Appeal from the Circuit Court of Will County, the Hon. John F.
Michela, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 26, 1986.
Defendant, John Szabo, was indicted by a Will County grand jury on two counts of intentional murder, two counts of felony murder, and one count of conspiracy to commit armed robbery. Defendant waived a jury trial and in July 1979 was tried before the circuit court of Will County. He was found guilty on all counts. The State requested a death penalty hearing pursuant to section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(d)). Defendant chose to have a jury for this hearing. The jury sentenced defendant to death for the murders. In addition, the court imposed a three-year sentence on the conspiracy charge.
Defendant then appealed to this court pursuant to article VI, section 4(b), of the 1970 Illinois Constitution and Supreme Court Rule 603 (73 Ill.2d 603). This court held that the circuit court had erroneously refused to order the State to produce certain discovery materials for in camera inspection. (People v. Szabo (1983), 94 Ill.2d 327, 350.) Defendant's convictions were vacated and the cause remanded to the circuit court so that the materials could be reconstructed and inspected by the court. If the circuit court found that the materials were discoverable, then defendant was to be granted a new trial. (94 Ill.2d 327, 350.) If the materials were found to be nondiscoverable, then defendant's convictions were to be reinstated, except that judgment was to be entered on only two counts of murder since defendant had been charged in alternative counts arising out of only two deaths. (94 Ill.2d 327, 350.) Finally, this court vacated defendant's death penalty because of errors at sentencing. 94 Ill.2d 327, 357, 367.
On remand, copies of the missing materials notes taken by an assistant State's Attorney during pretrial interviews with the prosecution's main witness were discovered in the State's files and tendered to the circuit court. After an in camera inspection the court found that the materials were "work product," were not impeaching, and did not raise a reasonable doubt as to defendant's guilt. The court then reinstated defendant's convictions.
The State again requested a death penalty hearing, and defendant chose to have a jury decide whether the death penalty would be imposed. The jury voted to impose the death penalty. Defendant again appeals directly to this court.
Defendant raises a single question with regard to the guilt phase of his trial: Did the trial court fail to follow the mandate of this court when it reinstated defendant's conviction? In addition, defendant raises six additional questions regarding the sentencing phase: (1) Was it error to allow the State to read into evidence transcripts of testimony from the earlier sentencing hearing without demonstrating the unavailability of the witnesses whose testimony was read? (2) Was it error to deny defendant's motion in limine asking to restrict cross-examination of defendant? (3) Did the prosecutor's comments during closing argument deny defendant a fair hearing? (4) Did the court's instruction to the jury that they should not consider sympathy for the defendant, when coupled with the prosecutor's statement that the jury should not consider "compassion," deny defendant a fair hearing? (5) Does this court's finding that Davis v. Georgia (1976), 429 U.S. 122, 50 L.Ed.2d 339, 97 S.Ct. 399, was violated at defendant's first death penalty hearing forever bar the State from imposing the death penalty upon defendant? and (6) Was the death penalty an unconstitutionally disproportionate sentence when compared to the sentence received by another participant in the murders? Defendant also raises eight questions regarding the constitutionality of the Illinois death penalty statute: Does the statute (1) fail to adequately narrow to a unique and cognizable group those persons eligible for the death penalty; (2) violate constitutional equal protection guarantees by restricting the imposition of the death penalty when the defendant requires special assistance to be fit for trial; (3) improperly place upon defendant the burden of proving that death is an inappropriate penalty; (4) improperly allow the prosecutor unbridled discretion as to when the death penalty will be sought; (5) improperly fail to provide a means to assure that all aggravating factors relied upon were relevant and constitutionally permissible; (6) improperly fail to require that the State prove beyond a reasonable doubt the absence of mitigating factors sufficient to preclude imposition of the death penalty; (7) improperly fail to require the sentencer to find that death is the appropriate penalty; and (8) improperly fail to provide adequate procedures for appellate review of death sentences? Finally, the State on cross-appeal raises one additional question: Did defendant waive all sentencing issues by failing to file a post-sentencing motion?
The facts adduced at defendant's trial are dealt with at length in this court's earlier opinion (94 Ill.2d 327, 334-42), and thus we need not go into detail regarding those facts. For purposes of this appeal, however, it is necessary to know that the State's key witness at trial was Robert Leatherman, a coparticipant in the alleged robbery and murders. Leatherman had spoken several times prior to trial to William Ford, then an assistant State's Attorney. At three of these sessions Ford had taken handwritten notes. On the day of trial defendant moved to discover these notes pursuant to Supreme Court Rule 412(a)(i) (73 Ill.2d R. 412(a)(i)). Ford claimed that these notes had been destroyed, and argued that they were nondiscoverable work product. However, he offered to provide defendant with an eight-page "trial plan" summarizing Leatherman's expected testimony. He also offered to reconstruct the notes if ordered to do so by the court. The circuit court, however, denied defendant's discovery motion.
On appeal this court held that the circuit court should have ordered that the notes be reconstructed and tendered to the court for an in camera inspection. (94 Ill.2d 327, 345.) This court's conclusion regarding the interview notes was as follows:
"We are unable, on the record before us, to determine whether defendant was prejudiced by the nondisclosure of the interview notes. It may be that they contained summaries of pretrial statements by Leatherman that were entirely consistent with his trial testimony and of no value for impeachment. Or it may be that they consisted mainly of the assistant State's Attorney's mental impressions and opinions, which would be privileged from disclosure. Or it may be that they contained prior statements flatly contradicting Leatherman's trial testimony on one or more points, or possibly revealing an unsuspected motive for Leatherman's testifying as he did, or giving such varying accounts as would have greatly discredited his testimony. We simply cannot tell what opportunities for cross-examination, if any, were denied Szabo by the nondisclosure of the notes. Consequently, we cannot say either that the nondisclosure resulted in prejudicial error, or that any error that occurred was harmless beyond a reasonable doubt. As the determination depends upon the contents of the destroyed notes, we believe the appropriate course is to vacate the convictions and remand the cause to the circuit court for entry of an order directing the State to reconstruct the written memoranda of Leatherman's pretrial statements, and to deliver them to the court for an in camera inspection. In the event the court finds the notes to contain discoverable, substantially verbatim statements, it should deliver them to defense counsel and order a new trial. In the event the reconstructed notes are found not to contain substantially verbatim reports of Leatherman's pretrial statements, the circuit court is directed to reinstate defendant's convictions, subject to our discussion below of defendant's superfluous murder convictions." 94 Ill.2d 327, 349-50.
After remand defendant obtained a new appointed attorney. On November 1, 1983, the trial judge explained the posture of the case to the newly appointed attorney:
"Briefly, the present posture of this cause is this. In essence, the Supreme Court has directed the Court to examine in camera the reconstructed notes of the interviews conducted by Mr. Ford of Mr. Leatherman, the main witness at the prosecution, and that if the Court feels that there is impeachable material that was contained within those notes the Court is then to grant a new trial on all charges to Mr. Szabo.
If the Court is of the opinion after examining the notes in camera that there are no impeachable matters contained in the information, then the Court is to reinstate the convictions and proceed to a sentencing hearing in accordance with the convictions."
After remand, it was discovered that Ford's handwritten notes had been destroyed only after being transferred into typewritten form. These typewritten notes were in fact in the State's files. Thus, instead of reconstructing Ford's handwritten notes, the State tendered to the court the typewritten transcription of those notes.
The court later informed the parties he would have to review Robert Leatherman's trial testimony in order to determine whether the typewritten notes were discoverable. After reviewing the notes and Leatherman's testimony the court denied discovery and reinstated defendant's convictions, explaining this action as follows:
"And the Court considering the contents of the notes in camera, as directed by the Supreme Court, in the Court's opinion the notes [that] were presented were the work product of Mr. Ford, that they contain no impeachable material which would have assisted defense counsel in cross-examination of Mr. Leatherman, and that they do not raise any question of defendant's guilt beyond a reasonable doubt.
Therefore, the Court pursuant to the mandate is reinstating the Felony Murder convictions of defendant. Defendant ...