*1 of remarks of the sponsor reason. The very are typical: amendment a severability the Amendment has importantly,
“Most dispute in the is to the Bill that event there court clause found to any of that in part and resolution will not affect or unconstitutional compliance be out Assem., (83d the Bill.” Ill. remaining Gen. portion 22, 1984, Proceedings, House June find exclusion is severable exemption thus We act. from the remainder court of reasons, For we affirm the circuit the above and declare the exclusion Sangamon exemption County invalid.
Judgment affirmed. (No. 61239.
(No. 63683. ILLINOIS, Appel- THE STATE OF THE PEOPLE OF SANCHEZ, lee, HECTOR REUBEN Appellant. Rehearing Opinion December 1986. filed 30, 1987. January denied *10 JJ., CLARK, C.J., SIMON, concur- and GOLDENHERSH dissenting part. ring part *11 Donald and Collins, Bargione, B. Christopher George Bertelle, Chicago, of Bertelle, Collins, of Uscian & L. Cima, of Waukegan, appellant. and Lyn of General, Springfield F. Hartigan, Attorney Neil
251 Stewart, (Roma General, J. Solicitor and Mark L. Rotert General, G. of Fickinger, Attorneys Joan Assistant Chicago, of for the counsel), People. RYAN delivered of
JUSTICE the court: opinion Sanchez, codefendant, Hector Reuben a along with Peters, Jr., Warren was charged under an indictment 38, with two of (Ill. 1983, counts murder Rev. Stat. ch. pars. 1(a)(1), (a)(3)), aggravated kidnaping (Ill. Rev. 9 — 38, 1983, Stat. ch. rape Stat. par. 1(a)(1)), (Ill. Rev. 10 — 38, 1983, ch. par. deviate sexual assault 1(a)), (Ill. 11 — 1983, 38, Rev. Stat. ch. 3(a)), and par. attempted 11 — (Ill. 1983, murder Rev. Stat. ch. 38, par. The 4(a)). 8 — stemmed from the charges abduction and of slaying Michelle Thompson 4, 1984. Rene February an Valentine, of Ms. acquaintance was shot Thompson, and wounded during incident. Peters’ case was sev ered, and he was tried and convicted murder on July 14, 1984.
Sanchez, later, who was tried was found all guilty charges in the jury circuit court Lake County. He waived jury as the first in his phase sentencing hearing, and the trial judge found the existence of statu tory aggravation 38, factors. ch. (Ill. 1983, Rev. Stat. par. 1(b)(6).) then there determined that 9 — were no mitigating factors sufficient to preclude imposi tion of the death and the penalty, defendant was sen tenced to death. He was also concurrent terms given for the years other offenses. The sentence was Ill. stayed (87 2d R. 609(a)) pending direct to this appeal (Ill. 1970, VI, court Const. art. 4(b); sec. 87 Ill. 2d R. 603). Sanchez relief under section 2—
Subsequently, sought 1401 of the Code of Civil Procedure Stat. (Ill. Rev. ch. His par. 1401). petition was dismissed 2 — without an hearing. An from that dis- evidentiary appeal *12 court, and we granted
missal was taken to the appellate 302(b) to this court under Rule appeal a transfer of the has consolidated Ill. 2d R. That been (87 302(b)). appeal are now his direct and both cases before appeal, with this court. that on the Feb- evening
Rene Valentine testified as D. La- 3, 1984, he went to a known nightclub ruary met the de- Gurnee, there, Illinois. he While ney’s knew her because ceased, Michelle Valentine Thompson. Martinez, with whom Valentine she was Pablo dating a.m., 12:30 Valentine then At about living. was in the lot. parking out to car went Valentine’s Thompson it from oppo- men the car and entered Two approached man, while One, Thompson, sides. a black grabbed site Rican, other, gun. Thompson a Puerto produced man. The taken into vehicle the black another more to a Puerto Rican escorted Valentine gunpoint him twice of the lot and shot parking secluded area him. later identified not kill Valentine the chest but did defendant, Hector Reuben Sanchez. the assailant as the nar- Jr., man in Valentine’s Peters, the black Warren rative, against the bulk evidence provided of the murder He had been tried convicted Sanchez. sen- trial was not before Sanchez’ but Thompson against he for the State tenced until after testified 3, Peters, that on February He testified Sanchez. had Forest Heinz another named person Sanchez and in the vicinity a restaurant planning burglarize been the restaurant earlier had “cased” They of D. Laney’s. Peters returned Sanchez and in the and later evening, in the in Peters’ car sitting were Laney’s. They to D. and Thompson. Valentine they spotted lot when parking Pe- to them. talking over and Sanchez proposed going or what had a gun, not know that Sanchez ters did intentions were. Sanchez’ to his to take the woman Peters
Sanchez instructed car, while off with Valentine. Within sec- Sanchez went like a onds, gunshot. Peters heard what sounded car, Sanchez returned to Peters’ produced pair them handcuffs from his coat and put Thompson. *13 then to Sanchez’ home. Sanchez took They proceeded entered, time Thompson into the house. the Peters By was nude the Thompson from waist down. Sanchez then her on the floor. He then a raped family-room produced tied nylon strap, still-handcuffed wrists to Thompson’s her feet and a dragged her behind chair. The two men then went outside to car in the put garage. Peters’ returned, When they they discovered that Thompson had escaped.
Peters and Sanchez went outside search and found that she was in the back of the house next yard door. She door, was near the back was and screaming “Help me.” According Peters, Sanchez went over and her dragged the handcuffs. by back Sanchez then told he go Peters would have to and back “blow neigh- bors’ heads off” because the had girl been pounding the door and had been seen. a probably Sanchez took gun from the kitchen and went out. He returned a few later, minutes saying he had explained disturbance. Sanchez then carried to the Pe- Thompson basement. ters went down several minutes He later. observed the still half-nude woman leaning washing over machine with Sanchez behind her. She been had with gagged of cloth. Sanchez if strip asked Peters he “wanted any” and, declined, when Peters announced that he would “have kill her.” Sanchez her with a strangled nylon neck, He strap. hanger also a coat around her wrapped slammed her head to the floor and kicked lifeless side. body
Peters also testified that when two men began move the he noticed that she had defecated on the body, tissue, basement floor. Peters went for some and the excrement. then dragged Sanchez cleaned up They Sanchez burned clothes body upstairs. Thompson’s in the in the was jewelry fireplace. body placed of Sanchez’ car. The men drove to an isolated backseat location in As disposed body. Wisconsin he ran over the body. Sanchez drove away, house, Peters took returning After to Sanchez’ Sanchez’ car to his home and it for several kept days, Peters’ his own car Sanchez’ When leaving garage. him, the had car was returned to white formerly top painted been black. ’
Gene also testified. He neighbor, Sanchez Gonyo, his barking said that he was awakened about by dog near a.m., 4. He saw a man and woman February 1:30 nude from the waist The woman was his back door. Gonyo wearing green jacket. and the man was down the woman word say a scream and heard heard the nickname which Sanchez which was “Larry,” *14 hear cries of me” at known to He did not Gonyo. “Help to the front of time. watched the move Gonyo pair any The walk in the direction of Sanchez’. his house and Sanchez. She did not walking appear woman was behind to call the po handcuffs. wearing Gonyo thought to be It a knock at the door. was lice, interrupted by but was ex the and disturbance Sanchez, who apologized was seizure, or she “she either had an epileptic plained not have a on Sanchez did or she was booze.” drugs, something and up as he left he turned picked but gun, the was. not tell what object “dark.” could Gonyo a few seconds between estimation, elapsed only Gonyo’s the time girl, he saw Sanchez and the time his front door. There would Sanchez was at when returned to for Sanchez to have time enough have been return. conversation, locate a house, gun have a his by awakened a.m., again was Gonyo At about 2:15 as car he recognized He saw a dog. the barking Sanchez’ out of the with the pull driveway headlights off. The car then paused corner, turned toward Wisconsin. balance evidence was of a prosecution’s
forensic or nature. otherwise scientific summa- Briefly rized, the doctor who testified performed autopsy that the cause of death with strangulation was a fairly wide ligature. Other bruises and abrasions were found which were consistent with events as described Pe- ters. There was also evidence of anal penetration.
However, the examination found no trace of excre- ment. Neither was there evidence of to the geni- injury talia, as is commonly found in victims. rape Swabs were taken from all the cavities, victim’s body but only vaginal area showed the presence of semen. Later testi- mony established that chemical factors in the semen were consistent with Sanchez’ blood type.
Another witness an FBI was ex- microscopic analysis His pert. investigation hairs, involved fi- comparisons bers and other materials collected from victim’s body and the scene stated, of the crime. fibers Briefly found on the body were consistent with fibers from a number of Also, sources Sanchez’ car. house and victim’s hair was consistent with hair found Sanchez’ car, house and car Peters’ and on Gonyo’s Fi- property. nally, buttons and fibers consistent with the victim’s were found in clothing Sanchez’ house.
An FBI paint also testified that expert paint which been had used on the car top Peters’ con- sistent paint with cans found in Sanchez’ garage. Other witnesses testified that had seen they handguns and handcuffs in Sanchez’ possession.
For the a defense, witness testified that both Sanchez and Valentine com- applied jobs with her on the pany same Valentine had denied day. knowing A Sanchez. woman who worked as a bartender testified in her sa- to be Sanchez was that a man who appeared 3. A of the bar patron loon the night February on uncer- been there but was having identified Sanchez as tain of the date. testified that he had of D. Laney’s
The proprietor the inner door sev- in and out of bar’s go seen Valentine he his vantage point, the From during night. eral times time, each went outside not whether Valentine say could the area. He also at least went vestibule that he only 3. A D. at D. Laney’s February did not see Sanchez commonly were drugs testified bartender Laney’s for dealers The common method was trafficked there. mer- bar, to their cars for the orders” go “take and return. chandise that he was in love with testified
Pablo Martinez had Martinez, underage, was who Michelle Thompson. knew Valentine in the because past to D. Laney’s been he slaying night Thompson’s the doorman. On told he would but had been with Valentine had spoken He had also received in that night. to get be able He denied evening. any during call from Thompson and Valentine Thompson because feelings jealousy D. Laney’s together. were at returned a verdict facts, these the jury
Based upon was hearing The death penalty on all counts. of guilty reconvening, next day. Upon commence set suicide attempted had that Sanchez court announced lens and at- his breaking eyeglass during night by counsel, asserting Defense to cut his arm. tempting moved to cooperate, and unable distraught was Sanchez hear- sentencing and postpone discharge jury re- Sanchez, who had determined The court ing. fit to pro- and was present, medical attention ceived motion. denied the ceed and determination waived
The defendant The court were present. factors aggravating whether *16 then an factor Thompson found as had aggravating been killed in the course of another and that felony Sanchez actually had the acts her performed causing death.
The then and testimony reconvened heard the second hearing. death fo- phase penalty cus of the State’s was on the aggravation evidence in in Mil- previously unsolved murder Sharon Egerer waukee in 1975. May Morales, Francisco a former busi- ness of Sanchez, and testified that partner acquaintance Sanchez had been involved in Egerer with relationship from about 1970 or 1971. In ofMay 1975 Morales Egerer learned that had initiated a action paternity against Sanchez. Sanchez to Morales to attempted enlist on his testify behalf.
William Garris testified that he in the participated He Egerer and Sanchez went killing. to on a Milwaukee of 1975. Friday met she May They Egerer after left work and followed her to her apartment. Sanchez went inside with her and sometime later summoned Garris. Garris saw Egerer’s in a body lying blood. pool Sanchez her, admitted and killing threatened kill Garris if he did an provide alibi.
The next witness was Suzi Holton She Eckerle. testi- fied that when Garris Sanchez returned to her house Sanchez told her he had “taken May care of He Sharon.” demanded that she him too provide with an alibi. When the police investigated Egerer Sanchez, slaying, Garris and Eckerle claimed they had been at Eckerle’s the entire evening house the in- cident. after Shortly Egerer crime, Sanchez and Eckerle became intimate and carried on a relationship until 1981. It ended in a dispute over another woman. When Sanchez’ news of involvement in the Thompson out, homicide came Garris and Eckerle came forward. Sanchez, did not testify trial, who his did take the learned He has never sentencing hearing. at the stand Nonetheless, keep managed he to read and write. thrift, and, through for 14 years Motors at Johnson job and build land enough money purchase saved he lived. house which He homicide. Egerer
Sanchez testified about suit, told of the paternity claims that when Garris was talking Egerer. he to Milwaukee going proposed Sanchez, to talk to her, located she refused they When *17 It was Garris who to with Garris. agreed speak but waited out- while Sanchez apartment into Egerer’s went with blood. covered out he was came Garris side. When in- she because Egerer had Sanchez he He told killed. Garris, knowing from Sanchez. to extort money tended to earn hoped of money, had saved a bit that Sanchez favor. Sanchez’ told house, Garris returned to Eckerle’s
When they the crime. Over had committed her that Sanchez let Sanchez explain. Eckerle refused to Sanchez years, to that, due he realized come forward because had never of hav- motive, suspected he would be the paternity-suit murder. committed ing Peters Forest Heinz and testified that also
Sanchez denied Sanchez of burglaries. committed a number had let Heinz occasionally that he but stated involvement had having admitted tools. He also Peters borrow and terminated it when had Heinz’ wife but an affair with on February stated that met Heinz. He he a restau- burglarize to were planning Heinz and Peters their kept equipment They rant near D. Laney’s. to the house had access house and masks at Sanchez’ key. kept spare knew where Sanchez they because He declined. to but invited participate Sanchez had been came and Peters Heinz around when did not want be tools. burglar for their 3 he February night on the stated that
Sanchez went to several and Lake He bars Wisconsin County. with met woman who returned his house eventually time, him. After a Heinz walked and sat down. Some- out later, room, time Sanchez was when Sanchez noticed her shoes and woman disappeared. her tracks near the door. He followed pants open patio in the snow to back her back Gonyo’s yard brought to his house. He Go- then went over and apologized nyo. he returned,
When Heinz was still A there. short while later the woman and, left Heinz with still present, Sanchez fell on the sofa. In asleep morning Sanchez discovered that Peters’ car inwas his garage and own missing. car was The next Heinz came over day, with several cans of black he paint, and and Sanchez of Peters’ car. with painted spoke Sanchez later top Peters, who explained that he had left his car at Sanchez’ because it had been in a hit-and-run accident. Sanchez saw no signs Sanchez out damage. cleaned the back seat and trunk of Peters’ car and returned it to him. Sanchez concluded his testimony by denying any involvement in the Thompson slaying.
Based upon im- testimony, jury decided *18 the death pose penalty.
The defendant’s initial contention is that the evidence was insufficient to him prove guilty a reasonable beyond doubt. He argues that Peters’ is se- subject to testimony rious of question, in the fact tes- especially light that he tified to his prior own he sentencing might believed the death escape the case penalty by cooperating in Sanchez. against Defendant also notes that Mr. Gonyo heard no screams of me,” but rather the “Help heard at back woman his door call the defendant his nick- by name, He argues that the of “Larry.” sequence events described Peters not by would lead to social introduc- tion, which have would been the only way Thompson
260 Also, Mr.
could learned he was called “Larry.” have that to Gonyo dragged did not see the woman back being handcuffs; rather, in some Sanchez’ house she followed was walking distance behind Sanchez and normally. Forest also that the activities of Defendant contends He Heinz create February questions. on the of evening that Peters his several times alleges changed story sentencing At his order Heinz. protect subsequent he Peters admitted that lied at Sanchez’ trial hearing, the addition, In the defendant help points the State. him in the who tentatively placed of witnesses testimony 3. If he was in Wisconsin at 8:30 February saloon as there, he could not have been with Peters Gurnee that Moreover, asserts Peters testified. defendant as to his of Rene create doubts activities Valentine His fits the employed by behavior credibility. pattern D. He carry- was also persons selling drugs Laney’s. who person an amount of cash for ing unusually large challenges was defendant unemployed. Finally, that and hair compari- scientific He notes fiber evidence. out points sons can never be conclusive and also involuntary defecation description Thompson’s Peters’ or on her body of fecal matter by belied absence on the floor. basement argument
The thrust defendant’s sufficiency on Peters’ testi- that his convictions rested large part so evidence creates and that mony, totality the resulting inconsistencies in Peters’ many story cannot conviction stand. evi sufficiency of our review scope limited by principles a conviction is support
dence A now established. conviction will which are well un or improbable unless the evidence is so be set aside doubt of guilt. it creates a reasonable satisfactory v. Collins (People 237, 261; 106 Ill. 2d (1985), Vriner suffi- assessing 2d Ill.
261 it is not the function of court to ciency, the retry 237, defendant. v. Collins 106 Ill. 2d (People (1985), “whether, is 261.) relevant after inquiry [rejviewing the in the light evidence most to the favorable prosecu tion, rational any trier fact could have found the es sential elements the crime a reasonable beyond doubt.” v. (Emphasis original.) Virginia Jackson (1979), 307, 319, 560, 573, 443 U.S. 61 L. Ed. 2d 99 S. 2781, 2789; Ct. v. People (1985), 237, Collins 106 Ill. 2d 261. regard
With to Peters’ we testimony particular, have acknowledged of an testimony accomplice is to be with viewed v. suspicion (People (1985), Collins 237, 261; 106 Ill. 2d Baynes (1981), v. 88 Ill. 2d People 225, but we have held it 232), be repeatedly may sufficient to sustain a conviction if it satisfies the jury guilt beyond reasonable doubt. v. (People Collins 237, 261; 106 Ill. 2d (1985), People (1973), v. Farnsley 537, 53 Ill. 2d It 544-45.) is the role of fact finder to all the weigh evidence. That role is preserved “legal conclusion that upon judicial review all the evi is dence to be considered in the light most favorable to prosecution.” v. (Emphasis original.) Jackson Vir ginia (1979), 443 307, 319, 560, 573, U.S. 61 L. Ed. 2d 2781, S. Ct. 2789; People v. (1985), Collins 106 Ill. 2d 237, 261. these
Applying principles, we conclude is that there sufficient evidence to support verdict. What jury’s ever conflicts may have existed in evidence, resolu tion of such is inconsistencies wholly within province (People 237, v. Collins Ill. jury. (1985), 106 2d 262; v. People Kubat 94 Ill. (1983), 437, 2d More 468.) over, the jury also entrusted with determinations of v. credibility. (People (1985), Collins 106 Ill. 2d 261- 62; Here, Ellis 74 Ill. 2d fully aware of the circumstances underlying *20 believability and the of his question
Peters’ testimony, counsel. The chose argued jury was and fully capably by to that to and are not Peters, say believe we prepared or its conclusion was unreasonable. unsupported to the contention, related somewhat Defendant’s next issue, court’s refusal to reset is that trial sufficiency sentencing hearing after Sanchez’ trial a date Peters’ Defendant and a of due process. was denial prejudicial at least be- (or permitted) that Peters’ was led argues He death penalty. lieve that he be might facing from cooper- to himself would thus the benefit perceive He in- thereby in the case Sanchez. was against ating than to the prosecution duced to more testify favorably He on to that goes argue the case. would otherwise be would continuance reasonable and for a was request not case. have prejudiced prosecution’s rule the decision whether
The is general is of the trial a continuance within the discretion grant 4(e); 38, court. Rev. Stat. ch. (Ill. par. 114 — v. Williams 92 Ill. 2d Neither here pre cited in which the issue any has case parties a Federal has Defendant cites sented been considered. Linton v. Perini habeas corpus Cir. decision, 1981), (6th 207, in the denial of a continuance was 656 F.2d which However, in held to a due violation. process to amount interfered with unreasonably case the denial assistance counsel. right defendant’s to effective case does not contrast, denial in the instant also are We guarantee. constitutional implicate specific prejudiced any the defendant was persuaded The way jury fully apprised other the denial. was he had testify- the interest circumstances and Peters’ were sentencing Peters’ conviction ing. pending examination and cross-exami- out both direct brought stressed Also, vigorously nation. defense counsel Thus, the jury in closing argument. to the jury point was able view Peters’ in the testimony proper light it give weight whatever and credence it it thought deserved.
The defendant’s next contention is that he
de-
nied a
trial
fair
because
extensive pretrial publicity
made it
to obtain
impossible
an
The
impartial
jury.
defendant’s motion to
bring
transfer venue or to
in a
from another
jury
was denied.
county
when
has reached a
question
pretrial publicity
which
an
point
precludes obtaining
local
impartial
a most
issue. This
vexing
court has observed that
“[c]rimes, especially
crimes,
heinous
are of great public
interest and are
It is
extensively reported.
unreasonable
*21
of
expect
average
individuals
intelligence
at
least average
interest
in their community would not
have heard of
of
any
the cases which they are called
in court. Total
the
upon
judge
ignorance of
case is ex
(People v. Taylor
ceptional, and it
not
required.”
Irvin v.
(1984),
377, 386;
101 Ill. 2d
Dowd
(1961),
366
6
717, 722-23,
751,
U.S.
L.
756,
Ed. 2d
1639,
81 S. Ct.
It is
1642-43.)
sufficient
if the
can
juror
lay aside his im
or
pression
opinion and render a
on
verdict based
the
(Irvin
v. Dowd
evidence
court.
presented
(1961), 366
717, 723,
U.S.
6 L.
2d 751, 756,
1639,
Ed.
81 S. Ct.
1643.)
assessing
In
a
of
claim
due to
partiality
pretrial
a
court has
publicity,
reviewing
obligation
an
to evaluate
the voir dire
717,
of
testimony
(366
723,
U.S.
jurors
L.
2d 751, 756,
People v.
1643;
6
Ed.
Based
such
we conclude that
the level
of awareness of the
case
of
venire and
part
selected
not so
as
jury ultimately
great
was
to estab-
lish
and to
the defendant a fair
partiality
trial. We
deny
v.
guided
are
in our
Taylor
determination
by
cause of prejudicial pretrial publicity. Peoria the case as of a radio station described manager case he had seen in Peoria. the most widely publicized (People Taylor 377, The 383.) 101 Ill. 2d (1984), of survey defendant conducted which revealed 378, 98.9%, or heard of the 382 voters had questioned, Moreover, police 72% of those polled thought case. the right had arrested person. the sheer amount of presented by pub problems of was re the nature what were
licity compounded the fact had been devoted to Much attention ported. released taking a codefendant had been after examination, polygraph while the defendant’s polygraph (People v. Taylor 101 Ill. test “inconclusive.” be inad 2d Such information would course trial. exhaustion of all the defend missible Despite six of the eventu challenges, ant’s peremptory jurors knowledge had codefendant’s impaneled ally release. 101 Ill. 2d 391. Taylor, that, as in argues pool
The defendant exposed from which his was drawn was persons inadmissible, extensive publicity regarding prejudicial The media of his case included refer- coverage matters. to the and ev- Egerer, ence murder Sharon Wisconsin in the of that offense could be admitted pros- idence *22 the the trial. in chief of of We guilt phase ecution’s case however, the rose to not that persuaded, publicity are in Taylor. the level that existed extraordinary Taylor mentioned, the described As was publicity that accept we intensity. as While “unprecedented” extensive, the rec- of the instant case was coverage it unprece- reached truly ord does not establish Taylor, the record we stated in dented As proportions. for “the bias.” potential establish more than bare must 377, 395.) Also, v. 101 Ill. 2d we (People Taylor (1984), did note that defendant not exhaust his peremptory challenges, but rather had three at the remaining close factor, conclusive, of selection. This tends jury while of belie claim unfair v. Madison prejudice. People 56 Ill. 2d 487. The most fact case from distinguishing basic this however, lies in of Taylor, juries comparison In actually Taylor, heard the evidence. half of the fully had panel knowledge case, detailed and were at least of cognizant somewhat inadmissible information. Here, the record indicates that two only of eventual of jurors had read the crimes in the local newspaper, and neither had extensive recollection of what had been Moreover, reported. there was no indication that of any had an of jurors Egerer awareness slaying. sum, the review of the entire voir dire and record convinces us that the of degree publicity typical was of nature, a case and that awareness on the of part the venire was minimal and did not the defendant deny a fair trial. next defendant asserts his jury improp- biased in
erly favor the prosecution because of the ex- clusion of prospective jurors who expressed opposition possible imposition the death He ar- penalty. gues that so-called “Witherspoon excludables” —those ju- rors who admit absolute against the death scruples be allowed to in the penalty participate guilt-in- —should phase nocence a trial. Exclusion of such persons results in a which does not a fair represent cross- Further, section the defendant community. asserts that sociological studies have indicated that such “death- qualified” juries tend to be conviction and thus prone, defendants a fair deny trial.
Defendant relies primarily Grigsby Mabry (8th Cir. 1985), 758 F.2d which the ad- arguments he
266 this vances were Defendant concedes accepted. Grigsby reasoning court has on a number rejected (e.g., v. Collins 237, 106 Ill. 2d People (1985), occasions v. Caballero 278-79; 102 Ill. (1984), 44-45) 2d us to reconsider our urges but nonetheless position. invitation, decline the defendant’s simple We reversed Grigsby by reason that has been recently v. McCree (Lockhart United States Court. Supreme 1758) 106 S. Ct. 169, 90 L. Ed. 2d (1986), 476 U.S. in- The not nor do we presented, perceive defendant has State constitutional for departing basis dependently, any Supreme from our cases and the now-consistent prior Court on the issue. position that he was denied
Defendant’s next contention is tactics employed by prosecution. fair trial certain by that he led to believe he was Specifically, complains Heinz Forest Heinz would be called as a witness because witnesses potential was included on the State’s list 412). anticipation to Rule 412 Ill. 2d R. (87 pursuant not to object of Heinz’ the defendant chose testimony, in which other crimes regarding of Peters testimony ulti The State Sanchez allegedly participated. Heinz and The argues to call Heinz. defendant decided not mately ob into otherwise permitting that he was “maneuvered” then and was testimony go before jectionable cross-examination by this testimony unable counteract denied. was point A for mistrial on of Heinz. motion correct, for we do The of the motion denial Ini these events. by prejudiced find that Sanchez was “ 412 ‘pre of Rule we note that the purpose tially, to combat false an and afford opportunity vent surprise ” 392, Ill. 2d Raby (People testimony.’ witness every no However, there is requirement were, trials If there the State. must be called listed often would testimony unduly protracted, would be which decision regarding cumulative. needlessly be is, be, witnesses will actually be called must a mat ter of trial to the strategy, subject up-to-the-minute as Here, sessments counsel. the prosecution apparently decided that Heinz’ would add little to their testimony *24 case and made the decision Moreover, not to use it. if Heinz’ testimony was considered essential the by defend ant, he, course, of was free to Heinz to subpoena call him aas witness. to Having so, failed do the defend ant inis no to claim position See prejudice. People v. 158, 168. Nowak 45 Ill. 2d (1970),
The defendant’s next assertion is that certain photo- graphic evidence was in a presented manner. prejudicial As part of the State's evidence, scientific the was jury shown highly magnified comparison of mi- photographs croscopic fibers taken from the carpet in Sanchez’ car and from the body of Thompson. The were photographs used in with conjunction expert testimony that the fi- bers were consistent. The defendant argues that the amounted to photographs two indistinguishable .orange that were stripes presented in such a as to cause way the jury give the comparison excessive He weight. characterizes the as and thus display “posed,” unfairly prejudicial.
In of support contentions, his the defendant relies on two in cases which were used to photographs present evidence in an artificial manner. In French v. City of Springfield (1976), 74, 65 Ill. 2d the was jury permitted to view a film which recreated the plaintiff’s version of an auto accident. The admission of the film held to was error, it be because tended to precondition the plaintiff’s version of the accept facts. in
Similarly, Crowe 390 Ill. trial refused judge to admit taken photographs by defendant sometime after the occurrence in question, which were intended substantiate the defendant’s tes timony. the refusal upholding admit the photo- court stated were taken “not they graphs, as actu they of facts purpose showing physical Ill. existed the time of the crime.” 390 303. ally French and Crowe As men- are in just point. the film in French events, of tioned, a recreation Likewise, plaintiff. and directed produced Crowe were after-the-fact, in also an photographs Neither of these exhibits even purported nature. posed facts existed at as any physical they actually to depict time of the occurrence question. contrast, Here, are actual photographs from the crime evidence obtained physical items it true that the fibers in the.photographs scene. While compari- to facilitate magnified presented have been mislead- son, no have been suggestion they there is magnification, compar- Without altered ingly any way. since the have literally impossible, ison would been are invisible to characteristics such fibers distinctive *25 unaided eye. the chose the expert
The defendant that fiber argues to be- consistency which tended show only photographs caused the to overestimate fibers, and thus jury tween However, the fiber importance comparisons. He ac- in detail about comparison. testified fiber expert to can at best lead that such knowledged comparisons The consistent. photo- that two fibers are conclusion conclusion that his were introduced bolster graphs some consistencies He not testify, in fact exist. did did that the fiber falsely suggest, nor the photographs did conclusive. absolutely were identical and comparisons the introduction view, surrounding the foundation our consider enabled the photographs jury properly their significance. that defendant, raised by
The next issue the burden act places of the death penalty structure unconstitutional, defendant and is therefore on the proof has considered and previously rejected by been 504; court. v. Albanese 104 Ill. 2d (People (1984), People 252; v. Williams 97 Ill. 2d v. (1983), People Brownell cases, 79 Ill. 2d As in (1980), 508.) we stated those sentencing weighing determination calls for process which neither a burden of As party bears we proof. stated, have “while the each precise weight given be factor is not a matter aggravating mitigating made infirmity.” calculation, of numerical is not a constitutional 2d (Pe ople (1980), Brownell 79 Ill.
We are not to abandon our persuaded prior position.
The defendant next objects sentencing that at the trial phase judge erred to tender a refusing pro- posed jury instruction which stated:
“In considering the death if penalty, you may you so, towish do consider or whether wish you to ex- mercy tend to the defendant.”
A similar was argument raised and rejected v. Stewart 104 Ill. 2d There, 463. the defendant an sought instruction at the death stage which penalty would have listed nonstatutory several fac mitigating tors. We the trial upheld judge’s refusal to tender such an instruction on the basis was instructed that it could consider other or “any facts circumstances reasons provide imposing less than death [the and the penalty],” defense permitted present argue any evidence he considered Illinois mitigating. Instruction, Criminal, Pattern Jury (2d No. ed. 7A.15(7) 1971) 2d); Criminal (IPI People v. Stewart (1984), 104 Ill. 2d 492-93.
In our view this reasoning here. equally applicable I defendant’s non-IP “mercy” instruction was *26 refused, general but the other “any mitigating factor” Further, instruction was given. the defendant presented from sympathetic testimony members his and family, Thus, counsel for in his argued mercy statement. closing in to or mercy, any the a consider jury position factor, saw No resulted as it fit. error mitigating other from of the instruction. refusal novel chal-
The defendant’s next contention raises a It sentencing to Illinois death lenge penalty procedure. that is con- sentencing hearing now familiar a by is ducted, the the factors jury weighs aggrava- at which to arrive at an appropriate tion and order mitigation as follows: sentence. The statute pertinent provides no “If that there are jury unanimously the determines mitigating preclude imposition the factors sufficient the sentence, the shall sentence defend the death court 38, par. 1(g). Rev. ch. ant to death.” Ill. Stat. 9 — procedure that argues statutory defendant deliberation traditional not the jury does contemplate trial, here, that argues Counsel proposed sense. which to a verdict form on given separate each juror be If any his or her decision the death penalty. indicate no there is the death juror against penalty, such votes He ar- the death sentence is precluded. unanimity mi- no an antideath subject that there is reason gues in order of the other jurors to the entreaties nority in favor of death at a unanimous decision arrive penalty. procedure urged reason disagree,
We from a drastic departure the defendant would be in functions. Had legislature concepts jury classic language a believe tended such we departure, intention clear. Section have made statute would shall be sentencing proceeding 9 — 1 provides jury,” must make a and that held “before factors mitigating determination of whether unanimous in the Crimi is not defined While the term “jury” exist. a collective term meaning its as nal Code of for the jury intended the legislature Had plain. as a body, have referred to the it could reach decision
271 making decision as entity “jurors.” Court has Supreme stated: of in- jury obviously essential feature a lies in the
“[T]he terposition between the and of accused his accuser judgment eommonsense of a of group laymen, and community participation responsibility and shared that results from that group’s guilt determination or inno- *** cence. large enough number should be probably [T]he (Williams v. Florida promote group ***.” deliberation 78, 100, (1970), 446, 460, 399 U.S. 26 L. Ed. 2d Ct. 90 S. 1893, 1906.)
We conclude that the use of the term “jury” death penalty statute sentencing carries with it all of that word’s incidents, legal including the concept “group deliberation.” deviation from Any this traditional interpretation must come from the legislature.
The defendant next asserts new should have been for impaneled the sentencing hearing because defendant himself in a injured suicide and attempt at that unfit His point proceed. motion for continu ance Defendant, however, was denied. failed to raise this claim in his motion, we find post-trial and therefore that the issue has been (See waived. v. Caballero 102 Ill. (1984), 23.) 2d from the our Apart waiver, exam ination of the entire record leads us to conclude that the trial judge’s decision to proceed with the original jury was not so prejudicial as to amount to plain error.
The defendant next raises a broad attack on the death as penalty disproportionate and as violation privileges immunities clause United States Constitution. (U.S. Const., IV, art. sec. This somewhat convoluted be summarized as argument may follows: The fourteenth amendment creates a national for all citizenship born the United States. persons Such national it carries with certain incidents citizenship no rights which State As an may infringe. example,
272
the defendant cites Edwards California 164, Ct. which declared a U.S. 86 L. Ed. S. of interstate travel. right prem- constitutional From not all ise, on to out goes point the defendant Thus, the death impose States have chosen penalty. dif- he a national citizen face argues, may qualitatively act, depending merely ferent the same penalties of different States. Given policies upon varying *28 the defend- gravity finality, death penalty’s unique it, to citizens should be argues subject ant national all, He one consistent rule. concludes if at under dispro- is therefore unconstitutionally the death penalty immunities of and violates privileges portionate national citizenship. First, this argument wholly unpersuasive.
We find logical suffers from certain reasoning the defendant’s that citizens of States which have flaws. He asserts from the death are “immune” penalty chosen to adopt This, are not. it, of death penalty while citizens States It statement of the law. is course, is an inaccurate is to be to criminal applied axiomatic that the law which of of the citizenship not on the State depends offenses Rev. fender, (Ill. on the situs of offense. but rather Thus, Wiscon ch. citizens of 1983, 38, Stat. par. 1 — nonetheless has no death are sin, penalty, a State which a offense in Illinois it if commit subject capital they Therefore, no citizens other State. penalty or death any from the death penalty “immune” are necessarily of where reside. they basis aside, however, reject we
This misstatement legal reason. His for a more fundamental defendant’s theory essentials, it is some- to its is reduced argument, in Illinois to face offender how improper capital identical offense committed while the the death penalty, it. The death is penalty not warrant would Wisconsin because not all States argues, he thus disproportionate, have chosen it. The of this asser- employ untenability tion is best illustrated it taking logical extreme. Under the death would remain reasoning, penalty as long unconstitutional as State single declined any it. enact
In our view, this violates the of fed- theory principles eralism and judicial restraint which Gregg underlay 153, 859, 428 U.S. 49 L. Georgia (1976), Ed. 2d S. Ct. the case in which punishment was capital up- held case, as constitutional. In that the court stated: assessing a punishment aby democratically selected
“[I]n legislature against measure, elected the constitutional we *** presume its validity. heavy burden rests on those [A] judgment who would attack the representatives people. This is part true in because the constitutional test intertwined with an assessment of contemporary stand- ards legislative and the judgment weighs heavily in as- *** certaining such standards. The deference we owe to the decisions legislatures state under our federal system is enhanced where the specification of [citations] concerned, punishments is peculiarly ques- for ‘these are ” legislative tions of policy.’ 175-76, 428 U.S. 49 L. *29 859, 876, 2909, Ed. 2d 96 S. Ct. 2926.
The above-quoted from to language Gregg refers challenge upon eighth based amendment on ban cruel and unusual of are punishment. We opinion that these considerations with force to the apply equal defendant’s theory.
Gregg holds that capital is not punishment per se un- constitutional. The delicate decision whether capital pun- ishment is appropriate an assessment of the requires wide of range on public attitudes Such an subject. assessment can be only carried out via the legislative for achievement of on process, consensus so sen- popular an sitive issue is and precisely legislative properly role. This of assessment attitudes public result, may
274 in one State resulted, policies indeed has different from The such de- to the next. States should be free make themselves, for to the moral dictates according cisions of their citizens.
The this theory reasoning defendant’s would turn one State decided if head, effectively holding its by in no other State could decide against the death penalty, given leg- of it. The reasoned of a State judgment favor Gregg, islature, deference under would great entitled of another State judgment legisla- be preempted defies the ture. We hold that all-or-none approach Gregg rationale, it. and we decline embrace his is dis next asserts death sentence
Defendant his light and excessive of character proportionate previously It has been stated personal background. the determination a death sentence is proper whether the charac case consideration “requires a particular the circum ter and record of the individual offender and in of the offense as a particular constitutionally stances process inflicting penalty dispensable part v. North Carolina (Woodson 428 U.S. (1976), of death.” 2978, 2991; 304, 961, S. Ct. 280, 944, 49 L. Ed. 2d v. Carl People v. Free People 428; 378, 94 Ill. 2d (1983), son re 590.) proportionality 79 Ill. 2d (1980), met if the commensurate with sentence is quirement con gives adequate the offenses and the seriousness'of circumstances, includ to relevant mitigating sideration of the defendant. rehabilitation ing potential v. People v. Free (People 378, 428-29; 94 Ill. 2d (1983), Carlson re 2d our light 79 Ill. (1980), cases, we have not hes capital review sponsibilities im sentences where improperly itated vacate death People v. Walker People 502; 91 Ill. 2d (1982), posed. v. Carlson People Gleckler 145; (1980), 82 Ill. 2d Ill. 2d 564. case, on one such relies primarily Defendant *30 v. Carlson (1980), 79 Ill. 2d in which this va court cated a death sentence and remanded for of a imposition Carlson, lesser In ex- penalty. the defendant killed his wife and a officer, police and had burned the ex-wife’s home. The defendant and his ex-wife had to re planned but she marry, cancelled those and became en plans gaged another man. The crimes occurred after she broke the news to the defendant. Other evidence showed that, to his arrest, prior defendant left a sum of awith friend money with instructions that it be given his for his daughter son’s use. We stated in Carlson mitigating circumstances do not a man bespeak “[t]hese with a malignant heart must who elimi be permanently nated from society.” v. (People (1980), Carlson 79 Ill. 2d 564, 590.) We characterized the defendant as “an indi vidual with no criminal past record who in all would probability be life leading to our acceptable society had not his unfortunate marital affair this triggered tragic sequence of events.” v. (1980), Carlson Ill. 2d 564, 590.
Carlson is not We helpful. are that im opinion position of the death was not penalty unwarranted this case. In mitigation, it was established defendant had no record criminal convictions, had stable work record and had treated his family members well. While these factors are relevant to the sentencing determination, their existence does not necessarily pre imposition clude of the death penalty. People Brownell 79 Ill. 2d 537. view, our the factors in aggravation are of suffic- ient gravity more than outweigh these positive attrib- utes. it is While true that defendant’s record contains no convictions, criminal evidence considerable was adduced to indicate a notable, criminal history conduct. Most course, was evidence of the brutal of Sharon killing Egerer Wisconsin. While defendant maintains his in- *31 276 him, in
nocence, against we the testimony particu- find Eckerle, very lar to be reliable that of Suzi Holton damaging. in no Carlson, crime here was unlike in
Also, Al- triggered by any independent provocation. way involvement, denies once the defendant though again deliberate the crimes were the evidence established is guilt To of defendant’s and cold blooded. be convinced he ruthless manner in which also to convinced of the be to vacate sum, find no basis which upon acted. we sentence jury. death imposed Illinois’ death contention, next The defendant’s it vests is unconstitutional because penalty procedure in the prosecutor, the death penalty discretion to seek Carey v. ex rel. (People rejected. has been repeatedly v. Kubat 94 People 531; (1983), Cousins 2d (1979), 77 Ill. our to alter position Ill. 2d We are not 437.) persuaded on this issue. re- related arguments next raises two defendant murder of the Egerer the admission evidence
garding that evi- He first contends at his sentencing hearing. crime, were charges pend- other for which dence of the at all admitted Wisconsin, not have been should ing have been or, crime should other alternatively, be consid- doubt in order to a reasonable beyond proved ered aggravation. re we have point, first
With defendant’s regard a sen phase in the second held that peatedly reli evidence which any consider tencing hearing may Ill. v. 106 2d (People Collins (1985), and relevant. able 147, 174.) v. Ill. 101 2d People Silagy 237, 282; (1984), the defend of crimes which evidence with This includes (People Col convicted. charged ant has been but as the 237, Insofar sentenc lins 106 Ill. 2d (1985), into wide-ranging inquiry is intended be ing process or to aggravate tends factor which identifiable every offense, the formal rules of evidence do not mitigate 482, (People (1981), 494-95; v. La Pointe 88 Ill. 2d apply. 297, v. Adkins 41 Ill. (1968), 300-01.) 2d For the reliable, to close its sentencing jury eyes to otherwise highly relevant evidence would defeat these purposes. asserts,
Defendant also somewhat that con- obliquely, sideration but charged convictionless crimes amounts multiple punishment the same offense. He cites v. United 137, States 432 U.S. 53 L. Ed. Jeffers 2d S. Ct. of this assertion. support Jef- fers, however, case, is a basic double fairly jeopardy has nothing whatsoever to do with the admissibility *32 other-crimes evidence at sentencing We proceedings. thus find wholly inapposite. Jeffers view,
In our admission criminal charges at sen tencing is no more a double jeopardy violation than ad mission of criminal convictions. The of con admissibility victions has been repeatedly upheld. (E.g., People v. Adkins 41 Ill. (1968), Likewise, 2d 297.) we reject the defendant’s assertion that the Wisconsin crime should have been proved beyond reasonable doubt. We have reiterated that the only requirement is admissibility that the evidence be reliable and relevant. (People v. Free 94 (1983), 378, 422; Ill. 2d v. People La Pointe (1981), 88 Ill. 2d 497.) We find that the testimony relating to the Wisconsin crime clearly meets this stand ard.
The defendant also to certain objects questions posed to several witnesses on direct examination and cross-ex- amination. Specifically, he claims some that en- questions abled otherwise inadmissible evidence to go before and that the jury, cross-examination of the defendant at the sentencing hearing was prejudicial.
During direct examination and cross-examination of the FBI fiber it expert, was established that fiber an science, comparison inexact and that at best it hairs fibers were “con- could established that two or be ruled that previously sistent.” The trial court had to his ultimate conclusion testify" could not as expert That conclusion of associations. number upon based for the was to be left jury. on redi- prior ruling, prosecutor, of this spite overall examination, opin-
rect asked the "witness for his of the direct disregard ion. this was in question While thus court’s earlier and we ruling, disapprove conduct we do believe respect, prosecutor’s An objection that error resulted for a basic reason: very finished, was even question was before interposed The court immediately sustained. objection and the of the fiber comparisons that value probative stated the court’s action was We that was a issue. find resulting. from error proper prevented any lines of certain ques The defendant also asserts beyond went of him cross-examination tions asked For the defendant example, the bounds of permissibility. bag from sleeping “how fibers was asked explain [his] Coun Michelle hair?” could have gotten Thompson’s had not identified posi sel the fibers been objected now Defendant was overruled. tively, objection but “false insinua contained questions claims such Nuccio tions,” to those asked comparable were questions Ill. 2d where such *33 for reversal. grounds case, find Nuccio distinguishable. In that
We involve- which implied defendant was asked questions unsubstanti- completely in misconduct which was ment rebuttal present The then failed ated. prosecution Here, the ques- these insinuations. to support witnesses which, while not 100% fiber evidence tions related to for its con- before the conclusive, jury was nonetheless which matters involve The did sideration. questions as had been presented, evidence outside the were wholly the case in Nuccio. of alleged last cross-examina- example improper
tion us Near admittedly gives end pause. cross-examination, defendant’s he was shown pictures Thereafter, Sharon and Michelle Egerer Thompson. following exchange occurred:
“Q. her, killed it Whoever whether was Mr. William you agree Garris or she you, would was butchered brutal, a sadistic and cruel and fashion? inhuman
A. I tell I you. could not didn’t see the body.
Q. you Did look at pictures? They A. No. never pictures. showed me no Q. Sanchez, I’ll show you picture, Let Mr. me show you Exhibit People’s which has been identi- previously fied, a photograph down, of a lying woman face her hands behind her and with cable around her neck ask and you look that for the first time and tell if whoever killed her your opinion killed that woman sadistic, inhumanly brutal and cruel manner? Yes, like,
A. is what it looks I just I can’t see. see the red.
Q. youDo see her hand tied behind her back?
A. Yes.
Q. you Would admit might whoever have killed Michelle Thompson, you agree would she lived through unimaginable terror as she dragged was from lot, that parking kicking screaming as the evidence indicated?
A. I would not I know. was not I there. don’t know happened. what
Q. Well, you testimony. think, heard the you What do Mr. Sanchez. you What do think through she lived as she dragged kicking was screaming?
A. Yes.
Q. you agree her, And would pho- whoever killed tograph of Michelle indicates Thompson she beaten?
A. Yes.
Q. Savagely from head to toe?
A. Yes. *34 Sanchez,
Q. you it to Mr. would did do her Whoever body open? and her ripped she was sodomized agree is the That not evidence. Objection. MR. COLLINS: BY MARGOLIS: MR.
Q. Mr. Sanchez— you agree, Would Honor, Margolis Mr. please, If your MR. COLLINS: point And at is a colorful using cross-examination. it is the evidence going beyond of it is but proper some ef- doing penalty he is it for the death in this case and I to object fect. it. time, the Your proper This is
MR. MARGOLIS: . Honor, of this witness. questions to ask such ques- There is a time to ask proper MR. COLLINS: and a something to do with the record tions that have not being ripped open proper. body rephrase question. the MARGOLIS: I will MR. BY MR. MARGOLIS: sir, Michelle
Q. say, way that that you Would and de- ugly and brutal was sodomized was Thompson spicable?
A. Yes. sir, mitigating would
Q. what factors jury, Tell the penalty death facts jury oppose cause a to as this? such I object. COLLINS:
MR.
THE COURT: Sustained. I would like please, If the court MR. COLLINS: Honor, there is your please, If question. on that be heard ques- Margolis that last thought Mr. possibility no that proper question. was a tion argue his It of defendant is never function is so im- grossly I that suggest question case. would own this time. I move for mistrial at that proper THE COURT: Denied.” crossed questioning argues The defendant such zeal, ques- prosecutorial line of tolerable defendant degrade only tions were intended sustaining matters, elicit factual rather than resulting preju- cure his was insufficient objection dice. In he final question contends that particular, left the with the impression that the defendant him- self could think no reason live. why he should
While we acknowledge that
the
conduct
prosecutor’s
overzealous,
was
the
possibly
our review of
entire rec
ord
the conclusion that
it did not rise
the
compels
error.
level
reversible
the latitude
Generally,
permit
ted on cross-examination
left
is
to the sound discretion
of the trial court.
v.
2d
(People
(1977),
Williams
66 Ill.
A
478.)
court of review will
the decisions of the
disturb
trial court
if
(Peo
manifest
has resulted.
only
prejudice
v.
ple
(1977),
Williams
66 Ill.
We
not find
478.)
2d
do
that counsel’s conduct here fits the
pattern
prosecu
torial conduct condemned in
(1985),
v. Adams
People
102,
109 Ill. 2d
People v. Lyles (1985),
373,
106 Ill. 2d
or
v.
People
Brisbon (1985),
Thus, our cases have established that the border be- tween permissible and impermissible conduct is impre- cise, and that determination at depends part, least, on the of the case as closeness established by entire record. Where the or question guilt innocence or, here, as the relative of factors in weight aggravation is cut, clear mitigation we are less in- relatively clined to hold that “absent the forbidden constitutionally honest, [inquiry], fair-minded jurors might well very have in” a brought different result. v. (Chapman Cali- (1967), 18, 25-26, 711, U.S. Ed. 17 L. 2d fornia 87 S. Ct. case, aggravat- we view the factors as ing clearly sufficient to support sentence Also, much of jury imposed. the cross-examination to, was not objected that objection defendant did make was sustained. The objectionable was question thus left unanswered and amounted no more than an as have might urged
assertion counsel such well been by that the chal- in a are not argument. persuaded final We er- amounted to reversible conduct lenged prosecutorial ror. claims, the trial court next
The defendant’s
redirect
ex
its discretion in
certain
permitting
abused
hearing,
prose
and that
sentencing
amination
have been
closing
argument
improper,
cutor’s
them in his post-trial
waived
the failure to include
by
motion. See
Caballero
The decision (People for discretion of the trial court. a matter v. Mitchell Goodson 734; 131 Ill. 3d (1985), App. in IPI applicable 129 Ill. 3d When an App. exists, that should be rather given struction instruction 451(a). instruction. 87 Ill. 2d R. than non-IPI in- instance, given was jury pattern this sympa- on “Neither struction which sympathy, provides, (IPI Criminal nor should influence you.” thy prejudice in- that pattern Defendant contends 1.01(5).) 2d No. or based only sympathy prejudice struction refers to negate or nationality inadequate race was upon for victim. do not We feelings sympathy improper that terms, in provides, plain The instruction agree. any decision in is not to influence sympathy engendered references to sympathy More way. specific person or a particular reason toward for particular We in the minds. jurors’ that issue only highlight would find no in abuse discretion so instruct. refusing
Having resolved the issues in presented the defend ant’s direct appeal, we now turn to his petition relief (I under section 2—1401 110, Rev. Stat. ch. par. ll. 1401). His petition, including amendments, was dis 2 — missed the trial court without an evidentiary hearing. We granted leave consolidate the of that deci appeal sion direct with his appeal.
Following his conviction in case, the instant defend- ant transferred to Milwaukee jail Wiscon- County sin to await trial for the Sharon Some- Egerer homicide. thereafter, time defendant’s counsel learned that Oscar Cartegena, another prisoner the Milwaukee County jail, had information regarding crimes that occurred at D. of 1984. An Laney’s February em- investigator ployed by defendant’s counsel interviewed Cartegena. stated
Cartegena to the investigator he had pre- met viously Michelle Thompson and she had phoned and asked him to meet her at D. Laney’s February 1984. He there, went arriving 11:45, at about waited in the lot parking to meet He Thompson. ob- served her and a man whose fit Rene description Valen- tine ingo and out of the bar several times. He also no- ticed a van and a car two black containing men parked near his car.
Sometime thereafter, several men out got of the van and pulled Valentine into it. One of the men from the car grabbed Thompson and her to A dragged the van. later, few moments she was taken from the van and into car, which then drove off. She was nude totally *37 point. description of the driver of the car fit Warren Peters. A later, few moments Valentine emerged from the van and was shot one the men. Sanchez by was not among of abductors group seen Carte- by gena.
The defendant’s investigator signed an prepared told, had was presented affidavit of what he been which motion to vacate his conviction in defendant’s support Proce to section 2 — 1401 of the Code Civil pursuant on the that the affi dure. motion was stricken basis as bare containing hearsay. davit was insufficient which later filed an amended motion Defendant had let known Cartegena’s it be attorney stated that in any if were called to Cartegena testify proceed- the fifth Defendant ac- he would invoke amendment. ing the trial the State court order cordingly requested to confer The trial court de- immunity upon Cartegena. nied these motions and dismissed the without a petition hearing. two el satisfy
A under section 2 — 1401 must petition adequate relief. It must establish to warrant ements peti show that and must for such relief grounds the ground to raise failing tioner was not negligent How 295.) 48 Ill. 2d (1971), v. (People Jennings trial. did not reach the merits ever, trial judge these hence did not defendant’s petition, apply mentioned, As was dismissed petition standards. on the hearing accompanying without a basis view, In our dis summary affidavit was insufficient. for an evi and we remand inappropriate, position on the dentiary hearing petition. an attor rule, petition supported
As a general is insufficient hearsay affidavit ney’s containing only (Windmon relief 2 — 1401. warrant under section we decline However, 31 Ill. Banks 3d App. eases capital this rule inflexibly, especially to apply are of and factual accuracy where fairness procedural importance. paramount in the rules gov find this viewpoint
We support Court Rule affidavits in other contexts. Supreme erning 2— sections under proceedings affidavits governs dismissal) (involuntary 2 — 619 1005 (summary judgment),
285 1985, (Ill. Rev. Stat. 301(b) (special appearances) 2 — 110, 2-1005, 2-619, 191(a) ch. Rule pars. 2-301(b)). that shall made on the provides personal affidavits be of the affi knowledge witness and shall show ant, witness, if sworn as could to testify competently the contents of the affidavit. This would requirement affidavits. 87 Ill. 2d R. generally preclude hearsay 191(a).
Rule an to this 191(b) provides exception general rule, however, in situations where “material facts which to in the ought affidavit are known appear only per sons whose affidavits affiant is unable to rea procure by son or Ill. hostility (87 otherwise.” 2d R. The 191(b).) rule on provide that in goes such situations the court “make any order be may may just,” including or granting motion. denying underlying Rule 191 While does not include affidavits explicitly 1401, under section we support petitions believe 2 — the reasoning behind the Rule is 191(b) exception equally case, in that applicable this setting. investigator’s affidavit states that “material facts” are known to Os car but an Cartegena, affidavit to that can effect not be due procured Cartegena’s invocation fifth amendment. In view, our is sufficient showing to warrant an evidentiary hearing petition, which can Cartegena be examined. The fifth amendment protection asserted the witness at by but his torney.
We realize that Cartegena may himself invoke the fifth if However, amendment called to as testify. with claim, such the trial court must any make threshold determination whether the privilege legitimately being invoked. mere fact that a witness has made a blan ket fifth amendment assertion is not the in end (See Zicarelli v. New State Jersey Com. Inves quiry. tigation 406 L. 234, U.S. Ed. 2d 92 S. If Cartegena’s the trial court determines that
Ct. course, can, of or- claim is the court privilege improper, him to testify. der claim for relief on the alleg
Defendant also bases his regard of Warren Peters. With testimony edly perjured for relief as basis under section perjury 2 — stated: we have *39 allegation
“The mere of is not sufficient au perjury 1401]; perjured testimony under thorize relief [section 2 — must be judgment that warrants relief from final by convincing clear and to have not shown evidence been false, but been and merely willfully purposely have issue tried and given, and to have been material the cumulative, probably that it controlled merely not Ill. People Jennings (1971), 2d the determination.” 2d 71. 295, 299; 22 Ill. v. Lewis has been estab- that argues perjury The defendant his sentencing “recantation” own lished Peters’ by of is further sub- charge and that hearing, perjury stantiated statement. He contends that Cartegena’s by an granted at the least the trial court' should have very hearing on these claims. evidentiary recantation, have ex- regard With we alleged The hearing. of Peters’ sentencing amined the transcript is an at that proceeding that Peters’ “recanted” claim hear- sentencing admitted at his Peters overstatement. of his immaterial changed aspects he certain ing that Sanchez, trial and that between his own testimony However, lied. he had and that as to certain statements even retraction nothing said which approaches Peters performed his Sanchez testimony essential —that We note for which he was convicted. criminal acts his own trial, his Sanchez’ trial and course of own in the to exten- has been hearing, subjected Peters sentencing upon times. Based three separate sive cross-examination deviated record, Peters has never our assessment sense, or to the extent from his story any significant through that Sanchez was convicted one can say may the use of Those which perjured testimony. aspects cannot to have relevant changed have been be said been to the determination. 2 — 1401 motion
Although of the section aspect to Peters’ is not as relating alleged convincing, perjury above, indicated hold con we that the court erred an ducting as to the con evidentiary hearing allegations If cerning the evidence testimony Cartegena. pro duced at is sufficient under evidentiary hearing standards, the court the relief accepted may grant prayed.
For reasons, the above the convictions and sentences of defendant in cause No. 61239 are and the upheld of the circuit court of Lake af- judgments are County case, firmed in that but the execution of the sentence of death is stayed pending of the under disposition petition section 2—1401 circuit court of Lake County. judgment circuit court of Lake in cause County reversed, No. 63683 is cause is remanded for *40 further consistent with this proceedings opinion. —
61239 Judgments affirmed; death sentence stayed. — 63683 Reversed and remanded, with directions. GOLDENHERSH, JUSTICE in concurring and part in dissenting part: the discussing issues in this the presented appeal, states: “The last of
majority alleged example improper cross-examination us Ill. admittedly gives pause.” (115 should; 2d at Indeed it it is the most ex flagrant of cross-examination to come prejudicial ample improper, this court in the cases death many involving pen before alties.
288 these
Defendant asserts that were correctly questions to, and designed not to elicit facts but were intended did, of the to his degrade eyes the defendant in the jury, prejudice. that judicial requires integrity process of be and that a
type interrogation prohibited judgment tactics resulting from such be reversed. The belated sus- of an of taining the falls far short objection questions which it the created. removing prejudice that here I with the misconduct agree majority Ad v. People of found that not fit the pattern does Lyles (1985), v. 102, People ams Ill. 2d (1985), 342; Brisbon 2d 106 Ill. Ill. 2d or cases the prosecu it was much more In those egregious. basis, tenuous, position; tor had some however his here there is no for the cross-exami justification type nation shown in this record.
Although I with the the convic- agree majority affirmed, I am of opinion tion for murder must be a fair I would hearing. that defendant did receive for a remand cause death and penalty vacate new sentencing hearing. SIMON, C.J., J., in this-
CLARK, join partial concurrence and dissent. partial SIMON, also and dis- concurring
JUSTICE part senting part:
I the conviction should be affirmed agree 2 — 1401 of under section the Code petition evidentiary should be remanded for an Civil Procedure I hearing. majority, though, with the part company the defendant its treatment cross-examination that cross-examination sentencing hearing. at While *** (115 Ill. 2d majority only “gives pause” receive it me that the defendant did not 279), convinces *41 a fair hearing. penalty demonstrated in the passage quoted by
As is aptly the the some suc majority, prosecutor attempted (with the the crimes— agree to force defendant cess) “brutal,” whoever committed them —were “savage,” “sadistic,” “butchered,” Egerer Sharon had been and that Michelle had “ripped been Thompson’s body These argumentative: were open.” questions purely them the asking establish prosecutor sought any facts, relevant to invoke the witness’ assent to but only characterization of the (E. facts. prosecutor’s Cleary Graham, and M. 611.23, Illinois Evidence sec. at 417 (4th 1984).) ed. The use of lan repeated inflammatory in these guage the unfairness. questions aggravated Facts of the concerning killings were al brutality before the and were ready jury relevant plainly character of the offender and the of circumstances offense. But the barrage emotionally charged ques tions to the pertaining opinion defendant’s of the nature of killings which he denied one of committing —and which he had not been proved guilty committing —was to “harass” and designed only “humiliate” witness (People Lyles (1985), 106 Ill. 2d 402) thereby to increase the likelihood that return would jury verdict of death. was the final
Equally outrageous which question asked for the defendant’s as to prosecutor thoughts what type mitigation could cause the not to im- jury the death on such facts. That ei- pose penalty question ther called for a which the defendant legal judgment to make or to force the defend- unqualified sought ant to make his own while on the wit- closing argument ness stand. It also to the that the suggested burden penalty death proving inappropriateness con- rested on the defendant personally. majority tends that because counsel’s objection question *42 sustained, was the unanswered “amounted question no more than an assertion counsel such as might well by in have been a final Ill. 2d at urged argument.” (115 this was The is 281-82.) point closing argument, but a to the defendant on the witness stand question put at the end of a and line of cross-exam lengthy improper ination. That question never answered may have left the defendant could jury believing conceive of no reason he should The why spared. only be of effect of this line was to questioning unfairly preju and thus to distract from its dice the defendant task. proper this death involving-the penalty, case after case of the
court has confronted with blatant abuses been v. Brisbon (See, e.g., People function. prosecutorial v. People Lyles (1985), (1985), 342; 106 Ill. 2d 106 Ill. 2d v. Holman People 373; 133; 103 Ill. 2d (1984), Ramirez A 98 Ill. 2d death trial is penalty circus, a nor a and run neither war while emotions may essential if is to that a it is law high, absolutely prevail made in a fashion. decision of this be reasoned gravity intent on a ver securing Overreaching by prosecutors this The char dict of death makes impossible. majority’s acterization of the conduct in this case as “possibly error overzealous” Ill. 2d at but not reversible (115 281) treading will to continue simply encourage prosecutors to, over, close and the line of The ma proper behavior. *** Ill. (115 this “border jority regards imprecise” [as] 2d at the court has 281), but which very imprecision tolerated will result in an of the inevitably expansion as, boundaries “zeal” fu acceptable prosecutorial cases, decisions such as encouraged ture prosecutors one, this even further and harassing preju will push As a conse defendants conduct. dicing by improper trials continue the overall fairness of will quence, capital needed, A line to erode. drawn is clearly stable I would stamp the tactics here un- indelibly employed as constitutional.
The error here was not only but should egregious, result in new penalty hearing. majority apparently holds that since “the relative of factors weight aggra 2d (115 vation clear cut” Ill. relatively and mitigation the error 281), was harmless. The idea that misconduct type prosecutorial can be harmless or not sentencing reversible error in a arises hearing from fundamental misunderstanding nature the sentencing decision. Error at trial may be harmless if the evidence defendant’s guilt *43 is so that overwhelming conviction was inevitable even in the absence of error. States rel. v. (United ex Burke 1985), 1295, 1302; Greer Cir. 756 F.2d (7th Carlson 2d 440, 449.) Ill. Error at a sentenc is ing hearing matter, however; an altogether different there fact, the is not jury asked to decide a of question but must exercise in its judgment choosing among possi ble sanctions. a Unlike verdict of or guilt innocence which an is properly objective determination based the evidence solely presented, deci any sentencing sion is a in discretionary judgment which factors— many some them objective, many but a subjective play— role. The nature of discretionary sentencing is illus trated the in achieving by difficulty anything approach ing in uniformity conventional sentences: one offender receive five may for an offense a years similarly while situated defendant aby sentenced different judge gets trials, 10. to respect capital With there is neither plainly set circumstances any nor law which any body mandates that a or particular even jury, particular must death the judge, impose sentence. view of factors influence is subjective outcome, which it may therefore evi inappropriate speak overwhelming dence in support of decision to the death impose here, that does majority or to as suggest,
penalty Ill. 2d at clear cut” (115 can “relatively the decision be is evident where a which jury, This is 281). particularly in Illinois except not used for sentencing purposes is not permitted explain cases and which capital the death sentence. No decision, for its imposes reasons in aggravation may the evidence matter how substantial the bal may tip conduct be, inflammatory prosecutorial as harmless error. can never dismissed ance and be could applied if the harmless-error rule be Even it circumstances, has be expanded the majority these fac The court views the “aggravating recognition. yond clearly sentence support tors as sufficient 281) 2d at Ill. added.) (115 imposed.” (Emphasis suffic meant “clearly I am not sure what by While either a conclusion ient,” this appears represent in favor evidence that there was substantial majority the man against or that it was not decision jury’s is the stand proper of the evidence. Neither weight ifest of an error is to be the harmlessness ard under which Rather, overwhelming must be so evidence judged. the error a reasonable doubt it is clear beyond ex rel. Burke (United States the decision. did not affect v. Greer On 756 F.2d 1985), Cir. (7th the error standard, cannot conclude obviously we emotional, badgering, argumentative permitting *44 Signif was harmless. of the defendant cross-examination ev including in was presented, icant evidence mitigation child, as a abused that the defendant had been idence and that he held a for some 14 job years, that he had had a house. The defendant enough had saved build convictions, treated his family and he had no criminal the evi to the to decide whether jury It was up well. miti outweighed presented dence aggravation of this was consideration question gation. jury’s cross-examination tainted, prejudicial though, by the defendant.
The admission of evidence concerning killing Sharon Egerer (not murder for which the defendant convicted) also a far more difficult poses problem True, than the seems majority willing acknowledge. this court has held that the rules of do not ap- evidence at the ply second and reli- stage penalty phase, able other-crimes evidence I think, be admitted. may however, that the more serious the offense, “other” more reliable such evidence should be. Otherwise the jury sentence the may defendant to death, perhaps because of the mainly killing which he has just been proved doubt, a guilty beyond reasonable but instead be- cause of another killing which there is some simply evidence. To the defendant protect against jury giv- undue ing to a weight murder which has not been estab- lished a beyond doubt, reasonable no evidence of an- other should killing be admitted absent a conviction for that offense. Although this could pose some difficulty a case like this one in which the defendant has been ac- cused of two independent killings which cannot be tried together, I see no reason on why sentencing the first conviction could not be stayed trial the other pending offense when a defendant a for requests delay pur- pose. While a new would have to be impaneled (if the sentencing defendant requested jury), but small price to ensure pay that such damning ev- idence be reliable.
CHIEF JUSTICE CLARK in this joins con- partial currence and partial dissent.