Appeal from the Circuit Court of Cook County, the Hon. Louis
B. Garippo, Judge, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
The defendant, Roberto E. Ramirez, 51 years of age, was found guilty of murder and attempted armed robbery following a bench trial in the circuit court of Cook County. The defendant was not sentenced on the attempted-armed-robbery conviction but, pursuant to the discretion granted it by the Illinois death penalty statute, the prosecution requested a death penalty hearing on the defendant's murder conviction. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(d).) The defendant exercised his right to a bifurcated jury sentencing hearing. The jury found, in stage one of the bifurcated hearing, that the defendant was over 18 years old and that a statutory aggravating factor existed: that the deceased was "killed in the course of another felony." (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)(6).) In stage two, the jury found that there were "no mitigating factors sufficient to preclude the imposition of the death sentence" and signed the verdict form for the sentence of death. Ill. Rev. Stat. 1977, ch. 38, par. 9-1(g).
On May 30, 1979, the trial court entered judgment on the jury's verdict and scheduled defendant's execution for August 12, 1979. Defendant's sentence was automatically stayed pending disposition of the appeal by this court pursuant to Supreme Court Rules 603 and 606. 87 Ill.2d Rules 603, 606.
On September 7, 1977, the defendant entered the First National Bank of Lincolnwood armed with a .38-caliber pistol. The defendant approached James Koumoundouros, an off-duty Chicago policeman who was working as an armed security guard at the bank. The defendant instructed the guard to put his gun down. Koumoundouros began to rise from the desk he was sitting behind while slowly taking his pistol out of its holster with his left hand. He also reached under the desk with his right hand and activated an alarm button which alerted the local police station and set hidden bank cameras in motion. Three gunshots were fired, one from the gun of Koumoundouros and two from the gun of the defendant. The defendant was shot in the thigh, and Koumoundouros suffered a fatal wound to his neck. The two bank cameras photographed the entire incident, each camera taking two pictures per second.
After the shooting, the defendant ran from the bank and jumped into his car, which he had left in the bank parking lot. The defendant had taped license plates which were not registered to him over his own plates. After circling the parking lot twice, apparently to determine if a police car nearby was following him, the defendant fled the scene. While being chased in his car, the defendant crashed into a tree. The defendant was placed under arrest at that time.
At trial, the defendant pleaded insanity. The basic theory of his defense was that due to a long history of alcoholism and heroin addiction, he suffered from alcohol psychosis and organic brain damage which rendered him legally insane at the time of the offense. The trial judge rejected the defendant's theory and found him guilty of murder and attempted armed robbery.
During stage one of the sentencing hearing, the prosecution presented evidence of the September 7, 1977, bank robbery during which the deceased was shot. The prosecution also introduced evidence of an August 6, 1977, bank robbery of the same bank which was also committed by the defendant. The August 6, 1977, bank robbery was also filmed by the two hidden bank cameras. Frances Huritz, a senior vice-president and branch manager of the bank, testified that the defendant was the same man who had robbed the bank on August 6, 1977. Portions of the defendant's trial testimony were introduced by the prosecution at stage one of the sentencing hearing over the objection of defense counsel. At the conclusion of stage one, the jury returned its verdict finding that the defendant was over 18 years of age at the time of the offense and that the statutory aggravating factor of "in the course of another felony" existed, making the defendant eligible for the death penalty.
Stage two of the sentencing hearing consisted of evidence in aggravation and mitigation. The defense relied on two factors which it introduced in mitigation. First, defendant contended that his chronic alcoholism and heroin addiction created an extreme mental and emotional disturbance and, second, that he only shot the deceased after he was shot himself. In aggravation, the State introduced evidence of the defendant's 14 prior convictions and introduced testimony relating to several other offenses. The State also argued that the deceased had not fired the first shot, but even if he had, it did not matter.
In stage two, the jury returned a verdict finding that there were "no mitigating factors sufficient to preclude the imposition of the death sentence."
On appeal before this court, the defendant raises 30 issues. None of the issues the defendant raises relate to his convictions for attempted armed robbery and murder. The first 23 issues relate to alleged errors which the defendant asserts were made during the sentencing hearing and which, he argues, require reversal of his sentence. Seven issues involve challenges to the constitutionality of the Illinois death penalty statute (Ill. Rev. Stat. 1977, ch. 38, par. 9-1). Defendant concedes in his reply brief that several of these issues have already been rejected by this court. We have examined all seven issues and find that they have all been previously decided adversely to defendant.
THE DEFENDANT'S FIFTH AMENDMENT RIGHT TO REMAIN SILENT
The first issue the defendant raises in this appeal concerns the trial judge's refusal to instruct the sentencing jury during stages one and two of the sentencing hearing that it was not to consider the defendant's decision not to testify in reaching a verdict. The defendant asserts that the judge's refusal to so instruct the jury, and the prosecutor's comments during closing argument in stages one and two regarding the defendant's decision not to testify, violated his constitutional privilege against self-incrimination and require reversal of his death sentence.
The State maintains that the trial court properly refused to give the defendant's proffered jury instruction because the defendant had voluntarily testified at trial, waiving his privilege against self-incrimination at the sentencing hearing. Also, the State asserts that the effect of the instructions that were given, taken as a whole, clearly imparted to the jurors the fact that the defendant was not required to testify and that his silence could not be considered by them in reaching their decision. The judge had instructed the jury: "The burden is on the State to establish the existence of the statutory aggravating factors beyond a reasonable doubt. The defendant is not required to prove that the prosecution has failed to establish the existence of the statutory aggravating factors; and the defendant is not required to testify." The defendant contends that telling the jury that he was not required to testify falls far short of telling the jury that they could not consider his silence in any way in arriving at their decision.
It is clear that the fifth amendment privilege against self-incrimination extends to the sentencing hearing phase of a defendant's capital murder trial. In Estelle v. Smith (1981), 451 U.S. 454, 68 L.Ed.2d 359, 101 S.Ct. 1866, the United States Supreme Court held:
"We can discern no basis to distinguish between the guilt and penalty phases of respondent's capital murder trial so far as the protection of the Fifth Amendment privilege is concerned. Given the gravity of the decision to be made at the penalty phase, the State is not relieved of the obligation to observe fundamental constitutional guarantees. See Green v. Georgia [(1979), 442 U.S. 95, 97, 60 L.Ed.2d 738, 741, 99 S.Ct. 2150, 2151-52]; Presnell v. Georgia [(1978), 439 U.S. 14, 16, 58 L.Ed.2d 207, 211, 99 S.Ct. 235, 236-37]; Gardner v. Florida [(1977), 430 U.S. 349, 357-58, 51 L.Ed.2d 393, 401-02, 97 S.Ct. 1197, 1204] (plurality opinion)." Estelle v. Smith (1981), 451 U.S. 454, 462-63, 68 L.Ed.2d 359, 369, 101 S.Ct. 1866, 1873.
Because the defendant in the instant case testified at the guilt-innocence phase of the trial does not mean that he has waived his fifth amendment privilege to remain silent at the sentencing phase of this trial. (People v. Walker (1963), 28 Ill.2d 585; People v. Williams (1962), 25 Ill.2d 562; United States v. Trejo-Zambrano (9th Cir. 1978), 582 F.2d 460.) Whether the evidence which he gave at the trial was properly admitted at the sentencing hearing will be discussed later in this opinion, but we do believe that the defendant had the right to remain silent at the sentencing hearing and that his silence could not be used against him.
Since the defendant had the right to remain silent and he exercised that right at the sentencing hearing, he cannot be penalized for exercising that right. See Malloy v. Hogan (1964), 378 U.S. 1, 8, 12 L.Ed.2d 653, 659, 84 S.Ct. 1489, 1493-94.
During the sentencing hearing the defendant tendered a jury instruction based on his constitutional right to remain silent. The instruction read:
"The fact that the defendant did not testify [at the hearing] should not be considered by you in any way in arriving at your decision." (Illinois Pattern Jury Instruction, Criminal, No. 2.04 (1968).)
The trial judge refused to give the defendant's tendered instruction and instead informed the jury that the burden of proof was on the State and that "[t]he defendant [was] not required to prove that the prosecution [had] failed to establish the existence of the statutory aggravating factors; and the defendant is not required to testify."
In Carter v. Kentucky (1981), 450 U.S. 288, 67 L.Ed.2d 241, 101 S.Ct. 1112, the United States Supreme Court dealt with a situation very similar to the one in the instant case. In Carter, the defendant chose not to testify at his trial. Defense counsel requested that the following instruction be given to the jury:
"`The [defendant] is not compelled to testify and the fact that he does not cannot be used as an inference of guilt and should not prejudice him in any way.'" (450 U.S. 288, 294, 67 L.Ed.2d 241, 246, 101 S.Ct. 1112, 1116.)
The trial court refused to instruct the jury as requested. The State, in that case, argued that the jurors knew they could not draw an adverse inference from the defendant's election to remain silent because they were instructed to determine guilt "from the evidence alone," and because failure to testify is not "evidence." The Supreme Court held: "Jurors are not lawyers; they do not know the technical meaning of `evidence.' They can be expected to notice a defendant's failure to testify, and, without limiting instruction, to speculate about incriminating inferences from a defendant's silence." (450 U.S. 288, 303-04, 67 L.Ed.2d 241, 253, 101 S.Ct. 1112, 1121.) The court further held: "Just as adverse comment on a defendant's silence `cuts down on the privilege by making its assertion costly,' Griffin [v. California (1965), 380 U.S. 609, 614, 14 L.Ed.2d 106, 110, 85 S.Ct. 1229, 1233], the failure to limit the jurors' speculation on the meaning of that silence, when the defendant makes a timely request that a prophylactic instruction be given, exacts an impermissible toll on the full and free exercise of the privilege. Accordingly, we hold that a state trial judge has the constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify." (450 U.S. 288, 305, 67 L.Ed.2d 241, 254, 101 S.Ct. 1112, 1121-22.) In the instant case the trial judge's refusal to instruct the jury that they were not to consider the defendant's silence constituted reversible error.
In addition to the trial judge's refusal to give the defendant's proposed jury instruction, the prosecutor made several comments in his closing arguments at both stages one and two regarding the defendant's silence. This court has addressed the issue of whether certain remarks made by the prosecution concerning a defendant's silence in other cases constitutes reversible error. In People v. Hopkins (1972), 52 Ill.2d 1, the prosecution, in its closing arguments, referred seven times to the fact that the testimony of the prosecution witness was "uncontradicted." This court held:
"Both by statute (Ill. Rev. Stat. 1965, ch. 38, par. 155-1), and by the Federal constitution (see Griffin v. California (1965), 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229), the court and the prosecutor are forbidden from making any direct reference to a defendant's failure to testify. People v. Burton (1969), 44 Ill.2d 53.
The prosecution may, however, refer to the fact that the testimony of the State's witnesses is uncontradicted even though the defendant would be the only person who could have contradicted it (People v. Mills (1968), 40 Ill.2d 4, 8-9; People v. Norman (1963), 28 Ill.2d 77, 81), for this involves no more than an accurate summary of the evidence. But the prosecution may not accomplish indirectly what it could not do directly. That the line is not easy to draw is apparent from the fact that the test is often stated in subjective terms — whether `the reference [was] intended or calculated to direct the attention of the jury to the defendant's neglect to avail himself of his legal right to testify.' Watt v. People (1888), 126 Ill. 9, 32; People v. Mills (1968), 40 Ill.2d 4, 8." 52 Ill.2d 1, 6.
In the instant case, the prosecutor did not only remark that "[t]he evidence that we have presented in this case is overwhelming, uncontradicted, undenied, unrebutted." The prosecutor also stated, "He [the defendant] has sat silent before you, before his accusers and before the tryer [sic] of fact and offered no explanation for the murder." We agree with the defendant that the comment made by the prosecutor was highly prejudicial and constitutes reversible error. The State's argument that the prosecutor's comment was not directed at the defendant's failure to testify but, rather, was directed only at the defendant's lack of remorse and, therefore, permissible, is without merit. It is clear that the comment specifically refers to the defendant's decision to exercise his fifth amendment privilege against self-incrimination.
The trial judge's refusal to properly instruct the jury regarding the defendant's silence and the prosecutor's comments were improper and constitute reversible error because they clearly affected substantial rights of the defendant.
THE PROSECUTOR'S CALLING THE DECEASED'S WIDOW TO THE WITNESS STAND
At stage one of the sentencing hearing, the prosecution called Karen Koumoundouros, the widow of the deceased, to the witness stand. The widow was sworn and gave the following testimony:
"Q. Miss Witness, would you state your full name, please and spell your last name for the ladies and gentlemen of the jury.
A. Mrs. Karen Koumoundouros K-O-U-M-O-U-N-D-O-U-R-O-S.
Q. Mrs. Koumoundouros, on September 7, 1977, were you married?
Q. To whom were you married?
At this point in the proceeding, defense counsel objected and asked for a sidebar during which he argued that there was no purpose to be served by calling the deceased's widow as a witness except to engender sympathy in the jury. Defense counsel argued that the only purpose Mrs. Koumoundouros could possibly serve would be for life and death purposes and that life and death were not at issue in the sentencing hearing.
Throughout the entire sidebar, Mrs. Koumoundouros remained on the witness stand. During the sidebar, the trial judge sustained defense counsel's objection. The prosecutor then asked to be heard in chambers. The trial judge refused the request, stating, "The objection is sustained. I don't know if she's going to make the distance." The judge's statement was made during the sidebar, outside the hearing of the jury. The court then recessed for lunch. After the jury left, the witness stepped down from the stand.
This court has dealt with the issue of the admissibility of evidence relating to a victim's family in a murder trial many times. This court has held:
"It is axiomatic that a defendant's guilt must be established by competent evidence uninfluenced by bias and prejudice, and that therefore evidence that a murder victim has left a spouse or children is inadmissible since it does not enlighten the trier of fact as to the guilt or innocence of the defendant or as to the punishment he should receive, but only serves to prejudice and inflame the jury. Generally, the rule is that `* * * where testimony in a murder case respecting the fact the deceased left a spouse and family is not elicited incidentally, but is presented in such a manner as to cause the jury to believe it is material, its admission is highly prejudicial and constitutes reversible error unless an objection thereto is sustained and the jury instructed to disregard such evidence. In like manner, we have held that jury argument by the prosecution which dwells upon the decedent's family or seeks to relate a defendant's punishment to the existence of family is inflammatory and improper.' (People v. Bernette, at 371.) That case also held that `* * * the irrelevancy and highly prejudicial nature of such evidence is so well established, that it was the duty of the court in a murder case to have refused it on its own motion.' Bernette at 372." People v. Jordan (1967), 38 Ill.2d 83, 91.
In the instant case it is not clear for what purpose the deceased's widow took the stand. The defense argues it was to engender sympathy. The State contends that it was for a valid purpose, but that since the trial judge sustained the defendant's objection, it was never able to set forth its purpose in calling the widow. The State does not give any reason in its brief to explain why Mrs. Koumoundouros was called to the stand. The State's brief reads, "The People will not speculate as to the motive behind calling Ms. Koumoundouros to testify but neither should defendant speculate that every action of the prosecution is designed to deprive defendant of a fair trial."
As the defendant asserts, before the sentencing hearing began the defendant had already been convicted of murder and attempted armed robbery by the trial court. The defendant's certified statement of conviction was read into the record. The only issues before the sentencing jury in stage one, during which Mrs. Koumoundouros testified, was whether the deceased was killed in the course of another felony and whether the defendant was 18 or more at the time of the offense. Since the deceased's widow was not present during the offense, she could not offer any testimony as to whether her husband's death occurred during the course of a forcible felony. She also did not know the defendant, so she could not offer any evidence as to the defendant's age. And since the trial had established that the defendant had committed the murder of the deceased, it was not necessary for her to be called as a life/death witness.
We agree that the deceased's widow had no evidence of probative value to contribute to the establishment of the two factors the State was seeking to prove in stage one of the sentencing hearing. The State has not offered any valid purpose which was served by calling Mrs. Koumoundouros to the stand. The general rule, as we quoted previously, deals with testimony in a murder case that is elicited incidentally or evidence which is presented in such a manner as to cause the jury to believe it is material. In the instant case, the prosecutor specifically called the deceased's widow to the stand and asked her about her husband. Mrs. Koumoundouros testified that she was married to the deceased on September 7, 1977, the date of the murder. We believe that the admission of this testimony was error because, even though defense counsel's objection was ...