*1 CONCLUSION above, For the reasons set forth we affirm the defendant’s convictions and sentence of death. We direct clerk of this court to enter an order hereby setting 27, 1991, as the date on Tuesday, September which the sentence of death entered the circuit court by shall be carried out. The defend Montgomery County ant shall be executed lethal by injection the manner provided section 119—5 of the of Criminal Pro by Code cedure of (Ill. Rev. Stat. 5). 119 — The clerk of this court shall send a of the mandate copy of Corrections, the Director the warden of Stateville Center, Correctional and the warden of the institution where the defendant is confined.
Affirmed. JUSTICE CALVO took no in the consideration part or decision of this case.
(No. 69078. ILLINOIS, THE THE STATE Appel- PEOPLE OF OF lee, SIMMS, v. DARRYL Appellant. 3, 1991.
Opinion April 18, Rehearing denied June filed *6 J., CALVO, part. took no
MILLER, C.J., joined by HEIPLE, J., dissenting. Schiedel, Defender, M.
Charles and Allen Deputy H. Andrews, Defender, Assistant Office the State Defender, Appellate of Springfield, for appellant.
Roland W. Burris Neil and F. Hartigan, Attorneys General, of Springfield (Robert Ruiz, J. Solicitor Gen- eral, Frost, Terence M. Madsen Kathryn M. As- sistant General, of Attorneys Chicago, counsel), *7 the People.
JUSTICE BILANDIC delivered the of the opinion court: defendant, Simms,
The was convicted fol Darryl in lowing bench trial the circuit court Du Page County 1985, of murder (Ill. 38, Rev. Stat. ch. 9—par. 1(a)), aggravated criminal sexual assault (Ill. Rev. Stat. 1985, 38, ch. par. -14(a)), criminal sexual (Ill. assault 12— 1985, 38, Rev. Stat. ch. par. armed 13(a)), robbery 12— (Ill. 1985, 38, Rev. Stat. ch. 2), home par. invasion 18— (Ill. 38, Rev. 1985, Stat. ch. par. and residen 11(a)) 12— tial 1985, burglary (Ill. 38, Rev. Stat. ch. par. 3(a)). 19—
162 for the sentencing hearing The State moved a death and to a by defendant his sentenced right jury. waived be eligible The trial found the for death un court defendant (Ill. the Criminal Code of 1961 1(b)(6) der section 9— Stat. The court fur 1(b)(6)). Rev. no factors ther found that there were suffi mitigating and the cient to a death sentence sentenced preclude affirmed death. direct this court appeal, On convictions, but vacated his death sen the defendant’s court for a tence, and remanded the cause to trial v. Simms (People sentencing hearing. new remand, elected to Ill. 2d On be 276.) sentencing resentenced At second by capital jury. the defendant was eli hearing, determined that further found there penalty the death and gible no a sen were factors sufficient mitigating preclude court tence of death. the trial sentenced Accordingly, Ill. 2d (107 This sentence was stayed to death. Const. (Ill. direct court 609(a)) pending appeal R. this VI, Ill. 2d §4(b); 603). art. R. are The the defendants convictions underlying facts in in the defendant’s first direct appeal discussed detail are as rele- only they will be here insofar repeated victim, Lillian La- hearing. vant to the sentencing on victim’s Crosse, April was murdered at husband, LaCrosse, Richard testified wife lived an apartment that he and his hearing 17, 1985, Addison, April On evening Illinois. Edi- failed Commonwealth in the electricity building in the area outside working son were personnel Mr. left apart- LaCrosse apartment. victim’s When building ment for work p.m., apartment in the lights hallways. for dim emergency dark except 7:30 a.m. next home at Mr. LaCrosse returned When dining-room on he found his wife dead morning, testified LaCrosse also her shirt. Mr. floor, only wearing *8 the dresser drawer in the had been dis- bedroom a turbed and that the victim’s and movie camera purse were missing. of parties to the stipulated Mary testimony
Faille, of a nurse who worked in the room emergency St. Ann’s on Hospital April According Faille, the defendant was treated in St. Ann’s emer- 18, 1985, room at 2:20 a.m. gency on for lacer- April ated The defendant told and right thigh. Faille the doc- tor who treated him that he himself had while injured of of cutting potatoes. Because the nature the defend- ant’s wound, Ms. Faille notified de- police the Bellwood partment. Muniz,
Officer of the Barry Addison police depart- ment, testified that he examined the apartment victim’s for following evidence the murder and found no signs Muniz forced also entry. testified he found blood kitchen, victim’s on a dresser the victim’s bed- room, on the rear door the victim’s in the apartment, leading from the victim’s hallway apartment building, and on the inside the landing entrance to the apartment door, next building where the defendant resided. Evi- dence was introduced that mem- by way stipulation bers Addison department executed a search police warrant upon defendant’s apartment and found blood on refrigerator the bathtub of that apart- ment.
Officer Gorniak of the Addison tes- police department tified that the defendant was arrested LaCrosse’s murder at on 19, 1985, 4:30 a.m. April interrogated at the According Streainwood to Gor- police department. niak, signed defendant was advised of and written Miranda waiver of his then Gorniak asked the rights. he defendant how had his injured right thigh and that he had cut himself explained while peel- ing potatoes. explanation When Gorniak stated that this *9 that he had the defendant stated been
was unlikely, in did not want to fight a but during Chicago, stabbed in to he had the area buy tell the because been police that his then informed the defendant Gorniak drugs. brother, Simms, had the that police Darryl Sherrod told told also the stabbing the victim. Gorniak admitted had the found blood on back police defendant in The defend- of and his hallway building apartment. his gave and that he would tell truth ant responded to statement the police. written statement, he left his to defendant’s
According on the p.m. at 11:30 apartment approximately Addison with his arguing girlfriend. after evening April he saw the Commonwealth exiting apartment, Upon The building. in front of Edison crew working the victim’s apartment, allegedly defendant then went to him The defendant up. asked to come because the victim let into that, apartment, him her stated after victim for a the. kitchen ciga- fondled her and then went he when the The became allegedly angry rette. victim her he could not and stabbed stay, told defendant knife. The defendant in with a leg the defendant knife and stabbed possession then obtained he began screaming, in neck. When the victim victim the unconscious. choked her until she became and clothing wiped he the victim’s claimed that removed from her his fingerprints towel remove her with a realized that that, when he stated body. time for long attempted for go prison he would in. the neck and throat murder, he the victim stabbed times, these knowing than wounds would more defendant, the wounds on the According kill her. to the her chest, “strug- and arms resulted from victim’s back on. floor.” The defendant around gling flopping movie camera he took the victim’s purse stated that he he had because feared he left the apartment when left on them the afternoon. The fingerprints previous defendant claimed the statement that he and the vic- tim an having were affair one month approximately murder, to the prior and that he had sexual intercourse with the victim in her the afternoon of apartment during father, The victim’s April George testified Spencer, that he and his wife were with the victim her apart- ment during afternoon and evening April 1985, and that the victim had no visitors. Cole, of the
Deputy Stanley Page Du sheriff’s County office, that, testified as he was placing a holding cell on April 1985, he overheard a conver- sation between the defendant and another officer. The *10 officer got asked the defendant how he the wound on his and the defendant “I leg, responded, missed her I and got myself.”
The parties stipulated the of Dr. testimony Lawrence the Henley, pathologist who the performed au- on the victim. topsy to Dr. According Henley’s testi- the victim mony, was stabbed at least 25 times in the ear, shoulder, throat, chest, arms and back. The victim had also been and the strangled cause of her death was or exsanguination, loss of blood. Photographs depicting body victim’s and her bloodstains in apartment were admitted into evidence. Sachs,
Christine a chemist, forensic testified that the bloodstains in found apartment victim’s were made by blood, 0 type and that both the victim and the defendant had type 0 blood. She also testified a that smear taken vaginal from the victim revealed pres- ence spermatozoa, of that and re- spermatozoa ordinarily mains detectable in a woman’s hours. The body victim’s husband testified that he had not had sexual in- tercourse with his wife for V-lz or weeks before her death.
The introduced defendant testimony State murder, of intentional murder knowing was convicted of as a result of Lillian felony and several counts murder The was also LaCrosse’s death. defendant convicted assault, crimi criminal sexual aggravated five counts invasion, assault, nal home armed robbery sexual residential The burglary. parties stipulated Following defendant was December clos born a find general returned verdict ing arguments, for the death ing penalty, was eligible or old the time of he was 18 more years because in murder and committed the murder the course an Rev. Stat. felony. 1(b)(6). other Ill. hearing, At stage the second showing that defendant testimony State introduced minor after adjudicated delinquent had been a a in the elemen- classmates started fire he several was also ad- school attended. defendant they tary he minor in after committed judicated delinquent burglary. of criminal miscon- State also evidence presented as an adult. engaged Mary
duct which that, 17, 1985, she entered her Matas testified on March in a lot. automobile, parking which was Jewel parked backseat, cut her with emerged The defendant from the beat, her. The blade, knife razor and robbed raped or later, fled the scene. Three weeks then *11 home, of her her in the garage accosted defendant and he last time” be- gotten enough that “hadn’t stated ran when Matas’ away to The defendant beat her. gan Sandra garage. on the lights turned daughter her with threatened the defendant Sender testified and then she unconscious knife, choked her until was a The defendant 26, 1983. in her home on May her raped a result of the as aggravated battery of was convicted that, in August testified Williams incident. Sharon 1980, the her a and defendant threatened with knife her, his present was when one of friends sexu- raped her. Daniel that the ally Kelly assaulted testified defend- ant him in the face mace inter- sprayed with when Kelly the to rupted defendant’s steal an automobile. attempt The State the evidence that defendant presented in to pleaded guilty 1981 and was sentenced burglary three incarceration. The State also introduced evi- years’ dence that a stolen sawed-off was found in shotgun trunk of an automobile the defendant was driving 1982, and that arrested a possessing handgun. .357-caliber the State in- Finally, that, troduced his testimony while second awaiting capi- tal sentencing hearing Center, in Menard Correctional the defendant had altered a had slip and commissary a hot thrown bucket of water into a correctional officer’s face.
In mitigation, presented testimony Menard, two inmates incarcerated who testified the correctional officer whom the defendant as- saulted had sexually harassed defendant. The defend- ant’s ex-wife and three of her relatives testified that defendant was or not as a disciplined supervised youth, defendant used large quantities drugs, that the defendant was good with children. a parties to the facts of in- stipulated personal against action which the defendant brought City
of Chicago and several officers. Chicago police Accord- ing stipulation, the defendant was arrested in 1981, in the course of burglarizing coin laun- operated dromat. When the defendant refused to name his accom- plices, several officers chained him to a police pole with his hands behind his back. The a plastic bag officers put over his head to him to name his persuade accomplices. refusal, When in his persisted police attack dog allowed The dog defendant. ripped *12 the and lacerated his After the pants penis. defendant’s the his he was defendant revealed names of accomplices, taken to Cook where he underwent a County Hospital, The days. circumcision and remained for three partial liable in the civil of was found action City Chicago the defendant. brought by to the Michael parties stipulated testimony in
Fisher, who defendant attorney represented action; stayed civil Fisher stated that in for weeks the defend- apartment during Fisher’s three Fisher im- time, ant’s civil trial in 1984. was During hard honest and work- pressed the defendant was ing. DeSloover, witness, testified Mary
The final defense she while a pre- about information discovered preparing to sentence on defendant. report According DeSloover, introverted exposed defendant was concluded that early violence a DeSloover very age. his defendant’s was because family dysfunctional, occa- stepfather mother was while his very permissive, As a defend- teenager, beat the defendant. sionally in drugs. ant involved street activity became for baby-sat out of school and dropped high In He fathered his the defendant married. nephew. ended in that which divorce relationship, two children drugs. sold illegal 1985. The defendant used arid the State and Following closing arguments by miti- there were no defendant, concluded a death. factors sufficient sentence gating preclude the trial court sentenced Accordingly, this death and followed. appeal
I first that his death sentence The defendant argues ver- general returned must vacated because be it after him for the death eligible penalty dict finding alia, instructed, was inter that he was eligible death if he committed a in the course murder residential that, argues He since burglary. residential burglary not an offense for a death establishing sen eligibility *13 under l(bX6) (Ill. tence section of the Criminal Code 9— 1987, ch. 38, general Rev. Stat. the ver par. 1(b)(6)), 9— dict him for the sentence cannot finding eligible death stand. The State that has responds the defendant waived the error to to by failing object the instruction improper at sentencing the or in hearing his mo post-sentencing tion.
A defendant is for death if eligible the penalty only the State a proves beyond reasonable doubt a statu aggravating factor tory (Ill. 1987, exists. Rev. Stat. ch. 38, Here, par. 1(f).) the defendant’s for the eligibility 9— death was penalty predicated upon statutory aggra factor out set vating 1(b)(6) section of Criminal 9— (Ill. Code Rev. Stat. ch. 38, par. 1(b)(6)),which 9— authorizes imposition of the death sentence a upon defendant who a commits murder in the course of an
other The felony. record reveals that in was structed that it could find that aggravating statutory factor if the only State proved that the defendant actu killed the ally individual, murdered the defendant acted with the intent kill or knowledge with that his acts created strong a of or death serious probability harm, and that “the bodily other one was felony following: assault, criminal sexual aggravated home inva sion, armed residential robbery, burglary.”
The jury instructions were erroneous because residen tial was not of burglary one felonies enumerated section 1(b)(6) which could support eligibility 9— death at the time of penalty the defendant’s sentencing hearing. (Ill. Rev. Stat. 1(b)(6); see also People (1989), Chandler 129 Ill. 233.) 2d As out, State not points did to the im- object trial in his motion. As post-trial instructions or proper rule, to an error at general alleged failure object in a motion results in a trial and written post-sentencing v. Enoch (People of that error on waiver appeal. his
122 Ill. 2d
concedes
186.)
proce
default,
this court should consider
argues
dural
but
his
under the
error” rule.
“plain
claim
rule
court
to take
permits
reviewing
error
plain
not
to the attention
brought
notice of errors which were
court
the evidence is
balanced
closely
the trial
where
is
as to
or
the nature
the error
such
deprive
where
to a fair sentenc
right
his constitutional
accused
Gacho
615(a); People
Ill. 2d
ing
(107
R.
hearing.
v. Walker
221, 239;
122 Ill.
2d
Although
Ill.
the evidence at
defend
504.)
balanced,
not
hearing
closely
ant’s
sentencing
grave
in the
instructions was
as
sufficiently
error
of a fair
hear
have
deprived
*14
in
challenged
will
ing.
regard
jury
we
Accordingly,
People Ogunsola (1981),
v.
as
error. See
plain
structions
v. Brownell
216;
The State argues for on the death basis eligible found the defendant jury
171 Yet, of a valid circumstance. was aggravating jury instructed it could find for eligible death if murder in the of a occurred course residen tial 1(b)(6) even section did not list burglary, though 9— residential those eli among felonies burglary supporting for the death the time of the defend gibility penalty 38, ant’s sentencing hearing. (Ill. 1987, Rev. Stat. ch. par. 1012, 1, see Act eff. 1(b)(6); but Pub. July 86— 9— 1987, 38, 1990 Ill. Rev. Stat. (amending to add residential 1(b)(6)(c) enumerated burglary felonies).) error the jury instructions was not cured verdict, since the by jury’s jury returned a general verdict finding eligible the defendant for death sentence. The verdict signed form stated simply that the jury found that unanimously aggra a statutory existed, factor vating without which under specifying or lying felony felonies the relied upon establish the defendant’s for death. eligibility
The United States Supreme
recognized
Court has
that “a general verdict must
set
if the
be
aside
instructed that it could
on
or
rely
two more inde
any
pendent grounds, and one of those
is insuffi
grounds
cient, because the verdict
have rested
on
may
exclusively
the insufficient ground.”
v.
(Zant
Stephens 462
862, 881,
U.S.
L.
235, 252,
2733,
77
Ed.
103 S.
2d
Ct.
accord Yates United
2745;
States
U.S.
1356, 1371,
1 L. Ed.
1073;
Stromberg 359, 367-68, 283 U.S. California L. Ed. S. Ct. This 535.) ap principle here, plies because the that a jury’s finding statutory ag factor gravating existed, making eligible death, may have rested on the fact that exclusively *15 the murder occurred in the course of a residential bur a not in glary, felony enumerated section of 1(b)(6) 9— the Criminal (Ill. 1987, 38, Code Rev. Stat. we the
1(b)(6)). Accordingly, conclude that defendant’s 172 v. Davis
death must See sentence be vacated. v. Alexander United States 2d (1983), 27; 97 Ill. cf. (extrinsic Cir. F.2d 189-90 factors (4th 1984), that, the made it the could although record clear not, fact, have an it did ground, relied upon improper so). do the sentence argues State that defendant’s death vacated, the enti
need not because defendant was not be eligi tled to new to determine whether he was hearing this for death sentence. The State out that points ble death sentence court vacated defendant’s first be introduced erroneously cause victim evidence was impact sentencing hearing. (People stage second Simms 121 Ill. 2d The State contends 276.) not to have the first that the defendant was entitled conducted capital of phase proceeding taint evidence did not impact because victim again, it the sentencing proceeding. Accordingly, of phase which occurred at the argues any eligibility errors second hear capital sentencing of the defendant’s phase in this ing may ignored appeal. be for reasons. the State’s two argument
We must reject sec First, this found errors at the only court although hearing, penalty ond of the defendant’s first death stage the defendant’s death our reversed opinion expressly court “a new and remanded to circuit sentence 2d Simms 121 Ill. sentencing hearing.” (People limited expressly in the 276.) Nothing opinion the second of hearing on remand to scope phase v. Turner (Cf. People sentencing hearing. capital phase Ill. so that the second (remanded could be conducted sentencing hearing capital both Second, chose to with proceed State anew).) remand, on sentencing proceeding stages claim the defendant was its waived thereby right
173 aggravation entitled to a have the and only mitigation of the phase proceeding again. conducted of defendant claims that number other errors occurred at his Because we sentencing hearing. conclude the defendant’s death sentence must be reversed and the cause remanded to trial court for another we sentencing hearing, allegations address those only error which likely again People are to arise on remand. 178, 221; v. Terrell 132 v. (1989), People Ill. 2d Wilson 116 Ill. 2d (1987),
II The defendant he argues that was of his deprived to right against confront witnesses when him the trial court permitted police officer to first testify stage the sentencing hearing that the defendant’s told brother that the police kill- admitted the victim. ing Officer Gomiak Specifically, testified that he informed the defendant that “Sherrod defend- [the ant’s told us that he had a conversation with brother] Darryl during conversation Darryl admitted Sherrod that he had been at the apartment victim’s had stabbed her.” The trial court overruled the defend- objection ant’s to Gorniak’s testimony, and instructed that the statement was admitted to show what only caused Officer Gorniak to continue questioning it defendant and that was not to the truth accept matter asserted.
The defendant claims that Gorniak’s testimony was To inadmissible as an hearsay. qualify hearsay, out-of- court statement must be offered to the truth of establish the matter asserted. (People Rogers (1980), Ill. 2d 571.) about an out-of-court Testimony statement which is for a used other purpose than the truth of the prove (Peo matter asserted in the statement is not “hearsay.” ple 1; v. Anderson Ill. People v. Stewart Silagy 22; 101 Ill. 2d 105 Ill. 2d these we must conclude that principles,
147.) Applying was not tes hearsay. challenged Gorniak’s testimony introduced, not for the truth of what timony Offi said, Simms to the jury why Sherrod but explain the defendant after question cer Gomiak continued to explanation offered a plausible leg. wound on his *17 recount may held a officer
This court has that police crime, a and the in the of investigation may taken steps arrest, to defendant’s leading the events the up describe to important fully is and testimony necessary where such v. (People to the trier of the State’s case fact. explain v. 89, 130; People Hayes (1990), 139 Johnson Ill. 2d v. Wilson People 13, , 24; 116 Ill. see also 2d (1987) 847, Ill. 3d have also held , 850-51.) 168 We (1988) App. his that conversations officer about police may testify witnesses, others, such victims or when such tes with as the truth the matter is not offered to of prove timony other, investiga the asserted the but is used to show by the describing the Testimony tive taken officer. steps by if it admissible even sug of the is investigation progress the witness defend nontestifying implicated that a gests v. Peo (People Morgan (1991), 410, 447; 2d ant. Ill. People v. v. Gacho ple 248-49; 221, 122 Ill. 2d (1988), Holman 133, Gorniak’s testi 149.) 103 Ill. 2d the continued explain why police was admissible to mony The the murder. to about victim’s question the testi trial instructed the that jury court specifically of explain the limited purpose was introduced for mony act, they that were not caused the to ing police what to the truth of Simms’ statement Sherrod accept to the con showing must absent presume, We police. the trial instructions judge’s that followed jury trary, Harris Ill. a verdict. reaching 113, 134; People Silagy 357, 116 Ill. 2d
III court argues defendant next the trial abused to consider, its discretion by permitting jury during of the first certain stage sentencing hearing, photo- of the decedent graphs throughout bloodstains her He contends were apartment. photographs not at the any relevant issue first the sen- stage He tencing also contends hearing. any probative value that have photographs had was out- may their weighed by effect. prejudicial
The record reveals that permitted 2, 8, view Exhibits 8 and 77. Exhibit at photographed crime, scene depicts the decedent’s partially naked body, and stab wounds in the victim’s neck and breast. Exhibit also scene photographed crime, depicts stab wounds in the decedent’s neck. Exhibit photographed during an autopsy, depicts sev- eral in the stab wounds decedent’s back. also 31, 32, 33, 38, viewed Exhibits 40 and which depict various in the bloodstains found decedent’s apart- ment. The State justifies the admission of the photo- *18 on the graphs ground tend to show the they defendant’s intent to kill or his of a knowledge strong probability that his acts would result death. of
The the first purpose of the sentenc phase capital ing hearing is to allow the to the jury determine defend ant’s for the death Evidence eligibility penalty. having direct the bearing on statutory prerequisites be ad may mitted stage, this while and inflamma unnecessary tory evidence that could influence the improperly must (People be excluded. v. Brisbon Ill. 2d 342, 371.) The of decision whether to admit photographs into evidence is left to the of the trial court, discretion whose will decision not be overturned absent an of abuse discretion. Lucas 132 Ill. 2d stated, of State relied section upon 1(b)(6) As the 9— (Ill. the Code Rev. Stat. Criminal its for the In de invoking penalty. as basis death 1(b)(6)) whether the defendant was death termining eligible section, that had to consider under occurred, whether the murder felony whether another committed in the course of another felony, was re acted with the mental state whether The trial court admitted under the statute. quired relevant to they on the that were photographs ground The of intent. photographs the defendant’s question are of defendant’s probative the victim’s wounds state, number and placement mental since sheer that .the defendant intended depicted suggest wounds of a strong victim acted knowledge to kill the or with Peo death. that his acts would cause her probability Cf Davis Ill. 28-29 of vic ple (photograph was not probative tim in wheelchair slumped over kill). defendant’s intent to if however, the pho- that even argues,
The defendant
relevant,
have been ad-
should not
they
were
tographs
into
their
value was
probative
mitted
evidence because
He
effect
their
outweighed by
prejudicial
upon
jury.
that
were not necessary
contends
the photographs
of an inten-
death was
result
that
victim’s
prove
admitted,
to the
act,
he
his statement
because
tional
knowing
he
stabbed
victim repeatedly,
that
police,
observes
kill her.
that
the wounds would
testimony
by
that his admission was corroborated
kill
and of
with intent
he
convicted of murder
prob-
his acts created a substantial
murder
knowing
harm.
bodily
death or serious
ability
were cumulative
evi-
fact
the photographs
sufficient,
not
mental state is
of the defendant’s
dence
has
into
This court
recog-
admission
evidence.
bar their
clearer
demonstrative
evidence
be
may
nized that
*19
177
more
than oral
persuasive
covering
testimony
exactly
the same
points
has allowed the
to view
jury
photo
of a crime victim even when the
graphs
photographs
simply depict what witnesses have
described.
orally
(Peo
ple
5,
v.
55
Henenberg (1973),
13-14.)
Ill. 2d
We have also
held that
of a decedent
photographs
which are relevant
to establish
issue of fact are
any
admissible in
spite
the fact
they may
gruesome
be
or inflammatory
v.
(People
(1987),
317,
Shum
117 Ill. 2d
353-54; People v.
Foster
76 Ill.
(1979),
365,
375-78),
that it is not
2d.
an abuse of discretion to allow the
to consider
pho
which
tographs
may be characterized as “disgusting”
v. Shum
117
(People
317, 353,
Ill. 2d
Peo
quoting
ple v. Lindgren (1980),
129,
79 Ill. 2d
This court
143).
has also held that
major bulwark against prejudic
“[t]he
is
ing
the sound discretion of the trial judge.”
People Foster
365,
Ill. 2d
these
Applying
find
principles, we
that the admission
of the photographs was not an abuse of discretion. The
cases which the defendant cites are distinguishable.
In
People Brisbon (1985),
The on the other photographs challenged were of the victim for whose murder the defendant was sentenced. While were being gruesome, photographs of the defendant’s mental state and were not probative introduced to inflame and solely prejudice Thus, the defendant. we cannot conclude that against the trial court its discretion in admitting pho abused into in to ex jurors evidence or tographs permitting amine them during eligibility stage sentencing v. People Rogers (1988), Ill. 2d hearing. See 516-17.
IV The that evidence of criminal argues also misconduct not result in conviction should not which did been admitted at the second of his stage sentencing have evidence established hearing. challenged misconduct, in acts of criminal engaged eight assaults, offenses, three sexual two including weapons (assault one and two offenses aggravated battery occurred the defendant was incar- which while forgery) cerated. the introduction
Our death statute penalty permits hear the second during phase evidence during admissible would not be ing ordinarily which 1985, ch. of trial. Rev. Stat. guilt phase (Ill. to a has held that evidence pertaining This court
1(e).) admissible, if the is even defendant’s misconduct prior conviction, or if in misconduct did not result prosecution cross-examination. relevant, it subject is reliable 253, 284; 2d People 128 Ill. (People Johnson 346; 116 Ill. v. Sanchez Lego test, this the evi 115 Ill. 2d Under 276.) the defendant aggravation against dence presented was admissible. violent and
Evidence exhibited Lillian LaCrosse prior murdering criminal behavior and after he was incarcerated for that crime was rele vant, it on the likelihood that the defendant because bore commit would other offenses. evidence was proba tive of the defendant’s character and aided the determining whether death was the appropriate penalty. *21 v. Brisbon 106 Ill. 2d 364-65. People (1985), The evidence of the defendant’s criminal prior behav- ior also was reliable. each offense Testimony regarding was a witness with firsthand presented by knowledge the criminal misconduct. The sexual assault victims testi- fied to the circumstances the assault and surrounding identified the defendant as positively the assailant. Their remained unchanged cross-examination. testimony upon the Although witnesses, defense introduced rebuttal who identified minor inconsistencies between each victim’s initial and her trial the complaint subsequent testimony, rebuttal witnesses did not reliability undermine the victims’ Evidence that the defendant com- testimony. mitted aggravated was likewise battery presented by victim of that testimony whose battery, corroborated officer who arrested the defendant in by police connec- tion with incident. evidence of the Finally, two weap- ons offenses was presented by police officers who saw the defendant’s weapons possession. The officers’ remained on testimony unimpeached cross-examination. to the testimony relating Because defendant’s prior reliable, criminal misconduct was both relevant and it was admissible at the sentencing hearing.
V The defendant also that the trial argues court should have instructed the that, if not sentenced to jury death, the defendant would receive either a term of fixed 20 to or a life years’ imprisonment sentence with no chance The trial parole. court refused the defendant’s pro- posed instruction and that, instead instructed the if it determined that a death sentence was inappropriate, the court would a sentence other than impose death.
In People v. Albanese (1984), 102 Ill. 2d this court it held that is not for a trial improper court to instruct a sentencing jury alternative to death is a prison term, without life specifying term is imprisonment. (P v. Albanese eople (1984), 102 Ill. 2d 81.) court is explained sentencing jury only responsi ble for whether determining the death is war penalty ranted, not if sentence severity prison v. Al death sentence is found inappropriate. People banese v. Stewart Ill. 54, 81; 2d see 105 Ill. 2d out,
As the defendant points this court an recognized exception to this rule in cases where the defendant’s eli for death gibility is murder predicated upon multiple v. Gacho convictions. (People 122 Ill. Gacho, In
261.) that, cases, we held in multiple-murder the trial court should instruct if that, it finds *22 factors sufficient to mitigating preclude imposition death the defendant will to natural penalty, be sentenced life and that no imprisonment, a term of person serving released, natural life can imprisonment be or ex paroled Gacho, through executive 122 Ill. 2d at cept clemency. in Gacho to The concerns which the court prompted instructions, revise the in cases where the death jury convictions, sentence is murder predicated upon multiple do not in cases. The Gacho court single-murder apply Illinois concluded that standard instruc pattern jury cases, tion not (IPI) given multiple-murder should be because the that jury might believe defendant could be sentenced a term of if sentenced years not erroneous, death. Such a conclusion would be because sentencing alternatives for a defendant con only imprisonment. victed of death or life multiple murders are natural 38, Rev. Stat. ch. (Il 1005—8— par. l. Here, on 1(a)(1)(c).) hand, the other the instruction given informed the court could sen accurately jury tence the defendant to a term if the did not years jury impose the death sentence. See Ill. Rev. Stat.
38, pars. also 8—1(a)(1), 8—2(a)(1);see Peo 1005— 1005— ple 65, 116-17; v. Bean (1990), 137 Ill. 2d People Turner 128 Ill. 2d 574-75. argues, however, informing of the alternative
jury sentences the trial court might if impose not sentenced to death would increase of the death accuracy sentencing that, He claims hearing. information, without such jurors could have he believed that would be released few if did not years they the death impose As penalty. the court out in pointed Bean 137 Ill. People 117-18, however, the trial court would have to ex plain our State’s entire determinate system before the would be informed the alter fully about native sentences the if defendant could not sen receive tenced to death. could fairly accurately compare the death sentence alternative sentences of imprisonment if it only was instructed defend ant could be released from before he served prison full imposed, sentence though either executive clemency or good-conduct by earning credits provided by rules of Department of Corrections. Ill. (See Rev. 6—3; Stat. 1987, ch. v. Bean *23 182 held, 65, 117-18.) repeatedly We have 137 Ill. 2d
(1990), a about jury to inform however, that it is improper before serv paroled be may that a possibility the jury’s information diverts Such his full sentence. ing cir and the of the offender the character attention from it a specula and focuses upon of his offense cumstances v. (See People not occur. may or may tive possibility v. Walker People 327, 366; Szabo Ill. 2d 94 (1983), to adhere Thus, continue 502, 515.) we 91 Ill. 2d (1982), it not error to refuse hold that is decisions which to our terms of imprison of the possible instruct the jury if not sentenced receive might ment which Peo Bean 118; v. People 65, Ill. 2d 137 (1990), to death. v. Al People 71; v. Stewart 22, Ill. 2d ple 105 (1984), banese Ill. 2d 102 (1984),
VI
erred
judge
the trial
argues
next
The defendant
which
instruction
a proposed
refusing
give
in mak
consider mercy
you may
the law
stated: “Under
statute,
penalty
our death
decision.” Under
ing your
factors
mitigating
consider
any
body may
penalty.
death
to the imposition
are relevant
which
Although
1(c).)
Stat.
Rev.
(I
ll.
relevant
is a
mercy
acknowledged
has
this court
Holman
(People
Ill. 2d
(1984),
factor
mitigating
the jury
claims that
rejected
it has
133, 170),
repeatedly
(see
mercy
to consider
instructed
specifically
must be
People
101-02;
v. Flores
People
128 Ill. 2d
v. Stewart
269;
Sanchez
115 Ill. 2d
Sanchez,
this court
In
463, 492-93).
Ill. 2d
instruc
a “mercy”
refusal
to give
trial court’s
upheld
held that
court
refused here. Our
to that
tion equivalent
not error
is
instruction
mercy
give
specific
refusal
evi
to present
any
is permitted
where the
is instructed
and the jury
mitigating
it considers
dence
that it
consider
may
any facts or circumstances that pro
vide reasons for
a sentence other
imposing
than death.
that,
held
circumstances,
We
such
is free to
consider
or
mercy
other
factor
any
mitigating
despite
*24
of
absence
a specific instruction to do so.
v.
(People
(1986),
238,
Sanchez
115 Ill.
269;
2d
see also California
v.
(1987),
Brown
Although court refused to give the defend- ant’s non-IPI proposed “mercy” instruction, it did in- struct jury factors mitigating included “any other reason supported by evidence the defend- why ant should not be sentenced to death.” In addition, the defendant was permitted to present evidence of his back- ground in an effort persuade jury exercise Here, as in mercy. Sanchez, the refusal to instruct as jury error, was not requested because the was in a position consider as mercy if mitigating factor, it chose to do so.
VII
The defendant also raises a number of constitutional
challenges to the death penalty. He first argues that the
death
act
penalty
is
because,
unconstitutional
once a
statutory aggravating
found,
factor
is
bears the burden of
persuading
that death
should not be imposed. The defendant
argues
statute
creates a
thereby
rebuttable mandatory presump
tion in favor of a death sentence, which violates the
eighth amendment, because death
bemay
imposed with
out an individualized determination
it
is appropriate
in a particular case. Our court has considered and re
jected this claim. People v. Fields (1990),
184 nor stated that neither State repeatedly
We have of at the aggrava the defendant bears burden proof the death hearing. tion and of mitigation phase penalty v. Bean v. 138-40; People 137 Ill. 2d (People (1990), v. Del Vecchio 72, 112; People Guest 115 Ill. 2d (1986), People Brownell 414, 446; 79 (1980), 105 Ill. 2d (1985), Rather, of 538.) 2d State bears burden Ill. factors and the aggravation forward with going has the forward with evi going burden Fields (People factors. mitigating dence v. Del Vecchio Ill. 2d 18, 73; 2d Ill. determination is a 414, 445-46.) weighing in which neither bears the burden party proof. process v. Sanchez Ill. have (People 269.) We the death pen also the defendant’s claim that rejected does not allow for an individualized determi statute alty the death sentence is appropriate partic nation that scheme statutory implicitly requires ular instance. *25 weigh aggravating mitigat jury carefully result, in order to reach a fair and based just factors ing of the and indi circumstances offense particular on v. Walker People defendant. characteristics of the vidual v. Del Vecchio People 484, 508-09; 109 Ill. 2d (1985), v. Brownell People 414, 445-46; (1980), 105 Ill. 2d (1985), 508, 538. 79 Ill. 2d claim that the statute the defendant’s reject
We also that death is creates unconstitutionally presumption not does body the appropriate penalty. Rather, the statute is appropriate. that death presume a reasonable doubt beyond the State to prove requires making factor exists that a statutory aggravating must then per- for death. The State eligible suffi- are no factors mitigating there suade the sen- imposing the sentencer from cient to preclude not, need may, death. but tence are mitigating there to persuade attempt People a sentence death. preclude factors sufficient 138-40; v. Del People 137 Ill. 2d (1990), v. Bean Ill. 445-46. Vecchio 2d the death penalty- The defendant also contends that not statute is unconstitutional it does provide because and capri adequate safeguards prevent arbitrary sentence. The defendant cious death imposition that, features of the claims while various individual constitutional, death statute found penalty have been render the stat cumulative effect of all of these features ute This ar unconstitutionally arbitrary capricious. on several oc gument rejected has been considered and 410, 473; casions 142 Ill. (People Morgan (1990), 500, 549-50; People Thomas 137 Ill. 2d v. Phillips 127 Ill. 2d and the 542-43), defendant has not reason to presented any persuasive reconsider those decisions. the defendant raises other of er-
Although allegations ror, we need not address them in this because we appeal, find that not are to arise on remand. they likely again For stated, the reasons the defendant’s death sentence is vacated and the cause is the trial remanded to court a new sentencing hearing. vacated;
Sentence cause remanded. JUSTICE took CALVO no the consideration part or decision of this case. MILLER,
CHIEF JUSTICE dissenting: I do not conclusion that agree with court’s defendant’s death sentence must vacated because of be *26 instructional error committed the first during stage the sentencing hearing. bar,
In the case at the defendant’s for the eligibility death was premised aggravat- on the penalty statutory circumstance
ing found in section of the 1(b)(6) Crimi 9— felony nal Code of murder in the course of specified Rev. Stat. ( 1(b)(6)). Without Ill. 9— objection, jurors were told that the death penalty if could be found that occurred imposed they murder offenses, the commission of certain er during including, residential was roneously, burglary. Although burglary the felonies then among 1(b)(6), section specified 9— not, residential burglary and the instructions were erroneous to that extent. At conclusion of first stage found the sentencing hearing, jury sentence, defendant for the death eligible using gen eral verdict form to memorialize its finding. jury determined that there subsequently mitigating were no circumstances sufficient of that preclude imposition sentence, and the trial sentenced the judge accordingly to death. The defendant and the ma argues, the failure of the instructions jority agrees, the felonies an that would sustain correctly specify eligi 1(b)(6) determination under section must bility nullify the sentence. the evidence majority acknowledges pre
sented below “was not balanced.” Ill. 2d at closely (143 Nonetheless, the' court chooses 170.) vacate because, death sentence in the defendant’s majority’s view, the asserted error denied the gravity a fair In of its hearing. support invokes the rule that a ver holding, general majority dict on alternative one of is in resting grounds, which valid, if the court cannot de reviewing be reversed may on a termine with sufficient relied certainty (See Stromberg valid basis its decision. California L. 532.) 283 U.S. Ed. S. Ct. whether an error of that nature may Without inquiring the er- waived, assumes that majority ever be simply
187 ror committed in the case was present sufficiently seri- ous that another is sentencing hearing required. now
The defendant did not
to the
instructions
object
jury
used
the first
of the
during
sentencing hearing.
stage
(Cf. People
v. Chandler
(defendant
During stage sentencing hearing, fully informed of the offenses committed by defendant in the present case. State evi- presented dence of the defendant’s convictions both on multiple counts of murder and on the felony attendant felonies. The additional offenses included aggravated criminal sexual assault, assault, criminal sexual armed robbery, and residential all burglary; but residential burglary would render the defendant for the eligible death penalty under the version of section 1(b)(6) at issue here. Cer- tified copies defendant’s convictions were admit- ted without and the objection, raised no chal- evidence, to that lenge or to the erroneous instructions.
In the case, the present failed completely to call the trial attention to the error in the in- judge’s structions used The evidence sentencing hearing. clearly established the defendant’s for eligibility death to the penalty pursuant same statutory aggravat- circumstance on ing several I separate grounds. would conclude, under the standard review of constitutional
188 error (see Chapman 386 U.S. California L. Ed. 2d 87 S. Ct. 824), the defect in the jury instructions was harmless beyond reasonable doubt. See Clemons v. Mississippi 738, 753-54, U.S. L. 725, 741-42, 110 Ed. 2d 1441, 1451. S. Ct. stated,
For I the reasons dissent. respectfully JUSTICE HEIPLE in this joins dissent.
(No. 69158. al., WILLIAM BLAGG et v. ILLINOIS Appellants, COMPANY et EQUIPMENT F.W.D. TRUCK AND al. Harbor, (The Village Winthrop Appellee). 3, 1991.
Opinion Rehearing March denied June filed