People v. Stewart

of the that, appel- is as result that defendant. reason that award decision, to satisfy late court Sachs is required in full. court, fact-finding is not a court,

This like appellate court, we of the nature of a reviewing tribunal. Because amend- correctly that the court refused appellate conclude it engaged the record to do so would have ment of because However, if in a Sachs desires fact-finding proceeding. raise the in the circuit court when so, do it can issue are made issued in this case and attempts mandate is the circuit court. enforce the final judgment given, appellate For the reasons judgment court is affirmed.

Judgment affirmed. (No. 56629. ILLINOIS, Appel-

THE PEOPLE OF THE STATE OF STEWART, lee, RAYMOND LEE Appellant. 19, 1984. Rehearing

Opinion October denied filed — 1, 1985. February dissenting part. J., and SIMON, concurring part M. Defender, and Daniel Blue, Deputy E. Randy Defenders, of Assistant David M. Raymond, Kirwan and Defender, of Mount the State Appellate of Office Vernon, for appellant. General, of Springfield, Attorney F. Hartigan,

Neil of Rockford State’s Attorney, Daniel D. Doyle, Fedinets, At Kenneth A. Assistant L. Rotert and (Mark for the General, counsel), People. of Chicago, torneys the court: delivered opinion JUSTICE WARD Stewart, indicted Lee was defendant, Raymond the mur County, circuit court of Winnebago in the station attendant. Kaiser, a Rockford gas der of Kevin the defendant committed The first count alleged harm to to kill or do great bodily intent murder with 1(a)(1).) ch. par. Rev. Stat. (Ill. the victim. 9 — commit the murder was count alleged The second robbery armed the course of defendant’s ted during Stat. ch. station. Rev. (Ill. Kaiser at the gas trial, he con was Following jury 1(a)(3).) par. 9 — hearing aggrava counts. A of murder on both victed jury, the same was had before mitigation tion and The defendant sentenced to death. defendant was to our Rule 603 this court pursuant directly appealed Ill. R. 603). 2d (87

The evidence showed that on the morning of Jan- 28, 1981, uary the defendant shot Kaiser Kevin four or five in times the course of an armed robbery, killing him. The defendant does not challenge sufficiency of the evidence to show that he killed Kaiser. A wit- ness testified seen having a man who resembled closely the defendant at the scene of the murder. The witness tan, identified coat recovered three-quarter-length from the defendant’s Buick automobile as the one worn the man he by had seen at station. Human gas stains gunshot blood and residue were found on primer both sleeves of the coat. The defendant admitted at trial that he name, had been under a fictitious staying, at a Rockford motel at the time of the murder. There was unchallenged a ballistics testimony by expert Kaiser was killed fired from the gun bullets later found in the defendant’s suitcase. The defendant admit- ted that he had of 1980 purchased gun July but said that he had sold the a month later gun Jimmy Jones, who lived in Rockford. He that he testified has 3,1981. from bought gun back Jones on February witness, A however, who lived in Rockford for 14 on the where years block defendant said Jones he lived testified that had never heard of Jones. Jimmy The defendant testified that he had not purchased any ammunition a prose- .38-caliber December but cution witness said that he had sold .38-caliber Smith & ammunition to the on Decem- Wesson Special 5,1980. ber

The defendant’s was found on the door fingerprint in the station where Kaiser was killed. The gas door had been washed the before his day murder.

Six after Kaiser’s days murder the defendant rented a U-Haul trailer it Rockford and attached to a black license maroon automobile with Wisconsin Mercury No. SC —4801. The rental contract showed February On one day. rented for to be trailer was Kalb, it, in De down had 1981, Mercury broken a house attached, was towed trailer the with U-Haul the defend- that later established was (It in Sycamore. two house.) Within in the lived ant’s brother-in-law red- as a as well away had taken the trailer been days the driveway. had parked Buick that been and-white the Greens- arrived at month, the defendant that Later his Crosby, Florence Carolina, home of boro, North a Buick with U- a red-and-white cousin, driving first trailer attached. Haul arrested was 21, 1981, the defendant February

On he about to as was building Crosby’s apartment outside a Federal officers had arresting Buick. The enter the to avoid flight prosecution. for unlawful arrest warrant that the defend- Federal was charge The for the basis for an prosecution fled from Illinois to avoid ant had on No- him in Rockford committed by armed robbery arrest, Bogaty, the Leonard Following 1980. vember Investigation, Bureau of a Federal agent special following Crosby had a conversation with he gath- where to a apartment went bedroom to the belonging took items of property ered and a a radio scanner and items, including defendant. to the Greensboro suitcase, brought were brown large taken the property A warrant to search station. police from a United States was obtained from the apartment a loaded .38- found Bogaty later day. magistrate holster inside in a black leather caliber revolver Buick under made of the A search was also suitcase. of the Phillip Henry Special Agent the same warrant. it, among found Investigation Bureau of Federal and a tan coat items, copy a three-quarter-length, other trailer-rental contract. of the U-Haul the residence of Char- The next went to day Bogaty Whitsett, uncle, North Benton, lie the defendant’s Carolina, a from which is short distance Greensboro. was sitting Benton stated that a U-Haul trailer which there in the front was defendant. yard placed The trailer towed to the Greensboro station police was after a had and was searched warrant been obtained. in the trailer a found was box Among property ammunition, carrier, ammunition plastic .38-caliber license. and the defendant’s driver’s The defendant first contends that the circuit court erred in his motion to the ev- denying pretrial suppress search idence seized under two authority warrants. He contends that the affidavits attached to for the warrants were insufficient to es- complaints the items sought cause to believe that probable tablish in the to be under the warrants would be found places searched.

The for a warrant to search the defend- complaint the ant’s Buick and was affidavit luggage supported by M. the Federal Bu- Agent of of Special Henry Phillips reau of The affidavit related that the Investigation. (sic) defendant was of six homi- suspected committing in cides seven homicides as later detailed the (actually the course of four armed robberies affidavit) during 1981; a in that witnesses seven-day period early over the as in the ar- having had identified been the offenses were committed and that his eas where one the automobile was seen at the site of of Mercury from the six victims incidents; that the bullets removed the same and were either .38- were fired from weapon .357-caliber, 9-mm that a Realis- caliber, or projectiles; had scanner and a multi-band scanner been tic police robberies; that the one of the armed during stolen Illinois and had to North gone defendant had fled from Buick; that the defendant in a red-and-white Carolina at an at and his vehicle was located had been arrested (ac- as Benton’s home in Greensboro address described home was a search of the home); that Crosby’s tually a Realistic scan- police consent and that with conducted in a ner found the defendant’s among property was fit pro- that bedroom; descriptions and the defendant in vicinity of a the suspect vided witnesses by a to search for warrant complaint armed robberies. of the affidavit by the trailer was supported U-Haul Bu- of Federal Brereton the Thomas J. Special Agent affi- the incorporated Phillips reau of Investigation the provided davit reference. The Brereton affidavit by the defendant additional information: that following 1981, in Rock- February 4, a trailer on rented U-Haul the ford; that a relative of the defendant observed towed Buick driven the defendant trailer a being by Greensboro; that stated that the defendant Benton (sic) left trailer at residence Woodset the his Benton, had the defendant’s he, personal observed the trailer; the return of inside property overdue; trailer to the U-Haul was 16 days Corporation In- and that Benton authorized the Federal Bureau A take of the trailer. possession copy vestigation to the rental contract was also attached U-Haul affidavit. Brereton 1, 21, Ill. 2d we said: Gacy (1984),

In a reviewing sufficiency complaint “In [for Court’s guided by Supreme search we are warrant] 393 U.S. Spinelli v. United States statement only S. Ct. ‘that 410, 21 L. Ed. 2d of criminal showing, and not facie probability, prima cause, Beck v. Ohio activity probable is standard of 147-48, 142, 2d 85 S. 89, 96, 379 13 L. Ed. [(1964), U.S. are 223, 228]; probable cause that affidavits Ct. gov- those much than by rigorous tested less standards trial, v. McCray evidence at erning admissibility of 62, 70, 300, 311, 18 2d [(1967), L. Ed. Illinois 386 U.S. 1056, is- that cause 1062]; judging probable 87 S. Ct. niggardly suing magistrates by are not to be confined 476

limitations or restrictions on the use of their common sense, [(1965), United States v. Ventresca 380 U.S. 684, 688, 13 L. Ed. 2d 745]; 85 S. Ct. and their determination cause probable should be paid great courts, deference by reviewing Jones v. [(I960), 257, 270-71, United 362 States U.S. 4 L. Ed. 2d 697, 708, 725, 735-36].’ (393 410, 419, 80 S. Ct. U.S. 637, 645, L. 590-91.)” Ed. 2d 89 S. Ct.

A cause showing probable means that facts circumstances within the of the affiant knowledge are suf- ficient to warrant of reasonable caution person to be- lieve that an offense has occurred and that of it evidence v. Free (People is at the to be searched. place Francisco 378, 400; Ill. 2d Ill. 2d It 376.) is not contended that there was insufficient evidence to believe that several offenses com- had been mitted. Instead the defendant it argues was unrea- sonable to believe that evidence of the crimes would be found 800 miles from the scenes of the incidents at least 19 after their days commission. Since he had dis- of the posed automobile, Mercury he it is says, illogical and offends common sense to assume that he would not have of other disposed evidence of the offenses as well. We must this reject argument.

First, the somewhat abstract is not argument impres- sive. we cannot that a reason- Responding abstractly, say able would common person readily ascribe sense and logi- cal to one reasoning who in a bizarre crime engaged as the spree Too, did. if a even evidently per- son such as the defendant would have of instru- disposed ments, car, such aas in the commission of the employed offenses, it is not unreasonable to assume that he would he, be as ready dispose which property affidavit, according have killed seven may people. stated, As the affidavits the defendant had with him a ra- dio scanner similar to one stolen one of the armed during

477 posi- had not been the radio scanner (Although robberies. re- stolen, it is not that was as the one identified tively warrant for a search or affidavit a complaint quired should the warrant doubt that a reasonable show beyond A 378, 400.) Ill. 2d 94 (1983), v. Free (People issued. be scan- that a radio assume might readily person reasonable one was the property the defendant’s among ner found im- Too, and robberies.) one of the armed during stolen aware that contention, the affiants were to this portantly his Mercury the defendant had abandoned the reason that condi- not in an operable it was automobile was because in a cause exists particu- or not probable tion. “Whether of the circumstances upon totality lar case depends court when the war- to the officers and and facts known 378, 94 Ill. 2d v. Free (People (1983), rant is for.” applied in the if one a want of particularity Even assumes 400.) belief, al- affidavits, good-faith reasonable agents’ one, that the searches were mistaken though possibly the searches warrants, insulated under the authorized (1984), v. Leon to United States suppress. from a motion 3405; 677, 104 S. Ct. United U.S__, L. Ed. 2d 468 82 729 F.2d 1329. (11th 1984), v. Beck Cir. States case it not be may easy in a “Although particular the existence demonstrates when an affidavit determine marginal of doubtful or cause, the resolution probable determined by in this area should be largely cases v. (United States to be accorded to warrants.” preference 684, 2d 102, 109, 13 L. Ed. 380 U.S. (1965), Ventresca re- Read in a common-sense 746.) 85 S. Ct. specific- contained sufficient fashion, the affidavits alistic to justify the circumstances of the light totality ity There was a sub- warrants. of the search the issuance finding probable for the magistrate’s stantial basis —, 80 U.S. (1984), v. Upton (Massachusetts cause. consider We 2085.) 104 S. Ct. Ed. 2d L. suppress motion defendant’s court’s denial

trial v. People Garcia was not erroneous. manifestly See v. Free 97 Ill. 74; 2d 94 Ill. 2d 378, 401. United States

The defendant relies principally upon Bailey (9th Cir. 1972), F.2d that a arguing far search removed in time and distance from the scene of an offense must be more scrutinized. The closely court in Bailey granted a motion to evidence of suppress searches six conducted weeks after the bank con- robbery cerned and more than 100 miles from the away bank. Bailey But the factual circumstances are different Bailey, from those here. In there no was indication that the defendant owned the car that was searched or that he had been seen in it Moreover, before his arrest. knew that the car police had no connection with the rob- because bery codefendant Bailey’s admitted that she had borrowed the car from a friend about a month after The court also robbery. suppressed evidence gathered from a search of a house at which the defendants had once, been seen but there was no indication that they decision in Bai- were more than casual social The guests. ley in Porter v. is in contrast to the same court’s holding United States (9th 1964), Cir. 335 F.2d 602. There the court refused to evidence taken in a search suppress the defendant’s auto six weeks after the commission of the offense. The affidavit the warrant was supporting alia, inter held to sufficient because, be it disclosed that the automobile defendant, was owned by evi- dence sought was on the defendant’s when he person arrested, was and because the auto had an li- out-of-State cense The plate. identification of the defendant as the owner of the auto was to said be evidence of im- great reasons, said, For these the court and portance. because the defendant had not settled in the yet community, most to look for likely the evidence was in- place sought Porter and in contrast with Bai- side his car. to Similar knew that here Investigation Bureau of the Federal ley, that he had and owned the defendant the Buick was The a verified car had in it to his arrest. been prior seen too, was, homicides; it with robberies connection for which Federal offense to commit the vehicle used to Carolina. arrested, viz. North flight he unlawful was at his tempo- made least The had apparently defendant tes- (The home. in his relative’s defendant rary residence to Rock- he had returned at trial that one reason tified “to was January ford from North Carolina take to that I was to going all of my belongings receive stay there.”) Certainly there and North Carolina move Because he guest.” he more than a “casual social was Caro- had his from Rlinois to North belongings brought of- lina he evidence of the was not carrying because arrested, on him when it was not unreasonable fenses the evi- conclude that there was a fair probability car, in the in the U-Haul dence would be found sought trailer, luggage. or his that, if the search also claims even trial have issued, the court should

warrants were properly to the evidence suppress the defendant’s motion granted he al- because, Florence seized from Crosby’s apartment consent a warrant- leges, during it was obtained without the defendant Phillips' less The affidavit stated that entry. Street, of at 600-C Banner the residence residing “was BENTON, and executed a waiver they CHARLIE [sic] location of form and advised and showed officers the Ben- the suppression hearing, At property.” STEWART’S Banner ton that he never lived at 600-C testified had the date that he was not at that address on Street and the defend- of Florence also called Crosby, by the arrest. lived in the ant stated that she testify, apartment to Their testi- the defendant was arrested. front of which asserts, a prima the defendant constituted mony, facie made home was Crosby’s that the search of showing without consent. 12(b)

Section 114— of Code Criminal Procedure of 1963 (Ill. Rev. Stat. ch. o par. 114—12(b)) imp on the defendant the burden of the that proving ses search and seizure were v. (See unlawful. also People Berg 67 Ill. 2d (1977), 65.) The defendant has not made this showing. of the defendant’s testimony witnesses at the suppression showed that Phil hearing merely the lips’ affidavit was erroneous who as to lived at 600-C Banner Street. This is as to immaterial of question whether of search was consensual. apartment Florence was not asked she Crosby whether consented to the search her apartment. statement, in his Phillips’ affidavit, agents that had obtained consent to search was not Crosby’s apartment rebutted. effectively observe, too, We would reviewing denial a motion to court is suppress, free to look to reviewing trial as well as the evidence at testimony presented motion (People v. Caballero hearing on the to suppress. People 23; Ill. 2d Conner (1984), 2d 78 Ill. v. Braden 525, 532; Ill. 2d 520.) That one conclude that did Crosby consent may search of her apartment is from the record. apparent Leonard one of the of the Federal Bureau Bogaty, agents arrest, who made the Investigation defendant’s testi- fied:

“Q. Mr. After Stewart was taken from the scene officers, you what did do? I to the apartment. A. went Q. you got apartment And when to the door what you did do? I Crosby.

A. had a conversation with Florence Q. after your And conversation with Florence you go you did or Crosby where what did do?

A. I went a bedroom in that apartment he gathered belongings Mr. Stewart’s person [sic] had in that bedroom.”

481 to who consented infer that it was Crosby thus can One was unre- statement of her home. Bogaty’s the search that the State observe we would (Parenthetically, butted. on with appeal the record a motion to supplement made au- Crosby Florence by of a consent form signed a copy February on her apartment to search thorizing Bogaty Because motion. to the 21, objected 1981. The defendant above, need the consent issue we of our disposition The trial motion supplement.) consider here the State’s from Cros- the evidence seized refusal to suppress court’s erroneous; we must not manifestly was by’s apartment 57 Ill. (1974), See v. Williams ruling. People uphold 239, 2d 246. ex- next that the prosecution’s

The defendant contends who of five veniremen challenges clusion by peremptory against conscientious or religious scruples expressed in an selected unconstitutionally death resulted penalty says, Its defendant peremptory challenges, five jury. all from which the section had pro swept produced jury capital punishment who expressed scruples against a man to was to condemn “uncommonly willing which v. Illinois (1968), die” in violation Witherspoon The 776, L. Ed. 2d 88 S. Ct. 1770. defend- U.S. 380 U.S. ant also cites Swain v. Alabama L. 2d 85 S. Ct. as a basis generally, Ed. chal- use of challenging prosecution’s peremptory lenges. chal-

The did not to the object peremptory he raise the present voir dire. Nor did lenges during Thus, the issue has claim in of his motions. any post-trial 75 Ill. 2d (See waived. Roberts been defendant, however, that his counsel’s argues 10.) inef- error is evidence of failure to the alleged preserve Ineffec- of counsel. must disagree. fective assistance We not shown a failure assistance of counsel is tive has been an issue which previously for review preserve v. Lewis (People decided to the claim of error. adversely 129, 88 Ill. 2d It is clear that (1981), 156.) prosecu tion did not to show cause for or the exer explain have v. Davis cise of (People (1983), its peremptory challenges. Thus, 95 Ill. 2d the defendant’s trial counsel did not 1.) have to make have a fruitless what would been objection. v. Dobbert State 1053,

In (Fla. 1982), 409 So. 2d Court of Florida Supreme considered contention similar to the one the defendant now makes. The defendant and Swain. there, here, on After Witherspoon as relied first that be exercised holding peremptory challenges may and without or the court freely explanation justification, on went to that event the defendant had say any waived to his failure to any right challenge jury by to the State’s In a later object peremptory challenges. v. (Dobbert Strickland Fla. 532 F. (M.D. 1982), proceeding habeas corpus court, the district Supp. 545), denying relief, that the defendant had waived the issue agreed to and held also that the defendant would not be entitled if relief even of waiver were principle applied. “Witherspoon The court said: is to the clearly inapplicable *** cannot, case at even con bar be by analogy, [Swain] sidered here.” F. Sim controlling (532 Supp. 561-62.) in Jordan v. Watkins Cir. 681 F.2d ilarly, (5th 1982), Witherspoon 1067, the court held that is to inapposite [a it similar because peremptory-challenge argument] applies concur to the use of for cause. We with solely challenges v. also Jones State 243 Ga. (See (1979), those evaluations. v. Adams Texas 907; 448 U.S. (1980), 256 S.E.2d Cf. 2521, 2528 38, 48, 592, 100 S. Ct. 65 L. Ed. 2d as challenges example permis cited (court peremptory do with exclusions having nothing capital punish sible here that the resulting jury There is no evidence ment).) (See People of a death sentence. was biased favor Tiller note that 322.) 94 Ill. 2d One (1982), may the death were not opposed because the “Q]ust jurors in favor of were biased they not mean does penalty 439, 460. v. Ramirez 98 Ill. 2d it.” L. 510, 20 v. Illinois 391 U.S. Witherspoon In Court held 1770, the Supreme 88 S. Ct. Ed. 2d cause simply could not be excused jurors prospective against capital punishment. had they scruples because Lo M. Cynthia that venireman defendant here contends cause in violation excused for chen was improperly there was the voir dire examination Witherspoon. During discussion: following Lochen, any have con- you “THE Mrs. do COURT: the infliction of religious scruples against scientious or Penalty? the Death against I’m it.

JUROR LOCHEN: against you automatically vote THE Would COURT: pre- of the facts that were Penalty regardless the Death during sented these proceedings? No, I automatically just LOCHEN: but

JUROR I in it. I would have to know the reasons. don’t believe of, know, this you mean I don’t know what kind murder was, anything. what the reason is or you automatically

THE vote for the COURT: Would presented? Death of the facts Penalty regardless Probably JUROR LOCHEN: not. hearing

THE I said that if such a COURT: When jury for at the end of this case that was called arguments to consider all of the and required would be Penalty of the Death and imposition reasons for arguments also have to consider all of the and would of the Death against imposition Penalty reasons whether to impose would then have to vote to determine on this the Death if were selected to serve Penalty, you argu- would consider all of the reasons and jury you the Death Pen- against ments and evidence both for and making mind on that issue? alty up your before JUROR LOCHEN: No. not do so? Why you

THE COURT: would just I in it. I just JUROR LOCHEN: don’t believe the Death Penalty. don’t in believe that do have you say THE Would COURT: [s-ic] against the infliction scruples then conscientious Penalty? Death excused for I move she be [prosecutor]:

MR. KOSKI cause. that, I to object

MR. PUMILIA [defense counsel]: to opportunity question. like the Honor. We would your inquire to permit you I will both THE COURT: this juror.

* * * Lochen, you’re have stated you MR. Miss KOSKI: that a stated Penalty you Death have against Judge. to response questions of times couple unable would be degree you it to such a you against Are of it? to vote favor Yes.

JUROR LOCHEN: be- scruples or your As a matter MR. KOSKI: liefs; you is that how feel? Yes. LOCHEN:

JUROR to feel would be unable you you And MR. KOSKI: of the cir- Penalty regardless the Death in favor of vote in this or you might presented that be cumstances any other case? Yes.

JUROR LOCHEN: you response I said MR. believe KOSKI: could consider you Judge’s questions one of the that? say did Penalty; you Death Yes, but as he I did at first LOCHEN: JUROR just I more it and thought me more I about questioned somebody a sen- giving responsible that I would be feel my want it on mind. and I wouldn’t tence to death for cause. I ask she be excused MR. would KOSKI: Honor, and we ask object we Your MR. PUMILIA: juror. question opportunity juror. may inquire You THE COURT: this point? At MR. PUMILIA: subject? on that juror Of that THE COURT: Lochen, ques- Miss you. Thank MR. PUMILIA: now, the right to vote going are you tion is not how to listen to you is would be able front of you question Judge give you? would of law that the the instructions to them? listen you Would Yeah, I would listen.

THE JUROR: them, consider you would And MR. PUMILIA: think decision? I am your made you them before about or think about—we are consider asking you just consider, will just you would do will asking you what you think about— LOCHEN:'Well, you really against, I am

JUROR I listen. know, Penalty. the Death would Yeah, your position. I appreciate MR. PUMILIA: to think and.to con- of a is to be able duty juror The to consider the of fact and to be able questions sider the you and law, Judge given the law the has think about consider, to do is asking you I’m be able that’s what instruct Judge that the would think about the law just on; that? you would be able to do you it. I wouldn’t consider probably LOGHEN:

JUROR inquiry THE I think we will close the COURT: will excuse her for cause. juror this Court or two. question MR. I had another PUMILIA: may question. You ask one more THE COURT: circumstances any MR. PUMILIA: there be Would un- who killed a thousand children such as an individual able to consider you der those circumstances would be Penalty? the Death some- postulate I think to Objection,

MR. KOSKI: Honor, and it is not your is to thing speculate, like that to this case. related juror’s Let me hear the answer.

THE COURT: Yeah, I consider it.” might JUROR LOCHEN: was excused this venireman questioning, Following the court objected, again the defendant for cause. When in- follow the court’s Lochen whether she would asked of the death concerning imposition penalty. structions “No.” She responded, flatly responses contends that Lochen’s again the death opposition unequivocal

did not demonstrate meaning did within the they We consider penalty. 486

Witherspoon. Looking to the whole of Lochen’s response, a fixed one concludes she had to opposition capital Witherspoon. “Witherspoon under does not punishment venireman catechism or ‘a to ex a set prescribe require ” v. (People himself with meticulous press preciseness.’ v. People Kubat 437, 499, from (1983), 94 Ill. 2d quoting Gaines 342, court, 88 Ill. 2d The trial which (1981), 356.) is a to evaluate a venireman’s re superior position Peo v. 147; Ill. People Silagy (see (1984), 2d sponse v. Gaines believe, ple 342), came, 88 Ill. 2d we to (1981), the correct conclusion. A venireman’s isolated statement that he or she or would consider the death might penalty need not the trial court accepted be when balance of the answers made is to the contrary.

The defendant that Lochen should have been suggests case, is, informed of the facts of the to evidence The voir dire examination, however, be is not presented. trial, or to afford an advanced so to designed required to determine whether will speak, prospective jurors apply the law the facts of case without bias or prejudice. This determination can made without an advance pre- be sentation of the facts involved.

To his contention the defendant also support points might Lochen’s answer that she consider the death penalty for a who killed a thousand children. Such an unre person alistic and unreasonable does not a hypothesis provide Witherspoon standard for whether was satis determining fied. The was whether Lochen would question seriously here. her re consider Not did charges only responses veal that she would not consider the death this penalty case, that, she listen to but disclosed would they although instructions, court’s she not follow them. This in would Adams v. Texas itself warrants excusal for cause. See 2521; 581, 65 L. 100 S. Ct. 448 U.S. Ed. 2d (1980), v. Free 94 Ill. 2d 402. The shows that the defendant was advised evidence Arizona 384 U.S. Miranda under his rights police 86 S. Ct. at sta- L. Ed. 2d to the officers present signed He to talk agreed tion. first denied having form. waiver-of-rights two previous area the during in the Rockford been denied Mercury, a maroon and months, owning denied later in a He admitted involved homicide. been having with his girl- of the and been Mercury having ownership their Brooks, (The at the child. friend, Estena birth on January in a Rockford hospital had been bom baby out that he must pointed the officers 24, 1981.) When months if he in within the last two have Rockford been child, said that he the his the defendant at birth of was an ear- he with his girlfriend during meant that had been he no He then said that lier, unspecified hospitalization. the and tore up desired to with the officers longer speak form. waiver-of-rights at that he had been living

The defendant testified trial he to December 1980. On that date prior in Rockford for that he wanted the an armed police heard was he to He Crosby’s and fled home Greensboro. robbery 1981, to see Brooks returned to Rockford on January his up belongings. and the when bom baby pick January His that he testimony spent was in South murder, Kaiser’s at the Brooks household day On cross- Estena, mother, baby. her Beloit with examination, July admitted late buying he He testified that used to kill Kaiser. which was later gun Jones, to James who following month gun he sold house on the west side in a brown two-floor lived He Street in Rockford. said 500 block Springfield 1981. from on February he back Jones bought gun he did not .38-caliber ammu- also stated that buy any He 1980. nition in December on Thrower,. who years had resided

Lawrence from Street, identified of Springfield the east 500 block each house photographs on the block and its occupant. He further testified that he had never heard of Jimmy Jones. Douglas Olson, an of the Southern employee Wis- consin Center Sports Beloit, Wisconsin, testified that his business records showed that he sold box of .38-cali- ber Smith & Wesson Special ammunition to the defendant 5,1980. on December

The defendant now argues that his fifth amendment right to remain silent was violated when the prosecutor elicited at trial testimony defendant had tom up the waiver-of-rights form, when the cross-ex prosecutor amined the defendant concerning he had not why pre sented his trial, version of exculpatory events prior and when the prosecutor commented during closing argu ment on the defendant’s “late how he story” concerning had obtained the gun. defendant, however, did not to the object at trial points and did not raise the issues in his motion. The post-trial have been waived. questions v. (People Gacy (1984), Ill. People Jack 1, 98; 2d son (1981), defendant, Ill. 2d 358-59.) The invok ing the doctrine of plain error, would have us consider the 73 Ill. 2d questions. (See doctrine, R. The 615(a).) however, is to be invoked the where evidence is closely balanced or where the error was such that magnitude the accused was denied a fair (People v. Lucas trial. 88 Ill. (1981), 251.) 2d We do not the consider evi dence here to be balanced. Nor closely do we that judge the or prosecutor’s comment, not, or inquiries improper v. Miller affected the verdict. People (See jury’s (1983), 96 Ill. 2d The the 385.) against evidence defendant was Too, formidable we believe that the highly persuasive. prosecution effectively impeached defendant’s exculpa tory evidence that the defendant testimony by introducing in had lied that he used to kill claiming bought gun Kaiser after the murder and denying purchase ammunition. 322 Ill. defendant,

The v. Dascola citing People 78, next con 473, v. Fiorita 339 Ill. his cross-exami tends that he was denied a fair trial by He nation on irrelevant and matters. prejudicial complains that concerned his with Victo relationship questioning ria the reason he had her from phoned Cobb and why North to ask if he could with her when he stay Carolina returned to Rockford on 1981. The defendant January asserts that the prosecutor attempting was improperly the defendant’s character. A sully reading complete cross-examination, however, that the indicates prosecutor was to establish that the defendant had attempting in a motel in Rockford he stayed avoiding because was who had a warrant for his arrest. The police prosecu tor was the defendant’s evidently attempting impeach earlier that he in the motel because he testimony stayed was that Estena Brooks would him. If hoping with stay true, that were the prosecutor wondered, did the why if defendant ask Cobb he could with The stay her? expla nation that the defendant later gave phoning Cobb was that he while knew that she would not let him stay her, with he was his distance calls to her charging long account and did not want her to think that he was not of her. cannot trial court thinking We abused say discretion in permitting questioning.

The defendant also contends that im- prosecutor tried to show the the defendant had properly jury little affection and interest in his newborn child. The only cross-examined concerning telling was his cousin, he with whom was North Carolina staying cousin, December of about the Florence baby. had testified that the defendant had Crosby, previously not mentioned a before he left for anything baby about Illinois. The of a line complained was questioning part the the intended to reveal questioning by prosecution Defense returning defendant’s motives for to Rockford. this line of during questioning— twice objected counsel for a conclu- that the called question once on the grounds the went to memory and once because the question sion Both to the of the witness. memory of another and not The defendant cannot complain were sustained. objections now a different raising were sustained objections when of objection. ground concerning complains questioning

The defendant and Estena Brooks for not bringing baby his reasons that, the record shows Reading home from the hospital. someone who the defendant as depict instead of trying mother, the prose- his and its unfeeling baby was toward a reason of the defend- to show that trying cution was he was home was taking baby ant’s for him from to locate would be able police afraid records. discharge the hospital’s the trial court dis In cannot abused say we summary, rec cross-examination. The as to the defendant’s cretion the com there valid motives for discloses that were ord cross-examination “It is on proper plained-of questioning. knowledge all circumstances within develop his di or destroy discredit explain, qualify, witness which constitute may incidentally testimony although they rect the cross-examiner’s case.” which aids new matter Gard, Illi 478, 486, quoting 66 Ill. 2d v. Williams (1963). Manual R. 471 nois Evidence officer, called was police a Rockford Bottomley, Donald he He testified that ob- the defendant. as a witness by at the sta- service gas pumps a man between served later esti- This was at a time Kaiser worked. tion where He observed time of Kaiser’s death. mated to be the seconds, he was able to or six but five only subject this description: provide green faded it male with

“Distinctly was black He had a length. two-thirds coat maybe almost brown foot five say maybe I would moustache and protruding have a pumps you the between five foot ten but eight or the inches above three or four there is place where one say I would was approximately and he pavement like that.” something pounds or sixty hundred to that of the per- is similar The defendant’s appearance was cross-examination, there On son described. Bottomley this colloquy: station that

“Q. Sir, saw in the person you is the today? in the courtroom morning present I couldn’t positive. percent A. I’m not one hundred the fea- basically identify Approximately him. positively say. positively the I can’t tures are same but descrip- and same Q. the same features Who bears tion? here, pro- subject right This

A. defendant] [the truding moustache —” announced cross-examination, defense counsel

Following Bottom- chambers that he was surprised by the judge’s if the witness as and asked to examine testimony ley’s objected under cross-examination. prosecutor counsel that that earlier he had warned defense stated the defendant from the stand. might identify Bottomley in- gave contends that his trial counsel The defendant witness, Bottomley, effective assistance in calling only the crime. The People, him at the scene of who placed Bot- believe, that however, contend, calling we correctly, to be a matter what appeared stand was tomley under hypnosis, Bottomley trial tactics. Earlier reasonable of the man at much different description had given mis- counsel the crime. It that defense appears scene of had two contradic- given that Bottomley believed takenly The rec- the man that he had seen. descriptions tory however, Bottomley indicates, description ord his recollection of descrip- was under gave hypnosis crime; it on the date tion another witness given by he testified The description not his own description. was Effective assistance trial his description. to at was own counsel refers competent, perfect representation. v. Puente (People 125 Ill. (1984), 152.) 3d Mistakes App. in trial or tactics or in strategy judgment do not of them v. selves render (People representation incompetent. Murphy 72 Ill. Torres 421, 437; 2d Ill. Moreover, 2d 392.) will representation be considered deficient if the constitutionally defend only ant shows of counsel incompetence substan produced tial without which the prejudice, result of trial would (Strickland v. Washington have different. probably been U.S__, 674, 466 80 L. Ed. 2d 104 (1984), 2052; S. Ct. v. People Royse (1983), v. 163, 168; 99 Ill. 2d People Greer 103, 79 Ill. 2d (1980), 120-21.) The People pre defendant, sented a case the strong against the defend ant’s alibi was and unimpressive, his as to explanation how he had obtained the found in his gun luggage was shown to be incredible. It cannot be said that the result of the trial would have been different had Bottomley called as a been witness.

The defendant next that the trial court at the argues erred in ten- sentencing hearing refusing defendant’s 2A, dered instruction which listed various nonstatutory factors, e.g., defendant’s envi- mitigating developmental ronment, situation, and It is family age, true mentality. that a defendant’s educational and so- family background, environment, cial moral char- age, mentality, general acter are in proper factors for consideration sentencing. v. (See People v. Murphy (1978), 421; 72 Ill. 2d Perruquet Lockett v. Ill. (1977), 149.) 2d As stated Ohio 586, (1978), 604, 973, 990, 438 U.S. 57 L. Ed. 2d 2964-65, 2954, 98 S. Ct. “the and Fourteenth Eighth sentencer, Amendments that in all but require case, rarest kind of not be from consid- capital precluded as a mitigating factor, any ering, defendant’s aspect character or record and any circumstances offense that as a basis for a sen- proffers But to than in original.) tence less death.” (Emphasis is mitigating properly what extent these factors will be No error oc for the consideration. sentencing body’s did instruction, since the jury curred herein refusing instruction, in fact an in accordance with section receive 1981, Stat. 1(c) (Ill. of the Criminal Code of 1961 Rev. 9— ch. that factors include par. 1(c)), “mitigating may 9 — *** *** facts or circumstances that reasons any provide v. (See People less than the death imposing penalty.” Thus, Free 94 Ill. 2d the defendant was 420.) to, did, allowed fact testimonial evidence present at the the factors sentencing hearing each of concerning listed in his offered instruction 2A.

The defendant also that the court erred in contends its on instructing jury during deliberations whether to the death impose “Neither penalty, sympathy nor should in- prejudice influence You should not be you. race, color, fluenced or national by any person’s religion, This is Illinois Pattern Instruction No. ancestry.” Jury In- 1.01(5) for use criminal cases. Pattern (Illinois Jury Criminal, struction (IPI), (2d 1981).) No. ed. 1.01(5) defendant, citing Gregg U.S. Georgia 49 L. Ed. 2d 96 S. Ct. suggests sympa- is a thy consideration for a proper sentencing jury.

The out that this issue was People correctly point waived the by defendant’s failure to to the instruc object tion at the conference to jury-instruction failing and by raise the issue of his motions. v. any post-trial (People 129, 149; Lewis 88 Ill. 2d v. (1981), Underwood Lewis, 124, 72 Ill. 2d In not (1978), 129.) the record did Here, disclose an to the objection instructions. questioned even the record shows that the defendant’s stronger, counsel declared that have no affirmatively objec “[w]e however, tion to con will,We proposed [the instruction].” sider the the instruction because propriety to defendant’s further claim that his trial counsel’s failure 494 assistance of counsel. constituted ineffective

object (Gregg, the a claim by In the Court Supreme rejected cases violation as in given defendant of an equal-rights not for the death penally. the had asked prosecutor in entitled to an not hold that a defendant is court did con should be struction that sympathy it has in some jurisdictions jury. Although sidered which would to error to an instruction give been held be v. (People considering from jury sympathy preclude Easley (1983), 858, 813, 671 P.2d 196 Cal. 34 Cal. 3d Quinlivan v. 124, State 81 Wash. 2d 309; (1972), Rptr. to is we consider the view be 1268), preferred 499 P.2d v. State (See instruction is not improper. such an v. Wil Watson State KA—2227; 1984), Feb. (La. 81 — Rowan v. liams 335; 301 S.E.2d 308 N.C. (1983), v. Sully State State 805; see also 431 N.E.2d (Ind. 1982), considered it (court 219 Kan. 547 P.2d 344 (1976), instruction, said that the giv not such but give better Several other error).) juris of it would not constitute ing issue, this but considered specifically dictions have of a similar instruction. have not disturbed the giving v. Travaglia Pa. 467 (Commonwealth People Dunoyair 890; 660 P.2d 288; (Colo. 1983), A.2d v. Benoit Commonwealth Mass. v. Burgoyne 393; State 452 A.2d 101; (Me. 1982), N.E.2d v. State Pixley 662.) jury 406 P.2d Here 1965), (Wyo. or other facts instructed that it could consider “any was less than reasons for imposing circumstances that provide was and the defendant permitted the death penalty,” In he considered mitigating. all evidence which present to the counsel twice appealed defense closing argument the right no There was violation sense of jury’s mercy. to a fair hearing. sentencing hearing, at closing argument

During in one of will see jury “you counsel told the defense factor instructions mitigating if find you any than the other a sentence may impose then you [sic] life impose probably the would judge death penalty state that the objection The prosecutor’s without parole.” the sustained, with was stated the law ment improperly than the death penalty other “the sentence court saying that admits The defendant no concern to this jury.” is of have been court would since the the was objection proper of natural to a term sentence the defendant required was if the death penalty life without parole imprisonment 38, Stat. ch. the Ill. Rev. (See not imposed by jury. the however, that by He 8—1(a)(1)(c).) argues, par. 1005 — misstatement, correcting prosecutor’s court’s not that misled the to believe jury have objection may for eligible parole. defendant one be might day the jury in informing stated that We have previously alternatives, pa terms of the sentencing possible “[t]he (People either counsel.” inteijected by role should [be] that Ill. 2d confusion Szabo 366.) Any concerning minds pos have arisen in the jurors’ may correctly the court was when dispelled sibility parole the severity that it was not to consider informed jury found to the death be penalty of a sentence should prison 102 Ill. v. Albanese (See be inappropriate. that its Too, only was later instructed 81.) jury 2d appli the death was penalty was to choose whether duty cable. to sentence

Since the trial court was required if the jury parole to life without imprisonment Ill. Rev. (see did not return the death verdict penalty the defendant 8—1(a)(1)(c)), ch. par. Stat. 1005 — for the to consider jury it was improper contends The People, for rehabilitation. potential the defendant’s on witnesses however, put out the defendant point his regarding po sentencing hearing who testified at the his counsel commented and that tential rehabilitation on the rehabilitative defendant’s during closing argument and offered instructions which contained potential jury the defendant’s for rehabilitation as a potential mitigating factor. The defendant has thus waived consideration of this Too, issue on we note that an appeal. argument simi- lar to the defendant’s was this court in rejected Peo- v. ple Albanese 102 Ill. 2d 79. See also (1984), People v. Taylor 102 Ill. 2d (1984), 205-06.

The that, defendant if his argues alternatively poten- tial for rehabilitation was not an consideration improper for the then three defense jury, witnesses should have been allowed to their individual conver- testify concerning sations the with defendant which were the for their bases that the defendant could opinions be rehabilitated. Wil- Collins, liam a Roman Catholic Jo Birkhahn- priest, Betty Rommelfanger, minister, a Methodist and Dr. Karl Ham- men, a each testified that the defendant has psychiatrist, for rehabilitation. Neither Collins nor Birkhahn- potential Rommelfanger more than 20 minutes with the spent based, defendant. stated that their in They were opinions on the fact that Bi- part, the defendant was studying in cross-examination, ble On Dr. Hammen admitted jail. that after in an examining 1973 concerning earlier offense he then had the same belief that defendant could be rehabilitated. minister, and the were priest, psychiatrist

called as witnesses. As to exer- expert experts, were they cise their in relat- professional judgment forming opinions to the ing defendant. as to the Testimony specifics their ei- conversations with the defendant is not relevant ther to nor what their were how professional opinions were formed. The witnesses were to tes- they permitted to their The fac- tify and how were formed. opinions they tors evidence at determining proffered admissibility a and are hearing aggravation mitigation relevancy 1, 43.) v. Davis 95 Ill. 2d (People reliability. do not the trial court abused discretion We consider to the on pass to allow these witnesses refusing (See had told them. the defendant what jury should be Ill. 2d An accused 378.) Free un be an in this what would to make way permitted to the jury. sworn statement the death that, penalty

The defendant claims because find of written the submission statute does not require death, the sentence of for a grounds of fact as ings an adequate case precludes sentencing capital process in the ab The defendant argues review. appellate cannot determine this court findings sence of written bal in the “engaged proper the sentencing body whether or whether factors” mitigating ancing aggravating We have certain evidence. mitigating the jury disregarded this issue defendant’s adversely decided previously 437, 504; Kubat 94 Ill. 2d (1983), contention. v. People 383; also Peo 342, 88 Ill. 2d see (1981), v. People Gaines 23, Ill. 50. (1984), v. Caballero 102 2d ple (1977), v. Florida The defendant relies Gardner upon 1197, for 393, L. 2d 97 S. Ct. sup- 430 U.S. 51 Ed. not considered by Because this decision has been port. it. to the defendant’s this court we shall discuss Contrary assertion, proposition does not stand for Gardner findings, of written that, without the requirement unconstitu- would be Florida death penalty procedure court reviewing The Court held that Supreme tional. to record on which must have full access the complete to based its decision sentencing body impose Gardner, death In the trial court sentenced the penalty. defendant to death after a confidential reviewing presen- not disclosed was investigative report .tence which report, not made to the defendant or his counsel and which was of the record on appeal. part he denied equal pro- contends that was sentence with- since the jury imposed

tection the law and con- having prepared out a been report presentence 498 his re erred in

tends, too, denying that the trial court not un sentencing jury to the to make a statement quest This court not to cross-examination. subject der oath and issues adversely these considered and decided has already v. Gaines 88 (1981), (People defendant’s positions. issues that these Too, the defendant admits Ill. 2d 342.) and objection for review on appeal by were not preserved have been waived. Thus, the issues motions. post-trial v. 252, 303.) Consider Williams 97 Ill. 2d (People (1983), trial that we cannot say the nature of these ing questions as of ineffective is objection proof counsel’s not making of trial counsel. sistance the death penalty that arguments

The defendant’s not provide in that it does unconstitutional statute is in ag hearing at a has the burden proof which party what and does specify and mitigation gravation re repeatedly have been standard should be proof 533-34; Ill. 2d v. Brownell 79 (People (1980), jected. v. Ca People 421; v. Free 94 Ill. 2d (1983), decisions In those ballero 48-49.) 102 Ill. 2d (1984), Court’s with the Supreme harmonized our opinions we 238, U.S. in Furman v. Georgia decisions Georgia Gregg 346, 92 S. Ct. L. Ed. 2d 2909. 859, 96 S. Ct. 153, 49 L. Ed. 2d U.S. stat penalty the death also claims The defendant authority judicial legislative delegates ute improperly the dis with have been vested State’s who Attorneys, in an individual to seek the death penalty cretion whether and capri arbitrary leads to case, and that the statute it in that fails of the death penalty cious application The discretion. of the prosecutor’s the exercise guide thor were points these acknowledges ex in People and rejected this court discussed oughly by v. People 531, and 77 Ill. 2d rel. v. Cousins Carey (1979), offer does 129. The defendant Lewis (1981), 88 Ill. 2d issues of these disposition The majority’s argument. new 499 See affirmed. been recently Lewis has in Cousins and and 54, 82, People 102 Ill. 2d v. Albanese (1984), People 470, 495. 101 Ill. 2d (1984), v. Stewart the death penalty next contends that The defendant amendments and fourteenth statute violates eighth Const., amends. (U.S. the United States Constitution com VIII, adequate in that it does not XIV) provide whether the cases to determine review of parative capital This ar applied. death is penalty being disproportionately and rejected by considered has been gument previously 508, 79 Ill. 2d (1980), v. Brownell People this court defendant, The 94 Ill. 2d 437. and v. Kubat (1983), is constitu review however, contends that proportionality 428 (1976), v. U.S. Gregg Georgia mandated tionally by 2909, 153, 859, 49 L. Ed. 2d 96 S. Ct. and Proffitt 913, 96 S. 242, 49 L. Ed. 2d Florida U.S. But v. Harris Pulley Ct. 2960. very recently, 871, 104 S. Ct. Su 79 L. Ed. 2d U.S. Court held that preme does not Gregg require proportion review in cases and that is even less ality capital “[tjhere 37, 46, basis for reliance on v. Florida.” U.S. (465 Proffitt 29, 37-38, 871, 877.) 79 L. Ed. 2d 104 S. Ct. state,

court went on to “That did not Gregg Proffitt a constitutional of proportionality establish requirement [(1976), review is made clearer Jurek v. Texas 465 U.S. 929, 96 S. Ct. 262, 49 L. Ed. 2d U.S. 2950].” 871, 878. 37, 48, 29, 39, 104 79 L. Ed. 2d S. Ct. statute vio

The defendant that the death says penalty Const., VIII) lates the amendment’s amend. eighth (U.S. in that it ar of cruel and unusual prohibition punishment the death imposition bitrarily capriciously permits exempt while sentence as to defendants English-speaking who, under section defendants ing non-English-speaking 1963 (Ill. Procedure of of the Code of Criminal 104—22 assistance 22), require Rev. Stat. ch. par. 104 — Ill. Rev. Stat. trial See to understand proceedings.

500 38,

ch. par. 16(b). 104 — Section 104—22 of article 104 of the Code provides, the part relevant here:

“(a) defendant, On motion of the the State or on the court’s motion, own shall determine whether .court special provisions or assistance will render the defend- ant fit to stand trial as defined in Section 104—10.

(b) Such special provisions or assistance may include but are not limited to:

(1) Appointment of qualified translators who shall simultaneously translate all testimony at trial into language understood the defendant.

(2) Appointment experts of qualified to assist a defendant who because of a is disability unable to understand the proceedings or communicate with his or her attorney. 1981, 38,

***.” Ill. Rev. Stat. par. ch. 104-22. Section 26(b) same article that a provides 104— defendant who is convicted following trial under section 104—22 shall not be eligible the death See Ill. penalty. Rev. Stat. 1981, ch. par. 26(b). 104 —

The defendant complains that section 26(b) un 104— constitutionally from exempts application the death those penalty persons who under section 104—22 require special provisions or assistance in order fit to stand be trial as defined in section 104—10. The latter provision declares that if, is unfit because his “[a] mental or condition, physical he is unable to understand the nature and purpose him proceedings against or to assist in his defense.” Ill. Rev. Stat. ch. par. 104-10.

It should be observed article 104 (Ill. Rev. Stat. ch. 104 —10 et par. seq.) concerns a defendant’s trial, fitness for or to plead, sentenced, be and that it became law the enactment of Senate Bill through 133. The General indicate that Senate Assembly debates Bill 133 was introduced because of the case of bizarre Ill. 311), 2d Lang (1979), (see People Donald Lang Although murders. mute accused of two an illiterate deaf treatment, he had “vir in need of medical was not Lang other any to communicate with people no tually ability Since 311, 316.) Ill. 2d recognized language system.” (76 mental dis was under a Lang it could not be said of the Mental Health and Develop ability, provisions Stat., 1978 ch. Supp., mental Code Rev. (Ill. Disabilities 91½, 1 — 100 et which would have seq.) provided par. shelter, Sen care, training medical and were inapplicable. 104, intended to 133, ate Bill which became article was fill “the in the framework glaring present statutory gap of our criminal as it relates to unfit justice system Daniels, 75, defendants” Lee House at Debates (Rep. June the defendant fit to stand 1979) rendering by trial assistance or to as through by requiring hearing certain the defendant’s fitness and indicated future treat alia, ment for him. The bill inter for fitness- provided, for-trial examinations of the accused aby physician, clinical or other de psychologist, psychiatrist, expert; tailed, written examination and reports progress reports determine fit hearings medical to by expert; periodic ness; medication; hearings and for who discharge persons cannot be rendered fit to stand trial through special pro visions or assistance under section 104—22. These provi needs of sions article 104 are not related to the clearly The an accused who is simply non-English-speaking. prob lem of defendants who are is simply non-English-speaking met section 1 of “An Act to by relating appointment ***” Stat. ch. (Ill. par. Rev. interpreters for for defendants 11), interpreters which provides 165 — an understanding English. without adequate of article for trial. 104 is fitness Clearly subject if Section 104—10 that a is unfit because provides person of his mental or condition he cannot understand physical and assist in his defense. proceeding

There is no indication that or mental “physical condi- tion,” as used in section 10, was intended 104— to legislature include an to or inability speak understand English. or ability to or inability speak understand English is not mentioned article 104. Nor is there any- in the thing debates of the General to indicate Assembly the legislature considered non-English-speaking defendants to have a mental or physical It disability. would be an surely contend, absurdity to use an im- illustration, probable the legislature intended that if a foreign legislator, or lawyer professor, were to be con- victed of a capital offense, for that he could example, be considered for the death penalty because he simply did not understand and English a translator at trial. required

Interpreters defendants who do not understand been, had English are, statute, provided by as we have noted. (Ill. Rev. Stat. ch. par. 11.) To 165 — construe section 104—22 as providing for translators assist non-English-speaking defendants would unreason ably ignore existence of section 1.

Considering the obvious purpose intendment of ar- 104, ticle it seems clear from the that section language 104—22 is not to be limited to instances of non-English- speaking defendants. It would it in- appear would clude communication by of way sign language, tactile- sense recognition and similar avenues.

On 18, 1982, the January defendant was convicted of having murdered Willie Fredd and Albert Pearson on 27, 1981, January and he was sentenced to death for those crimes. (People v. Stewart docketed (appeal Mar. 12, 1982), No. 56332.) His from appeal those convictions and sentences is in currently the briefing in stage this court. He contends here that if we were to reverse either i.e., conviction on that 56332, appeal, we would be obliged to vacate the sentence of death that is the subject so, this This is he appeal. because the says, involved here introduced evidence of prosecution the defendant’s convictions in cause No. 56332 of the murders of Fredd and Pearson as additional aggravat- at factors convic- ing sentencing hearing following tion for the Kaiser. murder Kevin

The contention is a one and should not speculative abe the affirmance of the convic- ground deferring tion and sentence here. In of the light possibility out, shall however, we not at this time points fix a date for the en- of sentence. When we imposition ter in cause No. 56332 we shall enter an judgment ap- order in this case propriate regarding sentence.

For the reasons given, of the circuit judgment court of Winnebago affirmed, is County conditionally is jurisdiction retained pending of the disposition in cause appeal No. 56332.1

Judgment conditionally affirmed; jurisdiction retained. SIMON, JUSTICE concurring part dissenting 30, 1984, following 1On November order was entered in this cause: conditionally On judgment October we affirmed the Winnebago County juris the circuit court of in this cause. We retained pending disposition diction appeal of the of defendant Stewart in cause judgment No. 56332. The and sentence of death in that cause have to day Accordingly, judgment been affirmed. in this cause is affirmed condition, 28, 1985, without Tuesday, May and the execution date of which was fixed in cause No. is fixed as the date for execution of the death sentence in by this cause. The defendant shall be executed injection provided by lethal in the manner section 119—5 of the Code (Ill. of Criminal par. Procedure of 1963 Rev. Stat. ch. 119— 5). copy A of this order shall be transmitted the clerk of this court Corrections, to the Director of to the warden of Stateville Correctional Center, and to the warden institution wherein defendant is con fined. 504

part:

I agree the convictions for murder should be af- firmed in this case. However, for the reasons set forth in my separate opinions in People v. Lewis Ill. 2d 129, 179 (Simon, J. People v. Silagy in dissenting), Ill. 2d (Simon, J., in concurring part and dis- v. Albanese and in senting part), (1984), 104 Ill. (Simon, J., 2d concurring part dissenting I believe that part), Illinois death statute is un- penalty constitutional and that the death sentence should be va- cated.

(No. 57660. THE PEOPLE OF THE STATE ILLINOIS, OF Appel-

lee, ALBANESE, v. CHARLES M. Appellant.

Opinion Rehearing October denied filed 1984.— 30, 1984. November

Case Details

Case Name: People v. Stewart

Court Name: Illinois Supreme Court

Date Published: Oct 19, 1984

Citation: 473 N.E.2d 1227

Docket Number: 56629

Court Abbreviation: Ill.