Appeal from the Circuit Court of Will County, the Hon. Robert
R. Buchar, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 28, 1984.
Tafford Holman, the defendant in this capital case, was indicted for the intentional murder of Anthony Townsend (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)), armed violence based on the aggravated kidnaping of Antoinette Townsend, Anthony's mother (Ill. Rev. Stat. 1979, ch. 38, pars. 10-1(a)(1), (2), 10-2(a)(3), 33A-2), and home invasion (Ill. Rev. Stat. 1979, ch. 38, par. 12-11(a)(1)). A second indictment was returned four weeks later which added three counts of felony murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(3)), all based on the killing of Anthony Townsend and predicated on the felonies of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)), burglary with intent to commit a felony (Ill. Rev. Stat. 1979, ch. 38, par. 19-1(a)), and burglary with intent to commit theft (Ill. Rev. Stat. 1979, ch. 38, par. 19-1(a)). Following a jury trial in the circuit court of Will County defendant was found guilty on all counts. A sentencing hearing was held before the same jury, which found the existence of statutory aggravating factors and determined that there were no mitigating factors sufficient to preclude the imposition of the death sentence. (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(b), (c).) The court thereupon sentenced Holman to death on the felony-murder counts, and also pronounced extended sentences of 60 years' imprisonment on the intentional-murder count and 40 years' imprisonment for armed violence and for home invasion (Ill. Rev. Stat. 1979, ch. 38, pars. 1005-5-3.2(b)(2), 1005-8-2). Holman appeals directly to this court. Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill.2d R. 603.
The pajama-clad body of the victim, Anthony Townsend, was found in the early morning hours of February 22, 1980, in the kitchen of the house in Joliet where he lived with his mother and his younger brother Van. He had been shot in the side of the head and was dead. With the exception of the kitchen door, all of the outside doors to the house were open, including one leading directly into Anthony's bedroom, but a police officer, Gary Schild, who arrived at the murder scene, stated that there were no signs that any of them had been forced open. A woman's purse, identified as belonging to Mrs. Townsend, was found on the living room floor with its contents strewn around it. Officer Schild dusted these items and the kitchen and rear door but found no fingerprints. He found two .25-caliber shell casings in the Townsend home.
Mrs. Townsend was the chief prosecution witness. She testified that she was at home with Anthony and Van on the night of February 21, 1980, and that they were watching television at 11 p.m. when she went to sleep. Sometime in the night she was wakened by a sound. She called out to her sons to see if anything was wrong; receiving no answer she rose from her bed and was confronted by a man in the doorway, whom she later identified as the defendant. The man said, "No, it's me. It's a robbery." He fired one shot in her direction and instructed her not to turn on the light or look at his face. She complied with these directions, and the man next ordered her to show him her purse. The intruder took what he wanted from it and dumped the rest on the floor. He then ordered her to go outside and "drive me." As she crossed the living room toward the door she saw Anthony lying on the floor of the kitchen. The man told her he had shot Anthony because he would not let him inside the house.
Once they were outside the house Mrs. Townsend told the intruder that she did not know how to drive, and the intruder got into the driver's seat of the Townsend car himself and commenced driving eastward from Joliet while holding her at gunpoint next to him. After arriving in Gary, Indiana, he drove around that city for a while. Next, he pulled into an alleyway and ordered Mrs. Townsend to get into the back seat of the car. After a short time a bright light shone through the window. The man ordered Mrs. Townsend out of the car and followed her out at gunpoint. When she attempted to run away, the man fired four shots at her, hitting her twice. She fell to the ground and pretended she was dead. The man walked toward the highway and was picked up by an acquaintance a few minutes later.
According to Mrs. Townsend's testimony, a youth who had been fixing a tire by the side of the road noticed her and covered her with a leather coat which he found in the Townsend automobile, which remained where the assailant had parked it. She testified that the coat belonged to the assailant. The youth called for an ambulance, and it took her to a Gary hospital. Two Gary police detectives examined the coat in the hospital and found two gold rings and a medicine bottle in one of the pockets. The label on the medicine bottle indicated the prescription was made out to Anne Mae Williams, whom Lieutenant Wayne Brown, one of the detectives, visited twice at her Gary address.
On Brown's first visit, according to his testimony, he received no answer to his knock at the door but noticed a letter addressed to "T. Holman" in the open mailbox. He contacted Williams several days later and she took him to another house in Gary, from which she emerged with a photograph of a man wearing two rings on his left hand. This photograph was admitted into evidence over objection. An objection was sustained to Brown's statement that in his opinion the rings were the same as the ones taken from the coat. However, Brown was permitted to testify, over objection, that the man depicted in the photograph was the defendant. Williams did not testify.
During her stay in the hospital Mrs. Townsend was shown several photographs from the police files and identified one photograph as that of her abductor. At trial she was shown the same photographic lineup and identified the defendant as the man whose picture she had picked.
The defendant did not testify at the guilt phase of the trial but did so, against the advice of his attorney, at the first stage of the sentencing hearing. His version of events was that he had been drinking and visited relatives with two men, whose names he gave as Boogie and Zeich, during the evening in question. This was generally corroborated by several of Holman's relatives who also testified at this stage. Holman testified that he also visited his father, and that after this visit he and Zeich proceeded to the Townsend house, apparently because the defendant thought there had been a misunderstanding between Anthony Townsend and the defendant's father. Anthony recognized the defendant and admitted the two men through the door leading into his room, whereupon Holman questioned him about the earlier misunderstanding and an argument ensued. According to Holman's testimony, Zeich shot Anthony with no warning during the argument. Holman, who claimed he was drunk, panicked and tried to find an exit and heard a second shot while he was searching, but by the time he found the front door Zeich had fled and Mrs. Townsend had wakened and recognized him. He decided at this point to abduct her and, after rummaging through her purse for the keys to the Townsend car, he left for Gary, his home city, without taking anything of value from inside the house. He indicated that his intention had been merely to secure her car for getaway purposes and to release Mrs. Townsend once he reached the highway to Gary, but that the appearance of a police car at that point forced him to continue on to Gary before releasing her. He admitted firing one or several shots at her in Gary when she tried to flag down a passing police car.
At the hearing in aggravation and mitigation, evidence was introduced of a 1975 conviction of the defendant for robbery and a 1970 conviction for armed robbery, both of which resulted in prison sentences, and a 1966 adjudication of delinquency in connection with the robbery, abduction and sexual assault of a man. In addition, Thomas Wilson, a former Illinois judge, testified that in 1968 he sentenced Holman to prison for the misdemeanors of reckless conduct and unlawful use of a firearm, to which Holman had pleaded guilty. Judge Wilson could not recall whether Holman was represented by an attorney at any time during the proceedings, and although the docket sheet showed that at one point Holman stated he would obtain his own attorney there was no indication that he had done so.
The warden of the jail at which Holman was being held pending trial in this case testified that he received a note from an inmate which purported to solicit an assault on a lady who lived at Mrs. Townsend's address. The writer mentioned a desire to obtain a gun and gave as a reason for the assault the fact that the lady's son had "jumped on" the writer's father. The inmate who gave the warden the note told him that Holman had written the letter.
Mrs. Townsend testified that she had not heard of Holman prior to the assault and that because the family was a close one Anthony would have told her of any difficulties that he had had with a man named Holman, but he had never mentioned any. She further testified that Anthony was an honor student who had made Who's Who in American High Schools, worked as a salesman part time, and had never been in an altercation to her knowledge.
Officer Brown testified that Williams had told him that Holman had handled her .25-caliber pistol prior to the Townsend incident but had put it back when she had asked him to do so. However, she told Officer Brown that he had been with her in Gary on the night of the shooting, had told her he needed money, and had left without her noticing, and that when she woke up in the morning the pistol was gone along with a bag of ammunition.
Holman resumed the stand and reiterated his earlier testimony that it was Zeich who had killed Anthony. He admitted firing at Mrs. Townsend and writing the note while in custody awaiting trial. He also admitted committing the 1970 armed robbery but denied having sexually assaulted anyone.
This appeal involves numerous issues concerning the propriety of the various murder convictions and the conviction for home invasion, as well as the death sentence and the other sentences imposed. We will treat first those issues common to all of the murder convictions which arose at the guilt portion of the trial.
Holman first challenges certain testimony which he claims was hearsay. In attempting to establish a link between Holman and the coat which was found in the back seat of the Townsend car, the prosecutor questioned Officer Brown as follows:
"Q. Did you have occasion to show Anne Williams this prescription pill bottle and those marked 12-A and B, the gold and diamond rings?
Q. Did you ask her if she could identify them?
Q. And pursuant to your conversation about those rings and that pill bottle, did she take you anywhere?
Officer Brown went on to testify about receiving the photograph from Williams; on admission of this photograph into evidence Brown identified Holman as the man portrayed. Brown never testified directly as to Williams' statements, nor did he say that Williams identified Holman as the owner of the rings. However, it is argued that the assertive responses of Williams referred to in Brown's testimony quoted above are tantamount to an identification by Williams, and that the admission of Brown's testimony concerning his half of the conversation with Williams impermissibly "allow[ed] the responses of the other party [Williams] to be a subject for the deductive powers of the trier of fact" (People v. Spivey (1978), 58 Ill. App.3d 677, 679; People v. Warmack (1976), 44 Ill. App.3d 243, 246).
The fundamental purpose of the hearsay rule is to test the value of assertions by exposing the source of the assertion to cross-examination by the party against whom it is offered. (People v. Carpenter (1963), 28 Ill.2d 116, 121; see People v. Rogers (1980), 81 Ill.2d 571, 577-78; 5 Wigmore, Evidence sec. 1362, at 3-10 (Chadbourn rev. ed. 1974).) Application of the rule to overturn the outcome of a trial supposes that the testimony under attack was offered to establish the truth of a matter asserted or clearly indicated in the testimony and rested for its value upon the credibility of an out-of-court declarant. People v. Rogers (1980), 81 Ill.2d 571, 577.
While it is possible that the jury might have concluded from Officer Brown's statements that Williams identified the defendant as the man to whom the rings found in the coat belonged, that is only one possible interpretation of her response. According to Brown's testimony, her full response was to give him a picture of a man wearing similar rings; she did not name the man or say in any more assertive fashion either that the rings found in the coat belonged to the man depicted or that the man in the photograph was the defendant. The eventual linking of Holman to the rings and the coat came from Brown's own in-court identification of him as the man in the photograph, not from anything Williams said or indicated: in fact, other than the photograph itself and the words "T. Holman" on an envelope found by chance inside Williams' mailbox, the jury had no evidence from which it could infer that Williams knew Holman at the time it had to decide the question of his guilt.
We conclude that, unlike the testimony in People v. Spivey (1978), 58 Ill. App.3d 677, on which the defendant relies, the testimony complained of here did not have the natural effect of informing the jury of an identification of the defendant by an out-of-court declarant, but simply had its intended effect of recounting the steps Brown took in investigating the ownership of the coat and providing a background for the photograph whose subject Brown identified. Brown was available for cross-examination at all times, and virtually all of the vital links in the identification could have been tested by cross-examining him. (People v. Rogers (1980), 81 Ill.2d 571, 579-80; People v. Carpenter (1963), 28 Ill.2d 116, 121.) There was no impermissible use of hearsay testimony.
Holman next argues that the admission of the photograph into evidence was error because no foundation had been laid for its admission other than Officer Brown's uninformed statement of opinion that the man it depicted was the defendant and his further statement of opinion, stricken following an objection by defense counsel, that the rings depicted in it were the ones found in the coat. In a related contention, the defendant argues that the opinion testimony of Brown as to the identity of the man portrayed was improper because Brown had no personal knowledge of any facts which would have aided him in such an identification.
"In order to have a photograph admitted in evidence it is necessary that the photograph be identified by a witness as a portrayal of certain facts relevant to the issue and verified by such witness on personal knowledge as a correct representation of the facts. The witness need not be the photographer, nor need he know anything of the time or condition of the taking, but he must have personal knowledge of the scene or object in question and testify that it is correctly portrayed by the photograph." (People v. Thomas (1967), 88 Ill. App.2d 71, 80-81.) In this case the photograph was important not for its depiction of the way the defendant appeared at a certain time, as in People v. Donaldson (1962), 24 Ill.2d 315, and People v. Beverly (1978), 63 Ill. App.3d 186, but rather for its depiction of an individual who could be identified as the defendant. It was thus not necessary that Officer Brown be familiar with Holman's appearance at the time the picture was taken or with the circumstances under which the picture was taken as long as he was familiar enough with Holman's general appearance to be able to say with some degree of certainty that the picture was of him. Officer Brown had the opportunity to observe Holman both in the courtroom and before the trial; in fact, he was the arresting officer. It was within the discretion of the trial judge to admit the photograph into evidence on the basis of Brown's identification. People v. Thomas (1967), 88 Ill. App.2d 71, 81; Brennan v. Leshyn (1964), 51 Ill. App.2d 132, 139.
For similar reasons we find no fault with the trial court's decision to permit Officer Brown to testify that the photograph depicted Holman. The cases cited by Holman (People v. Garrett (1975), 62 Ill.2d 151; People v. Wallenberg (1962), 24 Ill.2d 350) are inapposite, for they involved subjects which required scientific knowledge or knowledge of special facts. No special knowledge other than acquaintance with the person named in the identification is required to identify a person depicted in a photograph. In fact, each juror could have reached the same conclusion by looking at the photograph and the defendant in the courtroom.
Holman next takes issue with the following statement made by the prosecutor in his closing argument to the jury:
"In the Sixth Amendment of the Bill of Rights, there is a small provision which holds and states that the defendant has the absolute right to compulsory process, to process witnesses. He could have produced Anne Williams. All he'd have to do is get a court order from the judge. This judge would order the Sheriff of this County to grab that woman and bring her in a ball and chain and handcuffs, if necessary, and absolutely require her to testify, provided she did not incriminate herself, and there is nothing the State could have done."
This was represented by the State as a response to defense counsel's earlier suggestion in closing argument that because Williams had been available to the State as a witness but had never been called to testify, it could be inferred that her testimony would have been damaging to the prosecution. Holman's objection was overruled.
Ordinarily, the prosecution may not comment unfavorably upon a defendant's failure to produce a witness, at least if it is not made clear that the witness was readily accessible to the defense and not equally accessible to the prosecution with the exercise of ordinary diligence. (See People v. Munday (1917), 280 Ill. 32, 42, 47; People v. Johnson (1968), 102 Ill. App.2d 443, 454.) However, reviewing courts> in this State have consistently held that comment on the failure of a potential defense witness to testify is permitted when made in response to defense counsel's own reference to the State's failure to call the witness to the stand. People v. Smith (1962), 24 Ill.2d 198, 200; People v. Izzo (1958), 14 Ill.2d 203, 213-14; People v. Wheeler (1955), 5 Ill.2d 474, 485-86.
In this case, the prosecutor's comments were in response to defense counsel's argument that "[t]he State says there's an Anne Mae Williams out there somewhere. She's not here. She didn't testify. * * * They didn't bring her here." This statement raised the inference that the prosecutor's case would have been compromised by Williams' appearance. The response was properly limited to the provocation (see People v. Heywood (1926), 321 Ill. 380, 383), and although the description of the mechanics of serving a subpoena was perhaps unnecessarily vivid, the prosecutor did not dwell on defense counsel's failure to produce Williams to such an extent as to reflect unduly on Holman's culpability. We do not feel that a new trial is required because of the prosecutor's comments, especially in view of the convincing nature of the evidence of Holman's guilt of the murder charges which he failed to contradict or rebut in the guilt phase of his trial. See People v. Bartall (1983), 98 Ill.2d 294, 323.
Holman's next contention is that the selection of his jury according to the principles of Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770, which permit the State to exclude for cause all those who indicate that they would automatically vote against the imposition of capital punishment without regard to the evidence that develops at trial or that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt, resulted in a jury that was biased in favor of conviction and did not represent a fair cross-section of the community. The argument that a Witherspoon-qualified jury is unduly conviction-prone has been rejected on the basis of the insufficiency of the available statistical evidence by recent decisions of this court (e.g., People v. Free (1983), 94 Ill.2d 378, 401-02, cert. denied (1983), 464 U.S. 865, 78 L.Ed.2d 175, 104 S.Ct. 200; People v. Tiller (1982), 94 Ill.2d 303, 321-22; People v. Lewis (1981), 88 Ill.2d 129, 147, cert. denied (1982), 456 U.S. 1011, 73 L.Ed.2d 1308, 102 S.Ct. 2307), as well as by the Federal circuit courts> and courts> of other States which have considered the issue (e.g., Smith v. Balkcom (5th Cir. 1981), 660 F.2d 573, 582; United States ex rel. Clark v. Fike (7th Cir. 1976), 538 F.2d 750, 761-62, cert. denied (1977), 429 U.S. 1064, 50 L.Ed.2d 781, 97 S.Ct. 791; State v. Avery (1980), 299 N.C. 126, 138, 261 S.E.2d 803, 810). Only one court has accepted this contention to date. See Grigsby v. Mabry (E.D. Ark. 1983), 569 F. Supp. 1273.
We note that a considerable amount of scholarly research has been done on the impartiality of Witherspoon-qualified juries since the Witherspoon case was decided. (See studies cited in Grigsby v. Mabry (E.D. Ark. 1983), 569 F. Supp. 1273, 1294-1305, and Hovey v. Superior Court (1980), 28 Cal.3d 1, 27-60, 616 P.2d 1301, 1315-41, 168 Cal.Rptr. 128, 142-68.) However, Holman has failed either to cite any studies completed since our decisions in Free, Tiller and Lewis were rendered or to explain in any detail what the findings of the earlier studies mean. We adhere to our earlier holdings that the State was properly permitted to conduct death-qualification proceedings on voir dire.
Holman argues that four of the jurors who were excluded for cause as a result of the death-qualification proceedings did not qualify for such exclusion under Witherspoon v. Illinois, and, therefore, he should receive a new trial as to guilt. In both Witherspoon and Adams v. Texas (1980), 448 U.S. 38, 65 L.Ed.2d 581, 100 S.Ct. 2521, the jury from which jurors were found to have been improperly excluded for cause decided both the question of guilt and the penalty to be imposed. In both cases the Supreme Court reversed the death penalty but did not disturb the verdict of guilt. Although the Supreme Court has never held squarely that such a verdict is not subject to challenge on grounds of failure to comply with Witherspoon, there is likewise no indication from its holdings that it views the question as an open one. For these reasons we decline to treat his contention that there were Witherspoon violations in the selection of his jury as a proper ground for vacating the verdicts of guilt.
Holman's final argument concerning the propriety of his convictions is that the indictment under which he was tried should have been dismissed because of improper delaying tactics on the part of the prosecution which resulted in failure to hold a preliminary hearing. Holman was first charged with the murder of Anthony Townsend in a complaint issued on February 25, 1980, and following his arrest in November 1980 and his first appearance in the Will County circuit court on February 14, 1981, a preliminary hearing was set for March 9, 1981. On March 5 the prosecution moved to have Anne Mae Williams certified as a witness to compel her attendance at a March 18 grand jury proceeding and requested that the preliminary hearing be continued for two weeks pending her appearance before the grand jury. The court continued the preliminary hearing until March 24, 1981. On March 18 the grand jury returned a three-count indictment charging Holman with murder, armed violence and home invasion, without the benefit of Williams' testimony.
Holman contends that Williams' presence was not material or necessary because she was never called before the grand jury, and that Dave Davis, the only witness listed as appearing in the March 18 grand jury proceedings, was available to the State at all times prior to that date. The motion for certification, he therefore reasons, was but a subterfuge for the purpose of delaying the preliminary hearing. He argues first that the Illinois Constitution requires the dismissal of charges as a sanction for bad-faith delay of a preliminary hearing.
Our constitution provides:
"No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause." (Ill. Const. 1970, art. I, sec. 7.)
This court has recognized that continuance of a preliminary hearing for the sole purpose of permitting a grand jury to indict a defendant being held in custody is not to be condoned under this provision and has suggested that "appropriate sanctions might be considered" to deter such conduct by the prosecution. (People v. Hood (1974), 59 Ill.2d 315, 324.) However, this court has ruled that dismissal with prejudice is not available to a defendant as a sanction. (People v. Howell (1975), 60 Ill.2d 117, 120; People v. Hendrix (1973), 54 Ill.2d 165, 169.) Rather, the existence of other possible remedies for this type of delay, such as presuming the involuntariness of any statements made by the defendant during the delay and applying an exclusionary rule to them, have been noted. This court has held, however, that the fashioning of a remedy is a legislative rather than a judicial matter. (People v. Howell (1975), 60 Ill.2d 117, 122-23.) As of the time the trial court passed on Holman's motion to dismiss the indictment, the legislature had not acted on this subject, although it has since (Pub. Act 83-644, eff. Jan. 1, 1984).
Holman urges us to follow People v. Kirkley (1978), 60 Ill. App.3d 746, in which the appellate court expressed the view that dismissal of the charges with prejudice was the only effective way of implementing the constitutional guarantee here at issue because of the legislature's failure to provide guidelines in the matter of sanctions. This case is not comparable to Kirkley, in which the return of the indictment 176 days after the defendants' arrest and 148 days after the originally scheduled date for the preliminary hearing prompted the observation that the violation of the constitutional provision guaranteeing a prompt preliminary hearing was the worst that had ever occurred. Holman's indictment was returned only nine days after the originally scheduled date for the preliminary hearing, and Holman has not contended that the length of time intervening between his arrest and the date originally set for the hearing was in any way attributable to the State. Thus, even if the constitutional provision requires that the determination be made by preliminary hearing whenever a grand jury indictment is not initially returned (see People v. Hood (1974), 59 Ill.2d 315, 324; 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2600 (1970)), it would be inappropriate for this court to take the matter of sanctions into its own hands where, as here, probable cause was determined with reasonable promptness by a grand jury (People v. Howell (1975), 60 Ill.2d 117, 119; see People v. Rush (1980), 91 Ill. App.3d 366), and the defendant has made no attempt to show how the delay of nine days prejudiced him.
Holman also argues that the absence of a preliminary hearing in this case violated Federal guarantees of due process (U.S. Const., amends. V, XIV) so as to require dismissal of the charges. This argument is based on the suggestion made in United States v. Marion (1971), 404 U.S. 307, 324, 30 L.Ed.2d 468, 481, 92 S.Ct. 455, 465, that due process "would require dismissal of the indictment if * * * the delay [in bringing it] was an intentional device to gain tactical advantage over the accused" and the recognition in United States v. Lovasco (1977), 431 U.S. 783, 795, 52 L.Ed.2d 752, 762, 97 S.Ct. 2044, 2051, that a due process inquiry must include consideration of the reasons for the delay as well as an assessment of the prejudice the defendant suffered. The defendant, however, must bear the initial burden of showing that he has been significantly prejudiced, and only after such a showing does the burden shift to the government to demonstrate the reasonableness of the ...