Appeal from the Circuit Court of Cook County, the Hon. James
M. Bailey, Judge, presiding.
CHIEF JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
The defendant, Edgar Hope, Jr., and a co-defendant, Alton Logan, were charged with murder, attempted murder and two counts of armed robbery stemming from an armed attack on two security guards in a McDonald's restaurant on Chicago's south side. Following a jury trial in the circuit court of Cook County, both defendants were found guilty of the charges against them. Hope had a prior conviction for a murder that had actually occurred subsequent to the murder in the case at bar. He had not yet been arrested for the murder in this case when he committed the subsequent murder. During the sentencing phase of the trial which resulted in his prior conviction, the State had presented evidence of defendant's involvement in the murder in the instant case. The State did not use this evidence as a qualifying factor to support the defendant's eligibility for the death penalty since he already qualified for another reason, but instead used it in the aggravation stage of the sentencing hearing to demonstrate the defendant's alleged propensity to commit criminal offenses. In this case, Hope's prior conviction was used as a qualifying factor making him eligible for the death penalty pursuant to section 9-1(b)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(3)); therefore, the State requested a death penalty hearing. The jury which convicted the defendant also sat at the sentencing phase. The jury found that the defendant was eligible for the death penalty, that there were the necessary aggravating factors (over the age of 18 and with a prior conviction for murder), and that there were no mitigating circumstances sufficient to preclude the imposition of death. Therefore, Hope was sentenced to death. In his direct appeal before this court, the defendant alleges that numerous errors occurred throughout the proceedings.
At about 8 p.m. on January 11, 1982, two McDonald's restaurant security guards, Alvin Thompson and Lloyd Wyckliffe, were on duty. Each guard was carrying a firearm. From where Thompson and Wyckliffe were seated they could see customers placing orders. They could also see employees working behind the counter, including the cashier, Antonette Dawson. Shortly after 8 p.m., the security guards noticed a disturbance at Dawson's cash register involving a black male and black female customer. The male was placing large orders with Dawson and then changing the orders. (Thompson, Dawson, and another employee, Charles Trent, later identified Hope as the customer causing the disturbance.)
Dawson motioned to the security guards. They got up and walked toward her. When the security guards were about five feet from the counter where the defendant was causing the disturbance, another man came into the restaurant and yelled something. At this time, Thompson was about three feet from the door and was looking at the man who entered. (At trial, Thompson identified this man as Alton Logan, the co-defendant.) Logan then pulled a sawed-off shotgun from under his coat and fired it into Wyckliffe's chest, causing his death.
Hope then knocked Thompson to the floor and pointed a gun at him. Logan took Wyckliffe's weapon, and Hope took Thompson's weapon. Hope told Thompson not to look at him and started to pull the trigger. Thompson raised his left arm to cover his face and turned his head. At this point, Thompson heard the defendant's gun discharge and felt a bullet drive into his left arm. The two perpetrators then ran out of McDonald's.
On February 5, 1982, the defendant was arrested in connection with another murder in which he was alleged to have shot a police officer. The arresting officer testified that he recovered a gun from the defendant at that time. At the trial Thompson then identified that gun as the one that was taken from him at the McDonald's incident. The State connected Hope and Logan to the incident by the identification testimony of the three eyewitnesses, Thompson, Dawson, and Trent, and by testimony which showed that the defendant was in possession of Thompson's stolen gun a few weeks after this incident. Thompson, Dawson and Trent all made in-court, photographic and lineup identifications of the defendants.
In addition to the aforementioned witnesses, the State also called the decedent's wife to testify. She told the jury about their family, the ages of their children, and identified a photograph of the family.
Although the defendant did not testify, his mother testified that she had never seen Logan before the trial, and she described the defendant's appearance, including two prominent scars and his hoarse voice, which were not mentioned by the State's witnesses. Co-defendant Logan testified in his own behalf and stated that he was at home at the time of the incident. Other witnesses corroborated his testimony. Logan also testified that he did not know the defendant.
The jury returned verdicts of guilty against both defendants on all charges. Hope and Logan had separate sentencing hearings. At the defendant's sentencing hearing, the jury found that Hope, being over the age of 18 and with a prior conviction for murder, was eligible for the death penalty and that there were not mitigating factors sufficient to preclude the death penalty from being imposed.
Due to our holding in this case we need only address the following issues: (1) whether the defendant was denied a fair sentencing hearing; (2) whether the circuit court erred in allowing the State to introduce evidence concerning the family of the deceased victim; and (3) whether the evidence was sufficient to prove the defendant guilty beyond a reasonable doubt.
The defendant argues that he was denied a fair sentencing hearing because two or three jurors had either seen or heard news reports regarding his conviction and death sentence in another case.
The portion of the death penalty statute which is applicable in this case states:
"A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of murder may be sentenced to death if:
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. 1981, ch. 38, par. 9-1(b)(3).
Therefore, under this statute, it is permissible for the jury to have knowledge during the sentencing hearing that the defendant was previously convicted of murder. However, it is not permissible that the jury know that due to that conviction he was sentenced to death. See People v. Davis (1983), 97 Ill.2d 1.
At the beginning of the trial, the judge denied the defendant's request to sequester the jury. Instead, the trial judge admonished the jurors not to read or listen to any news media reports concerning the case. However, the judge withdrew his admonishment by stating: "And as far as reading the papers, it won't make any difference make any difference now or watching television. Okay. See you tomorrow." This statement came at the sentencing hearing, after two State witnesses had testified, but before seven other State witnesses and the defense witnesses testified.
The following day, February 17, 1983, defense counsel renewed his motion to sequester the jury and requested that an inquiry be made of the jurors to determine if they had been exposed to the news reports indicating that the defendant had a prior death sentence. The inquiry disclosed that some jurors had read or heard the news reports:
"[THE COURT]: Let me ask you did any of you see anything in the newspapers or on television about the case?
Yes? Raise your hand that did. Anybody see anything? Yes, or read anything?
You might have noticed some of the reports were erroneous. That's why I always tell people not to listen to the radio or television because you do get a lot of erroneous reports. You must decide this case strictly upon what you hear in Court, not what you hear in [sic] television because both of it was erroneous and they add things and everything else. Nobody says the news media has to be accurate. They're not accurate. Decide ...