Appeal from the Circuit Court of Cook County, the Hon. Louis
B. Garippo, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 28, 1984.
In indictments returned in the circuit court of Cook County, defendant, John Wayne Gacy, was charged with 33 counts of murder, one count of deviate sexual assault, one count of indecent liberties with a child, and one count of aggravated kidnaping. The circuit court allowed defendant's motion that one trial be held on all pending indictments. Following a jury trial during which the charge of aggravated kidnaping was dismissed, defendant was found guilty on all of the other counts. In a hearing requested by the People concerning the 12 murders committed subsequent to the enactment of the death penalty provision of section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1), the jury found that one or more of the factors set forth in section 9-1(d) existed, and found that there were no mitigating factors sufficient to preclude a sentence of death. Defendant was sentenced to death on 12 counts of murder and to terms of natural life on each of the remaining murder counts. The sentences were stayed (87 Ill.2d R. 609(a)) pending appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill.2d R. 603).
The testimony shows that on the evening of December 11, 1978, Robert Piest, a 15-year-old boy, worked at the Nisson Pharmacy in Des Plaines. His mother had driven to the pharmacy to pick him up after work and he told her that he was going to see a building contractor about a summer job and would be back in a few minutes. He was never again seen alive. Defendant was a building contractor and had spent much of the evening in the Nisson Pharmacy. At about the time Piest disappeared, defendant's truck was seen outside the pharmacy. The Des Plaines police department suspected that defendant was involved in Piest's disappearance. The police learned that he had a record of sexually assaulting young men and had been convicted in Iowa for an assault on a teenage boy. A more detailed review of the facts surrounding the investigation and the issuance and execution of several search warrants will be set forth in the discussion of the issues.
In the course of the investigation defendant admitted that he had killed approximately 30 individuals, some buried in the crawl space under his home and five thrown into the Des Plaines River. Excavation of the crawl space and the area surrounding defendant's home recovered 29 bodies. In addition, four bodies were recovered from the Des Plaines and Illinois rivers, downstream from the place where defendant had told the police that he threw the bodies.
Defendant contends first that the circuit court erred in denying his motion to suppress the evidence seized as the result of the search warrant issued on December 13, 1978, and argues that both the complaint for the search warrant and the search warrant itself were defective. The complaint stated:
"I, Joseph Kozenczak, Detective Lt. with the Des Plaines Police Dept. received information on Dec. 11, 1978 concerning the missing persons case report on Robert J. Piest M/W 15 DOB: March 1963 5'8, 140 lbs, brown hair and a slim build. During the course of my police investigation the following information was revealed, that Piest was last seen at 1920 Touhy Ave. in Des Plaines in Nisson Drugs where he works by Kim Byers a fellow employee. Byers stated that Piest approached her and said, `Come watch the register; that contractor guy wants to talk to me, I'll be right back.' At which time Piest went outside of the store to meet with John W. Gacy. Mrs. Elizabeth Piest, the missing boy's mother was also in the store at this time and was waiting to pick her son up from work. Prior to leaving the store her son requested that she wait a few minutes while he spoke to a subject about a Summer construction job. Mrs. Piest waited over twenty minutes in the store and then began looking for her son. Robert Piest left the store at approximately 2100 hrs. and has not been seen or heard from since.
On the date in question John W. Gacy was observed in the store at 1920 Touhy Ave. on two different occasions. Once at 6:00 P.M. and a second time at 8:00 P.M. at which time he stayed in the store until 8:50 P.M. which was the approximate time that the missing person Robert J. Piest disappeared from the store location. During the course of my investigation it was found that John W. Gacy is in fact a contractor and owner of same, which is under the name of PDM Construction Company, located at 8213 W. Summerdale, Norridge, Ill. which is his residence.
A one story ranch type house, brick structure with semi-circle drive in front and a driveway on the east side of the building. The property also contains an oversize brick garage in the rear of the property. Also included is a Black Van truck with `PDM' painted on it along with a black pickup truck with `PDM' on its side, also, a black 1979 Oldsmobile Illinois Lic. #PDM42, Vin: 3N69R9X105706.
During the course of my investigation, I learned that John W. Gacy was arrested and convicted in Waterloo, Iowa in 1968 for Sodomy and sentenced to 10 yrs. in prison. The Sodomy arrest involved 15 and 16 year old youths. In 1968 John W. Gacy was arrested for Conspiracy — Assault with attempt to commit Felony on 15 and 16 year old youths — CD3036939. Subject was also arrested on June 22, 1972 by the Northbrook, Ill. police Dept. Case #7204499 — Aggravated Battery and Reckless Conduct, which was a sex related offense."
The search warrant recited that probable cause had been established and it directed the police to:
"* * * search John W. Gacy and 8213 W. Summerdale — Norridge, Ill. and the following described vehicles: and seize Light blue down jacket and hood, tan colored Levi Pants — Brown wedge type suede shoes — lace type — Brown leather wallet — Levi T-Shirt, along with hair samples, blood stained clothing and dried blood samples, along with the following three vehicles:
1) Black van truck with `PDM' on side
2) Black pick-up truck with `PDM' on side
3) Black 1979 Oldsmobile Ill. Lic. 1978 `PDM 42' Vin: 3n69R9X105706."
Defendant argues that the warrant failed to satisfy the "basis of knowledge" test of Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509, and failed to disclose sufficient facts to establish probable cause. In reviewing the sufficiency of the complaint we are guided by the Supreme Court's statement in Spinelli v. United States (1969), 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584, "that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio [(1964), 379 U.S. 89, 96, 13 L.Ed.2d 142, 147-48, 85 S.Ct. 223, 228]; that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois [(1967), 386 U.S. 300, 311, 18 L.Ed.2d 62, 70, 87 S.Ct. 1056, 1062]; that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca [(1965), 380 U.S. 102, 108, 13 L.Ed.2d 684, 688, 85 S.Ct. 741, 745]; and that their determination of probable cause should be paid great deference by reviewing courts>, Jones v. United States [(1960), 362 U.S. 257, 270-71, 4 L.Ed.2d 697, 708, 80 S.Ct. 725, 735-36]." (393 U.S. 410, 419, 21 L.Ed.2d 637, 645, 89 S.Ct. 584, 590-91.) We are not concerned, as was the court in Aguilar, with the reliability of an unnamed informant because it is readily apparent from the affidavit from whom the hearsay information contained in the complaint was obtained. The judge to whom the complaint is submitted must make a judgment whether probable cause existed, and the information furnished him "must provide the affiant's answer to the magistrate's hypothetical question, `What makes you think that the defendant committed the offense charged?'" Jaben v. United States (1965), 381 U.S. 214, 224, 14 L.Ed.2d 345, 353, 85 S.Ct. 1365, 1371.
Defendant argues that Lieutenant Kozenczak's statements were conclusional and did not identify the sources of his information or answer basic questions such as "Who stated John W. Gacy was in the store two times? How did he, she or they know it was Gacy? Was this information acquired through firsthand or personal knowledge of the informant?" Defendant argues too that the information presented to the warrant judge did not support a reasonable belief that the crime of unlawful restraint had been committed. Defendant suggests:
"At best, it is perhaps unusual or suspicious when a 15-year-old boy does not return to his place of employment after he says he will be right back. * * * Even if Piest's disappearance was suspicious, there is no indication, from the facts cited, that John Gacy had any connection with this disappearance."
Defendant asserts that there was insufficient information to support a finding of probable cause that evidence of the crime of unlawful restraint might be found in the places designated to be searched.
We agree with the People that the sufficiency of the complaint does not rest on whether each segment is complete in itself but whether the complaint, considered as a whole, adequately establishes that there was "a fair probability that * * * evidence of a crime [would] be found in a particular place." (Illinois v. Gates (1983), 462 U.S. 213, 238, 76 L.Ed.2d 527, 548, 103 S.Ct. 2317, 2332; see also People v. Morano (1970), 45 Ill.2d 60, 63.) A common sense reading of the complaint would indicate that Lieutenant Kozenczak received his information from Kim Byers, Robert Piest's fellow employee, and Mrs. Elizabeth Piest, his mother. That the complaint does not set forth in detail how one of these individuals was able to identify John Gacy as the contractor with whom Piest went to speak is not a fatal defect. Furthermore, much of the hearsay information was received, not from an undisclosed professional informant, but from the victim's mother. That the mother of a missing 15-year-old boy would not be likely to supply misinformation to the police searching for her son was a factor appropriately considered by the judge who ordered the warrant to issue.
The assertion that the complaint contained insufficient facts to establish probable cause is without merit. Defendant concedes that it is proper, under certain circumstances, to consider prior arrests and convictions of a suspect in determining whether probable cause exists. (See Beck v. Ohio (1964), 379 U.S. 89, 13 L.Ed.2d 142, 85 S.Ct. 223; United States v. McNally (3d Cir. 1973), 473 F.2d 934.) Here, Lieutenant Kozenczak's complaint indicated that he had information concerning the suspect's criminal history and had discovered a significant pattern of sexual misconduct involving young men. Nor do we agree with defendant that it was not indicative that a crime had been committed but only "unusual" or "suspicious" when a 15-year-old boy stated that he was going to speak with the suspect, left his place of employment, and then failed to return.
Defendant next asserts that the complaint was fatally defective in that it failed to state the time when the informants made their observations. Defendant points out that the complaint stated only that Lieutenant Kozenczak had received this information on December 11, 1978, but does not indicate on what date Piest was last seen at the drugstore. Defendant suggests, in his reply brief, that "[m]issing person cases may remain unsolved for weeks, months, or years." Defendant concludes that "[w]ithout more specific information regarding time, a reasonable person could not have concluded that evidence of the alleged offense was presently on the premises to be searched." We disagree. A common sense reading of the complaint indicates that Lieutenant Kozenczak received this information while investigating a missing person report at Nisson Pharmacy on December 11, 1978. We conclude that the issuing judge had a substantial basis for concluding that probable cause existed, and we decline to disturb his determination.
Defendant contends next that the warrant failed to describe with particularity the items to be seized. The items to be seized were "Light blue down jacket and hood, tan colored Levi Pants — Brown wedge type suede shoes — lace type — Brown leather wallet — Levi T-Shirt, along with hair samples, blood stained clothing and dried blood samples * * *." Defendant argues that because there was no indication as to the alleged owner of the clothing or items, no mention of any sizes, styles or manufacturers, and no explanation as to why the items might be evidence of a crime, the warrant authorized a general search.
Defendant points out that the clothing worn by the 140-pound Piest would be different in size than that worn by a 195-pound man. Defendant argues too that no distinguishing characteristics concerning the wallet to be seized were described in the warrant. We do not agree. The warrant described the color, style, and even the type of material used in each article of clothing described. The T-shirt and pants are even described as to the manufacturer — "Levi." That the wallet could have been described more particularly did not authorize the police to conduct a general search and thus render the warrant fatally defective.
Defendant contends that assuming, arguendo, that the search warrant was valid the scope of the search was so broad as to constitute an impermissible general search. The inventory of the items seized listed 57 objects, only one of which, the blue jacket, was listed in the warrant. Two items, a receipt for film left to be developed at Nisson's drug store and a Maine West High School class ring, are of particular significance. It was learned that the receipt was in Piest's possession when he disappeared and the class ring was owned by John Szyc, who had been reported missing. The police photographed a television set in defendant's home, and it appeared to be similar to one which had been taken from Szyc's apartment.
The People contend that the items seized were in plain view and there was sufficient information in possession of the officers to support their conclusion that the ring and receipt in some manner connected defendant with Piest's disappearance.
We disagree that any improper seizure concerning the television set occurred since the television set was not seized. The taking of a photograph does not amount to seizure, and defendant advances no argument as to why the police acted improperly in photographing the television set. Concerning the Maine West High School ring, the police were aware, as indicated by the information contained in the complaint for search warrant, that Piest lived in Des Plaines, was 15 years of age, and that there was a high probability that he attended this high school. Although the ring did not bear Piest's initials, the police officer conducting the search may not have immediately noticed the initials on the ring, and, in any event, the police were aware, at this time, that defendant could very well be a habitual sex offender and that more than one victim could be involved. The film receipt which was found in a waste basket in defendant's home showed that film had been left for development at Nisson's Pharmacy and would tend to show that he had been in the pharmacy. We find no error in the seizure of the photo-finishing receipt or the high school ring.
A search warrant issued on December 21, 1978, authorized the police to search defendant's home for the remains of the body of Robert Piest. The underlying complaint for the warrant, prepared by Lieutenant Kozenczak, basically reiterated the facts contained in the first complaint for search warrant and stated:
"Recovered during that search [pursuant to the December 13th warrant] was a customer receipt #36119 from a film developing envelope with the name and address of Nisson's Pharmacy stamped on it in ink. Further investigation revealed that this receipt had last been in the possession of Robert Piest, immediately prior to the time he had disappeared."
The complaint also stated that Officer Robert Schultz had informed Lieutenant Kozenczak that he had been invited into defendant's home by defendant while on the surveillance unit assigned to watch defendant, and that while inside he detected "an odor similar to that of a putrified human body." Officer Schultz indicated that he had smelled the odor of at least 40 putrified human bodies and that the smell in defendant's home was similar. Defendant's first two arguments concerning this contention assumed the invalidity of the first warrant. Since we have held to the contrary, we need not address these issues. Defendant's third argument concerning this contention is that even assuming the validity of the December 13 search, the underlying complaint for the December 21 search warrant failed to satisfy the two-prong test of Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509.
Defendant makes two contentions concerning the showing of probable cause in the complaint for the search warrant. First, defendant notes that the complaint does not explain the basis for Lieutenant Kozenczak's conclusion that the photo-finishing receipt was on Robert Piest's person at the time of his abduction. The testimony at the hearing on the motion to suppress showed that Des Plaines police officers had spoken with Kim Byers and that she had said that she was wearing Robert Piest's jacket when she filled out the photo-finishing envelope, ripped off the receipt, and placed it in the jacket pocket. She later returned the jacket to Piest, who put the jacket on before leaving the store. Defendant asserts that, because this information was not contained in the complaint, this court may not make reference to this information in determining whether the complaint established probable cause. Defendant also complains that Officer Schultz did not promptly notify Lieutenant Kozenczak about the smell of decaying flesh and this casts doubt on the veracity of Officer Schultz' conclusion.
We find that the complaint, when viewed as a whole, is sufficient, and the circuit court correctly refused to suppress the evidence seized as the result of the warrant's execution. We agree with defendant that evidence adduced at the suppression hearing may not be used to bolster the sufficiency of the complaint for warrant. We do not agree, however, that the fact that Officer Schultz waited some 40 hours before telling Lieutenant Kozenczak of the odor he detected while in defendant's home automatically invalidated the probative value of this evidence. The 40-hour delay in bringing this information to Lieutenant Kozenczak goes to the issue of the credibility of Officer Schultz, an issue for resolution by the circuit court, and not this court on review. We hold that the evidence of the smell of decaying flesh in defendant's home, discovery of a film receipt purportedly on the victim's person at the time he disappeared, and the reiterated facts contained in the first warrant, taken together, provide a sufficient basis for the circuit court to refuse to suppress the evidence seized as a result of the execution of that warrant.
Defendant argues that the evidence obtained as a result of the searches executed pursuant to the final three warrants must be suppressed as fruits of the prior illegal searches. Because we have already determined that the prior searches were not illegal, this argument must fail.
Defendant next contends that two days before his arrest he asked a police officer, in the event of his arrest, to inform his attorney, and that the police officer's failure to communicate with defendant's attorney before questioning him violated his fifth and fourteenth amendment right to have counsel present at his interrogation. Defendant also contends that his first confession was not the product of a rational mind or a free will, and that his second confession and all statements subsequently made were the product of "ineffective advice" from his attorney to confess. Although no objections were made at trial to the admission of these confessions, defendant argues that the plain error rule should be invoked or, alternatively, that the failure to object is evidence of the incompetency of counsel.
Criteria for determining whether the doctrine of plain error should be invoked have been enunciated by this court, i.e., whether the evidence is closely balanced, or if the error is of such a magnitude that the accused is denied a fair and impartial trial. (People v. Szabo (1983), 94 Ill.2d 327, 355.) We find here no reason to invoke the plain error doctrine. Defendant's supposed invocation of his right to counsel when talking to Officer Hackmeister was apparently no more than a request that the officer contact defendant's attorney when he was finally arrested, because defendant had received money from out of State to be used to post his bond. The record shows that defendant was in continuous contact with his attorneys during the days prior to his arrest and that on the night before his arrest he had told his attorneys that he was responsible for 33 murders. Defendant was read his rights and had read and signed a waiver form given him by the Des Plaines police department. Nothing in the record supports defendant's contention that his confessions were not the product of a free and rational mind, and, moreover, failure to assert his objection at trial precluded the circuit court from making a record on this point so that this court could properly review such a contention. Nothing in the record supports defendant's contention that trial counsel encouraged him to confess, but even if defendant's attorneys had done so the night before he was arrested, such a decision on their part could easily be viewed as a legitimate defense tactic. Justice Jackson's observation that "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances" (Watts v. Indiana (1949), 338 U.S. 49, 59, 93 L.Ed. 1801, 1809, 69 S.Ct. 1347, 1358) is inapplicable to this situation. If defendant had revealed to his attorneys any details whatsoever concerning the 33 murders, defendant's attorneys were aware that some 27 or so bodies were buried in the crawl space and in other parts of defendant's home and that the police were on the verge of uncovering these bodies. Moreover, defendant's attorneys would have been aware that the Des Plaines police had positively linked defendant to Robert Piest's disappearance and that further links between defendant's young former employees and their disappearances would be discovered. Under these circumstances it does not indicate incompetence on the part of defendant's attorneys that they concluded that an assertion of innocence would border on the ridiculous and that confessions might bolster a possible insanity defense. The fact that even the earlier newspaper accounts suggest that defendant had a significant mental disturbance supports the assertion that defendant's attorneys could have immediately concluded that an insanity defense would be the most realistic defense in this case. In light of defense counsel's able representation of defendant throughout the trial proceedings, we reject the contention, made by appellate counsel, that trial counsel "abandoned [defendant] and rendered ineffective assistance of counsel * * *."
Concerning the manner of selecting the jury at his trial, defendant contends that the court's questioning during voir dire was insufficient; that the jurors should have been sequestered during the time between their selection and the beginning of the trial; and that the voir dire should not have been conducted in open court. Defendant contends too that his counsel and the counsel for the prosecution should have been permitted to directly interrogate the prospective jurors instead of being required to rely upon the court's questioning; that he should have been permitted peremptory challenges in addition to the 20 permitted by statute; and that the court's questioning of the prospective jurors concerning their attitudes toward the death penalty produced a biased jury.
Defendant contends that the court's questioning was inadequate because it did not sufficiently explore the prospective jurors' exposure to news accounts of the case. Defendant cites a number of instances which he asserts show that questioning on this topic was insufficient. As pointed out by the People, however, the circuit court announced at the outset of the questioning that counsel, if they felt it was necessary, would be permitted to request more questions on specific topics during questioning of a prospective juror. Defendant has listed only one instance where his request for additional specific questions on exposure to news accounts was denied. In that instance, defendant requested that the court ask a prospective juror "what he remembers out of the newspapers * * * what he remembers specifically out of the newspapers and radio." We find that while the court might properly have made such an inquiry, it was not required to do so because the court questioned the prospective juror sufficiently as to the sources from which he had learned of the case, and whether he had formed an opinion from these sources and from persons who may have expressed opinions about the case. The prospective juror stated that from what he had heard and seen he did not come to the conclusion that defendant had committed the offenses in question. On these facts, in view of the discretion vested in the circuit court in the examination of jurors, we find no reversible error. (People v. Moretti (1955), 6 Ill.2d 494, 532.) It should be noted that in each of the other references to the record that defendant contends show insufficient questioning on this matter, defendant was given an opportunity to suggest further questions when the court had completed its interrogation, and failed to do so. Defendant did suggest questions on other subjects for the court to ask, and these were generally pursued. In certain of the instances cited by defendant, further questioning was unnecessary because those jurors were excused for cause.
Defendant's next disagreement with the court's questioning concerns the prospective jurors' opinions as to defendant's guilt. The record shows that defendant was given the opportunity to request that the court ask specific questions as to the prospective jurors' opinions of the guilt of defendant. Defendant complains of the questioning of Mrs. Loudenback, a prospective juror, but the record shows that after she was questioned by the court, the court inquired if there were further questions and defense counsel replied that he had "no more questions." In other instances cited by defendant, no error was committed because counsel was given the opportunity to suggest additional questions concerning the potential jurors' opinions as to defendant's guilt and failed to do so, or the juror was excused for cause.
Defendant's next objection to the circuit court's questioning of prospective jurors concerns the insanity defense. Defendant complains of the colloquy between the judge and the first prospective juror. The record shows that when defense counsel protested the inadequacy of the questioning the court asked a number of additional questions. Defendant challenged the juror for cause on the ground that he had a preconceived predetermined opinion on the question of defendant's insanity but counsel proposed no additional questions to be asked of the juror. Simply stated, defendant's complaint concerning the questioning of the panel is that it was done "in such a way as to hide the jurors' biases rather than reveal them." The purpose of the circuit court's questioning was to enable the attorneys to exercise their peremptory challenges intelligently, and to determine whether a juror should be excused for cause. The record shows that the circuit court's questioning of this prospective juror was sufficient to fulfill both these purposes. We have reviewed the other portions of the record cited by defendant in support of his argument that the circuit court's questioning was insufficient. In most of these cited instances, defense counsel did not suggest additional questions to be asked of the prospective jurors. In certain instances, where defense counsel asked the court to question the prospective jurors further on the insanity defense, the court did so. On this record, defendant cannot complain that the questioning was insufficient to permit him to challenge jurors for cause or to exercise his peremptory challenges.
Defendant contends next that the circuit court did not adequately question the prospective jurors concerning their attitude toward homosexuality. Our review of the instances cited by defendant shows that with every prospective juror defendant had the opportunity to tender specific questions and failed to do so. In the example cited by defendant, counsel did not tender a specific question, but asked the circuit court to inquire generally about the prospective juror's feelings toward homosexuality. Under the circumstances the court's refusal to do so was within its discretion.
Defendant's next disagreement with the manner in which the voir dire was conducted concerns the court's questioning on the prospective jurors' attitudes toward the death penalty. Defendant complains that the questions concerning the death penalty, as they were reframed after the interrogation of the first 15 jurors, made it much less likely that a prospective juror would reveal that he strongly favored the imposition of the death penalty. While we agree that the questions asked of the later jurors allowed for shorter responses, we do not find in the record any questions tendered by defense counsel that might have elicited a more thorough response. In the first example of the revised questioning used by the circuit court of which defendant now complains, when the voir dire of this juror was completed, defense counsel was asked if he had any further questions and responded that he did not. In the other instance cited by defendant, the prospective juror was excused for cause, so no error could have been committed in his questioning. Therefore, we hold that defendant waived his opportunity to discover more about the prospective jurors' attitudes about the death penalty by failing to tender additional questions during the voir dire. We also note that no questions concerning the death penalty appear in defense counsel's list of questions submitted to the circuit court prior to voir dire.
Defendant next complains that the circuit court failed to inquire further of prospective jurors who mentioned that other jurors had been discussing the case. The record reveals, however, that defense counsel only requested that the court ask the prospective jurors what they knew of other jurors' opinions about the case. The circuit court's response was that the prospective jurors themselves would reveal their own opinions during voir dire. We cannot say that the circuit court abused its discretion by proceeding in this manner. The court was under no obligation to question the prospective jurors further upon hearing that they had merely heard other prospective jurors discussing the case. The cases cited by defendant in this regard are distinguishable. In People v. Cravens (1941), 375 Ill. 495, the trial court was given information after a trial that one of the jurors, who had become foreman of the jury, knew the defendant previously and had already concluded that he was guilty. During the voir dire of that trial, this same juror stated that he knew nothing about the defendant and had not expressed any opinion as to his guilt or innocence. On those facts, the defendant was granted a new trial. It is not contended here that any of the prospective jurors deceived the court, but only that more information should have been obtained concerning their opinions of the case. As previously noted, defendant was permitted to propose additional questions if he believed the voir dire insufficient, but has cited no instance where specific questions were proposed and rejected by the court. In People v. Peterson (1973), 15 Ill. App.3d 110, cited by defendant, the circuit court received information just before trial that one of the jurors had expressed her opinion that the defendant should plead guilty so that the jurors could go home. Defendant has cited no instance of failure to excuse for cause a prospective juror with a preconceived opinion but contends that the circuit court did not question the prospective jurors sufficiently to discover such opinions. Defendant's failure to suggest specific questions to be asked of prospective jurors to elicit such preconceived opinions leaves us with nothing to review.
Defendant contends next that the failure to sequester the jury between the time of their selection and the beginning of trial denied him his right to a fair and impartial jury. Defendant complains that this procedure allowed the jurors to be exposed to media coverage of the case, and to discuss the case with their family members and friends. The People correctly point out that defendant neither moved to sequester the jury over this time, nor later asked for a mistrial, nor was it shown that any prejudicial media coverage occurred during the time in question. We also note that immediate sequestration would have placed a great burden on the jurors, who may have been able to use the week to organize their personal affairs before leaving town for a lengthy trial. As noted by the People, placing a greater burden on the jurors may have angered them, and the defendant might well have been the most likely target for their anger. (See United States v. Haldeman (D.C. Cir. 1976), 559 F.2d 31, 85.) For this reason, defense counsel may have decided as a tactical matter not to ask that the jury be sequestered before trial.
Defendant contends next that the extensive publicity surrounding his trial made it imperative that the voir dire be closed to the public. Defendant argues that the extensive publicity caused many prospective jurors to be hesitant to answer questions completely and truthfully. Defendant also contends that the news media, permitted to attend the voir dire, could reveal the questions leading to excusal of jurors, thus enabling prospective jurors to learn of these questions and formulate answers which would either avoid or require their own excusal. We note first that defendant did not request the public be excluded from voir dire proceedings until after a number of jurors had already been questioned. When defendant did ask that the remainder of the voir dire be closed to the public, he did so only on the bare assertion that prospective jurors were not being fully candid. The Supreme Court has held that the press and general public have a constitutional right of access to criminal trials. (Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 603, 73 L.Ed.2d 248, 255, 102 S.Ct. 2613, 2618; Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 558-81, 65 L.Ed.2d 973, 978-92, 100 S.Ct. 2814, 2818-30 (plurality opinion).) This right is not without limits (see Press-Enterprise Co. v. Superior Court (1984), 464 U.S. 501, 78 L.Ed.2d 629, 104 S.Ct. 819), and defendant has not shown a sufficient basis upon which to invoke a limitation to that right. While it is true that prospective jurors may be reluctant to discuss their attitudes towards homosexuality, or prior dealings with the criminal justice system, this danger may exist in any voir dire, and the presence of the news media was not reason enough to close the proceedings to the public. While the sixth amendment guarantees the accused a right to a public trial, it does not give a right to a private trial. (Gannett Co. v. DePasquale (1979), 443 U.S. 368, 382, 61 L.Ed.2d 608, 623, 99 S.Ct. 2898, 2907.) To close the proceedings to the public requires a more compelling reason than was shown to exist here. Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 580-81, 65 L.Ed.2d 973, 991-92, 100 S.Ct. 2814, 2828-30.
Defendant contends next that the circuit court's refusal to permit the attorneys to ask questions during voir dire denied him due process of law and the right to a fair and impartial jury. Our Rule 234 states that "[t]he court shall conduct the voir dire examination of prospective jurors." (87 Ill.2d R. 234.) In People v. Jackson (1977), 69 Ill.2d 252, 260, we held that while a defendant has a right to trial by an impartial jury, that right does not require that the parties themselves be permitted to interrogate the jurors. Defendant cites Silverthorne v. United States (9th Cir. 1968), 400 F.2d 627, in support of his contention that, when a case has received extensive pretrial publicity, the attorney should be permitted to interrogate the jurors. Silverthorne is distinguishable, however, since the trial court in that case failed to discuss the publicity issue individually with a number of the prospective jurors, and undertook little or no questioning of the jurors as to what they had heard or seen about the case. Here, the circuit court interrogated each juror individually as to the publicity issue, and asked detailed questions concerning the jurors' sources of information. The circuit court also permitted the attorneys to suggest additional questions when they felt the court's questioning was inadequate. In many instances, defendant had no other questions to ask of the jurors. Thus, on these facts we cannot say that the court abused its discretion by choosing to personally interrogate the jurors.
Defendant also complains that he should have been permitted more than the 20 peremptory challenges allowed by statute. We note first that defendant did not exhaust the peremptory challenges that he was given. (Ill. Rev. Stat. 1977, ch. 38, par. 115-4(e).) The only case cited by defendant in his brief in support of his contention is People v. Speck (1968), 41 Ill.2d 177. That case is inapplicable, however, since the parties in that case agreed to give each side a higher number of peremptory challenges than allowed by statute. There was no error in limiting defendant to 20 peremptory challenges.
Defendant next complains that the examination of the prospective jurors on their attitudes toward the death penalty resulted in the selection of a jury which failed to represent a fair cross-section of the community and which was biased in favor of the prosecution. Defendant admits that his argument on this point was rejected by this court in People v. Lewis (1981), 88 Ill.2d 129, 146-47, and in People v. Carlson (1980), 79 Ill.2d 564, 585-87. Having previously considered and rejected defendant's arguments, we decline to reconsider them here.
Defendant contends that because of the circuit court's refusal to provide funds for a publicity survey and a publicity analysis he was denied the right to a fair trial and the effective assistance of counsel. Before trial, defendant sought a change of venue and then moved for the appointment of a market research firm "to conduct a valid statistical survey both within and outside of Cook County to determine the effect of pretrial publicity on the temperament of those members of the community or communities who are potential veniremen for this cause." The circuit court told defense counsel that in order for the court to properly evaluate the motion, counsel needed a letter from the research firm explaining what the firm proposed to analyze and how such an analysis would be conducted. Defense counsel filed an amended supplemental motion with a "proposal for venue survey" as an appendix. The proposal was submitted by the National Jury Project and explained in detail the purpose of the survey and the manner in which it was to be conducted. In addition to determining the extent of exposure of potential jurors to news media coverage, the National Jury Project proposed to obtain information concerning "collateral prejudices" such as the potential jurors' attitudes on the issues of sexual preference, deviant behavior, and the "impaired mental state defense." The cost of the venue evaluation was estimated at approximately $38,000, although confining the survey to a limited number of counties and applying other cost-cutting measures could have reduced the budget. The supplemental motion was denied.
A publicity survey was performed by Editec, Inc. In addition, materials were submitted by the Chicago Sun-Times, the Chicago Tribune, Paddock Publications, and publishers from Winnebago, Champaign, Sangamon, and Peoria counties. Dr. Richard Ney, a psychologist, was called to interpret the data contained in the survey and the material gathered from the press and electronic media. Dr. Ney explained that there were a number of factors that should be considered in analyzing the effect which publicity has on a particular geographical location. The first factor was sheer volume. The more articles and news reports disseminated in a particular location, the more likely that area's inhabitants would recall the event.
Dr. Ney explained that the second factor to be analyzed in determining the impact of media coverage is the emotional impact created by certain types of articles. Six types of articles generate strong emotional responses. First, articles which made reference to "homosexuality" elicited emotional responses. Second, pairing homosexuality with the term "mass murderer" had a strong emotional impact because it combined the number of deaths with the "topic of death." The two Chicago newspapers carried many of these first two types of articles when the story first broke, but discontinued them a week to a month later. Third, "human interest" stories focused on an individual's involvement in the case rather than the actual facts of the case. Human interest stories were particularly prevalent in the Chicago area, but not in the outlying counties. Fourth, certain articles compared defendant to other notorious mass murderers. These articles were labeled "guilt by association" articles. Fifth, articles labeled "quasi-legal" articles spoke of how a defendant could "beat the rap" by using the insanity defense to avoid criminal responsibility. While such articles purportedly dealt with legal issues, they were loaded with emotional terms and tended to bias the reader towards the view point of the writer. Sixth, articles labeled "local interest" articles described the particular impact defendant's case would have on the people of Cook County, such as the cost of trying him and providing for his defense. Dr. Ney explained that in all these categories, there was "more of this type of emotionally impacting material" in Cook County than in any of the other outlying counties. Dr. Ney explained that people in other counties would know about the case, but that there would be a difference in the type of material by which they received the information concerning defendant's crimes.
Another factor to be considered was reports of statements made by public officials. Statements made by public officials carried more weight because readers recognized the status associated with that public official's office. The fourth factor to be considered was the use of headlines. The larger the headline, the more important a reader would believe the information contained in the article was. Also, the type of material contained in the headline would have a significant impact on the reader. For example, instead of stating "33 boys slain" in a headline, the Cook County news media would use a day-by-day "body count," such as "bodies of 3 teens found, 29 more are feared slain." Again, in both these areas the impact in Cook County was much greater than in the other counties of the State.
Dr. Ney identified four principles which could be used to gauge the effect these factors had on the reading audiences exposed to these materials. The first principle was the "primary-recency effect," or the concept that the news best remembered was that first received and most recently received. The second effect was the "halo" effect, or the concept that the manner in which information is presented could affect the reader's understanding of that information's content. For example, referring to defendant as an "admitted homosexual" could give the reader a negative attitude towards the defendant which could make it difficult for that reader to objectively view the remaining information contained in the article. The third principle was called "the law of proximity" and basically means that two concepts, when placed in close proximity, will be viewed as a psychological unit. Thus, when an article appeared with a headline reading "A killer goes free, how can it happen?" and a picture of the defense attorney appeared below the headline, the reader would associate the defense attorney as one who freed killers, regardless of whether the article made such an assertion. The final principle, which is actually a series of principles listed under one heading, Dr. Ney labeled the "cognitive memory theory." Under this theory, information which is associated with a strong emotional response is much more easily remembered than information which does not evoke a particular emotional response. Thus, memories concerning bizarre behavior, violent crime, or sex are retained longer than information concerning nonviolent crime or other less emotional events.
These principles, as applied to the media coverage in this case, Dr. Ney explained, each illustrated that the news media coverage in Cook County was much more prejudicial to defendant than in other counties. In particular, human interest stories appeared predominantly in the Cook County news media. The public in Cook County more easily identified with the crimes because the victims lived in the same area as they did and they recognized the public officials involved in the investigation. Also, because of the prejudicial nature of the articles printed in Cook County, such as the articles associating defendant's trial counsel as one who sets killers free, prospective Cook County jurors were more likely to have prejudicial preconceived ideas about defendant's cause.
In arguing for a change of venue, defense counsel stressed that the defense had met its burden in showing that there was a reasonable likelihood of prejudice "in Cook County itself and nowhere else * * *," that the violent publicity was "far greater" in Cook County than in the other five counties that were studied, and that the prejudicial impact of which Dr. Ney spoke existed in Cook County but not in the other five counties studied, and that "the feeling that Mr. Motta and I have gotten visiting other counties was that there is a knowledge of the case, but there is not the same pattern of deep-rooted prejudice against the defendant" as there was in Cook County. The court granted defense counsel's motion for change of venue, specifically finding that there was "a substantial decrease of publicity outside of Cook County, perhaps strikingly so," and that even though publicity would be generated in whatever county the jury selection was conducted, this was the best method of insuring a fair trial for defendant. The circuit court emphasized the emotional connection that the inhabitants of Cook County had with this case because of the type of publicity, e.g., human interest stories and community interest stories, combined with the "particular community interest" in determining that the prejudicial impact of news reports required a change of venue. The jury was selected in Winnebago County and the trial was held before that jury in Cook County.
Defendant contends that he had insufficient information to determine whether Winnebago County had been unduly influenced by prejudicial publicity and that this constitutes reversible error. We disagree. While Dr. Ney did suggest that he had insufficient information to determine which of the five counties outside of Cook County had the least amount of prejudicial publicity, the reason for suggesting that Cook County's publicity was prejudicial was that the crime occurred in Cook County. Citizens living in other counties, by definition, would not establish the emotional tie to the crimes based on geographical location and the belief that the crime was significant because it happened in their community. While Dr. Ney indicated that people in Illinois might relate to the crime to some degree because of the jurisdictional boundaries of Illinois, more so than, say, a citizen of Montana, it must be kept in mind that the case had to be tried in some community in the State of Illinois. (People v. Speck (1968), 41 Ill.2d 177, 183.) Also, as was indicated during the hearing on this matter, if defendant was convicted of this crime, he would have been guilty of the greatest number of murders for which any one person had ever been convicted. Consequently, it was inevitable that news coverage would be significant in any part of the country.
Defendant had no right to be tried in the county which was most likely to be favorably disposed to defendant and his theory of defense. The contention that the circuit court was constitutionally mandated to provide funds for a study which would have "included a determination of the attitudes on the issues of sexual preference, deviant behavior, and the insanity defense" of the five major counties in Illinois is untenable. The right to a jury trial has been interpreted by the Supreme Court as the right to an impartial jury selected from a representative cross-section of the community. (Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770.) But just as the People may not select a jury which is predisposed on a pertinent issue which will arise at trial, the defendant may not seek out a county in which prospective jurors will most likely be predisposed on the defenses which the defendant will raise. We agree with the People that the defendant's request was, in effect, an attempt to substitute public opinion polls for the process of voir dire. We find no error in the circuit court's refusal to allow funds for this expenditure.
Defendant raises 14 issues concerning the presentation of his insanity defense to the jury. Because of the number of issues and because one of the contentions is that the People failed to prove beyond a reasonable doubt that defendant was sane at the time of the alleged offenses, a review of the evidence is necessary.
The People, in opening statement, reviewed the facts of the case as revealed by the investigation conducted by the Des Plaines police department and others and then described in detail several of the murders as recounted by defendant in his confessions. The assistant State's Attorney stressed that the confessions of defendant, as corroborated by physical evidence and the testimony of other witnesses, would show that defendant committed the murders because the victims were "an inconvenience to him" and that the murders were the results of premeditated and rational acts. The assistant State's Attorney urged the jurors to utilize their "common sense" while listening to the testimony of the expert witnesses who would testify in this case. Defense counsel also urged the jurors to use their common sense, and told them that the evidence would show that the acts of defendant were not those of a normal, rational person. Defense counsel stated that the evidence would demonstrate that defendant followed a pattern which showed "a profound, incredible obsession." Defense counsel stated: "We will hear a lot of evidence, great detail, that John Gacy went out in the evening, picked up boys, and these boys were all the same — in the same category; certain age group, certain body build, certain color hair, certain sexual preferences." Defense counsel stated that four psychiatrists would be called for the defense and that "[t]hese psychiatrists will testify that Mr. Gacy demonstrates a host of seemingly neurotic symptoms, * * * and will continue to be dangerous, he requires intensive psychiatric treatment within an institution for the rest of his life." Defense counsel also stated: "Those psychiatrists will testify that he was unable to fully and consciously control his acts, which are motivated by overwhelming and uncontrollable primitive drives." Defense counsel then proceeded to impugn the reputation of the psychiatrists who would testify for the People, calling Dr. Robert Reifman "a mechanic for the State," stating that Dr. James Cavanaugh had "an iron-clad inflexible bias," and that Dr. Jan Fawcett would testify on behalf of the People because defendant's cause was too unpopular for the doctor to associate himself with the defense. Defense counsel stated: "The defense of insanity is valid and it is the only defense that we could use here, because that is where the truth lies." Again, counsel stated that "this man belongs in a hospital for the rest of his life."
Witnesses testified that 29 bodies were recovered from the crawl space under defendant's home, under his driveway, and under his garage, and that five bodies were recovered from the Des Plaines River. Medical experts working for or in association with the Cook County medical examiner explained how identifications were made on the remains of these bodies and testified that one body, identified as body No. 9, had an incised area on the upper portion of the fifth rib and two incised areas on the left lateral of the sternum which were consistent with stab wounds. Six bodies were found with ligatures around their necks, and 13 bodies were found with foreign bodies in the posterior aspect of the mouth and throat. The official cause of death for those bodies with materials impacted in the mouth or the throat was "asphyxia due to suffocation," but it could not be determined medically whether the cloth was inserted before or after death. Several of the life and death witnesses testified that the victims were not homosexuals, but had steady girl friends, had just begun to date girls, or had plans to marry.
Former business associates, friends, and employees of defendant testified concerning defendant's actions during the period when the murders were committed and shortly before his arrest. David Cram worked for defendant and moved in with him after defendant was divorced from his second wife. He testified that defendant told him that he had a degree in psychology, which he needed in order to more easily manipulate people. Defendant admitted that he was bisexual, that he was not a big drinker, and that he never "went crazy" when using drugs or alcohol, or both. Cram testified that defendant had him dig trenches in the crawl space, purportedly for drainage purposes, and that defendant had him spread lime throughout the crawl space to rid the crawl space of its pungent odor. Cram testified that he was with defendant after the police had executed the first search warrant and that when they returned to defendant's home, defendant asked Cram to check the crawl space. Cram refused, so defendant checked the space and appeared "shook up about it." Ronald Rhode, a cement contractor who worked with defendant, stated that shortly before defendant was arrested he told him: "Ron, I've been a bad boy * * * I killed 30 people, give or take a few." Defendant told him that he had some doctors that "were on his side," and that he thought he would go free. Tony Antonucci also worked for defendant. He testified that defendant openly admitted that he was bisexual. He testified that defendant once asked him if he would engage in homosexual activity if it "meant his job." Antonucci testified that defendant once came over to his house to show him stag films. They began wrestling, and defendant managed to put handcuffs on Antonucci. Defendant then unbuttoned Antonucci's shirt and unbuckled his pants and pulled them down to his knees. Defendant then left the room. Antonucci managed to get out of one of the cuffs, but pretended that he had not, and when defendant returned to the room Antonucci placed the handcuffs on defendant. Defendant then stated: "You're the only one that not only got out of the handcuffs, but put them on me." Antonucci stated that after defendant had been handcuffed he continued to speak to him in a rational manner. Michael Rossi also worked for defendant. Defendant had sold him a car previously owned by John Szyc, who was later discovered to be one of defendant's victims. Rossi testified that on December 21, 1978, he went over to Cram's house to drop off some of defendant's tools, and that while he was there defendant arrived. He stated that defendant was emotionally disturbed, acted very nervous, and was "breaking into tears." He stated to Cram and Rossi that on the preceding night he had confessed more than 30 killings to his lawyers. Rossi testified that he had helped dig trenches in the crawl space, and supervised newer employees who were directed to dig trenches in the crawl space. He stated that defendant was very sensitive about where the employees dug, and would place markers designating the specific area in which the trenches were to be dug. Rossi testified that defendant was not a heavy drinker, that he complained of his health often, told Rossi that he had leukemia and once experienced something that appeared to be a heart attack, but that his health never prevented his getting his work finished.
Several police officers and an assistant State's Attorney testified concerning defendant's confessions. Prior to his arrest, defendant had stated to the police officers who were following him that "clowns can get away with murder." Before his arrest, defendant unplugged the sump pump in his crawl space so that it would fill up with water and removed the ladder descending into the crawl space. After confessing to the murders, defendant spoke of "four Johns" and told the police that he did not know all of the personalities. He told Detective Michael Albrecht: "Mike, I won't be in jail very long for this, I won't spend a day in jail for this." He described the murder of Robert Piest in some detail, and stated that after he had put the rope around Piest's neck he twisted it twice, but then the phone rang, so he went to answer the phone, and left Piest to die of suffocation. Apparently referring to one of his four personalities, defendant told police that "Jack does not like homosexuality." He told police that the victims had all sold their bodies for $20 and that they had killed themselves. Defendant told Investigator Bedoe that all of his victims had come to his house voluntarily, that all the murders concerned money, and that they all occurred in his house. In describing the disposal of Robert Piest's body, defendant told Investigator Bedoe that he had to make "two or three passes" at the bridge where he was going to throw the body in the river before the bridge was clear of other traffic. Investigator Bedoe testified on cross-examination that defendant openly admitted that he was bisexual, but expressed a tremendous fear of being a homosexual. Officer Phillip Bettiker testified that defendant said that Piest said that he would do almost anything for a great deal of money. Defendant used a rosary to demonstrate to Officer Bettiker and the other persons in the room at the time of the confession the "rope trick" that he used to strangle his victims. He stated that he did not have anal sex with Piest, but that "Jack might have." Defendant stated that he did not use the lime to speed up decomposition of the bodies, but rather used muriatic acid for this purpose. The lime was used, defendant explained, to sweeten the smell of the crawl space. After drawing a diagram of where the bodies were located in the crawl space, defendant put his hands over his face and stated: "What's going on. Jack drew that diagram of the crawl space." Lawrence Finder, an assistant State's Attorney, testified that defendant was emphatic about the fact that there were no bodies buried underneath his driveway. At the time of his confession, the driveway was still intact. Later, a body was found buried underneath the driveway. Defendant admitted to some 1,500 homosexual relationships. Defendant stated that he killed "Joe from Elmwood Park" because he wanted more money for the sex act, and that he would tell defendant's neighbors that he was homosexually raped by defendant if he did not pay the extra money. Defendant stated that the killings became less frequent later on because he was working so hard, and he was too tired to "go cruising." Defendant described the killing of John Butkavitch, and stated that since Butkavitch threatened to kill him if he was released from his handcuffs, he killed Butkavitch instead. He stated that Greg Godzik had dug his own grave, and that he had killed John Szyc because he had asked for more money. Defendant told Finder that he usually killed his victims for one of two reasons: because the victim demanded more money than originally agreed upon or because they posed a threat to him by exposing his sexual preferences to his neighbors. Defendant explained that Robert Piest did not fit the pattern. He had handcuffed Piest after Piest had come to his house with him to discuss the possibility of employment. Defendant placed handcuffs on Piest, and then attempted to perform oral sex on him, but could not since Piest could not get an erection. Because Piest "became frightened" defendant worried that he might tell somebody what had happened, so he performed the "rope trick" on Piest. Defendant stated that only "Jack Hanley" knew why Piest's body was put into the river. Defendant explained that he would frequently stuff socks into the mouths of victims to prevent the blood coming through the mouth after death from staining the floor. He stated that he had graves dug so that he would have graves available.
Defendant called two witnesses who described defendant's assaults upon them. Jeffrey Rignall testified that one night when he was walking to a local bar, defendant offered him a ride. Once inside the car, defendant placed a cloth soaked in chloroform over Rignall's face, causing him to lose consciousness. Defendant carried Rignall into his house and offered him a drink. Defendant appeared very relaxed. Defendant then chloroformed him again. When Rignall regained consciousness, he found himself restrained on a wooden board which was suspended by chains. The board had holes in it where his arms went through and where his head was placed. Defendant, who was naked, was standing directly in front of Rignall masturbating. Defendant then grabbed Rignall's head and shoved his penis into Rignall's mouth, shouting: "You love it, you love it," with a tone of voice used by a drill instructor. Rignall lost consciousness several more times, and when he regained consciousness defendant shoved an unidentified object into Rignall's rectum. He repeatedly stated, "You love it," talked in obscenities, and "made it clear" to Rignall that defendant was in complete control. The next thing Rignall remembers is waking up, wearing only his blue jeans, next to a statue in a park near his home in Chicago. It was very cold outside. His face was scarred and swollen and he was bleeding from his rectum. Rignall testified that he was currently under psychiatric care and was also receiving treatments for his liver because the repeated use of chloroform had damaged his liver. Rignall was of the opinion that defendant was not legally sane at the time of this episode and stated that he reached this opinion "by the beastly and animalistic ways he attacked me." Michel Ried testified that he was a homosexual and met defendant in "New Town." After a brief conversation, he and defendant engaged in sex for which defendant paid Ried. Ried testified that he was having difficult times financially, and that defendant gave him a job and allowed him to move in with him. One night in defendant's garage, which at the time was unlit, defendant told Ried to get some fuses which were under the work bench. As he did, defendant hit him with a hammer. Ried got up and saw that defendant had his arm cocked back as if he were going to strike again and had a "kind of strange" look in his eyes. Ried grabbed defendant's arm and asked him what he was doing. Defendant just looked at him, put the hammer down, and told Ried that he did not know what had come over him, but that he felt like he wanted to kill ...