*1 (No. 57781.
THE PEOPLE THE OF STATE OF ILLINOIS, Appel-
lee, v. JOHNNY NEAL, JR., Appellant.
Opinion December 20, 1985. Rehearing filed February denied 1986.
SIMON,J., dissenting. Schiedel, M. Defender,
Charles S. Deputy Gary Defender, Assistant of the Office of the State Rapaport, Defender, of Appellate Springfield, appellant. General, F. of Hartigan, Attorney Springfield Neil Ellen M. Rotert, E. Fitzgerald L. James (Mark General, of of Flaum, Chicago, Assistant Attorneys for the counsel), People. the court: of opinion
JUSTICE WARD delivered in a defendant, Neal, Jr., charged The Johnny of Lake County, information in the circuit court criminal 1981, 38, ch. Rev. Stat. (Ill. three counts murder with one count of armed through (a)(3)), robbery l(aXl) pars. 9— 38, and one count of 1981, 2(a)) ch. par. Rev. Stat. (Ill. 18— 1981, 38, 11). ch. par. Rev. Stat. (Ill. home invasion 12— The home invasion count was the State nol-prossed by prior trial, trial. Following the defendant was jury found on all counts. A guilty separate sentencing hearing was held before the same The first jury. jury determined that the defendant was for the death eligible under penalty sections l(bX6)(a) of the through (c) Criminal Code of 9— 1961 (Ill. Rev. Stat. ch. pars. 1(b)(6)(a) 9— through (bX6Xc)). the second phase sentencing, which the heard evidence in aggravation mitiga tion, it decided that there unanimously were no mitigating factors to preclude the of the death imposition The penalty. court sentenced the defendant to death on the murder and, later, counts an imposed extended-term sentence of 60 years’ imprisonment for armed The robbery.
has appealed to this directly court under section 4(b) article VI of the Constitution of Illinois and under our Rule (87 Ill. R. 603).
The evidence showed that on August 1982, the of Lillian body Waid, a widow, 63-year-old was found by her son on the bedroom floor of her residence in Wauke- gan. house had been ransacked. An re- autopsy vealed 17 blunt trauma lacerations of the victim’s head *7 which caused multiple fractures of the skull. Two stab wounds to the left chest which the penetrated heart and a lung were inflicted after the victim’s death. It de- was termined that Mrs. Waid had been dead two or three days before her was body discovered and that the cause of death was blunt trauma multiple to the head.
The son, victim’s Grissom, Ed called the sheriff’s of- fice upon his discovering mother’s body. Grissom testi- fied that when arrived, investigators he the gave officers a piece paper found a bowl where his mother notes. kept piece had the paper names and Chris written on Johnny it, and a telephone number and address which was later determined to the be auto, defendant’s. Mrs. Oldsmobile, Waid’s a blue from missing garage. was her Buzbee,
One of Mrs. J.B. saw a neighbors, Waid’s into or Cadillac Mrs. Waid’s yellow pull driveway brown 19, at on 1982. Mr. Buz- August 6:30 approximately p.m. testified that a man out get bee he saw and woman car, meet on the and enter patio the Mrs. Waid her the a house. The man and left house after short woman the time. This was time that saw Mrs. last Buzbee Waid. trial, At Mr. also identified of the Buzbee picture car, Cadillac, as the defendant’s a tan and car yellow the that he saw in Mrs. on eve- parked driveway Waid’s 19th. of the ning on Sheriff testified that the
Deputy Krempotic John 1982, he 22, on instructed to afternoon August found in the vic- paper the address noted on check He home, pro- or Cadillac. yellow tim’s a brown found to the of the address ceeded location lot defendant’s car in the apartment complex parking Sheriff Steve Se- where defendant resided. Deputy he located menck testified that on August lot of tavern in auto in the the Saloon victim’s parking of which Harbor, significance appears Winthrop later. Fagan Blazincic and Charles testi-
Detectives Michael investigating assigned officers they fied that were the After the scene and investigating homicide. Mrs. Waid’s 22, 1982, attended August they witnesses on questioning After leaving of the victim later autopsy day. office, received information the coroner’s they 19th was lo- in the on the driveway car seen victim’s on of paper the piece cated at address appearing went defendant’s They found at crime scene. the 22nd of August, at on p.m. 11:30 apartment him. dispatcher telephoned interview A police detectives that he meet the two and requested the detectives door. When apartment-complex *8 if speak identified themselves and asked could they defendant, he invited into the apartment. them wife, Jutta, also in the apartment. defendant’s Fagan Detective testified that he advised defend- car, ant that had that his or one similar information they his, had been in Mrs. Waid’s on the parked driveway of 19. The evening Thursday, August defendant replied that car her yes, Fagan his had been in then driveway. advised the defendant they investigating were Mrs. murder of Waid. testified that the defendant Fagan I “Well, nervous and didn’t it.” appeared do replied, At this he Fagan asked defendant if would point, mind dressed getting the detectives accompanying to their car for a conversation private outside pres- ence of his wife. testified that the Fagan defendant was very cooperative and went willingly with them to the defendant Miranda car, car. Once in the Fagan gave The defendant warnings. that he under- acknowledged stood his a rights written notification signed rights form. Fagan asked the defendant of his where- abouts on the evening the 19th. Fagan testified that the defendant stated that and his he wife went to Mrs. Waid’s residence on the 19th about obtain mo- p.m. to tor oil for his car. After that drove they toward bar named Clark’s but had on engine trouble the way. They continued to bar and his the defendant wife to told go car, inside. He repaired inside, then went had a drinks, couple drove home with his Fagan wife. informed the defendant Mrs. Waid’s auto had been taken but was found at a in Winthrop tavern Harbor. The defendant would his replied they finger- find car prints in the because had driven Waid Mrs. to a doctor’s office day before. if asked the he had
Fagan been drinking a tavern the Saloon evening called late of the 19th. The defendant said that when he home returned on *9 did, 19th, fact,
the his went to and he sleep, wife the then drive to Saloon to drink more beer. told Fagan the defendant the had recovered Mrs. Waid’s police at the tavern, auto Saloon to which the defendant re- he the chair get was to electric and plied probably going Fagan the that he had killed Mrs. told detectives Waid. them then asked the defendant if he would with to go the for further to department questioning, sheriffs again the said he would. read Fagan which defendant the defendant his Miranda arrived when rights they a the station. The then made detailed confes- defendant sion to the was re- tape murder Mrs. Waid which corded. This for the at trial. played was tape
In his the he and confession defendant stated that his knew and that went to her home on they wife Mrs. Waid his 19th to motor oil for car. When Mrs. the borrow took a set of was defendant looking keys Waid using her the intention later from kitchen with her. and his wife to residence and rob He enter her keys the car de- left, nearby to a bar driving then and while to the and told his engine trouble. He drove bar veloped Instead, he car. he to while fixed the ran go wife inside him residence, a knife carrying to Waid with back and wrapped a lead concrete and 17-inch filled with pipe door, her he front Mrs. with black As tape. approached the screening defendant and through saw the Waid his car had en- him He told her wrong. asked what “asked ride.” allowed the trouble and for a She gine and defendant then defendant enter house to told he in- knife and and her out pipe pulled He her toward the bedroom pushed to her. tended rob him not She with money. pleaded her demanded bedroom, she a black file opened hurt her. Once in the inside, money. cabinet and reached apparently for a gun she was thought reaching stated he she fell pipe he struck her in the head with so her floor. He then struck several times more in the head, during his hand changing pipe right course of the then her beating. He stabbed apparently twice with the knife. He stated he af- “blacked out” striking ter her a few times he a because had bad head- ache. There was no in the file cabinet and no money gun. The defendant He ransacked home. took the $25, victim’s which contained went to purse, the garage, and took his bloody Wearing T-shirt, off shirt. a he drove Mrs. Waid’s auto back to the bar where he had left his wife. On the he threw from the car way, window pair gloves used during murder These robbery. gloves were later the police. recovered He entered *10 bar the and had a wife, few drinks with his and they both returned to their When his apartment. wife fell he asleep, drove to where back he had left Mrs. Waid’s' auto. shirt, He his retrieved bloody Mrs. Waid’s purse, and the knife and the pipe from back of Mrs. Waid’s car them in put plastic a garbage bag. put He the in bag his car and then drove Mrs. auto to Waid’s the Saloon tavern and left it unlocked in it, with the keys with the it hope would be hitchhiked that stolen. He back to his car and drove it to Lake He threw the Michigan. gar- bage into bag lake, the the but floated. He waded bag to the and tore it bag holes in so it would sink. He stated that the did not sink but purse floated He then re- away. turned home.
The morning confession, after his the defendant led the police to the where he had thrown the place bag into the lake. The police recovered the pipe lead wrapped with black and also tape long-sleeved shirt which green was determined to be the defendant’s. trial,
After the the found the defendant of jury guilty murder and armed At the robbery. sentencing hearing the same found the of existence statutory aggravat- ing factors and that unanimously determined there were (Ill.
no factors to the death sentence. preclude mitigating (c), (g).) Rev. ch. The court pars. 1(b), Stat. 9— to sentenced defendant death. first that the trial court defendant contends
erred to his his motion denying pretrial suppress statements, statements made those police because and the evidence recovered as a consequence physical statements, an arrest. those were the result of illegal did the ar- (The challenge legality defendant not at He ar- hearing suppress.) rest on the motion to at the time he detectives gues accompanied that determined he car, their the time at which trial court was in did have cause probable officers custody, him. The arrest State contends that defendant was not since under arrest his confession prior giving he voluntarily detectives accompanied question- if the ing. Alternatively, the State even argues arrest to ac- defendant was under when consented there detectives, was cause probable company him. to detain point the testi- motion to suppress, At on the hearing that, based and Fagan of detectives Blazincic mony Waid, Mrs. they on their of the death of investigation interview him. The went to the defendant’s home to his invited the detectives into apartment. defendant conducting informed were They they Waid, of the homicide Mrs. at which an investigation *11 Further testi- he became nervous defensive. point went with the that defendant mony voluntarily was presence their and out of his wife’s detectives car car, he was It was in the after additional questioning. Miranda first told that the defendant given warnings, Later, “did the one who it.” the detectives that he was a de- at defendant department, gave sheriff’s tailed confession. taped the de- voluntarily
The that he let defendant testified tectives in his with them to their apartment went that car. He stated he he was under arrest when thought he in the car. He he was testified that after was read his detectives, denied rights was both but questioned by at time. He statements giving any incriminating said that he confessed to murder at the sheriffs de- after told the detectives that he partment only being by would that he get psychiatric would help, spend time in jail.
At the conclusion of the the trial testimony court found that the in defendant was at the time he custody was in the car with the detectives. The court fur- squad ther determined the defendant understood his abuse, there was no evidence of and that rights, physical with- defendant had answered voluntarily questions out threats, coercion or help. promises psychiatric court denied the motions to the statements and suppress physical stated, evidence. As the defendant did not raise as to the any question of the arrest. legality To determine whether there is cause probable to ar rest, police officers need not evidence sufficient possess to convict, but need of facts only knowledge which would lead a reasonable man to believe that a crime has been committed and that it has been committed by defendant. Ill. (People Eddmonds It 60.) that, is clear standard, this the officers applying had probable cause to arrest in their defendant car at the time he stated that he had killed Mrs. Waid. This is consistent with the trial court’s that the ruling defend ant was in car, after custody testimony hearing established that the defendant confessed to the Too, after killing questioning the car. it is clear from record, as evidenced the defendant’s own testi mony, voluntarily the of accompanied ficers to their car. The defendant was not handcuffed nor was he searched. The defendant read his rights *12 194 those as evi- rights
before and understood questioning of the officers and the denced waiver- by testimony form The trial court the defendant. of-rights signed by found that the defendant did not ask for an but attorney, answered and confessed voluntarily questions arrest, There no illegal murder Mrs. Waid. was the trial court was correct the defendant’s denying evi- physical motion his statements and suppress dence.
The next contends that he was not proved of armed reasonable doubt be- guilty robbery beyond evidence, of the defend- independent cause there was no armed confession, ant’s to establish the delicti of corpus robbery.
In for a founded on a confession to order conviction the confession some be must be corroborated upheld, confession, to show evidence, tending exclusive of committed that a crime occur and that the defendant did 352, 358-59.) it. v. 89 Ill. 2d (People Willingham (1982), this court set People Perfecto crime out the criteria to establish that a was necessary committed, i.e., of a crime. It was delicti corpus stated: “ corroborating ‘if there is evidence of circumstances correspond delicti and prove corpus
which tend to confession, circumstances related in the both with the considered in may and the confession circumstances be determining corpus sufficiently whether delicti may The same evidence proved given in a case. [Citation.] the existence of the crime and prove be used to both whole defendant, being the test whether the guilt of the committed facts that a crime was proves evidence ” 26 Ill. it. and that the accused committed [Citations.]’ 229. The showed that on at 11:30 August evidence here home ajar the back door of the victim’s p.m., the bedroom had had been been ransacked. victim beaten to death and stabbed a knife. The victim’s with unlocked, tavern, car was found at the Saloon with the in the Gloves keys ignition. with human blood splattered *13 were at the the found location defendant stated threw of them out pipe car window. The and the defend- ant’s shirt were discovered at the location in the lake where the defendant stated he threw them.
This evidence is consistent with detailed confes sion of the defendant that he Mrs. beat Waid with the bedroom, ransacked her took pipe, and her which purse contained That the not does was found not purse $25. Instead, that there a disprove was the absence robbery. of the corroborates the defendant’s statement that purse floated it purse away after he threw in the lake. The delicti record does establish the corpus independent confession, in corroboration of the defendant’s state ments that he Mrs. killed Waid and took her purse It was money. to proper find the defendant eligible for the death since there penalty, was the aggra robbery factor of in vating murder the course of the armed (I Rev. Stat. ch. par. 1(b)(6)). ll. 9— The defendant that complains comments improper were made by during the prosecutor arguments closing at trial and which sentencing reversal of his con- require viction and vacation of the death sentence.
At the second of the phase sentencing hearing, at which in evidence aggravation mitigation intro- duced, prosecutor argued: significant
“There are mitigating no factors this prevent case to from you imposing death You penalty. law, are to follow the you are remember that from the time this has started, case and the was pre- evidence sented, you seen court, have not or heard or observed one moment remorse the defendant. your Objection, Honor.
[Defense Counsel]: Sustained.” [The Court]: di- improperly this statement argues
The defendant failure to the defendant’s attention jury’s rected on hearing testified (The testify. at the at trial or testify motion to he did suppress; sentencing proceeding.) this com record reveals
A of the entire review confes taped in reference defendant’s ment was had heard at trial. prosecutor sion the jury which gave the defendant sentencing at trial and argued murder, demonstrat of the account cool and unemotional re his crimes. The defendant’s of remorse for a lack ing at sentencing for consideration subject morse is a proper v. Albanese al (People 80-81), on comment course, cannot the prosecution, though in his own de the stand failure to take the defendant’s (People Lyles 373, 390). Any 106 Ill. 2d fense cured by comment inference from prosecutor’s *14 its objection counsel’s sustaining defense the court’s to which comments disregard to the jury instructions brief, this consider sustained. We were objections did not result comment worst, and, ambiguous at sentencing hearing. a fair denied being defendant’s made by comments to other The defendant points As the improper. he were argues which prosecution at trial however, no notes, objections there were State mention them did not comments, and the defendant waived. have been motion. The questions in his post-trial v. 373, 392; People v. (People Lyles Ill. 2d 106 (1985), Gacy v. People 284; 237, 275, Collins Ill. 2d 106 (1985), that we 1, argues The defendant 88.) Ill. 2d 103 (1984), doctrine under the plain-error the issues consider should invoked where be may which 615(a)), Ill. 2d R. 87 (see so egregious or the error is balanced closely the evidence re- sentencing hearing or of a fair trial that a denial 197 463, v. Ill. 2d (1984), 488). suited Stewart 104 (People Here, evidence was prosecution’s overwhelming the alleged errors cited the defendant did not deny him a fair trial or sentencing hearing.
We note that one these com complained-of would of ments was that during prosecutor’s closing argument trial, made a reference to the chil passing victim’s dren and grandchildren the effect that were left they without a grandmother. that the left Argument deceased it no as has on the or family improper, bearing guilt innocence of (People the accused. v. Holman 103 (1984), 166; 133, v. Bernette Ill. People (1964), 359, 2d 371.) The prosecutor’s here, remark fleeting considering the evidence, did constitute reversible error.
The defendant claims that there were errors during the voir dire examination which denied him a fair trial. raises, however, issues he have been ad decided to his contentions in recent versely decisions of this court. This court has determined that qualification ju of rors under v. Witherspoon Illinois (1968), 510, 391 U.S. 776, 20 L. Ed. 1770, 2d 88 S. Ct. where potential jurors are if excused for cause would vote they automatically against the death imposition regardless penalty the evidence, does not deny defendant his to a right jury drawn from a fair cross-section of the community. 22, v. Ill. (People 67; Stewart 2d v. Si People Too, lagy (1984), 101 Ill. we have 165.) 2d rejected defendant’s complaint qualification prospec tive under will jurors Witherspoon result a conviction- v. 106 Ill. 2d prone jury. People Collins 278- 79; Ill. 37-38. People Gacy (1984),
In a argument, related the defendant contends *15 the trial court erred in his motion to conduct denying the voir dire of each juror individually and outside the of presence jurors. the other Under our prospective Rules 431 234 Ill. trial (87 234) 2d Rules discretion, at his or her conduct individual may, judge voir dire out is not other but presence jurors Ill. (People Newbury to do so. 2d required Here, that, trial 228, 241.) because judge explained he facilities, of the lack of could not conduct security individual voir dire examinations. The judge explained counsel, however, individual, receive not that he would collective, he in to death penalty questions, answers wording ques avoid prejudicial structed counsel to which that, put and he said should a be tions, question answer, a would might interrupt provoke prejudicial taken to and take action. These precautions corrective minds override the jurors' specula prevent prejudice the defendant the venire was tive suggestion by the court’s failure to individually question tainted The trial court did abuse discretion jurors. deny the defendant’s motion. ing too, death sentence
The defendant that his argues, he was effective assist- should be vacated because denied fail- sentencing attorney’s ance of counsel at due his evidence, mitigating ure to sufficient which present in a investi- presentence defendant claims was contained for the court for gative report. report prepared conviction, on the after sentencing armed-robbery on had been sentenced the murder conviction. v. Washington 466 U.S. Strickland Court held: 674,104 L. 2d S. Ct. the Supreme Ed. *** death sentence challenges a defendant “When that, probability is a reasonable is whether there question errors, including appellate an absent sentencer — court, reweighs it the evi- independently the extent aggra- concluded that balance of dence—would have not warrant did vating mitigating circumstances 674, 698, 104 668, 695, Ed. S. 80 L. (466 death.” U.S. 2052; 2069.) Ct. that a court
Strickland reviewing reasonably recognized *16 “need not determine whether counsel’s performance deficient suffered examining prejudice before as (466 defendant a result of the deficiencies.” alleged 668, 697, 674, 699, U.S. 80 L. S. Ed. Ct. 2069-70.)
The here record discloses no to the defend- prejudice ant. The information in the in- presentence report was including troduced at the defend- sentencing hearing, ant’s present previous marriage his relationships, employment history, noted, criminal record. As defendant declined to testify sentencing hearing to the advice his contrary attorney. complaint against if, arguendo, attorney unfounded. Even there was some factual basis for complaint, defendant has failed to show a reasonable probability that, absent error, the assumed would have con- cluded that the death was not warranted. penalty contends, too,
The defendant that he confessed re- liance on police assurances that he would not exe- be cuted and his therefore death sentence was imposed due violation of process.
At the on the hearing motion to suppress, the defend- ant testified that officers told him investigating he would not have about the death worry receiving if he penalty however, confessed. Detective Fagan, testi- fied that in the squad car when he told the defendant tavern, found the victim’s car at the Saloon they the defendant stated that he he was thought going the electric chair. Further get continued: questioning Was that the first Atty.]: State’s mention of
“[Asst. any electric chair? Fagan]: it, made Yes. He mention of not
[Detective me.
Q: Did then you watching tell him he was much too TV get wouldn’t the electric chair? Yes,
A: something —I—
Q: get him he the electric chair? You told would not he said No, say A: I didn’t to him when anything said, this or I 'were involved in just you statement. if any you any?’ would us information know of you give And that he did it.” he stated tell- denied Fagan again On cross-examination Detective that he the death get pen- would ing trial court testimony, At this the conclusion alty. *17 voluntarily was the defendant’s statement found that made. the
The the as to voluntariness of trial court rulings contrary of a will not be disturbed unless confession v. Davis of the evidence. weight (People manifest 1, Here, 95 25.) credibility a of (1983), question who to ob involved, was and trial was able judge, witnesses, the detective’s serve believed obviously of and version the events not the defendant’s.
The defendant’s next is his death sen- contention his and tence is an excessive of character light penalty were background. He cites other cases where individuals the death convicted of similar crimes did not receive but and as evidence the irrational penalty, disproportion- ate nature of his death sentence. L. Ed. 2d 37,
In v. Harris 465 U.S. 79 (1984), Pulley 29, 871, 104 Court held that S. Ct. Supreme court, state does not “a require appellate Constitution the sen sentence, it a death to compare before affirms it in sim tence in penalties imposed the case before with 37, 29, 36, L. Ed. 104 44, ilar cases.” U.S. 79 2d (465 however, does 871, require, S. Ct. Constitution 876.) of the indi a “consideration of character and record and the circumstances the particular vidual offender made the death offense” a determination is before in a v. North given (Woodson sentence is case. proper 944, 280, 304, 49 L. Ed. 2d Carolina U.S. (1976), Free 94 Ill. 961, 2978, 2991; v. People (1983), S. Ct. 428; I, 2d 11.) see Ill. Const. art. see. This a court has held that sentence does not offend the pro if portionality requirement it commensurate with the seriousness of crime gives consider adequate circumstances, ation to relevant any mitigating including People rehabilitation of the defendant. v. potential 70, 93; Perez 108 Ill. People 2d Szabo 94 Ill. 352.
During the second of the stage sentencing hearing, had before it of the evidence defendant’s family background history. It had evidence of employment his prior criminal a felony conviction Nevada history, for “swindling” serving which he term of pro- Too, bation when he committed the crime here. the jury heard the defendant’s confession of the telling brutal Waid, murder of Mrs. including the defendant plan followed to gain confidence of a defenseless woman to enter her her, home with the intent rob then her beat to death as she not to be harmed. begged light the evidence introduced in aggravation and miti- gation and trial, we cannot testimony say that the death sentence imposed on the defendant is excessive.
The defendant argues that the trial court in erred in- the at the second of structing jury phase the sentencing “Neither hearing that nor in- sympathy prejudice should fluence The defendant contends that the you.” should have been allowed to consider as a mit- sympathy factor the igating against of the death imposition pen- alty.
We would first note that the did not re and, quest it, such an instruction by tendering preserve the request Second, record. the defendant did not objection to this express any instruction and is precluded from now it v. assigning (People as error. Perez (1985), 70, 91-92; 108 Ill. 2d v. People Lewis 88 Ill. (1981), 2d 129, that, 149.) court, this v. Beyond People Stewart
202 of , 463, 493-94, Ill. held that the giving 104 2d (1984) this is not improper. instruction also, contends, penalty that the death
The defendant eighth was of and fourteenth violation imposed States, of the United the Constitution amendments not to that find sentencing jury required where an in addition to death was punishment, appropriate did not outweigh aggra that factors finding mitigating that too, He argues, sentencing jury factors. vating that it was the defend erroneously have assumed may was inap to that the death penalty ant’s burden prove v. Del People Vecchio 105 (1985), propriate. People Stewart 22, Ill. 105 2d 414, 446, (1984), and to con 76-77, however, this court decided adversely tentions the defendant makes. the death statute argues penalty
The defendant that amendments to the fourteenth eighth violates because, is of the United States. This Constitution is with sec statute considered says, together when of the of Criminal Code 26(b) tions 104—22 104 — ch. Rev. Stat. (Ill. pars. Procedure death penalty 26(b)), imposition 104 — 104 — English who speak limited individuals arbitrarily or other assistance do translators require and who not assist in their defense. or understand proceedings as misapprehension a argument represents complete addressed this court has meaning statute’s v. Madej (People decisions in a number of rejected v. Albanese People 201, 212; Ill. , 2d (1985) v. Stewart People Ill. 504, 539-40; 104 Ill. 2d 463, 499-502). next contends the death penalty The defendant it does provide is unconstitutional because statute all factors relied upon aggravating means to assure or constitutionally were relevant body sentencing *19 v. Perez People 2d 70, Ill. 97- (1985), In 108 permissible.
203 98, we the contention made rejected defendant by argument noted that this was but a version of the times, rejected many consideration nonstatutory an aggravating factors the sentencer results in by arbi of the death trary capricious imposition penalty 237, (People 285; v. Collins 106 2d (1985), People Ill. v. Madej (1985), 201, 211; 106 Ill. 2d People v. Stewart , (1984) 22, 105 Ill. 2d 75). arguments
Two other by made the defendant have court, been rejected this defendant offers no reasons for persuading us reconsider those holdings. This court has rejected contention that the death statute is unconstitutional it penalty because fails pro vide a scheme to insure an sentencing adequate compar ative review cases. v. capital (People Del Vecchio , Ill. (1985) 414, 444; 105 2d v. People (1984), Owens Ill. 145, 160; 2d see also v. Harris Pulley (1984), 465 37, 29, U.S. 79 L. Ed. 2d 104 S. Ct. It has 871.) also been determined that the death statute is penalty unconstitutional because are prosecutors given discretion in deciding whether to seek the death People v. penalty. Brisbon 2d (1985), 362; Ill. v. People Gacy 103 Ill. 105; People Caballero 49. the defendant contends
Finally, trial court erred in imposing an extended-term sentence armed-robbery out, conviction. As the point People defendant made no at the time of objection sentencing and the in a question not raised motion for a new trial. The question was not raised in the brief originally filed this it was raised appeal; only brief the defendant filed. The supplemental has been point waived for appeal. event the claim does not have merit. any
The extended-term provides: statute *20 204 of not an offender to a term judge
“A shall sentence autho- in excess of the maximum sentence imprisonment for the class of the most serious by rized Section 5—8—1 which the offender was convicted unless offense of (b) in of Sec- paragraph in set forth aggravation factors judge Where the present. tion 5—5—3.2 were found to be an present, may were sentence finds that such factors following: offender to the murder, a term shall not less than
(1) for be more years; and not than 80 years X less felony, for a term shall be not (2) a Class (Ill. than 60 ***.” years years; than 30 and not more 1981, 38, 8—2(a).) ch. par. Rev. Stat. 1005— statute did not al- The is that argument defendant’s here, sentence for armed robbery low an extended-term the class of the most serious since that offense is in convicted, is, murder. offense of which he was he had contention would be valid if The defendant’s sentence of imprisonment an been extended-term given v. Jordan People on conviction. (See the murder here, however, was The sentence 203-06.) 103 Ill. 2d A death sentence imposed, not for a term of years. was not statutory provision appli and the extended-term terms refers The statute extended authorizing cable. sense, in a the maximum sentences on, and is bottomed it refers. That 8—1,” which “authorized Section by 5— in of and does not refers to terms imprisonment section ex for an Obviously provision sentences. capital clude of would not applicable term be imprisonment tended here contention made a sentence of death. precise v. Collins People was not presented term of 60 for armed 237, 285, years but an extended had the defendant though to be proper, was held robbery the statute to death. We hold also sentenced been of sentence of an extended-term imposition allows of the most serious offense the class of imprisonment defendant was convicted when which the defendant was sentenced to a term of and this is so even years, though the defendant also was sentenced to death for separately murder.
For of given, the reasons the circuit judgment court of Lake The clerk is County affirmed. directed to enter an order the 26th setting Wednesday day March, 1986, as the date death, on which sentence of entered by circuit court Lake shall exe County, be cuted. The defendant shall be by executed lethal injec tion the manner provided section 119—5 Code of Criminal Procedure of 1963 (Ill. Rev. Stat.
ch. A certified par. 5). copy of the mandate in *21 119— this case shall be the clerk by furnished of this court to the Director of the Corrections, of to Department the warden Center, at Stateville Correctional to and warden of the institution wherein the defendant con fined.
Judgment affirmed.
SIMON,
JUSTICE
dissenting:
As
in
in
fully explained my dissent
v.
People Wright
(1985),
128,
111 Ill. 2d
conviction
a by
which has
jury
been
death-qualified,
my opinion, violates a defend
sixth
ant’s
amendment
a
to be tried
right
by
drawn
from a fair cross-section
the community.
of
v.
(Grigsby
Mabry
Cir.
(8th
1985) (en
758 F.2d
For
banc),
226.)
this
I disagree
reason
with the manner
which the majority
v.
applies Witherspoon
Illinois
391 U.S.
(1968),
20
L. Ed. 2d
Further, here prosecutor’s which fo- argument cused on the victim’s and the probable reaction family son finding victim’s his an mother’s was body
206 (People to the of the jurors” emotions
“improper appeal v. Holman Ill. rever 166) warranting 2d (1984), sal.
In the course of his closing argument, prosecutor “were talk- said that confronted first with police son, Now, Mrs. if Grissom, you Ed Waid. ing heart, that feel in mind and in the horror your can your have into the Ed Grissom must faced when walked bedroom, ran- bedroom, first, his and saw it mother’s sacked, it and then thinking only burglary, and mother, death, saw beaten to went back there and his floor, mean, explain on I there is nothing bloody felt It could type only person that horror. be thereafter, it prosecutor to.” happens Shortly her, murdered “brutally argued in the of her life, a full when she was midst ended with- children and leaving grandchildren, golden years, citizens, that class of victimizing out a grandmother much.” that we victimize too are
References to a family improper victim’s v. (People Holman 133; 2d 103 Ill. (1984), prejudicial. v. Hicks People v. Ramirez People 439; Ill. (1983), 2d People Gregory (1961), v. 22 Ill. 457; Ill. 2d 2d Dukes People 601; my opin 12 Ill. 334.) alone, comment, ion, standing second prosecutor’s chil left reversal. fact victim require would *22 here as as dren and bit irrelevant grandchildren every Holman and Hicks. But in were similar remarks both rever were this comment not sufficient to justify even of the statements went sal, quoted the total effect two the fact that there were a mere reference to beyond well in members. The prosecutor explicitly surviving family in the of the the to themselves jurors place position vited the Although to his horror. son try imagine victim’s and it was body to his mother’s finding son’s as testimony his reac- guilt, relevant to defendant’s establishing self to tions were irrelevant to finding body any issue the case. The prosecutor’s argument dwelling upon son’s horror appeal constituted blatant visceral which served no other than to inflame the purpose jury against defendant. I Unlike the on this record cannot majority, conclude that reference to the victim’s family Ill. “fleeting” (111 197). 2d at I therefore would reverse defendant’s convictions.
In addition the two during references improper closing at argument guilt re- phase, prosecutor newed his emotional during his appeals closing rebuttal argument sentencing hearing. the course ex- plaining the death why sentence should imposed, be prosecutor said:
“Well, have, I do because of the my position, nature of ability to judge people, deal people with on a daily basis, I and see several thousand incidents and vic-
tims in situation, this and I can look Ed into Grissom’s eyes, or I look can into other eyes senior citizens in this county, tell you thinking what are they about this case, and I tell you feel, you can how I tell they can how Grissom, Ed and his children feel, his mother was murdered, I you can tell he how when he discov- felt her, 22nd, August ered on great 1982. It doesn’t take tal- to tell you they felt, ent how I you because think know how added.) (Emphasis he felt.” Immediately thereafter the death requested penalty. This argument that we vacate independently requires the death sentence since to “re prosecutor sought late defendant’s to the punishment existence [the] family” (People Bernette 371) and their Moreover, reaction the crime. the repetition of prosecutor’s sentencing improper argument his hearing evidences intention during guilt stage inject appeals emotional into the proceedings.
The death sentence should also be vacated on two grounds. First, other the sentence cannot stand here be- *23 208 the dur- argument
cause another yet part prosecutor’s defendant’s fifth hearing the violated ing sentencing crimination. self-in right against amendment to a defendant’s fail Direct reference aby prosecutor the is a violation of defendant’s ure to testify always (Griffin fifth amendment self-incrimination. right against v. 106, 609, 14 L. Ed. 2d 85 (1965), 380 U.S. California v. People Lyles 1229; 390.) S. Ct. silence is reference to the defendant’s Even an indirect such if the comment was constitutionally impermissible “ '*** take naturally necessarily would the defendant’s failure it a comment on be ” Burke v. ex rel. Greer (United States Cir. (7th testify.’ v. United States 1295, 1300, F.2d 1985), quoting Lyon The defendant’s 509.) 397 F.2d (7th 1968), Cir. com proscription against fifth amendment right to the sen on the exercise of that extend menting right (People Ramirez 98 Ill. of trial. tencing phase these prose Consistent with 449.) principles, to the defendant’s silence during cutor’s direct reference in this requires case sentencing hearing vacated. death sentence be in the sen- closing argument
During prosecutor’s the jury: he told tencing hearing you the law and are to remember “You are to follow started, has and the evidence was from the time this case seen or heard or observed in have not presented, you court, the defendant.” one moment of remorse the judge objected, The defense counsel immediately not then admonish ju- did sustained the but objection them not to eon- the remark or advise rors to disregard ref- failure to testify. prosecutor’s sider defendant’s fifth kind which erence here exactly amendment proscribes. called at- comment prosecutor’s
Unquestionably, of the stage at some tention to the defendant’s behavior However, concludes that proceedings. majority remark refers to the defendant’s lack of re- actually morse as exhibited in the confession which the taped *24 heard at trial. This jury is not interpretation supported an by examination of the actual prosecutor’s words.
The did not that prosecutor did not hear say “you in any display Rather, remorse confession.” taped told that jury had not “seen or heard or they ob- served” remorse If any defendant. the prosecu- tor’s comment was directed to defendant’s only taped confession, then the reference or seeing observing remorse is remorse meaningless; cannot be “seen” or “observed,” course, on a In tape recording. addition, the prosecutor’s own words define the context of defend- ant’s failure to demonstrate remorse as “in court.” The natural “in meaning of court” is not restricted to what heard on the jury tape recording, but encompasses that everything occurred within the of the presence jury. Further, the time frame which the prosecutor re- ferred to makes clear that the would take jury naturally this comment as directed to defendant’s refusal to tes- tify. prosecutor told the that the relevant jury time period was “from the time that this case has started.” The majority this simply ignores language arbitrarily restricts its to one scope of the trial. portion fact, out that by pointing nothing seen, had they heard, or observed in court since the case started dem- remorse, onstrated the prosecutor directly called the ju- ry’s attention to the defendant’s course of conduct throughout and, the trial most obviously, his failure to take the in stand his own defense.
The prosecutor’s comment here was similar in con tent and effect on probable to the prosecutorial remark in v. People Ramirez 98 Ill. 2d 451. There, this court vacated the defendant’s sentence be cause the prosecutor argued during hear- sentencing you, has sat silent before that
ing “[h]e [the defendant] fact and tryer his accusers and before before [sic] (98 for the murder.” offered no explanation Ramirez, here, as it does The State maintained 451.) to the defendant’s was directed only comment that argu rejected lack of remorse. This court properly in what the prosecutor ment. The is not question simply Rodriguez (7th States v. (United 1980), Cir. tended fact, the comment whether, “specifi F.2d but 110), v. (People silence refers” to the defendant’s cally Ramirez I no dif 98 Ill. 2d can discern 451). remark magnitude ference of constitutional between or any display by had not “seen heard” the jury “silent.” the defendant was saying Rodriguez See also United States 1980), 627 (7th Cir. “throughout that defendant 110, 111 (comment F.2d of the counsel table” at the end trial has been very quiet *25 error). held reversible not con in this case is if the comment at issue
Even failure to a reference to defendant’s strued as direct indirect stand, it is an certainly impermissible take the un one, necessarily” the and “naturally since would jury failure to testify. it to refer to defendant’s derstand Burke v. States ex rel. Greer (United 1985), Cir. (7th could also The fact the statement 1295, 1300.) F.2d is ir to the confession taped taken as a mere allusion be v. People Kelley the 29 Ill. 2d In relevant. might a remark argued by prosecutor State to to an accu reply to failure have referred defendant’s scene that defendant the victim at the crime sation by the prosecutor there This court said shot him. that could be making any argument from “refrain should construed her to tes on failure as comment by jury 53, 61. 29 Ill. 2d added.) (Emphasis tify.” if was error that even there The suggests majority sustained judge cured when circuit this case it was objection defense counsel’s instructed eventually to to which objections comments were jury disregard view, fact sustained. mere that the court sus- my general tained a to the can have argument had objection no curative effect. The not jurors are and can- lawyers not expected be to either counsel’s understand reason for or the objecting meaning of It is judge’s ruling. also to court, me that the plain general injunction by the after the close of argument, disregard any to statements to which objections had been sustained can be abso- value; no lutely argument assumes a su- majority’s perhuman and retention capacity comprehension as jurists as it is in lacking jurors.
The conclusion here majority’s the es simply ignores rule tablished that the prejudicial effect of improper ar gument erased, can be if all, at “act promptly sustaining objection to instructing jury disre gard such argument.” (Emphasis added.) (People Bap tist 30.) Even a final instruction on the defendant’s to remain silent is right adequate cure the error where the has not judge ad immediately monished the the remarks. disregard (United rel. States ex Burke v. 1985), Greer Cir. 756 F.2d (7th 1295, 1303.) A final instruction disregard arguments to which were objections sustained is therefore wholly impotent. and, claims that majority worst, this “brief
ambiguous” comment did not deny defendant a fair sentencing (111 Ill. hearing. 196.) 2d at I point would out that, in view of the extreme here, penalty imposed we should demand a very high degree *26 procedural Moreover, substantive regularity. even in noncapital cases, this court has required showing prejudice where a error” of is “plain (See this involved. type Peo ple v. Wollenberg (1967), 480, 37 Ill. 2d 488.) my opin ion, prosecutor’s argument here violated defendant’s
212 fifth self-incrimination. right against amendment forth in my separate opin for the reasons set
Finally, v. Lewis People 88 Ill. 2d ions in (1981), People Silagy 101 Ill. J., in (Simon, dissenting), J., dissenting in 147, 184 (Simon, concurring part v. Albanese People in and in part), J., dissenting (Simon, concurring part statute penalty I the Illinois death believe part), sentence imposed and that therefore no unconstitutional reasons, I think For these under that statute can stand. should be of death on defendant imposed the sentence vacated.
(No. 60530. ILLINOIS, Appel- STATE OF THE PEOPLE OF THE lant, CIHLAR, Appellee. v. DOUGLAS February 1986.
Opinion filed