Appeal from the Circuit Court of Cook County, the Hon. Louis
Garippo, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 29, 1985.
In an indictment returned in the circuit court of Cook County, defendant, George W. Del Vecchio, was charged with murder (Ill. Rev. Stat. 1975, ch. 38, par. 9-1(a)(2)), rape (Ill. Rev. Stat. 1975, ch. 38, par. 11-1), deviate sexual assault (Ill. Rev. Stat. 1975, ch. 38, par. 11-3), and burglary (Ill. Rev. Stat. 1975, ch. 38, par. 19-1). Following a jury trial, defendant was found guilty of each of the charged offenses. In a hearing requested by the People, the jury found that there existed one or more of the factors set forth in section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)) and that there were no mitigating factors sufficient to preclude a sentence of death. Defendant was sentenced to death, and the sentence was 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 defendant was also sentenced to 15 years for rape, 6 years for deviate sexual assault, and 7 years for burglary.
At trial, Karen Canzoneri testified that she and her six-year-old son, Tony, occupied the first-floor and attic levels in a two-flat building in Chicago. On the evening of December 22, 1977, Mrs. Canzoneri, Tony, and Santo Falcone had driven to Lombard, where Mrs. Canzoneri purchased a stereo receiver. When they returned to Chicago they stopped at a tavern, and while there they saw defendant and his wife, Rose, both of whom they knew. When they left the tavern approximately a half hour later, Rose Del Vecchio came with them. After assembling the stereo which Mrs. Canzoneri had purchased, Falcone put Tony to bed downstairs. When Falcone returned upstairs, defendant was with him. Defendant brought with him a briefcase containing marijuana which he, Falcone, and Rose Del Vecchio smoked. After approximately an hour, Mrs. Canzoneri asked them to leave.
At about dawn, Mrs. Canzoneri was awakened when she heard footsteps. When she asked who was there, defendant identified himself, stating he "wanted to talk." Mrs. Canzoneri attempted to shoot defendant with a pistol which Falcone had given her, but defendant slapped it out of her hand. Defendant would not permit her to check on Tony, responding that Tony was sleeping peacefully. When she attempted to leave the room to check on her son, defendant pushed her back on the bed, kissed her face, breasts, vagina, and legs, and despite her request to stop, had intercourse with her. During the intercourse, she heard a telephone ring. She asked defendant to let her answer it because it was probably her mother, who lived across the street. She told him that unless she answered the telephone, her mother would come over. Defendant did not respond. Mrs. Canzoneri could not determine which of the three telephones in the apartment was ringing. The ringing stopped. The telephone rang again and defendant went downstairs. Mrs. Canzoneri looked for the telephone but could find only the cord. The telephone, severed from the cord, was found later when the police searched the premises. She ran downstairs and across the street to her mother's house. Mrs. Canzoneri told her mother she had been raped and called the police.
Chicago police officer William Sacco testified that five police officers responded to the call of a rape in progress. Mrs. Canzoneri told the officers that there was a man with a gun in her house, that she knew the man and that it was defendant. After searching the first floor, the officers went up to the attic bedroom. Alerted by the sound of snow crunching outside the window, Officer Sacco saw defendant crawling on the roof and ordered him inside. Defendant responded by blurting, "I didn't kill nobody." Defendant was arrested, given Miranda warnings, and handcuffed. Officer Richard Elmer testified that, after searching various areas of the building and interviewing a neighbor, he and other officers discovered a crawl space located under the stairs. They opened the door and found the body of Tony Canzoneri. Later examination showed that the boy's trachea, carotid artery, jugular vein and vagus nerve were completely severed, and the third and fourth cervical vertebrae were fractured.
It appears from the testimony that when she entered her home earlier that evening Mrs. Canzoneri left her purse on the kitchen table. Her purse, among other things, contained her keys, and a credit card. When defendant was taken into custody, the credit card was in his possession.
Defendant contends first that he did not receive effective assistance of counsel. The record shows that prior to trial defense counsel had indicated that the defense would be insanity. Counsel attempted to determine whether the circuit court would permit the People to rebut the insanity defense with evidence of defendant's 1965 convictions for murder, robbery and attempted robbery. The circuit court stated that until the evidence of insanity was presented it could not determine whether evidence of the prior convictions was relevant. Defendant contends that defense counsel should have made an offer of proof concerning the evidence which would be presented and that the failure to do so constituted ineffective assistance of counsel. Defendant argues that because of the failure to make an offer of proof counsel did not learn whether the circuit court would exclude evidence of the prior convictions and therefore were unable to make an informed tactical decision concerning the defense to be presented. Defendant contends that, as a result, counsel withdrew a meritorious insanity defense and instead relied on an intoxication defense for which the evidence did not present a prima facie case.
The People contend that defendant received excellent representation. They state that defense counsel interviewed 30 to 40 witnesses, filed numerous pretrial motions, obtained court-ordered psychiatric examinations of defendant, vigorously cross-examined the People's witnesses, and called 24 witnesses to testify on behalf of defendant. The People further note that prior to the People's cross-examination of Dr. Stipes, who had testified concerning the effect of the ingestion of PCP, defense counsel, in limine, indicated they would tender an insanity instruction. The court offered defense counsel a choice of an insanity instruction, in which event the People would be permitted to rebut the defense with evidence of defendant's prior convictions, or forgoing an insanity instruction, thereby precluding introduction of evidence of the prior convictions. It was at this point, and for this reason, that defense counsel elected to withdraw the insanity defense and proceed on an intoxication theory.
In People v. Albanese (1984), 104 Ill.2d 504, after reviewing the Supreme Court's recent opinion in Strickland v. Washington (1984), 466 U.S. ___, 80 L.Ed.2d 674, 104 S.Ct. 2052, and this court's opinion in People v. Greer (1980), 79 Ill.2d 103, the court said:
"Although we do not foresee that application of the Strickland rule will produce results that vary significantly from those reached under Greer, we hereby adopt the Supreme Court rule for challenges to effectiveness of both retained and appointed counsel (see People v. Royse (1983), 99 Ill.2d 163, 170) and reject the single-component test of Twomey.
To assist lower courts, the Supreme Court also offered the following guidelines for applying its two-component standard: `[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' 466 U.S. ___, ___, 80 L.Ed.2d 674, 699, 104 S.Ct. 2052, 2069-70." 104 Ill.2d 504, 526-27.
On this record, we are unable to say that defendant was prejudiced by counsel's alleged ineffectiveness. Clearly, defendant's contention that the evidence presented with respect to the intoxication defense failed to establish a prima facie case is without merit because an instruction was given on the intoxication defense and the jury chose to reject it. Obviously the jury also rejected the evidence of defendant's insanity adduced at the sentencing hearing because it failed to find the existence of the mitigating factor that "defendant was under the influence of extreme mental or emotional disturbance" (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(c)(2)). Thus, we are unable to say that counsel's performance caused substantial prejudice to the defendant without which the result of the trial would probably have been different.
Defendant contends next that he was denied a fair trial because of the assistant State's Attorneys' personal attacks on defense counsel and their improper argument that the defense was a fraud. In the cross-examination of a police officer, defense counsel attempted to show that the officer had refused to discuss the case with one of defendant's attorneys. On redirect examination the assistant State's Attorney asked the officer if it was "his practice to talk to defense attorneys, people who represent murderers?" In closing argument the assistant State's Attorney asserted that the jury had heard "many different defenses," with the defenses shifting first to one and then back to the other. Comment was made to the effect that the insanity defense had been withdrawn "because it wasn't working." In several instances objections were sustained, and in one instance a motion for mistrial was denied.
It would have been better if the comments of which defendant complains had not been made, but on this record we conclude that the comments did not result in prejudice which requires reversal. Defendant has not denied that he committed the homicide, and the context in which the improper argument was made is unlikely to have influenced the jury in deciding the crucial question whether defendant's intoxication from the ingestion of PCP rendered him unable to form the intent necessary to commit the offense.
As the court said in People v. Smothers (1973), 55 Ill.2d 172:
"The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial judge has performed his duty and properly exercised the discretion vested in him. (North Chicago Street Ry. Co. v. Cotton, 140 Ill. 486.) The general atmosphere of the trial is observed by the trial court, and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld." (55 Ill.2d 172, 176.)
We find no such abuse of discretion here.
Defendant contends next that the circuit court committed reversible error in permitting the People to introduce irrelevant testimony that defendant had committed adultery and to argue, without any basis in the evidence, that defendant and his wife engaged in deviate sexual activity. The testimony to which this contention refers was elicited during the cross-examination of defendant's wife, Rose Del Vecchio, who stated that Mary Blackstone had lived in their home and that during that period she had slept with defendant. The reference to improper prosecutorial comment concerns a remark to the effect that defendant, his wife, and another woman were in bed together. This comment was in turn based on an attempt to elicit from Mrs. Del Vecchio the admission that there had been a lesbian relationship between the witness and Ms. Blackstone.
In the context of the entire record it is difficult to see that the relationship of either defendant or his wife with Ms. Blackstone was material to the issues in the case, but an argument can be made that in view of the wide-ranging direct testimony of Mrs. Del Vecchio the cross-examination concerning defendant's adultery with Ms. Blackstone may have been proper. In our opinion, however, neither question warrants lengthy analysis or discussion. Defendant's evidence shows that he was an admitted narcotics dealer, a regular user of PCP, and on the night of the occurrence in question, he asserts that he was so completely intoxicated by reason of the ingestion of PCP that he has no recollection of what occurred. In view of those circumstances we conclude that evidence of his adultery with Ms. Blackstone or the possibility that the jury may have concluded there was a lesbian relationship between defendant's wife and Ms. Blackstone would have had no prejudicial effect on the jury. This was not a situation where defendant denied the commission of the offenses; the only issue involving defendant's credibility was whether he was intoxicated at the time of the homicide. Under the circumstances we hold that if any error was committed, it was, beyond a reasonable doubt, harmless.
Defendant contends next that the circuit court erred in refusing to grant a mistrial or to excuse veniremen who overheard a juror state her personal opinion of the accused. Defendant contends that the circuit court should have interrogated the remaining veniremen concerning the effect of the remark. Upon commencement of voir dire, the court instructed the prospective jurors that defendant was presumed innocent, that this presumption would be overcome only by proof of guilt beyond a reasonable doubt, and that they were to base their decision solely on the evidence presented at trial. The court then posed several questions to the prospective jurors collectively, regarding whether any had discussed the case. The court instructed them to answer by standing. If a prospective juror stood he would then be examined individually by the court. Following that questioning period, jurors were called to the jury box 12 at a time and examined individually in panels of four. One of the prospective jurors said she had read about and discussed the case. When asked whether she had reached an opinion of defendant's guilt, she responded, "I think the guy shouldn't be out walking the streets." The court then excused all five prospective jurors who had previously responded that they had knowledge of the case through pretrial publicity.
While our system of jurisprudence requires the participation of fair and impartial jurors, it is not necessary that they be totally ignorant of the facts of the case before they assume their roles as jurors. (Irvin v. Dowd (1961), 366 U.S. 717, 722, 6 L.Ed.2d 751, 756, 81 S.Ct. 1639, 1642.) The court excused those who had responded that they had previous knowledge of the case. The remaining veniremen who heard the comment had not otherwise heard about the case. We are unable to say that because of this single, isolated comment the jurors were unable to reach a verdict based solely on the evidence.
Defendant has also argued that the systematic exclusion of veniremen opposed to the death penalty denied him his right to a jury drawn from a fair cross-section of the community and resulted in a jury biased toward the prosecution. We have considered and rejected this latter contention that qualifying a jury according to the principles of Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770, results in a jury biased in favor of conviction (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) and decline to reconsider it here. Implicit in that holding was our conclusion that a jury chosen in accordance with the principles of Witherspoon does not deny defendant a jury drawn from a fair cross-section of the community.
We consider next defendant's contention that his sentence must be vacated because it was imposed by a jury which was selected in violation of the principles established in Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770. In Witherspoon, the Supreme Court held that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. The court said:
"Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position." (391 U.S. 510, 516 n. 9, 20 L.Ed.2d 776, 781-82 n. 9, 88 S.Ct. 1770, 1774 n. 9.)
Defendant contends that one juror was improperly excused during voir dire in violation of the standard set forth in Witherspoon. The following colloquy, in pertinent part, occurred:
"THE COURT: * * * Now, with respect to I asked some questions with respect to the juror's views on the death penalty.
Is there anyone here who feels that who feels that after you if you sat on a jury that found a defendant guilty of murder, is there anyone here who feels that he or she would automatically set the penalty ...