The Honorable Justice Heiple delivered the opinion of the court. Justice Miller, concurring in part and dissenting in part.
The opinion of the court was delivered by: Heiple
The Honorable Justice HEIPLE delivered the opinion of the court:
A jury convicted defendant of first degree murder (720 ILCS 5/9-1(a) (West 1994)). The jury then found that defendant was eligible to be sentenced to death because the murdered individual was killed in the course of the felony of home invasion. 720 ILCS 5/9-1(b)(6) (West 1994). Defendant waived a jury for sentencing. After considering aggravating and mitigating factors, the circuit court determined that there were no mitigating factors sufficient to preclude imposition of the death penalty, and accordingly sentenced defendant to death. 720 ILCS 5/9-1(h) (West 1994). Defendant's death sentence has been stayed pending review by this court. Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d R. 609(a). We affirm defendant's conviction, but vacate his death sentence and remand for resentencing. *fn1
The following evidence was adduced at trial. Defendant testified that he met the victim, Janice Wright, in Springfield, Illinois, in 1990. In 1993, he moved to an apartment in Bloomington, Illinois. Sometime in 1994, Wright moved to Bloomington and began living with defendant in the same apartment, which the two jointly rented.
In February 1995, Wright moved out of the apartment and into the Home Sweet Home Mission in Bloomington. On February 28, the circuit court entered an emergency order of protection prohibiting defendant from having any contact with Wright. On March 9, the court entered a plenary order of protection granting exclusive possession of the apartment to Wright and prohibiting defendant from entering or remaining at the apartment. *fn2 The plenary order gave defendant permission to enter the apartment to retrieve his belongings on March 11, 1995, between 10 a.m. and 2 p.m. in the presence of police.
Defendant testified that on March 11 he went to the apartment unaccompanied by police. He and Wright talked for awhile, and then Wright asked him to help her move a washer and dryer which she had purchased from a nearby neighbor into the apartment. Defendant went to the neighbor's house, but found nobody home. He told Wright that he would return the next day.
On March 12, defendant again went to the apartment unaccompanied by police. As he approached the apartment, Wright met him outside. The two talked for 20 to 25 minutes on the front steps. Defendant asked Wright if she could give him some money to pay rent to a friend with whom he was living. Wright told him that she had no money, but that he could have some rings he had given her previously. Defendant told her he did not want to take the rings.
Defendant testified that two individuals, Jessica Chavez and Alfredo Aviles, then arrived at the apartment. As Chavez and Aviles came onto the porch, a third person, Monica Aceves, came out of the apartment holding an infant. Wright, Chavez, and Aceves then went into the apartment and brought out bags of defendant's clothes, which defendant put into his car. Defendant then asked Wright if she had seen a jacket of his which was missing. She told him he could go look for it in the basement, which was accessed by an outside door. She gave him the key to the door, and he entered the basement and looked, but did not find the jacket. After he returned to the front of the house, he accompanied Wright to a nearby pay phone where Wright made a call.
When Wright completed her phone call, she and defendant went back to the apartment. Defendant then began asking Chavez, Aviles and Aceves to identify their ethnic origin. Wright became upset and told defendant to stop bothering her friends. Defendant testified that he then entered the apartment and went to the bedroom to look for some gold coins he had placed in a vase. Wright shouted to defendant that she would find the coins for him, so he left the bedroom and went into the living room where Wright was. Defendant testified that, upon entering the living room, he walked over to a shelf which held cassette tapes, and asked Wright, "Where is the Mariah Carey tape at?" and that Wright responded, "You can't have that tape."
Defendant testified that at this point, he noticed that Wright had a "box cutter" or "razor" in her hand. He testified that he was afraid because he had seen Wright use a knife before. For example, he testified, three years earlier Wright had gotten into an argument with another woman in a tavern and had pulled out a knife and that he had to stop the fight. He also testified that once, after an argument with him, Wright had cut her own wrists. Finally, he testified that Wright had told him that she had "cut up" her first husband "pretty bad."
Defendant testified that as soon as he noticed the box cutter in Wright's hand, she bent over and picked up a hammer that was lying on the floor, and that he then said, "What are you doing? Put that hammer down." He testified that he then grabbed both of Wright's hands and struggled with her, trying to take the hammer and box cutter away. Wright then began screaming to the other people to call the police, and Chavez and Aviles, who were still out on the porch, began screaming as well.
Defendant testified that while he was struggling with Wright, Aviles entered the living room and struck him on the left side of his face and then held him from behind. Defendant testified that then, "I just gave it all and I came around like that and my elbow hit something and the shock came all the way through my left hand and the next thing I remember I was out on the front porch screaming at the ladies to get away from me." Defendant testified that "it was like waking up from a bad dream or something." He testified that he did not recall ever having the hammer.
Monica Aceves testified as follows. On March 12, 1995, she was in Wright's apartment when defendant arrived. From the living room, she could see that Wright and defendant were talking on the porch. Some time later her mother, Jessica Chavez, arrived with Alfredo Aviles. Wright then gave defendant some bags of clothes, which defendant put in his car. As Wright and defendant then began arguing over some cassette tapes, Aceves went into the bathroom. From the bathroom, she heard defendant say, "Were you going to use this on me?" Aceves then came back into the living room and saw defendant push Wright over the armrest of a couch. After Wright got up, defendant started hitting her with a hammer. Aceves testified that defendant used the hammer to hit Wright in the head, on the back, and "just everywhere." Screaming, Wright tried to get up and take the hammer away from defendant, but she could not. Aceves then began screaming for defendant to stop, but he continued hitting Wright. Soon, Wright stopped screaming and moving, but defendant continued hitting her.
Aceves further testified that during this time, Chavez entered the living room and screamed for defendant to stop, and then yelled for the neighbors to call the police. Aviles then entered the living room and tried to get the hammer away from defendant. Defendant struck Aviles with the hammer, bloodying his face. Aviles then ran outside to call for help. Shortly thereafter, defendant left the apartment and chased Aviles down the street with the hammer. He then returned to the apartment and resumed hitting Wright with the hammer. Chavez screamed at him to stop and to leave Wright alone. Defendant then took the hammer and went behind the apartment, and soon returned without the hammer. At that point, police arrived, and defendant walked toward them with his hands raised and was taken into custody.
Jessica Chavez testified as follows. When she and Alfredo Aviles arrived at Wright's apartment on March 12, 1995, Wright was talking with defendant on the front porch. Wright then began giving defendant bags of clothing. Because defendant believed one of his jackets was missing, he went around to the basement to look for it. When he came back, he told Wright he needed money, and then became upset because she said he could not have a television and videocassette recorder from the apartment. He then asked for some cassette tapes. Wright told him to wait outside and she would get some of the cassettes for him, but defendant then followed Wright as she went inside.
A short time later, Chavez heard her daughter, Monica Aceves, screaming, "You're killing her." Chavez then looked in the living room and saw defendant holding Wright on her upper back and hitting her with a hammer. Chavez recognized the hammer as one she had laid on the floor after hanging some pictures for Wright. Chavez screamed at defendant to stop and yelled to Aviles to come help Wright. After Aviles entered the living room, Chavez saw him fall over the couch with his face bloody. She then yelled for Aviles to leave and get help. After Aviles left, defendant continued swinging the hammer at Wright. Chavez again told defendant to stop. Defendant yelled at Chavez and Aceves to leave the house. Defendant then ran out of the apartment with the hammer and went towards the pay phone which Aviles was using. Aviles then fled and defendant chased him for a short while. Defendant then returned to the apartment and resumed hitting Wright on the head with the hammer. Soon, defendant ran outside and went behind the apartment with the hammer. When he returned, he did not have the hammer.
Jose Alfredo Aviles testified as follows. On March 12, 1995, he went to Janice Wright's apartment with Jessica Chavez. Upon arriving, he went to the front porch and stood there. After some time, he heard a woman screaming. He went to the front door of the apartment and saw Wright lying on the floor motionless and defendant standing over her, hitting her. When Aviles tried to stop defendant from hitting Wright, defendant hit Aviles in the head with something, drawing blood immediately. Aviles then ran out of the apartment to a pay phone and called for help. ...