THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PAUL RUNGE, Appellant.
No. 103529
Supreme Court of Illinois
May 21, 2009
Modified upon denial of rehearing September 28, 2009
234 Ill. 2d 68
Lisa Madigan, Attorney General, of Springfield, and Richard A. Devine, State‘s Attorney, of Chicago (James E. Fitzgerald, Alan J. Spellberg and Jon J. Walters, Assistant State‘s Attorneys, of counsel), for the People.
JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Chief Justice Fitzgerald and Justices Thomas and Garman concurred in the judgment and opinion.
Justice Burke dissented, with opinion, joined by Justices Freeman and Kilbride.
Defendant, Paul Runge, was indicted in the circuit court of Cook County for the first degree murders of Yolanda Gutierrez and Jessica Muniz. See
We begin our discussion with a summary of the principal evidence adduced at trial. Facts pertaining to procedural issues will be provided separately in the context of our analyses of those issues.
On the morning of February 3, 1997, a neighbor discovered flames coming from the Chicago apartment occupied by Yolanda Gutierrez and her 10-year-old daughter, Jessica Muniz. When firefighters arrived, they found the bodies of Yolanda and Jessica on a burned bed. John Escamilla, a cause and origin investigator with the Chicago fire department, noted pour patterns, indicating the use of an accelerant on the rug around the bed. He also observed what appeared to be a restraint on Jessica‘s wrist. In his opinion, the fire resulted from the deliberate act of pouring a liquid accelerant onto the bed and the victims and igniting the accelerant.
Dr. Scott Denton performed autopsies on Yolanda‘s and Jessica‘s bodies. Yolanda‘s body was clad in burned and fragmented clothing, and she had a gaping sharp-force wound to the neck that cut her carotid artery and jugular vein. The wound went deep through the front muscles of the neck, through the large side muscle of the neck, and involved the back of the throat. About half her body had extensive burning and charring. Her vaginal opening was gaping open, which was consistent with a sexual assault. Denton testified that Yolanda died from an incise wound to her neck.
Jessica, like her mother, wore fragmented, burned clothing. She had a gaping sharp-force wound across her neck and was nearly decapitated. Approximately 75% of her body was burned. In addition, on her shoulder Denton noted a stab wound two inches by one inch and one inch deep. During the examination, a tampon, with the plastic applicator still on it, fell from her vagina. Two areas of tearing of her vaginal opening were evident, consistent with sexual assault. In addition, there was redness in the upper and lower parts of her anus, again consistent with sexual assault. At the back of Jessica‘s throat, Denton noted an area of purple hemorrhage that could have been consistent with the insertion of an adult
Solveig Sullivan worked as a forensic scientist for the Illinois State Police (ISP). In February of 1997, he received blood standards and vaginal, oral, and rectal swabs from the bodies of Jessica and Yolanda. Sullivan found no semen on Yolanda‘s swabs, but a preliminary test indicated blood on her vaginal swab. Blood was indicated on all three of Jessica‘s swabs and semen was identified on her rectal and oral swabs.
Karla Cluck, a forensic scientist for the ISP, obtained a male DNA profile from Jessica‘s oral swab and Jessica‘s DNA profile. Karen Abbinanti, another forensic scientist for the ISP, obtained a DNA profile from a standard taken from defendant and compared it to the male DNA profile from Jessica‘s oral swab. Abbinanti determined that defendant could not be excluded as the source of the male DNA from Jessica‘s oral swab. In fact, that DNA profile would be expected to occur in only 1 in 32 trillion Caucasians. Abbinanti concluded that the semen from the oral swab was consistent with having originated from defendant.
Chicago police department Detective Frank Cappitelli received a report from the ISP in September 2000 and met with defendant on June 7, 2001, at the Will County jail. Defendant initially denied any knowledge of the murders; however, when Cappitelli confronted defendant with the ISP crime labs reports, defendant looked at them for a period of time, then said, “You know I did it,
In the statement, defendant admitted that, on January 31, 1997, he contacted Yolanda Gutierrez about a Hooked on Phonics program she was advertising for sale. He went to her apartment and discussed the program with her, then said he would discuss it with his wife, and he left. Defendant said he and his wife, Charlene, went to Yolanda‘s apartment on February 3 to view the program. According to defendant, Charlene argued with Yolanda and grabbed her. Defendant claimed that Yolanda grabbed a knife and told Charlene to leave. He said he grabbed the knife from Yolanda and pushed her to the floor. Defendant stated that he asked Charlene for something to tie up Yolanda, and Charlene brought him duct tape which he used to tie Yolanda‘s and Jessica‘s hands. Defendant then put Yolanda and Jessica on the bed. Defendant said he attempted to calm Charlene, then had sex with her on the bed between Yolanda and Jessica. Defendant stated he then pulled down Yolanda‘s shorts and had vaginal, anal, and oral intercourse with her. Thereafter, he pulled down Jessica‘s sweatpants and had vaginal, anal, and oral intercourse with her as well. He pulled both their pants up afterward, and proceeded to cut Yolanda‘s throat with a knife and cut Jessica‘s neck as well. According to defendant, Charlene came to him with a can of turpentine-like fluid. He ignited the bed with a match, and he and Charlene left.
On June 10, 2001, Cappitelli interviewed defendant‘s ex-wife, Charlene, regarding her involvement in the murders. Subsequently, Milan and Cappitelli spoke to defendant and advised him of what Charlene had said. Eventually, defendant admitted that he had lied about
Defendant then gave a second statement wherein he admitted he went to the Gutierrez apartment alone on February 3, having been there previously on January 31, at which time he discussed the Hooked on Phonics program and observed both Yolanda and Jessica. On the latter date, defendant entered the apartment intending to rape Yolanda, and he had duct tape and a knife in his coat pocket in furtherance of that objective. Once inside the apartment, defendant closed the door, pulled out the knife, and grabbed Yolanda around the front, placing the knife to her throat. Defendant told Yolanda to be quiet and come to the bed and to direct her daughter to do so. Once he had both Yolanda and Jessica on the bed, he taped their hands behind their backs. He said he then had vaginal, anal, and oral intercourse with each of them, as indicated in his initial statement. Although defendant did not recall ejaculating, he admitted he must have. After defendant had intercourse with the little girl, she was bleeding from her vagina. In response, defendant found a tampon and put it in her vagina. He then put Jessica‘s pants back on. Thereafter, defendant located a can of turpentine or remover and set it by the bed. He then took his knife and cut Yolanda‘s neck. A gurgling sound came from her neck, and her blood flowed onto the bed. Defendant moved over to Jessica, and cut her neck as well. Again, there was a gurgling sound, and blood sprayed onto the bed. After he had slit their throats, he picked up the can, poured the liquid over them, lit a match, and threw it on the bed. Defendant said he did that to hide the fact that he had slashed their throats. After setting the fire, defendant took the duct tape, the knife, and the can, and he left the apartment. In his videotaped statement, defendant indicated he could help with other unsolved cases.
Dr. Michael Stone, a clinical psychologist, testified for the defense. Stone indicated that he evaluated defendant on August 29, 2005, after having interviewed him face-to-face for about 90 minutes. Stone diagnosed defendant as a sexual sadist with borderline antisocial personality disorder and narcissistic features. Stone described a sexual sadist as someone who derives sexual pleasure from the fear, pain, and restriction of another. Stone noted there are degrees of sexual sadism corresponding to the person‘s ability to control violent fantasies and compulsion; not all sexual sadists are criminal and homicidal. Much of a sadist‘s initial behavior is conscious and deliberate, but as he gets into his particular obsession, it becomes harder to control the situation because it is very emotionally driven and sexually fulfilling to the sadist. According to Stone, defendant demonstrated “minimal ability to control” his behavior. Stone believed that the onset of defendant‘s sexual sadism occurred at age 17, that his mother‘s death around that time was traumatic for him and could have affected his ability to
Specifically, Stone testified that defendant, at the time of the murders, was suffering from a progressive loosening of control and was at risk of impulsively acting out. He stated that defendant lacked the ability to control his behavior. In that regard, Stone expressed the opinion that defendant was insane for purposes of criminal responsibility.
Stone subsequently acknowledged, under cross-examination, how someone acts upon their sexual sadism is a “choice” they make. In defendant‘s case, he identifies particular types of women, looks for an opportunity, looks for specific vulnerability, and isolates that person and situation. Stone stated that defendant makes “a composite decision” to act or not. Stone acknowledged that defendant would conduct surveillance of a particular woman to determine whether it was feasible to have violent sex with her. Stone noted “it‘s a combination of the circumstance and the person turning him on, that it being something where he‘s not likely to get caught and go to jail.” Stone could not rule out that defendant‘s actions included a component of destroying evidence in addition to inflicting pain. He agreed that, as a consequence of earlier offenses perpetrated upon a different victim, who survived, defendant may have learned that allowing a victim to live, after a sexual assault, could result in his arrest and imprisonment. In Stone‘s words, “That‘s certainly one take on it, yes.”
Stone acknowledged that there were occasions in late 1996 and early 1997 when defendant encountered women, isolated them, intended to act sexually and violently, but chose not to do so because there was a pres-
Dr. Barry Leavitt, a clinical psychologist, was called by the defense to testify. Leavitt did not evaluate defendant for the purpose of establishing whether he had a “mental illness,” as defined by Illinois law, or whether defendant was insane. Leavitt had no opinion as to whether defendant was sane or mentally ill at the time of the charged offenses. Instead, Leavitt had evaluated defendant in March of 1999 to determine whether defendant met the statutory criteria for commitment as a sexually violent person under Illinois law. The issues Leavitt was called upon to address in that context were whether defendant had a “mental disorder” which predisposed him to future acts of sexually violent behavior and whether, if he had such a disorder, there was a substantial probability that he would re-offend in the future. Leavitt conducted his evaluation on behalf of the DHS to determine whether defendant would be recommended for civil commitment following his parole. The conclusions of Leavitt‘s report were in accord with those contained in a report submitted by Dr. Jonas, which was filed in support of a petition for commitment under the Sexually Violent Persons Commitment Act.
Leavitt noted that, in 1987, defendant had lured a 14-year-old girl to his home, while his father and brother were out of town, and had sexually assaulted her. Defendant restrained the girl with handcuffs, used duct tape to cover her eyes and mouth, used a knife, and raped her vaginally, anally, and orally. Defendant claimed it was
Defendant described his upbringing to Leavitt as “essentially normal.” Defendant admitted to a fairly early interest in various types of pornography. He described his plan, while incarcerated, to collect virtually every type of pornographic magazine and rent them out to other inmates as a “hustle.” Leavitt felt that spoke to defendant‘s propensity to brag and his capacity to be shrewd, calculating, and manipulative. Although defendant was incarcerated for six years as a result of the 1987 sex offense, he chose not to participate in sex offender counseling.
Leavitt testified that defendant functions, intellectually, within the normal range, with no evidence of mental or cognitive impairment. On the Minnesota Multiphasic
Leavitt diagnosed defendant with sexual sadism and personality disorder not otherwise specified with antisocial and narcissistic features. His diagnosis of sexual sadism was based on defendant‘s documented history of sexual behavior, particularly the 1987 case. He noted that a diagnosis of sexual sadism does not necessarily mean a person will engage in criminal behavior. When asked if sexual sadism is a serious “mental illness,” Leavitt responded that it is a “serious psychological condition.” He said it is possible for someone suffering from a severe kind of sexual sadism to be insane or mentally ill, or, on the other hand, to commit a crime and be sane and not mentally ill.
Dr. James Merikangas, a neurologist and psychiatrist, conducted a 90-minute, face-to-face interview with defendant. His notes of the examination do not reflect all the topics they discussed. Merikangas did not talk to defendant about the murders in this case, and he did not videotape the interview. He has personally treated or evaluated approximately six persons with sexual sadism. Merikangas diagnosed defendant with sexual sadism and opined that defendant showed subtle signs of brain damage often associated with sexual sadism. He suggested that one subtle sign of brain damage was the existence of a palmomental reflex on the right side of defendant‘s lower lip. Merikangas acknowledged a study suggesting that over 10% of normal people have the soft neurological sign of the palmomental reflex, and that the reflex
Merikangas also reviewed CT and MRI scans of defendant‘s brain. From an MRI scan, Merikangas discerned what he believed were two abnormalities: an enlarged ventricle on the right temporal lobe and enlarged sulci in the right posterior parietal lobe. He opined that the temporal lobe is the structure “most implicated in the scientific studies on sexual sadism.” Merikangas described the enlarged sulci as spaces in the brain resulting from atrophic shrinkage. He could not say that such shrinkage had a specific effect, he simply considered it an abnormality. Merikangas further testified there was an enlarged space in the right frontal lobe at the top of the brain, and indicated there were subtle changes that the “average radiologist” would not see as a problem. He acknowledged it is the job of radiologists to look for such abnormalities, that they “perform CT examinations and MRI examinations all day long, all year long,” and that they found no abnormalities at all in defendant. Merikangas conceded that nothing on any scans had a direct correlation to behavior in and of itself:
“PROSECUTOR: In other words, we could have ten people whose MRI looked identical to that [of defendant] and all ten of them could be not criminals or not mentally ill; is that correct?
MERIKANGAS: That‘s possible, yes.
PROSECUTOR: They could even be from all walks of life, correct?
MERIKANGAS: They could be lawyers.”
“PROSECUTOR: And obviously killing [the victims] prevents them from testifying against him; is that correct?
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MERIKANGAS: Yes. I mean, they can only testify through the autopsy that was performed and which gave the DNA which allowed him to be captured.”
Merikangas doubted that defendant would have committed the acts in this case if a police officer had been present. He acknowledged that he relied upon the findings of Drs. Obolsky and Kaplan, and that Obolsky had found defendant to be sane.
Dr. Park Dietz, a forensic psychiatrist, testified for the prosecution. Among his other credentials, Dietz has
Dietz examined defendant November 7-9, 2005, from approximately 9 a.m. to 5 p.m. each day. Dietz noted that evaluations of defendant performed in 1987, 1994, 1997, 1998, 1999, and 2000 showed no major depression, no organic brain dysfunction, and no psychosis. Dietz stated those “three things related to mental disease or defect had never been observed.” Dietz testified that defendant never had any neurological symptoms other than migraines, he has a normal IQ, has no history of head trauma, never showed abnormalities in mental status examinations, and had normal CT and MRI scans of the brain. In his opinion, there was no brain dysfunction of any significance. Dietz conducted a mental status examination of defendant and found him to be normal.
In his opinion, defendant does not suffer from any mental disease, defect or mental illness. Defendant has sexual and personality problems. Dietz said only a tiny percentage of sexual sadists actually commit crimes against strangers for sexual pleasure. Sexual sadists do whatever they wish about their impulses because their behavior is in their control. “[W]hat is clear is the vast majority of sadists don‘t commit crimes because they have a conscience, they are law-abiding, they don‘t want to go to prison, they draw a line somewhere what they are willing to do for the sake of an orgasm.”
Speaking to defendant‘s ability to control his behavior, Dietz observed:
“Mr. Runge told me that he didn‘t assault the women in *** two cases because of the presence of a baby. And then he said he likes babies and did not want to take the mother away from the baby and knew that if he raped them he would probably kill them.”
That indicates that he is in control of what he is going to do. He already had the intent. He had already picked a target. He had made his plan. And yet something as simple as seeing a baby there allows him to stop himself and leave. That could not occur if he were in some frenzy as he begins to do this.
***
He told me the presence of a baby was enough for him to be able to leave. It shows that he can stop. He said that after raping [his first victim, M.V.], figuring out what to do next was the worst of his problems; that is he had no plan for what to do after he was done with the attack. Because he was in prison after the attack on [M.V.] he had a lot of time to think about what happens when you let a torture victim live, you go to prison because they talk.
In 1995, he engaged in two unlawful sexual incidents that involved planning, isolation of victims and concealment. But then for nearly a year and a half he was involved in no known incidents. That year and a half corresponded to the time that he was under surveillance by law enforcement and knew it, which shows that when he knows that law enforcement might be following him, he can avoid having any incidents.”
Dietz noted, “None of his unlawful sexual incidents was done in public.” In Dietz‘s opinion, defendant freely chose to commit crimes to fulfill his sexual desires and he killed to conceal his rapes and escape the consequences.
Dr. Helen Mayberg, a clinical neurologist and professor of psychiatry and neurology, testified for the prosecution. In the opinion of Dr. Mayberg, the neurological exam performed by Dr. Merikangas was complete and normal and did not indicate the need for further neurological testing. Merikangas’ second report gives an interpretation of behaviors, such as poor planning, as well as poor judgment and impulse control, that were never described as problems in the mental status exam,
Mayberg described defendant‘s CT and MRI scans as “totally normal.” She stated, with respect to the CT scan: “There‘s no lesions, there‘s no small frontal lobes, everything is symmetric. The fluid spaces are where they are supposed to be, of the appropriate size. There‘s no evidence of an old stroke, an old hemorrhage, an old contusion. Like a scar. It‘s normal, healthy-looking brain.” Mayberg had the same opinion after looking at MRI scans, concluding: “[I]t‘s a normal study.” After examining the CT and MRI images in question and comparing them to the conclusions made by Dr. Merikangas, Mayberg concluded that defendant had a normal neurological exam with Merikangas, defendant‘s MRI images showed no abnormalities of any kind, and there was nothing to support a link between a brain defect and defendant‘s behavior at the time of the crimes.
Following the presentation of evidence at the guilt/innocence phase of trial, the jury was instructed that it could find defendant not guilty of the murders, not guilty by reason of insanity, guilty but mentally ill, or guilty of the murders. After due deliberation, the jury rejected
Thereafter, the jury found defendant eligible for the death penalty on eight statutory grounds: (1) the murdered person, Jessica Muniz, was under 12 years of age and the death resulted from exceptionally brutal and heinous behavior indicative of wanton cruelty; (2) Jessica Muniz was killed during the course of another felony; (3) the murder of Jessica Muniz was committed in a cold, calculated, and premeditated manner pursuant to a preconceived plan, scheme, or design to take a human life by unlawful means, and the conduct of the defendant created a reasonable expectation that the death of a human being would result therefrom; (4) the murder of Jessica Muniz was intentional and involved the infliction of torture; (5) the murder of Yolanda Gutierrez was committed in a cold, calculated, and premeditated manner pursuant to a preconceived plan, scheme, or design to take a human life by unlawful means, and the conduct of the defendant created a reasonable expectation that the death of a human being would result therefrom; (6) the murder of Yolanda Gutierrez was intentional and involved the infliction of torture; (7) Yolanda Gutierrez was killed during the course of another felony; and (8) defendant was convicted of murdering two or more persons.
The cause proceeded to the aggravation/mitigation phase of capital sentencing, commencing with evidence of the sexual assaults and murders defendant perpetrated against other victims.
Defendant‘s first victim, M.V., went to school with defendant and was three years younger. On August 17, 1987, when M.V. was 14 years old, defendant asked her to meet him to help a girl they both knew get marijuana out of her house. Defendant drove her to his house,
Defendant then handcuffed her to a railing in the living room and offered to take her home if she would drink a glass of Seagram‘s V.O. After M.V. finished most of the glass, defendant took her to the bathroom, where she vomited. He put her in the shower and penetrated her again. M.V. lost consciousness and woke up later with all four limbs cuffed to the bed. She was gagged and, judging from the sunlight, she knew a few hours had passed. Defendant later handcuffed her to a chair and gave her cereal. When she picked up the chair and tried to escape, defendant held a knife to her throat and threatened her. He then cuffed her to the kitchen table, cut her hair with a knife, and began cutting the inside of her arms. Defendant smiled and said he liked it. Defendant bit her nipples so hard that she cried. He told her, “shut up, that doesn‘t hurt.” He then bit her neck, breasts, stomach, crotch, and legs. He penetrated her vaginally, then blindfolded her and put the gag back in. Then he recuffed her hands behind her back, put her face down
Defendant moved her to another room, removed the gag, and penetrated her orally. M.V. was on the floor with her hands handcuffed behind her back. She recalled: “Every bone in my body hurt.” Then she saw defendant grab a fireplace poker, and she related what followed:
“He shoved the handle of the fireplace poker in my anus. He rammed it in as hard as he could. *** [H]e started making it go up and down and over and over and out and in and I felt like my insides were getting ripped out. I kept crying. He kept doing it and doing it. I thought I was going to die because it hurt so bad. He just kept doing it, forcing it in farther and farther and farther.”
Defendant stopped when the phone rang. He gagged M.V., bound her ankles, stuck her inside a sleeping bag, and threw her in a crawl space. He told her not to do anything stupid or he would kill her; then he left.
With her hands still cuffed and her legs bound, she rolled and hopped until she eventually got outside. A neighbor who lived across the street saw M.V. with her feet and hands tied. M.V. was crying, shaking, hysterical, and had scarves tied around her mouth.
The police later determined that defendant‘s father and brother had gone on a trip for the weekend. As a result of the incident, defendant was convicted of aggravated criminal sexual assault, aggravated kidnapping and armed violence, and was subsequently sentenced to 14 years’ imprisonment.
With respect to the seven victims who did not survive, the State introduced defendant‘s videotaped statements, along with evidence corroborating those statements.
Corroboration was supplied by physical evidence and witness statements. Recovered bones showed evidence of cutting. Stacey‘s skull showed evidence of injury consistent with having been struck by a barbell weight. A sample of carpet taken from a bedroom in the townhouse where defendant and Charlene had lived contained traces of Stacey‘s blood. Dina Bartolini, who lived in that townhouse with defendant and Charlene, said that on January 3, 1995, Charlene indicated she was looking forward to Stacey coming over for a visit. When Stacey came over, they drank, and eventually Charlene told Dina that Stacey would be staying the night. The next day, defendant and Charlene borrowed Dina‘s car and used more than half a tank of gas. Dina said she had sex four or five times with defendant, including a threesome with Charlene, and including the day that Charlene went to the hospital to give birth.
On July 12, 1995, Charlene brought the Pasanbegovic sisters to the Runge home. When defendant suggested that they submit to sex for money, Janet Pasanbegovic got up and ran upstairs. Defendant caught her outside on the driveway and pulled her down by the hair, her head hitting the concrete driveway. He said he might have hit her again. In any event, Janet was rendered unconscious. Defendant then picked her up and brought her back into the house. When Amela saw Janet, Amela got up. Defendant then dropped Janet on the stairs, grabbed Amela, and took her into the weight room, where he cuffed her to a weight bar. Defendant also put Janet in the weight room. Defendant then went upstairs to see if the police were coming; Charlene went outside and cleaned up the blood outside and on the stairs. Inside, Janet vomited a black liquid. Defendant proceeded to have oral sex with Amela. Thereafter, he went upstairs to see what was going on, and then went back downstairs and had sex with Amela while her hands were cuffed behind her back. Defendant ejaculated on her stomach and wiped it off with her clothing. Amela asked about Janet, and defendant then took Janet and put her in a water-filled bathtub with the shower running. He left
In defendant‘s first statement to police, he lied about the location of the murders and the dumpsters into which he deposited body parts because the murders took place in Du Page County and Du Page County authorities seemed more intent on pursuing the death penalty.
Estella Herrera worked with the Pasanbegovic sisters before she worked with defendant. She learned that the sisters had been laid off and told defendant about them when he said his wife was looking for people to work for her. Defendant asked if they had family in the area. Estella was subsequently contacted by someone identifying herself as defendant‘s wife and Estella gave her Amela and Janet‘s phone number. Later, Estella received a phone call from the same person, who said she had gone to pick up the girls, but they were not there. The woman asked Estella to check and see if there was a problem. A neighbor and former coworker of the sisters, who saw them almost every day, never saw them after July 11, 1995. The sisters had mentioned they had a job offer, from a woman named Lisa (the name used by defendant‘s wife), who wanted them to stay overnight.
Defendant‘s videotaped statement regarding the murder of Dorota (Dorothy) Dzibak was introduced as evidence. In the statement, defendant related that his 7-Up route took him along Touhy Avenue in Chicago. On the morning of January 10, 1997, defendant was on Touhy Avenue when he saw a “For Sale By Owner” sign in front of a house. He stopped at the house and knocked on the door. A woman answered whom defendant consid-
Physical evidence corroborated aspects of defendant‘s statement. A heating and air conditioning technician reported the fire around 12:30 p.m. A firefighter, who subsequently entered the house, saw the fire coming from a bedroom closet, removed Dorothy from the bed, and turned her over to other firefighters. In the opinion of a former senior fire marshall, who investigated the scene, the fire was deliberately set and could have been started with a match to a piece of clothing in the closet.
Dr. Scott Denton reviewed the autopsy of Dorothy performed by Dr. Eupil Choi. Dorothy‘s body showed signs of extensive hemorrhages in the eyes, hemorrhages on the vocal cords and hypopharynx in the neck, and a loose joint in the hyoid bone, which are injuries consistent with manual strangulation. Pressure would have to be applied to the neck for 3½ to 5 minutes to cause death by strangulation. There was no carbon monoxide or soot
Defendant gave a videotaped statement regarding the murder of Kazmiera Paruch. On March 14, 1997, as defendant was driving in the area of 4730 North Kenneth in Chicago, he saw a “For Sale By Owner” sign in front of an apartment or condominium building. Defendant, wearing a 7-Up uniform, stopped and went inside to the unit listed. When a woman answered the door, defendant asked to look at the unit. The woman, Kazmiera Paruch, took defendant through the residence. At some point defendant grabbed her from behind and pulled her on the back of the neck down to the floor. Defendant drove her face into the floor and she bled profusely. Defendant stood her up and walked her to the bathroom. He then pulled off her panties and had vaginal sex with her. He ejaculated on her stomach and wiped it off with a Kleenex. She reached into a cabinet, pulled out an iron, and tried to swing it at him, but he blocked it with his arm and the iron flew toward the toilet. He noticed that her eyes had rolled back in her head and she was not breathing. Defendant said he poured a liquid on her body, lit a match, and left.
A firefighter responding to a reported fire at the residence subsequently found the fire emanating from the bathroom and discovered Kazmiera‘s body therein. Her lower body was unclothed and an electric cord was across her neck. The firefighter noticed an iron on the bathroom floor.
Carl Hopkins, a fire investigator, responded to the scene and found the severely burned victim with a wire cord wrapped around her neck and a large gash to the
Dr. Denton reviewed the autopsy of Kazmiera performed by Dr. Larry Sims. Approximately 70 to 80% of the body was burned. An incise wound and a smaller irregular wound were noted on the right side of Kazmiera‘s neck. The meat cleaver could have caused those injuries. There were multiple hemorrhages within the neck organs or tissues and the hyoid bone was fractured. Those injuries were consistent with a severe case of strangulation. On the left side of her brain there was a subarachnoid and subdural hemorrhage, as well as some bruising in the deeper brain tissue. Those injuries were consistent with blunt trauma to the head and could be consistent with being struck by an iron.
In addition to the evidence of defendant‘s seven murders, and eight sexual assaults, the State presented evidence of defendant‘s escape from DHS custody. On October 6, 2000, Rick Schroeder of DHS was transporting three DHS recipients, including defendant and inmate Conley, from Sheridan Correctional Facility to court in Cook County. Defendant and Conley were restrained with leg shackles and walking restraints. En route, Conley complained that he was sick. Once the vehicle stopped, Conley said “Hey, Rick,” and when Schroeder turned around he was sprayed in the face and felt a sharp pain in his eye. He stumbled across the street, and when he regained some degree of vision, he noticed glass on the highway on the passenger side of the van. Defendant and Conley were gone. Schroeder was taken to the hospital and missed work for five weeks.
Defendant told police that he and Conley began devising a plan to escape about six months in advance. Defendant had noticed that Illinois Department of Corrections guards no longer accompanied unarmed DHS guards in transporting individuals to and from court. Defendant befriended a DHS guard named Doris Harper. He described their relationship as romantic, but not sexual. Pursuant to the plan, Harper provided two cans of pepper spray inside the facility. Defendant also received a handcuff key from Harper via another DHS guard. Harper purchased clothing for defendant and had $2,000 cash to be used en route to Mexico after the escape. She also arranged for a rental car and was to follow the van to Cook County until the escape. Harper was then to have driven defendant and Conley away. Harper no longer worked at Sheridan by the time of the October escape. Phone records showed multiple calls from Sheridan to Harper‘s home from July 8 through October 5, 2000. The rear cargo area of Harper‘s car in Ottawa was loaded with clothing, duffel bags, a .25-caliber handgun, a holster, and ammunition; the car also contained a bolt
The State‘s evidence in aggravation concluded with Ramon Rivera, Yolanda‘s father and Jessica‘s grandfather, reading a victim impact statement, in which he described the many positive attributes of Yolanda and Jessica, the loving relationship he had with them, the shock and horror he experienced upon learning of the circumstances of their deaths, and the loss he and his family felt.
In mitigation, Doris Harper testified that the escape from DHS custody was her idea, and defendant told her to pull over when Harper noticed a police vehicle behind them. Under cross-examination, Harper stated that she had become “emotionally attached” to defendant and, “had circumstances been different,” would have been “intimate with” him. The plan had been for her and the defendant to escape to Mexico and have a “long term relationship.” Harper described defendant as “mannerly,” “charming,” and “smart.” She was equivocal when asked if she had been manipulated, stating: “I really don‘t know. I can‘t say either way.” She admitted that she gave defendant a handcuff key and mace to facilitate the escape and compiled an array of supplies—including weapons—in furtherance thereof.
Other mitigation the jury heard was based primarily, as had been the insanity defense, upon expert testimony of defendant‘s deviant sexuality, mental disorders, and the disputed evidence of brain abnormality. Dr. Rabin, a psychologist who had not testified at trial, diagnosed defendant slightly differently than the other experts in that he did not find sufficient evidence to support a diagnosis of sexual sadism. Rabin testified to three psychological tests given to defendant. On a test that
Correctional officers testified that defendant had no infractions of jail rules in four years.
Defendant‘s adoptive father, Richard Runge, testified on direct examination that he and his wife had adopted defendant as an infant. At age two, defendant lost consciousness briefly after a fall from a grocery cart, but no medical treatment was sought. When he was eight or nine years old, defendant was asked to leave a Catholic school because he was “bothering” girls. At age 11, defendant used a knife to cut up a table and his father‘s thermal underwear. Defendant told his parents he was “just playing,” but they were concerned that he “wasn‘t conversing *** well” with them, and they sent him to counseling. Defendant was still unresponsive, but thereafter he went to summer camp, and when he returned he “seemed to be fine.” At age 14, defendant had sex with two girls his age. He was arrested, as the girls initially claimed they had been attacked, but later, at the police station, the girls said it was consensual, and defendant was allowed to go home. At age 15, defendant had consensual sex with a woman catering a wedding he attended with his parents. Mr. Runge testified that
Under cross-examination, Mr. Runge acknowledged that he had never previously told anyone about his son‘s fall from a grocery cart. He had never sought psychiatric help for his son. He “[d]idn‘t think he needed it.” Mr. Runge testified that girls tended to gravitate to his son; he conceded that defendant could properly be characterized as a manipulative con artist.
After hearing all the testimony in aggravation and mitigation, the jury returned a death penalty verdict.
ANALYSIS
Defendant first contends that a biased juror (Juror A) served on his jury, denying him an impartial jury, and the trial court‘s failure to question other jurors about Juror A‘s activities denied defendant due process.
Trial before a biased tribunal would deprive defendant of a substantial right and constitute structural error requiring reversal. People v. Rivera, 227 Ill. 2d 1, 20 (2007), aff‘d, 556 U.S. 148, 173 L. Ed. 2d 320, 129 S. Ct. 1446 (2009); Ross v. Oklahoma, 487 U.S. 81, 85, 101 L. Ed. 2d 80, 88, 108 S. Ct. 2273, 2277 (1988) (“Had [a biased juror] sat on the jury that ultimately sentenced petitioner to death, and had petitioner properly preserved his right to challenge the trial court‘s failure to remove
In the latter respect, questions of possible intra-jury influence or misconduct are treated differently from contamination by external influences. United States v. Lakhani, 480 F.3d 171, 184-85 (3d Cir. 2007); Whitehead v. Cowan, 263 F.3d 708, 723 (7th Cir. 2001), citing United States v. Williams-Davis, 90 F.3d 490, 501 (D.C. Cir. 1996). Thus, the presumption and hearing requirements announced in Remmer v. United States, 347 U.S. 227, 229, 98 L. Ed. 654, 656, 74 S. Ct. 450, 451 (1954)—to the extent they survive (compare People v. Ward, 371 Ill. App. 3d 382, 402-05 (2007), with People v. McLaurin, 382 Ill. App. 3d 644, 651-52 (2008), appeal allowed, 229 Ill. 2d 646 (2008) (table))—have been interpreted so as to apply only in situations where “extraneous materials are brought into the jury room” or there is a “third-party contact” with a juror or jurors. See United States v. Spano, 421 F.3d 599, 605 (7th Cir. 2005); Whitehead, 263 F.3d at 723, 725 (compiling cases); compare United States v. Vasquez-Ruiz, 502 F.3d 700, 705, 707 (7th Cir. 2007) (juror found a note in her notebook that could have been “written by an outsider“), with United States v. Stafford, 136 F.3d 1109, 1112-13 (7th Cir. 1998) (an internal misconduct or bias case, quoted, approvingly, as follows in Vasquez-Ruiz: “Not every allegation of jury misconduct
In any case, the question of whether jurors have been influenced and prejudiced to such an extent that they would not, or could not, be fair and impartial involves a determination that must rest in sound judicial discretion. People v. Whitehead, 169 Ill. 2d 355, 402 (1996), overruled in part on other grounds, People v. Coleman, 183 Ill. 2d 366 (1998); Spano, 421 F.3d at 605-06; United States v. Hernandez, 330 F.3d 964, 990 (7th Cir. 2003) (a trial judge will always be in a better position than a court of review to assess the probable reactions of jurors in a case over which he or she has presided). As the court of appeals noted in United States v. Dominguez, 226 F.3d 1235, 1246 (11th Cir. 2000):
“District court judges deal with jurors on a regular basis, and those judges are in the trenches when problems arise. The problems that present themselves are seldom clearly defined and a number of variables have to be considered. There are often no obviously right or wrong answers to the questions that arise. For all of these reasons, a trial judge is vested with broad discretion in responding to an allegation of jury misconduct, and that discretion is at its broadest when the allegation involves internal misconduct such as premature deliberations ***.”
Recognizing that the processes of trial and deliberation take place in the real world, rather than a wholly manageable environment, the Supreme Court has acknowledged that “due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable.” Smith, 455 U.S. at 217, 71 L. Ed. 2d at 86, 102 S. Ct. at 946.
With these principles in mind, we turn to the facts and circumstances of this case, beginning with the voir dire of Juror A. During jury selection, Juror A was initially questioned by the trial court, counsel for defendant, and the State.
“THE COURT: [Juror A], as I said in the courtroom, if the Defendant is found guilty of the offenses charged in this case, the State will seek the death penalty in a separate proceeding.
[JUROR A]: Yes.
THE COURT: Along those lines, I want to ask you do you have any scruples, by which I mean strong feelings by reason of religion, morals or conscience against the imposition of the death penalty?
[JUROR A]: No.
THE COURT: Would your beliefs about the death penalty prevent you or substantially impair your ability to reach a fair and impartial decision as to whether the Defendant is guilty?
[JUROR A]: No, sir.
THE COURT: Do you have strong feelings in favor of the death penalty?
[JUROR A]: Not necessarily.
THE COURT: Are your beliefs about that such that regardless of the facts of the case or the background of the Defendant, but if the Defendant were found guilty as charged, you would automatically vote to impose the death penalty and not consider signing a verdict which would result in a sentence of imprisonment?
[JUROR A]: No. * * *
THE COURT: All right. Also, the defense of insanity may be presented in this case. The law provides a Defendant is not criminally responsible for his conduct if as a result of a mental disease or defect he lacks the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Do you have any feelings or view points concerning the defense of insanity in a criminal case?
[JUROR A]: No.
THE COURT: If the evidence of insanity were presented, would you consider it together with all the other evidence in the case?
[JUROR A]: Absolutely.
THE COURT: Have you or anyone close to you had any experience with a psychiatrist or a psychologist?
[JUROR A]: Yes.
THE COURT: Tell me briefly and generally what happened and who was involved with that?
[JUROR A]: I‘ve seen psychiatrists before.
THE COURT: Are you still seeing one?
[JUROR A]: No.
THE COURT: How long ago was it you saw one?
[JUROR A]: About three years ago.
THE COURT: Would those experiences in any way affect your ability to consider such testimony of that type of a witness?
[JUROR A]: Not at all.
THE COURT: Mr. Murray [assistant State‘s Attorney], any questions?
MR. MURRAY: Just regarding the question on the experience with a psychiatrist or psychologist.
MR. MURRAY: That wouldn‘t cause you, because the testimony is presented on that topic of insanity, that wouldn‘t cause you automatically to vote against the death penalty, would it?
[JUROR A]: No.
MR. MURRAY: You still would consider that as part of all the testimony presented and weigh it out against everything else?
* * *
MR. JORDAN [defense counsel]: Would you consider a person suffering—the fact that a person suffers from a mental illness a mitigating factor?
[JUROR A]: Yes.
MR. JORDAN: Okay. And would you be able to consider that mitigating factor along with any other aggravating or mitigating factors that may be presented to you at the trial?
[JUROR A]: Yes, sir.
MR. JORDAN: Do you think that a person could be guilty but still suffer from a mental illness?
[JUROR A]: Absolutely.”
Subsequent questioning by the court revealed that Juror A had a wife and young child, he worked as a drywall finisher, and he had been the victim of a “minor theft.” After Juror A was selected as a juror, he approached the court to apprise the court of the financial hardship he would suffer during his service as a juror:
“[JUROR A]: I want to mention that, I mean, you know, this process being what it is, little intimidating, and if I don‘t go to work, I don‘t get paid. I‘m the only provider in my household. My wife is employed. It is a meager income. Kind of a financial hardship. I know it is [a] civic duty.”
The court told Juror A, “there‘s probably a lot people in your situation,” and afforded counsel for both sides the opportunity to question Juror A, an opportunity that both declined. Juror A was sent out of the room and the court asked counsel, “What do you want to do?” Both sides indicated they wanted to keep Juror A on the jury. When the court informed Juror A of the decision, he replied simply, “Okay.” The court told Juror A it would inform him when the jury would not convene for full days so he might “sneak in a job here or there.” Juror A expressed his appreciation. The court concluded: “We‘ll do the best we can. We don‘t want to hold you up any longer than we need to. Thank you for serving, and we‘ll
In the course of the first several days of trial, during recesses and adjournments, the court repeatedly instructed the jurors not discuss the case among themselves or with others.
On the fifth day of the nine-day guilt/innocence phase of trial, at the conclusion of the prosecutor‘s case-in-chief, the court received a communication from Juror B expressing concern over Juror A‘s behavior. The court had Juror B brought to chambers so that she might air her concerns. At that time, the following colloquy ensued:
“THE COURT: You brought something to my deputy‘s attention.
[JUROR B]: Yes. My heart‘s beating so fast. I have a couple concerns over one of the other jurors. Two I might just be hypersensitive about, overreactive, and the other I don‘t think I am.
The first two occurred on Friday, once toward the end of the case. I can‘t—I wish I had written it down, but I didn‘t. The prosecution had made some points, I think this was cross-examination. It was something that the defense was trying to go forward for. The man behind me was like yes. Yes, yeah. Like cheering out loud vocally. I thought it was real—
THE COURT: In the courtroom?
[JUROR B]: In the courtroom. I was aghast. I thought it was horribly inappropriate. I think you had gone back to have a discussion, maybe came back out. I can‘t remember exactly when it was. It was a monumental point and the prosecution said something. It kind of disproved whatever the defense was trying to push. He was like yes, yeah. I thought it was really inappropriate.
Then when we were back in the room that day, too. We had had like an extra break. He had his cell phone out. Kind of made a beeping noise and he was like oh, check that later. I‘m sure that had nothing to do with the case. I‘m sure he was checking to see if he had a message from his wife or something like that. But we were told not to use our cell phones.
Maybe I‘m being overreactive about those. I just take things really seriously. But this morning, no one‘s talking about the case. But one of the girls said she‘s reviewing her notes and she said I don‘t know if I can ask this question. But does anyone know if that one term was called transferrance [sic] like if you touch something. And then someone said yeah, that‘s what it‘s called. He said something like yeah, that‘s what it‘s called, blah, blah, blah. Then another girl started talking about the show that she had seen over the weekend. On television. It was about a babysitter that was watching a baby. The baby died. Had gone to court. And I said I think I saw that on 20/20 couple years ago. So bunch of people started chit-chatting about she‘d shaken the baby real hard and baby died. Goes on to say but the mother was on cocaine and boyfriend and mother were doing cocaine, blah, blah, blah. She gets done with the story.
And then this man proceeded to say well, as assistant State‘s Attorney, if that‘s the wrong term I‘m sorry, Milan said the other day in court. He repeated an exact quote that after you had come back here for discussion, you came back out and told us to disregard. I have it. I can tell you what it was, but I crossed it out in my notes.
THE COURT: Okay. I‘ll ask you to go back to the juryroom, please don‘t discuss anything about what you said here with anyone.
[JUROR B]: I don‘t want them to think it was me though.”
When the juror exited chambers, defense counsel opined that the jurors were “obviously talking about the facts of the case before defense has even had a chance to present any evidence.” Defense counsel asked the court to declare a mistrial. The State responded: “[Juror B] said that people were not discussing the case. Whatever the comment was that the other jurors said yes to was after [a] sidebar, so it was not the comment that was objected to, it was some other piece of testimony.” The prosecutor further stated that the discussion about transference did not appear to be “a wholesale discussion of facts and coming to conclusions before the jury‘s heard
The next day, during a recess in the midst of the presentation of defendant‘s case, one of defendant‘s attorneys asked to “speak to an incident that just happened in the jury box.” Defense counsel Thompson informed the court:
“[Juror A], the same juror that was complained of by [Juror B], when you overruled the State‘s last objection and allowed the doctor to answer, he threw the notes he was writing against the wall.
Your Honor, at this time given the display of contempt for the evidence that we‘re presenting, and to your rulings, along with the complaint of another juror that he is talking about the case, that he is openly cheering in the jury box for the prosecution‘s case before the end of the evidence, we would again request that he be removed from the jury.”
The court thereafter conducted an
“THE COURT: [Juror A], have a seat. I observed you in the jury box. Are you having difficulty with the case of some kind? What‘s happening?
JUROR A: Hum. Well, yeah, I have some difficulty, but I have my own opinion and things. And sometimes as a lot of people in there just stated, definitions that we would like to obtain or jot down, there is just no way you‘re going to be able to write that stuff down in the time we‘re given, so I set my notepad down and gave up.
THE COURT: Is that why you did that?
JUROR A: Yep, that‘s why I did that.
THE COURT: Did you formulate any opinions about this case at all, whether or not—
JUROR A: No final opinions because I don‘t have all the evidence and facts, yet.
THE COURT: I told earlier, at the beginning of the case, the defendant is presumed to be innocent of the charge against him.
JUROR A: Absolutely.
THE COURT: You still understand that?
JUROR A: Yes, I do.
THE COURT: Do you have any problem being able to follow that rule of law basically?
JUROR A: No, sir. No.
THE COURT: Okay. Do you have any opinions as to whether or not the defendant‘s guilty or innocent of the charge against him at the present time?
JUROR A: Not completely, no.
THE COURT: What do you mean by that?
JUROR A: Well, I don‘t have all the facts.
THE COURT: Okay. Is there any point, based upon your inability to maybe take notes as fast as maybe you would like to—
JUROR A: It just gets frustrating, your Honor, at some point, trying to ascertain this information and, you know, upon entering the jury room just now, a couple people asked, did anybody get that definition, did anybody get it and we all agreed that a lot of us would like to that [sic] information, but were unable to write it down in time and so, you know, I take that information that I think is pertinent to this investigation and try to keep that for myself to read.
THE COURT: Is there anything about what‘s happened with the trial so far that would in any way prevent you from giving either side in this case a fair trial.
JUROR A: No. THE COURT: I‘m going to ask you to go back to the jury room. Please don‘t discuss anything we said back here, as well. Thank you.
[JUROR A]: Yes, sir.”
After Juror A left the room, the court asked: “Anybody want to say anything?” In response, one of defendant‘s attorneys equated Juror A‘s conduct to contempt of court and asked that he be excused. Another defense attorney observed:
“[T]his also doesn‘t answer, you know, the problem that was expressed yesterday, that he is voicing agreement with the prosecution‘s case, that he is in the back attempting to talk about the case. He has essentially, and given, he has started to form opinions. Now, whether or not there is—I guess there is a philosophical or semantic difference between starting to form opinions and as opposed to having an opinion. But he has essentially started his deliberation process, which he is not supposed to do. Given all of these problems, this will affect the entire deliberation process, his ability to interact with other jurors. And frankly, Judge, although we believe that one can argue that there is a semantic difference, I would argue legally, in fact, there is no difference and he has made up his mind.”
The prosecutor responded, “It‘s not a semantic difference,” noting Juror A‘s explanation that he was frustrated because he could not write down definitions fast enough “so he could be able to read them and use them later on in his deliberations.” Moreover, the prosecutor observed: “He said to you that he had not made up his mind. He had not heard all the evidence. That [is] what we ask all jurors to do, to contemplate the evidence and not to make up their minds until they do that.” The prosecutor concluded that Juror A was still taking notes on the evidence and should be allowed to continue serving as a juror.
The court decided that Juror A would continue as a juror, stating:
* * *
There is nothing unusual about that and I don‘t see any reason by what he told me or my inclination that he‘s not going to be able to give both sides in this case a fair trial. That‘s all I want. I don‘t want to do this case over again because of something a juror did or [did] not do properly in the course toward reaching a verdict in this case. So I firmly believe that my decision is the right one here.”
Juror A subsequently signed the guilty verdict in this case and the death penalty eligibility verdict.
On the sixth day of death penalty proceedings, before any mitigation had been presented, Juror B sent the judge a note dated February 22, 2006. The note, which purported to recite statements made by Juror A and others, read as follows:
“Afternoon
Every day that we‘re out there is one more day the Runge [sic] gets to breathe. Has anyone noticed that Runge is the last to get up when they say All rise for the jury—not helping him too much there
Morning
Many comments referring to the immunity of Charlene [Runge] and how fucked up it is—My comment: he was upset. He does not want someone named Lisa [Charlene Runge‘s alias] calling his house.
Question from other juror—Why didn‘t you raise your hand when he asked if you read that newspaper that would have gotten you off...
Comment from other juror—You have back ups—there are plenty of backups (jurors).
Maybe I‘ll get kicked off and use Jay‘s tickets to Ireland—My comment: a joke.
Many comments about Paul Runge being present during jury selection and knowing his personal information including family information.
Comment from other juror—You should talk to Donna/Ask Donna these questions.”
Juror B was called into chambers and questioned about the note:
“THE COURT: Come in, have a seat. Donna [apparently the bailiff] handed me this note; was that from you?
[JUROR B]: Yes.
THE COURT: Can you tell me about it?
* * *
[JUROR B]: I wrote those remarks that were made yesterday; I labeled them afternoon and morning so that you would know when they were made, and those remarks that were made in the jury room by a juror.
THE COURT: One?
[JUROR B]: One juror.
THE COURT: And that‘s [Juror A]?
[JUROR B]: Yes.
THE COURT: Okay.
[JUROR B]: It‘s the same juror as the one that I had spoken to you about before.
THE COURT: Okay.
[JUROR B]: I wasn‘t sure what the appropriate thing—
THE COURT: You‘ve labeled some things on here ‘my comments’ or whatever.
[JUROR B]: When I showed it to Donna this morning, she said—well, he was upset, because I wrote, I tried to write it as directly as he stated it, and then I put that was my synopsis comment; that when he made several comments about—can they hear me?
THE COURT: No.
[JUROR B]: —about the immunity of the wife, and that‘s his language on there; it‘s not mine. And he was very loud and he was semi-irate. He was definitely, his voice was loud and he was angry. And a lot of the other jurors were all kind of looking at each other, with eyes, like, what should we do, kind of. And I said to the gentleman to my right, I said, ‘I‘m very uncomfortable with this‘.
THE COURT: What‘s the comment on here from another juror, ‘You should talk to Donna or ask Donna these questions‘? What‘s that about?
[JUROR B]: He then was saying his—the basic summary of his comments about the immunity were that, from what I would say, that he was concerned that this woman was just going to show up at his house some day. So I think his anger was kind of from the perspective of a father and a husband, maybe, and he was kind of channeling that. THE COURT: Who are you saying this about?
[JUROR B]: [Juror A]. Because he was saying, ‘I don‘t want my wife to get a call one day from someone named Lisa.’ And he went on to say, he was going on and on about, ‘How come Paul Runge was in the room the day that the jurors were selected; he knows who I am; he knows where I live; he knows who the people in my family are.’ That‘s when he asked these questions and then someone said, ‘Well, we think maybe he gets a say in who is in on it‘; and someone else says, ‘Well, he gets a fair trial‘; and then another juror said, ‘Well, why don‘t you talk to Donna about this, you know, all these questions.’
THE COURT: Okay. Does anybody want to [discuss] with [Juror B] anything about the—[.]”
At that point, Juror B interrupted, apologizing, apparently, for her syntax, as English was her second language. She then continued:
“I didn‘t write this, you know, for someone to take a deliberate action. Everyone really likes him. He‘s a really nice person. He‘s very witty. He‘s very clever. He keeps—he kind of keeps the morale going well, so everyone really, really likes him; but my main concerns were that these kinds of comments would come out when the trial is over and the people talk to their family and friends, what were the jurors like. I think if a comment like that came out, like every day that we‘re in trial is another day that he gets to breathe; I just would have concerns.
THE COURT: Is there anything about whatever he may have said that would prevent you from being able to give Mr. Runge and the State a fair hearing from this point?
[JUROR B]: Absolutely not. No. Then this morning, after I spoke with Donna, because my conclusion this morning was that I would just write these up and show it to Donna and take her advice on what to do; one juror said, ‘I wonder if we‘ll get to see Charlene‘; and he said, ‘I
wonder if I‘ll ever get to see her on my front porch.’ And then he said—I had just come out of the bathroom and I heard him say something about lyrics, like he was going to write a song or something; then he started singing ‘Charlene, you‘re so mean, something, something about a spleen.’ So I think he goes for like a comedy relief or something. But I just wanted to—I would hate for, after the trial for this to come to your attention and for you to think, why didn‘t she tell me, if she told me about something earlier in the trial.
THE COURT: I‘m going to ask you to go back to the jury room and don‘t discuss anything we said back here.
[JUROR B]: No. They think that I‘m here because I needed a letter for my Thursday night class, but I don‘t.”
After Juror B departed, one of defendant‘s attorneys stated, “I think we have to talk to the juror in question.” Another defense attorney remarked: “My only feeling about that, judge, is I just found his other answer about throwing the notebook completely incredible.” The court responded, “We‘re past that. I remember what happened before. Let‘s deal with what we have here before us right now.” The court decided: “I‘m going to bring it in here; I‘m going to put it to him, if I‘m not satisfied with his answers, I‘m going to excuse him and keep him separated from the rest of the jurors until that time, until that decision is made. If I do excuse him, I‘ll have the deputy go in there with him to get him out of there then.”
When Juror A was brought into chambers, the following colloquy ensued:
“THE COURT: How are you doing?
[JUROR A]: Fine.
THE COURT: Sorry we have to bring you back here again. I just wanted to ask you, are you having a rough time with this case at all?
[JUROR A]: I have some issues from time to time.
THE COURT: What about, basically, if you can tell me?
[JUROR A]: Well, if I‘m allowed to, yeah.
THE COURT: Yeah, whatever you want.
[JUROR A]: I was uncomfortable with the fact that, you know, Charlene was given immunity, is out there in the
world. I don‘t know this person, you know. It sounds dangerous to me. I don‘t like that our names were mentioned on the first day and people know what my family consists of; and I think some information was divulged at that point that was unnecessary. But other than that, no; I really don‘t have a problem. I mean, the case being what it is, you know, it‘s kind of rough, yeah, but I‘m okay with it. THE COURT: How about the fact that—is there anything about the type of sentence involved in this case, in other words, you think it should be—we should be done with all this by now; you know what I mean?
[JUROR A]: Well, I don‘t understand your world, you know. I come from the drywall industry and I‘m falling into this thing and I‘m starting to realize, I know there is a lot of detail that has to be covered, it feels like it‘s taking a long time; and it costs me $250 a day, every day I‘m sitting here, and it‘s been a month without a paycheck. I indicated to you on day one that that was going to be kind of a problem with me, but I‘ve come this far so, you know, it seems like it‘s taking a long time, yeah.
THE COURT: Have you talked about anything, any of these issues, like Charlene, with any of the other jurors or anything like that?
[JUROR A]: I think everybody feels about the same way about that. I think it‘s a little strange, you know, but it is what it is and it‘s done.
THE COURT: What do you think about the possible—I mean, do you think that Mr. Runge should be getting the death penalty in this case?
[JUROR A]: I do.”
Shortly thereafter, Juror A was taken from chambers and the court asked counsel for comments:
“MR. WOLF [defense counsel]: Judge, at this time it is our position, given his answers, given that this is the same juror who before had started discussing the case, or there were at least allegations, and this is the same juror who threw down his pad—
THE COURT: Get to the point, Mr. Wolf.
MR. WOLF: We would be asking at this point in time to vacate the jury‘s verdicts finding of guilty, as well as the verdict of eligibility, given that he has—Judge, we‘re es-
sentially saying he‘s been dishonest through this entire process. It‘s not enough to discharge him at this point in time; the jury verdict must be vacated and a mistrial and everything must be declared.”
The State responded that neither Juror A‘s previous comments nor his conduct warranted either vacating the trial verdicts or declaring a mistrial.
The court decided to excuse Juror A and replace him with an alternate. The court denied the defense motions. The judge allowed Wolf‘s request to speak further, upon the condition that he had something “other than what you‘ve already said.” Wolf asked that the court question individual jurors “to find out how long [Juror A‘s] feelings have been expressed in any appropriate or inappropriate way, so that we can find out if the eligibility verdict has been tainted or the guilt/innocence verdict has been tainted.” The court denied that request, noting, “Given the consciousness [sic] of our foreperson bringing this to our attention and her detail as to when this happened, and my other questioning of jurors on other dates, I don‘t think that is necessary at this time. If I did, I would certainly do that.” The court also denied defense counsel‘s request to inquire if any other jurors had made up their minds on the appropriateness of the death penalty.
When the jury returned to the courtroom, after Juror A had been replaced, the court addressed the jury:
“THE COURT: Ladies and gentlemen of the jury, I just wanted to mention one other thing to you. As I‘ve said earlier in this case, it is essential that you not arrive at any decisions or conclusions of any kind until you have heard all the evidence, the arguments of the attorneys, and the law that applies to this case and have begun your deliberations in the privacy of your jury room.
Are all of you still able to comply with that Court directive that I gave you?
THE JURORS: Yes.
THE COURT: If you are not able to comply with that directive, please raise your hand.”
We return to defendant‘s contention that reversal is required due to Juror A‘s service on the jury and the trial court‘s failure to question other jurors about Juror A‘s activities.
We note, initially, that the pertinent facts and circumstances support the trial court‘s determination that Juror A be allowed to continue as a juror through the guilt/innocence and eligibility phases of the trial. The trial court, who had the best opportunity to view Juror A‘s demeanor and assess his credibility, questioned Juror A three times before finally excusing him. The court‘s observation of Juror A throughout the trial was supplemented by Juror B‘s reports of his activity.
The court first questioned Juror A in voir dire, as did the prosecutor and defense counsel. What emerged from that questioning was Juror A‘s belief that he could be a fair and impartial juror—notwithstanding his concerns about the projected length of the trial—in that he did not have any strong beliefs for or against the death penalty, he would “absolutely” consider evidence supporting an insanity defense, and he would further consider any mental illness defendant was suffering to be a mitigating factor in sentencing. Juror A acknowledged that he himself had utilized the services of psychiatrists, and those experiences would not affect his ability to consider psychiatric testimony. Obviously, defense counsel‘s observations of Juror A during voir dire led to the conclusion that Juror A could be a fair and impartial juror.
We would observe that Juror A must have realized at that juncture that certain negative answers to the court‘s questions would likely have gotten him off the jury and returned him to gainful employment if that was his desire. Yet, he did not follow that course. His diligence in trying to take notes during the defendant‘s case seems to
Although, after Juror B‘s final report from the jury room, and the court‘s subsequent questioning of Juror A, the court later determined that Juror A had by that time inappropriately formed a premature opinion on the suitability of death as punishment in this case, we see in this record insufficient facts and circumstances to overturn the circuit court‘s assessment that Juror A was qualified to serve as a juror through the guilt/innocence and eligibility phases of the trial. Since Juror A was replaced by an alternate juror at the sentencing phase of the trial, his participation there is not an issue.
We find support for our conclusion in the Eleventh Circuit Court of Appeals’ decision in United States v. Harris, 908 F.2d 728 (11th Cir. 1990)—quoted approvingly in Dominguez—and the Ninth Circuit‘s disposition in Davis v. Woodford, 384 F.3d 628 (9th Cir. 2004).
In Harris, the defendants alleged that a juror sitting in the jury box said “do it to him good” as a witness for the prosecution was taking the stand to testify. Harris, 908 F.2d at 733. The district court chose not to investigate the remark. Harris, 908 F.2d at 734. On appeal, the court of appeals held that the trial court had not abused its discretion in declining to investigate because the meaning of the remark was ambiguous and the district court was in a better position to judge whether the “statement
We believe Juror B‘s report of Juror A‘s “cheering” is
We believe Davis also supports the actions taken by the trial judge and our disposition on this issue. In Davis, a death penalty case, the trial court received a note from the jury foreman, R.C. Schwartz, before deliberations had begun. The note read in pertinent part:
“Question One: If we cannot come to unanimous agreement on the penalty phase for the defendant, what will happen next?
Question Two: If we decide on the gas chamber as penalty, is there any reason that we should expect that his punishment will ever actually occur in California?
Three: If we decide on life without parole as penalty and our original verdict of guilty is not overturned, will the defendant actually spend life in prison without parole or can he later be paroled by some higher authority? Four: Can you describe the impact on the legal system (and taxpayers) which would likely occur for either of the two penalty decisions? In other words, it has been said that the death penalty decision results in millions of dollars of legal expense for the taxpayers of California due to appeals, et cetera. In the end the penalty is not administered.
Five: Can you reassure us that this phase is not just a legal formality and that the result of our deliberation will really have some significance in seeing that justice will prevail?
Six: It is my impression that a death penalty sentence will actually result in life without parole; a life without parole sentence will not stick, i.e., the defendant will later be paroled. Can you comment on this?”
It was not clear whether the note was from Schwartz only or from some larger faction of the jury. Defendant‘s counsel asked the court to dismiss Schwartz and to inquire whether any of the jurors had discussed the case or the law. The judge denied counsel‘s request, reasoning that curative instructions would be appropriate. The trial court then instructed the jury in a manner that addressed each of the concerns expressed in the note. Davis, 384 F.3d at 652. The trial court did not conduct any individual inquiry of jurors, did not collectively admonish jurors not to discuss the case, and did not inquire whether jurors could still render a verdict based only on the evidence and applicable law. See Davis, 384 F.3d at 652-53.
Several months after the trial ended, Schwartz wrote a letter to a newspaper approving of the outcome in the trial. Defendant subsequently alleged that the questions Schwartz submitted to the judge, in combination with his letter, demonstrated a pro death penalty bias. Defendant also contended that the use of the pronoun “we” in the questions raised the inference that the jury
The Ninth Circuit Court of Appeals disagreed. The court of appeals began its analysis by emphasizing that the “Ninth Circuit takes the spectre of jury bias very seriously” and ” ‘even a single partial juror violates a defendant‘s constitutional right to fair trial.’ ” Davis, 384 F.3d at 652, quoting in part, United States v. Angulo, 4 F.3d 843, 848 (9th Cir. 1993). The court acknowledged that ” ‘[a] court confronted with a colorable claim of juror bias must undertake an investigation of the relevant facts and circumstances.’ ” Davis, 384 F.3d at 652-53, quoting Dyer v. Calderon, 151 F.3d 970, 974 (9th Cir. 1998) (en banc). However, the court of appeals observed:
“Were we to assume that premature deliberations occurred, such an exchange, though not necessarily proper, is not as serious as ‘private communication, contact, or tampering *** with a juror during a trial [or] *** influence of the press upon the jury,’ nor does ‘every incident of juror misconduct require[ ] a new trial.’ United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974) (internal citations and quotation marks omitted). What is crucial is ‘not that jurors keep silent with each other about the case but that each juror keep an open mind until the case has been submitted to the jury.’ Id. Although a hearing might have laid to rest any lingering question about premature deliberations or bias, we do not construe the circumstances as mandating a hearing then or now.” Davis, 384 F.3d at 653.
The court of appeals noted there was no evidence in defendant‘s case that any of the jurors relied on extrinsic evidence in reaching a death verdict, or that any of the jurors reached a sentencing determination prematurely.
As in Davis, the trial judge in this case—with even less evidence of juror bias than that extant in Davis—took steps appropriate to the circumstances to ensure that no biased juror sat on defendant‘s jury, that the jury did not reach a verdict prematurely, and that defendant received a fair trial. Specifically, the judge questioned Juror A—the only juror whose impartiality was ever really in question—during the guilt/innocence phase of the proceedings to ensure that Juror A would accord defendant the presumption of innocence, that he could give both sides in this case a fair trial, and that he had not arrived at a premature opinion as to defendant‘s guilt. Juror A agreed that defendant was “absolutely” presumed innocent, he maintained that he could give both sides a fair trial, and he informed the judge that he had not arrived at an opinion as to defendant‘s guilt or innocence, as he did not “have all the evidence and facts, yet.” The trial judge, who had the opportunity to observe Juror A‘s demeanor, found Juror A credible. Subsequently, during the aggravation/mitigation phase of sentencing, after Juror A had been exposed to graphic evidence of defendant‘s other crimes, Juror A had to be excused and replaced with an alternate. However, prior to sentencing, it appears to us that the trial judge acted appropriately and there was no indication of juror bias such that removal of Juror A was warranted at that time.
In this regard, we note, again, that Juror B appeared to be extremely diligent in reporting perceived juror improprieties to the court; yet, her concerns centered only on Juror A‘s behavior. It is a reasonable inference that she would have reported others had she believed there was a need to do so. The court essentially made that observation when it declined the defendant‘s request to question jurors individually. We note, in passing, that Juror B‘s hesitancy to be known to other jurors as an informant did not result in a reluctance to report, in detail, the conduct of others, some of which was collateral to the consideration of this case in any event. For example, when Juror A allegedly repeated a comment of the prosecutor that had been stricken, it was in the context of a juror‘s discussion about a television show, not this case. We do not consider that a “discussion of the case,” nor does it, or a brief conversation concerning clarification of the meaning of the term “transferrance,” support the accusation that the jury “discussed the case and evidence throughout the trial.” Beyond that, addressing speculative claims that Juror A unduly influenced other jurors, we note that Juror B‘s second report indicates that other jurors’ comments to Juror A—indicating he could get off the jury if he wanted to and that defendant “gets a fair trial“—and their physical reaction to Juror A when he became “semi-irate,” suggest that other jurors were not in accord with Juror A‘s feelings, and that they did not consider his actions appropriate.
As this court observed in People v. Cloutier, 178 Ill. 2d 141, 160-61 (1997), quoting from American Jurisprudence:
” ‘As a rule, it is improper for jurors to discuss among themselves the case or any subject connected with the trial until all of the evidence has been presented and the case has been submitted to them after final instructions by the trial court. ***
*** Even assuming that discussion by jurors of a case during recesses in the proceedings constitutes juror misconduct, the test for reversibility is whether the misconduct has prejudiced the defendant to the extent that he has been denied a fair trial. The important question in this regard is not whether the jurors kept silent with each other about the case, but whether each juror kept an open mind until the case was submitted to them.’ ” Cloutier, 178 Ill. 2d at 160-61, quoting 75B Am. Jur. 2d Trial §1610, at 379-80 (1992).
Indeed, courts have recognized “[i]t may *** be unrealistic to think that jurors will never comment to each other on any matter related to a trial.” Stockton v. Commonwealth of Virginia, 852 F.2d 740, 747 (4th Cir. 1988). Even the court of appeals in United States v. Resko, 3 F.3d 684, 690 (3d Cir. 1993), acknowledged, “when there are premature deliberations among jurors with no allegations of external influence on the jury, the proper process for jury decisionmaking has been violated, but there is no reason to doubt that the jury based its ultimate decision only on evidence formally presented at trial.” (Emphasis in original.) Though, as recognized in Dominguez, the Third Circuit Court of Appeals has since “retreated somewhat from Resko‘s stringent standard for investigation into jury misconduct” (Dominguez, 226 F.3d at 1248 n.13), limiting the ” ‘holding [in Resko] to the facts of that case, facts which [it] thought—and still think[s]—unlikely to recur’ ” (Dominguez, 226 F.3d at 1248 n.13, quoting United States v. Bertoli, 40 F.3d 1384, 1396 (3d Cir. 1994)), Resko‘s quoted acknowledgment is apt and survives, even as its holding has been limited and restricted to “facts unlikely to recur.” Clearly, some indication of occasional and isolated discussions in the jury room prior to submission does not always warrant inquiry or remedial action. In that regard, we find the trial court‘s action appropriate and sufficient here.
As for the speculative allegation that Juror A‘s conduct influenced other jurors, we would observe that courts have also tended to minimize the impact that one juror‘s views may have on others. See United States v. Yeje-Cabrera, 430 F.3d 1, 11 (1st Cir. 2005); United States v. Paneras, 222 F.3d 406 (7th Cir. 2000).
In Paneras, the court of appeals considered the impact of a cartoon drawn by a member of the jury. The district court had denied a motion for a new trial based upon the cartoon. As the court of appeals observed, the cartoon “was a humorous depiction of the defendant‘s activities as they were described at trial, and it did not make any reference to events that were not part of the evidentiary record nor expose the jury to any new evidence.” Paneras, 222 F.3d at 411. The court of appeals determined it could not conclude that the district court
“In this situation, it is significant that the cartoon expressed one juror‘s view of the case, and was subject to the scrutiny and the questioning of other jurors. We also note that the evidence of the defendant‘s fraud in this case was overwhelming, a factor which militates against a finding that the introduction of the disputed cartoon effected the jury‘s verdict.” Paneras, 222 F.3d at 411.
Those observations apply to this case as well. The jurors in this case were instructed, at the outset, to keep “an open mind” until they had “heard everything there is to hear.” When asked by the trial judge, upon Juror A‘s departure, whether they could still abide by that directive, they unanimously stated that they could and would keep open minds until the matter of sentencing was submitted to them. We have no reason to believe that they lied to the trial court when they made that affirmation and, obviously, neither did the judge, who had observed them throughout the trial—a trial in which the evidence amply supported the jury‘s verdict. In sum, this defendant received “precisely what due process required: a fair trial before an impartial and properly instructed jury, which found him guilty of every element of the charged offense[s].” See Rivera v. Illinois, 556 U.S. 148, 162, 173 L. Ed. 2d 320, 331-32, 129 S. Ct. 1446, 1456 (2009). Given the facts and circumstances of this case, we find no abuse of discretion in the trial court‘s handling of this matter.
We next consider Runge‘s contention that “the trial court erred in excluding as irrelevant the sexually violent person (SVP) petition filed against defendant,” which he characterizes as “a party admission bearing on his ability to conform his conduct to the law,” and his argument that “judicial estoppel and due process preclude prosecutors from presenting evidence that defendant could control his conduct after their earlier contrary position.”
We begin our discussion of these related issues with a review of principles of judicial estoppel. Judicial estoppel is an equitable doctrine invoked by the court at its discretion. New Hampshire v. Maine, 532 U.S. 742, 750, 149 L. Ed. 2d 968, 977-78, 121 S. Ct. 1808, 1815 (2001); People v. Caballero, 206 Ill. 2d 65, 81 (2002). As this court stated in Caballero, five elements are “generally required” before that discretion comes into play. The party to be estopped must have (1) taken two positions, (2) that are factually inconsistent, (3) in separate judicial or quasi-judicial administrative proceedings, (4) intending for the trier of fact to accept the truth of the facts alleged, and (5) have succeeded in the first proceeding and received some benefit from it. Caballero, 206 Ill. 2d at 80.
Here, after the filing of the SVP petition, the State obtained another expert opinion in the form of Dr. Dietz‘s assessment of defendant, wherein Dietz concluded that defendant could control his actions. Moreover, the circumstances of defendant‘s seven murders subsequently came to light, demonstrating defendant‘s capacity for the exercise of judgment and self-control in the selection of his victims and in the time and place chosen for the commission of the offenses. It seems self-evident that a party‘s position cannot be deemed “factually inconsistent” with a former stance if new facts provide an objective justification for a different position. To hold otherwise would tend to stymie the truthseeking function of legal proceedings. Thus, where as here the discovery of new facts justifies a change in position, and there is no indication of bad faith, judicial estoppel does not apply. We next consider whether the circuit court erred in excluding the SVP petition, which defendant claims was admissible as a “party admission.” We note, for purposes
Even if otherwise admissible, admissions, like any other evidence, are subject to exclusion where jury confusion might result. See generally People v. Cruz, 162 Ill. 2d 314, 348 (1994); United States v. Young, 248 F.3d 260, 268 (4th Cir. 2001). We certainly see that danger in this case, where the ultimate issues in the SVP proceeding and the subsequent criminal trial were not identical, where the two proceedings presented questions concerning defendant‘s state of mind at points in time two years apart, and where the expert opinion rendered in support of the SVP petition was formulated without the benefit of the facts surrounding defendant‘s seven murders. Having made that observation, we see no indication in the record that the circuit court excluded the proffered evidence on that basis. Rather, the court determined the SVP petition was “not an admission by a party opponent.” In that regard, we are not prepared to say that the SVP petition was not admissible or that it had no evidentiary value whatsoever; we are, however, convinced that, given its proper weight and impact—and disregarding its very real potential for confusing or misleading the jury—its admission would not have resulted in a different outcome. As we have already mentioned in our discussion of judicial estoppel, and as we will explain more in depth in our analysis of claims of prosecutorial misconduct hereafter, the circumstances of defendant‘s seven murders, in our view, unequivocally demonstrate defendant‘s capacity for the exercise of judgment and
Finally, we will acknowledge and briefly address defendant‘s summary argument—occupying less than one full page of his brief—that the State‘s “inconsistent positions” in the SVP proceeding and the subsequent criminal proceeding violate due process of law. In this “argument,” defendant cites, but does not discuss, the Supreme Court‘s abbreviated, per curiam decision in Green v. Georgia, 442 U.S. 95, 60 L. Ed. 2d 738, 99 S. Ct. 2150 (1979), and the Court‘s more recent decision in Bradshaw v. Stumpf, 545 U.S. 175, 162 L. Ed. 2d 143, 125 S. Ct. 2398 (2005). We note that the former decision does not discuss or explicitly address the consequences of a prosecuting authority taking inconsistent positions in different proceedings. In the latter case the Supreme Court found that the Court of Appeals was “wrong to hold that prosecutorial inconsistencies between the Stumpf and Wesley cases required voiding of Stumpf‘s guilty plea,” and the Court failed to reach, and thus “express[ed] no opinion” with respect to, the question of whether the State‘s “allegedly inconsistent theories” constituted a due process violation at sentencing. See Stumpf, 545 U.S. at 186-87, 162 L. Ed. 2d at 156, 125 S. Ct. at 2407-08. Defendant fails to explain how Green or Stumpf would justify our finding a due process violation in his case. Similarly, defendant cites our opinion in Caballero, but he provides no meaningful discussion of the facts of that case or the principles expressed therein. He makes no attempt to compare the facts of Caballero to his own circumstances. In short, defendant fails to demonstrate how his due process rights were violated and we see no basis for such a finding.
Defendant next contends that “denying depositions of the prosecution‘s experts, while allowing depositions of the defense experts, was an unbalanced, unauthorized,
In response to defendant‘s refusal, the trial court allowed prosecutors to depose defense experts with respect to the Pasanbegovic murders. Defense attorneys were not allowed to depose prosecution experts. Defendant argues that the sanction of allowing depositions is not authorized by section 115-6 of the Code of Criminal Procedure of 1963 (
“The refusal of the defendant to cooperate in such examinations shall not automatically preclude the raising of the aforesaid defenses but shall preclude the defendant from offering expert evidence or testimony tending to support the defenses if the expert evidence or testimony is based upon the expert‘s examination of the defendant. If
the Court, after a hearing, determines to its satisfaction that the defendant‘s refusal to cooperate was unreasonable it may, in its sound discretion, bar any or all evidence upon the defense asserted.” 725 ILCS 5/115-6 (West 2006) .
Defendant asserts that the statute does not give the court discretion to “improvise” other sanctions for a lack of cooperation. Defendant contends, “[t]he statute only allows the court to bar the entire affirmative defense, or alternatively to bar any evidence upon the defense asserted.” Defendant suggests that the “fair, balanced, and authorized sanction for defendant‘s minor lack of cooperation in relation to the Du Page County case would have been to bar defense expert testimony relying on the Du Page County murders based solely on what defendant told the experts about them, while allowing Dr. Dietz to rely on the facts of those murders, which were known from defendant‘s confessions and his wife‘s account of the murders.” Defendant opines that he was prejudiced by the depositions insofar as the “State learned what the defendant‘s experts would say, how they would say it, and what their courtroom demeanor would be.” In contrast, “the defense had little or no advanced knowledge of Dr. Dietz‘s testimony or demeanor.”
The State complains that defendant‘s refusal to cooperate was unreasonable and the sanction of depositions as a response thereto should be considered in conjunction with “the defense experts’ skimpy and tardy compliance with discovery.” Noting that the trial court is empowered to order depositions pursuant to
We find it unnecessary to decide whether the ordering of depositions was an appropriate “sanction” in this
While defendant may be dismayed that the “State learned what the defendant‘s experts would say, how they would say it, and what their courtroom demeanor would be,” and he suggests that “the defense had little or no advanced knowledge of Dr. Dietz‘s testimony or demeanor,” the truth of the matter is that any asymmetry in the discovery procedure was occasioned by defendant‘s unreasonable behavior, and the parties were, in any event, subject to certain basic obligations of disclosure in discovery, so there was little chance that either side would be surprised by the position taken by the other‘s experts.
As this court stated in People v. Pasch, 152 Ill. 2d 133, 181-82 (1992), the Supreme Court‘s decision in Wardius v. Oregon, 412 U.S. 470, 37 L. Ed. 2d 82, 93 S. Ct. 2208 (1973) (cited here by defendant), does not require discovery to be perfectly symmetrical. Nor does Wardius require reversal unless there is a substantial probability that the alleged error “may have infected the verdict.” Wardius, 412 U.S. at 479, 37 L. Ed. 2d at 90, 93 S. Ct. at 2214. We see no chance of that in this case. We do not reverse judgments upon pure speculation. See People v. Redd, 173 Ill. 2d 1, 39-41 (1996) (defendant‘s contention that a different result “probably” would have obtained had the court allowed standby counsel to cross-examine a witness was “purely speculative“). We are confident that familiarity with the nuances of the witness’ manner of testifying in this case would not have changed the outcome given the strength of the State‘s case.
The first of defendant‘s three arguments is founded upon two prosecutorial statements in closing argument. In the first, the prosecutor said that Dr. Stone “didn‘t seem fit to the challenge,” that “some of his accreditations were mail-ins. He mailed in a form and got a diploma.” The prosecutor‘s comments in closing were based upon a brief exchange with Dr. Stone in which the prosecutor asked Stone about his certification for the Association of Forensic Testing. Stone replied: “Involves credential review to a committee, related experience and then mandatory continuing education. And I was grandfathered in so in my case there was no actual exam, which there is today.” The prosecutor asked if he had to appear in front of a board or respond to peer questioning. Stone said that would be required if there were “any questions on the application” or if “the letters of reference don‘t check out,” otherwise “there‘s no actual face-to-face review with a committee.” The prosecutor stated: “So it‘s—basically it‘s a mail-in type of situation.” Stone replied: “Well again you mail in your application, credential review, right.”
The second component of defendant‘s first argument concerns another brief comment the prosecutor made in
“He criticized professionals at Rush and says he can see more than they can, but yet, when you hear testimony, marking up exhibits, remember it was the right parietal part of the brain, the right side of the brain. Well, Dr. Mayberg testified that he, Dr. Merikangas, had circled the left side.”
The defense objected, and the court overruled the objection, stating, “the jury has heard the evidence in this case.” Before moving on, the prosecutor asked, “How do you make that mistake?”
The second of defendant‘s three arguments is that the prosecutor, in the aggravation/mitigation phase of trial, asked improper questions concerning irrelevant victim impact evidence pertaining to other crimes committed by defendant. As defendant notes, this court, in People v. Hope, 184 Ill. 2d 39, 52 (1998), held that “the unforeseen effects of *** prior crimes on their victims are of no such assistance” in the capital sentencing process, as they are “simply too attenuated to be relevant.” The improprieties alleged here concern two questions posed to witnesses, neither of which was ever answered, and a brief statement by the prosecutor in an otherwise lengthy argument.
At the conclusion of the testimony of M.V., the first aggravation witness, the prosecutor asked M.V. to describe how defendant‘s assault and torture of her still
Another witness, Mensur Pasanbegovic, the father of the sisters who were murdered, testified regarding the circumstances of their disappearance. Before concluding the questioning of Pasanbegovic, the prosecutor asked whether Pasanbegovic had “erected a memorial in Sarejevo.” That question was cut off by an objection, which the court sustained. No other question was asked along that line.
During closing argument, the prosecutor made the following remarks concerning M.V.‘s experience:
“You want to talk about a natural life sentence. Take the victim‘s point of view. That 32 year old woman, when she testified up here, she was fourteen years old again. She was fourteen years old when she testified to you. She relived the horror of that night for you. And when she reflects back to that point in her life, when she was caused to think back on it, she sees the face of Paul Runge. She relives that horrific night, and what happened to her. She has been sentenced by Paul Runge to natural life.”
An objection was overruled.
The third and final contention of prosecutorial overreaching concerns the prosecutor‘s argument at sentencing that defendant‘s mother‘s death was not related to his assault upon M.V. The prosecutor observed that other young people lose parents and do not commit crimes as a result of their loss. The prosecutor argued: “There is no connection whatsoever between his mother‘s death and his actions and his crimes. There is a connection between his dad and his brother going away and leaving him behind.” After defense counsel acknowledged that defendant had had prior police contact before the offense against M.V., counsel stated: “His mother dies in his arms of cancer from a long debilitating disease. The first time his father and brother go out of town, he kidnaps and
“How many thousands, how many hundreds of thousands of children suffer the loss of a parent every year. With Paul Runge, he would have you believe within two weeks or maybe three weeks *** he went from the grieving over the loss of his mother to the horrific assault on [M.V.]
***
This was just the opportunity when his father, or no parental supervision was in the house. Yes, it is very sad when a parent dies at an early age. But the logic to equate that with why he is the way he is is fractured.”
At that point an objection was overruled. The prosecutor then stated: “Now, maybe we should muster all the FBI agents we can find and all the police officers and head over to all the orphanages.” An objection to that statement was sustained, and the prosecutor was directed to “refer to this case only.”
We note that prosecutors are generally accorded wide latitude in the content of their closing arguments. People v. Perry, 224 Ill. 2d 312, 347 (2007); People v. Evans, 209 Ill. 2d 194, 225 (2004). They may comment on the evidence and on any fair and reasonable inference the evidence may yield. Perry, 224 Ill. 2d at 347. Reviewing courts will consider the closing argument as a whole, rather than focusing on selected phrases or remarks, and will find reversible error only if the defendant demonstrates that the improper remarks were so prejudicial that real justice was denied or that the verdict resulted from the error. Perry, 224 Ill. 2d at 347; Evans, 209 Ill. 2d at 225. The complained-of questions and remarks in this case fall far short of that standard.
All of the comments were brief and isolated in the context of lengthy closing arguments, a factor we have found significant in assessing the impact of such remarks on a jury verdict. See People v. Harris, 225 Ill. 2d 1, 33 (2007); People v. Caffey, 205 Ill. 2d 52, 105 (2001).
Addressing defendant‘s arguments in the order we have presented them, we note, first, that Dr. Stone‘s certification for the Association of Forensic Testing was, essentially, a “mail-in” accreditation, as the prosecutor characterized it; Stone did not have to take an exam and he did not have to appear before a panel of his peers. Stone admitted as much. When the prosecutor, referring to the accreditation procedure, stated, “basically it‘s a mail-in type of situation,” Stone replied: “Well again you mail in your application, credential review, right.” Whether that characterization of Stone‘s credentials “denigrated” Stone‘s qualifications was a matter for the jury to decide. However, one way or the other, we do not believe that it played a significant part in the jury‘s assessment of his testimony, and that it is far more likely that the jury judged the credibility of Stone‘s testimony by considering it against the conflicting backdrop of defendant‘s conduct—conduct evincing an ability to control his behavior when circumstances dictated that he do so. Cf. People v. Urdiales, 225 Ill. 2d 354, 434 (2007) (“the attendant facts and circumstances of defendant‘s
The same is true of Merikangas’ testimony. The jury heard Dr. Mayberg correct herself, stating that Dr. Merikangas had indeed circled the right side of defendant‘s brain on the brain scan. We are confident that the jury judged Merikangas’ testimony on its merits, or lack thereof, not the prosecutor‘s brief and isolated remark.
With respect to defendant‘s second argument—regarding improper victim impact evidence—we note that the question asked of M.V. was never even answered, and an objection was sustained when the prosecutor asked Pasanbegovic about a memorial to his daughters in Sarejevo. The prosecutor‘s brief comments about M.V.‘s testimony appear to be an attempt to elicit sympathy for M.V. by describing the impact defendant‘s assault has had on her years after the incident. In that respect, the comments were improper pursuant to the reasoning espoused in Hope; however, we find they did not affect the overall fairness of the sentencing hearing. Our review of other cases supports that finding.
In People v. Kokoraleis, 132 Ill. 2d 235, 285 (1989), the prosecutor commented on the victims’ rights to get married, have families, have children, and spend time with their families. Although this court found that the prosecutor‘s comments were improper, the court concluded that the remarks did not affect “the overall fairness of the sentencing hearing.” Kokoraleis, 132 Ill. 2d at 285. This court reached the same conclusion in People v. Emerson, 189 Ill. 2d 436, 508-10 (2000), where the prosecutor argued:
“Her name was Delinda Byrd. Delinda Byrd, a victim in this case. She had a life. She had hopes. She had dreams. They were taken away from her by Dennis Emerson. They were taken away from her only because he cared about nothing. Nothing, but himself. The last moments of her life were spent struggling for breath while 90 percent of
her skin was being burned. Imagine her terror. Imagine her fear. *** *** This is the defendant that did that to her, that turned her into a corpse, who took away all her hopes and dreams and took away all of what she could contribute to society and to the community, and all of what she could contribute to everyone that knew her and enriched their lives.”
In Urdiales, a case that has remarkable similarities to this case—the jury heard the testimony of Dietz and Merikangas, as well as the details of defendant‘s multiple murders and the graphic testimony of a lone surviving victim—the prosecutor referred to the families the victim left behind and speculated about “how many children and grandchildren will not be born because of the actions of the defendant.” Urdiales, 225 Ill. 2d at 447. We found that the prosecutor‘s “brief and isolated comments, while improper, were not so prejudicial as to deprive the defendant of a fair sentencing hearing or change the outcome of the proceeding.” Urdiales, 225 Ill. 2d at 448. We so find in this case.
Finally, we believe it was proper for the prosecutor to note that thousands of children lose parents every year and do not embark upon a life of crime as a result, and to suggest that defendant committed the assault against M.V., not because of his mother‘s death, but due to the opportunity furnished him when his father and brother went out of town, leaving the house to defendant. We note, initially, that Dr. Stone did not testify with certainty that the death of defendant‘s mother affected defendant‘s ability to control his sexual sadism; rather, he testified on direct examination that it was “possible.” He admitted he could not be sure how much defendant‘s mother‘s death caused any of his actions. Dr. Leavitt testified that he did not find anything in defendant‘s early history or background information to be clinically significant. Merikangas testified that defendant was attached to his
“[N]o one reports his having had any unusual response to his mother‘s death. His father told a social worker that Mr. Runge seemed upset for about two weeks and was then fine. And it seems to me that a more significant issue was it was the first time that he had the whole house alone to do this in.”
There was in this instance no unequivocal testimony or evidence that the death of defendant‘s mother affected his ability to control his sexual sadism. There was at most speculation. On the other hand, there was also testimony suggesting that the loss of defendant‘s mother was not a significant factor in the sexual assault and torture of M.V.
As this court has observed, a prosecutor may comment on the facts and legitimate inferences that may be drawn therefrom. People v. Enis, 163 Ill. 2d 367, 407 (1994). It has been held that prosecutors may discuss subjects of common experience or common sense in closing argument as well. See People v. Beard, 356 Ill. App. 3d 236, 242 (2005). Indeed, since this court has acknowledged that jurors do not leave their common sense behind when they enter court (People v. Steidl, 142 Ill. 2d 204, 238 (1991)), it would seem proper for prosecutors to couch arguments in those terms and make appeals thereto.
That is what the prosecutor did in this case, arguing that criminal activity is not a normal consequence of the loss of one‘s mother and that a more reasonable explanation for defendant‘s assault on M.V. was, as Dietz suggested, the opportunity furnished when defendant‘s father and brother went out of town, leaving him alone in the house.
In sum, we find that the prosecutorial conduct of which the defendant complains was either proper or was
In the latter regard, the evidence adduced at the guilt/innocence phase was, in our opinion, wholly inconsistent with defendant‘s claims that he could not control his behavior or that his judgment was impaired. The evidence in fact showed that defendant, in pursuit of sexual gratification, exercised judgment and self-control in the selection of his victims and in the time and place chosen for the commission of the offenses. He did not commit offenses in public. He was able to refrain from criminal conduct during an extended period in which he knew he was under surveillance. He obviously would not have committed the crimes if police had been present. His actions showed planning and organization in that he brought supplies with him to carry out the crimes. He killed his victims after the sexual assaults so they would not be around to testify against him. We cannot help but notice the similarities to the defenses advanced and rejected in People v. Urdiales, 225 Ill. 2d 354 (2007). They were properly rejected here as well. The evidence overwhelmingly supported defendant‘s guilt and the jury‘s verdict.
With respect to the jury‘s final verdict, finding death to be the appropriate sentence, we again conclude that prosecutorial error could not have affected the outcome. As we have heretofore chronicled, the evidence in aggravation was overwhelming. The lone survivor of an assault by defendant testified extensively and graphically to the torture—mental and physical—that defendant inflicted upon her. Defendant‘s summary accounts of the sexual assaults and murders of seven other victims were admitted as evidence. Although defendant, in mitigation, supplemented his psychological evidence from the guilt/
Defendant next argues that “death is cruel and unusual punishment for crimes committed under the influence of a neuropsychological disorder that may have biologic causes, that distorts reality, diminishes impulse control and memory, and for which state legislatures provide for civil commitment and medical treatment.” In support of this argument, defendant notes that the Supreme Court has held the eighth and fourteenth amendments forbid imposition of the death penalty on offenders who were under 18 years of age when their
“The death penalty is cruel and unusual punishment inconsistent with evolving standards of decency in light of the progress that medical science is making in understanding sexual sadism. Murders influenced by sexual sadism are less culpable than murders committed by normal adults motivated by greed or anger. Punishment for such offenders should allow for rehabilitation potential with the aid of medical treatment and exclude punishment by death.”
We note that defendant is neither under the age of 18 nor mentally retarded. He is not “guilty but mentally ill” as that term is used in subsections (c) and (d) of section 6-2 of the
In any event, as we have noted, the evidence adduced at trial overwhelmingly established that this defendant could control his behavior when it suited his purposes, and the judgment he exercised in the planning and commission of these offenses showed no signs of impairment. These were premeditated acts. Defendant would have us believe that the murders he committed after these sexual assaults were somehow different and “less culpable” than the murders committed by other criminals. We fail to see the difference between this defendant and any other who kills his victim in order to prevent the victim from testifying against him. We adhere to our prior holdings, and we find, under the circumstances of this case,
Finally, we acknowledge defendant‘s argument that the Illinois death penalty statute violates due process under Apprendi v. New Jersey because the State is not required to prove beyond a reasonable doubt that, after weighing the factors in aggravation and mitigation, death is the appropriate sentence. As defendant is well aware, we have addressed and rejected that argument in People v. Thompson, 222 Ill. 2d 1, 52-54 (2006), People v. Mertz, 218 Ill. 2d 1, 93-94 (2005), and People v. Ballard, 206 Ill. 2d 151, 202-05 (2002). We decline to revisit the issue.
We find in defendant‘s arguments no basis for reversal or remand. Although defendant has not separately argued that the evidence is insufficient to support his death sentence, it is our responsibility in every death penalty case to consider the appropriateness of the sentence. People v. Heard, 187 Ill. 2d 36, 85 (1999). After careful consideration of the evidence adduced, we concur in the jury‘s determination that death is the appropriate penalty. Pursuant to
For the reasons stated herein, we affirm the defendant‘s conviction and death sentence. We direct the clerk of this court to enter an order setting Tuesday, November 10, 2009, as the date on which the sentence of death shall be carried out. Defendant shall be executed in the manner provided by law.
Affirmed.
Supplemental Opinion Upon Denial of Rehearing
In his petition for rehearing, defendant charges that we “omitted analysis of a key indication of juror bias,
The personal information to which defendant refers was very general, usually limited to the prospective juror‘s name, the area of the county wherein he or she resided, and other information only as considered pertinent to issues that might arise during trial, such as whether the juror would be predisposed in the reception of psychiatric testimony, and whether he or she, or a family member, had been a victim of a crime. At the time of their selection, having disclosed that information, the jurors, knowing that they would be hearing a death penalty case, assured the court and the parties that they could give each side a fair trial. Clearly, the disclosure of information in defendant‘s presence was not a significant cause for concern at that point or during the guilt/innocence and eligibility phases of the trial-for anyone on the jury. Of course, as to that phase of the trial, defendant would have no motive to harm a juror if he were acquitted and no opportunity to do so personally if he were not.
In any case, the event alleged to have caused Juror A concern was the revelation that Charlene Runge had been granted immunity. The jurors did not learn of Charlene Runge‘s immunity until the aggravation/mitigation phase of sentencing. Whether in fact that was a real concern for Juror A-who was also upset over his loss of income while serving on the jury-we note that he was, according to Juror B, able to joke about Charlene Runge (making up a silly song about her), and he
We would observe that this court, and the federal court of appeals, in circumstances more compelling than these, have found that no posttrial inquiry into jurors’ fears was indicated. In People v. Whitehead, 169 Ill. 2d 355 (1996), overruled in part on other grounds, People v. Coleman, 183 Ill. 2d 366 (1998), defendant alleged, in a postconviction petition, that he was denied the right to an impartial jury by publication of the jurors’ names and addresses in a local newspaper, his theory being that the jurors thereby acquired the incentive to convict defendant because of their fear of him and their desire to conform to prevailing community pressures. Whitehead, 169 Ill. 2d at 401. In support of his claim, defendant included, inter alia, the affidavits of juror Charlene Joneson, Rose
On these facts, this court found that defendant had “not demonstrated a substantial violation of constitutional rights.” Whitehead, 169 Ill. 2d at 401. This court identified the vital question to be determined as “whether the jurors had been influenced and prejudiced to such an extent that they would not, or could not, be fair and impartial.” Whitehead, 169 Ill. 2d at 401-02. While acknowledging that the publication of jurors’ names and addresses was bound to have some impact, this court concluded: “We cannot infer *** on this basis that an honest juror would therefore give sway to his emotions and disregard the fundamental requirement of a fair trial and decide to convict a person in order to be absolutely secure.” Whitehead, 169 Ill. 2d at 402-03.
When the matter subsequently came before the Seventh Circuit Court of Appeals, that court reached the same conclusion. Whitehead v. Cowan, 263 F.3d 708 (7th Cir. 2001). The court of appeals, citing Smith v. Phillips, 455 U.S. 209 (1982), noted, “the mere fact that the jury was exposed to something which could theoretically affect its vote is not sufficient to require a new trial.” Whitehead, 263 F.3d at 722. The court observed: “Evidence that the jury was displeased that their anonymity was lost in a murder trial *** is a long way from evidence that jurors were
The facts and circumstances of this case present even less cause for concern and inquiry than those at issue in Whitehead. The jurors’ addresses in this case were not disclosed to the defendant or published in a public forum; therefore, neither the defendant nor the public would know where the jurors resided. Thus, the defendant in this case would have no more information about the jurors than the multitude of other defendants in criminal cases prosecuted in this state. The one juror (Juror A) who did express concern-genuine or otherwise-after learning (during sentencing) of the immunity granted to Charlene Runge was dismissed from the jury and did not sign the sentencing verdict. Unlike the situation in Whitehead, where the issue arose posttrial, the trial court in this case questioned the remaining jurors after Juror A‘s dismissal, and their response to the court was consistent with jurors who were willing and able to decide the case on its merits alone. Moreover, as we have noted, the court in this case had the benefit of Juror B‘s reports, which raised concerns only over Juror A‘s statements and activities. Finally, we underscore, again, the illogical premises posited by defendant. When the jurors learned of Charlene Runge‘s immunity, they had already found defendant guilty and eligible for the death penalty. Obviously, he could not have been a threat to them personally, irrespective of the final outcome of deliberations, and Charlene Runge would have been an unlikely threat, given her cooperation with the police.
Given the facts and circumstances of this case, we find that the trial court acted appropriately in this regard
JUSTICE BURKE, dissenting:
I respectfully dissent from the majority decision on the juror misconduct issue. The majority concludes that the trial court committed no error in retaining Juror A for the guilt phase of defendant‘s trial and finds that the court timely removed Juror A during the sentencing phase. For the reasons below, I do not agree with the first conclusion and would grant defendant a new trial.
On the fifth day of the nine-day guilt phase of defendant‘s trial, at the conclusion of the State‘s case in chief, Juror B sent a note to the trial judge expressing concerns about Juror A‘s conduct, including:
- Juror A cheered loudly in the jury box, saying “yes. Yes, yeah” after the State made some point that disproved a defense theory;
- Juror A checked his cell phone for messages during a break, although the jurors had been instructed not to do so;
- In the jury room that morning, one juror, reviewing her notes from trial, asked whether anyone knew if the term used in testimony was “transferrance” [sic] and Juror A responded in the affirmative; and
- In the jury room that morning, Juror A and at least one other juror were discussing a television show where a mother, her boyfriend, and the babysitter were implicated in the death of a baby, and Juror A “repeated an exact quote” the assistant State‘s Attorney had made a few days prior. The quote was, the “only thing worse than committing crimes like these would be to implicate an innocent person.” The jury had been twice instructed to disregard this comment as it had been stricken.
Following Juror B‘s interview, defense counsel requested a mistrial. Counsel noted that the jurors were obviously discussing the case before all the evidence had been presented; in fact, before defendant had even begun to present his case. Defense counsel further noted that Juror A, if his mind had not already been made up, certainly was evincing “acute” prejudice toward the defense through his comments and actions. Counsel requested that the trial court dismiss Juror A. The State, in response, argued there was no evidence to show Juror A‘s mind had been made up and described his conduct as, at most, “bad behavior.” The court denied defendant‘s motion for a mistrial and declined to rule on his request to dismiss Juror A until a later time. The jurors were returned to the courtroom and admonished not to discuss the case. The court did not question Juror A or any other juror regarding Juror A‘s conduct, nor did the trial court ascertain whether each of the jurors could keep an open mind until the case was submitted to him or her.
The next day, during the testimony of a defense expert, Juror A threw his notebook against the jury box wall. At this time, defense counsel renewed his motion to remove Juror A because he had shown contempt for the defense. The trial judge conducted an in camera interview of Juror A. Juror A advised the judge that he was having “some difficulty, but I have my own opinions and things.” Juror A further indicated that many of the jurors were frustrated because they could not write down
“THE COURT: Did you formulate any opinion about this case at all, whether or not-
JUROR A: No final opinions because I don‘t have all the evidence and facts, yet.
THE COURT: I told earlier [sic], at the beginning of the case, the defendant is presumed to be innocent of the charge against him.
JUROR A: Absolutely.
THE COURT: You still understand that?
JUROR A: Yes, I do.
THE COURT: Do you have any problem being able to follow that rule of law basically?
JUROR A: No, sir. No.
THE COURT: Okay. Do you have any opinions as to whether or not the defendant‘s guilty or innocent of the charge against him at the present time?
JUROR A: Not completely, no.
THE COURT: What do you mean by that?
JUROR A: Well, I don‘t have all the facts.
***
THE COURT: Is there anything about what‘s happened with the trial so far that would in any way prevent you from giving either side in this case a fair trial.
JUROR A: No.”
The court dismissed Juror A back to the jury room. Defense counsel again requested that Juror A be excused. The court refused, taking Juror A at his word. The court found that Juror A threw his notes because he was frustrated, which the trial court did not view as unusual. The court did not inquire of any other juror as to how Juror A‘s conduct may have affected them. Thereafter, the jury returned guilty verdicts against defendant.
Both the United States and Illinois Constitutions guarantee an accused the right to trial by an impartial jury.
The majority acknowledges that a trial by a biased jury deprives a defendant of a fair trial and warrants reversal. Yet, even with the brazen conduct of Juror A, the misconduct of the other jurors in discussing the evidence and stricken comments, and the lack of even minimal inquiry by the trial court to ascertain whether Juror A or the other jurors remained impartial, the majority concludes that the facts support the trial court‘s determination to allow Juror A to remain on the jury through the guilt and eligibility stages. I do not agree.
The majority first relies on the fact the trial court examined Juror A during voir dire, at which time Juror A indicated that he could be fair, that he held no strong beliefs about the death penalty, and that he would consider evidence regarding insanity. I disagree that the voir dire questioning can support a finding that the trial court acted properly.
This questioning occurred long before Juror A engaged in misconduct and has no bearing on what ultimately occurred at defendant‘s trial. The voir dire conducted prior to trial is irrelevant to whether Juror A
Instructive on this question is People v. Peterson, 15 Ill. App. 3d 110 (1973). In Peterson, after the jury had been sworn, one of the jurors approached defendants’ attorney and stated she “was praying that the defendants will plead guilty” so she could go home. Peterson, 15 Ill. App. 3d at 110. Defense counsel requested that the court remove the juror. The record discloses there was little discussion of the matter and that the trial court summarily denied defense counsel‘s request. Peterson, 15 Ill. App. 3d at 111. On appeal, the appellate court disagreed with the State‘s contention that the juror‘s comment “did not warrant any inquiry on the part of the trial judge to determine the juror‘s attitude because her impartiality had already been determined during the voir dire.” Peterson, 15 Ill. App. 3d at 111. Rather, the court concluded that “the remark itself vitiates any previous conclusion made as to impartiality on voir dire, and, without further inquiry, there was no way for the trial court to make a sound judgment on her present state of mind.” Peterson, 15 Ill. App. 3d at 111.
As in Peterson, Juror A‘s misconduct, not only in cheering in the jury box when the State made a point at a “monumental moment,” but also in throwing his notes during the defense expert‘s testimony, “vitiates any previous conclusion made as to impartiality on voir dire.” Peterson, 15 Ill. App. 3d at 111. As such, the majority‘s reliance on voir dire questioning is inappropriate in determining whether Juror A remained impartial at defendant‘s trial.
The majority further relies on the fact that, during the guilt phase of the trial, the judge repeatedly admonished the jurors not to discuss the case before all the evidence was heard. Again, I do not agree that this action was sufficient. The record firmly establishes these
The majority also emphasizes that the determination of juror impartiality rests within the sound discretion of the trial judge: “The applicable standard of review, after the trial judge has made an appropriate inquiry, is an abuse of discretion standard ***.” (Emphasis added.) 234 Ill. 2d at 105. There is no question this is a correct statement of the law. However, I do not believe that the record is sufficient to demonstrate the trial judge in the case sub judice properly exercised his discretion since there is no evidence that he conducted an “appropriate” inquiry.
In United States v. Resko, 3 F.3d 684 (3d Cir. 1993), the Third Circuit emphasized the importance of an adequate record so that a reviewing court would have the means to ascertain the propriety of the trial court‘s decision. In Resko, seven days into the nine-day trial, the district court learned that the members of the jury had been discussing the case during recesses and while waiting in the jury room. Resko, 3 F.3d at 687. Defendant‘s attorneys moved to question each juror individually, but the court denied the request. Resko, 3 F.3d at 687. The court also denied defense counsel‘s motion for a mistrial. Resko, 3 F.3d at 688. Rather, the court summoned the jurors, informed them collectively of the problem, and gave them a two-part written questionnaire. The questionnaire asked the jurors: (1) whether he or she had discussed the facts of the case with one or more of the jurors; and (2) if yes, whether, because of those discussions, he or she had formed an opinion about the guilt or
The Resko court found that the method utilized by the district court was inadequate to fulfill its responsibility of determining whether the defendants suffered any prejudice from the jury‘s misconduct. Resko, 3 F.3d at 691. The court concluded that the district court should have engaged in further inquiry, such as individualized questioning, to determine whether the jurors maintained open minds. Resko, 3 F.3d at 691. Even though every juror admitted to premature discussions, the district court failed to engage in any additional investigation beyond the cursory questionnaire. Because of this, “there [wa]s no evidence in the record one way or the other regarding prejudice to the defendants.” Resko, 3 F.3d at 690. Specifically, without further inquiry by the district court, the reviewing court had “no way to know the nature of the jurors’ discussions and whether these discussions in fact resulted in prejudice to the defendants.” Resko, 3 F.3d at 690. Moreover, “the absence of information and the consequent inability of the district court meaningfully to assess the nature and extent of the jurors’ premature discussions in order to ascertain whether there ha[d] been any prejudice to the defendants
In United States v. McClinton, 135 F.3d 1178 (7th Cir. 1998), two jurors were overheard by other jurors making potentially racist comments, which also appeared to indicate that at least one of the jurors had prejudged the defendants’ guilt. McClinton, 135 F.3d at 1185. When one of the defendants moved for a mistrial, the district court questioned each of the jurors individually, asking, “whether they had any personal knowledge of the conversation, heard any other statements of this sort, shared any of these beliefs about African-Americans, or had any bias or prejudice toward African-Americans.” McClinton, 135 F.3d at 1185. The court further inquired of each juror, whether “the statements influenced the jurors in any way; whether they could keep an open mind about the defendants’ guilt or innocence; and whether they could not be impartial for any reason.” McClinton, 135 F.3d at 1185. Not only did the district court judge question each juror individually and in detail, she also allowed the attorneys to question the jurors. In the course
In United States v. Vasquez-Ruiz, 502 F.3d 700 (7th Cir. 2007), the Seventh Circuit was again faced with the problem of juror misconduct. Interpreting McClinton, the Vasquez-Ruiz court noted: “The broader point here [in McClinton‘s holding] is that the district court‘s actions resulted in the development of a record that enabled both that court and this one to evaluate the degree of prejudice that had developed, and to come to a reasoned conclusion on the question whether the curative steps were adequate.” Vasquez-Ruiz, 502 F.3d at 706. In Vasquez-Ruiz, however, the court found the record was “too sparse” and lacked information. Therefore, the reviewing court could not conclude there was no prejudice to the defendants from juror misconduct. Vasquez-Ruiz, 502 F.3d at 707.
The unifying principle in these cases is that, once it is established there has been jury misconduct, the trial court must make an adequate record. In the absence of an adequate record, the reviewing court cannot make an intelligent review of the trial court‘s conduct.
Applying these principles to the case at bar, the trial judge should have interviewed Juror A after the court learned that he cheered in the jury box. The majority
I additionally believe that the trial judge also should have inquired of Juror B whether Juror A‘s cheering influenced her in any way. This is especially true in light of the fact she admitted to the court she was “aghast” by Juror A‘s conduct and believed it “horribly” and “really” inappropriate. Instead of ascertaining the effect Juror A had on Juror B, the trial court simply sent Juror B back to the jury room. Lastly, I believe that when the court received Juror B‘s note and became aware of the misconduct of Juror A and others, the judge had a responsibility to inquire of all of the jurors whether Juror A‘s misconduct had any effect on their opinions or beliefs in the case.
The trial court failed to engage in any investigation after Juror B reported misconduct by Juror A and other jurors. Thus, the trial court possessed no ability to meaningfully assess the situation. There is simply no way to know whether Juror A‘s cheering or the premature discussions of the evidence influenced any of the jurors to the extent that they were no longer impartial. The trial court had no means to evaluate the jurors’
The facts of the case sub judice are akin to Resko and Vasquez-Ruiz. Here, we have unequivocal proof of juror misconduct, yet the trial judge did nothing to make an adequate record from which it could make a reasoned decision about the jurors’ continued impartiality. Accordingly, we too can only speculate.
It is true that the trial judge did question Juror A following the “note throwing incident.” Regarding this event, the majority states:
“We would observe that Juror A must have realized at th[is] juncture that certain negative answers to the court‘s questions would likely have gotten him off the jury and returned him to gainful employment if that was his desire. Yet, he did not follow that course. His diligence in trying to take notes during the defendant‘s case seems to confirm his response to the court that he had formed ‘no final opinions.’ If he had, what would be the point of taking notes?” (Emphasis added.) 234 Ill. 2d at 121-22.
I respectfully submit that the majority is engaging in pure speculation here. One could just as easily conclude that Juror A desired to remain on the jury because he had developed a bias against defendant and wanted to stay on the jury to convict him. It is possible that Juror A took notes in order to better sway the other jurors to his biased view. As the court in Resko stated, “once a juror expresses his or her views in the presence of other jurors, he or she is likely to continue to adhere to that opinion and to pay greater attention to evidence presented that comports with that opinion.” Resko, 3 F.3d at 689. Moreover, one could also argue that the evidence tends to support this alternative conclusion since the record shows that the jurors were discussing transfer-
Despite the inadequacy of the record, the majority concludes that there are insufficient facts and circumstances to overturn the trial court‘s determination that Juror A was qualified to serve. In support of its conclusion, the majority relies upon United States v. Harris, 908 F.2d 728 (11th Cir. 1990), and Davis v. Woodford, 384 F.3d 628 (9th Cir. 2004).
With respect to Harris, the majority finds:
“We believe Juror B‘s report of Juror A‘s ‘cheering’ is at least as ambiguous, as to intent and context, as the remark attributed to the juror in Harris. Significantly, Juror B reported that Juror A was ‘cheering out loud vocally’ when ‘the prosecution had made some points.’ If that were true, the parties and the trial judge would have heard it if they were in the courtroom. At one point during her report, Juror B told the trial court, ‘I think you had gone back to have a discussion, maybe came back out. I can‘t remember exactly when it was.’ Of course, if the parties and the trial judge were out of the courtroom, the ‘cheering’ could hardly have occurred contemporaneously with ‘a monumental point’ in the prosecution‘s cross-examination, as Juror B represented.” (Emphases in original.) 234 Ill. 2d at 123.
Juror A‘s “cheering” would not be ambiguous, either in intent or context, if the trial court had simply questioned Juror A about it. Moreover, the majority‘s comments regarding the timing of the cheering are again speculative. Had the trial court inquired of Juror A, we would know precisely when the comment was made and whether it was truly a “monumental” point of the State‘s case.
Moreover, Harris is not persuasive authority. In Harris, in addition to finding the comment ambiguous, the Eleventh Circuit noted that the district court refused to investigate the juror‘s remark because “after several
The Grooms court cited no authority for this proposition, which is contrary to the principles of jury deliberation and defies common sense. Jurors are not supposed to evaluate evidence and form an opinion on the merits of the case until all the evidence has been heard, they have been properly instructed by the court, and they assemble as a group for deliberation. This is so because, “once a juror expresses his or her views in the presence of other jurors, he or she is likely to continue to adhere to that opinion.” Resko, 3 F.3d at 689. The Grooms decision is poorly reasoned and, in my view, warrants rejecting Harris as persuasive authority.
I also believe the majority‘s reliance on Davis is misplaced. Unlike the case at bar, Davis did not involve any allegation of juror misconduct. Rather, at issue in Davis was whether a juror‘s note asking questions about the death penalty indicated juror bias. Davis, 384 F.3d at 652-53. Accordingly, the Davis court did not engage in any analysis regarding juror misconduct, the relevant question here.
Further, I disagree with the majority‘s statement that there was “even less evidence of juror bias” here “than
Addressing the question of whether the impartiality of other jurors was adversely affected by Juror A‘s misconduct, the majority finds that because Juror B, the foreperson, was ”extremely diligent” in reporting Juror A‘s improprieties, and her concerns centered only on Juror A, “[i]t is a reasonable inference that she would have reported others had she believed there was a need to do so.” 234 Ill. 2d at 127.
Again, this is pure speculation on the part of the majority. I note that Juror B was hesitant to bring these matters to the attention of the trial judge and that she did not want the other jurors to know she was reporting the misconduct. Thus, one could just as easily conclude that Juror B turned a blind eye to other problems or failed to report them because she was concerned the rest of the jury would perceive her as a “troublemaker.” After all, Juror B stated that Juror A was popular and well-liked on the panel, that he was “really nice,” “very witty,” “very clever,” and “keeps morale going well.” According to Juror B, “everyone really really like[d] [Juror A].”
In support of its conclusion that the trial court‘s actions in this case were “appropriate and sufficient” (234 Ill. 2d at 129), the majority comments that courts tend to “minimize the impact that one juror‘s views may have on others.” 234 Ill. 2d at 129. The majority relies on United States v. Yeje-Cabrera, 430 F.3d 1 (1st Cir. 2005), and United States v. Paneras, 222 F.3d 406 (7th Cir. 2000), to support this rationale. Neither case is persuasive here.
In Yeje-Cabrera, a juror sent a note to the district court judge stating her belief that the defendants should be cross-examined. There was no evidence she expressed this view to other jurors or that they were aware of the note. Thereafter, the district court strongly admonished the jurors regarding the burden of proof and the fact they were not to discuss the case. The court further instructed the jurors that if each could not follow these instructions, he or she was to speak to the clerk. The court then polled the jury as a whole, asking for a show of hands as to whether any had discussed the case. No
Yeje-Cabrera is clearly distinguishable from the case at bar. First, the note in Yeje-Cabrera did not demonstrate bias, while Juror A‘s conduct in this case did. Moreover, unlike Yeje-Cabrera, there is no question in this case that other jurors were exposed to and were aware of Juror A‘s conduct. Further, in Yeje-Cabrera the court observed that, “[e]ven if the one juror had communicated her views to the other jurors, there is also no reason to think those jurors were dissuaded from following the instructions of the judge.” Yeje-Cabrera, 430 F.3d at 11. Here, in contrast, the record clearly discloses that other jurors did not follow the court‘s instructions or directives. Finally, and perhaps most important, unlike Yeje-Cabrera, the jurors in this case were not admonished following the cheering incident or the note-throwing incident in any manner, let alone told that if they had any sort of problem, they should contact the clerk or the court. Thus, Yeje-Cabrera simply does not support the conclusion that the trial judge did not err in this case.
Paneras is similarly inapposite. In Paneras, the juror, a professional artist, drew a humorous depiction of the defendant‘s acts as described during the trial. The district court found that the conduct was “fairly benign.” Paneras, 222 F.3d at 411. Here, in contrast, Juror A‘s conduct in cheering and throwing his notes in the jury box during the course of trial cannot, in any sense, be described as “benign.” Moreover, the challenged conduct in Paneras occurred during jury deliberation, the time when the jurors should be discussing the case, expressing their views, and reaching a decision. In this case, the
The majority further relies on the collective questioning of jurors, and the trial court‘s reminder to them that they were not to arrive at any conclusions before all the evidence was heard. When asked whether they could still comply with this directive, the jury responded in the affirmative. The majority states, “We have no reason to believe that they lied to the trial court when they made this affirmation,” and concludes that “under the circumstances, we cannot say that the trial court erred in not conducting a more extensive inquiry or questioning jurors individually before proceeding.” 234 Ill. 2d at 131.
I find this reasoning to be faulty. First and most importantly, this questioning occurred during the sentencing phase, not during the trial. During the guilt phase, the trial court never inquired collectively, let alone individually, as to whether the jurors could comply with this directive or whether they remained impartial. Whether the jurors could comply with this directive at sentencing, after already convicting defendant, is irrelevant to whether they remained impartial during the guilt phase.
Moreover, through this collective admonishment, the circuit court allowed the jurors to decide their own impartiality. This is improper. “It has been held that jurors themselves are incapable of knowing the effect which prejudicial matters might have upon their unconscious minds.” People v. Hryciuk, 5 Ill. 2d 176, 184 (1954). Again, I do not believe reliance on this belated collective questioning is appropriate to support a finding that the trial court acted properly.
The majority acknowledges that a trial judge has a
Yet here, where there was obvious misconduct by Juror A and other jurors in a capital case, the trial judge did nothing to determine what effect Juror A‘s misconduct had on the other jurors, nor did it ascertain whether all the jurors remained impartial during the guilt phase. It is the failure to inquire, in my mind, that constitutes reversible error and warrants a new trial. I do not agree with the majority‘s conclusion that “defendant received ‘precisely what due process required: a fair trial before an impartial and properly instructed jury.‘” 234 Ill. 2d at 131, quoting Rivera v. Illinois, 556 U.S. 148, 162 (2009). Because of the trial judge‘s failure to question the members of the jury, there are insufficient facts from which to make this determination.
I recognize that the crimes at issue here, described in lengthy detail by the majority, were horrific. But it is precisely these types of cases that test our commitment to the principle of law. We must not allow ourselves to be swayed by emotion. Given Illinois’ past history with capital cases, the majority‘s opinion sends the wrong message about how these cases will be treated in Illinois.
Because I believe defendant is entitled to a new trial, I need not address, or render any findings, regarding the
JUSTICES FREEMAN and KILBRIDE join in this dissent.
Opinion filed June 18, 2009.-Rehearing denied September 28, 2009.