The Honorable Justice Miller delivered the opinion of the court.
The opinion of the court was delivered by: Miller
The Honorable Justice MILLER delivered the opinion of the court:
Following a jury trial in the circuit court of Du Page County, the defendant, Ronald R. Alvine, was convicted of first degree murder, burglary, and possession of a stolen motor vehicle. Defendant waived his right to a jury for sentencing. At a separate sentencing hearing the trial court found defendant eligible for the death penalty. The trial court further determined that there were no mitigating factors sufficient to preclude imposition of that sentence and defendant was sentenced to death. The trial judge also sentenced defendant to 14 years' imprisonment on the burglary and possession of a stolen motor vehicle convictions, to run concurrently with his death sentence. The defendant's execution has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d Rs. 603, 609(a). For the reasons that follow, we reverse count I of defendant's murder conviction, vacate his death sentence, and remand for a new trial. We affirm defendant's conviction on count II, felony murder, and his convictions and sentence for burglary and for possession of a stolen motor vehicle.
The present charges arose from an incident in the early morning of April 20, 1992, in which Officer Mike Browning was killed. At trial, Charles Pierce testified that he lived across the street from Crossroads Chevrolet, a car dealership. Just after midnight, Pierce witnessed a break-in at the dealership and telephoned 911. A tape of Pierce's call to the 911 dispatcher was played at trial. Pierce saw a white male, later identified as defendant, inside the dealer's showroom. Pierce saw defendant enter a Corvette, accelerate, and drive through the showroom window. Defendant then pulled the car over to the right of the dealership entrance gates. Defendant exited the Corvette, re-entered the showroom, and reappeared near the Corvette after approximately one minute. At the same time, Pierce saw a police vehicle approach and park just past the front gate inside the entrance to the dealership, near the Corvette and a blue Riviera. An officer exited the police car and stood in front of his squad car, with his arms extended and his hands clasped in front of him, facing the Corvette.
A second police car arrived and parked just outside the entrance gate. The sole occupant of the second squad car, later identified as the victim, Mike Browning, exited. Browning stood beside his squad car with his arms extended and his hands clasped, as if holding a gun. Pierce then saw defendant jump into the Corvette and accelerate, driving towards Browning. The Corvette struck Browning and his squad car. After striking Browning's car, the Corvette swung to the right and spun out into the street.
Donald Reever, a West Chicago policeman, testified that he was the first officer to arrive at the scene. Reever pulled into the well-lighted parking lot through the open entrance gate. After he arrived, he saw a blue vehicle backing up near the used-car section of the lot. The blue vehicle struck a parked car.
Reever observed defendant sitting in the driver's seat of the blue car. Reever then opened the door of his car, drew his gun, and leaned out of the door with his gun resting on the spotlight attached to his car. In compliance with Reever's order, defendant exited the blue car. About the same time, Reever heard Browning state over the radio that he had arrived at the scene, and Reever saw Browning's squad car pull up behind him and a little to the left.
As Browning's squad car pulled behind Reever, defendant was walking toward the front of the blue car. Reever again told defendant to put his hands up in the air, but defendant began to step to Reever's left. Defendant then ran and jumped into the Corvette. The Corvette accelerated quickly. Reever stepped back to get out of the way, and unsuccessfully attempted to grab defendant with his left hand. Reever turned around and saw Browning standing in front of his squad car at the front entrance to the dealership lot.
As the Corvette continued to accelerate, it drove directly at Browning. Reever did not see any brake lights, and the acceleration continued. Reever yelled to Browning to get out of the way. According to Reever, Browning was struck by the front end of the Corvette and was hurled up into the windshield of the car. Browning rolled over the hood onto the passenger side of the vehicle, and onto the ground. The Corvette then hit Browning's squad car, turned westbound onto the highway in front of the dealership, and spun around on the wet pavement.
Browning sustained fatal head injuries, including multiple skull fractures. He was pronounced dead at 4:20 a.m. on April 20. Dr. Deborah Kay, a pathologist, testified that death was caused by multiple blunt force injuries and extensive injuries to the head.
Paramedic John Niemann treated defendant at the crime scene. Defendant had an observable fracture to his left thigh, which was later discovered to have resulted from a bullet. Defendant was alert and oriented and responded appropriately to questions. As defendant was being lifted into the ambulance, paramedics asked him what had occurred. Defendant stated that "he got in my way and I just put my foot to the floor." Niemann testified that defendant was laughing while he made the statement. Niemann did not smell alcohol on defendant's breath. Niemann also stated that defendant was smirking inappropriately at other times during the conversation.
Paramedic Michael Eckler also treated defendant at the scene on the night of the offenses. When Eckler arrived there he found defendant lying on his back, handcuffed, next to a white Corvette. Defendant was conscious and answered questions appropriately. Defendant told Eckler that he had been drinking, and Eckler smelled a moderate amount of alcohol on defendant's breath.
Joseph Boyle, a physician at Central Du Page Hospital, treated defendant in the early morning hours of April 20, 1992. Defendant's condition was stable, and he had a gunshot wound to the left thigh. A routine blood test for the presence of narcotics or alcohol revealed that defendant's blood-alcohol level was 0.17.
Frances Culler, head nurse of the emergency room at Central Du Page Hospital, also examined defendant. Culler testified that defendant was alert and responsive. She did not observe overt signs of alcohol and did not recall if she detected an odor of alcohol on defendant's breath.
Val Blazic, a deputy sheriff, guarded defendant at the hospital. From his position outside defendant's room, Blazic overheard defendant tell his sister over the telephone, "I had to kill the son of a bitch. I had to or he would have killed me. You would think he would have shot out one of the tires instead of shooting me."
Patricia McKinstry, a physical therapist, treated defendant while he was a patient at Central Du Page Hospital. Defendant told McKinstry that he had stolen a car or a convertible and that "the damn cop got in front of me. Shot me in the *** leg." Defendant related to McKinstry that his sister had telephoned him and that she said two police officers had been killed. Defendant told McKinstry that he did not kill two of them, he only "got one."
Conflicting evidence of whether or not police weapons had been fired at the scene was presented. Detective Raymond Rodriquez testified that when Officer Browning's gun was recovered from the ground at the crime scene it contained the maximum number of cartridges in the magazine. The weapon also contained a discharged cartridge casing caught abnormally in the ejection port. Rodriquez believed that the gun had discharged abnormally due to an improper grip on the weapon. Officer Reever testified that he never fired his gun on the evening of the offenses. Officer Laz Perez, who examined Reever's gun after the incident, testified that he received the weapon fully loaded and he did not find powder burns in the chamber. However, Richard Vaughn, a forensic sergeant, examined the same weapon two days later and, using an eye glass and a light, observed a substance in the barrel that appeared to be gun powder residue. Reever testified in rebuttal that he last fired his gun approximately six weeks earlier. He used the gun to destroy a deer injured in a traffic accident. Reever stated that although proper police procedure requires that the gun be cleaned after each use, Reever did not clean his gun after shooting the deer.
Robert Schoenthaler, co-owner of Crossroads Chevrolet, testified that defendant had no authority to enter Crossroads Chevrolet or to remove a 1992 Corvette from the premises.
For the defense, Mary Alvine testified that she is defendant's youngest sister. On April 24, 1992, Mary spoke with defendant by telephone. Defendant told her that he crashed and that he was ducking from bullets that were flying up above his head and through the windshield. Defendant told his sister that because he was ducking down, he did not see the officer before he hit him. Mary Alvine denied that defendant had said he had to "kill the son-of-a-bitch." During cross-examination she admitted that defendant told her he broke into the dealership to steal a Corvette.
The defense presented the testimony of Gary W. Cooper, an accident investigator. Cooper's testimony consisted of his observations of markings on and damage to the Corvette defendant drove, Browning's squad car, and the steel gate at the dealership entrance.
Defendant did not testify on his own behalf.
At the close of evidence, the jury returned verdicts finding defendant guilty of both knowing murder and felony murder in addition to burglary and possession of a stolen motor vehicle.
Following the verdicts, the defense moved for a hearing regarding defendant's fitness for sentencing. The court found a bona fide doubt of defendant's fitness existed and ordered defendant to be examined. Following a hearing, the judge found defendant fit to be sentenced.
Defendant waived his right to a jury for sentencing and the case proceeded to a bench sentencing. At the first stage of the sentencing hearing, the judge found that defendant was 18 or older at the time of the murder for which he was convicted. The judge further found that defendant was eligible for the death penalty based on the statutory aggravating factors of murder in the course of a felony (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(6)) and knowing murder of a policeman in the course of his official duties (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(1)).
The sentencing hearing then progressed to the aggravation and mitigation phase. The State presented evidence of defendant's prior convictions for two separate burglaries, unlawful use of a weapon by a felon, forgery, involuntary manslaughter and arson. Defendant presented the testimony of his relatives, a mitigation expert and a psychiatrist.
At the conclusion of the evidence in aggravation and mitigation the judge gave a detailed ruling and found that the mitigating factors were insufficient to preclude the imposition of the death sentence. Defendant was sentenced to death on the knowing murder count.
The defendant raises a number of issues concerning both the guilt-innocence phase of the proceedings and the sentencing hearing. However, due to our disposition of defendant's first issue on appeal, we need address only ...