*1 (No. 60826. ILLINOIS, OF
THE PEOPLE THE STATE OF Appel- JOHNSON, lee, v. MILTON Appellant. Rehearing Opinion October 1986.— filed 1, 1986. denied December *7 SIMON, J., concurring dissenting part. in part and Beth Katz Defender, and Schiedel, Deputy Charles M. Of- Defenders, Assistant and Gary Rapaport, S. for Defender, Springfield, fice Appellate State appellant. General, of Springfield F. Hartigan, Attorney
Neil *8 General, L. Rotert and Mark Stewart, J. Solicitor (Roma General, of Friedl, Attorneys L. Assistant and Marcia of counsel), for the Chicago, People. of
CHIEF JUSTICE CLARK delivered the opinion the court: of trial in the circuit court
Following jury Iroquois defendant, Johnson, Milton was found County, guilty of the murder of (Ill. 1983, Hackett Rev. Stat. Anthony 38, ch. and the pars. 1(a)(1),(a)(3)) aggravated kidnaping 9— 1983, 38, Rev. ( Stat. ch. pars. 2(a)(3), (aX5)), Ill. 10— 1983, 38, deviate sexual assault Rev. Stat. ch. (Ill. par. 3), rape 1983, Stat. ch. (Ill. 38, par. 1(a)), Rev. 11— 11— of Gail attempted murder Patricia Rev. Payne (Ill. Stat. ch. pars. 4(a), 1(a)). Defendant 8— 9— his waived to a right at death jury penalty hearing. The trial court found that the necessary aggravating fac existed, tors and that there were no factors mitigating sufficient of the death preclude imposition penalty. The court sentenced defendant death for thereupon the murder of Hackett and to concurrent terms prison for years rape, assault, deviate sexual and attempted murder. The death sentence was (87 Ill. R. stayed 609(a)), pending direct to this court appeal (Ill. Const. VI, art. sec. 87 Ill. 2d R. 4(b); 603).
As a threshold matter, we consider defendant’s con- tention that he was his denied sixth right amendment an impartial jury drawn from fair cross-section community when the trial court, in granting defendant’s for motion change venue, moved the place trial from toWill Iroquois County. trial,
Prior to defendant moved for a change of venue from the circuit court of Will County, citing pretrial pub- licity within that as the county reason necessitating In transfer. transferring the case to County, the Iroquois trial court noted that because Iroquois is buf- County fered from andWill Cook counties Kankakee County, the local and media Chicago news would least have likely
180 an in The trial further impact County. judge Iroquois noted is one of three counties in Iroquois that County he the Twelfth Judicial Circuit over which presided. Thereafter, to change defendant filed a second motion the trial from to County, of Cook place Iroquois County a lack of racial within alleging diversity County. Iroquois motion, In that the the defense counsel stated arguing white, and Iroquois of was 95.5% that population County of Will black. trial County 10% was approximately motion, the found that judge, denying Iroquois County most forum unaffected closest and convenient if it dur- stated that by pretrial publicity, appeared voir dire that an not impartial jury impan- could be ing of defendant’s mo- eled, he reconsider the denial would tion. venue, for a al- change
Defendant moved of initially tried an jury he could not be leging impartial that fair of community living from a cross-section drawn due Hav- pretrial publicity. to exposure Will County venue, first motion for a change on his ing prevailed heard to that distinc- complain cannot now be re- County proportionately tive in Will were groups the trial which flected on the venire Iroquois County, most convenient closest and court determined was publicity. affected likely by pretrial forum least to be exclusion This is not a involving systematic case v. (Duren community” of “a ‘distinctive’ in the group Missouri 579, L. 2d 357, Ed. 364, 439 U.S. 58 (1979), trigger would 664, 668), 99 Ct. which 587, S. recently standard under inquiry fair-cross-section Kentucky v. in Batson Court Supreme announced by Ct. 1712. 106 S. 90 L. Ed. (1986), U.S. allow right constitutional any are we familiar with Nor Peo (See of trial. own place select his a defendant ing ple Gacy that To 43.) require Ill. 2d mirror county proportionately venire of the transferee distinctive any found in groups originating county onerous, would either saddle our with an if not judiciary task impossible, effectively grant defendants a hereto- fore unrecognized right to choose their trial. place
Defendant concedes that the allowance a motion a change for lies within the sound discretion of venue Indeed, if, the trial court. our statute provides upon motion, the trial court determines a defendant can trial, not receive a fair “it shall transfer the cause any circuit court in where fair trial county may be *10 had.” (Emphasis (Ill. Rev. ch. added.) Stat. 6(c).) Without par. showing a but an anything 114— impartial jury was impaneled case, in the present we find no on basis which to disturb trial court’s well- reasoned and proper exercise of discretion in selecting Iroquois County as of trial. place trial, At from Patricia testimony Gail Payne estab- lished 16, 1983, that on her July she and boyfriend, Hackett, left their homes in Anthony Emden, Illinois, and the afternoon and spent at Great evening America Amusement Park (Great America) in Gurnee, Illinois. there, While Hackett purchased a stuffed doll a depicting cartoon character popularly known as the Tasmanian Devil. Hackett placed sales the doll in receipt for his wallet. At the two left approximately p.m., Great America in Hackett’s car. On their home the way pair took a turn wrong and found themselves Af- Chicago. ter direction, reestablishing Hackett and proper Payne drove for on another 45 minutes south Interstate 55 before off they pulled onto the shoulder the inter- state to Hackett sleep. seat, front slept while Payne on the back. slept a.m., after 1:30 was
Shortly Payne awakened aby sound on the tapping passenger-side window, followed gunshots which by struck Hackett and the glass sound of breaking. door passenger was opened and Payne wallet, watch, to and was ordered hand over Hackett’s her As she noted that the assail- purse. complied, Payne man and flan- wearing light- ant was black dark-blue car nel shirt. was then ordered to out of the get Payne and “crawl on her to truck belly” parked ap- pickup When reached Payne feet proximately away. to to on the and inside, floor, truck she was told get stay However, her was able to eyes Payne closed. keep face after he glances steal the assailant’s quick truck. pickup climbed into driver’s side Once the truck was was directed moving, Payne her fingers The assailant inserted his on the seat. get Af- and forth. to move back and commanded her vagina ordered, and then minutes assailant Payne’s ter 10 off the her to sex. He then forced, perform pulled oral building interstate the truck near a white and stopped and hear could see Payne many highway lights where and then The assailant someone spoke briefly voices. raped Payne. assailant, her was taunted
During rape Payne had she not engaged asked she was why crying who her Her assailant before with boyfriend. intercourse it 4:30 resumed told Payne then driving *11 and A short time off the road again pulled a.m. later he truck. was and blind- Payne gagged the stopped pickup to drive, to only Her assailant once started again folded. about highway off onto the shoulder of the after pull and then once in chest minutes. was stabbed Payne she lost consciousness. a.m., motorist found
At 5:30 a passing approximately in median Illinois along in a area Payne grassy Illinois. She was subse- Wilmington, Route 53 near Joliet, Illinois. Hospital taken to St. Joseph’s quently at arrival that upon Payne’s Dr. Dawson testified Clyde 17, 1983, of July hours early morning hospital per- or Dr. Dawson pressure. she had no blood pulse to repair formed to a stab wound left surgery Payne’s chest and a killer and prescribed pain sleep-inducing he medication, -combination which testified drugs s. make a person “doubly drowsy.” would John Meduga, with the Illinois special agent Depart- Enforcement, ment of Law he testified that met with a.m., room at on Payne emergency 7:22 17. July condition, Because she able to Payne’s only was re- to Meduga’s spond Agent questions simple with yes or a shake of her head. no, Payne’s responses indicated her assailant was black male who she believed mid-20s, in his feet to was 6 feet 2 inches in height, medium with a no heavy build fa- pot belly, observable hair, and a odor; cial he strong body wearing was a blue- flannel shirt, shoes, plaid jeans, gym blue low-cut and was armed with a shiny revolver that had white han- Agent dle. also at Meduga Payne interviewed two other later At times each of three their day. meetings, stated that she would Payne recognize be able to her as- sailant’s low odor. strong voice growly body
The car in which Payne and Hackett had traveled found was on the by police parked shoulder Interstate 55. Hackett’s on was the front An body seat. re- autopsy vealed that he had shot been five times. Two of the bul- lets recovered were forwarded to State evidence techni- for cians fibers were processing. Reddish-brown found car, floor of Hackett’s on the shoulder of grassy door, the interstate near right front and in passenger area Route 53 grassy Illinois where adjacent was found the motorist. Payne
On eight occurrence, after July days 1,500 viewed Payne approximately photographs out 42 with facial charac- picked photographs persons assailant, teristics similar her 34 of whom had a beard, moustache, does or both. record not reveal whether defendant’s those photograph among Payne
184 on looked Payne viewed 25. On July September of There another were through group photographs. of stack, including in a one defend- single photographs having ant. set aside four photographs persons Payne beard, both, or as facial characteris- having moustache assailant; her defendant’s photograph tics similar to At trial could not recall the four. among Payne photograph among she had seen defendant’s whether those in stack. lived at summer of the defendant
During mother, with his the home his Sam stepfather, Myers, brother, James Johnson. On Sep- and his Dolly Myers, 12, 1983, special tember was questioned by Investiga- Illinois of Criminal with the Division agents use of his black stepfather’s tions regarding truck, which was parked Chevrolet Scottsdale pickup at time. In mid or late outside the residence Myers truck to the Sam September, Myers brought pickup Illinois, to have home of Ernest Ulmer in Lockport, Due black. some rust truck repaired repainted truck, on the which illness, was unable to work Ulmer in his In either October November was stored garage. about Christmas, inquired and once before Myers it. The truck truck, that he was in no rush for saying 9, 1984, in the Ulmer until March when garage remained after following developments. it was seized by police the as- into murder and Hackett’s investigation at a sault, murder of stood attempted Payne rape, Ann 28, 1984, when Shoemaker February standstill until office. Shoemaker sheriff’s telephoned County Will Malinkowski, a deputy with Will spoke County Charles him an incident which occurred sheriff, and informed on a 9, 1983, slip her to record July prompted 889930B, which belonged license number plate paper truck. pickup the Myers trial, at Shoemaker defense counsel’s objection
Over *13 late July testified that the hours on during evening 1983, she and a were on Bruce Road girlfriend walking dark Will when a truck with a cabin County pickup them, enclosure over the turned portion flatbed passed corner, passed again. around at and them After sev- eral such passes, more became and girls frightened returned to a had tell- been at earlier. After party they ing truck, about Shoemaker and her friend everyone got into Shoemaker’s car and followed the truck. On cross-examination, Shoemaker they explained wanted to find out who driver of the truck be- was cause he believed that was someone who they they knew was a joke on them. playing
The two followed the truck for an hour, over during which time Shoemaker wrote down the aforementioned license number along with words “blue or black Chevy.” Several times they pulled into shut driveway, off the car lights, time, and waited. Each the truck would turn around and come back. Shoemaker Finally, that, testified at one point, saw the truck they pulled over to the side of the road under a street its light with hood driver, up. who near the standing passen- ger truck, man, side of awas black approximately feet 9 inches height, weighed approximately pounds, and was wearing what Shoemaker believed was a red-flannei shirt. not The record does what indicate Shoemaker did after she observed driver of the truck.
Thereafter, on 6, 1984, March Shoemaker met with Malinkowski Deputy and James Fetzner of Investigator the Will sheriff’s County police, and tendered to them slip paper bearing of the license number Myers truck. That same Meduga visited day, Agent at her Payne home, where he her an array showed five Of the five photographs. photographs, defendant’s was the one only among those on submitted Payne 1983, at she identify which time did
September The record does not disclose whether his photograph. of the four were those among other any photographs 25,1983. Payne July submitted to After defendant’s for several examining photograph the defendant as minutes, identified Payne tentatively he assailant, stating “pretty right” her looked is it’s him I can’t sure— “my but be adding gut feeling his looks hairline seems right right.” his side view Meduga she that she Agent testified that told Payne if heard in her identification she could be more certain the individual’s voice. 9, 1984, a six-person lineup
On March viewed Payne *14 were at the courthouse. The six County participants Will 2 6 feet males, from 5 feet 8 inches to ranging black from to 250 weighed pounds. inches in and height, feet in height, weighed Defendant was 5 9 inches time of the Because defendant lineup. at the pounds at the time and had a moustache and beard goatee-type had observed Payne were uncertain as whether police assailant, facial hair her three other were participants on beard, moustache, included who had either a both. until told not to Agent Meduga Payne say anything individually repeated after all the had participants “Get on her assailant had made: following commands truck,” “Stay on to the belly and crawl ground your floor,” low,” truck,” “Keep “Get in the on the “Stay Af- closed,” and “You closed?” got your eyes your eyes commands, had repeated Payne ter each participant as the defendant’s face voice identified positively told of her assailant. further Payne same face and voice per- had heard the participants that she Agent Meduga body if to smell their and when asked she wanted fectly, no need to do so be- stated that there was odors, Payne the as- the defendant was she had no doubt cause sailant. 9, 1984, March signed
On Sam “Consent Myers Search” form for The form the search police. authorized of the truck at residence and pickup parked Ulmer indicated that it with an Myers voluntarily signing understanding that he had a to refuse consent. right locating the truck had Upon garage, Ulmer police it towed to Illinois State Police Headquarters, where search of the vehicle was the items Among conducted. found during fibers, the search were reddish-brown stains appeared blood, hairs, which to be Caucasian head and a receipt sales from Great America. Search war- rants for the truck and the were pickup residence Myers issued on the basis of these A items. second search of the truck more uncovered and a reddish-brown fibers steak knife. the items from Among seized res- Myers idence were three .357 magnum cartridges from dresser in the bedroom of top Sam and Dolly Myers, of size-10 pair low-cut gym shoes and another pair size-11 high-cut shoes, both of gym which were found in the basement where brother, the defendant and his Johnson, James slept.
Anna Longo, for the training supervisor merchandis- ing at department Great America, testified re- ceipt recovered from the Myers truck identified the pur- chase July 16, 1983, of a Tasmanian doll Devil at Great America. The doll itself had to be destroyed *15 after the Hackett vehicle shortly was processed because it was saturated with blood and infested with insects. Longo identified a of doll photograph the as depicting the same Tasmanian doll Devil sold at Great America.
David a Metzger, forensic scientist with the Illinois Department Law Enforcement’s Bureau of Scientific Services, testified that the vast of fibers discov- majority as, ered within the truck were the same with Myers some from, those at being indistinguishable found the stabbed, scene been Payne where had on her clothing bedsheet, car. The and outside of Hackett’s and hospital of the clumps unusual nature and fiber multiplicity as found, to be useful Metzger only which appeared object, sug- bulk to another stuffing provide strongly had the same source. that come from gested they knife the that found in Metzger further testified in consistent the holes truck was size with Myers shirt, no was found on the blade or though blood Payne’s handle, the knife of com- and on underneath that Metzger mon testified one Caucasian size. Lastly, from the truck was morphologically head hair removed taken from Payne. consistent with a head-hair standard tes- at trial. Chester Green testify Defendant did the defense that defendant had moustache tified for of 1983. Green also testi- and the summer goatee during repair fied that he defendant and Sam helped Myers in Au- and muffler truck pickup exhaust system all that he had seen members of and gust drive the truck. and some of their friends family Myers mother, defendant’s testified Dolly Myers, Finally, all members by family truck was used pickup of the sets of keys and various relatives. One two Mrs. stated Myers truck was kitchen drawer. kept in the mid- her were in Mississippi that she and husband there for a two-week driven having dle July their cars. She testified in one of three other vacation truck was that the muffler on broken pickup to the vacation. front cracked badly prior windshield was however, submitted Sam Myers, The insurance claim on July the windshield was broken indicated Marseilles, Route 6 in Illinois. 1983, at noon on Illinois had testified that defendant worn Mrs. further Myers addition, In for the past years. moustache goatee brother, when testified that defendant’s Mrs. Myers Johnson, girlfriend was not with his staying James in the basement Indiana, he shared a bedroom Gary
189 with defendant. Mrs. the size-10 low- Myers stated cut gym shoes found in basement James belonged and that defendant wore size-11 high-top always shoes— shoes. gym
Defendant contends evidence presented him did against prove his a reasonable guilt beyond However, doubt. it is well in established Illinois that identification of the accused is by single eyewitness conviction, sufficient to sustain a provided that wit ness viewed the accused under circumstances permitting a positive identification. v. People 67 Yarbrough (1977), Ill. 2d 226; People Jones 60 Ill. 2d 307-08; People v. Stringer (1972), Ill. 569.
In an attempt discredit identifica- Payne’s positive him, tion of defendant calls to our attention two pur- ported discrepancies between initial Payne’s description of her assailant and defendant’s actual physical appear- First, ance. out that points Payne estimated that her assailant stood feet to 6 feet 2 inches height, whereas defendant stands 5 feet 9 inches height. We find no substantial Al- here. discrepancy her though ordeal lasted hours, three approximately Payne’s only to observe her opportunity assailant stand- ing was when upright she was crawling the ground toward the pickup truck. Obviously, such difficult and awkward angle little, afforded her if any, occasion to ac- his It curately judge height. is not inconceivable that person on the lying ground could overestimate height of standing another nearby the extreme given vis- ual angle involved. The fact that estima- Payne’s height tion off as inches, was little as three or as much as five, insignificant is under these circumstances.
Secondly, defendant argues that doubt cast on Payne’s identification because her she described assail- ant as no having hair, observable facial whereas defend- ant’s mother and a family friend claimed that defendant
wore a goatee and moustache of 1983. The fatal July it, flaw in this is that like alleged discrepancy Payne’s *17 did not testimony seeing pho she recall defendant’s which included the 137 tograph was among photographs 1983, presents tendered to her in of September simply the witnesses and the credibility of the of question Such are weight given questions be their testimony. fact, the of the trier of and not this within province nor court. It is settled that is neither the duty well “[i]t reviewing judg court substitute its privilege or the credi ment as to the evidence weight disputed of the trier fact who heard of witnesses for that bility and observed the demeanor presented evidence Novotny People 401, 41 Ill. the witnesses.” 2d (1968), 412. a question
The of identification evidence is sufficiency (People v. Williams 455, Ill. 2d (1972), for the jurors for theirs. judgment and we not substitute our 465), will not set a conviction unless A court will aside reviewing reasonable the evidence is so as unsatisfactory raise.a v. Ellis (People as to the of the defendant. guilt doubt v. Reese People 54 Ill. 489, 496; (1973), (1978), 74 Ill. 2d in the case at bar The 51, 58.) presented 2d evidence conclusion. does not us to draw that permit voice identification by the fact Notwithstanding (see a reasonable doubt guilt alone establish may beyond v. Nunn People 983, 989), Ill. App. his at identified voice only asserts that Payne is Defendant’s contention lineup. March par hearing lineup After and viewing merit. without her during given commands she was ticipants repeat identified the defend ordeal, unqualifiedly lengthy Payne recognized that she testified ant as her assailant. Payne at lineup. of her assailant’s face as that defendant’s the in-person lineup, at of defendant Her identification convine- unequivocal trial, positive, at was and again opportu- record reflects that had ing. Payne ample her ordeal and to observe defendant’s face nity during that the conditions lighting particularly good were short, area where defendant In raped Payne. jury could at trial reasonably testimony have believed Payne’s her found that defendant had assaulted and mur- dered Hackett. over-
Payne’s also corroborated testimony whelming circumstantial evidence found within the Myers pickup truck, to which defendant undisputedly had access: the Great America receipt which documented purchase of Tasmanian Devil doll July 1983; fibers, unusual indistinguishable from those found at the scenes where Hackett was murdered and Payne was stabbed; the head hair that was similar morphologically to the head-hair standard of Payne; and the knife which *18 not could be eliminated as the cause of the stab holes made in Payne’s shirt.
Defendant argues that the trial in court erred deny- ing pretrial his motion to evidence seized in suppress of search the truck. However, we with the agree trial court that defendant did not have standing to contest the search and seizure of the truck.
The fourth amendment protection against unreasona ble government search and seizure extends to indi only who have a viduals of expectation reasonable in privacy searched or (Rakas v. Illinois place seized. property 128, 143, 439 U.S. 58 L. (1978), 387, 401, Ed. 2d 99 S. 421, Ct. 430.) Property ownership, while not dispositive, is a factor to be considered in whether an determining individual has to test of a standing constitutionality search and seizure. (United States v. Salvucci (1980), 91, 83, 619, U.S. 65 L. Ed. 2d Ct. 628, 2547, 100 S. Other factors 2553.) relevant in determining whether reasonable privacy exists, include whether expectation defendant was area legitimately present searched; seized;
his in the area or property interest possessory seized; ability use of the area searched or prior property of the to control or exclude others’ use property; of in the See expectation privacy property. subjective United States v. Lochan 1982), Cir. 674 F.2d (1st v. Flowers People 348, 353. 965; App. 111 Ill. 3d (1982), factors, conclude that we by foregoing Guided establishing to his of carry defendant failed burden of in the pickup he held a expectation privacy reasonable at time it searched and seized. fact truck that defendant had driven the truck six months prior other its is insufficient of the lack any seizure view The ques of a privacy expectation. evidence reasonable expectation has a reasonable tion whether defendant must in the area searched or the items seized be privacy circumstances of the of the totality resolved view Becktel People 137 Ill. case. App. particular 815. contention The record does not defendant’s support to the he use and access” right had “continuous Sam truck, Myers. which was owned his stepfather, use the truck Although prior September defendant did had no contact that defendant the record shows the next six months during with the truck whatsoever at, or in present Defendant was its seizure. prior at the Ulmer of, the truck when it was seized possession 1984. More importantly, in March residence of, in, that his presence possession not establish did in the would garage truck it was stored Ulmer while *19 Thus, failed defendant has legitimate. plainly been have to at the of access the truck right to that he had a show and seized. time it was searched interest claim any property defendant did not Finally, he had to that and failed establish in the items seized other- the truck or effects ever stored any personal in its expectation privacy a subjective wise maintained contents. Since we hold defendant lacked standing contest the search truck, and seizure of the we need not consider effect that Mr. written Myers’ consent to search the truck had upon subsequent search police and seizure of the vehicle. The trial judge de- correctly nied defendant’s motion to evidence seized suppress from the truck.
We also reject defendant’s contention that the trial court erred his denying motion in limine to bar the of Ann testimony Shoemaker on the ground relevancy. “The admission of evidence is within the sound discre tion of court, the trial and its should not ruling be re versed absent a clear showing abuse.” (People Ward (1984), 101 Ill. 443, 2d 455-56.) We cannot say the trial court abused its discretion in Shoe admitting maker’s testimony.
Relevant evidence is that having any tendency make the existence of fact any that is of consequence the determination of the action more or less probable probable than it would be without such evidence. (People v. Free (1983), 94 Ill. 378, 413, 2d cert. denied (1983), U.S. 78 L. Ed. 2d 175, 200; 104 S. Ct. People v. Monroe 66 Ill. Defendant 322.) argues that Shoemaker’s testimony was not relevant because it did not him implicate as the driver of the truck Myers on 9, 1983. July We disagree. Shoemaker’s physical descrip tion of the driver fit closely defendant. The fair infer ence that defendant was the driver was not rebutted by evidence that else in the anyone Myers or their family friends had driven the truck that Proof evening. defendant had access to the truck during the late-night weekend hours, as in the Shoemaker incident, was cer relevant tainly his establishing identity, only eight later, days as the individual who murdered Hackett and assaulted Payne during early Sunday hours morning 1983. July
194 in explain also relevant testimony
Shoemaker’s was to the reason was shown ing jury Payne pho the why her fail of defendant on March tograph despite to him from ure identify group photographs to her six months earlier. consequential steps shown of a crime are relevant when neces investigation in a full of the State’s important explanation and sary (People v. onGuy 117 Ill. (1983), to the trier of fact. case v. People Byrd 522, 534; 43 Ill. 3d (1976), App. 3d App. In and in ar closing statement 742.) again opening had unjus defense counsel that suggested police gument, months after the of targeted eight defendant tifiably conducting lineup the March photographic fenses by testi Shoemaker’s in-person lineup. and the subsequent relevant to rebut this therefore, suggestion. was mony, for it and We that was necessary important believe testimony to know basis —Shoemaker’s jury —for an unexplained arguably what would otherwise be in defend securing suggestive police procedure employed People Byrd the court in ant’s identification. As 735, 742, Ill. stated: App. explanation some permitted “The State must be make defendant was arrested why previously unidentified permit- If not to the victim of a crime. this were shown it in ask- play upon argument, ted defense counsel could world—was ing all the men why defendant —of arrested with- trial, insinuating that the accused was out reason.” as concedes that Shoemak- inasmuch
Finally, we activity, criminal any er’s did establish testimony outweighed value clearly conclude that its probative had. if that have effect, may it any, prejudicial erred trial court Defendant also contends Bu- Peele, the Federal with Roger special agent allowing a neu- results of to the reau of Investigation, testify cartridges he on the conducted analysis tron-activation found the defendant’s home and the recovered bullets argues from victim. Defendant the results of Agent irrelevant, Peele’s were inconclusive and analysis and that he therefore denied his to a fair trial right by its admission. Because the neutron-ac- admissibility results has never chal- tivation-analysis before been *21 in reviewing State, the of our a ex- lenged courts brief planation of its and within the operation application, case, context of this is in order. trial,
As Peele Agent at neutron-activation explained is a two-phase method of instrumental chemical analysis detects, which in analysis, million, trace ele- parts per ments in a sample of material for the of identi- purpose of fying source the material. In hand, the case at were sample pieces first cut from each bullet. In the en- ergy-activation phase, the samples were placed sepa- in a reactor, nuclear rately with neutrons, bombarded and made In thereby radioactive. the energy-detection each phase, radioactive was removed from sample reactor and the presence and of quantity any trace amounts of and in antimony, copper, arsenic the bullet lead were determined the number by measuring of and gamma rays associated emitted. energy The manufacturer, Agent Peele explained, specifies quan- tity antimony that is added its lead for hardening purposes. arsenic, and on Copper hand, the other are used the manufacturing process, but amounts present random, are not specified. Therefore, boxes cartridges on manufactured or about the same will day contain unique quantity of these trace elements. By comparing the trace-element composition of the samples, Peele Agent was able form an as to whether opinion the bullets at found the scene of the Hackett murder and in defendant’s home would be found within commonly same box from cartridges or another of the box same type and on or manufacture-packaged about the
same day. that the neu- record belies defendant’s assertion at or, results inconclusive tron-activation-analysis were best, a conclusion that the bullets tested only supported were manufactured on the same While day. possibly Peele of arsenic in the testified that absence Agent him from prevented ultimately designating samples he fact match, stated that that arsenic was not de- of the provided sig- tected nevertheless any samples them. Based among upon very nificant correlation of the close and bullets copper antimony compositions the defend- from the scene of the Hackett murder and residence, Peele concluded that the Agent samples ant’s among bullets “would be to be found commonly expected cartridges just within the same box of with compositions [i.e., these, cartridges another close like box from the same type could be found composition] best manufacture the same We find packaged day.” conclusive, Peele’s while not Agent testimony, *22 more a of common possibility origin. than clearly imports Defendant cites State v. Holt 2d (1969), 17 Ohio St. 365, 81, expert opin- 246 N.E.2d for proposition or an less certitude than a “probability” ions expressing of a neutron-acti- interpreting “actuality” results case, In that the Ohio analysis vation are incompetent. it above adopting Court stated that was Supreme has “since Activation Analysis yet standard Neutron reliability, reached of point generally proven the witness followed testing procedures by since 81, 85, Ohio St. 2d challenge.” (17 herein are subject case” 365, 367.) “leading Far from being 246 N.E.2d Holt is, re- our on the as defendant subject, suggests has adopted that no other search indicates jurisdiction of a neutron-activa- the results excluding its rationale tion analysis. of Holt as limited to the view the persuasiveness
We
197 context in which the decision was rendered. temporal When Holt was decided the Ohio court was correct that neutron-activation rela observing analysis new and untested forensic-science Since tively technique. Holt, however, has come to analysis neutron-activation be accepted as forensic-science consistently reliable with a technique, holding that majority jurisdictions the results such tests criminal are admissible in pro ceedings. Chatom v. State 348 So. 2d (E.g., (Ala. 1977), 838; v. 1980), 977; Keith State 612 P.2d Mills v. (Alaska (Fla. 1985), 172; State 476 So. v. 2d State Warden , (1979) 21, 836; 100 Idaho 592 P.2d State v. Ulrich (1980) , 347, 1218; 187 Mont. 609 Journey P.2d State v. (1978), 201 271 607, 320; Neb. N.W.2d v. Commonwealth (1977), Sangricco 179, 475 Pa. 379 A.2d We are 1342.) persuaded reasoning those courts in so doing and likewise believe that lack of any certitude in a quali fied expert’s testimony, inconclusiveness in results of an otherwise reliable neutron-activation goes analysis, to the and not the weight of such evidence. admissibility v. Mills State (Fla. 1985), 176-77; 476 So. 172, 2d Jones v. State 425 (Ind. 1981), 128, 131; N.E.2d State v. Spen cer 298 (1974), Minn. 460, 216 131, 134; N.W.2d cf. County v. Cook Industrial Com. (1977), Ill. 2d 18 (medical testimony that conditions of employment “could have” or “might have” resulted in injury prop admitted erly despite objection that testimony was incon clusive and speculative); People Columbo Ill. App. (microscopic analysis establishing “possibility” that two hairs came from same source properly admitted). we are
Finally, not persuaded by defendant’s conclu- assertion sory the results of the neutron-activation *23 analysis were irrelevant. As earlier, stated evidence is it relevant if has to make of any tendency the existence any material fact more or it probable probable less than
198 v. Free (People (1983), would without such evidence. be cert. denied 378, 415, 464 U.S. (1983), Ill. 2d Clearly 2d 104 S. Ct. the test results 200.) L. Ed. ma as more establishing, probable, were relevant in Hackett murder terial fact that bullets from the cartridges from the same box as the found were dis home. The trial court did not abuse its defendant’s this evidence. allowing cretion that his convictions should be urges Defendant next made various comments reversed because prosecutor him which denied his closing argument allegedly during majority to a fair trial. that the vast right We observe objected were not to at trial the remarks complained are there in defendant’s motion and post-trial or raised is that an error unless it “plainly apparent fore waived or has denied so that real been justice is prejudicial er from the of the have resulted jury may the verdict v. Yates 502, 533.) ror.” (People 2d Upon 98 Ill. (1983), unobjected record, say we cannot review a nature that either standard remarks were such violated. clos a prosecutor during made Although opinions con court has are this ing argument generally improper, comment exception an where recognized sistently v. Adams (E.g., People on the evidence. was based People Holman 118; (1984), Ill. 2d one all of 133, 172-73.) With exception, 103 Ill. comments were properly prosecutorial unobjected-to infer a reasonable the evidence presented upon based one comment The prosecutor’s ence drawn therefrom. to the ev relating on a matter not an expressing opinion he came when stated: idence fate, Gail’s it to call it a miracle. I’d like may “Some call *** the reason for that is In spared. my opinion
life was day down some opportunity that she could have so in this stand some court upon to sit witness the road *24 finger person, finger and that man that land black slaughtered her boyfriend.”
Defendant does not that this comment argue preju- diced him the fact that it was an ex- beyond improper record, and this opinion, on we will pression personal However, not we find conjecture otherwise. unnecessary and offensive the reference to potentially prosecutor’s man,” as “that though black even defendant does not contend that the remark intended to incite was racial that it among all-white had prejudice jury that effect. alsoWe consider the comment prosecutor’s on he why thought Payne had survived her assault to be pure philosophical musing. we consider the re- Although mark intemperate the record improper, indicates that was instructed to consider jury the evi- only dence at trial and to statements disregard made in any argument that were not closing based on the evidence. remark, We note further that the which objected was not defendant, was isolated and the prosecutor did not dwell on it In further. view of the entire any record and the overwhelming evidence of guilt, defendant’s we can- not that the say comment either constituted improper material factor defendant’s convictions or otherwise him from prevented a fair trial so as to receiving require reversal.
Defendant also complains that the prosecutor improp erly suggested mother, defendant’s Dolly Myers, when she lying testified that windshield truck was pickup broken before she her husband went on vacation middle of 1983. July Over ob jection, prosecutor stated further that there was no way to Mrs. verify Myers’ This court has held testimony. that a prosecutor’s statement that a witness was is lying if it is on improper based the evidence. (People v. Adams (1985), 102, 118; 109 Ill. 2d People v. Tiller Here, Ill. 318-19.) Mrs. testi- Myers’ was in direct conflict the insurance claim
mony with introduced, form the State later which stated that 27, 1983, 10 after July windshield was broken on days entitled to assault. Just as defense counsel was Payne’s Mrs. had mistaken her Myers been argue simply argue the State was likewise entitled testimony, im- nothing that she was We find lying. evidence in the comments. prosecutor’s proper also further error occurred *25 claims that the when the closing prose in State’s rebuttal argument the to to cutor told “You are have decide jury, going members of the is the truth.” jury telling this case who It is that the agree. open We cannot to question jury, to fact, judge as trier of bears the “responsibility truth.” and to ascertain the the witnesses credibility 502, 525.) Further, 98 Ill. 2d v. Yates (People that informed the defendant’s assertion prosecutor liar “in order it have to adjudge Payne that would jury no in the record. support to Mr. Johnson” finds acquit that implied In defense counsel closing argument force in Meduga, major conspiracy as Agent police defendant, suggestive police proce- against employed tentative identification Payne’s dures to prompt Defense coun- on March 1984. photograph defendant’s as on his own Agent acting then Meduga sel portrayed conducting guilt defendant’s by unjustifiably belief in which in-person lineup Payne positively subsequent It that the pros- this context identified defendant. was ecutor responded: liar, you to got say got say Gail is a have
“You have part conspiracy. that is police she [Defense counsel] 6th, we Meduga know said on the says we don’t what he to her. testified. She suggested know She don’t what 6th if March lying happened have to be about what would anything improper.” Meduga suggested did not state that that the did prosecutor It is clear quite defendant could not be unless the found acquitted jury Rather, that was ar- Payne lying. prosecutor simply gued that, before the could defense counsel’s jury accept factual assertion that Agent Meduga engineered sugges- tive would first photographic in-person lineups, they have disbelieve testified Payne’s testimony. Payne it that was she who asked for an Agent Meduga oppor- to make a tunity identification, voice and there was no evidence whatsoever had said Agent Meduga any- to focus attention on defendant. thing improper Payne’s the existence of a By suggesting police conspiracy, de- rebuttal, fense counsel invited this and it thus was nei- ther improper nor prejudicial.
The defendant also complains prosecutor, over objection, urged fact, as jury accept, several unfounded assertions when he explained:
“We don’t gym got have the shoes because he rid of the shoes, gym and we don’t gun got have the because he rid of the gun, and we don’t got have wallet because he wallet, rid of the we don’t got have the he purse because rid purse of the thought he he had the truck out of *** it commissionbecause going painted to be but he *** didn’t know the fibers and didn’t know the receipt *26 was in there. Where was the truck eight for months ***? It up was locked in a garage.” believe that the
We prosecutor’s comments were fair inferences based the The evidence. evidence establish- ing guilt defendant’s was it was overwhelming, therefore a fair inference that items above missing associated with the offense not were recovered because defendant had disposed of them. Moreover, the remarks were an invited response to defense counsel’s suggestion that, considering investigation exhaustive authori- by ties, it was incredible “not one iota” of evidence physical defendant the crimes connecting was discovered until the Myers truck was searched months later. eight that no error occurred
Having determined reversible trial, we affirm defendant’s during guilt phase next charges on all address defendant’s convictions hearing. his of error at the allegations sentencing first note that the affirmation of defendant’s con We his conviction for victions of his contention that disposes of Hackett murder based on the armed felony robbery insufficient evidence and therefore supported could not form the for the aggravating basis statutory his for the penalty. factor which death triggered eligibility 1983, 38, ch. Fur par. 1(b)(6).) Rev. Stat. (I ll. 9— ther, necessary insofar as this conviction provided factor, need not consider we statutory aggravating for that his convictions ancillary defendant’s contention should not be con against Payne the felonies committed factors under statutory aggravating strued support because were not 1(b)(6) they perpetrated section 9— the murder victim. against trial was held before sentencing hearing his to a having right jury the defendant waived
judge, and, of counsel and over State’s against objec advice not tion, during exercised his to be right present At the and over hearing objec course of the proceeding. tion, evidence homicide multiple the State presented during early in Homer Township which occurred 16, Defendant contends hours of 1983. morning July homi was irrelevant because presented the evidence the of in a area and prior cides occurred different because the ev for he stands convicted and fenses which their connect him to did not sufficiently idence did al commission. The State argues from his arising motion error in his lege post-trial any claim of error this and thus sentencing hearing, any v. Szabo (People 113 Ill. 2d (1986), is waived. regard People v. Wright (1985), 148; People 111 Ill. 2d 93; King ruling on Without 533.) 109 Ill. 2d *27 the defendant’s contention is without question, waiver merit. 16, 1983, the early morning hours
During July day incident, four preceding people Hackett-Payne were shot death and in the vicin- two others wounded of 147th Street and Road in Homer ity Gauger Town- ship. from the victims miles Property was recovered 15 from defendant’s residence and miles eight from scene Hackett’s murder. brief,
In his defendant concedes that reply evidence connected the truck the Homer homi- Myers Township cides: a dark-colored Ford or with pickup truck a Chevy cabin over flatbed was seen portion traveling east 143rd Street at high rate at very speed approxi- mately a.m., 3:45 minutes after the In addi- shootings. tion, that, does not contest despite being weather hot and time, humid at the and un- dry faded out receipt made to Sam and last Myers, seen by him on dashboard, the truck’s was discovered at scene under the body Will sheriff’s County auxiliary Steven deputy Mayer. main- Notwithstanding, defendant tains that “no evidence” connects him to the homicides. We cannot agree. Fetzner,
James investigator with the Will County sheriff’s testified that he met police, with Will County sheriff’s auxiliary Dennis deputy Foley five six times the Homer following Township shootings. Deputy Foley, who was for hospitalized wounds, gunshot serious died after days their shootings. During meetings, Dep- uty stated that he and Foley as Deputy Mayer ap- 147th proached Street and Road Gauger they observed a brown van partially blocking nose to nose roadway with a car. red (Later vehicles, discovered the two red Chevrolet Chevette and Suburban, brown Chevrolet were the bodies of three of A black man victims.) walked from behind the driver’s side of the van and said *28 he The a hand-
that needed a man then “jump.” pulled and He next took their gun deputies. guns and shot both his was wear- wallets. noted that assailant Deputy Foley that the a flannel shirt and blue He also stated ing jeans. 6 feet height, weighed assailant was approximately over 200 and was clean-shaven. pounds, Troutman, Fetzner interviewed Laura
Officer also who was a Suburban passenger Chevy brown Fetzner driven Troutman told Officer Kiehl. by George Kiehl on 147th traveling that she and were westbound pulled Street when observed medium-blue they pickup red facing into a field entrance Chevrolet partially A man next to the driver’s standing Chevette. white was down, his with his arm on of the car and head top door the car. as he were to someone inside though talking Street, 151st and Kiehl drove down to Troutman Trout- the return trip, turned around and came back. On and she flashing, man see red of a car lights squad could the vehicles. As thought she saw someone duck between truck, man; Trout- neared the a white who they pickup them, officer, “Stop. man called to police was thought and rolled Wait, When Kiehl slowed vehicle wait.” Offi- fired. Troutman told window, down his shots were shot she had been by cer Fetzner that she thought County However, also told Will officer. Troutman police that a photograph Charles Malinowski Sheriff’s Deputy scene, at who found dead Mayer, of Deputy that of appearance looked similar” in “very physical of their vehicle officer she had seen front the police shot. she was before Anthony that indicated ballistics evidence
Stipulated shot with a .38 were both Hackett and Deputy Mayer lands six characteristics creating rifling .357 weapon anal- Also, neutron-activation six left. grooves .357 and the from their bodies recovered bullets ysis of a close home were in defendant’s found cartridges association, such would com- compositional they bullets from the same box of car- monly be found among tridges or different of the same cartridges type boxes It on or about the same date. manufacture-packaged was further consistent with stipulated shoeprints Converse Brand All-Star shoes were found near the gym Chevette and car. squad of evidence at the admissibility aggravation and
mitigation
sentencing
is not
phases
hearing
gov
erned
rules of
effect
restrictive
evidence in
at the
phase of
trial.
v. Free
guilt
(People
Ill.
378, 426-27,
*29
865,
cert.
(1983),
denied
464 U.S.
78 L. Ed.
175,
200;
1983,
104 S. Ct.
Ill.
38,
Rev. Stat.
ch.
par.
1(e).) The broadened standard governing admissibility
9—
of evidence allows the
the
State and
defendant consider
able
in presenting evidence so
as
leeway
long
prof
fered evidence is relevant and reliable
v. Owens
(People
,
(1984)
88, 111,
102 Ill. 2d
cert. denied
U.S.
963, 83
L. Ed. 2d
105 S.
362),
Ct.
as determined by
trial
in
court
its sound discretion
v. Perez
(People
,
(1985)
108 Ill. 2d
88). Proof of
misconduct not
prior
in
resulting
prosecution
conviction is
as
admissible
relevant to the
question
defendant’s character. (People
v. Brisbon (1985),
In light of these principles and given nature Officer Fetzner’s as well as testimony, cir- strong cumstantial evidence find presented, we cannot that the judge trial abused his discretion in evidence of admitting defendant’s involvement in the Homer homi- Township cides as sentencing relevant phase of defendant’s trial. The Homer Township incident occurred less than 24 hours before murdered Hackett and almost told Payne in murdering Significantly,
succeeded Payne. male, medium her assailant was black that police shirt, build, jeans, gym a flannel blue wearing heavy Fetzner that also told Officer shoes, Foley while Deputy over 200 weighed male who his assailant was black More- shirt and jeans. and wore a flannel blue pounds, All-Star with Converse Brand over, consistent shoeprints the fact at the scene. Given were discovered shoes gym never directly this evidence was accuracy not its discretion the trial court did abuse challenged, The trial court was aware the evidence reliable. finding in the Homer had to be charged that defendant yet fact to consider- and was able Township slayings value of the evidence. aggravation weighing and un that he argues involuntarily Defendant next to assist right his sixth amendment waived knowingly court, trial in accepting ance of counsel because in mitigation, to call witnesses decision defendant’s affirmative presentation him that without not inform did himself subjecting defendant was evidence mitigating Fol penalty. of the death mandatory imposition to a counsel defense aggravation, the State’s case lowing stead remained the trial court that defendant informed and during before wish, in his adamantly expressed fast to have coun his right waive sentencing hearing, *30 had intended evidence. Counsel mitigating sel present note that We minister and defendant’s parents. call a motion. issue in his post-trial not raise this defendant did it deemed is regarding claim of error Accordingly, any People v. People 83, 93; Szabo Ill. 113 2d (1986), waived. King v. 128, 148; People v. Wright 2d 111 Ill. (1985), 514, 533. 109 Ill. 2d (1986), waived, defendant’s not
Moreover, if it had been even le- the erroneous fail, since it rests upon would argument must be imposed penalty the death gal premise coun- his to have right waives a defendant capital where
207 sel pen evidence. Neither our death present mitigating nor court the au statute the decisions of this alty permit tomatic of the death or likewise allow imposition penalty, for an a a result admonishment that such obtain, shall where capital defendant waives presenta tion of evidence. it to while a mitigating that, Suffice say defendant shall if are be sentenced to death there no factors sufficient to of the mitigating preclude imposition death (Ill. 1983, 38, Rev. Stat. penalty (l)(g), ch. pars. 9— (h)), found in mitigation may be the evidence adduced at trial as as well evidence introduced at sentenc any ing hearing. People 1, 100; v. 103 Gacy (1984), Ill. 2d People 129, v. Lewis 88 Ill. (1981), 146-47, 2d de cert. nied 1011, 456 U.S. (1982), 1308, 73 L. Ed. 2d 102 S. Ct. 2307; v. People Carlson 79 Ill. 2d (1980), 564, 589-90.
We next address defendant’s argument qualifica tion of the jury pursuant to Witherspoon v. Illinois (1968), 510, 391 U.S. 20 L. 776, Ed. 2d 88 1770, S. Ct. denied him his to a right from a fair jury drawn cross- section of the community and resulted a conviction- prone The jury. Supreme Court has recently rejected Lockhart v. McCree (1986), 169, 476 U.S. 90 L. Ed. 2d 137, Ct. 1758, 106 S. to the challenge qualification jurors under Witherspoon precisely same grounds as defendant now raises. Our decisions are in harmony with Lockhart and therefore need be reconsidered. qualification jurors under Witherspoon does not a defendant deny to a right drawn from a fair jury cross-section v. community (People (1985), Neal 180, 197; Ill. 2d People v. Ill. 2d Gacy (1984), 1, 37-38; v. People Silagy (1984), 147, 101 Ill. 2d nor 165), does it result v. conviction-prone Neal jury (People (1985), 197; 111 Ill. People v. Collins 279; Ill. 2d People Gacy (1984), 103 Ill. 2d 37- 38). also three
Defendant raises issues the II- alleging that *31 208 All of
linois death statute is unconstitutional. penalty considered previously defendant’s contentions have been the rejected this court. This court has rejected by of the is ar contention that death imposition penalty limited to do not special individuals who bitrarily require or or assistance understand provisions proceeding (People v. Neal 111 Ill. 2d (1985), assist their defense. Madej (1985), v. People 212; 201, 106 Ill. 2d 180, 202; cert. v. People 499-502, Stewart 463, Ill. 2d (1984), denied 267, 86 L. Ed. 2d 105 S. 1120, 471 U.S. (1985), also the contention rejected It has 2368.) Ct. fails narrow adequately
death statute penalty of for death from others eligible guilty of group persons v. (People Olinger (1986), 324, 352; 112 Ill. murder. v. Williams People 266; 252, see also 97 Ill. 2d (1983), v. Brownell People 508, 541-44.) 79 Ill. 2d (1980), Finally, the contention that the death pen this court has rejected not contain adequate safeguards pre statute does alty sen of death imposition arbitrary capricious vent Morgan (1986), 148; v. (People 111, Ill. 2d tences. People 202-03; v. Neal People 180, 111 Ill. 2d (1985), Albanese of Defendant 539-42.) 104 Ill. 2d of for reconsideration no arguments fers persuasive decline to do so. issues, these and we therefore herein, judgment the reasons stated For The clerk of is affirmed. County circuit court of Iroquois order setting Tuesday, directed to enter an this court is sentence of 1987, as the date on which the January is County in the circuit court of Iroquois entered death executed le by shall be out. to be carried 119—5 section provided by in the manner thal injection Rev. (Ill. of 1963 Procedure of the Code of Criminal A certified 5). copy 1983, ch. par. Stat. 119 — the clerk transmitted in this case shall be mandate Corrections, to the warden Director of to the this court Center, and to warden of Stateville Correctional the institution wherein defendant is confined.
Judgment affirmed. *32 SIMON, dissenting JUSTICE in and concurring part part: in
I in concur decision to the con majority’s uphold However, viction. for the reasons set forth in my sepa 129, rate in v. Lewis opinions People (1981), 88 Ill. J., in (Simon, (1984), 179 v. dissenting), People Silagy 147, J., 101 Ill. 2d in (Simon, concurring part dissenting in part), People Albanese Ill. 2d J., (Simon, concurring and dis part I senting part), believe the Illinois death penalty is statute unconstitutional and that the death sentence in this case should be vacated.
(No. 62371. al., WAYNE O. SMITH AIROOM, INC., et Appellees, v.
Appellant.
Opinion Rehearing October filed 1986.— denied December 1986.