People v. Turner

(No. 63937. ILLINOIS, STATE OF

THE PEOPLE OF THE Appel- TURNER, lee, Appellant. v. ROBERT GENE Opinion April 20, 1989. Rehearing filed 28, 1989. denied June Schiedel, Defender, M. Charles and Deputy S. Gary Defender, Assistant of the of the Rapaport, Office State of Defender, Springfield, and Elizabeth D. Appellate student, Caddick, law for and Robert G. appellant, Turner, Menard, pro se. of appellant

548 General,

Neil F. of Hartigan, Attorney Springfield Ruiz, General, Solicitor and Terence M. Madsen (Robert General, and of Fickinger, Attorneys Joan G. Assistant of for the Chicago, counsel), People.

JUSTICE RYAN delivered the of the court: opinion Turner, men Defendant, Robert and two other were circuit of Ma charged an information court murder, with one count each of coupin County aggra assault, assault, ag vated criminal sexual criminal sexual restraint, unlawful gravated kidnapping, kidnapping, The trial court a motion to sever robbery. granted trial, three defendants’ trials. Turner Following jury of the offenses. In a death guilty charged pen was found found that there existed one or alty hearing more of forth in section 1(b) the factors set 9— ch. Criminal Code of 1961 Rev. Stat. (Ill. par. no factors sufficient 1(b)) mitigating and there existed 9— Defendant sen a sentence of death. preclude death, Ill. 2d (107 tenced to and the sentence was stayed (Ill. R. to this court Const. 609(a)) pending appeal also YI, 107 111.2d R. The court sen §4(b); 603). art. for imprisonment ag tenced the defendant to 30 years’ assault, 15 for criminal gravated years’ criminal sexual 7 assault, sexual 15 for aggravated kidnapping, years’ for restraint years’ for unlawful years’ kidnapping, years’ robbery. Michael 13, 1985, defendant, his brother On July or Turner, fishing. fishing and Daniel Hines went While some “getting girls.” later discussed evening, they and fol- Their was to were pretend they policemen plan then a car with a woman in it. would They pull low similar to one flashing light, car over the use a red car has. police and followed a number After waited for fishing, they cars, they spotted for the When right person. looking Bridget Drobney, by 17-year-old the car driven over to the side of on and she light pulled turned 549 car vehicle, Drobney’s exited his approached road. Hines ruse that for her driver’s license. Under and asked station, was told Drobney her to the had to take corn- to a nearby car. The men then drove into their get road, and of the car on the side field. parked They rows six or seven girl took the Hines and the defendant Turner waited by Michael into the cornfield. While made and Drobney and Hines beat road, Robert Turner A of Drobney’s sexual acts. number her various perform Eventually, into the car. were taken and put possessions a around and called turned the car Hines and Michael The two to leave. of times for the defendant number air, then noises, either a or a gurgling gasp heard 10- holding a out of the cornfield the defendant walked told Hines Later, knife. inch-long Drobney. Drobney’s body that he had murdered Michael suffered a stab 17, on 1985. She had was found July had slit. The to the neck and her throat been wound incident sister, Sandra Aldridge, reported defendant’s her had happened. to the after Michael told what police sufficiency contest the The defendant does not he should be released He first contends that evidence. time 120-day period not tried within the because was Rev. Stat. (Ill. statute demands. the speedy-trial which that: prescribes The section 5(a).) ch. par. 103— an alleged in this State for custody “Every person *** 120 days within shall be tried the court offense delay is custody taken into unless from the date he was 1985, ch. Ill. Rev. Stat. by the defendant.” occasioned 5(a). par. 103— an 18, 1985, and arrested on July

The defendant was 13. Defendant’s August was set for date arraignment August until arraignment postpone 31 motion July the court set a At the arraignment, granted. 18, the defend- September 23 trial date. On September date, which in the trial continuance requested ant three objection, the defendant’s Over granted. court 26. The defendant on September cases were severed that he of continuances agrees requested number months. the trial was set for subsequent Eventually, March 17.

All understood that Hines’ trial would be parties first, next, the defendant’s trial and last would be Michael Turner’s. 17, On March Hines’ trial commenced with voir dire. On 8, before April completion trial, Hines was held to set a trial date for the hearing defendant. trial 2,1986. The was set for June

The first on of the time parties disagree computation 18, from the arrest the 1985, 17, on until March July 1986, trial date. 42 urges The State be days may time, in computed calculating and the speedy-trial argues defense that 59 had The State then days passed. the 77 from March until the trial on argues days June 2 are to the he ex- chargeable because defendant to the trial date and he contributed to the pressly agreed The defendant that his trial had been set delay. argues 17, for March and at time date no to that did subsequent Therefore, a continuance. ar- request defendant gues that he was tried 136 after taken into being days custody. give

Section 103—5 is to be construed to ef liberally trial, fect to the constitutional to a with right speedy (People Beyah v. each case decided on its own facts. 423, section, Ill. it is the (1977), 67 2d Under this 427.) State’s to trial bring burden defendant within time time limit. Ill. 2d at The statutory (67 427.) 120-day limit for a of rea may suspended be number temporarily sons, such In de as occasioned the defendant. delay by defendant, termining whether is occasioned delay the criterion is whether his acts in fact caused or con delay. (People Nunnery (1973), tributed to the 372, a motion 376.) discharge, On bears the burden of facts which show a vio establishing (People v. Jones lation of the statute. 33 Ill. 2d “In 357, 361.) whether is attributable resolving delay defendant, to the much deference must be to the given trial court’s it is difficult to where judgment, especially from the discern record which is party primarily respon for decision of sible The problem. [Citations.] court as to bringing trial accountability delay sustained, to trial should be absent a clear showing of abuse of discretion.” v. Reimolds 101, 107.

This issue resolved may by analyzing 77-day be from the trial delay date the defendant first May to, until the date on the trial agreed June which even- The first is tually commenced. relevant date January 1986, when the three defendants court to re- appeared a continuance in the trial. quest hearing, At the counsel for Hines that one indicated basis for the continuance was so that a hair could be expert appointed analyze hairs pubic which were found on the victim. State’s had that some expert indicated of the hairs could be identified as similar to each of the defendants’ hairs. Robert Turner’s counsel commented evidence very and that he an damaging would like to expert examine hair He also samples. stated that he was in trial; not to to that March was bad and hurry go would rather start in sometime The cases mid-April. were continued until 3. February

At a 13 the defendant re- February pretrial hearing, of additional counsel to assist quested appointment in trial for a in preparation, and continuance the trial March granted until 17. The court in- requests both and hope dicated the new not attorney would delay further. trial could not on an parties agree attorney the court granted and one week in order find addi- 20, tional counsel. On February the court made a docket which stated that an entry had attorney accepted ap- The attorney filed an on 3. pointment. appearance April On Hines February filed a motion for appoint- ment a hair expert. Defendant filed a similar motion on 25. In the “in February motion he stated that order to properly a defense in the adequately present to have for the defendant” matter, it is necessary

above an expert. examined sample independently the hair examination would also stated The defendant the trial. not delay March 17. While on trial commenced

The Hines hearing set a the court in progress, Hines trial was following transpired: 8. The case on April the Turner *** com- Daniel Hines trial of “THE COURT: [T]he at this still continues on March menced time, Mr. Hebron? as to preference Any particular time. No, your honor. MR. HEBRON: two go Hines’s will go case will THE This COURT: —Mr. ready May. if will be in you I don’t know three weeks. an availa- would be May set in June has another case Court with that? Any problem in June. date, Monday ble first said, May do it I we could No. As MR. HEBRON: or June. right you? with June 2nd all

THE COURT: it is. whenever right with me All MR. HEBRON: right you? with June all THE COURT: Yes. MR. TURNER: con- personally Show the Defendant

THE COURT: this then that 2nd. show date of June Will setting curs 2, 1986, at June Monday, trial on set for cause is for Thurs- conference pre-trial And it’s set for 9:00 a.m. 29,1986, at 9:00 a.m.” day, May hear- for a in court 17, the appeared April parties On ex- of an for appointment motion on the defendant’s ing at- The defendant’s examinations. to conduct hair pert not yet had expert the court that torney explained like hairs and he would conducted an examination The court granted him to do that. to authorize the court the motion. May conference on

At a pretrial to violation of for due discharge a motion filed that during he indicated act. At the hearing, speedy-trial on the oral report he received an week previous the results and that examination results of the expert’s therefore, he was not case; going not to his were helpful to present in testimony rebuttal to the State’s expert’s The trial court analysis. denied the motion to discharge. The court conceded that it was unable hear the case earlier, but found that the defendant had expressly agreed to the of setting the June 2 trial date and had never indicated that he was or an ready wanted earlier trial date. The trial judge assigned defendant’s case to another because he judge did not think he should hear the case after having over the presided Hines trial.

We believe that the record establishes defendant contributed to the The defendant knew delay. that his trial would not commence until Hines’ case was resolved and his actions indicate that he not was ready on March 17. At a hearing January, he indicated that March was a time bad for him and he would prefer April or InMay. February requested appointment addi- tional counsel and filed a motion for of an appointment expert examine evidence which was damaging crucial to his case. In April he set a hearing his mo- tion to an appoint expert, and in heMay acknowledged that there had been a and that mix-up did expert not prepare of his report findings until the end of May. The trial judge justifiably under the impression the parties were not ready for trial and in he was April merely a date suggesting which was agreeable to the and to the parties court’s docket.

The defendant also to the expressly agreed setting the trial date. will not Delay be attributed to the defend ant on the basis of a silent record or if defendant fails to to the object State’s request for continuance. (People v. Reimolds 92 Ill. 101, 106.) However, 2d an ex to a press agreement continuance on the record is an af act firmative attributable to the (Reimolds, defendant. 106; Ill. 2d at People 61 Ill. Gooding (1975), 301; People v. Fosdick (1967), 524, 530; v. Niemoth (1951), 116.) defendant and his attorney expressly to the agreed chosen, date with counsel that he repeating could try case or May is

June. The defendant that there a distinction argues a the court agreement mere to date ordered by between a the the to of delay and an defendant agreement by Beyah v. citing 67 Ill. and trial, 2d People Wyatt a 151. there is Though for distinction, do not find those two cases helpful we the defendant. Beyah,

In were occupied the court and attorneys a matter. The defendant appeared the trial of different motion, denying on a reduction motion. After the bond a trial the the defense to date. When required pick court the a the defense counsel asked day, court recommended This for date the court denied the request. an earlier but to court it would be a mockery justice reasoned that to after counsel was ordered a date conclude that pick the to him. was attributable delay in- case,

In and were prosecutor this the court the matters, the date not thrust volved other but trial was indicated the defendant. The defendant’s actions upon the recom- that time needed. court more was When it date, that accept- was agreed mended Beyah, the unlike where able. This is the court chose. accept forced to date Wyatt, arraign In defendants at an two appeared The trial had attor inquired ment. court whether they not and the that had neys, responded they defendants hire obtained counsel one before yet planned but if get trial. court could thought The said they they The arraignment. continue would attorneys, hire and the agreed arraignment defendants attorneys weeks. This court ruled that was continued two could to the continuance not be attributed two-week court, “it was the court defendants because and the matter of a alone, which proposed interjected at (24 merely continuance.” Ill. 2d defendants 154.) trial, hire before the stated that would they attorneys attorneys. not needed additional time hire In not a matter of conven- our case continuance was ience solely interjected rather one by judge, but necessitated partly needs of the defendant.

Defendant has not met his showing burden the trial court abused its discretion. We realize that the State case, were on trial judge with the Hines but we cannot that no of this time can accept part be attrib- uted to the defendant. It is reasonable to assume from the record that the trial court did not believe defend- ant was trial and that the ready court believed it was accommodating the defendant trial, the of the setting to which the defendant Therefore, expressly agreed. the motion to dismiss on this basis was denied. properly

The defendant next First, a new trial. requests he con tends it was highly prejudicial and improper for prose cutor to ask defendant whether other witnesses were lying because their was different from the testimony defendant’s. The State that the argues defendant waived because, this issue of the numerous instances of such cross-examination cited on appeal, three were only ob jected to at trial and the issue was not one of the 66 raised in defendant’s three post-trial motions. We have recently affirmed the that, principle even in a case, to capital pre serve an issue for an appeal, must objection be made at trial and raised in a post-trial motion. v. (People Enoch (1988), 176, 186; Ill. 2d v. Crews 2d 274-75.) The failure to properly an preserve objec tion wül limit our review to certain constitutional issues, on questions of the sufficiency evidence and issues involv error. ing plain (Enoch, 122 2d Ill. at 190.) Therefore, un less error is plain involved, this issue is waived. The plain error doctrine will be invoked when the evidence is closely balanced, or if the error is of such a magnitude accused is denied a fair trial. impartial People v. Britz 446, 472; People Gacy (1984), 103 Ill. 1, 28.

The defendant testified that he at spent evening the lake fishing and had to do with the nothing murder. This was contradicted trial, evidence presented at Turner, an

which included of Michael testimony acquaint- sister-in-law, ance stated they defendant’s who murder, saw the defendant in Hines’ car the night and two of the defendant’s cellmates who heard the defendant what had on the explain happened night trial, the crime. At to have the prosecutor attempted between his explain discrepancies story and the of the other witnesses. The defendant testimony he cites a number of instances where claims the ques- tioning was improper.

First, officer testified arresting when Michael, to the Turner home he went asked see but “I’m if the defendant over here interjected, you this, me.” Turner that he want When denied said he was asked if the officer the truth. Defense coun- telling sel but no was made and the defendant objected, ruling did not answer. that his raped

Michael Turner next testified brother and killed the asked his brother would girl. why When this, that he did not know. stated say

Defendant testified that at the time of his arrest also Yet, one of he did not know he had been arrested. why cellmates, testified as to his Harold what Meyers, hap- on 13 and claimed that he learned the details pened July after his arrest. On cross-ex- shortly from the defendant the offi- amination, arresting the defendant stated that cer must have the information. given Meyers also testified that while

Meyers jail him to Michael. The note said that a note to gave give on Hines and outlined should blame they everything A handwriting what Michael should testified say. expert trial, the that the the defendant’s. At writing was the note and said he did not defendant denied he wrote know would that he had. why say expert after defendant arrested and taken

Shortly a razor to his court, he was found with blade taped shoulder, hem, and a knife- a fork his and wire pant like he testified were instrument. When asked if he was the vic- Meyers’, prosecutor perhaps tim of some The defendant conspiracy by Meyers. him must have to be agreed Meyers planned The officer who found the testified that caught. weapons remarked, “You took from my toys away defendant me.” can The officer that “those kinds responded toys health,” the defendant re- be to which dangerous your “Not to mine.” The defendant denied that he plied, made such statements and said that he did not know the officer why would them. say

Michael Cox testified at trial that he seen defend- had ant in Hines’ car the of the crime. asked night When that, Cox would why say defendant testified that did not know. The defendant’s sister-in-law also testified that she saw him in Hines’ car. When asked if he had an for her explanation he said “no.” He was also testimony, her, asked if the should jury believe and he said he was not whether to her saying believe or not. Defense coun- sel then objected when the State if asked she was reli- able. The objection was overruled but defendant not did answer the question.

The prosecutor asked defendant if he denies tell- ing Meyers about specific events The evening. defendant denied a murder with him. discussing When asked again information, how Meyers obtained Later, said that he did not know. he was asked if he felt that everyone conspired against had him. Defense counsel objected and was over- objection ruled, but no answer was he answered in given. Lastly, the affirmative when asked whether the were tell- people ing untruthful him. In things about closing argument, used this prosecutor testimony to out to the point Turner had no for the explanation witnesses who testified him. against of cross-examination is propriety left largely

the discretion of the trial judge and he will not be re versed absent a clear abuse of (People discretion. 98, Burris 49 Ill. (1971), 104; 2d v. People (1958), Izzo 203, it is 212.) Though generally improper 14 Ill. 2d on the verac to ask defendant’s prosecutor opinion Riley (1978), v. (People 63 Ill. of the other witnesses ity 176, prosecutor 3d it does not that App. 185), appear v. (See People the defendant. humiliated or embarrassed Lyles (1985), Instead, 402.) attempted him his of the overwhelm light to have explain story that the trial evidence. We fail to find ingly conflicting court its discretion this allowing questioning. abused Dowd (See People v. 101 Ill. 3d 844.) App. that was so bal closely Nor do we believe evidence as to magnitude anced or that error was of such any Wilson a fair trial. deny 804. App. the prosecutor’s The defendant next contends that overstated the relia- during closing argument comments that no objection of certain evidence. He concedes bility error. A trial, made at but contends there was plain hair pubic forensic scientist testified that he compared defendant, Hines and Michael with hair samples found in of the victim. The witness con- combings pubic defendant, from the cluded that three have come may from Michael five have been from Hines and one may Turner; however, he to positively identify was unable During closing argu- hairs as those of the defendant. ment, argued: the prosecutor of these hairs are simi- expert] testified some

“[The Hines, of them. Three lar in characteristic as Daniel five in characteristic with the Defendant of them are similar in charac- one of them was similar Robert Turner. How he talked the fact teristic with Michael Turner and about if identify you that he could not and he indicated the standards that he any had more hairs from you these nine hairs could have been could not rule out from the or that one of the three Defendants but victim Hines, Turner and Michael place he does Daniel Robert combings in these off of victim pubic Turner’s hairs Bridget Drobney.”

In he argued: rebuttal can exclude testify you that expert] heard “You [the in charac- are similar that the hairs you say or can people *** know where doesn’t He people. teristic to certain you if had say from he did nine hairs came but those could have come they standards samples more come from either [they] could have Bridget Drobney, from can is that say he the three Defendants. What one of to Robert hairs are similar characteristic three of those al- assurance that it’s enough it with say Turner. He can not testimony. specula- Its here as presented lowed to be *** Daniel Hines hairs of know how the five tion. [W]e pubic into the got Turner the three hairs of Robert and know of the we combing Bridget Drobney of because hair against her.” crimes committed re- when he also included the hair sample The prosecutor the which against cited the list of evidence should consider. jury these were misstatements contends that

The defendant victim, him to the connecting evidence the only physical error to mischaracterize pubic and claims that it is plain the establishing identity as conclusively hair evidence 3d (1987), App. v. Linscott (People defendant. inferences were The State counters that reasonable 71.) the re and that testimony, made from the evidence that the hairs were prefaced stating marks were twice “similar in characteristics” to defendant’s. Ill.

In v. Linscott People (1987), App. when mischaracterized the evidence clearly prosecutor that a swab indicated jury vaginal told nonsecretor, a a whose person victim had been raped by fluids, in his body cannot be detected blood type This evidence was that the defendant was nonsecretor. one testified that no made because up by prosecutor material found or that the seminal the victim was raped also character a nonsecretor. The prosecutor came from identical to the victim as hairs found on ized the pubic testi no such there had been Again, the defendant’s. made, the court held no mony. Though objection the evi- applied error doctrine because the plain dence was closely balanced and the mischaracterization of the evidence influenced the likely jury and deprived the defendant of a fair trial.

The situation in this case is distinguishable. First, there was ample linked the testimony Second, crime. the prosecutor twice stated that similar hair evidence possessed characteristics, not that it was identical. The prosecutor may draw reasonable inference from the evidence, and the can evaluate jurors the inference in of their recollection of light own the evidence. (Pe v. ople Jones 123 Ill. 2d 411-12; Collins 278.) We do not believe that was misled or that the prosecutor’s argument constitutes error, reversible or that the prose cutor’s comments constitute plain error.

Defendant also claims he was denied a fair trial when the made prosecutor unnecessary highly improper attacks on the defense bar. no Though objection trial, made at the issue was in included the mo- post-trial tion and on the defendant claims appeal plain error ap- plies. State that at it argues most made a disparag- ing comment a about the defense counsel “yarn” told the and that it was not jury accusing defense counsel of unethical behavior.

At the end of defense counsel’s closing argument, told the a tale to jury illustrate should not be the of in swayed by appearances guilt the case because appearances be He the may deceiving. told about jury his great-great-grandparents who lived in long ago rural Iowa. an During winter, cold especially the husband be- came ill and the wife had to take him 20 miles to the nearest doctor. She left her home, at under baby the of protection their faithful dog. returned, When she the home was a shambles and the dog and near lay bloody death. Because she could not find the she assumed baby, the had killed it dog and in a fit of she shot anger dog. then did she Only hear the baby and when she cry, found the there a baby, lay dead wolf. nearby Though it

561 it had in the baby, killed dog to her that appeared from wolf. baby fact saved stating: rebuttal, began by

In prosecutor I can you think of gentlemen “Ladies and that what instruction you’llget to see an begin now [that] I in this case. or law is not evidence attorneys say we Attor- I was State’s defense work before have done some I felt to do it I didn’t like because quite frankly ney de- enough good to be exaggerate that I could never should And, wonder if we I sometimes attorney. fense for sto- place This is not a closing arguments. ever have story any- I believe wolf quite frankly ries and don’t story” the fish more than I believe counsel of defense it is to accuse improper Generally, 97 Ill. 2d (1983), and fraud v. Emerson (People perjury 317, 324; 487, 497-98; (1977), v. Monroe People 468; v. Po People Ill. 2d v. (1974), Stock defense or to characterize 348) lenik v. Rushen (Bruno or underhanded counsel as unethical But 1983), 1195). analyzing 721 F.2d (9th Cir. statement, read in con it must be any the propriety context, comment, taken in may text. The prosecutor’s to the involved overexaggeration have directed been attack on the ethics or tale and not meant as an wolf a con will not reverse tactics of defense We attorneys. de has been justice viction it does not appear where from an error. resulted finding guilt nied or that 322, 343-44.) Ill. 2d Richardson (People did not deny this statement Certainly, error. no more than harmless fair trial and was his next claim concerns evidence of at- Defendant’s court denied two mo- after arrest. The escape to tempt to exclude evidence which established tions in limine after his ar- court appearance that at defendant’s first The offi- of weapons. found with a number rest he was that defendant testified weapons cer found the who weapons. the concerning remarks incriminating made had that testified Defendant’s cellmate from the escaping himself and then on planned injuring hospital, and had said that he kill who would anyone tried to In him. the stop closing argument, prosecutor used this to incident describe the defendant as “cold and No was this calculating person.” objection made to use of the at trial, evidence nor it in the included post-trial motions.

The defendant that evidence of an at acknowledges to is tempt admissible for escape establish purposes v. charged (People Yonder ing guilt the crime (1969), 376, 392), Ill. 2d but claims it was error to also plain allow into evidence that planned defendant on injuring people during escape. We There was com disagree. petent evidence that the defendant had dangerous weap ons and that he their acknowledged dangerousness if would use them It was not an necessary. error present facts circumstances at surrounding his (People v. Gambino tempted 29, 12 Ill. escape. (1957), v. People Lawson 32; (1928), 393.) Clearly, we need not decide that the evidence constituted plain error. also claims that failure to in- give an

struction that should jury consider evidence only to establish was an guilt error because ar- during closing gument the State used the to comment escape attempt on the defendant’s character. Defendant ar- therefore that it gues is likely convicted the defend- ant based on his criminal propensity.

The defendant failed to in tender the suggested jury Criminal, struction Pattern (Illinois Instructions, Jury No. 3.14 (2d 1981) (IPI 2d)), ed. Criminal but argues should have sua sponte given the trial judge instruc tion. It is the burden who desires party specific instruction it it to the court and present request v. Britz jury. (People given be 123 Ill. 2d (1988), v. People Underwood 446, 475; 72 Ill. 2d Parks 129; 137.) Gener ally, situations where a fair trial only requires to sua sponte court offer an instruction include “seeing the crime that the instructed on the elements of jury is innocence and on the on the of charged, presumption 2d at The trial (65 137.) of burden of Ill. question proof.” IPI error in to tender Crim failing court did not commit of inal 2d 3.14 it involves none these issues. No. because to tender the instruc Therefore, the defendant’s failure this objection. tion waived se raises a number of other objec- pro

The defendant First, tions to the trial he claims that proceedings. on his post-arrest commented

prosecutor impermissibly cross-examination, to silence. right During first time he indicated what denied that at trial was the nine be, his defense he told the State claiming would months earlier his on the 13. night July whereabouts The then asked: prosecutor

“Q. you’ve any- This is the first time that ever told here body your attorney you going say but what were stand, on the isn’t it?

A. far as publicly, yes. As

Q. talked officer in this case? police You’ve never with a A. No.

Q. telling morning You are this that as of the jury arrested, were ar- you you you were didn’t know what rested for.

A. That’s true.

Q. when he you say What did to Officer Zirkelbach you? came in to arrest anything

A. I don’t to Officer saying remember Zirkelbach.

Q. it a fact that he came in and said he when Isn’t Michael, said, you looking wanted that ‘Here I am. You’re for me’?

Q. No, it is not.” The on his silence commenting defendant claims indicated to the that he was his defense making up not tell it to officers after his ar- because did police it within the realm argues rest. State was at trial defendant was permissible impeachment because the time of the arrest his innocence but at claiming guilt. (People statement an was indirect admission of Rehbein v. McMul 74 Ill. 435, 442-43; 2d lin 877.) No App. objection trial, record, made at and on review of the it appears could have prosecutor been either laying foundation the defendant impeach with officer’s that defendant made testimony incriminating remarks arrest, or he upon could have been out to trying point that because defendant had never his given earlier, alibi to the he was one police making up. Though it is to comment on a improper defendant’s post-arrest silence (Doyle v. Ohio 610, 618, 426 U.S. 49 L. (1976), People v. Green 91, 98, 2240, 2245; Ed. 2d 96 S. Ct. 444, (1979), 449), the evidence is not so closely that balanced error Even plain applies. comments which be do not may improper constitute reversible error un v. Britz (People less result in substantial prejudice. People v. Collins 123 (1988), 446, 472; Ill. 2d 106 (1985), 237, Ill. 2d 276.) We do not error, believe that if any, was anything harmless, more than and it did not deny the defendant a fair trial.

Defendant next contends that his sixth amendment right to counsel was denied because his was not attorney present during photo However, to Michael Cox. display no to the objection photo showup was made at trial or in v. Enoch a post-trial motion. As in noted (1988), 122 176, 186, Ill. 2d must objection be made at each of these in the stages Therefore, proceedings. this objection (People Enoch is waived. 122 176, Ill. (1988), 190.) Nor does this rise to the of level error plain because photo showup. United there is no to counsel at the right States v. Ash 413 U.S. L. 37 Ed. 2d 619, 633, 93 S. Ct. 2579.

In a related argument, contends he was denied a fair trial because Cox’s identification was not reliable and because since the time of the origi- nal photo Cox had a number of showup occasions to see the defendant. No was raised at objection trial, though in motion. Cox testified this was included a post-trial car on the of night that he the defendant Hines’ saw trial the murder. Several months before Cox a number pho- hired an who showed investigator Turner, alleg- Michael but tos. Cox identified Hines and trial, the defendant. Before identified edly improperly At Cox the same photos. the State’s showed Attorney of the defendant. trial identified the properly photo Cox that he had earlier misidentified defend- He denied had identified to ant, instead that the claiming photo since as the defendant must have been investigator At- of someone else. The State’s photo switched with on num- photos remarked that were torney placed bered cards and that it was have possible they may been switched. testi

There were a number other whose people the defendant at the scene of the crime and mony placed fact this identification Hines’ car. The witness’ to the may questionable go weight have been would v. Allender (People of his credibility testimony trial. Ill. 2d and not to the denial of a fair 44), he a fair trial when The defendant was denied alleges in front of the a photo display prosecutor “ripped apart” that the it does not reviewing appear the In record jury. oc- handling or of the evidence any improper destruction the defendant’s curred. The cross-examined prosecutor Schuster, attempt explain Mr. an investigator, The the defendant’s photo. Cox’s misidentification of off asked whether a could have fallen photo prosecutor the and an- photo the and whether defendant’s display testified other looked similar. The witness very photo The each other. closely prosecu- that the two resembled the that he to remove two tor then be able requested were attached to and to from the pictures papers they said he did not them to the Defense counsel jury. show the way and like them left damaged want them would were not that the pictures were. The court noted they the jury. to show them to and allowed counsel damaged had the consent and he did not prosecutor court’s Therefore, the a new trial is not “rip apart” photos. warranted on this ground.

Turner next claims that he was denied a fair trial be- cross-examination, cause during prosecutor ques- tioned him all regarding fact that had access to defense, and had months to discovery prepare implication being making that he was his defense. up There was no trial objection these at questions fails to cite for the any authority proposi- tion that the comments were fail to see improper. We what constitutional was this right alleged violated misconduct, nor can we it de- prosecutorial agree him a nied fair trial.

In Turner’s last objection regarding guilt-inno trial, cence of the he contends certain phase photos of the victim and the scene of the crime not should have been allowed into evidence im because their prejudicial However, their pact outweighed value. we can probative not determine its whether trial court abused discre tion in them into evidence because he does not allowing which identify were are photos objectionable not included in the record on appeal. People v. Edwards (1978), 74 Ill. 2d 7.

The defendant’s next objections relate to the second phase trial, the sentencing hearing, where the the death jury imposed Turner first contends penalty. it evidence, allow into improper through officer, of a the confession of testimony police a code fendant which Turner. The usual implicated rules govern of evidence not ing admissibility do at the sec apply ond of a phase sentencing case. hearing capital Instead, the test governing at this is admissibility stage (People whether evidence is relevant and reliable. Johnson People v. Free 253, 284-85; 128 Ill. (1989), 2d People v. Davis 378, 422-23; 94 Ill. (1983), 2d 95 (1983), 1, Ill. 2d 37.) Hearsay which meets the rele testimony vance and test is at this of a reliability stage admissible sentencing hearing. v. Foster People 2d 69, 98-99.

In 487, 521, Rogers (1988), 123 Ill. 2d we extended Lee v. Illinois 530, U.S. 90 L. Ed. 2056, 106 S. Ct. and held that the sentencing hearing confessions of an which incrimi accomplice nate the defendant are unreliable and presumptively evidence, should not be admitted into unless sufficient indicia of exist to overcome the reliability presumption. Rogers new required sentencing hearing when the jury was allowed to hear confessions of two taped codefendants. court found that there was a strong presumption because it was unreliability likely the codefendants had an opportunity contrive their defense, the statements did not interlock with the defendant’s statement or other evidence on significant of the aspects offense involving the degree of the defendant’s planning and participation, and one accom had a plice significant criminal history.

In determining reliability confession, Hines’ it is important it in analyze light other testimony and evidence. There are five essentially accounts of the events on 1985. The July defendant contends that he, early evening his brother Michael, and Hines went He fishing. claims that less than an hour after ar- Michael riving, and Hines went into town to get some The two supplies. returned and fished for an they hour and then left the time again. During were he they gone continued to fish. Four or five hours later Hines and Michael came back and the three went home. He claims unaware of the murder until his arrest.

On July 1985, the defendant was arrested. In his cell were a number of people, one of whom was Howard At Greenlee. the trial on 18, 1986, June Greenlee testi- that, fied he overheard conversations in which the defendant discussed the crime. According Greenlee, he, defendant said that Hines and Michael Turner smoking had been marijuana and drinking when de- to a car A was used light pull cided to some “get pussy.” Hines over to the side of the road. defendant and into cornfield. In the driver, took the a a young girl, cornfield, the so her a num- girl struggled they slapped and continued to ber of times. The two then her raped not The defend- her because she would punch keep quiet. her. the ant said he then went “nuts” and stabbed When cut throat. Hines sup- victim still tried to scream he her after girl went to the car the had been back posedly stabbed. that cellmate, testified

Another Harold Meyers, he him after defendant’s arrest told the events shortly said evening. According Meyers, the defendant a that them came with the idea to flash up the three of a in it. When girl red and to car over with light pull it and car, they the victim’s over they pulled spotted to their car girl Hines out. Hines back got brought and and held down in the backseat the brothers her then her a knife. Hines and defendant threatened with re- took the to the cornfield and Michael Turner girl cornfield, In Hines mained the road as lookout. by her first. The defend- slapped girl raped around and her ant also around and had oral sex with then slapped girl her. The stabbed the and told Hines defendant her, also but Hines did not stab her because stab and with the act. Hines then left go through unable to her left. The victim made cut throat and noises cut her throat. after defendant gurgling brother, that Turner, Michael the defendant's testified he, fishing While fishing. his brother and Hines went the other end of the lake people saw a at they group Hines that should they and decided them. said join them defend- take and if the males tried to girls stop ant or stab them. As they approached, should beat However, they his machete. before swung Michael could reach the drove group, people away. picking up Hines who discussed testified it was not would necessarily saying they some girls, though them, could it use of a red light and do rape they he had. Hines said the three could a car over to the pull side of the road the red by using light pretending said that police they were officers. Hines could they that tried to them. grab girls any guys stop stab lake, After left the to Hines’ house they they drove and retrieved the red The three then drove around light. a number of automobiles and following occasionally park- road, on the side of the for an ing looking appropriate victim, car. Hines and as spotted Eventually, followed her defendant on the dash and put light it Hines in. When Hines plugged Drobney stopped, got out of the car and asked for her license. He to returned the car defendant, with the license and it to who gave pretended he was a officer the license police reading number into a CB radio. Michael he no said wanted part back, what was on and his going hands behind his put as he was a handcuffed acting though prisoner. Hines then told she would have to come Drobney them, with and he took her to the car and her in the put backseat. All testimony corroborates that Michael Turner had no abduction, active or part murder. rape Michael, to to According drove a cornfield and they pulled car the side of the road. Hines and along car, minute, defendant left the talked for a and Hines then told Michael and to out. Hines Drobney get and defendant, started walk down the road and Drobney officer, still an pretending be Michael into a pushed and said to wait there. Defendant went to where gully Drobney Hines and were The two of them held standing. arms and walked her into the cornfield. Michael separate could hear Hines tell her to sit down and he heard some sort of a groaning sound. Both men were in the cornfield for a and each while came out and asked if Michael them, wanted to he join which declined. One time when back, defendant came he commented Hines was and he did not think crazy Hines was serious. Defendant if also said that he was it going jail would be for to the then returned he done. Defendant had something and gave for a moment Hines came out cornfield and Michael was going items. Drobney’s Michael a number of Hines said to culvert, put in a but the things to stuff Michael returned and he and in the car. Hines later them for it around. Hines yelled in the car and turned got he would be out, he responded to come but more times a number of in a minute. Hines yelled out noises” and a couple “dumping then heard that he thought to Michael sound. Hines said gurgling ex- The defendant knocked out. Drobney the defendant knife in his hand. the cornfield with a ited quiet, defendant was along, As the three drove he had things about the different Hines talked though items most of Drobney’s threw Drobney. They done to station, to a gas car. then They proceeded out of the money with gas cigarettes where Hines paid that on Michael claims from Drobney’s change purse. Drobney by him- had küled told Sunday, that he and defendant He also testified stabbing her. that he told Hines home and defendant went to Hines’ had her. stabbed hear- sentencing not at

Daniel Hines did testify of- through police his confession was admitted ing, but the Turner states that he and ficer. The confession After for a number fishing went fishing. brothers even- for a while in his car and hours, drove around they house, At Hines’ defend- to his house. went back tually dis- the three light ant a red because portable retrieved like that, police act cussed earlier as a could joke, they cars. They again to in their light stop people and use the a around, girl for a car with looking drove this time it, car followed they it. they spotted Drobney’s When the dashboard the red on light and the defendant put to the side of the and turned it on. The car over pulled for driver’s license. As road and Hines asked Drobney’s of the car and this, out doing got Hines back to his car car. went approached Drobney’s her to and the defendant told that she had come with them. She was in the of the car and Hines placed back to him drove where defendant told over. The pull three men out car. told got of the The defendant Drob- get out and he her 50 to 100 ney yards walked about the road. caught down Hines to them as were up they into walking the cornfield.

Hines claimed that the three having never discussed her, sex or first girl killing with and he realized “something was when into the corn- up” they walked Hines field. claimed that the defendant made her un- dress and he acts performed number of sexual on her. The defendant then if asked Hines wanted to do any- to her. Hines

thing claims that he faked inter- having course, and while this he saw defendant doing holding a 10-inch knife. Hines left the cornfield and told Michael that the defendant wanted see him. After Michael re- turned, Hines went into the and cornfield told the defendant should leave. The they defendant was again intercourse having Drobney with and he told Hines to return to the car. Hines While and Michael waited at the road, called for the they defendant to leave. He heard for girl air and gasp scream. Hines and Michael the car turned around and yelled for defendant. Hines claimed it seemed like another 25 minutes before defendant left the this eventually During cornfield. time sounds seemed to indicate that the defendant was tortur- ing and strangling Drobney. When the defendant left the he was cornfield number carrying of Drobney’s posses- sions. Defendant said that he knocked the out girl she would be unconscious for a of hours. The couple two then brothers went her through and when purse they stopped gas, paid brothers for it. following Michael Tuesday and defendant came

to Hines’ house. At time, this Hines first learned that defendant murdered girl. Hines claimed that the laughed as he joked discussed how he did it. The defendant also said that disposed Hines’ of the crime. night had on the

clothes worn they or not he itself as to whether contradicts confession the murder. following clothes burned his sufficiently the confession is contends State testimony. other by it was corroborated reliable because differs, must es- we evening account of the each Though codefendant’s a admissibility scrutinize pecially and here, it minimizes his own role when, as confession attributes the defendant. Hines to greater shifts blame other defendant, though acts to the numerous significant the act that Hines either committed indicated testimony Hines, to According responsible. or at least partially was and took the red entered Hines’ house the defendant and told left the car unexpectedly light; them; the defend- have to come with she would Drobney her the defendant took go; Hines where to ant directed the corn- the road to and walked her down out of the car idea what was Hines had no field, and, until this point, and the acts of on; physical did all the defendant going that Hines the one time faked abuse, other than sexual from items intercourse; took personal the defendant and car; in the the defendant them and Drobney put Hines had no idea she was her Michael stole money; about laughed joked until the defendant murdered it is testimony, likely Based on Hines’ what he did. and main the ringleader defendant was believed that none of the acts Michael claimed actor, even though if it not for Hines. occurred were would have from other account is different significantly Hines’ Rogers and, as in ways accounts important 487, it limits his own role while shift confession fails to to the defendant. Hines’ blame ing when he to the events at the lake make reference any and he told saw girls they nearby abducting discussed if tried to to or stab the males beat light the idea of using Hines claimed that them. stop Yet, it is difficult to meant as a joke. to stop people the three ab- planned had no idea that that he believe duct a Other girl. indicated that all testimony evening they planned get girl using light her pull over, car and, to according Michael, they spent long time around and a car driving before found parking with in Nevertheless, one it. Hines’ stated girl confession he had no idea that was until anything up they brought into the cornfield. It Drobney also seems that all unlikely Hines did was once fake intercourse that he did not in the participate assault, or that he had no idea physical of the harm done to her until later. Because Hines days did not testify, defense was unable to cross-examine him on these differences, inconsistencies, and things left out.

We do not believe that there are sufficient indicia of to overcome the reliability that presumption code- fendant’s confession is unreliable. This confession should not admitted, have been case- should re- be manded to the circuit court of so that Macoupin County the second phase sentencing hearing can be con- ducted anew.

The defendant raises a number other objections his concerning but we sentencing hearing, because have determined that there will be a new it is hearing only to necessary address those issues which might appear at the again hearing.

There are a number of to the constitution challenges ality statute, our death which this court has penalty resolved. Due previously does not that process require the State prove beyond reasonable that there doubt are no mitigating factors sufficient to preclude imposi tion of the death v. penalty. (People Johnson 119 (1987), 119, 151; Ill. 2d v. People King (1986), 514, 109 Ill. 2d 546.) There is no impermissible burden of proof placed upon mitigating (Peo establish factors. v. ple Orange (1988), 364, 390; 121 Ill. 2d v. People Whitehead 116 (1987), 425, Ill. 2d is the 465.) Nor stat ute or arbitrary capricious in its application. People v. v. Kubat People 119, 151;

Johnson 119 Ill. 2d (1987), 94 Ill. 2d 503-04. (1983), instruc also to certain objects jury

The defendant that it is not improper our decisions tions. We affirm nor prejudice that neither jury sympathy instruct v. Crews jury. (People (1988), should influence the People Orange 266, 291-93; 2d an instruction should be Next, he contends that 391.) ei death, he will receive if not sentenced to given have no or a fixed term and will ther a life sentence v. Albanese Ill. for In parole. chance error for the trial that.it was not an we held death the alternative to instruct the jury judge not the term term, specifying but prison would be a “the was reasoned that was life We imprisonment. the death penalty whether choosing only responsible sentence of a prison not applicable, severity to inappropriate.” the be found be penalty should death v. Stewart People 81; (1984), 102 Ill. 2d at see also 22, Ill. 71. 2d King Lynaugh (5th v. Cir. relies on

The defendant reasoned that in a 257, the court 828 F.2d where 1987), dire, voir case, may inquire during capital which may laws bias parole into about preconceptions death penalty. of imposing members favor venire King to the sen decision this court Recently, applied v. (People Gacho 221, (1988), stage. tencing Gacho, of multiple In the defendant was convicted 261.) that if found they The court instructed jury murders. of to preclude imposition sufficient factors mitigating him to death, imprisonment. would sentence judge instruction that The refused the defendant’s judge sentence, would a life alternative death be only in closing argue he allowed the defendant though in the case of held that instruction We argument. “[a]n if the finds miti jury murders should state multiple of preclude imposition factors sufficient gating sentenced to natural the defendant will be death penalty, of natu a term serving life and no person imprisonment, released, except or life can be imprisonment paroled ral 122 Ill. 2d at 262. clemency.” executive through murders of multiple limited to the case Gacho was life im- death or choices were only sentencing where of In there was also possibility this case prisonment. de- time. We sentence of an indeterminate a fixed-term Albanese and the rationale of cline to from depart concern should that in such situation the jury’s Stewart and not the is directed at whether death appropriate, be are, at that point, alternative choices which sentencing undeterminable. for the

Turner next contends that the convictions in should vacated because offenses be noncapital State responds volve lesser included offenses. The motion to raise it in a the issue is waived failure by doctrine, error we may for a new trial. Under the plain one crime review a claim of convictions which multiple People Dyer is a included offense of another. lesser 20 Ill. 63; v. Casner 3d App. 107, 112. App. as- the defendant of criminal sexual

The convicted A charge sault of criminal sexual assault. aggravated criminal of sexual requires proof pene- sexual assault 1985, Stat. (HI. tration the use or threat of force. Rev. sexual as- ch. criminal 13(aXl).) Aggravated par. 12— the dis- force and penetration by sault requires proof dangerous of use or the actual use of a threat play, Stat. (HI. or harm to the victim. Rev. bodily weapon, argues State 14(aXl), (aX2).) ch. pars. 12— occurred, some of which were that numerous sexual acts aggra- were criminal sexual assault and others which was assault, and that the defendant vated criminal sexual and, accountabil- through of the acts he committed guilty that, Turner argues of the acts that Hines committed. ity, included definition, criminal sexual is a lesser assault by and the jury criminal sexual assault aggravated offense of of separate instruction did not the consideration require acts, nor did the had to prosecution argue jury find acts to each offense. separate support

The defendant’s must Pursuant argument rejected. be v. People King (1977), to the doctrine of 2d 551: “Prejudice results to the in only those stances where more than one is offense carved from the physical Prejudice, regard same act. with to multiple acts, only exists when the defendant is of more convicted offense, are, definition, than one by some which lesser included offenses. Multiple convictions and concurrent sentences should be in all other cases where a permitted acts, defendant has committed the inter despite several ‘Act,’ sense, relationship of those acts. when used in this is any intended mean overt or outward manifestation hold, support which will a different offense. there We fore, that when more than one offense arises from a se ries of closely incidental or related acts and the offenses not, definition, offenses, are lesser included convic tions (66 with concurrent sentences can entered.” Ill. be 566.) 2d at

From the evidence it is to con presented, reasonable clude that both Hines and the defendant committed nu merous criminal Further, sexual assaults. after at least one such act was out a completed, pulled “dangerous knife, his weapon,” further acts of sex ual penetration occurred. There is thus no prejudice this defendant to be convicted for offenses re multiple from his various acts. There sulting were numerous sex assaults, ual harm physical was inflicted and a dangerous victim, was used. “To the weapon each rape ‘readily divisible and each offense is an of intensely personal; ” (People fense against person.’ (Emphasis omitted.) Segara Pruitt v. State 70, 77, quoting 559, 565, 269 Ind. Further, 382 N.E.2d 154.) facts, under these could found the have defend ant of the one guilty count of criminal aggravated sexual assault based on his actions and, under our accountabil 5—1 et seq.), (Ill. statute Stat. ity Rev. ch. par. him found of the criminal guilty sexual assault Hines

577 Therefore, criminal sex- aggravated committed. both must ual assault criminal sexual assault convictions stand. for unlaw

Turner next contends that the convictions cannot stand ful restraint and because kidnapping are lesser included offenses of aggravated kidnapping. knowingly Unlawful restraint occurs when the defendant (Ill. and without detains another legal authority person. 1985, 38, Stat. ch. occurs 3(a).) Kidnapping Rev. par. 10— confines an when the defendant and secretly knowingly enticement will, other her or deceit or person against by to another induces another from one person go place with intent confine that place person against secretly 1985, 38, her will. Rev. Stat. ch. (Ill. par. 1(a).) Ag 10— gravated occurs when there is a kidnapping kidnapping harm, and the defendant either crim inflicts great bodily inal assault, sexual or criminal sex robbery, aggravated 1985, 38, ual assault the victim. Ill. Rev. Stat. ch. upon par. 2(a). 10— argues State that there were sufficient interven

ing acts, occurrences which separate permitting establish It multiple argues convictions. the kidnapping occurred in when victim was stopped, placed defendant’s car and brought to the cornfield. The kid then ended men out of napping got when three car and she restraint oc remained inside. The unlawful curred when the victim was taken of the car and out to the cornfield. brought Presumably, aggravated occurred the cornfield. do not kidnapping accept We the State’s of the events. There was one interpretation it charge event and is sufficient to sustain a ongoing Ill. aggravated (1986), v. Kittle kidnapping. (People 951, 957; People v. Tate 3d App. App. Therefore, the convictions for 200.) kidnapping unlawful restraint are vacated. there a new

Defendant last contends should be it hearing offenses because sentencing noncapital to allow the to hear victim improper impact statement which the victim’s had parents prepared. Defendant claims that the record does not establish that the statement was prepared conjunction with the of fice of the State’s as Attorney, required statute (111. Rev. Stat. ch. pars. 4—1(a)(6), 1406), 1005 — and that such statement any violates his eighth amend rights (Booth v. Maryland ment and due process 482 U.S. 496, 440, 107 96 L. Ed. 2d S. Ct. 2529).

Booth held that introduction of victim impact evi dence was constitutionally impermissible where imposi tion of the death at issue. The penalty was Supreme Court was in explicit limiting cases, its ruling capital and we decline to extend this principle to a noncapital Booth, In sentencing hearing. the Court stated that the full range of foreseeable of a consequences “[w]hile defendant’s actions be relevant in may other criminal contexts, and civil we cannot that it agree is relevant in circumstance of a unique capital sentencing hear (482 U.S. at ing.” 96 L. Ed. 2d at 107 S. Ct. at 2533.) It then went on to note that disapproval “[o]ur of victim statements at impact of a sentencing phase mean, case does not capital however, this of in type *** formation will never be in relevant context. any Facts about the victim and also family be relevant may in a criminal noncapital (482 n.10, trial.” at U.S. 507 96 n.10, L. Ed. 2d at 451 107 S. Ct. at We hold n.10.) this statement allowing at the noncapital sentencing did not violate hearing the defendant’s constitutional In rights. light the strong evidence of we guilt, find the error in the admission of this evidence was not reversible.

The convictions and sentences for crimi- aggravated nal assault, sexual criminal assault, sexual and aggra- are affirmed. kidnapping vated The convictions and sen- tences kidnapping unlawful restraint are vacated. The conviction for murder is affirmed. How- ever, the sentence of death for murder is vacated and is cause remanded to the circuit court of Macoupin conviction on the hearing sentencing for a new County of murder. in part; in vacated part;

Affirmed vacated; sentence death cause remanded. in the consider- CALVO, JJ., took no part ’WARDand or of this case. ation decision and dissent- MILLER, concurring part

JUSTICE ing part: of the defendant’s

I concur in the court’s disposition however, that a new sentenc- I not agree, convictions. do case, in this for I do not believe is ing hearing necessary re- testimony that error occurred in the introduction of second stage confession at the accomplice’s lating I dissent Accordingly, the capital sentencing hearing. from that of the majority opinion. portion of accom- believes that the confession majority Daniel Hines was reliable warrant insufficiently plice as of the State’s case in part its admission into evidence the second aggravation during phase sentencing details, As heard hearing. majority opinion to the five accounts of the events that led separate in the of the in. this case. tragic Testifying death victim brother, the defendant’s State’s behalf at trial were defendant, Turner, cellmates of the Michael and two Turner and Harold Michael Meyers. Howard Greenlee and Hines the victim was was with the defendant when and he a detailed of the provided description kidnapped, murder. following and victim’s events preceding Turner was not when the defendant present Michael however, murder, and evidence of what committed the time was provided by Meyers occurred during to certain statements Greenlee, inculpatory who testified while he was the Macoupin made by instant charges. trial on the County jail awaiting trial, complicity testified at and he denied all assault, and murder. in the victim’s sexual kidnapping, Finally, during second of the defendant’s phase capi- tal sentencing hearing, State Hines’ con- presented fession, which was read to the a law enforce- jury by ment officer.

The rules of trial evidence do not govern second of phase a death to the de penalty hearing. Subject v. Florida (1977), Gardner mands of due process (see 349, 430 U.S. 393, 51 L. Ed. 2d 1197), S. Ct. the only requirements the introduction of limiting evidence at of the stage are that proceedings information be relevant (See reliable. Ill. Rev. Stat. 1987, 38, ch. v. 1(e); People Free par. 378, 94 111.2d 422- (1983), 9— 23.) That determination “rests the discretion of the v. (People Hall trial court.” (1986), 114 Ill. 2d 416- 17.) Hearsay testimony does not fit within a recog nized to the rule not exception is hearsay automatically rendered at inadmissible the latter of a bifurcated stage capital sentencing hearing, nor does its introduction nec a defendant essarily deny right to confront wit v. (People Perez nesses. Con 86.) sistent with those principles, this court has held that introduction, at the second of a stage sentencing capital evidence hearing, hearsay statements concerning by nontestifying accomplices does not violate a defendant’s (People Lyles (1985), 106 Ill. 2d confrontation rights. 373, 414-16; v. Davis I 47.) would hold that the requirements were satisfied in this case with to Hines’ respect confession. confession,

In his Hines denied having an active part in the planning offenses, and he stated that was not present when the defendant the mur- committed der. it Although that Hines’ appears account his own role in the victim’s was different from the kidnapping accounts provided Turner, Michael by Greenlee, Howard and Harold Hines’ Meyers, statements his ab- regarding sence from the scene during defendant’s murder of the victim were corroborated the testi- substantially of those other mony witnesses. Michael Turner testified

581 the the car while at waiting Hines were that he and They the victim. field with in the remained sometime field, the hear from to sounds were able Turner car. Michael to the returned later the defendant un- murder of the victim’s he did not learn testified that Michael what told the defendant til the next when day, knife the that he driven The defendant said he had done. his twice, the using palm neck the victim’s through the defendant also testified that Michael Turner hand. later; on the murder several days told Hines about he had the explanation the defendant repeated occasion the vic- Turner regarding to Michael given previously of the murder The defendant’s account tim’s murder. at introduced the evidence by autoptic was confirmed cause of the victim’s the trial, which established to the neck. death two stab wounds was the instant case from I distinguish would Ill. on which the majority Rogers (1988), In was Rogers prosecution reliance. places principal stage into evidence at the second introduce permitted ac confessions made two hearing of a death penalty conflicted with the defend whose statements complices, respects. important ant’s own confession several the plan maintained in their confessions that accomplices originated in that case had and kill victim rob defendant, claimed that had at and they with from discourage committing tempted in his stated defendant, confession, the offenses. The him had instructed to kill the accomplices that one of Tape recordings committing robbery. victim while to the confessions were dur played the accomplices’ death penalty of the defendant’s stage the second ing cir that the most serious argued hearing; prosecutor cold-blooded aggravation planning cumstance crimes, and he the ac presented that had preceded as evidence of who had been confessions complice in the commission of the offenses. force motivating Lee v. Illinois Citing U.S. 90 L. Ed. in Rogers noted that 106 S. Ct. the court accomplice confessions a defendant are incriminating unreliable, presumptively and the court characterized as “particularly strong” the of the presumptive unreliability two confessions introduced at defendant sen Rogers’ (Rogers, 123 Ill. 2d at tencing hearing. It 521.) appeared that the two a male accomplices, and female who were romantically time, involved at the would have anticipated their arrest in connection with the impending offenses and therefore could have made advance preparations their Moreover, interrogations. we noted that the male accomplice in his “extraordinarily statement claimfed]” to the that he police although had the defendant supplied with the murder weapon several before the crimes days and the defendant when the accompanied offenses oc curred, he. attempted discourage the defendant from committing the crimes. (Rogers, Rog 522.) 123 Ill. 2d at ers also referred to the prosecutor’s at the explanation that he sentencing hearing was record presenting tape statement, ing rather than the live accomplice’s because of the testimony, witness’ demeanor. poor We stated, the con “Essentially, prosecutor apparently cerned that not jury might believe male accom [the if (Rogers, could him plice] see testify.” at 522.) The court concluded that of un presumption had not reliability been overcome with to either respect accomplice’s confession and therefore ruled that the cir cuit judge had erred in state admitting hearsay ments.

The accomplice confession in this case is not similarly unreliable. Hines’ claim that Although he was not aware of what the intended to do to the victim until reached the group cornfield was contradicted evidence, State’s other Hines’ assertions that he was not present during murder and was not immediately aware of the murder were substantially corroborated. The trial of Michael testimony Turner, Greenlee, Meyers established the defendant was alone when committed murder Hines was with Michael at the Turner car during period. Contrary to the view, Hines’ majority’s portrayal “the as and main ringleader actor” the commission of the crimes Ill. (128 2d at is not an 572) inaccurate sum mary of what occurred. I do not Accordingly, believe that error occurred in introduction, at the second stage of the defendant’s capital sentencing hearing, the testimony relating confession, Hines’ I and would up hold the trial decision judge’s permit to hear that information.

Case Details

Case Name: People v. Turner

Court Name: Illinois Supreme Court

Date Published: Apr 20, 1989

Citation: 539 N.E.2d 1196

Docket Number: 63937

Court Abbreviation: Ill.