APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
542 N.E.2d 131, 185 Ill. App. 3d 1069, 134 Ill. Dec. 131 1989.IL.1043
Appeal from the Circuit Court of Cook County; the Hon. L. Michael Getty, Judge, presiding.
JUSTICE LORENZ delivered the opinion of the court. MURRAY, P.J., and COCCIA, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Following a jury trial, defendant, Byron Hanna, was convicted of attempt (armed robbery) and murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8-4, 9-1(a)(3)) in the shooting death of James Wiley. Defendant was sentenced to concurrent prison terms of 55 years for murder and 15 years for attempt. Defendant contends his convictions should be reversed and the cause retried for the following reasons: the trial Judge erroneously rejected defendant's pretrial waiver of a jury for the sentencing phase of trial and permitted the State to question the venire regarding the death penalty; the State made improper comments in rebuttal argument concerning inadmissible evidence; and presentation of testimony of the victim's nine-year-old daughter and mother was irrelevant and was designed only to arouse the jury's sympathy. Alternatively, defendant argues his sentence for murder should be reduced.
We affirm defendant's convictions. However, we conclude the extended prison sentence imposed for murder was an abuse of discretion and, therefore, remand that portion of the judgment with directions.
The record establishes that in the afternoon of August 1, 1983, defendant attempted to rob James Wiley at gunpoint while inside a currency exchange at 69th and Halsted Streets in Chicago. Eyewitnesses established that defendant had been inside the currency exchange and had observed Wiley cash his Veteran's Administration education check at a teller window. The defendant approached Wiley as Wiley was exiting the currency exchange. A struggle ensued. At least four gunshots were fired. Both Wiley and the defendant were struck by bullets. Wiley died shortly thereafter.
Other facts pertinent to issues raised on appeal are summarized within the context of our Discussion of those issues. I
Because defendant was charged with a capital crime, the State filed a pretrial motion to examine the venire regarding imposition of the death penalty pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770. In response, defendant sought to waive his right to have a jury consider sentencing, if convicted, during that phase of trial. The trial Judge refused to accept the waiver. In questioning the venire, eight prospective jurors were excused based on their attitudes about the death penalty.
Trial proceeded before the jury. After defendant was found guilty, he was permitted to waive the jury for sentencing purposes.
Defendant now contends that in refusing to accept the pretrial waiver of a sentencing jury, the trial Judge deprived defendant of a fair trial by an impartial jury in violation of Federal and State constitutions. Defendant relies principally on People ex rel. Daley v. Hett (1986), 113 Ill. 2d 75, 495 N.E.2d 513.
Hett involved consolidated cases in which the supreme court considered whether trial Judges could properly accept defendants' pretrial waivers of sentencing juries in capital cases and, if so, had discretion to preclude the State from death-qualifying prospective jurors. (Hett, 113 Ill. 2d at 77, 495 N.E.2d at 514.) To answer that question, the supreme court examined the capital sentencing statute permitting waiver of juries for the sentencing phase of trial in capital cases. (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(d).) The court observed that the language of the statute neither limited defendants' rights to waive sentencing juries nor designated when the waiver could be exercised and, therefore, held the acceptance of waivers in each case was within the courts' discretionary power. (Hett, 113 Ill. 2d at 81-82, 495 N.E.2d at 516.) Further, the supreme court reasoned that because the trial Judges had statutory authority to accept the waivers, the State's right to question prospective jurors regarding the death penalty pursuant to Witherspoon was inapplicable. Hett, 113 Ill. 2d at 82, 495 N.E.2d at 516.
The supreme court has directed that its decision in Hett is not to be retroactively applied "insofar as it can be read to prohibit death-penalty questioning subsequent to acceptance of a pretrial waiver of the sentencing jury." (People v. Erickson (1987), 117 Ill. 2d 271, 291-92, 513 N.E.2d 367, 375.) In Erickson, the trial Judge accepted defendant's sentencing jury waiver after defendant had been convicted before a jury in the guilt phase of his capital trial. Defendant's pretrial waiver had been refused and the State had been permitted to question the venire pursuant to Witherspoon.
On appeal before the supreme court, defendant relied on Hett and raised the next logical question: whether the trial court was required to accept the pretrial waiver. (Erickson, 117 Ill. 2d at 287, 513 N.E.2d at 374.) The supreme court concluded that, where the trial court ascertains the waiver is voluntary and knowing, it must be accepted. (Erickson, 117 Ill. 2d at 287, 513 N.E.2d at 374.) Left unanswered was whether the exercise of a valid waiver should prohibit the State from questioning prospective jurors pursuant to Witherspoon. (Erickson, 117 Ill. 2d at 288, 513 N.E.2d at 374.) The court declined to address the issue reasoning that "even if Hett were read to prohibit death-penalty questioning of prospective jurors where the sentencing jury is waived prior to trial, it would not apply retroactively to defendant's case." (Erickson, 117 Ill. 2d at 288, 513 N.E.2d at 374.) Defendant was therefore not entitled to a new trial either because his pretrial sentencing jury waiver was refused or because the State was allowed to query prospective jurors concerning the death penalty. Erickson, 117 Ill. 2d at 291-92, 513 N.E.2d at 375-76.
In dicta, the court noted that even if Hett applied, defendant would not necessarily be entitled to a new trial. The court observed, "[it] is well established that a jury questioned regarding imposition of the death penalty is presumed to be a fair jury on the issue of guilt or innocence." (Erickson, 117 Ill. 2d at 292, 513 N.E.2d at 375-76.) Thus, unless defendant could overcome the presumption, by demonstrating the State's questioning of the venire produced an unfair jury, defendant would fare no better under a retroactive application of Hett even where Hett might be read to prohibit death-penalty questioning subsequent to acceptance of defendant's pretrial waiver. Erickson, 117 Ill. 2d at 292, 513 N.E.2d at 375-76.
In People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183, the supreme court reaffirmed its decision regarding retroactive application of Hett in a case having pertinent facts similar to Erickson. As in Erickson, defendant's pretrial waiver of a sentencing jury in his capital case was denied, the State was permitted to question the venire pursuant to Witherspoon, defendant was subsequently convicted by a jury, and defendant then was allowed to waive the jury for sentencing purposes. The court restated its holding in Erickson, noting the opinion in Hett was filed on June 30, 1986. Defendant's trial in the case before the court had commenced on September 10, 1984, 21 months before Hett was decided and, therefore, defendant was not entitled to a new trial. Shum, 117 Ill. 2d at 338, 512 N.E.2d at 1189-90.
Defendant Hanna's trial in the case at bar commenced on October 28, 1985. Defendant tendered his sentencing jury waiver in response to the State's motion to question the venire pursuant to Witherspoon on that date. Because the decision in Hett was filed eight months after commencement of defendant's trial, in accordance with the holdings in Erickson and Shum, we therefore determine Hett can have no application here. Moreover, we must presume that, although questioned regarding imposition of the death penalty, the jury was fair. As we determine defendant has made no showing to rebut that presumption, our Conclusion would not differ even if Hett was applied retroactively. II
During its case in chief, the State sought to have Chicago police officer Annise Fuller testify as to the content of two statements made by Wiley to her after being summoned to the scene of the crime. Specifically, the statements were, "He [the ...