People v. Pasch

(No. 68977. ILLINOIS, THE STATE OF Appel-

THE PEOPLE OF lee, PASCH, v. JOHN Appellant. 1, 1992. Rehearing

Opinion October filed 30, 1992. denied November MILLER, C.J., FREEMAN, J., concurring. and Schiedel, Defender, Charles M. and Allen H. Deputy Andrews, Defender, Assistant of the Office of the State Defender, Frisk, Susan law Appellate and Springfield, student, for appellant. Burris, General, of

Roland W. Attorney Springfield, and Jack State’s O’Malley, Attorney, Chicago (Terence Madsen, General, M. Assistant Attorney Chicago, Renee Goldfarb L. Assistant Judy DeAngelis, State’s of Attorneys, counsel), for the People.

JUSTICE MORAN delivered the the opinion of court: Defendant, Pasch, John was with two counts charged of murder and one of count aggravated kidnapping Cook County. trial, a Following jury defendant was found of the guilty murders of Leslie Shearer and Offi cer Richard Clark, as well as the aggravated kidnapping of Jean Wiwatowski. After defendant for finding eligible the death on penalty based three statutory aggravating factors, the found there were insufficient jury mitigating factors to of preclude imposition the death sentence. Therefore, death, defendant was to as sentenced well as to a term of for the 15-year imprisonment aggravated conviction. The kidnapping death sentence was stayed (134 Ill. 2d R. 609(a)), pending appeal direct to this court (Ill. Const. VI, art. 134 Ill. 2d R. §4(b); 603).

Concerning pretrial defendant raises as procedures, issues whether: the trial court in not a (1) granting erred hearing defendant, to determine if to promises made the during negotiations leading surrender, to his up Batson enforced; (2) hearing

should be a specifically as the required, peremptorily challenged only the State to an (3) and defendant’s Hispanic venireperson; right the had been violated when trial court impartial jurors. to excuse for cause three refused trial, of the defendant Pertaining guilt to the phase and guilty raises as issues whether: (1) insanity but ill instructions violated due mentally (GBMI) process have proof might with their burdens of which conflicting verdict; a (2) resulted in the GBMI jury’s rejecting to by failing GBMI instructions violated due process State; (3) of defendant’s place proof upon burden State re- of was violated when the right confrontation the di- to nontestifying experts’ opinions during ferred rect of its and cross-examination examination expert of of defend- impeachment defendant’s experts; (4) upon ant’s with the conclusions other expert experts vi- was due was proper; (5) process which he did not rely record- forced to give tape olated when defendant was with State when ings expert of his interview his he with the not allowed his interview tape-record closing statements expert; (6) State’s opening his right were inflammatory denied witness, trial; fair the cross-examination defense (7) confrontation; right Brian violated Kelly, a reasonable (8) guilty proven beyond defendant was testi- the stricken of aggravated kidnapping; (9) doubt conver- conсerning telephone of Officer Walsh mony reversal; and arrival upon requires sation with defendant objec- the State’s (10) sustaining trial court erred in Biebel about what tion asked of Officer question to the the two people. said caused him to shoot defendant had defendant raises hearing, his Concerning sentencing victim impact introduction (1) as whether: issues right amendment eighth his evidence denied defendant evidence (2) mitigating to a trial sentencing; fair and sentence; (3) argument the State’s death precluded and the at denied defendant due sentencing process under the and sentencing eighth to a fair right hearing a rea- amendments; beyond fourteenth it was (4) proven knew or should have sonable doubt that defendant officer; had a (5) known that Officer Clark been peace testimony due was Officer Walsh’s process abridged by in the told him over the phone first defendant phase bombs, he that he “had material to make had gasoline ammunition, he to kill more armor-piercing and wanted the GBMI instruction was policemen”; (6) reasonably to cause the sentencer likely disregard evidence of his mental state. mitigating Concerning of the Illinois death constitutionality statute, the defendant raises as issues penalty whether: (1) the statute unconstitutionally places burden upon circumstances; defendant to prove mitigating (2) the death statute in the penalty results arbitrary imposi- tion of the death penalty.

The facts of case are as follows. Defendant was landlord, visited visit, Leslie Shearer. During Shearer, had a heated conversation with then chased him into the him yard times, and shot several him. killing thereafter, defendant ran next Immediately woman, door and struggled with an older Mary Wagner, on the of an that she porch apartment building shared sister, with her Jean Wiwatowski. was able to Wagner but then defendant ran into her escape, apartment carry- After ing weapons. fleeing, Wagner proceeded tell a neighbor what had and that her sister transpired, still in the house with defendant. thereafter, to a

Shortly police arrived call response that shots indicating had been fired and that man had been shot. Three street, officers walked down the taking shelter behind cars. Defendant shouted that no parked one should come into the and then house thereaf- shortly

156 Clark, officer, ter shot and killed a Richard plainclothes after a long which standoff ensued. standoff, hostage put a full was

During program ne- effect, off, into with the immediate sealed while area re- A gotiators hostage negotiator talked defendant. defendant, re- called but does making promises made the death any promises penalty. member about that negotiator brought up Another stated defendant death had negotiator changed but that penalty, that knew negotiators opined Both defendant subject. approxi- what he was The entire standoff lasted doing. hours, at the conclusion which defendant mately on how would surren- agreed defendant police der. then He was arrested. trial,

At defense was raised. Defendant insanity showed several which presented photos apartment neighbors it to Several stated complete disarray. be in friend, a Defendant’s been recluse. defendant had that, A1 since defendant had Fleck, stated The defendant’s with transvestites. “hanging been out” that, a clinical stated Gaspero, psychologist, Dr. expert, to se- from moderate in his defendant suffered opinion, and an thoughts, vere obsessive depression, compulsive ref- took disorder; defendant avoidant personality the world to his in his due delusions uge apartment from he beating a threat, was a delusions which arose a Hispanic youths gang at the hands of suffered birthday, son’s 30th earlier; estranged that his year shootings, same as day which on the occurred factor; coincidence, contributing was a not a mere but shoot- the time of the insane at and that defendant was in the same apartment who lived neighbor, Another ings. he in the weeks defendant, prior, stated that as building himself, repeatedly with arguing had heard an off, ampli- breathing the water on and turning manner. fied and unusual Dr. Cavanaugh, psychiatrist,

The State’s expert, from mild to moderate defendant suffered stated that that defendant had schizoid personality depression; from a mental traits; that defendant had been suffering illness, paranoid; that defendant was dysthymia; mildly not rise to the level of a that defendant’s condition did disorder; condition that defendant’s mental personality did not meet the definitions of or legal insanity guilty ill; exam- but that the other State who mentally experts Dr. ined defendant did not with agree Gaspero’s opin- ions; friends, and that neither defendant’s choice of his divorce, his nor the attack obesity, filthy apartment, the by gang street affected his Hispanic sanity.

After the found defendant of the jury guilty murders Clark, and Shearer as well as the aggravated kidnap- Wiwatowski, the trial to ping proceeded the sentenc- ing In the hearing. phase first the sentencing, found defendant for death since he had killed eligible (1) two one of people; (2) the he had killed was a persons officer; police and one of the victims (3) had been killed (i. in e., the course of a aggravated felony kidnapping).

In the second of the all of the evi- phase hearing, dence and from trial allowed testimony was to be used. Defendant’s son testified that he had not seen estranged his father in 20 that it was that nearly years; significant took on his that shootings place and his fa- birthday; ther needs and should not be executed. help

Additional relevant facts will as each forthcoming individual issue is in discussed depth.

PRETRIAL ISSUES trial, Before the defense filed a motion requesting specific performance of to defendant dur- promises made defendant, ing hostage According standoff. surrendered, him if he he negotiators promised that him, would not have the death against penalty imposed that he taken mental that he hospital, would be to a would be a The State motion to lawyer. afforded filed a strike, dismiss and defendant’s motion for deny specific an evi- the defense performance. Subsequently, requested dentiary hearing allegations establish factual for This was specific request motion performance. denied. The court also dismissed motion as original it filed untimely, though prior even had been apparently to the date the court. Notwith- cut-off established timeliness the court ruled that standing problem, duress, under and were were made promises given therefore not enforceable. failing the court alleges

Defendant erred a He submits grant defendant on motion. hearing prom there over what was question exactly him; granted ised should hearing therefore have been As for his to resolve conflict that existed. any support seek the death are penalty not to position promises v. People Walker (1981), enforceable, relies on People v. Brownell Ill. 2d 84 Ill. 2d 167. Brownell are not that Walker and controlling

We find in this An of those cases reveals that instance. analysis into in each office had entered a the State’s Attorney’s to effect bargain with defendant plea sentence State’s would not seek death Attorney (e.g., a guilty return for the defendant a concession from substantially a This or differs plea confession). written hand, where, to defend- according from the at situation refrain ant, would him.that police promised they if he would surrender. from the death seeking penalty into a plea did not enter It is clear that defendant him the police promised the State when bargain with if he would not seek the death penalty would they during negotiations said surrender. Defendant never charges, prose- and that he to plead guilty would for a lesser sen- in exchange a accepted plea cutor never death, actually plead nor did defendant ever tence than a It is where only him. against to the charges guilty the prom- in reliance upon enters a guilty plea defendant when remedy is entitled to a that he ises of prosecutor v. New York Santobello such are breached. promises 427, 433, 92 S. 257, 262, 30 L. Ed. 2d 404 U.S. (1971), 495, 499. Ct. that such prom- defendant’s claim

More importantly, he le- the fact that was disregards ises were enforceable surrender; hostage gally give up required him to do what he al- thus, made to induсe any promises an not constitute obligated do would ready legally as for the existence exchange required even of promises were which bargain. any promises of a plea Additionally, of time were void made to defendant during period as a matter from the and unenforceable very beginning through as were made violence public policy, they 528, v. 116 R.I. (1976), coercion. See Rollins State A.2d 315. evidentiary hearing

A trial court’s decision to hold an and such a decision will not be reversed discretionary, v. Adams (People an abuse of such discretion. absent Here, there was 747.) 164 Ill. App. an of discretion in defendant denying no abuse clearly court found as a mat the trial hearing where evidentiary to one. The court spe ter of law that he was not entitled sufficient evidence of the promises found that cifically various through had been presented made Moreover, State defense and motions. prosecution only of promises, never contested the existence (for were made were unenforceable whatever promises Thus, there was discussed). the reasons previously hearing. no need for an clearly evidentiary that his Defendant, Caucasian, equal next contends the State chai- were violated because protection rights 160

lenged only apparently Hispanic venireperson prosecutor explain the court did not require State, hand, The on the other basis of his challenge. has consider- appellate maintains that defendant waived rec- adequate an by failing compile ation of this issue the race or ethnic of all origin ord which would indicate the venirepersons.

In for review provide meaningful appellate order of a Batson the race of issue, the record should disclose v. McDonald (People 125 Ill. (1988), the venirepersons. However, of such informa 182, 2d absence 194-95.) evidence favor strong weighing tion will not overcome v. Andrews (People of a prima facie 146 Ill. case. (1992), the rele 413, we shall review 434-35.) Consequently, 2d dire and the Batson claim as voir they ap facts of vant from the trial court record. pear a is put is denied where Equal protection which have jurors on trial before a from jury prospective v. (Batson of their race. excluded because been purposely Kentucky 79, 69, 106 S. 476 U.S. 90 L. Ed. “Batson established for 1712.) two-step procedure Ct. claim that the prosecution the resolution of a defendant’s in a discrimina racially used its challenges peremptory First, manner. the defendant must establish tory prima in the se case of discrimination purposeful facie prima the defendant makes a lection of his Once jury. to come the burden shifts to State showing, faсie challenging race-neutral for explanation forward with a The trial court each of the venirepersons. [Citation.] if and determine must then consider those explanations discrimina purposeful the defendant has established Batson, Andrews, 146 Ill. 2d at 424, citing tion.” 88-89, 106 S. Ct. at 1724. L. 2d at U.S. at Ed. prima the defendant must es- showing, For a facie surrounding the relevant circumstances tablish racial discrimi- inference of raise an selection of

161 96, 90 L. Ed. at (Batson, U.S. nation State. by claims Here, defendant 87-88, 1723.) 106 S. Ct. at 2d at discrimi- of racial a prima showing there was facie Batson, are a clearly as Mexican-Americans nation under Cas- protection analysis. class under equal identifiable Ed. 482, 495, 51 L. taneda v. Partida 430 U.S. (1977), Hernandez v. 1272, 1280; see also 498, 511, 97 S. Ct. 395, 111 York 352, 114 L. Ed. 2d New 500 U.S. (1991), S. Ct. 1859. in determining are relevant

A number of factors selec- prima jury a case of discriminatory whether facie These factors include: tion has established. been ‘the against [Hispanic] jurors; ‘pattern’ “a of strikes dire during and statements voir prosecutor’s questions [citation]; exercising challenges’ and in examination challenges peremptory use of disproportionate against [Hispanics] [citations]; [Hispanic] rep the level of to the compared resentation in the venire as [cita heteroge were a tions]; [Hispanics] whether excluded common group sharing only neous race as their [citation]; the of the defendant and characteristic race [citations]; and the race of the witnesses victim [cita People v. Evans 125 Ill. 2d 63-64. tions].” a find- The trial in the case at bar never made judge prima case had estab- as to whether been ing facie in the lished the defendant. The discussion found only to defendant’s Batson claim is as fol- record regard with lows: Honor, regard- Your

“MR. SMITH Counsel]: [Defense excused, [sic], Mr. Maldadado ing jurors one of the last like the to reflect Mr. Maldadado we’d record [sic] date of and social called in chambers. He was asked birth that, the State number. The for believed security purpose felon. possible that he was Correct.

MR. SCHOLZ [Defense Counsel]: The object. MR. SMITH: He was then excused. We only Latin. He was on peremptory.

THE COURT: excused just making object are a record. We MR. SMITH: We de- apparently Hispanic He was being to him excused. scent. Mexico. indicates that Dr. Cavena SCHOLZ: Mr. Pasch

MR. during that he that if we determine argues Defense counsel prima case, then, virtue by to prove has failed facie defendant was should hold that the above we passage, to standing present trial court not to have found by a Batson violation. in its passage From of this review the judge clear that context, absolutely it is not proper in- it can be Arguably, determination. made that specific objection defendant’s judge ferred that overruled and the excluded concluding after defendant’s differed; however, the lack ethnic origins venireperson’s making us from on this point prohibits of a clear record the Batson objec- If had disposed that conclusion. he his actions would of ethnic diversity, tion because solely v. Ohio (Powers 499 U.S. (1991), certainly improper. 1366 419, 1364, 111 S. Ct. 411, Ed. 2d 400, 402, 113 L. exclu- race-based may object defendant (“a criminal challenges through peremptory effected sions of jurors jurors and the excluded or not the defendant whether Powers was decided after race”).) the same While share to this case for tried, applicable it is still defendant was that Batson was retroactively applied the same reasons the time Batson at appeal on direct to cases pending v. Kentucky 314, 479 U.S. (See decided. Griffith racial though Even S. Ct. 93 L. Ed. 2d 107 708.) the excluded venire the defendant between identity factor a relevant remains it still not required, is person of discrimina case a prima whether determining facie at 425. Andrews, 146 Ill. 2d tion has established. been dis- had erred by the judge arguendo, Assuming, the lack because solely objection missing re- us from not preclude it does identity, of racial/ethnic whether record to determine trial court viewing he claims ex- case, as a prima made out defendant facie at there is no indication since step is a logical isted. This mat- on the hearing for a request there was no (i.e., trial in defendant’s no claim made, or ter, no offer of proof on allege appeal nor motions), does post-trial any him from presenting the trial court prohibited case. evidence of a prima facie which, if of the rele any,

There no indication as is in analyzing considered the trial judge vant factors The had established. case been prima whether facie the trial de reviewing judge’s “in standard to be applied the judge not whether on this issue is termination to review the Rather, it is our role his discretion. abused trial if the its determine entirety evidence in of the evi weight the manifest judge’s ruling against Ill. at in original.) (Andrews, (Emphasis dence.” no affirmative to have been Since there 428.) appears issue, on judge or the other one ruling way action, or the trial judge’s whether we must determine show a prima the lack of inaction, presumes which facie evidence. of the weight the manifest was ing, against 189, 202.) Ill. 2d (1990), v. Garrett (See People an to make it is appropriate that Therefore, we believe review of the record. objective case of racial

Defendant, a prima proving facie chal- the State’s discrimination, peremptory claims that jury. on the sitting race from an entire eliminated lenge estab- case can be a prima is true that it Although facie lished where the State excludes the of only venireperson v. Jones (see People a certain race 177 Ill. (1988), App. unconstitutional, more, it is not 663), without strike one or more of a certain race or ethnic individuals Evans, 63-64; from the See 125 Ill. 2d at origin jury. v. People Hooper 118 Ill. 2d 247-49 (Ryan, J., Moran, specially concurring, joined by JJ.). Ward for the ethnic of the

Except citing origin perempto- defense counsel rily challenged venireperson, pointed prima facie no circumstances that could case support of motivated discrimination. Defendant racially alleges no to the use of pattern challenges State’s peremptory against which would show Hispanic jurors purposeful court, The discrimination. trial con- prosecutor, dire, ducted the voir and defendant does not contend on trial, nor he at that state- did appeal, prosecutor’s challenge ments in indicated exercising peremptory the challenge discriminatory. Moreover, record, an due to the lack of we adequate cannot conclude that the State used a disproportionate this one peremptory challenges by excluding number Furthermore, from the Hispanic venireperson jury. in the as (one) level venire Hispanic representation indicate (none) purposeful to the does not compared discrimination the State. Since there was by apparently one excluded that be- venireperson (even only Hispanic we cannot whether the ex- ing unsubstantiated), analyze cluded was a race “group” heterogeneous group sharing of significance as its common characteristic. only Finally, this case in- is the fact there is no allegation an interracial crime in which racial any specific volves prejudice. would be show groups prone cir record, any review of the we do not feel that On seen a rea cumstances were revealed which would be prima trial inference raising sonable as judge facie Garrett, (on State See 139 Ill. 2d 189 ap- discrimination. a de- to make failed the trial review, judge after pellate had been case a prima to whether as termination facie ex- the State allegation established, the against challenges out of six peremptory five ercised fact this veniremembers, supplementing without black raise an failed to circumstances, other relevant with any discrimination). of purposeful inference not met his has Therefore, find that defendant we circum- and relevant facts through to prove, burden exercise of this peremp- stances, that prosecution’s motivated, is required as was challenge racially tory re- never properly the State was Batson. Consequently, this chal- for race-neutral explanations to quired provide of his four- not deprived and the defendant was lenge, right equal protection. teenth amendment error is that next assignment Defendant’s for certain jurors refused to disqualify court improperly amendment and cause, in of defendant’s sixth violation impartial jury. amendment to an right fourteenth argues responses venirepersons Defendant inability and Burdick demonstrated their Rogers, Esly, against as were impartial, prejudiced be fair and they defense, that, the court’s accordingly, insanity consti- for cause jurors refusal to excuse these potential tuted se reversible error. per defense, the defendant has an raising insanity

When they asked whether right potential jurors to have defense. this feelings concerning particular have any In 301, 313.) 112 Ill. 2d v. (People Stack jurors of the case, potential the court properly inquired In defense. feelings concerning insanity as to their individuals, of these three their responses the case had some they to them indicated questions posed of the portions this defense. The relevant with problem are as follows: questioning asked: juror Esly

Potential *** “Q. How insanity. about Do you person feel could be insane at the time he did—

IA. do a problem have with temporary insanity. Q. your problem? What is A. I don’t I really believe that. think people go around committing crimes and they plead temporary in- sanity maybe they maybe they are and aren’t. — Q. you Could listen to the evidence and determine from that not whether or he was insane? They have to prove by preponderance a of the evidence he that was in- sane.

A. I probably could.

Q. you Could listen to that?

A. Yes.

Q. your up? And make mind A. Yes.

Q. now, Right would if his you say plea was temporary having any evidence, without heard insanity, would him a not you you give guilty by still—could reason of insanity? right

A. Not now. Q. know, knowing I anything but without about case, not him until—or— you’re going guilty to find now, thing I think there is a as Right

A. don’t such defense.” temporary insanity as a Potential was asked: juror Rogers

“Q. insanity. you How about the defense of Do under- proper stand that as a defense? I con- accept skeptical

A. I could it but would have a cern condition authenticity about the a mental involved in any case.

Q. Would consider the expert testimony. you We have on testimony they say and consider what have case? Yes, I think I would.

A. Q. by expert you you But could if were convinced give guilty by a not any or what other evidence [sic] insanity you thought proper judg- reason of if was ment? Yes, I I could.

A. believe at by the Court given you the law Q. you follow Will with it? agree or you of the trial whether the end I follow— A. Would the trial as the end of at

Q. I will instruct charge or this charges to these applicable that is ‍​‌​​‌‌​​​​‌​‌​​‌‌‌​​​​‌‌‌​​​​​‌​​‌​‌​‌​​​‌​​​​‌‌‍the law law? you it follow might be. Will whichever Yes, I A. would.

Q. hesitancy? Without

A. No. give could not

Q. why you you Any reason believe trial? the State and defense fair both think I could of.” A. None that

Potential Burdick asked: juror “Q. insanity defense? you What do think about [sic] to mind. Hinkley

A. John comes Wayne Q. What? I comes to mind and shooting Reagan

A. The agree don’t with that.

Q. That’s another incident.

IA. think it’s overused.

Q. guided by Would be that? you IA. think it’s overused.

Q. What?

IA. think it’s overused. that;

Q. it not saying Well could be overused. I’m but knowing insanity if that the point you just at this [sic] entered, now, you right you has would wouldn’t plea been any insanity? if even listen there’s evidence of listen, A. I sure. would

Q. you Would consider that evidence.

A. Yes.

Q. or other Okay it came from one side the whether stand, on the put see when doctors are you because they’re subject to cross-examination.

A. Yes.

Q. you And understand that?

A. Yes.

Q. knowledge gain might would be you And the examina- through than direct cross-examination rather that? you tion. Do understand

A. Yes.

Q. you Can follow that?

A. Sure.” After the court’s refusal to exclude these three cause, for venirepersons defense exercised three of its to of peremptory challenges dispose them. the State

Initially, maintains has waived this issue on since he appeal failed to specifically include these errors in his alleged post-trial motion for a new trial. It is clear that where objections are not pre sented both trial and in a during motion, post-trial (Peo issue has not been for properly preserved review. . v Enoch ple Here, 122 Ill. 2d defend 186.) voir dire as to the ant objected undoubtedly during court’s determination not to excuse the three venireper sons. Although allegation as to this particu lar error in a his motion for new trial is it general, fairly was sufficient to alert the court to one as of reasons for a requesting Therefore, new trial. this issue waived for of our purposes review.

It is well settled that a making party challenge for must cause show the existence of a state of mind that will juror raise a The presumption partiality. does, determination of whether or prospective juror not, does the state of him possess mind which will enable give an accused a fair and trial rests impartial sound discretion of the trial judge. suspicion Mere bias or in a partiality is insufficient juror disqualify juror. Because trial court is in a superior position observe the demeanor and evaluate venireperson’s candor the trial court’s determination responses, will not set aside on it is against review unless v. Cole People manifest of the evidence. weight (1973), v. People Davis 401, 413-15; 54 Ill. 2d Ill. 95 2d 1, 19. each record, that apparent

From it is reviewing did some with difficulty of these have potential jurors she said that Esly defense. For example, insanity defense, Rog- insanity with the temporary had a problem of a authenticity he about the skeptical ers that was said case, in and Burdick said involved any mental condition has been he defense overused. insanity that believes that indicated However, all three of these individuals at trial cоuld consider evidence as presented they make a as to whether defendant and then determination was sane. merit he

Here, defendant’s claim since without to demonstrate that these three potential jurors failed An of possessed a state of mind. disqualifying analysis of these individuals responses the record reveals that not such it could that they were that be determined not be Because the trial impartial. judge could demeanor, their the best to observe evaluate position a fair determination that could defendant they give Davis, Ill. trial not be aside. See at 19. should set sum, challenge In court’s denial of defendant’s for evi- weight cause was not the manifest of the against indicated venirepersons’ dence where these responses Because impartial. could be fair and defendant they of demonstrating bias, could not sustain his burden of could not the court’s denial prove discretion, for an we find challenge cause was abuse of that he was not denied his to an right impartial jury.

THE TRIAL that he was denied due pro- Defendant next contends for the conflicting proof cess because burdens ver- reason verdict and GBMI insanity guilty by rather than guilty, jury’s finding dict resulted to the given ill. The instruction but guilty mentally had the stated insanity for the defense a burden of of the proving insanity by preponderance evidence. An instruction was also to the that given jury GBMI, to find defendant it had to a proven be beyond doubt that defendant was not insane at reasonable time he committed the crimes. alleged dictum,

This court has in previously recognized, an instruction his insan requiring prove a defendant an a of the evidence creates anom ity by preponderance when with the GBMI instruction aly combined must be a reasonable sanity proven beyond v. (People Fierer 124 Ill. (1988), 176.) doubt. statutes, “Under the current State continues proving sanity beyond a bear burden reasonable (Ill. purposes doubt for of a GBMI verdict. Rev. Stat. time, 38, 4(j).) ch. At the same par. 115 — establishing insanity by defendant bears the burden of a preponderance purposes of the evidence for of a not scheme, insanity reason of verdict. Under this a guilty by theoretical class of defendants exists who cannot be guilty by found insane and thus be not [cannot found] their insanity, they reason of have not carried because burden, not found preponderance may but who also proved by their has not noninsanity GBMI because been words, In other beyond the State a reasonable doubt. very sanity question, defendants whose is a close think should the GBMI group one would be covered verdict, they not GBMI because fall into may be found ‘beyond reason gap ‘preponderance’ between ” Fierer, 124 Ill. 2d at 189. able doubt.’ the evidence concern- Defendant submits because close, this is we have one of ing in case insanity very Fierer, the defendant those instances described where that had he cannot be found GBMI. Defendant contends would not GBMI, found it is that he likely been quite death, jury likely have sentenced to since a been ill individual to death. sentence mentally has that defendant maintains The initially State since he of appeal for argument purposes this waived instruction submit to the of the language to object failed instruction. or to offer an alternative the State ted by Further, it asserts 1.) 75 Ill. 2d Roberts v. (People error alleged failure to raise the that the defendant’s Enoch, this issue on appeal. motion waives his post-trial 122 Ill. 2d at 186. have

Defendant, procedurally that he admitting may that these issue, nevertheless contends waived of the trial court the fairness instructions undermined therefore, should be consid and, this issue proceedings court, de As stated “substantial by ered. previously make objections fects are not failure to by timely waived v. (People of justice require.” thereto if the interests 222; 134 Ill. 2d R. 216, 87 Ill. 2d Ogunsola (1981), includes, other among Fundamental fairness 451(c).) “ instructions, es to it that basic seeing ‘[cjertain things, of the case by jury sential to a fair determination of offense charged), of elements (e.g., proof, burden not em and the of waiver will concept must be given, if has been convicted reversal a defendant bar ployed ” Roberts, 75 Ill. 2d of these instructions.’ the absence Standards, Commen By Jury, at ABA Trial quoting (1968). at 116 tary, it would consider Fierer,

In this court held that the defendant’s despite issue on appeal instruction jury misstated waiver, clearly since the instruction apparent guilty find the defendant of proof required burden as to jury ill instructed mentally (the judge but instead of the the evidence” standard of “preponderance making standard), thereby doubt” reasonable “beyond In the found GBMI. it easier for the defendant to be GBMI and the issues of bar, case at the instructions on of proof and the burdens mirrored the elements insanity statutes. contained in the respective

We find that of fairness this court proceeding not so undermined by giving of these instructions as to avoid the rule general of waiver. Therefore, defend- ant, not at by objecting trial and not the al- including leged error in his post-trial motion, has waived this argu- ment on appeal. result, As we do reach constitutional question.

Defendant next claims error in the GBMI in- jury struction it because failed to inform the jury State bears the burden the elements for a proving GBMI verdict. the State Again, maintains that defendant has waived this argument by failing object to the in- struction at given when trial and not such error alleging in his motion for a new trial.

The following excerpt of the in- portion structions the not dealing with reason of guilty by insan- verdict ity GBMI verdict:

“If you yоur find from consideration of all the evi- dence that the proved defendant has aby preponderance of the guilty by evidence that he is not of insanity reason Clark, of murder of Richard you should find him not guilty by insanity Clark, reason of murder Richard your end, on this charge you deliberations should should return the guilty by verdict of not reason of insan- ity charge on the of murder of Richard Clark.

If you your find from consideration of all the evi- dence that the defendant has not proved by preponder- a ance of the evidence that he is not guilty by reason of in- Clark, sanity of murder of Richard you then should continue your charge deliberations on this to determine whether the defendant is guilty mentally but ill of murder of Richard Clark.

A special guilty mentally verdict of ill shall be re- but by you general turned instead of a if guilty you verdict of find each of the following propositions present to be this case:

First: That of murder of guilty Clark; Richard and insane at legally not was That the defendant

Second: Clark: murder of Richard he committed the time ill at the mentally was That defendánt Third: of Richard Clark. murder time he committed of all the evi- your consideration If find from you has been propositions of these each one dence that return the doubt, should you a reasonable beyond proved mentally guilty but the defendant finding verdict special Clark. charge of murder of Richard ill on the the evi- of all consideration your If find from you con- propositions or Third either the Second dence that not been ill verdict has mentally cerning guilty but doubt, return the you should a reasonable proved beyond of murder of guilty the defendant finding general verdict Richard Clark.” the murder given regarding

The same instruction was Shearer. “given instructions were that these

Defendant claims review, however, we found Upon over objection.” call this alleged did not defense counsel objection by that he stated attention, merely court’s but error to the the instructions the manner which was with unhappy to According the State’s computer. through were printed in to 451(b), objections proposed Rule Court Supreme enable the to specified” must be “particularly structions Thus, defend 451(b)). Ill. 2d R. (134 court to take action to constitute insufficient clearly ant’s objection omission coupled with objection, proper motion, the issue is error in his alleged post-trial of this Enoch, 122 Ill. 2d 176. waived. thereby he has finds that that if this court Defendant submits this issue consider we should still argument, waived this rule. Con- waiver exception under the error plain the al- determine whether it is necessary sequently, one, rising in the instruction is substantial defect leged Here, explic- the court did error. plain the level of carried bur- as to which jurors party inform the itly den of to the elements of the GBMI proof regard with Thus, verdict. some confusion have been created may by However, this a reviewing instruction. before court can decide an error whether has occurred the of giving instructions, certain the instructions from the entire jury v. Fields People trial must read as a whole. See 1, 11. 170 Ill. App. case, In this it is the doubtful that did under- jury instruction, stand the GBMI which as its name expresses is a verdict of the State to that guilty, requiring prove Here, the insane defendant was not but was ill. mentally informed that the defendant is jury presumed was innocent, until that remains is presumption that defendant beyond convinced reasonable doubt of that the State has the burden guilty, proving doubt, that a reasonable and guilt beyond this burden remains on the State the case. throughout

As a of the trial court result, specifi- failure the State was the cally acknowledge party carrying instruction, in the GBMI of light burden of proof whole, as a not so substantial jury instructions rule a review- defect as to avoid the normal waiver an issue not raised at trial. court will not review ing not denied due we find defendant was Consequently, a result these process as instructions. amendment and argues

Defendant next that his sixth to confront adverse wit- right fourteenth amendment the State. Dr. testified Gaspero nesses was violated Dr. for Cavanaugh for the defense testified and the State. the cross-examination During Gaspero direct examination State Cavanaugh, repeatedly Reifman, of Doctors brought opinions out psychiatric at trial. Waldman, Wassalau, none of whom testified in the record Defendant to various points passages of the expert examination during where the prosecutors, to the find- witnesses, nontestifying experts’ referred observations, and conclusions. data, their ings, including the testi- through this information further elicited They that contends be- Defendant responses. fying experts’ that there to the this, jury of it became apparent cause came to conclusion other who experts were three of the charged at the time was sane in this case was defense only crimes. Since defendant’s im- was under the the fact that the insanity, that of sane, while four found defendant experts pression it to disre- insane, him have caused may one found only on sheer of conclusions gard credibility Gaspero’s admis- Defendant concedes that alone. weight opinion ex- in the nontestifying sion of facts and data contained admissible, maintains were but properly perts’ reports as that their conclusions and were inadmissible opinions highly prejudicial hearsay. case of Wilson v. 186, 84 Ill. 2d Clark (1981),

In contained in Federal this court the standard adopted 705 for the use of expert Rules of Evidence 703 and that an expert at trial. It is now clear opinion testimony facts that are not in evi can based give opinion upon relied reasonably upon dence if those facts are of a type In 703.) R. Evid. (Fed. in the field. by experts particular other doc case, relied upon reports this the experts fitness. The mental tors who had analyzed psy upon patient’s relies heavily psychiatric profession v. Ander a diagnosis. (People in chiatric history making no Thus, there can be son 1, Ill. 2d 7-8.) 113 (1986), doctors relied of the other reports question utilized by of a customarily the State are upon type by the medical profession. extent evidence determine to what we must

Initially, examinations of experts’ from the nontestifying resulting we must determine admissible. Secondly, defendant was admitted. in it could have been what manner 176 v. Ward

In People 559, 61 Ill. (1975), court, 2d on relying Federal Rule of Evidence held that ex medical on the pert opinion question based sanity, on records part compiled others which had not by been evidence, into admitted if permissible the reports “are of a utilized type customarily the medical profes (Ward, sion.” Ill. 2d at 568.) Through develop ment area, of the in this law it now well appears settled that experts may consider medical and only records psychological relied members commonly upon by (Ward, of their profession their forming opinions Ill. 2d 559), but as to the contents of they may testify v. (Henry Brenner these records as well 138 Ill. (1985), Kinsey v. Kolber 609; App. 3d 103 Ill. 3d (1982), App. 933; In re Germich People (1981), 626; 103 Ill. 3d App. v. Rhoads 73 Ill. Case law App. 288). supports the that an can as to nontesti proposition expert testify Likewise, it findings and conclusions. is fying experts’ logical that the also refer to this source attorney may his posing long attempting as as he not questions, Products, See Bobb v. Modern elicit hearsay. inadmissible Inc. (5th 1981), Cir. 648 F.2d 1051. the contents of relied reports upon by experts

While if offered for would be inadmissible as clearly hearsay asserted, an the truth of the matter disclose expert may conclusions and for the limited pur facts underlying for his opinion. (Anderson, the basis pose explaining at an to reveal the in 12.) 113 Ill. 2d By allowing expert alone, it aid undoubtedly formation for this will purpose of his value jury assessing opinion. the examination of throughout expert Scattered both witnesses, to some extent in the State’s ar- closing and to these nontestifying there reference made gument, was conclusions. Based our read- upon experts’ findings the references were in record, of the we find ing or Dr. or Gaspero’s fact made to either discredit support does the prose- At no Cavanaugh’s testimony. point Dr. Dr. Cava- conclusions. cutor on the other experts’ dwell facts the truth of the did not establish testimony naugh’s did in the various reports contained and conclusions evidence, into substantive not convert information all available that he compiled demonstrated but only his dеtermi- making on defendant before medical history manner Further, judge’s it is clear from nations. in- that his the introduction of this evidence

controlling for this such evidence only purpose, tention was to allow truth of the prove nontestifying experts’ and not to and conclusions. findings that, extent, to a certain

We with defendant agree confused as to how this evidence may have been instructions Providing limiting introduced. being the trial would have during preferable way been control the admission of this critical information. How- ever, instructions, in the of such since we have absence intention, manifested to the determined that the judge’s trial, was to not al- jury through rulings during low this evidence we will not disturb substantively, court’s decision. We believe that the did abuse judge him, the discretion and therefore find that granted sixth amendment defendant’s amendment and fourteenth not violated right confront adverse witnesses was here. issue is defendant’s related to

Closely preceding error, next that the State alleged improperly impeached witness, Dr. with expert Gaspero, psycholog- his conclusion. ical which he had not based reports upon his crimi- Dr. examined defendant to determine Gaspero nal and Clark. for the of Shearer responsibility killings He at testified that defendant was insane legally ensued, time of the A killings. cross-examination lengthy he which the State asked Dr. whether during Gaspero he that had of Dr. and whether knew Cavanaugh, heard Dr. had found defendant Cavanaugh be sane. Dr. Gas- that he was aware that Dr. Cava- pero replied although defendant, had naugh evaluated he was not familiar with and, fact, Dr. results in Cavanaugh’s had not even seen his Dr. reports. Gaspero similarly questioned regard- Dr. Waldman’s and Dr. evaluations of ing Wassalau’s defendant. He that he did not either responded review their Since the State cross-examined Dr. reports. Gas- Doctors pero regarding reports generated Cava- Wassalau, Waldman, even Dr. naugh, though Gas- them, that he not on pero indicated had relied asserts that his conviction should reversed. be mentioned,

As under Federal Rule of Evi previously 705, Illinois, dence as in an an adopted expert may give without the facts that opinion disclosing underlying opin ion. This on to elicit burden the adverse places party (Wilson, the facts 84 Ill. underlying expert’s opinion. 2d at if an admits a re 194.) Clearly, expert relying upon port, be with the contents party may impeached v. (People Silagy 147, 101 Ill. 2d 171- report. we extent an 72.) What must determine here is to what and con expert may questioned regarding reports he not rely upon clusions of other which did experts to his conclusions. coming to Martin v. Zucker (1985), 133

The defendant points Products, Inc., and Bobb v. Modern Ill. App. if an 1055-56, F.2d at as for the proposition support reaсhing not a certain expert rely report did upon concern conclusion, then he be cross-examined may However, those cases are the contents of that ing report. those courts from the one since distinguishable present for not the introduction allowing had different reasons Martin, had to read sought the evidence. In plaintiff rec certain contents of his medical verbatim to of rea for a combination ords. This evidence was barred doctor sons, testifying one of which was that only

179 important the most in his testimony, it rely upon did not for could be established foundation that no being reason since Bobb, was barred In the evidence this evidence. to “impeach was clearly trying attorney

questioning *** trial where into the evidence slipping hearsay [he] related out closely in keeping succeeded had previously Bobb, at 1055. 648 F.2d evidence.” wit cross-examination, may probe counsel

“On weak sincerity, experience ness’s qualifications, his assumptions, basis, in the sufficiency nesses his Graham, Cleary (M. of his opinion.” and the soundness at §705.2, Illinois Evidence & Graham’s Handbook also be cross-exam An 1990).) expert may 553 ed. (5th but expert material reviewed by respect ined with (1987), v. Davison not rely. (Piano he did upon which also “Counsel is 671-72.) permitted 157 Ill. 3d App. ‍​‌​​‌‌​​​​‌​‌​​‌‌‌​​​​‌‌‌​​​​​‌​​‌​‌​‌​​​‌​​​​‌‌‍in of the expert by and fairness knowledge to test the her would affect of conditions changes into what quiring *** inquiry, such an [citation], conducting opinion facts finding support is not limited to the cross-examiner & Graham’s Hand Graham, (M. Cleary the record.” 1990).) 555 ed. §705.2, (5th Evidence at book of Illinois for the pur cross-examined Likewise, an be expert may his testi discrediting or explaining, modifying, pose taken what factors were as well as to ascertain mony, at in arriving ones disregarded into account and what Ill. App. See v. Fields People conclusions. 1, 14. in this case reveals the record A review of thorough of Dr. Gaspero cross-examination the prosecutor’s and spo- was isolated findings as to the other experts’ drawn from and conclusions view, radic. In our the data in- the prosecutor’s through the other experts’ reports time did At no substantively. introduced were not quiries other doctors declared that the the State to establish try utilized Instead, the were inquiries sane. referred to them in to determine if Dr. had Gaspero Also, he was posed hypotheti- his determination. making conclu- what effect certain cal to determine questions sions, correct, if would have on his own con- found to be clusion. the State to attack Dr. Gaspero’s

The court allowed him by asking and the basis of his opinion credibility alter data and conclusions would experts’ whether other It does not sanity. his defendant’s concerning opinion ex- not on the other rеly matter that Dr. did Gaspero to defendant. data and conclusions perts’ pertaining to prop- is that the was allowed jury What does matter the can his Because opinion. prosecutor evaluate erly con- expert factors an elicit on cross-examination what or did simply factors he disregarded, sidered and what utilize, here was proper. not the cross-examination fac- a critical

The of Dr. was Gaspero’s opinion basis sanity, of defendant’s tor in the assessment jury’s sanity its of defendant’s theory the State could support in formu- thoroughness the defense attacking expert’s by Dr. in- Gaspero The facts elicited from his lating opinion. have been may of defendant dicate that evaluation into investigation incomplete based on a somewhat Thus, medical history. psychiatric took into Dr. Gaspero the factors which was given arriving disregarded, he account, with the ones along the time insane at that defendant was at his conclusion by then used This information was of the crimes. alleged Dr. testi- Gaspero’s to to given it be weight to assess mony. cross-examination scope

It settled is well and that of the trial court discretion largely within of that unless an abuse not overturned its will rulings the defendant. in manifest prejudice discretion results v. People 149; 128, v. Wright 111 Ill. 2d (1985), (People In our opinion, Evans 203.) 173 Ill. App. determining his discretion in did not abuse judge The cross-examination. prosecutor of the State’s scope limited conclusions for the experts’ used absent properly therefore, defend- witness; purpose impeaching adverse witnesses ant’s constitutional to confront right was not violated. that his process next contention is due

Defendant’s over he forced to turn were violated when rights psy- of his interviews with defense recordings tape not allowed to State, to the whereas he was chologist his interviews with the State’s psychiatrist. tape-record turn to the Nevertheless, the State was over required with defense all notes from its interviews expert’s defendant. asserts that his were violated rights by

Defendant affected the since this discovery inequality, likely outcome of the trial. He that since the State had alleges Dr. defendant’s interviews with Gas- tape recordings it was for cross-examination pero, much better prepared was, than the defense had notes from Dr. only which Therefore, Cavanaugh’s argues, examination. since the trial court balancing right erred between the defense and the as it discovery prosecution, is to do virtue of Wardius v. required by Oregon (1973), 470, 82, 2208, 412 37 L. the con- U.S. Ed. 2d 93 S. Ct. viction should be overturned.

Defendant has of Wardius misinterpreted holding to identical terms for require by both discovery parties to the This not what the Court in- litigation. is certainly street; tended. It that is a only two-way held discovery that it is unfair to a defendant to infor- require divulge mation, State se- while at the same time to allow the at 475- for its own witnesses. 412 U.S. crecy (Wardius, 76, L. no 2212-13.) 37 Ed. 2d at 93 S. Ct. at By to means did the Court be require discovery perfectly symmetrical. 413(c),

Under Illinois Court Rule the State Supreme of, informed to and permitted inspect must be and copy, results, thereto, or or relative of any reports testimony examinations, or mental or other or any reports physical of which defense has in his statements counsel experts R. This (134 413(c)). or control Ill. 2d includes possession on defendants who evaluations performed psychiatric v. Childers People of See insanity. raise the defense Ill. 3d 104. App. and results” of inter- Here, Dr. Gaspero’s “reports under Rule subject of defendant were disclosure views the State that counsel informed Because defense 413(c). interviews, such but during notes made there were no available, of the conversations were recordings tape Further- such tapes. was ordered to tender used more, only these tapes the court ordered as to Dr. cross-examining Gaspero of for the purpose at no time should state, defendant’s mental introducing substantively for the purpose be used they guilt. admission of his statements, or as an to make 413(c) Rule under required As defendant State State, required so is the to the various disclosures or of physical or results reports disclose similarly Rule Court under Supreme examinations mental expert, The State’s 412(a)(iv)). Ill. R. 412(a)(iv) (134 his “reports to submit was ordered Cavanaugh, Dr. The rule. with this defendant, in conformity results” in Wardius pointed ends of that “the out Court Supreme discov of liberal a system served by will best be justice possible the maximum gives parties which both ery their which to prepare with information amount at surprise the possibility and thereby reduce[ ] ] case[ 87, 93 (Wardius, 2d at 473, 37 L. Ed. at 412 U.S. trial.” orders, of its court, trial virtue The 2211.) S. Ct. at goal. with complied

Dr. chose not to take notes his ses- Gaspero during defendant, sions but rather chose to such with conduct interviews with the use of a recorder. It is irrele- tape vant so, he chose to do the fact is that he why but made sessions, this tactical decision to tape-record did, once he became to dis- tape recordings subject closure under Rule 413(c) because were they only memorialization of the contrast, interviews. In Dr. Cava- did not conduct naugh his sessions with the use of a tape recorder or audio any device and informed specifically the trial court of his “strong professional opinion psychiatric interviews with the defendant should not audio-taped.” did, He (Emphasis added.) however, take extensive notes his during interviews with defendant and these notes were properly tendered to defendant in ac- cordance with Rule 412(a)(iv).

There is no law absolutely which states that a psychi- atrist must tape-record interviews, his even where the expert for the opposing has done so. party Accordingly, defendant’s claim that he was denied due process be- cause of this is without merit. inequality

Defendant’s next argument is that he was denied a fair trial due to certain im- allegedly inflammatory and proper remarks made prosecutor during open- ing statement and closing argument. Defendant, in his brief, recounts 24 separate remarks that he are, believes either or individually sufficient to cumulatively, overturn the court’s verdict.

Among allegedly prejudicial comments made dur- ing statement opening were those to the effect: that the jury should have been thinking about punishment; that “coward”; was a and that the prosecutor misstated the burden of proof reference to the insan- ity defense. During his closing argument rebuttal, the prosecutor allegedly erred comment- by: improperly on ing demeanor; using lan- manipulative trial; to the of the

guage grossly imply- misstate purpose an that a defense is avoidance of ing responsibility; what is to the insan- stating required prove inaccurately defense; few are to ity very able implying people defense; meet the for an drawing requirements insanity evidence; refer- unsupported by making conclusions table; to referring ence to defendant’s conduct at counsel insanity; defense as “temporary” expressing defendant’s defense; credibility his on the of defendant’s and opinion to of defendant threatening image jury. a projecting objected of the remarks of were not Many complained to in post-trial at trial and were not included error, remarks for a new trial. Absent these plain motion this court being properly will not be considered as before Ill. that none (Enoch, for 122 2d at We find 186.) review. error, under of the remarks amount to unpreserved plain thus, and (134 615), Ill. 2d R. Court Rule 615 Supreme were properly those remarks which only we will analyze in the record. preserved im to a trial free from defendant has

Every right arguments by prose comments or prejudicial proper or arguments a comments prosecutor’s cutor. Whether to the according error is evaluated constitute prejudicial evidence, the ef used, its to the and relation language to a fair right on the defendant’s argument fect of v. Ill. Bivens 163 People (1987), App. trial. and impartial 472, 3d 482. hand, great is allowed prosecutor

theOn other statement making opening of latitude deal 78 Ill. Hampton (1979), v. (People closing argument. 137 Ill. Morrison v. 243; (1985), People 238, 3d App. on ev has a comment 171, 184.) right 3d He App. deducible inferences legitimate draw all idence and to the defend if are unfavorable therefrom, they even 315, 3d Ill. App. Weatherspoon (1978), v. (People ant. than in a position court is better the trial Because 322.) reviewing court determine the effect of prejudicial made, remarks any regulation of the substance of the style statement or opening closing argument within the trial court’s discretion. v. Smothers (People 172, Ill. (1973), 55 2d 176.) Although prosecutor’s re marks sometimes exceed the com may bounds proper ment, the verdict must not unless it can be disturbed said that the remarks resulted substantial prejudice the accused, such that absent those remarks the verdict would have been different. v. (People Morgan (1986), 112 111, Ill. 2d 132; v. People Sheridan 57 Ill. App. The 772.) trial court’s determination of the pro of the remarks priety made will not be disturbed absent a clear abuse of Smothers, discretion. 55 Ill. 2d at 176. these

Applying legal to the im- principles allegedly proper remarks of the which prosecutor were preserved for taken appeal, or individually it is clear cumulatively, that the of them either majority were on based reason- able inferences from the evidence or were not so prejudi- cial as to amount to reversible error. The few comments that might be considered improper were subsequently court, cured the by either giving the in- by jury proper structions on the law to be the applied, by informing jury opening statements and closing are arguments not evidencé, themselves and to remarks disregard any not supported the evidence by trial; uncovered at or by the sustaining defendant’s objections, and the instructing to the disregard objected-to comment. From a the case, review of entire record in the par- attention to ticularly paying the comments pointed out by defendant, the we find there no was abuse of discre- tion the trial by Therefore, court. defendant was not de- prived of a fair trial as a result of the allegedly improper remarks.

Defendant next that he was denied due alleges pro- cess where the State to a present failed rebuttal witness

to that a inconsistent statement prove prior concerning witness, Brian defendant’s was made defense sanity by following to the the 3 murders. Kelly, April authorities defendant, testified as to be- Kelly, neighbor of bizarre cross-examination, defendant. by havior exhibited On had no Kelly maintained he opinion had an and that he had never such Nev- sanity opinion. ertheless, the him on he whether prosecutor questioned authorities, af- days had made a to the three statement could murders, ter as to defendant’s He sanity. the conversation, even shown the being remember after to attempted State police reports. Subsequently, ex-assistant prove impeachment by calling up regarding who had interviewed Attorney Kelly State’s However, his this testimony objected testifying. court, thereby pre- and sustained defense, by impeachment. the State’s cluding maintains, we agree, The State now since he issue for review defendant has waived this error in his written alleged post-trial to raise this failed v. 122 Ill. 2d Enoch People motion. As held at trial object failure of defendant mo post-trial written allegation raise an error er alleged tion new trial constitutes waiver for a post- in his point to raise this Here, ror. failed motion; argument is waived. trial this consequently, no error Moreover, alleged evidence that there the lim 615, which is Court Rule falls Supreme within Ill. 2d (134 to the rule ited, waiver exception error plain trial proceeding The of the court R. fairness 615). to per of the prosecutor failure by undermined indi the record where Kelly fect impeachment so, do was unsuccessful. he but attempted cates that record, particu it is this entire clear at the Looking re- requires which defect lar is not a substantial error court, view a by the absence of proper preserva- tion.

Defendant next argues that he was not proven guilty beyond reasonable of aggravated kidnapping doubt be- cause the State failed he to show that held Jean Wiwa- towski secretly throughout 36-hour Conse- period. he should not quently, argues, have been found for the death on the eligible penalty ground that the murder was committed in the course of an aggra- vated felony.

Defendant was charged with aggravated kidnapping under section 2(a)(5) of the Criminal Code of 1961 10— (Ill. 1985, Rev. Stat. 38, ch. par. 2(a)(5)). This provi 10— sion requires proof that defendant knowingly and se cretly will, confined another his and that person against he did so while armed with a dangerous (Ill. weapon. 1985, Rev. Stat. 38, ch. pars. 10-l(a)(l), 10-2(a)(5).) The secret confinement element of kidnapping may be shown of the by proof of either secrecy the confinement or the place confinement. (People v. Mulcahey (1978), 282, Ill. 2d 285.) This court has a to examine the duty evidence, if it so or improbable as unsatisfactory to raise a serious doubt of a defendant’s the con guilt, viction will be reversed. v. People Coulson 13 Ill. 296.

In the context of statute, this particular “secret” has been concealed, hidden, defined as or not made public. 72 Ill. (Mulcahey, 285.) 2d at The record this case re veals that after very defendant entered shortly Wiwa towski’s sister, her apartment, Mary told a Wagner, neighbor Wiwatowski was in the apartment with defendant. Defendant never made an attempt keep her secret, presence as evidenced discussions with the fact, In police. many people were aware quite that Wiwatowski was restrained inside the apartment

with made he defendant sincе he it well known that was as a holding her hostage. se argues

The State that defendant held Wiwatowski hours, al cretly (1) because for the entire 36 no one was her; to rescue or for the first 10 minutes of the (2) lowed in ordeal, the authorities were not aware that she was side the defendant. it is with While true apartment a a can confined as ef secretly victim of kidnapping her if trans own home as defendant had fectively her to some remote isolated of confinement ported place 285), 72 Ill. at fact that one could (Mulcahey, the no not con rescue her of the situation did hostage because vert known something that which was otherwise well Also, there no to support was secretive. is authority the until the that a confinement secret proposition it, are notified of as as non-law-en long “authorities” it. forcement are aware of personnel failure to evidence that upon any Based the produce secret, the we conclude that the State confinement was rea- the a kidnapping did not prove aggravating beyond doubt, do, and therefore we as it was required sonable the trial court’s on count. finding guilty reverse if was result, As we must next determine defendant for death eligible penalty. found properly was into hearing death divided penalty Defendant’s first was decide During part, jury two parts. for a sentence the defendant was death eligible whether el- If that defendant under the law. decided jury hearing, of the then, the second part igible, during sen- should be the defendant to decide whether jury was for eligible jury to death. The found tenced aggra- statutory of three on basis penalty death kill- homicide, murder, double factors: vating felony of felony factor aggravating The officer. ing police was, kidnapping on aggravated which was murder based argues The defendant above, unfounded. as described one factor is found nonexist- aggravating since now ent, sentence should be vacated and cause remanded for a new sentencing hearing. find defendant’s conclusion to If

We be erroneous. we did not of the aggravating know which factors to found but that there was one or more present, only vacated, then the present, sentence would have to be since it then would have been the possible jury found the defendant on the of the eligible solely presence factor, the disqualified Zant aggravated kidnapping. (See v. 862, 880-81, 462 Stephens (1983), U.S. 77 L. Ed. 2d 235, 252, 2733, 103 S. However, Ct. in accord- 2744-45.) ance with the instructions, court’s the jury gave separate consideration to each statutory aggravating and, factor result, as a found, unanimously a reasonable beyond doubt, that each factor separate existed. Consequently, defendant was found for the deаth properly eligible sen- tence, based the upon of the two fac- presence remaining tors.

Furthermore, defendant contends that in the even presence of a valid factor, the death aggravating sen tence still must be reversed in accordance with v. People 508, Brownell 79 Ill. 2d since Illinois law requires aggravating factors be in mitigating weighed determining whether to the death When impose penalty. the considered whether to jury the death impose penalty the during second of the phase hearing, after finding defendant eligible the first it was during phase, required to balance the aggravating and factors. One mitigating of the aggravating factors was that the murders oc curred in the course of an aggravated kidnapping. Defendant the argues would have jury’s balancing eliminated, been different if this factor had been with the conclusion. change affecting jury’s Defendant’s reliance on for his contention is Brownell In Brownell, erroneous. the a factor jury clearly weighed 190 evidence,

which was not warranted the whereas here the not it should have dur anything did on not jury rely second Once it had been ing phase hearing. determined that defendant was for death eligible one of falling virtue of his actions within penalty, by 1(b) factors under section aggravating detailed 9— 1985, 38, Rev. Stat. ch. (Ill. Criminal Code of any could consider par. 1(b)), jury aggravating 9— to set in factors. It was not limited those forth subsec whether death (b) penalty. tion determining impose 1985, As 1(c).) Rev. Stat. ch. a (I par. ll. 9— result, considered though even should have jury of its restraint of Wiwatowski terms be considered ing entirely it was have felony, proper factor in conduct an aggravating defendant’s identical as impose penalty. whether to the death determining Therefore, conviction for aggravat the absence not have affected the deci ing jury’s should kidnapping here, sion since would have been able con factors that mitigating sider same aggravating the consider. (See People it the defendant claims did actually v. Emer 347; People v. Coleman 321, Ill. 2d (1989), 129 son Thus, Ill. defendant’s death 122 445.) and remanded for not be reversed penalty sentence will alleged on er sentencing a new account hearing ror. failing next the court erred by

Defendant that alleges the testi for a mistrial grant following to his motion Defendant claims that Walsh. mony of Officer Patrick the tender, through discovery, the not properly State did to made of an statement substance oral Court the result, Supreme State violated Walsh. As it R. which 412(a)(ii)), requires Rule Ill. 2d 412(a)(ii) (134 made by oral statements to disclose the substance any the making as well a list of witnesses accused, as of such statements. Walsh,

The called testified that he re- State who to the scene of the at sponded shooting аpproximately thereafter, and, defendant. p.m. shortly telephoned State asked said When the Walsh what defendant had conversation, their during defense objected for asked a sidebar. The court overruled the objection and denied the for a request sidebar. Over defense’s Walsh testified that defendant had continuing objections, told him he surrender, would not that he had bombs, and to send in more officers because he police wanted kill thereafter, them. Immediately Walsh passed Malone, defendant’s comments on to Lieutenant who then them relayed over the radio. police Apparently, this last transmission was At the conclu- tape-recorded. sion of the direct examination, the court allowed finally a sidebar, during which defense protested that reveal, State did not during the defendant’s discovery, statements to Walsh or even the fact that Walsh took any statements from defendant.

The argued State the discovery requirements were fully complied with because Walsh was listed as a potential witness, and the defense had in its possession, for over two years, tape recording containing sub- stance of the comments that defendant made to Walsh. The defense responded that Walsh had be specifically named as the individual who had witnessed these state- ments, and that a failure to do so was a violation of Rule 412, which unfairly prejudiced defendant. As a result, defendant a mistrial. requested The court ruled that the defense’s failure to interview during Walsh two weeks after which it was on notice he put could be a Therefore, witness caused the problem. court denied its motion for However, a mistrial. because Walsh’s testimony cumulative to the testimony Lieutenant the court struck it in Kennedy, its entirety, and admonished the to it. jury disregard v. Orr People

Defendant, on Ill. relying (1986), as 348, merely naming 3d contends that Walsh a App. to Rule comply witness was insufficient with potential 412, of the number of indi light staggering especially State witnesses. Ac by potential viduals listed the as the defendant, to was under cording obligation State to associate witness with the specific specifically Fur of defendant to which he a comments was witness. ther, defendant concedes that striking testimony may violation, for a discovery be a generally proper remedy in a situa but that a mistrial should have been granted one, tion such as the current where the would be so that it would by testimony influenced and prejudiced and not or could not be fair and where impartial, effect of the evidence could not be remedied damaging Wills v. People or by admonitions instructions. 153 Ill. 339-40. App. re- trial, whether the tape it was unclear

During turned over to defendant. At was ever cording actually might he have one defense counsel indicated point, it, check make sure. He that he would have to but claimed that he was not tendered the never subsequently con- Thus, to the evidence tape question. lacking any the defense had a acknowledge timely we will trary, Additionally, the State. as copy tape, alleged by witness for potential the defense knew that Walsh was However, not inform the defense the State. the State did comments. incriminating that Walsh heard court is whether confronting The question it though with Rule 412 even had failed complied State oral statements the substance associate 412 provides with the heard them. Section who person *** *** counsel “the shall disclose defense State the ac- oral made by statements any substance codefendant, to the or a list of witnesses cused (134 of such statements.” making acknowledgment re to designed 412 was not Rule 412(a)(ii).) Ill. 2d R toas which to make assumptions defense counsel quire at were present of the witnesses potential State’s 149 Ill. 3d a statement. (Orr, App. time made defendant 436, 3d 62 Ill. 359; (1978), App. at v. Boucher People 873, 876.) 3d 440; 29 Ill. People (1975), App. v. Rand Here, acknowledge the State knew would Walsh statement, its failure to by spe and defendant made the state name as the heard person Walsh who cifically 412. ments in it violated Rule question, clearly violation was must determine if this we Consequently, or, con to the defendant as State unduly prejudicial error. Court Rule tends, harmless merely “Supreme was defend 412(a)(ii) promulgated protect was [citation] unfairness, ant and against surprise, inadequate prepara an tion as well as to afford the defense [citation], oppor surrounding the circumstances tunity investigate 163, statement.” v. Cisewski 118 Ill. 2d (People Thus, technical 172.) compliance be excused where may the defendant had access to the statements. v. (People Further, Miller (1989), 981, 990.) 190 Ill. 3d where App. witness, defendant has not the known any interviewed claim of and is v. surprise prejudice negated. (People 158 Ill. Lasley (1987), 635.) App. failure to comply discovery requirements with

“[T]he does not in all instances necessitate a new trial. [Cita granted A new trial should if the only be defendant tion.] prejudiced by discovery is violation and the trial court prejudice. Among failed to eliminate the [Citation.] factors in determining to be considered whether a new evidence, trial is warranted are the closeness of the evidence, strength of the undisclosed the likelihood that prior helped notice could have the defense discredit (Cisewski, 172.) the evidence.” 118 Ill. 2d at factors, others, at these as as Looking well we conclude that this error was harmless. to the factors regard With Cisewski, out no while there doubt

pointed killed Leslie Shearer Officer Richard Clark, it could as to san- argued evidence balanced; however, was the value Walsh’s ity closely may have been testimony proving sanity means Finally, but no crucial. defend- helpful, ant has not to this court how further any demonstrated into defendant’s conversation with investigation Walsh strategy could have the defendant’s trial or pos- altered of the the outcome case. sibly changed factors, first, regard although With additional identical, large the of Walsh to a extent was testimony which, other among cumulative to Malone’s testimony “if any that police revealed defendant’s comment things, Second, it off.” in, go came there a bomb and would was as to the defense was on notice the statements ques- it tion, recordings that they tape as were contained two The years. had in its for over possession presumably as a potential identity defense was also aware Walsh’s of the fact that the State failed to witness, irrespective these particular him as the individual who heard identify Walsh, If or at the defense had statements. interviewed it investigation, in a more engaged thorough least for that have fully prepared it would been very likely this fact court did admon- that evidence. Finally, it believed (as to disregard testimony ish the jury fact as well as the cumulative), Walsh’s be testimony a for contin- granted request that the court defense’s of these the nature and contents uance to investigate thereto, suffi- witnesses statements, and any possible result, alleged As a we find error. cured ciently any not disturb harmless, and will therefore error to in denying discretion judicial of its sound court’s exercise for mistrial. the motion trial court’s exclu-

Defendant next contends defend- by made statements sion of certain out-of-court from the ordeal prevented the 36-hour during ant The manslaughter. voluntary on an instruction receiving Biebel, a that of James Sergeant testimony excluded ne- hostage department’s the Chicago police member of at length Biebel talked team. In that capacity, gotiation his surrender. before to defendant over telephone de- Biebel testify, the defense being After called The with defendant. he had made contact scribed how him had what defendant told defense then asked Biebel to the defense’s State, however, objected The happened. Biebel, statements self-serving through introducing, evidence, and ob- particularly as substantive statements to effort to use the to the defense’s jected The de- instruction. manslaughter support voluntary it statements fense introduce sought responded which would negotiation sup- made during process instruction. The trial port voluntary manslaughter excluded the court the State’s and. objection sustained testimony. relate an- the defense asked Biebel to

Subsequently, he at ap- other conversation that had with defendant Here, on the objected 8:30 State proximately p.m. had the answer be that defendant grounds would that the on the people told that he did not know Biebel self-serving, street officers and that that was police were result, As a the trial court sus- exculpatory hearsay. tained this as well. objection to were

Because the defendant’s statements Biebel that it and the defense claims self-serving exculpatory, was from evidence that defendant presenting prevented in which had shot Shearer as a result of an argument defendant was so him; Shearer first struck evidence that at doing he not he was that did know what “hopped up” was Shearer; the time evidence that defendant he shot in fact police that on the street were people aware ran- firing that officers; and evidence defendant shooting not intentionally the street and was into domly at individual. any evidence, the de- of all the introduction

Following in- manslaughter a voluntary tendered to court fense The State and Shearer. killings for the Clark struction a lack instructions, claiming the use of these objected that countered them. The defense to support of evidence substantively was not admitted evidence supporting trial court had because, request, at the State’s only defend- from Biebel about asking the defense precluded mind at his state of concerning statements ant’s against giving The court ruled shootings. time of the instructions. manslaughter the voluntary testimony, that the excluded now argues Defendant Clark, Shearer and shooting admitted which defendant Because an admission. as should have been admissible (Peo as hearsay to exclusion subject are not admissions v. the defendant ple 22, 57), Stewart 105 Ill. excluded Biebel’s court incorrectly the trial that argues of the defendant, the exclusion According testimony. right his constitutional violated out-of-court statements defense, rulings prevented because to present manslaugh on voluntary instructions receiving him from amendment and fourteenth amendment ter, his eighth were violated. rights argues any pur- State hand,

On the other concern- to Biebel made statements ported Shearer killing for shooting reason alleged his ing unreliable admissions, were or but confessions were not voluntary to support insufficient which was hearsay to the Furthermore, according instruction. manslaughter his statements contention, State, the defendant’s on the officers knowledge police concerning Biebel with- excluded, is completely not have been scene should on knowledge any State maintains out merit. The at was present who concerning part no rele- absolutely had shot Clark defendant scene when instructed been have should jury to whether vance manslaughter. voluntary on when an admission as be admissible

A may statement not but a party, against a defendant it is offered by position. own the defendant’s to support it is offered when (P 261; App. 172 Ill. Berry v. eople Ev of Illinois & Graham’s Handbook Graham, Cleary M. R Evid. Fed. 1990); ed. §802.1, (5th at 595 idence purported defendant’s Therefore, because 801(d)(2).) him to prior struck that Shearer statement to Biebel was but against party, not offered being was shooting he position to defendant’s support offered being man murder, voluntary only not of but was guilty an ad not admissible as such statement slaughter, mission. not was inad- statement

Further, only this purported as excluded admission, but was properly as an missible elicit, to at trial Here, defendant attempted hearsay. statement an out-of-court testimony, through Biebel’s to tell the Biebel Defendant wanted made defendant. by had struck him that Shearer that defendant told shot Shearer. him that was defendant why at trial evidence elicited wanted this defendant Clearly, truth of to as evidence prove to used substantive statement Therefore, such own statement. defendant’s trial court as hearsay. excluded by was properly contention, that his statement additional ‍​‌​​‌‌​​​​‌​‌​​‌‌‌​​​​‌‌‌​​​​​‌​​‌​‌​‌​​​‌​​​​‌‌‍Defendant’s officers on knowledge police his concerning Biebel excluded, is also without the scene should not have been an as this admissible merit. statement Similarly, only sup- since it was offered admission Moreover, statement his own port position. he as wanted hearsay, excluded as was also properly truth of it: very trial to prove information elicited at was a police Clark did not know Officer that defendant to use this state- attempted officer. Because defendant al- ment as evidence to prove Biebel substantive on this sub- testimony lack of Biebel’s leged knowledge, excluded as hearsay. was ject properly in result, find that the trial court did not err As a we not these Defendant was denied statements. excluding reversed on this fair his convictions will trial and basis. HEARING

SENTENCING of that the introduction ev- Defendant next maintains of idence, guilt sentencing phases the and during both of the crimes trial, alleged the which revealed the impact and their families violated defendant’s the victims upon sentencing to a fair trial and amendment eighth right substantially prejudiced in that such information hearing, state- the State’s During opening the him. against jury the impact mentioned ment, briefly the prosecutor his as well as per- murder upon family Richard Clark’s discussed his death. The State also sonal details about Wiwatowski, Mary Jenny of the crimes upon the impact During prosecu- family. and Leslie Shearer’s Wagner, cer- was asked examination, Clark’s widow tion’s direct Clark’s awards their family, tain about questions officer, and how she as a police commendations received testified Shearer’s widow also out his death. found about out as how she found about their as well family, about Moreover, during sentencing her husband’s death. refer- additional made several hearing, prosecutor families. the victims’ crime’s on impact ences to the is irrelevant this evidence Defendant argues and should or innocence guilt determining He further contends admitted. not have been against prejudice serves only of evidence type To emotions. to the jurors’ by appealing the defendant Booth v. relies contention, upon defendant support

199 440, 107 S. L. Ed. 2d U.S. Maryland case which Court 2529, States Supreme Ct. United evidence as unconsti- impact of victim the use precluded trial, of the First, phase focusing guilt tutional. upon im- testimony relating asserts that the families and their of the crimes victims upon pact to di- being its only purpose with prejudicial, was highly hand, at question attention from the vert the jury’s the charged guilty defendant was whether namely of such tactics contends that use crimes. Defendant ato him of his due process right the prosecutor deprived re- and, therefore, his convictions should be fair trial versed. ques comments and complained-of

A review some did, fact, introduce tions the State reveals However, the intro victim evidence. impact irrelevant sporadic, duction of this evidence was isolated trial, adduced at incidental to other relevant evidence manner, did in an inflammatory was not presented to it material. Such the that was jurors lead believe or fam victim her evidence murder concerning man in an incidental is not when elicited ily prejudicial it to material. ner not cause the to believe jury that does (P 415; v. 378, v. 94 Ill. 2d (1983), People Free eople Further, 302, 305-07.) improper 51 Ill. (1972), Wilson 2d error not constitute reversible remarks do prosecutorial in to the accused unless result they prejudice substantial 119, 119 2d or are 139-40) v. Ill. (People (1987), Johnson in v. Johnson (People a material factor his conviction 170, the introduction of 199). 114 Ill. 2d (1986), Clearly, in case not substan evidence did impact victim a material and was not the defendant tially prejudice Here, of the many complained- factor in his convictions. founda introductory, consisted of questions merely background, to the witness’ tional questions pertaining which proper.

200

Any attempt bind this court to the precedent set forth in People v. Bernette (1964), 30 Ill. 359, 371 (that where in a testimony murder case that the de ceased has left a spouse and is not family elicited inci but dentally, presented in such a manner as to cause jury material, believe it is its admission is highly prejudicial and constitutes error), reversible fail, must as the degree of prejudice, if any, exрerienced by defendant in this case is insignificant when compared in Bernette. There, suffered defendant State presented the victim impact evidence in such a manner as to to . permit conclude jury it was ma terial to defendant’s guilt, unlike the present case which there was no emphasis on placed this evidence.

With to the regard victim impact evidence introduced during the sentencing phase trial, relies upon Booth and South Carolina v. Gathers (1989), 805, U.S. 104 L. Ed. 2d 876, 109 2207, which, S. Ct. taken together, held that the eighth amendment pro hibits a capital sentencing from jury considering evi dence about the victim’s and the family murder victim’s character. However, both Booth and Gathers have since been overruled by Payne v. Tennessee (1991), U.S. 808, 115 L. Ed. 2d 720, 111 S. 2597, Ct. which holds the eighth amendment does not prohibit a from at considering, the sentencing of a phase capital trial, evidence to a relating victim’s personal characteristics and the emotional of the impact murder on the victim’s adopted Payne People v. As family. Illinois has now Howard 147 Ill. 2d we conclude that State’s introduction of this evidence during sentenc ing phase trial was proper.

We find that the court did not err in allowing the vic- tim evidence impact either the during guilt as it phase, was immaterial or the nonprejudicial, sen- during Payne, tencing phase, based the of upon reasoning 201 Conse- through Howard. Illinois thereafter adopted the convic- we will neither reverse quently, hear- sentencing this cause for a new nor remand tions of this evidence. result the introduction ing as a of this should vacate next submits that court Defendant imposed because it was improperly death sentence of factors which were mitigating due to the existence State, however, The maintains that him. presented by no mitigat- the there were concluded jury properly of the preclude imposition factors sufficient ing court and, therefore, properly the trial penalty death to death. sentenced defendant review, States Su

In United aiding courts of whether a stated that an preme analysis Court has case death in a proper particular “requires sentence of the individ of the character and record consideration ual of the of particular offender and the circumstances (Woodson fense.” v. North 428 U.S. (1976), Carolina 280, 304, 944, 961, 2978, 2991.) 49 2d 96 Ct. L. Ed. S. that, As has when such, reviewing this court determined death, it will evaluation of sentence make separate record, it overturn the trier of but will lightly mitiga facts’ made findings aggravation during are tion death when penalty hearing they phase v. Christian (See People record. amply supported by 96, 122; People (1988), sen Ill. 2d v. Odle (1987), 116 v. 111, People Ill. As this court stated 130-32.) 484, 109 Ill. 2d 506: (1985), Walker death, vacate a sentence of considering petitions

“In of its author be mindful of limitations court must *** nor require permit neither responsibilities ‘Our ity: exists, re guilt no no reasonable doubt of reversal where occurred, is no indication has and there error versible penalty on authority] imposed [sentencing ” Ill. Walker, 109 2d at reasoned basis.’ other than a 129, 165. Ill. 2d v. Lewis quoting People In case, the instant the jury determined the miti- gating factors presented were insufficient to preclude imposition of the death penalty, whereas defendant be- lieves otherwise. In thereof, support he submits the fol- lowing facts: that he was a man 58-year-old with no criminal prior record; that he had a of history employ- ment as a tool and maker; die that he had served in the before military being honorably that he discharged; had a history illness, mental which was deteriorating rap- in recent idly years; illness, and that his as well as his severe depression at the time of the killings, triggered this violent episode.

In of his support position, the defendant relies on v. People Carlson People v. Buggs 79 Ill. (1980), 564, 2d v. People Johnson (1989), 128 284, 112 Ill. 2d and Ill. attempts analogize facts his case to these cases. In all cases, three of those defendants’ sentences vacated, were as this court found the mitigating evidence was sufficient to preclude the death penalty.

We must first review the briefly facts of these cases Carlson, to determine our reliance them. In upon defendant, a 46-year-old, man, divorced recently killed his former wife of 19 years during over her dispute other men. He seeing times, shot her 10 poured gasoline throughout house, her and then set it on fire. Carlson then went to a bar where he gave friend a sum large for Carlson’s money son’s education. thereaf- Shortly ter, when the police him, arrived to arrest Carlson shot and killed one of the officers. In vacating sentence, this court noted that Carlson lacked a significant history of criminal activity and that he had acted under an ex- treme emotional disturbance exacerbated by very poor physical and emotional health. The court also found that Carlson’s concern about his son was a factor. mitigating after the defendant occurred the murder Buggs, In of her boyfriends’ a result of one as argued, and his wife she During argument her. telephoning repeatedly At two of her sons. he had not fathered him that told he outraged; poured became the defendant point house, set her, on as well as gasoline throughout and son. of his wife fire, on death resulting them death sen Carlson, vacated Buggs’ on the court Relying factors: following mitigating tence due to 21 in forties, in served years his had who was Buggs, he discharged; that military honorably the and was then that he had a activity; of serious criminal history had no he had marital difficulties and that drinking problem; which, fact, in the incident. The court con triggered that, “Buggs for his marital would problems, cluded but our society.” a life presumably leading acceptable 112 2d at Buggs, Ill. 295. Johnson, the defendant shot and killed

Finally, one. and store he had man wounded two others at a where his death sentence previously worked. The court vacated good Among because his character. the factors relied had school graduated high were that Johnson from upon insignificant with that he had an criminal good grades, record, that he and had steady employment history. Also, Johnson’s and alcohol drug problems paralleled Carlson, those of and and the addiction could be Buggs This blamed for his behavior. court concluded he had fired had occurred because been killings only just his was that he job, from and that he under the belief final The court found had been deprived paycheck. an stressful event which had was isolated caused crime. on

Each case must be evaluated unique capital Here, re- its own crimes apparently facts. defendant’s day sulted from his emotional disturbances. On be- murders, depressed, apparently defendant was 204

cause it was his son’s 30th estranged birthday and he had not him seen nearly years. Also, just prior murders, had apparently an argument with his landlord. Similar to the cases relied upon by he defendant, had prior criminal record of. speak no. hand, On the other although defendant had served in it military, was for a only period of six months. While he maker, tool and die his work experience had been erratic. There very was no claim or evidence of or alcohol drug abuse by defendant, as in the other Further, cases. although defendant claims his actions co- inciding with his son’s estranged is no coinci- birthday dence, the fact that he had not seen his son in about 20 years should have minimized the impact of this anniver- Also, sary. of an terrorizing elderly for lady approxi- mately hours tends to indicate the existence of a heart” “malignant the defendant. in the Finally, cases defendant, relied upon by there was some as testimony to the good defendant, character of the while in this case, the little as to testimony character was either neutral or negative. Carlson, Johnson, Buggs,

In this court found that the circumstances of their crimes, as well as defend- characters, ants’ did not of men bespeak with malignant hearts who must be eliminated from permanently society. In the present case, although there were some mitigat- factors ing defense, the presented by are not so they sig- nificant as to the of the death preclude imposition pen- The alty. facts of this case not do the facts of parallel those cases upon defendant, relied such that court is bound to vacate dеfendant’s sentence. Conse- we will not quently, disturb as it was jury’s finding, rationally based.

Defendant’s next of error is allegation that he was of a fair deprived due to certain re- sentencing hearing marks of the made his and re- prosecutor during closing hearing. of the stage second during buttal arguments contention, principally To his support 320, v. Mississippi 472 U.S. Caldwell relies upon for 2633, which stands 105 S. Ct. 86 L. Ed. 2d a may not lead prosecution that proposition rests a death sentence for responsibility believe on responsibility State law elsewhere, places when the jury. the State repeatedly here

The defendant asserts not on the for the death penalty placed responsibility first points the defendant himself. Defendant jury, on but colloquies: of the portions following the emphasized *** states The law McNERNEY “MR. [Prosecutor]: miti- find you be sentenced to death unless that he shall or gating factors which are sufficient can overcome I tell Ladies and aggravating you, factors in the case. Gentlemen, put trip you do not on guilt let the defense has for what the defendant in this case done. murdered, blood, in cold offi- police

The defendant cer, year for his landlord and terrorized a old woman guilt hours Don’t let put hours and and hours. them you. on for those acts Objection.

MR. SCHOLZ [Defense Counsel]: there, stays Because it’s it’s MR. McNERNEY: [sic] there.

THE COURT: Overruled. It there when stays MR. It there. was McNERNEY: 6, 1988, He’s a April he did it on it remains there now. hateful, spiteful murderer. case, Gentlemen, particular he’s

Ladies and in this he’s about he’s received or that responsible sentence for to receive. Objection. MR. SCHOLZ: added.) (Emphasis

THE COURT: Overruled.” know, you What should “MR. VELCICH [Prosecutor]: your It will be gentlemen, you’re alone. ladies decision, capital your facing it that he’s but isn’t fault it’s his It’s punishment. fault, It’s own own decision. brought

his own He conduct. into this court room himself American, happened and because he’s an because America, process. he’s had this He’s had three lawyers to him, help defend him. had a to He’s' fair and honest judge. good He’s had twelve and decent citizens to de- him, him, him, I’m to sorry, judge fend examine assist him. That’s what he’s entitled to And are you part here. process.” (Emphasis added.) that Defendant claims these comments were improper by virtue of Caldwell because shifted the they responsi- for the death from the to the bility defend- penalty jury However, ant. we not do believe that these comments misled the as to role in sentencing its jury process. In Caldwell, prosecutor sought to minimize jury’s sense of the of its role to it that importance by arguing its decision whether to sentence to death court, would not be the final decision a higher because Court, would review defend- Mississippi Supreme Here, ant’s sentence for correctness. was never jury misled to feel less for its responsible sentencing decision. The its was told decision whether jury explicitly sentence defendant to death was on the court binding and that it should not feel if it chose such a sen- guilty addition, In tence. instructions and the ver- jury both dict forms set forth the law regarding ju- accurately role in The the death statements ry’s imposing penalty. in no from the shifted the of death way responsibility to another and defendant’s judicial body, attempt himself with a is unfounded. equate judicial body Defendant’s second claim of error to the fol- pertains lowing argument: *** police who first arrested

“MR. VELCICH: The him, wrong him it was to have didn’t shoot because him, they if fired any shot because one of bullets at him the course of this incident and hit the during [sic] mark, what say we wouldn’t here and no one would wrong did of his conduct. He was police because con- accountable, to be he was entitled entitled, he was and Gentle- Ladies point, at that to death put and victed he is now. men, as just Objection. SMITH

MR. Counsel]: [Defense Proceed. Overruled. THE COURT: was to hold did police what the But MR. VELCICH: so law, justice him to bring bring him to him and held why police the over. That’s could take this process the law police the didn’t [into him. Just because [take] to allowed you aren’t mean that doesn’t their own hands] followit.” remark, prosecu claims defendant

From this its responsi “entirely abrogate” to “urged” tor be sentenced should defendant to decide whether bility lati wide are prosecutors permitted Generally, to death. com their although arguments, closing tude in their or upon in evidence on the facts must be based ments v. Terry (People therefrom. reasonable inferences drawn However, by comments 508, 517.) 99 Ill. (1984), im considered might ordinarily which prosecutor are they when argument in are rebuttal proper proper made defense by comments an reply improper invited v. Vriner (People closing argument. counsel in his own reviewing prosecutorial In 343-44.) Ill. 2d 74 (1978), and the State misconduct, the both closing arguments the com their entirety examined in must be defense con in their proper placed comments must be plained-of 163, 175-76.) Ill. 2d v. Cisewski (People text. proper in their comments the prosecutor’s When placing in clearly were his remarks context, apparent it is as detailed be argument, counsel’s vited the defense low: here. If we wanted we’re contrary why

“Revenge as down gunned John would have revenge, police *** There was building. of that soon as he walked out a reason If there was him down. not a reason to shoot out gunned down down, have been he would shoot him street, out on Lili Street on the morning the 5th. police wrong The knew that was it. they wouldn’t do you’re being something, strangers And now asked to do being something are asked to do that the participаnts wrong event at time knew was to do. And that is added.) to take his in cold blood.” (Emphasis life remarks, As is evident from defense counsel’s he ini- the line of argument tiated whether it was concerning or for the to have shot defend- “right” “wrong” police Thus, ant on Lili Street. re- prosecutor simply to defense counsel’s assessment of the situa- sponding tion. Therefore, because this was invited reply, cannot now claim error. claim of regarding alleged

Defendant’s third error to the “shifting responsibility” pertains prosecutor’s him, remark: “You’re not the killing you’re following law, following the law that sworn to you’re you’ve up- hold.” This was where the argument entirely proper was on the to fol- prosecutor simply focusing jury’s duty low and enforce the law. These comments did not tend to minimize for deter- sense of jury’s responsibility death mining appropriateness imposing pen- alty. that

Defendant’s fourth of error is allegation informed the that defendant jury prosecutor improperly The im- allegedly commit crimes in the future. might are in the following excerpt: remarks proper emphasized *** have, “MR. What Ladies and Gen- you VELCICH: tlemen, during the course of this case heard evidence that committed crimes and controlled defendant in such a neighborhood city police department only punishment. is the way punishment that the ultimate about, what he you know what he’s know you Because and that’s You he likes to sit and read likes to do. know in prison. And that’s all he’ll do prison. what he’ll do whether, commit he’ll ever in the I know don’t future you he crimes, They guarantee they say he won’t. any won’t. Objection.

MR. SCHOLZ: Objection. SMITH:

MR. I don’t know. say can’t that. I MR. VELCICH: Proceed. objection is overruled. The THE COURT: and I won’t I guarantee can’t MR. VELCICH: some of the it, you like to tell I would comment on but doesn’t he is. His evidence show what things you factors any mitigating There aren’t anything. you show people.” these the murders of sufficient to overcome added.) (Emphasis asser-

It is clear that the record belies defend- stated that tion, never prosecution because crime. He commit a future would, might, ant or even he did not know whether stated that merely fact, spe- a crime. In prosecutor would ever commit Further, on it.” “I won’t comment told cifically jury, he considered to he to what responding was specifically some- guarantee, be the defense’s claim an absolute said he could not thing give. the prosecutor that it was improper fifth contention was Defendant’s that it should for the argue prosecutor it a sentence of death where feel guilty imposing about else, killed defendant, and no one was a known fact Defendant Leslie Shearer and Officer Richard Clark. im- following prosecutor claims the argument proper: what, what he is and

“MR. Let’s look at VELCICH: you as delib- gentlemen, he’s done. First of all ladies and so obvious case, thing one that’s almost erate this there’s it, this, think about say I even have to but that don’t will never, ever, day anyone when there ever be will it wasn’t John Pasch. say forward and that step ever to or condemned wrong That man was sentenced the moment we From happen. death. That will never this was room, knew that everyone this court walked into never, the man who committed these crimes. So will you anyone say wrong ever have come forward and man wrong was convicted or the man was condemned to happen. death. You will never have that It’s obvious but it’s that important. you, any Because removes from kind feel, guilt gentlemen, and ladies I’m you may and This is not I being easy thing you. unrealistic. an for you ago you know when came in here three weeks didn’t you that would these of issues. expect facing be- kinds things. taking lightly. These kinds of I’m not I don’t think you are either.”

The was on the evidence prosecutor’s argument based at trial which that no one other than presented proved the de- defendant had murdered Shearer and Clark. As fense that but relied challenged allegation, solely never insane, on these comments the fact to defendant. More impor- were not unduly prejudicial as counsel to consistently attempted place defense tantly, his during closing argument, pros- on the guilt jurors roles, jurors’ ecutor was justified clarifying feel for per- them that should not reminding they guilty their as forming jurors. duty 18, 66- v. Fields 135 Ill. 2d People on

Relying has been con 69, which held that after a defendant to the victed, to right argue he does not have his should guilt that it have about might doubts any here defense counsel mitigation, be considered to be im it is argument: equally makes the reciprocal as to defendant’s that the lack of doubt argue to proper However, the death sentence. impose is a reason to guilt from result necessarily contention does not defendant’s sup law directly nor is there case any Fields’ holding, focused Moreover, the State porting proposition. participation the lack as of doubt upon it could Clark, be not because of Shearer killing weighed by factor aggravating considered as an con- counsel’s to defense respond instead jury, but its during jurors on the guilt attempts place sistent or in other hearing, sentencing of the closing argument to disturb such, are hesitant As we words, reply. invited argument this allowing discretion the trial court’s be used. is that the prosecutor contention sixth

Defendant’s that evidence arguing the law by misstated repeatedly crime. Defend- unless it excused was not mitigating argument pertain- claims that the prosecutor’s ant first below, with as shown was improper, to Dr. ing Gaspero emphasized: the complained-of portions of Dr. Now, that claim beсause they “MR. VELCICH: room, court Reifman, light in this the doctor’s new evidence, something that never you’ve there’s there’s no of Dr. Reifman. heard of because before Objection. MR. SCHOLZ:

THE Overruled. Proceed. COURT: Reifman, gentlemen, Dr. ladies and MR. VELCICH: disorder, mood disor- has a a testified that the defendant known thing you’ve the same der and That’s dysthymia. says now. He right this case until beginning from the moderate, Cavanaugh. just it’s like Dr. Objection.

MR. SCHOLZ:

THE COURT: Overruled. one, except Gesparo Dr. MR. VELCICH: No no one disorder, conduct, this mood ever said that that [sic] disorder, depressed feeling excused mood and his his bad say except that Nobody that. can Nobody his crime. said Gesparo. Dr. [sic] that. he never said Objection,

MR. SCHOLZ: THE COURT: Overruled. say that and didn’t Dr. Reifman

MR. VELCICH: and it shown it. He has a mental disorder they haven’t signifi- to be an emotional by you can be considered according to the instructions disorder cant or emotional because he has judge. just But you get will from he the time depression at operated under some kind of that excuses mean that these crimes doesn’t committed conditions, those miti- The law is that those these crimes. gating may they factors exist but don’t have to overcome exist, the aggravating you you factors that know beyond have found Dr. already reasonable doubt. So anything Reifman wasn’t new today. Dr. Reifman knows about, what he’s talking depressed, this man was that he had a condition but no one Dr. except Gesparo it claims that excuses his conduct. [sic] Objection. MR. SCHOLZ: mitigating MR. That’s not a factor. VELCICH^ THE COURT: Overruled. Objection, MR. SCHOLZ: that’s the issue. not THE The objection COURT: overruled. Lili outweighs

MR. VELCICH: And the terror of man, from you.” Street that came ‍​‌​​‌‌​​​​‌​‌​​‌‌‌​​​​‌‌‌​​​​​‌​​‌​‌​‌​​​‌​​​​‌‌‍from that and not added.) (Emphasis defendant claims the

Specifically, prosecutor that evidence did not the offense “plainly mitigate stated unless it excused the offense.” Although focusing only on those of the record defendant portions specified by contention, credence to his it is essential may give look at the in their Taken as a comments context. proper whole, is mislead- argument we do believe that as the stated that ing, prosecutor clearly mitigating exist factor of a mental or emotional disorder but “may don’t have to overcome factors that aggravating they added.) know exist.” you (Emphasis final contention with sec- regard Defendant’s to an al- sentencing hearing ond of the stage pertains misstatement of evidence. leged Specifically, the evidence pre- claims that misstated prosecutor Lieutenant concern- testimony sented through Kennedy’s which were found ing various bombs the following argument, rebuttal apartment. During discussion took place: Well, what Lt. you do remember

“MR. VELCICH: During apartment? the defendant’s Kennedy said about the defend- hostage negotiations of the before the course his arrested, apart- into managed to break they ant was some they also found a mess and they found ment and makeshift bombs. bombs, explosive some Objection. MR. SMITH: untrue. Objection,

MR. SCHOLZ: is overruled. objection The THE COURT: that those you told The lieutenant MR. VELCICH: wicking mate- fuses and fire crackers or had some bombs rial.” the testimony pro- based on

This argument, rebuttal com- trial, at was proper Kennedy vided Lieutenant at upon arriving testified that mentary. Kennedy entered who had a detective scene, he with spoke an me jar, “and showed they defendant’s apartment of it was in the lid put mason where a hole jar empty fusing some had inserted and and a fire contractor been him- that defendant further stated Kennedy attached.” go and it would self that he had “bomb Kennedy told to enter apartment off” if the police attempted Thus, hostage. holding where defendant inferences to characterizations were proper prosecution’s we Consequently, from Kennedy’s testimony. be drawn arguments closing find that the rebuttal prosecutor’s did not de- hearing sentencing made during of a fair hearing. defendant prive his el- of finding

Defendant next the challenges jury’s defend- on the ground for the death igibility penalty have known Offi- ant did not know and should not his To support Clark a officer. police cer Richard was the fact that Clark was contention, defendant relies on car, and clothes, in an unmarked dressed in arrived plain officer. The stand- he was a police never announced that of the evidence applied sufficiency ard of review to be evidence in whether, all the viewing after arguments rational any the most favorable to light prosecution, elements found the essential trier of fact could have v. People Young the offense a reasonable doubt. beyond 1, 49. 128 Ill. 2d testi- Simmons stated his trial during Officer William Lili that he arrived at the 1400 block West mony same time as Officer Street at approximately his marked car at an Prueser, squad ap- that he parked Lili, in front of 1425 West 45-degree angle proximately shots fired. and then thereafter heard several shortly Shearer, to the murder of an eyewitness Dawn Terry, Shearer, ran shot he back testified that after defendant outside with a into and returned apartment his basement He then ran gun.” up duffel and a bag “rifle-type a Lili, pull he attempted stairs at 1427 West where As he struggled into her house. Wagner screaming Mary woman, his head east toward he turned with older in her down Avenue, resulting tumbling Southport and gun his duffel grabbed bag stairs. Defendant then into house. Wagner’s and ran 1986, at ap- that on April

Joan Johnson testified her on the house porch she was proximately p.m., standing Wagner Lili she saw located at 1440 West when have done God, you what shouting, “My on her porch stairs run up Wagner’s defendant now.” She then saw During hands. gun and onto her with porch, saw and, similarly Terry, sirens time, Johnson heard Avenue, the direction look towards Southport were coming. from the sirens where Galbreth, testi- Ricky Clark’s Officer partner, Officer he scene, ap- Clark fied that at arriving upon Ronnie Officer area where uniformed proached neighbor- in the some people Prueser with speaking was Clark Officers of Shearer. shooting concerning hood along parked westbound and Prueser then walked car blue behind they stopped on the street until cars were As the officers Lili. in front of 1429 West parked posi- Galbreth the car and Officer crouched behind Lili, front the front tioned near the of 1425 West steps shouted, of 1427 Lili and defendant opened door West here,” and then slammed going get “You’re never tell the door. At heard Prueser point, Galbreth Clark had a get gun. down because defendant, who was in the win- standing Galbreth saw rifle, shot, dow fire a Clark. hitting with a Officer From this it can inferred testimony, reasonably that defendant knew or should have known that Richard Clark was a officer in the course of his police performing duties. Both and Johnson testified that defendant Terry turned his in the si- police head direction from where and, rens he coming apartment, were after entered at least one car near the house in squad pulled up very which defendant had himself. also dic- Logic positioned tates that defendant knew or should have known that police were informed of the Shearer and shooting that it would be a matter minutes just before their ar- rival on the Indeed, murder scene. when defendant opened the front door to the apartment and shouted to the officers that in,” were “never he they going get knew that the had arrived and his police began prepara- tions for the situation. ensuing hostage When defendant door, opened he have seen may very well Officer Prueser in uniform outside the house situated directly near cars, the parked even he was crouched though down, and would have seen the marked certainly squad car which was the street at a blocking 45-degree angle.

Additional revealed that defendant told testimony Reed their that he Stanley during telephone conversation had killed two and that one of them people police officer. Defendant also Sergeant told Biebel one during of their conversations that he “killed two phone people, one was a the other I shot in the cop, back.” Finally, during conversation with Officer Walsh minutes just after the defendant stated that ar- shooting, had “[h]e wanted to kill more ammunition,

mor he and piercing po- added.) licemen.” (Emphasis

After all of the the witnesses viewing testimony by on the scene and the defendant’s own statements per- to the murder in the most favorable to the taining light have rational trier fact could found prosecution, any that defendant knew or beyond reasonable doubt have known Richard Clark was a offi- police should Therefore, cer in the his duties. course of performing defendant is not to a new be- sentencing hearing entitled cause of this error. alleged fair

Defendant next contends that he was denied a the State introduced capital sentencing hearing because the hear- during the first testimony phase irrelevant tes- of the ing. Chicago police department Officer Walsh had shortly after he telephoned tified that he had mate- “that he shot Shearer. Defendant told Walsh am- rial make He armor-piercing to bombs. had gasoline munition, he more and wanted to kill policemen.” relevant to the is not testimony Defendant alleges factors, which is the focus of prove any aggravating and was therefore hearing, first the sentencing phase to the defendant. unduly prejudicial has issue, we find that defendant In reviewing to such to by failing object error here any alleged waived in a post-sentencing to this issue and raise testimony Enoch, Ill. This rule 176.) ap 122 2d waiver (See motion. sen trial, during also but not plies only during Ill. v. 138 (See People tencing hearing. Moffitt of this Furthermore, the introduction 106, 113.) App. error, will not be not to and plain does amount testimony to waiver exception error plain reviewed under rule, previously to that which was as it cumulative was was elicited testimony into evidence. Walsh’s introduced he had killed police that defendant knew show for eligible was therefore line of duty, officer in the 217 The ammu- regarding the death sentence. testimony relevant nition and bombs was inconsequential of this testimony. portions was inef further claim that his counsel

Defendant’s is merit- fective for failing object testimony to Walsh’s set less, as defendant cannot meet the standard forth by v. Wash United States Court Strickland Supreme 674, 668, L. Ed. 2d 104 S. Ct. ington (1984), U.S. v. Albanese adopted by People this court (1984), 104 Ill. 2d 504. Defendant has established deficient, that counsel’s nor seriously performance error, he has established that for the out alleged but come of the first would different. Con phase have been defendant’s death sentence will not be vacated sequently, due to this testimony.

Defendant next the GBMI instruction alleges given to the at the conclusion of the of jury guilt phase the trial was to have caused the to reasonably likely jury the disregard factor of extreme emotional dis- mitigating turbance the during sentencing hearing. Specifically, out that the points jury because had already ill, found defendant instead of but guilty, guilty mentally it would find that he have been for to impossible jury disturbance, from an extreme mental suffering which constituted his “defense” to the death penalty.

However, we find thаt defendant has waived this is sue on this instruc object because he failed to appeal tion at in his motion trial and raise this issue post-trial 122 Ill. nor he raise this dur (Enoch, 176), point 2d did to alert the court as to this al ing sentencing phase Furthermore, error did not leged alleged error. as this hearing, a fair trial or deprive sentencing defendant of this is we error rule to review plain will not invoke sue.

218 DEATH

CONSTITUTIONALITY OF THE PENALTY of challenges Defendant next makes a series here, however, as death statute itself. We hold penalty cases, challenges we in numerous other these have contends that the Illi- are without merit. Defendant first of nois the burden places persua- death statute penalty defendant, eighth thereby violating sion on the of the United States Constitu- fourteenth amendments VIII, (U.S. Const., XIV). tion amends. states, pertinent

The Illinois statute penalty death as follows: part, unanimously

“If there are no determines imposition mitigating preclude factors sufficient sentence, court sentence the defend death shall 1989, 38, 1(g). ant Ill. ch. par. to death.” Rev. Stat. 9— no This court has stated that unconstitu repeatedly burden-shifting provi tional within this encompassed Peo v. Thomas 500, 537; Ill. (People sion. 137 2d (1990), v. People v. 387, 426-27; ple Jones (1988), 123 Ill. 2d King v. 147-48; People 111, Ill. Morgan (1986), 2d 514, 546-47; People v. Caballero 109 Ill. 2d (1986), Therefore, to re Ill. we decline 49.) provision light consider the constitutionality to our attention brought the fact that defendant has deci prior which render these recent any developments sions invalid. features that various

Defendant further contends has statute, this court which penalty Illinois death constitutional, are unconstitutional found individually in arbitrary result they their because totality together Defend- of the death penalty. and capricious imposition other with provisions ant contrasts Illinois’ statute more controls allegedly impose States’ statutes which “fact But to death. impose over the decision pen- forms of death enacted different other States have 219 statutes which also constitutional alty satisfy require ments no on choice.” (Blystone casts doubt [one State’s] 309, v. L. 299, U.S. Ed. Pennsylvania 255, 266, 1078, 110 S. Ct. This court care 1084.) has each fully reviewed of the of defendant’s components effect, as as has challenge well their combined con cluded that the statute the risk minimizes of arbitrary and capricious death sentences sufficiently satisfy Constitution. “If all of the are individual consti aspects tutional, we stand the conclusion that the whole is by also constitutional.” (People Phillips (1989), v. 127 Ill. 2d 499, 542-43; see also v. Bean People (1990), 137 Ill. 2d 65, 141; Thomas, Therefore, 137 Ill. 2d at 549-50.) are unconstitutionality arguments without merit, as he no presents ground for these de overruling cisions. all stated,

For the reasons we affirm the defendant’s convictions and sentence for murder and his con reverse viction for aggravated The clerk of this kidnapping. court is directed to enter an order Jan setting Tuesday, 26, uary 1993, as the date on which the sentence, death entered in the circuit court Cook is to car County, ried out. Defendant shall be executed in the manner pro vided law (Ill. 38, Rev. Stat. ch. par. 5). 119— The clerk of this court shall send a certified of the copy mandate in this Corrections, case the Director of warden Center, at Stateville Correctional and the war den of the institution in which the defendant is confined.

Convictions in part affirmed and reversed in part; death sentence affirmed. CHIEF MILLER, JUSTICE concurring: I concur in the court’s judgment much of join I majority however, write opinion. separately, address further two raised in the questions opinion:

220 Batson v. of the resolution defendant’s claim under Kentucky (1986), 79, 69, 476 90 L. U.S. Ed. 2d 106 S. 1712, Ct. the of introduction testimony relating the of several opinions nontestifying experts.

During selection, objected defense counsel on Batson grounds to the exercise of a State’s peremptory challenge member of venire. against Hispanic The trial to consider the merits of the judge declined claim, that on the apparently ground not non-Hispanic standing defendant did have raise the issue. As the the trial recognizes, majority opinion reason for the defendant’s judge’s refusing consider Batson claim is invalid. Later case confirms law a Batson claim even raise he though an accused may does not the ethnic identification excluded share v. venireman. Powers Ohio 400, U.S. 113 (1991), L. Ed. 111 S. 1364 (white may Ct. raise Batson claim mem exclusion of black regarding Andrews People v. 146 Ill. 2d bers venire); 413, 425. opinion, the remarks

Beyond quoted majority however, in the counsel made no face attempt, defense ruling, any of the fur trial adverse judge’s provide Batson for claim. Al support ther evidentiary arising from the of the though incompleteness doubts our review of this automatically record do not foreclose Andrews, 2d at (see (defendant’s 146 Ill. 434-35 issue in venire fatal failure to number of blacks establish to Batson in the record claim)), may uncertainties the defendant favor resolved against one case, provides In surname alone State. the present at issue —the ground for ethnic determining basis of the a review was Hispanic excluded venireman —and in question juror prospective record shows the venire. member of was the only Hispanic-surnamed such, in the im- no as to discern There is “pattern,” of a par- the solitary representative exclusion of proper in a acted prosecutor ticular To show group. manner, in these circum- a defendant discriminatory between comparisons stances will on necessarily rely other ethnic groups the of juror jurors excluded in- the offense the Whether prosecution. retained by or otherwise groups of different ethnic volved persons also significant, had racial or ethnic overtones may from the excluded ju- as the majority suggests. Apart identification, however, the defend- present ror’s ethnic his contention ant in of nothing support has offered record, this that acted On the prosecutor improperly. the the then, I with conclusion agree majority’s of prima defendant has failed to case establish facie discrimination. purposeful endorse,

I unneces however, do not the majority’s the trial found suggestions implicitly sary judge a prima the defendant’s to establish proof inadequate reviewing case and that what we are actually facie here is Ill. at As I (152 163.) that unstated finding. noted, have the trial declined to consider the judge Batson claim, the the ground on apparently the Hispanic defendant lacked standing challenge exclusion; venireman’s in the record indicates nothing that the also on its merits. judge analyzed question

The defendant also contends that the State improp- not evidence that three who did erly presented experts the defendant was at trial had concluded that testify of this sane. I with the resolution agree majority’s I such question, permitting but believe that the rules are than the majority suggests. broader inquiries chief, the case in the During prosecutor Dr. the defendant’s expert, Gaspero, cross-examined three opinions nontestifying experts about of —Dr. Waldman, had Reifman, Dr. and Dr. Wassalau—who examined and found him previously Later, rebuttal, sane. also prosecution ques- tioned concern- expert witness, its own Dr. Cavanaugh, ing experts’ Finally, these dur- nontestifying opinions. mentioned the ing closing argument, prosecution of the two Dr. opinions only testifying experts, and Dr. three nontesti- Cavanaugh Gaspero, but as The defendant contends that fying well. experts State’s uses of the were nontestifying experts’ opinions all erroneous. first the direct examination

Considering witness, Dr. I with Cavanaugh, agree State’s rebuttal the prosecutor properly conclusion that majority’s data, conclusions, concerning the witness questioned who by nontestifying experts and opinions produced Rules had defendant. Federal previously examined 705, as this court 703 and adopted Evidence Wilson v. Clark an ex Ill. 2d permit in not ev witness to information pert testify regarding is of the re type reasonably idence if the information Contrary particular lied on in field. by experts here, the of informa range the defendant’s contention Rule 703 includes tion that under may presented others data or but compiled by raw only generated Graham, (M. of also and conclusions others. opinions Evidence of Illinois & Graham’s Handbook Cleary is in There no §703.1, (5th 1990).) question at 522 ed. nontestifying the three the of opinions case by psychi the relied on reasonably are of experts type no error there atrists and thus and psychologists, Dr. its expert, examination of own in the State’s direct v. Ward People 61 Ill. 2d 559. See Cavanaugh. the ex- of The cross-examination State’s Discussing witness, Dr. was also proper. pert Gaspero, of wit- expert cross-examination and examination

223 705, Professor Graham nesses under Rules 703 writes: the cross-exam may

“A situation arise when difficult facts, or alter to add rather than subtract attempts iner relied, to actually upon expert those facts which fairness, or knowledge, expert’s qualifications, test the data, fact, which the opinion If the or opinion. basis of has expert’s to add to the basis cross-examiner seeks evidence, or is otherwise introduced been or will be treatise, is contained in a learned cross-examination fact, data, or Similarly, opinion if the additional proper. Rule upon relied under reasonably has been or will be by as a witness the cross-exam by expert 703 an called chief, during iner his case in cross-examination Graham, Testimony proper.” Expert Witness Insuring Adequate Federal Rules Evidence: Assur Trustworthiness, ance Ill. L. Rev. 70. U. Graham, also M. of Federal Evidence (See Handbook §705.3, Indeed, at 684 n.4 cross-exami (3d 1991).) ed. nation fact or may be even when additional proper is not into and is not re opinion introduced evidence lied another trial. In deter upon witness at expert mining cross-examination appropriate scope case, the trial must consider whether judge value of the probative challenged inquiry outweighs risk of unfair to the U. prejudice opposing party. Ill. L. Rev. at 70. case,

In the the State’s cross-examination of present later Dr. did not the information Gaspero go beyond elicited of Dr. Cava- during testimony rebuttal there was naugh, prosecution’s expert. Accordingly, in the of Dr. Gas- no error prosecution’s questioning the views of the pero nontestifying experts. about made The went these limits and beyond prosecution use of some of the out-of-court opinions substantive At argument, points during however. several closing the defendant’s reject argument, urging non- noted that defense, the prosecution insanity These sane. had found experts testifying of erroneous, for and opinions facts comments were testi- Rule 703 through experts presented nontestifying Graham, (M. Cleary evidence. are not substantive mony §703.1, at of Illinois Evidence & Graham’s Handbook isolated, were The remarks (5th 1990).) ed. have affected could however, they and I do not believe of the issue. sanity determination jury’s of stated, judgment I concur in the reasons For the the court. FREEMAN, concurring: also

JUSTICE However, I raise the majority opinion. I with agree related to the concerns, questioning, both here two dire, voir Rogers, Esly, Henry Susie during See insanity. the defense Thomas Burdick regarding 152 Ill. 2d at 165-68. the responses given the conclusion that

I with agree that, being despite and Burdick indicated by Rogers con defense, could they nature of the troubled and make determina presented sider the evidence as certain of the con I am less tion of defendant’s sanity. that indicated however, that clusion, Esly’s responses 169. 152 Ill. 2d at See ability. she the same possessed in the de that she did not “believe” revealed Esly defense she felt insanity, explaining fense of to avoid in efforts indiscriminately was asserted 166.) 2d at Ill. (152 criminal conduct. consequences affirmatively responded she thereafter Although the evidence presented listen to she could “probably” iterated, as a fi issue, she on the and make a decision not “think she did matter, nal remark on the aas de insanity as thing temporary such a there [was] 166. 152 Ill. 2d at fense.”

225 stated, If, as she incongruous. are Esly’s responses the defense validity accept she could not consider could never that she abstract, it seems to me in this issue on the presented the evidence fairly that acknowledgments Esly’s simple case. defendant’s an opinion, and form to evidence she could listen were between acknowledgments sandwiched as that she did believe formulated statements Esly’s convinc- existed, entirely are not defense insanity have I think should Esly in that regard. to me ing however, I said, agree for cause. That been excused to ex- that the failure conclusion with the majority’s to no reason disturb provides cuse on that basis Esly that no indication There is convictions. a peremp- to use having defendant was prejudiced by tory challenge. conclusion I regards

The second concern have the issue for review properly preserved defendant the failure to exclude Esly, Rogers, to relating for cause. The finds that majority require Burdick In so ments for issue were satisfied. preserving on v. Enoch People relies concluding, majority cited for universally 122 Ill. 2d which a timely the rule that issue both preservation requires (Enoch, trial and a written motion. objection post-trial I with the ultimate 186.) Although agree Ill. 2d at denied his determination here that defendant was not ex an defense counsel never impartial jury, to right of the re to the trial denial pressly objected judge’s the three for cause. venirepersons excuse quests acknowl The that defense counsel only record shows to remove challenge to use a edged having peremptory each from venire. matter cannot

The mention or allusion to some bare for purposes suffice as a trial proper timely objection disagrеe- of the waiver rule. There must be discernible in the tran ment to the issue documented with respect I out in that that defense point regard would script. the record to reflect clear counsel was careful to cause dire voir he so at other when points during objections e.g., (reflecting 152 Ill. 2d at 161-62 desired. (See, to the exclusion of venireper defense counsel objected Because the because he was Hispanic).) son Maldonado to the trial not contain any objection record does the three venirepersons refusal judge’s permit I cause, would have concluded excused for raise the issue here. waived the to opportunity the used by language by I am more troubled did not waive in that defendant concluding majority the three failure to excuse the issue regarding I that opin- for cause. am concerned venirepersons re- of a indicates, inaccurately, implicit approval ion the requirements whether laxed determine scrutiny the lan- met. I believe have been for issue preservation read mistakenly court here could be used guage from those standards. as some departure objection, trial timely the required Regarding “undoubtedly counsel that defense concludes majority voir dire decision to the trial judge’s during objected” (152 for cause. three venirepersons not to excuse the suggest conclusion I cannot join any Ill. 2d at 168.) here, counsel’s fact, defense the allusion to a ing the three refusal to excuse of acknowledgment objec that an cause, is determinative for venirepersons no shows transcript The fact raised. tion to that was trial with disagreement of voiced expression three venirepersons excuse the decision judge’s all is disagreement of voiced The expression for cause. trial of a way in the is required and everything The objection for review. an issue to preserve objection objection or not an of record. Whether must appear to ap- no consequence raised is of “undoubtedly” rule. waiver plication post-trial the requisite regarding used

Language more particularly but problematic similarly motion is is entirely analysis the majority’s given disturbing filing of the The statutory requirement unnecessary. defendants to require is interpreted motion post-trial issue to complained-of out, specifically, to point 38, ch. Stat. Rev. (Ill. it for review. preserve error not do. will statements 6.) General par. 111 — 121 Ill. App. v. Thomas (See, e.g., People held that Enoch, this court However, in v. People 883.) from rais not precluded cases are defendants capital of a post- in the on absence appeal certain issues ing has been trial objection a рroper trial motion where issues 190.) Specifically, 122 Ill. 2d at made. (Enoch, rights objected of constitutional related to deprivation in a pe raised may post-conviction to at trial which evidence, of the tition, sufficiency to the relating issues sense, au are, error in that and issues relating plain a post-trial of whether regardless tomatically preserved at Enoch, 122 Ill. 2d 190. motion has been filed. served in reason, analyzing

For that no purpose specifi- motion whether a capital post-trial of errors. The point out those limited types sets cally of to hold illogical any It would be should be obvious. were not stated with they those issues waived because such a motion in motion when a specificity post-trial those issues for review. to unnecessary preserve measuring reached only by a would be Such conclusion the standards against motion defendant’s capital used in a case. noncapital a disin- actually

It seems to me that there would direct the to attempt centive for a defendant capital motion, otherwise a issues trial judge, post-trial in addition preserved by objection automatically The other errors. complained-of capital the court determine the otherwise having would risk issues waived for lack automatically preserved speci to the purpose Such a result would be ficity. contrary v. Caballero People motion. See of a post-trial 102 Ill. 2d 23. to ex here is that the failure argument

Defendant’s Burdick for cause ostensibly clude Esly, Rogers, trial. him to a fair right constitutional deprived that issue would be objection, trial Assuming proper to file a of the failure regardless post-trial preserved of that error statement nonspecific motion or ‍​‌​​‌‌​​​​‌​‌​​‌‌‌​​​​‌‌‌​​​​​‌​​‌​‌​‌​​​‌​​​​‌‌‍despite Nevertheless, the majority analyzes in a filed motion. of its here in terms speci motion post-trial “fairly the motion was although concluding ficity, the court” to the to alert it was “sufficient general” at 168. issue. 152 Ill. 2d general,” motion as “fairly

In characterizing stated to avoid application but it finding sufficiently uninten- rule, majority may I believe the waiver re- the specificity create an impression tionally That is not considered. seriously is not quirement should be read as in the Nothing majority opinion case. mo- post-trial from the requirement a departure issue out, detail, complained-of set tions must Al- waiver. is to avoid required where such a motion in this unnecessary the consideration though, again, motion that defendant’s case, I out point would capital “failure to ex- issue as the identify did specifically the defendant cause[,] forcing cuse various for jurors challenges.” to exhaust his peremptory notes the interview. [sic] profuse took them, get we will he has THE COURT: We will—if of Court 10-20. them. Order Pasch, he is not Mr. MR. McNERNY [Prosecutor]: Latin. for give me reasons THE You don’t have COURT: Mexican, go on. Pasch is not challenge. Mr. peremptory section, Judge.” Jury McNERNY: of cross MR.

Case Details

Case Name: People v. Pasch

Court Name: Illinois Supreme Court

Date Published: Oct 1, 1992

Citation: 604 N.E.2d 294

Docket Number: 68977

Court Abbreviation: Ill.