*1 (No. 60062. ILLINOIS, THE Appel
THE PEOPLE OF STATE OF lee, SZABO, Appellant. v. JOHN Opinion Rehearing June filed 1986. 26, 1986. September denied *3 C.J., SIMON, J., dissenting. CLARK, Defender, Schiedel, Springfield, Deputy Charles M. Defenders, Katz, Beth Assistant Meinz and Verlin De the State Ottawa, Appellate all of the Office of fender, for appellant. General, of Springfield
Neil F. Hartigan, Attorney Rotert Stewart, General, and Mark L. J. Solicitor (Roma General, Quinlivan Czech, Assistant Attorneys and Marie counsel), for the People. of Chicago, of the court: delivered JUSTICE MORAN *4 a Szabo, County John was indicted Will Defendant, by murder, two on counts intentional grand two jury one count of murder, conspiracy counts of felony trial and commit Defendant waived jury armed robbery. circuit was tried before the court of Will July re was found on all counts. The State guilty He County. 9— a death to section quested penalty hearing pursuant 1979, ch. of the Criminal of 1961 Rev. Stat. 1(d) (Ill. Code 38, have a for this par. 1(d)). jury Defendant chose to 9— The sentenced to death for hearing. jury In addition, murders. the court sen three-year imposed tence on charge. conspiracy
Defendant then to this to arti pursuant court appealed cle VI, section 1970 Illinois 4(b), Constitution Court (73 603). Rule 603 Ill. 2d This court held that the circuit court had refused to order erroneously State produce certain materials for in cam discovery era v. Szabo (People Ill. inspection.
350.) Defendant’s convictions were vacated and the cause remanded circuit court so could materials be reconstructed and If inspected the court. the circuit discoverable, court found that the materials were then defendant was to be (94 new trial. Ill. 2d granted If 350.) the materials were nondiscoverable, found to be then defendant’s reinstated, convictions were to except was to be judgment entered on two only counts murder since defendant had charged been alternative counts arising out of only (94 two deaths. Ill. 2d 350.) Finally, this court vacated defendant’s death penalty because of errors at sentencing. 357, 367. remand,
On of the copies missing materials —notes taken an assistant State’s in- Attorney during pretrial with the terviews prosecution’s main witness—were dis- covered in the State’s files and tendered to the circuit court. After an in camera court found that inspection the materials were product,” “work were not impeaching, and did not raise a reasonable as to doubt guilt. court then The reinstated defendant’s convictions. again requested State a death hearing, penalty
and to decide the defendant chose have a whether jury death to im- jury would be voted penalty imposed. the death Defendant pose penalty. again directly appeals to this court.
Defendant with single raises question regard Did follow guilt phase of his trial: the trial court fail to the mandate of this court it when reinstated defendant’s addition, conviction? defendant raises six additional (1) the it error questions Was regarding phase: to allow the to read tes- State into evidence of transcripts from the earlier dem- timony sentencing hearing without the of the -witnesses testi- onstrating unavailability whose was it error to mony (2) deny read? Was defendant’s motion limine to restrict cross-examination asking defendant? Did the comments clos- (3) prosecutor’s during Did the ing argument hearing? (4) defendant a fair deny the court’s instruction to should not con- they jury defendant, sider for the the when -with sympathy coupled statement the should not consider prosecutor’s jury a fair Does hearing? (5) defendant “compassion,” deny Georgia Davis v. this court’s 429 U.S. finding 50 L. Ed. 2d Ct. S. was violated death first forever bar penalty State from the death defendant? upon imposing penalty dis- (6) and the death an unconstitutionally Was penalty sentence sentence when proportionate compared Defend- received another in the murders? participant ant also the constitution- eight regarding raises questions of the the statute Illinois death statute: Does ality penalty fail (1) cognizable to a adequately unique narrow (2) those the death vio- group eligible penalty; for persons restrict- guarantees late constitutional equal protection when the defend- ing imposition penalty death trial; fit for (3) ant assistance requires special the burden of proving improperly upon place al- (4) that death is an inappropriate penalty; improperly as to low discretion when prosecutor unbridled fail to (5) provide death will be penalty sought; improperly relied upon means assure that all factors aggravating were relevant and permissible; (6) improp- constitutionally fail to erly require the State a reason- prove beyond able doubt the absence of factors sufficient to mitigating preclude imposition the death (7) penalty; improperly fail to require sentencer to find that death ap- propriate penalty; (8) fail to ade- improperly provide quate review of death procedures appellate sentences? *6 the State on one Finally, raises additional cross-appeal Did defendant waive all question: by issues to file a failing motion? post-sentencing The facts adduced at are defendant’s trial dealt with at in length (94 this court’s earlier Ill. 2d and 334-42), thus we need not detail go into regarding those facts. For purposes however, it appeal, to know that necessary State’s witness trial key was Robert Leatherman, coparticipant the alleged and robbery murders. Leatherman spoken had several times to trial prior Ford, to William then an assistant State’s At Attorney. three of these sessions Ford had taken handwritten On notes. trial day of moved to discover these notes pursuant to Court Rule 412(a)(i) (73 Ill. 2d R. 412(a)(i)). Ford claimed that these notes had been destroyed, argued and that they were nondiscoverable work product. However, he offered to provide defendant an with “trial eight-page sum plan” marizing Leatherman’s expected testimony. He also of fered to reconstruct the notes if ordered do so by court. The court, circuit however, denied defendant’s dis motion. covery
On this court held appeal that circuit court should have ordered that the notes be reconstructed ten court for an in camera dered Ill. inspection. (94 327, 345.) This court’s conclusion regarding interview *7 a new and order to defense counsel
it should deliver them not to found notes are the reconstructed trial. In the event Leatherman’s reports substantially verbatim contain to rein statements, is directed the circuit court pretrial be discussion convictions, to our subject state defendant’s 94 Ill. murder convictions.” superfluous low of defendant’s 327, 349-50. at- appointed a new After remand defendant obtained judge explained the trial 1, 1983, November On torney. attorney: to the newly appointed of the case the posture In es- is this. of this cause present posture the “Briefly, to exam- the directed Court sence, Court has Supreme the ine in camera the reconstructed notes the interviews Leatherman, Ford of main conducted Mr. Mr. the wit- the and if Court prosecution, ness at the feels that there that was contained within impeachable material grant those notes the Court is then to new trial on all charges Mr. Szabo.
If is of examining the Court after the notes no impeachable camera there are matters contained information, in the then Court to reinstate con- proceed to a victions in accordance with convictions.” remand,
After it was discovered that Ford’s handwrit- ten notes had been after destroyed only being transferred into form. These were in typewritten typewritten notes Thus, fact the State’s files. instead of reconstructing Ford’s handwritten notes, the State tendered to the court typewritten of those transcription notes.
The court later informed the he would have to parties review Robert Leatherman’s trial in order to testimony determine whether typewritten notes were discover- able. After reviewing the notes and Leatherman’s testi- the court mony denied discovery reinstated defend- ant’s convictions, explaining action as follows:
“And the Court considering the contents of the notes in camera, Court, as directed Supreme in the Court’s opinion the notes presented were were the work [that] product Ford, of Mr. that they impeachable contain no ma- terial would which have assisted defense counsel in cross- Leatherman, examination of Mr. they and that do not raise any question of guilt beyond defendant’s a reasonable doubt.
Therefore, the pursuant Court the mandate is rein- stating the Felony Murder convictions of defendant. Defendant is not to a entitled new trial.” Later, motion for denying a new trial the court further explained its position regarding *8 *** camera, the Court by were to be examined
notes] any impeach- whether or not for the Court to determine therein which could assist was contained able material of the trial. his defense at the time notes in typewritten those The Court has reviewed its judgment issued previously And the Court had camera. con- material impeachable was no that there were —there notes the typewritten tained in the three statements Leatherman, with Mr. taken Mr. Ford of interviews re- therefore, that, impounded the notes should be Court, pursuant that also any review view that there was in the event the Court finds mandate that therein, the Court contained impeachable no matter as to fel- of conviction prior judgments could reinstate the how- murder, sentencing hearing, and conduct a new ony ever, And that prior as the sentence had been vacated. case, at this time.” posture of erred in finding that the trial court argues Defendant and also notes in were work product, question the notes’ value. We impeachment erred in on focusing appear first The notes defendant’s contention. agree with of the witness’ transcription shorthand merely be notes contain para The fact own statements. of the witness’ instead of the witness’ statements phrases “sub being notes from not prevent own words does as de of oral statements” verbatim stantially reports Ill. 2d 412. v. Bassett (People scribed in Rule enjoy quali In civil cases such notes would 285, 290-92.) Co. v. Coal (Consolidation “work-product” privilege. fied However, 103, 109-10.) Co. Bucyrus-Erie applies the work-product privilege in criminal cases if con only “they *9 in Rule 412 discovery provisions require does re of versal a conviction unless (People shown. v. prejudice 128, 111 Ill. 2d v. Wright (1985), 152; Greer People (1980), 79 2d 103, 120.) Ill. The trial court examined the *10 unavail- were witnesses demonstrate
tempt able. clause of the confrontation of a trial guilt
At the phase Const., VI) operates amend. (U.S. the sixth amendment the State unless testimony the use of prior to prohibit is now unavailable. witness prior demonstrates Roberts 65, L. Ed. 2d (Ohio 56, 448 U.S. (1980), “rule addition to this 2531, 597, 2538.) 100 S. Ct. 607, shown to must also be the prior testimony of necessity” it accepted bears demonstrating trustworthy be Ohio Roberts 448 U.S. (1980), reliability.” “indicia 2531, 597, 607-08, 100 S. Ct. L. Ed. 2d 56, 65-66, 65 2539. unavailability requirement clear
It is not whether during guilt phase as as well sentencing applies however, prior no is, question There the trial. bar, open which took place in the case at testimony coun- cross-examined fully court and was trustworthiness. tests for Court’s sel, meets 72-73, 65 L. Ed. v. Roberts 56, (See Ohio 448 U.S. (1980), v. Stubbs Mancusi 2542; 2531, 100 S. Ct. 597, 612, 2d (1972), 204, 213, 408 U.S. 293, 302, 33 L. 2d Ed. 92 S. 2308, Ct. 2313.) Since the bears “in- testimony sufficient dicia of the error in its reliability,” admission, if any, was enough substantial to warrant review under plain-error rule.
Defendant also that the argues court erred in denying his motion in limine which sought restrict cross-ex- amination of defendant. Defendant wished to take the stand in his own behalf and to his testify solely conduct since being incarcerated. He moved prohibit cross-ex- amination the murders regarding with which he was charged. motion, circuit court denied the and the de- fense introduced, an as offer of proof, defendant’s testi- that he would have taken the stand if his mony limine motion had been granted. not, Defendant did however, testify before the jury. v. South
Skipper Carolina 476 U.S. 90 L. Ed. 2d S. 106 Ct. holds that a defend specifically ant, during a capital hearing, has the right introduce evidence of conduct good during his incarcera clear, tion. It is however, that defendant was not denied the right to such evidence. The present trial court merely required that defendant’s testimony subject same as other impeachment any witness. A defendant in a death penalty sentencing hearing has no right “allocution” (People v. Williams Ill. 303-04), and it thus follows that there is no to address the with right jury facing out impeachment. We therefore find no error plain in the denial of defendant’s in limine motion.
Defendant also argues that he was cer- prejudiced by tain remarks during argument prosecution’s closing Defendant, however, to the sentencing did not ob- jury. at the time the remarks made. exam- ject were We have prosecutor’s closing arguments ined the and find no er- ror enough substantial amount error. plain
Defendant also that the instruction to the argues jury influence nor should prejudice
that “neither sympathy argument with the prosecutor’s when coupled you,” asking disregard “compassion” them jurors fair This court has hearing. him defendant, deprived question of the instruction the use specifically upheld v. (People Perez 2d 108 Ill. (1985), penalty hearings. death v. People Stewart 463, 494.) 70, 92; (1984), objected comments were not Moreover, the prosecutor's no to. find error. plain We Davis the violation argues
Defendant also Georgia 2d Ct. 122, 50 L. Ed. 97 S. 429 U.S. prevents forever at his first Szabo In the first a death sentence. obtaining State from death sentence this court reversed defendant’s excluded juror was prospective improperly because part Szabo jury. (People 327, 357.) 94 Ill. from the the death reservations about had juror expressed against a firm had not commitment expressed but penalty Davis held that Court Supreme its imposition. then “any from the jury such a excluded when person cannot stand.” death imposed penalty subsequently 339, 341, 97 S. Ct. 400. L. Ed. 2d 122, 123, U.S. means that language argues Defendant fu- juror entirely precludes of one exclusion improper imposition If this were so then penalty. ture death However, we plain indeed error. death would penalty meant to forever Court do not think of a of the death because penalty preclude imposition error. In our view Davis requires a new venire single conducted. penalty hearing and a new death be drawn case, in the instant what occurred Since this exactly Davis has violated. been is unconstitu- that his sentence argues
Defendant also sen- four-year juvenile tionally disproportionate Leatherman. Robert accomplice, upon tence imposed in defendant’s argument this very rejected This court
97 first 327, Szabo 352- appeal (People 53), and we see no reason to alter our previous holding.
Defendant also raises numerous to the con objections of stitutionality However, the death statute. this penalty court rejected has each of these contentions. previously has Defendant with provided us as to argument why we should reconsider these has holdings but instead re ferred to the in us made argument defendant’s brief another case and of Court justice from the denial dissenting of certiorari still another case. onceWe out that again point this court will not con sider an issue to be has properly raised when defendant made argument no other than to reference incorporate by of argument another. (People Perez 108 Ill. At 96-97.) rate, any we decline the invitation to overrule our decisions. previous herein, the
For the reasons stated judgment of the cir cuit court of The clerk County Will affirmed. of this court is enter setting directed to an order No Tuesday, vember 1986, as the date on which the sentence en tered in the circuit court of Will is to be carried County out. The defendant shall be executed lethal injection the manner provided by section 119—5 of the of Code Criminal Procedure of Rev. Stat. (Ill. ch. par. 5). A certified mandate of this court copy 119— shall be Di transmitted the clerk of this court to the Corrections, rector of warden Stateville Correc tional Center, and to the of the warden institution wherein defendant is confined.
Judgment affirmed. CHIEF CLARK, JUSTICE dissenting: A defendant in a death case should not be required file a motion for a as the holds. new majority trial
The majority states: regarding
“Defendant also raises several issues sec- However, hearing. post-trial he filed no ond argues hearing, therefore the State motion after agree. cap In a any sentencing issues are waived. We pen the death jury’s determination whether ital case Failure to raise part be invoked ‘trial.’ alty will motion, section required by in a as post-trial trial errors (Ill. 116—1 of Code of Criminal Procedure of *13 1983, 38, errors.” 1), waives those par. Rev. Stat. ch. 116 — 113 2d at 93. Ill. that an to this exception then majority explains is error, which so sub plain rule is there is made when a fair trial. 113 Ill. to the defendant of stantial as deprive 2d at 93-94. the language majority
I the above-quoted believe from People in opinion in with this court’s is conflict Caballero 23, court stated: 102 Ill. 2d wherein this case, under our penalty is a death which
“Since this (Ill. court automatically reviewed this constitution is VI, review the case 1970, 4(b)), art. sec. we must Const. a motion for a new trial has been whether or not written Otherwise, for an auto provision filed. the constitutional 23, 32. meaningless.” would be appeal matic filed a motion for a case, In the defendant the instant re- court trial. This then original after the new trial camera for in- circuit court an manded the case the of inspection certain notes. After of spection the defendant was the trial court’s decision that notes and a trial, the defendant filed second to a new entitled for The second motion a new trial a new trial. motion for took hearing a sentencing place. was denied and second to file yet was required To hold that the defendant now sentencing for a trial after second another motion new right a defendant’s constitutional narrows direct appeal. in the requesting would be
The relief defendant not a new trial. hearing, is sentencing case bar new that his second sentence knew Since the death reviewed on direct appeal, would be automatically as it been mandated, is would not have constitutionally motion a new trial logical for him have filed a third when seeking all he is is a new hearing.
It should noted that the constitutional provision cases for direct court death providing appeal does not limitation I any scope on review. be- place lieve the restriction which on the majority placing of review narrows the con- scope improperly stitutional to a direct v. North right Woodson appeal. 305, 944, Carolina U.S. L. Ed. 96 S. Ct. the United States Supreme Court stated:
“This conclusion rests on squarely predicate of death penalty qualitatively a sen- different from tence long. Death, of imprisonment, however in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only year or two. Because difference, qualitative is a corresponding there differ- ence in the need for in the reliability determination that death is the appropriate punishment case.” specific *14 Because the United States Court has stated a sentence death different, of I believe qualitatively these cases should be treated under the waiver differently rule.
For all reasons, of the above-stated I dis- respectfully sent, and I would consider the several that are issues raised defendant on by appeal. SIMON,
JUSTICE also dissenting: For the reasons set forth Chief in Justice Clark’s dis as senting well as in opinion, expressed separate those my in v. 52 People (1984), Caballero 102 Ill. 2d (Simon, J., I dissenting), majority too believe the declaring in that a motion is in wrong post-trial required order to issues for review in a preserve capital direct
100 Caballero made clear that counsel’s failure fact,
case. In case, while trial in a capital a motion for new file court, from could inviting tongue-lashing perhaps of man constitutionally the court's review affect only recently That was principle dated automatic appeal. People Porter Ill. 2d 386. In (1986), reaffirmed in Porter, on arguments appeal raised two only an one right impartial jury; to trial concerning by in his motion for a had been included of the two points counsel trial new trial. The court once admonished again statute; held, it motion post-trial comply with such as this are auto that “death cases penalty though, this court under our constitution” reviewed by matically the merits and address 399) Ill. 2d (111 proceeded court, in I find it dis puzzling of both arguments. decisis, stare of now appears regard principle Caballero and Porter without mentioning even overrule are not majority which are cited by them. The cases Precup (1978), People 2d 73 Ill. in in point: both People v. Wright Ill. defendants trial, in motions for a new but failed their did file motions Caballero, in here, relied as upon; to raise issues later no motion filed. such was what
I the entire question post-trial suggest cases and under if are motions, required capital any, file motion the failure to a post-trial what circumstances on de upon of issues relied appeal constitutes a waiver the court. by careful reexamination requires serves in noncapi That could even stand reexamination question opinions in which many tal of the manner cases view clear rule announced Jus away from the strayed have People v. Black 544, tice Ryan others may as well as (“Constitutional questions and the failure objections waived the absence prior *15 added)), (emphasis the same review” preserve Needham People 22 Ill. Justice Schaefer (“No made, or motion to strike objection was however, and point was not raised written motion for a new trial. It has therefore been waived” That rule (emphasis added)). necessitates counsel the error bring attention; to the trial court’s I submit a second a requiring objection by post-trial motion serves little purpose except an unneces- impose sary on technicality defendants.
I would add that holding that sentenc majority’s issues must ing in a preserved motion for a new trial is not grounded in the statute which all governs aspects of capital in the review; trial court and on sec tion 9—1 of the Criminal Code of (Ill. Rev. Stat. ch. does par. 1) for a provide post-trial 9— motion in capital Rather, cases. relies on majority semantic argument sentencing hearing a part of the trial. Even if so, this is the chief justice correctly points out it makes no sense at all to require to ask for a new trial when his re challenge lates to the sentence which was imposed.
Having concluded that the defendant’s failure to file motion for a new trial after the sentencing hearing pre- cludes consideration of all but “plain” sentencing errors, the majority quickly dispatches the defendant’s claim that he was deprived his rights under the sixth amend- ment’s confrontation clause. The majority upholds death sentence but is somewhat on obscure whether denial of confrontation in this instance was not error at all or whether it simply was not “substantial” enough rise to the level of plain case, error. In either I disagree.
Hearsay of former transcripts testimony by several witnesses were introduced in aggravation at the defend- ant’s sentencing helped him on death put row. The State made no showing that the witnesses were unavailable to appear person. concedes majority that such a showing under the generally prerequisite
102 of this hear-
confrontation clause to the admission of type either that a demonstration of unavaila- say suggests but at the or at bility required sentencing hearing is never it is not the is deemed least that when required hearsay reliable. alternative, of majority’s
As the first the source the a of showing unavailability doubt the need for about is v. New the Williams sentencing hearing apparently 241, 93 Ct. 1337, York 337 U.S. L. Ed. 69 S. (1949), did not any 1079. held that due process require Williams of statements confrontation declarants whose out-of-court were and were relied contained a presentence report decision, sentence. That upon judge passing the obviously contemplate which did predated cases, formal sentencing hearing capital present-day de- has of continuing vitality by subsequent been robbed the sen- recognition the court’s velopments, including other pun- tence of death is different” from “qualitatively 428 U.S. ishments. v. North Carolina (Woodson 944, 2978, 2991.) 280, 305, 961, 49 L. 2d 96 S. Ct. Ed. the pen- “Given the of the decision to made at gravity the State is not of the- phase, obligation relieved alty (Estelle constitutional guarantees.” observe fundamental 454, 359, 68 L. 2d 463, U.S. Ed. Smith 451 1866, 1873 a death sentence be- 369, (vacating 101 S. Ct. in vio- cause was introduced at penalty phase evidence fifth amendment privilege lation of the defendant’s right sixth amendment against self-incrimination with wit- confronted adverse counsel).) right to be character a requirement” nesses is “fundamental 295, 35 L. U.S. (Chambers Mississippi (1973), 1038, 1046), right and the Ed. 93 S. Ct. case capital therefore extends to the penalty phase 1982), F.2d Cir. (Proffitt (11th v. Wainwright rea- 311). 706 F.2d For these 1983), Cir. (11th modified pre- are unavailable must sons a that witnesses showing cede the hearsay introduction of their statements at sen- tencing.
I would also add that majority’s apparent sugges- tion that hearing not a of the trial part for the of the sixth amendment in strik- purposes stands ing contrast to its earlier conclusion of trial for part purposes post-trial-motion require- ment. I fail to understand how can majority expect have it ways. both addition, cannot, of the reliability as the hearsay holds, serve
majority as substitute the independent *17 requirement of the confrontation clause that the witnesses be unavailable. Ohio Roberts makes unmis- be shown to clear that takably “Confrontation Clause operates separate two to restrict ways range admissible hearsay” (emphasis added): the witnesses must be un- (Ohio available and the hearsay must reliable. be Roberts 56, 65, 448 U.S. 597, 607, L. Ed. 2d S. Ct. 2539.) two requirements separate serve two distinct goals: the for necessity showing reflects the unavailability “Framers’ preference face- to-face accusation,” while the of the purpose reliability test is to assure “accuracy in the factfinding process.” (448 56, 65, U.S. 65 L. Ed. S. Ct. Neither factor
2539.) alone can the sixth standing satisfy amendment.
There can thus little doubt that the defendant was denied his to be with erroneously right confronted witnesses him. This against violation the sixth amend- ment clearly one which I right. involves “substantial” would therefore vacate the death sentence and remand the cause for further proceedings. notes as follows: was us, determine unable, on the record before “We are the nondisclosure by prejudiced defendant was whether sum they contained may notes. It be the interview that were en Leatherman statements pretrial maries of and of no value testimony his trial consistent with tirely mainly they consisted may Or it impeachment. for impressions mental Attorney's State’s of the assistant it from disclosure. Or privileged which would be opinions, contra flatly prior contained statements may they be that more one or testimony trial on Leatherman’s dicting motive revealing unsuspected an points, possibly or did, varying such giving as he or testifying Leatherman’s testimony. discredited greatly would have accounts as for cross-exami opportunities cannot tell what simply We the nondisclosure nation, denied Szabo any, if were either say we cannot Consequently, the notes. error, any er or prejudicial nondisclosure resulted doubt. a reasonable beyond was harmless ror that occurred of the de the contents depends upon As the determination is to va notes, course appropriate we stroyed believe the circuit the cause to and remand cate the convictions to recon directing the State of an order entry court for pretrial of Leatherman’s memoranda the written struct for an them to the court statements, and to deliver camera the notes the court finds the event inspection. statements, discoverable, substantially verbatim to contain
Notes
notes and this court’s mandate: “The Court mandate also directed that [the
notes attorney verbatim substantially of the attorney. theories or conclusions” tain the opinions, distinguish reason to There is no Ill. 2d R. (73 412(j).) discover from those held case at bar notes in the able in Bassett. trial court however, mean, This does erred reinstating convictions. Violation of
notes and decided contained no im question that they notes, material. peaching Defendant has now seen the can point them which would nothing impeach Further, testimony. Leatherman’s this court has also ex notes, amined the and we with the trial agree court’s findings. argues, however, Defendant that this court’s mandate in the first Szabo Ill. opinion (94 327, 2d 350) required a new trial merely that the upon finding notes contained material, regardless discoverable of lack of any prejudice. However, at the time of the first opinion Szabo this court did not have the benefit of notes, examining thus could not on their contents. An speculate examination of that earlier reveals that the court was indeed con cerned with the that the notes possibility contained noth of ing any (See value the defense. 94 Ill. 2d 349- At 50.) juncture, having examined the notes and finding that defendant was not prejudiced by their nondis closure, we see no reason to a new trial. Defend grant ant’s conviction is therefore affirmed. Defendant also raises several his issues sec regarding ond sentencing hearing. However, he filed no post-trial hearing, motion after this and therefore State argues that any sentencing issues are waived. We agree. case capital the jury’s determination whether the death penalty will be invoked is of the “trial.” part Failure to raise trial motion, errors as sec post-trial required by tion 116—1 of the of Code Criminal Procedure (Ill. Rev. 1), Stat. ch. waives those er par. 116— 128, 148; rors. v. 111 Ill. (People Wright (1985), People v. (1978), 73 Ill. 2d An Precup 7, 16.) to this exception 2d R. 87 Ill. (See error” is committed. rule is when “plain limited ex is “a narrow and error, however, Plain 615(a).) Pastorino (People rule” waiver ception general when 178, 188), only to be invoked (1982), 91 Ill. 2d as to deprive error is “so substantial alleged Pastorino (People a fair trial” 189). transcripts first issue involves sentencing Defendant’s at second introduced which were testimony of prior State, objec- over defendant’s sentencing hearing. the testi- transcripts to introduce tions, was allowed at defendant’s had testified of five witnesses who mony the wit- At first hearing hearing. first However, to cross-examination. nesses had subject been no at- made the State the second sentencing