People v. Johnson

(No. 63024. ILLINOIS,

THE THE PEOPLE OF STATE OF Appel- lee, v. JOHNSON, MILTON Appellant.

Opinion 21, 1987. Rehearing December filed 2, 1988. February denied SIMON, J., concurring dissenting part. part S. Schiedel, Defender, Gary M. Deputy Charles Defender, of the State of Office Assistant Rapaport, for Defender, appellant. Appellate Springfield, General, of Springfield F. Hartigan, Neil Attorney General, L. Rotert and Mark Stewart, Solicitor (Roma J. General, Fedinets, A. Attorneys Assistant Kenneth counsel), People. for Chicago, the court: the of opinion MORAN delivered JUSTICE Johnson, in the circuit indicted Defendant, Milton was four of murder and for four counts of Will County court 1(a)(1) violation of sections of murder in felony counts 9— of Code 1(a)(3), the Criminal of 1961 respectively, 9— (Ill. 38, Rev. ch. He 1(a)(1), (a)(3)). Stat. pars. 9 — was tried a on all by jury guilty eight and found counts. At a sentencing bifurcated as to separate hearing, which defendant waived his to a the trial court right jury, existed, found that the necessary aggravating factors there were mitigating no circumstances suffi to cient of death The preclude the imposition penalty. to thereupon sentenced defendant death each of the No felony-murder convictions. sentence was pro nounced as to the four murder convictions. Defendant’s post-trial denied, motion was and he brings direct ap peal this court (Ill. VI, Const. art. Ill. §4(b); 107 2d R. 603), alleging numerous errors at all stages of proceedings.

The evidence adduced at trial reveals that on August 20, 1983, four women were murdered in the “Greenware ceramic Mary” located on East shop, Cass Street Joliet, victims, Illinois. Three 29-year-old Pamela Ryan, Dunbar, 38-year-old Barbara 46-year-old Marilyn Baers, owner the ceramic shop, sustained multiple which stab wounds caused their death. The victim, fourth Anna 75, was Ryan, age stabbed and shot to death.

The first issue we address is whether defendant knowingly and waived his effectively during the guilt phase of trial.

The record reveals that on August defend- ant appeared for his without arraignment counsel. trial court indictment, furnished him with a copy which set forth the nature of charges. indictment, waived that he reading stating “familiar it.” At his the court then request, set new date for allow defendant addi- arraignment tional time in which secure counsel. private appeared defendant September

On counsel, his William Swano. Mr. Swano represented by indictment, and entered reading waived formal not to of the charges. defendant’s each plea guilty later, counsel two months Approximately for to because of defend- filed a motion leave withdraw the December During ant’s to his fees. inability pay legal 19, denied mo- the trial court hearing, initially that defendant’s to tion, inability compensate indicating their prior agreement Mr. Swano in accordance with to Mr. Swano permit an insufficient which upon basis However, personally then leave to withdraw. court, have his he wished to stating addressed the would not from the case he counsel “dismissed” because attorney an who legal representation by receive “true his isn’t for services.” being paid the court would Defendant further advised not to defender’s of- represented by public prefer be to appoint the court not fice, and specifically requested him represented the two assistant defenders who. public that he murder trial. Defendant indicated a previous than if the court appointed would “more satisfied” be office to public represent Andreano of the defender’s Mr. leave Mr. Swano to him. the court granted Accordingly, withdraw, represent Mr. Andreano to and appointed defendant. the trial 30, 1985, the date which upon September

On advised the proceed, orally was scheduled Mr. represented by he no to be longer court that wished assigned defender the assistant public Andreano and pro filed a se motion on October case, Mr. Orloff. He his the court “remove” 1985, in which he requested him “other counsel from present appoint and from outside Defender’s office outside of the Public in the motion that Defendant claimed County.” Will to review discovery him opportunities counsel denied matters, materials, refused certain to investigate failed to contact certain individuals whom he believed should be interviewed. motion,

During hearing on the defendant stated that he was unable to communicate with his attorneys, they were attempting “convict me more than the State is He right now.” further claimed that his at- refused to certain torneys interview individuals with whom the in connection the police spoke murders. When the court the inquired as to basis for defendant’s belief that these individuals gave statements the po- lice, he “It responded: it, comes around. You hear you check it out, I you find out. That’s all can tell you about it.” Defendant conceded no one ever informed him he individuals wished to have interviewed spoke with the police.

In response motion, defendant’s the State repre- sented to the that, his during murder previous trial, defendant also moved to dismiss his on trial, date of claiming he was unable to communicate with the appointed to attorneys him. Defend- represent ant did not dispute this representation.

At the conclusion of the hearing, court denied motion, finding that he failed to provide any basis upon which the court should appoint other counsel.

During another conducted hearing on the afternoon 1, 1985, of October defendant informed the court that he refused to Messrs. accept Andreano and Orloff as his at- he refused to torneys; himself; represent and that he in- tended to absent himself from proceedings. court advised defendant that he had a not to be present during trial, but that he would coun- require his sel to conduct the defense.

On October the date scheduled for selec- jury tion, defendant changed mind and appeared court. Since it unclear at that time whether he intended to pro se, or himself from the proceed- to absent proceed admonish- gave following the court ings, ments: Johnson, you previously had been Mr.

“THE COURT: counsel, privately cause retained this represented *** Swano, is Mr. that correct? case, this Original yes. counsel in MR. JOHNSON: that Mr. Okay, time THE COURT: charges you, you he advised represented Swano did not? against you, Yes.

MR. JOHNSON: felony distinct murder separate THE COURT: Four involving four charges well four murder charges, as as that correct? different people, Yes. MR. JOHNSON: occurring shop at a ceramic Allegedly

THE COURT: you pos- He informed as East Street. also Cass if you imposed sentences that could be sible or sentence charges, is that any all of these were or guilty found correct? Yep.

MR. JOHNSON: capital aware that are they You are THE COURT: State, words, upon if the conviction cases? In other fact, did, in indi- request, could charges, these they were seek a going in this cause that early cate conviction, is hearing any in the event death sentence that correct? True.

MR. JOHNSON: that? aware you’re fully So that THE COURT: I am. MR. JOHNSON: you are aware that fully

THE COURT: You’re also original that lawyer, your represented by entitled to be allowed to family was by you your retained or lawyer monetary ar- that certain developed when it withdraw by you your family, or completed not be rangements could to withdraw be- that he be allowed you and that insisted getting think if he wasn’t you didn’t your cause in words behalf, is your effort the maximum he would do paid that a correct statement? True.

MR. JOHNSON: Following THE COURT: the allowance of that with- drawal, in- appointed Court Public Defender and [the] Andreano, Defender, dicated Mr. Sam be Public would one of the that no representing you, you had Andreano, at time objection that to Mr. that a correct statement?

MR. JOHNSON: True. made,

THE COURT: And that that appointment was sir, 1984, on December 19th of that is the date that Mr. Swano relieved and that is the same date Mr. that [was] appointed Andreano was with certain restrictions Mr. Andreano, your that request, Mr. Alex Bonds Mr. Goldstein, Defenders, Ira Assistant Public would not be assigned to the case in any way, is that correct?

MR. JOHNSON: True.

THE 19th, COURT: And from that December up until September 198[5], there had been no *** request by you to remove Mr. Andreano and Mr. Richard Orloff from representing you. The first motion or indication of 30th, dissatisfaction was on September is that correct?

MR. JOHNSON: True.” The court then asked defendant whether he still wished to absent himself from the Defend- proceedings. ant he responded that did “not know” but he would decide after talking further with Mr. Andreano. then recessed the proceedings to allow defendant an to consult opportunity with his counsel.

When court reconvened shortly thereafter, Mr. Orloff stated that he and Mr. Andreano spoke and that would they continue to represent him. How- ever, when the court asked defendant if he accept- was them as ing trial, his counsel for the duration of the he stated that he not. The court again inquired pro se, he whether intended proceed I responded “[Tjhese get counsel and are trying an I That’s the can understanding. only thing say about these counsels now.” defendant hearing, repre-

At the conclusion of the communicate with his coun- sented that he was to willing un- sel. court continued proceedings Accordingly, him further opportunity to allow day til following to them. consult with Mr. An- court reconvened on October

When with him speak that defendant refused dreano stated it The nor can be.” “has been resolved nothing and that re- that he would be thereupon court advised se, Messrs. Andreano and but that pro to proceed quired “available as appointed standby would be Orloff all times the course and consultation at for advice November this The trial was continued until trial.” to re- with an 12, 1985, to provide opportunity for trial. discovery prepare view 12, 1985, court asked defend- again On November and Or- Messrs. Andreano ant whether he would accept time, defendant indicated as his At that attorneys. loff him than to them represent would have prefer the court that he se. Defendant also advised proceed pro counsel, Swano, failed to tender to Mr. prior believed his all of materials discovery pertain- his current counsel the case The continued thereupon the case. court ing hold on defend- hearing Swano and subpoena Mr. ant’s claim.

Mr. in court on November Swano appeared time an was conducted. hearing at which extensive un- were allegations determined that defendant’s warranted, following trial for and rescheduled the that he was the court again The defendant advised day. assistant de- Andreano, public Mr. and a new accepting At Kallen, to him. Mr. An- fender, represent Kathleen to al- the trial date the court continued dreano’s request, to consult with further opportunities low defendant motions. and to file desired lawyers, pretrial 26, 1985, a during hearing On November various motions, defendant advised the court that he did not with agree stipulation attorneys a his intended proposed to enter into the certain regarding State evidence. result, As a refused to be again represented by counsel and informed the that be court he would not for trial. present the The court thereupon reappointed Mr. Andreano and Ms. Rallen as counsel. standby

The case was until 1985. On continued December date, that the of about matters inquired types as to which he could The consult with counsel. standby court that responded could advise him with they respect voir dire witnesses, the of questions and examination and they would aid in the of preparation any subpoenas defendant wished to issue. The court advised defendant not conduct ex- standby could witness any aminations. another

During hearing afternoon, held later that the again admonished defendant the offenses be charged could the for imposition basis death penalty. The court also advised defendant if he were convicted, he could receive a of death sentence because his prior murder conviction. the Finally, court explained to defendant the two of the death phases hear- penalty ing that, stated in the event the did not jury impose the death sentence, “the Court will of give number for years” which defendant would be incarcerated. court failed that, to apprise defendant as a result of his prior murder conviction, life was the mini- imprisonment mum sentence that could be if he were con- imposed victed offenses charged.

On December the court conducted hearing to the parties’ proposed voir relative dire Two questions. of the questions counsel, re- prepared by standby defendant, viewed related to- jurors’ to the attitude life ward aas for the offense of imprisonment penalty defendant’s the State presence, objected murder. In “If the stating: these questions, proposed Defendant sentence it’s convicted, imprisonment] mandatory [life ***.” to omit these two agreed questions. selec- days jury

The trial commenced after several jurors, deliv- questioned prospective tion. Defendant statement, issues, an argued evidentiary ered opening witnesses, called several cross-examined State’s on his behalf. testify Although witnesses trial, throughout counsel were standby present, assisted they actually record does not disclose whether proceedings. course of the he not know contends that did initially his to counsel right waive intelligently ingly trial where he was not properly guilt phase (107 our Rule Ill. 401(a) in accordance with admonished contention, he that his argues 2d R. In related 401(a)). violated because to counsel was sixth amendment right mini him to the advised as trial court incorrectly he the event that in imposed mum sentence would be ad 401(a) The that Rule responds was convicted. State defendant did because unnecessary monishments were In alterna his to counsel. not waive actually right if the were tive, argued it even admonishments is Rule trial with substantially complied court required, 401(a). relevant part: in 401(a) Court Rule

Supreme provides, court. open “Any waiver of counsel shall be ac- by person permit a waiver court shall not without by imprisonment punishable cused of an offense first, personally open addressing the by that he court, determining under- informing him of following: stands charge;

(1) the nature of the prescribed maximum sentence (2) the minimum and to which law, including, applicable, penalty when by may subjected prior the defendant be because of convic- sentences; tions or consecutive (3) and, that he has a to counsel E he is indi gent, appointed to have counsel for him the by court.” 401(a). 107Ill. 2d R.

We note that defendant failed to raise this is initially sue in his se pro motion. “The rule post-trial general that the failure a defendant an raise issue in the written motion constitutes a waiver and the issue cannot ground be as a for urged reversal review. This waiver rule to constitutional well applies as as other issues.” v. Ill. 2d Precup (1978), citing People Pickett 54 Ill. 2d 280.

Further, that, we find under the circumstances of this case, defendant was admonished in accordance properly 401(a). Rule

Contrary contention, the record re- veals that he was informed the “nature of the charges” against him. The trial court advised specifically *** that he was with “four charged separate murder as felony charges, as well four murder charges involving four different and that people,” the offenses occurred “at a ceramic on East Cass Street.” shop Moreover, defendant was furnished with a copy indictment, and informed the trial was “fa- miliar with it.” He further represented original counsel, Mr. him Swano, also informed as to the nature of the charges. Defendant never indicated to the trial court that he did not understand the and he charges, does not make that claim here.

We do agree defendant that he was not specifi- advised cally by that, the trial court because of a pre- vious conviction, murder he faced a mandatory minimum sentence of life imprisonment conviction of upon the here that, offenses He in charged. contends the ab- strict, sence of a technical with Rule compliance 401(a), 132 and will be invalid automatically of counsel

any waiver v. Derra People (E.g., error reversible. alleged 1106; People Montoya (1981), v. 3d (1981), 92 Ill. App. v. Brown People 80 Ill. 3d 6; (1980), App. 3d Ill. App. turn, attention to several State, directs our

616.) that compli cases which hold substantial appellate E.g., Black People is 401(a) ance with Rule sufficient. v. Pittman People 309; (1979), 68 Ill. 3d (1979), App. v. Jackson 59 Ill. 3d 683; App. Ill. 3d App. 1004. here, the entire where, as a review of

We believe that of his right defendant’s waiver record indicates and knowingly voluntarily, counsel was made sense not receive no did sole admonishment which rights, compliance defendant’s substantial prejudiced to effectuate valid waiver 401(a) with Rule sufficient of this Further, under the circumstances of counsel. sub- case, trial admonishments we find court’s with the Rule. complied stantially right be of his The trial court advised of the counsel, charges informed him represented to him the took place, explained the offenses where to a and his hearing of the death penalty phases phases proceeding. those jury during admonished regarding also fully repeatedly sentence, both that he a death might receive possibility and because of his murder conviction prior because the trial Although charged. of the offenses the nature imprisonment life not advise defendant court did sub- which he would be was the minimum penalty charges, he was convicted in the event jected of this penalty. he was aware record reveals that the voir reviewed noted, previously As re- dire questions two of which his attorneys, drafted by for the of- as a to life imprisonment punishment ferred State ob- In presence, charged. fenses

133 to these the jected ground on proposed questions life awas sentence.” imprisonment Con- “mandatory trary claim, to defendant’s we do not believe that the fact he to omit subsequently agreed these indi- questions cates that he did not realize he could receive sentence of life imprisonment.

We note in this connection defendant does not claim he was unaware the potential penalties event he Indeed, was convicted of the charges. he was initially represented counsel, retained by privately represented the court that his in- attorney formed him of the possible that could penalties be im- posed if he were found on guilty or all of charges.

Moreover, the record reveals that defendant is no stranger criminal He proceedings. had previously been tried and for convicted aggravated battery, burglary rape, was incarcerated for those offenses from 1970 until March of 1983. he was convicted of Subsequently, murder, murder, attempted rape, aggravated kidnapping, and deviate sexual assault out of arising an incident oc on curring July 1983. This court his upheld death sentence in that case in (People 1986. v. Johnson 114 Ill. 2d 170.) Defendant represented by throughout which proceedings culminated sentence, death and, as demonstrated foregoing, had ample opportunity become with his acquainted to counsel. People v. Hall (1986), 114 Ill. 2d Cf. 376, 412-13 (it “reasonable to conclude” defend ant was aware of the that the requirement reach a jury unanimous decision the death sentence since he “had the experience” of four prior felony convictions); Albanese (1984), 104 Ill. 2d (since had already been sentenced to death aby in a re jury case, lated he was “familiar with function jury’s the sentencing hearing”). no preju it is that defendant suffered

Finally, clear court’s failure to specify dice as a result of trial in the subjected to he would be minimum which penalty his Defendant was apprised event of conviction. fully in was, and that receive the death penalty, that he could note in this connection fact, We imposed. the punishment counsel his to waive that he not assert decision does he ad had been specifically would have been different to life the of a sentence regarding possibility monished his record, including of review the and our imprisonment himself, indi for to choosing represent reasons alleged v. no claim. that he could make such cates Cf. Hall the Ill. 2d 412 (“It apparent (1986), on decision that a reach unanimous jury requirement jury death sentence no part played [defendant’s] failure waiver, error in the court’s will not find we to of the requirement”). admonish [him] record, the trial view,

It on is our based defendant dur- what it to accommodate court did could Defendant, the entire course of the proceedings. ing designed impede to hand, in conduct engaged the other noted, As previously those proceedings. and delay his privately trial court allowed request, case, from the and ap- to withdraw retained defender’s office the public Mr. Andreano pointed defend- appointment, him. At the time represent if Mr. he satisfied” ant stated that would be “more.than Then, several months as counsel. Andreano served his trial, advised the court later, on the eve of defendant from new counsel appointed that he to have wished the public and not affiliated with County “outside” Will was denied because request office. When the defender’s for the appoint- basis failed provide defendant not that he would stated counsel, ment of new counsel, represent he would not current “accept” himself, and he intended to absent himself from the pro- ceedings.

The next having changed his day, apparently mind, However, court. he appeared refused to to the trial court whether or represent not intended to proceed se. pro occasions, On several defendant at- tempted delay manipulate proceedings by the services of refusing his counsel and refusing to rep- resent himself. course,

We recognize, importance of defend ant’s right However, to counsel. we cannot countenance use of that in a manner which appears calculated “thwart administration of or justice to otherwise embarrass the effective prosecution of crime.” (People Myles 86 Ill. 2d 268.) As this court recently stated in People Taylor 101 (1984), Ill. 2d wherein defendant he was claimed denied the effective assistance of counsel:

“Defendant repeatedly interfered with counsel’s efforts represent to him competently, and attempted delay to proceedings on several occasions by asserting his inability to obtain counsel and his desire to waive counsel and ap- *** pear pro se. system Our justice criminal simply could not function were we to permit defendants, indi- gent otherwise, or to intentionally hamper counsel’s ef- to represent forts them and later plead resulting inef- fectiveness of grounds counsel as a for reversal.” People See also (1986), 376, v. Hall 114 Ill. 2d 403-04; People (1980), 341, v. Friedman 79 2d Ill. 349.

Similarly, defendant should not be permitted to frustrate the trial court’s efforts to conduct an orderly, fair trial, and expedient and then benefit from an alleged error by the court which he invited through his own con- duct.

In addition to the we foregoing, believe the admonish- ments defendant received in this case were sufficient

136 himself, he had the bene- since, he although represented at all fit of counsel “for advice and consultation standby or not trial.” Whether times the course [the] of their ser- chose to avail himself actually vices, extent which counsel in fact partici- and the to is not, suggests, as defendant in the pated proceedings the relevant inquiry. v. Myles (1981), 260, the defend

In 86 Ill. 2d removed had his retained counsel ant similarly privately se, proceed pro case, and stated from the refused to public defender not desire services did court refused the court had trial appointed. whom withdraw, allow the assistant defenders public throughout to advise defendant were available they tendered advice trial. Although they apparently in trial. In deter did not defendant, they participate- these cir under that Rule mining 401(a) inapplicable cumstances, this held: repeatedly declined clearly and “Here defendant *** re Defendant’s representation.

undertake his own of ap employ or services fusal to heed advice the circuit court necessitate pointed counsel did not 401(a).” 86 with Rule in accordance admonish 2d Ill. at 269. in holding our us to reconsider invites

Myles Court’s sub- Supreme of the United States light v. Wiggins McKaskle decision sequent 2d S. Ct. 944. decline 79 L. Ed. We U.S. to do so as McKaskle before is not to the issue apposite us. McKaskle, sixth that defendant’s

In the Court held not was violated to right self-representation amendment over counsel standby the trial court’s by appointment the Court stated holding, In so objection. pro se must who proceed that a defendant wishes case,” “participa- actual control over the “preserve tion by counsel without the defendant’s consent standby should not be allowed to destroy jury’s perception that defendant is himself.” In representing proceedings outside the be jury’s presence, defendant must able to “address the court on his own freely behalf” and any him disputes between and his counsel should be resolved in his 178-79, favor. 465 U.S. at 79 L. Ed. 2d 133-34, 104 S. Ct. at 951. that, arguing based apparently upon he

McKaskle, in fact se proceeded pro despite ap- pointment counsel, standby and thus compliance Rule However, was 401(a) necessary. McKaskle did not address the issues of when defendant will be deemed to waive counsel and specific what admonishments are in the event he necessary does. That case was concerned only with the extent to which standby may par- ticipate in the proceedings consistent with defendant’s himself. represent

In a related contention, defendant asserts that al- leged waiver of counsel violated the sixth amendment because he was misled the trial court’s statement he could be incarcerated for a “number of when, years” fact, in the minimum penalty was life imprisonment. As noted, this previously comment was made the context of the trial court’s explanation defendant as to the role of a in the jury death sentencing hearing.

informed defendant it was the jury’s province recommend the death penalty and, if it chose not to do so, it was the court’s responsibility to determine the length defendant’s prison sentence. This remark was an accurate explanation of the roles of the judge and jury sentencing phase proceeding. Thus, defendant’s argument again is reduced to the con- tention that he not was advised that life imprisonment was the minimum applicable penalty event convicted. For the same reasons that the failure to so

138 under 401(a), not violate Rule admonish defendant did case, of this we do not believe the facts amendment were violated. rights sixth for the Federal court cases Defendant cites several of counsel was not that his waiver alleged proposition he not accu- because was “voluntary” or “knowing” (Von of possible punishments. advised of the rately range 309, 708, L. Ed. 68 332 U.S. 92 (1948), v. Gillies Moltke 1969), Cir. 408 F.2d 316; (5th v. Smith Molignaro S. Ct. 664; 1967), 371 F.2d (6th v. Maxwell Cir. 795; Meadows 1953), 772.) 208 F.2d (6th Cir. Gannon v. United States case, cases, the instant contrary In of these each and, with- their to counsel right waived defendants both counsel, charges against to the guilty out of pled benefit re- the defendants Moreover, the admonishments them. far short those which in those cases fall ceived here received. defendant trial holding our imply do not mean

We set forth in admonishments disregard the may courts instant in the It have been 401(a). preferable, Rule would defendant each those ad case, if the recited to court that, considering all of hold only monishments. We case, ad sufficiently defendant was of this circumstances v. 401(a). People with Rule monished in accordance Cf. 470, (the 485-87 trial 101 Ill. 2d (1984), Stewart relating guilty Rule substantially complied defendant of not advise it did although specifically pleas, the minimum him or the charge against the nature of convicted). in the event was penalty applicable convictions contends that his further made two the prosecutor should be reversed because phase argument guilt during closing comments his to a fair denied him which allegedly the trial as- to which defendant of the comments as trial. Neither Thus, as State to at trial. signs objected error from precluded out, ordinarily would be points these raising People (1986), issues Hall appeal. 376, 418; Ill. 2d v. Lewis 88 Ill. 2d 149 (objections prosecutor’s not raised are argument waived).

However, raise, did se pro post-trial motion, that “prejudicial, remarks were inflammatory” made the his by prosecutor during closing argument. Moreover, 10, 1986, the on April defend- hearing motion, ant’s referred to the remarks specifically two which he now asserts were improper. Accordingly, we have considered the comments which defendant contends constitute prejudicial error. that the initially argues prosecutor’s char-

acterization of him as an “animal” was an at- improper to inflame and tempt prejudice jury. Specifically, prosecutor made the following remark during closing ar- gument:

“Mr. you White: What have heard in this case was how five people became involved in by Greenware Merry [sic], the ceramic on shop 20, East Cass August Street on 1983.

Four people of those animal, were an by butchered and that among animal today, us he sits (Indicating.)” there.

This court has consistently “emphasized that prosecu tors not in may engage inflammatory” de arguments signed solely arouse the passions the jury. (People v. Bryant 94 (1983), 514, Ill. 2d 523, v. citing People Whitlow (1982), 89 Ill. 2d 322.) Indeed, this court has held specifically it is improper to characterize a “animal,” defendant as an even where that characteriza tion is on based the evidence. (People v. Mackey (1964), 30 Ill. 190; 2d v. People Elder 25 Ill. (1962), 2d 612. Ac cord, Darden v. Wainwright (1986), 477 168, U.S. 91 L. 144, Ed. 2d 106 S. 2464.) Ct. Nevertheless, “[i]mproper remarks do not generally constitute reversible error un-

140 to the accused.” less result in they prejudice substantial Peo People v. Tiller Ill. 2d (1982), quoting 94 v. ple Baptist v. 19, See also 76 Ill. 2d 29. (1979), Johnson (improper prosecu 114 Ill. 2d (1986), not a material factor comments which are torial reversible er conviction do not constitute ror).

Here, closing was instructed jury specifically evidence, disregard state- are not arguments which were not based arguments ments made during closing argument, commencing evidence. Prior I that “what here say informed jury also prosecutor additionally We note is not evidence.” argument an did not was comment, object, to which defendant not further upon and was dwelled isolated remark prosecutor. trial not

Moreover, presented the evidence Carlson (People Ill. 2d balanced.” “closely not even contend Indeed, defendant does 576-77.) his guilt to establish was insufficient that the evidence a doubt. reasonable beyond victims, Pamela three of the reveals that record Dunbar, to the ce- and Barbara drove Anna

Ryan, Ryan, in a 1977 morning murders ramic on shop her hus- Ryan Pamela belonging Chevrolet Blazer later afternoon at The Blazer was band. discovered from various of- police The testimony a car wash. nearby two defend- established investigators ficers vehicle, on one of found were fingerprints ant’s on the an bloodstain apparent recovered from which was shift. gear dis- taken of footprint impressions were

Photographs in area the murders' the scene of covered at The foot- the car wash. Blazer at where the was parked diamond-shaped a a shoe with were made by gym prints 10 or 11 made a size been and could have pattern, shoe. The diamond identical to the one de- pattern was picted the soles of a of size or 11 pair Converse All-Star from shoes recovered the home of gym Dolly and Sam Myers, with whom defendant was residing. Defendant wore size 11 shoes. addition,

In three .357-magnum-caliber shells with a Lubaloy coating were recovered from the home in which resided. Bullet discovered at fragments scene of the murders also had a which Lubaloy coating, one witness testified was an “unusual” ammunition coat- ing. While the were unsuitable fragments for further comparison, could have been from they fragments a .357-caliber bullet.

Three of the victims’ which purses, contained virtu- ally no were in a creek money, discovered located about three-tenths of a mile from Jim’s Pool Hall in Joliet. Tes- timony revealed that defendant was at gambling pool hall on the murders, of the afternoon at time which he had in approximately cash. Other evidence re- $500 vealed that the victims had cash their $500 $600 purses on the morning murders.

Finally, defendant is a black man and two Negroid hair fragments were a recovered from blood-stained cloth found near one the victim’s bodies. one Although witness, apparently woman, black testified that she visited the ceramic shop murders, few before the days she stated that she did not use that cloth.

We are cognizant that some conflicting testimony was presented trial, and that the evidence defend- against ant was circumstantial. also recognize We that he pro-" duced two witnesses who claimed have seen an indi- vidual other than defendant operating Ryans’ vehicle on the afternoon of the Nevertheless, murders. after a careful of record, review the we are convinced that comment improper did not constitute material factor in defendant’s convictions or from re- deprive re- a fair trial. therefore conclude We

ceiving error. did not constitute reversible mark ar- that, his during closing claims Defendant further asserted personal gument, prosecutor improperly on evi-' not based facts which were opinion, argued de- dence, effort to discredit principal in an alleged conten- In order to address fense witness. the relevant review tion, it necessary briefly at trial. adduced testimony that during Killman testified for the defense

Sandra in the 20, 1983, while driving the afternoon August a red Street, she observed Cass East vicinity RR650, which number plate white Blazer with license number of the the license indicated was other evidence operated that the vehicle was vehicle. She stated Ryans’ hair, shoul- about “sandy-blond male a Caucasian in his twenties.” early der-length, under- cross-examination, stated that she Killman On to the murders. subsequent weeks went several hypnosis unable describe Prior to she being hypnotized, of the Blazer. driver rebuttal, a ser- David Simpson, the State’s During office, testified Will sheriff’s County with the geant observa- with her Killman in connection he interviewed him out to personally pointed Blazer. Killman tion According the vehicle. she observed the locations where obtained, was ap- Killman Simpson to the measurements time she Blazer at the feet from the proximately vehicle from the 850 feet it. She was first observed also license plate. Simpson when she first observed are plate approxi- on a license the letters testified that in height. three inches mately Blazer, Killman’s observation With reference closing remark following made the prosecutor argument:

143 feet, “Mr. White: She first saw the Blazer at it 580 as measured, was and then a license plate saw from dis- tance of 850 feet.

Now, the on plate letters or numbers a license are inches, two three high. feet, inches From 850 if take you print, standard one approximately eighth an inch in a magazine print. Since there are 24 eighths one inches, three 24 one is to as what is if feet, to 850 and you out, work that proportion it would be similar to read- ing feet, a magazine from a of 35.4 you distance can a magazine feet, hold at 35.4 and it is literally impossible read, absolutely impossible to read that magazine.

You can’t it read from 600 feet. A plate, license feet, which would be the same as 25 if you take it even to feet, 300 magazine that’s reading from 12-and-a-half feet, that, too, is impossible.” We agree with defendant it is for a improper prosecutor to express personal his opinion or to argue facts which are not on based any evidence. (People v. (1982), Weaver 545; 92 Ill. 2d v. (1963), Beier 29 Ill. 2d 511.) However, it is permissible for the perfectly prosecutor to state an opinion which based on the rec ord, or aon legitimate inference derived therefrom. E.g., People (1986), 170; Johnson 114 Ill. 2d People v. Owens (1984), 88; 102 Ill. 2d People v. Bryant (1983), Ill. 2d 514.

Contrary contention, the prosecutor’s opinion the license plate would have been “impos- sible” read on based to the testimony relating distance from which Killman claimed to have observed the plate, and the height of the letters appearing on the license plate. prosecutor’s comparison between read- a license ing and a plate magazine, even if the could jury it, comprehend not, did as defendant “so suggests, [in- the trial with unfairness as to make the resulting fect] a denial of due process.” Darden v. Wain- conviction[s] 2d 181, 91 Ed. wright L. 477 U.S. 2472. 106 S. Ct. error occurred that no reversible determined

Having trial, next con- we of defendant’s during guilt phase sentencing proceeding. of error allegations sider he did not know contends initially to counsel waive his intentionally ingly hearing hearing post-trial and the sentencing raise this issue defendant failed to note that motion. We (See People Precup 73 Ill. 2d (1978), court. in the trial Further, sixth amend that defendant’s 7, 16.) we believe failure the trial court’s not violated by ment were rights the same ad at repeat subsequent proceedings to trial. it him to gave prior monishments proceeding, the sentencing commencement of At his to right that he waived informed the court defendant I and phase, defense in this sentencing “and jury, any of sentencing phase from the absenting myself will be that he then advised defendant The trial court the trial.” desired, he and to the courtroom when could return of the witnesses to cross-examine entitled was counsel, who would be standby with and consult was subsequently for the Defendant present proceedings. the proceed- he could listen to in a room where placed re- The record does not system. an audio ings through defendant; how- assisted actually counsel veal whether length at a witness ever, he did cross-examine of certain evidence. to the admission objected the admonish held we have previously Since sufficient, were to trial received prior ments defendant his waiver of alleged issue here whether the precise all subsequent time was operative counsel at that case, this of the circumstances Under proceedings. v. Baker this court’s decision upon based it was. Ill. we hold that 2d Baker, In arraignment defendant for his appeared counsel, on a murder charge court-appointed informed the trial court that he did not wish be repre- by him, sented an as it attorney. court advised did occasions, other at he had all of stages in his re- proceedings. persisted fusal to represented counsel, be and entered a by plea later, to the guilty two weeks charge. Approximately at his without appeared sentencing hearing counsel, and received a term of 30 to life years imprison- ment.

The appellate court concluded that defendant was en titled to a new sentencing hearing because the court failed to again advise him at the sentencing hearing his right to reversed, counsel. This court concluding that the trial judge not “required renew the offer counsel or ascertain whether had changed mind when he for appeared sentencing two weeks later.” (92 Ill. In 91.) 2d so holding, this court noted: greater

“The number of considering courts precise issue here presented have held that a competent waiver of counsel a defendant once made before the court carries to subsequent all proceedings unless forward later requests counsel or there are circum stances suggest which that the waiver was limited to particular stage of the proceedings.” (Emphasis added.) 92 Ill. 2d at 91-92.

Here, of course, defendant did not change his mind and later request and, counsel to his contrary claim, there is in the nothing record which suggests that he intended to only himself represent during the guilt phase Moreover, trial. we do not agree with defendant’s claim that Baker is distinguishable there, because unlike case, in the instant the trial court specifically stated that he was to entitled an all attorney “at stages of pro- ceeding.” that he advised defendant specifically

The trial court an and did so by had a be right represented attorney, to in that he with charged the context of him was apprising seek the death for which the State could offenses capital noted, had addition, In as penalty. previously to death been convicted of murder and sentenced already counsel case, by in another and was represented Thus, he familiar those became throughout proceedings. to counsel right post-trial proceedings. during Further, standby the fact that defendant had belies claim present during proceedings those right he was unaware of his to counsel. “continuing further asserts Baker in and the several cases

waiver” doctrine adopted to the hold- contrary as cited therein should be rejected v. Teets 156, 1 L. Ed. Chessman 354 U.S. ing as case is fac- 1127. disagree, 2d 77 S. Ct. We tually inapposite. Chessman, him-

In the defendant chose to represent court ad- trial although self proceedings, to the pro- to Subsequent vised him of his counsel. died, for the case the official ceedings, reporter A reporters. other and the was transcribed testimony of the transcript, settlement conducted on hearing was su- which State upon which constituted the record Counsel appeal. court would decide defendant’s preme however, his request, despite for the State was present; hear- not permitted participate defendant was the hear- attend An was not attorney appointed ing. Court held Supreme The United States on his behalf. ing pro se in the request appear that where defendant’s denied, it was incumbent settlement proceeding de- for the proceeding him counsel the court appoint The failure of counsel trial. waiver spite parte the ex of due hearing a denial to do so rendered process. remaining cases which defendant

Similarly, upon relies for the primarily “continuing proposition waiver” rule is invalid are from the in- distinguishable stant case. In Rini v. Katzenbach (7th 1968), Cir. 697, F.2d the trial court to of failed advise defendant to any counsel at includ- stage proceedings, ing the sentencing where hearing defendant attempted withdraw, to a entered In previously guilty both plea. Davis v. Holman (5th Cir. 773, 354 F.2d 1965), Tobin v. United States (7th 1968), Cir. 402 F.2d defendants, counsel, without benefit of changed their pleas from not guilty to guilty. Finally, Williams Alabama (5th Cir. 341 F.2d 1965), court merely held that an effective waiver of counsel trial could not operate to cure the trial retroactively court’s to failure offer the defendant counsel at his arraignment. The further noted that defendant was prejudiced by not having counsel at the arraignment plead poten- tially meritorious defense. insanity

Here, course, arewe not confronted with the situa- tion wherein defendant who waived previously later chooses enter a without guilty plea benefit of an attorney’s advice. Since the facts in this case do not re- veal any change circumstances which might trigger necessity anew, admonish defendant his alleged waiver counsel prior to trial was operative throughout the subsequent proceedings.

Defendant next asserts that because there is some “residual doubt” of his of a guilt, imposition death sen- tence is and excessive.” “inappropriate Again, defendant failed to raise this issue in event, the trial court. In any even assuming or “residual” “whimsical” doubt were a factor a lesser warranting there is sim- penalty, no evidence in ply the record that the trial court har- bored such doubt with respect defendant.

148 trial and defendant’s was

The court over presided hearing. penalty the death authority during sentencing him, considering before and after Based on the evidence , circumstances, the court all and mitigating aggravating that- the death was penalty appropriate. determined and the history, serious criminal prior Given defendant’s case, do not agree in this we multiple offenses involved of the defendant upon that death was imposition penalty excessive. he denied the further contends that him against to confront witnesses

opportunity when trial hearing of the phase sentencing second of hearsay testimony into evidence allowed Depart- the Illinois Meduga, investigator John an to one Chandler, witness Police, and Lee ment of State offenses. previous alia, inter his com- testified, Chandler in her accosted automobile Williams were panion Penny 15, 1970, an individual by February on the evening He stated identified” as the defendant. “later wallet, repeatedly, struck Williams took his defendant as- sexually lighter, a cigarette burned her with her. saulted Gayle he interviewed testified that Meduga

Officer which incident in in with a 1983 July connection Payne and her compan- and stabbed raped she was kidnapped, stated Hackett, Meduga to death. ion, was shot Anthony as the perpetrator identified defendant that Payne from the bullets recovered He also stated that offenses. were iden- body Hackett’s offense and from scene .357-mag- lab as of the State crime employee tified an num Lubaloy bullets. to object failed note initially

We ev- of this admission not raise the this did testimony, Thus, the alleged motion. idence as error his post-trial v. People See deemed waived. would be normally errors 149 83, 93; Ill. (1986), (1978), Szabo 113 2d v. Precup 7, 16. 73 Ill. 2d

Further, “it is well in a settled that capi tal case has no due cross-examine all process right out-of-court sources of information relied sen upon v. tencing.” (People 94 Ill. 2d cit (1982), Jones New ing 241, 250-51, Williams v. York U.S. 1079, 93 L. 1343-44, Ed. S. 1085. But see Ct. Wainwright 685 F.2d (11th 1982), Cir. Proffitt 1253-54 (defendant was entitled to cross-examine a phy sician-witness before his report could be used in deter Thus, mining sentence).) is not hearsay testimony “per se” inadmissible during the second phase sentencing v. 376, Hall 114 Ill. proceeding (People (1986), 417; 2d People 111, v. 112 Ill. Morgan (1986), 2d 143), even where there has no the showing been declarant is unavailable to v. testify. See Szabo 113 People (1986), Ill. 83, 94-95; People 2d v. Del Ill. (1985), Vecchio 105 2d 414, 437-38.

The “factors controlling of evidence admissibility at a capital sentencing hearing are relevance and reliabil v. ity.” (1986), 376, Hall 114 Ill. (People 416; 2d People v. (1984), 44, Eddmonds 101 Ill. 2d 65.) Defendant does not, he, nor could contend that the evidence was irrele or vant unreliable. testimony by both witnesses re lated to violent prior criminal offenses for which defend ant was convicted. we

Finally, note that even if the evidence was errone introduced, ously sentencing hearing conducted a trial judge acting jury, without a and he “is pre sumed to consider only competent relevant evidence in v. determining sentence.” Johnson (1986), 114 Ill. 2d 170, 205, quoting People v. 112 Morgan (1986), Ill. 111, 2d 144.

Defendant next asserts that the trial court’s alleged belief it not or could consider in sympathy prejudice

150 sentence and fourteenth eighth violated imposing Defend- amendments United States Constitution. 1.01(5) ant refers to Instruction of the Illinois apparently Instructions, Criminal, (2d Pattern No. ed. Jury 1.01(5) the trier of fact to its verdict 1981), requires which base and not on or prejudices evidence sympathies exist. may which not in the

Once defendant did raise this issue again, this Moreover, previously rejected trial court. court has v. (People Morgan (1986), 111, 112 Ill. 2d 145- his claim has now States Court 46), Supreme up United in a capi held as constitutional an instruction the jury alia, inter consider, tal not sentencing hearing v. Brown (1987), or “sympathy” “prejudice.” California _, 934, 938, L. S. 538, 479 U.S. Ed. 2d 107 Ct. 837, 838.

Nevertheless, that we reconsider our urges Mississippi Caldwell in holding light prior 330, L. 2d 105 S. Ct. 320, 472 U.S. Ed. Court noted that Supreme wherein considerations permissible factors” are “compassionate court, too, acknowledged cases. This “has capital factor for consideration a capital relevant mercy it within the is to be considered sentencing hearing, but mitigation.” context of all factors aggravation citing (People v. Hall 416, 376, 114 Ill. 2d (1986), v. Holman Ill. In the instant 133, 170.) 103 2d (1984), case, reveals court did consider the record that trial defendant, determined that there were for the but mercy it, imposi or justified no factors which warranted which penalty. tion of sentence other than the death con- numerous contentions raises Finally, statute of the death constitutionality penalty cerning motion and which were not raised his post-trial which This has determined court have been resolved. already to authority of discretion the statutory grant

151 is 95 prosecutor (1983), v. Davis Ill. proper (People 1; People 508); 2d v. 79 Ill. 2d that the (1980), Brownell statute for insure that sen provides adequate review tences v. are not Kubat arbitrarily imposed (People (1983), 94 Ill. 2d that the need 437); sentencing authority not make written factual v. Del Vecchio findings (People Ill. 2d need (1985), 414); defendants not receive notice of all the factors which pretrial aggravating upon the State to rely (1984), intends v. Albanese (People 504); Ill. 2d the State is not required prove absence of mitigating factors reasonable beyond doubt (People v. Perez 108 Ill. 70); 2d that the sentenc not ing authority required make a specific finding that death is the v. appropriate sentence (People Del 414; Vecchio (1985), 105 Ill. 2d People Walker (1985) 109 Ill. 484); 2d that the statutory provision limiting of application the death sentence to defendants who do not assistance to be fit for require trial is not arbitrary (People v. Whitehead (1987), 116 Ill. 2d 425).

Defendant has no provided basis which upon this court should reconsider those holdings, but has instead referred us to the of a opinion Court Supreme justice who dissented from the denial certiorari two cases. We thus decline the invitation overrule our previous decisions.

For the reasons herein, stated judgment circuit court of Will is affirmed. County The clerk of this court is directed to enter an order setting Tuesday, March as the date on which the sentence en tered in the circuit court of Will is to County be carried out. The defendant shall be executed lethal by injection in the manner section 119—5 of the provided by Code of Criminal Procedure 1963 (Ill. Rev. Stat. ch. 5). A par. certified of the mandate of this copy 119 — be shall transmitted the clerk of this court to Corrections, the Director of to the warden Stateville 152 Center, to the warden of the institution

Correctional is wherein defendant confined.

Judgment affirmed. SIMON, in concurring part dissenting JUSTICE in part: affirm opinion

I in the of the majority concur portion however, dissent, I from the defendant’s convictions. ing the sentence for the reasons the of death imposition v. Lewis (1981), in in stated my separate opinion 129, J., (Simon, 88 Ill. 179 based dissenting), my 2d the statute is unconsti penalty belief that Illinois death the sentence in this case should tutional and that death v. ex rel. Lewis Lane be vacated. See also United States 181, 195 (C.D. (expressing Ill. 656 F. 1987), Supp. Illinois over the constitutionality doubts” the “grave Eddmonds v. Illinois 469 statute); (1984), death penalty 271, 896, 2d, 207, 208, L. 105 S. Ct. 894, 83 Ed. U.S. Illi review of the J., dissenting) (urging 272 (Marshall, “there are serious nois death statute because penalty scheme constitutionality about the questions select, the unbridled discretion gives prosecutor of an offense convicted from the of individuals group consid- death, that will be punishable subgroup v. Texas DeGarmo 474 for U.S. death”); ered 337, 338 L. Ed. 106 S. Ct. 973, 975, 88 2d Gregg Georgia J., (Brennan, dissenting) (quoting 859, 883, 96 S. 153, 189, 49 L. Ed. 2d (1976), 428 U.S. for the imposi- selection 2932) (“[t]he process Ct. it trial; does not be- begin tion the death penalty or His decision whether office. gins prosecutor’s than important is no less capital punishment not seek then, death where Just like the jury’s. jury, must be suit- ‘discretion consequence, prosecutor’s risk of so to minimize the and limited as directed ably ”); see Schnapper, action’ arbitrary and wholly capricious

153 Conundrum, The Capital Punishment L. Mich. Rev. (1986) White, Review, (quoting Book Life Balance: Procedural Safeguards Capital Cases (1984)) (“Any to refrain from system permits prosecutors *** the death seeking exhibit all penalty ‘will vices that Furman found to the antithetical values The Pervasiveness of Eighth ”); Bowers, Amendment’ Arbitrariness and Under Discrimination Post-Furman Capital Statutes, 74 J. Crim. &L. Criminology (1983) (arguing seek the prosecutors death penalty for extralegal considerations); Note, State v. Wilson: The Improper Use Prosecutorial Discretion in Capital Cases, Punishment 63 N.C.L. (1985) Rev. (concluding “unbridled prosecutorial discretion per mits arbitrary capricious of the death imposition penalty”).

I also disagree with the conclu majority’s apparent sion that because the sentencing hearing was conducted before a a judge and not Ill. 2d the er jury (119 149) roneous admission of evidence would be error. harmless there is a Although presumption that considers judge only competent relevant evidence determining sentence, it is a if presumption My view is that only. evidence admitted is erroneously prejudicial so or volu minous as draw into question any person’s ability- or judge jury evidence, discount the completely —to may be set aside. It defies sense presumption common and human nature to that a simply presume would judge not affected be be introduction such evidence.

For reasons, these I dissent. respectfully

Case Details

Case Name: People v. Johnson

Court Name: Illinois Supreme Court

Date Published: Dec 21, 1987

Citation: 518 N.E.2d 100

Docket Number: 63024

Court Abbreviation: Ill.