THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. IRVING RAMEY, Appellant.
No. 69889
Supreme Court of Illinois
September 24, 1992
November 30, 1992
152 Ill. 2d 41
Charles M. Schiedel, Deputy Defender, and Peter L. Rotskoff and John Anthony Palombi, Assistant Defenders, of the Office of the State Appellate Defender, of Springfield, for appellant.
Roland W. Burris, Attorney General, of Springfield, and Jack O‘Malley, State‘s Attorney, of Chicago (Terence M. Madsen, Assistant Attorney General, of Chicago, and Renee Goldfarb and Kathleen F. Howlett, Assistant State‘s Attorneys, of counsel), for the People.
JUSTICE FREEMAN delivered the opinion of the court:
Defendant, Irving Ramey, was charged, by indictment, with three counts of murder, one count of robbery and one count of armed violence in connection with the stabbing death of Albert Oliver which occurred on August 22, 1986. After a bench trial in the circuit court of Cook County, defendant was convicted of armed violence, which conviction the trial court later vacated, and one count of murder in that he stabbed Albert Oliver knowing that such stabbing created a strong probability of death or great bodily harm. Defendant was acquitted of the remaining charges. After defendant waived a jury for sentencing, the trial court sentenced him to death for the murder of Oliver. Defendant‘s death sentence has
BACKGROUND
The State‘s evidence revealed the following. In the early morning hours of August 22, 1986, Chicago police officers Slakis and Rimkus were informed that there was a male individual, later identified as Albert Oliver, bleeding on lower Wacker Drive. Upon arriving at the scene, the officers found Oliver‘s body lying in a concrete planter which was filled with soil. About 10 feet away from the planter there was a pool of blood through which there were drag marks that ended at the body lying in the planter. Oliver was lying on his back and his face was covered with dirt and blood. Oliver‘s mouth and nostrils were packed with dirt. Oliver had multiple stab wounds in his back. While Oliver had clean white socks on his feet, he had on no shoes.
After Officers Slakis and Rimkus had been at the scene a short time, Officer Slakis noticed defendant in the area and asked him whether he had seen anything. He also asked defendant his name, address and phone number. Defendant responded that all he had seen was the body “laying there” and gave the officer the requested information.
On August 24, Chicago police detectives Griffin and Flynn, who were investigating Oliver‘s death, went to the address defendant had given Officer Slakis. There, the detectives first encountered defendant‘s uncle, who told them defendant lived in the basement apartment. After defendant‘s uncle called him on the telephone and told him the detectives wanted to speak to him, defendant opened his door and the detectives entered his apartment. While defendant was dressing, the detectives noticed an “expensive-looking” and blood-stained pair of
Upon being told that the detectives wanted to speak with Hutchinson, defendant called him on the telephone. The detectives then left defendant‘s apartment to meet Hutchinson and, upon doing so, asked Hutchinson if he had lent a pair of white athletic shoes to defendant. Hutchinson denied knowledge of any shoes. Immediately thereafter, defendant ran toward his basement apartment. Detective Griffin chased and caught defendant by the wrists at the door of his apartment. Defendant slammed the door on Detective Griffin‘s wrists and struggled to get through the door. Ultimately, the detectives subdued defendant, placed him under arrest and advised him of his Miranda rights.
After transporting defendant to the police station, the detectives showed the white athletic shoes to a friend of the victim. The victim‘s friend identified the shoes as belonging to Oliver. The detectives returned to the police station, where they again advised defendant of his Miranda rights. Defendant stated he understood. The officers questioned him concerning what he had seen on August 22 on lower Wacker Drive. Defendant responded that, upon leaving a nearby club at about 5 a.m., someone approached him and told him there was a dead body over by the Chicago river. Defendant walked over to the area indicated, found the body and took the shoes. Defendant also stated that he attempted to take some rings, but that he could not get them off of the fingers. When asked to explain the discrepancies between his present statement and a previous statement he had given Officers Slakis and Rimkus, wherein he stated that he had not touched the body, he admitted that he had lied when questioned at the scene and stated he was now
Subsequently, pursuant to defendant‘s consent, the detectives searched his apartment. They recovered a black gym bag and a wallet containing some papers bearing Oliver‘s name. After being advised by him of his Miranda rights, defendant, when questioned by Assistant State‘s Attorney William Frost, gave the following oral account.
Shortly after leaving the nearby club on the morning in question, he struck up a conversation with and borrowed a cigarette from an individual whom he met on the street level of Wacker Drive. (While defendant never named this individual, there is no dispute that he was Albert Oliver. Therefore, we hereinafter use Oliver‘s name for the sake of clarity.) They then went down to lower Wacker Drive and were at a bench, talking, when defendant borrowed another cigarette from Oliver. At that time, Oliver jumped up, grabbed defendant by the throat and pulled a knife. The two began struggling, defendant got hold of the knife and stabbed Oliver several times in the back. Oliver went down, got up suddenly and again grabbed defendant around the throat. During the struggle, defendant and Oliver fell into a planter with defendant on top. As Oliver attempted to choke defendant, defendant grabbed dirt and gravel from inside the planter and shovеd it into Oliver‘s face about the nose and mouth. When the struggle ended, defendant took some personal property from Oliver, including a bag, shoes, money, a wallet with miscellaneous identification cards, and the knife. Upon exiting the elevated train he took home, he discarded the identification cards and knife.
Frost further testified as follows. He never observed any cuts or abrasions on or injuries to defendant. After
Dr. Barry Lifshultz, a forensic pathologist with the Cook County medical examiner‘s office, performed an autopsy on the victim‘s body. The autopsy revealed that the victim died as the result of seven stab wounds to the back, four of which penetrated the body cavity. The victim also suffered five incised wounds to the face, four abrasions on the back of his right hand and an abrasion to his lower, middle back. The hand injuries could have been defensive in nature or, along with the back injury, the result of the victim‘s being dragged along a concrete surface. Additionally, there was no foreign matter, including soil or dust, in the victim‘s air passages. Dirt could only have entered the victim‘s airways or lungs if he had inhaled it while still alive. However, аnother possible explanation was that, although dirt might have been thrown in his face while he was alive, he did not inhale.
Finally, according to Christine Anderson, a Chicago police department serologist, the blood found on the victim‘s gym shoes was Type B human blood, the same as the blood sample taken from the victim.
Defendant‘s trial counsel cross-examined seven of the State‘s eight witnesses. After the State rested its case in chief, defendant rested without presenting any witnesses on his behalf.
In his closing argument, defendant‘s trial counsel asserted that defendant had killed the victim in self-defense. The trial court found defendant guilty of murder in that he stabbed Albert Oliver, without lawful justification, knowing that his acts were likely to result in death or great bodily harm. Thereafter, defendant was informed that the State would seek the death penalty. After defendant waived a jury for sentencing, the trial court, first, found him eligible for the death penalty and,
APPOINTMENT OF NEW COUNSEL TO ARGUE PRO SE MOTION ALLEGING INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant first argues that the trial court erred in failing to appoint new counsel to argue his pro se post-trial motion alleging ineffective assistance of counsel and that, based on People v. Krankel (1984), 102 Ill. 2d 181, this cause should be remanded for an evidentiary hearing. We disagree.
In so arguing in reliance upon Krankel, defendant ignores this court‘s holding in People v. Nitz (1991), 143 Ill. 2d 82. In Nitz, this court held that Krankel requires a trial court to conduct a preliminary investigation into a defendant‘s pro se allegations of ineffective assistance of counsel. If the trial court finds the allegations to be spurious or pertaining only to trial tactics, new counsel to represent the defendant should not be appointed. Only if the defendant‘s allegations indicate that trial counsel neglected the defendant‘s case, should the court appoint new counsel to represent the defendant. Nitz, 143 Ill. 2d at 134-35.
After reviewing the record, we are sufficiently convinced that defendant‘s allegations of ineffective assistance either were spurious, related to trial tactics or not supported by the record. Therefore, we find that the trial court did not err in declining to appoint new counsel for defendant to argue his post-trial motion of ineffective assistance of counsel.
RIGHT TO EVIDENTIARY HEARING ON MOTION TO SUPPRESS SEIZURE OF THE VICTIM‘S ATHLETIC SHOES
Defendant next argues that the trial court erred in
After reviewing the record, we find the distinction drawn by defendant between his motions to suppress specious and without merit. In his first motion to suppress, defendant sought the suppression of “the direct and indirect” products of his arrest, including “[p]hysical evidence discovered directly and indirectly as a result of [his] arrest and detention; i.e., one pair of white athletic shoes.” As such, whether the victim‘s athletic shoes were seized from defendant before, at or after the time of his arrest, the issue of the validity of their seizure was fully litigated as part of the trial court‘s disposition of defendant‘s first motion to suppress. The trial court thus correctly applied the doctrine of collateral estoppel to bar relitigation of that issue pursuant to defendant‘s second motion to suppress.
DENIAL OF CONSTITUTIONAL RIGHTS BY PRESENTATION OF DEFENSE OF SELF-DEFENSE AGAINST DEFENDANT‘S WISHES
Defendant next argues that he was denied his constitutional rights to due process and effective assistance of counsel when his trial counsel presented a defense of self-defense against his wishes. We disagree.
Contrаry to defendant‘s assertion, the defense theory to be presented to the trier of fact is not one of the matters which a defendant has the ultimate right to decide. Rather, it is a matter of trial tactics or strategy which is ultimately left for trial counsel.
Beyond these four decisions, however, trial counsel has the right to make the ultimate decision with respect to matters of tactics and strategy after consulting with his client. Such matters include what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike and what trial motions should be made. (ABA Standards for Criminal Justice § 4—5.2 (2d ed. Supp. 1986).) Such matters also include the defense to be presented at trial. (See, e.g., People v. Mikell (1991), 217 Ill. App. 3d 814, 821; People v. Gallardo (1983), 112 Ill. App. 3d 764, 770 (holding that decision to rely upon one theory of defense to exclusion of all others is generally a matter of trial taсtics or strategy).) Consequently, we do not find that trial counsel‘s advocacy of the theory of self-defense denied defendant due process.
Defendant also asserts that trial counsel‘s advocacy, against his wishes, of the theory of self-defense constituted ineffective assistance of counsel. With respect to matters of trial strategy, such as the defense theory relied upon at trial, this court has variously held that the evaluation of defense counsel‘s conduct cannot properly extend to areas involving the exercise of professional judgment, discretion or trial tactics (People v. Franklin (1990), 135 Ill. 2d 78, 118) and that a claim of ineffective assistance of counsel cannot be predicated upon a matter of defense strategy unless the strategy was unsound
With respect to the prejudice which he suffered from this claimed ineffective assistance, defendant argues that his trial counsel‘s сoncession that defendant killed the victim was sufficient to undermine the proper functioning of the adversarial process. Unfortunately for defendant, stated in its entirety, the test is that the proper functioning of the adversarial process was so undermined by counsel‘s conduct that the trial cannot be relied upon as having produced a just, i.e., reliable, result. (People v. Albanese (1984), 104 Ill. 2d 504, 525.) However, in view of the overwhelming evidence of defendant‘s guilt, including defendant‘s statements to the police after his arrest, we cannot reasonably find that defendant‘s trial did not produce a reliable and just result.
With respect to that overwhelming evidence, defendant argues that defense counsel‘s concession of his involvement in the murder was particularly inappropriate given his testimony at the pretrial suppression hearing in which he denied any involvement in the killing. Defendant reasons that, given that testimony, the assertion of a self-defense theory at trial only served to diminish his credibility. We find this assertion unavailing to defendant for two separate, interrelated reasons.
First, inasmuch as defendant did not testify at trial, there simply was no credibility issue to undermine by defense counsel‘s concession. The fact that defendant testified in prеtrial proceedings does not mean that the trial
In view of the foregoing, we find that defense counsel‘s concession that defendant killed the victim, albeit in self-defense, did not undermine the proper functioning of the adversarial process, i.e., did not change the result of the trial. Therefore, this particular claim of ineffective assistance of counsel is without merit.
Defendant cites People v. Chandler (1989), 129 Ill. 2d 233, in support of his claim of ineffective assistance of counsel. Therein, defense counsel conceded in his closing argument that the defendant had participated in a home invasion and robbery of the victim but should not be found guilty of murder because he did not personally kill the victim. This court found that defense counsel had rendered ineffectivе assistance to the defendant because, inter alia, his argument revealed a lack of understanding of the felony murder rule.
Chandler is distinguishable from this case for the simple reason that defense counsel‘s concession therein, the defendant‘s participation in the felonies of home invasion and robbery, mandated, in view of the murder of the victim, a verdict of guilty of murder based on a felony murder theory.
The additional element necessary for a finding of guilt of felony murder was indisputable in Chandler. The same cannot be said of the additional element necessary for a finding of guilt of murder in this case—the lack of belief in the need to use deadly force. Moreover, it can-
VOLUNTARINESS OF DEFENDANT‘S IN-CUSTODY STATEMENTS
Defendant next asserts that his alleged inculpatory statements to the police were involuntary because he was held incommunicado and never allowed to use the telephone while detained prior to making the statements, in violation of his constitutional rights to due process and his statutory right to use the telephone.
The Statе asserts that defendant never asked to use the telephone during his detention by the Chicago police. However, the record clearly reveals: (a) that defendant did not ask to use the telephone during the time that he was left handcuffed to the wall in an interrogation room; and (b) the unrebutted, uncontradicted and uncontroverted assertion by defendant that he did ask to use the telephone just before making the alleged inculpatory statement during questioning by Assistant State‘s Attorney Frost. The latter fact notwithstanding, we do not find that defendant has carried his burden of establishing the involuntariness of his in-custody statements.
The test of the voluntariness of a confession is whether the confession was made without compulsion or inducement of any sort and whether the defendant‘s will was overborne at the time of the confession; the decision is a factual determination to be made by the trial court based on the totality of the circumstances and will not be reversed unless it is contrary to the manifest weight of all the evidence. (People v. Fickett (1990), 204 Ill. App. 3d 220.) Similarly, the credibility of the witnesses regarding the voluntariness of a statement is to be determined by the trial court and that determination will likewise not be reversed unless contrary to the manifest weight of the evidence. People v. Cook (1990), 201 Ill. App. 3d 449.
The record evidence with respect to the voluntariness of defendant‘s alleged confession was conflicting. The trial court found defendant‘s testimony on that issue less credible than that of the State‘s witnesses. We cannot say that the denial of defendant‘s motion to suppress his in-custody statements to the police was against the manifest weight of the evidence.
In this regard, even assuming that, as defendant testified during the hearing on his motion to suppress, he asked, but was not permitted, to use the telephone prior to making his alleged inculpatory statement, that fact would not invalidate defendant‘s statement as a matter of law. The remaining evidence in this case relevant to the issue, unlike that in Haynes v. Washington, (1963), 373 U.S. 503, 10 L. Ed. 2d 513, 83 S. Ct. 1336, does not support the conclusion that defendant‘s will was overborne. See People v. Terrell (1989), 132 Ill. 2d 178, 200.
Specifically, in contrast to the situations in Haynes, Davis v. North Carolina (1966), 384 U.S. 737, 16 L. Ed. 2d 895, 86 S. Ct. 1761, and Culombe v. Connecticut (1961), 367 U.S. 568, 6 L. Ed. 2d 1037, 81 S. Ct. 1860, wherein the defendants were held incommunicado for 5, 16, and 5 days, respectively; and comparably to the situation in Terrell, wherein the defendant was held for only 8 hours, at most, in presumably incommunicado detention, defendant here was held for only approximately 6 hours, at most, in incommunicado detention before giving his alleged inculpatory statement to the police. Moreover, according to several of the State‘s witnesses, defendant, unlike the defendant in Haynes and like the defendant in Terrell, was
VALIDITY OF DEFENDANT‘S WAIVER OF A JURY FOR SENTENCING HEARING
Defendant next asserts that his waiver of a jury for his capital sentencing hearing was not knowing, intelligent or voluntary where neither he nor his trial counsel knew that the vote of only one juror would preclude imposition of the death penalty. We disagree.
Contrary to defendant‘s implication, it is not the law in Illinois that, for a jury waiver at a capital sentencing hearing to be knowing, intelligent and voluntary, a defendant must be expressly advised of the nonunanimity rule, i.e., that the vote of a single juror will preclude imposition of the death penalty. Nor is it the law in Illinois that, for a valid jury waiver at a capital sentencing hearing, the defendant must be advised that the decision of the jury to impose the death penalty must be unanimous. Rather it is sufficient, for a valid jury waiver, that, as occurred here, the trial court explain to the defendant that he is waiving the right to have a jury consider the capital sentencing issues and that the sentencing decision would, therefore, be made by the judge alone. People v. Ruiz (1989), 132 Ill. 2d 1, 20-21.
In view of the state of the law in Illinois on the instant issue, the fact that defendant‘s trial counsel did not know of the nonunanimity rule and therefore could
In sum, notwithstanding that neither defendant nor his trial counsel knew of the nonunanimity rule either before or after the trial court‘s admonishments with respect to the waiver of a jury at defendant‘s sentencing hearing and, further, notwithstanding that he would not have waived a jury had he known of the rule, the record establishes that his waiver was sufficiently knowing, intelligent and voluntary to be valid.
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant next asserts that his trial counsel rendered ineffective assistance for three reasons other than those asserted above.
First, defendant asserts that his counsel was ineffective for the reason that he did not know, and therefore could not have advised defendant of, the nonunanimity rule. As we noted above, however, under Ruiz, trial counsel is not ineffective for failing to advise a defendant of the nonunanimity rule where he presumably knows the rule. As such, that trial counsel fails to advise a defendant of that rule because of his lack of awareness thereof is of no moment to an ineffectiveness claim.
This assertion of error is inadequate given defendant‘s concession that he cannot meet the requirement of showing that he was prejudiced thereby. (Hillenbrand, 121 Ill. 2d 537.) In this respect, defendant asserts that he is, at least, entitled to an evidentiary hearing on this alleged instance of ineffective assistance. However, in view of our earlier rejection of this argument with respect to all the claims of ineffective assistance raised in defendant‘s post-trial motion, we also reject it with respect to this particular claim.
Third, defendant asserts that he received ineffective assistance due to counsel‘s failure to investigate and present more than two mitigation witnesses at his sentencing hearing. In view of defendant‘s concession of an inability to show that he was prejudiced as a result of this alleged ineffectiveness and our prior holding that he was not entitled to an evidentiary hearing on any of his claims of such assistance, we reject this claim in its entirety.
DEFENDANT‘S ELIGIBILITY FOR THE DEATH PENALTY BASED ON RECKLESS INDIFFERENCE TO HUMAN LIFE
Prefatorily, we note that, for the purpose of proving an aggravating factor rendering defendant eligible for the death penalty аnd to obtain that sentence, at defendant‘s sentencing hearing, the State adduced evidence of defendant‘s involvement in the murder of Derrick
With that fact in mind, we address defendant‘s first argument with respect to his death sentence. Specifically, he argues that imposition of the death penalty in this case violated the
At the time of the commission of the murders of Wilkinson and Oliver in 1986,
Subsequently, this court held that the mental state of reckless indifference to human life, as well as intent to kill or knowledge that death or great bodily harm would result, also rendered a defendant eligible for the death penalty under
The trial court in this cause found defendant eligible for the death penalty on the basis of this court‘s holding in Jimerson. Specifically, it found that defendant‘s participation in the acts which led to the deaths of Derrick Wilkinson, as established by the testimony of John Campbell at the trial of defendant for that murder, and of Albert Oliver exhibited, at least, a reckless indifference to human life. Defendant argues that, in applying Jimerson retrоactively, the trial court also violated the prohibition against ex post facto laws. We agree.
As defendant notes, the prohibition against such laws applies to new judicial interpretations of statutory law as well as to statutory laws in and of themselves.
In Bouie v. Columbia (1964), 378 U.S. 347, 12 L. Ed. 2d 894, 84 S. Ct. 1697, the United States Supreme Court held that convictions for violations of a South Carolina statute violated the due process clause of the
Bouie makes it clear that the trial court erred in applying Jimerson and Tison v. Arizona (1987), 481 U.S. 137, 95 L. Ed. 2d 127, 107 S. Ct. 1676, upon which Jimerson chiefly relied, retroactively to this case to find defendant eligible for the death penalty. Reckless indifference to human life in participating in the murders of two or more persons cannot be availed of to render a defendant eligible for the death penalty if the defendant‘s acts occurred prior to the announcement of this court‘s decision in Jimerson. In view of this holding, we need not consider defendant‘s invitation to reconsider this court‘s holding in Jimerson as an unwarranted judicial expansion of a constitutionally mandated aggravating factor for death penalty purposes.
The evidence adduced by the State at the eligibility phase of the sentencing hearing might have supported a finding by the trial court, in accordance with Davis, that defendant‘s participation in the Wilkinson and Oliver murders was with the requisite knowledge. However, in view of the trial court‘s error with respect to that evidence, which we address below, we find that it was wholly incompetent for the purpose of determining defendant‘s eligibility for the death penalty. Moreover, we must note that we cannоt make a de novo finding
In this regard, we reject defendant‘s invitation to also reconsider this court‘s holding in Davis that knowledge that death or great bodily harm is likely to result is a sufficient mental state under
It is true, as defendant notes, that when statutory language is clear and certain, a court is limited to enforcing the statute as enacted. (People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366.) However, this assertion ignores that the conclusion this court reached in Davis was the result of an ambiguity which we found, albeit implicitly, in subsection (b)(3) of section 9-1 in light of the fact that subsection (а) did not define murder in terms, exclusively, of intent to kill or, at all, in terms of premeditation. It was on the basis of that ambiguity that this court properly looked to the legislative intent underlying
Having determined that defendant was not eligible for the death penalty based on his exhibiting a reckless indifference to human life in his involvement in the Wilkinson murder and his commission of the Oliver murder, we hereinafter address only those alleged errors with respect to defendant‘s sentencing which more than likely will recur upon remand. We also address defendant‘s constitutional attacks upon the Illinois death penalty statute. However, in view of our recent affirmance of his conviction for the Wilkinson murder (People v. Ramey (1992), 151 Ill. 2d 498), we need not address defendant‘s additional arguments that, if we dismiss the charges in that case based on the right to a speedy trial or reverse that conviction, we must dismiss the charges or vacate defendant‘s death sentence in this case.
DEFENDANT‘S RIGHT TO SHOW POSSIBLE MOTIVE FOR TESTIMONY OF STATE‘S WITNESS AT PRIOR MURDER PROSECUTION OF DEFENDANT
In the first phase of defendant‘s sentencing hearing, the State attempted to establish defendant‘s eligibility fоr the death penalty through the testimony of John Campbell. After admitting that he had testified against defendant in his earlier trial for the murder of Derrick Wilkinson and that he had conversations about Wilkinson‘s murder with defendant while they were both confined to the Cook County Department of Corrections in 1986, Campbell declined to answer any further questions based on his fifth amendment rights. After a public defender appointed to represent Campbell reported to the trial court that there was no constitutional basis for Campbell‘s refusal to testify, the trial court ordered him to do so. Thereafter, Campbell claimed that he could not recall the content of his conversations with defendant or his testimony concerning their content at defendant‘s earlier trial.
On cross-examination, defense counsel was prohibited from questioning Campbell about what consideration he received from the State for his testimony at defendant‘s earlier trial.
The State next called Henry Simmons, the prosecutor in defendant‘s trial for the Wilkinson murder, for the purpose of introducing Campbell‘s testimony at that trial concerning the content of his conversations with defendant while they were confined to the Coоk County Department of Corrections.
On cross-examination, defense counsel was prohibited from questioning Simmons concerning whether Campbell, during his cross-examination at the earlier trial, stated that he had hoped that the State would take his testimony into consideration in his sentencing for the offenses with which he was charged at that time.
Defendant asserts that he was denied his right to confront the witnesses against him when the trial court prohibited him from questioning Campbell and Simmons concerning Campbell‘s possible motive for testifying therein. We agree.
The right to cross-examine a witness concerning his biases, prejudices or ulterior motives is protected by both the Federal and the State Constitutions. (
Applying the foregoing principles in this case, we conclude that the trial court erred in restricting defendant‘s attempts to inquire into Campbell‘s possible motives for testifying at defendant‘s earlier trial. We further conclude that it denied defendant a substantial right and that this denial constitutes plain error which we may review notwithstanding defendant‘s failure to preserve the error by including it in his post-trial motion. (134 Ill. 2d R. 615.) Moreover, we also conclude, as we noted above, that Campbell‘s testimony was thus incompetent for all purposes, including the purpose of showing that defendant participated in the Wilkinson and Oliver murders with knowledge that his acts were likely to result in death or great bodily harm.
In response to defendant‘s arguments, the State asserts, without citation to any authority, that the trial court properly prohibited the cross-examination of Campbell with respect to what consideration he received from the State as outside the scope of direct examination, which went only to his recollection of his prior testimony. The State also asserts, again without citing any supporting authority, that the trial court properly prohibited the attempted cross-examination of Simmons as not impeaching his testimony, which went only to the substance of Campbell‘s former testimony.
In so asserting, the State patently ignores the well-settled principles which protect and give a broad compass to the constitutional right of cross-examination. These arguments also ignore that Campbell was called as
As such, it is ludicrous for the State to assert that defendant‘s attempt to show Campbell‘s possible motive for testifying as he did at the earlier trial was outside the scope of Campbell‘s direct examination. It is equally ludicrous for the State to assert that defendant‘s attempt to show that same motive for Campbell‘s testimony in cross-examining Simmons was properly prohibited because it impeached Campbell, not Simmons. Given the State‘s purpose in calling Campbell and Simmons, Campbell‘s motive was as legitimate a line of inquiry in the instant cause as it was at the earlier trial. The trial court‘s denial of defendant‘s right of confrontation also requires us to vacate defendant‘s death sentence and to remand the cause for a new sentencing hearing.
Moreover, given the trial court‘s prohibition of the cross-examination at issue, we conclude that the court did not consider Campbell‘s possible motive to testify falsely against defendant in determining defendant‘s eligibility for the deаth penalty. As such, we cannot conclude that the trial court‘s error was harmless beyond a reasonable doubt. In so holding, we note that while we
The State notes that, notwithstanding the prohibition of the cross-examination at issue, the trial court heard testimony revealing Campbell‘s extensive criminal record and his serving, at the time of his testimony in this cause, a lenient sentence of six years for a third armed robbery conviction. However, we cannot conclude that the trial court did, or even could, infer from those revelations, alone, that Campbell had a possible motive to testify falsely against defendant and took that motive into consideration in determining whether defendant was proved eligible for the death penalty.
ADMISSION OF CAMPBELL‘S FORMER TESTIMONY
Defendant next asserts that the admission of Campbell‘s testimony of his earlier murder trial also denied him his right of confrontation as well as a fair sentencing hearing. We disagree.
Specifically, defendant asserts that a sincere lack of memory may give rise to a finding of unavailability of a witness and would make the witness’ testimony at a former proceeding admissible as an exception to the right of confrontation. However, defendant further asserts, citing People v. Johnson (1987), 118 Ill. 2d 501, mere reluctance or unwillingness to testify, as that exhibited by John Campbell in this case, does not constitute unavailability for purposes of introducing a witness’ former testimony.
Contrary to defendant‘s assertion, this court‘s holding in Johnson is not dispositive of the instant issue. In Johnson, the court was concerned with the propriety of the use of the videotaped testimony of two minor chil-
In deciding the issue in Johnson, this court looked to the definitions of “unavailability” in
“(2) persists in refusing to testify concerning the subject matter of [his] statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of [his] statement.”
Fed. R. Evid. 804 .
Ultimately, this court concluded that “[t]he reasons for unavailability which are acceptable under
Clearly, by holding in Johnson that mere unwillingness to testify cannot be equated with unavailability un-
Contrary to defendant‘s assertion that lack of memory must be sincere for purposes of unavailability of a witness, all that is needed for the application of that definition of unavailability is “a claim” of lack of memory, whether genuine or not. The plain language of
Similarly to our rejection of defendant‘s gloss upon the lack of memory definition of unavailability, we also reject the State‘s attempt to equate Campbell‘s lack of memory to a contemptuous refusal to testify.
Contrary to the State‘s assertion, refusal to testify after being so ordered by the court, as a ground for admitting otherwise inadmissible hearsay, rеquires a positive statement indicating an explicit refusal to testify, an explicit order by the court that the defendant do so and persistence in that refusal even thereafter. (See, e.g., United States v. Oliver (2d Cir. 1980), 626 F.2d 254;
In view of the foregoing, we conclude that John Campbell was unavailable as a witness at defendant‘s sentencing hearing for purposes of introducing his otherwise hearsay testimony given at defendant‘s former murder trial. While he did not contemptuously refuse to testify, Campbell did exhibit the lack of memory contemplated under
CONSTITUTIONALITY OF THE ILLINOIS DEATH PENALTY PROCEDURE
Next, defendant, as have many defendants before him, challenges the constitutionality of the Illinois death penalty statute. In his brief, thе title of defendant‘s first constitutionality argument gives the impression that his main emphasis is the placement upon him of a burden of proving that mitigating factors are sufficient to preclude imposition of the death penalty. However, the substance of this portion of his brief is that the Illinois death penalty statute, unlike others considered by the United States Supreme Court, precludes meaningful consideration of mitigating evidence and thus mandates imposition of the death penalty. We disagree.
Defendant specifically argues, first, that the requirement under the Illinois death penalty statute that mitigation preclude, i.e., make impossible, a sentence of death is uniquely restrictive and violative of Lockett v. Ohio (1978), 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954. We do not find Lockett of any assistance to defendant.
In Lockett, the Supreme Court invalidated a statute which required the imposition of the death penalty unless the sentencing judge found one of four statutorily enumerated mitigating circumstances. In doing so, the Court held that the limited range of mitigating circumstances which could be considered by the sentencer under the Ohio statute was incompatible with the
In accordance with Lockett, the Illinois death penalty statute allows the consideration of any mitigating factors relevant to the imposition of the death penalty, including, but not limited to, five specifically enumerated factors. (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(c).) Thus, any argument that Illinois’ death penalty statute does not permit meaningful consideration of mitigating factors in the determination of whether to impose the death penalty based upon Lockett is clearly without merit.
Defendant next asserts that the Illinois death penalty procedure is arbitrary and capricious and thus violative of Furman v. Georgia (1972), 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726. Specifically, defendant attacks the requirement that the sentencing authority first determine whether a defendant “may be” sentenced to death due to the existence of any one or more of 11 ag-
Whatever the logical appeal of this argument, the fact is that the determination by the sentencing judge or jury of whether any mitigating factors preclude the imposition of the death penalty after that same sentencing authority found the defendant eligible therefor does not require it to ignore the law or otherwise engage in a futile or impossible exercise. This court has repeatedly held that, in this regard, the Illinois death penalty statute calls for a balancing process.
In People v. Brownell (1980), 79 Ill. 2d 508, the defendant argued that, in requiring that mitigating factors be “sufficient” to preclude a sentence of death, the Illinois death penalty statute was unconstitutionally vague in that it did not provide the trier of fact any guidance as to the weight to be given the aggravating versus the mitigating factors. In rejecting this argument, this court found Gregg v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909, dispositive. In Gregg, the United States Supreme Court, in upholding the Georgia death penalty statute, held that the consideration of aggravating factors, which had been proved beyond a reasonable doubt, and mitigating factors by the trier of fact in determining whether to impose the death penalty, while by necessity somewhat general, nonetheless, provided guidance to the sentencing authority and did not result in the capricious, freakish or arbitrary imposition of the death penalty. 428 U.S. at 193-95, 49 L. Ed. 2d at 886-87, 96 S. Ct. at 2935.
Similarly to Gregg, the Brownell court concluded that the Illinois death penalty statute required a balancing or weighing of the aggravating and mitigating factors and that the fact that the precise weight to be given each factor was not a matter of numerical calculation was not a constitutional infirmity. Rather, the court reasoned, the discretion exercised by the sentencing authority was controlled by clear and objective standards so as to produce nondiscriminatory application of the death penalty since the sentencing authority was given specific evidence to weigh, based upon the particular circumstances of the case. Brownell, 79 Ill. 2d at 534; see also People v. Stewart (1984), 105 Ill. 2d 22, 76-77.
In People v. Bean (1990), 137 Ill. 2d 65, the defendant argued that allowing a jury to consider the statutory aggravating factors it had found to exist beyond a reasonable doubt at the eligibility phase of the sentencing hearing in determining whether he should receive the death penalty artificially inflated those factors and weighted the scales imprоperly in favor of death. In rejecting this argument, this court noted its frequent holdings that the balancing of aggravating and mitigating factors provided for by the Illinois death penalty statute adequately limited and directed the discretion of sentencing authorities to satisfy constitutional demands and that the statute‘s failure to assign a precise weight to each aggravating or mitigating factor did not give sentencing authorities improperly broad discretion. Bean, 137 Ill. 2d at 119-20.
The arguments of the defendants in Brownell, Stewart and Bean are sufficiently similar to those of defendant here to be dispositive. Regardless of defendant‘s semantical interpretation of the Illinois death penalty statute, the fact is that sentencing authorities are legally required to weigh and are actually capable of weighing mitigating factors against aggravating factors and, as a result, of properly determining whether or not a defendant merits the
Defendant further asserts, citing Mills v. Maryland (1988), 486 U.S. 367, 100 L. Ed. 2d 384, 108 S. Ct. 1860, that the placing of the burden upon defendants of producing mitigating evidence and requiring that such evidence must be sufficient to preclude the death penalty prevents the sentencing authority from giving the mitigating evidence meaningful effect. We disagree.
Mills provides no support to defendant in this regard. In Mills, the instructions given to the jury could be interpreted as requiring unanimous agreement that the same mitigating factor or factors existed in order to preclude imposition of the death penalty. No such interpretation could be ascribed to the Illinois death penalty statute.
Unlike the Maryland statute construed in Mills, the Illinois death penalty statute does not require the jury to reach unanimous agreement as to the existence of any mitigating factors before it can decide not to impose the death penalty. Rather, in Illinois, a sentencing jury is required to unanimously determine that mitigating factors sufficient to preclude the death penalty do not exist before that penalty can be imposed. In Illinois, unlike Maryland, the belief by one juror that any one mitigating factor sufficient to preclude the death penalty exists is sufficient to do so. As such, Illinois’ death penalty procedure clearly provides for meaningful consideration of any and all mitigating factors.
For his last constitutionality argument, defendant, again like other defendants before him, urges us to consider whether aspects of the Illinois death penalty statute and procedure thereunder, the constitutionality of
For all of the reasons stated, defendant‘s conviction of the murder of Albert Oliver is affirmed, his death sentence is vacated and the cause is remanded for a new sentencing hearing consistent with the views expressed herein.
Conviction affirmed; death sentence vacated; cause remanded.
CHIEF JUSTICE MILLER, concurring in part and dissenting in part:
I join that portion of the majority opinion affirming the defendant‘s convictions. I do not agree with the majority, however, that the defendant was improperly found
The majority concludes that the trial judge erred in finding the defendant eligible for the death penalty under
Two things are noteworthy about this language. First, the statute introduces the concept of premeditation, which is not otherwise a recognized mental state in Illinois. (People v. Davis (1983), 95 Ill. 2d 1, 33.) Second, when applied to a person convicted of murder under an accountability theory, the statute does not require that the accomplice have either of the specified mental states.
In the present case, the trial judge found the defendant guilty of the August 22, 1986, murder of Albert Oliver on the theory that the defendant knew that his acts were likely to result in death or great bodily harm. Davis had held in 1983 that a mental state of knowledge was sufficient to satisfy the requirements of
The second murder on which the State relied in establishing the defendant‘s eligibility for the death penalty under the multiple-murder aggravating circumstance of
There are certain constitutional limits on the application of the death penalty to one who does not himself commit the acts causing the victim‘s death. In Enmund v. Florida (1982), 458 U.S. 782, 797, 73 L. Ed. 2d 1140, 1151, 102 S. Ct. 3368, 3376, the Supreme Court determined that the death penalty could not be imposed on a person convicted as an accomplice under a felony murder theory who “does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” Later, in Tison v. Arizona (1987), 481 U.S. 137, 95 L. Ed. 2d 127, 107 S. Ct. 1676, the Court again considered the circumstances under which an accomplice may be sentenced to death. The Tison Court concluded that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” Tison, 481 U.S. at 158, 95 L. Ed. 2d at 145, 107 S. Ct. at 1688.
People v. Jimerson (1989), 127 Ill. 2d 12, construed the same version of
A limiting construction of statutory language may be applied retroactively to prior conduct if the litigant has been afforded fair warning. (Dombrowski v. Pfister (1965), 380 U.S. 479, 491 n.7, 14 L. Ed. 2d 22, 31 n.7, 85 S. Ct. 1116, 1123 n.7.) Contrary to the majority‘s view, I would conclude that application of the Tison principles to the defendant‘s participation in the Wilkinson murder was proper. As I have indicated,
Thus, unlike Bouie v. Columbia (1964), 378 U.S. 347, 12 L. Ed. 2d 894, 84 S. Ct. 1697, on which the majority relies, the present case does not involve an unforeseeable judicial expansion or enlargement of narrow and precise statutory language. Rather, the potential scope of
For the reasons stated, I respectfully dissent from that portion of the majority opinion finding error in the circuit court‘s determination that the defendant is eligible for the death penalty.
(Nos. 72461, 72505 cons. —
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. N L INDUSTRIES et al., Appellees.
Opinion filed October 1, 1992.—Modified on denial of rehearing November 30, 1992.