*1 XIV) I, 2, of the Illinois Constitution and article section 2). (111. 1970, I, § of death Const. art. Williams’ sentence sentenced therefore be vacated and should be should (West l(j) 720 ILCS imprisonment. to a term of 5/9 — 1992).
(No. 84686. ILLINOIS, Appel THE PEOPLE OF THE STATE OF lee, SIMS, v. PARIS D. Appellant. Rehearing denied October 2000.
Opinion June filed 2000. *6 RATHJE, J., concurring. specially HARRISON, C.J., part. concurring part dissenting in and Defender, J. Schiedel, and John Deputy Charles M. Defenders, of McCarthy, Hanlon John Assistant M. Defender, of Appellate Springfield, the Office of the State for appellant. (Joel General, of Ryan, Attorney Springfield
James E. Browers, General, Bertocchi, and William L. D. Solicitor At- Iskowich, H. Steven J. Zick and David Assistant General, counsel), of for the torneys Chicago, People. of the opinion JUSTICE McMORROW delivered court: Clair in the circuit court of St.
Following jury trial Sims, Paris was convicted County, defendant, D. murder murder, attempted degree first degree first sentencing hearing, At robbery. separate armed eligible penalty. for death same found defendant jury The also found that jury there were no cir mitigating cumstances sufficient of that preclude imposition sentence. Defendant was sentenced to death for the mur der and to 30-year consecutive terms of imprisonment for the remaining offenses. Defendant’s death sentence has been stayed pending direct review this court. Ill. 609(a). 1970, VI, § Const. art. 4(b); 134 Ill. 2d Rs. For follow, the reasons that we affirm defendant’s convic tions and sentences.
BACKGROUND Testimony at trial established the following facts. On the morning 24,1994, of October approximately a.m., police Belleville, officers Illinois, received a call stating that a man seen, had been blood, covered in running down the street a Belleville trailer park. When the of- ficers responding to the call reached the trailer park, they man, discovered this in a lying fetal on position ground near the trailers. The man was from bleeding head and face and was incoherent. Officers also discov- ered, in the bedroom of trailers, one of the the dead body of 17-year-old JoAna Bollinger.1 The man found injured on the ground, police later learned, was JoAna Bollinger’s 17-year-old husband, Bollinger. Jacob trial,
At Jacob testified about the events which took place during the evening hours of October 23 and early morning hours of October 24. Jacob told the jury that on evening October at about 9:30 or 10 p.m., and some friends left Belleville and drove to the nearby *7 town of Waterloo to pick aup pet snake. Jacob explained that he had an interest in reptiles the snake was a present wife, from JoAna, for his upcoming birthday. Jacob acknowledged that, while he was in 1The record contains several spellings different of JoAna Bollinger’s first name. We defer spelling to the appears which in impact the victim prepared by statement Bollinger’s JoAna grandmother. marijuana. stated, however,that
Waterloo, he smoked He smoking marijuana, despite he remained aware of the going home on around him. Jacob returned what was p.m. Waterloo, alone, at about 11:30 from began home, that when he arrived Jacob testified kept. cleaning aquarium pet snake was which sitting the couch in the front JoAna was awake and on Bollingers’ portion trailer, consisted of a of the which living kitchen area. The room and combination Bollingers’ daughter asleep bedroom, in her infant just living room. After Jacob finished to the rear cleaning aquarium, their he and JoAna went to began at the back end of the trailer and bedroom Shortly they engage thereafter, intercourse. sexual knocking The on their front door. heard someone Bollingers ignore knocking, but after it had tried to minutes, to answer continued for about 10 Jacob decided put sweatpants He on some and returned the door. living room. opened door, front testified that when he
Jacob approximately male, 5 feet he saw an African-American or 6 feet tall. The man had a much wider build inches pounds. time, At the than Jacob’s own build of 120 Jacob “Ice,” man at the door was an individ- believed that the prior In ual whom he had met on two or three occasions. court, however, identified defendant as the man Jacob had knocked on the door. Jacob stated that defen- who if in out of the rain and wait dant asked he could come coming. in. De- for a ride that he had Jacob let defendant appear under the influence of fendant did not to be drugs. entered Jacob estimated that defendant alcohol or 12:30 a.m. the trailer about trailer, Jacob went back After defendant entered trailer her else was to JoAna and told that someone her the bedroom without and that she should not leave bedroom, defen- Jacob came out of the clothes on. When *8 him, dant confronted a knife to his throat and forced put Jacob, him According back into the bedroom. to defen- if dant threatened to kill the screamed or Bollingers they get away. tried to Jacob stated that defendant pressed the knife his throat and forced him to some against open boxes and the jewelry pick through belongings top on the bedroom dresser. Defendant then the Bollingers asked where their money was. When JoAna told defendant that money room, their was in her in purse living defen- dant switched the knife to her throat and forced both JoAna and Jacob into the living gave room. After Jacob defendant about from JoAna’s purse, they $80 all returned to bedroom.
Once in the bedroom, defendant pushed Jacob to the floor and JoAna onto the bed. Defendant continued to search money for and again threatened to kill He Bollingers. bed, then returned to the lowered his pants and forced him, JoAna to oral perform upon sex as Jacob sat next to the bed watching. According Jacob, then raped vaginally JoAna and anally. Jacob that, acts, stated during these defendant slashed JoAna’s back with the knife that, reaction, and in Jacob moved. Defendant then grabbed hair, JoAna’s large cut off a piece, Jacob, threw it at move, and told Jacob not to or he would cut JoAna’s throat.
After defendant Jacob, threw the hair at he told Ja- cob to lie down on the floor next to the bed. Jacob did so. Defendant continued to rape JoAna. Defendant then got up, pulled floor, Jacob from up pushed him against the bed with knee his back and tied a pair long- johns around his throat. up Jacob looked and saw that JoAna lying bed, was on the “white and real pale” alive, that “she was but she didn’t look alive.” Jacob then began fight back. Jacob grabbed long-johns and started pulling them, on air. trying get Defendant then hit Jacob the back of the head.
Jacob stated that the next he thing could remember out of the coming hallway running for front door, door. When he got discovered that it was and, locked. Defendant with as the caught up Jacob two area, fought living room and kitchen defendant hit Jacob several times in the head Ja- heavy object. *9 testified that kept slipping cob he on blood as defendant him, that, to eventually, continued strike but he was able door, it, to the front get open escape. and Jacob then neighbor, ran to the trailer of his and Ricky Harvey, banged anyone on the door. Jacob did not wait for answer, however, instead, run, jumped but continued to fence, collapsed over some weeds. He awoke to police standing find a officer over him. Jacob was taken to the hospital where he was treated for cuts and large gashes to his head and eye. court,
In Jacob identified which were found in rings pocket at the time of arrest as ones which his belonged to JoAna and which were taken defendant by during the attack. Jacob adjustable also identified an wrench which was recovered from a wooded area outside trailer as one which he had in a tool in his kept box bedroom. Jacob stated that the wrench was consistent with the him in object used to strike the head. Jacob also identified a knife which was recovered outside the trailer as the one which was Ja- used defendant. cob stated that this knife did not to the belong Bollingers. cross-examination,
On in the explained Jacob how weeks the attack he following gave several statements how, statement, police, each he ad- provided ditional information as it police returned to his memory. acknowledged Jacob that he have left both may and minor details out of his major statements. acknowledged Jacob also that he had smoked mari- on or juana neighbor Kathy with his Kunkle two three occasions to the attack. He denied prior using drugs with neighbor neighbor Ricky Harvey or another with his with Anthony familiar, Graham. Jacob stated whom he was marijuana time he continued to smoke since the had the attack. regarding his identifi- Jacob was also cross-examined light assailant, in of his initial cation of defendant as the “Ice,” to Jacob at the time of belief that it was known appeared at door on the Sims, trial as Willie who night that, of the attack. testified about six weeks Jacob gave a man he met on the attack, before the a ride to park. spent hour street, in the trailer Jacob about an taking man, him to two stores. The man told Jacob that he was called “Ice.” Jacob stated that he might previously Rickey Harvey’s have seen “Ice” trailer but that he was not certain that this was person he had seen. that he did not Jacob also stated “ person “Ice, i.e., know if the he took to the stores was Sims, Willie or defendant. redirect,
On Jacob stated that he had heard that might “Ice” have been defendant’s cousin. Jacob also *10 said that he was certain that defendant was the man Referring attacked him to de- who and murdered JoAna. jury, I fendant, Jacob told the “I know he did it. can look him I a face I at and know that’s the face saw. That’s forget.” will never park, Jamison,
Vickie a resident of the trailer also that, at testified for the State. Jamison stated about 3:30 24, 1994, a.m. on October a man knocked on her door “hurry up court, him in.” In Jami- and told her to and let defendant, son identified whom she had known for about According month, Jamison, once one as this man. to de- looking kept trailer, fendant was he out anybody Jamison, door, “If window and told comes asleep. told the don’t let them in.” He then fell Jamison jury approximately earlier, had that she seen defendant p.m., drinking 8 or 9 with friends. She also stated that on both occasions defendant, when she saw he was wear- ing boots, black tan pants, green shirt, and blue and a cap. Jamison testified that defendant left her trailer at about 8:30 or 9 a.m. on the morning of October 24. Before left, asked Jamison for a change of shirt. Jamison complied, and defendant left behind his blue green shirt, and his cap. Jamison threw shirt into her cap closet with her dirty clothes. She later gave these items to the police when they came to her trailer and told her defendant “had killed somebody.” In court, Jamison identified the boots recovered from defen- dant at the time of his arrest as the ones he wore on the night October 23 and the early morning October 24. Jamison that, also stated on October she “went aid public office and found out that [defendant] had killed somebody.”
On cross-examination Jamison acknowledged she had been convicted of perjury and theft. Jamison stated that she her knew neighbors Ricky Harvey and Kathy Kunkle and was aware that defendant socialized and did drugs with them. Jamison also knew a man who was called “Ice” and knew that “Ice” hung around with Ricky Harvey and others the trailer court.
Detectives Doug Ellis, Jones and Dave of the Belle- police ville department, testified that defendant ar- rested about six or seven blocks from the Bollingers’ trailer at 8:47 a.m. on October 1994. The officers had been searching for defendant on morning of October 24 based upon information gathered during interviews conducted park. arrest, trailer At the time of de- fendant appeared be about 6 feet or tall, 6 feet inch and appeared to weigh between 180 and 200 pounds. De- fendant did not appear injured be or under the influ- ence of alcohol or At the drugs. police station, Belleville police officers recovered four rings, women’s an earring *11 stud and approximately from currency $24 into were also taken pants and Defendant’s boots pocket. evidence. that, after defendant and Ellis both testified
Jones statements, Miranda he made two warnings, given Defendant out Ellis. was written each which of the murder. the scene being denied initially statement, he described the follow- However, in his first defendant, he had According to series of events. ing months, two for Bollingers approximately known the relationship sexual in a consensual engaged had been On the morning two weeks. previous JoAna for the a.m., defendant entered 24, 1994, at about of October Sometime trailer with their consent. Bollingers’ thereafter, Bollingers’ went into the bathroom defendant came out of the cocaine. When defendant and smoked if Jacob bathroom, he asked Jacob he could borrow $10. but that money told defendant that he did not have bedroom, if she had JoAna, who was in the he would ask bedroom, defendant, who went into the any. When Jacob room, looking money started for living remained four Defendant found and about purse. $80 JoAna’s defendant Jacob came out of the bedroom saw rings. The fought. from JoAna’s two taking money purse. him back in a choke hold and took Defendant Jacob put and Jacob bedroom, In the defendant to the bedroom. the head Defendant hit Jacob over again. began fighting Defendant then took knocked him out. with a vase and JoAna, told who was dresser and knife from bedroom arm around put right to shut He then screaming, up. fight- her. JoAna choking kept and started JoAna’s throat of her nose come out when defendant saw blood ing, but trailer, and threw then left the go. he let her Defendant De- as he walked off. hat into some weeds his shirt and ar- cocaine to his bought prior fendant later and smoked rest. added the follow- statement,
In his second *12 ing JoAna, facts. As choking got defendant was his arm up tired. He of picked pair long-johns, white wrapped tightened them, them around JoAna’s throat and caus- ing blood to come out of her After nose. defendant JoAna, dropped Jacob awoke. Defendant took a of pair vise tool grips from a box the bedroom and hit Jacob tool, with them He knife, twice. later threw the and the into the trees behind the trailer. Bollingers’ Just before being arrested, defendant at stopped “Vickie’s” trailer and asked her to retrieve had the clothes which he thrown into the weeds. police Stephen Krug
Belleville detectives and Ste- phen Schmulbach testified about and their observations preservation of the crime scene on October 24. and Krug Schmulbach they stated at the Bollingers’ arrived trailer at approximately They 4:50 a.m. observed blood throughout trailer, various locations including the large amounts blood in kitchen of the area and rear bedroom. also They observed JoAna Bollinger lying unclothed on floor in the the rear bedroom with a of pair dark blue around her A pants neck. bruise with some type pattern visible on her A clump was back. of hair was floor bedroom, found on the in the rear the next to bed, and a broken ceramic on the mug was bed. From room, the living detectives a purse, recovered coin purse case, as An cosmetic as well other items. adjustable wrench and a knife found in a were wooded area outside A cap the trailer. shirt and were recovered from Vickie trailer later on October A Jamison’s 24. pair of long-johns was recovered from the Bollingers’ bedroom on October 28. autopsy
Schmulbach also stated that he attended the of JoAna 24. Bollinger during the afternoon October time, At that sole of had a boot which been taken from his arrest earlier was day compared Bollinger’s to the bruise on JoAna back. photographed to the bruise next the boot Schmulbach pattern similar the bruise and stated pattern of the boot. on the sole tread Harry performed pathologist Parks Forensic Bollinger upon autopsy 24. Parks on October JoAna by strangulation, killed had been that JoAna believed ligature. type probably by also noted Parks of soft some imprint appeared on JoAna’s shoe a boot or be what him one shown to to the sole of a boot back, similar autopsy. attending police were Swabs officers given vagina anus and mouth, taken of JoAna’s police officers. laboratory the Il- director at Peck, assistant David laboratory in Fairview Police forensic linois State *13 fingerprint expert Heights, and footwear as an testified analysis. impression numerous items of examined Peck fingerprints, for from the crime scene evidence taken including outside the knife recovered the wrench and mug, Bollingers’ pieces a ceramic trailer, of the broken bag. purse unable to Peck was and a cosmetic leather fingerprints any Peck with defendant. match recovered of JoAna the found on the back stated that bruise also Bollinger by one of defendant’s made “could have” been patterns similarity on the soles of of boots, based on the to state Peck was unable the and on the bruise. boots positively the had made of defendant’s boots that one impression individ- of a lack of JoAna’s back because on identifying the soles of the boots. characteristics on ual employed the Il- Rees, a forensic scientist
Donna laboratory, as an testified Police forensic linois State serology. expert that, based Rees stated in the area of marking genetic analysis type upon known as of blood analysis, floor of the the kitchen found on bloodstains Bollingers’ the found outside trailer, on the wrench pants arrest, his taken from defendant trailer, on the trailer Jamison’s from Vickie on the shirt recovered and “could have” come from Bollinger Jacob but not from defendant or Bollinger. JoAna Rees also identified the on presence semen and vaginal rectal swabs taken of JoAna No was Bollinger. semen found on the oral swab.
Phillip Sallee, biologist a forensic at the Illinois State laboratory Police’s crime in Springfield, testified for the (DNA) deoxyribonucleic State acid regarding evidence. Sallee described generally process of restriction frag- (RFLP) ment length polymorphism profiling. DNA Sallee said that he performed analysis this DNA type upon samples blood taken from defendant and the Bollingers, the seminal upon vaginal material found on the rectal swabs Bollinger. taken JoAna Sallee stated that develop profile was able to a full DNA from the semen on found the vaginal swab and that this profile matched Based upon calculations, DNA. statistical Sallee determined that a person odds that selected at from random the general population would the same have profile DNA as that from developed the semen sample taken from vaginal swab were million to one. Sallee concluded there “good chance” that the semen found on swab vaginal came from defen- dant. Sallee also stated the DNA from extracted semen found on the rectal swab matched defendant’s Sallee however, DNA. that he explained, was unable to a full develop DNA from semen profile recovered from Thus, the rectal according Sallee, swab. respect *14 swab, to the semen taken sample from the rectal the odds of random match in were one 200 African- every persons. American trial,
Defendant offered only one witness at Ricky 1994, Harvey. Harvey testified that in October of he lived in a trailer across the street Harvey from Bollingers. Bollingers week, saw the several and socialized times Defendant, with them on Harvey occasion. whom had to socialize daily almost years, by stopped for two known Harvey, Bollinger Jacob knew Harvey. According both “Ice” Sims and had seen and defendant Willie both cross-examination, Har- trailer. On Harvey’s of them at during early defendant that he had seen vey testified 1994, he had not 24, of but that hours October morning Willie thought that he Sims. stated Harvey seen Willie in the on date. county jail Sims was by the presented no evidence There was rebuttal instructions, the jury and closing arguments State. After first murder of degree defendant of the guilty found attempted murder of Jacob Bollinger, guilty JoAna of the robbery. and of armed Bollinger, guilty during eligibility were presented No witnesses Following argu- the death phase penalty proceedings. of counsel, eligible found defendant for jury ments 1(b)(6) of to section penalty, pursuant death 9— Criminal of committed murder in 1961, having Code for another felony. course of final the State phase sentencing hearing,
At the convicted presented evidence that defendant had been 7, had theft in St. Clair on June and been County one-year to a The State imprisonment. sentenced term also evidence that defendant had been con- presented County February victed of theft St. Clair twice year and had received a sentence of one for probation each offense. Braun, then Cynthia
The State called Braun agent, testify aggravation. former parole prison stated that defendant had been released from August 15, one release on placed year’s supervised on release, requested 1994. defendant and received Upon referrals from Braun. On cross- employment housing examination, acknowledged Braun that defendant had been as he was in dependent identified cocaine while Braun stated she did not prison. provide *15 any with substance abuse counseling because defendant did not did request it. She not know if defendant had counseling received any prison. while in Jesse Vineyard, correctional officer at Menard also testified in prison, aggravation. stated that Vineyard in 1995, November prison conducting officials a routine inspection metal, shank, discovered a or piece ap- an proximately eight inch and a half wide by long, inches that, in defendant’s Vineyard cell. stated as a result incident, this a hearing was held before prison’s disciplinary committee. Defendant found guilty was violating rules and prison prison privileges. lost various
Marilyn Stofleth, Bollinger’s grandmother, JoAna was final the State’s witness in aggravation. Stofleth read a impact jury. victim statement In mitigation, the defense defen- witness, called one mother, dant’s Joyce Wheeler. Wheeler testified de- fendant born in 1972, was when she was 16. She also stated that had years defendant a brother who was two was, older than he and that she had never married the boys’ father. Wheeler and her sons moved from Center- ville, Illinois, three, to Minnesota when defendant was and then to was fam- California defendant was four. The ily returned Centerville in when defendant was 14. good Defendant was a in California, student while but went “haywire” and “wild” after Cen- returning to terville. According Wheeler, in part this was due murders of his in uncle 1986 and cousin Defen- 1987. dant began skipping school and into getting trouble the law after these murders. never Defendant completed the ninth grade.
Wheeler stated that defendant drugs, had abused cocaine, specifically years alcohol and since he was 16 old. Wheeler that defendant vol- explained pursued had untary Gateway substance treatment at the Center abuse when he Belleville was and that had also Louis and the centers St. received treatment from Chicago no treatment However, defendant received area. upon prison in release from 1994. abuse his for substance get unsuccessfully urged to more had Wheeler that, when defen- stated treatment at time. Wheeler changed drugs, personality and he dant on disrespectful. told Wheeler also loud, rude and *16 became boys, jury two five the father of the that defendant was years De- old, live with their mother. and four who now years. for three fendant had lived with his sons at least arguments, jury closing After the concluded that mitigating sufficient to there were no preclude circumstances imposition penalty. of the death Defendant the subsequently The sen- was sentenced to death. court 30-year prison to terms tenced defendant two consecutive robbery attempted and armed convic- the murder for appeal tions. This followed.
ANALYSIS Suppress to Motion Statements suppress a to trial, Prior to defendant filed motion police made to Belleville on the statements which he the alleged motion, In October 1994. the defendant involuntarily given the were and were statements Arizona, and that he obtained in violation of Miranda prob- had been arrested without a warrant and without Following hearing, court a the circuit found able cause. suspect a canvas the that defendant “became a after neighborhood morning the of the murder” and concluded voluntary and made that “defendant’s statement mo- The circuit court denied defendant’s with Miranda.” suppress. appeal, not tion to On defendant does contend gave police he the Belleville that the statements which involuntary rights or that his Miranda were were repeats Instead, his assertion that violated. police probable him on to arrest October lacked cause 24.
At the on defendant’s motion to hearing suppress, the State presented testimony police of Belleville David detectives Ellis Jones. Ellis Doug testified he was called to the trailer Bollingers’ at about 4:30 a.m. on the morning trailer, of October 24. Once he at background familiarized himself of the case speaking officers who had first arrived at the mur- began der scene. He then interviewing who were people present park. in the trailer one
Ellis stated that of the he people spoke to was Tony Graham, park. resident of the trailer Graham told Ellis that he had heard “a bunch coming of noise” from Bollingers’ trailer, “like someone was trying and, get time, seen, out” at the same through had window, a person Bollinger’s inside the trailer. Graham gave Ellis a description person Shortly had seen. thereafter, Ellis related this another description to trailer resident, park Kunkle Kathy Kunkle. told Ellis that description “was Paris Sims or sounded like Paris Sims.” Kunkle told also Ellis that had she seen defendant previous evening Ricky Harvey’s trailer. According *17 Ellis, Belleville police spoke officers with and Harvey had, fact, confirmed that defendant at Harvey’s been trailer on of night the October 23. Police officers also noted that Harvey’s trailer was located across the street from the Bollingers’ that, trailer. further Ellis testified at the time he and information, Jones were he gathering knew that defendant was in the trailer frequently park that, where the murder was committed. Ellis also stated arrests, because of had previous he some with familiarity defendant 1994. prior October Ellis the that speaking Kunkle, told court after and he Detective Jones went to a convenience store to a in an speak attempt relative of defendant to locate him. The convenience store or was located about four time, blocks from the trailer. the Bollingers’ five At Ellis a and of defendant picture with them and Jones had during had filled out been history sheet which personal that, as Ellis stated arrests. previous one of defendant’s man store, they saw a leaving and were the Jones of picture the walking the street who resembled down into got The detectives they had with them. defendant man or past car drove once their unmarked and was, the man themselves if twice, discussing between in the decided that" it was. fact, person They picture. car, out, approached stopped got The their detectives that him The man told them man and asked his name. On personal name Dennis Jones. defendant’s his marks such as scars identifying sheet were listed history a scar and tat- tattoos. Ellis and Jones noticed that they on man had ap- listed on the sheet were too man birth The detectives then asked the his proached. birth, The man date of which was gave date. The detectives personal history also listed on the sheet. that the them was indeed defen- person concluded before They that he was under arrest dant. advised defendant him Ellis transported to the Belleville station. police arrested 8:47 a.m. stated defendant was at about hear- suppression Detective Jones also testified Ellis’ ing. testimony description Jones’ corroborated near defendant’s arrest the convenience store. not
The that we need special concurrence concludes prob address whether defendant was arrested without actually did move to able cause not because arrest confession the fruit of an unlawful suppress his as met initial and, never his burden consequently, arrest was unlaw case establishing prima facie 12(b) Criminal Pro ful under section Code of 114— (725 12(b) (West 1998)) (see, e.g., cedure ILCS 5/114 — (1997)). In addi Ertl, 292 Ill. 3d People App. that, though even tion, special concurrence concludes *18 Ellis introduced the of Detectives testimony the State 614
and Jones their concerning investigation of the crimes and the preceding arrest, events probable defendant’s cause was not at litigated suppression hearing. We disagree. Defendant’s motion to suppress asserts plainly that was arrested without warrant and without probable State, cause. The on appeal, acknowl- expressly edges that defendant was arrested a warrant. without Further, in its brief court, before this the State argues only that defendant was probable arrested with cause. The contend, State does not in any that way, failed to establish a prima case that his arrest was facie unlawful, or that defendant otherwise his right forfeited challenge legality of arrest before this court. Thus, the State has that conceded defendant met his prima probable litigated burden cause was facie at suppression Indeed, of hearing. the testimony Ellis and Jones been would have if unnecessary irrelevant only contested issue was the voluntariness defendant’s statements given the police station. We see no disregard reason concessions, the State’s when particularly those concessions coincide with defendant’s characterization of the proceedings below. Accordingly, we address the issue of the legality arrest by as framed the parties ap- to this i.e., peal, whether defendant’s warrantless arrest was made with probable cause.
To
valid,
effect a
arrest,
warrantless
a police officer
Ohio,
v.
must have probable
Beck
cause to arrest.
379
89, 91,
145,
223,
U.S.
13 L.
2d 142,
Ed.
85 S. Ct.
225
(1996).
v.
(1964);
People Kidd,
175 Ill. 2d
22
Probable
cause to arrest
where
exists
the facts and circumstances
known to
police
officer at the time of the arrest are
sufficient
person
to warrant
reasonable
caution to
believe that
had
an offense
been committed and
offense was
People
committed
arrested.
person
(1982).
Lippert,
89 Ill. 2d
Mere
is in-
suspicion
*19
arrest,
the
to
but
cause
probable
to establish
adequate
not
officers does
arresting
the
upon by
evidence relied
a reasonable
beyond
to prove guilt
sufficient
have
be
“an arrest
Notably,
Ill 2d at 22.
because
Kidd, 175
doubt.
for
persons
the function of producing
not
serves
only
function,
investigative
an
but also serves
prosecution
only
an arrest can occur
when
have not ruled that
courts
than
it is more probable
the
facts indicate
known
committed the
individual has
suspected
not that
179;
2 W.
generally
89 Ill. 2d at
see
crime.” Lippert,
(3d
1996).
3.2(e),
ed.
LaFave,
§
Seizure
at 64-68
Search &
by
The
of
cause is determined
probable
existence
at the time of
arrest.
totality of the circumstances
(1984)
Tisler,
(following
After
examining
at the time defen-
to detectives Ellis and Jones
known
that the officers had
dant
we conclude
apprehended,
was
in the
an arrest. The record
cause to effectuate
probable
detectives,
investigating
that the
while
case
bar shows
murder,
canvassed
attempted
a brutal murder and
informa-
attempt
gather
trailer
an
Bollingers’
park
known witness to
only
the crimes. The
tion about
with head
murder,
hospitalized
Jacob
Bollinger,
their
began
incoherent
Ellis and Jones
injuries and
when
initially given
physical
The
interviews.
detectives were
Graham,
neighbor, Tony
of a
description
suspect by
reported
who
seeing someone in the Bollingers’
trailer.
When the
gave
detectives
description
this
to another
neighbor, Kathy Kunkle, she provided them with defen
dant’s name. Both Graham and Kunkle provided infor
mation in their capacity as ordinary citizens. Neither
Graham nor Kunkle was an anonymous
informant or a
(fact
Kidd,
paid, criminal
informant. See
At the time of arrest, Ellis and Jones also knew that defendant frequently visited the trailer *20 park. They knew specifically that defendant had been across the street from the Bollingers’ trailer hours before the murder occurred. The detectives located defendant, unexpectedly, four or five blocks from the murder scene hours after the murder had taken place. When the offic ers approached defendant street, on the gave them a name which they knew to be false. See People v. Wil liams, 79 (1979) Ill. 3d App. 821 (suspect’s giving of false name a factor in establishing probable cause); 2 W. (3d LaFave, 1996) Search 3.6(f), § & Seizure at 327 ed. (responses by the suspect which the officer to knows be may cause). false be a factor in constituting probable Considering totality circumstances set forth above, we believe that Ellis and Jones had probable cause to arrest defendant.
Defendant argues, however, that certain facts known to the detectives at the time of the arrest must be discounted from our probable cause analysis. to Citing case law which held that a suspect’s presence near a scene, crime by itself, is insufficient to probable establish (see, e.g., People Carnivale, cause 61 Ill. 2d 58 (1975)), contends that the fact that he was Bollingers’ placed af trailer both before and to the close “virtually irrelevant” to whether murder is ter the probable As to effectuate an arrest. had cause detectives points arrested out, however,defendant was not the State solely presence In near the crime scene. ad on his based reported of no decision which holds dition, we know suspect’s proximity to a crime scene is irrelevant establishing probable Lippert, Ill. cause to arrest. Cf. (discussing found 2d at 181 fact that the defendant was noting generally in an area near the crime scene and police required suspect that a that the are not assume put as much distance between himself and the crime has possible). Accordingly, scene as is we determine that and after the murder defendant’s location both before determining may properly considered as factors in be probable had cause to arrest de whether Ellis Jones fendant. argues Kathy identifica-
Defendant also Kunkle’s probable tion from our of defendant must be discounted analysis adequately cause explain because the State has failed to name. Defendant
how she arrived
suppression hearing,
that,
asserts
at the
the State of-
description given by Tony
specific
fered no evidence of the
Bollingers’
police
of the man he saw the
Graham
according
Therefore,
defendant,
trailer.
“the State
may
rely upon
having
[sic]
[defen-
not
Kunkel’s
named
knowledge wholly
dant], as the basis of her
is
unknown
unexplained.”
*21
probable
jurisprudence,
of
In
cause
the term “basis
knowledge”
or citizen informant
refers to how a criminal
given
acquired
police.
has
information that has been
Tisler,
An
of an infor
something more substantial than con clusory allegations Spinelli v. or “casual rumor.” United
618 States, 410, 416, 393 U.S. 21 637, 644, L. Ed. 2d 89 S. Ct. (1969). 584, 589 The basis knowledge inquiry is not a separate or independent test which must be satisfied in Tisler, order to establish probable cause. 103 2d Ill. Rather, 237-40. an informant’s basis of knowledge is simply relevant factor to be considered as part of the totality of the circumstances known to police at the time Kidd, quoting People v. 23, arrest. 175 Ill. 2d at Adams, (1989). 387, 131 Ill. 2d 398
In the
bar,
case at
the evidence shows that Kunkle’s
identification
of defendant was not based on casual
rumor. To the
contrary,
evidence of record shows that
Kunkle had personal knowledge
defendant,
and that
provided
she
Ellis and Jones with defendant’s
name only
after
the officers had relayed Graham’s
description
her.
detectives,
therefore,
The
were well aware
Kunkle was not
making
bald assertion that defendant
had
murder,
committed the
nor was she simply reporting
“an offhand
remark
heard
at a neighborhood
bar.”
Spinelli, 393
U.S. at
L. Ed. 2d at
89 S. Ct. at
Wilson,
People
(1994)
589.
Moreover, under the totality of the circumstances ap proach to establishing probable cause, an imperfect expression of the basis of knowledge may nevertheless suffice probable establish cause when considered together with the other relevant facts known to the po Tisler, lice at the time of the arrest. 240-41; 103 Ill. 2d at (3d LaFave, 3.3(d), § W. Search & Seizure at 145 ed. 1996). stated, As Kunkle’s identification of defendant was not the sole relevant factor under consideration police. The requires law us to consider Kunkle’s identification of defendant part totality as of the
619 of the ar- at the time police known circumstances in a rest, all the known circumstances and to review considering After way. carefully nontechnical practical, that Detec- record, have determined the evidence of we cause to arrest defen- probable Ellis and Jones had tives properly that the circuit court dant. we hold Accordingly, suppress. denied defendant’s motion to Hearing at the Fitness of the Indictment Reading In took in 1997. place September Defendant’s trial 1997, hearing sepa- a fitness was conducted before July presented rate the State jury. During hearing, witnesses, Delancey of two Dr. John Rabin and testimony Rabin, a forensic testified that he psychiatrist, Moore. May During had tried to examine defendant in 1997. examination, “I defendant answered don’t know” to in questions, response questions, several but to other times, stared and to himself. At other simply whispered religious made comments of a nature. Rabin terminated this after interview about minutes. Rabin a second examination in June of de- attempted but fendant would not leave his cell to meet with Rabin. cooperate, Because defendant’s refusal to Rabin stated that he was unable to render an as to whether opinion defendant was fit to stand trial. Rabin also testified that it was that defendant or possible malingering, faking was disorder, a psychological during his examinations. Rabin noted that there malingering suspected should be when i.e., is a “medical context legal presentation,” when someone is with a crime or involved in charged litigation.
Moore, a in classification the St. Clair specialist County sheriffs testified that he department, was all charge determining housing placement for inmates in the and that he the chair of county jail, jail’s that, committee. Moore stated as a disciplinary matter, general he would not hold a disciplinary hearing unless the inmate the nature of the charges understood
and proceeding. Moore explained that he had dealt with defendant at disciplinary proceedings the county jail in April and in June 1997. During April proceedings, defendant had requested that a witness be called on his behalf. According Moore, defendant was competent, aware of his surroundings, and cognizant of the nature of the proceedings both April June.
Defendant’s grandmother mother and testified on behalf the during fitness hearing. Both women stated that defendant’s mental condition had de- teriorated since incarceration, his that he was frequently them, unable to recognize and that he suffered memory lapses.
Defendant also presented the testimony clinical psychologist Dr. Michael Gelbort. Gelbort stated that he examined defendant during two 45-minute sessions in March 1997. During sessions, these defendant was largely uncommunicative and unresponsive, but he also engaged in consistent delusional behavior. Gelbort, to According most of defendant’s words and conduct appeared to be response to his own internal thoughts. Defendant himself, mumbled to and spit stomped on the get floor to rid of imaginary bugs, repeatedly cigarettes asked for despite Gelbort’s statements that he had none. Defen- dant also indicated that he hearing voices, was and spoke of God and other matters in a jumbled manner. Because of the behavior, consistency Gelbort concluded that defendant was not “gilding lily,” or faking psychologi- cal symptoms. Based upon his examinations of defen- dant, as well as discussions jail with personnel, Gelbort determined that defendant was imfit to stand trial. Gelbort was cross-examined at length regarding the basis of his unfit, conclusion that defendant was and about the possibility that defendant was malingering.
During Gelbort, State’s cross-examination of State to sought have Gelbort read the charging indict- the indictment introducing The purpose ment. State’s that, while defendant Gelbort’s conclusion was rebut understanding rudimentary have some might with, he to “under- charged was unable crimes was of those would be.” implication charges stand what the stated, alia, defendant was The indictment inter that offense of FIRST DEGREE charged committing “the *** he, justification MURDER that without lawful kill Joana Bollinger, strangled with the intent Joana Bollinger.” the death of Joana Bollinger, thereby causing cross-examination, arguing to this objected Defendant the indictment described the circumstances of murder, and that these circumstances were irrelevant and would inflame the The unduly jury. objection and, overruled. Gelbort read the indictment aloud after that, concluded some de- questioning, coaching,” “with fendant could understand what the indictment meant. At hearing, jury conclusion the fitness found de- fendant fit to stand trial.
Defendant the circuit court erred argues now when it permitted Gelbort read indictment before *24 error, and that as a of this a new fitness jury, result State, and a trial are The in re hearing required. new sponse, correctly argument observes that this is procedur ally defaulted because defendant failed to include it Enoch, 176, 122 post-trial his motion. See v. Ill. 2d People (1988). Nevertheless, 186 Court pursuant Supreme (134 615(a) 615(a)), Ill may Rule 2d R. this court review an not if conclude that argument properly preserved we error a has occurred. plain affecting right substantial (1998). Shaw, Before People v. 186 Ill. 2d 326-27 however, error “it is invoking plain exception, ap all.” to determine whether error occurred at propriate (1989). Wade, 131 Ill. 2d People Initially, scope argu- we note that the of defendant’s unclear. ment In regarding indictment is somewhat brief, his opening defendant appears argue that only it was error to jury allow the to hear about the manner in which JoAna Bollinger murdered, i.e., that she had been In strangled. reply brief, however, defendant states that the jury should not have been told that defen- dant was charged with murder at all. We do not believe that may assert this latter argument.
At several times during fitness proceedings, members of the jury were told that defendant had been charged with murder. Some of these occasions were initi- ated, or acquiesced in, by defense counsel. For example, during the questioning of the prospective jurors for the fitness hearing, concern was raised about the publicity which defendant’s case had received. The following col- loquy then occurred:
“[Defense I suggest just very counsel]: would that general question broad concerning just the fact be that this publicity, they received some and if any newspa- have read per any articles or seen any television or heard radio concerning this case. And I probably, believe we’d have to conjunction that, probably with mention that the— alleged names of the victims here.
THE Right. COURT: And it would seem to me a little up question follow any juror for considering who is question they anything whether heard as to what it is talking we are about. Does mean that we need de- anything Degree scribe other than the First Murder charge?
[Defense I counsel]: don’t think we do.” Later, during opening arguments before the defense jury, counsel stated: *** testify “Dr. Gelbort will [defendant’s] here but he charged murder;
doesn’t understand that he’s that he going doesn’t understand that he jury will be for—before a point guilt some future where his or innocence of that determined; murder will be that he doesn’t understand ei- proceedings fact, ther the or that charged he’s with mur- der.”
In light of the defendant cannot foregoing, now contend
623 that, because the indictment stated that defendant was charged murder, the trial court erred when it permitted jury. the indictment to be read See, before the (1994) e.g., People App. Abston, v. 263 Ill. 3d 671 (where acquiesces the defendant in the trial court’s action, course of the defendant cannot raise that course appeal). of action as error on remaining argument
Defendant’s is that his fitness hearing irreparably by jury was tainted the fact that the Bollinger heard that JoAna had been murdered strangulation. In view, defendant’s the circumstances of question the victim’s murder were irrelevant to the legal whether defendant technical, understood the charges against according addition, him. In defendant, strong possibility jury there is a that, when the heard Bollinger strangled, jury that JoAna had been lost its on focus whether defendant fit trial, was to stand improperly instead focused on the nature of the crime. argues Thus, defendant that he is entitled to a new fit- hearing disagree. ness and new trial. We Even if we assume that the circumstances of JoAna Bollinger’s determining murder were irrelevant to question fitness, the admission of those clearly circumstances was harmless. Before Gelbort read jury Bollinger the indictment, knew JoAna had obviously, murdered, been knew, that the murder graphic had been committed in some manner. No or inflammatory details of the murder were included in the only descriptive Indeed, indictment. term in the “strangled.” indictment is the word Furthermore, before beginning jury properly deliberations, its only instructed that issue it was to decide was defendant’s fitness to stand trial. Under the facts of this case, we find that no reversible error occurred when the jury. Consequently, indictment was read before the we plain People also find no error. See Keene, 169 Ill. 2d (1995) (all errors). plain errors are reversible *26 Motion in Limine to Limit the Cross-Examination Phillip
of
Sallee
in limine to
1997, the
filed a motion
August,
In
State
area of impeachment
defense from
an
pursuing
bar the
the
DNA expert
the cross-examination
of
State’s
during
to
witness,
sought
the State
Phillip
Specifically,
Sallee.
had entered into a
the fact that Sallee
bar from evidence
Il-
his
the
employer,
“predisciplinary
agreement”
micro-
Police, for his theft of state-owned
linois State
7,
January
1995. Ac-
which occurred on or about
scopes,
the
motion,
the terms
cording
to the State’s
Sallee to
agreement
required
perform
predisciplinary
service, to be
from work
community
suspended
period
and to forfeit vacation
period
pay,
for a
of time without
1997,
motion,
Sallee
according to
By August
benefits.
agree-
terms of the
completed
predisciplinary
had
“in
stand-
employee
good
considered an
ment
circuit court
brief
ing.”
hearing
arguments,
After
limine,
in
that
the evi-
ruling
the State’s motion
granted
irrelevant
and collat-
dence of Sallee’s misconduct was
jury.
to
decided
eral to the ultimate issues
be
court,
that
the circuit
Before this
defendant contends
defense from impeaching
court erred when it barred the
predisciplinary
agreement,
evidence of the
Sallee with
of his convictions
that
this error
reversal
requires
this
initially
The State
maintains
and a new trial.
failed
is
defaulted because
procedurally
issue
motion in limine
his
preserve
objection
to
Enoch,
On
the defendant in Bull
that it was
motion in limine because
cross-
error
to allow the
record
disciplinary
his
Metzger regarding
examination
that
crime
would show
laboratory
the State Police
or to embellish
testify falsely
to
Metzger had a “motive
Bull, 185 Ill. 2d
please
employers.”
his
testimony
his
stating:
rejected
argument,
This court
that
at 206.
that
and remote to infer
speculative
record is too
“The
by
testimony.
something
gain
lose
As
Metzger had
or
noted,
charges
ap
arose
trial court
the administrative
Metzger
completed
had
years
proximately two
after
Further,
trial oc
analysis in this case.
reported his DNA
year
Metzger was disci
approximately one
after
curred
trial,
testimony regarding his DNA
Metzger’s
plined. At
three-year-old
based on the
analysis of defendant was
Bull,
Defendant’s is that a to contention Sallee had motive fabricate DNA results which implicated at time because of the DNA testing, facing Sallee in the disciplinary proceedings State Police crime lab. For correct, this contention to a be number assump- tions would have be true. For example, it would have that, to be assumed having been stealing discovered microscopes in jeopardy, his livelihood Sallee’s immediate reaction would be to start fabricating evi- dence which case he was currently working on; that Sallee would begin evidence, fabricating with all the at- so, tendant risks of even doing though he did not yet know whether tried, defendant’s case would be or whether some other such as defendant disposition, plead- ing or guilty being evidence, exonerated by other would occur; that Sallee would risk fabricating evidence even though yet would, he did not if fact, know he be called testify trial; he would risk fabricat- ing so, evidence even though by be doing would help- ing only the prosecutors St. Clair who County, would no have control or “leverage” over the disciplinary in the proceedings crime lab in Springfield; and that he would risk fabricating evidence lessening as means of his administrative discipline though even the crime lab might reasonably be expected be concerned about its reputation and, therefore, and integrity, not look might one favorably upon employee’s fabricating its evidence. In light and in foregoing, the absence of any evi- dence other than the mere existence of the disciplinary agreement, we find any alleged incentive on Sallee’s part
628 disciplinary DNA of the to fabricate proceedings evidence because microscopes arising of the out theft no in the uncertain. therefore find error remote and We granting motion in limine. circuit court’s Having of State’s no error, no it that there can be found follows granting plain of in the court’s the State’s error circuit procedurally Accordingly, defendant’s claim is motion. defaulted.
Hearsay Testimony of VickieJamison jury Testifying State, told the for the Vickie Jamison early morning her trailer in the that defendant came to stayed night, then 24, 1994, hours of October that, later on left 8:30 Jamison also testified around a.m. police department October officers of the Belleville requested de- information about came to her trailer and According her Jamison, informed fendant. the officers somebody.” also that “had killed Jamison initially heard involve- stated that she about defendant’s public aid of- ment in the murder when she “went somebody.” [defendant] killed out had fice and found argues foregoing made that the statements Defendant hearsay that, a con- inadmissible as Jamison were sequence deprived statements, a fair of these was acknowledges objection that no was trial. Defendant and, made remarks the time trial to Jamison’s procedurally present claim is therefore, that the of error argues, however, that this court defaulted. Defendant also plain error the claim of error under should review explained below, find no we doctrine. For the reasons plain error. deciding,
Assuming, that Jamison’s testi without clearly hearsay, mony harmless. its admission was was hearsay error is harmless “The evidence admission probability jury no where there is reasonable hearsay acquitted the defendant absent would have (1990). People testimony.” 2d 447 Nevitt, Ill. probability There is no here. The two such statements by Jamison made were isolated comments made testimony. context of extended narrative Both statements response general inquiries by made in State, were upon any way. and neither remark was elaborated testimony, Moreover, from aside Jamison’s the evidence guilt overwhelming. Bollinger of defendant’s Jacob *30 unequivocally testified that him defendant attacked given po- wife, murdered his JoAna. In statements lice, defendant confessed to the murder. DNA evidence strongly implicated defendant, and defendant was ar- rings person. rested with the murder victim’s on his evidence, Given this we do not believe that Jamison’s significant two remarks were a basis for defendant’s hold, therefore, convictions. We that even if Jamison’s hearsay, two statements were their admission was harm- regarding less error. Because we find no reversible error testimony, plain Jamison’s we also find no error. See Keene, 169 111.2d at 17. Venireperson
Dismissal of Cox argues prospective juror, Stanley Defendant that a improperly Cox, was dismissed for cause his because of regarding penalty. views the death Defendant maintains expressed qualms imposing that, while Cox some about capital punishment sentence, death his views on would substantially impaired performance not have his aas juror. according Thus, defendant, Cox’s for dismissal cause was unwarranted and defendant is entitled a sentencing hearing. new questioning venireperson
The initial Coxwas done During questioning, the court. this Coxstated that he automatically impose would not sentence, a death presented he would listen to the evidence and instruc- sign court, tions from trial and that he could a death questioned by along verdict. Coxwas then the State prospective jurors. potential other One of the other never indicated that she could Heap, Jackie jurors, between following colloquy The penalty. the death impose Cox then ensued: the State and you] for be able to vote Attorney]: “[State’s [Would *** death Mr. Cox? penalty I know if I [Cox]: don’t could. JUROR having of second Attorney]: you Are some kinds [State’s thoughts here? Yeah, penalty thing. about the death
JUROR: persuaded by Heap You Mrs. Attorney]: [State’s were over here? Well, my been on mind since we—
JUROR: it’s it, Well,just Attorney]: kind of found out about [State’s suppose? I know, everybody about it until when You talks
JUROR: I up to it. This is it. mean— it comes you I I to ask attorney]: Right. guess needed [State’s then, impose [d]eath you could not you probably think [p]enalty? I don’t know.
JUROR: you [defense I know Attorney]: [State’s And know from the school board? counsel] I met him only I his name. have never JUROR: saw something. name personally. just I on saw certainly have *31 Attorney]: [State’s So that doesn’t anything to do with it? No.
JUROR: you certainly may not be Attorney]: You think [State’s able to? religious thing. a [sz'c] It’s kinds
JUROR: Okay. fine. have some Attorney]: That’s You [State’s against religious moral it? or beliefs Yeah.” JUROR: counsel. defense questioned by was subsequently
Cox could you if don’t know whether “you Cox Counsel asked “[mjore or responded, or not?” Cox that verdict sign then about the same.” Counsel less, yeah, that would be you a where “there be circumstance Cox if could asked you may the case and deliberate on go through could replied, Cox a verdict of death?” sign find that could you
631 to Cox for cause. “Yes.” The State later moved dismiss objection counsel, Over the court allowed the of defense challenge the for cause. prospective juror capital
A
in a
case can be excused
juror’s
capital punishment
for
when the
cause
views on
“
substantially
‘prevent
impair
performance
would
or
the
juror
a
duties as
in accordance
instructions
” Wainwright
424,
Witt,
412,
his oath.’
v.
469 U.S.
83
(1985),quoting
841, 851-52,
844,
L. Ed. 2d
105 S.
852
Ct.
Texas,
38,
581,
45,
589,
Adams v.
448
65 L. Ed. 2d
U.S.
(1980).
necessary
100 S. Ct.
2526
It
not
that a
is
prospective juror express
regarding
his views
the death
penalty
preciseness”
trial
with “meticulous
before the
may
People
court
rule on a motion to exclude for cause.
(1993).
v. Tenner,
addition,
2d
362
In
Ill.
juror
prospective
during
remarks of
the voir
exam
dire
ination must be
“not in
considered
isolation but as a
unique
Tenner,
whole.”
Defendant’s of ve- dismissal nireperson upon Cox centers the contention trial that the judge applied improper dismissing an standard Coxfor venireperson may cause. Defendant notes that a not be simply general excused for cause because voices religious scruples against the infliction of death penalty. According defendant, bar, in the case at judge solely trial religious focused on the existence of Cox’s allowing
concerns in the State’s motion for dis- Thus, missal. view, Cox’s dismissal was improper. disagree. We cause,
When State moved dismiss Cox for it juror, also moved to dismiss another Helen Stram. After listening arguments, granted the trial court the State’s motion to dismiss but Cox, denied State’s motion *32 to The court that respect explained Stram. Strain’s to indicated had questioning that she “more of
responses require sort of of the She would skeptical thing. a view to be in order to a—in order to sign herself convinced [djeath hope a I would all would have sign penalty. jurors something That it would done [not] such belief. be however, position, upon Cox’s which was based lightly.” was “different” from Stram’s. “religious perception,” difference, view, That in the court’s justified dismissing for cause. Cox trial judge’s
The clear statements is import that, demeanor, his re- observing gauging after Cox’s and the that questioning, judge to concluded Cox sponses to impose have been more than hesitant simply would Instead, that, death the determined penalty. judge the Stram, fully put unlike Cox not be able to aside would punishment concerns and follow regarding capital to deciding impose. the law and his oath in what sentence of the voir dire note, moreover, portions that other We indicate that understood the standard judge proper for for cause. For dismissing prospective jurors example, Cox, moving after dismiss State moved dismiss another juror, Cirrincione, for cause Christine potential based what the State characterized as an “extreme upon reluctance” the death Defense counsel impose penalty. motion, that a noted veni- objected expressly might religious questions have “moral reperson mind” death the in- penalty, their about but follow the juror must be on whether could law. quiry denied judge, hearing arguments, The trial after these Considering motion to Cirrincione for cause. dismiss understood whole, judge record as a it is clear that the in dismissing standard applied proper the law and Cox. venireperson “is in a judge noted the trial frequently
We have
juror’s
from
to determine
position
prospective
superior
*33
responses
juror’s
as a whole and the
demeanor whether
capital punishment
that individual’s views toward
would
substantially prevent
impair
performance
or
of his
juror
sentencing phase
duties
aas
at the
of the trial in
required
accordance with the oath he is
to take.” Wil
liams,
In the case, times, instant Cox indicated that he perform duty juror. could followthe law and his as a On responses occasions, other however,his indicated that he clearly could not “set aside his own beliefs deference citing rule of law.” 54, 161 Ill. 2d at Williams, Lockhart McCree, 162, 176, 476 U.S. v. 90 L. 137, Ed. 2d precisely (1986). “[I]t 149-50, 1758, 106 S. Ct. 1766 is suggests this, situations such as where the cold record an apparent contradiction, that we defer to the circuit court’s discretion.” People Shaw, 186 Ill. 2d v.
(1998), citing People Holman,
132 Ill. 2d
148-49
(1989).
judge
clearly
The trial
in the case at bar
deter
problems performing
mined that Cox would have
juror.
upon
duties as a
Based
us,
record before
we
“speculations
[Cox’s]
cannot substitute our
about
de
place
personal
meanor in
of the lower court’s
observa
Accordingly,
tions.”
Ineffective Assistance of Counsel at Defendant maintains that he received ineffective as- aggravation-mitigation stage sistance of counsel at attorney sentencing introduce, as because his failed mitigating testimony evidence, of Dr. Michael During hearing, Gelbort Gelbort. defendant’s fitness that he had examined defendant on two occa- testified during examinations, defendant sions, and that these engaged persistent delusional behavior. Gelbort had trial. that defendant was not fit to stand also testified mitiga- Defendant now contends that defense counsel’s testimony solely evidence, tion which consisted easily mother, could have been dismissed According jury, simply and therefore was insufficient. testimony defendant, should have been of Gelbort jury mitigating of its obvious offered to the because likely it would have made a differ- nature and because *34 sentencing hearing. ence the outcome In order to sustain a claim of ineffective assistance perfor trial counsel, defendant must show that counsel’s objective reasonableness, an standard of mance fell below probability that, but for and that there is a reasonable proceed unprofessional errors, the result of counsel’s Washington, ing v. different. Strickland would have been 674, 693, 698, 104 S. 668, 687, 694, 466 80 L. Ed. 2d U.S. (1984) (adopted by this court 2052, 2064, Ct. 2068 (1984)). People Defen Albanese, 104 Ill. 2d 525-26 v. acknowledges whether to dant that “counsel’s decision strategic particular generally present choice is a witness support ineffective assistance cannot a claim of which (1991). People Jones, 144 Defen Ill. 2d counsel.” of this maintains, however, that under the facts dant justification proper strategic for case, there can be no as a witness at failure to call Gelbort defense counsel’s hearing. disagree. mitigation We hearing during principal the fitness A issue contested faking psychological his defendant was was whether expert symptoms. Rabin, witness, Dr. John The State’s when malingering suspected testified that should be charged litigation, someone is with a crime or involved faking and that it was that defendant was his possible Delaney testimony Moore’s that defendant symptoms. appeared during disciplinary proceedings coherent which took in the less than a month before the place county jail hearing implicitly supported position fitness State’s that defendant was Gelbort cross- malingering. was examined length by regarding, at some the State inter alia, “gilding his conclusion that defendant was not addition, In lily.” during closing argument, the State’s the State that defendant explicitly argued faking psychological defendant or symptoms, stating, any “This other defendant can stair into and space [sic] start bab- bling spouting psychobabble anyone words start seen on has countless movies or countless talk shows where have people faked mental illness to avoid their day in court. And that is exactly what is do- ing.”
If defense counsel had introduced Gelbort’s testimony at the sentencing hearing, he would have also introduced the issue of whether defendant was In that malingering. event, the jury would have had before it for consideration only committed, not the horrible nature of the crimes and the evidence, State’s but also the issue aggravating trying whether defendant was to avoid responsibility for his actions Given by feigning psychological disorder. the outcome of the the clear hearing, given fitness introducing testimony, risks associated with Gelbort’s we *35 cannot hold that defense counsel’s conduct fell below an objectively present reasonable standard when he failed to that testimony during aggravation-mitigation phase the hold, therefore, that sentencing hearing. We constitutionally defense counsel was not ineffective for failing to call Gelbort the testify during sentencing proceeding.
636 Comment at
Judge’s Sentencing Stofleth, JoAna Bollinger’s grandmother, Marilyn read victim statement to the the impact jury during aggravation-mitigation stage sentencing hearing. As Stofleth leaving stand, stated, was “I am judge loss, sorry your about ma’am.” Defendant contends that this comment denied him a fair sentencing hearing. The State initially argument maintains that this is procedur ally object defaulted because defendant failed to judge’s However, statement trial. during procedural default, waiver, or rule is not rigidly applied where basis for the the conduct of objection judge. is the trial Nevitt, 423, People (1990), v. 135 Ill. 2d 455 citing People 398, (1963); v. Sprinkle, Smith, 27 Ill. 2d 400-01 v. People (1997). 217, 176 Ill. 2d 237 A trial has a that judge duty persons see all are provided Burrows, a fair trial. v. 148 People 196, Ill. 2d (1992). 250 a trial Accordingly, judge must refrain from interjecting opinions, comments or insinuations reflect ing Garrett, bias toward or v. against any party. People (1995). 702, 276 Ill. 3d App. 712 “Judicial comments can if amount to reversible error the defendant can establish that such were ‘a material in the comments factor convic tion or were such that an effect on the verdict jury’s was ” Burrows, 250, result.’ 2d probable quot 148 Ill. at (1988). Harris, ing People v. 123 Ill. 2d We do not believe comment at issue here was a mate rial factor in judge’s defendant’s sentence death. The that he “sorry [Stofleth’s] statement was about loss” condolence, and it did merely polite expression against not reflect a bias for or See any party. People (1989) (no Holman, 132 Ill. 2d error where the trial told the the “sad judge jury [the news State’s Attorney’s] mother we find passed away”). Accordingly, no basis for sentence. disturbing
Closing Argument Sentencing at During closing argument aggravation-
637 stage sentencing, prosecutor mitigation stated: The life has more value. innocent “You tell us whose wife, or defendant who made his deci- mother and this argues Defendant that this statement was sions?” improper that, statement, he is as a result this hearing. sentencing a new Defendant concedes entitled to objection that no made to this comment at trial and was procedurally defaulted. that the claim of error is therefore argues, may however, that consider Defendant also we plain the error under the error doctrine. For follow- ing plain reasons, find no error. we “ *** ‘Any error no related comments which normally objections were made would be considered inflammatory waived unless the comments were so defendant could not have received a fair trial or so flagrant judicial pro as to threaten deterioration of the ” 235, cess.’ 132 Ill. 2d 283-84 Kokoraleis, People v. (1989), citing 104 Ill. 2d 518 Albanese, People v. (1984). agree we defendant that While the “whose improper, life has more value” comment was we cannot say improper that it was so as to warrant reversal of entirety defendant’s sentence. Considered in the closing argument, context of the State’s the comment did deny sentencing hearing not defendant a fair or threaten jury judicial process. Moreover, deterioration of the properly instructed that the which it could evidence only testimony consider consisted of the witnesses had received. exhibits which the court Conse quently, plain find no we error.
Constitutionality Penalty of the Death Statute penalty argues stat- Defendant that the Illinois death places proof ute upon a burden of is unconstitutional because it mitigating evidence defendants to show that outweighs aggravating permits evidence, and because it vague aggravating factor, the sentencer to consider a namely, “any beyond statutory factors other reason” 638
awhy should be sentenced to death. See 720 (e) (West 1(c), ILCS 1994); Jury Illinois Pattern 5/9 — (3d 1992). Instructions, Criminal, No. 7C.06 ed. This court has previously rejected both of these contentions. (1995) (and People Taylor, Ill. 2d cases therein). cited decline We from our depart prior hold ings on these issues.
Defendant also asserts the death penalty is un *37 constitutional because it fails to sufficiently minimize the risks death sentences will be arbitrarily capriciously imposed. This contention has also been rejected e.g., Taylor, 166 Ill. 2d at (see, this court 440), and we decline to revisit our holdings on this issue.
CONCLUSION reasons, For the foregoing of judgment the circuit court of St. Clair County is affirmed. The clerk of this court is directed to enter an setting order Thursday, 16, November 2000, as the date on which the sentence of death entered in the circuit court is to be carried out. Defendant shall be executed the manner provided by (West 1996). law. 725 ILCS The clerk of this 5/119 —5 court shall send a certified copy of the mandate this case to the Corrections, Director of to the warden Center, Tamms Correctional and to the warden of the institution where defendant is now confined.
Judgment affirmed. RATHJE, JUSTICE specially concurring: I agree with the majority that defendant’s convic- tions and death sentence should I be affirmed. write however, I separately, because with the disagree majori- ty’s analysis of defendant’s probable argument. cause
In deciding whether the trial court denied properly statements, defendant’s motion to suppress majority comprehensively examines of whether question prob- able cause existed for defendant’s warrantless arrest.
639 testimony analysis majority’s includes a review The ju- hearing, survey probable cause from the motion risprudence, of knowl- tutorial “basis and even a brief necessary, edge” principles. however, as of this is None attempt to meet his burden not defendant did even proving his arrest was unlawful. suppress evi Illinois, seeks to
In a defendant who upon or bears an unlawful search seizure dence based proving in fact was that the arrest the initial burden of 12(b) (West 1998); People v. 725 ILCS unlawful. 5/114— (1999);People Kidd, Ill. 144, 204 v. 175 Buss, 187 Ill. 2d (1996). words, must make 1, 22 In other the defendant 2d police showing prima acted without both that facie probable police cause, that the lacked a warrant and grounds defendant, or lacked to arrest reasonable suspicion or of criminal had no reasonable articulable investigative stop. People activity that would warrant an (1999);People App. Culbertson, 305 Ill. 3d v. (1997). App. 292 Ill. 3d Era, present any case, not evidence In this defendant did hearing suppress that his at the motion to establish present fact, In defendant did not arrest was unlawful. contrary, any On the the State evidence whatsoever. *38 testify briefly police ar- called officers to as to their two length interrogation to their rest of defendant and at as of defendant. Defendant confined his cross-examination presenting interrogation, and he rested without introducing any any of his witnesses or of his own own arrested evidence. Whether the defendant was without up, defendant did not even at- warrant never came tempt police probable cause, lacked to establish that grounds defendant, or lacked reasonable arrest suspicion criminal or articulable had no reasonable activity investigative stop. an that would warrant majority Consequently, need not decide whether proving probable cause, as defen- State met its burden requisite prima to make the case. dant failed facie complete Defendant’s failure to meet his burden of proof on the probable cause question easily is understood when one realizes that defendant was not moving to sup- press his confession as the fruit of an unlawful arrest. Rather, an examination motion, of the the motion hear- ing, the trial court’s on ruling the motion demon- strates that defendant moving to suppress his confes- sion as involuntarily made. To sure, be defendant’s motion briefly asserts that “The defendant was arrested without a warrant and without probable cause.” The seven remaining paragraphs motion, of the however, argue that defendant’s confession was involuntarily made. Likewise, although the State briefly asked the po- lice officers about arrest, defendant’s all virtually of the direct examination and literally all of the cross- examination dealt with the interrogation led to defendant’s In fact, confession. of the 64 pages of from transcript the hearing on defendant’s motion to suppress, 58 relate to the interrogation and 6 relate to the arrest. Finally, the trial court’s written order denying defendant’s motion to suppress makes numerous factual findings relating to the voluntariness of confession, no findings on the question of probable cause, and concludes that “the totality circumstances support a finding that the defendant’s statement was voluntary and made with Miranda.” Neither defendant nor the State requested a on ruling prob- existence of able cause.
More importantly, the manner in which the parties proceeded at the motion hearing demonstrates that both defendant and the State were litigating motion to sup- press statements as involuntarily made, not a motion to suppress statements as the fruit of an unlawful arrest. Again, a moving suppress statements based upon an unlawful arrest clearly bears the initial burden proving the arrest was unlawful. 725 ILCS
641 (West 12(b) 1998); De 2d at 204. Buss, 187 Ill. 5/114— spite presented bearing no evi burden, defendant this to moves However, a defendant when whatsoever. dence involuntarily made, the State suppress as statements by preponderance proving a of bears burden voluntary. ILCS 725 that the confession evidence 11(d) (West 1998); People Ill. 2d Woods, 184 5/114— (1998). presented alone case, the State In this hearing, virtually suppress all the motion to evidence at of defendant’s to the voluntariness related which re Moreover, cross-examination confession. solely confession, of his to the voluntariness lated only putting The on case. defendant rested without litigating parties way if the were this makes sense is involuntarily suppress made, as not motion to statements suppress an invol as the fruit of a motion to statements untary search. prob-
Although majority’s address the decision to question troubling itself, even is able cause troubling majority’s that the conclusion State more is prove probable The never tried to met its burden. State lengths majority goes great and tenuous cause. The presence in the area sev- demonstrate that defendant’s Kathy Kunkle’s crime, eral hours after the combined with probable identification, cause. amounts baseless necessarily Clearly mean, not it does not. This does they police probable however, lacked cause when that the simply question that the arrested defendant. It means litigated. probable cause was never argues the trial court should sum, In suppressed as the fruit of an unlaw- have his confession meet his burden on this is- ful Defendant failed to arrest. only litigated The issue that defen- sue, it. as he never voluntary, litigated is his confession was dant whether appeal. on and he not to raise that issue chose sup- of defendant’s motion to The trial court’s denial press affirmed. should be concurring part HARRISON,
CHIEF JUSTICE
*40
dissenting
part:
agree
I
that Sims’ convictions should not be dis
my view, however,
In
turbed.
his sentence of death can
my
not be allowed to stand. For the reasons set
forth
(1998),
dissent
(No. 82527. Appel ILLINOIS, THE PEOPLE OF THE OF STATE Appellant. lee, MONTGOMERY, v. ULECE Opinion Rehearing June denied 2000. October filed 2000.