People v. Szabo

(No. 52626. ILLINOIS, Appellee, THE STATE OF

THE PEOPLE OF SZABO, L. Appellant. v. JOHN 24, 1983.—Rehearing January Opinion filed April denied 1983.

SIMON, J., specially concurring. RYAN, C.J., UNDERWOOD, and WARD JJ., concurring

in part dissenting part. Defender,

Robert and Verlin R.F. Agostinelli, Deputy Heinz, Defender, Ottawa, Assistant of and Charles M. Schiedel, Defender, Assistant all of Appellate Springfield, of Defender, the Office of the Appellate State for appel- lant. C. Fahner and Neil F.

Tyrone Hartigan, Attorneys General, of L. A. Springfield (Herbert Caplan, Melbourne Noel, Jr., Panethiere, Weinstein, Michael B. and Darrell General, Nelson, Attorneys Assistant and Scott of Chi- for the counsel), People. cago, court: the opinion delivered JUSTICE CLARK defendant, Szabo, indicted a Will John murder two counts of intentional County grand jury 38, and two 1979, 1(a)(1)), ch. (Ill. par. Rev. Stat. 9— 38, ch. par. Stat. (Ill. murder Rev. felony counts commit well as one count 1(a)(3)), conspiracy as 9— 2(a), ch. pars. Rev. Stat. (Ill. armed robbery 8— 16-24, 1979, in trial on Following July a bench 2(a)). 18 — on guilty he was found circuit court of County, Will a to deter hearing The State then requested all counts. (Ill. imposed should the death be penalty mine whether The defendant 1(d)). par. Stat. ch. Rev. 9— hear the sentencing jury impaneled to have a chose was hearing of the defendant the conclusion At ing. im court also the murders. The to death for sentenced for conspir sentence imprisonment a posed three-year sentence di the convictions and Szabo both appeals acy. VI, 4(b), to article section pursuant to this court rectly R. (73 Rule 603 Ill. the 1970 Illinois Constitution stayed appeal. The were pending sentences 603). 27, 1979, the January hours of morning In the early of John and his brother Chris- Rajca, age bodies 17, were discovered on a farm topher (Chris) Rajca, age near close to the entrance to the road Naperville, Avery Gravel Pit. The cause of John death was deter- Rajca’s chest; mined to a bullet to the had Rajca be wound Chris died of A 1974 multiple Vega stab wounds. station wagon, car, identified as the was Rajca family parked near the entrance to the There was a bullet gravel pit. hole through left front seat of the and there Vega, were on the front seat. powder right burns Will County searched the scene and recovered a investigators spent from a projectile .38-caliber revolver from the ground near the Vega, and black and red ski from inside glove later found on the Vega. Vega’s were keys at ground some distance from the where the car spot had been parked.

The State’s principal witness at trial was Robert Leatherman, alleged Szabo’s the crimes. accomplice Leatherman testified to an pursuant agreement with the State. According Leatherman, to the agreement, who committed, when the offenses were would admit to the two murders as a commit- juvenile would be ted the Juvenile Division of Cor- Department rections until he reached 21. Since the only issue Szabo raises with to the regard his conviction con- validity cerns his asserted to conduct effective cross-ex- inability Leatherman, amination of due to the trial court’s refusal to order of certain discovery statements made pretrial Leatherman to an assistant State’s will Attorney, to recount necessary Leatherman’s in some testimony detail.

TESTIMONY OF ROBERT LEATHERMAN Leatherman, who was from school expelled high before his lived with his completing sophomore year, parents and worked as a laborer with a Bolingbrook intermittently 336 admitted sites. Leatherman crew on construction

cleanup time for some illegal drugs user of various regular a being He also ad- with John Szabo. he became acquainted before month per- a three to four During dealing drugs. mitted LSD to John 1979, Leatherman sold to prior January iod Bolingbrook he knew from whom Christopher Rajca, occasions. On cross-exam- school, on some 12 separate high arrested, together admitted to ination, being Leatherman of one Davis. Szabo, Jimmy for the armed robbery with met in Decem- testified that he first Szabo Leatherman to Szabo Nick Leatherman was introduced ber 1978. in Lemont with an apartment who shared Hartley, 1979, Leatherman During January Leatherman’s brother. Szabo, getting of time with frequently deal spent good from got drugs Gremlin. He also rides in Szabo’s white Szabo. murders, Leather- one week before

Approximately testified, (phencyclidine) he a sale PCP arranged man Szabo for Szabo. Leatherman Rajca accompanied John John house where the sale was consummated. the Rajca’s mari- an interest in buying at that time Rajca expressed Leatherman communicated to Szabo. which juana, four to five testified that some Leatherman further to a house murders, he rode with Szabo before days revolver Romeoville, a bluish-black where Szabo obtained “Earl.” Several from a named person with a short barrel of a tele- Szabo’s end later, Leatherman overheard days “Earl” during conversation between Szabo phone Later that same day mentioned ammunition. which Szabo bullets, inserted which he Leatherman saw Szabo with two into the revolver. 26, 1979, at Leatherman, ap- on January

According and Szabo Leatherman, girlfriend, his p.m., proximately followed by were They to Nick Hartley’s apartment. drove interested in were three blacks who containing another car Leatherman At Hartley’s apartment, marijuana. buying to the drugs heard and Szabo discuss black Hartley selling men, who were outside. In to waiting Hartley’s response blacks, concern dealing about with Szabo expressed pulled from the of around, a front his and waved it gun pants that he care of saying niggers.” “could take them 26th, Later in the afternoon of the Leatherman re- a girlfriend ceived call from his friend of about a hers who wanted to buy 10 Leatherman testi- pounds marijuana. that he fied discussed this deal with Szabo potential and had several telephone conversations with the would-be Szabo, Tom “Lou,” Carlson. himself as buyer, identifying also with from spoke Carlson a at a pay phone Romeoville station to the deal gas and Carlson arrange give directions to a meeting place. According Leatherman, to Szabo said he had not contacted the whom he person from could sell, obtain but told marijuana Leatherman that the of them two could Carlson his up hold and take money.

Szabo then took two bullets from the revolver he was carrying, took a pair pliers from the Gremlin’s glove compartment, and squeezed tips bullets with them.

The transaction Carlson arranged with was for 4 p.m. at the Pit. Avery Gravel Leatherman testified that he and Szabo drove half-hour, there and waited for a but Carlson not did and áppear. Szabo Leatherman then returned to home Romeoville, Szabo’s where Leatherman phoned It Carlson. appeared Carlson had misunderstood Sza- bo’s directions and had waited for him at another location. was meeting rescheduled for 8:30 According to p.m. Leatherman, leaving before for this meeting, second Szabo a brought large kitchen knife from in his upstairs house. He covered the knife handle and the handle the revolver with black electrical and the knife to Leather- tape gave man, who it in his belt. put As were they driving, Szabo told Leatherman knife, that Leatherman hold the should Szabo would get hold the and would their gun they money.

The parties time, made connections this but neither deal nor the went planned robbery through. On at arriving Gravel Pit at Avery p.m., about Leatherman realized that the person Dixon, Tom accompanying Carlson was Pete friend Leatherman’s parents. Leatherman told Szabo that since he knew Dixon could not with they go through plan. Szabo Leatherman then told Carlson that the deal off for that night, but that they might go through with it the following day.

On leaving gravel pit meeting after with Dixon, Carlson Leatherman testified he and re- Szabo house, turned to Szabo’s arriving about 9:30 Szabo p.m. if asked Leatherman he knew else who wanted anyone In buy marijuana. response Leatherman’s suggestion that he also, would know these Szabo said that people they them could do in and thus avoid the problem. Leatherman then called Christopher Rajca. calls,

After several phone agreed Rajca was the brothers would three for buy pounds marijuana $700. Szabo the gave Christopher Rajca directions to Avery Pit Gravel where were to meet at 12:15 a.m. they Before out for their with the setting meeting Rajca brothers, and Leatherman drove to Brainerd’s Szabo David Romeoville, house in where with Brainerd Szabo conversed then re- about minutes. Szabo and Leatherman cocaine, turned to Szabo’s house. Both used this the being third or fourth time Leatherman had used drugs day. took a the it under Szabo coil of from and rope garage put the seat of the Gremlin. passenger Leatherman, left for the

According he and Szabo car- rendezvous with the at about 11:45 Szabo Rajcas p.m., the knife. the revolver and Leatherman rying carrying a fur Leatherman was a brown suede with wearing jacket a fur Szabo was a blue denim with lining; wearing jacket Leatherman, En route the told lining. gravel Szabo pit, I’ll I’ll them in. “Just hold the knife. hold the do gun and then two bullets I wrong, only got goes If anything them.” stab you at the for them waiting the Rajcas found

The two men four young testified that the Leatherman gravel pit. to the car. Rajcas’ then went their cars but met outside Chris; driver, the sat in the back seat behind Szabo the After asked about John. Szabo Leatherman sat behind loose and Chris showed them some bills John money, Rajca the of getting the pretense showed his billfold. On Rajca car, took a blan- Leatherman went to the Szabo marijuana, the Vega. the seat and carried it to ket from back car, his seat in the Leatherman had resumed When his Leatherman gun. announced a stickup pulled Szabo the driv- through then fired a shot his knife. Szabo pulled not to Rajca begged ers seat at Chris At this John Rajca. into the seat. and threw the loose back money be killed fired one shot at John then leaned over the seat and Szabo door of the car. who Rajca, slumped against half-open then got all the way open, Leatherman door pushed the car. out and John from dragged Rajca away had also Rajca gotten In the meantime Szabo and Chris in with of the car. Szabo told Leatherman to do Chris out refused, grabbed the knife. Leatherman Szabo When at Chris and lunged knife from Leatherman’s hand. He backing away him several times. As Chris was stabbed out Szabo, get keys from Szabo told Leatherman the blanket retrieving also complied, Leatherman Vega. away he threw the money; Vega’s keys and some Szabo, Meanwhile, holding the gravel the direction of pit. car. towards Szabo’s knife, Rajca Chris pursuing him the shoul- intercepted Rajca, grabbing Leatherman Chris him face Szabo stabbed turning ders and Szabo. him, in the and, as Leatherman released in the chest again leaned and over to the Gremlin Rajca staggered back. from the car and him pushed away it. Leatherman against he collapsed. of the road where the middle towards 340

Szabo and Leatherman then away drove Szabo’s car. At direction, Szabo’s Leatherman threw gun the knife and out of the car window. The two drove to house Szabo’s parked the car in the yard. Using napkins, Szabo wiped some bloodstains from the car’s exterior. Leather- man a blanket; noticed ski glove black-and-red inside had not been there originally. disposed glove Szabo and the napkins in the garbage can.

On entering house, Leatherman and Szabo noticed on bloodstains their coats and Levi’s. Leatherman tried to remove the blood from jacket, his first it and by singeing then by Crisco oil. He applying removed the cash from his Leatherman then used pockets. some which cocaine Szabo him and gave went Awaking a.m., at about 8:30 sleep. Leatherman called his parents for a ride home. His father him a picked up little after 9 a.m. Leatherman returned to Szabo’s house around noon on January a ride getting with Bob a Phillips, pick up concert he left ticket had there the night. previous

ADDITIONAL EVIDENCE The State presented additional witnesses testimony evidence physical which was consistent with Leather man’s account of events to and leading up following murders. Leatherman’s concerning the mari testimony deal with the three juana blacks and Szabo’s a brandishing was gun corroborated Nick Hartley. Hartley thought .38-caliber, a metal, gun blue snub-nosed re volver. recalled that the incidents Jan Hartley occurred on uary because it was the he rock day before went to a concert using ticket he from Tom purchased Leatherman. Carlson’s testimony corroborated Leatherman’s account marijuana transaction with Leatherman and attempted Szabo. The of Leatherman’s corrobo testimony parents rated his to his asked testimony regard having permis house, sion to spend night at Szabo’s January on the him there up picking to his father’s and in regard 27. January morning ex- Hunton, firearms a Robert

Tests were performed Services, on a bullet of Scientific the Bureau from pert pro- on the spent and Rajca of John body from taken both opinion, In Hunton’s gravel pit. found at the jectile fired had which been projectiles were .38-caliber bullets that tool marks also bore One bullet gun. from the same barrel, in the but gun the rifling caused by had not been a pair pliers. caused by could have been forensic pa a Shalgos, of Dr. Edward The testimony of John on bodies autopsies performed who thologist have deaths could their indicated Rajca, and Chris The Leatherman. manner described caused in the been entered John bullet, which of the angle penetration led Dr. left nipple, above the at a point just chest Rajca’s down pointing that the had been gun to conclude Shalgos of Chris examination Dr. Shalgos’ from above. ward a to had sustained that Chris Rajca revealed Rajca’s body so- Some were or wounds. stabbing cutting tal of eight The wounds wounds. “warding or off” called “defense” death Rajca’s caused Chris which, in Dr. Shalgos’ opinion, that sev chest right to the a wound deep penetrating were a sec channels; and vessels and bronchial major ered blood left chest of the wound to the back ond penetrating bleeding. severe causing also organs, sliced several through wounds, Dr. and width depth Judging by single-edged, was a the weapon estimates Shalgos a maxi 10 inches and with long knife about sharp-pointed that a per testified Shalgos of 1½ inches. Dr. mum width would be able of wounds son these sustaining types collapsing dying. 100 feet before walk 50 or on blood stains performed were Serological analyses and Szabo’s suede jacket on Leatherman’s brown found from a recovered were jacket. jackets denim blue aof the execution during house closet in John Szabo’s Tahir, on 1979. Muhammid February search warrant Services, with the of Scientific forensic scientist Bureau on the with jackets samples the blood stains compared from Rajca of John and Chris drawn from bodies ABO-Rh- Using and John Robert Leatherman Szabo. type Tahir found the blood on both coats system, MN A-Rh This was similar to blood positive-MN. type blood to the of John and Chris but dissimilar blood Rajca, John or Robert Leatherman. Szabo Raxall, the Re- Serological

Brian executive director of California, examined the blood search Institute also stains, of certain using enzymes electrophoresis analysis method, according found in The and human blood. proteins Raxall, discriminating antigen to is more than ABO-Rh-MN of dif- is, it distinguishes greater that a number analysis, The of individuals. types ferences between blood him that the blood results of Raxall’s tests led to conclude on was that of Chris Rajca. both jackets on

The by white Gremlin driven Szabo impounded A rope pas- 1979. coil of was found under February a cut the passen- seat. There was also senger V-shaped testi- tended confirm Leatherman’s earlier seat; this to ger .a hole knife had had made that he been mony carrying that A County investigator in the car seat. Will testified for a was generally dirty, except the Gremlin’s exterior car, that on at the left rear of the mark” “swipe body if it. investigator looked as someone had tried clean a red substance on rear also observed spots car. al- trial, at an

Szabo, testify presented who did not mother, Mrs. Szabo through defense his Violet Szabo. ibi Leather- testified John left home with Robert Szabo 26; p.m. man at 11:30 on January approximately he midnight; after and shortly Szabo returned alone morning. did not leave the until the next again house ISSUES PERTAINING TO DEFENDANT’S CONVICTIONS to the Szabo’s sole error with assignment respect of oral of summaries of disclosure the denial trial concerns to an assist- Leatherman trial made before statements that the State 412(a) Rule provides Attorney. ant State’s motion, the counsel, written upon to defense shall disclose control: its or material within following possession of persons addresses and known “(i) the names last witnesses, together intends to call as the State whom statements, mem or recorded relevant written with their their reports of substantially verbatim containing oranda or reporting statements, of memoranda and list oral motion Upon written summarizing their oral statements. summarizing or reporting defense counsel memoranda in camera be examined court oral statements shall of oral substantially reports if and found be verbatim Ill. counsel.” 73 shall disclosed defense statements 412(a)(i). R. statements, which were gave Leatherman two written made to counsel. was a statement to defense One provided February Jencon on Investigator Lynn Will County arrested, and were 1979, the Leatherman Szabo date The other was a state- Jencon. Investigator recorded by on March to a polygraph operator ment made however, addition, the record shows between 1979. In con- Attorney 1979 an assistant State’s February July 30 interviews, totaling 20 approximately ducted some made prosecutor Leatherman. The hours, with Robert Leatherman, but of his conversations with notes” “rough outline of an eight-page them after destroyed preparing trial. at When defense expected testimony Leatherman’s of moved disclosure day orally on the of trial for counsel oral state- Leatherman’s summarizing memoranda any the interviews, took Attorney the State’s ments these and that product were work rough requirement counsel. This additional serves two defense First, responsibility it ensures that the purposes. final what court. determining producible is rests with the Sec ond, record, as a matter of the contents of establishes reports the file with to state respect State’s witness thereby ments of con appellate and facilitates review questions discovery tested under this subsection.” Stat., 110A, added.) 412, (Emphasis par. Ill. Ann. ch. Comments, (Smith-Hurd 1976). Committee at 679-80 289-92, In Bassett 56 Ill. v. 2d this People (1974), court summarized the law to the re respect with disclosure quired of the State criminal cases. Bassett approved taken decisions of v. approach Sum previous People ner 43 Ill. 2d v. 19 Ill. (1960), and Wolff 2d that, 318. These decisions make clear once the defend ant has specific made a demand for a of a state report ment, and has made a preliminary showing, way foundation, of statement’s pertinence to the witness’ trial the court is order the testimony, to statement to be delivered to the directly defendant for his inspection possible impeachment. use in The court is not consider whether the statements would in fact useful for prior be impeachment; only should defense permitted make that determination. (Jencks United States 657, 667-69, 353 U.S. 1103, 1111-13, 1 L. 77 S. Ed. Ct. disclosure, When the 1012-14.) State resists asserting that the or irrelevant, statement thereof portion is or contains material, or is not privileged substantially verba tim, the court must examine the statement in camera and determine whether it is or not is if properly producible; matter; excise irrelevant necessary or turn privileged over to the defendant statement portion whatever can be said to be the own fairly witness’ words. therefore, entitled to

Clearly, Szabo was have assist- ant State’s notes of his interviews with Attorney’s Leatherman for in the cir- produced inspection by camera cuit court, and of any disclosure sub- unprivileged, statements contained for stantially they possible verbatim use in assistant’s impeaching Leatherman’s testimony.

346

action in the destroying deprived Szabo possessed the mental state for a convic- necessary tion of intentional murder. Effective cross-examination of Leatherman was thus crucial to Szabo’s defense. Depend- ing on the contents of Leatherman’s pretrial statements, it is quite conceivable their use in cross-examination would have produced a different picture Szabo’s culpa- bility.

The State’s argument that the defendant’s at testimony the sentencing hearing can somehow be used retrospec- tively whether determining the defendant possessed mental requisite state for his necessary conviction at the trial for the murder of John is Rajca misplaced. While is true that Szabo ultimately confessed to the murder of John at the Rajca sentencing hearing, defendant made no such incriminating statement during course of his trial. Szabo did not take the stand during the trial.

At the sentencing hearing Szabo testified that it was Leatherman who stabbed Chris to death. The Rajca testi- mony Leatherman an paints different entirely picture portraying Szabo as the murderer of both Chris and John Rajca.

The appellate court has faced the same difficulty confronts us here in several pertinent decisions in which a defendant claimed he was denied a fair trial the State’s

failure to with the comply disclosure requirements of Rule 412, due to its intentional failure to preserve pretrial state ments of witnesses. v. (People Abbott (1977), 55 Ill. App. 21;

3d People v. (1975), 30 Ill. App. 935; 3d Peo DeStefano v. ple (1974), 19 Ill. Manley 3d App. 365.) These cases in volved the deliberate failure of the State to reduce a wit ness’ statement as writing, to the opposed intentional destruction of a statement after it has been down, written but we think the same principles apply both situations. The thrust of the appellate that, court’s is holdings while rules do not discovery require State to reduce all its witnesses’ statements to when writing, the failure to preserve statement in written form amounts to an inten tional tactic to prevent disclosure of relevant material to the defendant, it will not be condoned. v. (People Abbott 55 Ill. 21, 25; 3d App. v. People Manley (1974), Ill. App. 370.) agreeWe with this view.

In 30 Ill. App. 3d DeStefano key prosecution witness, an alleged accomplice who was granted in return immunity for his was inter testimony, viewed at least five times before the trial by representa tives of the State. At a post-trial hearing, the State’s At torney admitted that he had ordered that no memoranda or memorialization of any witness’ statements were to be made. The appellate court reversed defendant’s mur der conviction, finding that the State’s deliberate failure to take written statements was for the of purpose defeating defendant’s of right and the use of such discovery discov to test ery trial, the witness’ at and under the credibility circumstances denied defendant due of law. 30 Ill. process 943. App.

People v. involved a Manley contempt proceeding against a State’s for refusal to Attorney comply with an order that oral, certain pretrial statements of witnesses in case be felony reduced to and made writing available discovery by defendant. The record made clear that it was a of the State’s practice office not to Attorney’s re- duce substantially reports verbatim oral statements to memoranda in order to the defense surprise at trial. In ap- the circuit proving court’s order insofar discovery as it re- the reduction quired of a writing statement —a specific witness’ account of an defendant, admission by which the State had it indicated intended to use at trial—the ap- pellate court said: view,

“In our neither the defense nor the prosecution should be allowed to avoid discovery by rules a studied practice failing to reduce otherwise infor discoverable mation to writing. When trial court determines within its discretion that the reason for the failure to re duce such a statement to writing is to avoid discovery, it may properly order that the statement be reduced to However, writing. absence the known presence of statements, discoverable neither the State nor the de fense should bear the reducing unreasonable burden of all of its investigative information to writing. The applica tion of the discovery rules as a whole and the solutions available, including the preclusion of evidence wrongfully withheld, will sufficiently insure a fair trial.” Manley (1974), 19 Ill. App. 3d 370.

In the case at bar it is dis- undisputed potentially coverable memoranda of pretrial statements the State’s witness key did exist and were deliberately destroyed by the State. unable, We are on us, the record before to deter- mine whether defendant was prejudiced by the nondisclo- sure of the interview notes. It may be contained they summaries of pretrial statements Leatherman that were consistent entirely with his trial no testimony value for impeachment. Or it may be that consisted they mainly of the assistant State’s mental Attorney’s impressions and which opinions, would be from disclosure. privileged Or be that may they contained prior statements contra- flatly dicting Leatherman’s trial on one or more testimony or points, possibly an revealing motive for unsuspected Leatherman’s did, as he testifying or giving such varying discredited his testimony.

accounts as would have greatly for cross-exami- cannot tell what opportunities We simply of nation, if the nondisclosure were denied Szabo any, the non- we either that say the notes. cannot Consequently, error, error any resulted or prejudicial disclosure As harmless a reasonable doubt. beyond that occurred was of the de- the contents depends upon the determination notes, course is to va- we believe the stroyed appropriate to the circuit remand the cause cate the convictions and to recon- an order the State entry directing court of pretrial the written memoranda Leatherman’s struct for an statements, and to deliver them to court the notes camera In the the court finds event inspection. statements, discoverable, verbatim substantially contain a new them to defense counsel and order should deliver not to In the event the reconstructed notes are found trial. of Leatherman’s substantially reports contain verbatim statements, is to rein- the circuit court directed pretrial convictions, to our be- subject defendant’s discussion state convictions. superfluous of defendant’s murder low four counts the indictment with charged by Szabo was one count of murder —one count of intentional murder and of each victim. killing murder with felony respect him trial, At the circuit court found the conclusion all four. on entered on judgment all four counts and guilty he two killings, contends that since there were only Szabo rule murders, under the only could be convicted of two for more than one offense cannot that convictions v. King (People carved from the same act. physical Donaldson 91 Ill. 2d 566; 66 Ill. concedes, entry and we 170.) agree, State Therefore, on all four was erroneous. convictions judgment defendant’s convictions should the circuit court reinstate remand, for murder should be only after two convictions reinstated. THE HEARING

ISSUES PERTAINING TO SENTENCING regard raises with address issues defendant We the of possibility the sentencing hearing because con- court, remand, after reinstate defendant’s may circuit re- hearing find at the sentencing victions. that errors We that the sentence of death be vacated. quire constitu raises to the relating first issues Szabo several pre statute that have been of death tionality penalty the ar cases. include to this court in These previous sented in the vested the statute gument by discretion in results sentencing hearing to a death prosecutor request penalty and of the death capricious imposition the arbitrary 508, Brownell 79 Ill. 2d cert. dismissed (1980), v. (People 59; Peo 811, 14, S. Ct. 449 U.S. 66 L. Ed. 101 (1980), 531, 77 cert. de rel. Cousins Ill. 2d ple Carey (1979), ex 788, 100 S. Ct 445 U.S. 63 L. Ed. 2d (1980), nied not ade argument provide that the statute does 1603); review v. Brownell quate procedures (People appellate Ill. 2d that the statute , 508); argument 79 and (1980) the offender not consideration as whether require does restored useful v. Gaines citizenship (People can be , already 88 Ill. 2d As these issues have been (1981) 342). discus court, this further by considered decided fully here. sion of them is unnecessary THE OF DEATH SENTENCE DISPROPORTIONALITY the death cannot be next contends that penalty Szabo dispropor on him it is an excessive and because imposed accomplice, in the fact that his tionate penalty light Leatherman, imprison a sentence four years’ received ment. Szabo relies on v. Gleckler primarily 145, in the sentence 82 Ill. 2d which this court vacated In and remanded a lesser imposition penalty. death for found to Gleckler, codefendant, Parsons, whom the court murder, had tried sepa in a double been ringleader The court ex life imprisonment. and sentenced rately more cul that Gleckler was the contention rejected pressly found, also 145, 166), Ill. 2d (82 than Parsons pable men, both in mitigation presented view of evidence were not de that Gleckler’s rehabilitation prospects 171.) Ill. 2d (82 than Parsons’ monstrably poorer to the issue proportionality court found relevant Parsons, a codefendant sentence that of Gleckler’s death poten less rehabilitative more and with arguably culpable Gleckler, (82 not received the death penalty tial than had to the found to be relevant Ill. 2d It was also 167). in Gleck of the sentence of the appropriateness question in a of the defendant ler’s case that the death sentence v. Walcher Ill. 2d 159), (People case previous similar to the the court found to be whose circumstances this court Gleckler’s, had vacated circumstances been v. Gleckler People as severe and inappropriate. unduly 145, 169-70. 82 Ill. 2d (1980), death imposition

In whether determining case, are not required in a we particular is penalty proper States Court Supreme the decisions of the United only by circum to consider the also the Illinois Constitution but the character of the defendant. stances of the offense and that all 1970, I, penalties art. sec. 11 (providing Const. (Ill. of to the seriousness according shall determined both be the offender restoring with the of objective the offense and v. 82 Ill. 2d Gleckler citizenship); People (1980), useful of A does not offend 145, 162.) requirement sentence the seriousness if it is commensurate with proportionality the reha consideration to and gives adequate of the crime v. Carlson (People of the defendant. bilitative potential 88 Ill. v. Gaines 564, 587; (1981), 79 Ill. 2d (1980), has a however, duty this court addition, In 342, 380-82.) 2d are ra is imposed the cases in which death to ensure that im is not in which from those distinguished tionally Ra- 145, 166.) Ill. v. Gleckler 82 2d posed. (People 353 consistency, tionality, imposition evenhandedness in the of the death are penalty constitutionally indispensable. Peo 508, 543; v. Brownell Ill. ple (1980), 79 Jurek v. Texas 262, 929, 428 U.S. 276, 941, L. Ed. 2d S. 96 Ct. 2950, 2958.

We conclude the sentence of death on imposed Szabo cannot be deemed or excessive disproportionate solely because Leatherman received a lesser sentence. Szabo and Leatherman were not situated. As a similarly matter, statutory age precluded Leatherman’s the imposi tion of the death of penalty regardless the circumstances. 1979, (Ill. Rev. Stat. ch. par. 1(b) (providing 9— defendant who at the time of the commission of the of fense has attained the of 18 or more age may be sentenced if to death an enumerated aggravating factor is found to exist.) Moreover, the evidence showed that Szabo had the role leading in the planning and of execution the crimes. degree Szabo and Leatherman culpability not the same. hold Consequently, we the fact that Leatherman did not receive the death for his penalty part in the murders is not a bar to the imposition the death penalty on Szabo.

EXCLUSIONOF ATTHE JURORS SENTENCINGHEARING Szabo contends that two prospective jurors were im from properly excused venire violation of Wither spoon Illinois (1968), 391 U.S. 20 L. Ed. 2d S. Ct. 1770. The United States Court in Supreme Wither spoon said: juror prospective expected say cannot ad-

“[A] vance trial whether he would in vote fact ex- treme in the penalty case before him. The most that can be of a regard demanded venireman in this is that he be willing of by to consider all the state penalties provided law, committed, and that he not irrevocably be before the begun, trial has to the against penalty vote of death re- gardless might and circumstances that facts 354 in the If proceedings. the course of the voir dire

emerge that testimony given in a case indicates veniremen were this, any on basis than death sen- excluded broader statutory if applicable tence be carried out even cannot to jurisdiction appear or case in the relevant would law *** ground a support narrower exclusion. only however, today we repeat, nothing say We bears power of a State to execute a defendant sen upon jury only to a from which the veniremen tenced death in those who were fact excluded for cause were who (1) they made automati unmistakably clear would cally against imposition capital punishment vote any regard might developed without to evidence that them, that their atti (2) at the trial of the case before or prevent them from penalty tude the death would toward guilt.” making impartial an decision as the defendant’s 510, n.21, 522-23 20 L. (Emphasis original.) in 391 U.S. 776, n.21, 1770, 1777 n.21. Ed. 2d 785 88 S. Ct. veniremen in Peo In the exclusion of several addressing 342, said, do not 88 Ill. 2d we ple Gaines “[W]e re catechism, a or as Witherspoon as set prescribing read himself meticulous express a venireman with quiring 342, the need 356.) recognized 2d We (88 Ill. preciseness.” in of the veniremen not isola to “consider the responses Ill. the issue (88 357.) a Since tion but as whole.” court, the is determined the trial only had been guilt in case at bar was prospective jurors sue before Both State whether to death impose penalty. situation veniremen can be such a agree defendant when Witherspoon only with compliance excluded automatically would vote state that jurors they prospective to the evidence regard without against penalty the death 391 v. Illinois (1968), in the case. Witherspoon produced n.21, S. L. 88 n.21, Ed. 2d U.S. 522-23 1770, 1777 Ct. n.21. of defense counsel that the failure

The State contends constitutes juror exclusion either to the object however, that held, on We have of the claim appeal. waiver we will consider errors not preserved review properly v. (People Howell where the is evidence balanced closely v. Pickett 117, 121; 60 Ill. 2d 54 Ill. (1975), (1973), if 283), or the error is of such a that magnitude the accused is denied a fair and (People trial impartial Manzella 56 Ill. 2d We that the 195). believe above traditional error rule is plain to a equally applicable hearing the death and we do sentencing involving penalty, not argument consider waived improper-exclusion be here. See Peo the lack contemporaneous objection ple v. Brownell 79 Ill. 2d 542. that jurors two the defendant asserts prospective

were excluded were veniremen the names of improperly Mrs. Amanda Ivezich and Mrs. Dolores turn Rogers. We first to the voir dire examination of Mrs. Ivezich.

After some the court asked Mrs. preliminary questions Ivezich her about toward feelings capital punishment:

“Q. Now, your [sic], Ivezich, Understand Mrs. that if you are one of you may these twelve people, ultimately be the one who would to say you be last one vote impose Szabo, penalty death on Mr. the defendant here. youDo understand that? Yes, sir,

A. I do. Q. that, If it came to you could do that or do you have some you reservations or could never impose vote to penalty circumstances, death under any whatsoever? right now, well, A. That if I you know—if that — case, would right, know the I could. Q. You could.

A. Yes.

Q. is question. you This If after hear everything and you done, are that it convinced should be and could you say say you so and would name put your on a verdict or say put a decision that would this man to death?

A. Give a minute to It hard think. would be a deci- sion. I think I’m too soft-hearted for that.

Q. right it, You couldn’t do it if it came you down it, couldn’t is you saying, do that what are because this is what the people going twelve are to have to do.

IA. understand. I understand.

Q. if you And are on this jury, you’d one of be you twelve and may very last one whose vote would decide that. youDo understand that? you that,

Could then you do if felt right to do you so or are thinking that under no conditions could you anybody’s life, take no matter how the evi- was, dence how it may bad be or anything else? That you could no under conditions put vote to somebody to death?

A. I would rather not. I would rather not.

Q. You have some doubts about whether you could do it, is that what you saying? are Right.

A. I do. THE COURT: All right. Thank you, Mrs. Ivezich. I will excuse you for cause. you very Thank much.” Mrs. Ivezich indicated that she had some doubts about whether she would vote sentence a person to death. In- stead of excusing Mrs. Ivezich for cause at that as point the trial did, court another question should have been posed. The trial court should have then asked the prospec- tive if juror that meant that those doubts would a prevent vote for the death no matter penalty what the evidence showed. do not Expressions doubt amount to excusal for cause. For a venireman to express about qualms imposing is, the death not penalty unexpected. Witherspoon requires that the venireman make it clear that he or unmistakably she not could impose death penalty regardless of the evidence presented. Mrs. Ivezich’s response that she would rather not vote to put to death is not the kind of somebody unequivocal answer that is a grounds needed as for excusal for cause under Witherspoon.

As the United States Court Supreme out in pointed a man or woman Witherspoon, who expresses serious res- ervations about voting the death impose is as penalty the oath he or capable obeying she takes as a as juror one who favors the death In penalty. rejecting argu- ment that those who have doubts could not be relied upon

357 instructions of the trial if the State and to vote for it even court the death said: called for judge penalty, all about the wisdom “Culled of who harbor doubts to pro all who be reluctant capital punishment would —of jury speak only extreme can penalty nounce the —such v. Il dwindling minority.” Witherspoon for a distinct 776, 784, 510, 520, L. (1968), 391 U.S. 20 Ed. linois 1770, 1776. 88 S. Ct. in we Ivezich, (where

Mrs. unlike the venireman Gaines of four challenge prospective to the exclusion rejected clear indication that she could jurors), expressed any never not consider the death To the penalty. contrary, only that she could the death impose unequivocal response The more tentative answers that followed which penalty. not Mrs. Ivezich reservations should have expressed pre- her from as a not serving cluded Mrs. Ivezich was juror. *** to against shown to be committed vote “irrevocably of death of the facts and circum- penalty regardless stances that the course of the might emerge proceed- v. Illinois 391 522-23 ings.” (Witherspoon U.S. n.21, n.21, 20 L. Ed. 2d 88 S. Ct.

n.21.) She was excused. improperly

In view of our conclusion the exclusion of regarding Mrs. Ivezich, Mrs. it is not to resolve whether necessary excused. It is clear that the im- Rogers improperly of even single exclusion venireman proper requires vacation of a death returned a chosen penalty jury. (Davis 429 U.S. 50 L. Ed. Georgia (1976), alone the 97 S. Ct. of 399.) Witherspoon On basis death must be vacated. penalty

THE THE PROSECUTOR’S COMMENTS ON DEFENDANT’S

POST-ARREST SILENCE ef- Szabo took the stand at the in an sentencing hearing In re- fort to show that circumstances existed. mitigating 26 to lating January his version of course events on 27, 1979, Szabo admitted that he had shot John but Rajca, account of what from Leatherman’s differed testimony

his the planning, Leatherman did He asserted that happened. him the and that gun, and handed the stickup, announced to death. Rajca Chris who stabbed it was Leatherman about questions counsel’s on to answer defense Szabo went he felt what did: how he now about did, John? you feel what “Q. you How do about Bad. A. it, John?

Q. feel about badly you How do me in- it. It bothers thinking about stop A. Can’t side.” of John Szabo testimony this

The State contends remorse about his participation feelings his expressing the following invited of the brothers Rajca in the murders Attorney: the State’s cross-examination did not extend feeling are bad “Q. you you So —that your police to tell the about you wanted point to the incident, is that correct? in this participation pigeon. I’m not a stool way. A. Put it this pigeon? Q. You are not a stool A. No. (the police) about how bad

Q. tell them You didn’t killed, you? being did Rajca felt about brothers you A. No. Robert Leatherman’s

Q. didn’t tell them was You kill and start and start to rob idea to start to shoot them? No, sir.

A. idea, is that cor- his Q. say that it was you But now rect? Yes,

A. sir. to were have testified Q. you All these details incident, after the mind one week fairly your fresh in they? weren’t Yes, sir.

A. it, you? did them Q. to tell about Younever bothered No.” A. in an effort silence to use Szabo’s attempted

The State and his expressions murders his account impeach 359 counsel’s questions. in to defense response contrition made highlighted Attorney the State’s argument In closing his following not offer an explanation fact that did Szabo to remain silent: arrest chose but inter- the defendant was day that February 3 “On [the Laraway police at the police officers station] viewed it off his get that he couldn’t feeling that bad he wasn’t the time. bothering him at really thing chest. This was *** occurred[,] on they as he said the facts occurred] [If] at the 3rd, chomping would have been February 1979 [h]e know, look, You I’ve had some of ‘Hey, please. to say, bit got to know some- past, you in the but have my problems there, now[,] I Leatherman went thing here and but shooting and Stabbing and absolutely crazy. nuts. He was God, like it.’ But what does he my anything I never seen in He he’s not a stoolie.” you says tell court? of John and subse

Had the cross-examination Szabo trial, at occurred prosecutor remarks quent closing error. There is no that such question would constitute they unfair and amount to a depri remarks are fundamentally si person’s an arrested process allowing vation of due explanation subsequently lence to used to an impeach 444, 449, v. 74 Ill. 2d (1979), offered at trial. Green 610, 426 U.S. 272, 274; (1976), 386 v. Ohio Doyle N.E.2d 91, 97-98, 2240, 2244-45. 617-18,49 L. Ed. 2d 96 S. Ct. signed the defendant The State because suggests that he he indicated rights waiver his Miranda before Doyle his v. lawyer, did not want to talk and wanted to see Ed. 2d 96 S. Ct. 426 U.S. 49 L. Ohio spoke freely, does not State Szabo apply. argues when questions his to the officers’ response when fact has of the police interviewed was that he was tired being to remain silent right him. He then invoked his sling have been his to counsel. Szabo could not right properly to the police at trial he did not say with what impeached 74 Ill. 2d 3. (People officers on Green February of arrest that the at the time defendant said (nothing exculpa- on his failure to tell an cross-examination permits or comments the State’s justifies by Attorney tory story, A remarks on the closing during argument).) prosecutor’s his cannot used to following defendant’s silence arrest of a at trial. Peo defendant impeach exculpatory testimony 74 Ill. 514. (1979), v. Beller 2d ple reiterate that the decision to invoke the We because one, the State remains death is such a serious penalty at the to observe fundamental obliged sentencing hearing v. 451 guarantees. (Estelle constitutional Smith 462, 359, 368, 1866, 454, U.S. 68 L. Ed. 2d 101 S. Ct. Those include the fifth amendment 1872.) guarantees guar- silent, to remain the defendant can- right antee of the and that v. exercising right. (See Malloy not be penalized 8, 653, 659, 12 L. Ed. 2d 84 S. Hogan (1964), 1, 378 U.S. 1489, it trial or at 1493-94.) Ct. This is true whether be at the sentencing hearing. 454, L. Ed. 2d

In Estelle v. Smith 451 U.S. 68 ex- 359, 1866, 101 S. Ct. the United States Court Supreme amined of a doctor who had conducted a testimony pretrial of the examination defendant and psychiatric subsequently for the State at the of the trial to penalty phase testified danger the effect that the defendant would be a to society. In violated the defendant’s holding testimony such self-incrimination, court privilege against compelled' said: Amendment,

“The Fifth to the states applicable made Amendment, through the Fourteenth commands . . . criminal case to person compelled any shall be ‘[n]o this against be a witness himself.’ The essence of basic is ‘the that the State principle requirement constitutional pro- an individual proposes punish which to convict against independent him labor duce evidence officers, of forc- simple, expedient of its not cruel [(1961), his v. Connecticut ing lips.’ from own Culombe 1046, 568, 581-82, 1037, 81 S. Ct. 367 6 L. Ed. 2d U.S. 1860, judgment) (emphasis (opinion announcing 1867] (1964), 378 added). Murphy also See [Com. Waterfront 1594, 681, 52, 55, 678, S. Ct. 1596- 12 L. Ed. 2d 84 U.S.

361 Griswold, 97]; Today (1955). The Fifth Amendment E. has held ‘the availability The Court [Fifth privilege upon type does not turn of Amendment] proceeding invoked, protection upon in which its is but the nature the statement or admission the expo- 1, [(1967), 49, sure invites.’ U.S. which it In re Gault 527, 558, In 18 L. Ed. 87 Ct. this case S. 1455]. penalty potential consequence' the ultimate of death was a respondent examining what told the Just psychiatrist. as the Fifth Amendment a criminal defendant prevents ‘ made being from “the deluded instrument his own ’ conviction,” [(1961), Culombe v. 367 U.S. Connecticut 1037, 1045-46, 581, 6 L. Ed. 2d 81 S. Ct. 1867] Hawkins, (8th quoting 2 Pleas the Crown 595 ed. 1824), it him protects being as well from made the ‘de- luded instrument’ of his own execution.

We can discern to distinguish no basis the between guilt penalty phases respondent’s and of capital murder trial as so far the of the protection Fifth Amendment privilege is the gravity concerned. Given the decision to the be made at the not penalty phase, State is relieved obligation observe fundamental constitutional guarantees. See Georgia 95, Green v. [(1979), 442 U.S. 97, 738, 741, 2150, 2151]; 60 L. 2d S. Ed. 99 Ct. Presnell 14, 16, v. Georgia [(1978), 207, 439 U.S. 58 L. Ed. 2d 211, 235, 236-37]; [(1977), 99 S. Ct. Gardner v. Florida 349, 402, 357-58, 393, 430 U.S. 51 L. Ed. 2d 97 S. Ct. 1197, (plurality opinion).” (1981), Estelle v. Smith 1204] 454, 462-63, 359, 368-69, Ed. U.S. 68 L. 2d 101 S. 1866, Ct. 1872-73.

It would fundamentally have been unfair impeach Szabo at trial in manner in which he at impeached believe it un sentencing hearing, and we was equally fair to him at the about sentencing hearing cross-examine his failure an or to make statement a state exculpatory ment of contrition to the officers his following ar police rest. While the rules admission evidence governing at the sentencing those hearing are not same as govern the admission of at trials (Ill. evidence criminal Rev. 38, Stat. ch. par. 1(e)), fundamental constitu- 9— The defendant’s abrogated. cannot be

tional guarantees guarantees. silent is one of those to remain right remarks about closing and State’s cross-examination er and constituted plain improper defendant’s silence were not that, defects although as sentencing hearing, ror at the affected clearly by specific objection, preserved properly 73 Ill. 2d R. (see the defendant 615(a); rights substantial v. 73 Ill. Precup 7). POLYGRAPH RESULTS EXCLUSION OF this court has banned recognizes While Szabo trial, to or a criminal stipulated results at use of polygraph he 225), 88 Ill. 2d submits (People Baynes not examinations taken by of the polygraph the results reliable be sufficiently Leatherman were himself and gov the rules hearing, where sentencing considered at not criminal trials do of evidence at the admission erning ar 1(e)). ch. Szabo par. Rev. Stat. (Ill. apply. 9— to its is inadmissible at trial due that since hearsay gues at a death sentenc has admitted and been unreliability yet considered should be evidence hearing, polygraph ing ignores This argument admissible. acceptable equally are re evidence that dangers polygraph the essential held we Baynes, where in this court’s decision flected tri criminal must excluded from results that polygraph als. reliability as to the polygraph’s of doubts

Because results conclu find the polygraph that a will jury the risk as their function thereby usurp will (and polygraph sive ex that results of polygraph have held fact), finder of we in criminal trials. We said at are not admissible aminations of evidence is as likely other form Baynes that “[n]o or inno determinative of guilt completely considered as there We concluded examination.” cence as a polygraph admit wrongly evidence was fore that “the [polygraph] 225, Ill. 244-45. v. Baynes ted.” in the admission The we articulated rejecting reasons in excluding at trial are also persuasive evidence polygraph is consideration. No evidence it from the sentencing jury’s careful, from a rea- as to divert the attention jurors’ likely mitigat- all the and/or aggravating soned consideration of factors before them. ing that the ultimate consideration of whether potential in jurors’ unduly

a lives or dies could rest defendant to the con- results leads us weighted polygraph view that the trial court acted in properly granting clusion State’s motion in limine to exclude the results of the poly- examinations. graph REMARKS

PROSECUTOR’S CLOSING argued The State’s in his Attorney closing society’s has correspond- abandonment been capital punishment a dramatic increase in the ingly accompanied number homicides that are committed: being B, you that if A kills

“Old fashion common sense tells A particularly horrifying pay in a manner ... should for taking Unfortunately, B’s life with his own. we have lost in I was read- country years. of that this over track Frank ing Carrington, a while who is the book back Law En- executive director for Americans Effective forcement.

In there were 76 in this nation. We executions 7,000 had homicides. In there were no executions 20,000 in this nation. We had homocides. any average

Is it wonder that citizen feels today punishment necessary is in order that crimi- capital they do not adequately punished nals be to insure that Carrington kill some else ... A few more statistics. Mr. fact, a child pointed out as a statistical born being chance of mur- statistically greater 1974 has a America than the chance of a dered on streets of being soldier killed in the second World War.” combat upon jurors’ These remarks were calculated to play fact from the emotions and were clearly improper. Apart 364 the of the source statistics the quoted by prosecutor in

was not evidence and could not be referred to properly v. in (People Beier argument 511, 29 Ill. 2d (1963), 517), the comments into the injected sentencing proceedings con siderations that no on the bearing have character or record of John or Szabo the circumstances of the murders which he was convicted. The prosecutor’s reference to the deterrent effect supposed general of the death penalty could divert the attention from only the jury’s aggravating and mitigating factors in case and Szabo’s focus an upon extraneous consideration. In our recent decision in People v. Walker 91 Ill. (1982), 502, 513-17, 2d we a improper held reference prosecutor’s the defendant possibility if might, sentenced to imprisonment, eventually be paroled. The statistical relationship between the number of execu tions and the number homicides in the United States has no more in the place determination sentencing than the did Walker. in 91 “speculative possibility” Ill. 2d parole 502, 515.

The remarks above not extraneous quoted only injected into the sentencing considerations were proceeding; they also A such as “a inflammatory statement prejudicial. in child bom 1974 has a chance of be statistically greater murdered on the streets of America than the chance of ing a in the in being combat soldier killed second World War” emotional on the strong response part evitably provokes v. Devin In People (1982), of the our decisions jury. Jones 275, Ill. 94 Ill. 2d (1982), we at of trial court and length obligation prose discussed cutor to at the sentencing hearing avoid introduction its rele evidence, effect of which outweighs prejudicial Peo 346-48; (People v. Devin 93 Ill. 2d vance. v. Jones these ple 94 Ill. 2d We believe 286.) remarks considerations here. The apply prosecutor’s also would be influenced created a risk grave jury of fear and a sense of out- the death out impose penalty acts, his defendant or but not toward this rage, particular criminal defendants general. towards closing argu- aspect prosecution’s The second came during complains ment of defendant which in his closing argument Defense counsel argument. rebuttal available of the alternatives sentencing informed the jury not re- in the a death sentence was to the trial court event could the the defendant be jury turned. He informed of life, with no possibility sentenced to for natural prison or a min- in 40 years; 80 with parole; years, possible parole could eligi- of under which the defendant be imum 20 years the reject He the to urged jury in 10 parole years. ble the the court to sentence death and to allow penalty a term imprisonment. defendant defense coun- by contends that the argument State the for the follow- sel in his door closing argument opened remarks the State’s ing by Attorney: point would out the surprised

“I’m a little bit counsel talking are about. Of period of incarceration that we course, years, according for “X” he does number law, in or 40 present say person got years prison the a 30 thing you and I years prison in ... It assumes one which jury, in the very have little control over. Members state, years parole eligibility last in this has seven gone Three times. from changed three times. We have of Cor- sentencing prior that existed to the Unified Code years. a could in eleven paroled rections where man be slightly then . reduced it and modified basically We . . Assuming the flat time sentences. and we went back to change, premise may does not the be cor- law the decision made you really rect ... do want to have opportunity should have the whether or not John Szabo little very in some with society, by walk made bureaucrat road, don’t standards, you down the where sometime *** going is to be at the time? even know what the law justice doesn’t mean jury, my opinion, Members of murders should has convicted two person who been heels, cooling his until some bureaucrat sent to prison, decides to release him.” inter- should not have been terms of parole

The possible the sen- informing jury counsel either jected by However, the court. available to alternatives tencing counsel’s state- could not use defense Attorney State’s to the jury to suggest as a convenient springboard ments with decision “made some bureaucrat that a possible free again Szabo to be little standards” could allow very State’s At- The comments of the some in the future. day reference to defense counsel’s were not invited torney Such highly prejudicial alternatives. sentencing the court’s attorney inevitably of the prosecuting remarks on part considering aggra- from attention jury’s diverted as reviewed factors mitigating they properly and/or vating and the facts record of the defendant the character and v. the offense. See Woodson surrounding circumstances 280, 304-05, 49 L. Ed. 2d 428 U.S. North Carolina 2991; 2978, Lockett Ohio 96 S. Ct. 973, 989-90, 98 S. Ct. 57 L. Ed. 2d 586, 604-05, U.S. 2964-65. as speculate is not Attorney role of the State’s

The in not should the death be penalty to what might happen 91 Ill. 2d we va Walker voked. In errors that col death of three the because cated penalty the error at a result. One mandated such lectively in the case was made in the Walker hearing sentencing Attor The State’s closing argument. rebuttal prosecutor’s that defendant’s the possibility in addressed Walker ney other “un the about and warned jury eligibility parole 502, 513. 91 Ill. 2d “unnamed” victims. and known” for the jury that it was improper found in Walker We not the defendant would that whether or led to believe be said should consider. We that they was a factor paroled be offense, the the the individual and considering “[i]f, that as not such a person the defendant is concludes that jury eventually that he executed, may then the fact should govern- State of our the executive branch be paroled ment does not mean that he executed to should be prevent that consideration into possibility. By injecting parole determination, the is its atten penalty jury diverting offender, tion from the offense and the and is focusing a that or not upon speculative possibility may occur.” may 91 Ill. 2d 515.

The an sentencing hearing provides opportunity each counsel to reason with as to whether jury any ag- or gravating mitigating circumstances existed. The sen- is not tencing hearing intended box on provide soap which counsel can prey fears of the upon jurors the defendant soon walk streets in search of may again another victim. See also State v. Willie (La. 1982), 410 So. 2d 1019 (the consideration of jury’s defendant’s poten- tial for future release raised the presumption death under the influence of an penalty imposed arbi- factor unless the trary jury was admonished and the re- cord indicates that the the admonishment). heeded jury

The chance that “some bureaucrat decide to re- [may] lease” John Szabo was a factor that not should have been considered. In in the planting seed minds the jurors’ State’s Attorney closing erred. The remarks of the State’s in both his Attorney closing argument rebuttal ap- to the pealed The com- passions prejudices jury. ments of the State’s mandate the vacation of the Attorney death A of death im- penalty. that could have been penalty under the influence of or posed cannot passion prejudice stand.

For the reasons stated the sentence of death is vacated. The convictions for intentional murder and murder felony are also vacated. cause is remanded to the circuit court of Will with directions not inconsistent with County the views If expressed this the circuit court de- opinion. termines that it is to reinstate defendant’s appropriate convictions, two should re- only convictions for murders If sentencing instated. the convictions are reinstated a new 368 is in order.

hearing vacated; reversed,; sentence

Judgment remanded, directions. with cause SIMON, concurring: specially JUSTICE conclusion for the except I in the entire opinion concur to introduce for Szabo it was not permissible hear- sentencing at the of examinations results polygraph in a that a defendant capi- justice require Fairness and ing. and to introduce opportunity tal case have broadest to show he why tend may evidence which rely any upon execution. should escape Baynes v. in holding I of the

Although approve of exam 225, that the results a polygraph 88 Ill. 2d trial, in a criminal evidence ination are not admissible relax the the courts should has determined legislature sentencing in conducting post-conviction of evidence rules the death penalty. seeks prosecutor where hearings of 1961 of the Code provides Section Criminal 1(e) 9— evi present any defendant or the State may either in mit factors aggravation dence relevant to certain its admissi “regardless a sentencing hearing at igation of admission evidence rules governing under the bility trials.” (Emphasis at criminal Stat. added.) (Ill. Rev. sentencing At the 1(e).) proceeding ch. par. 9— the prosecution the court permitted the instant case and evidence hearsay impermissible both present have been none of which would character, defendant’s bad (See a criminal trial. evidence at as substantive admissible People Gleckler (court Ill. also in a separate by policeman offered testimony considers these types veracity accuracy proceeding).) evi reliability polygraph no than the evidence is greater character bad Moreover, of the defendant’s dence. evidence a preju to have evidence is at least as as likely polygraph I do not un the jury. influence on dicial and unreasonable in a court sentencing that a can hold derstand how we 369 death must case exclude relevant evidence while polygraph at the same time that other recognizing types equally evidence in questionable may be admitted such a proceed- ing.

The majority’s treatment of the evidence is polygraph not only inconsistent with the legislature’s also de policy, nies the defendant due In process law. a proceeding will determine whether a die, defendant should live or fun damental fairness that the requires defendant be precluded from no opportunity present relevant evidence to show live, he should why the rules of notwithstanding evidence in criminal ordinarily applicable cases. Green v. Geor (Cf. gia 442 (1979), U.S. 60 L. Ed. 2d 99 S. Ct. 2150 (exclusion of reliable in death hearsay penalty proceeding under State’s rules of evidence violates due process).) polygraph evidence introduced the defendant at the by sen tencing was at hearing least as as reliable some of the evi dence presented by at the same prosecution hearing. Even though the in reasoning would Baynes prevent use of polygraph evidence the State by at some stages I feel proceedings, that the defendant should be able use it in a death penalty hearing subject attack State its upon reliability.

CHIEF RYAN, JUSTICE in concurring and dis- part in senting part:

I agree with the of the opinion court on the issue of the exclusion of the results at a polygraph sentencing hearing, and in that of the portion remand directions I concur. In other I respects, dissent.

It seems clear from this case that we are going to have to come to with the grips es waiver-plain-error question, pecially cases, capital and formulate and adhere to some consistent or position In the policy. case now before this court a has majority applied error rule and plain held that certain matters at the sentencing of the trial phase constituted error necessitating rehearing, even no though

370 were made trial counsel. I these

objections view hold Peo as not consistent with the of this ings holding court v. ple Free (1983), 94 Ill. 2d 378.

I have stated as to the my position application v. Carlson error (People plain rule times. 79 many (1980), v. Roberts v. 564; Ill. People People 1; 2d 75 Ill. 2d (1979), v. Precup (1978), People Green 7; 73 Ill. 2d 74 Ill. v. Pick J., People concurring); (Ryan, specially ett I 280.) Ill. 2d need not state the again guide Carlson, lines for its use in this In opinion. error was discussed at proper application plain length, court following which discussion this stated: “We thus construe the error rule to be a limited ex plain ception to the waiver doctrine.” v. Carlson 79 Ill. 2d 577-78.

I am to observe that unless this court compeUed adopts some uniform standard —unless it establishes a degree in the are error —its decisions certainty application plain to to the to the going confusing be bar and trial terribly courts, must the law this apply which as construed court. Plain error should used sparingly according be to the standards and which this court has stated guidelines in the It to above-cited cases. should not be used simply or avoid of a postpone imposition penalty provided by If law or to set aside a result we do not with. we agree error on an ad hoc basis, which this court has apply plain will our trial into an ad- doing, forcing judges been we be role. will be to themselves versary They compelled inject into the of a case because cannot know from the they trial court a statement or a rulings question by of this whether to, or not will be viewed objected whether prosecutor, as error this court.

In almost criminal different counsel every appeal, repre- him at the sent the defendant on than appeal represented In counsel do not know trial. such a situation appellate are not made at trial. times failure why objections Many or the trial strategy of the defense counsel’s is object part an not to warrant ob- as unobtrusively incident so passes con- counsel for is not trial good practice It jection. Therefore, although everyone raising objections. stantly or ques- that a statement in the courtroom be aware may the defense realize that tion also objectionable, they may is voices and therefore to waive willing objection counsel is none. not reflect the actual however, does

The cold transcript, combs trial, counsel appellate flow or feel error, construed as record for can be anything court’s atten- it to the trial whether or not had been called or not it appar- and whether timely objection tion by not want ent the trial that counsel did attending to those no delight, counsel’s to raise an To objection. appellate error ra- doubt, plain this court has willingly applied deviations, although unobjected-to tionale to of these many intentional and the failure to well have been object may strategy. of the trial counsel’s part even possibly in the case now us majority As an before example, to the object has held that the failure of trial counsel Witherspoon cause on court’s two excusing jurors on of the claimed error did not constitute waiver grounds is case, possible in this Although unlikely appeal. highly ex- those two jurors that defense counsel have wanted may to their excused being cused and therefore did not object counsel, objecting, court. Defense not for cause the If counsel did challenges. two peremptory have saved may felt that cause in mind and strategy actually not have this established, a excuse had not been for a Witherspoon-type told this court in the record would have simple objection error. that not to waive this claimed counsel did want that, as to Furthermore, the states opinion majority establish Ivezich, actually definitely Mrs. the did not judge The opinion not the penalty. that she would death impose (94 posed.” should have been “[Ajnother states: question Ill. 2d at If 356.) counsel would have the trial objected, court could have another to easily posed question satisfy the The error objection. alleged could been have thereby corrected at the trial level instead of the basis for a being and, remandment for another sentencing doubt, no hearing another journey through appellate the process. Witherspoon issue,

Since I am the discussing before other the considering plain questions error in majority opinion, I to also disagreement wish voice with the majori merits of the Witherspoon question in of the ty’s view volved in case. this The states Mrs. opinion that Ivezich’s voir dire did not answers on state that she unequivocally would not impose death who penalty. has ever Anyone conducted a voir dire examination knows that it is veiy difficult a juror to to get commit himself to unequivocally on a any position subject open controversial court front full panel of the An jurors and answer spectators. such as “I think I or don’t could” “It would be hard to do” is often as an as about one can unequivocal get answer from a The can juror. satisfy examiner himself from only the total examination as whether or a juror to not is com mitted to a certain position. demeanor juror while to the often responding interrogation conveys more precise than meaning do his answers. It is from apparent asked in case questions this that knew the judge Witherspoon test. The nature the interrogation also shows he to test. It is seeking satisfy appar this court stated in ent that he felt that As he had. Gaines 88 Ill. must “recognize we trial superior position of the to ascertain the judge intends meaning convey.” Also, which venireman as Gaines, noted in if the defendant felt the answers were not or that should have precise enough they been clarified, he had the under our Ill. right (73 Rule 2d R. 234) additional suggest judge questions. - now to the plain-error question, waiver

Returning

373 the error instances where in other applied plain majority in One situation object. counsel did not defendant’s trial his si defendant as to of the the cross-examination volved on and the comment lence arrest following prosecutor’s In case did neither closing during argument. that silence was motion limine object; counsel no defendant’s trial to pre to the trial made; given judge no was opportunity error. the now views as reversible vent what majority on defendant’s si that such a stresses comment opinion However, the fact a due process lence constitutes violation. the is does not right preclude that a constitutional involved has on sev the waiver rule. This court held application to constitutional eral occasions that the waiver rule applies Precup v. (People as as to other issues. well questions, 117; Ill. v. Ill. 2d 7; (1975), 73 2d Howell 60 (1978), People 280; Black v. 54 2d v. People Pickett Ill. People 40.) Ill. 39 Ill. 2d 544; Long (1968), in may The fact a fifth amendment have been right the reach of beyond volved does not matter put not know what is in the waiver rule. A trial does judge object. mind of counsel when he does not Counsel defense to its answer objectionable want use the may question redirect He want may as a basis future examination. a line of interrogation to the door for prosecutor open he not If the trial were explore. judge otherwise could the judge from prosecutor asking question, prohibit in effect assuming the door and would be would closing of an the role advocate. to the

I see no failure saying object reason for here this error not waiver when alleged does constitute court has held did constitute waiver that such failure holding majority the several cases cited above. The of this court on is further evidence of the vacillation - waiver plain-error question. that the majority’s holding

The same said of the can be These remarks were were error. remarks prosecutor’s there an increase in the effect number there no executions. There were no homicides when were to remarks. I consider that error in these objections any relation thereto was waived. of the pros

Another error involves misapplication plain comments in remarks the closing concerning possi ecutor’s of if the defendant to be sentenced to were bility parole to these com the There were no penitentiary. objections The of this court in the line of cases cited holdings ments. above therefore seem to for sake of consist require, would that error in the mak that we here hold involved ency, any of these remarks waived. The relies on ing opinion later, v. 91 Ill. 2d 502. As noted I do Walker not think that Walker the of the supports holding majority error, in this case. the of On waiver question plain offers no in the com whatsoever because Walker support ments of the of concerning the prosecutor possibility were to. objected defendant’s parole In Walker we stated that if it were not for other mat- ters in the record that indicated the was confused on jury the of have parole, we would question possibility considered the remarks on that prosecutor subject invited the remarks of defense counsel. In the case now us I find before that comments were prosecutor’s clearly to, invited and were comments by, responsive the defense In counsel made the closing arguments. with the to in- pleading prison, send defendant jury of stead the death defense counsel em- imposing penalty, of defendant confined phasized number would be years and defense counsel himself brought up subject pa- statements, role. The to these cor- prosecutor, replying out that the laws the number of rectly pointed governing subject the defendant would serve and years and in fact had been parole subject change were several times in recent changed years. in fi- range cannot counsel unlimited permit

We defense and emo- nal on the play jury’s sympathies argument error reversible committing tions without any possibility argu- that the prosecutor’s and at the same time require as effective any reply. ment be so sanitized to preclude holding vacating I also dissent from the majority’s trial court the cause so that the conviction and remanding of reconstructed inspection conduct an camera may Leatherman. My interviews with memoranda of pretrial solution not a very practical first is that this is observation four years that the interviews were conducted considering has been dem- Second, no need for such a ago. procedure onstrated. has with noncompliance discovery

This court held showing does not reversal absent requests require 120.) 79 Ill. 2d prejudice. (People Greer not been fur having defendant had shown no prejudice by Leatherman. nished the notes taken of the interview with defendant was effectively pre The bare assertion that the of Leatherman is not a testing credibility vented from sufficient He does not contend allegation prejudice. what ascertaining he did not have other means of any not said, Leatherman had or that he did know where to was, Leatherman or that he did not have an opportunity in him. The relies on dicta Peo opinion interview majority However, aside v. Abbott 55 Ill. 3d 21. ple App. in Abbott does not dicta, holding sup from the the actual case. the conclusion reached in our port majority case, in State had found, Abbott as was true our a statement of the to the defendant and furnished witness not that the defendant made that the record did disclose to trial. No to interview the witness any attempt prior made. surveillances had been memoranda witnesses’ for the not the defendant’s conviction Abbott did reverse the defense counsel with failure to prosecution’s provide in Abbott fense counsel to follow a different and more suc- hopefully around, cessful the second time the same game plan using material that was at his the first trial. disposal during WARD, JJ., in this con- join partial

UNDERWOOD currence and dissent. partial WARD,

JUSTICE also concurring and dissent- part ing part:

The claim of error that makes only regarding Szabo his trial and the of his question guilt concerns circuit denial at the judge’s bench trial of the defendant’s oral mo- tion that the People produce notes that the asserted were the prosecutor’s work product. majority reversed judgment murder and directs that in the event the court finds in an in camera the recon- inspection discoverable, structed notes contain prosecutor sub- verbatim statements of Leatherman it shall de- stantially liver them to the defense and a order new trial determine whether the defendant is of the murder of guilty John notes, If the Christopher Rajca. reconstructed, as are substantially verbatim statements of Leatherman, and if conform to Leatherman’s a they testimony, conducting new as to the in- murder John—will be especially trial— The defendant testified at that he explicable. hearing had shot John and he the men- Rajca, obviously “possessed tal state murder,” conviction of intentional necessary a point consider, which I concerns the unnecessarily, major- The defendant testified in ity. part:

“Q. He weapon you? handed the [Leatherman]

A. Pardon? [Defendant]

Q. gun He handed the to you? Yes,

A. sir.

Q. And what you did do at that time? seat, A. I leaned over to left in the my pointed back gun towards John and fired. Q. right passen- You leaned over from the behind the ger’s you side and shot John? Yes,

A. sir.

* * * Q. Now, John, shot you picked right; you on John? A. Yes.

Q. Why did you shoot him?

A. I don’t know.

Q. you How did feel at the time?

IA. didn’t know to feel. I what Like I felt—all could I say, felt bad.

Q. You felt happened got bad. What when John shot? He started gagging. A.

Q. you What did do? That’s A. when he right gagging, started he when— reached —he reached down and clicked trying— the door Q. What happened then? What happened then? That’s just A. when he fell over.

Q. just He fell over? just

HeA. fell over.

Q. What did you do? I pushed open A. the door way, got rest of the out. dragged a hold of him Grabbed him the fence.” up by was, The defendant’s testimony course, judicial con- fession to murder of Rajca. Underhill, John 2 H. (See Criminal Evidence (5th sec. 385 ed. Chief Justice 1956).) observes Ryan correctly holding a new trial will be a useless waste of judicial resources.

RYAN, C.J., UNDERWOOD, J., in this join partial concurrence and partial dissent.

(No. 52775. ILLINOIS, THE OF THE PEOPLE STATE OF Appellee, FREE, Jr., v. JAMES P. Appellant.

Opinion January —Rehearing 1983. filed 8, 1983. April denied that the notes position them. He to obligated produce therefore not the State was a of with offered, however, copy defense counsel to provide or- if court so or, the circuit “trial eight-page plan,” The circuit the notes. to reconstruct dered, attempt not de- necessary, court, discovery further finding 344 nied defendant’s motion. We note in passing that although defense counsel’s mo tion for disclosure was made and not in orally as writing required Rule, by State does not argue that the is sue has therefore been waived. Since the issue was pre sented the circuit court in a written motion for a new trial, and in of view this court’s to scrutinize responsibility the record in capital cases with care, we should ex especial amine the alleged error as one affecting substantial rights defendant, of the to determine whether has justice been denied. See v. People (1982), 275, Jones 94 Ill. 294-95; 2d Carlson 79 Ill. (1980), 576-77; 2d People v. Brownell Ill. 2d 542. The State here, as argues court, before the circuit it was not obligated to produce assistant State’s Attor notes of his ney’s pretrial interviews with Leatherman, be cause the notes are privileged Indeed, work Rule product. 412 and our cases an recognize to disclosure exception material privileged rule. by work-product (73 Ill. 2d R. 412(j)(1); People v. Bassett 56 Ill. 292.) The rule, import however, is that the determination whether memoranda summarizing a witness’ oral state ments consist of or contain material is to privileged court, made not the prosecutor. The committee comments to Rule state: “Paragraph (a), subparagraph (i), requires the addi- tional production any of substantially report verbatim an oral statement aby obliged witness. The State is also produce list of all reporting memoranda or summa- rizing oral statements whether or not the memorandum appears to the State to be substantially reports verbatim entitled, such statements. The is upon then defense fil- motion, ing a written to have the court examine the memoranda listed If the State. court finds that the memoranda do contain substantially reports verbatim statements, witness the memoranda will be disclosed to

Notes

notes him of right. that Szabo contends that the circuit ruling court’s fur- denying discovery ther him of the deprived to effec- opportunity tively cross-examine Leatherman. He asserts he denied the of thereby right confrontation guaranteed by sixth amendment, denied fair trial. We first address the that, State’s contention since it provided defense counsel awith copy eight-page plan, trial no further disclosure was The State required. that this is suggests Bassett, case analogous People in which the prosecution’s rough notes of interviews with wit nesses were destroyed following of a num preparation cards, of ber white intended for use the State at trial. do not think the We situation in this case can compared Bassett, with that in In Bassett. the court concluded 412 Rule disclosure of the required cards; white the rea son, however, was that they apparently contained the sub stance of statements, the witnesses’ pretrial and were thus an adequate substitute notes. Ill. original 2d (56 285, 290, 292.) contrast, Here, nonver eight-page, batim outline Leatherman’s trial expected testimony is clearly not the same as contemporaneous memoranda of 30 some hours interviews with State’s star witness. In reviewing error, claim Szabo’s we find ourselves in a rather position. notes, Since the perplexing interview disclosed, which Szabo asserts should been longer have no exist, we cannot tell what If the they contained. notes had preserved been and were found to contain discoverable which matter could have been used to Leather- impeach man, we would then have to decide whether denial opportunity to use the material cross-ex impeaching amining Leatherman was error. The prejudicial improper can, limitation of cases, cross-examination in some amount to constitutional error. v. Wilkerson Ill. 151; 2d Smith v. Illinois 390 U.S. 19 L. Ed. 88 S. Ct. 748. However, the notes were their contents are destroyed; unknown, and the effect of their nondisclosure would therefore seem impossible know, however, assess. We do that Leatherman’s was central testimony to the State’s case against Leatherman, Szabo. an alleged accomplice, was also the occurrence only witness. Although cir- strong cumstantial evidence was introduced that linked Szabo with Leatherman and crimes, with the Leatherman’s testi- mony concerning Szabo’s role in leading and car- planning out the rying crimes was the only evidence to es- tending tablish that Szabo premeditated the murders of John and Chris Rajca, and was therefore essential in proving

notes The court concerning these surveillances. of his wit- noted need not reduce all that a prosecutor and that a writing nesses’ statements pretrial defense a case prepare counsel should not on the State to rely the defense. contention There is no substance to the defendant’s just that he has prejudiced by prosecutor’s somehow been failure to the notes made of Leatherman’s interviews. keep is issue which counsel has dis- This another just appellate for the of re- covered as the record was searched purpose view. It is not contended that the notes were destroyed from fall- material unfavorable to prevent prosecution defendant, or that the destruction of ing into hands other detrimental design. the notes resulted from any assuming even the remandment was Finally, proper it case, this the manner in which the directs be opinion handled is states that after the notes have not. opinion reconstructed and examined the court in camera: been “In the event the court finds the notes to contain discov erable, statements, verbatim should de substantially (94 liver them to defense counsel and order a new trial.” Ill. 350.) 2d at does not mean Surely majority that a new trial should if be ordered those notes contain statements that coincided with what Leatherman had every respect testified to at trial, statements, or with the contents of his copies which had been furnished to the previously defendant. That would a useless waste of A judicial be resources. new trial should not ordered unless the be reconstructed notes reveal some material that would have of some been value to the defendant for cross-examination purposes. Certainly, a new trial should not granted allow the de- simply

Case Details

Case Name: People v. Szabo

Court Name: Illinois Supreme Court

Date Published: Jan 24, 1983

Citation: 447 N.E.2d 193

Docket Number: 52626

Court Abbreviation: Ill.