*1 (No. 52794. ILLINOIS,
THE OF THE PEOPLE STATE OF Appellee, GAINES, v. DICKIE Appellant. Rehearing
Opinion December 1981. filed January denied 1982. *5 GOLDENHERSH, C.J., concurring. SIMON, JJ.,
CLARK and dissenting. Carl M. Walsh and Ben of Lonny Ogus, Chicago, appellant. Fahner,
Tyrone General, of Attorney Springfield, and Richard M. Daley, State’s of Attorney, Chicago Noel, A. Rotert, and Jr., Mark L. (Melbourne Assistant General, Attorneys of and Marcia B. Orr and Chicago, S. Assistant State’s Cherry, of Attorneys, counsel), Joan for the People. WARD delivered the of opinion the court:
JUSTICE The defendant, Gaines, brother, Dickie and his Michael Gaines, were jointly by indicted grand jury of Cook County for Davis, murder of Andre the murder of McCall, Thomas,
Causia murder of Lenious attempted Davis, robbery robbery the armed and the armed single Thomas. These felonies were all committed a morning episode place early criminal which took in the 22,1978, hours of December at a on the side house south handgun a had been Chicago. charged indictment offenses, used in the thus the commission accused were also violence. charged armed
A granted, motion for severance was was tried him on all jury, guilty he which found charges. jury, (Michael separate Gaines was tried before *6 Davis, of and was guilty robbery was found for the except now imprisonment. pending to His is appeal sentenced trial State re the In Dickie the appellate court.) Gaines’ which was heard quested separate sentencing proceeding, a no by jury. that there were jury the same The determined of preclude imposition to mitigating factors sufficient 1979, court sen death sentence. On November murder. of tenced the defendant to death on his convictions on out The be carried court directed that the sentence imprisoned be January and that the defendant was to this court until time. An penitentiary appeal VI, 4(b), article automatically perfected pursuant to R. (73 Ill. 2d Rule 603 of 1970 Illinois Constitution and this 603). pending trial stayed The court the execution appeal. testified
The the crimes were circumstances Thomas, The State. who was as a witness called at the did not and offered no evidence testify by either trial. not as a witness Michael Gaines was called robbery of armed party. Except charges with respect defendant’s of Thomas and Davis no claim made a doubt. guilt proved beyond was not reasonable Davis On the afternoon of December his with lived at where Thomas visiting Thomas the house 24. old, Davis was and parents. years Thomas was then p.m. At about 4 left After Davis and Thomas the house. Davis, visiting girl friend whose having dinner know, name Thomas men to a tavern did the two went Davis Chicago, they midnight. where arrived about began pool acquaintance shoot with an named Allen Thompson at game while Thomas watched the from a seat bar. money Davis and Thompson bet on outcome game, $175. each Thompson testified that he had won In the course of the evening acquaintance Thomas made the Gaines, before, of Michael whom he had never met and at point one marijuana cigar- Thomas shared with Michael ette which Thomas had from just obtained Davis.
At about a.m. closing on December the tavern’s hour, Thomas, Davis, Gaines in a As group. and Michael left went they out they joined by the door were the defendant. had bar, Thomas, latter also present been but before, who had never met him had had no conversation with him.
The group proceeded to a two-story house where Davis he pick said wanted up belonged some clothes that mother, McCall, him. Davis’ Mrs. Gloria was called as who a witness for the establishing limited that Davis purpose had been seen alive shortly before December testified that Davis had been at this spending weekends house *7 since October. Thomas at had been the house never before.
Davis and Thomas a up went to bedroom at the back of the second floor they where a man on a mattress asleep saw man, laid on know, the floor. This whom Thomas did not was wearing a pair of boots Davis his. which said were an After attempt unsuccessful sleeper, to awaken the Davis then, removed the removing boots and his as own shoes well, put Davis, on the boots. Thomas and who was carrying hand, his in shoes then into an adjacent one walked bedroom they where on a asleep saw another man couch. man, Thomas, This who was was later also unknown to as identified Causia McCall. Davis walked over to the near standing couch while Thomas the door. remained toup his whereabouts the defendant and brother it but by testimony, this point are not made clear Thomas’ Davis appears they along had entered the house floor. to the second and Thomas and had also ascended McCall room where While Thomas and Davis were the up to lay and Michael came sleeping, door, said, up,” is a stick producing and the defendant “This Thomas, feet or four pistol. standing a who was about three defendant, pocket, from his pulled from two dollar bills his defendant, began to fire and turned toward who bullet, threw by a but he gun. Thomas was not struck position. himself He heard several prone to the floor in a then, to be fired, took hearing footsteps shots and which he room, Davis up saw got those he and persons leaving house on then out of the lying the floor. Thomas ran car, and squad He police down the street. encountered a Thomas shooting. a told officers that there had been two house, they found guided the officers where another In lying upstairs bodies on a couch one bedroom. also found bedroom at the rear the house the officers awakened, gave asleep. man he Upon being who was testify. as name Townshend. not called Townshend was on arrested apprehended After the defendant was lineup. in a police him January Thomas identified was Davis one bullet autopsies In on McCall and performed Davis’. recovered bullets from body from McCall’s and two had There death expert testimony each case was also testimony resulted gunshot Expert from wounds. Davis given that the bullets recovered from bodies by pistol and McCall could been fired only have in the had been found an attic defendant’s police house. evidence presented
At sentencing hearing State brought had not been of conduct defendant which As testified aggravating at as factors. out the trial additional
351 victim, other to in 1976the two March defendant and she was persons a a purse took from school teacher while walking to another school build- from mobile classroom five ing, and her The was ground. knocked to victim 5,1977, pregnant months time. On May at the im- to guilty found sentenced robbery, and was prisonment for a term not than one and not more less than three in years. appears It that he was released June 1978, six months he the crimes before committed involved present appeal. testimony by There two was also women apprehen- friends of the defendant that prior to sion he threatened to kill or if injure they give them did not him money. to deputy assigned Two sheriffs escort defendant between the lockup and courtroom testified that on two occasions defendant had them threatened and that they on another occasion had found concealed on his person blades, $10 a steel bill. pick, two hacksaw and a
The defendant did not penalty take the stand at the hearing, and he called no State’s witnesses rebut the evidence in aggravation testify or to mitigating factors. puts grounds defendant 18 forward some
reversal. These include 9 — 1 charges Criminal (Ill. Code of par. Stat. ch. Rev. 1), Act,” sometimes referred to herein as “the violates the Constitution of the United States and the Constitution Illinois various respects, alleged the trial and errors at at the sentencing hearing. begin We a consideration of those contentions against proceedings directed conviction, led the defendant’s first which is that the jury was improperly selected.
The veniremen were contends that several excused specified for cause violation of the criteria Witherspoon Illinois U.S. 20 L. Ed. 2d 776, 88 Ct. Court, S. In 1770. Witherspoon Supreme although holding juror’s potential opposition him,
death stated: penalty disqualify did *9 however, nothing say today we repeat, “We upon power bears the of a State to execute a defendant only jury sentenced to death from which in for were cause veniremen who were fact excluded they unmistakably (1) those clear who made automatically imposition against would vote capital regard evidence punishment without trial of case before might developed be at the them, the death (2) that their attitude toward or impartial penalty making an prevent would them from guilt.” in (Emphasis decision as to the defendant’s n.21, 776, 510, 20 L. 2d original.) 391 U.S. 522-23 Ed. 1770, n.21, 785 n.21. 88 S. Ct. 1777 excluding a This delineation of the bases permissible v. Holman Boulden U.S. 394 (1969), juror adhered 1140-41, 1138, 478, 482, 433, 437-38, S. Ct. 22 L. Ed. 2d 89 Bishop 262, 265, Maxwell 26 L. Ed. (1970), U.S. 398 v. Georgia Davis 221, 224, 1578, 1580-81, 90 S. Ct. 399, 339, S. Ct. 429 U.S. L. 97 50 Ed. 2d L. 399-400, and Adams Texas 65 448 U.S. 589, 100 Ct. 2525. Ed. 2d S. excused states that of the veniremen
for cause death opposition on the basis of their penalty automatically vote only they stated that would it, against were jurors while the answers the other four “equivocal.” incorrect; it That results characterization from the question defendant’s focus and answer single on colloquies isolation out from others. We set us their satisfies entirety below. Our examination them Witherspoon that the standards of were met. Mary Wille:
Juror Wille, any scruples, “Q. you Mrs. have do religion or strong feelings, by reason of which I mean penalty? against conscience death Yes, A. I do. penalty,
Q. scruples against death You have particular might no facts matter what the be? Yes,
A. I would. your Q. scruples penalty, Would about the death ability guilt or your interfere with affect to determine and the innocence accordance with evidence law?
A. I think so.
Q. If guilty charges the defendant is found court, pos- before you would consider all of the law, penalties including sible available under state death penalty?
A. I don’t think so.
Q. your prevent scruples you Would con- from sidering penalty present the death in the case? Yes,
A. sir.
Q. It would?
A. I think so.
Q. you automatically against Would hold penalty, death no matter what the facts of this case reveal?
A. I think so.
Q. against You would vote it?
A. Yes.
THE COURT: will you. Thank The Court ex- you.” cuse Kathryn Parker:
Juror Parker, “Q. Ms. you any do have scruples, which I religion, mean strong reason of or feeling against conscience penalty? the death Yes, A. I do.
Q. you scruples against Do have the death these penalty, might no matter what be? particular facts
A. Yes.
Q. your penalty Would scruples about the death your guilt interfere or affect or ability to determine the innocence in the law? accordance with evidence A. I believe so.
Q. If the guilty charges defendant is found of the court, before you possible could all of consider law, including the penalties available under the state penalty? death
A. No. you from con-
Q. your scruples prevent Would case? sidering penalty appropriate the death in the ’ A. Yes. it; automatically against Q. you vote Would what the facts of against penalty, the death no matter this case reveal?
A. Possibly. THE you. COURT: Thank you.” The court will excuse Mable Gibbs: Juror Gibbs, scruples, by you Mrs. have
“Q. do religion I or conscience strong feelings which mean against penalty? the death
A. I do. against the death
Q. you scruples have these Do this case facts of penalty particular no matter what the might be?
A. Yes. penalty death
Q. your scruples about the Would guilt ability determine your with affect interfere and the with the evidence or innocence accordance law?
A. No. scruples? your
Q. It would not interfere they A. I don’t think would. charges guilty If
Q. found court, all you consider against him this would before law, the state . under possible penalties available including penalty? the death *11 hard, think I don’t so.
A. That’s kind but you from con- prevent Q. your scruples Would case? appropriate in sidering penalty the death the A. No. con- you from prevent
Q. your scruples Would case? appropriate in penalty sidering the death A. Yes.
Q. you Would automatically against vote penalty, death no matter what the facts of this case revealed?
IA. think I would.
THE COURT: I will Mrs. you, excuse Gibbs.” Alma Smith: Juror Smith,
“Q. Mrs. you any scruples do have I which mean strong feelings by religion reason of or against conscience penalty? the death Very A. much so.
Q. you Do against scruples have the death penalty no particular matter what the facts might be?
A. Yes. Q. your scruples Would penalty about the death your ability interfere with guilt determine innocence accordance the law?
A. I don’t think so.
ItQ. would not interfere with it?
A. No.
IfQ. guilty defendant were found court, charge before the you could all of the consider possible penalties including law available under state penalty? the death
A. No.
Q. Would your scruples prevent you from con- sidering the death penalty appropriate case?
A. I say would so.
Q. you Would able be to consider the death penalty?
Oh,A. no.
Q. you automatically against Would vote death penalty no what facts matter of the case be? would
IA. think so.” The defendant’s Ms. objection disqualification automatically Wille is that when asked whether she would against vote penalty (the death seventh the series questions Ms. propounded above), excerpt her
Wille said “I think re- inquiry so.” When the same however, peated, Ms. objection Ms. Wille said “Yes.” The to Parker is that question (the when asked the same seventh question propounded), Shortly she be- replied “possibly.” fore, however, she had not consider stated she could guilty. the death if Ms. penalty the defendant were found Gibbs’ (the eighth answer to the same of the question was, would,” questions Ms. propounded) “I think I but Gibbs had imposing also stated that she could not consider the death reason penalty on the defendant. For the same Ms. Smith’s response question of “I think same so” to the (the seventh taken as question propounded) cannot be expressing some doubt or reservation.
We think it is appropriate to out that the distinc- point Witherspoon tion drawn in general between a venireman’s opposition to penalty unwillingness to the death and his vote for its a imposition sophisticated is a one which prospective juror duty While it is the may readily grasp. of the trial in a judge propound key questions form which will enough specificity be understood and with do not read With- admit unambiguous of an response, we erspoon catechism, as a prescribing requiring a set or as express preciseness. venireman to himself meticulous questions The defendant does not contend initially propounded trial were defective judge insufficient. His trial should position judge is rather that the propounded “clarify” have the re questions additional sponses given But what these further by the four veniremen. nor questions say, should have been does not dire, suggest any during the voir did he was entitled to as he I do under An “I think (73 234). Rule Ill. 2d R. answer of isolation, in be may do” rather than “yes,” standing (See Bishop Maxwell v. adequate. (1970), 398 U.S. 221, 223-24, 1580.)
26 L. ask Ed. 2d 90 S. Ct. To if “in the penalty venireman he would consider the death appropriate question, satisfactory case” not a form may also be insuf- standing an answer to that alone question must, however, responses ficient. We consider the in considering not in but as a But veniremen isolation whole. given claimed inconsistencies the answers venireman, position we of recognize superior course trial judge the venire- meaning ascertain man intends to convey.
The State also contends that if the disqualification erroneous, four veniremen be the error was should deemed prejudicial the last was excused the since when of them had State more than four its chal- peremptory allotted lenges argu- do not that remaining. We need to consider ment, and express opinion we no as its merits. to
The that among defendant makes the further objection jurors automatically those who that vote they stated would against the death six their penalty opposition also stated that to death penalty not affect determination of would their guilt. The urges defendant that those six should not persons course, have been states that a Witherspoon, excused. juror’s automatic his opposition penalty to the death inability to a fairly pass on the issue of constitutes basis guilt excluding for a this is juror. recognizes The defendant that so, but points jury out that determined Witherspoon the guilt punishment .time, at the same Illinois now whereas has a bifurcated he that a proceeding. argues From this juror who states that he would be the issue of able to decide guilt impartially be that issue permitted pass should to on notwithstanding inability penalty.' his the death vote for
The attempt defendant’s on distinguish Witherspoon this basis is decision in Supreme defeated Court’s Texas, 581, U.S. 100 S. Ct. Adams 65 L. 2d Ed. 2521. That case similar to proceeding involved bifurcated Illinois, that now that employed observed yet the court Witherspoon See 448 nevertheless remained applicable. 38, 45-46, 581, 589-90, U.S. 65 L. Ed. 100 S. Ct.
2526-27. admits, require
As the that theory would jury hearing. new be The impaneled sentencing for the v. Lewis same proposal rejected was made and 129, 146-47, it (1981), 88 Ill. 2d out that pointed where we questionable such a power adopt whether there was procedure adoption its 1(d), under and that In Lewis present would potential problems. constitutional we also rejected argument, considered and a related here, persons is also jury composed entirely made that a who are not is “conviction- opposed penalty to the death prone.” is re No further discussion of these contentions quired.
The defendant’s
remaining objection
jury goes
defendant,
black,
its racial composition.
who
states
the jury
persons,
contained no black
circumstance
resulted
used
prosecution’s having
from the
some of its peremptory
challenges
to exclude veniremen
who were black but
cause.
subject
were not
to removal
that under Swain v. Alabama
The defendant
concedes
380 U.S.
13 L.
85 S. Ct.
Ed. 2d
prosecution
motives of the
chal
exercising peremptory
*14
lenges
subject
showing
are not
a
to examination absent
blacks
serving
have been
on
systematically prevented from
State,
particular
juries
in
jury
county
or from
service
or
202, 221-23, 13
showing not
L.
attempted
(See
here.
380 U.S.
759, 773-74,
824,
Ed. 2d
85 Ct.
A
836-37.)
position
S.
similar
this court in People v. Harris
has been
17
by
(1959),
taken
450-51, cert.
446,
928, 4
denied
Ill. 2d
(1960), 362 U.S.
L. Ed.
747,
v. Powell
People
755;
2d
80 S. Ct.
53 Ill. 2d
(1973),
cf.
People
465, 477-78;
v.
King
291,
(1973),
54 Ill. 2d
298.
People Wheeler
The
22
(1978),
cites
Cal.
and Common
258,
748,
890,
583 P.2d
Rptr.
Cal.
cert,
499,
wealth v.
461, 387
Soares
N.E.2d
(1979),
377 Mass.
170,
denied
110, 100
881, 62
S. Ct.
(1979),
444 U.S.
L. Ed. 2d
in
Massa
which
of California and of
supreme
courts
Swain,
this
should
urges
chusetts
he
court
rejected
and
Swain,
As
in
the defen-
follow their lead.
had been the case
black,
in
and the victims
dants Wheeler and
Soares were
Wheeler,
chal-
prosecution peremptorily
were white. In
veniremen,
In
all the
all but one.
lenged
black
Soares
reversed,
holding
each case the
the court
conviction
that the
that when a
case
prima
defendant has made
facie
their
has
the basis of
prosecution
excluded veniremen on
race,
its
prosecution
has the burden
show
then
exclusion of the jurors
grounds.
was based on other
from
question
depart
whether this court should
and
principle adopted by the
Court
Swain
Supreme
case,
in this
overrule its
is
presented
decision Harris
not
out,
As
however.
the State
the defendant did
points
Moreover,
this
jurors
raise
issue until all the
had been sworn.
he failed
to make a record
would show that
which
veniremen who
the State
peremptorily challenged by
were
were black.
showing required
Such a
even under Wheeler
See
Soares.
Cal. 3d
v. Wheeler
890, 905;
583 P.2d
Rptr.
148 Cal.
Common
490,
The defendant objects to the admission into evidence testimony by Dwyer, Robert an investigator for the Chi cago police department, telephone of two conversations made an Dwyer overheard on extension telephone. One of these conversations was be tween the mother, Gaines, defendant and his Rebecca the other was between the defendant and his brother Michael. The defendant contends that Dwyer’s listening to the conversations was an act un made eavesdropping lawful section 14 — 2 (Ill. Criminal Code of 1961 Rev. Stat. ch. par. 2), which provides: “A person commits eavesdropping when he:
(a) Uses an eavesdropping or device hear record all any part conversation unless he (1) does so with the parties consent of all of the such *15 (2) conversation or any party the consent of one with Article in accordance to such conversation and 1963,’ of 108A Criminal Procedure of the ‘Code of amended; ***.” approved as August (Ill. of 1961 Since 14 — 5 the Criminal Code of that evidence 5) provides Rev. Stat. ch. par. 14 — inadmissible, is obtained section 14 — 2 violation of in denying erred judge defendant contends that the trial testimony. Dwyer’s motion to exclude this of officer portion by section is defined “eavesdropping The term device” 1961: 1(a) the Criminal Code of capable “An device eavesdropping device oral conversation being used to hear or record in person, whether such is conducted conversation however, Provided, means; by any telephone, or other used shall include devices this definition hard-of-hearing or the deaf the restoration 1979, ch. Stat. Ill. Rev. hearing.” partial normal 1(a). par. 14 — 23, before December Dwyer Officer testified on arrested, he apprehended had been mother, both where at called the home of the defendant’s Mrs. Gaines resided. Both and his brother visit, some as were this present during and Michael were Shortly investigation. assigned to police other officers answered Michael arrival, rang. telephone Dwyer’s after defendant, and it, was the that the caller and told his mother approached Mrs. Gaines her. As speak that he wished to listen to might if her he telephone, Dwyer asked Dwyer permission gave an She conversation on extension. located phone extension him to to do so and directed an instrument. room, up Dwyer picked adjacent an where he the conversation testify to Dwyer As was about Gaines, Mrs. between the defendant had overheard the testi- the admission objected defendant’s counsel trial court overruled a mistrial. mony and moved for then testified Dwyer the motion. objection and denied remarks: following made the that the defendant *16 Why f— you trying “What the are to do to me?
f— family you’rehelping isn’tthe me? I helping know police. f— wrong What the with Michael? you give Why That’s all a shit is Michael. aren’t about you getting money.” me the Michael,
The defendant then and speak asked to Dwyer remained the de- phone. on the extension Over fendant’s that continuing objection, Dwyer reported then Michael, after the “Boy defendant had begun by saying to you ain’t doing your took part,” following interchange place: responded, [Dickey]
“Michael ‘Ain’t boy no here.’ He said, ‘man,you just your ass. covering you Don’t know they give can us the chair what ain’t we done? You doing your even part, gun man. ain’t put You even you said, where was supposed to.’ And Michael ‘What gun, man? gun?’ Dickey What responded, ‘Nigger, you crazy Nigger, you gun. know what You ain’t even doing your part. I’m going you, to knock man. You’re just said, covering your put ass.’ Michael then ‘I’ll it now, there man. I’ll put gun Dickey there now.’ said, ‘No, you won’t man. F— I’ll you. get another gun. They ain’t going get me I’ll take alive. another gun. I’ll it shoot out police.” with the ended, testified, After the conversation Dwyer he asked one of the other police present, Fleming, officers Patrick “to accompany Michael to had get weapon that he hidden in the attic.” Fleming This was carrying gun. gun returned trial, admitted into at testimony, evidence and other whose accuracy is challenged, showed that the shots that killed the victims Davis and McCall had fired been from it. brief, State, defendant’s as is that of the is confined
to the discussion of whether a is an telephone extension eavesdropping device. it is addressing question, Before that important to consider the claim that basis of the defendant’s the admission of Dwyer’s was and testimony prejudicial
thus requires reversal of his The defendant first conviction. It objection suppress. raised his in a motion to pretrial appears colloquies judge from between the trial defendant’s motion counsel the court had denied the prior to trial.
While include com- telephone the two conversations ments by the defendant amount to admissions might complicity, police at the time of these conversations already had pointing received information to the defendant from interviews friends of with the victim Thomas and with following whom the latter contacted his complain crime. The defendant thus cannot re- marks were not the basis of incriminatory, *17 trial objection. Both his statements made to the brief and by court his counsel that his is based on the objection show assumption that the of his conversation with eavesdropping the brother enabled the locate and to recover police to murder weapon.
This assumption by is not the evidence. supported Statements were also regarding gun the location of conversation, by made during telephone Michael Gaines police and those by statements could have been heard In officers who were were made. present they when witness, addition, as a Fleming, Officer who was also called testified that with he had had a face-to-face conversation Michael, him the second up after which Michael took floor, where Fleming gun. recovered by
The claim that the admission moreover, this was on gun prejudicial, has been abandoned trial, At the admis appeal. object the defendant did section 14 — 5 gun, presumably theory sion of the that on of other of the Criminal Code of 1961 bars the admission (see eavesdropping evidence through illegal obtained People Maslowsky he 464-65), 34 Ill. 2d but error, not does now assert its admission was and he does not contend that his conviction of murder was not proved doubt. beyond reasonable telephone conver
The the defendant’s monitoring sation, event, 2(a), proscribed by not 14 — device eavesdropping an extension is not an telephone as that term is 1(a). People defined v. Dixon section 14 — (1961), 22 respect statutory Ill. 2d so with to the held antecedent ch. 14—1(a) (I of section Rev. Stat. ll.
par. 206.1), as holding and that well applicable present section.
The ground on the distinguish seeks to Dixon that the provision eavesdropping there an involved defined as “any (22 device Ill. 2d employing electricity” device 516), a qualification 1(a). omitted from section Dixon, course, decision not on the could have rested proposition that an extension is not a device telephone employing electricity. The basis of decision was rather that the statute is against directed other use of devices than the telephone itself when the latter has not been functionally altered.
We also do agree with the defendant’s contention that Dixon was overruled 34 Ill. by People Kurth 2d 387. In an telephone Kurth electronic device to record conversation was used. on holding The decision turned though even the device had installed one of the been parties conversation, pre was not party another cluded from having the conversation excluded from evi dence. The court only respect overruled Dixon *18 issue. See 34 Ill. 2d 395.
The significance of a
lack
consent to the
participant’s
of
monitoring
recording
a
has
telephone
of
conversation
varied with
changes
has made
legislature
which the
Stat.,
from time
Ann.
ch.
(See
to time
section 14 — 2.
Ill.
par.
1979);People v.
(Smith-Hurd
Historical Note
14 —
(1979),
121, 126;
Kezerian
77 Ill.
v.
People
2d
Richardson
(1975),
364
ployed. v. States United
The language defendant refers us to Harpel 346, 351-52, an (10th that 1974), Cir. 493 F.2d it is extension is an when telephone eavesdropping device Harpel a used as involved surreptitiously, it was here. forbidding conviction of statute for violation a Federal (18 interception communications and disclosure of wire 2510(5)(a)(i) U.S.C. Section (1970)). §§2510 act, Federal use con which defines those devices whose differently stitutes interception, unlawful is structured so init 1(a) from section given the construction 14 — Harpel would not further contention the defendant’s v. People Dixon accept should be We also cannot overruled. his act somehow undocumented assertion that the Federal claimed preempts regulation State wire communications is stringent. to be less To the extent against the ban maintaining that the Illinois statute violates found either unreasonable searches and seizures constitution, carefully Federal or that claim the Illinois was People v. Richardson rejected considered was Kezerian (1979), 60 Ill. 189. See 2d also 121, 127-28. Ill. 2d 1(a) by urged construction of section 14 —
defendant, monitoring whereby surreptitious telephone statements made during defendant eavesdropping, illegal constitute conversation would would, sure, who person give greater protection be over is the What the subject eavesdropping. acquired evidence 1(a) looks that section excludes 14 — a crim through acquisition if eavesdropping only 387, 396 (People Kurth inal Ill. offense a protect To Schaefer)). (concurring opinion Justice other phone purpose an person who uses extension require than to conduct would obtain evidence of criminal As This General major 1(a). recasting of done, frequent its amendments sembly though has not even
365 of 14—2 the display problem its of awareness eavesdropping. inherent in the regulation telephone of of The evidence objects defendant to the admission into subsequent conversation testimony Dwyer of Officer to a with by the defendant after the identification of the latter Thomas at a police lineup.
Dwyer his giving testified that after the defendant just Miranda he that had been warnings, told latter he McCall, as identified killed and person who had Davis and also told the his implicated by defendant “he had been own as person brother these At this who killed two point the The objected and moved for a mistrial. basis objection for the as testimony and the motion was that to statements made to the witness Michael Gaines would be hearsay deny and would his of right the defendant confrontation under Bruton United States U.S. 20 L. Ed. 2d Ct. S. 1620. court overruled the objection Dwyer and denied the motion. then went on to “I testify, did also called to his attention we in fact have the his weapon custody murder and that given brother had us an accounting sequence whole of events.” The defendant his his objection renewed motion, and the ruling court made the same as before.
In a conference presence jury held outside the court stated that if Dwyer’s testimony further should be the defendant orally had allegedly admitted statements brother, made his testimony be admis- Dwyer’s would sible. The court said: point
“At this am prosecu- I them going allow [the you continue still get point. Then if tion] objection answer, have an after then I’ll you hear the again have rule as going to whether I am to direct jury, your jury sustain objection and direct the disregard.”
Dwyer next testified that he had told the defendant having listened in to telephone conversation testified, 23, which, Michael Gaines on Dwyer December and his brother “discussed certain elements offense,” this replied to which the defendant he police knew that in. The defendant’s listening were counsel juncture, did not at this and he objection renew *20 did not cross-examine the witness. part
We need this not decide whether the admission of rule, however, Bruton Dwyer’s of testimony violated testimony since the of Thomas eyewitness uncontroverted was sufficient to sustain the defendant’s conviction murder, be Dwyer’s testimony and the admission of would v. 223, Brown United States (1973), harmless error. 411 U.S. v. Schneble Florida 208, 1565; 36 L. (1972), Ed. 2d 93 S. Ct. v. Harrington 427, 1056; 405 U.S. 31 L. Ed. 92 S. Ct. 89 S. Ct. (1969), 395 U.S. 23 L. Ed. 2d California 1726. had
Testimony given was at the trial that the defendant being escaped County jail from the where he was Cook in a hours. awaiting recaptured confined trial. He was few The jury properly defendant does not that the could deny (see his escape tending guilt consider as evidence to show v. People People 29, 32; Gambino (1957), 12 Ill. 2d Harper (1967), 398, 403-04), complains Ill. 2d but he the court it should use jury failed to instruct “how omission, according evidence of This to the de escape.” fendant, that the improperly permitted jury to conclude fact of escape by presumption itself overcame innocence, which instructed. jury correctly on was Instructions,
Chapter Jury 3.00 of the Illinois Pattern Criminal instruction contains no recommended in section evidentiary escape, define the significance 3.03, from flight situation of analogous relates to the crime, that no the scene of a the committee recommended defendant, more- this The given subject. instruction be on over, have been does not what instruction should state cases, like given, Capital and he tendered none at the trial. rule general proceedings, subject other criminal are that the court is obligation give under no instructions not tendered counsel. Ill. 2d Carlson 564, 584.
The remaining made re- contention his garding trial is that he proved guilty beyond was not reasonable doubt of charges robbery of armed Thomas, Thomas and Davis. As to testimony said, when the pointed pistol defendant at him and “This is a stick-up,” pulled Thomas two dollar bills out of his pocket Later, and dropped them to the floor. when he left room, he found only one of the The bills. suggests that the bill might other have some- lying been where on the floor. position The defendant’s is thus that no robbery place takes unless the accused physical takes possession of the property which he has forced de- fendant to surrender. position defendant’s 1(a) misinterprets section 18 — Criminal (Ill. Code of 1961 Rev. Stat. ch.
par. 1(a)), robbery which defines follows: as
“A person commits robbery prop- he when takes erty from person presence or of another the use of force by or threatening the of imminent use force.’'’ In People stated, v. (1980), Smith 78 Ill. 2d we “The offense of is robbery complete when force or threat of force causes the victim part possession custody to of property against his will.” To constitute the of offense robbery it is not necessary that picked the defendant have up and carried off of the bills.
In his opening that complained brief the defendant proof McCall, was lacking also of robbery of the armed which the State responded that that offense had not been charged. The defendant given then was leave to amend brief to allege that of the armed proof there had been no robbery Davis, of that responds State a which the robbery occur, Davis robbery of did since the of Thomas place took while Davis The State’s contention present. 368
also misreads section 18 — 1. The must have property taken v. (People been taken from robbery the victim of the Braverman People Smith 525, 531; (1930), (1980), 340 Ill. 298, 78 Ill. 2d that 302-05). There was no evidence whatever We anything took of value from Davis. agree therefore that the conviction of the defendant armed robbery appear must be As will Davis reversed. from our challenges discussion of the defendant’s him, death sentence the reversal of imposed upon judgment of invalidate the sentence. conviction does not hold, therefore,
We exception with the Davis, charge of armed the conviction of robbery of defendant turn next to the defendant’s affirmed. We must contentions that the him to death judgment sentencing vacated, be first his claims that the Act violates considering constitutions, some of provisions of the State Federal and which decisions already disposed by prior have been this court. the State’s given power asserts that the the death
Attorney to he will seek determine whether delegates legislative in penalty particular improperly case it and authority Attorney county, of each the State’s government upon confers the executive branch of of article violation power belongs judiciary 1970, 1, II, (Ill. Illinois Const. of the Constitution of II, fully considered §1). art. These contentions were Carey ex rel. Cousins Ill. 2d People (1979), rejected 788, 100 cert. 531, 953, denied 2d U.S. 63 L. Ed. People S. Ct. 1603. The decision in Cousins was followed appeal dismissed 527-28, v. Brownell (1980), 79 Ill. 2d 101 S. Ct. (1980), 449 U.S. 66 L. Ed. 2d v. Lewis same is true Ill. 146. The *22 provide Act fails to the related contention that the of State’s the various sufficiently specific guide standards to this court by of decision Attorneys. The settled course superfluous. renders of these issues further discussion a Objection is also made the Act’s omission of requirement give that to a before the State notice defendant trial penalty. of the State’s the death Such intention to seek said, omission, an it is of effective deprives a defendant counsel, assistance of it his to decide impairs ability because plea whether to bargain negotiated for a and whether a demand to waive trial. jury
No claim is made and the record does not show that defendant was any way ignorance disabled of prosecutor’s if request sentencing hearing intention to a he were convicted of On contrary, pro murder. before the cess selecting jury begun, had even the defendant’s court, counsel told the “I suppose discussed previously we this, State, I gather, intending to seek the death penalty.” The case is quite thus unlike v. Walker (1981), 84 Ill. 2d where the record showed that the accused was misled believing into that the State would not do so.
Since the indictments here charged the commission multiple murders and the commission of murder course of another felony, the that defendant was informed could, he potentially, be sentenced death. (Cf. People Brownell 79 Ill. require in all 525.) 2d To cases give the State must pretrial notice of its intention to seek the death penalty necessarily prose would defeat the cutor’s informed exercise held of the discretion to which we ishe entitled in People ex rel. 77 Ill. Carey Cousins so, 543. The defendant himself that that is concedes for in his reply brief be urges simply he Cousins overruled. objects on sentencing proceedings
several grounds: deputy the admission two testimony courtroom; sheriffs concerning his conduct outside the failure to present presentence report; denial motion for leave to find jury; jury’s address the failure to rehabilitation; there was no possibility of his its failure *23 it and the specify aggravating upon; which factor relied the verdict. judge
refusal of the to review and set aside is barred Lastly the defendant that his execution contends Stat. (Ill. the Illinois Act Rev. Hearing Post-Conviction seq.). et up objec ch. 122 — 1 these par. We take in tions the same order. as
At called sentencing hearing prosecution the the assigned witnesses had been deputy two sheriffs who witnesses, courtroom in trial These which the was held. in courtroom whose duties included order the keeping court and the transporting prisoners lockup between the room, in acts of had engaged testified that misconduct in three occasions described presence their on in cross- earlier this was asked on opinion. Each witness a deputy taken an oath as examination whether he had ever further had. No bailiff for the and stated that he jury, The defendant’s questions put were to these witnesses. The defendant testimony motion to strike their was denied. erroneous under Turner ruling contends the court’s was v. Louisiana Ct. 466, 13 85 S. L. Ed. 2d 379 U.S. 546. jury Turner on a guilty by
In the defendant was found prin murder, to death. charge of and was sentenced sheriffs deputy the were two cipal prosecution witnesses for crime and investigation had been involved the who admissions testified to oral They the arrest of the defendant. defendant, not who did the and a written confession of the during sequestered jury himself take the stand. The as deputies the two charge trial. It was the placed by the on a motion hearing In held bailiffs. the course of testified a mistrial the witnesses showed, jury particulars of their contacts with “freely found, had the witnesses Court Supreme and out jurors with the mingled and conversed 466, 468, 13 L. Ed. U.S. (379 the trial.” during courthouse despite held 547.) 85 S. Ct. The court to a spoken lack of either had ever any deputy evidence that case, juror about the conviction of the defendant amendment, violated stating: the fourteenth it “[Ejven deputies if never could be assumed that did directly discuss the case members of jury, recognize it blinking reality would be prejudice extreme inherent this continual association two throughout jurors the trial between the and these key #ee. witnesses for prosecution. guarantees
It would have undermined the basic *24 by jury trial this of an permit kind association jurors key between the witnesses prosecution and two who Sim- deputy were not sheriffs. But the role that Rispone mons and as deputy played [the sheriffs] deputies prejudicial. made the association more even For relationship the but was one -which could not jurors’ foster the in who their confidence those were guardians during official trial. period the entire of the 466, 473-74, ***.” (Emphasis in original.) 379 U.S. 424, 429-30,
L. Ed. 2d S. 550. 85 Ct. present case in re- differs from Turner several spects: The in investigation witnesses not participate did the of the or crime the the de- apprehension and arrest of trial, fendant. They did testify testimony not at and the their accordingly played jury’s guilty. no role the verdict of Their testimony at sentencing hearing only the related an occurrence of aggravating additional Without it factor. the defendant could still have been death in sentenced to the absence of mitigating preclude factors sufficient to the imposition of the death significantly, sentence. Most there was no testimony, and the defendant did not to elicit seek any from witnesses, the the character extent concerning of their contacts with jurors. showing the Thus there was no that there existed a be- “close and continual association” them, tween no basis infer of a hence the existence relationship which “foster jurors’ would the confidence” the witnesses. See U.S. Turner Louisiana
468, 474, 13 424, 426, 430, Ct. 550. L. 85 S. Ed. 2d silent, that the is the State asserts
Although the record a different courtroom deputies two were transferred they episodes the to which following last of the three testified, day last which October place took on hearing sentencing trial and only days five before began. termination of
The defendant out that points they to which deputies’ role as bailiffs after the events problem necessarily testified would not eliminate Turner. that if a may We concede concerned the court existed between already “close and continual association” of the former the witnesses the removal jurors, testimony. their effect of might dissipate prejudicial however, which the remedy We do not agree, with the de- involved “deputies defendant proposes, prevented should be jail fendant in the or whatever lock-up, or other the courtroom having from contact with [sic] different the courtroom jurors. When the defendant enters deputies would be used.” criminal acts knowledge
Unless
custodians,
including
presence
committed
sentencing jury,
attempts
escape,
to be denied
*25
be
a defendant
to escort
deputy
assigned
those
sheriffs
could
county jail
the
lockup
tween the courtroom and
a
such
require
jury. To
as
for the
never
serve
bailiffs
of
units
upon
burden
a substantial
practice
impose
could
populated
less
those of
government,
particularly
local
above,
consider
do not
we
given
For the reasons
counties.
death
invalidated
complained
testimony
Rettig (1972),
People
in this case.
imposed
sentence
Cf.
895,
2d
34 L. Ed.
317,
cert. denied
409 U.S.
50 Ill. 2d
152,
The defendant Code Unified of the made, 5 — 3—1 notwithstanding section 38, 3—1), 1979, par. ch. (Ill. Stat. Corrections Rev. 1005 — a provides: “A shall be sentenced defendant investigation a felony presentence report before written is presented to and considered the court.”
Although felony, murder a it not follow is does Chapter section 5 — 3—1 was here. V applicable Corrections, Unified this Code of of which section forms death, part, with deals sentences other than sentences of such as imprisonment, periodic imprisonment, sentences of probation, We held in discharge. conditional 3—1, 556, where Youngbey (1980), 82 Ill. 2d that section 5 — defendant, applicable, cannot since one be waived of its is purposes sentencing judge to with acquaint defendant’s criminal history, assisting judge thus choosing auth among the various which are dispositions orized by section 5 — 5—3 of the Unified Code of Corrections (I Rev. Stat. 5—3). ch. par. ll. 1005 —
In the present case were sentencing options no available court, to the for it was required sentence death after the jury returned a that there no verdict were mitigating factors sufficient preclude sentence. (People v. Lewis Ill. 150-51.) Section 5 — 3—1 of the Code of thus Corrections could have no application here. express We opinion no section whether 5 — 3—1 would or not apply would in case jury where the does not verdict, return such a result that the court must impose a imprisonment. sentence of
The defendant argues that if the is jury given the ultimate sentencing power, presentence then a must report be prepared presented jury. must of jury course consider those mitigating factors enumerated section 1(c) and any miti bearing information on other 9 — gating factors which in brought to its Such attention. formation could include items which fall within cate gories enumerated 5 — 3—2 of the Unified Code (Ill. Corrections par. 3—2). Rev. Stat. ch. The defendant fails show in way what the preparation *26 presentation
and of a presentence report jury formal to the would it provide with additional for its relevant information consideration.
The defendant was what also contends he denied he right characterizes as his of allocution. The constitutional nature the defendant’s claim from the motion appears which just he made before orally beginning sentencing In be hearing. requested that motion he he oath, allowed “to a jury, make statement not under subject and not objected, to cross examination.” The State and the court denied the motion. chief, has
After the State had its which rested case described, been renewed previously the defendant motion, which was in no again put denied. The defendant evidence had its jury and rested his case. After the returned verdict, and after motions the defendant arrest judgment, notwithstanding for judgment acquittal verdict, denied, said to for new trial had been the court defendant, Gaines, you say any- “Mr. would like to thing?” was then The defendant answered “No.” Sentence pronounced. We do not that the trial court’s denial consider prejudicial of the defendant’s error. motion constituted which inquiry Allocution at common law referred to the defendant, guilty the court made of return of a upon case, had capital verdict whether against reason be entered why judgment to offer should not an him. not to afford purpose of the allocution was for present plead evidence or to opportunity mitigating circum- leniency special but rather disclose certain stances, execu- clergy, precluded such as benefit Allocution, Barrett, 9 Mo. L. Rev. (See tion of the sentence. at Sen- Procedural Due Process Note, (1944); Judicial tencing Felony, 81 Harv. At (1968)). L. 832-33 Rev. to make opportunity common law this for the defendant since he personal particular importance, statement was of counsel, was not represented not entitled to be in his own as a witness competent testify considered *27 183, U.S. (1971), 402 behalf. See McGautha California 217, 1454, 1472; 711, 732, Ct. Green v. 28 L. 91 S. Ed. 670, 673, 301, 304, 5L. Ed. 2d (1961), United States 365 U.S. 81 S. Ct. 655. varying practice has been followed allocution in some
degrees although in many jurisdictions, American more than a cere practice regarded having as no monial character which modern safeguards because of the (See criminal procedure provides now to the defendant. Annot., 96 In Illinois (1964)). prior A.L.R.2d (Ill. enactment in 1972 of Corrections of the Unified Code Rev. Stat. 1001 — 1—1 there par. seq.), ch. et appears In relating to have been no statute to allocution. Gannon v. this held: People (1889), 127 Ill. court it is a practice upon better to call “[W]hile sentenced, say why he should not to do yet be the omission so is no ground for reversal in case.” That view of any See, matter was e.g., adhered to later decisions. Lamb 399; 219 Ill. Ill. 2d People v. Shaw 309, 313. enacted,
As the Unified originally 4—1(a) section 5 — par. Code of Stat. ch. (Ill. Corrections Rev. 4—1(a)), sentencing procedures specifies 1005 — to be followed in proceedings generally, provided: criminal guilt, hearing
“After a shall be determination of impose hearing held to At the court the sentence.
shall: evidence,
(1) any, if consider the received trial; upon the
(2) reports; consider presentence (3) of- consider evidence and information mitigation; fered parties aggravation alterna- (4) arguments sentencing hear as to tives; and
(5) opportunity afford the defendant the make a in his behalf.” statement own
Following the enactment in 1977 of the amendatory legislation to section 9 — 1 of the Criminal Code of 1961 which established the present bifurcated trial for aggra murder, vated subsection 4—1(a) of the Unified Code 5 — of Corrections was amended by at its adding beginning the exclusionary phrase, “Except when the death penalty is sought under hearing procedures specified.” otherwise (Pub. Act 1099; Pub. Act 1387.) This legislation 80 — 80 — had become effective when the defendant committed the crimes of which convicted, he was here and therefore no right to given be an opportunity to make a statement in his own behalf was conferred on the defendant by virtue of 4—1(a).
So far as section 9 — 1 of the Criminal Code of 1961 is concerned, (e) subsection of course allows the defendant *28 testify at the in sentencing hearing, require but it does not terms that the given opportunity speak defendant be an to other than as a A in pro witness. a criminal ceeding who in subject testifies his own behalf to rea (People Miller sonable Ill. (1930), cross-examination 342 244, 252; McGautha v. 183, 215, (1971), 402 U.S. California L. 711, 731, 1454, 28 Ed. 1471), 91 S. Ct. no reason appears why an to that should be read exception principle into 1(e) by implication. supporting
The defendant this court cites no decision of his claim that right he had a constitutional to address jury, but solely Supreme relies on the decision of the Court in Green v. United States 301, 365 U.S. 5 L. Ed. 2d 670, 81 S. application Ct. 653. That case involved the Rule 32 of the Federal Criminal Procedure to Rules of in conviction 32(a) provided for a Federal crime. Rule pertinent part: imposing
“Before the court shall afford sentence the defendant in opportunity an to make a statement his own present any behalf and to information mitigation punishment.” Green, leading
In proceedings at the close of the 1952, conviction, the Fed- place defendant’s which took asked, judge something?” eral district to you say “Did want 301, 653, (365 U.S. 655), 5 L. 81 S. Ct. Ed. 2d mentioning and the defendant’s responded by counsel then various mitigating judge circumstances of a character. The then pronounced years sentence. Seven later petition filed a vacate his sentence under Rule Procedure, Federal claiming Rules of Criminal that the sentence was illegal judge’s rendered the district failure to ask the anything say defendant whether he had on own behalf. Supreme petition Court affirmed the denial of the
on the ground that the judge’s inquiry might initial have been directed to the defendant rather than his counsel. The statement, court went on to make the however: following judges should, “Trial sentencing before as a matter of good judicial administration, unambiguously address themselves to the judges defendant. Hereafter trial should leave no room has for doubt that the defendant been issued personal speak prior invitation to 301,305, 670,674, sentencing.” 365 U.S. 5 L. Ed. 2d S. Ct. 655.
Rule 32(a) was in 1966 incorporate amended suggestion (18 made U.S.C. Rule Notes of Green Advisory (1970)). Committee must be read on Rules Green 424, 7 light L. Hill 368 U.S. United States Ed. 2d 82 S. Ct. judge however. In Hill the district imposed had sentence without making inquiry conviction, defendant. No but appeal was taken from the *29 defendant a attack on subsequently made collateral 28 by petition conviction a 2255 of Title filed under section of the provides United States Code vacation of a sentence a Federal court where imposed by “the sentence was in violation the Constitution imposed Court, noting or laws of the United Supreme States.” The 378 the relief available under section 2255 no more
extensive than that which had been available by habeas corpus, stated:
“The failure of a trial court to ask a defendant represented by attorney an anything whether he has say before imposed sentence is is not of itself an error of the magnitude character or cognizable a under writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in complete miscar- riage of justice, nor an omission inconsistent with the rudimentary procedure. demands of fair e « a
It is to be noted that we are not dealing here with a case where the defendant was affirmatively denied an opportunity to speak during hearing at which his sentence was imposed. suggested Nor is it that in imposing the sentence Judge the District was either misinformed or uninformed as relevant cir- Indeed, cumstances. there is no claim that the de- fendant would have had anything say at all if he had been formally speak. invited to Whether relief §2255 would be if available 32(a) violation of Rule oc- curred the context of aggravating other circum- question stances is a we therefore do not consider. We decide only that such collateral relief is not available when all that is shown is a comply failure to with the formal requirements 424,428-29, Rule.” U.S. L. 421-22, Ed. 2d 82 S. Ct. 471-72. In McGautha v. (1971), 402 U.S. California n.22, 711, 733 28 L. n.22, Ed. 2d 1454, 1473 n.22, 91 S. Ct. Supreme Court noted that the question an affirm whether ative refusal to let a speak was unconstitutional was still open, and the defendant here refers us to no later decision in which the Supreme Court has addressed question.
It
clear,
moreover,
question
is even
presented
case,
in this
for the defendant was ultimately
*30
opportunity
speak
afforded an
to
but
it.
declined to exercise
says
The defendant
opportunity
that that
came too late to
be meaningful
jury
since the
had already returned its
verdict,
sentencing
since,
and
as we have held in
v.
People
(1981),
129, 147-48,
Lewis
88 Ill. 2d
the trial
had
judge
no
power to disregard
true, nevertheless,
it. It remains
that the
defendant’s negative response to the court’s
and his
inquiry
failure to offer any evidence at the sentencing hearing
indicate that the defendant would not “have had anything at
all
say”
had he been allowed to address the
As in
jury.
Hill, no claim is made to the contrary.
Gordon v. United
Cf.
(5th
States
Cir. 1971),
438 F.2d
(1971),
cert. denied
404 U.S.
30 L. Ed. 2d
In addition to his claim that the
his request
denial of
address the jury deprived him of
process,
due
the de
fendant contends that
equal protection
was
clause
also
violated,
since
prosecution
cases where the
does not seek
the death penalty a
given
defendant is
the opportunity to
make a statement by virtue
—4—1(a)(5)
of section
5
Unified Code of Corrections. In support of this contention
12, 100
defendant cites
351 U.S.
(1956),
Illinois
Griffin
L. Ed.
In People ex rel. Tucker v. Kotsos 68 Ill. 2d this court held that to bail deny persons incarcerated pending the outcome of proceedings for revocation of parole while making persons bail available to incarcerated probation to revoke proceedings
pending the outcome holding In so clause. equal protection did not offend the leg deference the normal position court took the unless from departed not be islative classifications should deemed right some impinged on the classification either 68 Ill. class.” against “suspect fundamental or was directed Products Co. Valley Steel 96-97; *31 Ill. 2d 420-21. making in interest
We doubt whether a defendant’s importance in approaches in his statement own behalf We also review. appellate interest effective securing crime nature of the on the doubt that a classification based classifi with a equated can be by committed any sex, status. But race, cation based on or economic adversely he was shown that event the defendant has not What complains. he of which by affected the classification in,its of allocution (5) right is the 4—1(a) provides section 5 — statement to make a to opportunity traditional context: the in which sentencing procedure the court the course of a it is though even jury plays opportunity, no role. That the him. the statute, What offered by the was required not unsworn make an to sought opportunity was the defendant along for consideration sentencing jury the statement to of arguments and the testimony under oath given with such considered well have legislature may counsel. The might and jurors, the at the confuse a statement would least and aggravating impair ability weigh their also the statute testimony as factors disclosed mitigating them to do. directs the portion the Act violates
The defendant asserts that Constitution I, Illinois the 1970 section of article both be determined “All shall provides: penalties which and the offense seriousness of according to the citizenship.” to useful offender restoring objective either require not the Act does objection is that His make a determination court sentencing jury or the restored can be that the there no likelihood As made. was finding such that no citizenship, useful the court to requires the Act opinion, in this noted elsewhere verdict, discussion jury’s judgment enter on his claim limited to is therefore objection defendant’s to. referred the determination jury must make in reflect does not provision The constitutional im prohibit tention of the constitutional convention VI, article contrary, On the penalty. of the death position Constitution, pro which 1970 Illinois 4(b), section directly to be taken cases shall appeals capital vides that given. will be court, sentences this that death presupposes Moreover, submitted to Convention the Constitutional the death whether question separate voters on ballot abolished, proposition and the penalty should be Com Stat., I, Ill. Ann. art. Constitutional approved. §11 (Smith-Hurd 1971). mentary, at di the Constitutional legislature implemented has of Corrections 1 — 1—2 the Unified Code
rective (I 1—2), par. Stat. ch. Rev. ll.
states: *32 are to: Corrections purposes
“The of this Code of to the (a) prescribe proportionate sanctions recog- the permit and seriousness of the offenses possibilities in nition of differences rehabilitation offenders; among individual the commission
(b) prevent forbid and offenses; treatment
(c) arbitrary oppressive prevent or delinquents; or persons adjudicated offenders citizenship.” (d) offenders to useful restore 11, con I, has been meaning of article section term of that the in contentions sidered connection with was sentenced imprisonment to which a defendant 564;People 79 Ill. 2d (1980), unduly long (People v. Carlson should probation that (1977), 149), v. 68 Ill. 2d Perruquet 382 (People ex rel. Ward v. Moran granted (1973),
have been v. People Waud 552; Ill. 588). 2d 69 Ill. 2d These (1977), in implicit language decisions confirm what is of article I, 11, Constitution, section of the and section 1 — 1—2 of Unified possibility Code of Corrections: The of an indi vidual offender’s rehabilitation is not the sole factor to be considered is sentencing, and the court also consider whether protection seriousness of the offense and the severity. People society interests of call a sentence of for People ex rel. Ward v. Moran 552, 556-57; (1973), 54 Ill. 2d Perruquet People Waud 149, 155; Ill. 2d v. Carlson 588, 596; (1977), 69 Ill. 79 Ill. 2d cf. 587. murder, Upon conviction of the alternative to a death sentence is a for imprisonment determinate sentence of years either term of than 40 not less than and not more or a term Stat. imprisonment. (Ill. of natural life Rev. ch. par. legislature this reason the 8—1(a)(1).) For 1005 — might the rehabilitative reasonably have concluded potential of and that the offender was not a relevant factor jury need not it. consider made, however, if we
Even contrary assumption requires find Act prejudicial 1(c) no Section error. 9 — which are jury “any mitigating consider factors (Ill. relevant Rev. imposition penalty” of the death Stat. than par. 1(c)), including ch. factors other 9 — those was instructed jury included the Act. The consider not only mitigating factors enumerated 1(c) but facts or circumstances “any also other provide than the death imposing reasons less at the penalty.” The no evidence defendant introduced instruction sentencing to the hearing; object he did not court; directing the given by the no instruction he tendered be jury could explicitly to consider whether jury citizenship; argument restored to useful *33 potential had a his counsel did not defendant assert rehabilitation. for provide the Act does not contends that defendant review, require it since does meaningful appellate
for aggravating what jury specific findings to make As a in its verdict. reaching it mitigating upon factors relied result, defendant, a this court cannot make according to the cases, and capital between this and other comparison being from penalty therefore cannot the death prevent rejected was inflicted This contention capriciously. general (cf. 541-44 in 79 Ill. 2d People Brownell our 146-47), and Ill. 2d Lewis made objection holding disposes particular there also of the case. in the present verdict was As previously opinion, stated this McCall and of guilty found of the murder of Davis and sentencing robbery armed and Thomas. The Davis was which the first was hearing phases, conducted two eligible concerned only with whether the defendant ter 1(b). phase a death sentence under This section 9 — minated the return which contained verdict following finding: unanimously beyond
“We further a reason- find following statutory aggravating able doubt that the factor exists relation this offense: The murdered rob- individual was killed in of an armed the course bery, mur- or the defendant has been convicted of dering (Emphasis added.) two or more individuals.” This verdict language is the as that of the form of same jury which given was submitted the State and was objection. without
In which phase sentencing hearing, the second miti involved the jury’s aggravating consideration of verdict, also gating 1(c), factors under section objection followed form of verdict submitted without defendant, from the was as follows:
“We, jury existence of a having found the *34 factor,
statutory aggravating aggra- have considered vating relating imposition and mitigating factors of penalty the death in this case.
We are no suf- unanimously conclude that there ficiently imposition mitigating preclude factors to the DICKEY upon the death sentence the defendant GAINES and that the court shall sentence the de- fendant to death.” establishing in finding
Because the the first verdict in dis- eligibility only for a death sentence is stated must junctive, sentencing verdict argues, regarded aggravating be as factor leaving unspecified out, however, on which it is As just pointed based. we have Brownell under in in this specificity regard the decision required. however, that if the argue, The defendant on to goes indi- death sentence rests that the murdered finding on robbery, vidual was killed in an armed the course of stand, robbery place. sentence took cannot since no armed This latter assertion is on the contention discussed based in opinion earlier this was no of an armed proof there course, have, robbery either of Davis or of Thomas. We though even robbery proved, held of Thomas was not, in existence of the of Davis was but event the factor, convicted aggravating other that the defendant was individuals, disputed. is not murdering two or more Objection is the trial court of also made to the denial as sentencing the defendant’s verdict motion to set aside People v. Lewis (1981), holding erroneous. Under the 129, 147-48, so. authority Ill. 2d to do court was without his is barred defendant contends that execution section 122 — 1 of the Act Hearing Illinois Post-Conviction (Ill. provides Rev. Stat. part. 1), eh. pertinent part: who
“Any penitentiary person imprisoned his proceedings asserts that which resulted rights his was substantial denial of conviction there United States or under the Constitution of the proceeding may State of Illinois or both institute eee this under proceedings under this Article. No years than 20 after Article shall be commenced more petitioner judgment, rendition of final unless the his alleges delay was not due to showing facts that the culpable negligence.” People 406 Ill.
Citing
(1950),
v. Dale
People
116, 120,
Lewis
413 Ill.
Thomas
45 Ill.
maintains that since
penitentiary
sentence
in the
ordered that he be confined
execution,
him,
while
awaiting
applies
section 122 — 1
*35
person
that he is entitled
basis as a
who
to relief on the same
is
confined
to a sentence of
penitentiary pursuant
states,
imprisonment.
person,
may apply
post-
Such a
he
conviction relief should new
be discovered
evidence
showing that he did
which he was
not commit the crimes of
convicted,
if
Supreme
a future decision
Court
should confer some new constitutional
which was not
right
recognized when
As
the defendant was tried and convicted.
illustrations of that
situation the defendant cites Furman
346,
238,
Ct.
Georgia (1972), 408 U.S.
33 L.
2d
92 S.
Ed.
2726,
335,
Gideon v.
372 U.S.
9 L. Ed. 2d
Wainright (1963),
799,
792,
83 S. Ct.
(1966),
384 U.S.
Miranda v. Arizona
436, 16
694,
L. Ed. 2d
The argues defendant that a who is sentenced person hand, capital punishment, deprived post- on the other is circumstances, conviction relief in such his since execution will have thus rendered his case moot. The defendant concludes that if 122 — 1 is effect he given to be cannot be 20 after years executed until November construed, his If penalty conviction. the death act is not so urges, he it equal protection then is invalid under the clause as an creating per classificaton between those unreasonable sons who are are sen- sentenced to death and those who
386
tenced imprisonment.
So far question as the is statutory construction concerned, the defendant’s is argument plainly unsound. 1949, Both in when the Post Conviction was Hearing Act enacted, 1965, and in when section 122 — 1 was amended conviction, increase the limitations period years to 20 after Ilinois, the death existed in its penalty legitimacy yet as by Furman v. Georgia 238, undisturbed 33 (1972), U.S. 346, and Moore v. Illinois L. Ed. 2d S. Ct. 408 U.S. 33 L. Ed. 2d 92 Ct. 2562. present S. act, contains, death penalty which no passed provision that the execution of a death sentence should be stayed for years (during which defendant would necessarily be it is kept prison), and inconceivable the legislature it intended such an result. anomalous Nor true that legislature may constitutionally not differ entiate between those persons who have been sentenced death and those have imprisonment. who been sentenced to ex rel. Tucker Kotsos 68 Ill. 96-98. exculpating
Whether
new evidence
discovered,
would be
some future decision
whether
will
announce a new doctrine
would invalidate
conviction
But that
speculative.
are at best
consideration
aside,
potential
does
deprivation
such
benefits
spring from
limitations
of the Post-Conviction
Act,
Hearing
but from the
death.
defendant’s
propo
reduces
argument
The defendant’s
thus
*36
is per
se
That
unconstitutional.
penalty
sition that the
death
of
view was
Court
adopted
by
Supreme
Judicial
District
v. Watson
Attorney
Massachusetts
(1980),_
Mass._411
1274,
defendant,
N.E.2d
cited
where
the court held that the
of
provision
death
violated a
penalty
the State Constitution
or unusual
forbidding
punish
cruel
ment. The
opinion
potential
court’s
cites
same loss of
future benefits on which
rests his argument
(See_Mass._,_,
1274,
here.
Such
1282.)
411 N.E.2d
however,
of
in either the decisions
support,
view finds no
Court, only
Supreme
this court or those of the United States
See,
e.g., Gregg
two of
it.
whose members subscribe to
859, 904,
227, 231, 49
153,
L.
Georgia (1976), 428 U.S.
Ed. 2d
907,
For the reasons convicting the defendant County the circuit court of Cook It is is affirmed. him to death sentencing murder and Wed out on be carried shall directed the sentence Penitentiary 22, 1982, State at the Illinois nesday, September in Joliet.
Judgment affirmed. GOLDENHERSH, concurring: CHIEF JUSTICE in my For the reasons stated concurrence 129, I opinion. in this (1981), 88 Ill. 2d concur Lewis CLARK, dissenting: JUSTICE at the home Dwyer,
On December Officer monitored permission, her the defendant’s mother and with phone conversation between the telephone up He did this the extension picking mother. 14 — 2 located the next room. Under section par. ch. Stat. (Ill. Criminal Code of 1961 Rev. if all of eavesdropping 2), person does commit any party parties to the conversation have consented device eavesdropping the use of an gives permission and 1977, ch. Stat. (Ill. Rev. judicially has been authorized seq.). 108A et 14—2; par. ch. ll. Rev. Stat. par. I Procedure of Criminal Section 108A — 6 of the Code procedures. to normal exception an provides emergency ap contact made to If a reasonable effort has been may officer law-enforcement Attorney, a State’s propriate situation.” “emergency in an use an device eavesdropping be the conversation An situation exists when emergency *37 388
“overheard” will shortly occur and the officer had not been prior time to sufficiently long enough aware for a obtain 6). judicial (Ill. par. Stat. ch. approval Rev. 108A — parties Officer the of both Dwyer did not have consent prior judicial approval, the He not obtain conversation. did State’s he appropriate made no to contact the effort prof A have been Attorney. persuasive argument could in this been physically fered that it would have case impossible Dwyer prior approval for Officer obtain However, in all Attorney. even State’s attempt to contact a of the approval “emergency” application situations an “*** of must be made within use an device eavesdropping ### In order to the of use. hours of commencement such use, make approve judge such must emergency had an (1) granted determination order that he would have court use of prior the information been before as (2) emergency device that was an situation there 38, par. defined in this Stat. ch. (Ill. Section.” Rev. was made. It is axiomatic 6(b).) No ever application 108A — that could without such no authorization application an contents subsequent have given. approval been Without been having treated as conversation overheard are 108A requirements the article obtained violation of 1977, ch. (Ill. Stat. mandating judicial Rev. supervision authorization, section par. 6(c)). And without such 108A — 1979, ch. 14 — 5 Stat. (Ill. of 1961 Rev. Criminal Code as a 38, par. 5) obtained provides that evidence 14 — is2) in section (as result defined eavesdropping 14 — (People v. Kurth 387). 2d 34 Ill. (1966), inadmissible telephone an extension majority The holds since device, by as not defined eavesdropping did constitute an conversation 1(a), monitoring then the majority 2(a). The proscribed was not section 14 — not that People v. Dixon was 22 Ill. 2d contends The by v. Kurth Ill. 387. 2d overruled in Kurth on “turned say court that the decision goes on installed holding though even the device had been conversation, one parties another party precluded from having from the conversation excluded (88 evidence.” Ill. at concluded 363.) majority *38 to that only respect court overruled Dixon “[t]he 387, (88 395.) issue.” Ill. 2d But to at 363. 34 Ill. 2d See is at overruled, what precisely extent and is Dixon did knowledge issue The here. defendant did not have clearly not would Recordings consent. of this conversation too should the be inadmissible defendant. So against the as repeated by police conversations officer. an
A uses commits when he person eavesdropping any of a part to or eavesdropping device hear record 1977, 38, 2). ch. The (Ill. par. conversation Stat. Rev. 14 — 1(a) term “eavesdropping device” is defined 14 — of the Criminal any capable Code of 1961as device of such whether being used to hear or record oral conversation telephone, conversation is in person, by conducted Stat. any added.) (Ill. (Emphasis other means Rev. hearing- par. ch. This does not include 1(a).) 14 — (Ill. Stat. hard-of-hearing Rev. help aid devices used to is par. 1(a)). telephone ch. anWhen extension overhearing used the sole purpose surreptitiously for of conversation of it an eaves parties, two then becomes may have con one dropping though party device even 366, the App. sented. In 92 Ill. v. Perez telephone police attached aparatus earphone an to This to the conversation. secretly overhear record apparatus in room listen undetected enabled others an this considered both sides of the The court conversation. distinction be is no eavesdropping logical device. There telephone apparatus tween the and the extension Perez here, is phone one manner in which when considers the turn The this statute should being used. application of a privacy The type equipment on the utilized. auth- proper invaded without telephone conversation was 14 — 2. ority a manner of section language offensive to only one Dwyer telephone Officer used the extension purpose; conversation telephone to overhear defendant without detection. v. Harpel United States 1974),
In Cir. 493 F.2d (10th whereby the the court noted that is the means “[i]t that is crucial.” acquired contents of the conversation are the differences majority pointing is correct out in Harpel (18 between the Federal statute as construed Illinois statute. (1970)) U.S.C. to 2520 and the §§2510 Harpel However, is The court court’s rationale sound. Harpel refuted the contention that the use of an extension stat- eavesdropping telephone does not violate the Federal an that the use of (493 351.) ute. F.2d The court said party, of one telephone, extension with the consent law. Federal overhear a conversation does not violate However, being used telephone when the extension consent, then a viola- overhear a without conversation *39 then, that an ex- apparent, tion does occur. It becomes overhear telephone, surreptitiously tension when used to conversation, device, statutory is an eavesdropping must be of such devices requirements regulating the use complied with. Court Commonwealth in
The Pennsylvania Supreme Murray (1966), 423 Penn. that, 37, 102, indicated 223 A.2d is not in majority telephone while instances an extension of “ device, telephone an is eavesdropping not what [i]t extension is circum- that it in certain may illegal make 37, 50, stances, use to which 223 (423 but the it is Penn. put.” 102, is not the device 109.) commonplaceness A.2d The of its em- criminality of determining criterion for 102, 109.) See ployment. (423 Penn. A.2d Campiti Walonis (an exten- (1st 1979), Cir. 611 F.2d prison of sion telephone used to monitor conversations is intercepting device). inmates an the defendant’s testimony concerning The officer’s tainted, product it was the conversation was since of that conversation unlawful contents eavesdropping. in resulted If should been the conversation suppressed. have sup it have been discovery gun, of the too should is excludable eavesdropping such pressed. Any product of United Sun v. (Wong as a “fruit tree.” poisonous 407; 441, Ct. 83 S. 9 L. States 371 U.S. Ed. U.S. 5 L. Ed. 2d (1961), 365 Costello v. United States violation 534.) Any 81 S. Ct. information obtained Rev. Stat. (Ill. eavesdropping statute not admissible. 5.) primary ch. This both to par. applies evidence (the conversation) evidence derivative officer’s unlawful acquired logical consequence as a eavesdropping. SIMON, also dissenting:
JUSTICE
I
and,
concur
dissenting
opinion
Clark
Justice
for the
dissent,
reasons
stated
I think the defendant
should receive a new trial. I also dissent for the reasons
stated in my dissent in People v.
Lewis
I would like to add the following observations to Justice Clark’s dissent. Although Officer had Dwyer the consent of the defendant’s mother to overhear her conversation with son, her it is not clear from the record Michael Gaines consented to Dwyer Officer listening when he talked addition, the defendant. In police may the fact already had have information pointing to the defendant’s complicity does not justify Dwyer’s testimony Officer which related the statements mother defendant to his and brother. Those statements forth in majority are set opinion. They are clearly self-incriminatory, and Officer Dwyer’s testimony about them was inadmissible because of the eavesdropping statute.