Appeal from the Circuit Court of Cook County, the Hon. Richard
J. Petrarca, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 29, 1982.
The defendant, Dickie Gaines, and his brother, Michael Gaines, were jointly indicted by the grand jury of Cook County for the murder of Andre Davis, the murder of Causia McCall, the attempted murder of Lenious Thomas, the armed robbery of Davis, and the armed robbery of Thomas. These felonies were all committed in a single criminal episode which took place in the early morning hours of December 22, 1978, at a house on the south side of Chicago. The indictment charged that a handgun had been used in the commission of the offenses, and thus the accused were also charged with armed violence.
A motion by the defendant for severance was granted, and he was tried by a jury, which found him guilty on all charges. (Michael Gaines was tried before a separate jury, was found guilty except for the robbery of Davis, and was sentenced to imprisonment. His appeal is now pending in the appellate court.) In Dickie Gaines' trial the State requested a separate sentencing proceeding, which was heard by the same jury. The jury determined that there were no mitigating factors sufficient to preclude the imposition of the death sentence. On November 2, 1979, the court sentenced the defendant to death on his convictions of murder. The court directed that the sentence be carried out on January 28, 1980, and that the defendant be imprisoned in the penitentiary until that time. An appeal to this court was automatically perfected pursuant to article VI, section 4(b), of the 1970 Illinois Constitution and Rule 603 (73 Ill.2d R. 603). The trial court stayed the execution pending this appeal.
The circumstances of the crimes were testified to by Thomas, who was called as a witness by the State. The defendant did not testify and offered no evidence at the trial. Michael Gaines was not called as a witness by either party. Except with respect to the charges of armed robbery of Thomas and Davis no claim is made that the defendant's guilt was not proved beyond a reasonable doubt.
On the afternoon of December 21, 1978, Davis was visiting Thomas at the house where Thomas lived with his parents. Thomas was then 17 years old, and Davis was 24. At about 4 p.m. Davis and Thomas left the house. After visiting and having dinner with a girl friend of Davis, whose name Thomas did not know, the two men went to a tavern in Chicago, where they arrived about midnight. Davis began to shoot pool with an acquaintance named Allen Thompson while Thomas watched the game from a seat at the bar. Davis and Thompson bet money on the outcome of each game, and Thompson testified that he had won $175. In the course of the evening Thomas made the acquaintance of Michael Gaines, whom he had never met before, and at one point Thomas shared with Michael a marijuana cigarette which Thomas had just obtained from Davis.
At about 2 a.m. on December 22, the tavern's closing hour, Thomas, Davis, and Michael Gaines left in a group. As they went out the door they were joined by the defendant. The latter had also been present in the bar, but Thomas, who had never met him before, had had no conversation with him.
The group proceeded to a two-story house where Davis said he wanted to pick up some clothes that belonged to him. Davis' mother, Mrs. Gloria McCall, who was called as a witness for the limited purpose of establishing that Davis had been seen alive shortly before December 22, testified that Davis had been spending his weekends at this house since October. Thomas had never been at the house before.
Davis and Thomas went up to a bedroom at the back of the second floor where they saw a man asleep on a mattress laid on the floor. This man, whom Thomas did not know, was wearing a pair of boots which Davis said were his. After an unsuccessful attempt to awaken the sleeper, Davis removed the boots and then, removing his own shoes as well, put on the boots. Thomas and Davis, who was carrying his shoes in one hand, then walked into an adjacent bedroom where they saw another man asleep on a couch. This man, who was also unknown to Thomas, was later identified as Causia McCall. Davis walked over to the couch while Thomas remained standing near the door.
The whereabouts of the defendant and his brother up to this point are not made clear by Thomas' testimony, but it appears that they had entered the house along with Davis and Thomas and had also ascended to the second floor. While Thomas and Davis were in the room where McCall lay sleeping, the defendant and Michael came up to the door, and the defendant said, "This is a stick up," producing a pistol. Thomas, who was standing about three or four feet from the defendant, pulled two dollar bills from his pocket, and turned toward the defendant, who began to fire his gun. Thomas was not struck by a bullet, but he threw himself to the floor in a prone position. He heard several shots fired, and then, hearing footsteps which he took to be those of persons leaving the room, he got up and saw Davis lying on the floor. Thomas then ran out of the house and down the street. He encountered a police squad car, and told the officers that there had been a shooting. Thomas guided the officers to the house, where they found two bodies lying on a couch in one upstairs bedroom. In another bedroom at the rear of the house the officers also found a man who was asleep. Upon being awakened, he gave his name as Townshend. Townshend was not called to testify.
After the defendant was apprehended and arrested on January 2, 1979, Thomas identified him in a police lineup. In autopsies performed on McCall and Davis one bullet was recovered from McCall's body and two bullets from Davis'. There was expert testimony that in each case death had resulted from gunshot wounds. Expert testimony was also given that the bullets recovered from the bodies of Davis and McCall could only have been fired by a pistol which had been found by police in an attic in the defendant's house.
At the sentencing hearing the State presented evidence of conduct by the defendant which had not been brought out at the trial as additional aggravating factors. As testified to by the victim, in March 1976 the defendant and two other persons took a purse from a school teacher while she was walking from a mobile classroom to another school building, and knocked her to the ground. The victim was five months pregnant at the time. On May 5, 1977, the defendant was found guilty of robbery, and was sentenced to imprisonment for a term of not less than one and not more than three years. It appears that he was released in June 1978, six months before he committed the crimes involved in the present appeal. There was also testimony by two women friends of the defendant that prior to his apprehension he threatened to kill or injure them if they did not give him money. Two deputy sheriffs assigned to escort the defendant between the lockup and the courtroom testified that on two occasions the defendant had threatened them and that on another occasion they had found concealed on his person a steel pick, two hacksaw blades, and a $10 bill.
The defendant did not take the stand at the penalty hearing, and he called no witnesses to rebut the State's evidence in aggravation or to testify to any mitigating factors.
The defendant puts forward some 18 grounds for reversal. These include charges that section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1), sometimes referred to herein as "the Act," violates the Constitution of the United States and the Constitution of Illinois in various respects, and alleged errors at the trial and at the sentencing hearing. We begin with a consideration of those contentions directed against the proceedings which led to the defendant's conviction, the first of which is that the jury was improperly selected.
The defendant contends that several veniremen were excused for cause in violation of the criteria specified in Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770. In Witherspoon the Supreme Court, although holding that a potential juror's opposition to the death penalty did not disqualify him, stated:
"We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." (Emphasis in original.) 391 U.S. 510, 522-23 n. 21, 20 L.Ed.2d 776, 785 n. 21, 88 S.Ct. 1770, 1777 n. 21.
This delineation of the permissible bases for excluding a juror was adhered to in Boulden v. Holman (1969), 394 U.S. 478, 482, 22 L.Ed.2d 433, 437-38, 89 S.Ct. 1138, 1140-41, Maxwell v. Bishop (1970), 398 U.S. 262, 265, 26 L.Ed.2d 221, 224, 90 S.Ct. 1578, 1580-81, Davis v. Georgia (1976), 429 U.S. 122, 123, 50 L.Ed.2d 339, 341, 97 S.Ct. 399, 399-400, and Adams v. Texas (1980), 448 U.S. 38, 44, 65 L.Ed.2d 581, 589, 100 S.Ct. 2521, 2525.
The defendant states that of the 31 veniremen excused for cause on the basis of their opposition to the death penalty only 27 stated that they would automatically vote against it, while the answers of the other four jurors were "equivocal." That characterization is incorrect; it results from the defendant's focus on a single question and answer in isolation from the others. We set out the colloquies in their entirety below. Our examination of them satisfies us that the standards of Witherspoon were met.
"Q. Mrs. Wille, do you have any scruples, by which I mean strong feelings, by reason of religion or conscience against the death penalty?
Q. You have scruples against the death penalty, no matter what the particular facts might be?
Q. Would your scruples about the death penalty, interfere with or affect your ability to determine guilt or innocence in accordance with the evidence and the law?
Q. If the defendant is found guilty of the charges before the court, would you consider all of the possible penalties available under state law, including the death penalty?
Q. Would your scruples prevent you from considering the death penalty in the present case?
Q. Would you automatically hold against the death penalty, no matter what the facts of this case reveal?
Q. You would vote against it?
THE COURT: Thank you. The Court will excuse you."
"Q. Ms. Parker, do you have any scruples, by which I mean strong feeling by reason of religion, or conscience against the death penalty?
Q. Do you have these scruples against the death penalty, no matter what the particular facts might be?
Q. Would your scruples about the death penalty interfere or affect your ability to determine the guilt or innocence in accordance with the evidence in the law?
Q. If the defendant is found guilty of the charges before the court, could you consider all of the possible penalties available under the state law, including the death penalty?
Q. Would your scruples prevent you from considering the death penalty in the appropriate case?
Q. Would you automatically vote against it; against the death penalty, no matter what the facts of this case reveal?
The court will excuse you."
"Q. Mrs. Gibbs, do you have any scruples, by which I mean strong feelings of religion or conscience against the death penalty?
Q. Do you have these scruples against the death penalty no matter what the particular facts of this case might be?
Q. Would your scruples about the death penalty interfere with or affect your ability to determine guilt or innocence in accordance with the evidence and the law?
Q. It would not interfere with your scruples?
A. I don't think they would.
Q. If the defendant is found guilty of the charges against him before this court, would you consider all of the possible penalties available under the state law, including the death penalty?
A. That's kind of hard, but I don't think so.
Q. Would your scruples prevent you from considering the death penalty in ...