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People v. Brisbon

OPINION FILED APRIL 19, 1985.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

HENRY BRISBON, APPELLANT.



Appeal from the Circuit Court of Will County; the Hon. Herman S. Haase, Judge, presiding.

JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 31, 1985.

The defendant, Stateville prison inmate Henry Brisbon, was found guilty of the murder of another inmate, Richard Morgan, following a jury trial in the circuit court of Will County. After a hearing on the question of the imposition of the death penalty (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(d)), the jury found that there were no mitigating factors sufficient to preclude a sentence of death. On February 24, 1982, the trial court entered judgment on the verdict. The sentence was automatically stayed (87 Ill.2d R. 609(a)) pending direct appeal to this court under Rule 603 (87 Ill.2d R. 603).

On October 19, 1978, prison guard Nobie Mercer was accompanying a new prisoner to his cell on level 8 of the B — East segregation unit at Stateville Penitentiary. As they passed cell 831, the defendant, Henry Brisbon, asked to be let out of his cell to go to the washroom because his toilet was clogged. Mercer refused at that time and proceeded to lock up the new prisoner. The third time he passed the defendant's cell, Mercer opened it. When he did, the defendant seized Mercer and held a homemade knife to his throat. The defendant ordered Mercer to release Herman Morgan from a neighboring cell, and he complied. The defendant then locked Mercer in Herman Morgan's cell.

Inmates Tyreed Green, Josie Baynes, and Luke Ward were eyewitnesses to all or portions of the following events which occurred during Mercer's six-minute confinement. The defendant and Herman Morgan went up to level 10 (one floor above level 8), looked around as if searching for someone, and then walked down the back stairs to level 2. The victim, inmate Richard "Hippie" Morgan, was standing in front of a cell on level 2, conversing with another inmate. The defendant and Herman Morgan, now joined by another inmate, Donald Binford, approached Richard Morgan. Binford and Herman Morgan seized Richard Morgan and Brisbon stabbed him from behind in the upper back. The victim struggled to break free and was stabbed again by the defendant in the lower back. He finally broke free, ran erratically, and fell. The three men chased the victim, and upon overtaking him, one of them kicked him. At this point the three men ran upstairs. The victim managed to get up again and run to a prison guard. He collapsed again and was taken to the prison hospital. He died shortly thereafter.

As the defendant, Binford and Herman Morgan fled upstairs, they passed one of the witnesses, Josie Baynes. The defendant said to Baynes: "I tried to kill that [obscenity]." The defendant then released Mercer from the cell, and Mercer locked Herman Morgan and Brisbon into their respective cells. Mercer finished taking a prisoner count and then reported the event to the deputy warden.

Witness Tyreed Green testified that five days before the stabbing, he observed Binford take a spoon from a serving cart after they had served a meal to the prisoners. Later that same day, Green observed the defendant sharpening a spoon on the concrete floor while Binford stood in front of his cell.

A homemade knife was recovered from underneath the level 2 stairway. It was 6-7 inches in length with a cardboard handle taped to the blade. Bloodstains on the knife matched the victim's blood type. Two fingerprints were lifted from the knife that were found underneath its cardboard handle. These prints matched those of the defendant. The knife's paper sheath was made from a page of a shoe catalog. The defendant had been seen earlier with such a catalog.

An autopsy of the victim revealed five stab wounds, two of which were fatal. The two fatal wounds were to the upper back; they punctured the lungs and severed the pulmonary artery, causing major internal bleeding. According to the pathologist's testimony, the victim could have remained lucid for 10 to 15 minutes. He further testified that the two fatal wounds and all but one of the other punctures were made by a sharp instrument, 6-7 inches in length. He stated that the wounds indeed could have been made by the homemade knife in question.

The jury found Henry Brisbon guilty of murder, and in a separate hearing sentenced him to death. In the first phase of the bifurcated sentencing hearing in which a defendant's eligibility for the death penalty is determined, the parties stipulated that the defendant was born on January 12, 1956, and that the victim was killed while incarcerated in Stateville penitentiary. In addition, the State presented evidence that the defendant had been found guilty of two previous murders, along Interstate 57, known commonly as the "I-57" murders. The jury found the defendant to be over 18 years of age, and found two statutory aggravating factors to be present:

"the murdered individual was an employee of an institution or facility of the Department of Corrections, or any similar local correctional agency, killed in the course of performing his official duties, or the murdered individual was an inmate at such institution or facility and was killed on the grounds thereof, or the murdered individual was otherwise present in such institution or facility with the knowledge and approval of the chief administrative officer thereof" and

"the defendant has been convicted of murdering two or more individuals under subsection (a) of this Section or under any law of the United States or of any state which is substantially similar to Subsection (a) of this Section regardless of whether the deaths occurred as the result of the same act or of several related or unrelated acts so long as the deaths were the result of either an intent to kill more than one person or of separate premeditated acts." (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1(b)(2), (b)(3)).

The jury thus found the defendant eligible for the imposition of the death penalty.

In the second phase of the sentencing hearing, the parties presented evidence in aggravation and mitigation. The State presented evidence of the defendant's convictions, which included two murders, a rape and armed robbery, two other armed robberies and an aggravated battery. In addition, the State presented evidence that the defendant committed two other murders for which the defendant was never brought to trial. The first involved a complaint, dismissed for lack of probable cause, for a shotgun murder of a storekeeper. The storekeeper, however, had made a statement on his deathbed that the defendant had shot him. The second was another I-57 murder that the State did not prosecute, but that the defendant had admitted to others he committed. Finally, the State introduced evidence of the defendant's long disciplinary record within the Illinois prison system.

In mitigation, the defense presented evidence that the defendant's father, a Black Muslim, taught Brisbon that white people were "the devil." His father never disciplined him for his misbehavior and in fact believed his son was innocent of all wrongdoing. Father James Bresnahan, a Jesuit priest and professor of ethics, testified that, given the defendant's background, he saw serious ethical problems with subjecting Brisbon to the death penalty. He said that in his opinion, the death penalty has no deterrence value and may have the opposite effect on black criminals such as the defendant by furthering the State's oppressive and violent image. Dr. John Flanagan, a professor of criminal justice and a former consultant to the Illinois Department of Corrections, testified that long-term inmates "settle down" after a period of time. Reaching that point, however, is an uphill battle for the inmates because understaffing and inefficiency contribute to the violent and dangerous atmosphere of the prison.

The jury returned a verdict finding that there were "no mitigating factors sufficient to preclude the imposition of the death sentence."

The defendant first contends that the State's use of preemptory challenges violated his sixth amendment right to an impartial jury drawn from a fair cross-section of the community. (U.S. Const., amend. VI; Taylor v. Louisiana (1975), 419 U.S. 522, 42 L.Ed.2d 690, 95 S.Ct. 692.) The basis for the argument is that there was a systematic exclusion of black women from the jury. The record is not entirely clear, but it appears that seven or eight black women were excluded peremptorily by the State, and that one black woman was excused by the court because of religious objections to the death penalty. Seven white women were peremptorily challenged, and six men were excused by peremptory challenge. The defendant does not specify the racial makeup of the excused men. The jurors selected were all men, and two men and one woman sat as alternative jurors. The defendant does not state the racial background of the jurors but in his brief says: "The jury as sworn did not have any black women on it." (Emphasis added.) We cannot say from this record that the trial court erred in rejecting the contention that there was a systematic exclusion of black women.

The defendant next argues that he was denied a fair and impartial trial because the trial court abused discretion in denying a pretrial motion to sequester the jury. In addition, the defendant maintains that the trial court inadequately admonished the jury on the subject of contact with the news media during the trial, thereby causing reversible error.

Before the trial commenced, there was a television newscast that gave information concerning the defendant's I-57 murder convictions and long prison sentence. In response to a motion by the defendant, the judge presented the following question to the jury panel:

"Have you heard, read, or seen anything regarding this case, or either of the Defendants between the date that you were interviewed by the Court and this date?"

All jurors responded to the question in the negative. The defendant then moved to have the jury sequestered, and the trial court denied the motion.

It is within a trial court's discretion to deny a motion to sequester the jury. (People v. Yonder (1969), 44 Ill.2d 376, 387.) A failure to sequester is not reversible error "[i]f there are adequate warnings given by the trial court and no demonstration of actual prejudice by the defendants." (44 Ill.2d 376, 387.) In the present case, the trial court began the proceedings with the following admonishment:

"One of the things I would like to — I would like to stress most strongly with you and in the strongest possible terms is that you not read or discuss anything about the case, or watch any of the news shows, you know, if you have a good novel or something you can curl up with at night, that would beat the ten o'clock news.

I would ask you, not to read or listen to anything about this case that would cause you grave problems and I would ask you to please not do that."

The trial court admonished the jurors in a similar manner repeatedly throughout the trial. During the trial, the defendant made no claim or showing that the jurors received prejudicial information. We hold that adequate warnings were given to the jury and that no showing of actual prejudice was made.

The defendant next contends that three prospective jurors were excluded in violation of Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770. Witherspoon prohibits the exclusion for cause of prospective jurors who express only general objections to the death penalty. The standard created often has been described as permitting the dismissal only of jurors who make it "unmistakably clear" that they would "automatically" vote against the death penalty, language taken from a footnote in Witherspoon. (391 U.S. 510, 522 n. 21, 20 L.Ed.2d 776, 785 n. 21, 88 S.Ct. 1770, 1777 n. 21.) In the most recent articulation of the Witherspoon standard, however, the Supreme Court abandoned that language in favor of the statement, previously made in Adams v. Texas (1980), 448 U.S. 38, 65 L.Ed.2d 581, 100 S.Ct. 2521, that a juror may not be excused unless his or her views "`prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" (Wainwright v. Witt (1985), 469 U.S. ___, ___, 83 L.Ed.2d 841, 850-51, 105 S.Ct. 844, 852.) The Wainwright decision seems to be an acknowledgment of the practical difficulty for jurors prior to the hearing of evidence to answer in mechanical fashion whether it is "unmistakably clear" that they will "automatically" vote against the death penalty. This court in People v. Gaines (1981), 88 Ill.2d 342, 356, perceived this problem:

"We think it is appropriate to point out that the distinction drawn in Witherspoon between a venireman's general opposition to the death penalty and his unwillingness to vote for its imposition is a sophisticated one which a prospective juror may not readily grasp. While it is the duty of the trial judge to propound the key questions in a form which will be understood and with enough specificity to admit of an unambiguous response, we do not read Witherspoon as prescribing a set catechism, or as requiring a venireman to express himself with meticulous preciseness."

We would first observe that the defendant did not object to two of the three exclusions of jurors. Generally, of course, a failure to object constitutes waiver of the right to raise the issue on appeal. (People v. Carlson (1980), 79 Ill.2d 564, 576-77.) A failure to object to the dismissal of a juror may have been a deliberate decision on defense counsel's part that for some other reason he did not want the person as a juror. See Wainwright v. Witt (1985), 469 U.S. ___, ___, 83 L.Ed.2d 841, 859, 105 S.Ct. 844, 858 (Stevens, J., concurring).

Here, even if proper objection had been made, the record shows a proper basis for the exclusion of all three jurors under Witherspoon. The examination of Shelton Glenn, whose dismissal was not objected to, included the following:

"THE COURT: If you sat on a jury during the penalty phase of a hearing, would your response be to automatically vote against the death penalty no ...


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