*1 disciplinary Moreover, record. although the respondent has continued to maintain that his actions were proper, he cooperated with the fully Hearing Board and the Re- view Board in these In proceedings. consideration these circumstances, we conclude that the respondent should be from suspended the practice of law a per- iod of one year.
For the stated, reasons the respondent is suspended from the practice of law for a period one year.
Respondent suspended. JUSTICE CALVO took no part consideration or decision of this case.
(No. 62845. THE PEOPLE OF THE STATE OF ILLINOIS, Appel-
lee, v. VERNEAL JIMERSON, Appellant.
Opinion February Rehearing filed 1989 . 3, 1989. April denied *6 J., CALVO, part. took no
CLARK, J., dissenting. Defender, Lawrence Schiedel, Deputy M.
Charles and Steven Defender, of Springfield, J. Essig, Appellate all of of Defender, Chicago, Clark, Assistant Appellate Defender, for appellant. of the State Appellate the Office Chicago of Attorney, State’s Daley, Richard M. Assistant Gainer, Jr., Sweeney, and Kevin (Thomas V. Czech, Special Quinlivan Marie Attorneys, State’s for the counsel), People. of State’s Attorney, Assistant the court: the opinion MILLER delivered JUSTICE court of Cook trial in the circuit Following jury Jimerson, was convicted defendant, Verneal County, his The waived persons. of the murder two hearing, a death penalty right jury purposes to death for the defendant and the trial sentenced judge stayed execution was the offenses. The defendant’s 1970, art. Ill. Const. this court. by direct review pending VI, Ill. Rules §4(b); 609(a). 2d are death sentence
The defendant’s convictions and of Larry in the murders the result of his participation 11, 1978. The vic- Schmal on Lionberg May and Carol Lion- station where tims abducted from service were area of was located an berg unincorporated employed, taken to a vacant townhouse Homewood, and were There, Carol was Chicago Heights. raped by East shot and killed defendant and three other men and was then led outside to a one of attackers. Larry field, where he was shot and killed. nearby the next day, were discovered victims’ bodies face on the 12. was found down Larry lying evidence near a creek. The established *7 ground, autoptic in times the head and once that had been shot two Larry was a wound The cause of his death bullet back. to the a bullet wound head, in association with room of the found in an upstairs heart. Carol’s was body face down on the she was building; lying townhouse removed. Carol floor, and some of her had been clothing and range, two times in the head at close had been shot a to the head. the cause of death was bullet wound in connection was arrested initially The defendant in 1978. The defendant was released with these offenses however, a following hearing from custody, preliminary witnesses, recanted Gray, when one of the State’s Paula him in the crimes. implicating her earlier statements victims, the attack on was present during who Gray, to the of- to connect witness only was found fenses, hearing judge and the preliminary no cause to there was probable without her evidence, how- There was sufficient hold defendant. male defendants —Dennis ever, to hold the three other they, Kenneth Adams —and Williams, and Rainge, Willie offenses later were tried for the as well as Gray, con- was Williams proceedings. simultaneous year and and murder, rape aggravated kidnapping, victed of convictions. to death for the murder was sentenced murder, aggravated kidnapping, of was convicted Rainge of to concurrent terms he was sentenced and and rape, natural, and for the murder convictions life imprisonment of- for the other terms of imprisonment to extended and and rape convicted of murder fenses. Adams was terms. Paula Gray to extended prison was sentenced sen- and she was murder, rape, perjury; convicted murder and terms the. to extended prison tenced term for the to a prison convictions rape 10-year conviction. perjury convictions and death
This court reversed Williams’ the in trial him a new because granted sentence counsel, Archie rendered trial effective assistance v. Williams (People 309.) 93 Ill. 2d (1982), Weston. the appellate Rainge, had also represented Weston Williams, granted court, decision relying the con affirmed trial; court appellate new Rainge Adams, had repre who been victions and sentences Rainge v. People at trial. a different attorney sented by 112 Ill. 3d 396. (1983), App. convictions court affirmed Paula Gray’s
The appellate Gray (People Ill. 3d App. and sentences. of habeas cor for a writ petition later filed 142.) Gray pus her pe- court. The district court dismissed Federal *8 tition, (United of reversed. States but court appeals Director, (7th Corrections Department ex Gray rel. held that 721 F.2d The court of 1983), 586.) appeals Cir. between Paula and an actual conflict of interest existed that their representa- codefendant Dennis Williams and Weston, had resulted a de- tion the same by attorney, coun- constitutional to the assistance of right nial of her court found that trial counsel had failed sel. The an courses of action that follow one any variety conflict-free, would competent attorney” “independent, behalf, the failure to have asserted Paula’s advantage. do so had been to codefendant Williams’ at The court of therefore 596.) appeals F.2d (Gray, Paula’s habeas reversed the district court’s dismissal of and instructed the lowér court to enter corpus petition an order that would effect her release from un- custody less the chose to State her. retry the reversal of convictions
Following Gray’s corpus habeas she proceeding, agreed testify State’s In December 1984 against behalf defendant. case, in this the defendant was indicted on the offenses murder; and he was with four counts of it charged ap with charged rape that the defendant was not also pears was, time, offense because for that prosecution by barred the statute of limitations. See Ill. Rev. Stat. ch. par. 3-5(b).
The State evidence at following presented trial, defendant’s which in late October 1985. Cle- began Míreles, mente of the service station where manager he worked, testified that arrived at station Larry 11, 1978, found it unat- around 6:30 a.m. on ransacked, had been building inventory tended. the po- Míreles notified missing. worth about $300 from sheriff’s police lice. the Cook Investigators County Her found Carol’s car at the service station. department her and other containing personal driver’s license purse, to the testi- According front seat. effects, was on the *9 members, engaged and were Larry Carol mony family shift, Carol, also worked a married, night to and who be her holidays. would at work on Larry visit In Paula Gray. The State’s trial witness was principal her fam- old and lived with May Gray years At Heights. Chicago at 1525 Hammond Lane East ily Williams, defendant, that time she had known or her for one Adams, boyfriend, and who was Rainge, after mid- Paula testified that sometime two months. in his car sitting on she and Adams were night inside, a while Paula went in front of her home. After get- that while she was Adams left. Paula testified and noise, as that she heard a such go to to bed ting ready to in- Paula went outside made a car stuck mud. she saw with five other persons. and Williams vestigate, her, and got pull- Paula and came over Williams noticed his car was There she saw parked. her to where ing Adams, a defendant, persons, and two white Rainge, The woman, group she did not know. man and a whom located at 1528 Cannon entered a vacant townhouse Lane. downstairs, Williams, defendant held Larry
While There, Adams led Carol Williams Rainge, upstairs. and Williams, Rainge, remove her clothing. ordered Carol to re- Rainge then Carol succession. raped and Adams downstairs, and the defendant then defendant placed and downstairs. Williams and returned raped Carol so, not when Adams did do again. Carol Rainge raped and the him not to. went downstairs Rainge Paula told again. he Carol defendant came upstairs, raped re- Rainge downstairs defendant then went back ordeal, disposa- Paula held turned. Carol’s Throughout her with. had provided ble Williams lighter to turn ordered Carol Paula testified Williams Williams, in the head. over, he then shot her twice Adams, Rainge, and Paula then went downstairs. Wil- liams, and the Rainge, took outside to Larry the banks of a creek field; running through nearby Paula was also them, with but Adams had home. gone Williams told to lie Larry down. the same Using gun with which he woman, had killed the Williams then shot twice, Larry head and Rainge shot him in the back once. The defendant then left the scene. According Paula, Williams threatened to kill her and her family if she told anyone about what had occurred.
Paula also said that she spoke officers fol- police lowing crimes and that she testified before a grand In jury. June 1978 she testified at the defendant’s pre- liminary hearing. Paula said that before testifying that occasion she with spoke Weston, Archie who at that *10 time was representing both the defendant and Rainge. Later summer Paula was charged murder, with rape, and perjury; count was perjury based on her at the testimony preliminary hearing. She was convicted of those charges. Paula said that her trial was attorney Weston, who was then also representing Williams and she Rainge; testified several times at her own trial, and later at Williams’ sentencing hearing.
On cross-examination at the trial, defendant’s defense counsel impeached Paula with portions her testimony at the 19, 1978, June preliminary hearing, when she re- canted her original statement implicating and the others in the offenses. At the hear- preliminary ing Paula insisted that she knew nothing about the of- fenses. In main, Paula’s responses on cross-examina- tion were that she did not now recall the particular questions answers she being was asked about. The State also introduced evidence that Paula had on provided, an earlier occasion, an account that was consistent with her at the defendant’s trial. The earlier statement was presented the testi- through Pastirik, of Patrick mony an with the Cook investigator County sheriff’s police department who had interviewed Paula 13, 1978, around p.m. Saturday, at the May sheriff’s station Homewood. Pastirik police said that Paula was murder, indicted 1978 for rape, per- and that jury, was based on perjury charge variances in her statements.
Recounting statement, Paula’s consistent Pas- prior tirik testified that Paula said that in the early morning hours of 11 she home, was at in a car with sitting Later, Adams. as she Kenny was to to getting ready go bed, noise, she heard a and she saw a red stuck Toyota in the mud between two townhouses. Paula went outside Williams, and. Adams, defendant; saw and the Rainge, woman, she also saw two a man persons, white and a the back seat of the red car. Williams noticed Paula and walked over to her and her grabbed the wrists. Wil- liams led Paula to where others were standing, entered group the townhouse at 1528 Cannon Lane.
According Pastirik, Paula said that Larry kept downstairs in the townhouse and Carol was taken up- stairs. Williams Carol to the floor and pushed removed Williams, some of her clothing. and the defend- Rainge, twice, ant Carol and Adams her once. raped Wil- raped liams trousers, then removed from his gun turned floor, Carol face down on the put gun back head, her and shot her twice. was taken outside to Larry There, field. the ground and, Williams pushed Larry from a fired two shots into his standing position, head. *11 Williams handed the to who fired a shot gun Rainge, into then Larry’s back. Williams threw the into a gun Pastirik, creek. to Paula said that nearby According Wil- liams grabbed her and threatened to kill her and her if she said to the family anything police.
Also in the State’s behalf was Charles Mc- testifying of the where the mur- Craney, neighborhood resident ders In at 1533 occurred. lived May McCraney children; Hammond with and four the fam- Lane his wife had that ily lived at location for about two weeks before 11. May testified that he often saw the McCraney defendant, Williams, and Adams at Rainge, Grays’ residence, own, which was several doors from his away and was familiar McCraney with cars driven Wil- liams, and Adams. testified that in Rainge, McCraney morning hours of he was his early practicing guitar, that from time time he go to would to the car, window to check on his which was outside. parked At one point saw red morning McCraney Toyota drive A then in up. yellow Vega pulled next red and the two Toyota, driver, drivers talked. The red car’s whom McCraney Williams, Dennis got identified as out of his car threw a at a rock street light, breaking the bulb. The driver of the whom Vega, McCraney identi- fied as car, Willie then Rainge, got Williams’ and they drove off. later,
Sometime or a.m., around 3 3:15 McCraney heard the sound of a car stuck mud. McCraney’s building, on Hammond was Lane, a court- separated by yard it, from the which on building behind Cannon Lane. car Williams’ was stalled in the courtyard, and from his upstairs windows McCraney was able to see three or four persons exit from a beige which Toyota, Adams, identified as McCraney to belonging run from the to area, street where courtyard they helped free car. Williams’ They car to a pushed position front of the doorway townhouse at 1528 Cannon Lane, and six eight then rushed into the persons an hour building. later, About heard the McCraney sound of a gunshot. testified that he had not
McCraney been able see whether the defendant was among en- group Lane, tered the townhouse Cannon or any whether *12 those white. testified that he McCraney were persons in the earlier that neighborhood had seen the defendant and said night, p.m. midnight. McCraney between 11, later that on he saw Williams morning, Lane and his car the street on Hammond stop by light then entered the clear the broken Williams away glass. residence. Grays’ learned McCraney
The next morning, Friday, May The au- that a had been found field. body nearby notified, thorities were and a crowd gathered. McCraney Later, in the others. saw Williams with group, joking second was discovered townhouse at 1528 body Lane, Cannon recalled that he had seen McCraney car next to that called the building. McCraney Williams’ Cook sheriff’s County police department, reporting “the for the homicides were responsible present people” in thé of the red providing descriptions crowd and. n he had seen the beige Toyotas previous day.
David an with the Cook Capelli, investigator County sheriff’s was summoned to the crime police department, scene on of Lar- Friday, May following discovery afternoon re- Around one o’clock that ry’s body. Capelli ceived a radio substance McCra- dispatch relating As officers moved toward ney’s tip. group onlookers, males noticed two black break from Capelli the crowd and walk and his briskly away. Capelli partner men, their shoulders followed the two who looked over to- up; walking at the officers and were speeded they the two caught up ward a red The officers with Toyota. men, men at the car. One of the whom identified Capelli on the side Williams, as Dennis driver’s standing hand; man, the other and had a set of in his whom keys defendant, identified as the was on the passen- Capelli side. The defendant told the officers that he had ger’s to the car to his The defendant gone sunglasses. retrieve were under arrest. Williams placed In evidence, addition autoptic which we have summarized, the State already introduced at trial results of certain scientific tests performed physical evidence in this case. Bullets from the recovered bodies of the victims were Sherk, examined Walter a firearm evidence with the Illinois specialist of State Department *13 Police. Sherk testified that the bullets had been fired from the same gun. Sherk based that conclusion on a of the comparison bullets’ characteristics rifling and stri- ations, or scratches. Rifling characteristics and stria- tions, Sherk are to a explained, as it imparted projectile passes through gun barrel.
Dennis Williams’ car was for processed evidence on Sunday, May Podlecki, 1978. Michael in specialist forensic and serology with the microtomy Illinois Depart- Police, ment of State hairs found in the inte- compared rior of the car with head hair standards of the victims. Podlecki testified that a hair found the back seat of the car was consistent hair, with Larry’s and that hairs found in the trunk and rear floorboard of the car were consistent with Carol’s hair. Podlecki also oral, examined and rectal vaginal, swabs taken of Carol at the time of Seminal autopsy. fluid found was on the vaginal smear, and it was tested for the of certain anti- presence gens, indicators of blood secreted type by 80% of the population in their fluids. Both A bodily blood and types 0 were Podlecki present. said that the victim had 0 type blood but that it could not be determined she whether was a secretor. Tests on the saliva and blood defendant, Williams, and Rainge, Adams established that all four secretors, were that Williams and Adams had blood, A type and that the defendant and Rainge had type blood. Podlecki concluded that defendant could not be eliminated as a source of semen. Ac- cording to the is testimony, type blood found 47% the population.
At trial an defense. The defendant alibi presented 1978 he family defendant testified and his May lived on the north side of and that he was em- Chicago car in Park Forest South. The defend- at a wash ployed ant said that he did a car. The defendant knew not own and, well, Williams and Adams less The defend- Rainge. that he never so- ant also knew but he said Grays, cialized at their home. The defendant testified that on 10, 1978, he left 6:45 and 7 p.m. work between with Chicago a ride to East his brother-in- got Heights Jones; law. He went to the home of James and Vanessa the defendant was married to Vanessa Jones’ sister. The house was a from Hammond Lane. Jones away block home, to drive the defendant and his family unable ride; so the then Dennis for a defendant asked Williams from Williams lived across the street the Joneses. for testified that he had known Williams sev- that he socialize, eral but did not years they had not asked Williams a ride. Williams previously 8:45 that it, to do left between 8:30 and agreed they *14 at stayed The defendant testified Williams evening. that in an hour. the defendant’s about apartment Chicago morning, May The defendant testified that on Friday at the car Following power he went to work wash. failure, the to leave. manager permitted the employees The defendant that he to his brother’s house said went in he was there he East and while Chicago Heights, in the heard that had discovered Cannon bodies been scene, the Lane The defendant went neighborhood. where he Dennis The defendant asked saw Williams. from he could his Wil- get sunglasses Williams whether defendant, to the who gave keys liams’ car. Williams and his car, it, got then over to the opened “trotted” defendant, enforce- to the a law sunglasses. According was, it officer then asked the defendant whose car ment over. The defendant and the defendant called Williams said that he and Williams were then arrested. his he was
The defendant testified that after arrest station in police taken to the Cook sheriff’s County Homewood, he and re- questioned eventually where leased. The that he returned to the police defendant said station the next called investigators when early morning, him Chicago at a relative’s home in East Heights asked him to come in for further There he questioning. saw Paula to an The defend- Gray talking investigator. ant testified that the door to the interview room was' that he Paula tell the of- closed but was able to overhear ficers that he had not been the commis- present during defendant, sion of crimes. the offi- According then $2,500 reward, cers told Paula about a and Paula “ ‘Yes, he there ... if I responded, going were am [sic] ” get reward.’ The defendant testified he was originally charged with these offenses in later he was from released and that he custody, was reindicted for the same in offenses December 1984. The defendant stated that he in lived East from 1979 until Chicago Heights 1984. The defendant insisted that he was at his home in when offenses were committed. He denied Chicago having crimes, the commission of the and he any part Williams, denied that he was with and Adams Rainge, late 10 and evening May early morning 11. May wife, Jimerson, The defendant’s his Nezzie sister- in-law, Jones, Vanessa various parts corroborated defendant’s Mrs. Jimerson testified that testimony. she, defendant, three May and their children living had been on the north side of Mrs. Jimer- Chicago. or son said that around 8 9 o’clock during evening 10, 1978, she her at the family were home of *15 sister, Jones, her Vanessa in East Ac- Chicago Heights. the fam- Jimerson, gave Mrs. Dennis Williams
cording arrived evening, they later that Chicago a ride to ily there for about stayed home around 9:30 or 10. Williams mid- he left that before hour, an and she believed half re- the defendant testified that Mrs. Jimerson night. morning. for the next home until he left work mained at not own a car at that the did family Mrs. Jimerson said had neighbors frequently one of their that time and that area. East Chicago Heights them rides to the given was Vanessa in the defendant’s behalf Also testifying Mrs. Jones testified wife. Jones, sister of defendant’s were 10, 1978, family defendant and his the that Jones, her husband was to>Mrs. According at her home. later that Chicago, the to drive Jimersons unable home. a ride family gave Dennis Williams evening the defendant finding The returned verdicts jury and Carol Lionberg of Larry of the murders guilty for hearing purposes then requested Schmal. The State sen should be whether the defendant determining to a right waived his to death. The defendant tenced trial conducted before hearing and the jury, that 9, 1985. The parties stipulated on December judge if the same would be of the trial witnesses the testimony The parties sentencing hearing. at called to testify or older 18 years that the defendant was also stipulated found The trial judge time of the offenses. at under the death penalty eligible the defendant was circumstance, section the multiple-murder aggravating Rev. Stat. (Ill. of 1961 of the Criminal Code 1(b)(3) 9— 38, par. 9-1(b)(3)). ch. sentencing hearing, second stage At would the trial witnesses stipulated parties again The State if called to testify. the same provide evidence. aggravating further any did not present in mitigation, witness then presented located in church Nelson, of a pastor Reverend Charles *16 East Pastor testified he Chicago Heights. Nelson had known the defendant and his for about 20 family and he said that years, defendant had done mainte- nance at the church, work without Pastor Nelson charge. said that he found the defendant to be reliable and trust- No further worthy. evidence in mitigation presented. Allowed an opportunity allocution after the parties’ arguments, defendant declared that he was innocent of the offenses and asserted that the trial had jury been prejudiced against him. The trial ruled that there judge were no mitigating circumstances sufficient to preclude imposition of the death penalty sentenced the defendant to death.
The defendant first contends that his trial counsel was incompetent for to failing Paula impeach more Gray and for extensively failing to offer her prior inconsistent as testimony substantive evidence, as counsel could have done under section 115—10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. 38, Stat. ch. par. 10.1). defendant makes similar contentions 115— with respect Charles McCraney’s testimony, asserting that counsel should have impeached with sev McCraney eral inconsistent statements, and that he should also have used them substantively.
We consider first Paula Gray’s testimony. On four earlier occasions Paula had given testimony inconsistent with the she gave at the defendant’s trial. Those in proceedings which Paula made inconsistent statements were a hearing, held in preliminary June 1978; a on the hearing motion to her suppress inculpa- tory statements, 1978; trial, October her own also in 1978; October and the capital sentencing hearing co- defendants Williams and Rainge, 1979. On January each of those occasions Paula testified that she knew nothing about offenses this case. She denied hav- ing any part commission of crimes, denied of Wil- about the involvement
having any knowledge defendant, and asserted liams, Adams, and the Rainge, also de- the four others were innocent. She that she and herself clared that her statements original inculpating con- were “lies” that the authorities had and the others trial, her to tell. At the defendant’s cocted and forced Paula with only defense counsel attempted impeach from the June 1978 On preliminary hearing. material remem- cross-examination, Paula that she did not replied she made at the preliminary a number of statements ber that she had not seen statements hearing, including had made police white any persons *17 lie, her tell that her testimony grand jury not hear a noise after lie, 1978 was a that she did left, not Adams and that she did know anything. our assessment standard applicable governing v. in Strickland Wash is set out performance
counsel’s ington (1984), 668, 674, L. Ed. 2d 104 S. Ct. 466 U.S. 80 Albanese People 504, 2052; 104 Ill. 2d 526- see the Strickland Illinois). standard for use in 27 (adopting Strickland In explained: Court assist-
“A
defendant’s claim that counsel’s
convicted
of a convic-
require
ance was so defective as to
reversal
First,
components.
sentence has
tion or death
two
was de-
performance
defendant must show that counsel’s
that counsel made errors
requires showing
ficient. This
the ‘coun-
functioning
that counsel was not
as
so serious
Amendment.
the defendant
the Sixth
guaranteed
sel’
Second,
must
that
the deficient per-
the defendant
show
requires showing
defense. This
formance
prejudiced
deprive the
errors were so serious as to
that counsel’s
trial,
whose result
is reliable.
a fair
a trial
defendant of
it cannot be
showings,
makes both
Unless
from a
sentence resulted
conviction or death
said that the
renders
that
adversary process
in the
breakdown
L. Ed.
With respect performance prong trial test, it must be noted that in matters of strategy, “strategic thorough investigation choices made after law and facts relevant to are plausible options virtually choices made after less unchallengeable; strategic than to are reasonable complete investigation precisely the extent reasonable professional judgments sup- Strickland, the limitations on port investigation.” 690-91, U.S. at L. 695,104 Ed. 2d at S. Ct. at 2066. In case, this defense counsel that Paula was aware had testified at a in a number earlier proceedings manner inconsistent with her testimony present Nonetheless, trial. counsel to chose attempt impeach Paula with her from only the June 1978 pre- cross-examination, On liminary hearing. Paula replied that she could not making remember those statements. Counsel not did make further any efforts impeach witness, nor did counsel introduce further evidence showing the statements had in fact been made. The value of the potentially material must impeaching be placed earlier, In her perspective. inconsistent tes- Paula did not timony the defendant while in- exculpate culpating others. At no time in the four earlier proceed- did Paula ings declare that the defendant was innocent while others were or guilty, even indicate that she knew *18 Rather, about the offenses. in her anything earlier testi- Paula mony simply maintained that she knew nothing case, she, about offenses in this that Williams, Adams, Rainge, defendant in this case were in- nocent, and that her original statements both inculpating herself and the four others were “lies.” Efforts to im- peach Paula with the full of her range prior testimony could well have invited the to jury conclude that her tes- in timony this case was believable because of precisely the unbelievable character of her earlier assertions she,
she knew about the crimes and that Wil- nothing liams, Adams, in this case and the defendant Rainge, Paula, were all innocent of the Not had charges. only there Williams, convicted, and Adams been but Rainge, was no of how Paula could know that explanation others were innocent if she herself knew about nothing could well have concluded that fur- offenses. Counsel added ther Paula would not have attempts impeach to whatever had been done damage already significantly to the State’s case. we do not that counsel was deficient believe
Similarly, to make use of of Paula’s any substantive failing statements, inconsistent as counsel could have done prior 115—10.1 of the Code of Criminal Proce under section 38, 1985, 10.1). dure of 1963 Rev. Stat. ch. (Ill. par. 115— nothing Paula’s assertions that she knew about prior she, Williams, Adams, and the Rainge, crimes and that of the offenses defendant this case were innocent not benefit to the provided any greater would have than as impeachment. defendant as evidence substantive a claim ineffective assistance of alleging To prevail counsel, a defendant must establish he was preju- errors. that trial Assuming diced as a result of counsel’s counsel deficient for Paula failing impeach Gray more and to offer her inconsistent prior fully evidence, as we do not believe that substantive respect prejudice defendant was With prejudiced. standard, of the ineffective-assistance court prong Strickland said:
“The
must show that
there is a reasonable
errors,
that,
unprofessional
counsel’s
probability
but for
A
have
different.
proceeding
the result of the
would
been
is a
sufficient to under-
probability
probability
reasonable
(Strickland,
466 U.S. at
mine confidence
the outcome.”
2068.)
L.
The defendant makes the related contention that counsel was ineffective for failing to introduce evidence of Paula’s earlier claims regarding police coercion. In her earlier she testimony, had said that the authorities her, hit her, threatened and made her tell lies. de- Again, fense counsel could have simply believed an attempt to obtain a recitation of the witness’ prior testimony that regard would not have been worth the inquiry, open- ing the door to extensive police testimony regarding their treatment of Paula and the circumstances of her arrest, including her mother’s advice to her to tell the truth.
The defendant also argues that trial counsel was inef- fective for failing Charles impeach with McCraney several inconsistent statements he had made in an ear- lier trial from arising offenses, these and for failing offer the earlier as substantive evidence here. that,he trial,
At the defendant’s testified McCraney saw the defendant with Rainge several others in the sometime neighborhood between 10 p.m. midnight testi- McCraney The defendant claims that 10. Williams, trial fied during September at he not see the defendant and Adams that did Rainge, *20 10-11. Asked on cross-ex- on the night May anytime at the earlier trial whether he saw “anyone amination in front of sitting other than these three defendants [his] “To house,” recognize be able McCraney replied, It is not them, no, there were other there.” people but however, what time per- at all clear from the testimony, Earlier, the cross-examiner had iod is discussed. being 2:30 and the around period about inquired specifically as testimony indicating 2:45. do not the interpret We the defendant in the vicinity did not see McCraney 10. May at the indicated, testified McCraney As we have was in the neighbor- defendant’s trial the defendant other on May and several Rainge persons hood with out that at The defendant midnight. points before that he had 1978 trial testified McCraney September in the area that but that he did night seen car Rainge’s around or 2:45 on the morning not see until 2:30 Rainge that as a material inconsis- do not view 11. We in the neighborhood, presence defendant’s tency. at this trial. was significant and not Rainge’s, that he trial testified McCraney At the defendant’s Lane enter the Cannon town- to eight persons saw six to see whether he had not been able house and that The defendant argues among group. defendant was at the testimony Sep- that McCraney gave contradictory that occasion stated McCraney 1978 trial. On tember knew, that he three of the six to sight, eight persons by townhouse, and he the three who entered the identified Williams, he as the defendants in that recognized case — find no and Adams. We the tes- Rainge, inconsistency was not also asked timony. McCraney at the earlier pro- he ceeding whether was able to any persons, identify trial, other than the those who among defendants at that townhouse, entered the and therefore his failure to state on that occasion that he not tell this could whether defendant was is not among group meaningful. testified in this case that he
McCraney established time of several the events on the basis of two clocks trial, however, his home. At the Mc- September gave that he not Craney indicating did have Williams, clocks. Asked whether next any he saw Rainge, Adams “about 2:47 or so? Two to three minutes said. 2:50?” didn’t you McCraney replied, “We have a clock. That’s close.”
Although there is a variance in the we do testimony, not believe that it is a significant one. examined Having the prior inconsistent statements raised defend- ant, we conclude that trial counsel not ineffective either to failing impeach with earlier McCraney *21 inconsistent statements or to offer the earlier testimony as substantive evidence in this case.
The defendant next that he argues was denied a fair trial by State’s presentation, through and testimony argument, of certain information regarding personal traits and characteristics of the two murder victims. Re lying primarily People Hope 265, 116 Ill. 2d the defendant contends that the information was irrele vant and inadmissible but was presented by prosecu tion as material evidence in the case. portions trial argument
challenged by below, defendant are set out in full. The defendant first of a comment made complains in his prosecutor statement. The opening prosecutor said: 11, 1978,
“On May young couple a who resided in the engaged south suburbs was Their be married. names were Larry Lionberg and Carol Schmal. were both They hard-working individuals.”
Later, father, life Lionberg’s questioning Larry witness, and death the following occurred: colloquy “Q. Lionberg, Mr. you are married?
A. Yes.
* * * Q. girl Do know a name you by the of Carol Schmal? Yes, A. I did.
Q. was her if relationship, any, your What between son and Carol? girlfriend, making
A. That was his and they were first, plans, get which was kind of secret at married the next month.
* * * Q. Mr. Lionberg, May before 11th of when was prior you the last time to that time that had seen your son? I him birthday,
A. saw on his which was the 16th. Q. 16th, April you birthday, On when saw him on his was he alive well?
A. He was.
Q. After 11th of where was the next time you your saw son? morgue. A. I saw him at the
* * * Q. Lionberg, Mr. I have to show [you] what has been marked Exhibit previously People’s No. for identifica- you photograph, tion. Would look at that sir?
A. Yes. Q. recognize Do who you people depicted are that photograph? Carol, Larry birthday,
A. That is is his we party my daughter’s had little at house.” The defendant similarly believes that inadmissible evi- dence was presented during prosecutor’s questioning *22 witness, Fisher, of another “life who Lynn and death” was Carol Schmal’s sister:
“Q. Ma’am, ofMay attention directing your you did name of Carol young know a Schmal? lady by
A. Yes.
Q. you And how did know her?
A. sister. My
Q. your younger Was she older or sister?
MyA. sister. younger
* * * Q. Now, 1978, ma’am, you did know a fel- May low the name of Larry Lionberg?
A. Yes.
Q. long you Larry? And how had known A. Six months.
Q. relationship And what was the- Larry between Carol?
A. My sister and had Larry recently engaged been married, get so he going part was to be of our family. * * * ***Q. I now show you what has been marked Peo- ple’s identification, Exhibit No. 1 for you recognize do who is depicted in that photograph?
A. Yes.
Q. Who are those people MyA. sister Larry. It was Larry’s birthday party or gathering.
* * * Q. When was the last time May before 11th of 1978 you your saw sister? A. I would see her it regularly, so was a matter of a days. couple bit, She had helped organized me a little my boy’s little birthday party May which was I 11th. So was waiting fact, for her to up, show as a matter of with things some for my boy[’]s birthday I party. regu- saw her larly every couple days at least.
Q. Did she up your show son’s birthday, May 11th? No, strange,
A. it so is my boy’s godmother, she why party; wasn’t she at his little it was really strange.
Q. After 11th of [*] * * when was the next time you saw Carol? she was Day
A. Mother’s when On waked.” *23 elicited by of complains The defendant also regarding officer an investigating the from prosecutor Larry of photograph of the identifying the acquisition and Carol: Ar- residence at 348
“Q. that you go Did over [to] guella Drive? go to that residence. my partner did Myself
A. Q. anyone talk to there? you And did asked him George Mr. Schmal. We talked to a A. We He fact, yes, a Schmal. said was, in related to Carol if he ***. daughter his that was conversation, re- you did of that Q. And as a result from him? anything ceive Yes, we did.
A.
Q. was that? What Larry Lion- Schmal and A. It a Carol picture was party.” taken at a berg together, of certain comments the complains Finally, in re- closing argument in the prosecutor made by said, closing: in The prosecutor argument. buttal showed case, gentlemen, in this ladies “The evidence couple portrayed the early May, young you that evidence, is a received now Exhibit No. People’s Schmal. Lionberg and Carol Larry the name of couple by 1978, they early May showed evidence [in] working at married, that Carol was to be planning were Center, working Health Park Mental Tinley the nights.” said: the prosecutor
In rebuttal argument, married, to about be young couple, a you imagine “Can stay- man to be gun, of a brought by point being You have downstairs, going upstairs. girl to be ing robbery.” subject of an armed just been identifying photo- further *24 tim survived wife and children. At young was a three was the trial, the victim’s widow asked about specifically of the on the her was composition family day husband Moreover, killed. the “life and death” used photograph in the that case murder with wife depicted victim his of children; and two their the of presence the wife and children in the was picture the of a subject question by the to widow, the also prosecutor presence their was on by remarked another witness was asked to de who scribe the Over photograph. the defendant’s objection, the same to the room at close photograph jury went the of evidence. the effect of the evi Discussing prejudicial dence, we stated:
“The evidence concerning the decedent’s was family brought not to the jury’s incidentally, attention it rather was in of presented questions a series statements and in such a method as to the to permit jury believe it material. v. (People (1964), Bernette 30 Ill. 2d 371.) any If doubt existed as to its it was materiality, removed when defense counsel’s objections were overruled. In overrul ing objections prejudicial the effect was amplified. People Faysom (1985), See App. 131 Ill. 3d 522.” Hope, (Emphasis original.) in 116 2d at Ill. 278.
The instant case is different from in Hope im- several Here, defense portant respects. counsel made objec- no tion trial to of or any argument at evidence now Thus, of. this Hope, unlike in case there complained was to through no an adverse jury, suggestion on a ruling argument, to the evidence or objection defense in the consideration legitimate information was fact innocence. guilt determination of the defendant’s or Also, counsel did not raise any objection defense trial Thus, proce motion. counsel’s defendant’s post-trial of re for preserve dural defaults have failed purposes to the or And argument testimony. view any objections here, claim we do not believe defendant’s contrary the information was error plain presentation cognizable notwith appeal and therefore matter objection. (See the lack of standing any contemporaneous case, in this Ill. 2d R. At oral 615(a).) argument contention that trial counsel defendant made further for re the issue failing preserve ineffective that addi The not see fit to include view. defendant did court, he filed this how argument tional the briefs Village has been ever, and therefore it waived. See Insurance Co. Argonaut Crainville v. 81 Ill. 2d 399, 405; Ill. 2d Rules 341(e)(7), 612(i). now great complained bulk information admissible, or elicited
either was relevant and else was incidental, man- nonprejudicial from the witnesses in an *25 to engaged The that the victims were be testimony ner. their relevant, a reason for pres- married was providing the early ence at service station Homewood together their The photograph before abduction. morning birthday at recent together party of the victims Larry’s investigat- father had to given was the one that Carol’s search for of extensive officers at the the ing beginning Carol’s ab- regarding The missing couple. on the date of party sence from her nephew’s birthday it 11, relevant, tended their was disappearance, May that time. the abduction occurred before to show that her reference to testi- Day Mrs. Fisher’s Mother’s time she saw her sister was an the next mony relating comment Finally, prosecutor’s incidental remark.
43 un- hardworking, though perhaps were that the victims can the defendant that not so prejudicial was necessary, a fair trial. denied deemed to have been be case, con in this we record review of the From our of information complained now much of the clude that remaining portions The and admissible. was relevant volunteered or else were only incidentally, were elicited event, pre the material In any the witnesses. by of six of ar days in the course sporadically sented only not discern here a calcu do We testimony. gument present effort prosecution lated on the defend bearing as material evidence information 94 Ill. v. Free People (1983), or innocence. See ant’s guilt 378, 413-15. 2d that he was not proved next argues a reasonable murders beyond of the victims*
guilty *26 44 whether, is
question after viewing the evidence in the any most light favorable to the prosecution, rational trier of fact could have found essential elements of *** the crime a beyond reasonable doubt.’ ‘[0]nce has been found of the crime guilty charged, the factfinder’s role as weigher of the evidence is pre served through legal conclusion that re upon judicial view all the evidence is to be considered in the light most favorable the prosecution.’ (Emphasis origi Collins, Jackson v. Vir nal.)” 106 Ill. at 261, 2d quoting ginia (1979), 307, 319, 443 U.S. 560, 573, L. Ed. 2d 2781, 99 S. Ct. 2789. those
Applying us, principles case before we conclude that there was sufficient evidence to support the defendant’s convictions. Although testimony be viewed with suspicion (People v. an is to accomplice Sanchez v. People Baynes (1986), 238, 261; Ill. 2d (1981), 225, 88 Ill. 2d it 232), sufficient, be even in may the absence of corroboration, to sustain a conviction (People v. Wilson 66 Ill. 2d In (1977), 349). this case, Paula a detailed account Gray provided of the mur ders and of her own role in the commission Moreover, crimes. Paula’s trial found testimony corrobo narrative, ration in the here, in evidence that she gave the authorities shortly after the murders occurred. As a statement, consistent prior her earlier account of the crimes tended inferences, to rebut suggested defense, that Paula had a motive to in this testify falsely case and that her here was a recent fabrica testimony (See People Shum tion. 317, 340-41; 117 Ill. 2d (1987), People v. Emerson 2d 500-01.) 97 Ill. was made of her jury testimony. aware of the frailties Receiving accomplice testi standard instruction a witness mony, jurors told, says “When were [she] a crime with the was involved in the commission is defendant, subject witness of that *27 caution. with by you considered be and should suspicion other evi- of the light examined carefully It should be Instruc- Jury Pattern Illinois (See in the case.” dence the jury 1981).) Finally, ed. Criminal, (2d No. 3.17 tions, of impeachment, aware, attempted the through also was state- inconsistent Paula’s prior of number significant knowledge any having denied ments, in which she had the offenses. about indepen not able to provide the State was
Although the of Paula’s identification dent corroboration was offenses, the State as a participant defendant of her aspects other many important to corroborate able where discovered were The victims’ bodies testimony. in his McCraney, had killed. Charles Paula said been they the town around vacant the activity described testimony, McCra later discovered. was body house where Carol’s of Paula’s account confirmation ney’s testimony provided iden murder, and her and location of Carol’s of the time the and as two of offend Rainge tification of Williams the Moreover, scientific evidence established ers. had fired from killed the victims been shots that testi forensic Paula testified. Other same as weapon, consist account. Hairs further Paula’s supported mony car, were found Williams’ ent with the victims’ hair offenders’ blood four male indicative of the antigens vic rape smear of the in the vaginal were types present at the crime scene conduct the defendant’s Finally, tim. of the vic 12, following discovery May on Friday, circumstance corroborat was an additional tims’ bodies The investigat inculpatory testimony. Gray’s Paula ing to show that tended description officer’s ing the area when law enforce chose to depart defendant the crowd. Evi their sweep through ment officers began to show tending a circumstance dence of be flight may 99 Ill. 2d (1984), v. Terrell People of guilt. consciousness 558, Ill. 2d 561. (1972), v. Harris 427, 433; People The jury entitled, course, to credit Paula’s tes and to timony disregard evidence, defendant’s alibi even though the alibi was supported by greater num v. People Berland ber witnesses. (See 74 Ill. (1978), v. People Jackson (1973), 286, 2d 307; 54 Ill. 2d People Catlett 149; Also, Ill. 2d 64.) defendant’s alibi was contradicted in part Charles Mc- who Craney, testified that he saw the vicinity Grays’ residence on 10 sometime be tween 10 p.m. which, midnight, according defendant’s evidence,, was after he his had al family left ready East Chicago for the Heights return trip their home. Chicago *28 sum,
In we conclude that the evidence in this case is sufficient to sustain the convictions, defendant’s are affirmed. The they defendant raises no further chal- lenges his convictions or the trial and we proceedings, now turn to the questions raised the defendant con- by cerning his death sentence and the sentencing hearing.
The defendant raises a number of contentions con- his death cerning First, sentence. he makes two related claims: trial counsel rendered ineffective assistance at the initial stage of the penalty hearing by failing to present and argue evidence that would have the negated requisite mental state for under the eligibility multiple- murder aggravating Second, circumstance. the defend- ant contends the evidence in this actually presented case failed to establish the requisite mental state.
The defendant’s for the death eligibility was penalty based on the aggravating circumstance, multiple-murder found in 1(b)(3) section of Criminal Code of 1961. 9— (Ill. 1977, 38, At par. 1(b)(3).) Rev. ch. both the Stat. 9— time the offenses and the of time of the commission trial, the statute provided: defendant’s convicted of murdering has been two defendant “[T]he (a) subsection of this Section
or under or more individuals any under law of the or of any United States state which substantially (a) is similar to Subsection of this Section regardless of whether the deaths occurred as the result of the same act or of several related or unrelated acts so long as the deaths were the result of either intent to an kill more than one person separate or of premeditated 1977, 38, (Ill. 1(b)(3).) acts.” Rev. Stat. ch. par. 9— has since provision been amended the deletion of the phrase “separate premeditated acts” and the substi tution of the words acts “separate which defendant knew cause would death or create a strong probability death or great harm bodily to the murdered individual or another.” Ill. 38, See Rev. Stat. ch. par. l(b)(3). 9—
The defendant appears interpret the multiple-mur der circumstance as of the intentional or requiring proof knowing commission of the murders. He relies on People v. Davis 95 Ill. 2d of that support theory. We do not construe Davis as limiting mental states allowable under the provision to intent or knowledge. We believe that under certain circumstances less culpable states, mental such indifference, as reckless may suffice. In Davis the court construed the language section 1(b)(3) concerning premeditation. into Inquiring 9— legislative history provision, court stated that: language designed] to insure that a
“[The would not suffer the penalty death multiple where a mur- der is an accidental consequence a single act. In other words, physical act leading to a murder multiple must *29 be accompanied aby culpable mental state as to each murder. A defendant may not receive the death penalty related, multiple murders where per- more than one son Thus, was accidentally killed. the intent of the amendment was to address the problem of multiple mur- ders committed at the same time. case,
In the instant defendant did not receive the penalty death because of his participation a multiple- murder situation. He was convicted of separate three and unrelated murders. In the Cash case, murder he was con- jury
victed after the had solely been instructed an in case, tent-to-kill In the theory. jury Oertel was in structed to find defendant if he a guilty (or person for whom he was kill responsible) great intended to or do harm, bodily or knew his act would cause death or great bodily bar, harm. In the case at the jury was instructed as to each murder it is theory, upon therefore unclear theory they guilty. which found defendant hold in We this where, here, case that as is convicted of two or intentional or resulting acts, more murders from knowing penalty may properly imposed.” (Emphasis the death be (Davis, original.) 95 Ill. at 35-36.) 2d As Davis also noted, some mental state culpable is nec- But Davis not essary. did consider whether states mental different from intent or would also knowledge satisfy circumstance, multiple-murder aggravating and we de- cline to as interpret opinion limiting of application section to the mental states of intent 1(b)(3) 9— knowledge.
A certain of degree culpable conduct is un- necessary, Constitution, der the Federal to warrant imposition Enmund v. Florida the death In penalty. 782, 1140, 3368,
U.S. 73 L. Ed. 2d 102 S. Ct. the Court ruled that not death could be on a penalty imposed defendant who was of two murders as an guilty felony kill, and who “does not himself accomplice attempt kill, or intend that take or that lethal killing place (Enmund, force will be 458 U.S. at employed.” L. Ed. 2d at 102 S. Ct. at The defendant 3376.) Enmund was the driver of a car; his codefend- getaway ants had to a house to commit an armed gone robbery, shot and killed the victims after fired on they being Enmund’s one of the requirement residents. did not Rather, element create new murder. it is a capital principle proportionality, barring imposition fall death on the class of murderers who within penalty
49
376, 385,
Cabana
Bullock
474 U.S.
(1986),
its
scope.
704, 716, 106
689,
88 L.
S. Ct.
696.
Ed. 2d
In Tison v. Arizona
137,
L. Ed.
481 U.S.
considered
127,
1676,
2d
107 S. Ct.
Court
Supreme
whether Enmund
death pen-
of the
precluded imposition
the mur-
on defendants who had been convicted of
alty
The
der of four
under an
persons
accountability theory.
in that case had taken
in an armed
petitioners
part
their own
with two other
When
prison escape
persons.
disabled,
a
vehicle became
down
group flagged
pass-
car,
Later,
contained a
of four.
ing
which
while
family
Tison
their code-
were
petitioners
occupied nearby,
fendants shot and killed the car’s
In holding
occupants.
that the
could be sentenced to death for their
petitioners
conduct,
the Court held that “the reckless
for
disregard
human life
in criminal
implicit
knowingly engaging
activities known to
a
risk of death
carry
grave
repre-
state,
sents a
mental
highly culpable
a mental state that
be taken into account
may
making
sentenc-
capital
ing judgment
natural,
when that conduct causes
its
inevitable,
also not
(Tison,
though
lethal
result.”
157-58,
U.S. at
The circumstance under which the aggravating defendant was found to eligible be the death penalty does not require case, more. In the instant there was sufficient evidence defendant, that participant these offenses, brutal was acting with reckless indiffer- ence to human life.
In this regard also argues trial counsel was ineffective for failing present additional evidence and argument on the issue of the defendant’s
mental state and from the possible absence scene Paula second murder. defendant contends that Gray had made indicating statements defendant was not Rainge when Williams shot killed present Lionberg. The defendant to Paula’s Larry points grand *31 from 1978. On that occasion Paula jury testimony she, Williams, said that Rainge took Larry creek, shot, he and she not where was did specifically Adams, defendant, mention that the or was present the where occurred. the defendant ar- shooting Similarly, gues that counsel should have a statement presented who, an in recounting officer Paula’s 1978 grand jury to the 1984 did not that Paula testimony grand jury, say had said that the defendant was at the creek when was killed. Paula did not the Larry testify grand before in 1984. jury the grand
Paula’s before jury does that the indicate defendant was when present shot. Asked whether said was Williams Larry anything following to her Paula “He told shooting, replied, me not tell the If I do he come police. going is [to] kill back and me and and then he my family got car and took it is not home.” Although [the defendant] clear from grand where the jury testimony exactly shot, defendant was when was we do not believe Larry that trial counsel was for failing present ineffective that material at the defendant’s sentencing hearing. The trial the sentencing judge, evidence before at that having proceeding by stipula- been introduced tion, and that evidence indicated defendant mur- was downstairs the townhouse when Carol was dered, and that the defendant was when present Larry grand was murdered. Even Paula’s jury testimony, which the defendant contends should have intro- been use, or indicates duced its substantive impeaching the sec- at the scene when that the defendant was still ond murder occurred. is an exces also that death argues in his case. In of that contention support
sive sentence
not have a
crimi
prior
defendant notes
he did
record,
nal
that he was not
the murder
present during
Carol,
and that he
not
shoot either mur
did
himself
der victim. The defendant mentions also that he is
he asserts that
the miti
married and has
family,
evidence
at trial
indicates that he is
gating
introduced
who has
member
well-respected
community
volunteer work at a church for a
performed
period
The defendant notes that
has
years.
legislature
out as
circumstance's
singled
statutory mitigating
both
the lack of
criminal
prior
activity and absence from the
scene
the commission of the act
during
producing
death.
Ill.
(See
Rev. Stat.
ch.
pars.
1(c)(1),
9—
(c)(5).) The defendant concludes that
statutory
*32
circumstances
in
case “do
nonstatutory mitigating
his
not
a man with a
heart
must
bespeak
malignant
who
be
eliminated from
v.
permanently
society.” People
564, 590;
Carlson
79 Ill. 2d
see
People
also
The defendant in Carlson was sentenced to death for officer, the murder of a police which occurred as the defendant was to avoid arrest for the murder attempting of his former wife, an offense the defendant had commit- ted earlier that In that death day. determining pen- sentence, an the court noted that the alty was excessive defendant, forties, a man in his had no record early prior conduct, of criminal had in ill health for some time been murders, his preceding had been over upset former wife’s to The court also noted plans remarry. defendant,
that
at
the time of the
officer’s
police
murder, efforts to
a sum of
making
relay
money
his son to
for the child’s
The court be
provide
support.
lieved that
the defendant
“would in all
be
probability
a life
his unfor
leading
to our
had not
acceptable
society
tunate
affair
marital
this
triggered
tragic
sequence
Carlson,
events.”
The defendant the murder of two This court found the teen-aged boys. sentence excessive, be on evidence that relying defendant had “no criminal of a history, personality (Gleckler, doormat, and a with alcohol.” 82 Ill. problem 171.) 2d at form of pro limited Applying comparative case, in review to the death sentence that portionality the Gleckler court also that con believed defendant’s duct was less than that of a codefendant who culpable offenses, had received a term for the prison same that the defendant’s rehabilitative not de potential was than worse his codefendant’s. monstrably Buggs In the death was found an exces penalty be to. sive for a man convicted of the murder of punishment child, his wife and who in a house fire set perished the defendant after an his The argument with wife. in that forties, case was his and he had a record service and no lengthy military prior history serious criminal conduct. The defendant had a drinking and he set the fatal fire after his problem, arguing with wife over her that court believed supposed infidelity. case, death was an con inappropriate punishment Carlson, cluding, as the defendant “would pre be a life to our but sumably leading acceptable society” for “this marital and a which disharmony dispute trig Buggs, this of events.” Ill. 2d gered tragic sequence *33 at 295. of the death as a consti-
Imposition penalty requires, matter, tutional an individualized of consideration both
53 of his offense. and the circumstances the offender’s character (Ed v. Oklahoma 110- dings (1982), U.S. The 1, 8-9, 869, 874-75.) ra 12, 71 L. Ed. 2d 102 S. Ct. Gleckler, and Carlson was Buggs, common to tionale in those cases would of the death imposition penalty purposes not have served the deterrent or retributive Georgia Gregg (See capital punishment. 859, 880, 49 L. 96 S. Ct. 153, 183, U.S. Ed. 2d circumstances suffi (plurality opinion).) special in penalty cient the death preclude imposition Gleckler, in and Carlson are not this Buggs, present in case, Here, took the bru part however. defendant tal series of committed Carol. She was rapes against shot was standing guard and killed while defendant over on the first floor of the vacant townhouse. Larry Later, defendant, Williams, and Rainge, accompanied field, led to a he Gray, nearby Paula where was by Larry in shot Williams and defendant Rainge. Although Carlson, Buggs case, this like the had defendants conduct, no criminal it cannot record of serious be prior this mental or emo great said that defendant was offenses, tional distress at the time of the or that his conduct was some external cause —miti precipitated by Buggs and Carlson. gating circumstances both present The trial was aware of the defendant’s record and judge character and his role in the offenses here. We see no sentence judge’s reason to disturb the trial decision to death. The defendant next contends that his death sentence is to the sentence available for a code- disproportionate fendant, Willie was sentenced to natural Rainge. Rainge life after in his case sentencing jury imprisonment to conclude that he should be unanimously was unable sentenced to death. Although Rainge eventually trial, death granted original new his “acquittal” would penalty proceeding preclude imposition *34 54
death sentence
his
upon
reconviction, as the defendant
notes. See Arizona v. Rumsey (1984),
203,
467 U.S.
81
v.
164,
2305;
L. Ed. 2d
Bullington Missouri
104 S. Ct.
(1981),
430,
270,
451 U.S.
68 L. Ed. 2d
1852;
101 S. Ct.
v.
People
Davis
(1986),
As have the State sought death against Rainge, who chose be sentenced penalty by In jury. stage the"first proceeding sentencing found for the death jury Rainge eligible penalty; second stage was unable to jury conclude unani there were no circumstances suf mously mitigating ficient preclude imposition the death penalty. (See People Rainge 112 Ill. 396, 3d App. 408.) defendant contends that conduct more Rainge’s cul than his pable Rainge was when Williams present own— Carol, shot himself shot after Rainge Wil Larry, liams had done so. We have rejected defend already ant’s argument death is an excessive disposition this case. That some or all of the of Rainge’s members sentencing chose not to the death jury impose penalty not, view, case does in our render the defend- Rainge’s ant’s own sentence disproportionate. matter,
As a final the defendant raises a number to the of our death challenges State’s constitutionality statute, section 9—1 of the Criminal Code of penalty The defend 1). Rev. Stat. ch. (Ill. par. 9— ant that several features of the argues capital sentencing scheme eighth violate amendment’s proscription cruel and unusual as made punishment, applicable Const., States the fourteenth amendment. (U.S. *35 VIII, XIV; amends. see Louisiana ex rel. Francis v. Re 459, 422, sweber 329 U.S. 91 L. Ed. 67 S. (1947), Ct. The same contentions 374.) have been rejected repeat court, this edly by they require only brief discussion here.
The statute is not invalid for the discretion afforded whether to prosecutor deciding seek death in a case. v. penalty particular Lewis 88 (People (1981), 129, 146; Ill. 2d ex People rel. v. Cousins Carey (1979), 531, 77 Ill. 2d 534-43.) As construed our decisions the role of regarding death sympathy penalty pro the statute ceedings, does not restrict a impermissibly defendant’s capital presentation mitigating evidence. (People 266, 291-93; v. Crews 122 Ill. 2d (1988), People 364, v. 121 Ill. Orange (1988), 391.) 2d The duplication of the statutory circumstances as criteria aggravating for use in a term of imposing natural life imprisonment does not mean that the capital sentencing scheme fails to narrow to adequately, unique cognizable group, those for the death v. White eligible penalty. (People 425, head 116 Ill. 2d And we re (1987), 463-65.) have the contention that jected sentencing scheme is un constitutional because those defendants who must be tried certain forms of special with communicative as Whitehead, not may sistance be sentenced death. 116 Ill. 2d at 463-65.
56 features also that various argues
The defendant combination, invite its scheme, sentencing capitál We have previously capricious imposition. arbitrary the statute is not unconstitutional held, however, of comparative it not though provide system even does v. King (1986), (People 109 Ill. 2d review proportionality v. 463, 499; Stewart People 104 Ill. 2d 551; (1984), 514, v. People 437, 502-04; v. Kubat People Ill. 2d 94 (1983), Brownell not 508, 541-44), require Ill. 2d does 79 (1980), memorial a written provide sentencing authority 550-51; Stewart, 104 findings (King, Ill. 2d at of its v. Gaines 497; Kubat, People 504; 94 Ill. 2d at Ill. 2d at 383; Brownell, 79 Ill. 2d at 541- 342, 88 Ill. 2d (1981), to provide pretrial 44), require prosecution does not it intends to use circumstances notice of the aggravating hearing (Gaines, 369), 88 Ill. 2d at at the sentencing at persuasion the State a burden does not impose v. Eddmonds hearing (People stage the second v. Free People 68; 94 Ill. 2d (1983), Ill. 2d (1984), the sentencing authority and does not 378, 421), require that death is ap determination to make an additional v. Whitehead (People 116 Ill. (1987), sentence propriate People Morgan Ill. 2d 462-63; 2d at decisions, reject we In view of our 147). previous *36 of the capital those features defendant’s contention arbi render cumulatively process scheme sentencing and trary capricious. convictions stated, the defendant’s the reasons
For of this court affirmed. The clerk sentence are and death 17, setting Wednesday, May to enter an order is directed death, en of which the sentence 1989, as the date on is to carried of Cook be County, tered in the circuit court lethal by injection shall be executed out. 119—5 of the Code section by in the manner provided ch. Stat. (Ill. Rev. Procedure Criminal a certified send this court shall The clerk of 5). par. 119 — to the Director Cor- in this case of the mandate copy Center, of Stateville Correctional rections, to warden the defendant to the warden of the institution where and is confined.
Judgment affirmed. in the consideration took no part JUSTICE CALVO decision of this case. or CLARK, dissenting:
JUSTICE Since I the defendant’s convictions would reverse trial, I sentences and remand the case for a new dissent. claim that his attorney To evaluate defendant’s was we must review the evidence. This was incompetent, a close case. The State relied almost on the tes- entirely of Paula timony witness whose was— Gray, credibility it to put leaving Even aside mildly subject question. — evidence impeachment available to defense counsel he introduce, which chose not jury made was, aware of the facts. Paula her following Gray admission, own an She accomplice killings. testi- fied the defendant for the State’s against exchange not to her for murder. At a promise retry prior proceed- she had sworn under oath that she ing nothing knew the offenses. confronted by about When defense counsel statements, her inconsistent with she failed to prior deny them, or claiming essence that she could not explain recall the particular questions answers that defense counsel to her. put circumstances,
Under these her must be caution, viewed with because she was an ad great both mitted to the murders accomplice (see People Baynes 88 Ill. 2d she testified in ex 225) because for the State’s not to her on the change promise retry Indeed, most serious she could face. charge possibly we a witness has of reward hopes have held “where *37 from the his should not be ac prosecution, unless it carries it conviction cepted within an ‘absolute ” v. Ash 485, 493, of its truth.’ (People 102 Ill. 2d (1984), v. Williams quoting People 258, 65 Ill. 2d 267.) Nor State’s case much its very helped by only witness, other Charles important McCraney. McCraney Williams, established —at Dennis presence best —the Willie and Kenneth Adams at the scene of the Rainge, crime, but not the As for the defendant. blood type hair evidence, I think that even the sample majority would that its value is agree extremely slight. probative
The defendant testified in his own behalf and pro- required vided detailed evidence of an alibi. We are not this verdict reweigh jury’s evidence and overturn for failure to a rea- prove defendant guilty beyond But in the State’s given sonable doubt. weaknesses case, the of a alibi defense means presentation credible balanced, the evidence was and that there- closely trial, fore the asserted deficiencies defense counsel’s must examined performance, very carefully. be is
Given with Paula problems Gray’s credibility, there no really jury reasonable would probability have the defendant if had known: acquitted they oath,
(1) that Paula had testified under exon- Gray once, defendant, not in four erating just sepa- but (These rate over a months? hearings, period eight 1978, in June hearing suppres- were: preliminary sion her trial in October October hearing 1978, and her sentencing hearing January 1979.) that Paula retarded?
(2) Gray (“The was mentally record contains a on Paula from the Cook report Office of Education dated County Special September Quo: Intelligence 1969. This her Wechsler gives verbal, tient as 65 57 full. The (IQ) 57 performance, intellectual capac- states that Paula has ‘limited report ities in all really spheres function continues to [and] *38 inbe need of and to remain for EMH eligible class- room placement.’ (EMH is understood to an be abbre- viation for ‘Educable A simi- Mentally Handicapped’.) lar report record, dated June 12, 1974, shows IQan verbal, 69 67 and 64 performance, full, with continued EMH classification. These figures classify Paula as mentally retarded. (Stedman’s Medical Dic- tionary (5th unabr. law. ed. 1982).)” United States ex Director, ret. Gray Department Correc- tions (7th Cir. 1983), F.2d 588.)
(3) that they were entitled to consider her prior not as testimony only indicative of her but credibility, also as substantive evidence of the defendant’s inno- cence?
Given the closeness of the case and the lack of a credi- ble for explanation counsel’s failure to introduce this evi- dence, I would reverse because of counsel’s ineffectiveness.
The majority’s contrary conclusion is based reason ing which I find difficult to What, follow. is example, the basis for the majority’s assertion that “Paula’s prior *** assertions would not have provided any greater benefit to the defendant as substantive than evidence as impeach ment”? Ill. (127 2d at 34.) Had counsel invoked applica ble provisions of section 115—10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 115 — par. he 10.1) would have been able to have her prior testimony
read to the and to jury have the instructed that jury they could consider her prior as substantive evidence of the defendant’s innocence. The assertion that majority’s the failure to invoke section 115—10.1 made no difference makes mockery of 10.1, section since the majority 115— apparently believes that a jury cannot distinguish between impeachment and substantive evidence. Nor has the major ity explained what possible strategic benefit counsel could to make use of section failing to achieve sought by
have has situation, court appeEate In a siimlar 115—10.1. use incon recognize prior failure to held that counsel’s ren evidence statements as substantive sistent testimonial ineffective. constitutionaEy ders counsel’s representation 293. 149 Ill. 3d App. v. Wilson People was not that counsel majority I to with the agree Were the victim evi- ineffective, agree impact I also might not so prejudicial introduced prosecution dence of a fair trial. But given as to the defendant deprive case, defense counsel’s failure of the State’s weakness weakness, I cannot agree of this advantage to take fuE evidence was not of the victim impact that the introduction the prosecution harmful a reasonable doubt. Where beyond state- characteristics in his opening introduces the victim’s *39 of the same characteris- ment, elicits evidence deliberately to the same charac- witnesses, and refers again tics from say I not think we can teristics in do closing, “incidental,” “nonprejudi- or evidence was impact victim heinous, were not but they ciai.” These murders were The character of the victims. so by good made more the “hard- the murder of distinguish law does not between re- lazy. prosecutor’s and the murder working” to the jury have intended persuade marks could been only that it does. convic- I the defendant’s agree
But even were to affirm I not also affirmed, agree could tion should be is a non- The defendant death sentence. the defendant’s exact nature record. The no criminal prior with triggerman is the murders clouded his participation degree Moreover, testimony. the infirmities in Paula Gray’s has been sen- one of the triggermen the fact that given of death is dispro- life, the defendant’s sentence tenced have reversed I would therefore and excessive. portionate im- for the and remanded death sentence the defendant’s of natural life. of a sentence position notes The defendant sent room jury victims was of the murder graph its delib- jury began of evidence when the close after erations. ef previously prosecutorial This court has condemned forts information otherwise irrelevant about present as relationships crime traits or familial personal victim’s (See in a criminal v. People Hope material evidence case. Ill. v. 30 Ill. 265; People (1964), 2d Bernette (1986), 359; 2d 12 Ill. 2d In People 334.) Hope Dukes references, guilt made prosecutor repeated that the vic phase capital trial, evidence murder
Notes
notes the defendant In of this contention support doubt. came from an guilt evidence of his only direct asserts witness, Paula The defendant Gray. accomplice of Paula’s was no corroboration meaningful there he maintains that his evidence pro- alibi testimony, at the time a credible account of his whereabouts vided offenses. aside on review not be set A criminal conviction will or improbable unsatisfactory unless the evidence is so of the defendant’s doubt that there remains reasonable 261; 237, Ill. 2d Peo v. Collins guilt. (People (1985), 309, 315; People Ill. 2d (1982), v. Williams ple Ill. It is not our function 342.) 2d (1978), Vriner considering challenge a defendant when to retry 106 Ill. of his guilt. (Collins, evidence sufficiency Rather, determinations of the 261.) credibility 2d at to their witnesses, weight given testimony, be drawn from the evidence the reasonable inferences to be v. Brisbon the trier of fact. (People are responsibilities “ review, ‘the On relevant 360.) 106 Ill. 2d