Appeal from the Circuit Court of Lake County, the Hon. Lloyd
A. VanDeusen, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 29, 1980.
The defendant, Robert K. Carlson, Sr., was sentenced to death in the circuit court of Lake County. The appeal has come directly to this court. (Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill.2d R. 603.) The defendant argues that numerous errors were committed in his convictions on two murder charges and an arson charge. He also challenges the validity of the imposition of the death penalty.
The defendant was charged by an indictment in Lake County with the murder of his former wife, Rosemary Carlson, and the arson of her residence. He was also indicted for the murder of Waukegan police officer Harry White and for the attempted murder of Waukegan police officer Charles Mason. The attempted murder charge was later dropped. On defendant's motion, the two cases were consolidated for trial. The defendant pleaded not guilty to the charges. The jury found the defendant guilty of one count of arson and two counts of murder. The State requested that a hearing be conducted in order to determine the appropriateness of the imposition of the death penalty in the case involving the murder of Officer White. (See Ill. Rev. Stat. 1977, ch. 38, par. 9-1(d).) The defendant requested that there be only one sentencing hearing for all convictions. He also waived the right to have a jury determination of whether the death penalty should be imposed. (See Ill. Rev. Stat. 1977, ch. 38, par. 9-1(d).) Following the penalty hearing the court sentenced the defendant to 6 1/3 to 20 years for arson and 50 to 100 years for the murder of his former wife. The court sentenced the defendant to death for the murder of the Waukegan policeman, White. The trial court entered an order staying the execution of the death sentence, pending direct appeal to this court.
On August 12, 1977, after 19 years of marriage, Rosemary Carlson was granted a divorce from the defendant. In this case the defendant testified that he had agreed not to contest the divorce on the condition that Rosemary would not entertain men at the house. Carlson quitclaimed his interest in the marital residence to Rosemary. Although he moved out of the house, the defendant and Rosemary continued to see one another. Carlson testified that remarriage was planned for October 18, 1977; Rosemary, however, postponed the wedding date. On Wednesday, November 9, 1977, Rosemary called the defendant and told him that because she had a "boyfriend," she would not be seeing the defendant as frequently as before. Before the defendant went to work the following day, Rosemary came to his apartment for money. During this visit, she again discussed her boyfriend. The defendant testified that he was "stunned" by the news of her boyfriend. He stated that he decided to go to Las Vegas and he arranged to buy a gun at work purportedly for protection on his trip. On Friday, November 11, 1977, the defendant purchased a gun and ammunition from a co-worker. He testified that after work he wrapped the loaded gun in a towel and placed it on his car's front seat. The next day, Saturday, November 12, 1977, the defendant went to the bank, withdrew the money in his account and cashed some traveler's checks. In the evening the defendant drove past Rosemary's house twice with the purported intent to give Rosemary money. Each time he saw a strange car in the driveway, so he did not stop. The defendant "got mad," assuming that Rosemary was entertaining a man at the house, contrary to the oral agreement they had made. He purchased two gasoline cans and filled them with gasoline. He placed the filled gasoline cans in the trunk of his car. He testified that he planned to burn the house down the next day when Rosemary drove their son Eric to school. He stated, however, that late that night, while lying in bed, he realized that he could not burn down the house because it would cause Rosemary to go to her boyfriend.
The following day, Sunday, November 13, 1977, Rosemary called the defendant to ask him to accompany her and Eric to Lake Geneva, Wisconsin, where Eric attended school. Before going, he picked up some medication for Rosemary. At the school, the defendant put money in both Eric's personal account and in his quarter-master account. After leaving Eric at the school, the defendant and Rosemary shopped and he bought her a sweater. They had dinner in Lake Geneva and returned to Rosemary's house. On the way home, Rosemary again talked about her boyfriend and showed the defendant a diamond engagement ring which had been given to her by her male friend. She told the defendant that her boyfriend wanted to build her a house and buy her a business. She informed Carlson that her boyfriend put $3,000 in a savings account for her and bought her a vacuum cleaner. Upon arriving at the house the defendant noticed a new typewriter, television and coin bank. Rosemary told him that these were gifts from her boyfriend and that the coin bank was given to her when her friend opened the savings account. The defendant testified that seeing these items made him realize that everything his wife had said was true.
Carlson stated that the next thing he could remember was lifting his former wife from the floor. Expert testimony at trial revealed that Rosemary had been shot 10 times. It is not clear from the evidence, but at some time on the same day, Sunday, the defendant had brought the gasoline cans into the house. On his way in, some children playing near the house saw the defendant, but they testified he was not carrying anything resembling gasoline cans. However, it is uncontroverted that the defendant poured gasoline throughout three rooms and set fire to the house. Upon leaving the house, the defendant greeted some of the boys playing in front of the house. Within minutes, the boys noticed flames in the house and called the fire department. The fire was reported at approximately 6:20 p.m. Firemen found Rosemary's body in the debris. An autopsy showed death to be a result of multiple gunshot wounds. Testimony was admitted which indicated that, since there was little soot or smoke in her lungs, Rosemary was dead before the fire began.
After leaving the house, the defendant proceeded to a bar. There he encountered a co-worker, Stanley Wilson. After an unsuccessful attempt to telephone his daughter, the defendant told Wilson of his plans to leave for California that night. He gave Wilson $3,200 in cash in an envelope to pay for Eric's education. He asked that the money be forwarded to his daughter who resided in Wisconsin. The defendant also sold Wilson his tools and television set for $200. After these transactions, the defendant and Wilson continued to sit and drink in the bar for some time. At approximately 9:40 p.m., three police officers and an assistant State's Attorney came to the bar to arrest the defendant. Another police officer, Sergeant Hauri, the only one in uniform, entered minutes later. The defendant testified that he was aware that the persons were police officers. Captain Mason, Sergeant Joiner and the deceased, Sergeant White, approached the area where the defendant and Wilson were seated on bar stools. Captain Mason stood behind Wilson and, believing Wilson to be the defendant, mistakenly grabbed Wilson and said, "Bob, you're under arrest." Sergeant White stood behind the defendant and said, "Mr. Carlson, you have to come with us." It is uncontroverted that as the officers approached, the defendant had taken a gun out of his waistband. According to the testimony of Sergeant Hauri, the defendant faced Sergeant White, and two muzzle flashes reflected off of Sergeant White's shirt. White fell toward the defendant, pulling the defendant to the floor. They struggled for several seconds on the floor, during which time three or four more shots were fired by the defendant. Another bullet hit White and a bullet went through the defendant's upper left arm. Captain Mason was shot through his left ankle and sustained an injury to his left buttocks due to a ricocheted shot. Sergeant Joiner finally managed to wrest the gun from the defendant's right hand. White was taken to a hospital where he died that evening. The autopsy revealed that White died of bullet wounds to the chest.
At the trial the defendant raised the defense of insanity as to the charge of murder of his ex-wife, Rosemary, and as to the arson charge. Concerning the charge of murder of Sergeant White, it was the defendant's contention that when the police officer approached him in the tavern, he was going to commit suicide and as he was attempting to do so, the officer was shot during the struggle that ensued. It is the defendant's position that he is therefore guilty of no more than involuntary manslaughter as to Sergeant White's death.
Before trial the public defender filed a motion requesting that the prospective jurors not be questioned about their views on the imposition of the death penalty due to the alleged unconstitutionality of the statute. This motion was denied. The State had informed the court and counsel that the death penalty would be sought. During voir dire examination several jurors were excused due to their response that they would conscientiously be unable to impose the death sentence.
Following conviction the court held a death sentencing hearing pursuant to the State's request. Although the State informed the court that it was seeking the death penalty only for the conviction based on the murder of Sergeant White, counsel mutually agreed to consolidate the convictions into one sentencing hearing. Evidence was heard in aggravation to establish beyond a reasonable doubt that White was a police officer on November 13, 1977; that he had been assigned to investigate the homicide of Rosemary Carlson; that the defendant was more than 18 years old; and that the defendant knew that White was a police officer in the exercise of his official duties.
In mitigation, the defendant offered the testimony of Dr. Gerald Frank, an internist who treated the defendant for five years. His testimony will be discussed later. He observed that during a year or two prior to November 1977 the defendant had undergone a process of "physical and emotional deterioration." Dr. Leo Goldman, a psychiatrist, testified in mitigation that the defendant was "most unlikely to commit such an offense" in the future, and that the defendant was "extremely distraught" at the time he shot Sergeant White. The defendant also testified in mitigation at the sentencing hearing. He expressed remorse for his acts and stated that he never intended to kill anyone but himself.
The court found beyond a reasonable doubt that the defendant, a 46-year-old man, had murdered a peace officer in the course of the performance of his official duties, knowing that the murdered individual was a peace officer. Moreover, the court found that the defendant was not attempting to commit suicide at the time of the murder and that the defendant was not acting under the influence of extreme mental or emotional disturbance when the murder was committed. Finally, the court found that although the defendant did not have a significant history of prior criminal activity, that factor was diminished greatly, if not totally extinguished, by the defendant's convictions for murder and arson, and was thus not sufficient to preclude the imposition of the death penalty.
The defendant raises many issues on this appeal which we will address. However, inasmuch as we find the death sentence to be inappropriate to this case, we need not address those issues raised concerning the constitutionality of the Illinois statute. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1.) Similar issues concerning the validity of our statute were raised and resolved in our recent opinion of People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531.
Defendant now contends that there were numerous trial errors which require reversal of his convictions. We note that several of these alleged errors were not objected to by the defendant at trial. We therefore consider they have been waived.
It is fundamental to our adversarial system that counsel object at trial to errors. (People v. Roberts (1979), 75 Ill.2d 1, 10.) The rationale underlying this procedural requirement is based on the need for timely resolution of evidentiary questions at trial. (People v. Linus (1971), 48 Ill.2d 349, 355.) Thus, we have generally held that the failure to object to the admission of evidence operates as a waiver of the right to consider the question on appeal. People v. Newbury (1972), 53 Ill.2d 228, 238-39; People v. Scott (1972), 52 Ill.2d 432, 439, cert. denied (1973), 410 U.S. 941, 35 L.Ed.2d 607, 93 S.Ct. 1406; People v. McCorry (1972), 51 Ill.2d 343, 349; People v. Linus (1971), 48 Ill.2d 349, 355.
We recognize, however, that the waiver doctrine is not absolute. (See People v. Burson (1957), 11 Ill.2d 360.) Our Rule 615(a) embodies the exception to the waiver rule. It provides, in part:
"Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." 73 Ill.2d R. 615(a).
A significant purpose of the plain error exception to the waiver doctrine is to correct any serious injustices which have been done to the defendant. It therefore becomes relevant to examine the strength or weakness of the evidence against him; if the evidence is close, there is a possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved. Thus, this court has held that where the evidence is closely balanced, a court of review may consider errors that have not been properly preserved for review. People v. Howell (1975), 60 Ill.2d 117, 121; People v. Pickett (1973), 54 Ill.2d 280, 283.
In addition to the protection of the defendant in cases where the evidence is closely balanced, the plain error rule also encompasses those errors of such magnitude that the commission thereof denies the accused a fair and impartial trial. People v. Manzella (1973), 56 Ill.2d 187, 195.
If a timely objection is made at trial, either to improper interrogation, or to an improper remark by counsel to the jury, the court can, by sustaining the objection or instructing the jury to disregard the answer or remark, usually correct the error. (People v. Wilson (1972), 51 Ill.2d 302, 308-09 (court cured prejudice that may have resulted from inadmissible evidence); People v. Baptist (1979), 76 Ill.2d 19, 30 (court cured prejudicial effect of final argument).) There are situations, however, where the error is so damaging that such action by the trial judge cannot erase its prejudicial effect. See People v. Garreau (1963), 27 Ill.2d 388, 391 (prejudicial effect of remarks in final argument not cured by sustaining objections to the remark and admonishing the jury to disregard them); People v. Polenik (1950), 407 Ill. 337, 347 (prejudicial effect of interrogation not cured by sustaining objection); People v. Gregory (1961), 22 Ill.2d 601, 605 (prejudicial effect of inadmissible evidence not cured by the court's sustaining the objection and giving a cautionary instruction).
The failure of counsel to object at trial waives those errors which the court can correct by sustaining an objection and admonishing the jury. Otherwise, counsel, by not giving the court the opportunity to prevent or correct error at trial, will gain the advantage of obtaining a reversal through his own failure to act, either intentionally or inadvertently. Whether or not the erroneous evidence or remarks were objected to at the trial, a court of review will grant relief if the trial error is so prejudicial that real justice has been denied or the verdict of the jury may have resulted from such error. (People v. Wright (1974), 56 Ill.2d 523, 533-34; People v. Manzella (1973), 56 Ill.2d 187, 200.) We thus construe the plain error rule to be a limited exception to the waiver doctrine. As we stated in the case of People v. Precup (1978), 73 Ill.2d 7, 16:
"Rule 615(a) does not operate in the nature of a general saving clause preserving for review all errors affecting substantial rights whether or not they have been brought to the attention of the trial court."
Applying the above, we find that several of defendant's alleged errors relating to his conviction of the murder of Rosemary and of arson were unobjected to. They do not tend to negate his defense of insanity. The defendant does not deny that he killed his ex-wife or that he set fire to the house. The alleged errors could not therefore be so great that it would reasonably appear that the jurors had been influenced or prejudiced to the extent that they could not be fair or impartial. (See People v. Manzella (1973), 56 Ill.2d 187, 200.) The alleged trial errors involve evidence of Rosemary's lifestyle since her divorce, testimony about her facial expression after she was killed, testimony concerning her missing diamond ring, testimony that the assistant State's Attorney told the officers there was probable cause to arrest the defendant for murder and arson, and the interrogation of the son of the defendant and Rosemary concerning an argument between his parents. These items were not properly objected to and therefore have been waived.
Defendant argues that the prosecutor, in suggesting that defendant made a prior inconsistent statement, substantially prejudiced the defendant before the jury. This contention is based on the following exchange during the cross-examination of defendant:
"[The prosecutor]. And he took it [the gun] out of your hand because you were still firing on the ground; isn't that correct?
Q. As a matter of fact, when you first talked to a police officer in the Waukegan police department, you told them you didn't remember what happened at Rosemary's house, didn't you?
Q. As a matter of fact, you told them that you drew a blank on what happened at the bar, too, didn't you?
A. No. I remember what happened in the bar.
Q. Didn't you first tell them, `I'm sorry. I don't know. I ...