Chief Justice Bilandic delivered the opinion of the court:
The opinion of the court was delivered by: Bilandic
CHIEF JUSTICE BILANDIC delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, the defendant, Edgar Hope, was convicted of one count of murder, one count of attempted murder and two counts of armed robbery. A bifurcated death penalty hearing was subsequently held before the same jury. The jury found the defendant eligible for the death penalty (720 ILCS 5/9-1(b)(3) (West 1992)), and further found that there were no mitigating factors sufficient to preclude imposition of a death sentence. The defendant's sentence has been stayed pending his direct appeal to this court. (Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d Rules 603, 609(a).) We now affirm the defendant's convictions and sentence.
The defendant's convictions arise out of the January 11, 1982, armed robbery and shooting at a McDonalds restaurant located at 114th Street and Halsted in Chicago. On that evening, Lloyd Wyckliffe and Alvin Thompson were working as security guards at the McDonalds. Both Wyckliffe and Thompson were wearing plain clothes and were carrying firearms. At approximately 8 p.m., Wyckliffe and Thompson were seated in the restaurant, with a view of the counter area. Anthonette Dawson was working as a cashier behind the counter and Charles Trent was working behind the counter as a shift manager.
Alvin Thompson testified that, at approximately 8 p.m., a black man and a black woman, both in their early twenties, came into the restaurant and placed orders with Anthonette Dawson. The man began switching his order, and Dawson made eye contact with Thompson and Wyckliffe. The two security guards walked over and positioned themselves about five or six feet from the counter. Thompson identified the defendantas the man who was switching orders. Anthonette Dawson also identified the defendant as the man who had been switching orders at her cash register, and further testified that she recognized the woman he was with as Nadine Smart. Charles Trent, the shift manager, also identified the defendant as the man who was switching orders.
After Wyckliffe and Thompson had positioned themselves near the counter area, a second black man entered the restaurant from the west-side door. That man, later identified as Alton Logan, shouted something and Wyckliffe turned to face him. Logan then pulled a sawed-off shotgun from under his coat and shot Wyckliffe in the chest, killing him. Logan took Wyckliffe's gun from his body.
The man identified as the defendant then pushed Thompson down onto the floor and stood over him. The defendant, already armed, searched for and retrieved Thompson's gun. The defendant then fired at Thompson. Thompson, however, turned his head and pulled his arm across his head, causing the bullet to hit him in the left elbow and armpit. Thompson rolled over onto his stomach and pretended to be dead. Thompson stated that the defendant had a "slight smile" on his face just before he fired the shot. The two perpetrators then ran out of the McDonalds. After the men left, Thompson got up and crossed the street to a Jewel food store where he reported the incident to the police. Paramedics arrived and took Thompson to the hospital.
Officer Robert Mantia testified that he and Officer James Doyle were on uniform patrol on February 5, 1982, when they were flagged down by a young man, later identified as Charles Harris, at about 10 p.m. The officers were informed that the defendant was on a particular CTA bus and that there was a warrant out for the defendant's arrest in connection with another crime(unrelated to the McDonalds incident). Officers Mantia and Doyle stopped the bus and, after Harris pointed out the defendant, boarded it. Officer Doyle reached the defendant first and conducted a pat-down search, finding a drug kit in the defendant's pocket. Officer Doyle walked the defendant toward the front of the bus, with Doyle following the defendant. Officer Mantia then heard a shot fired and saw Officer Doyle fall. Officer Mantia and the defendant exchanged gunfire on and then off the bus. Officer Mantia wounded the defendant outside the bus and the defendant fell to the ground. A fully loaded gun was recovered lying about one foot from the defendant's hand. The gun the defendant had used to shoot Officer Doyle was also recovered from the ground near where the defendant lay wounded.
Detective John Yucaitis traced the gun recovered from next to the defendant's hand as that taken from Alvin Thompson during the McDonalds incident the previous month. Subsequently, Thompson, Anthonette Dawson and Charles Trent, at separate times, each picked the defendant's photograph from a photographic array as one of the assailants. Trent, however, was equivocal in his photographic identification and stated that he needed to see the defendant in person. Later, Thompson, Trent and Dawson separately viewed a lineup at the Cook County jail and identified the defendant as Thompson's assailant in the McDonalds. Each of those three witnesses also identified the defendant in court. In addition, each of those witnesses identified Alton Logan in separate lineups as the man with the sawed-off shotgun in the McDonalds shooting.
The defendant presented the testimony of Thomas Grant. Grant stated that he had accompanied Nadine Smart to the McDonalds at approximately 8 p.m. on January 11, 1982. Grant testified that he did not create a disturbance in line. Grant stated that he heard oneshot and then he ran out of the McDonalds. The defendant also called Officer Bruce Wagner. Officer Wagner had talked with Alvin Thompson at the Jewel store after Thompson was shot. According to Officer Wagner's report of that interview, Thompson stated that one black male entered the McDonalds, created a disturbance in line and then shot both Wyckliffe and Thompson. Officer Wagner stated that Thompson was bleeding profusely when he talked with him and that they spoke only briefly at that time.
The defendant also called Detective Digiacomo. Detective Digiacomo spoke with both Trent and Dawson at the McDonalds after the shooting. According to Digiacomo's report, Trent told him that he saw one offender shoot both security guards, and Dawson told him that Nadine Smart was accompanied by two black males whom she did not recognize. Detective Digiacomo also testified that he interviewed Thompson at the hospital. At that time, Thompson told him that a second offender had pushed him down and shot him.
Following closing arguments, the jury returned a verdict finding the defendant guilty of one count of murder, one count of attempted murder and two counts of armed robbery. A bifurcated death penalty hearing before the same jury was commenced the following day. At the eligibility phase of the death penalty hearing, the State presented a certified copy of the defendant's conviction for the murder of Officer James Doyle, and a certified copy of the defendant's birth certificate, establishing his birthdate of April 22, 1959. The State also introduced testimony from Heather Larkin, a passenger on the CTA bus upon which the Doyle shooting occurred. Larkin testified that two police officers boarded the bus and began talking to a man she identified as the defendant. She further testified that she saw one of the officers walking behind the defendant toward the frontof the bus and that, as they were walking, the defendant pulled a gun out of his coat and started shooting at the police officer.
The defendant presented no evidence at the eligibility phase. Following closing arguments by both sides, the jury returned a verdict finding the defendant eligible for the death penalty. The only statutory eligibility factor upon which the jury was instructed was the "multiple murder" factor of section 9--1(b)(3) (720 ILCS 5/9--1(b)(3) (West 1992)). The aggravation-mitigation phase of the death penalty hearing commenced several days later.
The State first presented the testimony of Dr. Robert Stein, the medical examiner who performed the autopsy on Officer Doyle, who testified regarding the injuries suffered by Officer Doyle. The State also presented the testimony of Larry Garnett, who testified that on January 22, 1982, he returned home to find that his house had been burglarized. Among the items missing from Garnett's house was a .38 snub-nose Llama handgun. A firearms expert, Sergeant Vincent Lomoro, also called by the State, testified that the bullet recovered from Officer Doyle's body was fired from that same .38 snub-nose Llama.
The State presented the testimony of Kevin Paige, another passenger on the CTA bus on which the Doyle shooting occurred. Paige stated that he was shot in the finger during the incident, as a result of which he will never be able to make a fist with that particular hand. Paige further testified that a bullet grazed his face. The State also called Charles Harris, who stated that on February 5, 1982, he flagged down police officers to inform them that the defendant, whom Harris knew, was on a particular CTA bus. Harris testified that, a month earlier, the defendant had hit Harris, pulled out a gun and had taken Harris' money and his radio.
The State also presented various witnesses who testified regarding the defendant's criminal history. In June of 1976, the defendant was accused of threatening to beat a woman if she did not give him money and was arrested while sitting in an automobile on the street with a gun in his hand. The defendant pled guilty to robbery and was sentenced to one year in prison. The defendant was released from prison in 1977. Later that year, the defendant pled guilty to armed robbery and was sentenced to seven years in prison for that offense. Apparently during the defendant's arrest for that offense, the defendant was the driver of an automobile that led police cars in a four- to five-mile chase, during which the defendant was recorded at a speed of 104 mph and at the end of which the defendant rammed his car into two other vehicles to evade the police. The defendant was released from prison for that crime in 1981. In December of that same year, the defendant robbed Charles Harris. In early 1982, the defendant committed the murders of Officer Doyle and Lloyd Wyckliffe. It was stipulated by both sides that, in connection with the Doyle shooting, the defendant was convicted of murder, attempted murder and armed violence.
William Graham, one of the defendant's parole agents, was called by the State. He was assigned to the defendant on July 1, 1977. Three months later, the officer filed a violation of parole due to the defendant's participation in a November 14, 1977, armed robbery. The testimony of Milton Gibbs, now deceased, was also presented by the State. Gibbs was assigned to be the defendant's parole officer in June of 1981. Gibbs placed the defendant on "AWOL" status around January 1982 because he was unable to meet with the defendant. Gibbs was informed by the defendant's mother that the defendant had moved out because some money had been taken. Gibbs' report described the defendant as a personwithout any goals and who functioned as an immature person.
The State also presented a number of witnesses who testified regarding the defendant's various incarcerations. The former director of the Cook County department of corrections testified that, when the defendant was brought to the Cook County jail in February 1982, he was placed in the "increased" maximum security area which houses the most dangerous inmates. During the defendant's approximately one-year stay in that facility, the defendant set his cell on fire, a shank was found in the defendant's cell and the defendant was cited for refusing to cooperate with the staff on three or four occasions. The supervisor of reception and classification at Joliet prison testified from prison records that, when the defendant came through that department in June of 1977, he indicated to a counselor that he had been involved with the Disciples street gang for 11 years. When the defendant again came through that department in August of 1978, there was no change in his gang status, and he was classified as maximum security.
The State's evidence revealed that the defendant was disciplined, while in the Cook County jail, for fighting in June of 1986, and for throwing a bucket of water on a guard in March of 1987. The evidence further showed that, during the defendant's September 1978 to June 22, 1981, incarceration in Menard Correctional Center, the defendant committed 45 disciplinary infractions. During the defendant's February 1983 to April 1986 incarceration in Menard, the defendant committed 26 disciplinary infractions, two of which involved weapons. In December of 1989, the defendant was disciplined, while in the Cook County jail, for disturbing officers while they were dealing with another inmate, who was known to be the leader of the Disciples gang.
The defendant called a number of witnesses in mitigation. The defendant first called Sister Miriam Wilson, the Catholic chaplain for the Cook County department of corrections. Sister Miriam stated that she met the defendant in 1982 and that she had been in consistent contact with him ever since. Sister Miriam testified that, over that time, the defendant has grown and developed and was a sensitive, caring person. Sister Miriam further testified that the defendant regrets what he has done and takes responsibility for his life. Sister Miriam admitted on cross-examination that she is personally and religiously opposed to the death penalty. The defendant also called his mother, who testified that she broke up with the defendant's father when he was approximately one year old. His mother stated that the defendant's father would take him to gambling halls as a child. Marie Brown, a Salvation Army worker who had developed a friendship with the defendant, also testified. Brown stated that she visits the defendant frequently and that he helps her with her problems. The defendant also talks to her 16-year-old daughter. Brown stated that she refused the defendant's proposal of marriage.
Robert Neal also testified for the defendant, stating that he had known the defendant for 20 years and that the defendant was a member of his choir. The defendant's sister, Tammy Richardson, testified that the defendant would go to stay with his father at times when he was between 8 and 10 years old. When the defendant returned from these trips, he would be staggering and smelling of alcohol. Gregory Bridges testified for the defense that he was the defendant's second cousin and that the defendant had encouraged him to stay in school and stay out of gangs. Delores Jett testified that the defendant was friends with her younger brother and had been at their house often, where he was helpful. Denise Johnson, the defendant's first cousin, testified that thedefendant's father drank and gambled heavily. Cora Dolly, a former friend of the defendant's father, testified that she was, at times, afraid of the defendant's father. Sharone Brown testified that her mother used to date the defendant and that he had acted like a father to her. Zeala Bonds, Cora Dolly's daughter, testified that the defendant used to live with them and that he had, since his incarceration, helped to straighten out her sons. John Lyke, the defendant's half-brother, testified that the defendant has been a positive influence on his studies. Finally, David Randall, a sentencing consultant, testified that he had interviewed friends and family of the defendant and had prepared a sentencing report on the defendant. Randall stated that the defendant had had a chaotic childhood, with a father who was a gambler and an alcoholic, and that the defendant had begun abusing substances at an early age.
Following closing arguments, the jury deliberated and returned a verdict finding that there were no mitigating factors sufficient to preclude a death sentence. Accordingly, the trial court sentenced the defendant to death.
The defendant raises a number of issues regarding the propriety of his convictions and death sentence. With regard to his convictions, the defendant claims that reversal is warranted because: (1) the prosecution improperly exercised a peremptory challenge to excuse potential juror Sharon Warner; (2) the trial court improperly restricted the defendant's cross-examination of Detective Yucaitis regarding certain news articles; and (3) the prosecutor committed reversible error when he made certain comments in closing argument about the actions of a defense attorney at the defendant's lineup. With regard to his death sentence, the defendant claims that reversal is warranted because: (1) thetrial court improperly refused some of the defendant's requested voir dire questions regarding the death penalty; (2) the trial court erroneously denied the defendant's motion to remove a juror for cause; (3) evidence regarding the defendant's gang affiliation was improperly admitted at the sentencing hearing; (4) evidence regarding the autopsy on Officer Doyle was improperly admitted at the sentencing hearing; (5) evidence regarding the theft of the gun used to shoot Officer Doyle was improperly admitted at the sentencing hearing; (6) the trial court erroneously refused several jury instructions requested by the defendant; (7) the defendant's eligibility for the death penalty has been invalidated; and (8) the Illinois death penalty statute is unconstitutional.
The defendant asserts that a new trial is warranted on the ground that the prosecution improperly used one of its peremptory challenges to excuse venireperson Sharon Warner. During the voir dire, the defendant objected to the State's use of its peremptory challenges to remove black venirepersons and asked for a hearing pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, to determine if the State's challenges were racially motivated. As to each of the excused jurors, the trial court found that the defendant had not established a prima facie showing that the State was exercising peremptory challenges based on race, but also went on to make the finding that the prosecutors' articulated reasons for their exclusion were race-neutral. The defendant sets forth the arguments made by the parties and the trial court's rulings as to a number of the black jurors excused by the State. However, as to all but juror Warner, the defendantconcedes that the trial court's ruling, that racial discrimination had not occurred, was correct. The defendant takes exception only to the trial court's ruling that the exclusion of Warner was not racially motivated.
The United States Supreme Court has instructed that an objection of racial discrimination under Batson is to be subjected to a three-step process:
"First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. [Citation.] Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. [Citation.] Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination." ( Hernandez v. New York (1991), 500 U.S. 352, 358-59, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866.)
In this case, the prosecution volunteered its explanations for excusing the challenged venirepersons, without the trial court first determining that the defendant had established a prima facie case. Under these circumstances, the question of whether the defendant satisfied step one of the Batson inquiry is rendered moot. Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405, 111 S. Ct. at 1866.
The defendant claims that the prosecution failed to satisfy its burden of articulating a race-neutral reason for the exclusion of Warner. The Supreme Court has dictated that a race-neutral explanation, within the context of the Batson inquiry, is an explanation:
"based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." ( Hernandez, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866.)
The Supreme Court has recently further clarified the meaning of "race-neutral explanation." In Purkett v. Elem (1995), 514 U.S. , , 131 L. Ed. 2d 834, 839, 115 S. Ct. 1769, 1771 (per curiam summary disposition), the Court stated that "the second step of [the Batson] process does not demand an explanation that is persuasive, or even plausible." A "legitimate reason," the Court stated, "is not a reason that makes sense, but a reason that does not deny equal protection." (Purkett, 514 U.S. at , 131 L. Ed. 2d at 840, 115 S. Ct. at 1771.) In Purkett, the Court addressed a black defendant's objection, under Batson, to the prosecution's use of a peremptory challenge to remove a black venireman. The Court held that the reason proffered by the prosecutor in that case, that the venireman was excused because of "long, unkempt hair, a mustache, and a beard," was race-neutral and satisfied the prosecutor's burden of articulating a nondiscriminatory reason for the strike. Accordingly, the Court held, the inquiry properly proceeded to step three, where the trial judge found that the prosecutor was not motivated by discriminatory intent.
We conclude that, under these precedents, there is no basis for reversing the trial court's ruling upholding the removal of Warner by the State. The prosecutor proffered several reasons for the removal of Warner. The prosecutor explained that Warner's "background" did not make her the kind of juror the State wanted on this jury, citing her occupation (freelance writer), residence (Hyde Park) and religion (Buddhist). The trial court ruled that the defendant had failed to show purposeful discrimination. The trial court stated, "there were good neutral reasons, it seems to me just obvious from looking at these three people (Warner and two other jurors whose exclusion was challenged under Batson) and the way that they responded to questions why the State would choose to exclude them."
Under Hernandez and Purkett, the reasons assertedby the State here were race-neutral within the context of Batson. None of the reasons proffered, occupation, residence or religion, were based upon the race of the jurors, and discriminatory intent is not inherent in any of those explanations. This court, too, has previously recognized that both the employment and the residence of a potential juror may constitute race-neutral reasons for excluding the juror. ( People v. Kitchen (1994), 159 Ill. 2d 1, 22, 201 Ill. Dec. 1, 636 N.E.2d 433 (employment); People v. Mack (1989), 128 Ill. 2d 231, 241, 131 Ill. Dec. 551, 538 N.E.2d 1107 (employment); People v. Andrews (1993), 155 Ill. 2d 286, 302, 185 Ill. Dec. 499, 614 N.E.2d 1184 (residence near scene of crime).) Those explanations may, therefore, property be considered race-neutral. Hernandez, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866.
Given the State's articulation of race-neutral explanations, it was appropriate for the trial judge to proceed to make the factual determination of whether purposeful discrimination had been shown. A trial judge's determination on the issue of purposeful discrimination at a Batson hearing is a finding of fact that is to be accorded great deference on review. ( Hernandez, 500 U.S. at 364-65, 114 L. Ed. 2d at 409, 111 S. Ct. at 1869; People v. Wiley (1995), 165 Ill. 2d 259, 274, 209 Ill. Dec. 261, 651 N.E.2d 189; People v. Williams (1994), 164 Ill. 2d 1, 19, 206 Ill. Dec. 592, 645 N.E.2d 844.) Such deference is owed because the determination will be largely a matter of credibility, which is uniquely within the province of the trial judge. ( Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 409, 111 S. Ct. at 1869; Wiley, 165 Ill. 2d at 274.) The trial judge's ruling will be set aside only if it is clearly erroneous. Williams, 164 Ill. 2d at 19.
We cannot say that the trial judge's determination, that the exclusion of Warner was not the result of purposeful discrimination, was clearly erroneous. As noted, there was nothing inherently discriminatory in any of the reasons asserted by the State. The trial judge was in the best position to assess the answers given by the potential jurors as well as the credibility of the prosecutor in asserting his reasons for excluding Warner. See People v. Fair (1994), 159 Ill. 2d 51, 74, 201 Ill. Dec. 23, 636 N.E.2d 455.
The defendant argues further that reversal is required because Warner's equal protection rights were violated, asserting that Warner's removal was based upon her religion. The defendant overlooks the fact that religion was just one of three race-neutral reasons proffered by the prosecution for the removal of Warner. We find that the prosecutor's reasons, exclusive of Warner's religion, were sufficient to satisfy the State's burden at step two of the Batson inquiry under the applicable precedents.
Accordingly, we hold that the State's removal of juror Warner does not warrant reversal of the defendant's convictions.
Cross-Examination of Detective Yucaitis
The defendant next argues that a new trial is warranted because he was not allowed, on cross-examination, to question Detective John Yucaitis with regard to whether the detective had seen particular newspaper articles pertaining to the defendant. Detective Yucaitis was the police officer who traced one of the guns recovered from the defendant after the CTA bus shooting as that belonging to Alvin Thompson, and who showed a photo array containing the defendant's picture to Thompson in order to obtain an identification. During cross-examination of Detective Yucaitis, defense counsel asked him if he recalled seeing a February 6, 1982, newspaper headline indicating that a police officer had been slain on a CTA bus. Detective Yucaitis testified that he did not see any newspapers that day. Defense counsel then asked Detective Yucaitis whether he recalled seeing such a newspaper headline in the February 7, 1982, newspaper. in response to that question, Detective Yucaitis testified, "I would imagine I did, sir." The State then requested a sidebar at which the defense articulated its intention to show the witness the February 6 and 7, 1982, headlines to which the questioning had pertained. The trial court stated that it sustained the State's objection, and the defendant did not attempt any further cross-examination of Detective Yucaitis.
The defendant now contends that he was impermissibly denied the right to inquire whether Detective Yucaitis had seen the February 6 and 7 articles which pertained to the defendant. We disagree. First, we note that the record indicates that the defendant did in fact ask Detective Yucaitis about both the February 6 and the February 7, 1982, newspaper articles. With regard to the February 6, 1982, article, Detective Yucaitis testified that he had not seen it. Thus, it would seem that no further questioning on that particular article was available. With regard to the February 7, 1982, article, Detective Yucaitis appears to have answered that he imagined he would have seen that newspaper. Thus, it appears that the defendant was not precluded from asking Detective Yucaitis whether he had seen either of these two articles.
Even if the defendant's claim that he was restricted in his cross-examination of Detective Yucaitis on the subject of newspaper articles is accurate, we still find no error in the trial court's actions. The decision to admit or exclude evidence is left to the sound discretion of the trial judge, and that decision will not be overturned on review absent a clear abuse of that discretion. ( People v. Peeples (1993), 155 Ill. 2d 422, 456, 186 Ill. Dec. 341, 616 N.E.2d 294.) The admissibility of evidence is dependent upon a showing that it is legally relevant. ( Peeples, 155 Ill. 2d at 456.) Relevant evidence is evidence having "any tendency to make the existence of any fact in consequence to the determination of the action more or less probable than it would be without the evidence." ( Peeples, 155 Ill. 2d at 455-56.) Testimonyfrom Detective Yucaitis as to whether or not he saw a newspaper article or photo of the defendant was not relevant in this case. Detective Yucaitis was not a witness to the crimes who was being asked to identify the defendant as a perpetrator. Rather, Detective Yucaitis was merely a police officer participating in the investigation of the crimes. Thus, whether Detective Yucaitis saw or did not see a newspaper article pertaining to the defendant was irrelevant.
The defendant argues that his constitutional right to present his theory of defense, as well as his right to cross-examine witnesses with regard to that theory, was violated by the trial court's actions. (See Crane v. Kentucky (1986), 476 U.S. 683, 90 L. Ed. 2d 636, 106 S. Ct. 2142.) We disagree. The defendant's theory was suggestive identification and nothing in the trial court's ruling prevented the defendant from eliciting testimony which was relevant to that theory. With regard to the actual witnesses to the crimes, Thompson, Dawson and Trent, nothing stopped defense counsel from questioning those witnesses as to whether they had seen any news articles or photographs pertaining to the defendant. The defense, however, chose not to pose any questions to Thompson or Dawson regarding the articles. As for Trent, defense counsel asked him whether he had seen a February 6, 1982, photograph of the defendant in the newspaper, to which Trent answered that he had not. Defense counsel did not ask Trent about a February 7, 1982, newspaper article, although no ruling or objection hindered him from doing so. The defendant was not prevented in any manner from pursuing his theory of suggestive identification.
Accordingly, we hold that the trial court did not abuse its discretion with regard to the scope of the defendant's ...