People v. Gacy

(No. 53212. ILLINOIS, Appellee,

THE PEOPLE OF THE STATE OF GACY, v. WAYNE Appellant. JOHN Opinion Rehearing June denied filed 1984. 28, 1984. September SIMON, J., concurring part dissenting part. and Clark, Defender, Steven and Michael J. Pelle- Deputy tier Alan D. and Assistant De- Goldberg, Appellate fenders, Defender, of the Office of the of State Appellate Ruebner, Chicago counsel), of (Ralph appellant. General, F. of and Hartigan, Springfield,

Neil Attorney (William Richard M. State’s of J. Daley, Attorney, Chicago Jr., Michael Kunkle, Chief State’s Deputy Attorney, Shabat, E. Joan S. S. and Kevin James Veldman Cherry, Assistant of for the Sweeney, counsel), State’s Attorneys, People. Fisher, E. of Chicago,

David C. Sobelsohn Linda for amici curiae American Civil Liberties Union et al.

JUSTICE GOLDENHERSH delivered opinion the court:

In returned in the circuit court of Cook indictments defendant, John County, Wayne Gacy, charged murder, assault, 33 counts of one count of deviate sexual child, one count of indecent with a and one liberties The count of circuit court allowed aggravated kidnaping. defendant’s motion that one trial be held on all pending indictments. trial which the Following jury during dismissed, defend charge aggravated kidnaping of the other counts. In a ant was found all guilty the 12 mur hearing People concerning requested by of the ders committed to the enactment subsequent death section 9—1 Criminal penalty provision 1979, 38, 1), Code of 1961 Rev. Stat. ch. (Ill. par. 9— more of the factors set forth in found that one or jury existed, found there no section were 1(d) 9— sufficient a sentence of factors mitigating preclude death on 12 counts death. Defendant was sentenced to of the re of murder and to terms of natural life on each (87 murder counts. The sentences were maining stayed (Ill. Ill. 2d R. to this court Const. 609(a)) pending appeal 1970, VI, 4(b); 603). art. sec. 87 Ill. 2d R. shows that on the of Decem- evening testimony 1978, Piest, a worked at boy,

ber Robert 15-year-old mother had in Des Plaines. His the Nisson Pharmacy him after work and up to the to pick driven pharmacy contractor building told her that he was see going minutes. back in a few about a summer and would be job a building seen Defendant was He was never alive. again in the evening much of contractor and had spent At the time Piest disappeared, Nisson about Pharmacy.

19 defendant’s truck was seen outside the The pharmacy. Des Plaines that defendant police department suspected was involved in Piest’s learned disappearance. police that he had a record of men sexually assaulting young and had been in convicted Iowa for an on assault a teen- A more age boy. detailed review the facts surrounding the investigation and the issuance and execution of sev- eral search warrants will be set forth in the discussion of the issues.

In the course of the investigation defendant admitted that he had killed 30 individuals, some approximately buried in the crawl under his space home and five thrown into the Des Plaines River. Excavation of the crawl and the space area defendant’s home surrounding recovered 29 In addition, bodies. four bodies were recov- ered from the Des Plaines and Illinois rivers, down- stream from the place where defendant had told the po- lice that he threw the bodies.

Defendant contends first the circuit court . erred denying motion to suppress evidence seized as the result of the search warrant issued 13, on December 1978, and that both argues for the complaint search warrant and the search warrant itself were defective. The complaint stated:

“I, Kozenczak, Joseph Detective Lt. with the Des Plaines Police Dept, received information on Dec. 1978 concerning the missing persons case report Robert J. Piest 5’8, M/W 15 DOB: March lbs, 1963 brown hair and a slim During build. my course of po- investigation lice the following revealed, information was that Piest was last seen at Touhy Ave. in Des Plaines in Nisson Drugs where he works by Kim Byers fellow employee. Byers stated that Piest approached her said, ‘Come watch the register; guy contractor wants me, to talk to I’ll right be back.’ At which time Piest went outside of the store to meet with John W. Gacy. Piest, Mrs. Elizabeth missing boy’s mother was also the store at this time and was waiting pick her 20 up leaving

son from work. Prior to the store her son re- while he to a quested spoke she wait few minutes subject job. about a Summer construction Mrs. Piest minutes in the store then twenty began waited over her son. Piest left the store at looking approx- for Robert 2100 hrs. and has not been seen or heard from imately since. question Gacy

On the date in John W. was observed Touhy in the store at 1920 Ave. on two different occa at P.M. at sions. Once at 6:00 P.M. and a second time 8:00 time he in until P.M. which stayed which the store 8:50 missing person was the time that the Robert approximate During Piest from the store location. disappeared J. investigation course of it was found that John W. my same, is in fact a contractor and owner of which is Gacy PDM located Company, under the name of Construction Summerdale, Norridge, Ill. which is his resi at 8213 W. dence. house, type

A one ranch brick structure with story east driveway drive in front and a on the side semi-circle an oversize building. property of the The also contains Also included is property. in the rear of the garage brick along on it with a painted truck with ‘PDM’ a Black Van side, also, ‘PDM’ on its a black pickup truck with black #PDM42, Illinois Lic. Vin: 1979 Oldsmobile 3N69R9X105706.

During the course of I learned that my investigation, Waterloo, arrested Gacy John W. and convicted Sodomy yrs. Iowa in 1968 for and sentenced to 10 16 old Sodomy year arrest involved 15 and prison. Conspir Gacy In 1968 John W. was arrested youths. — Felony commit on 15 and attempt Assault with acy — ar Subject was also youths 16 old CD3036939. year 22, Northbrook, police Ill. on June rested — and Reckless Aggravated Battery Dept. Case #7204499 Conduct, a sex related offense.” which was cause had been recited that probable The search warrant it directed the to: police established and “*** — and 8213 W. Summerdale Gacy search John W. vehicles: and following described Norridge, Ill. and hood, Levi tan colored Light jacket blue down seize — — — lace wedge type suede shoes type Pants Brown — T-Shirt, with hair along Brown leather wallet Levi clothing samples, stained and dried blood samples, blood three vehicles: along following TDM’ on side 1) Black van truck with TDM’ on side 2) Black truck with pick-up Lic. 1978 TDM 42’ 3) Black 1979 Oldsmobile Ill.

Vin: 3n69R9X105706.” the warrant failed argues satisfy (1964), test of v. Texas knowledge” Aguilar “basis 723, 1509, 84 S. Ct. 378 U.S. 12 L. Ed. 2d facts to failed to disclose sufficient establish probable cause. In we reviewing sufficiency complaint in Spinelli are Court’s statement guided by Supreme 410, 637, v. 393 21 L. Ed. 2d (1969), United States U.S. 584, 89 S. “that and not a only probability, prima Ct. facie of criminal is standard showing, activity 96, cause, 89, Beck v. 379 U.S. 13 probable [(1964), Ohio 142, 147-48, 223, 228]; L. Ed. 2d 85 S. Ct. that affida- vits of cause are tested much less by rigorous probable than of evi- governing standards those admissibility trial, 300, dence at v. McCray [(1967), Illinois 386 U.S. 311, 62, 70, 1056, 18 L. Ed. 2d 87 S. Ct. that in 1062]; cause are not to be judging probable issuing magistrates confined limitations or restrictions on by niggardly by sense, the use of their common United States v. Ven- 684, 688, 102, 108, 380 U.S. 13 L. Ed. 2d [(1965), tresca 741, 85 S. and that their determination of 745]; prob- Ct. cause should great reviewing able be deference paid 257, courts, Jones v. United States 362 U.S. 270- [(I960), 71, 697, 708, 725, 4 L. Ed. 2d 80 S. Ct. (393 735-36].” 410, 419, 637, 645, 584, 21 L. Ed. 89 U.S. 2d S. Ct. 590- concerned, as was the 91.) Aguilar, We are court informant it with the of an unnamed because reliability from the affidavit from whom the is readily apparent information contained in the was ob- complaint hearsay is submitted tained. The to whom the judge complaint existed, must whether cause judgment make probable “must the af- provide and the information furnished him fiant’s answer the magistrate’s hypothetical question, makes think that the defendant committed you ‘What ” Jaben v. United States (1965), the offense charged?’ 224, 345, 353, L. Ed. 85 S. Ct. 381 U.S. 2d 1365, 1371. state- argues

Defendant that Lieutenant Kozenczak’s ments and did not the sources identify were conclusional as such of his information or answer basic questions in the two times? stated John store Gacy “Who W. in- this he, Gacy? How she or know it was Was they did or knowl- personal formation firsthand acquired through argues of the informant?” Defendant too edge not sup- to the warrant did presented judge information re- crime of a reasonable belief unlawful port suggests: straint had been committed. Defendant best, a 15- perhaps suspicious it is unusual or when “At year-old boy place employment does not return to *** right if Piest’s says after he will be back. Even indication, is no from suspicious, there disappearance cited, any had connection with Gacy facts that John this disappearance.” informa- asserts there was insufficient cause evidence

tion to finding probable support in the of the crime of unlawful restraint be found might to searched. places designated be of the the sufficiency We with the that agree People is rest on whether each segment does not complaint considered itself the complaint, in but whether complete “a fair that there was whole, a establishes adequately as *** found crime be that evidence a probability [would] (Illinois v. Gates 462 U.S. (1983), place.” in particular 527, 2332; S. 213, 548, 2317, L. 103 Ct. 238, 76 Ed. 2d v. Morano A People 60, 63.) Ill. 45 2d (1970), see also indicate of the would reading complaint common sense from his information that Lieutenant Kozenczak received 23 Kim Piest’s Byers, Robert fellow and Mrs. employee, Piest, Elizabeth his mother. That the does not complaint set forth in detail how one of these individuals was able to John as the contractor with whom Piest identify Gacy Furthermore, went is not a fatal defect. much speak received, information was not from an un- hearsay informant, disclosed but from victim’s professional mother. That mother of a missing 15-year-old boy would not likely be misinformation supply po- lice for her son was a factor con- searching appropriately sidered who ordered the judge warrant to issue.

The assertion that contained insuffi- complaint cient facts to establish cause is without merit. probable Defendant concedes that it is under certain cir- proper, cumstances, to consider arrests and convictions of prior whether suspect determining cause exists.' probable Beck v. (See (1964), 142, Ohio 379 U.S. 13 L. Ed. 2d 223; S. Ct. v. (3d 1973), United States Cir. McNally 934.) Here, F.2d Lieutenant Kozenczak’s complaint indicated that he had information concerning sus- criminal pect’s and had history discovered a significant of sexual pattern misconduct involving men. Nor young do agree we with defendant it was not indicative that a crime had been or committed but “unusual” only when a “suspicious” stated that he was 15-year-old boy going speak with the left his suspect, place employ- ment, and then failed to return.

Defendant next asserts that the complaint fatally defective in it failed to state the time when the in- formants made their observations. Defendant points out complaint stated Lieutenant Kozenc- only zak had received this information on 11, 1978, December but does not indicate on what date Piest was last seen at drugstore. brief, suggests, his reply cases “[mjissing person remain unsolved for may weeks, months, or years.” Defendant concludes that time, a regarding more information specific

“[without evi- could have concluded that reasonable person on the the alleged presently prem- dence of offense A common sense disagree. ises to be searched.” We Ko- the Lieutenant of indicates that reading complaint a this information while investigating zenczak received at Nisson December report Pharmacy missing person a sub- conclude that the had issuing judge 1978. We existed, that cause probable stantial for concluding basis and decline to disturb his determination. we next the failed

Defendant contends warrant the to be seized. items particularity describe jacket blue down “Light items to be seized were — type Levi Pants Brown hood, wedge tan colored — — — Levi wallet suede lace Brown leather type shoes clothing hair stained T-Shirt, along with blood samples, be- ***.” Defendant samples argues dried blood of owner alleged cause there was no indication as the items, sizes, or no or the mention clothing any styles items manufacturers, no as to why explanation crime, of a the warrant authorized evidence might be general search. clothing by out that worn points Piest be different in size than

140-pound would no argues worn a 19 man. Defendant too 5-pound the wallet to be characteristics concerning distinguishing agree. in the warrant. We do not seized were described color, and even the style, type The warrant described described. clothing in each article material used man- as The T-shirt and are even described pants de- could have been That the wallet ufacturer —“Levi.” police more did not authorize particularly scribed thus render warrant search and general conduct defective. fatally arguendo, assuming,

Defendant contends that of the search scope the search warrant valid was so broad as to constitute an impermissible general search. The of the items inventory seized listed 57 ob- which, one jects, of the blue only jacket, was listed in items, the warrant. Two for film left to receipt be de- at Nisson’s store veloped drug and Maine West High School class are ring, of It particular significance. learned that the in receipt was Piest’s when possession he disappeared and the class ring owned John by who had Szyc, been The reported missing. police photo- a television set in defendant’s graphed home, and it ap- to be similar to one peared which had been taken from Szyc’s apartment.

The People contend the items seized in were plain view and there was sufficient information in pos- session of the officers to their conclusion that support in ring some manner connected defend- receipt ant with Piest’s disappearance.

We disagree seizure any improper concerning television set occurred since the television set was not seized. The of a taking does not photograph amount to seizure, and defendant advances no as to argument why the police acted in improperly the televi- photographing sion set. the Maine Concerning West School High ring, aware, were police as indicated the information by in contained warrant, for search that Piest complaint Plaines, lived Des was 15 of and that there years age, was a high that he attended this school. probability high initials, did not Although ring bear Piest’s the police officer conducting search have may immediately and, event, noticed the on the initials ring, any po- lice aware, time, were at this that defendant could very well a be habitual sex offender and that more than one victim could be involved. The film which was receipt found in a waste basket in defendant’s home showed that film had been left for at Nisson’s Phar- development macy would tend to show that he had in the been no in the seizure of the photo- find error pharmacy. We or the finishing high ring. school receipt 21, 1978, au- A issued on December search warrant defendant’s home for the thorized the search police Piest. The underlying remains Robert body Ko- warrant, for the Lieutenant complaint prepared in the zenczak, the facts contained reiterated basically first for search warrant stated: complaint Decem- during [pursuant “Recovered search to the from a receipt ber was a customer #36119 13th warrant] the name envelope film and address developing on it in ink. investi- Pharmacy stamped Nisson’s Further pos- had last in the gation receipt that this been revealed Piest, time he immediately prior session to the of Robert had disappeared.” Schultz also stated that Officer Robert complaint in- had been

had informed Lieutenant Kozenczak on the vited into defendant’s home defendant while by that defendant, and surveillance unit to watch assigned that of a pu- while inside he detected “an odor similar to that trified human Officer Schultz indicated body.” human had the odor of at least 40 putrified smelled simi- bodies and that the smell in defendant’s home was con- lar. first two this arguments concerning Defendant’s the first Since tention assumed the of warrant. invalidity these the need we have held to we not address contrary, this con- issues. third argument concerning Defendant’s the Decem- tention is even the of assuming validity that Decem- search, 13 the for the complaint ber underlying 21 the satisfy two-prong ber search warrant failed Texas Aguilar v. L. Ed. 108, 378 U.S. (1964), test 2d 84 S. Ct. 1509. the concerning

Defendant makes two contentions the cause in the showing complaint of probable com- dence of the smell home, of flesh in defendant’s decaying of a film on the victim’s discovery receipt purportedly the person at time and the reiterated disappeared, warrant, facts contained in the first taken together, pro- vide a sufficient for circuit to to basis the court refuse the evidence a result the suppress seized as of execution that of warrant. as a that the evidence obtained argues

Defendant to the final pursuant result of the searches executed fruits of the prior must be as suppressed three warrants Because we have determined illegal already searches. this illegal, argument that searches were prior must fail. two before his ar- days

Defendant next contends arrest, officer, in the event of his rest he asked a police his and that officer’s fail- to inform attorney, police before ure to communicate with defendant’s attorney him his fifth and fourteenth amend- violated questioning interrogation. to counsel at his present ment have right was not also contends that his first confession will, or a free and that his a rational mind product made subsequently confession and all statements second from his attor- of “ineffective advice” were product were made at objections no Although confess. ney confessions, defendant ar- trial to the admission of these or, rule should invoked alter- error be gues plain is in- evidence of the object failure natively, of counsel. competency whether the doctrine determining plain

Criteria this have enunciated error should be invoked been i.e., balanced, if is or court, closely the evidence whether the accused is de magnitude the error is of such (People v. Szabo (1983), trial. impartial nied a fair and no We find here reason to invoke 355.) Ill. 2d doctrine. Defendant’s invocation supposed error plain Hackmeister talking his to counsel when Officer right the officer no than a request more apparently ar finally when he was attorney contact defendant’s from out rested, received money defendant had because shows be his bond. record of State to used post contact with attor in continuous that defendant was that on the to his arrest and during days prior neys

29 his his that he night before arrest he had told attorneys for 33 murders. Defendant was read his responsible had read a form him rights signed waiver given the Des Plaines re- department. Nothing police cord defendant’s contention that confessions supports his mind, and, were not the of a free rational product moreover, failure to assert his at pre- trial objection making cluded the circuit court from a on this record point so that this court could review such a con- properly tention. in the con- Nothing record defendant’s supports confess, tention that trial him counsel but encouraged if even defendant’s attorneys night had done so the be- fore arrested, he was a such decision their could part legitimate be viewed as a Justice easily defense tactic. Jackson’s observation that his “any lawyer worth salt will tell no uncertain terms to make no suspect v. statement under (Watts police circumstances” any Indiana 49, (1949), 59, 1801, 1809, U.S. 93 L. Ed. 69 S. Ct. 1358) is to this If inapplicable situation. defendant had revealed details attorneys any whatsoever concerning murders, the 33 at- defendant’s were aware torneys that some 27 or so bodies were bur- ied in the crawl and in space other of defendant’s parts home and that were police on the of uncover- verge ing Moreover, these bodies. defendant’s would attorneys have been aware that the Des Plaines police had posi- linked defendant Piest’s tively Robert disappearance and that further links between former defendant’s young and their employees would be discovered. disappearances Under these it circumstances does not indicate incompe- tence on the part defendant’s con- attorneys they cluded an assertion of innocence would border on the ridiculous and that might possi- confessions bolster ble defense. fact that news- insanity even earlier accounts that defendant paper suggest had significant mental disturbance the assertion that defend- supports concluded that immediately

ant’s could have attorneys realistic defense defense would be most insanity an counsel’s able representa- in this case. In defense light we the trial throughout proceedings, tion of defendant counsel, contention, appellate made by reject and rendered inef- trial counsel “abandoned [defendant] of counsel ***.” fective assistance the the manner of at Concerning selecting jury trial, the court’s questioning defendant contends that dire was during voir insufficient; jurors that the should their se- the time between sequestered during have been the voir trial; of lection and the the beginning and dire should not have been conducted court. open that his counsel and the counsel Defendant contends too have been to di- permitted the should prosecution of being the instead interrogate jurors rectly prospective the that he to court’s required rely upon questioning; in ad- challenges permitted peremptory should have been statute; and that the by to the 20 permitted dition concerning of the prospective jurors court’s questioning the a bi- penalty produced their toward death attitudes ased jury. the court’s questioning contends the it did not

inadequate sufficiently explore because to news accounts jurors’ exposure prospective as- cites number of which he case. Defendant instances on this was insuffi- questioning topic serts show that however, the out circuit People, cient. As pointed of at the outset questioning court announced it counsel, necessary, if felt was would be permitted they during on topics ques- to more request questions specific only Defendant has listed juror. of a tioning prospective for additional specific one his request instance where In on accounts was denied. news exposure questions the court ask instance, requested out the news- he “what remembers juror prospective *** out of the papers what remembers specifically radio.” find that while court newspapers We have an it was not re might made such properly inquiry, because court the pro do so quired questioned from which juror as to sources spective sufficiently he had case, learned whether he had formed an these opinion from sources and from who persons have may pro about case. expressed opinions stated that what he had heard and spective juror from seen he did not come to the conclusion that defendant had facts, committed offenses in these question. On in view of the discretion in the circuit in the vested court examination of we no jurors, (Peo find reversible error. v. ple (1955), Moretti Ill. 2d It should be 532.) noted that in each the other references to the record that defendant contends insufficient on show questioning this matter, defendant an given opportunity sug further gest when the court its questions completed had interrogation, and failed to suggest do so. Defendant did questions ask, other the court subjects for these were In generally pursued. certain of the instances defendant, cited by further was questioning unnecessary because those were jurors excused for cause.

Defendant’s next disagreement with the ques- court’s tioning concerns the jurors’ as to prospective opinions The defendant’s record shows that guilt. defendant was the to given that the ask opportunity request spe- court cific as to the questions of prospective jurors’ opinions the of guilt defendant. Defendant the complains ques- of tioning of Loudenback, Mrs. a the prospective but juror, record shows after she questioned court, was the the court if there inquired were further questions defense counsel replied that had “no more ques- tions.” In defendant, other instances no error cited by was committed because was given counsel the opportu- to additional the suggest questions concerning po-

nity as to and failed jurors’ opinions guilt tential defendant’s so, to do or the was excused for cause. juror objection Defendant’s next to the circuit court’s ques- concerns the de- tioning prospective jurors of insanity the complains colloquy fense. Defendant of the between The juror. and the first record shows judge prospective that when defense counsel the protested inadequacy the the court asked a number of additional questioning the for cause on challenged juror Defendant questions. the that he had a ground preconceived predetermined of defendant’s but coun- question insanity opinion no of the sel additional be asked proposed questions stated, defendant’s juror. complaint concerning Simply “in is that it was done such panel questioning rather than reveal jurors’ as to hide biases way of the circuit court’s questioning them.” purpose their was to exercise attorneys peremptory enable to determine whether challenges juror intelligently, for The record shows that should be excused cause. of this questioning prospective juror circuit court’s re- to fulfill both these We have purposes. sufficient defend- other of the record cited by viewed the portions his the circuit court’s ant argument support In in- was insufficient. most these cited questioning not stances, defense counsel did additional suggest ques- in- In certain asked of the prospective jurors. tions be asked court defense counsel stances, where on the insanity further jurors question prospective record, can- this defense, the court did so. On insufficient to per- questioning complain or to exercise jurors mit him to cause challenge challenges. peremptory court did the circuit contends next concern- jurors prospective the question

not adequately review of homosexuality. Our their attitude toward ing the instances cited by defendant shows that with every prospective juror defendant had the to ten- opportunity der specific and failed to do so. In questions the example cited defendant, by counsel did not tender a specific question, but asked the court to circuit inquire generally about the toward homosexu- prospective juror’s feelings Under the the ality circumstances court’s refusal to do so was within its discretion.

Defendant’s next with the manner in disagreement which the voir dire was conducted concerns the court’s questioning toward prospective jurors’ attitudes the death penalty. complains ques- tions concerning the death as penalty, were re- they framed after of the first 15 interrogation jurors, made it much less that a likely prospective would juror reveal that he favored the of the strongly imposition death penalty. While we agree asked questions of the later allowed jurors for shorter we do responses, find the record any questions tendered defense by counsel that might have elicited a more re- thorough sponse. In the first example revised questioning used the circuit court of which defendant com- now plains, when the voir dire this juror completed, defense counsel if was asked he had further any ques- tions and responded that he did not. In the other in- stance defendant, cited by ex- prospective juror was cused for cause, so no error could have been committed in his Therefore, questioning. we hold that defendant waived to discover more opportunity about pro- spective jurors’ attitudes about the death fail- penalty by the voir dire. to tender ing additional questions during We also note that no questions death concerning pen- in defense alty appear counsel’s list of questions submit- voir dire. ted to the circuit court prior Defendant next complains that circuit court failed further of inquire who mentioned prospective jurors

34 the case. re discussing

that other had been jurors re reveals, however, only that defense counsel cord the ask the what jurors that court prospective quested the case. The of other opinions knew about they jurors’ jurors court’s was that the prospective circuit response voir during reveal their own opinions themselves would dire. We its cannot that the circuit court abused dis say court was cretion in this manner. The un by proceeding the fur obligation jurors der no to question prospective had heard other ther that upon hearing they merely the cases case. The cited jurors discussing by prospective In People v. in this are regard distinguishable. defendant Cravens the in (1941), 495, given 375 Ill. trial court was one of the who had formation after a trial that jurors, knew the defendant previ foreman of the jury, become and had concluded that he was Dur guilty. ously already dire the voir trial, this stated that of that same ing juror the and had not ex he knew about defendant nothing to his or innocence. On opinion guilt as pressed any trial. is facts, the a new It granted those defendant of the de jurors not contended here that any prospective that more information should court, only ceived the but their of the case. concerning obtained opinions have been to noted, propose As defendant was previously permitted the voir dire insuffi if he additional questions believed questions has no instance where cient, specific but cited People v. court. In the rejected by were proposed defendant, Peterson Ill. 3d cited (1973), App. before trial circuit court received information just the that the had her the jurors opinion one of expressed so the could jurors go should plead guilty to failure ex cited no instance of home. Defendant has juror preconceived cause cuse for a prospective the court did ques circuit but contends opinion to discover such jurors sufficiently tion prospective specific ques- failure suggest Defendant’s opinions. such jurors tions be asked to elicit prospective pre- conceived leaves us with to review. opinions nothing

Defendant contends next that failure sequester their jury between time of selection and the be- ginning trial denied him to a fair and right impar- tial al- jury. complains this procedure lowed be to media jurors exposed coverage case, and to with their family discuss case members and friends. The People out defend- correctly point ant time, neither moved to this sequester jury over nor later for a nor mistrial, asked was it shown that any prejudicial coverage media occurred time in during also note that question. sequestration We immediate would have a placed great jurors, burden who have may been able to use the week organize to their affairs before personal town for leaving a trial. lengthy As noted by the a People, placing greater burden on the jurors angered them, have and the may defendant might well have been most their likely target anger. (See United v. States Haldeman (D.C. Cir. 559 1976), 31, F.2d For this defense 85.) reason, counsel have may decided as a tactical matter not to ask that the be jury sequestered trial. before

Defendant contends next that the extensive publicity the voir trial surrounding his made it imperative dire be closed to Defendant that the public. argues extensive caused to publicity many prospective jurors be hesitant to answer and questions completely truthfully. media, also contends that the news permitted dire, to attend the voir could reveal the lead- questions to ing excusal of jurors, thus enabling jurors prospective learn to of these questions and formulate answers which would either avoid or their note require own excusal. We first that defendant did not be ex- request public voir dire cluded from a until after number proceedings jurors had already been defendant questioned. When 36 of the voir dire

did ask that be closed to remainder so on the public, pro did bare assertion only spective jurors were not being fully Supreme candid. Court has have a general public held the press (Globe constitutional of access to criminal trials. right Co. v. Newspaper Court Superior 596, 457 (1982), U.S. Rich 603, 255, 248, 2613, 2618; 73 L. 2d 102 S. Ct. Ed. mond Virginia Inc. v. Newspapers, 555, 448 (1980), U.S. 558-81, 973, 65 Ed. 2d 978-92, 2814, L. 100 S. Ct. 2818- 30 This is not without limits (plurality opinion).) right v. Press-Enterprise Co. Court Superior (see (1984), 501, 629, U.S. 78 L. Ed. 2d 104 S. Ct. 819), to upon not shown a sufficient basis which has it is to that While true right. invoke a limitation their atti reluctant discuss jurors be prospective may dealings or tudes towards homosexuality, prior exist in any this danger may criminal justice system, dire, voir of the news media was the presence to the public. the proceedings reason close enough a the accused the sixth amendment guarantees While a trial, right pri does not right give to a it public (Gannett DePasquale Co. v. U.S. (1979), 443 vate trial. 2907.) 623, 2898, 99 S. 368, 608, Ed. Ct. 382, 61 L. 2d more requires To to the public close proceedings here. Rich shown exist than was reason compelling Virginia (1980), mond Inc. v. Newspapers, U.S. 2814, 2828- 991-92, 100 S. Ct. 580-81, 973, 65 L. 2d Ed. 30. re the circuit court’s next that

Defendant contends during to ask attorneys questions fusal the to permit voir the right dire denied law and of him due process 234 that Rule states a Our fair and impartial jury. “[t]he voir dire examination prospec court shall conduct the v. Jackson People In 234.) Ill. R. (87 tive 2d jurors.” a defend 252, held while 260, 2d we 69 Ill. (1977), right jury, an impartial to trial by ant has right does not the themselves be per- require parties mitted to the cites interrogate jurors. 1968), Silverthorne v. United (9th States Cir. F.2d 627, in that, his contention a case has support when received extensive the pretrial attorney should publicity, permitted be is interrogate jurors. Silverthorne distinguishable, however, since trial court case failed to discuss the issue publicity individually a number of the and undertook little prospective jurors, or no of the as questioning to what had jurors they heard or seen Here, about case. the circuit court in- terrogated juror each as to the individually is- publicity sue, and asked detailed concerning questions jurors’ sources of information. The circuit court also permitted attorneys suggest additional when questions they felt the court’s In questioning was in- inadequate. many stances, had defendant no other ask of questions to jurors. Thus, on these facts we cannot that the court say abused its discretion choosing to by personally interro- gate jurors.

Defendant also that he should have been complains than permitted more the 20 al challenges peremptory lowed statute. We first by note that defendant did not exhaust challenges that he was peremptory given. 38, (Ill. Rev. Stat. par. ch. 4(e).) only 115— case cited defendant in his brief in by of his con support tention is v. People Speck (1968), 41 Ill. 2d 177. That case is however, since the inapplicable, parties case agreed give each a higher side number of pe remptory challenges than There allowed statute. no error in limiting to 20 chal peremptory lenges.

Defendant next that the of the complains examination on their the death prospective jurors attitudes toward resulted in the penalty selection which failed to jury represent a fair cross-section community

38 in which was biased favor of the Defendant prosecution. rejected by on this argument point admits v. Lewis People 129, this in 88 2d 146- (1981), court Ill. v. People Carlson 564, 585- (1980), in Ill. 2d and 87. and defend Having considered rejected previously to here. ant’s we decline reconsider them arguments, of the circuit court’s contends because a survey pub- refusal to for a and provide publicity funds fair trial and right he was denied the to a licity analysis trial, the defend- effective assistance of counsel. Before ant for the a of venue and then moved sought change firm “to conduct appointment of a market research Cook valid statistical both within outside of survey to the of pretrial publicity determine effect County the of or community the temperament members of.those this communities who are veniremen for potential or- The told cause.” circuit court defense counsel motion, der the the coun- for court evaluate properly sel letter the research firm explaining needed a from anal- what the firm and how such an proposed analyze filed an conducted. Defense counsel ysis would be “proposal amended motion with a supplemental venue as an The was submit- survey” proposal appendix. ted the in detail Project National by Jury explained it and the manner which survey purpose ex- determining was to be conducted. In addition cover- to news media exposure potential jurors tent of infor- to obtain age, Project National Jury proposed such as concerning mation “collateral prejudices” issues of sexual prefer- attitudes on the potential jurors’ state ence, and the mental behavior, “impaired deviant esti- the venue evaluation was defense.” The cost of $38,000, confining although mated at approximately counties applying limited number survey reduced measures could. have cost-cutting other was denied. motion budget. supplemental ditec, E Inc. In by A publicity survey performed addition, Sun- Chicago materials were submitted Times, Paddock and Chicago Tribune, Publications, the Sangamon, from publishers Winnebago, Champaign, Peoria counties. Dr. Richard a Ney, psychologist, called to the in interpret data contained the survey the material from me- gathered press the electronic dia. Dr. were a fac- Ney explained there number of tors that should be considered in the analyzing effect which has on a publicity particular location. geographical The first factor sheer volume. more articles and location, a news disseminated in reports particular more likely that area’s recall inhabitants would event.

Dr. explained that the factor to ana- Ney second be in of lyzed determining media impact coverage is emotional created impact by certain of Six types articles. of types generate articles strong emotional responses. First, articles which made reference to “homosexuality” elicited Second, emotional responses. homosexu- pairing with the term “mass murderer” had ality a emo- strong tional impact because it combined the of number deaths with the “topic of death.” The two Chicago newspapers of many carried these first of two articles when types broke, first story but discontinued them week to a Third, month later. “human interest” stories focused on an individual’s involvement in the case rather than the actual facts of the Human case. interest stories were area, in the particularly prevalent Chicago but not in the outlying Fourth, counties. certain articles compared other notorious mass murderers. These ar- ticles were labeled “guilt by Fifth, association” articles. articles “quasi-legal” labeled articles spoke how defendant could “beat the rap” by using the de- insanity fense avoid criminal While such articles responsibility. dealt with purportedly legal issues, were loaded they to- with emotional terms and tended to bias reader Sixth, wards the of the writer. articles labeled point view impact “local interest” articles described the particular case have of Cook people defendant’s would as the him and providing such cost County, trying in all catego- his defense. Dr. these explained Ney ries, this type impact- there was “more of of emotionally of the other any material” Cook than ing County Dr. in other explained people counties. outlying Ney case, there but counties would know about a difference in the of material which would be type concerning the information defendant’s they received crimes. state- factor considered was reports

Another be by pub- ments made officials. Statements made by public recog- readers weight lic officials carried more because official’s nized the status with that public associated of was the use office. The fourth factor to be considered a headline, the more larger important headlines. The the ar- in the reader would believe the information contained in the Also, contained ticle material type was. reader. have a significant impact headline would in a “33 slain” boys For instead of example, stating a day- news media would use headline, the Cook County found, of 3 count,” such as teens “bodies by-day “body these areas feared in both Again, 29 more are slain.” in the than greater in Cook was much impact County other of the State. counties used which could be

Dr. identified four Ney principles au- on the reading the effect these factors had gauge The principle to these materials. first diences exposed or the effect,” concept was the “primary-recency first received was that news best remembered The effect most received. second recently which the manner in effect, concept “halo” or the under- the reader’s could affect is presented information re- of that information’s content. For standing example, as homosexual” could ferring an “admitted a attitude towards the defend- give negative reader ant which could make it difficult for that reader objec- view the information contained in the tively remaining article. The third was called “the law principle prox- basically means that two when imity” concepts, in as a placed close will be viewed proximity, psychologi- Thus, cal when an with unit. article a headline appeared free, “A killer reading how can it goes happen?” of the defense picture below the head- attorney appeared line, reader would associate the defense as attorney killers, one freed who whether the article regardless made such an assertion. The final which is ac- principle, a series of under Dr. tually principles heading, listed one labeled the this Ney “cognitive memory Under theory.” theory, information which is strong associated emotional response is much more easily remembered than information which does not evoke a emo- particular Thus, tional response. concerning memories bizarre be- havior, crime, violent or sex are retained than in- longer formation concerning or nonviolent crime other less emotional events.

These as principles, to the media in applied coverage case, this Dr. Ney explained, each illustrated coverage news media in Cook was much more County prejudicial defendant than in other In partic- counties. ular, human interest stories appeared predominantly the Cook news media. County public County Cook more identified with easily the crimes because the vic- tims lived in the same they area as did and they recog- nized the public officials involved in the investigation. Also, because of the of nature the articles prejudicial in printed Cook such as the articles County, associating free, defendant’s trial counsel as one who sets killers prospective Cook more County jurors were have likely about defendant’s cause. ideas

prejudicial preconceived venue, counsel In for a of defense arguing change met its in showing stressed that the defense had burden “in that there a likelihood of prejudice was reasonable the vio- ***,” and nowhere else that Cook itself County in than in lent was “far Cook publicity greater” County studied, the other counties and that five that were in existed Ney spoke of which Dr. prejudicial impact studied, in the other five counties Cook but County I gotten and that “the that Mr. Motta and have feeling is of knowledge counties was that there visiting other a case, deep- there is not the same of pattern but in there was against rooted the defendant” as prejudice mo- The court defense counsel’s Cook County. granted venue, there tion for of that change specifically finding “a of of Cook was substantial decrease outside publicity so,” though even County, strikingly perhaps jury in whatever generated county would be publicity of in- conducted, the best method selection was this was em- The court suring fair trial for defendant. circuit of the emotional connection the inhabitants phasized Cook had with this case because of the type County publicity, e.g., in- human stories and community interest stories, “particular community terest combined with determining prejudicial impact interest” jury of venue. reports change news required held be- trial was Winnebago selected County in Cook fore jury County. insufficient informa- contends that he had had been Winnebago whether County

tion determine this by prejudicial publicity influenced unduly Dr. disagree. Ney constitutes error. reversible We While to deter- did that he had insufficient information suggest County mine the five outside of Cook which of counties the reason publicity, had least amount prejudicial prejudi- County’s publicity that Cook suggesting

43 County. cial was that the crime occurred in Cook Citi counties, definition, zens other not es in would living geo tablish the emotional tie to the crimes on based the location and belief that crime was graphical significant because it in their happened community. in Dr. Illinois re Ney might While indicated people late to the crime to some of the degree jurisdic because Illinois, than, tional of boundaries more so a citizen say, must Montana, of it be in mind the case had to kept tried in in (Peo be some the State of Illinois. community v. ple (1968), 177, 183.) Also, 41 Ill. 2d as was in Speck dicated on during hearing matter, this if defendant crime, of this convicted he would have guilty been of number of for greatest murders which one any had ever been convicted. was in person it Consequently, evitable that news in coverage would be significant any part country. had right

Defendant no to be tried the county which most to be likely favorably disposed defendant and his of The theory defense. contention the circuit court was mandated constitutionally pro vide funds for a which would have “included a de study termination of the attitudes on the issues of pref sexual erence, behavior, deviant and the of insanity defense” the five counties major in Illinois is untenable. right to a trial has jury been interpreted by Supreme Court as the right an from impartial jury selected representative cross-section of the (Wither community. spoon 510, v. (1968), Illinois 391 U.S. 20 L. 2d Ed. S. 1770.) 88 Ct. But as the just not select a People may which jury is issue will predisposed pertinent which trial, arise at seek may out a county in which will most be prospective jurors likely predis on the defenses which the posed defendant will raise. We agree was, with the that the defendant’s People request effect, an attempt substitute public opinion polls of voir dire. no in the circuit find error process We this expenditure.

court’s refusal to allow funds for the presenta- raises issues concerning tion of to the Because jury. defense insanity and because one the contentions is number issues failed to a reasonable prove beyond People the alleged doubt that defendant was sane at the time of offenses, the a review of evidence is necessary. statement,

The in the facts opening reviewed People, of the revealed the conducted by investigation case as by and the Des Plaines others and then police department in of the as described detail several murders recounted The in his confessions. assistant State’s At- by defendant, the of as cor- stressed confessions torney roborated evidence and the testimony by physical witnesses, other would show that defendant committed the murders the were “an inconvenience because victims him” of pre- and that murders were the results meditated Attor- and rational acts. assistant State’s their sense” urged jurors utilize “common ney while to the witnesses listening testimony expert in case. Defense counsel also who would this testify sense, to use their common and told urged jurors show that the acts of them that the evidence would normal, those of a rational person. defendant were demon- Defense stated that the evidence would counsel a strate that defendant followed which showed pattern counsel “a incredible obsession.” Defense profound, detail, evidence, hear a stated: will lot of great “We picked up boys, out Gacy evening, John went cer- category; all the same —in same these were boys hair, build, certain color tain certain age body group, stated that Defense counsel certain sexual preferences.” for the defense and would called four be psychiatrists dem- that Mr. testify Gacy will “[tjhese psychiatrists *** neurotic host of seemingly symptoms, onstrates and will continue to intensive be dangerous, requires rest of treatment within an institution for the psychiatric his life.” counsel stated: “Those psychia- Defense also trists con- testify will he was unable to fully acts, his are sciously control which motivated over- Defense whelming uncontrollable drives.” primitive counsel then of the proceeded impugn reputation psychiatrists who would for the testify calling People, State,” Dr. “a Robert Reifman mechanic stating that Dr. James “an had iron-clad inflexible Cavanaugh bias,” and that Dr. Jan Fawcett would behalf testify cause unpopu- because defendant’s was too People lar for the himself doctor associate with the defense. Defense stated: counsel “The defense of is valid insanity and it here, is the we only defense that could use be- cause that is where the truth lies.” Again, counsel stated that “this man belongs hospital for the rest life.”

Witnesses testified that 29 bodies were recovered from the crawl under space home, defendant’s under his and under his driveway, and that five garage, bodies were recovered from the Des Plaines Medical ex- River. perts for or in working association with the County Cook medical examiner how explained identifications were made on the remains of these bodies and testified one body, identified as No. had an incised area body on the upper of the fifth rib and incised ar- portion two eas on the lateral of left the sternum which consist- were ent with stab wounds. Six were with liga- bodies found tures necks, around their and 13 bodies found were with in the foreign bodies of the mouth posterior aspect and throat. The official cause of for death those bodies with materials in the or mouth was “as- impacted throat phyxia due to it suffocation,” could be deter- but not mined medically whether the cloth was inserted before or after death. Several of life and death witnesses homosexuals,

testified that the victims were but had friends, had to date or had steady girl just begun girls, plans marry. associates, friends,

Former business employees defendant dur- testified defendant’s actions concerning the murders committed ing when were period his for before arrest. David Cram worked shortly him defendant and moved with after defendant was divorced from He that defend- his second wife. testified ant told him that he degree had which psychology, he needed in order to more easily manipulate people. bisexual, admitted that he was that he was drinker, not a big and that he never “went when crazy” alcohol, or or using drugs both. Cram testified him trenches in the crawl dig defendant had space, pur- and that defendant had portedly drainage purposes, him lime to rid the throughout crawl spread space Cram testified that he pungent crawl its odor. space defendant after had executed the police with first search warrant and that when returned they home, defendant’s asked to check the Cram refused, crawl Cram so defendant checked the space. Rhode, “shook it.” Ronald space about appeared up defendant, a cement stated contractor who worked he told him: before defendant was arrested shortly *** “Ron, I or I’ve been a killed 30 boy people, give bad him that doc- take a few.” Defendant told he had some side,” tors that “were on his and that he thought would free. Antonucci also worked for defend- go Tony ant. He testified that defendant admitted that he openly him testified that defendant once asked was bisexual. He if it “meant if he in homosexual engage activity would once came testified that defendant Antonucci job.” They began to show him films. stag over to his house handcuffs and defendant managed put wrestling, shirt Antonucci’s Antonucci. Defendant then unbuttoned and unbuckled his them pants down to his pulled knees. Defendant then left the room. Antonucci man- to out of one of the aged get cuffs, but pretended not, he had and when defendant returned to the room Antonucci the handcuffs placed on defendant. Defendant then stated: “You're the one that not only got out only handcuffs, but them on put me.” Antonucci stated that after defendant had been handcuffed he continued to him in a speak rational manner. Michael Rossi also worked for defendant. Defendant had sold him a car pre- owned viously John who was later Szyc, discovered to be one of defendant’s victims. Rossi testified that on De- 21, 1978, cember he went over to Cram’s house drop off some of tools, defendant’s and that he while there defendant arrived. He stated that defendant was emotionally disturbed, acted nervous, very and was into “breaking tears.” He stated to Cram and Rossi that on the preceding night had confessed more than 30 killings his Rossi lawyers. testified that he had helped dig trenches in the crawl space, supervised newer who employees were directed to dig trenches in the crawl He space. stated that defendant was sensitive very about where the employees dug, and would place mark- ers designating specific area in which the trenches were to be Rossi dug. testified that defendant was not a drinker, that he heavy complained often, his health told Rossi that he had leukemia and once experienced something appeared be a heart attack, but that his health never prevented his his getting work finished.

Several officers police and an assistant State’s Attor- ney testified concerning defendant’s confessions. Prior to arrest, his defendant had stated to the police officers who were him following that “clowns can get away murder.” Before arrest, unplugged in his crawl so that it sump pump space would fill up with water and removed the ladder into the descending

crawl After space. to the confessing murders, defendant of “four spoke Johns” and told the police that he did not know all of the He personalities. told Detective Michael “Mike, Albrecht: I won’t in be jail this, for I very long won’t a spend day jail this.” He described the murder of Robert detail, Piest in some and stated that after he had put rope around Piest’s neck he twisted it twice, but then the phone rang, so he went to answer and left Piest phone, to die of suffocation. Appar- ently to one of his referring four personalities, defendant told police that “Jack does not like He homosexuality.” told the victims police had all sold their bodies for and that had killed they $20 themselves. Defendant told Bedoe that all Investigator of his victims had come to his house that all the voluntarily, murders concerned money, and that all occurred in his house. In they describing disposal of Robert Piest’s body, defendant told Investiga- tor Bedoe that he had to make or “two three at passes” where he bridge was going body throw river before the was bridge clear of other traffic. Investi- Bedoe testified on gator cross-examination that defend- ant admitted that he openly bisexual, but expressed a tremendous fear of being homosexual. Officer Phillip Bettiker testified defendant said that Piest said that he would do almost for a anything great deal of money. Defendant used a rosary demonstrate to Officer Betti- ker and the other in the persons room at the time confession the trick” that he “rope used strangle victims. He stated that he did not have anal sex Piest, but “Jack might have.” Defendant stated that he did not use the lime to speed up decomposition bodies, rather but used muriatic acid for this pur- The lime was pose. used, defendant explained, sweeten the smell of the crawl After space. drawing diagram where bodies were located in the crawl defendant his hands over his face and space, put stated: of the crawl diagram on. Jack drew going “What’s Finder, an assistant State’s Attorney, Lawrence space.” the fact that testified that defendant was about emphatic At his driveway. there were no bodies buried underneath confession, was still intact. the time of his the driveway Later, a found underneath the driveway. buried body 1,500 Defendant admitted to some homosexual relation- stated that he killed “Joe from ships. Elmwood Park” he wanted more for the money because act, sex and that he tell would defendant’s neighbors that he was if he did homosexually raped by the extra Defendant stated that the kill- pay money. less ings became later on he was work- frequent because hard, so and he ing was too tired to “go cruising.” Defendant Butkavitch, described of John and killing stated that since Butkavitch threatened to kill him if he handcuffs, was released from his he killed Butkavitch in- stead. He stated that Greg Godzik had his own dug and that he grave, had killed John he had Szyc because asked for more Defendant told Finder that he money. killed his victims for one of two reasons: usually because more victim demanded than money originally agreed upon or because a threat to him they posed by exposing his sexual to his Defendant ex- preferences neighbors. Piest plained Robert did not fit the He had pattern. handcuffed Piest after Piest had come to his house with him to discuss the possibility employment. Defendant placed Piest, handcuffs on and then attempted per- him, form oral sex on but could not since Piest could an get erection. Because Piest “became frightened” defendant worried that he tell might what had somebody so he happened, performed trick” on Piest. “rope Defendant stated that “Jack knew only Hanley” why Piest’s was into the river. Defendant body put explained that he would stuff socks into the mouths of frequently victims to prevent coming through blood mouth that he staining

after death from He stated floor. that he graves had so would have available. graves dug called Defendant two witnesses who described them. upon Jeffrey Rignall defendant’s assaults testified bar, one he a local walking when was night him car, a ride. Once inside defendant offered a cloth soaked in chloroform over defendant placed to lose face, causing him consciousness. Rignall’s his house offered him Rignall carried into a drink. Defendant relaxed. Defendant appeared very him then chloroformed When again. Rignall regained he found consciousness, himself restrained on wooden chains. suspended which was The had by board board it his through holes in where arms went and where his Defendant, naked, who was stand- placed. head in front of masturbating. Defendant ing directly Rignall then head and shoved his into grabbed Rignall’s penis it,” love mouth, it, “You love Rignall’s shouting: you of voice a drill Rignall tone used instructor. times, lost several more when re- consciousness shoved an unidentified gained consciousness stated, into rectum. He “You object Rignall’s repeatedly it,” obscenities, it clear” to love talked “made that defendant was in control. next Rignall complete remembers thing Rignall waking up, wearing only is to a in a near his home in park blue next statue jeans, It His was cold outside. face was scarred Chicago. very he rectum. bleeding and swollen and was from his he testified that was under currently psychiatric Rignall his liver care and was also treatments for be- receiving use his damaged cause the of chloroform had repeated that was not liver. of defendant Rignall was opinion the time of this and stated episode sane at legally animalistic he reached and beastly this opinion “by he he me.” Michel Ried testified was attacked ways in After met “New Town.” homosexual and defendant a conversation, in brief he defendant sex engaged and defendant Ried testified that he paid which Ried. times having difficult and defendant financially, him a and him to in him. gave job allowed move One in defendant’s which at the time was night garage, unlit, defendant told Ried to some fuses which were get did, under the work bench. As he defendant hit him with a hammer. Ried up and saw that defendant had his got arm if he cocked back as were to strike going again had a “kind of strange” look his Ried eyes. grabbed arm defendant’s and asked him he doing. what him, at just down, looked the hammer put and told Ried that he did not know what had come over him, but that he felt like he wanted to kill Defend- Ried. ant then “patched up” Ried's head. at Ried stated that time this incident he not did think defendant knew what he was On doing. cross-examination, Ried stated that he might have had an argument with defendant be- fore this incident earlier, occurred. Several weeks Ried were to break into attempting house and Ried saw defendant from him coming behind with a iron tire hand. When Ried turned around him and saw coming, defendant stopped stated that he there thought might that, be trouble. Ried stated at time the incident hammer, with the had looked at defendant before defendant struck him.

Several members defendant’s family and childhood friends testified concerning past. defendant’s Defend- ant’s sister testified their father was never pleased with defendant and told him that he turn would out to friend, be a just like his fairy, sister Barry. Defendant’s stated that their father had a Dr. and Mr. Jekyll Hyde Their type father personality. would come home from work, lock himself in the basement, and drink. Often he would come back and eat dinner with the up family, but if said anyone him, anything displeased he would at defend- night across the table them. before

lunge got and his father marry, ant’s sister was defendant or not defendant would argument into an over whether father held defend- take a bath that Defendant’s night. *** and “Hit me what’s the ant the wall said: against *** me. Are Hit You matter with a coward? you you? Defendant’s father yourself.” never stick up will fell, tripping on a chair and accused defendant of tripped him, to kill Defendant’s sister and threatened defendant. once silk defend- underpants stated she found old, bed, when five or years ant’s and that she was six and it put taken mother’s underwear defendant had She testified that the basement underneath porch. locked the children were never permitted go and testi- there She accompanied parent. down unless her fied that on the before her husband- night wedding, remember, but said which she could not something to-be and started attacking that defendant enraged became the car in out of jumped her husband-to-be. Defendant house, which and walked their they riding which were home, and when she arrived away, was about a' block if She as had also nothing happened. defendant acted coming testified an incident where defendant was out and around with “the began thrashing of anesthesia mother, men.” Defendant’s Marian Gacy, ten strength and testified that was an unhealthy baby defendant She incident where to live. confirmed the expected her and hid it beneath took silk underwear an when defendant was She described incident porch. father, for no ap- two old where years approximately face, out knocking in the her reason, her punched parent The father her causing profusely. to bleed bridge them to left, they arrived advised police and when down. until calmed things leave the home for a few days dinner, returned, home, came ate father they When an She described inci- as if nothing and acted happened. dent where defendant had had some apparently type seizure, when was revived he was fighting like madman. Because defendant kicking repeatedly school, out at he was told Dr. John passed Cavanaugh that he to should be sent Cook for County Hospital psy- “Mom, chiatric evaluation. Defendant told her: don’t to send me I will she good.” ward. be So psychiatric did not. testified that She her husband would down to go work, basement and drink after and that would he talk to himself in two different tones of voice. She testi- fied her husband was critical of very defendant and never showed affection towards any him.

Carol Loftren, wife, defendant’s second testified that underwear, she found silk bikini which were stained in front, around the She lying house. stated that defendant never hid fact that he was She bisexual. said defend- ant gentle lover, was a but that throughout marriage sex, had they increasingly less until one day defendant stated that this would last be the day that had sex they together. After were they divorced, met in they Wiscon- sin. At this time love, tried to make they but defendant began crying. Defendant “couldn’t do and anything” “said he was he afraid more the going other way.” She that, stated one when she could not night sleep, defendant came home and was startled find her up television. then watching stated he come had into the house to something, but get left with nothing, she when looked the curtains she a through saw young boy blond hair into get the car. Defendant then drove off. She went out the garage and discov- a floor, ered blanket on the and a red light and a mirror on the wall. She testified she during marriage had smell complained terrible emanating from crawl one time she a space; went few away and when she days, returned smell had gone, defendant stated that he had concrete in the poured a defendant had memory She stated that space.

crawl if defendant surprised like be elephant an would a a name. She stated that defendant ever face or forgot cement over the crawl to one planned day completely space. Lucas, owner, station testified that gas

John a that, He be- shortly serviced defendant’s vehicles. stated arrested, into the sta- gas fore he was defendant came one with three rolled bag cigarettes tion and passed bag, showed Lucas the his employees. employee to one of the and Lucas turned the over immediately bag standing on the surveillance unit who was policemen Pernell, feet of them. Oscar a prison within 10 one after defendant was incar- testified that guard, night letter. or three hours cerated, he him Two writing saw underneath the bed later, Pernell saw defendant lying his neck. Pernell could not with a towel around wrapped not, whether the towel was knotted or but remember testified that no harm done defendant. testified that defendant was

Other witnesses boastful drinker, a and that he antisocial, heavy but not of ailments which physical that he often had complained did to exist. not appear and testified on two psychologists psychiatrists

Two Elíseo, clinical of defendant. Thomas a psycholo- behalf scored in the of top testified that defendant 10% gist, scale and had no major on Wechsler population However, which thinking he had confused damage. brain classi- who would be people extent large “resembles as He diagnosed ***.” fied as schizophrenic or personality. borderline schizophrenia borderline having legally to whether he was asked his as opinion When objected standards, People under Illinois sane it of presence jury, side was had. Outside the bar Dr. had not attempted Elíseo was established him, told read of facts that defendant had any verify the police talked to of the reports, any involved, people or read any of the other reports or psychologists psychiatrists. It was that defense explained counsel had asked him not to review these materials so that the doc- tor could “an give evaluation.” The independent circuit court ruled that Dr. Elíseo could not base his opinion statements, defendant’s Dr. but Elíseo was allowed to answer a hypothetical which question included most of the pertinent facts concerning defendant’s life which were shown witnesses by lay and defendant’s confes- sions. Based on the facts and the hypothetical question, Dr. Elíseo stated that defendant suffered from a mental disease, paranoid schizophrenia, this condition ex- isted continuously uninterruptedly defendant be- tween 1, 1972, January 21, 1978, December and that because of this mental disease he lacked the substantial to conform capacity his conduct to the requirements the law and appreciate criminality his conduct. On cross-examination, Dr. Elíseo stated that after defendant had crime, committed the he would understand what he did was wrong, but at the times of committing the crimes, he was not aware of the of his criminality act. When asked how he could determine from one inter- view whether defendant was psychotic at certain points in time, Dr. Elíseo stated that he would determine the general personality characteristics and structure defendant and then “project back. It is a guess.” On fur- ther redirect examination, Dr. Elíseo was allowed to an- swer, form, narrative the question: “Would ex- you plain exactly you how came to the decision or opinion the condition of paranoid schizophrenia existed for six, last eight years?”

Dr. Lawrence Freedman reviewed all the re- police all of ports, defendant’s statements, newspaper articles from the very inception case, defendant’s criminal history, from reports other psychiatrists and psychol- Rignall concerning and the book wrote ogists, Jeffrey more Dr. spent assault him. Freedman upon defendant’s Freedman also defendant. Dr. examining than 50 hours sister and his mother interviewed defendant’s younger who were attempting and with interviewers spoke He reviewed neighbors. contact defendant’s friends and Dr. Freedman all of- the medical defendant. reports as a schiz- pseudo-neurotic paranoid diagnosed that defendant had a Dr. Freedman explained ophrenic. core was con- core, that this psychotic but psychotic neuroses. cealed defense mechanisms which resemble that defendant had neurotic and Dr. Freedman opined childhood, illnesses from and early psychosomatic of a beginnings the shift from a serious neurosis the time of Christmas occurred about psychosis probably for sod- he incarcerated at Anamosa of 1969 when to go and his father died and defendant was unable omy, Defendant, explained, father’s funeral. Freedman to his as life, in his as he was a failure was at a low very point he would no longer predicted, his father had always himself. Dr. Freedman explained be able to redeem victims, he encounters with his the homosexual during his vic- own anxieties himself onto about projected He he, “trash.” tims, and not were thinking they, age group that all the were in a certain boys stated the fit these represented of a certain build because boys Dr. to attain as youth. and trim was unable build was consistent that his diagnosis Freedman testified diagnosis personality borderline and “breaks at the borderline schizophrenic process time to time when from out in flowered symptomatology cross-examination, Dr. too On gets high.” stress not control when could Freedman stated that defendant these why asked occur. When would outcroppings no one and when occurred at night “outcroppings” only these around, explained Dr. Freedman else was hours were hours which flour- boy prostitution ished, in other engaged activities during “was, fact, rest of the and that defendant day, concerned with not detected.” Dr. being Freedman de- clined to an as to whether give opinion defendant was le- murders, insane at the time of the gally explaining he believed Illinois definition of called for a le- sanity conclusion, not a gal conclusion. psychiatric Traisman,

Dr. Robert a clinical psychologist, spent 3V2 hours examining defendant and several more hours the results of the tests he reviewing administered to defendant. Dr. Traisman administered the Wechsler adult scale, the Bender-Gestalt intelligence test, visual motor the Rorschach ink test, test, blot the Draw-a-Person the Thematic test on Apperception Dr. request by Richard Traisman noted there an Rappaport. unusual and significant disparity between defendant’s verbal and scores nonverbal on the Wechsler test. Defendant’s to the responses test, Rorschach Dr. Trais- man explained, indicated that he was a paranoid schizo- who phrenic had homosexual conflicts, marked feelings of masculine a lack of inadequacy, feeling other peo- ple, an lack of alarming emotional control or ego control when under stress. Dr. Traisman that the noted defendant saw flowers in of the ink blots and birds many or insects which were in to entering siphon pollen, which was response to the card. Dr. Trais- inappropriate man defendant’s to the Thematic explained responses test and Draw-a-Person test and ex- Apperception defendant’s plained how were consistent responses finding concerning Rorschach test. For example, on the test, Draw-a-Person defendant was told he could wished, draw he anything and he drew his house in detail. great cross-examination, On Dr. Traisman agreed it would be correct say defendant was a disturbed man reflects very severely “but who sufficient ** * behavior aggressive of- destructive any awareness *** antisocial acts knows the nature any [and] *** cognizant would be quite might perform or on a moral wrong are they right whether or not examination Dr. Traisman stated level.” On redirect he had a schizophrenia, of defendant’s paranoid because that his of control over his actions and minimal amount out and loss of control “is related to the acting disease }f * * * that testified

Dr. Richard Rappaport, psychiatrist, disor- with the psychosexual defendant was “borderline” nec- sadism, and fetishism, sexual homosexuality, ders of and antisocial of “subtypes” rophilia. narcissistic char- of the same were also part personalities borderline that defendant Dr. testified Rappaport acterization. which would occur episodes would have brief psychotic were “he these thought boys of where rage as a result rage unmanageable father” and the him and he was the theo- himself. Dr. Rappaport actually against he felt was in the basement bodies placed rized that defendant *** or parapher- “his junk his father had placed because Dr. testified in the Rappaport nalia” down basement. so reality in touch with sufficiently that habits, for his that “he had to provide that he realized these rid of for getting a receptacle he had to provide that cross-examination, he stated On of people.” [shells] examining pa- approach he used psychoanalytic of psychia- number there are a significant tients and that this ap- nor reliance neither use place trists who the fact that to reconcile asked how When proach. River the Des Plaines thrown into were last five bodies objects,” “love were the dead bodies his that theory to ex- difficult this was Dr. conceded Rappaport he explanation some there would be but plain, that he did He stated to understand. not come had yet answer psychoanalytic there was not believe for the 33 murders committed When by defendant. asked whether defendant’s of he mur- explanations why victims, e.g., because dered the asked for more they or threatened to reveal his money were homosexuality, inconsistent with the of theory projection espoused by Dr. Freedman Dr. Dr. Rappaport, stated Rappaport defendant may have those ideas on the “imposed individ- uals” or “tried to elicit behavior their to con- part form to his idea that were bad they people.- That was of part projective identification I was explaining before.” Dr. consulted with Dr. Rappaport Cornelia Wilbur, a known in the field of authority multiple per- sonalities, and she confirmed his conclusion that this was not a case multiple Dr. be- personality. Rappaport lieved defendant of “Jack as an alias. On spoke Hanley” it cross-examination, was out that after these in- brought tense expressions defendant could hostility, his justify behavior as conforming to private code morality, even that his though recognized behavior would not be considered socially He stated that acceptable. defend- ant’s antisocial him personality helped his criminal forget acts.

In rebuttal, the State presented witnesses who testi- fied to homosexual and attacks encounters with defend- ant while he was in R. living Iowa. E. Schroeder testi- fied that defendant had hired him to beat Donald up Vorhees, victim, defendant’s Iowa so that he sodomy in would not court defendant. testify against Richard who Westphal, worked for defendant when defendant was several Fried manager Kentucky Chicken Iowa, in stores testified that defendant him to allowed at sleep over his home one told night, defendant him he wife in for exchange could his a “blow sleep that defendant’s came in to the room job,” first wife was him, where he and made love to and that sleeping “See, stated, defendant walked in and I now caught you, owe me a blow Defendant then forced you job.” with the Edward Westphal comply agreement. Lynch, Vorhees, a testified that while he classmate Donald in was at house Iowa defendant threatened defendant’s him into his him with a knife and forced bed- carving defendant, room. and defendant overpowered be- Lynch cut, and talked apologetic, bandaged Lynch’s came very film” downstairs. watching “stag into a While Lynch said, basement, the movies in the defendant watching “Let and hands be- Lynch's me chained try something,” his He then moved behind forced him Lynch, hind back. mattress, and choked him until he onto nearby stopped still, lying was defendant rolled moving. Lynch While his side, him and unlocked hands. When onto Lynch said, “Well, you okay?” are then got up, took him home. request, at Lynch’s de- several witnesses who presented People at Ana- incarcerated conduct while scribed defendant’s These witnesses testified that defendant mosa in Iowa. in that he was able well while very prison, functioned as in such positions organizations attain importance and, of his because Jaycees, the prison chapter kitchen, for was able to trade food in the prison’s work counselor, inmates, and other told his favors. films adoles- showing porno he in was prison homosexuals. These wit- cents, showed disdain for experienced epi- recounted that defendant nesses also attacks. to be heart sodes of what appeared friend of defendant’s from former Steve Pottinger, change there was no Iowa, testified Waterloo, he was in peni- before and after behavior defendant’s Waterloo, from friend Hill, another tentiary. Charles prison vig- he while defendant was Iowa, testified he the crimes with which innocence orously professed stated, “I’ll released when charged, go jail.” never back Chi-

Robert testified he Donnelly walking in cago when defendant him his black car approached (which on both and asked for identi- spotlights sides) had fication. a Don- Thinking defendant was policeman, the car. Defendant threatened nelly approached Donnelly with and him to told into car. gun get Donnelly was then told to on the handcuffed and lie floor car. home, Defendant into his into a brought Donnelly room bar, which had a and told Donnelly that “he was an and that “still he important person” didn’t the re- get spect he deserved ***.” Defendant offered Donnelly drink, and when Donnelly refused, defendant threw the drink in his face. drink, Defendant later offered another refused, which told Donnelly defendant him that he was a guest that he should defendant’s accept hospi- then tality, and held mouth Donnelly’s open poured the drink down his throat. then took the off, handcuffs asked wallet, for his Donnelly examined the wallet, and then him told put handcuffs back on. did, After defendant slapped Donnelly with back hand, of his shoved on the couch, and Donnelly grabbed his hair. When screamed, Donnelly pushed his face into the couch. He then Donnel- removed ly’s pants and him. anally raped out. Donnelly passed When he regained consciousness, defendant him took into the bathroom, shoved head the' Donnelly’s against wall, then placed around something neck and Donnelly’s started it. He twisting told aren’t we hav- Donnelly, “My, fun ing tonight?” He then forced head into Donnelly’s bathtub, which filled water, and held it there until out. Donnelly passed When Donnelly regained consciousness, he that his discovered clothes had been removed and handcuffs had moved been so that his hands were now cuffed behind his back. Defendant held head out, under water until he Donnelly’s again passed and when he regained consciousness he this repeated

62 again regained more. When Donnelly once procedure He consciousness, Donnelly. all over defendant urinated nude magazine pictures girls, then showed Donnelly them, if liked and when said Donnelly yes, asked him he he then punched told was sick. Defendant Donnelly that held his in the un- again and once head bathtub Donnelly, he con- Donnelly again regained til out. When passed him from the bathroom sciousness, up defendant picked the the floor him into room with bar. and back brought for late He in time show” said, just “You’re a a and showed “gay” pornographic turned on projector movie, room. After defendant film on the wall a to Don- stomach, foot in Donnelly’s put gun stuck his He pulled “Russian roulette.” head, and nelly’s played times, the cham- 10 and 15 spinning between trigger until gun finally pulls trigger, ber between told a blank. gun went off. The contained he had before, had killed but girls that he Donnelly be this, killing “guys” found to doing because he stopped he lost He choked until Donnelly more then interesting. consciousness, regained Donnelly consciousness. When back, his were his ankles his hands were cuffed behind in his mouth. Defendant bound, gag and there was rectum into object Donnelly’s then inserted some sort consciousness, he regained out. When and he passed was still there. in his rectum that was object placed consciousness, re- defendant regained Donnelly When mouth and told Donnelly’s Donnelly from moved the gag him, it and get he to kill to do going just him that if Donnel- back placed gag it over with. Defendant the object around with” mouth, “playing and started ly’s rectum. Defendant in Donnelly’s which was inserted car, in his dress, to Donnelly Donnelly put then told Donnelly ride. He asked him it be his last told would to die?” but going knowing you’re it feel “How’s Field’s, where near Marshall Donnelly then released He going worked. told that he was Donnelly Donnelly die later, but not tell because would not they anyone, believe him.

Officer Janus case. assigned Donnelly’s Ted defendant, When that he Janus arrested advised him was under sexual as- arrest deviate kidnaping sault. At Area after twice police being headquarters, rights, advised of told Janus that he had offered while Donnelly ride, that riding together conversation turned to sex acts for performing money, which agreed, went to defendant’s Donnelly they house, “where each performed sex” bound “slavery they other chains, with handcuffs and watched pornographic movies, committed acts of deviate sexual assault upon each other used dildos, candles and also.” told Janus that he then drove to Marshall Donnelly Field’s, of his place but did not Don- employment, pay the nelly money. experts all testified that People’s defendant was from a

suffering defect, he only personality that was never and that he psychotic, was legally responsible his criminal acts under the Illinois standard.

Dr. Heston, Leonard of currently Clinical Professor at the Psychiatry Minnesota, of testified that University while at the of Iowa he examined defendant University in 1968 to pursuant court issued on order a joint applica- tion of defendant and the of State Iowa. At that time he was as diagnosed antisocial Dr. having Hes- personality. ton opined that diagnosis “pseudo-neurotic paranoid was schizophrenic” not a recognized diagnosis and “is not taken Dr. very right now.” Heston found seriously that there was “grossly insufficient evidence to support” scenario how defendant psychoanalytic concerning “went the di- committing killings,” about these and that in- of was agnosis “pure based paranoid schizophrenic Dr. clinical ference.” that Freedman’s assuming Even correct, Dr. Dr. Heston Heston findings explained, were that to conclude defendant could still would not be able law, of be- not conform his conduct to the requirements a causal link. He testified cause was unable find that for the first time appeared psychiat- “borderline” Manual III ric Statistical Diagnostic nomenclature controversial, was III), diagnosis quite that (DSM single that is our He outstanding problem.” “it III is psychia- stated that of DSM to allow purpose He trists each other. testified understand is it an requires psychoanalytic theory problem suscepti- mental which is not processes inference about correct, He if the proof. explained ble theory since effec- work, it should to treatments which but lead from the theory, tive treatments had resulted was not correct. theory A. clinical Hartman,

Dr. Arthur a psychologist, Reifman, Dr. a called examine defendant Robert the case to the seri- inception at the due psychiatrist, as He defendant hav- charges. diagnosed ousness Dr. diagnosed antisocial Reifman ing personality. an as disorder —narcissistic having personality of narcissistic description He type. explained of the antiso- many contains elements personality is the antisocial cial personality, personality Dr. explained Reifman personality. narcissistic subtype form behavior, of a of a psychoanalysis theory that not it “is re- research, treatment, form of but that and a Dr. Reifman stated at all.” legal lated responsibility paranoid not a pseudoneurotic that defendant could be if such a he would he had defect because schizophrenic he would be “an extremely so that have many symptoms area every in and would be “bothered person” impaired 33 brief psy- life.” ruled out of of his He the possibility I because, that am “in each instance chotic episodes out touch re- of, time was Mr. of Gacy at no aware his vic- tricking He that the of ality.” explained process intricate knots on tims into the handcuffs and tying “cognition, used trick” required ligatures “rope Reifman Dr. did reasonable behavior.” thoughtfulness, not was characterized believe that defendant’s speech the result of associations,” with “loose rather was but feigning his overt He stated that defendant was lying. to fake a being multiple personality crazy, attempted whether defect. When asked on cross-examination defendant indistinct or Dr. Reifman contradictory, tries to obfuscate, pic- “He tries to or replied: present ture that is not Dr. Reifman explained clear.” difference of diagnosis personality between a antisocial the differ- and a of narcissistic is diagnosis personality of ence in and that he found that the diagnosis emphasis, antisocial did not take into consideration personality defendant’s in other areas. accomplishments

Dr. Richard a clinical adminis- Rogers, psychologist, tered the of and Schizo- Schedule Affective Disorders test He stated that this phrenia (SADS) defendant. test was new relatively currently widespread use, but studies showed reliability experts on their agreed diagnoses same 88% patient the time. Dr. to the Rogers explained regard MMPI Elíseo, test administered Dr. there was evi- by dence that defendant was to make himself attempting look worse than he was. testified that really Rogers Dr. there were studies which empirical proved work, Draw-a-Person test does not and generally dispar- test which Dr. aged other results interpretation Traisman reached. testified

Dr. James Lewis Cavanaugh, psychiatrist, in- that, defendant, when he went interview the use sisted that he a document which sign precluded of his notes Dr. Cavanaugh court or by lawyers. stated that this indicated a degree sophistication, the the had to play insisted that experts

that that defend- opinion his rules. He game by expressed narcissism, with an ob- ant from suffering pervasive was and a hy- an antisocial quality, sessive compulsive quality, of his were all of which quality, components pomaniac used an Dr. who Cavanaugh, mixed disorder. personality believed that psy- eclectic approach psychiatry, cause useful in diagnosing was choanalytic approach was not a but patient’s approach of problem, Dr. Cavanaugh criminal assessing responsibility. useful “highly psychoanalytic approach explained in that it on the belief deterministic” is premised or thoughts, feelings, certain of patterns, behavior types ex- reconstruction of past fantasies could be predicted by there further Cavanaugh explained Dr. periences. psycho- inherent conflict between a determinant was an of on the basis which logical theory explains everything prem- and a legal system earlier person’s development Dr. Cavanaugh on the of free will. concept Legally, ised when only could escape responsibility explained, person the person’s ability “an extreme situation arises” where ruled out Cavanaugh Dr. to form an intent is questioned. gen- because defendant’s schizophrenia possibility “the too high eral functioning level because in time” negated his life to this up point sum total of On elements of schizophrenia. existence the basic that he had cross-examination, Dr. Cavanaugh explained the causes explain used psychoanalytic theory suffering that defendant was behavior, defendant’s Cavanaugh Dr. ex- from a disorder. major psychiatric his behav- that defendant understood pressed opinion Dr. least but it, get help, to control or at ior sufficiently to control ability conceded that defendant’s Cavanaugh it the sense that was below his behavior was impaired average person. that of the Dr. Tobias psychiatrists. called two other

The defense Brocher, a neurologist and a agreed psychiatrist, Dr. Rappaport’s of defendant theory parts “split off” these onto projected victims, bad parts and then victims, he a destroyed believing was doing service to it of society by ridding “human trash.” Be- cause the off” “splitting and process of a re- projection pressed is an part unconscious Dr. process, Brocher opined, “My diagnosis proves the psychotic process be- cause only persons who are can off so far psychotic split that Dr. they negate reality.” Brocher did not state an whether opinion under Illinois standards defendant was responsible his criminal cross-examination, acts. On Dr. Brocher was asked if he realized that “reason for the motive that someone does has something nothing do with standard insanity]?” Dr. Bro- [the Illinois] [for cher “Well, replied: that’s a it’s maybe legal viewpoint; not a psychiatric in viewpoint, because psychiatry you have to understand the motivation is do- why somebody ing Otherwise, something. he can’t understand kind any of illness.” When asked whether he agreed with the statement to the effect that do not psychiatrists belong in the courtroom because could not effec- they function “*** in a tively courtroom, Dr. Brocher ex- replied, my *** perience convinced me true, is opposite most in the people legal profession don’t understand psy- Dr. chiatry.” Morrison, Helen a psychiatrist, diagnosed defendant as having mixed or an psychosis atypical Dr. psychosis. Morrison believed that defendant suffers from psychological hallucinations where he would see parts him which were off in split his victims. She was opinion defendant was not legally responsible for his actions standard, under the Illinois and that defendant would have killed his victims even if a police officer had been present at the time of the murder. rebuttal,

In Dr. Fawcett, Jan also psychiatrist, opined problem with or psychodynamic psy- criminal determining responsibility choanalytic theory is that it as retrospectively was used to behavior explain if he ex- Additionally, no other outcome could occur. as if tends be used plained, theory psychodynamic it is actual fact when it is inference really theory, which psycho- and inferences or assumptions upon an explain is based do themselves dynamic theory sense of causation. individual’s behavior in the When Dr. Dr. Brocher’s Faw- questioned concerning diagnosis, cett diagnosis, explained why disagreed if evaluation diagnostic also even this explained were to there still was no causal relation- accepted, be in- ship diagnostic theory any possible between criminality of defendant to either appreciate ability of his conduct or conform his conduct require- Dr. Morri- concerning ments of law. When questioned found Dr. Fawcett son’s diagnosis atypical psychosis, hallu- basis, no factual and that the term “psychological the the criteria for cination,” in his did not meet opinion, for the of hallucination is used in the criteria type of a diagnosis psychosis. failed to prove

Defendant contends People was sane at a reasonable doubt that defendant beyond argues time of the offenses. alleged was and by “the defense on the sanity question evidence evidence credible, the State’s consistent and while large Defendant, ***.” unconvincing contradictory tes- brief, expert lay his examines at both length con- defense and defendant’s concerning insanity timony at arrived experts all the defense cludes that because not, did the People’s experts consistent diagnoses, to meet their burden. People failed no evi- has offered The that defendant People argue at to his sanity doubt as dence which raises a reasonable crimes; “that even assuming of the alleged the time san- raised, Gacy’s proof the issue was adequately the murders was and that as a ity during overwhelming; law, matter of determination should not be jury’s disturbed.”

There is little evidence, conflict in the and the ques tion was what inference could presented be appropriately “ drawn therefrom. ‘The record presents question *** fact to be determined by fact Its deci [the finder]. sion will not be reversed unless determination is so improbable or as to raise a unsatisfactory reasonable ” doubt as to defendant’s v. (People Carlson sanity.’ 564, 79 Ill. 2d (1980), 580, v. People Ward quoting 61 Ill. (1975), 2d 568.) On this record the jury required draw the inference that defendant was insane, and the evidence amply the verdict. supports

Defendant contends next that the circuit court erred in its “that ruling witnesses for the expert State would be allowed to recount statements made to them John by Gacy, but that defense witnesses could not so expert do * * *

In determining an or expert psychiatrist psychol ogist may be from precluded a defendant’s repeating self-serving statements, the circuit court relied primarily on People v. Hester (1968), Hester, 39 Ill. 2d In 489. defense psychiatrist was from precluded giving opin ion “of the defendant’s con a dictated susceptibility fession which would have been based on a complete case history given by to the psychiatrist during [defendant] their second interview.” (39 court, Ill. 2d 489, 509.) the rule that noting only treating could physicians testify “as to medical opinions upon subjective based [their] symptoms described it patient,” held that was not an abuse of discretion for the trial limit court to so the psychiatric testimony. Noting “doubt is cast upon the trustworthiness of the statements” when patient’s those statements are made to an examining expert contemplation trial, and that “most courts refuse to the to act as the conduit for

permit physician patient’s no declarations,” narrative the court found reversible er v. Noble People 425, 432-35, ror. In (1969), 42 Ill. 2d the court testify psy held that could as to psychologists administered, tests such the Bender chological as they test, test, visual motor Rorschach and the Thematic test, could as to the results of testify Apperception alia, inter reasoned, those tests. The since court one of “tools” used as their psychiatrists psychologists it an anomaly would be diagnosing patient, refuse the nature of to allow psychologist explain him the tests and the results of those administered by tests. 42 Ill. 2d 435-36. are authorities which hold that the statements

There examining made to the psychiatrist accused by 2 Wharton, should Criminal Evidence (See be admitted. v. Baird 1972); United States (2d sec. 312 ed. Cir. (13th v. State 1969), 414 F.2d The as stated 700.) rationale Whitlow 763, 769-71, 3, 15-19, 210 A.2d (1965), N.J. is: obvious, probabil-

“It is to the that in all layman, even physi- than a mere ity require would more psychiatrist in order to reach a conclu- cal examination of a defendant very sion The nature sanity insanity. of his or or an- for utterances psychiatric study would seem to call alleged incompetent. with the through swers conversation *** diagnostic tool. The is the psychiatric interview basic insanity elsewhere in tendency There seems to be a full psychiatrist cases to allow the recount defense regardless of its the defendant history obtained from as doctor re- self-serving quality, long or so hearsay opin- expert of his gards it as essential to the formulation admissibility the test of regards history, ion. If he so is that such conversations is satisfied. thesis re- defendant, they or not whether and statements acts; ev- itself, are circumstantial late the crime verbal

71 against insanity. They idence for the of do not or claim come in as evidence of the truth of the facts asserted but rather, the the only, part by as of means employed testing organi- in the mental rationality, doctor accused’s object-like zation factors used to They and coherence. are ascertain mental or reverse.” abnormality not, however, We need here for decide question the reason that our review of record shows that defendant’s were experts precluded not circuit by court’s from or to the ruling stating, explaining jury, for their noted, basis conclusions. As circuit court “as a practical matter, statements your [defendant’s to statements defendant’s are in actually going experts] ***.” anyway

The circuit court’s first of ruling its application defendant’s could not experts testify to “self-serving” statements made by defendant occurred the testi- during of Dr. mony Elíseo. Dr. had Elíseo been asked de- by fense counsel examine to defendant and amake diagno- sis without reviewing any information thus far case, in the for the gathered reason that ostensibly they did wish him be “prejudiced” this information. Dr. was, however, Elíseo his permitted give opinion on a based hypothetical question defense propounded by counsel, and thus expressed his opinion to the In jury. event, any Dr. Elíseo was in permitted narra- explain tive form “exactly how to the came decision or opin- [he] ion that the condition of existed paranoid schizophrenia for the last 6, 8 years.” Freedman,

Dr. whose over qualifications spanned pages transcript, reviewed defendant’s in statements diagnosis éxplaining jury. to the After his di- stating agnosis, Dr. Freedman how he reached his explained conclusions. He was allowed to without testify, objection, that defendant described to him the conditions under which Robert Piest was killed and that while describing man- no “ordinary in detail he showed

this murder great that defendant exhibited feeling,” of human ifestations his cun- to use being able pride” “certain amount and stu- strength “young to overcome ning was very and that defendant “muscular youths,” pid” were Dr. Freedman’s books the fact disturbed by Dr. fashion. While disorderly in a his office piled up to defendant’s as testify not permitted Freedman was he defendant directly, without quoting exact statements He testified of those statements. the contents explained his sexual regarding defendant’s concerning anxiety a homosex- at called anger being and his identification affect showed no emotional ual, defendant of his first victim. stabbing when he described to response defendant’s Dr. Traisman described testified Dr. Rappaport he administered. various tests in- to defendant to sodium amytal he administered Dr. Rappaport condition. While a deep hypnotic duce de- defendant’s concerning from testifying was precluded his of this drug, the influence while under scription, not told him that defendant had he testified life early “in his waking he had not told memories” “new any in de- events greater that he had described state,” but from testify- Dr. was precluded tail. Although Rappaport made about by statements concerning ing he manner, in a particular life or behaved why history form, developmen- defendant’s in a narrative explained, and interviews in reports as compiled police tal history how friends and relatives and childhood defendant’s with Dr. Rappaport development. have influenced his events demonstrate which patterns concerning speech testified affect, despite or inappropriate “loose associations” Dr. instances many by prosecution, objections to him. statements defendant’s repeated Rappaport required counsel were that defense Defendant asserts in cross-examination statements out defendant’s bring to “had to they keep because People’s experts State ruled that mind that the had judge repeatedly the defendant could refer to statements made by experts concedes, their conclusions.” counsel Appellate justify were permitted that defense apparently, attorneys those statements out cross-examination bring “during tend to contra- made to the State which by Gacy experts concludes, their dict or rebut conclusions.” however, explain State were allowed experts not. conclusions, their the defense could experts but there no determining Defendant asserts that is way ruling effect the had on the defense stifling judge’s experts.

The record does not defendant’s assertions. support The record is of defendant’s ex- replete examples of their determinations al- perts explaining bases Moreover, his statements. though quoting verbatim defense were able to how the events of experts explain adolescence, childhood defendant’s as corroborated numerous friends and defendant, relatives affected defendant’s Because no offers of development. proof were made concerning which would have testimony been elicited from defendant’s it is experts, impossible effect, determine the if adverse error. any, alleged Defendant next asserts that he was denied his fifth amendment right against self-incrimination when his to the statements were disclosed to the People’s experts Defendant that the jury. argues was not instructed jury that it could consider these statements as to defend- only ant’s mental that, state and even if such an instruction it given, ineffectual, were would “inevitably be and that the defendant’s can rights therefore only protected be rule blanket from prohibiting experts recounting defendant’s statement.” consider to We this contention be without merit. We note that it was defendant who to introduce these statements into evidence. Fur- sought than at trial other there no thermore, question since was occurred. could have no sanity, prejudice defendant’s that he never aban- brief, asserts Defendant, in his reply selection “at jury claim of innocence because doned his in- the jury the time of instructions jury and at guilt to resolved: there were two issues be formed that light accept is This contention difficult sanity.” argument in opening defense counsel’s statement we could defense that defense “is the only the insanity that defendant admission here,” experts’ use the defense lack of evidence acts, and the any had committed the the charge tend to dispute the record which would committed the murders. defendant had the jury failure to instruct also argues Defendant to the People’s experts statements that defendant’s de- sanity to the issue regard could used only be because hearing, many him of a fair sentencing prived in aggravation. used as factors could be the statements fail to ob- did defendant only issue was waived. Not This statements, to their stipulated the use of these ject arguing relied on them in and, least in part, use at a factor in mitigation constituted his mental defect this To review penalty. the death which should preclude his own error into inject issue would permit trial counsel’s suggestion counsel’s case. Appellate to incompetence is indicative an pose objection failure was the only merit. Not is also without of trial counsel choice an acceptable factor mitigating of this emphasis strat- to have the only it been appears of trial strategy, to trial counsel. available egy amend- that his fourteenth next argues Dr. violated because

ment to due right process it acquitted if defendant were testified that Cavanaugh could be con- that he to guarantee would be impossible dire, life. At voir for the rest of his to a hospital fined in- be jurors that prospective counsel requested defense structed civil commitment. As concerning previously noted, counsel, defense in argument, sug twice opening that defendant should committed to a gested be hospital for the of his life. examination of Dr. rest direct During asked, the assistant State’s with Cavanaugh, Attorney out whether it to con objection, guarantee was possible finement in a mental rest of hospital patient’s life. Dr. stated that it to Cavanaugh impossible guarantee confinement a mental institution because standards for confinement to an insane legal asylum were Defense counsel constantly changing. objected, had, side bar was and the court told defense counsel that the objection was not The court it timely. stated that thought that defense counsel wanted to an “try [the out for a while” and an interposed objection only swer] when it became obvious that the answer was unfavorable to defendant’s case. The circuit court ruled that nothing further should be said on this, the matter. de Despite fense counsel Dr. asked Cavanaugh defendant, whether if he were could acquitted, be committed. Dr. civilly testified that he if Cavanaugh could not the law were followed. The court stated that neither side could raise an irrelevant issue and instructed the jury disregard it colloquy because was irrelevant to the issues of the case. The raised question could only serve to divert attention jury’s from the issues in the case v. (People (1983), Yates 98 Ill. 2d and the court 539), correctly instructed the jury disregard and the testimony comments. On this record the instruction was sufficient to render harmless effect any which testimony may caused, have and we find no error which warrants rever sal.

Defendant contends next circuit court erred certain permitting experts had testify they found defendant fit to stand trial. Several of the experts were permitted testify had they found defendant the trial, to in each instance witness also

fit stand and fitness to stand trial the difference between explained The that an ex- argue and the defense. insanity People fit trial that to stand the defendant was pert’s finding at to the of defendant’s the sanity was relevant question time of the crime. there be instances where may While relevant, is we to see its relevance such evidence fail this evi- hold, however, here. that the introduction We error. The defense dence did constitute reversible that defendant was function well theory was able he when stress rose so that ex- society high levels except akin to a and that episode perienced something psychotic fit consistent with his defendant was to stand trial was the fitness for defense. Since difference between trial and explained was sanity clearly repeatedly was confused we do not believe jury, jury harm- introduction of this and the error was testimony less. next three instances where complains of in his exami-

counsel was restricted allegedly improperly First, nation asked of several defense counsel experts. Dr. a series of how questions concerning Rappaport fit Dr. diag- use disorders” into Rappaport’s “substance con- any nosis. were sustained Objections questions abuse, or substance apparently substance use cerning re- no in the there was evidence this reason if find, however, error, harm- cord. was any, We to the were objections questions less for the reason that Fur- Dr. had answered them. sustained after Rappaport in- Dr. testified thermore, concerning large Freedman valium, accompa- takes alcohol and which marijuana dangerous nied where the “most acute and the episodes that Dr. The informed emerges. jury was paranoia” alco- referred to and Dr. Fawcett’s Cavanaugh’s reports Second, hol abuse. asserts drug it defense permit circuit court erred when refused whether concerning Dr. Hartman counsel to question in the previous as “borderline” anyone had diagnosed this question agree People We years. person- shows that “borderline testimony improper. for the first that designation was given disorder” ality III), Manual III Statistical (Diagnostic time in DSM the American Psy- adopted by approved which tried. case was being while this chiatric Association that “border- in his brief reply defendant asserts While for a diagnosis is a new label only line personality” Dr. Hartman time, and has existed for a long which that the this, we are of the opinion could have explained sus- was properly to the form of objection question if Hartman asked Dr. specifically tained. The question as “border- in the last 28 years had diagnosed anyone Dr. whether line.” If defense counsel wished to inquire one of the Hartman had ever a diagnosed patient using condition, he could done so. for this have labels previous he not allowed Third, because was complains defendant to ask Dr. Hartman: borderline, suffering per-

“In a a from borderline person organization many, many manifests characteris- sonality that sociopath, right?” tics of the isn’t that his was vague agree People question We could questioned and Defense counsel have ambiguous. if and then asked as to expert particular symptoms of consistent with the “borderline.” diagnosis for the circuit court to preclude It was not improper of which might require variety asking question con- interpreted. answers on how it was We depending errors, in a con- transcript clude that these three alleged 5,500 more than could not have taining deprived pages, defendant of a fair trial. next it for Dr. argues

Defendant was improper con- Garrón, called to state an by People, opinion nonorganic defendant suffered any whether cerning asked as a neuropsy- he had been brain disorders when for the deter- purpose to examine defendant chologist disorders. organic there were brain any whether mining not state an opin- that an expert may Defendant argues finding, factual his support there is no basis ion when testified that Dr. Garrón specifically and since nonorganic brain not asked to examine argue The disorders, People no factual basis existed. Dr. for his since opinion there was a factual basis test, that Dr. Garrón a Rorschach Garrón administered “mood, emo- to evaluate defendant’s had used this test and that state, emotional organization,” tional re- was admissible to testimony event Dr. Garrón’s any clini- that any experienced but Dr. Traisman’s statement of a Ror- the results interpret cal would psychologist all manner. need not address in the same We schach test Dr. Garrón had a suffic- assertions, as we find that these test was The Rorschach ient factual basis for opinion. trial, in this testifying used almost every expert to some degree testified that it was useful each expert fact this was the only diagnosis. formulating damage brain nonorganic which related to test given for the pur- not examine defendant that Dr. Garrón did affects the brain disorders nonorganic pose diagnosing testimony. of his admissibility, weight, argues People improperly next an Dr. Freedman did not state Dr. Freedman. impeached insane at the time was legally whether defendant opinion that such a determina- crimes he believed because On cross-ex- the field of his expertise. tion outside was such given stated that he had Freedman amination, Dr. redirect case. On Simon Peter Nelson an in the opinion an gave opin- that he Freedman stated examination, Dr. saw Mr. Nelson and he was with ion in that case because a dissociated eyes under my reenactment “a total killed his this man in which episode state by psychotic if he asked Defense counsel children ***.” six beloved “I this, replied: Dr. Freedman witnessed actually experts, I have, many the which have tape played fol- re-cross-examination, ***.” On no one doubts occurred: lowing colloquy

“Q. they? didn’t jury you, The doubted

A. I don’t think so. they?

Q. guilty, found him didn’t They Objection. MR. AMIRANTE: judge against they And advised THE WITNESS: emotional state.” of his capital punishment because instructed and the court was sustained objection jury: case another gentlemen, happened

“Ladies and what case, reference any decide this so certainly help won’t us is consideration.” improper of another case to results impeachment that this was argue proper The People “no one inferred that what could have jury because correct in his opin- that Dr. Freedman was doubted” Peter was legally whether Simon Nelson ion concerning Nelson when he was with not, or and not whether sane find it We episode. of his psychotic he had a recurrence even if because to address this question, unnecessary it was were improper, this alleged impeachment From the fact to defendant’s case. damaging advised found Nelson but guilty in that case had jury of defendant’s emo- because against capital punishment no doubt infer in this case would state, tional the jury Dr. Freedman’s case believed jury correct. was indeed episode of the psychotic observation immediately instruction cautionary Additionally, the entire to disregard was instructed jury given line of questions. improperly People

Defendant also complains the Peo- During Dr. Cavanaugh’s testimony. bolstered occurred: rebuttal, colloquy the following case in ple’s 80 Q. Now, respect

“MR. KUNKLE: to the [Isaac statistics, Ray you did in fact statistics and keep Center] time, publish report them in first annual at that your having completed through sys- evaluations been the court tem?

You statistics as to keep any your correlation with decision as what the ultimate factfinders find? A. Yes. In that first annual report, the coefficient really degree agreement correlation which means the of factfinder, opinion between our and the or judge ju- .8, ry’s opinion eight was which means out of basically finding— ten times our this, Objection

MR. Judge. MOTTA: Objection THE COURT: sustained.” sustained, that an objection concedes was but to the defendant is so the er- damage great ror cannot be considered harmless. The People respond this case the evidence was relevant since “the va- of various lidity schools of di- reliability psychiatric agnosis were attacked both sides” and that in- by “any formation on the of Dr. reliability Cavanaugh’s technique matter for the consideration.” We jury’s proper other with the circuit court what decide agree juries in other is not relevant and that percentage cases of fact is not necessar- finder diagnoses accepted by indicative of that tech- ily reliability expert’s It the trial court was within the niques. province determine that whatever value this informa- probative tion of the defend- outweighed danger had was by ant’s convicted statistics rather than evi- being by In the sustained we objection, dence in the case. view of hold that defendant was not prejudiced. cross-exami-

Defendant next argues People’s At the beginning nation of Dr. Rappaport improper. the following of the cross-examination of Dr. Rappaport, occurred: colloquy

“Q. your Let me this: did or from you you anyone ask night— station last television than one call more office Judge. Objection, MOTTA: MR. willingness Q. —indicating your KUNKLE:

MR. testimony? your in the midst interviewed be A. No.

Q. Youdidn’t?

A. No. the hall with here in the

Q. walk out You didn’t for in- available you that were and indicate people press terviews? Judge, was— Objection: ANTE:

MR.AMIR A. No. THE WITNESS: out, he walked —with me when

MR. AMIRANTE: press.” talk to the we didn’t it the that jury instructed court immediately

The circuit Later, at a this in fact occurred. that imply was not if he had at- Dr. Rappaport court asked bar, side the Dr. in way. Rap- the media any to contact news tempted me- the news not contacted that he had paport explained counsel had. Defense who anyone dia nor did he know the from draw an inference that the could jury insisted violated Dr. had that Rappaport question prosecutor’s and other experts forbidding attorneys, order the court’s case. The as- to the about talking press from parties had the name that he stated Attorney State’s sistant that he Rappaport Dr. was told “interviewer” who an would not disclose interview, but an available for so. Ac- the court to do instructed by unless the name these to call have that would People knowledging be some might there rebuttal, newsmen ruled: the court privilege,” with “the newsmen problem it point an insignificant it is on such “I feel that attempting ramifications legal not worth would be the State rebuttal, I instruct so would in that to put to dis- jury instruct rebuttal, and I will in put in- court then that.” regarding regard anything concerning remarks disregard any jury structed this matter. v.

Citing People Steptore (1972), 208, 216, Ill. 2d v. People (1914), 411, 262 Ill. defendant Pfanschmidt argues a witness not be may impeached on a collat eral matter and that “the test of collateralness is whether the fact for which the is offered in testimony contradiction of a witness’ could have testimony been shown evidence for any purpose of the al independent v. Citing People Pumphrey (1977), leged contradiction.” 51 Ill. 3d App. if argues the sole purpose of the impeaching evidence is to contradict the witness and if it is not relevant other it any purpose, is inad missible.

We note that it was defense counsel who injected issue of bias of the witnesses into expert this trial with remarks opening argument ex People’s were perts “mechanics for the State” or had “inflexible biases.” The People’s to this response argument, bias at least as far as Dr. concerned, is Rappaport to be appears that, as a private practitioner, Dr. would Rappaport rely on defense and criminal heavily attorneys defendants business. The witness’ use of this trial for publicity would to be relevant the inference that he had a motive to for the defense. The testify had the to People right cross-examine the witness bias, his concerning prejudice v. (People Sampson or interest in the outcome of the suit (1953), 399, Ill. 2d 404), agree but we with the circuit court the matter was insignificant and, in view of the instruction to the jury it, to was not disregard preju dicial. contends next the People improperly

insinuated that defense counsel and defendant had con- cocted the defense the before defendant’s insanity night arrest. On direct examination Al- Detective Michael brecht, the occurred: following colloquy and he He said he had four Johns

“MR. KUNKLE: all of personalities. doesn’t know the Q. Now, to his lawyers’ this after he had been before, is that night right? A. That is correct.” for a and asked objected

Defense counsel immediately Amirante stated: “That’s a direct attack side bar. Mr. mistrial, It calls for a I’m defense counsel’s integrity. “I a motion for mistrial.” The court stated: making my- 1, self didn’t it that Number he to interpret way. goes his it doesn’t follow that the lawyer lawyer, necessarily coming is he’s to a and he’s suggesting going lawyer up counsel insisted that the insinuation with this.” Defense “obvious,” and the court reiterated that it did not in that manner and interpret question necessarily that “it not and that the argued better be as- way” sistant State’s tell is Attorney going “better whoever argue not to that.” cannot argue agree We with defend- ant that the admit to infer- People’s questions one only ence. The People did that Mr. Amirante con- argue cocted defect and told defendant multiple-personality however, to use it. The were entitled to People argue, that defendant’s his visiting attorneys day before “four was arrested and that there were telling police Johns” tended to defendant had concocted establish that defect and was multiple-personality attempting use it to avoid for his crimes. responsibility

Defendant cites Macon v. Yeager United States ex rel. 615-16, (3d 1973), cases, Cir. 476 F.2d and other reference defendant’s exer- argues People’s of the sixth cise counsel is violation right defendant, amendment. In after a Yeager, shooting incident, drove from the scene with his friends and away take instructed his friends “to no statements and to give F.2d (476 no action until he had consulted his attorney.” his The next he 614.) morning telephoned lawyer closing argument, During later arrested. and was argued: prosecutor chest, a in the the shirt down puts home and goes

“He trouble He he had says goes Then bed. torn shirt. behold, morning and lo the next gets up He sleeping. in These are acts lawyer. his he do? He calls what does 613, 614.) (476 F.2d added.)” (Emphasis nocence1. the prosecutor In Yeager, Yeager distinguishable. findWe infer defendant could to the jury they argued the alleged after attorney he consulted his because guilty however, the inference Here, act had occurred. criminal asking jury Attorney the assistant State’s which his attor- with consultation that defendant’s to draw was concerning to police statements making neys prior conclusions supported experts’ multiple personalities de- fake an insanity was attempting that defendant also supports to 30 murders That he confessed fense. crimi- his conduct was that he was aware inference had that defendant the evidence note, also, that nal. We from came attorneys to his murders to. 30 confessed that he had told him that defendant statement Cram’s he had killed 30 people. told his attorneys of cer- the introduction next argues Defendant on that evi- based argument evidence and tain improper that the Defendant argues him a fair trial. dence denied irrelevant and prejudicial: information was following Samson, character; that Darryl of good Piest was Robert had planned Kindred and William Russell Nelson had planned Mowery and John Gilroy that Robert marry; had on education; that Piest been their furthering team, badges and was “two roll, the gymnastics honor Scout, which Robert badge making Eagle from away hon- graduated had that Nelson had badly”; wanted Minne- to the University scholarship and won a ors names had the future wife that Nelson and sota and com- also chosen. children already of their Melanie plains Jo Paulus had testified with Mary on her neck brace defendant’s offer to despite stipulate to her testimony.

The rele- that all this information was People respond vant defendant’s assertion that his victims were hustlers,” “street “homosexuals” and “human trash.” The counsel, note that defense ar- People during opening gument, asserted that all the victims shared “certain sexual The preferences.” also note that defend- People ant, in his confessions to the asserted “that all of police, the victims had homosexual, bisexual, been and that all had come to house Gacy’s sex,” to be for expecting paid hustlers, that “all of the victims were from mostly Bug- house Square,” “he never bothered straight peo- that “the ple,” victims had killed themselves because had sold their they $20,” bodies for and that “his victims were all male prostitutes.” assert People defense experts repeatedly suggested that defendant “regarded boy prostitutes trash,” he picked as up and that defendant that he was “thought performing service to society by of human disposing trash, namely homosexual prostitutes.”

We agree with People evidence concerning the victims’ sexual preferences was to negate relevant the assertion that all the victims were homosexual pros- titutes. Moreover, the evidence Piest’s concerning activi- ties in school and outside of school was relevant defendant’s statement to Officer Bettiker that Piest stated he would do almost for a anything great deal of money and the suggestion of a possible exchange money sex acts involved the Piest murder. failWe relevance, to see the however, of evidence that Russell and his future wife had the names of their children al- out and that ready picked Mrs. Nelson would not divulge the name of Russell’s girl friend because she was trying to make a life of her own and was very upset about

what had happened. we also fail to see Additionally, relevance in the evidence of the victims’ sib surviving or that lings Piest wanted to make Scout Eagle “badly” and similar information. Moreover, we agree that the prejudicial nature of this information reference to it in compounded by closing argument. For example, stated: prosecution “Thirty-three boys were dead sisters, and the lives of brothers parents, fiancees, grandmothers, friends were left shattered.” This court has found reference to the of the dece ages dents’ children to be re highly inflammatory, requiring versal even in the absence of an the objection because nature of such evidence is so es “highly prejudicial well *** tablished that it was the of the court in a mur duty der case to have refused it on its motion.” (People own v. Bernette Ill. (1964), 359, 372.) However, 30 2d we con clude that reversal is not under the facts of this required case. It has recognized been that the effect of prejudicial or evidence the circum inflammatory depends upon stances of the case. In v. Ill. People (1982), Jones 94 2d 275, the was informed that the defendant had been jury involved in numerous murders and had assaulted a Louis, in the living East St. slashed woman’s couple throat, head, her bludgeoned face and cut in deep gashes arms, her husband, hands and her car decapitated ried the head of the husband and later discarded it. Re an that certain were jecting argument photographs prej udicial and this court stated: inflammatory,

“It is that at in the the unlikely point proceedings this photographs ju- would have created more revulsion in the present. rors defendant than was Since already toward took 20 minutes it is jury approximately deliberations deciding little that difficulty clear there was warranted, death and we do not penalty believe the admission of these at this late date in photographs proceedings deprived right defendant of the to be by (People (1982), sentenced a rational tribunal.” v. Jones 275, 293-94.) Ill. 2d case, In this evidence which might create revulsion in the defendant included the sadistic tor- jurors toward ture of Rignall Donnelly, record-breaking number murders, vic- his homosexual assault some of the murders, tims before their and other too facts numerous mention. after a Considering lengthy trial 1 hour and jury required approximately 45 minutes to reject defense, defendant’s we insanity conclude that defendant was not deprived right be convicted aby “rational tribunal.”

Defendant next contends that there in- were many stances where the People engaged closing improper argument. Defendant argues assistant State’s misstated the Attorney test he stated: insanity when “But because he is abnormal doesn’t mean that doesn’t know the difference between If right and wrong. he does, he is legally responsible.” assistant State’s Attorney repeatedly test, stated proper and the jury was not misled this one Second, statement.

argues the assistant State’s Attorney improperly discredited Dr. Freedman’s testimony by exaggerating significance DSM III and intentionally misrepre- “the doctor’s senting his testimony regarding diagnosis in relation to the manual.” In the as- closing argument, sistant State’s Attorney argued:

“He in used terms that are nonexistent [Dr. Freedman] III. I’m going you DSM Now not to in to talk detail about diagnoses that are DSM III. I you know have you heard more of that than want hear if anyway. But psychiatrists agree themselves cannot on what the terms are, means, the language what they then how can other, and, communicate with each important, more how they can possibly communicate with us?” Defendant asserts that the assistant Attorney’s State’s not the evi- justified

attack on Dr. Freedman was by diagnoses were dence. Defendant that argues equivalent earlier of DSM I and DSM II. contained drafts however, concerns argument, persua- Defendant's argument, siveness of the assistant State’s Attorney’s Third, not no error. its We find impropriety. argues Attorney improperly that the assistant State’s of Dr. and Dr. Elíseo. testimony Rappaport distorted the contentions, are of We have defendant’s reviewed did not Attorney that the assistant State’s opinion by transcend characteriz- argument the bounds proper he or in testimony drawing Dr. as did ing Rappaport’s from that were testi- proper inferences believed free to that evi- argue Defense counsel was mony. the assistant State’s Attorney’s dence did not support sug- conclusions rather conclusion but supported Fourth, defendant ar- gested him. We find no error. by im- that State’s gues improperly the assistant Attorney witnesses’ the success defendant’s plied expert in- defendants upon finding private practices depended no this support impli- evidence sane where there Attorney argued: cation. assistant State’s something “Well, something, me consider you let ask in the practice who privately psychiatrists about retained If from only business comes legal psychiatrist’s field. from, come if that is where referrals lawyers, defense get back going do think he is you how referrals many keeps if he find- lawyer’s or firm lawyer, from that the time of the crime?” sane at ing people any al- argument to this object Defendant did it contends Defendant leged error is waived. impugn Attorney State’s the assistant for improper she commenting of Dr. Morrison integrity $9,000. objection No a bill had the “nerve” to submit is therefore the issue this argument, was made to At- assistant State’s argues waived. Dr. tomey stated that Heston had not been improperly the defendant. Defendant ar- compensated examining that at gues defendant, because the time examined Dr. Heston by was Iowa employed University School, Medical he was since he receiving compensation “as of his job.” objection examined defendant No part was made to this so it too is waived. Defend- argument, ant that argues assistant State’s state- Attorney’s ment “that institute testified on psychiatric behalf of the time” was not defendants 75% based on facts in evidence. The assistant State’s stated: Attorney

“I don’t know what the detailed statistics of the psychiat- ric are. But if aren’t they institute 75 to 25 for the defendants, it would certainly surprise me.” this, No made to so the objection was issue was waived on Moreover, since appeal. testified that he Dr.^Reifman testified of the time, on behalf defendants about 60% inaccurate, even if the estimate it is was not un- totally warranted.

Defendant that it argues was error for the circuit court to refuse this instruction:

“You are instructed that you are not bound medical la- bels, definitions, or as to is conclusions what or is not a mental disease.” instruction,

The court in refusing explained: “I give have indicated that I would not that unless the defense —unless the in order to argued State be disease, mental it in the DSM III which would have be they argued.” have not State in fact this argues argue did it

when Dr. Freedman used terms that were argued not in DSM III. The that the instruction People respond as medical unnecessary every who testified expert a “medical placed condition, label” defendant’s there agreement was little as which medical label was appropriate, and no one contended that order to be valid, it medical be listed required label Wil People v. further, III. The People argue citing DSM People v. Miller liams 115, Ill. (1965), 38 2d and (1967), Ill. that instruction was refused 33 2d the properly law, as it not contain a correct statement because did Illinois does not a “mere disorder” recognize personality that argue the test for The meeting People as insanity. it in that “singled instruction was proposed improper to contrary out a item of particular expert testimony” v. People Speck (1968), 177, 196-97, and was Ill. 2d it refused because was correctly argumentative. are that was opinion prop-

We the instruction assertion, the Peo- to defendant’s refused. erly Contrary disease, in to mental did order be a ple argue in DSM III. The ar- People the disease must be listed not use term which is if Dr. did gued Freedman manual, in the and statistical diagnostic listed current terms and if the could not on which agree psychiatrists mean, it dif- to use and what those terms then would be them with each ficult or to communicate impossible and, was jury other more importantly, jury. of wit- concerning credibility instructed properly Criminal, (Illinois Jury (IPI), Pattern Instruction nesses (IPI and defense Crimi- (1968)) insanity No. 1.02 unneces- and instruction was 24.01), nal No. defendant’s sary. effective next was denied argues to indicated counsel trial counsel

assistance because which was would forthcoming that evidence be jury repeatedly counsel never because defense presented; and be- the prosecutors, failed misconduct object As indi- instruction. they cause failed tender needed stated counsel above, argument cated at defense opening De- for the defense. four would testify psychiatrists who four psychiatrists stated: “We have fense counsel them. Several ***,” then listed in court testify will stated, pages later defense counsel transcript, the middle of a the relation paragraph explaining be- tween the defendant’s mental disease and the alleged question of whether he lacked substantial capacity conform his conduct to the of the law: requirements again,

“And those psychiatrists will that he testify consciously acts, unable to fully control his which are by overwhelming motivated primitive uncontrollable drives.” statements,

From these defendant concludes that to hear jury expecting four render an psychiatrists that defendant opinion was insane and that “the jury could not help but be skeptical defense” when discovered two they psychiatrists would not state an whether, under opinion law, Illinois defendant was le- insane. The that the comment gally People argue neither stated nor that all implied defense psychiatrists would render an as opinion to whether defendant would meet the statutory requirements for and legal insanity event, in that, it any is that the unlikely would have jury even remembered this comment in af- opening statement ter a month of and hearing complex conflicting psychiat- ric testimony. agree We on both People conten- and reject tions defendant’s argument.

Defendant’s other to citations trial counsel’s alleged are without merit. incompetence Defendant that argues trial to counsel failed tender an to instruction the effect that could consider defendant’s state- jurors only ments made to the witnesses with ref- examining expert erence mental to his condition. As we have already noted, since there never was a question concerning whether defendant 33 murders, committed the actually the instruction was and thus there no unnecessary, was reason for defense to counsel tender such an instruction. There is no merit to the that contention the prosecutor misstated the legal closing test in insanity argument; to an interpose objection,

thus there was no reason evidence con- object failure to to certain trial counsel’s not incompetence. the victims does constitute cerning is with indications Rather, replete this voluminous record seeking effort considerable that trial counsel expended for the witnesses for defendant expert preparing out counsel Trial experts. cross-examination People’s ob- vigorously motions and pretrial numerous presented the trial. Defense errors throughout jected perceived efforts research made extensive obviously counsel is life. There adult family history early defendant’s their representation no merit assertion ineffective. of Timothy the murder argues doubt and not a reasonable beyond

O’Rourke was proved a remand for necessitates this erroneous conviction assertion Defendant’s sentencing hearing. a new doubt a reasonable beyond was not proved this murder The doctor of the record. per- rests distortion upon of death as “appar- listed the cause forming autopsy was too drowning.” body badly decomposed ent certainty, of death with reasonable the cause determine stated that performing autopsy and the doctor O’Rourke was dead determine whether was unable to amount of No water gross water. placed when that he might which lungs, suggests found in his asserts there Although have drowned. trauma,” performing the doctor any “were no signs not be could strangulation testified autopsy asser- cause of death. Defendant’s out as possible ruled Timothy connect tion that there was no evidence record. O’Rourke him is to the contrary O’Rourke with a transsexual living homosexual was an admitted lover The transsexual Chicago. on of lover the north side to get cigarettes out gone that O’Rourke had testified had confessed never returned. one night that he of had one men whose picked up body young was found in the river at Clark and Lawrence in Chi- one block from cago, where O’Rourke and his transsex- ual were lover living. body When O’Rourke’s found in the Des Plaines River in it was naked Grundy County, This bloated. evidence physical indicated that had in body been the river a time long and that the vic- tim may have been involved in a sexual In murder. view fact defendant stated five threw bodies from the 1-55 all bridge and in five bodies were found the same general reasonable inference vicinity, to be drawn was that O’Rourke was one of defendant’s vic- tims. We are of the opinion testimony concern- ing O’Rourke’s disappearance, when considered with defendant’s statement as to where he one picked up his victims, the location of the in body the Des Plaines River, the condition of the physical found, when body and defendant’s statement that he threw five bodies river, of all the light evidence in this case, was sufficient to permit jury conclude that defendant had murdered Timothy O’Rourke and the had People proved this a reasonable beyond doubt.

Defendant next asserts that he was not proved guilty a reasonable beyond doubt indecent committing liber ties and deviate sexual assault on Robert Piest as there was no corpus delicti for these offenses. Defendant also asserts that he cannot be simultaneously convicted of de viate sexual assault and indecent liberties Robert The Piest. that since no People respond sentence was on either imposed the issue is charge moot. People also assert that defendant’s confession to deviate sexual assault and indecent on Piest liberties was sufficiently corroborated. v. Citing 89 Ill. People Willingham (1982), 352, 360, 2d the People argue that need not they prove the corpus doubt, delicti a reasonable beyond only but introduce some evidence to corroborate the defendant’s argue that a crime occurred. People

confession corpus a proves following sufficiently the evidence a naked for except was recovered body delicti: Piest’s Piest were recov- socks, of the handcuffs used on pair Piest killing for ered, there was no conceivable motive sexual to cover deviate trying up defendant was unless defendant assault, killing supports the pattern sexual assault occurred. a contention a deviate it to address these contentions. find unnecessary We convictions, were on these imposed Since no sentences convictions, is if im- whether the question the remaining the As sentencing jury. have affected would proper, convictions, out, with or without People point to defendant’s confes- still have been exposed would jury con- Moreover, the assault on Piest. sion which detailed establishing amount of evidence sidering the enormous defendant, cannot say we against factors aggravating convictions, deprived even if improper, these hearing. of a fair sentencing at representation next that his argues Defendant cites was hearing incompetent. penalty death the low level four factors that demonstrate allegedly failure for The factors are: to prepare his representation. on the statu- evidence present any failure hearing, emotional of extreme mental or factor mitigating tory evidence, mitigating other disturbance, present failure closing argument. to make a competent and failure have his trial counsel should Defendant contends that sentencing for a continuance to prepare requested how- plan, From to be counsel’s hearing. appears what Trial ever, necessary. no counsel lengthy preparation hearing the sentencing to the admission at stipulated at trial. Since counsel’s plan presented all evidence at the sen- to limit presentation seems to have been counsel have may hearing plea mercy, tencing in a which has already trial any decided that continuance month, lasted more than one with a jury sequestra- tion, would serve toward the only antagonize jury Thus, the continuance. party requesting assuming trial counsel’s for the strategy sentencing hearing reasonable, there him a con- was no need for to request tinuance before the hearing.

Defendant next that his trial counsel was complains incompetent for to evidence on the failing present any factor of statutory mitigating extreme mental or emo tional disturbance. Defendant ex argues any pert witnesses who testified for either side should have been examined at the on this sentencing hearing point. counsel, Trial however, chose to recall of the ex any witnesses, pert but their by using previous testimony, which had been admitted in the by stipulation sentencing to the hearing, argued that the jury tes previous expert was sufficient to timony show this factor. mitigating We cannot it for say trial counsel to incompetent make this choice and to avoid possibly antagonizing jurors them by subjecting to psychiatric which testimony may have sounded to them. repetitive Alleged incompe from tency arising a matter of trial tactics or strategy will not support a claim of ineffective representation. People v. Haywood (1980), 82 Ill. 2d 543-44.

Defendant next contends that his trial counsel was in- since he competent failed to other present ev- mitigating idence. Defendant that such contends evidence could have included his childhood rela- experiences, family tionships, career, his business and his charitable and civic work. As in the defendant con- prior argument where tends that psychiatric could have re- testimony been peated at the trial sentencing hearing, counsel also may have made the tactical choice not to repeat sug- gested mitigating evidence of such matters as his family relationships civic work which were already pre- sented at before, trial. As we will not what question ap- decision. be, facts, to these tactical

pears made that his trial counsel also complains We cannot argument. agree. an incompetent closing to introduced Counsel, psychiatric testimony pointing under an emo trial, at first that defendant acted argued Next, in main theme of counsel’s tional disturbance. it would be better argument, closing proposed in an act of than to have him executed study setting must the remarks their judge We revenge. of the Trial coun verdicts. against background jury’s it be sel made the decision that would better could have itself than to against try death argue penalty there were factors sufficient mitigating explain of the 12 murders light avoid the death penalty for which defendant had convicted which been The death same eligible penalty. defendant was of 21 other murders had also convicted defendant jury with-a child and deviate sexual and of indecent liberties nature assault. was also aware brutal jury of many of the murders and the of youth many facts; these victims. Trial counsel could not controvert them; he with the he could not was confronted change can an difficult We extremely argument. task of making incompe that the showed argument professional not say v. Gill People tence. See 2d 54 Ill. 364-65. (1973), argu- the Defendant next that complains prejudicial denied him of the assistant State’s Attorneys ments that the argues first hearing. fair sentencing him sentencing to a fair deny remark following helped gentlemen, “I ladies and will be frank hearing: you, I of Illinois don’t want myself, as citizen of the State of life.” We agree to this rent for the rest pay guy’s the it as tended inject that the remark was improper per- factor” and the assistant State’s Attorney’s “cost clear, It is into the deliberations. jury’s sonal beliefs asser- a sarcastic however, merely the remark was that to allow him to that life for defendant tion imprisonment In the context an punishment. be studied was inadequate that record, we hold made, in it was and on this which to the re- sustain the objection the error in failing harmless. State’s was Attorney marks the assistant State’s that to the assistant objection We also note as follows: statement about rent was Attorney’s posed the switch.” Then let Mr. Kunkle “Objection, Judge. pull that an made objection The court have decided may further comment. that form should without pass the following argu- Defendant next complains ment was improper: is and Gacy plainly

“The evidence will show that John only an That means that he will simply person. antisocial again again, you murder murder and if murder and him allow to do so.” if he

While defendant the insinuation argues kill were sentenced to life he would imprisonment again re- because it was not improper supported by cord, of the fact that defendant we cannot agree light of 33 also note that the in- convicted murders. We ference be drawn defendant’s may prior imprison- him further ment had failed to deter from committing crimes.

Defendant contends that the assistant State’s Attor- to the that if it did not sentence defend- ney argued jury it death, law, ant it would not have followed the would failed to it ignored have do its would have duty, Illinois, it mandate of citizens of and would have made a of the law mockery concept justice. statements, in effect, Defendant asserts di- its stripped rected a verdict of death and jury evidence de- duty weigh fairly dispassionately From the cide on the sentence. cannot agree. We proper context of assistant statements, we find that State’s was that Attorney merely arguing People case, entitled to a decision their and were

had proved sentence was that a death their favor. Any implication instructions. negated by jury was mandatory At State’s that the assistant argues also hearing statement at the death penalty torney’s opening the statu because, commenting when improper was were committed factor that the murders mitigating tory of extreme under the influence while the defendant was that disturbance, he told the jurors mental or emotional found they factor when rejected had they flatly were factors mitigating defendant and that guilty loopholes statutory guidelines, simply record, from our of the reading defendant. It appears, was Attorney arguing the assistant State’s not show the miti would testimony defendant’s expert committed the murders were while factor gating mental or of extreme was under the influence had testimony the expert as just emotional disturbance not guilty by should be found not shown that defendant made that defendant reason of We note further insanity. which argument, no to this objection portion v. Jackson (People (1981), the issue on appeal. waives the charac 350, 358-59.) objection Ill. Defendant’s 2d guidelines as statutory factors mitigating terization the func here, described fairly error as it was also not v. Jones (People factors. mitigating of the statutory tion also note that when 282-86.) Ill. 2d We (1982), 94 to comment further Attorney began the assistant State’s factors, defendant to mitigating the law regard upon In sustained. made an which objection promptly during argu errors sum, alleged conclude that all we revers not constitute ment, would together, as reviewed error. ible improp- jury

Defendant next complains pen- in the death its deliberations instructed before erly the instruc- one of the court misstated when alty hearing

99 tions as follows:

“If, deliberations, your after conclude you unanimously sufficient preclude imposi- there are to mitigating factors sign tion the death the form penalty, you of must verdict directing a imprisonment.” sentence of form, The instruction as tendered to the in written jury read:

“If, your deliberations, after in you are unanimous concluding that there are no mitigating factors sufficient to of preclude imposition sentence, the death must you sign the verdict form a directing imprison- sentence of ment.”

Not was the the the only jury given correct version in instruction, written the but verdict form also the gave law, correct version the as did oral instructions before on the death in argument sentence, another portion of the oral instructions to the before their jury delibera Thus, tions. none of the written instructions were incor rect, but a existed in the oral discrepancy instructions. We note that defendant did not the attempt correct when the judge incorrect version of the instruction was read. Defendant the cites cases of v. Kubat People Ill. 94 2d (1983), 437, People 82 Ill. Haywood (1980), v. 2d 540, and People v. Jenkins Ill. 2d (1977), support of his contention that the of conflicting giving instructions the jury was error. In Haywood reversible Jenkins, this court reversed the judgments because written conflicting were given instructions to the jury. doWe not find these cases however, controlling, because here defendant does not complain that writ any the ten instructions were incorrect, the one of only of one of readings In instructions misstated. Kubat, the court death upheld sentence of although had jury given been conflicting written instructions issue precise here. at involved While defendant has tempted distinguish Kubat arguing that right complain in that case had waived objection no about instructions because conflicting them, find the circumstances here more was made to we since the to hold that the error was harmless compelling one of the readings instruction was incorrect only in none of the forms. In view of the fact written point to the law on this jury correctly was instructed as times, being four all of written instructions separate correct, fail to how the was left with mis- jury we see it law, taken or that was confused interpretation on this point. next the court should have

Defendant contends determined that defendant and knowingly intelligently The People to a agreed stipulated sentencing hearing. heard and defendant that all the evidence at stipulated the death jury the trial could be considered at by stipula such a penalty hearing. Defendant argues tion of a and equivalent guilty plea functional to as should have been addressed personally and its con understanding certain his stipulation in however, since the find, We sequences. jurors, a could consider all the evidence stipulation, absence of the death at trial in their presented upon deliberations per it was to obtain defendant’s penalty, necessary 1979, 38, ch. them to do so. Ill. Rev. Stat. mission for Lewis 1(c); People v. 129, 88 Ill. 2d 146- (1981), par. 9— v. Carlson People 564, 47; 79 Ill. 2d 589-90. (1980), intelli- also that a and knowing complains for sen- of his to have time prepare waiver gent right We have record. placed should have been tencing reasoning immediately considered behind already decline to to a and we sentencing hearing, proceeding it that a defendant nor- further discuss here. We note in the his who stands role attorney, mally speaks through defendant, attorney, his permitting agent, pro- objection, immediately presence without ceed to a is deemed to have sentencing hearing acqui in, esced and to his actions. v. People be bound by, 256, 260; Sailor 43 Ill. 2d v. (1969), People Novotny (1968), 401, Ill. 2d 410.

Defendant next that “because of the argues signifi record, cant in this evidence contained mitigating sentence of death John must be va imposed upon Gacy cated ***.” Defendant asserts that all of the “virtually expert witnesses both sides support proposition that defendant was under an ‘extreme mental or acting ” disturbance,’ emotional a factor. statutory mitigating (See 1979, Ill. Rev. 38, Stat. ch. Defend par. 1(c)(2).) 9— ant also that the argues evidence of extreme disturbance was not the only record, evidence in the mitigating that evidence which showed defendant “was a good husband and stepfather ***, ***, friend to good many son and loving ***, brother a successful businessman ***, a civic leader active in work charitable and politics ***,” trial, and while “an ideal awaiting also prisoner,” constituted evidence. mitigating v. Brownell 79 Ill.

Citing People (1980), 2d that the People argue decision at in a sentencing capital case is a balancing which the seriousness of process the crime must be weighed against mitigating whatever factors exist. The then detail the heinous nature People of defendant’s crimes with both victims and living those who did not survive. The assert that it is People not “just true” witnesses People’s expert claimed that defendant suffered from an extreme emo Rather, tional disturbance. assert, all of the People People’s experts stated that he was “from a suffering mere or character disorder.” personality

We need not address the whether the argument jury the collective testi- required accept expert in this case established that defendant was suffer- mony from an extreme ing mental or emotional disturbance. sen out,

As the the decision at People point correctly (People in a is a capital balancing process. case tencing v. Brownell 2d While labels (1980), 508.) many 79 Ill. of the condition, were mental all defendant’s placed as a characterized People’s experts defendant’s defect or disorder. In the number light character personality case, in this their tor age, victims sadistic sexual on other vic turing Rignall and the attacks Donnelly, Iowa, tims both in the other aggravating Illinois and and factors, cannot to de we say jury required termine that whatever disturbance defendant emotional Furthermore, suffered the sentence of death. precluded much to which evidence defendant mitigating is witnesses indicated points questionable. Many in reason was involved or only po defendant charitable litical others or gain work was in order manipulate For there was evidence himself. advantage example, in be the record that liked to clown” “play defendant crowd cause he could of women in a grab breasts it. may and watching parade get away to his second have and good stepfather been husband his children, concerning wife her the evidence but evi former is marriage anything mitigating. but ado dence offered wife established he has Apparently in for oral sex. exchange lescent boys The evi he left Iowa. not seen his own children since is childhood” dence troubled “horribly of defendant’s that defend the evidence indicated questionable. While alcoholic, ant’s was disapproving, father was an mother, and his abusive to both defendant physically siblings. mother and loving loving defendant did have a concerning mother was conscientious Defendant’s of defendant education, defendant’s and was supportive life when defend even his adult his childhood and to Chicago. returned father does A ant disapproving numerous related murders excuse 33 homosexually other incidents of sexual torture and physical abuse. We decline to disturb determination. jury’s

Defendant also that a second complains jury should have been for the death since impaneled penalty hearing the original confused the jury allegedly miti- statutory gating factor of extreme emotional or mental distur- bance with the issue of if insanity. alleges a different had been its jury impaneled attention would have been focused solely aggravation mitigation without the distraction of the determination. insanity Defendant contends that the was confused as to the jury requirements factor mitigating as differentiated from the defense of insanity and this was evidenced by the confusion shown in their attorneys argu- ments in the death penalty hearing.

We cannot determine on this record that the jury confused. The record shows that the defense attorneys were able to sufficiently distinguish between the defense and the insanity factor of mitigating extreme mental or emotional disturbance. Even if it could be shown that confused, jury we do not believe that that would constitute sufficient cause” to warrant a “good second jury. (Ill. 1979, 38, Rev. Stat. ch. In par. 1(d)(2).) Peo 9— v. ple Lewis 88 Ill. (1981), 2d the defendant ad vanced similar arguments, contending that a second jury would not have preconceived notions that the death pen should be alty imposed. We rejected defendant’s ar case, guments and find that case here. apposite Defendant next contends that the failure of the death statute to penalty require People prove beyond reasonable doubt absence of factors suf mitigating ficient to preclude death makes that penalty statute unconstitutional. We this rejected contention in v. People 44, 68, 101 Ill. 2d (1984), Eddmonds and we decline to reconsider it here.

Defendant also contends that the unlimited introduc-

tion of non fac aggravating and consideration statutory tors the unconstitutional. renders death statute penalty Henry Wainwright v. relies Cir. (5th Defendant upon vacated and remanded 457 1981), 56, (1982), 661 F.2d 1114, 1326, 2922, U.S. 73 L. Ed. 2d 102 S. Ct. aff’d remand and re vacated 311, Cir. 686 (5th 1982), F.2d manded 1223, 1407, 463 2d 103 U.S. 77 L. Ed. (1983), re 3566, in of his We have S. Ct. support argument. contention, of defendant’s jected applicability v. Henry Davis People 1, 38, in 95 Ill. 2d (1983), thereto v. People Free 378, 94 427, and in Ill. 2d and de (1983), the Su cline to reconsider it here. We also note that Court has a death sentence notwithstand preme upheld a court of ing by sentencing the consideration Barclay v. Florida factor. nonstatutory aggravating 1134, L. (1983), 939, 463 U.S. 77 Ed. 2d 103 S. Ct. 3418. that stat penalty also contends the death

Defendant the term “extreme ute is since it does define vague v. Florida In mental or emotional disturbance.” Proffitt 255-58, 924-26, 49 2d 242, 913, 428 U.S. L. Ed. (1976), this 2960, 2968-69, 96 S. Court Supreme rejected Ct. in Florida argument wording similar respect v. Brownell People 508, 79 Ill. 528- (1980), statute. In 2d 36, sentencing standards we considered whether are and found them vague, our death statute penalty that de decline to reconsider specific. be We sufficiently here. argument of defendant’s cision on basis use of the “ex has also term argued Defendant it improp treme” renders statute unconstitutional as mental limits the consideration level of erly jury’s any find or emotional as factor. We mitigating disturbance merit this of defendant’s to be without portion argument to consider “any as instructed specifically the jury im reasons or circumstances that provide other facts penalty.” less than the death posing statute the death penalty also argues the jury require for failing is unconstitutional factors to be it found mitigating has whether specify v. Gaines People this argument rejected We present. reconsider it 342, 383, and decline to 88 Ill. 2d (1981), 508, Ill. 2d (1980), Brownell here. See also v. People 541-44. the sentence dis

Defendant has also contended the death penalty cretion vested in prosecution delegation legislative statute is an unconstitutional rejected argument This court judicial authority. 77 Ill. 2d (1979), ex rel. v. Cousins People Carey decisions, e.g., People to its in later holding adhered 44, 69; v. Lewis People v. Eddmonds 101 Ill. 2d (1984), 129, 146. Ill. 2d (1981), 88 the

Defendant contends that it was error to permit final at the arguments to both and close People open this death We have considered penalty hearing. question 44, 66, in 101 Ill. 2d in the (1984), v. Eddmonds People context of whether in to to the failing object procedure counsel failed to render effective assistance. We held that since the are in a death moving the People party are entitled to argument. rebuttal penalty proceeding they (I 1979, 38, Rev. Stat. ch. see par. 1(d); Lip ll. 9— Ill. Security (1932), 614.) tak v. Association Benefit effect, defendant, The fact that in to the stat stipulated were People required factor which utory aggravating that a does not alter reasonable doubt prove beyond in The circuit court did not err permitting requirement. and close the at the sen arguments People open tencing hearing. also that the death argued penalty

Defendant has is it fails to ade provide statute unconstitutional because have rejected review We comparative procedures. quate 508, 79 Ill. 2d (1980), contention v. Brownell (People this here. and will not reconsider it 541-44) Defendant next argues that the death statute penalty that where requires is convicted of more murder, than one but the deaths occurred in unrelated acts, no factor aggravating exists unless it is that proved these acts were premeditated. Our statute that provides a defendant may be sentenced to death if he “has been *** convicted of two or more murdering individuals re gardless whether the deaths occurred as the result of the same act or of several related or unrelated acts so long as deaths were the result either an intent kill more than one or person of separate premeditated acts ***.” Rev. (Ill. 1979, 38, Stat. ch. par. 1(b)(3).) 9— Defendant since argues murder any premeditated encompasses kill, an intent the General Assembly must have intended to require when the deaths oc cur in acts, the same or related must People prove an intent to kill more than only one person when acts, deaths occur in unrelated it must be proved these were killings premeditated. Defendant argues other make any interpretation would the phrase “pre meditated acts” meaningless con superfluous. These v. Davis People tentions' were considered and rejected (1983), 1, 34-36, 95 Ill. 2d and will not be reconsidered here.

Defendant has also contended that his sentences must be vacated and cause remanded for resentencing be cause court sentenced him without benefit of presentence investigation concedes report. v. Gaines People this court 88 Ill. 2d (1981), 372-74, held that a presentence is investigation report murder required capital cases. Defendant also ar gues, however, that his natural life sentences for the 21 counts of murder which occurred to the prior effective date of the death statute penalty required presentence however, investigation shown, Defendant has not report. how he was the lack of prejudiced such a We by report. also note that the examination of the history, background and mental state of defendant was at quite thorough trial, and that the information derived therefrom sub 1979, (Ill. fulfills Rev. Stat. stantially requirements 38, ch. of the par. 3—2(a)) investiga presentence 1005— tion We see no additional to be served report. purpose a formal presentence under facts investigation report of this case. Defects in a re presentence investigation be waived v. 91 Ill. 2d port may (People (1982), Godinez 47, 56-57; 524, v. Meeks 81 Ill. People (1980), 533-34), 2d and no was raised objection when court to proceeded immediate fact, all the In one of sentencing charges. record, the defendant stated on the attorneys outside the defendant’s presence, that it was the defend ant’s that he be sentenced request without immediately, the benefit of a presentence see investigation report. We no basis upon which find that a formal written pre sentence investigation would alter the report de judge’s termination on the facts of this case.

Defendant’s last contention is that his were vi rights olated when he was not to be permitted present when made the attorneys motion for a trial. fail to new We see how defendant was his absence from prejudiced by this of the portion proceedings. Although motion made on his behalf was denied, it all preserved alleged errors on appeal, thus inured to his benefit. While defendant has a right fundamental to be at present any critical of the stage him, he does not proceedings against have an absolute right be also at the present argu ment of motions subsequent (People verdict. v. Woods (1963), 27 Ill. 2d 393, 395; (3d United States v. Lynch Cir. 1942), 111, 113; F.2d see also v. Massa Snyder chusetts (1934), 97, 106-08, 674, 291 U.S. 78 L. Ed. 678- 79, 54 S. Ct. 332-33.) Defendant argues that should have been permitted his own present argu ments in support motion for a new trial. Defend- his and until however, counsel was, by represented

ant no to be request per court had made in this appearance facts, must con we himself. On these mitted to defend ar to right personally waived clude that defendant Ephraim v. (People trial. motion for a new gue also contends 122-23.) 411 Ill. (1952), the record was when present he should have been that 13, 1980, when the March to show that on corrected returned, waived verdict was death penalty investigation requested to a presentence his right Defendant’s pres of sentence. the immediate imposition for a correction however, was not ence, necessary 165, 168.) v. Hirschberg 410 Ill. (1951), (People record. have been that should Defendant has also complained natural the court imposed to hear in person why allowed summary to him and also witness life sentences upon we trial. On these facts motion for a new denial of his in this regard. was prejudiced see how defendant cannot curiae, 60 in number, that amici brief, argue In their Amici ar- se unconstitutional. per the death is penalty of a alia, someone inter deprive that order gue, life, must People prove right, fundamental further some compelling necessary death is penalty is a com- Amici concede that deterrence State interests. studies, argue but, statistical citing State interest pelling re- not deter. The People does the death penalty amici rely studies which upon the statistical spond in a crude and interpreted on obsolete data are “based the appli- The contend People manner.” misleading such as techniques, statistical advanced cation of more to the studies contrary results yields regression analysis, assert, the studies Moreover, the People amici. cited by significance the statistical amici do not cite cited homi- types statutes and particular death particular all death all homicides cide, rather categorize but contend People in one category. statutes penalty a crime not deter may the death penalty that while not applicable in Illinois the death penalty passion, is. the deterrence crime, provide well may very but such wit- eliminate potential who wishes for a criminal in exchange who kills people the murderer nesses, The People murderers. and other premeditated money, rejected has already Court the Supreme contend amici’s argument: the of the worth to evaluate attempts

“Statistical of- by potential to crimes as a deterrent penalty death *** deal of debate. great occasioned a fenders have that the death suggest the some of studies Although deter- significantly greater not function as may penalty convincing empiri- there is no penalties, lesser rent than view. We refuting or this supporting either cal evidence there are murder- safely assume may nevertheless the for whom act in ers, passion, as those who such effect. But for deterrent has little or no threat of death signifi- is a others, undoubtedly penalty the death many mur- carefully contemplated There are cant deterrent. hire, ders, possible penalty where the such as murder pre- calculus that enter into the cold may death well of categories some act. And there are the decision to cedes where other murder, a life by prisoner, such as murder of adequate. may sanctions not be of as a deterrent capital punishment

The value of which the resolution of factual issue complex crime is can evaluate legislatures, the which rests with properly of their own lo- in terms of statistical studies the results is of flexibility approach with a conditions and cal Georgia (1976), v. Gregg not available to courts.” 881-82, 859, 96 S. Ct. 153, 184-86, 2d 49 L. Ed. U.S. 2909, 2930-31. are not pre- they are of the opinion

Because we mer- forum, do not address we sented to the proper is Amici’s argument central its of amici’s arguments. which of the statistical data on the accuracy premised amici Although of their contentions. cite they support “there no assert that is serious indi- virtually study cates the death is a deterrent and beyond above penalty ***,” the cite recent studies which imprisonment People reach the conclusion. As noted in de- opposite Gregg, is a deterrent termination of whether capital punishment to certain of murders such as those enumerated types the Illinois death statute is an issue the resolu- penalty tion of rests with the General Assembly. which properly decline function. legislative We to usurp stated,

For the reasons of the circuit judgment is court of Cook affirmed. The clerk is directed County to enter the 14th setting an order No Wednesday, day vember, 1984, as the date on which the sentence of shall death entered circuit court Cook by County be executed. The defendant shall be executed a lethal by in the manner 119—5 of section injection, provided by of Criminal Procedure of 1963 Rev. Stat. (Ill. Code 38, ch. A certified of this order 5). copy par. 119— the Direc shall be furnished the clerk of this court to Corrections, at tor of the warden Department to the Center, Stateville Correctional warden institution wherein the defendant is confined.

Judgment affirmed. SIMON, in concurring part dissenting JUSTICE in part. af

I the convictions of murder should be agree However, in set forth in firmed this case. reasons 88 Ill. in v. Lewis 2d separate opinions People (1981), my J., and in v. 129, (Simon, People Silagy dissenting), J., (Simon, concurring part 101 Ill. 2d (1984), I that the Illinois death believe dissenting part), unconstitutional and that death statute is penalty sentence should vacated. be notes the First, defendant search warrant. Kozenc- for Lieutenant the explain does not basis plaint on the receipt zak’s photo-finishing conclusion Robert Piest’s at the time of his abduction. The person at the on motion to testimony hearing suppress showed that Des Plaines officers had police spoken Kim she Byers had said she was wearing Robert Piest’s when she filled out the jacket photo-fin- ishing envelope, off the it in ripped receipt, placed the jacket pocket. Piest, She later returned the jacket to who on put jacket before the store. Defend- leaving that, ant asserts because this con- information not tained in the this court not make refer- complaint, may ence to this information in determining whether complaint established cause. also probable complains Officer Schultz did not promptly notify Lieutenant Kozenczak about smell flesh of decaying and this casts on doubt veracity Officer Schultz’ conclusion. We find that when whole, as complaint, viewed is sufficient, and the circuit court refused to correctly suppress evidence as seized the result of war- rant’s execution. agree We with defendant that evidence adduced at the suppression hearing be used may bolster the sufficiency for warrant. We complaint do however, not agree, that the fact that Officer Schultz waited some 40 hours before telling Lieutenant Kozenc- zak of the odor he detected while in defendant’s home automatically invalidated the probative value of evi- this dence. The 40-hour delay this information to bringing Lieutenant Kozenczak to the goes issue of the credibility Schultz, Officer an issue for resolution the circuit court, not this court evi- review. We hold that the

Case Details

Case Name: People v. Gacy

Court Name: Illinois Supreme Court

Date Published: Jun 6, 1984

Citation: 468 N.E.2d 1171

Docket Number: 53212

Court Abbreviation: Ill.