation in the instruction accountability given from the IPI Criminal accountability instruction, defendant raised no this variation in question involving his original -brief, which was in this on filed court May 1983. filed, before defendant’s brief was Shortly court, appellate Terry App. 302, 304-05, that, case, held under the facts of giving an instruction altered in the same manner as accountability *15 the instruction was altered here was error. In this Terry court allowed leave to on 1983. Ill. (94 2d appeal May
41 court, filed leave of defendant, the with Thereafter, 557.) first time for the raising brief this court supplemental accountability of the altered error in the giving the alleged error in the any giv- contends that instruction. The State failure the defendant’s this instruction is waived by of ing error the con- to the at alleged to make a specific objection on in- At the conference agree. ference on instructions. We instruc- court, People’s the trial settling structions tions, stated: 3, 4, 1, 2, objection. no objections
“No Number 6, 7, 8, 9, objеction 10 given are over Numbers on the objects to this one basis basically the defendant thereof.” portion accountability 8 instruction now com- instruction number is the
Peoples of. plained instruc for an error in an alleged
To review preserve must have tion, objection specifi for been grounds out to the trial court so that court have may cally pointed to consider and correct the error. alleged an opportunity 529, 532-33; v. Fitz Ill. 2d (Barrett (1969), 136, 141-42; Ill. McClure v. Suter Hughey (1943), 378, 383; 3d Havlovic v. Scilingo Ill. App. record re 922.) Although App. to the flects that there was a accountabil general objection instruction, that the in the record indicates nothing spe ity to the trial court’s cific nature of the was called objection error in specific We must' therefore hold that attention. instruction of has been waived. complained now or not the instruction properly whether Regardless defendant was accountability, stated law of this instruction. All оf the evi- by giving prejudiced in the crimes dence defendant’s involvement concerning willingly shows that he clearly knowingly participated in the course of conduct intended participants From the culminate of the three men. killing young time the four in Spanish, concluding assailants conversed
42 men, to kill until pro- that had the three young they they cured from his suitcase and attempted Michael’s socks knife clean of discarded the wipe fingerprints, the vehicle the and left no evidence that defendant alley, the there was not to the had criminal intent related any killings. other Frank, it was the defendant restrained Michael When restraint, it not a for the of purpose unlawful was simple Arthur, abetting part the murder a aiding and The evi- the kill all three. over-all plan systematically active, the was dence all shows that defendant an clearly in all three of murders. willing these participant the accountability contends that instruction Defendant the fact statеs the law. We call attention to erroneously in the court’s holding that this court has appellate reversed the ac- approved relied on the defendant. We Terry (cid:127) in case which sub- instruction that given countability are now consider- the same as the instruction we stantially Ill. 2d 508. ing. Terry (1984), v. further
The contends that no instruction defendant now out that no to the We given point should have been jury. not That does given. further on the law was instruction not have aided the mean, that the court should however, a it had the instruc- concerning jury resolving question the court did tions. that the comments that made We find “The a no aid has regard. judge more than jury request with sufficient duty jury’s speci- respond (Davis (7th Greer ficity clarify jury’s problem.” F.2d The in this 141, 145.) Cir. 1982), jury’s inquiry it the accountability case had a with problem indicated The of Arthur. court instruction as it related to murder and the reread to the instruction jury accountability Michael Salcido. instruction related to murder-issue if above, that The court to the jury, quoted then stated as didn’t how it read it see together, these two instructions no error could have We see jury any problem. court’s to aid the jury. attempt reading court’s find error in the
Nor we any do rather than a Salcido, instruction of Michael murder-issue case the court simply In this murder instruction. generic which the al- jury unobjectionable re-read an instruction it. had ready before com- judge’s
The also maintains defendant re- stated that jury ments because he were prejudicial inter- any problems. should not have ally it should comments as telling these prets under the facts of the a verdict reaching have problem comments reading fair those case. believe that any We *17 the court the telling that was interpretation yields only a in understand- it should not have really problem that jury it was comment on evidence. such, law. As not ing 561, 554, where Therefore, (1929), v. Golub Ill. People “ to ought that not have any the court told ‘[y]ou ” evidence,’ is not in a verdict on this reaching difficulty point. regarding imposi
We next consider claimed errors that our tion of The defendant argues the death penalty. to statute the death penalty imposed does authorize has convicted murder on the when the defendant been of 94 Ill. 2d In v. Ruiz (1982), basis of accountability. People to conten 245, answered this defendant’s 260, contrary we tion. that a death
The defendant also argues penalty prem clause of the process ised on violates the due accountability cites v. People Wagner Illinois The defendant Constitution. 308, (1980), Ill. 2d v.
(1982),
People Bradley
cases,
essence,
hold that it is a violation
2d 410. These
crime
of the
clause to
a less culpable
due process
punish
one.
more
than a more
severely
culpable
within the am-
bring
defendant
himself
attempts
l(bX6Xa)
that section
arguing
bit
those decisions by
9—
the death
1961,
of the
Code of
which precludes
Criminal
not the
sentence for
murder if
defendant
felony
38,
1979,
l(b)(6)(a)),
Stat.
ch.
pаr.
actual killer
Rev.
(Ill.
9—
that
the purposes
acknowledgment
amounts to a legislative
death a
per
by punishing
are not served
penalty
Therefore, defend
murder.
is accountable for one
son who
(Ill. Rev. Stat.
l(b)(3)
down section
ant
us to strike
asks
9—
in
process
as violative of due
l(b)(3))
ch.
par. 9—
imposed upon
to be
as it
the death penalty
sofar
allows
do
or more murders. We
accountable for two
who is
person
v. Bradley helpful
as
Wagner
People
People
not find
contention.
the defendant’s
supporting
v. Ruiz
a similar argument
We considered
that
in the felony
out
pointed
The defendant 510, 20 v. Illinois 391 U.S. (1968), to Witherspoon suant in a 1770, conviction-prone results 776, 88 S. Ct. L. Ed. 2d effective and the need for with inconsistent is jury v. Georgia in Ballew as expressed accurate verdicts jury S. Ct. 1029. We 234, 2d 223, 55 L. Ed. 435 U.S. (1978), 129, v. Lewis (1981), in that claim rejected again do so 147, today. and we is defendant by contention also advanced
A related
in exclud-
results
Witherspoon
a jury
that
under
qualifying
community
of the
members
certain
ing
representative
is
extent
the defendant
an
that
(blacks
women)
and
to such
as enun-
amendment rights
and fourteenth
denied his sixth
522, 42 L.
v.
419 U.S.
in
Louisiana
Taylor
ciated
called our
The defendant has
standards Witherspoon It ex- are to the death penalty. exclude all who opposed not evidence, of the will who, those only regardless cludes ex- Thus, may the death those only impose penalty. the law. Regardless cluded who will not follow ex- we no constitutional violation Grigsby holding, see circum- will under cluding jury any from those who them instructions. in the given stances follow law as an- as States Court Until such time the United Supreme are unwilling a rule nounces new on we jury qualification, our change position. the defendant Another issue raised jury-qualification erred to sua failing the claim that the trial judge inasmuch as jurors “life spоnte qualify” prospective “life qualifi- The claim is that qualified.” were “death they all who jurors to exclude cation” should be done in order be automatically imposed feel that the death should penalty argu- cases. rejected in all murder considered We In 98 Ill. 2d 459-60. ment in People Ramirez any not made case the defendant had we stated that that the death his believed any juror on showing the defend- case should be where penalty imposed every murder, noted because just ant is convicted *19 46 not mean he
juror is not to the death does opposed penalty has in favor In our case the not is biased of it. defendant or that there on his any shown even were suggested in favor of death jurors penalty. who were biased We adhere our in Ramirez. holding
The defendant next the death argues pen simply considering should not in this case. In alty imposed *** we must bear in mind point, responsibilities “[o]ur nor reversal no neither where reasonable require permit occurred, no error has guilt exists, doubt reversible the penalty there is no indication that the on jury imposed People (1981), other v. Lewis than a reasoned basis.” 129, 165. Ill. 2d he subjected should not be urges
The defendant caught up he was in a merely the death because penally occurred would not have but series events which tragic that he had killed friends of for one victim’s boast if more compelling the defendant. This fact would be a such as the defendant had been shown to be “follower” Ill. 2d 164. People v. Gleckler Instead, case. However, no such in this present evidence a con encouraged the evidence shows that the defendant and then federate to slash one of the victims’ throats pro Further, to slash another victim’s throat himself. ceeded record, without a criminal al Caballero is a person Also, one. it is not an extensive events though in this case of the same in the violence are not triggered nocent nature as those in Carlson 2d 564. After no remorse.
In this case defendant exhibited giv- asked him statement, State’s Attorney a the assistant ing it he it Defendant again.” if he had to do over “would do a The assistant thing.” that he “if it was sure stated would thing “there is no such as State’s then said Attorney “a lot of got replied sure You Defendant thing. caught.” The assistant caught.” kill without Kings people getting caught, “Well, got you again replied: State’s Attorney over again.” to do it all do if had it you Juan. Would you *20 I sure, but Michael for The “I’d kill replied: defendant the other two.” don’t know about factors that he mitigating also as urges
The defendant and high out of school dropping until good was a student his or for teachers a problem that he was not disciplinary meager mitigating find these The did not jury neighbors. of the imposition to the preclude sufficient circumstances crimes, of the In of the vicious nature light death penalty. of re- his lack to kill and willingness again defendant’s of the jury. the morse, finding we see no reason disturb the we hаve Also, approved we must out that point confederates, one the Luis death for of defendant’s penalty to have ac Ruiz, the fact that Ruiz was not shown despite Ruiz 94 Ill. 2d (People (1982), anyone. stabbed tually Caballero, has been 245, hand, on the other estab 267.) of life of the the took the one lished as who person actually victims. reasons, find consid- proper
For the we that foregoing of the of- facts circumstances eration was the and given not been defendant’s character. We have fense and the moved to impose indications that the was any jury shown the on other a reasoned basis. Accord- penalty death than the sentence is proper we hold death ingly, case. denied a fair
The next claim is that he was defendant’s to open because State allowed sentencing hearing the mitigation and arguments aggravation and close the at the The defendant concedes phase sentenсing of the hearing. Ill. (1983), v. Williams 97 2d People our decision in us to reconsider 302-03, this claim asks 252, rejects but v. Bandhauer 66 light that decision of 332, 524, cert. denied Rptr. 2d 426 P.2d Cal. Cal. S. 178. In 88 Ct. 19 L. Ed. U.S. that, stated at California Court decision, the Supreme had trial, the the no penalty prosecutor longer phase fa- “and there is no reason to proof logical burden of one The California argument.” vor side over other court then thereafter the should open held that prosecutor could argument penalty at phase then argue The could in rebuttal respond. prosecutor then in surrebuttal. We do defendant could close If the with the California court. rebuttal agree prosecutor’s comments limited to their comments) properly are (closing reason intended there would be no to permit purpose, further. In the normal course defendant to address only may to the one side jury, necessity, summation then to reply other has open. party oppоrtunity his and in make argument, his turn opponents opening then to the The one who first argument jury. spoke own his argument has his oppo- answer opportunity *21 final into this injected nent. No new material should be Am. Jur. 2d Trial sec. There is (1974).) statement. (75 to which permit argument pre- therefore no reason further for the sumably justified purpose replying could be only the to in other final statement. person’s stated something limited, If the are to the closing arguments jury properly the that the California court contents of “surrebuttal” can only is to extend to be going repetitious of what stated. already has been do both the giving party opportunity
We not view one or other as the to close as one side open favoring and true, If all trials fa- stated. that were then California court other. is not case. Properly vor one or the This side each to a case party controlled accepted procedures, under and jury his to argument has an make opportunity the other reply par- each has the party opportunity has in case regard- This is all argument. any ty’s any party therefore no reason and We see less who closes. opens in Williams. for from our holding departing issues relat- The also several other defendant has raised considered have been sentence which to the death ing con cases. The defendant court in other this rejected due process statute violates penalty tends that the death to require it fails because and the amendment eighth that no mitigat doubt a reasonable beyond State to prove the death sufficient to preclude which are factors exist ing 508, 531-34, 79 Ill. 2d (1980), Brownell v. People penalty. 437, 504, answer 94 Ill. 2d Kubat (1983), v. People that the defendant the argument with argument along of nonpersuasion. the risk bears unconstitutionally statute is the death maintains that penalty defendant also con jury it fails to restrict unconstitutional because Al factors. statutory aggravating certain limited sidering factors aggravating to consider other lowing in an arbi death to be imposed said to allow the penalty claim in People rejected or freakish manner. We trary v. Kubat 378, 427, and People v. Free 2d also asks us 2d 504. The defendant (1983), 94 Ill. v. Carey ex rel. Cousins People the decision
overrule claims 531, 535, rejected (1979), 77 Ill. dele includes an unconstitutional
the death statute penalty to the executive branch gation judicial sentencing power discretion broad unconstitutionally and also vests shall the death penalty whether determining prosecutor to do so. sought. We decline statute maintains that the death penalty The defendant notice it fails to require pretrial is unconstitutional because In death penalty. intent to seek the State’s that issue. 342, 369, we addressed Gaines 88 Ill. 2d case, charged the indictments Gaines, In as in this *22 Defendant thus was murders. defendant with multiple sen be he could potentially aware that under our statute tenced to death. of the holding from depart see no reason
We also 372-74, that section 342, 88 Ill. 2d (1981), v. Gaines People Rev. Stat. (Ill. Code of Corrections 5—3—1 of the Unified 1979, 38, ch. par. 3—1) has no here. application 1005— Casting issue constitutional terms does not change our holding, since the mitigating information that may be contained in a presentence in a report may, penalty hearing under section of the Criminal of 1(c) Code 1961 (Ill. 9— Rev. Stat. ch. 1979, 38, par. 1(c)), be to the presented 9— jury.
We have also
decided that our
previously
statute is not
unconstitutional because it fails to
require
sentencing
to make
body
written findings
the existence or
regarding
nonexistence of
factors.
v.
mitigating
Kubat
People
(1983),
The defendant
the trial court
argues
incorrectly
concluded that
it was
power
without
set aside the
verdict
jury’s
sentencing
death. He con
cedes that
decisions of this court
prior
establish that
trial court is without such
v. Lewis
power (People
129,
88 Ill. 2d
147-48;
v.
Gaines
88 Ill. 2d
342, 384). However, he argues that those decisions cannot
with our
squared
decision in
People Van Cleve (1982),
The defendant has also raised one issue his concerning *23 1979, 38, ch. Rev. Stat. (Ill. violence conviction for armed for armed that his convictions He contends 2). par. 33A— re of unlawful felony the underlying on violence based information, he was because, are improper straint fel the underlying based on armed violence with charged reversal require is claimed This variation of murder. ony of a convicted cannot be rule that a defendant under the v. Brown People in the information. crime not charged Ill. 65. (1924),312 returned against were three verdicts
Although guilty violence, no senten of armed the defendant for offense The judgment on those verdicts. final ces were imposed sentence, and, in the absence a criminal case is sentence, cannot entertained. of a an imposition appeal 346, 352; 91 Ill. 2d v. War People v. Dixon (People 125, 130; Lilly (1974), 59 Ill. 2d ship (1974), Ill. The defendant was with armed 496.) charged instructed on violence on murder. based armed violence on unlawful restraint. The verdict of based found the of armed vio guilty jury simply lence each of the three men who were killed with against on out whether the armed violence was based specifying murder or restraint. The defendant did specif unlawful in the instruc object discrepancy ically apparent if to the trial tions, could have cured brought been court’s attention. in the record the notice of
Although appeal appeals convictions, from the three armed-violence the three un- convictions, lawM-restraint as well as the three murder convictions and the death sentence was penalty, imposed reason, For this on the murder convictions. only con- armed-violence convictions and unlawful-restraint victions are not before this court. of armed violence and un- from the convictions
Appeals restraint lawful are therefore dismissed. above, affirm the defend-
For the reasons set forth we ant’s murder and his convictions sentence of death. We direct the clerk to enter an hereby order date of fixing the 26th as the date Wednesday day September, on which the sentence of death entered the circuit court by of Cook shall be executed. The defendant shall be County executed lethal manner sec- injection provided by tion 119—5 of the Code of Criminal Procedure 1963 (Ill. *24 38, A 1983, Rev. Stat. ch. certified of par. 5). copy 119— this order shall be transmitted clerk of this court to by Corrections, the Director of to the warden of Stateville Center, Correctional and to warden of institution wherein the defendant is confined. in
Appeal part; dismissed in judgment part. affirmed SIMON, JUSTICE dissenting:
I death statute is un dissent. I that our penalty believe v. Lewis constitutional for the reasons I stated in and Peo J., (Simon, dissenting) 2d ple Silagy J., (1984), 101 Ill. 2d 184-85 dis (Simon, senting).
I in in- also with the disagree majority’s suggestion stant case in a case that counsel for capital is in the under some to file a motion obligation post-trial court, trial the most is- thereby preserving only promising sues for this court of some of its relieving review bur- I 31-32.) den as a Ill. 2d at do not reviewing (102 tribunal. forced to make a binding believe the defendant should be decision of this in the trial court. Decisions as type which the most serious are often made only errors are best record, which after a review of the a review thorough may not has losing party be the limited time the possible within in cases motion, may to file a and which some be post-trial of of the transcript because impossible delays preparing of which automatically the trial. Procedures or rales review death those penalty only limit a defendant who faces the issues which his remembers well at the attorney enough motion, of re- end of trial to make the a post-trial basis file whether or not he chooses to such a mo- gardless tion, would reduce chances an erroneous decision will reversed. death I involving an
Especially appeal penalty, we believe should refrain from that it is obli- insisting gation counsel file a which post-trial motion places him in issues he in- peril waiving may neglect to any Besides, in such it clude a motion. to urge useless coun- sel to file such motions in where the death cases sentence when, filed, has been event are not imposed we they are constitution, nevertheless our commanded as the all majority concedes, raised review errors on appeal. Moreover, a defendant who a elects to file written mo- tion for new trial is not from precluded errors appealing (People v. Pierce during occurred the trial. Ill. 516.) A defendant is free to App. choose be- tween filing trial, a written motion for a new in which included, event he waives objections not and appealing motion, such a in which event waives he nothing without *25 he has made a objection during the trial. proper A limitation of mandatory type majority ap- pears would suggest be a sharp from our departure present system, which allows every to frame losing party his post-trial own within the strategy ordinary limitations A case, waiver rule. capital which there is only one at level review the State level and the consequence death, losing should not the first which such a departure
novel is advanced.