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May 31, 1996


Chief Justice Bilandic delivered the opinion of the court: Justice Harrison took no part in the consideration or decision of this case. Justice Freeman, dissenting: Justice Nickels, also dissenting: Justice Freeman joins in this dissent.

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, defendant, Frank Williams, was convicted of first degree murder (Ill. Rev. Stat. 1991, ch. 38, pars. 9-1(a)(1)), attempted murder (Ill. Rev. Stat. 1991, ch. 38, par. 8-4), and aggravated battery with a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 12-4.2(a)). Defendant waived a jury for sentencing. The trial court found defendant eligible for the death penalty based on the statutory aggravating factor that the murder was committed in a cold, calculated, and premeditated manner. Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(11). The trial court further found that there were no mitigating factors sufficient to preclude imposition of the death penalty. Accordingly, the trial court sentenced defendant to death. The trial court also sentenced defendant to concurrent 30-year sentences for attempted murder and aggravated battery with a firearm. Defendant's death sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d Rs. 603, 609(a). For the following reasons, we affirm defendant's convictions and sentences.


On January 3, 1991, at approximately 6 p.m., Anthony Cole drove Michelle Brueckmann, Noel Garcia and Francisco Mashane to Michelle's house at 1312 South Maple in Berwyn, Illinois. Anthony and Michelle went into the house while Noel and Francisco remained in the car, which was double-parked in front of Michelle's house. Anthony testified that around 6:30 p.m., he and Michelle were leaving the house and walking toward the street, when defendant emerged from behind a van. Defendant screamed, "I told you I was going to kill you when I saw you together." Defendant then pointed a .38-caliber revolver at Anthony and shot him in his left shoulder. Anthony fell to the ground. Anthony next saw defendant grab Michelle and heard a gunshot. Anthony witnessed Michelle fall to the ground. Anthony got up and ran. Defendant chased Anthony and shot him in the right shoulder. Anthony then ran into a building for help.

Noel Garcia confirmed Anthony's testimony. Garcia testified that, after defendant shot Anthony, defendant ran up behind Michelle, grabbed her hair and put the gun to her head. Defendant then shot Michelle in the head. Michelle fell to the ground. Next, Garcia saw Anthony get up and start running. Defendant ran after Anthony and shot him again.

Berwyn police officers Cladio Paolucci and Ronald Volanti responded to a call of shots fired in the 1300 block of South Maple in Berwyn. When they arrived at the scene at approximately 6:35 p.m., they saw Michelle lying on the parkway, bleeding profusely from the head with no apparent signs of life. The officers also found Anthony lying on the kitchen floor of an apartment next door. He was bleeding from the chest and shoulder. After talking to Anthony, Officer Paolucci made a radio dispatch indicating that the offender's name was Frank Williams, that he was a black male, approximately 6 feet, 2 inches tall, and 180 pounds.

Berwyn police detective Mark Cione obtained an arrest warrant for defendant that same night. After learning that defendant might be staying at a house at 5024 South Winchester in Chicago, Detective Cione and other police officers proceeded to that address. They arrived at that address around 3 a.m. on January 4, 1991. When they arrived, Detective Cione rang the bell and spoke with defendant's sister, Kimberly Alexander, who indicated that she had not seen defendant. She then gave the officers permission to enter the house to look for defendant. They found defendant in a storage area in the attic. Detective Cione placed defendant under arrest and handcuffed him. After taking defendant to the backyard, Detective Cione conducted a patdown search of defendant and asked him if he had any guns, knives or needles on him. Defendant responded that he did not, but said that he had a gun in his coat located in the attic. Detective Cione radioed Officer Paolucci, who was still in the attic, and told him to look for a jacket with a gun in it. Officer Paolucci found a jacket lying in the corner of the storage area. A .38-caliber revolver containing a few live rounds was in the pocket. Defendant was then taken to the Berwyn police station.

Assistant State's Attorney Kathleen White testified that she arrived at the Berwyn police station around 5:30 a.m. on January 4, 1991, and spoke with defendant. Assistant State's Attorney White advised defendant of his Miranda rights and he indicated that he understood them. Defendant agreed to give an oral statement but he refused to sign anything. Defendant discussed what had happened on January 3, 1991. Defendant stated that he became upset when he saw his girlfriend Michelle with his friend Anthony at a shopping mall during the afternoon of January 3, 1991. Later that evening, defendant took a loaded .38-caliber revolver from his dresser and drove to Michelle's house. Defendant stated that he parked the car around the corner from Michelle's house and stood behind a tree and waited for Michelle to come out of the house. When Michelle and Anthony came out of the house, defendant emerged from behind the tree with a loaded gun in his hand. Defendant walked directly up to Anthony and shot him in the shoulder. Defendant then shot Michelle in the head. Anthony suddenly got up, and defendant shot him again in the shoulder. Defendant then fled.

Anthony Cole testified that he and defendant had known each other for about 15 years. According to Anthony, defendant and Michelle had been engaged but had broken off their engagement in the summer of 1990. Anthony had dated Michelle for about one month before Michelle was shot. Anthony testified about a prior incident in which defendant threatened to kill Michelle and Anthony if he ever saw them together. On January 2, 1991, Anthony, defendant and Michelle were riding in Anthony's car. Defendant suddenly jumped over the seat with a large butcher knife and attempted to stab Anthony. Anthony was cut on his hand. Anthony and defendant jumped out of the car. While chasing Anthony around the car, defendant said, "I told you if I saw you together I would kill you." After both defendant and Anthony stopped running around the car, defendant went to open the passenger door. Anthony then ran to the police station for help. When he returned, Michelle came out of defendant's house crying hysterically with a cut on her hand. Anthony took Michelle to the hospital where she received stitches in her hand.

The State also presented the testimony of Donald Smith, a firearms examiner from the Illinois State Police. Smith examined the .38-caliber revolver recovered from defendant's jacket and the bullet that had been surgically removed from Cole. Smith concluded that the bullet could only have been fired from the gun recovered. Smith also testified that, from the single-action position, with the hammer cocked, the gun required 5 1/2 pounds of pressure on the trigger in order to fire. In the double-action position, with the hammer at rest, the gun required 13 1/2 pounds of pressure on the trigger in order to fire.

As a final matter, the State presented the testimony of Assistant Medical Examiner Nancy Jones, who performed an autopsy on the body of Michelle. Jones testified that Michelle died as a result of a gunshot wound to her head. The bullet went through Michelle's head. The entrance wound measured about one-half inch in diameter and showed evidence of being a near contact range wound, meaning that the muzzle of the gun was very close to the body at the time the weapon was fired. This was further evidenced by charring or burning around the entrance wound. Jones determined that the muzzle of the gun was within an inch or less of Michelle's head when the gun was fired. Jones further observed a "graze" gunshot wound on the back of Michelle's left hand, indicating that Michelle's hand was in very close proximity to the muzzle of the weapon at the time the weapon was fired. Michelle's right hand also had gunpowder on the back of the thumb and wrist, indicating its close proximity to the weapon when fired.

After the State rested, defendant presented his case. Defendant's friend Darrio Ramirez testified that in December of 1990 defendant and Michelle were engaged to be married and he saw them together. Ramirez testified that he was with defendant at a shopping mall on January 3, 1991, but that he did not see Michelle and Anthony. Ramirez also testified that he saw Anthony at a laundromat the day after Anthony was released from the hospital. He asked Anthony what had happened the night of the shooting. Anthony told Ramirez that he tried to grab defendant's gun and it went off, with the bullet striking Michelle.

Defendant testified on his own behalf. At the outset of his testimony, defendant acknowledged that he was convicted of aggravated battery in 1986. Defendant then went on to explain that he, Michelle, Anthony, Darrio, Noel and Francisco were all "best of friends." He and Michelle became engaged in July of 1988, but their engagement ended in September of 1990. After the engagement was over, they continued to see one another. Defendant stated that around Christmas of 1990, he and Michelle exchanged gifts. He contended that he never really considered their relationship to be over.

Defendant next described the incidents that occurred on January 2 and 3, 1991. On January 2, 1991, Anthony went to defendant's house with Michelle in the car. Anthony approached defendant and told him that defendant's relationship with Michelle was over and Anthony was the "new guy in town." Michelle got out of the car and stood next to Anthony, telling Anthony to let it be. Anthony replied, "No. I'm going to show him what's up." Anthony then removed a switchblade or pocket knife from his pocket and pointed it at defendant. Defendant slapped the knife out of the way. When defendant slapped the knife away, it cut the palm of defendant's hand and then struck Michelle, cutting her left hand. Defendant and Michelle went into the house and defendant gave her a towel to wrap up her bleeding hand. The police came to defendant's house but did not arrest defendant. Michelle subsequently left with Anthony. Defendant denied ever pulling a butcher knife on Anthony and Michelle.

The next day, defendant went to the North Riverside shopping mall with Darrio Ramirez and Darrio's girlfriend, Christina Rodriguez. Defendant claimed that he did not see Michelle or Anthony at the mall that day. When defendant arrived home, his brother told him that Anthony had been there looking for him and that Anthony had a gun. Defendant then went to look for Anthony. Defendant took his gun with him "just in case" Anthony had a gun. Defendant, however, was unable to find Anthony. Defendant subsequently went to Michelle's house to pick up some of his belongings. While passing a police station, he removed his gun from the passenger seat of his car and he put it in the pocket of his jacket. When defendant arrived at Michelle's house, he saw her and Anthony leaving her house. Defendant approached Michelle and Michelle called him aside to talk to him. As he and Michelle were talking, Anthony approached them. Anthony put his hand inside his jacket and said, "What's up?" Defendant put his hand in his pocket. Defendant did not threaten Anthony or Michelle. Defendant, however, was concerned that Anthony was going to pull out a gun, so defendant pulled out his gun and pointed it at Anthony. Although defendant cocked the gun, he claimed that he did not have his finger on the trigger. Defendant told Anthony, "Just let it be. Let it be." Suddenly Anthony swung his arm toward defendant and hit the gun. The gun discharged and a bullet struck Michelle. Michelle fell to the ground and defendant said to Anthony, "Look what you did." Anthony replied, "I'm out of here." Defendant responded, "Tony, don't run," and fired at Anthony. Anthony kept running, and defendant fired at him again.

Defendant then left and drove to his sister Kimberly Alexander's house. At some point, defendant took the bullets out of the gun. He threw three empty bullet casings into the street and left the other three in his jacket pocket. He parked the car at his sister's house, took off his jacket, and put the gun in the right hand pocket of the jacket. He laid the jacket on the front seat and got out of the car. Defendant then went up to the attic and cried. Around 3 a.m., the attic door flew open and several police officers entered the attic with their guns drawn. They told defendant to "freeze." The officers handcuffed his hands behind his back and led him down the stairs to the backyard. While in the backyard, Detective Cione asked defendant whether he had any needles, knives or guns on him. Defendant said "No." Detective Cione then searched him. According to defendant, he never told Detective Cione where the jacket and gun were located.

Defendant stated that he was then taken to the Berwyn police station, where he was fingerprinted and photographed. Defendant stated that neither Detective Cione nor Assistant State's Attorney White read him his Miranda rights. Detective Cione asked defendant about the shooting several times, and defendant refused to talk about it. Defendant denied making any statement to Detective Cione or to Assistant State's Attorney White.

Defendant concluded his testimony by stating that on the day of the shooting, he still loved Michelle. He claimed that it was not his intent to confront Michelle and Anthony or to shoot anyone. Defendant testified that when Michelle was shot it was a "complete accident." After Michelle was shot, defendant shot twice at Anthony because he did not want him to run away.

After the defense rested, the State presented three rebuttal witnesses. First, Detective Cione discussed defendant's conversation with him at the Berwyn police station. After advising defendant of his Miranda rights, Detective Cione conducted an interview with defendant which occurred at 4 a.m. and lasted approximately one hour. Defendant told Detective Cione that he was standing behind a tree on January 3, 1991, as he saw Michelle and Anthony walk out of Michelle's house. He approached them and fired one shot at Anthony. Defendant stated that he then pointed the gun at Michelle's head and fired one shot. Defendant also fired a second shot at Anthony. Next, Assistant State's Attorney White testified that defendant never indicated to her that Anthony had hit defendant's hand, causing the gun to discharge accidentally and strike Michelle. Finally, Noel Garcia testified that he did not see Anthony strike defendant's hand, causing the gun to discharge against Michelle's head. Following the testimony of these rebuttal witnesses, the State read defendant's 1986 aggravated battery conviction into the record.

At the close of the evidence and arguments, the jury returned verdicts finding defendant guilty of the first degree murder of Michelle, and of the attempted murder and aggravated battery with a firearm of Anthony. Having waived a sentencing jury before trial, defendant was sentenced by the trial judge. The trial judge found defendant eligible for the death penalty based upon the statutory aggravating factor that the murder had been committed in a cold, calculated, and premeditated manner pursuant to a preconceived plan to take human life by unlawful means, and that defendant's conduct created a reasonable expectation that the death of a human being would result therefrom. Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(11).

At the aggravation-mitigation phase of the death penalty hearing, the State presented the following evidence in aggravation. Noel Garcia recounted an incident in August of 1990. Following Garcia's date with Michelle, Garcia was driving around with defendant, Anthony and Darrio Ramirez. After dropping off Anthony, they drove to a dead-end street and drank beer for awhile. Defendant suddenly began to beat Garcia. Defendant tied him up, kicked him and punched him in the face. Defendant then broke a bottle and held it to Garcia's neck and said he was going to kill him because he had been with Michelle. Just as defendant was about to poke the broken bottle into Garcia's neck, Darrio stopped him. This incident left Garcia with a fractured nose.

The State next called Chicago police detective James Cornelison. Detective Cornelison testified that on August 22, 1985, defendant was arrested for the beating of Hermilio Allencastro. The victim was in a coma for approximately two weeks as a result of the beating. Defendant signed a written statement regarding this incident. In defendant's statement, he admitted punching the victim approximately 20 times in the chest and head, and stomping on the victim's head about seven times. Defendant pled guilty to aggravated battery as a result of this incident and was sentenced to five years' imprisonment.

Dawn Juarez, Michelle's best friend, next testified in aggravation. Juarez testified that on October 4, 1990, she received a phone call from Michelle. Michelle indicated that she was having problems with defendant. When Juarez saw Michelle that day she had a black eye. Michelle explained that defendant had taken her to a forest preserve, pulled her out of the car and punched her. Defendant then put a gun to Michelle's head. Defendant told her the gun had one bullet in it. Defendant pulled the trigger, but the gun did not fire. Defendant then told Michelle that she was lucky that she did not have to die that day, but if he could not have her then no one else would have her. Juarez stated that she had previously seen bruises or marks on Michelle's body. Michelle told her that these bruises and marks had been caused by defendant when she had tried to break up with him.

Finally, the State presented the testimony of Michelle's mother, Cheryl Brueckmann. Brueckmann testified about a conversation she and Michelle had in September of 1990. Michelle told her that she was afraid of defendant because he had threatened to kill her. Brueckmann had previously noticed bruises and marks including a black eye on Michelle. During their conversation, Michelle also told her mother that all of the bruises she had seen previously had been caused by defendant.

The State concluded by offering into evidence a certified statement of defendant's 1986 conviction of aggravated battery, a written statement signed by defendant in that case, and photographs of the victim of that incident.

Defendant called a number of witnesses in mitigation. Defendant first called Dr. George Savarese, a licensed clinical social worker. Dr. Savarese testified about his psychosocial evaluation of defendant. A psychosocial evaluation is an attempt to understand the developmental history of an individual. Dr. Savarese testified that defendant's early childhood represents a very dysfunctional emotional development because there was poor attachment and bonding to his mother. Other social factors noted by Dr. Savarese included the lack of a father figure in defendant's life, defendant's bi-racial family, and the racial abuse he faced in his neighborhood which was primarily Caucasian. Dr. Savarese believed that the racial antagonism defendant faced while growing up resulted in low self-esteem and a need for belonging. Defendant also possessed a deep fear of rejection and abandonment, which became exaggerated in his relationship with Michelle. Dr. Savarese testified that defendant perceived the loss of Michelle to Anthony as rejection and betrayal of best friends. Dr. Savarese concluded that the murder of Michelle and attempted murder of Anthony resulted from an explosion of underlying rage.

Defendant's neighbor, Christine Hernandez, testified that she had known defendant since he was an infant. He was friendly and helpful and would often do odd jobs for her. Hernandez testified that she never had any problems with how defendant treated her or her family.

Yolanda Nerie, who had known defendant for eight or nine years, also testified in mitigation. Nerie stated that, during the year she had dated defendant, he was never violent toward her. Defendant never had any hard feelings about their relationship ending, and they remained friends after they had stopped dating.

Next, members of defendant's family testified in mitigation. Defendant's two sisters, Gwendolyn Webber and Kimberly Alexander, testified that defendant was not treated well by people in his neighborhood because he was African-American. They further pointed out that defendant had a very good relationship with their children and with Michelle. Webber specifically stated that defendant never acted violently against Michelle. Defendant's mother, Janie Webber, confirmed that defendant and Michelle seemed to love each other. Moreover, they continued to see each other during the holidays in 1990. Defendant's mother also stated that, although defendant was a very loving son, she was not a very loving mother.

Finally, defendant elected to speak in allocution. Defendant apologized to Michelle's family for the "terrible accident," apologized to his own family, and concluded, "I am sorry. I wish it never happened." He also expressed his continued love for Michelle.

After considering evidence from both sides, the trial court found that there were no mitigating factors sufficient to preclude imposition of a death sentence. Accordingly, the trial court sentenced defendant to death for the murder of Michelle. The trial court also sentenced defendant to concurrent 30-year sentences for the attempted murder and aggravated battery with a firearm convictions. Defendant now appeals his convictions and death sentence.



Challenge for Cause

Defendant first argues that the trial judge committed reversible error by refusing to excuse for cause venire member Mark Posternack. Defendant claims that venireman Posternack should have been removed for cause because of his lack of impartiality. Defendant contends that Posternack's voir dire responses indicate that he had a bias against guns. Because this case involved the use of a firearm, defendant urges, Posternack could not be impartial. Defendant also contends that Posternack should have been removed for cause because he expressed self-doubt concerning his ability to be impartial.

The voir dire of Posternack was conducted by the trial judge. Defendant's argument is based on the following exchange between the trial judge and Posternack:

"Q. Can you still be fair and impartial if picked to serve as a juror?



Q. What do you mean, no?

A. I'm totally against guns. I hear about this all the time and I couldn't be fair if somebody had one.

Q. You're totally against guns. So what?

A. I don't think one should carry guns unless a police officer.

Q. You haven't heard any facts yet. How can you assume that somebody was carrying a gun?

A. I just don't think anyone should carry a gun unless they're a police officer.

Q. If you were picked to serve on this jury would you be fair and impartial?

A. I'd do my best.

Q. What do you mean, your best?

A. I would hear it out.

Q. Do you know of any reason why you cannot be fair and impartial if picked to serve in this case?

A. As I stated before.

Q. What is that?

A. Gun control, otherwise, yes.

Q. I don't know what you mean, gun control?

A. Like I said, I'm against guns, any crime with guns.

Q. In other words, if somebody--if they say somebody used a gun it's automatically a guilty, is that right?

A. Well, not automatically guilty but I would say I would have a reasonable doubt why he was carrying a gun. Before, I would say he was guilty, I'd like to hear it out."

The determination of whether to excuse a potential juror for cause rests within the sound discretion of the trial judge. People v. Seuffer, 144 Ill. 2d 482, 502, 163 Ill. Dec. 805, 582 N.E.2d 71 (1991); People v. Hyche, 77 Ill. 2d 229, 239, 32 Ill. Dec. 893, 396 N.E.2d 6 (1979). In reviewing the trial judge's determination, the entire voir dire examination of the potential juror should be considered, as opposed to selected responses. People v. Peeples, 155 Ill. 2d 422, 462-63, 186 Ill. Dec. 341, 616 N.E.2d 294 (1993). Because the trial judge is in the best position to observe the potential juror's demeanor and ascertain the meaning of his or her remarks, the trial judge's determination will not be disturbed on review unless it is against the manifest weight of the evidence. Peeples, 155 Ill. 2d at 463, 466; People v. Pasch, 152 Ill. 2d 133, 168-69, 178 Ill. Dec. 38, 604 N.E.2d 294 (1992).

A venireperson should be removed for cause if his or her state of mind is such that one of the parties will not receive a fair and impartial trial with that venireperson as a juror. See Peeples, 155 Ill. 2d at 463; People v. Cole, 54 Ill. 2d 401, 413, 298 N.E.2d 705 (1973). Simply giving an equivocal response, however, will not require that a venireperson be excused for cause. See People v. Hobley, 159 Ill. 2d 272, 297, 202 Ill. Dec. 256, 637 N.E.2d 992 (1994); Pasch, 152 Ill. 2d at 169 (potential jurors did have some difficulty with insanity defense; however, they indicated they could consider the evidence as presented at trial and then make a determination on defendant's sanity); People v. Johnson, 149 Ill. 2d 118, 138, 171 Ill. Dec. 401, 594 N.E.2d 253 (1992) (absolute certainty is not required in a potential juror's responses). Rather, whether a venireperson can be impartial should be determined from the venireperson's entire voir dire examination.

In this case, when the entire voir dire examination of Posternack is reviewed, it is apparent that Posternack would base his decision on the law and the evidence regardless of his personal feelings. This is evidenced by the following statements by Posternack in response to the trial judge's questions:

"Q. Will you follow the law as propounded to you by the Court regardless of your own personal feelings?

A. Yes.

Q. So before you made up your mind you would wait until you heard the whole situation, both sides?

A. Yes.

Q. Right, ...

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