*1 (No. 78011. ILLINOIS, Appel- STATE OF
THE PEOPLE OF THE MILLER, lеe, JOSEPH Appellant. Rehearing
Opinion August denied filed 1996.— September 1996. *5 McMORROW, J., concurring. specially Schiedel, Defender, and Allen H. Deputy Charles M. Andrews, Defender, Assistant of the Office of the State Defender, Springfield, appellant. of for Appellate General, of Ryan, Attorney Springfield, James E. (Bar- Lyons, Attorney, of Peoria and Kevin W. State’s Preiner, General, bara A. Arleen C. Solicitor Moutoussamy Penelope George, Anderson and Assistant counsel), General, Attorneys Chicago, of of for the People.
JUSTICE HEIPLE opinion delivered court:
Following jury trial the circuit Peoria defendant, Miller, County, Joseph was convicted of 1(a) degree six counts of first murder. ILCS 5/9 — (West 1992). jury eligible The same found the defendant for penalty the death on the basis the defendant’s having killed more than one individual. 720 ILCS 5/9— 1992). 1(b)(3)(West jury determined that there were *6 no mitigating factors preclude imposition sufficient to of a sentence of death. The trial court sentenced defendant (134 to death. The defendant’s sentence has been stayed 609(a)) (Ill. Ill. 2d R. pending direct to appeal this court 603). 1970, VI, 4(b); Const. art. Ill. R. For the § follow, reasons which we affirm the defendant’s convic tion and sentence of death. (1) appeal court,
On to this argues defendant that: the trial in failing court erred to suppress he statements (2) police; made to the triаl admitting court erred in (3) evidence; DNA evidence that'he committed other (4) admitted; crimes should not have been trial improperly hearsay allowed testimony regarding his (5) car; possession of a a detective should not have been testify to allowed about clothing women’s recovered (6) from apartment; defendant’s prosecutor made improper closing comments during argument at the (7) stage capital sentencing hearing; second of the jury capital sentencing hearing instructions used at the (8) law; did not reflect the the death is penalty un- constitutional.
BACKGROUND 1993, of of September the nude bodies three women, Logue, Marcia Helen Dorrance and Sandra Csesznegi, found in Peoria County. body were rural The drainage Marcia in a in the Logue of was found ditch September 500 block of South Cameron Lane on with of pillow body a stuck her mouth. The Helen case Logue’s on body Dorrance was found 50 feet from body Csesznegi of was found same date. The Sandra drainage September near on ditch Christ Church Road of Csesznegi’s body decompo- 26. was in a state advanced All women known prostitutes sition. three were Peoria area. with of charged
The defendant was six counts first Logue, degree murder for the murders Dorrance and Csesznegi. Sangamon County to The trial was moved pretrial publicity. due extensive following
At trial evidence was elicited. Marcia 15, 1993, had seen on Logue September last been alive entering a maroon-colored car which was driven male white in his forties or Helen Dorrance was fifties. September Csesznegi seen 1993. last alive Sandra on September was last seen alive 1993. 29, 1993, p.m., 11:30 September approximately
On depart- Pyatt police Detectives Rabe and Peoria County ment and Detective Hawkins the Peoria Peoria sheriff’s went defendant’s department him in the Peoria question about crimes apartment into the detectives area. allowed apartment. a search apartment and consented to of his *7 the to the voluntarily accompanied He then detectives During the sheriff’s ride to County department. Peoria asked the detec- department sheriff’s the defendant the him The talk to about. detec- they tives what wanted to they discuss the told that would tives the defendant department. the they arrived at matter when sheriff’s all what this then stated that he knew The defendant about; prostitutes that it was "about the the time, At that read Miranda newspaper.” defendant was warnings. quеstioned depart- at
The defendant was the sheriffs ment, knowledge the any where he denied murders During the questioning the three women. the defendant during his a knife identified as obtained search of Faggott. Oldsmobile The maroon owned Bernice de- police any fendant stated that would find blood statement, on explain the knife. When asked to this he replied thought Pyatt might defendant Detective have believed there was blood the knife because of missing women and said he anticipated had police calling. would be The defendant claimed that knife fell out of pocket when he was a passenger Faggott’s car.
At about 8:30 morning, the next the defendant agreed to accompany Detectives Rabe and Hawkins to Cameron Lane. Detective Rabe group testified that stopped first at the apartment defendant’s so that defendant could retrieve medication. Detective Rabe during drive, stated that he and Detective Hawkins speaking were the three When about bodies. the detec- Lane, tives reached Cameron Detective Rabe asked the defendant if the bodies had been dumped at the same replied time. the bodies had been The. dumped different times and stated bodies placed were in a they manner so that could not be found. The defendant then directed the detectives to Christ near Csesznegi’s Church Road where body was discov- ered. The defendant did not make any reference to the precise Csesznegi’s found, area where body was but did state that the area in his stuck mind for some reason. Throughout having drive the defendant denied killed the three women. apartment search defendant’s revealed two
robes, underwear, and a mini-blind rod a female broken appeared white covered with what to brown and cloth also and police pillows be dried blood. The recovered a items had mattress from defendant’s bedroom. These splatters were on stains. Blood also found reddish-brown A a wall the bedroom and the bed’s headboard. later glove, rug a a and more women’s search revealed throw search, During police col- underwear. the second and lected hair fibers. marshall,
Crystal Taylor, deputy a United States a she with defendant testified about had conversation February Taylor 1994. testi- request defendant’s on discussing fied when she and defendant were stated, strangula- "[F]rom three women defendant I I The defendant tion am convinced did these three.” into go indicated to her he was afraid things happened had there. The bedroom because bad Taylor the three spoke also about women looking off dump and for sites a road. Jumbelic, pathologist for Peoria Mary
Dr. a forensic County, that she conducted autopsies testified about Logue’s injuries, body revealed extensive on bodies. neck, ligature and marks her including stab wounds on Logue, right ankle. had been the victim of left wrist Logue’s body marks on were a sexual assault. Other mini- be inflicted consistent with those that would Logue died as apartment. from blind rod recovered trauma, wounds, gagging multiple blunt a result of stab dead strangulation. Dorrance had been of the mouth and a sexual longer Logue was the victim of than also with asphyxia, died a result consistent assault. She as Csesznegi had strangulation. Jumbelic believed found a when she was for more than week been dead body. of her decomposition advanced because of the she too had Csesznegi’s body showed injuries strangled. been testimony
Other that a maroon Oldsmobile revealed registered Faggott reported missing to Bernice was on a September 1993. It recovered Peoria few September from the defendant’s apartment blocks searched, the car was discov- poliсe 1993. When trunk, its knife the front rug wedged ered between seats, and stains on the back seat. Dennis Hall dark Faggott early testified that the defendant knew as as *9 Voight, July of Samuel owned near property 1993. who home, Faggott’s testified that he saw defendant enter Faggott’s August screened-in on porch 1993. McGovern,
James security guard a at defendant’s complex, apartment testified that he saw the defendant driving a maroon on in early Oldsmobile two occasions September of 1993. The told defendant McGovern that belonged car to a friend. Mary Decher and Daniel Mayes testified that rode in they a maroon car with the during August the last week of 1993. The de- fendant Decher told he Mayes transport- and ing the car to a dealership. another location for When Mayes questioned the defendant about an insurance glove card he found compartment with the name it, "Bernice” on the defendant stated that a friend had him car lent while the friend was on Mayes vacation. that, testified on occasion, another the defendant told guys him two had stolen car and defendant get needed by rid of it setting it fire. The defen- dant Mayes any told that he had wiped fingerprints from the car left it and on a street in Peoria. When the defen- get dant went tо the car day, missing. the next it was Mayes and Decher rug, testified that a similar to the one found the police in the trunk of the maroon Olds- mobile, had been off a stolen chain link fence their home around the of September. middle Schubert, scientist,
Glenn a regard- forensic testified ing the hair and fibers recovered from the defendant’s car. Schubert and the maroon Logue’s body
apartment, Logue’s case found pillow from the stated that debris hair. pubic the defendant’s consistent with mouth was fibers taken case matched pillow on the Other fibers apartment rug in the defendant’s a throw located from living-room the defendant’s collected from and fibers also Logue’s body fibers taken from Several floor. living- the defendant’s from fibers collected matched the maroon Oldsmo- from Hairs recovered room floor. hair and sev- the defendant’s with bile were consistent with the car were consistent fibers from acrylic-like eral floor. on defendant’s the fibers found Frank, testified expert, DNA William The State’s matched that Logue from fluid recovered seminal in 7% of match would occur Such a of defendant. from underneath Blood recovered population. Caucasian and that of defendant also matched Logue’s fingernails million in 1 exрected be a match could such mattress, pil- magazine, a from Bloodstains Caucasians. apartment found in the defendant’s and towel low Logue. that of car matched Faggott’s from the seat Caucasians. in 1 in 1.1 trillion occur matches would Such pillow taken Further, napkin found on blood *10 Dorrance’s matched apartment the defendant’s from 1 in 466 occurring in a match such profile, DNA with of on one bloodstain Another Caucasians. billion of Csesz- profile the DNA matched pillows defendant’s in 1 in 1 billion occurring a match negi with such cross-examination, Frank conceded On Caucasians. the world. in people five billion only there were The behalf. on his own testify did not The defendant had cars dark-colored that several stipulated parties 16 and September Lane on near Cameron seen been area where addition, who lived in a resident 1993. a with truck pickup found saw were the bodies On several lettering on the side. rack and construction occasions, stop the resident saw the truck and its oc- cupant around. look guilty
The verdict of six counts jury returned a all of defen- degree jury first murder. The same found the for as eligible penalty, dant the death defendant was of age murdering over the had been convicted оf stage of the least two individuals. At the second sentencing hearing, State presented aggravation as evidence for the defendant’s convictions two murders robbery 1977 and one armed 1978. The defendant years was sentenced to of 15 each terms to 30 for of eight those murders and a term of for years four to Thurmon, robbery. Department armed Jack of Correc- parole agent, tions’ testified that defendant was prison April released from of to a mission in County. Cook Thurmon later learned that defendant by had travelled to Peoria September 1993.
The presented of testimony two defendant psychiatrists mitigation as evidence. Dr. Lee Sohee testi- fied that defendant suffered from disassociative amnesia and an antisocial personality. Dr. Lee linked disas- emotional, sociative amnesia to the sexual physical and during abuse defendant received his Dr. Lee childhood. commented that been orphan- defendant had in an age until was he six and was sexually later abused his Dr. mother. Lee did state defendant was happy in September as one friends had sent him a bus ticket travel Peoria and his friend other church members had helped him establish his life in Peoria. Dr. Chapman Robert testified that defendant suffered from disassociative disorder with multiple personality disorder type.
At the stage conclusion of the second the sentenc- ing hearing, jury found no mitigating circumstances preclude imposition "sufficient to death penalty. sentenced to death for the three *11 mo- post-sentencing and post-trial Defendant’s murders. denied. tions were
DISCUSSION Trial Evidence Suppression of court erred alleges that the trial The defendant he statements suppress various denying a motion to The and 1993. police September on made to the he made statements to the specifically points defendant (1) depart- the sheriffs way on the car police in the (2) Road; Church Lane and Christ at Cameron ment and (3) car; being in about Faggott’s the knife found about (4) a mattress car; photograph about Faggott’s and state- The defendant claims on it. with blood of coercion and the result involuntary ments were warnings pursu- given Miranda proper that he was not 436, 16 L. Ed. 2d Arizona, 384 U.S. ant to Miranda trial hearing the pretrial At a Ct. 1602 86 S. there was no evidence court concluded of the involuntariness, physical, or either mental defendant’s statements. high- contentions, the defendant of his support 30. At 29 and occurring September on
lights the events detec- three September p.m. 11:30 approximately other while several defendant’s door at the tives arrived building. apartment remained outside officers police he inside and detectives allowed the The defendant apartment. of his to a search consented to the sheriffs the detectives accompany agreed to tell the defendant did not The detectives department. sug- The defendant him. speak with they wanted why At this missing prostitutes. it was about gested warnings. Miranda read defendant was juncture, placed the defendant department the sheriffs At periodically questioned room in an interview morning through early September hours of 30. At a.m., on a *12 about 8:30 the defendant was taken drive jail Cameron Lane. The defendant was returned to the approximately at 11 a.m. He left 5 p.m. was alone until questioned when he was and taken on another car ride. After depart- was returned to the sheriffs defendant ment, questioned again. he was At p.m. Septem- 7:30 ber 30 the defendant was read second set of Miranda warnings.
A ruling trial court’s on a motion to suppress will ruling not be disturbed unless that manifestly is erroneous (P (1983)) Garcia, v. eople 97 Ill. 2d a trial and ruling is'voluntary court’s that a statement will not be disturbed unless ruling against is the manifest weight Redd, of the evidence People 135 Ill. 2d (1990)). 292-93 voluntarily “Whether statement is given depends upon totality of the circumstances. The test is voluntariness whether the statement was made freely, voluntarily and without compulsion or sort, any inducement of or whether the defendant’s will at Clark, was overcome he time confessed.” case, In the instant the totality of the circumstances shows that defendant’s voluntary. statements were voluntarily defendant accompanied the detectives to the sheriffs department. The detectives did not use force at defendant’s apartment although there were other apartment, officers outside the these officers could not be seen from apartment. inside defendant’s Defendant was the one initially who stated that police were questioning him about the prostitutes. Although defen- time, dant questioned was for some period questioning was not relentless. The detectives described questioning tone cordial. as There were at least 10 breaks given something defendant was to drink and the to opportunity use restroom. The given eat, he to time was food which approximately hour. The defen-
left alone one-half for addition, the defendant never handcuffed. dant was agreed accompany Cameron to the detеctives to Lane Road. and he the detectivés to Christ Church directed driving Lane, de- to Cameron the detectives Before took apartment Al- fendant to his though retrieve medication. al- claims thát he was not the defendant now September sleep 30, the 11 a.m. on lowed to before that he indicated to the detectives defendant never sleep, stop speaking them, with or consult wishéd to attorney. Nothing in reveals that the the record with an procured through were coercion. defendant’s statements Thus, conclusion that the defendánt’s the trial court’s against voluntary manifest is not statements were weight of the evidence. *13 he defendant also claims that the statements
The actions in car at Cameron Lane and his made directing Christ Church Road should the detectives to given suppressed ad- he had been have been because not warnings. timely equate Defendant states and Miranda trip approximately 8:30 a.m. on car occurred at that the September been read and that last time he had warnings prior day he was when Miranda department apartment sheriff’s driven from his p.m. after 11:30 recently Miranda
This court has
"fresh
stated
required
passage
warnings
not
after the
of several
are
A
Garcia,
hours.”
warnings
required "only is
those
new set of Miranda
probability exists that
a
situations where
substantial
warnings given
interrogation
previous
so stale
are
possibility
exists that
and remote that a substantial
suspect
rights
of his or her constitutional
was unaware
interrogation
subsequent
Garcia,
occurs.”
at the time
totality
The
of the circumstances
The
the instant circumstances shows that
rights
defendant was aware of his constitutional
during
Although
County.
the drive around rural Peoria
it had been several hours since the defendant had been
warnings,
read Miranda
the detectives and the defen
discussing
dant had been
the instant murders and the
Faggott
disappearance
throughout
this time. The
long
breaks that were taken
for
periods
were not
such
warnings
of time that the
question
became stale and the
ing always
agreed
The defendant
to ac
resumed.
company the detectives on the car
trip
was the one
who directed the detectives to Christ Church Road. Ad
ditionally,
prior
defendant had
experience with the
system,
criminal
evidencing
further
justice
knowl
edge
right
of the
to remain silent and to
attorney.
an
Garcia,
Thus,
See
Defendant the trial court erred in qualifying Frank to testify general about the acceptance (DNA) reliability deoxyribonucleic acid evidence admitting and in the DNA evidence at his trial. pretrial
trial court held a hearing on the State’s motion to admit DNA evidence. Frank only was the individual *14 to testify hearing at the on behalf de- of the State. The fendant evidence, chose not to present any witnesses or notwithstanding that he provided had been the time and funds to secure expert. hearing an After testimony background on Frank’s training, the trial court qualified an him as expert. regard- Frank then testified
184 Length ing Fragment Polymorphism the Restriction (RFLP) DNA and the manner in which testing method of calculated, the manner in including matches are DNA at the State which such calculations are made Illinois Sciences, Frank is Bureau of Forensic where Police techniques by Frank testified that the used employed. calculating in DNA matches and their laboratory are those used frequency population in similar hearing the testimony, the FBI. After Frank’s trial Illinois1, prior the DNA precedent held based on genеr- testimony were procedures outlined Frank’s field and such ally accepted particular scientific would be allowed at testimony and DNA calculations defendant’s trial.
Addressing
arguments
merits
of defendant’s
profiling.2
a brief
of DNA
DNA is
necessitates
account
in the cells of the
genetic
code which is found
hu-
composed
A
is
three
man
DNA molecule
over
body.
adenine,
different chemicals:
pairs”
billion "base
four
guanine.
particular
pattern
cytosine
thymine,
it
1Although the
did
mention the cases was
trial court
not
on,
following
time of
relying
cases had been decided
testimony:
hearing
to admit the DNA
on the State’s motion
Watson,
Stremmel,
(1994); People
App. 3d
People v.
Ill.
93
v.
258
(1994);
Mehlberg,
App.
People
249 Ill.
3d
App.
Ill.
3d 915
v.
257
Miles,
(1991); People
(1993);
App. 3d
393
499
agreed that
App.
Ill.
All of the cases
Lipscomb, 215
matching
theory underlying
profiling and the RFLP
DNA
com
technique
generally accepted in
relevant
scientific
is
courts,
munity.
court found that the
the other
Watson
Unlike
calculating the statistical
product rule methods of
"fixed bin” and
accepted.
generally
probability
are
of match
largely on
profiling is based
of DNA
2This court’s discussion
hearing.
pretrial
For a
gave at the
testimony
Frank
which
Anderson, 118
profiling
DNA
see State v.
broader discussion
State,
(1994),
Springfield v.
860 P.2d
P.2d
N.M.
(2d
Jakobetz,
Cir.
1993),
Restriction Polymorphism is a six- step process which an analyst allows to physically see the results of a DNA form profile the of bands. Since length the of polymorphic fragments DNA differs be- individuals, tween individuals tend have also to differ- ent positioning their of bands on a DNA print, called an autoradiograph analyst or autorad. An makes a visual comparison of DNA patterns band to determine whether known and unknown samples DNA came from the same source, whether samples did not come from the same comparison source or whether If inconclusive. an unknown sample DNA has a not been excluded from comparison, computerized a program measurement is used compare the lengths fragments. of the DNA If patterns DNA band a range, fall within certain samples are declared a match.
aFor match to be meaningful, analysis statistical is required. The statistical analysis determines frequency which a match would occur in a database population. case, In this Frank used the fixed bin of determining method frequency of an occurrence. process The of binning way is a counting grouping of or determining bands and frequency of the bands. The used, Hardy-Weinberg Equilibrium is determine a particular band combination. Stated frequency simplistically, frequency multiplied of one band is product and so by frequency of on. second, then two ac- from this calculation is multiplied inheriting one count an individual strand DNA for from father. This from his mother and one strand frequency result of a match constitutes the statistical binning population.-This process within a certain *16 determining product is also known as the frequency rule. allegation first the trial turn to defendánt’s
We that an in qualifying expеrt in Frank as DNA. erred particular is an on a expert Whether an individual to sound subject generally is a matter reserved Chicago & v. of the discretion court. trial Schaffner Co., Transportation North Ill. 36 Western 2d 129 (1989). as testify will an An individual be allowed to and him expert experience qualifications if his afford laypersons, which is not knowledge common and in fact reach testimony where such will aid trier of Novak, 163 v. People ing its 104 conclusions. Ill. (1994). experi and expert only knowledge An need have Novak, average beyond ence of the citizen. for how predetermined 2d at 104. There is no formula knowledge experience expert acquires specialized an or through practical gain can such expert and the .experi ence, education, training or study, research. scientific Novak, Ill. 2d 104. case, not abuse the trial court did the instant its expert an concluding in Frank was is-
discretion that. through involving reveals sues DNA. record Frank education, expérience, pos- and training, research average to the knowledge was not common which sessed chemistry degree Frank a bachelors and citizen. has biology working was masters and liis degree toward in. being on DNA meth- biology with his thesis extraction genetics ods. Frank had takеn several courses and had on DNA methods at both attended seminars classes the FBI has been private laboratories. He certified by been the American Board of Criminalistics and has Thus, subject periodic testing on DNA issues. trial allowing court did not abuse its Frank to discretion testify. testify Frank as an competent expert,
Since was we must next properly consider whether the trial court admitted the DNA evidence. Before this court defendant argues admitting trial court erred in DNA light Watson, evidence which he claims requires finding that the DNA evidence was Defen- inadmissible. dant further testimony asserts Frank’s and method- ology testing were valid because the DNA done by the Illinois State Police lab rather FBI by than or private lab and a person only with a bachelors degree rather than a doctorate.
The decision
expert
of whether
to admit
testimony
about a new
technique
scientific
is committed to the
sound discretion of the trial court.
People
Eyler,
Ill. 2d
Frye
Illinois follows the
standard
for the admission of novel scientific evidence.3
*17
(1981)
Baynes,
225,
88 Ill. 2d
241
(discussing Frye v.
(D.C.
1923)).
States,
United
188 it can be admitted. v. community before scientific 500, Thomas, 2d 517 disagree with the defendant’s contention We admitting in trial erred the DNA evidence. the court trial had on documentation the before Based the testimony appellate the five Illinois it —Frank’s and its court cases —the trial court did abuse discretion the use of relying supported in the cases which and the rule. note technique product RFLP We expert, access to his own DNA provided defendant was any testimony which present defendant did not but testimony. Frank’s The defendant was contradicted Frank ample opportunity to cross-examine provided conducting he used in regarding procedures calculating frequency in with analysis RFLP in case. Frank samples the DNA matched this which procedures he used were the same as testified thаt FBI. trial court did not abuse its those used cases and by relying discretion on the four favorable relying Frank’s than on Watson testimony rather making its decision. deciding majority note that courts
We also six-step on the admissibility the issue of the of evidence to be admis- process RFLP have found such evidence admissibility, including under several standards of sible See, State, 908 Harmon v. P.2d Frye e.g., Daubert. (Ala. 319, State, 434, 1995); v. 889 P.2d Taylor (Okla. Cauthron, 1995); State 120 Wash. App. (1993) 896-97, (citing 15 cases which 846 P.2d testing); general acceptance of RFLP United support 1992). (D.C. Porter, App. 618 A.2d States technique RFLP itself is question There is little that the community. scientific generally accepted the relevant Further, controversy over there has been some while frequency calculating product the use rule to be match, controversy appears dis- of a DNA
189 of sipating. community Some members the scientific originally argued product that the rule is flawed because fragments by it assumes that DNA revealed the DNA and that processing independently occur members groups represented by the racial a database intermix groups regard within their at random without Watson, religion, ethnicity geography. App. or 257 Ill. (discussing Hartl, at D. Popula 3d 930 R. Lewontin & Science, tion DNA 1745 Typing, Genetics Forensic (December 1991)). 20, Lewontin and Hartl maintained reference to a database broad calculate frequency of matches is inappropriate subgroups because may of individuals have substantial differences frequency given fragment. Watson, DNA 257 Ill. App. fact, 3d at 930. In agreed the court in Watson with these critics and determined jury that a could not be given DNA statistical which was on the evidence based Watson, product App. rule. 3d at 933.
Since pretrial case, the time of hearing in this legal the scientific and product status of the rule has continued to evolve. The concerns enunciated Le- wontin appear and Hartl not to have been out by borne empirical Budowle, studies. See Lander DNA Fingerprinting Rest, Dispute Nature, Laid to at 735 (October 1994) 27, (criticizing Lewontin & Hartl’s subgroup analysis). The most recent courts to consider product the use of the rulé have concluded that it is a generally accepted statistical for estimating method frequency See, of DNA e.g., People Chandler, match. v. 604, 610-11,
211 799, Mich. App. (1995); 536 803 N.W.2d Wilds, People 166, v. App. 180-82, Cal. 4th 37 Cal. Rptr. 351, (1995); 2d 359-60 Taylor, 336-37; 889 P.2d at (Colo. 1995) Lindsey People, P.2d 293-94 (discussing in detail findings of Lander and Bu- dowle); Soto, 775-78, 39 Cal. 4th App. Cal. Rptr. Therefore, 857-59 it evident is the trial court had before it given testimony process RFLP acceptance current of the and the level *19 the court did not analysis, statistical trial and the abuse allowing testify regarding in Frank to the its discretion DNA evidence. Other Crimes
Evidence of First, the claims that the trial court erred defendant failing objection an to Detective Rabe’s in sustain testimony regarding the defendant’s statements that he and he the bodies at different times that dumped they in a manner that would be them such not dumped objected testimony Defense to Rabe’s found. counsel that would the defendant’s jury the basis the assume when, were to the instant case statements relevant fact, have about the murder the statements could been Missouri, murders Faggott, a or the the de- of murder as- committed in the 1970s. Defense counsel fendant immediately questioned that before Rabe the de- serted bodies, regarding the two Rabe and the fendant discussing murder. Faggott’s had been prejudiced now claims that he was The defendant "dumping” did not link his state- trial because State The defendant’s ments to the victims in the instant case. is merit as of the record evi- argument without review throughout the detectives’ entire interview dences that ride, including they defendant, the car were of the women, discussing although questioning the three The defendant’s Faggott. have also focussed on may were at Cameron Lane where two statements made and not sheriffs depart- were at the bodies recovered had not mentioned. In ad- The 1977 murders been ment. bodies, dition, to two specifically the defendant referred Faggott single body or a in Mis- single body of not Thus, speak- is the defendant was it evident souri. trial any and others. The ing the instant not victims counsel’s failing not to sustain defense court did err in testimony. to Rabe’s objection Second, the defendant contends that evidence regarding possession his of the maroon Oldsmobile as it that he had a crimi- improperly admitted showed argues nal The defendant propensity. State its simple should have limited evidence fact that defendant was seen the car on several He occasions. (1) McGovern, argues testimony Decher Mayes regarding possession his of the maroon Oldsmo- (2) bile, testimony regarding Voight entrance (3) home, Faggott’s into the testimony of Hall regarding Faggott his introduction improper were testimony Faggott’s because the him in implicated mur- argues der. Defendant the jury also that even if could testimony have inferred from the that he murdered Faggott, jury at least could inferred he have stole her car or burglarized her residence.
The defendant has any waived claims that McGov ern, Mayes’ Decher and testimony implied that he had a involving Faggott, committed crime her car or her by failing object home to to the at trial testimony as ev idence of other crimes. objected Defense counsel the to McGovern, testimony of Decher and on Mayes the basis Decher) of lack (Mayes foundation and and hearsay (McGovern Decher). and It is axiomatic that a defen dant must make a timely at objection trial and must ground renew the for in objection a post-trial written preserve motion alleged to an error for review. v. People (1988). Enoch, 176, 122 Ill. 2d 186 Objections at on trial specific grounds grounds waive all other of objection. (1986). Barrios, People v. 114 Thus, Ill. 2d has defendant the right object grounds waived to on he asserts appeal.
Nor we arguments will consider the defendant’s regarding this testimony the plain under error doctrine. 615(a). 134 Ill. 2d R. plain The error a doctrine allows reviewing court to consider a trial error not properly (1) the in a case
preserved when evidence criminal is (2) is so closely balanced or the error fundamental and magnitude such a that the defendant denied was People Byron, a right to fair trial. 164 Ill. 2d Herrett, (1995); 209-10 Neither in this applies circumstance case. Voight’s next
Defendant’s contention involves of the testimony. presence jury Outside and before Voight’s testimony, defense counsel claimed that Voight’s testimony prejudicial would be to the defen- dant, as to The Faggott. it linked defendant trial and judge required proof an offer of then determined Voight testify seeing ap- could about the defendant proach Faggott’s bicycle home on a and enter her home through porch. trial did not screened-in err Voight’s testimony testimony since allowing did prejudicial testimony imply not involving Faggott. defendant committed crime Prior Voight’s testimony, had been testimony to there other Faggott. the defendant had been to introduced Voight’s testimony simply emphasized the defen- Faggott dant knew had access her potentially Voight testify saw car. We note that did not that he car or her Faggott’s drive off leave home any with items. addition, object defense counsel did not Hall’s thus, and, now
testimony the defendant cannot claim Enoch, Ill. 2d any regarding testimony. error Regardless, testimony prejudicial Hall’s was not 186. defendant, it related that the defendant merely as Faggott July knew 1993. *21 Deputy the defendant also asserts that
Finally, her Taylor’s testimony questioned that defendant federal between state and regarding the difference defendant asserts that improper. crimes was he committed testimony implied had Taylor’s three murders for which he was other than the crime testimony improper. She did Taylor’s was not trial. testify the defendant had been convicted of not for investigation crimes or was under other other crimes, a witness of Testimony by state or federal. her explanation mere to the defendant of difference be- state and crimes more tween federal without does not to had imply jury the defendant committed he other than the ones for which was on trial. crimes Thus, prejudiced by Taylor’s the defendant was not testimony allowing the trial court did err in and testimony. such
Hearsay Testimony testimony Defendant claims that of Mayes, Decher McGovern that defendant told each of them that he was transporting the maroon Oldsmobile for a or dealership had borrowed the car from a friend was trial, hearsay. inadmissible At counsel defense did not object Mayes’ testimony on the of hearsay basis nor any regarding were issues Mayes’ testimony raised in Thus, the post-trial motion. defendant has any waived hearsay regarding claims testimony. Enoch, this 2d at 186. regard
With testimony, Decher’s defense counsel objected on the hearsay basis of Decher before testified that defendant told he her the car transporting for a dealership. counsel objected Defense also on the basis hearsay before McGovern testified that defendant belonged However, told him the car to a friend. de- fendant did not raise as error in post-trial motion the trial objections failure to sustain the to Dech- court’s Rather, er’s and testimony. McGovern’s in his post-trial motion that Decher’s claimed should, McGovern’s testimony have been excluded on basis it was evidence of other crimes. Such a claim is not preserve prior objection sufficient
194
been excluded because
testimony
should have
that
Thus,
issue,
defendant
has waived this
hearsay.
it was
Enoch,
addition,
decline
to
at 186. In
we
122 Ill. 2d
challenge
testimony
hearsay
to the
consider defendant’s
error
plain
and McGovern under
Mayes,
Decher
closely
doctrine,
in
case was not
as the evidence
this
fundamental
any alleged error was
so
balanced and
not
Byron,
a fair trial.
right
his
to
deny
as to
the defendant
Admission of erred argues that the trial court The defendant County of the Peoria sheriffs allowing Officer Molleck garments he regarding several department testify to garments apartment. The' from the defendant’s collected Defense underwеar. two robes and women’s included testimony, of such to the objected counsel admission outweighed probative its arguing prejudice its and the officer was was overruled objection value. note that about his discoveries. We testify allowed to into evidence and were garments were not admitted defendant asserts jury. appeal, to the On not shown to these items was not relevant testimony regarding to had not been linked garments as the prosecution, his The State counters three victims. any of the than probable it more relevant as it made testimony was the three women. defendant killed not that are admission of evidence concerning Questions Fierer, People trial court. of the within the discretion (1988). to be evidence physical For must be connected admitted, evidence physical Miller, People v. the defendant. crime and both the regarding Likewise, testimony 154, 159 Ill. 2d testimony proper unless evidence is physical both the evidence physical links the the crime. were con- case, undergarments instant defendant,
nected to the they as were apart found However, ment. the evidence presented at trial never linked the women’s undergarments any of the three victims. The lay State did not a foundаtion which undergarments showed the were the personal women’s Thus, property. the trial court abused its discretion in allowing Officer testify Molleck to undergar about the ments. Such an discretion, however, abuse of was harm light less error of the overwhelming evidence of guilt. defendant’s Carlson, 92 Ill. 2d *23 (1982) (evidentiary errors are harmless if properly admitted evidence overwhelming is so that no fair- juror minded could reasonably have acquit voted to the defendant).
CAPITAL SENTENCING HEARING
Prosecutorial Comments The defendant asserts that prosecutor’s the rebuttal argument during stage the second of the capital sentenc- ing hearing improperly jury’s diminished the sense of responsibility for imposing the death penalty. The de- points fendant prosecutor’s to the statement: person "And this [defendant] fits the law and the evi- you dence that have heard both at the trial and at the hearing, days a 158 after he came very place out from the they put want to him any back into does not in manner justify death, a sentence simply not of but fits the bill of a person brought who has himself here and should be sentenced under the laws of Illinois to death.” support To argument, the defendant relies on Cald- well 320, v. Mississippi, 472 U.S. 231, 86 L. Ed. 2d 105 S. (1985). Ct. Caldwell, 2633 In Supreme Court found constitutional error in the prosecutоr’s argument that jury’s decision to impose death was not final and was automatically reviewable by the state supreme Supreme court. The Court held that the prosecutor’s argument eighth violated the by leading amendment for determin- responsibility to believe that
the sentencer
the defendant’s
death rested
ing the
appropriateness
Caldwell,
328-29,
A review of the instant less jury responsible not cause the to feel prosecutor did suggest not to the The did prosecutor for its decision. responsibility for were relieved of their jurors they own either the defendant’s sentencing by the defendant to seek review of ability or the of the defendant actions Page, v. People 155 Ill. 2d See jury’s decision. (1993). addition, adequately instructions jury penalty the death jury’s role set forth imposing closing arguments were was instructed jury People also as evidence. See to be considered Pasch, Moore, (1996); Ill. 171 Ill. 2d 204-06 by to two other comments points The defendant also al- argument which during his rebuttal prosecutor impose of whether suggested that the decision legedly defen- "a vote to kill.” The penalty death was not violated Caldwell comments asserts such dant say- responsibility they jury’s diminished because not a vote to kill. ing a in favor of death was votе *24 in prosecution response were comments the not to vote to urging jury the to elect defense counsel’s killing and to value kill, against the defendant to vote prosecutor’s the human life. We find that sanctity the not violate Caldwell deprive and did not comments did hearing. sentencing a fair Instructions
Jury
trial court erred
argues
first
that
The defendant
stated:
which
refusing
give
proposed
instruction
in
unanimously agree on the existence of
"You need not
juror to consider that
mitigating
in
for a
factor
order
her deliberations.”
mitigating factor
his or
Maryland,
The defendant
relies on the case of Mills v.
(1988),
367,
384,
486 U.S.
100 L. Ed. 2d
The
Court in Mills reviewed a
case
mitigating
where the verdict
form contained a list of
circumstances,
accompanied by spaces
jury
which the
"yes”
could check
or "no”
preceded by
a statement
jury "unanimously
find[s]
each of the fol
lowing mitigating circumstances which is marked 'yes’
added.) Mills,
has
proven
(Emphasis
been
to exist.”
384-89,
400-03,
U.S. at
As penalty the Illinois death statute require jury agree- does not to reach unanimous any mitigating ment as to the existence of factors before jury impose penalty. can decide not to the death *25 (1992). v. People Ramey, 152 Ill. 2d People In Hope, 168 Ill. 2d (1995), this court ap discussed the McKoy of Mills and plication to a capital case where the jury regard mitigation was instructed with to as follows: you unanimously your
"If
find from
consideration of all
mitigating
evidence
there are no
factors sufficient
preclude imposition
sentence,
you
to
of a death
then
sign
requiring
should
the verdict
to
court
sentence the
to death.
you
unanimously
your
If
do not
find from
consideration
mitigating
of all the evidence that
there are no
factors
sentence,
preclude imposition
sufficient to
of a death
then
you
sign
requiring
impose
should
verdict
to
a sentence other than death.”
This court
found that
these instructions
did not convey
the impression
jury
to the
that unanimity
required
was
Hope,
a mitigating
before
factor
could be
considered.
168 Ill. 2d at
closing argu
45. These instructions
and the
counsel,
argued
ment
defense
who
that each juror
power
give
opportunity
give
had the
to
death and the
to
life, adequately
jury
unanimity
informed
was
required
mitigating
to find a
factor
sufficient
to
Hope,
preclude
death.
In the present jury given was the same Hope. jury addition, instructions as the in during closing argument, defense counsel repeatedly stressed that each juror power prevent imposition had to Accordingly, of the death sentence. we conclude jury properly sufficiently regard- instructed ing mitigating the consideration factors. The trial court acted within its discretion and did not err in re- fusing request the defendant’s for an on the instruction finding lack unanimity requirement mitigating factors. argues
The defendant next the trial court erred refusing give proposed instruction which stated: deciding "In whether the defendant should bе sentenced death, however, you prevented are not from consider- you any feelings mercy compassion or wish ing or the defendant.” extend toward rejected argument
A
was raised
similar
also
Sanchez,
269-70
See
*26
(1990);
Fields,
18,
v. Stew
People
135 Ill. 2d
74
People v.
Sanchez,
art,
463,
the defen
104 Ill. 2d
492-93
jury
stated that
the
sought
dant
an instruction which
up
to the defendant.” This court
mercy
could "extend
an instruc
held the trial court’s refusal
to tender such
jury
tion on the basis that
was instructed that
it
mitigating
"any
could consider
other
factor” and defense
mitigation
argued
counsel
evidence and
for
presented
closing
Sanchez,
mercy
his
statement.
The rationale to the Sanchez Although instant case. the trial court refused the instruction, given defendant’s proposed jury an instruction which it to a mitigating allowed consider as factor "any supported by why other reason the evidence the defendant should not be sentenced to death.” Fur- ther, mitigating the defendant was allowed to present evidence, and argued mercy defense counsel for in his closing Thus, jury remarks. was in a position mercy, factor, consider or any mitigating other as it saw Thus, fit. the trial refusing give court did not err in proposed instruction.
The
finally argues
defendant
jury
instruc
given
tions
sentencing hearing
were unconstitu
they
guide
tional
jury’s
failed to
discrеtion.
As support
argument,
for his
the defendant cites United
(N.D.
Peters,
States ex rel. Free v.
Supp.
806 F.
705
Ill.
1992). The decision of the Free case has been reversed
reasoning
Peters,
and its
rejected. Free v.
Constitutionality Penalty the Death The defendant challenges raises séveral to the constitutionality of the Illinois penalty death statute (720 (West 1992)). ILCS This previously court has 5/9 —1 arguments considered and rejected the which defendant now raises. The defendant has not presented us with any reasons to reach a different result at this time. first claims penalty defendant death statute eighth violates fourteenth amendments places because it a burden of proof defendant which precludes giving meaningful sentencer from consider mitigation ation to evidence. This court has stated that the death penalty statute does not unconstitutionally cast on a establishing the burden other than death should be imposed. People v. sentence (1995); Mahaffey, Hampton, Ill. 2d *27 Simms, 71, (1992); People v. 149 Ill. 2d 116-17 143 Ill. 2d (1991). 154,184 addition, preclude statutе does not giving meaningful from sentencer consideration a People Page, v. mitigation 232, evidence. 155 Ill. 2d 283 (1992). Strickland, (1993); People v. 489, 154 Ill. 2d 538-39 In a argument, related the defendant asserts is statute because unconstitutional it allows the sen vague aggravating tencer to consider a namely, factor: (Illinois "any Instructions, other reason” Jury Pattern (3d 1992)) Criminal, No. 7C.06 ed. should be sentenced to death. This court consistently rejected has argument a sentencer’s consideration aggravating during nonstatutory the second factors stage sentencing hearing of a results in the capital People v. arbitrary imposition of the death sentence. Neal, 111 414, (1995); Taylor, People v. 166 Ill. 2d 439 Ill. (1985); People Madej, v. 106 Ill. 2d (1985). penalty death that the asserts the defendant
Finally, it does not because suf is unconstitutional statute of an imposition of the the risk ficiently minimize The defendant sentence. death capricious and arbitrary rulings many prior of its reconsider court to asks this consider whether and to the statute regarding renders of the statute all features effect of cumulative argument has been This the statute unconstitutional. occa on numerous this court rejected by and considered 201, 247 157 Ill. 2d See, Edgeston, e.g., People sions. 549-50; Phillips, (1993); Thomas, 137 Ill. 2d at has failed The defendant Ill. 2d 542-43 of his argument support or any citation provide arguments compelling, are not The defendant’s request. request. the defendant’s decline to review we
CONCLUSION stated, circuit judgment of the For the reasons affirmed. The clerk of this County of Peoria is court setting Tuesday, is to enter an order directed 19, 1996, the sentence as the date on which November County of Peoria of death entered the circuit court shall be executed in a shall be carried out. Defendant (West provided by manner the law. 725 ILCS 5/119 —5 1992). copy The clerk of this court shall send certified Director of Correc- of the mandate this case to the Center, tions, to the warden of Stateville Correctional is now to the warden of the institution where defendant confined.
Affirmed. McMORROW, concurring: specially JUSTICE agree and sentence I that defendant’s conviction because I separately be affirmed. I write death should *28 analysis in its of the trial majority believe the has erred DNA evidence at defen- court’s decision to admit that majority states Specifically, dant’s trial. while 202
it is within the discretion of the trial court to determine novel scientific technique gained has general ac ceptance in the relevant scientific community as re quired (see for admissibility the Frye standard under Frye States, v. United (D.C. 293 F. 1923); 1013 People Cir. Thomas, v. 500, (1990)), 137 Ill. 2d and that this de termination will not be reversed an absent abuse of (see People Eyler, discretion (1989)), 133 Ill. 2d the majority not, fact, has applied such a standard review in the case at bar. The majority’s analysis is thus inherently contradictory, only can serve to exacerbate the confusion in our appellate regard court ing the proper standard against review to apply trial admitting decisions excluding or novel scientific Heaton, evidence People v. (compare App. (5th 1994) (trial 469, 476-78 Dist. court’s decision that novel scientific technique generally is accepted in the relevant scientific community is reviewed under tradi tional standard), abuse of discretion with Watson, (1st 1994) 257 Ill. App. 3d 923-24 Dist. ("broad review” may be applied to trial court’s determi regarding general nation acceptance of new scientific technique)).
An abuse of discretion
occurs only where the trial
court’s ruling
against
is
the manifest weight of the evi
Passo,
Mizell v.
dence.
147 Ill. 2d
def
By
inition,
then, a reviewing court may not conclude
trial
court has
discretion,
abused its
or acted within
discretion,
based on evidence that
pre
was never
Heaton,
sented
at
trial. See
App.
Ill.
3d at 478
("Under
standard],
[thе abuse of discretion
we must
look
at the state of the record as it
existed
the trial court
determination”).
the time the trial
court made its
However,
is exactly
majority
what
has done in
the instant
regarding
case.
its discussion
the admis
sibility
evidence,
of the DNA
cites to a
majority
*29
from
opinions
court
article and several
recent scientific
and the court
the article
Both
jurisdictions.
other
controversy sur
lingering
any
conclude
opinions
has
analysis
forensic DNA
rounding
reliability
the
techniques
and,
that the statistical
particular,
abated
in
in
witness
by
expert
the State’s
employed
which were
in the rele
generally accepted
are now
the case at bar
Neither
the article nor
community.
scientific
vant
the trial
of the record before
opinions
part
court
were
Nevertheless,
majority
at 184.
court. 173 Ill. 2d
"given
the trial court had
testimony
concludes that
acceptance
current level
the RFLP
before it
court did
analysis,
and the statistical
the trial
process
allowing
expert]
[the
not abuse its discretion in
State’s
add
testify regarding
(Emphasis
to.
the DNA evidence.”
ed.)
decisions entific evidencе cannot be reversed absent an abuse of review, discretion, then material which was upon only by be this part of the trial record should considered Heaton, If, on the App. court. See 266 Ill. 478. hand, proper other believes that it is majority scientific articles and court cases which were not rely on part of the trial to determine whether novel record technique generally accepted scientific has become community, majority scientific then the relevant acknowledge must the standard of review is not (see Watson, simple abuse of discretion standard 923-24). App. 3d at recognize approach
I believe that the better is materials which were not may rely this court a scientific part of the trial record to determine whether scientific generally is relevant technique accepted (1989), community. Eyler, 133 Ill. 2d court, significant analysis, this sua and without sponte
concluded that trial regarding court decisions the admis- sion of novel scientific evidence should be reviewed for an abuse of discretion. I submit all- encompassing abuse of discretion adopted standard Eyler permit does not a reviewing court to adequately legal address issues raised trial applica- tions of the Frye standard. What is needed instead is a mixed standard of review. Trial court regard- decisions ing whether an expert scientific qualified witness is testify area, in a subject and whether the proffered testimony is in a particular case, relevant should be left to the sound discretion However, of the trial court. trial *30 court regarding decisions question threshold of whether a scientific technique general has achieved ac- ceptance in the relevant scientific community should be to de novo review. This de novo review should subject not be limited record, to the trial but permit should appellate court, where appropriate, rely on sources record, outside the including legal articles, and scientific as well as opinions jurisdictions from other determine general the issue of acceptance in the rele- vant scientific community. good
There are
why
reasons
the determination
of
general acceptance
in the scientific community should
not be left to the discretion of the trial court. Foremost
is the fact
general
acceptance issue transcends
any particular
dispute.
it,
As one court has put
"[t]he
question of general acceptance of a scientific technique,
referring
while
to only one of the criteria for admissibil-
ity of expert
testimony,
another
sense transcends
particular
for,
inquiry,
in attempting
to establish
general
such
acceptance
for purposes of the case at
hand,
the proponent
asking
will also be
the court
to es-
tablish
jurisdiction
the law of the
for future
cases.”
(D.C.
States,
Jones v. United
1988).
35,
548 A.2d
App.
Application of less than a de novo standard of review to
an
invariably
issue which transcends
individual cases
similarly
leads to inconsistent
treatment
situated
Heaton,
469,
Compare
App.
claims.
266 Ill.
with
Watson,
App.
general
257 Ill.
3d 915. The
acceptance
technique
change
a scientific
does not
from one court
another;
general
room to
assessments of that
acceptance
Jones,
change
also should not
from court to court. See
(and
therein); Watson,
Moreover, nothing there is particularly novel about Indeed, de novo standard of proposed review here. previous regarding
several
of
acceptance
decisions
itself,
techniques,
including
scientific
Eyler
court
this
engaged
has
in precisely
type
Eyler,
this
review. See
(citing
Determining
appropriate
standard of review for
regarding
decisions
the admission of novel scientific evi
dence is more than an idle academic
exercise.
certain
cases,
crucial,
the standard of
may play
review
if not
role,
deciding
determinative
the outcome of the case.
See,
Heaton,
e.g.,