Original complaints for mandamus, prohibition or supervisory
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Plaintiff in these original proceedings, Richard M. Daley, State's Attorney of Cook County, filed three separate motions for leave to file complaints for writs of mandamus or writs of prohibition under Supreme Court Rule 381 (87 Ill.2d R. 381). The motions seek, in the alternative, supervisory orders under Supreme Court Rule 383 (94 Ill.2d R. 383). The nominal defendants are Philip J. Carey and Thomas A. Hett, judges of the circuit court of Cook County. We granted plaintiff's motions and subsequently consolidated the three proceedings upon finding that each presented the same issues.
Each case presents two interrelated questions. Can the trial judge, prior to the commencement of trial in a capital case, accept a defendant's waiver of a sentencing jury; and, if so, does he have the discretion to preclude the State from questioning prospective jurors on their views concerning imposition of the death penalty? We find the answers to both questions to be in the affirmative.
These questions arose as a result of certain rulings by defendants in three capital cases still pending in the circuit court of Cook County. In cause No. 62819, Albert Bell was indicted for murder and armed robbery. Prior to trial, the State indicated that it would seek the death penalty as provided by section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b) (the death penalty statute)). Bell thereupon tendered to Judge Hett a written waiver of his right to a jury to determine his eligibility for the death penalty in the event he was found guilty of murder. Judge Hett admonished Bell as to the consequences of waiver and then accepted it, finding that Bell had "knowingly and intelligently waived his right to a trial by jury in the sentencing phase only." Because he had accepted Bell's waiver of the sentencing jury, Judge Hett noted that the jury impaneled to determine guilt would not be deciding Bell's sentence in the event of conviction. Therefore, Judge Hett, sua sponte, ruled that the State could not question prospective jurors on their views regarding the death penalty.
In cause No. 62820, James Andrews was indicted for murder, armed robbery, and aggravated kidnaping. During pretrial proceedings, the State indicated that it would seek the death penalty as provided under the death penalty statute. Andrews responded by submitting to Judge Carey a written waiver of his right to a sentencing jury but retaining his right to a jury trial on the issue of guilt. Judge Carey accepted the waiver and, on Andrews' motion, ruled that the State would not be allowed to question prospective jurors about their views on imposition of the death penalty. The State moved for reconsideration of this ruling, but its motion was denied.
In cause No. 62838, Franklin Burchette was indicted on three counts of murder. After the State indicated that it would seek the death penalty pursuant to the death penalty statute, Burchette sought to waive his right to a sentencing jury by submitting a written waiver to Judge Carey. Burchette, however, retained his right to a jury trial on the issue of guilt. Judge Carey accepted Burchette's waiver and, again, ruled that the State could not question prospective jurors as to their views about imposition of the death penalty.
Plaintiff contends that such pretrial waivers of the sentencing juries are precluded by section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(d)). Section 9-1(d) provides:
"(d) Separate sentencing hearing. Where requested by the State, the court shall conduct a separate sentencing proceeding to determine the existence of factors set forth in subsection (b) and to consider any aggravating or mitigating factors as indicated in subsection (c). The proceeding shall be conducted:
1. before the jury that determined the defendant's guilt; or
2. before a jury impanelled for the purpose of the proceeding if:
A. the defendant was convicted upon a plea of guilty; or
B. the defendant was convicted after a trial before the court sitting without a jury; or
C. the court for good cause shown discharges the jury that determined the defendant's guilt; or
3. before the court alone if the defendant waives a jury for the separate proceeding." Ill. Rev. Stat. 1983, ch. 38, par. 9-1(d) ...