*1 distinction, other crimes. this Recognizing defendant’s decides it will not consider defendant’s as- majority serted error on the narrow issue of the admissibility seizes this victim statements. It nevertheless impact op- on this with the Court rule portunity “align [itself] subject.”
I has acted deciding, believe that so majority, stroke, In one prematurely. majority appears broad and settled of law in significant principle overrule I so Illinois. would advocate a more on prudent approach an issue. This reconsideration of the important court’s victim statements is admissibility Payne-type impact case, better left to a future time and where the parties on each side of the issue have been afforded the benefit of full and fair opportunity argument.
(No. 65249. ILLINOIS, THE PEOPLE OF THE STATE Appel OF lee, WILLIAMS, v. DENNIS Appellant.
Opinion 17, 1991. Rehearing October filed March 1992. denied *17 CLARK, J., concurring.
Charles L. Burns, Click and Martha J. of Chicago, and Scott R Shepherd, Philadelphia, Pennsylvania, for appellant.
Neil F. Hartigan, General, of Attorney Springfield, Partee, and Cecil A. State’s Attorney, Chicago *18 (Terence Madsen, General, M. Assistant of Chi- Attorney Goldfarb, and Renee cago, Assistant State’s Attorney, Hartón, and Maureen A. Special Assistant State’s Attor- ney, for the counsel), People.
JUSTICE FREEMAN delivered the of the opinion court: in
Following trial the circuit court of Cook jury defendant, County, Williams, Dennis was convicted of murder, aggravated and kidnapping, rape. Defendant to concur and the murders death for was sentenced the remain for each of 60 years terms of rent extended contention, defendant’s affirmed over We ing offenses. assist the effective denied alia, that he had been inter pe of defendant’s During pendency ance of counsel. of matters court aware this became rehearing, tition for of counsel. ineffective assistance the claimed relevant for and deter rehearing, petition defendant’s We allowed the granting of justice required that the interests mined 309. 93 Ill. 2d trial. v. Williams of a new the circuit court of trial in jury a second Following counts of of two defendant was convicted Cook County, aggravated and counts of murder, one count of two rape, sentencing and was jury Defendant waived kidnapping. and concurrent the trial court to death sentenced by (134 sentence was stayed terms of 30 The death years. to this court (Ill. direct 609(a)), appeal Ill. 2d R. pending For rea VI, 603). art. 134 Ill. 2d R. §4(b); Const. follow, affirm. sons which we on will appeal. raises numerous issues We
Defendant each, address turn.
FACTUAL BACKGROUND a.m., Lion- 11, 1978, Larry Thursday, May On at a Clark Oil service his as an attendant berg began job Homewood, Illi- station, Halsted, at 180th Street and work-shift, his after his Lionberg began nois. Sometime at the station. Some- Schmal, him fiancee, joined Carol and hours, Peter Wonder morning time during early Schmal, Macciaro, Lionberg Sharon friends both minutes. 25 or 30 the station for approximately visited left at about Macciaro, and Wonder she According 2:15 a.m. Morales, the manager a.m., 6:30 Clemente
At about it noticed station, drove past service Clark and dis- investigated on Morales duty. that no one was *19 covered that the station in was and disarray Lionberg was missing. Morales immediately called police.
On the following day, Lionberg’s was in body found a area grassy near Deer Creek, in East Chicago Heights. Lionberg had been shot twice in the back of the head, once in back, and was found face laying down. Schmal’s body was discovered on the second floor of a nearby abandoned building located at 1528 Cannon Lane. Schmal was found down, face laying a wearing blouse and knee socks. Her and pants had been panties removed and were found lying beside her. She had been shot in twice back the head.
Later that day, police arrested defendant and Verneal Jimerson near the crime scene. The arrest was based upon an tip provided by informant, unidentified later revealed to be Charles Police McCraney. subsequently took Adams Kenny and Willie Rainge into as custody well. Jimerson, Adams, and however, were Rainge, later released but evening, defendant remained in cus- tody.
The following went day, McCraney the Homewood sheriff’s police station. After speaking with McCraney, police officers went to the home of Paula Gray spoke with her. That evening, Gray and her went family to the police station where Gray was at interviewed length presence her mother. Once again, police took Jimerson, Adams and into Rainge custody.
Gray testified before the subsequently Cook County grand defendant, jury, implicating Jimerson, Willie Rainge and her boyfriend, Adams, Kenny the crimes. According Gray’s grand she had jury testimony, been in the present abandoned when Schmal building had been successively defendant, Adams, raped by Jimerson, made to Rainge, stomach, lie on her and shot twice in the back of the head defendant. by Gray testified that she had also been present area near grassy stomach, his lie on made to Lionberg creek when and once defendant head by of the in the back shot twice defendant Gray, According Rainge. in the back *20 and kill Schmal to both used gun threw the subsequently testified further Gray into the creek. Lionberg if her family kill her and to had threatened defendant fol- and nights preceding On both police. she told motels at Gray stayed appearance, grand jury her lowing the request at allegedly custody in police protective her mother. home, discov- her she later returned
When Gray moth- defendant’s moved into had family that her ered 19, 1978, was later, Gray on May days er’s home. Two James Hospital room of St. in the emergency examined fol- The behavior. exhibiting “bizarre” she was because Watkins, a Dr. Robert by was examined lowing Gray day, 21, On May in his offices. private family practitioner, Watkins, who ad- examined Dr. by was again she for she remained to St. where Hospital mitted her James discharge. until two days that her had family discovering
At some after point home, herself, Gray, into defendant’s mother’s moved her family resided there with into the home and moved was Gray this During period, the summer. throughout Weston, to counsel, testify Archie called defendant’s by At the hearing, Gray hearing. at defendant’s preliminary She either jury testimony. recanted her entire grand or simply repeated, failed to respond questioning of her to each previous referred defense counsel by when lie,” is a “[Tjhat grand jury, statements before the “[I] nothing.” see or didn’t nothing,” don’t know “[I] were Defendant, Adams, Rainge subsequently and murder, aggra- and rape, information with charged vated kidnapping. for her thereafter, partici- was indicted Gray
Shortly She was subse- crimes, and for perjury. pation arrested and taken into At quently a custody. suppres- sion in her own hearing case in October Gray her repeated recantation. was tried Gray simultaneously Adams, with defendant, and Rainge, although separate jury to hear case. empaneled Gray’s Attorney Weston, and Rainge’s defendant defense counsel repre- indictment, sented her Gray, following every hearing wherein she recanted her grand jury (her testimony sup- pression trial, and hearing defendant’s first trial and sentencing hearing), although Gray neither nor her fam- hired him. ily trial,
At her Gray claimed that authorities had forced her to lie and grand jury before continued defendant, Adams, flatly deny and Rainge raped Defendant, Adams, Schmal. were sub- Rainge Gray murder, convicted of sequently kid- rape aggravated napping. also convicted of Gray was perjury.
Defendant his conviction and successfully appealed death sentence was (See and a new trial. granted v. Williams, 93 Ill. 2d 6 50- 309.) served of a Gray years term an year before in the a appeal resulted of granting Director, States ex (United Gray rel. De new trial. partment Corrections 721 (7th 1983), 586.) Cir. F.2d At the time Gray’s at defendant’s second testimony trial, her pending. new trial remained defend Following trial, ant’s Gray second and pleaded guilty perjury was sentenced two All other years’ probation. charges against her were dropped.
TRIAL McCraney’s Testimony morning testified McCraney early during hours he 11, 1978, living was in the Thursday, May home, room of his townhouse apartment, second-story Lane, located in East Chicago 1533 Hammond
199 from thoroughfares or more on miles five (fairly Heights musician, a jazz station). McCraney, service the Clark The front a song. composing and guitar his was playing the back and courtyard faced a apartment of McCraney’s McCra- evening, Throughout Lane. faced Hammond up- to go his playing interrupt periodically would ney check window a back bedroom through look stairs and on below autos parked upgraded newly on his two Lane. Hammond a.m., he' looked that at about testified
McCraney cars, a and saw two window bedroom a back through outside. Sev- parked beige Toyota and a blue Chevrolet Adams, and Kenny Paula Gray, including eral persons, cars, walking Jimerson, sitting were Verneal of the the driver Adams was about, music. and playing in a as well as blue in his car and sat Gray beige Toyota, had that McCraney weeks two During Chevrolet. and night had occurred there, every these activities lived to come individuals unusual for these various it was not during day vicinity from the times go many window, went McCraney out the looking After evening. his guitar- and resumed to the room living downstairs playing. minutes, returned to the up- he 13 to 15
After about This looked outside. and again stairs window bedroom the beige up beside time, backing he a red Toyota saw not red Toyota of this McCraney’s sighting Toyota. near daily however, appeared it had unusual, because that McCra- the two weeks during Lane 1528 Hammond fact, In in the apartment. had lived and his family ney evening, estimate, p.m., since McCraney’s window, the red out the looking upstairs he began when *22 the parking from to and departed had driven Toyota unusual, McCraney nothing Seeing times. area several play- room and resumed to his living returned once again ing. minutes, however,
Within 10 to 15 McCraney, again the window because he felt that upstairs “some- wasn’t since the had thing cars “backed in.” In right” addition cars, to the other a parked now saw McCraney yellow near the red Vega backing Toyota. ob- McCraney the served the driver of with the Vega speak driver the red while both in their Toyota remained vehicles. The driver of the Toyota, red identified at trial McCraney defendant, as then started his car and drove it a under vehicle, street He nearby exited his a light. picked up stone, it, threw and broke the re- Defendant then light. entered the red and it Toyota backed into the same from he space which had driven it. previously When saw defendant break the he McCraney light, became the nervous continued to watch. He saw driver of the later Vega, identified as yellow codefendant Willie exit the Rainge, Vega and enter red Toyota. Defendant then drove off in the Rainge red Toyota, headed east on Hammond Thinking Lane. that perhaps someone was to or had preparing already tampered with his car, went outside to check it. McCraney Finding however, returned nothing wrong, to his liv- McCraney room ing and continued his playing guitar. however, after he
Shortly McCraney playing, resumed heard a car so he engine strongly “revving,” up- went stairs out the front bedroom window which looked onto the area. saw the red courtyard McCraney Toyota stalled tes- “gunning” engine. mud and its McCraney tified that this viewing longer occurred not Toyota than three after had departed minutes auto from rear of on heading his east Hammond Lane. apartment At this heard so point, McCraney people also running, he There, rushed bedroom window. he saw back cars, out of group running towards people getting at the front of his Me- courtyard apartment. area located
201 Ad- seeing he remembered Kenny testified that Craney ams these individuals. among the middle of the court- rushed to
Once the group the them around push saw McCraney gather yard, to a near until it moved forward position red Toyota Can- an located building abandoned doorway six persons, comprised eight non Lane. The group, able to into the was building. McCraney then rushed defendant, Adams, but not Rainge, clearly identify was individuals, McCraney within the group. the other any included white group not to tell whether able cross-examination, McCraney or Under women. persons see Paula or Verneal Gray that he did not acknowledged Jimerson enter the building. re- McCraney entered the building,
After the group not continue out- looking to his rehearsal and did turned hours, McCraney for about rehearsing side. After lVz that came from echoing gunshot heard a single not of his He did apartment. area front courtyard not unusual however, since were gunshots stop playing, that area. during night 12, 1978, Lionberg’s body
On when Friday, May crowd of found, spectators within a McCraney stood The crowd building. near his gathered apartment the crime scene. McCra- investigated watched as police there, he overheard that, standing testified while ney on- crowd, to other defendant, jokingly say also in the shoot lookers, people? you shoot those you [D]id “[D]id *** have seen them jump.” should those people? [Y]ou these re- defendant made when McCraney, According Mc- discovered. had been marks, Lionberg’s body only however, that at> acknowledged, Craney subsequently missing. that two were time, persons he was aware had been body learned that Schmal’s McCraney When reflected upon he building, in the abandoned discovered of the events earlier morning, went to a nearby gas station and called police. told McCraney police, people that committed “[T]he ***
the crimes is on the scene now of the crime. I might come forward if these are people picked up.” McCraney described a beige and a red Toyota, and his own where- not, abouts He police. however, did himself identify because, as he testified, he was concerned about of his safety After family. calling, returned McCraney *24 home.
The next day, went to McCraney the Homewood po- lice station and at with spoke length and police identified two vehicles held as the by police red and beige Toyotas to the belonging he believed persons for the responsible murders.
Upon cross-examination, was McCraney impeached with his prior at testimony given defendant’s first trial that he last saw defendant and Rainge among group on the persons side of courtyard his at apartment 2:47 to “roughly” 2:48 a.m. McCraney explained, how- ever, that he had never provided time, a specific but had estimated time based upon show, television “Kojak,” and the 45-minute which he song had been composing. to According McCraney, had on “Kojak” been television “in the neighborhood” a.m., and he had played song throughout the show afterwards, and but had not it played “straight through” due to At interruptions. time that he had last viewed defendant’s car on Lane, Hammond had show been over for longer than an hour. (The parties that subsequently stipulated “Ko- aired jak” 11, 1978, on May from 12:40 to 1:51 a.m. Eastern Standard Time.) Additional of McCra- testimony ney given at defendant’s first introduced, trial was then which was that he had his once after played song “Ko- jak” ended and was it a second time playing 3 or 3:15 by addition, a.m. In two inconsistent prior statements that the group the effect introduced to were McCraney at both building entered the abandoned had of persons ques- to 2:45-a.m. When and at 2:30 to 2:30 a.m. 2:15 statements, McCraney these prior tioned regarding in error. were they maintained clock in his home that he had one testified McCraney maintained that He he these events. at the time viewed first trial (no testimonies at defendant’s his previous (two trial at separate clock in Jimerson’s home) were, possi- home) respectively, incomplete, clocks in in error. bly he given had been acknowledged
McCraney 1978 for office late $1,000 the State’s Attorney’s McCraney of his family. costs related to relocation he was again also when acknowledged threatened, he was given called to and was testify being to relo- $1,400 an a car purchase necessary additional Also, State. prior testifying cate his out of family $1,200 trial, McCraney given defendant’s second once relocate his family. again Testimony
Officers and Pasterik’s Capelli Police David Ca- Investigator Cook Sheriff’s *25 County Pasterik, testified that they and his Patrick pelli partner, the call concerning Lionberg’s disappear- to responded arrived, from they they ance the service station. When the station searched an auto behind parked which a The contained purse and discovered woman’s purse. license, wedding for a man’s receipts Schmal’s driver’s an marked envelope band and a dress and deposit, offi- car,” contained in cash. The for which “Money $125 residence, her fa- cers to Schmal’s with spoke proceeded Schmal ther, and obtained a which both photo depicted Lionberg. and were later,
Several when and Pasterik days Capelli site Lionberg’s their at the conducting investigation newly discovered body, received a they dis- police call patcher’s on their hand-held radio. The dispatcher related information had been received from an caller anonymous the “killers” were present at the site, were they watching police investigation and had a red After Toyota. receiving information, this the two officers walked toward the directly crowd on- lookers. observed They defendant and Jimerson from the “briskly” emerge crowd and begin walking The away. officers followed and observed that either or both defendant and Jimerson looked back over their and shoulders their walk. The speeded up officers, in turn, walked faster defendant following and Jimerson to a red parked The Toyota nearby. officers defend- stopped ant and Jimerson as the just two men reached the vehi- cle. Defendant was with car in standing hand keys by the driver’s door and Jimerson stood the front pas- senger’s door. he According Capelli, and Pasterik ini- tially focused their attention on defendant and Jimerson because were they only persons two briskly emerge from the crowd as the officers approached then walk quickly away.
After the officers conducted an search of inventory with consent, defendant’s defendant and Ji- Toyota merson were taken into to the custody transported Homewood sheriff’s station. police
Gray’s Testimony 10, 1978, testified that on the Gray evening May Adams, she and her Kenneth sat listening boyfriend, music his car of her parked vicinity family’s located at 1525 Hammond Lane. was 17 apartment Gray old at the time and had not attended school years past the ninth grade. while,
After in his red defendant drove up Toyota whether they and asked wanted beer. couple any *26 thereafter, left the and, defendant shortly declined They to listen to Adams continued Gray area his car. and time, tired and went music, but after some became Gray however, she she was inside her apartment, home. While cross-examination, which, under “strange heard a noise” left her conversation. own acknowledged Gray she was vacant, next door to a unlighted and went apartment towards the front She looked out the window apartment. in back). the car had been (Adams’ parked apartment Adams, and Jimerson defendant, Rainge saw Gray in the car, which stuck mud. around defendant’s her then “came over” to Gray, Defendant saw then arm, her but she resisted. Defendant told grabbed to him did. they and she When Gray accompany ap- car, adults, a proached defendant’s saw two white Gray female, male and a in the back seat of the car. The en- whites, defendant, Adams, tire two group persons, then the lo- Rainge, building Jimerson and entered Gray time, cated at 1528 Cannon Lane. At the saw no Gray mud, one to defendant’s car out of the get nor did trying she hear car’s the motor or at running loudly, running all. the building, When' entered car was group still in the mud. sitting
Once the entered the re- group building, Rainge mained on the first floor with the white male while the others to a on the second went back bedroom upstairs there, to floor. Once defendant ordered the-woman un- she was dress, According Gray, and she able complied. her defendant had given see what occurred because observed defendant Gray “Bic” room. lighter light woman, and Adams succes- as did Jimerson rape downstairs, Rainge, went relieved sion. Jimerson then Defendant and Jimerson woman. Rainge raped a second time. When defendant then woman raped do so he declined again, instructed Adams to also once Jimerson, however, Rainge relieved Gray’s urging. *27 more, and the woman Rainge raped again. Defendant then told the woman to turn onto her stomach. He over removed a from it to “big” gun pocket, his close placed the woman’s head and shot her twice.
The then first returned to the floor where the group white male was watched Jimerson. The entire being home, with the of Adams who group, exception went then went outside near the creek. familiar Despite being defendant, with and Jimerson for one Rainge, only month, testified, she was not afraid. Defendant Gray then told the man to lie on his stomach. was Gray stand- ing unlit, 16 feet the darkened approximately away area saw defendant the and shoot man twice in the head. Defendant then gave gun Rainge, who shot the man once in the back. After Rainge returned gun defendant, defendant threw it into the creek. Defendant warned if she said he Gray anything, would kill her her Defendant’s threat family. fright- events, ened at the time. these Gray Following re- Gray turned home. of the crime not im-
Gray’s version events peached cross-examination, under that she stated except that she did not or did not know remember whether she had home after gone immediately shootings. Gray, however, oath, denied ever under then but ac- lying she had her knowledged changed testimony defendant’s hearing. also denied or preliminary Gray could not remember at the previously testifying prelimi- to the effect that her nary hearing grand jury testimony had been coerced. In to most con- response questions cerning previous inconsistent statements made during both defendant’s first preliminary hearing Gray’s trial, stated that she could not Gray remember. Neither remember, could she other among things, events sur- her rounding protective seeing Weston custody; Attorney seated at the defense table hear- during preliminary or him ing, seeing time; at all at that whether she had tried; been trial; whether she had testified at previously whether occasions, she had on testified other including even grand jury, introduced; were though transcripts about her new anything trial other than that she would one; receive how she got inside the building day be- trial; fore whether she had a or lawyer, whether she had just testified that she had a or that lawyer, Weston had previously represented did, however, defendant. Gray that she testify had problem “remembering things.” also testified Gray that while she was imprisoned, she had attempted her school complete high graduation requirements, but was unable to do so.
During cross-examination by counsel, codefendant’s *28 was Gray extensively questioned regarding whether the she was testimony gave of prompted hopes receiving leniency. Although Gray did not understand the term “le- she niency,” denied such having any expectations, denied the discussing issue with her lawyer, but said that her had lawyer told her “to tell the truth.” She further maintained that police had not beaten or abused verbally her when had they her in initially questioned 1978.
The transcript of Gray’s grand jury was testimony subsequently introduced as substantive evidence the by Likewise, State. the defense introduced entire Gray’s preliminary hearing question-and-answer as testimony substantive evidence. Six statements of made dur- Gray, trial, her first ing defendant’s death penalty hearing, trial, Jimerson’s were also introduced the defense by for of purposes impeachment.
Additional Evidence A examination and of Lion- post-mortem autopsy berg’s the Cook medical examiner re- body by County vealed the existence of four bullet wounds. One bullet had entered and exited Lionberg’s back his chest. Two
bullets had entered the back his of head and lodged his brain. Similarly, examination and autopsy Schmal’s on that same body date showed that two bul- lets had entered the her back of head. These had been fired at presumably close as range, indicated by presence a stippling effect around the wounds. The examiner further determined that both victims had been killed where their bodies were found.
Additionally, police forensic firearms deter- expert mined that and Schmal Lionberg had been killed by same gun, but that the This was type gun unknown. determination was made after testified before the Gray grand jury.
No evidence physical was introduced by the State other than photos victims, scene, of the and defend- ants, bullet casings scene, found at and a money changer belt which Lionberg was found wearing death. The whereabouts of defendant’s red which Toyota had police impounded unknown to all parties.
DISCUSSION
Quash
Motion to
Arrest and
Evidence
Suppress
Defendant contends that the trial court erred
de
his
nying
pretrial motion to
arrest and to
quash
suppress
evidence. Defendant maintains that his warrantless ar
rest was not supported
cause
by probable
(see People v.
Free
94 Ill. 2d
398-99),
therefore any
*29
evidence
result,
obtained as a
ought to have been sup
(see
pressed
Wong Sun v. United States
371 U.S.
(1963),
471, 9 L.
441,
Ed. 2d
209 tivity. (See Wong States, 485, Sun v. 371 United U.S. at 9 L. 454, Ed. 2d at 83 S. Ct. 416.) Their testimony was that defendant and Jimerson walked to and quickly were standing beside a red Toyota were they arrested. turnWe now to consider the of defend- legality ant’s arrest.
A court will reviewing not disturb a trial court’s find on a motion ing unless suppress, is mani finding erroneous. festly v. (People Reynolds 94 Ill. 2d (1983), 160, Our 165.) task on is review to ensure that simply the trial court had a substantial basis for concluding probable cause existed. Illinois v. Gates (1983), 462 U.S. 213, 238-39, 76 L. 527, 548, Ed. 2d 2317, 103 S. Ct. 2332; v. People Tisler (1984), 226, 103 Ill. 2d 248.
The trial court making probable cause determina tion is to standards at as apply least stringent as those that guide a magistrate whether to deciding issue a warrant. v. (People Adams (1989), 387, 398; Ill. 2d People Tisler, v. 103 Ill. 2d at The trial 236.) court must “ determine whether ‘a reasonable and prudent man, having the knowledge possessed by officer at time arrest, of the would believe the defendant commit ” ted the offense.’ (Tisler, 237, 103 Ill. 2d at quoting People v. Wright (1968), 41 Ill. 2d 174.) Whether the necessary exists is probability governed not tech by nical rules, legal but rather commonsense by consider ations that are factual and practical. v. (People Mitchell Ill. 2d 153-54.) This review cannot be tainted by hindsight which seem to may luckily be sup ported the fruit of some rather, the re criminality; view must center on the information available to offi cers the arrest. preceding Adams, 131 Ill. 2d at 398.
If the facts in an supplied informant’s are tip essen- tial to a finding cause, of probable must tip meet standards of before it can reliability be considered in de-
210 termining probable cause. (People v. James (1987), 118 214, Ill. People Tisler, v. 222; 2d 103 Ill. at 236-37.) 2d Under the totality the circumstances a defi analysis, in one ciency of the prong traditional test of inform an ant’s or tip be (credibility reliability) may compensated for in the overall determining reliability tip by as to the other (the basis of knowledge). Illinois showing Gates, v. 462 233, U.S. at 76 L. 545, Ed. 2d at 103 S. Ct. at 2339.
Substantial corroboration would not
establish an
only
informant’s
but would
veracity,
also
an inference
support
that an informant obtained his story
reliably. (People
Tisler,
McCraney’s tip ingredient the de- termination cause probable by Capelli and Pasterik. advised those McCraney police persons responsible' for the were in a crowd of slayings spectators observing police investigation of crime scene. His fur- tip ther provided these had a red which persons Toyota was located nearby.
We believe that the almost observable immediately i.e., defendant, actions of the his emergence “brisk” crowd, from the his from quickly walking away ap- towards a red auto and his proaching police looking over shoulder, an inference that was credi- support McCraney ble and his information was reliable. Such corroborated information, combined the officers’ with experience a substantial basis for the trial knowledge, provided court to conclude that cause probable existed. Conse- the defendant’s motion to quently, quash arrest and sup- press evidence was denied. properly
Disallowance of Gray’s During Testimony on
Hearing Motion In Limine *31 Defendant contends that the trial court improperly refused to allow to Gray at a testify pretrial competency the hearing, existence of medical despite that testimony had been Gray diagnosed and with an hospitalized “acute reaction” schizophrenic after the kill- immediately ings.
Defendant a filed motion pretrial “Motion in styled Limine to Bar the of Paula Testimony on the Gray,” ba- sis of her alleged incompetency. Attached to the motion were copies Gray’s hospital 22-24, records for May 1978, written and Dr. signed by Watkins.
Prior to hearing motion, on the the trial court ruled that Gray would not because mere testify fact of defendant’s to her challenge not, did it- competency by self, a justify The competency hearing. trial court deter- mined, however, that if defendant made a sufficient showing which would call Gray’s into competency ques- tion, the court would then conduct a as to com- hearing her petency testimony would be allowed. Defendant failed to make such a however, and no showing, compe- hearing was held. tency
Factors a decision to a warranting conduct prelimi as to call nary inquiry must into competency necessarily question observe, recollect, the witness’ to ability communicate. (See People v. Jones 123 Ill. 2d (1988), 387, 405; see also v. Porter 96 Ill. People (1981), 3d App. 976, 984 (defense denied the to voir dire opportunity witness with on the of an respect competency basis arrest record narcotics indicating previous charges).) Even made, where a determination is to competency be
due does not an of the process examination wit require ness Seel See challenging party. 68 Ill. App. 3d 1002-03.
In case, the present medical records produced by defense in its support of motion and the of Dr. testimony Watkins failed to establish connection between Gray’s past mental and her problem ability give competent itself does not reflect on testimony. Hospitalization trial; Gray’s competence at at most it testify estab- lished she that had once been treated for an acute schiz- reaction, ophrenic albeit after a fact shortly killings, the State conceded. In addition, there was no showing continued to suffer from such Gray or disability, she was thus at the time disabled killings. we find that the trial court’s Consequently, denial of defendant’s to examine was in the exercise request Gray of sound discretion. maintains, however, matter,
Defendant as a related subsequent admission Gray’s testimony *32 trial was error because she was A plain incompetent. witness is to if he has the competent to testify capacity observe, recollect, communicate, and his mental defi is considered insofar it ciency as affects only credibility. v. (People Jones 387, 405; 123 Ill. 2d see People (1988), v. Dixon (1961), 513, Thus, 22 Ill. 2d 515-16.) is sanity Seel, v. not the (People test of Ill. competency. 68 App. Likewise, 3d at 1006.) an individual from men suffering tal retardation is to so competent long as legally testify he the and the to possesses requisite capacities, burden show otherwise is the upon party questioning compe (People v. Spencer tency. 119 Ill. 3d (1983), App. The 977.) determination of whether a witness is compe tent is within sound discretion of the trial testify court and be arrived at either may through preliminary or the witness’ demeanor and abil inquiry by observing v. See Spencer, ity trial. 119 Ill. testify during 976; People (1985), 3d at v. Ford 139 Ill. 3d App. App. 894, 901.
Our reveals that trial review court’s subsequent of trial Gray’s testimony admission was proper. in toto that a com- Gray’s testimony indicates was Gray whether petent Any regarding witness. inconsistency had “oath” con- Gray previously obviously lied under cerned her inability meaning to understand the of the “oath,” term rather failure to than a understand any moral to tell the It is duty truth. true that dis- Gray a played marked to remember events under di- tendency examination, rect and to matters unrelated forget crime itself during Yet, cross-examination. this tendency appears justified somewhat the fact much of given that cross-examination concerned whether she remem- bered certain making statements of specific during any several, In we previous separate hearings. total, believe however, Gray’s memory reflect more lapses, upon her than her She credibility capacities. even admitted that her memory little improved “a bit” redirect upon examination.
In the final analysis, the trial- court is in best posi- tion to ascertain witness’ competence based her upon appearance and conduct at trial we will not disturb that finding absent an (See People abuse of discretion. 111. Garcia 2d We find none here. 78.) The Conduct Voir Dire Defendant raises four of his arguments support contention that voir conduct of dire an represented First, abuse of discretion. defendant maintains ques- in the tioning conducted the entire venire presence improper under circumstances this case. The motion re- record shows that defendant filed a *33 that the trial court a voir questing conduct sequestered dire of the trial prospective jurors, granted which court later, however,
over Some objection. months when the trial, case was for no additional courtrooms were ready available in which the trial court could conduct the se- questered voir dire as had been originally contemplated. The trial court a defense counsel rejected suggestion by alternative as dif- concerning possible being logistically ficult and stated that it had considering security, likewise alternatives, considered several but none seemed feasi- ble. the trial court reversed its earlier rul- Consequently, would conduct voir dire in the it ing that by stating of the entire venire. The how- presence parties might, ever, chambers, exercise their peremptory challenges out of the of the presence jurors. prospective of
During general questioning prospective jurors, the trial court as to whether had inquired they previous of the case. Those nine knowledge jurors prospective who had were then in detail questioned regarding asked whether could re- knowledge, specifically they main fair and The did not reveal impartial. questioning of Each details their one of the nine knowledge. pro- were either ex- spective jurors eventually peremptorily cused or excused for cause. v. Neal
In 111 Ill. 2d we consid There, here, this the trial ered same issue. as court ruled that, because of the lack and available facili security voir dire could not be conducted as requested. ties, The individual, collective, trial court rather than allowed from death responses jurors concerning penalty question received, would be and directed counsel to avoid ing that, We held while Su prejudicial wording questions. (134 Rules 431 and 234 Ill. 2d Rules preme Court court, discretion, the exercise of 234) allowed the trial voir dire out of the presence to conduct individual (People not to do so. other it was jurors, required Neal, 198.) precautions 111 Ill. 2d at We found sufficiently taken the trial court to prevent prejudice
215 of to taint caused its failure any suggestion by dispelled question jurors. individually Neal, here
As in the trial court was constrained by that voir compelled factors which physical security dire be conducted all the of presence prospective ju- rors. that the court to effec- Considering trial sought eliminate the tively of taint individual possibility ques- tioning of those who prospective jurors expressed case, of the we an knowledge do not find of dis- abuse cretion. do Neither we find the trial that court’s direc- to tive the “listen prospective jurors carefully” to under- Moreover, cut those measures. we do preventive not find of taint since any suggestion every juror, thus individu- ally questioned, eliminated from the subsequently panel.
Defendant next maintains that the trial court’s ques tioning of the Wither- to prospective jurors pursuant spoon v. Illinois 510, 391 20 (1968), 776, U.S. L. Ed. 2d 88 S. 1770, Ct. resulted in a improperly jury that was conviction-prone and of unrepresentative the community. We have repeatedly held qualification jurors to Witherspoon does not pursuant a deny defendant right a drawn from a fair jury cross-section of the nor community, does it result in a conviction-prone jury. (People v. Flores v. 66, 128 Ill. (1989), 92; 2d Gacy Ill. (1984), 1, 103 2d Since 37-38.) defendant has not presented any argument which not we have previ considered, and ously this case does not a involve unique situation, factual we decline to reconsider our po stated sition.
Defendant’s third contention is that the trial court erred in for excluding prospective juror cause who was not irrevocably committed vote the death against pen- (See Gray alty regardless of facts and circumstances. 648, 481 Mississippi 622, U.S. 95 L. Ed. 2d 107 2045.) S. Ct. We Exclusion was disagree. proper.
216
A to an capital right pro- defendant’s impartial jury simply hibits exclusion of venire members because voice or ex- general death they objections penalty or its inflic- press religious scruples against conscientious (Witherspoon, L. 2d at tion. 391 U.S. Ed. S. The Court the ex- 1777.) Ct. at reasoned must limited to who clusion venire members be those *** to against were committed “irrevocably vote of the and circum- regardless death facts penalty stances the course of might emerge proceed- from prevent and to those whose views could them ings” *35 guilt. an on the of making impartial question decision (Witherspoon, 785 n.21, 391 at 522 20 L. Ed. 2d at U.S. Gray Mississippi n.21; n.21, 88 S. at see Ct. 1777 622, 648, 2045.) 481 L. 107 S. Ct. (1987), U.S. 95 Ed. 2d the views would juror’s The relevant is “whether inquiry his or the ‘prevent impair performance substantially as a in accordance with his instructions duties juror ” v. Witt Wainwright 412, his 469 oath.’ U.S. (1985), 844, 852; 841, 851-52, L. S. see 424, 83 Ed. 2d 105 Ct. Gray, L. 2d 107 S. Ct. 481 95 Ed. at U.S. at 2051. v. Collins 237, we
In
Ill. 2d
applied
forth Witt
trial
and held that
the
the standard
set
on his
based
juror
court
excluded
properly
prospective
responses Witherspoon
ju
The
questions.
prospective
he
had
as to whether
equivocal
ror’s
been
responses
However, he finally
ever
the death penalty.
would
impose
the
it
true that he could not consider
that
was
responded
in a
court was
that
the trial
Recognizing
death penalty.
which the
meaning
ju
to ascertain the
position
superior
our satisfaction
we
convey,
expressed
ror
intended
with Wither
compliance
excused in
juror
the
Collins,
In the the present had the death against that she scruples stated quivocally The then indicated that she did not juror possess penalty. asked, such of the facts. When next scruples regardless however, her impair ability whether her would scruples innocence, to determine or she almost guilt responded she not the inaudibly question. did understand When after a brief question again asked the explanation, ***,” I the juror don’t believe but replied, “[N]o, trial court could not hear When anything except “[N]o.” if whether, asked defendant was found finally guilty murder, she could consider all the penalties possible available, including the death penalty, juror replied, matter, In ruling on the trial com- court “[N]o.” upon juror’s mented and the physical expressions, fact teacher, that she awas appeared intelligent, seemed to understand clearly, but also seemed reluctant to an- swer.
Based this upon review, are we convinced that trial court not did abuse its by determining discretion this juror’s views would impair the substantially performance her duties.
Defendant’s final argument related on this issue has two First, components. defendant maintains that trial court abused its discretion his denying request voir dire pursuant for attorney-conducted to Supreme *36 Court Rule (134 234 Ill. Second, 2d R. 234). defendant the trial court’s stated standard voir dire claims that procedure, disallowing counsel’s direct generally partici pation, as an abuse operated of discretion. Court Rule 234 that
Supreme court provides “[t]he the voir dire examination of prospective shall conduct jurors to by putting them it thinks questions appropriate touching their to serve as in qualifications the jurors *** may permit case on trial. The court the to parties the such supplement examination direct as the by inquiry court Ill. proper.” added.) (134 deems 2d R. (Emphasis 234.) “Examination of court or prospective jurors by by ***
counsel is a trial can matter of detail which courts v. (People regulate in the exercise of judicial discretion.” Jackson review, 69 Ill. the Il (1977), 260.) Upon 2d linois held eval court has that the standard for appellate voir court’s uating the exercise discretion during dire created questions is whether. and procedures assurance that or bias would be any prejudice reasonable v. Sanders 143 Ill. 3d (1986), discovered. App. 402, 405. filed permit
Defendant motion to defense pretrial dire .voir counsel to in full participate jury. motion, on the the trial court out- Following arguments lined the voir dire it which usually employed, procedure itself, allow which was to question prospective jurors dur- supplemental permit written and sidebars questions, in infor- the event ing questioning the actual sufficient that, not the trial court Beyond mation was elicited. to stated it counsel that did not allow usually participate. however, The court it would acknowledged, trial dire voir “excep- attorney participation consider tional circumstances.” dire, voir the trial court ques
During subsequent alia, bio inter concerning, tioned each prospective juror and knowledge service graphical background, jury prior and attor case, of the with relationships acquaintances officers, witnesses, defendants, victims, police neys, Jurors affiliations, prejudice. racial judges, group Peo pursuant were “Witherspooned” questioned ple Zehr court Ill. 2d 472. the trial When voir dire of the prospective who admit juror conducted the death defense concerning penalty, ted to scruples however, court, The trial participate. counsel asked influ be stating juror might denied the request, responses. enced her change re- and procedures the questioning We believe that prejudice assured reasonably vealed this record
219 We discern no and bias would be discovered. can reason to that trial court its whatsoever conclude abused discretion counsel’s The trial denying participation. if to, usual routinely court’s even adhered procedure, with Rule 234 Ill. 2d R. Ac fully comports (134 234). defendant’s lacks merit. cordingly, argument Racially Motivated Exclusion of Potential Jurors Defendant contends that the trial court to re failed quire the State to explain its use of three sufficiently pe of blacks in of v. remptory challenges violation Batson 69, Kentucky (1986), 79, 476 U.S. 90 L. Ed. 2d 106 S. Ct. 1712. he Specifically, defendant argues estab prima lished a case of three racially motivated pe facie the trial remptory challenges; court found other yet, wise. We note a upon review trial court’s determination that a defendant has failed a to establish prima of case discrimination not will be overturned facie it unless is against the manifest weight the evidence. v. People 50, Evans 125 Ill. 2d (1988), 71.
Initially, State counters that defendant has waived consideration of any Batson issue potential a failing create record of the race the prospective jurors chosen and excluded. (See Sims 166 289, Ill. App. 3d Our 311-12.) review of the record indicates, however, the race of at least 17 venire Furthermore, members was established. our review re veals that defense counsel a attempted create more record, complete but the trial court disallowed counsel’s stating that attempt, the record stood for itself. Accord we find no waiver of the ingly, issue.
To meet the first element of the Batson test for es tablishing prima discrimination, case of a defend facie ant must show prosecutor exercised his peremptory challenges remove members a cognizable racial from the (Batson, venire. 476 U.S. at L. group at The 1723.) only question Ed. 2d 106 S. Ct. *38 which then remains is whether “all relevant considering prima facie circumstances,” a case of discrimination has (Batson, L. Ed. 96, 476 at 90 2d been established. U.S. People Mahaffey v. 1723; S. 87-88, at 106 at Ct. (1989), 388, the 128 Ill. 2d Once defendant establishes a 412-13.) prima facie shifts case, prosecution the burden to the striking race-neutral for the come forward with reasons Batson, 97, L. 476 at 90 Ed. black venire members. U.S. 88,106 at S. 1723. 2d Ct. at a Relevant trial court consider may circumstances prima a case of when whether dis determining facie “ has a of ‘pattern’ crimination established include: been (Batson, 97, at 476 U.S. 90 against strikes black jurors” 88, 1723); at S. at the disproportionate L. Ed. 2d 106 Ct. blacks; whether challenges against use of peremptory heterogeneous group sharing the excluded blacks were a characteristic; the level race as their common of only in the venire as the compared black representation (Mahaf race of defendant and the victim. the the jury; People v. Evans fey, 125 413, Ill. 2d citing 128 at court, however, must 50, The trial avoid Ill. 2d 63-64.) from the question solely this delicate arbitrarily deciding Mahaffey, 128 challenged. of blacks peremptorily number 413; Evans, Ill. 2d at citing Ill. 2d at 125 Hooper (1987), 118 Ill. 2d 247-49. were se-
The record two blacks demonstrates State four and the had jurors lected for the first of panel third A black was challenges remaining. peremptory and, time, the the at that State selected for second panel challenges remaining, peremptory had at the least 18 13th, its the utilized three. After State exercised having blacks, de- against three 14th, and 15th peremptories these persons the basis that on fense counsel objected the from whites accepted indistinguishable were State had At this the State, point for their race. except against six peremptories concerning exercised blacks a whom there was minimal ba- defense counsel conceded least, sis for It had also challenge. challenged, three female a European nonblack with persons, young record, surname and whose race is not of two persons a female as identified black. including implicitly the trial court ruled no prima Following argument, discrimination under Batson had been es- case facie In tablished. the trial that it ruling, court stated consid- ered all it circumstances had had the benefit observe, of blacks including accepted number relative to the number of The challenges remaining to State. however, trial court requested, the State provide for basis its three for the benefit of the challenges record. to the State all chal- According three *39 lenged 20s, in jurors black were their owned no property, had no or affiliations in com- long-standing positions the and were not munity, married. The trial court then stood on its previous decision.
We conclude the that trial court’s finding that defend- ant to prima failed establish a of case discrimina- facie tion was not the manifest against of the evi- weight dence. The trial court had the benefit of the observing tenor of the State’s and challenges, could determine that some blacks had been while State accepted the still pos- sessed that more had peremptory challenges, been justi- fiably challenged, and that a sizeable of representation had been nonblacks also the challenged. Furthermore, trial could court also determine the extent to which the three in jurors were, fact, in similar to question whites who had been We therefore decline to accepted. overturn the trial court’s decision on the basis of the record as it stands. Argument
Evidence and of Witness Intimidation next Defendant contends that error occurred plain the admission of that he was McCraney’s fear- testimony defendant, threatened, ful of had been and that he and his were relocated. Defendant also maintains that family the State was in allowed to improperly argue, closing, such intimidation of and his alleged family. McCraney trial,
Prior to State in- the defense with provided formation that had sums of McCraney received money for During relocation direct examination of purposes. at trial, testimony the State elicited concern- McCraney relocations, and the ing money several amounts Mc- State received from the for each move. Before Craney that he McCraney that testified did not giving testimony, himself he initially police when called be- identify had in (the cause friends and relatives “they” suspects) area, he was concerned of his safety about and four also his wife attributed daughters. McCraney his for relocation to concerns for request safety his Defense counsel made no this tes- family. objection timony.
In what questioning regarding response subsequent doing testify he at the time he was called to was he was with his replied living family that McCraney this Defense counsel testi- being objected threatened. court, however, objection The trial overruled mony. threat- “being on grounds McCraney’s testimony his relocation. was of the reasons for probative ened” alia, inter concluded, the testi- The trial court also was not because the aware prejudicial jury mony in 1984. were custody both defendants *40 McCraney to examine about his The State continued the State 1984 relocation and testified McCraney When asked $1,400 to a car dealer his behalf. paid “ [Eje- responded, this was money paid, McCraney why men —.” Defense three cause I had been approached which was objection then with an counsel interrupted sustained.
223 defendant’s failure to and raise this is Despite object motion, sue in a we will review pursu written post-trial doctrine, ant as the in this to the error evidence plain 137 Ill. (1990), case is v. Herrett closely People balanced. 195, 209; Ill. 615(a). 2d 134 2d R antici case,
In the the State could present reasonably that the defense would McCra pate attempt impeach that he had cross-examination with evidence ney during sums from the State for relo received several of money 332, v. 104 Ill. 2d (See People (1984), cation. Gonzalez 308, 337, Davis v. Alaska 415 U.S. 316- quoting (1974), 1105, 347, 354, (the 39 L. Ed. 2d 94 S. Ct. par trial, of a is tiality subject exploration witness is the discrediting relevant as witness and af “always his fecting weight People see also v. testimony”); Furthermore, 113, 147.) Harris 123 Ill. 2d (1988), State could the trial court would allow de expect fense counsel the widest latitude in establishing any bias or on motive See v. Wilkerson McCraney’s part. People 151,156. 87 Ill. 2d (1981),
Considering State chose prospect, obviously with con anticipatorily McCraney questions impeach he cerning received and for money purposes which it was used. Court Rule allows Supreme 238(a) such to reduce the anticipatory impeachment prejudicial effect of certain evidence a witness’ upon credibility. (134 Ill. 2d R. See v. 128 Ill. 238(a). (1984), Soskins 564, 573.) probative 3d this evidence App. Certainly, (See bias that have. Gabosch any McCraney might 913.) Significantly, Tullman Ill. 3d App. defense did not find this line of inquiry objection counsel and in fact cross-examined McCraney regarding able had antici relocations and monies received as the State we cannot that defendant was pated. say Consequently, that the of this testimony and find admission prejudiced, of discretion. was a exercise proper *41 to fears for the of respect McCraney’s With safety his did not link his fear to family, McCraney’s testimony defendant. While the mere fact that the did not evidence link the threats to not defendant does vitiate any possi v. West (see of 3 Ill. bility prejudice App. 3d to the defendant must 119), still be prejudice evidence, the the considering nature of itself. judged by Here, general made statements about McCraney simply afraid, a reaction for being quite any person reasonable Hence, we do not find that al McCraney’s position. he to lowance of that was afraid McCraney’s testimony involve himself defendant. prejudiced that he two was
Concerning McCraney’s responses threatened, such properly we find that statements were curative instruction. Each of Mc- allowed even without threats were of Craney’s responses mentioning probative so, the for relocations. Even McCra- reasons McCraney’s elic- statements not to have been ney’s appear purposely ited in that one at least was offered and both voluntarily to the Even questioning. were nonresponsive particular this fact a sidebar acknowledged during defense counsel to going the time am afraid the man is answer (“I Considering ask the him”). didn’t something you manner introduc- here, nature of the evidence and its tion, improperly we cannot that such say testimony allowed. v. Duckworth Dudley
This not to comparable case is defendant. 854 F.2d relied (7th 1988), upon by Cir. Dudley, In a testimony elicited witness’ prosecutor to threats order supposedly anonymous telephone his direct exami- during the witness’ nervousness explain from its nation. The court found no indication appeals ex- review of the record that the witness was nervous for a which was suggestion prompted by prose- cept cutor’s The court noted questioning. prosecution tes- no of the witness’ part made attempt explore that his condition might which seemed indicate timony on other than threats. Addition- be some basis explained found a that the witness’ ally, strong possibility court for the line condition was simply pretext prosecution’s no measures were taken to calm inasmuch as inquiry, threats, there witness, and after testifying *42 was no further concern with his condition. rea- contrast, case, good the there was
By present line son for the to undertake the prosecution particular re- which elicited questioning complained-of addition, In did not State sponses. manipulate in such a that questioning way encouraged McCraney threats, nor did the State continue to ex- testify about of threats. statements plore subject McCraney’s and, therefore, were must in the quite brief be viewed this Furthermore, context of trial. the State did lengthy not rely upon any evidence threats ar- during closing gument. defendant contends that im
Finally, prosecution intimida properly emphasized evidence McCraney’s tion Defense counsel did not during closing argument. to the er object argument, and allegedly prejudicial any ror would be considered waived unless the com normally ments so were that defendant could not inflammatory trial, have received a fair or so as to threaten flagrant deterioration of the v. judicial process. (People Owens (1984), 102 Ill. 2d have considered the com 104.) We ments error allegedly constituting prejudicial they do not rise to either level. that closing the State remarked
During McCraney he in- get had children and did not know if wanted volved. The called argued McCraney po- prosecutor lice, to himself: reasoning willing testify they picked I will if are
“[Mjaybe be I can up and be relocated.”
The then to consider McCra- urged prosecutor jury ney: I just being. is a decent human am McCraney
“Charles regrets making phone sure he ever call or at today coming go least ever forward. You heard that he had to again, length questioned to court over and over and be *** sake, gosh as Mr. he has even by lawyers Gant. [F]or daughters. job He lost a from had to move his wife and Securities, his in this E & R because of involvement case.”
The was relocated several McCraney argument admitted at trial properly times was based evidence upon he, fact, not and which object to which defendant did Owens, (See on cross-examination. explored Moreover, Ill. the State’s did 105.) argument 2d at relocation not correlation between argue McCraney’s any threats, nor it fears. emphasize McCraney’s did any we do not find that defendant suffered any Accordingly, these remarks. prejudice by *43 Prior Statements
Admission of Consistent that the admission into evidence Defendant maintains as a consistent grand testimony prior of Gray’s jury constituted plain statement denied him a fair trial and error. trial, counsel’s cross-examination
At codefendant’s extensively ques- motive to and impugned testify Gray’s her regarding tioned her as to expectations leniency also substantially impeached retrial. was pending Gray the introduction of her inconsistent statements by prior objection, Without given during previous proceedings. introduced, a court-re- through the State subsequently de- witness, Again, Gray’s grand jury testimony. porter at trial and raise this defendant’s failure to spite object motion, we take cognizance issue in a written post-trial
227 134 Ill. error rule. the plain of issue invocation by of this 2d R. 615(a). exami on direct corroborated
A not be may witness his with consistent statements prior nation by proof 465, 472.) Ill. 2d (1973), v. Powell (People testimony. of a means by a is Moreover, impeached when witness statement if a consistent statement, inconsistent prior the inconsis making not or disprove explain does Graham, Cleary not admissible. statement, (M. tent it is (5th of Illinois Evidence & Graham’s Handbook §611.14 are ad consistent statements However, 1990).) prior ed. inference that the wit to or an charge rebut missible testimony or his testify falsely ness is motivated is admissible fabrication, recent and such evidence is of the motive story to show that he told the same before the time of the fab alleged came into existence or before 374, 389; 52 Ill. 2d Peo People (1972), rication. v. Clark 423; 413, 115 Ill. 2d see also (1986), People v. Titone ple 139; Graham, v. 123 Ill. 2d M. (1988), Harris of Illinois Evidence & Graham’s Handbook Cleary 1990)/ ed. (5th §611.14 raised an inference that Gray’s defense
Clearly, of leni expectations trial was motivated testimony by Yet, of recent defendant was fabrication. ency did not testimony Gray’s grand jury claims had Gray as a consistent statement because qualify prior time as she did the same motive to at that fabricate 487, 501.) 97 Ill. 2d (See trial. Emerson considered, defendant, have must According Gray 1978, that, prosecutors the conduct given police with her, cooperate her strategy towards best re of events. We fabricating authorities a version series of facts a similar a similar jected argument upon the trial Titone, 115 Ill. 2d at and held *44 the record court’s conclusion was supported by apparent Likewise, case, in the instant we cannot and was proper. the trial court erred say by admitting Gray’s grand jury testimony.
Admission Into Evidence and Argument
Victims’ Personal Traits next Defendant the trial court commit- charges ted error into evidence con- plain by admitting testimony lives of the two victims and cerning personal arguing such evidence at closing. trial,
At Officer testified that while Capelli beginning their into the investigation victims’ he disappearances, and Officer Pasterik found a woman’s inside a car purse outside the In parked Clark service station. response what was found inside the stated purse, Capelli it, items found: a driver’s license with Schmal’s name on dress, for a man’s and a woman’s receipts wedding band an cash with for envelope containing “money $125 car” handwritten on it. The officer related subsequently how his on the of the driv- investigation proceeded basis er’s license information. as the During closing argument, recounted the at the ser- prosecutor police investigation detail, vice station he mentioned each of sequential the items found in Schmal’s purse.
Lionberg’s father, William testified at trial Lionberg, without time he objection that last saw his son alive was on son’s Mr. a birthday. Lionberg his identified pho- of Schmal and his son taken at a tograph together gath- on his an as ering depiction son’s as accurate birthday last This Mr. they appeared. photograph given by Lionberg begin- Officers and Pasterik Capelli of their Defendant ning investigation. agreed to the photo might be available published jury them their during deliberations. testified, Fisher, sister, Schmal’s also without
Lynn that she last saw Schmal alive few be- objection, days In she fore Schmal’s death. to whether knew response
229 him, to relationship her had been and what Lionberg engaged were and Schmal Lionberg that stated Fisher Lion- the same photo Fisher identified married. to be just of them depiction as an accurate and Schmal berg identified, objec- over also Fisher deaths. before their death, at wearing found Lionberg was tion, the jacket it because Lionberg’s knew that it was she that stating then volun- Fisher her father. belonged originally had it and that the jacket needed had Lionberg teered that his style. had been the introduction for except
The record shows or either to object failed defendant Lionberg’s jacket, 137 Ill. (Herrett, error. alleging motion file a post-trial errors not properly claimed 2d at We consider 209.) rule so as error plain invocation preserved by an innocent of the possibility preclude argument v. Carl People convicted. wrongly man have been may 564, 79 Ill. 2d 576-77. (1980), son the introduc condemned consistently This court has a concerning information tion of otherwise irrelevant at relationships or familial crime traits personal victim’s 89, Ill. 2d criminal 139 Hayes (1990), a trial. v. (People 265; People 116 Ill. 2d 141-42; see v. People Hope (1986), However, 359, 371.) every 30 Ill. 2d v. Bernette (1964), not se per does relationships of such traits or mention v. 139 Hayes, trial. (People to a new entitle defendant 121 Ill. 2d 142; People (1988), Ill. 2d at v. Simms 378, 414; Ill. 2d see 94 268-69; v. Free People (1983), Ill. 392- 142 2d Pitsonbarger also v. People man court must consider Rather, reviewing 93.) (Peo issues came about. references to such ner in which Bernette, 276-78; v. 30 People at 116 Ill. 2d v. ple Hope, information is of such Ill. Where 371.) presentation 2d to be causes the jury which in a manner accomplished incidental, its admis rather than material, it lieve that is error. See reversible and constitutes sion is prejudicial Bernette, v. People Hope, 30 Ill. 371; 2d at Ill. at 278.
In the present instance, all of the nearly evidence which defendant considers objectionable was relevant and admissible. The testimony concerning contents of Schmal’s purse tended course and di- explain rection of the investigation. The of these police discovery particular items indicated to personal police another person addition to likely missing Lionberg. The items also indicated that person’s probable relationship to him. item While in Schmal’s every not purse might *46 have been to these necessary explain operative assump- tions, some reference was necessary inevitable to the circumstances of the explain police investigation. Likewise, the of the victims was photograph relevant because it was to the them given police assist at the of onset their That the investigation. de- photograph the picted victims at together Lionberg’s birthday gath- was coincidental rather ering than indicative that the of its introduction purpose was evoke Simi- sympathy. was rele- larly, testimony concerning Lionberg’s jacket vant because he was he wearing jacket when was found shot through back.
We also believe that the remainder testimony of which defendant is either of the complains probative (corpus delicti), or volunteered issues responses “life and death” witness. Common sense tells us that that, murder victims do not live in a vacuum and in most instances, were involved in familial they relationships. Free, v. People sum, (See 415.) 94 Ill. 2d at In we are convinced that the evidence was not in a man presented ner as to cause the to believe that the victims’ jury per sonal characteristics or familial mate relationships were rial to the defendant’s or innocence. Nor did guilt closing concern or most dwell such evidence. argument upon trial and of a fair thereby deprived not Defendant was no error resulted. Closing Argument
Improper with error occurred that plain claims also Defendant closing argu- the State’s aspects to additional respect argu- that the prosecutor’s contends Defendant ment. the prosecutor because proof ment shifted burden defendant, they acquit should they that if told the jury the police it believe you should because “[d]o have what would you men. Because that’s these framed that the pros- maintains also now.” Defendant to believe the most “hor- crimes were that the statements ecutor’s improperly history court “outrageous” rendous” his personal opinion. injected latitude to deal of allow a great of this State
Courts (People closing arguments. during prosecution instance, we have For 341.) 117 Ill. 2d (1987), Shum of the the defendant’s version held that where recently State’s, ar closing from the incident differs substantially here are allowable to those presented similar guments v. Pecoraro (See and not prejudicial. case, strongly sug defendant
Ill. 2d In the 1.) present community pressure experienced gested police Gray, to coerce crimes, cooperated they solve a product testimony that her grand jury *47 have found defend if the were to thereof. Certainly jury have lent credence it would necessarily ant not guilty, argument. this contrary regarding possi- theory note also that defendant’s
We of in the form evidence presented ble coercion was police cross-examinations, trial, during At argument. as well as tes- grand jury Gray’s sought portray defense counsel and manipula- coercion the product police as timony opin- injection personal Concerning alleged tion. statements that during opening record reflects ion, the 232 trial, defense counsel referred to the offenses as the
“most heinous”
four separate
times. He further
stated
the evidence would reveal
that a “terrible
crime oc
curred.”
the evidence
Certainly,
at trial
indeed revealed
the offenses
to be horrific and defendant
never
took is
evidence,
sue with such
choosing instead to contest
issue of identification. We have held that prosecutorial
comments based on facts in evidence or reasonable
infer
ences
therefrom
drawn
fall
within
bounds of proper
argument,
and prosecutorial
comments
that are invited
(People v.
and not
do not
prejudicial
constitute
error.
Franklin (1990),
Insufficiency the Evidence Defendant next contends that he was not proved guilty reasonable beyond doubt inasmuch as Paula Gray’s lacked “an accomplice testimony absolute convic tion of truth” and was not corroborated. meaningfully People Young 128 Ill. 2d 48. “ The of an testimony accomplice witness ‘has inher weaknesses, ent being of a confessed criminal testimony with fraught dangers of motives such as malice to accused, threats, wards the fear, or of le promises hopes ” (Young, or benefits from the niency, prosecution.’
233
5 Ill.
(1955),
v. Hermens
47-48,
People
at
quoting
Ill. 2d
infirmi
with serious
it is attended
277,
Because
285.)
2d
“
ac
therefore be
‘should
testimony
ties, accomplice
and have
and suspicion
utmost caution
with
only
cepted
”
Ill.
128
2d
(Young,
its truth.’
conviction of
the absolute
465,
Ill. 2d
103
People
(1984),
v. Newell
48,
at
quoting
scrutiny,
to careful
subject
is
testimony
such
470.) While
witness,
corrob
an
whether
accomplice
of
testimony
a crimi
sufficient to sustain
uncorroborated,
or
is
orated
it
the jury
nal conviction
convinces
of
defendant’s
“if
added.)
(Emphasis
doubt.”
a reasonable
guilt beyond
261;
v.
237,
People
Ill. 2d
106
(1985),
v. Collins
People
372, 382;
v. Nastasio
49 Ill. 2d
George (1971),
51,
Ill.
55.
30
2d
(1963),
“
of the sufficiency
on review
critical inquiry
‘[T]he
must be
a criminal conviction
the evidence to support
***
reasonably sup
evidence could
whether
the record
”
reasonable doubt.’
a
guilt beyond
a
port
finding
Virginia
Ill. 2d at
Jackson
quoting
128
(Young,
560, 573, 99
307, 318-19, 61 L. Ed. 2d
443 U.S.
not
a
require
This
2781, 2788-89.)
inquiry
S. Ct.
does
it
that the evidence
to ask itself whether
believes
court
doubt,
a reasonable
beyond
guilt
the trial established
in the
most
whether,
light
the evidence
viewing
after
but
trier of fact
rational
any
to the prosecution,
favorable
of the crime be
elements
found the essential
could have
Ill. 2d at
quot
Young,
doubt.
reasonable
yond
573-74,
2d at
318-19, 61 L. Ed.
Jackson, 443 U.S. at
ing
A careful review of that a ra- us convinces most prosecution favorable guilty the defendant could have found tional fact finder Paula a reasonable doubt. and rape beyond of murder of the kill- account eyewitness an Gray provided explicit under cross- not shaken were the details of which ings, corroborated essentially That account was examination. version events she recounted her during grand five after the offense. jury testimony, provided only days statement, As a prior consistent testi Gray’s grand jury *49 here, in evidence mony, tended to rebut inferences that case, had a motive to in Gray this and that testify falsely People her here was a recent testimony fabrication. See v. Shum v. Emer People 317, 340-41; Ill. (1987), 117 2d son 487, 97 Ill. (1983), 2d 500-01.
Moreover, trial account were many aspects Gray’s corroborated the State’s by evidence. Forensic testimony that the victims in established were killed the locations where and in the manner in which said were Gray they killed. forensic evidence also confirmed that Additionally, the shots which killed the victims were fired from a sin- gle Furthermore, as testified to weapon, by Gray. Mc- Craney’s corroborated with testimony Gray’s testimony time and respect surrounding place circumstances, and defendant as a within participant those circum- stances. Finally, defendant’s behavior the suspicious crime scene the of the following discovery victim’s bodies an additional circumstance which cor- represented roborated Gray’s testimony.
It is significant weaknesses testi- Gray’s had to mony have been to the Irre- readily apparent jury. of her spective events, version of the crime testi- Gray’s was with instances mony replete or forgetfulness decided to frustrate examination. The attempts jury also aware of several inconsistent state- Gray’s prior ments, in which she denied flatly having any knowledge crimes, her apparent abilities, limited intellectual and the fact that she was retrial as an accom- awaiting plice. such obvious Despite handicaps, jury evidently found Gray concerning credible the events she wit- nessed. exactitude and cer- Undoubtedly, Gray’s unerring in relating events, those traumatic her lim- tainty given ited must have capacities, that, convinced the jury
235 to the crime. To that ex indeed, was an eyewitness she con carries with it “an ‘absolute tent, Gray’s testimony ” Ill. 2d v. Ash (People (1984), viction of its truth.’ Ill. 2d v. 485, 493, Williams quoting Ash, did Gray 258.) accomplice testimony Unlike life, her said that would lie to save but not state she “to tell the truth” prosecution. she was directed the evidence is sufficient sum, In we conclude sustain defendant’s convictions.
Ineffective Assistance of Counsel During or Phase
Guilt
Innocence
668,
466 U.S.
80 L.
Washington (1984),
Strickland
Ed. 2d
104 S. Ct.
a two-pronged
established
test to
claims. Ineffec
evaluate ineffectiveness-of-counsel
tive assistance of
is
a showing
counsel
established by
*50
that:
counsel’s
was so
deficient
(1)
performance
seriously
as to fall
an
of
objective
below
standard
reasonableness
norms;
under
that the de
prevailing professional
(2)
ficient
so
the defense as to
performance
deny
prejudiced
Strickland,
the
687,
defendant a fair trial.
Strickland
directed that
performance inquiry
must
whether counsel’s assistance was
be
reasonable
all the circumstances.”
466 U.S.
considering
(Strickland,
688,
2065;
at
694,
of the adversarial
that the trial cannot be relied
process
Strickland,
on as
result.”
466
having produced
just
686,
692-93,
2064;
at
L.
at
104
at
U.S.
80
Ed. 2d
S. Ct.
Albanese,
“[A] formance was deficient before examining prejudice a result of the alleged suffered defendant as defi *** ciencies. If it is easier to of an ineffective dispose ness claim on the of lack of sufficient ground prejudice, *** Strickland, that course should followed.” 466 be Al 699, 2069; L. S. Ct. at U.S. at 80 Ed. 2d 104 . banese, 2d at Ill. 527. case,
In 11 instances of alleges defendant present these alleged counsel’s ineffectiveness. We shall examine instances ineffectiveness depth. first identification
Defendant claims since Gray’s case, was the of the State’s defense linchpin testimony counsel have introduced evidence that Gray should States ex rel. v. Di- Gray United (see retarded mentally rector, Department Corrections Cir. (7th 1983), concerning E2d as well as scientific evidence 588), that mental have may upon per- retardation impact Defend- and moral ception, suggestibility, development. “men- Gray’s ant’s related contention is evidence illness” and the scientific effect of mental illness ial should also have been in- memory upon perception defendant, evidence, according given troduced. Such case, of the State’s would have tipped “weaknesses” in his disagree. outcome favor. We scientific conclusions re- that the Assuming proffered *51 in admitted and general mental retardation were garding of cross-examination rebuttal scrutiny withstood repre- not their introduction we do believe testimony, to than as- strategy allowing jury sents sounder any herself. Gray mental limitations of sess the obvious very issue, i.e., identifica- so, the disputed when Particularly and defend- individual tion, capacities concerns Gray’s evi- independent no available suggests ant’s argument IQ scores. other than her prior dence of that capacity reasonably reflects that the defense The record also as a limited mental capacity of Gray’s viewed evidence counsel had if defense Certainly, sword.” “two-edged deficient malleable and so as portrayed Gray extremely as the fantasy fact from that she could not distinguish represented, he could not have proffered argue, studies recanted and did, as he was when she Gray capable for allegedly exchange also when she testified below Also, could quite reasonably defense counsel leniency. details of Gray’s testimony concerning have considered as the tes- itself, the crime insusceptible impeachment Thus, of an extreme mental defective. defense timony undertook the quite justifiable strategy counsel Gant liar can find as a self-interested and we portraying Gray no fault with that approach. a witness’ mental health his
Concerning evidence of it it and is credibility, while is relevant as relates tory, thus a area of v. Lind permissible impeachment (People 436, 447-48), 73 Ill. before such evi sey (1979), App. 3d must introduced, dence be its relevance be estab may 107 Ill. 3d (1982), App. lished v. Walton (People onus, is to introduce 703). too, seeking The on the party this line of on cross-examination. questioning 726, 733. Helton 153 Ill. 3d App. case, diag-
In the instant hospitalized Gray Watkins, a family practitioner, nosed Dr. Robert an consultation as experiencing with psychiatrist, her interro- secondary “acute reaction” schizophrenic killings. Gray’s after the gation days by police fully that, returning after stated hospital discharge summary had she become questioning, home from lengthy police she admitted to audi- noncommunicative, and that while hallu- visual hallucinations, experiencing she denied tory *52 238 her his- described past record hospital
cinations. Gray’s testified Dr. “unremarkable,” Watkins although as tory limine hearing the motion in that brother Gray’s during “had a similar that she had related at her admission had adminis- was Gray one previously. mental state” year communicative, more alert and Thorazine, tered became to seek fol- under advice days in two discharged and was in one week. with the psychiatrist examination low-up never fol- that, knowledge, Gray to his testified Watkins to testify. her until called again nor did he see lowed-up, Helton, mental health of Gray’s this evidence As irrelevant by been considered would have history likely does not reflect itself by the trial court. Hospitalization most it es- or at credibility; a witness’ competence upon mental ill- treated for that a witness has been tablishes her considered by was episode ness. Gray’s schizophrenic Her condi- as a reaction to police questioning. physicians at the time not manifest previously, tion did apparently after her crime, discharge. it continue of the nor did treat- was under Also, Gray evidence apparently, continued to that she testimony, the time of her ment at affect memory would Thorazine, or that Thorazine take also not available. was trial court denied defendant’s too,
Significantly on defendant’s hearing request Gray testify limine, stated conditionally Gray motion but health evidence if this same mental might testify only court, however, The trial Gray’s competency. impugned therefore, could, it not. Defense counsel ruled that did to introduce this that an expect attempt quite reasonably fruitless, it to be consid likely as was evidence would be irrelevant, impeach Gray’s either serving ered not her her to communicate ob or impugn ability credibility (Helton, Ill. and truthfully. servations accurately re- counsel is not event, In defense 3d App. 726.) any demonstrate his undertake fruitless efforts to quired effectiveness. mental re-
Furthermore, of Gray’s like evidence evidence, evi- scientific and the supporting tardation cut conceivably mental health Gray’s history dence of in terms of im- evidence, of this two The value ways. its tendency offset substantially peachment, an eyewitness that she was Gray’s testimony corroborate *53 that Gant’s violent, traumatic event. Considering a even an ac- not to admit that was Gray strategy appears the testified to non- (two experts tual defense eyewitness events, of and McCraney of version feasibility Gray’s the that he did not see enter abandoned Gray testified fraught the introduction of this evidence was building), In that exercised sound sum, with risk. we believe Gant to assess indi- trial strategy by allowing jury Gray’s from introduc- refraining vidual firsthand and capacities retardation in ing general, scientific evidence of mental as hospitalization. well as detailed evidence Gray’s
Moreover, .on demon- appeal amply the cold record strates limitations as a Gray’s testimony witness. Gray’s or hon- is with instances of replete forgetfulness, feigned est, all of which her mental dullness and impeachment, Furthermore, was evaluated firsthand. jury jury aware that had a education Gray only ninth-grade requirements. had not GED capable completing been defendant facts, suggests Given these evidence of Gray would have scant effect on the jury’s impression that such slim sum, as a In we do not believe witness. Gray’s credibility evidence could further malign extent that the result here have been different. would counsel on ineffectiveness of
Defendant also claims offer evidence of did not basis defense counsel the grand at trial or before “motive” to lie either Gray’s testified at The reflects that Gray in 1978. record jury that, of her grand jury first trial at the time defendant’s State’s testimony Attorneys and police had promised would they provide house for her mother her jobs for and her sister. In view, our since there exists no evidence of motive from apart recantation Gray’s at testimony trial, defendant’s first at a time when Gray represented by defendant’s coun- sel, the evidence of motive in any 1978 was weak. De- counsel, fense thus, cannot be faulted for not offering such evidence of “motive.”
With respect motive at Gray’s defendant’s second trial, the record shows that prosecutors a writ- provided ten which discovery response stated that the State had offered to murder drop if charges against she testi- Gray fied The “honestly.” State’s however, later Attorney, represented before the trial court that “that’s a stronger statement than is the fact.”1 Defendant actually argues that defense counsel was ineffective to offer by failing such alleged evidence of motive.
We note trial counsel, codefendant’s Maurice Scott, this area extensively explored of impeachment his during cross-examination which Gray, immediately preceded defense counsel’s examination. Scott’s ques- *54 met tioning was by Gray’s repeated denials and testi- mony that her counsel had advised her to truth- testify The also fully. jurors were aware that Gray was awaiting retrial, world, and certainly, today’s could under- they stand the ramifications of her within that cooperation context. Their understanding would have been further underscored, also, defense counsel’s closing argu- implies
1 Defendant that defense counsel should be faulted for not exploring further any agreement the issue of since the State admit appeal ted in agreed of Jimerson that it drop had murder charges Gray Jimerson, if against testified Rainge. defendant and (See People (1989), 12, J., (Clark, v. Jimerson 127 Ill. 2d dissent admission, ing).) however, This was made after defendant’s trial. ment, out the of apparent inconsistency Gray’s pointing however, incarceration. In the final analysis, continued it testi- grand had before consistent jury Gray’s jury at a time when she had no real or discern- mony, given a lie. not then that say ible motive to We are prepared would of the State’s presentation discovery response have resulted in a different verdict. of inef
Defendant’s third claimed instance counsel’s of an instruction fectiveness concerns counsel’s rejection to consider' enabling jury Gray’s McCraney’s inconsistent statements as substantive evidence prior to section of the of Criminal pursuant 115—10.1 Code Procedure of 1963 Rev. Stat. ch. (Ill. par. 115-10.1).
In 12, 34, v. Jimerson 127 Ill. 2d this court held that defense counsel’s decision not to make substantive use of of inconsistent state any Gray’s prior ments was because such statements would not proper have as provided any greater benefit substantive evi dence than as impeachment.
In us, the case before defense counsel introduced the of the 1978 entirety Gray’s testimony preliminary as hearing substantive evidence. That con- testimony sisted of statements that defendant was innocent Gray’s one, had no she did not raped know nor anything, had she heard and the authorities had “made” anything, her lie. also stated at least 40 times in Gray response cross-examination of her statements using transcripts before the “That’s a lie.” grand jury, conference on instruc-
During subsequent jury tions, however, defense counsel submitted an instruction (Illinois Instructions, Criminal, Pattern No. 3.11 Jury (2d ed. 1981)) which to consider incon- permits jury prior sistent statements determining for only purpose The trial court the witness. reminded credibility 10.1, of the defense counsel existence section 115— *55 and counsel indicated that he it, was aware of but did not want instruction any jury on the issue. The court sua considered whether it should offer the instruction sponte, but so, declined to do since both parties seemed familiar with the law. and our decision in Jimerson, record,
Based this upon we conclude that confidence in the outcome of trial is not undermined defense by counsel’s performance in this regard. flat and Gray’s unembellished charge defendant was innocent, given context, its cannot be viewed as weak, but anything even if substantively defendant’s innocence was ultimate issue in the case. Gray’s simple statement of defendant’s innocence was contradicted her more by detailed trial re testimony counting crime, events of the which details were sub stantially and further unimpeached corroborated fo by rensic evidence and McCraney’s Moreover, testimony. her claim of defendant’s innocence was rejected by case, in her jury own and apparently by sentencing People Wilson jury defendant’s first trial. Unlike (1986), 149 Ill. defendant, 3d cited App. defend ant here was not deprived evidence of an essential el ement of his defense because of the lack of in proper struction.
Similarly, substantive value of McCraney’s prior inconsistent statements when viewed context was also not trial, At great. defense counsel Mc- cross-examined his Craney concerning prior inconsistent statements that: he saw the (1) defendants enter the abandoned at “about 2:15 or 2:30 building [a.m.]”; (2) he was able to when gauge defendant’s car left Hammond Lane in the area in front of his appeared courtyard apart- ment because he through” “went the 45 minute he song once after ended and “was on it composing “Kojak” Defendant again.” contends if the had been jurors to consider permitted statements substan- McCraney’s *56 that the vic- testimony in of the additional light tively a.m., late as to 2:15 seen friends as 2:10 tims were by that ended at 1:51 “Kojak” and the evidence stipulated Time, have concluded might a.m. Standard they Eastern in case. When viewed the of the State’s impossibility however, value of context, McCraney’s substantive was not great. inconsistencies prior statement was inter- first inconsistent McCraney’s statement, later during inconsistent with his nally he had last seen the defendants same that hearing, 2:45 a.m. trial During front of his house at 2:30 or be- fact, that his inconsistent low, in testified McCraney if was in error. Even viewed as statement 2:15 a.m. evidence, would have to consider jury substantive that context di- necessarily this statement’s context and its second inconsistent McCraney’s minishes weight. it is not statement suffers as well. Because accordingly statement at extreme variance with trial McCraney’s song during “Kojak,” that he was his 45-minute playing to it after the was and continued being interrupted, play ended, the inconsistency we cannot that program say carried context is weight. Again, substantive significant ac- here, often and because has McCraney determinative that he testified to time and dem- knowledged “roughly” that he not specific, McCraney’s prior onstrated as jury statement could not be viewed realistically Thus, fail to an accurate of time. we extremely measure in- McCraney’s see how a substantive consideration in a different have resulted consistent statements would verdict. assist- counsel’s
Defendant also contends that defense did not impeach ineffective counsel ance was because Chicago to given with his statement prior McCraney Warden, and later editor, published Robert Lawyer ad- a letter of Warden to According newspaper. 1982, War- July some time to defendant, prior dressed den went relocated residence McCraney’s ques- tioned him regarding manner in which he had approximated time of his sighting defendant defendant’s car in the front of his apartment. Warden’s letter states said that his McCraney song lasted 45 minutes and that he played it once and through had started to it play through again outside, when he looked defendant, saw his car and several other War- persons. den also stated that he advised McCraney television program logs indicated that “Kojak” had ended at 12:50 a.m. and that there were witnesses who could testify the victims were at the service station at “2:30 a.m. or later.” (Emphasis added.) Warden, According Mc- *57 said, Craney “[Wjell, them folks is innocent.” maybe The test of whether a prior statement is sufficiently inconsistent to its permit utilization is that the statement have a reasonable to discredit the direct tendency testi (People v. Castro (1982), 109 on mony a material matter. v. quoting Burgin (1979), 561, 566, Ill. 3d App. 74 Ill. 58, 3d App. 73.) lies within Materiality the discre v. (People Svoboda (1979), 75 Ill. tion of the trial court. 487, App. 489.) 3d The definition of does inconsistency not a direct require contradiction, but a only tendency v. (People contradict the witness’ present testimony. Davis (1982), 106 Ill. 3d 260, This determi App. 263-64.) nation is within the broad discretion of the trial judge. (United States v. Thompson (8th 1983), Cir. 708 F.2d 1294, Thus, 1302.) statement McCraney’s prior would likely have been considered admissible since it was incon sistent with his trial testimony.
However, in our view" defense counsel exercised sound trial not strategy by attempting impeach McCraney with this statement. The for predicates McCraney’s statement could be certainly viewed defense counsel by as unclear and problematic. Warden’s letter itself demon- strates that McCraney’s statement have been made may
245 accurate information which War- in to less than response was too, amply defense counsel Certainly den provided. (and maintained Chicago Lawyer quite aware as in these matters so) a rightly nonobjective perspective sum, confident in In we feel demonstrated record. that defense counsel properly indulging presumption in this area. exercised his professional judgment alleges The next of ineffectiveness defendant instance motion, an al se post-trial formed the for his pro basis 11 exculpatory failure to leged investigate potentially indi may witnesses. The failure to interview witnesses v. 79 Ill. (1980), cate actual Greer incompetence (People 55 Ill. 103, 123, (1973), 2d v. citing People Witherspoon are 2d when the witnesses known 18), particularly trial be testimony exonerating counsel and their may However, Ill. in (1970), 153). 46 2d (People Stepheny not can is indicated where defendant competence point to no the witnesses potentially favorable testimony offer or which might (Greer, 123), Ill. 2d testimony effect is not cumulative v. Williams (People Ill. 2d 374). case,
In this two of the witnesses defendant mentions trial, testified at and Clemente Mo- actually McCraney rales, the of the station. One of manager Clark service witnesses, Brown, Rene private investigator, to assist trial court appointed by February defense counsel the case. Brown had investigating earlier in the same to assist appointed capacity been *58 cannot seri- defendant’s first defense counsel. Defendant failed to investigate contend that defense counsel ously also, these which one testimony individuals. Clearly, any witnesses, of the other a program log manager, CBS Roberts, of- might Margaret Chicago Lawyer reporter, fer as to would be cumulative since parties stipulated aired, could testify when and Roberts “Kojak” only and the au- told her that defendant was innocent Gray thorities “made” lie. With Gray respect to Robert War- den, a Chicago Lawyer reporter, record demon- strates that Warden’s position was known to defense such, counsel. As defense counsel could be- reasonably lieve that Warden’s to ability impeach McCraney limited, given circumstances of their interview to- gether, and Warden’s obvious on the position matter.2
Likewise, defense counsel appears to have known White, Ron testimony an attendant at another service station, might offer since counsel attempted cross-ex- amine Officer Capelli about White’s alleged conversation with a.m., at 2:30 Lionberg before Lionberg’s disappear- ance, but a prosecution objection was sustained. It is also reasonable for defense assumed, counsel to have solely based upon information contained defend- letter, ant’s that Walter Salley, apartment complex’s janitor, Gallo, Tom another private investigator, could neither add relevant information nor impeach any other witnesses’ trial Further, it is testimony. also appar- ent “Helen,” any investigation the wife of a wit- ness who testified against trial, defendant at his first refute her husband’s that defendant charges committed offense, an unrelated would be pointless.
Similarly, continued any investigation procure Johnson, Dennis an alleged crimes, witness to the would prove fruitless. Since certainly defendant’s appellate 2 The during pretrial hearing record reflects that recess of a con dire, the conduct of voir cerning telephoned Warden the trial court. According court, to the trial after reporter Warden learned from a present in the courtroom of the manner in which voir dire was to be conducted, requests Warden made certain of the court and advised requests that if granted, his were not a lawsuit would be filed which could, therefore, would seek to intervene. Defense counsel reasona bly testimony might prove damaging believe that Warden’s more rather helpful. than
counsel, Carlson, Martin testified during sentencing Johnson had about crime that information phase Brown, which to investigator Johnson had related it is fair to that counsel defense was aware of Johnson’s say him existence, either not or not in- but could locate could duce him to We cannot fault defense counsel for testify. to failing witness who was unavail- pursue apparently able. We conclude defense that counsel dis- adequately charged investigative his cannot responsibilities and be regard. faulted in this also
Defendant
claims several instances of ineffective
ness due to defense counsel’s
failure to make cer
alleged
tain
to the
objections:
prosecution’s
argument
closing
that
had been
of
Gray
argument
convicted
to
perjury;
that the
convict,
was
jury
constrained
unless it found
that
had
police
defendant;
“framed”
and to the introduc
tion of evidence of the victims’
traits and
personal
argu
ment
The
shows, however,
thereof.
record
that it was co-
counsel,
defense
Scott,
first argued
who
had
Gray
also,
been convicted of
defense counsel’s
perjury. Clearly
strategy throughout
trial and during
argument
closing
was premised upon this
as a
view
liar. It was
Gray
ap
defense
parently
counsel’s quite
decision that
reasonable
more was to be gained by
in this man
portraying Gray
ner than by arguing her
veracity.
evi
Additionally,
dence of the victims’
was
personal traits
admitted for le
gitimate
identification,
and to
purposes
demonstrate
police
course of
investigation. Moreover, it is clearly
a matter of trial
for
from
counsel
refrain
ob
strategy
jecting to life-and-death
testimony. (See People
Lewis
(1981),
Defendant also contends testing. scientific potentially exculpatory pursue ex- defense premised upon Defendant’s is argument “nonsecre- was a that defendant finding pert’s reported a “nonsecretor.” also Rainge probably tor” and that *60 and Adams Jimerson this revealed report While that, “secretors,” it also demonstrated qualita- were the for could have been responsible Adams tively, only taken on the swab vaginal A indicators found blood Type the con- recommended The body. report from Schmal’s on all the defendants’ tests of further ducting qualitative to determine the swab vaginal and on samples blood The recommended could be eliminated. whether Adams blood and Adams’ composition compare test would found on of secretions to the composition saliva samples swab. vaginal however, that at the demonstrates, clearly The record condi- the deteriorated were suggested time these tests scien- definitive any swab vaginal precluded tion of the exposed had been possibly The swab vaginal tific result. handlers, this fact was of various to the perspiration trial. prior several months court open discussed trial before Furthermore, immediately conducted tests Clearly, concerns. expressed confirmed these earlier Accordingly, was open question. of the swab integrity not under- counsel for defense cannot find fault with we tests. additional taking coun- is that defense contention
Defendant’s further re- he failed to was flawed because sel’s performance voir dire to uncover po- of jurors a more specific quest Murray Turner v. 476 U.S. tential racial bias. Ct. 27, 37, 106 S. L. Ed. 2d 28, 36-37, 90 interracial of an accused defendant capital holds “that informed of jurors to have prospective crime is entitled of ra- the issue on and questioned of the victim the race cial bias.”
In the case, that, present record reflects contrary to defendant’s argument, defense counsel drafted and voir dire two proposed in an questions to sat- attempt of Turner v. isfy Murray. requirements The trial court accepted defense counsel’s first as it was question, the same substantially as question proposed in Turner defendant (Will the fact that defendant is black and victim is white prejudice you against defend- ant or affect your ability to render a fair and impartial verdict based on the solely court, The trial evidence?). however, rejected defense counsel’s second question (“Have you had any contact with previous blacks that re- sulted in you harboring a bias or prejudice against blacks as a This whole?”). question clearly attempted probe the issue of potential racial bias further. The trial court, however, did not find the second question any greater assistance than the first in racial uncovering bias and al- lowed the first only question. Based on this record and the additional fact that defendant alleges no actual prej- *61 udice, we cannot say ineffectiveness of counsel has been shown.
Finally, defendant argues defense counsel’s responsi- for the bility timeliness of his jury sentencing waiver. The record shows that defendant waived jury sentencing following or guilt innocence phase his trial. He contends on appeal defense counsel should have re- alized that conviction would necessitate a waiver of jury sentencing, so, such waiver should have been accom- plished before trial to avoid defendant from being tried aby “conviction prone” jury.
It is well established that a jury questioned regarding
of the
imposition
death
is
penalty
presumed to be a fair
jury on the issue of
(Buchanan
or
v.
guilt
innocence.
Kentucky (1987),
401.) without defense present duties, counsel not derelict in the of his performance was It to be is also fair by allowing jury death-qualified. to to that defense counsel’s decision as whether say jury was to a matter of trial sentencing purely be waived Furthermore, in the there is no indication rec- strategy. ord that did not concur in the decision to defendant waive after trial. jury sentencing conclusion,
In no instance cited defendant single by as an of defense counsel’s ineffectiveness rises example to that level. Neither do the described circumstances to such a result. This aggregate produce combine v. Bell People case to 152 Ill. comparable (1987), is not allegations 3d as a sheer does App. multiplicity that defense coun not translate into error. We believe not this record by sel’s assistance has been demonstrated to have been ineffective.
Related to ineffective-assistance claim is defendant’s to a fair trial right his contention that he was denied new coun of the trial court’s failure to appoint because se motion for a new pro trial. For sel to his argue sup relies our decision in defendant port, upon Krankel 181,189. 102 Ill. 2d Krankel, failure
In defense counsel’s following pro trial, defendant presented evidence at present any se motion assistance of counsel based ineffective alleging or to an alibi defense present counsel’s failure upon the defendant. an witness suggested contact alibi for the State of the counsel agreement appellate Upon should have been ap- and the defendant counsel motion, we re- on his defendant pointed represent motion with new ap- manded for a new on the hearing counsel. pointed *62 court’s inter the appellate
We have recently approved v. Nitz (See People Krankel. in our pretation holding se motion for pro a trial A new 82.) 143 Ill. 2d (1991), ineffective assistance of counsel does not alleging per se counsel to require appointment new assist the mo tion of the of the motion in the irrespective basis and ab sence of a for request (See new counsel. v. Wash People ington 184 Ill. (1989), 703, 711; 3d App.
Mallette
131 Ill.
(1985),
67, 75;
3d
App.
People v. Jack
son
131 Ill.
Rather,
3d
App.
138-39.)
“the
trial court should examine the factual matters underlying
claim,
the defendant’s
and, if the claim lacks merit or
to matters of
pertains
trial
then no new counsel
strategy,
need be appointed.
if the
Only
show
allegations
possible
***
neglect of the case
should new counsel be ap
pointed.” Washington, 184 Ill.
3d
App.
quoted
Nitz,
The record in the case present shows that following or guilt innocence defendant phase, filed a written pro se motion for a new trial alleging, alia, inter the in- effectiveness of defense counsel. In substance, defendant alleged defense counsel was ineffective in that he: refused to call defense witnesses such Warden, as Brown Roberts; was tardy concerning procedural matters; did not provide defendant materials to discovery partici- pate in the defense; called defendant names because he disagreed with counsel’s “trial strategy and omission of vital witnesses.” Defendant also alleged that Rene Brown would testify defense counsel had never called him to testify, despite Brown was a pertinent witness who had uncovered “startling” evidence. In sup- of the port motion, defendant attached several docu- ments: two letters from defendant addressed to defense counsel including a list of witnesses potential (discussed elsewhere in this opinion); of- the serology report defendants’ blood samples; letters of Warden and Roberts. Defendant did not that new counsel request be appointed argue his motion.
252
Defense counsel filed a mo- post-trial written separate tion for a new trial which made no mention of defend- The ant’s ineffectiveness claim. trial court subsequently motions, held a on and hearing following argument, both denied defense counsel’s motion. After that he stating se motion and pro had read defendant’s familiarized fully attachments, with of its himself “each and one” every the trial court invited the State’s The State es- response. argued allegations defendant’s concerned sentially matters of trial Defense counsel did not com- strategy. ment, nor Following did the trial court him. question State’s the trial court denied defendant’s arguments, motion, that, trial of the mat- ruling having experienced ter, of ineffectiveness alleged examples unquestiona- concerned trial tactics and The court bly strategies. added that defense counsel had defendant with provided legal representation throughout more than competent trial. At a later in the the court became hearing, point aware that also wished to comment and so al- defendant to further the motion. argue lowed defendant view, In our the trial court the necessary conducted examination of the factual matters. defend underlying v. Jackson (See People (1985), ant’s claim. 131 Ill. App. v. People Jackson 128, 139; 3d 158 Ill. 3d (1987), App. 394, The trial court’s determination was based 401.) counsel’s performance its defense upon knowledge of defendant’s on allegations trial and the insufficiency Washington, v. (See People Ill. 3d at App. their face. 184 Furthermore, additional on argument defendant’s 711.) the trial court the motion no basis which provided upon could decide otherwise. court’s ex however, the trial argues,
Defendant test” es “objective amination did not meet a so-called Jackson, Ill. 3d at App. tablished 230-32, Johnson because 98 Ill. 3d App. with de- interchange court did not an engage trial Yet, fense counsel before the motion. an deciding “[s]uch is to avoid interchange necessary abuses potential those who would claim situations of the Krankel falsely type.” (Jackson, 131 Ill. 3d at We fail to see App. 139.) how defendant can claim on basis, this since prejudice neither apparently defense counsel nor the trial court felt such an interchange necessary to enable counsel to rebut defendant’s charges. since the Consequently, trial court conducted a examination proper of the factual claims, bases for defendant’s meritless, them finding *64 defendant’s revealed no allegations possible neglect, new counsel need not have been Moreover, appointed. defend ant’s claim was not so well to have supported entitled him to an evidentiary hearing ineffectiveness concerning of counsel, even with the representation of his then cur rent defense counsel.
The Failure to Provide a Trial Transcript Defendant next contends that the trial court should have provided him “full, with a complete and unabridged transcript” proceedings before requiring the filing a motion for a new trial.
The record shows that at the trial, conclusion of on 13, 1987, the February trial court granted defendant a continuance of until March sentencing 3, 1987. On Feb- a, ruary 1987, defendant filed a motion requesting “full, complete and unabridged” transcript all pro- ceedings, and arguments were held that same The day. State motion, opposed arguing defense counsel had been provided of the transcripts two wit- principal nesses’ testimonies. counsel, himself,- Defense acknowl- edged of those receipt The trial transcripts. court with- held motion, on the ruling that it stating would not delay in sentencing order that defense hearing counsel could obtain the requested counsel, Defense transcript. however, might renew the motion if the need arose. 4, 1987, the mo-
On March defense counsel renewed tion; however, for trial court denied request “full, told unabridged transcript,” but complete, counsel that he entitled to the from trial. transcripts was 16, 1987, defendant’s motion for a new trial
On April was filed and Defense counsel did not indicate argued. of the trial transcript that he did not have benefit the motion. Of is the fact preparing significance defendant’s motion included all of the issues defendant raises on this with the of claims of appeal exception misconduct counsel’s ineffectiveness and prosecutorial . closing argument.
Since we consider those issues and do not invoke the doctrine of in that defendant has not regard, waiver that he did not have the assuming been even prejudiced, Furthermore, of a we are unaware of transcript. benefit the notion that a defendant has a authority supports full, unabridged transcript to a be- right complete, fore the of a motion for a new trial. Those authori- filing not support proposition. ties cited defendant do he was Yet, defendant claims that because additionally to show inef- not such a his provided transcript, ability se at the on such hearing pro post- fectiveness of counsel trial motion undercut. We disagree. *65 have the which defendant argument per-
We reviewed se ineffec- his pro made the on sonally during hearing is argument dependent upon tiveness motion. Not one or trial proceedings. or specific testimony, pretrial Defendant, for that and McCra- example, argued Gray trial, that he knew themselves at and had ney perjured however, stated, that he could so as “a fact.” Defendant held. hearing Similarly, that fact unless a was not prove testified, who had never claimed that persons defendant in- Blake, Dr. Warden, possessed exculpatory Sally, such claims did not a showing formation. Obviously, full, and unabridged securing complete depend upon merit- contentions Thus, find defendant’s we transcript. less. of Discretion
Prosecutorial Abuse Attorney the abused that State’s charges Defendant to avail- investigate by failing discretion his prosecutorial in these other persons information implicating able this information con- defendant, According crimes. Johnson. a certain Dennis cerned admissions former Carlson, appel- defendant’s Martin Attorney in at the hear- testified defendant’s behalf attorney, late that Carlson testified mitigation. ing aggravation concerning Dennis Johnson in 1980 he with spoke later, Five case, years of Rene Brown. presence notes and his an affidavit based upon Carlson prepared into the record. The affidavit was read memory. affidavit, Johnson told Carlson
According for “real” responsible he knew the perpetrators crimes, a close friend and that one such person disclose. Johnson whose name Johnson would not the actual concerning perpe- claimed to knowledge have one of having trators and said that he would consider those with Brown. persons speak cross-examination, acknowledged Carlson
Upon his indicated that met with Johnson’s
256
A letter which defendant had written to the prosecu- tors after death was also made a hearing his penalty letter, In defendant requested the record. the part the their and “re- prosecutors investigation reopen had informa- call the inasmuch as Johnson prosecution” tion other Defendant also referred implicating persons. Chicago Lawyer and Roberts’ article the Warden which indicated that others had committed crimes. defense counsel closing argument, During hearing’s Johnson information again referred Dennis said that it had been known for some time to trial. prior
The State’s has the evalu Attorney responsibility factors determin evidence and other ating pertinent (People what, if offense ing any, may charged. be Rhodes 389, 38 Ill. The is (1967), 396.) prosecutor 2d the criminal enforcing vested with wide discretion v. Marcisz (Marcisz 206, Ill. (1976), 210.) laws. 2d However, to see that Attorney’s it is the State’s duty to the public large is done not to the but “justice only v. Pohl (People 47 Ill. 2d (1964), App. well.” accused as ABA further 241-43.) provide Standards of his as the chief law enforcement official “prosecutor, relies on and other investi police jurisdiction, ordinarily acts, criminal for gative agencies investigation alleged to investigate but he has an affirmative responsibility dealt it is not adequately when suspected illegal activity 3.1(a) (1980). other ABA Standard agencies.” with 3— See also Ware v. Carey 75 Ill. 3d 914. App. us, and these several
Based record before upon considerations, Attorney we fail to see how the State’s The record is silent as discretion in this case. abused his lead ever investi- the Dennis Johnson whether Since the information was appar- State. gated by trial, to defendant’s to even the media prior known ently made, it seems more rea- if are to be assumptions any investigated. to assume such lead was sonable of Carl- testimony is from the Furthermore, it apparent *67 of worthy never considered that such a lead was son to find decline the defense. We therefore even pursuit by in his his discretion that the State’s abused Attorney the investigation. conduct of During Sentencing of
Ineffective Assistance Counsel that counsel’s performance Defendant defense argues First, defendant claims was deficient. during sentencing of certain witnesses presentation defense counsel’s no mitiga- of equivalent presenting substantive tion witnesses. to offer evidence in does mitigation failure
“[T]he not, itself, in and of demonstrate incompetence. [Cita 317, 370; Ill. Peo v. Shum 117 2d tions.]” 364, 389; 121 Ill. 2d see v. ple Orange (1988), Burger 483 L. Ed. 2d 107 S. Ct. Kemp (1987), U.S. 97 3114. so, case, in the instant defense counsel pre-
Even Rankin, of sented Alice the associate director Mary Illinois Coalition the Death who testi- Against Penalty, fied that she visited defendant on a basis while regular had, he was on death row in 1979 and 1980. She how- ever, him the four stopped visiting during previous him but continued to with and talk to years, correspond him Rankin testified that defendant had by telephone. adult,” become a mature “held thoughtful “responsible, row, esteem” on death and high by possessing others rehabilitative potential. the Illinois De- Cummins, caseworker with
Mary Aid, of that she partment Public testified had known defendant for two visited him years, having ap- about times, with him having spoken by proximately in recent months or three times a two telephone perhaps that correctional week. Cummins was to observe able his high upon held defendant esteem based personnel consideration, treatment with persons respect, Cummins also testified that defendant courtesy. pos- sessed rehabilitative potential. Carlson testified reference to the affida-
Attorney vit he had he some had prepared years previously, Dennis in the investiga- interviewed Johnson presence tor Rene Brown. Carlson testified that had im- Johnson defendants, other than knew plicated persons personally such and that had met persons, Brown subsequently them, with one of declined to reveal that person’s but identity. review,
Based this we fail to see how upon simply can defendant claim such evidence lacked mitigating Moreover, value. the record contains no indications what other evidence defense counsel mitigating could *68 v. Orange, argued. (See have introduced or 389-90.) Ill. 2d at Neither is defendant to to point able evidence dehors the record which any possible might have been offered. The situation here is not comparable States ex rel. Kubat v. Thieret United (N.D. to that in 788, defendant, Ill. 1988), 679 F. cited where Supp. by during 15 nonrelative witnesses testified for the defense a had to tes hearing and been post-conviction prepared evidence, if defense counsel tify concerning mitigating Thus, had called them. there is no here that de showing counsel, fense was an trial experienced who attorney, evidence, failed to or present mitigating alternatively, evidence existed which counsel did not present. find argu we defendant’s ineffectiveness Consequently, ment on this score. insupportable in- defendant claims that defense counsel’s
Secondly, effectiveness of an opening was evidenced his waiver by statement and insubstantial nature his allegedly in closing argument. This contention is equally lacking merit. statement opening an waiving or [mjaking [of]
“[The] in of judgment is a question defendant of a in behalf forego to chooses attorney if a defense strategy said cannot be certainly it statement an making opening (People competence.” of professional to reflect want that any Considering 169.) 38 Ill. 2d Georgev (1967), than trial court rather to the have been would argument incompe that waiver indicated cannot say to a we jury, tence. disputed successively the State argument,
At closing Rev. Stat. (111. factor. statutory mitigating each possible that defense believe 5—3.1.) We 1979, ch. par. 1005— reasonably, upon counsel, rely, quite chose response, on a sin- attention the trial court’s focusing a strategy doubt, cre- factor, residual nonstatutory mitigating gle, in- Furthermore, there is no testimony. ated Carlson’s by more a us dication in the record before the evidence pre- concentrated, argument intense would have or Cummins’ testimonies sented Rankin’s by sentence. of the death precluded imposition of defend- third basis We direct our attention failure to mean- claim, an alleged ant’s ineffectiveness Defend- the State’s evidence. aggravation attack ingfully failed in this regard ant contends that defense counsel which sentencing per- not materials before obtaining dis- alleged tained to the defendant’s participation not being prepared at the Stateville prison, turbance re- we will repetition, for cross-examination. To avoid this issue as well as view facts resolution pertinent *69 a related issue which follows. a “motion for counsel filed defense
During pretrial, as to aggravation.” and a of particulars bill discovery names disclose the that the State The motion requested in testify aggravation, of all expected witnesses reports, “relevant police their regarding testimony, counsel also filed sheets’, etc.” Defense statements, ‘rap a motion to compel State to disclose nonstatu- any tory factors to aggravating be at presented sentencing. At a later on the hearing motions, the trial court or- dered the State to make written disclosure, at some point prior sentencing, witnesses and evidence it intended to present aggravation. Defense counsel was also expressly noticed that evidence aggravation pre- sented at defendant’s first sentencing hearing might be offered State again sentencing. thereafter,
Shortly the State filed its list of potential witnesses, sentencing which incorporated by reference all trial witnesses and included numerous unidentified Illinois Department Corrections (IDOC) personnel. Nonstatutory factors aggravating were listed as defend- ant’s prior convictions and conduct while imprisoned within the IDOC. The State that it represented was in the process of obtaining defendant’s IDOC file and once the file reviewed, the identities of IDOC witnesses would be provided. No other potential witnesses were expected to be presented. 25, 1986,
On July the State filed a “Supplemental List of Witnesses for Potential Sentencing Hearing,” which identified 48 IDOC, from the Illinois persons State Police, and Will sheriff’s County’s department.
During defense counsel renewed sentencing, his prior for discovery request “police reports, statements,” etc. Defense counsel maintained that he had not received copies documents form might the basis for the potential witnesses’ testimonies. In the State response, it had entire acknowledged defendant’s IDOC file which had been just week supplemented previous with documents less than pertinent (comprising it pages), which intended to Defense counsel upon rely. was offered the The opportunity view materials. ruled, however, trial court the State subsequently had with due fully complied process requirements per- *70 a it had conducted that It noted sentencing. taining re- materials of voluminous in camera inspection prior included substan- Roberts, which Margaret ceived from incar- defendant’s concerning of information tial amount surprise not claim could defense counsel ceration, so in of substance. terms Larry the State’s witness examination
Direct testified Stigler officer, followed. a correctional Stigler, in a disturbance prison participated that defendant cross-exam- During hostage. had held been Stigler which in reliance he testified ination, admitted Stigler previously pre- that he had statement a written upon Af- court. had the statement that the State pared, coun- counsel, to defense was tendered ter the statement witness’ any" motion requesting his sel renewed then The trial court in the State’s possession. statements such recess to review counsel a brief defense granted defense objection continued Following materials. to “pe- IV2 hours court allowed counsel counsel, the trial for and to prepare information the materials for ruse” continued cross-examination. de- of Stigler, cross-examination the continued
During reports prepared into evidence counsel introduced fense did not in- the reports admitted that Stigler by Stigler. aggressive- defendant’s indicative of clude information DeRobertis, an as- Richard ness disturbance. during impeached Defense counsel testified. warden, sistant also of the his report introducing testimony by DeRobertis’ disturbance. prison period for a lengthy then recessed
The trial court ma- to review additional counsel time to defense enable file in prepara- IDOC from defendant’s terial (30 pages) former as- Welborn, a of George the examination tion for prior Just prison. Stateville sistant warden cross-examination, objected, counsel defense Welborn’s insuffi- a “woefully afforded he had been stating cient” period of time to In prepare. response, State offered that should counsel, defense cross-ex- following amination, find useful information in the file it would stipulate the information’s existence and a review by the sentencing court. Following Welborn’s cross-exami- nation, defense counsel was given possession of defend- ant’s IDOC file overnight.
During cross-examination, defense counsel specifically referred Welborn to information within defendant’s IDOC file. Welborn was impeached regarding his pre- vious and also testimony, impeached DeRobertis’ testi- Welborn mony. further that acknowledged reports indi- cated information reflecting on favorably defendant. At no time did defense counsel request stipulations concern- ing additionally discovered favorable information.
Based our upon extensive record, review of the we do not find that defense counsel’s performance was defi- cient under the circumstances. This case is not compara- ble to United States v. Hinton (D.C. Cir. 631 1980), F.2d defendant, cited by because defense counsel here objected to the vigorously last-minute production of ma- terials, and received several recesses lengthy review materials.
Furthermore, short notice despite and time con- straints, defense counsel managed to effectively cross-ex- amine the State’s witnesses al- regarding defendant’s leged role in the prison True, disturbance. defense counsel have might obtained the witnesses’ statements regarding Stateville incident by subpoena prior the sentencing hearing, but counsel had re- already quested the production of these materials, and none were or supplied, exist, indicated to until the time of the It hearing. is also apparent that defense counsel had prior of some knowledge details concerning the prison disturbance. We cannot fault defense counsel for failing to present all evidence with possible impeachment value, Pa reference defendant’s suggested as acquit 830 (codefendant 3d 132 Ill. App. liemar disturbance). from prison arising charges ted of counsel’s per- defense that assuming Moreover, even circumstances, we these under was deficient formance it was probability” “reasonable to a do not believe at 466 U.S. (Strickland, outcome-determinative. awas Defendant 2068.) 698, 104 S. Ct. 2d at
L. Ed. while two persons murdered felon who twice-convicted oc- of those deaths One offense. for a previous on parole statutory No felony rape. of a the course during curred fac- mitigating Nonstatutory factors existed. mitigating the State’s against evenly balanced perhaps tors were in- Thus, defendant’s factors. nonstatutory aggravating as well. this third basis claim fails on effectiveness claimed ineffec- regarding last argument Defendant’s coun- concerns defense the sentencing phase tiveness at phase or innocence guilt remarks during sel’s heinous,” justifying “most the crimes were “brutal” re- these claims Defendant “outrage.” community *72 surren- alleged counsel’s of defense marks are evidence sentencing. disagree. der at We ex conduct cannot defense counsel’s
An evaluation of of professional exercise involving areas tend into v. Franklin (People or trial tactics. discretion judgment, 105 (1984), v. Mitchell 78, 118; People Ill. 2d 135 (1990), that de case, it is obvious 1, Ill. In the instant 12.) 2d to diffuse the impact made fense counsel’s remarks were of the hor admission defense counsel’s of the crimes. By a non- nature became crimes, of the that rendous nature tlie crux could then focus upon the jury issue. Hopefully, in fact case, party whether the responsible of the that defense cannot say we Accordingly, them. before than other anything counsel’s remarks represented sound trial strategy.
Denial of Additional of Discovery Aggravation Evidence
Defendant presents an argument which is converse to his previous claim that defense counsel was ineffective by failing attack the meaningfully State’s aggravation evidence. Defendant maintains the trial court erred by denying defendant’s for requests further discovery police reports and witness statements which the State intended to on in rely aggravation. We have previously considered the record at length as it pertains to this is- sue. v. People Foster (1987),
Our decision in 69, 119 Ill. 2d 101-03, In Foster, we held is on controlling this issue. is not discovery at the constitutionally required sen tencing phase. We reasoned that defendant, at sentenc ing, “has been already and, convicted therefore, is ‘enti tled to fewer procedural safeguards than one who has ” Foster, v. not been convicted at all.’ (People 119 Ill. 2d quoting DeWitt 102, (1979), 82, 78 Ill. 2d 85; Gagnon v. Searpelli 778, 789, U.S. 36 L. 656, Ed. 2d 665-66, 1756, 93 S. Ct. 1763.) Furthermore, admissibility evidence at the aggravation and mitiga tion phase sentencing is not governed the restric tive rules of evidence in effect at the guilt stage. Defend ant’s contention case, the present is accordingly, unfounded. of the Illinois
Constitutionality Death Statute Penalty Defendant challenges Illinois death statute penalty ( Rev. Stat. ch. on par. several 1(d)) Ill. 9— bases. Defendant first charges invests provision prosecutors with unguided discretion to choose which defendants shall be subject to the death penalty, leading to the arbitrary capricious of death in imposition vio lation of the eighth (U.S. amendment Const., amend. *73 VIII).
265 77 Ill. 2d (1979), ex rel. v. Cousins Carey In People of of the Code Criminal 531, 1(d) held that section we 9— and the due the amendment eighth not violate 1961 did of because powers clause, abridge separation or process also Peo (See the afforded prosecution. of the discretion that under We found 129.) 88 Ill. 2d Lewis (1981), v. ple a to seek decision the prosecution’s section while 1(d), 9— nonetheless, discretionary, was hearing death penalty whether upon exercised dependent such discretion was Prose exist. sentencing for death the elements requisite evalua this further because guided cutorial discretion is of trial. made at the conclusion tive decision is v. Peters Silagy Circuit Most the Seventh recently, 498 986, (1991), F.2d cert. denied 1990), Cir. 905 (7th 1024, 111 Ct. held 1106, Ed. 2d S. 1110, 112 L. U.S. guide does not 1(d) provide that the fact that section 9— discretion the exercise of prosecutorial lines to assist The concerns. amendment eighth does not implicate to seek decision prosecutor’s court found that assessment his necessarily guided by death was penalty element of a specific of the possibility proving Such a decision was a doubt. crime reasonable beyond to the prosecu presented the same decision substantially L. 153, 49 Ed. U.S. Georgia (1976), tor in v. Gregg death 2909, Georgia penalty 2d 96 S. Ct. where did the exercise In neither instance statute upheld. category fall within discretion of prosecutorial has Court Supreme which discretion” “sentencing minimize the risk channeled said must narrowly be Georgia Furman and capriciousness. arbitrariness 2726. 346, 92 S. Ct. L. Ed. 2d 408 U.S. of the 1(d) section decision under “A prosecutor’s 9— sentence a death forgo or to commence Illinois statute the death sen- to ‘impose’ is not decision hearing statute, 993.) Under 905 F.2d tence.” (Silagy, initiat- that of limited to role is rather, the prosecutor’s *74 266
ing proceedings; or judge in the jury, exer- cise of their discretion, actually imposes sentence. Accordingly, we decline to reconsider our previous hold- ings.
Defendant next
that
argues
section
1(c) has been
9—
construed
this court as
the trier
disallowing
of fact
from
or
considering “sympathies
prejudices that
ex
may
ist” in violation of both the eighth and fourteenth
amendments
(U.S. Const.,
VIII,
amends.
XIV). (See Peo
v.
ple Morgan
112
(1986),
Ill. 2d 111, 146.) Relying upon
v. Brown
479
(1987),
538,
U.S.
93 L. Ed. 2d
California
934, 107 S.
837,
Ct.
defendant maintains that such con
strual has been rejected as violative of constitutional
rights. (See also Caldwell v. Mississippi
472 U.S.
(1985),
320, 331, 86 L.
231, 240-41,
Ed. 2d
Defendant’s
third argument
is a general attack upon
the death penalty statute’s
failure
alleged
to adequately
safeguard against
and
arbitrary
capricious
imposition
death sentences. Defendant
urges
we reconsider our
previous holdings that
the breadth of prosecutorial dis
cretion is appropriate
v.
(People Albanese
104
(1984),
Ill.
v.
504;
2d
Eddmonds (1984),
Next, defendant inas protection process equal due statute violates to a unique narrow much it fails to adequately as for from death eligible those group persons cognizable Defendant argues of murder. others found guilty of mur real type there exists no distinction between returned, or in the must be der for which a conviction *75 under which must be found of factor type aggravating 1979, 38, ch. Rev. Stat. (Ill. the death statute penalty life stat imprisonment as to the 1(b)), compared par. 9— Rev. Stat. (Ill. ute under the Code of Corrections Unified 1979, 38, to defend par. 8—1(a)(1)).According ch. 1005— therefore exists ant, no distinction” be “meaningful defendants. See v. Godfrey tween the two of categories 398, 420, 446 U.S. 64 L. Ed. 2d 100 S. Georgia (1980), 862, 1759; Ct. see also Zant v. 462 U.S. Stephens (1983), 235,103 77 L. 2d S. Ct. 2733. Ed. 324, 352,
In 112 Ill. 2d this Olinger (1986), v. People (1980), court held that its in v. Brownell People decision of this issue. In 508, 533-34, 79 Ill. 2d was dispositive Brownell, which balancing op we discussed the process 1(b) erates under sections during sentencing death 9— 1977, 38, of the Stat. ch. (f) (Ill. Criminal Code Rev. to life im which be pars. 1(b), (f)), may preliminary 9— sections, once the Under these prisonment sentencing. the aggravating the existence of of any State has proved or doubt, a unanimous jury factors a reasonable beyond factors mitigating against the court must weigh that no fac mitigating factors and conclude aggravating the death sen imposition tors sufficiently preclude the require- It -with conjunction tence. is this process, 268
ment
of proof
beyond
reasonable
doubt
any
factor,
aggravating
as well as
(134
review
Ill.
mandatory
2d R.
which
603),
sufficiently circumscribes
the class or
persons
for the death
eligible
is
penalty. “What
impor
tant at the selection
is an individualized
stage
determina
tion on the
of the
basis
character
of the individual and
of the crime.” (Zant v.
Stephens,
the circumstances
462
879,
U.S. at
77 L. Ed.
at 251,
2d
Defendant also challenges death statute penalty on the alleged basis that available evidence indicates it is in a applied racially manner. In discriminatory sup Application the Death port, defendant cites Murphy, Penalty in Cook County, 73 Ill. B.J. 90 con (1984). We tinue, however, adhere to the views which we ex Davis pressed 119 Ill. 2d 66-68. (1987), The defendant fails to authority presents “demonstrate risk of constitutionally significant racial bias” affecting McCleskey v. our death scheme. See statutory penalty Kemp 279, 313, L. 262, 292, U.S. Ed. 2d 107 S. Ct. 1778.
Defendant’s final is that argument death penalty statute is unconstitutional in that it a burden of places persuasion upon defendant death prove *76 should not be imposed. Under sections and 1(g) (h), 9— two of the death stage sentencing the penalty hearing, State, movant, as to show that the defendant attempts should receive death sentence by establishing “there are no factors sufficient to mitigating preclude of the death sentence.” Rev. Stat. imposition (Ill. 1979, 38, ch. As pars. 1(g), (h).) we have previously 9— held, the State has the forward with the going burden (People v. Williams 252, evidence. Ill. (1983), 97 2d 302- v. People Ramirez Peo- 03; 439, 468-69; 98 Ill. (1983), 2d 105 Ill. 2d decline to (1985), 414.) v. Del Vecchio We ple and, reject accordingly, reconsider these decisions defendant’s final argument. stated, of the judgment
For the reasons we have circuit court of Cook is affirmed. The clerk County is an order setting Tuesday, this court directed enter 28, 1992, as the date on which the sentence of January the circuit is to executed. The death entered court be by defendant shall be executed in the manner provided by section 119—5 of the of Criminal Procedure of Code A certi (Ill. 5). Rev. Stat. ch. par. 119— fied of the mandate in this case shall delivered copy be Corrections, the clerk of this court to the Director of by Center, to the warden Stateville Correctional is con warden of institution wherein defendant fined.
Judgment affirmed.
CLARK, concurring:
JUSTICE
I
court,
concur with the
of the
opinion
sepa
but write
rately
explain
differences between the instant
case and
Defendant was convicted and sentenced to death for
his
in
role
the same
and double homicide for
gang rape
which Verneal Jimerson
and sentenced to
was convicted
death in
Jimerson,
trial. I dissented in
stat
separate
I would
ing
have reversed the defendant’s conviction be
cause his
(1)
counsel
failed to
evidence that
produce
oath,
Paula Gray gave
under
which exonera
testimony,
occasions;
ted
on
Jimerson
four
failed to
prior
(2)
pro
retarded;
duce
(3)
evidence
was
Gray
mentally
did not offer
inconsistent statements as
Gray’s prior
sub
J.,
Although the two cases relate to the same I crimes, believe the instant case is distinguishable from Jimer- son. The only evidence which linked Jimerson to the crimes was the testimony Paula Gray. While Gray occurrence only witness to in testify case, this she was not the witness to only implicate Williams. Charles testified that on the McCraney murders, of the night he saw Williams enter apartment building which Carol Scmal’s addition, was found. In body McCraney testified that on the day murders, he following heard make Williams incriminating statements.' also McCraney Jimerson, testified he but was unable to Jimer- place son at the Further, scene of the crime. Jimerson, unlike Williams did not offer alibi evidence any at his trial. distinctions,
Based on these the case against Williams is than that stronger against Jimerson, and therefore I concur with the majority opinion affirming defendant’s conviction and sentence.
(No. 72662. THE PEOPLE OF THE STATE OF ILLINOIS ex rel. al., Plaintiffs,
ROLAND BURRIS et v. GEORGE H. al., RYAN et Defendants. 13, 1991,
Opinions January December 1992. filed notes Brown had unidentified friend and that Brown had related Brown, he shot Schmal. “virtually” admitted person however, name, tell this person’s would not Carlson investigation his to the wanting approach own employ admitted that he had and Carlson Carlson also agreed. occasions, did to defense counsel on several but spoken him the name of the killer. not tell that Brown knew or the State’s At- Neither did Carlson contact police that Brown this learning office torney’s upon possessed knowledge.