Appeal from the Circuit Court of Cook County, the Hon. Vincent
Bentivenga, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 31, 1985.
The defendant, Gregory Madej, was indicted in the circuit court of Cook County on one count for the murder of Barbara Doyle (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)), and on three counts of felony murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(3)) predicated on the felonies of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2), rape (Ill. Rev. Stat. 1979, ch. 38, par. 11-1) and deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11-3). Following a bench trial, the defendant was found guilty on all counts. A bench sentencing hearing was held, at which the court heard evidence in mitigation and aggravation. The court sentenced the defendant to death on the one count of murder and three counts of felony murder, and also sentenced the defendant to concurrent terms of 30 years' imprisonment for armed robbery and rape. The defendant has appealed directly to this court under the Constitution of Illinois (Ill. Const. 1970, art. VI, sec. 4(b)) and under our Rule 603 (87 Ill. 2 d R. 603).
The naked body of Barbara Doyle was discovered at 5:30 a.m. on August 23, 1981, in an alley on the north-west side of Chicago. The woman died as a result of multiple stab wounds. There were numerous lacerations of the head and face, and multiple abrasions of the chest, legs and feet. A medical examination revealed the presence of spermatozoa and semen in both the vagina and rectum of the victim. Human blood was found underneath her fingernails.
At trial two Chicago police officers testified that at 5 a.m. on August 23, 1981, they observed a green Plymouth Baracuda automobile with a faulty muffler drive through a stop sign. The car was driven by the defendant, and it was later ascertained that it was the victim's auto. The police attempted to pull the car over, but the defendant speeded up, leading police on a high-speed chase. Several police cars joined the chase. The defendant eventually pulled into an alley, alighted from the car, jumped a fence, and hid under an auto parked on a nearby street where he was taken into custody. There was blood on his hands and head, and his shirt, pants and undershorts were heavily stained with what was later determined to be blood of the same type as that of the victim, type O. The defendant has type AB blood. The defendant had deep scratches on his face and numerous scratches on the chest, arms and back.
Detective Robert Meyer testified that he examined the victim's auto in the alley immediately after the defendant had fled from it and observed a large pool of blood on the front floor on the passenger's side. There was a large bloodstained knife on the driver's seat. Detective Meyer testified that he discovered the victim's jeans and blouse, saturated with blood, in the back seat of the car. The blouse had numerous perforation marks in the front, and the jeans were torn in the back. An empty prescription bottle bearing the victim's name was found in the car, together with her purse and personal identification papers scattered on the floor.
When the defendant was taken into custody, his Miranda rights were read to him and he was interrogated as to his activities on August 23, 1981. Detective James Grant testified that the defendant said that he was thrown out of the Garage Inn, a bar, at 2:30 a.m. and then met a friend named "Hojamoto," who was driving a green Plymouth Barracuda. The defendant entered the car to go "cruising," and he noticed that Hojamoto had a knife with blood on it and had blood on his shirt. Hojamoto explained the blood by stating that he had been in a gang fight. The defendant told Grant that he got blood on his clothes when he switched seats with Hojamoto and that Hojamoto jumped from the car a block before police overtook the defendant. The defendant denied being in the company of a woman that night and denied being in the Golden Flame restaurant. He also told the detective that he received the scratches in a fight with some gang members earlier that morning.
Prosecution witnesses testified that the defendant was ejected from the Garage Inn at 2:30 a.m. after he caused a disturbance by pounding a cigarette machine and telephone. David Doyle, the victim's estranged husband, testified that the victim and he drank at the Garage Inn until 2:15 a.m. when they left the bar and fell asleep in her auto. When he awoke, Doyle said the defendant was driving the car and talking to the victim. Doyle stated that he had never seen the defendant before, but that it appeared that Barbara knew the defendant. The defendant drove to the Golden Flame restaurant. He and Barbara entered the restaurant; at that time David Doyle walked home. A waitress at the Golden Flame testified that she served coffee to the victim and the defendant. She testified that they left the restaurant at 3:30 a.m. Another prosecution witness testified that the term "Hojamoto" was not the name of an individual, but was a made up name used by the defendant and friends as a group greeting.
The defendant was a witness. His testimony differed from the statement he had given the police. He testified that on August 22, 1981, he awoke at 8 a.m. He began drinking alcohol and ingesting various drugs, and "partied" with friends throughout the day. He next remembered being at the Garage Inn at 11 p.m. The defendant stated that he saw Barbara Doyle at the bar with David Doyle, and that he had known the victim and had had sex with her on three prior occasions. The defendant recalled pounding on the cigarette machine and slamming the telephone. He also remembered that it was "exactly 2:20 a.m." when he was ejected from the bar.
After leaving the tavern, the defendant saw the victim's car parked nearby. He approached the car, at which time the victim saw him and asked him to smoke some marijuana. The defendant said he entered the car and they drove to the Golden Flame restaurant, had some coffee and left about 3:30 a.m. They then began "cruising" around the neighborhood. They stopped at three different places to purchase beer, while drinking and smoking marijuana. He testified that on August 22, 1981, he drank at least two cases of beer and some whiskey, smoked about one ounce of marijuana, ingested 10 quaaludes, and injected Talwin.
The defendant testified that, while driving around, the victim and he stopped twice and had consensual sexual relations in the car. Later the victim asked the defendant if she could buy some marijuana from him. He took seven one-ounce baggies of marijuana from his boots and placed them on the car console. She gave the defendant $35 for one of the baggies, and when he turned to put the money in his pocket, she apparently took two more of the baggies. According to the defendant, he pushed the victim's shoulder when he saw a baggie underneath her leg. The victim then attacked him, scratching his face and drawing a knife. They struggled, and the defendant next remembered the victim bleeding in the chest area and spread between the car seats. The defendant testified that he first saw the victim bleeding "after I realized what had happened" and in response to the question as to what caused the victim to bleed stated, "I thought it could have been me."
The defendant said that he thought the victim was "still wiggling" and "for some odd reason, I thought to myself of throwing laying her down" on the ground. He put the victim outside the car and while driving from the alley, the autoptic and photographic evidence showed, he ran the car over her. The defendant testified that as he drove away he honked his horn to get attention and summon help for the victim. He then drove to a friend's house to get help. His friend did not answer the door and he drove away. The defendant then described in detail the route he took before the police apprehended him. He testified that he did not remember the police chasing him and remembered only that he was afraid because he was driving without a license. The defendant also testified that the reason he told the police the story about "Hojamoto" at the police station was because the police had beaten him.
The defendant was convicted on all counts. Later he waived a jury for the hearing to determine whether the death penalty should be imposed. All of the evidence presented at trial was made part of the sentencing hearing by stipulation, and the defendant testified on his own behalf in mitigation. The court 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 defendant makes a number of contentions that the death penalty statute (Ill. Rev. Stat. 1981, ch. 38, par. 9-1) is unconstitutional. The contentions have been previously rejected by this court, and the defendant gives no new reasons for us to reconsider those holdings. We have held that the death penalty statute is not unconstitutional for granting prosecutors discretion in seeking the death penalty. (People v. Owens (1984), 102 Ill.2d 88, 114; People v. Davis (1983), 95 Ill.2d 1, 22; People v. Szabo (1983), 94 Ill.2d 327, 351.) Nor is the statute unconstitutional because it does not require the State to prove beyond reasonable doubt the absence of mitigating factors sufficient to preclude the imposition of the death penalty. (People v. Eddmonds (1984), 101 Ill.2d 44, 68; People v. Garcia (1983), 97 Ill.2d 58, 80-81.) This court has also rejected the contention that the sentencing scheme of the statute fails to provide for adequate comparative review of capital cases (People v. Silagy (1984), 101 Ill.2d 147, 161; People v. Kubat (1983), 94 Ill.2d 437, 502-04; see also Pulley v. Harris (1984), 465 U.S. 37, 79 L.Ed.2d 29, 104 S.Ct. 871), and we have judged that the consideration, during the sentencing phase, of non-statutory aggravating factors does not render the statute invalid (People v. Gacy (1984), 103 Ill.2d 1, 104; People v. Caballero (1984), 102 Ill.2d 23, 49; People v. Free (1983), 94 Ill.2d 378, 427).
The defendant maintains that the death penalty statute is unconstitutional in that it fails to require a presentence investigation report for judge-conducted death penalty hearings. He argues that, because of this statutory omission, the trial court conducted the death penalty hearing without the benefit of information which would have been included in the presentence report. Therefore, his sentences should be vacated and the cause remanded for resentencing. The defendant recognizes that in People v. Gaines (1981), 88 Ill.2d 342, 372-74, this court held that a presentence investigation report is not required in capital murder cases, but argues that Gaines involved sentencing by a jury, and, here, the sentencing was by a judge. The defendant does not, however, advance convincing reasons why a presentence report should be required for a judge though not for a jury. Here, of course, the sentencing judge presided at the guilt and sentencing phases and heard all the evidence regarding the defendant's background and social history, as well as his physical and mental condition. Contrary to defendant's claim, there was sufficient evidence, including testimony from the defendant during the sentencing hearing, to inform the judge and substantially fulfill the purpose of a presentence investigation report (Ill. Rev. Stat. 1981, ch. 38, par. 1005-3-2(a)). We also note that defects in a presentence investigation report may be waived, and defendant, here, did not object to the court imposing sentence without a presentence report. See People v. Gacy (1984), 103 Ill.2d 1, 107.
The defendant contends also that the death penalty statute is unconstitutional because it arbitrarily, the defendant says, limits the application of the death sentence to English-speaking defendants, while prohibiting the imposition of the death penalty on defendants who require translators or other assistance to be fit for trial. He says that this is the effect of sections 104-22 and 104-26(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, pars. 104-22, 104-26(b)). This contention, however, is error, based on a serious misunderstanding of the statutory structure involved. We made this clear in People v. Stewart (1984), 104 Ill.2d 463, 499-502, where we rejected the argument the defendant makes.
The defendant also argues that his convictions be reversed and his death sentence vacated because the prosecutor, in closing argument, falsely represented to the court that the police did not inventory any marijuana. Throughout the trial the defendant argued that he consumed a number of drugs, including marijuana, and was in such a drugged state that he could not form the intent for murder. A police inventory form in the record indicates that one "bag containing crushed green plant" was taken from the defendant at the police station. At trial, the bag was never referred to by either party, although the detective who prepared the inventory was questioned at trial about a number of the other items listed in the inventory.
During closing argument, the defendant's attorney commented on a prescription pill bottle bearing the victim's name that was found in the car, but was misplaced by the police and not listed on the inventory. Counsel then went on to say:
"What else is not taken into custody by the police or at least not recorded by the police? The other drug evidence, the pot. We know that pot is commonly used in society and this marijuana somehow disappeared between the time of the stop and the inventory at the 17th District.
So, not only does the pill bottle disappear, but we have the pot and one bag of marijuana and the quaaludes. So, we have questions ...