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People v. Jackson

March 26, 1998


The opinion of the court was delivered by: Justice McMORROW

On June 23, 1988, defendant was convicted in the circuit court of Cook County of four counts of murder, one count of attempted murder, one count of aggravated battery of a child, five counts of home invasion, five counts of armed robbery, and one count of residential burglary. The State requested a death penalty hearing. The jury found defendant eligible for the death penalty on the basis of three statutory aggravating factors and, after considering aggravating and mitigating evidence, found that there were no mitigating factors sufficient to preclude imposition of the death sentence. The circuit court sentenced defendant to death on the murder conviction and ordered prison sentences for the nonmurder convictions. We affirmed defendant's conviction and death sentence on direct appeal. See People v. Jackson, 145 Ill. 2d 43 (1991). Defendant petitioned the United States Supreme Court for a writ of certiorari, which the Court granted. The Court then vacated our judgment and remanded the cause to this court for further consideration in light of Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992). See Jackson v. Illinois, 506 U.S. 802, 121 L. Ed. 2d 5, 113 S. Ct. 32 (1992). On September 26, 1992, this court affirmed defendant's convictions and non-death sentences, and vacated defendant's death sentence. We remanded the cause to the circuit court for a new sentencing hearing in accordance with Morgan. On remand, the jury again found defendant eligible for the death penalty on the basis of three aggravating factors, and found no mitigating evidence sufficient to preclude imposition of the death penalty. The trial court entered a death sentence. That sentence is the basis of this appeal. We affirm.


The evidence presented at defendant's trial and first sentencing hearing is set forth fully in our opinion in defendant's direct appeal of his first death sentence. People v. Jackson, 145 Ill. 2d 43 (1991). The eligibility phase of the second sentencing hearing began in September 1995. The first witness to testify was Urica Winder. She was 14 years old at the time of the second sentencing hearing. She testified that on September 24 and 25, 1986, she lived at 1850 West Washington Boulevard in Chicago with her mother (Vernita Winder), her two younger sisters (Dana, then four years old, and Shonita, or "Nicki," then 18 months old), her mother's boyfriend (Mark "Tiny" Brown), and her mother's friend (Shirley Martin). Urica was six years old at the time the crimes were committed. The apartment they shared had two bedrooms, a living room, a kitchen, and a washroom.

Urica testified that on the evening of September 24, there was a knock on the front door of the apartment. When she asked who it was, she heard someone say "Bobby." Upon opening the door, Urica saw two men: Bobby Driskel and defendant, both of whom Urica knew. They entered the apartment, and Urica went to bed in the children's bedroom. Shortly thereafter, her mother entered the children's bedroom and took Urica and Dana from that bedroom into her own. Shirley Martin was apparently also in the second bedroom.

Urica soon saw defendant and Driskel enter the second bedroom. Shirley was standing near defendant and said to him, "I love you. Don't kill me." Defendant responded, "Well, I don't love you" and stabbed her in the chest. Driskel then approached Urica, holding a butcher knife in his right hand and a pen in his left hand. He told Urica, "I'm not going to mess with you." He then started stabbing Urica in the stomach with the knife. Urica testified that Driskel eventually stopped stabbing her, and "dug guts out with the pen." When asked to elaborate, Urica said that "he took the pen and just started digging" in "the lower part of her stomach." Driskel then left the bedroom.

Urica then saw only Shirley in the bedroom. In an attempt to flee, Urica ran out of the bedroom toward the front door and unlocked it. Before she could leave, she heard defendant call Driskel's name from the washroom, and Driskel grabbed Urica by the feet, dragged her back into her mother's bedroom, and started stabbing her again with the knife. Urica could not say how many times he stabbed her. While he was stabbing her for the second time, Urica "played dead," by rolling her eyes up and stopping breathing. Driskel then stopped stabbing her. She testified that he then began searching the dressers and shelves, and said "Damn, ain't no money." At some point Driskel and defendant left the apartment. Urica testified that she "played dead" until morning, when she got up off of her mother's bedroom floor and went to get a drink of water. She then saw Shirley's bloody body lying on the bedroom floor, and Tiny's bloody body on the couch. Tiny's foot was cut off. She saw Shonita lying on the couch. Dana's bloody body was on the floor near the kitchen, and her mother's bloody body was lying behind the kitchen table.

At this point, according to the testimony of Urica and Tamico Winder, Tamico called the victims' apartment. Tamico is Urica's cousin and lived in the same building as the victims. Urica answered the phone, and Tamico asked to speak to her mother. Urica said she could not wake her mother up. Tamico then went to the apartment, where she first saw Urica. Urica told her that "Tiny's cousin Bobby" did it. Tamico entered the apartment and saw Vernita, Dana, Tiny, and Shonita. All but Shonita were dead. Urica had blood all over her, and had something red coming out of her stomach near her navel. Tamico then went to get help. An ambulance came and took Urica to the hospital, where, she said, she stayed "for a long time." The police visited her in the hospital and showed her some photographs. She identified photos of Driskel and defendant for the police.

The next testimony was presented via transcript from defendant's trial. The witness, Phillip Simms, testified that on September 25, 1986, Bobby Driskel, whom Simms knew, came to his apartment and offered to sell Simms a TV and a VCR. Simms said that he would need to see the TV and VCR. Driskel then went to a car parked in the alley, where Simms saw two other figures. Within five minutes, Driskel returned with a tall black male whom he identified as his uncle, O.C. Driskel was carrying the VCR and O.C. was carrying the TV. Simms agreed to pay $120 for both. Simms identified two exhibits as the TV and the VCR, as well as the remote control for the TV and a tape that had been inside the VCR.

Dennis Keane, a Chicago police department detective, testified that in the morning of September 25, 1986, he received an "assignment" of four dead persons at 1850 West Washington Boulevard and one additional victim on the way to Cook County Hospital. He and Detective Peterson went to the victims' apartment. There they found the dead bodies of Tiny, Dana, Vernita, and Shirley, as well as three bloody knives.

Later that day, Keane learned that Driskel, and then defendant, were in custody. Both Keane and Michael O'Donnell, then an assistant State's Attorney, testified that they met with defendant that evening. At that time, defendant had stains on his shorts and on his shirt which Keane believed were bloodstains. Defendant also had cuts on his hands and on his left forearm. Keane and O'Donnell asked defendant if he knew anything about the homicides at 1850 West Washington, and defendant said that he did not. When asked about the cuts on his hands, defendant said that he had been smoking cocaine the night before when the pipe exploded, cutting his hands. Later that evening, defendant made a second statement, in which he said that he and Driskel had been smoking cocaine at defendant's apartment the previous night, when they ran out of cocaine. They had no money, and attempted to borrow money from friends and family members. When that was unsuccessful, Driskel said that his friend Tiny had a TV, VCR, and some money, and so defendant and Driskel planned to go to Tiny's home. They arranged for O.C. Roland to drive them there. When they got to the victims' building, defendant and Driskel went upstairs to Tiny's second-floor apartment. Driskel knocked on the door, and a woman answered. Driskel asked for Tiny, but the woman said that Tiny was sleeping. Driskel then asked to use the bathroom, and both entered the apartment, with Driskel heading to the bathroom and defendant remaining by the door. When Driskel came out of the bathroom, defendant said to him, "What are you going to do?" At that point, Driskel took a knife and stabbed Tiny in the chest. When Tiny jumped up and started to resist, defendant assisted Driskel in stabbing Tiny. Meanwhile, everyone else in the apartment retreated to a back bedroom. They were trying to hold the door shut, but defendant forced it open. At this point, as O'Donnell paraphrased defendant's statement, "People started running out. grabbed the people, or they killed the people that were running out of the back bedroom of this apartment." Defendant and Driskel took a TV and a VCR from the apartment, put them in Roland's trunk, and sold them. They used the proceeds to buy cocaine.

After defendant finished his statement, O'Donnell asked him to give a court-reported statement, and defendant agreed. A court reporter arrived at 11 p.m., and O'Donnell again asked defendant about the events of the previous evening. In the court-reported statement, which O'Donnell read to the jury, defendant said that Driskel is his brother-in-law, and that Roland is his uncle; that on September 24, Roland drove Driskel and defendant to 1850 West Washington, and that Driskel gave him directions; that they were planning "to kill Tiny," Driskel's cousin, to get money, a VCR, and a TV; and that they had two knives. From there, the version of events is essentially the same as O'Donnell first described: they knocked on the door, a woman answered, Driskel used the washroom, defendant asked him what he was going to do, and they both killed Tiny. Defendant forced open the bedroom door and, he said, "ne of them ran out, and one was still in there. That's the one I stabbed." Defendant said that "the one stabbed" was a "grown-up lady." He also stated that he and Bobby both stabbed "Tiny's girlfriend." When asked what happened to the children, defendant said "ne of them ran out when I got through killing his mother. He said, `mama, mama.' That's when Disco grabbed it and put his hand over the kid's mouth. I turned around. When I turned back around, the kid was laying on the floor dead." Defendant said that he and Driskel took a TV and VCR and put them in Roland's car; that he was bleeding because he accidentally stabbed himself; that they sold the goods to "some stud"; and that they went to the "cain spot." The court reporter then transcribed his notes. Defendant read the statement, made a few corrections with a pen, and signed the statement. O'Donnell and Keane also signed it. O'Donnell testified that defendant did not appear to be under the influence of drugs or alcohol at the time. Keane showed defendant the TV and VCR recovered from Phillip Simms, and defendant identified them as the property that he and Driskel had taken from the victims' apartment. During the interview, Keane asked defendant if he was under the influence of drugs, and defendant said that he was not. Keane testified that there was nothing about defendant while he was at the police station that would have indicated that he was under the influence of drugs.

On cross-examination, Keane testified that he traveled to defendant's home on the afternoon of September 25, but did not find defendant there. Defendant went to the police station on his own. In one of defendant's statements (it is not clear which), he told Keane that he had ingested cocaine on the night of the incident. Neither Keane nor O'Donnell ever arranged to have urine or blood tests done to determine the amount of alcohol or drugs in defendant's body. Keane also asked defendant if the cuts on his hands and forearm were causing him pain, and defendant said they were not.

The next witness was Dr. Nancy Jones, an assistant medical examiner for Cook County. She testified regarding the report of Dr. Robert Stein, who had been chief medical examiner in September 1986, who performed the autopsies of Tiny, Vernita, Dana, and Shirley Martin, and who was since deceased. She identified the autopsy reports of each of the four murder victims. She testified that, according to these autopsy reports, Vernita Winder had received a total of 69 "sharp injuries" (or stab wounds); Dana Winder had received a total of 19 sharp injuries; Tiny had received a total of 29 sharp injuries; and Shirley Martin had received a total of 21 sharp injuries. Dr. Jones also testified that none of the injuries suffered by any of the four murder victims would have been sufficient to cause death immediately, because each victim died as a result of blood loss from multiple stab wounds. On cross-examination, Dr. Jones testified that she could not say who had been wielding the knife that killed each victim, and could not say for certain whether any wounds were suffered post-mortem.

Robert Pecha was the next witness for the State. He testified over defendant's objection that in June 1988, he served as the foreperson of the jury in defendant's murder trial. He identified the 17 verdict forms on which he and the other 11 jurors found defendant guilty of the 17 charges. These charges included four counts of murder. After Pecha's testimony was concluded, both the State and defendant rested, and made their closing arguments on the issue of eligibility. The jury then found defendant eligible for the death penalty on the basis of three aggravating factors: multiple murder; felony murder of Vernita Winder, Mark Brown, and Shirley Martin; and murder of a child, Dana Winder, under the age of 12 in an exceptionally brutal and heinous fashion.

The court then proceeded with the aggravation/mitigation stage of the sentencing hearing. The State presented several witnesses who testified regarding other crimes committed by defendant. These included a 1980 robbery in which defendant threatened to kill the arresting officer. Defendant was convicted of robbery and sentenced to three years in prison for this incident. A former assistant State's Attorney testified that in 1981, while serving that sentence at a halfway house, defendant signed out for a furlough and failed to return. Defendant was charged with "failure to return," pled guilty, and was sentenced to two additional years. A police officer testified that he arrested defendant in 1980 for firing a shotgun in an alley. Finally, a Chicago police officer testified that in 1985, Vincent Rowe, defendant's cousin, told him that defendant had burglarized his apartment. Rowe said that Barbara Young, another resident of his building, had told him that she saw defendant carrying a television down the stairs. Rowe also said that he saw defendant leaving his building, and gave defendant's address to the officer. A group of officers then went to defendant's house and placed defendant under arrest. They found that he was carrying a kitchen knife. Barbara Young later identified defendant as the man she had seen carrying a television down the stairs. The officer testified that the State ultimately dismissed the charges against defendant for this incident. He explained that the dismissal was because Vincent Rowe declined to prosecute, and because Barbara Young was ill and unable to go to court.

Linda Hynek testified that she is a probation officer in Cook County. In 1987, she was asked to do a pretrial investigation on defendant. She interviewed defendant in October 1987. He told her that he did not finish high school, but received his GED while in prison. He said that he never used alcohol, and that he began using drugs at the age of nine. He said that he had smoked marijuana, smoked cocaine, smoked "happy sticks" (marijuana cigarettes laced with PCP), snorted heroin, and taken cough syrup laced with speed. He also said that since getting out of the penitentiary in 1983, he had used drugs "only occasionally." He told her that he did not have a drug problem and had never sought treatment for drug addiction. He also told her that he had never worked, and that he supported himself by selling drugs. On cross-examination, Hynek testified that defendant told her that his father had left home when defendant was very young, and that he had been hit in the head with a baseball bat when he was 22. He never told her that anyone in his family was an alcoholic, and he never discussed whether he was beaten as a child or whether he ever saw his mother being beaten.

Because defendant's prison disciplinary record is of particular relevance to defendant's disparate sentence, we examine the evidence of his conduct while in prison in some detail. Kelly Byrne, a corrections officer at the Cook County jail, testified that in January 1986, she was working in an area of dormitories within the jail. She heard talking in the dorm and entered the room. She found defendant and several other inmates out of their beds, in violation of the rules. When she instructed defendant to go back to his bed, he climbed onto his bed and started to masturbate while looking at her. She filed a disciplinary report, charging him with intentional sexual misconduct. After that, he was sent to segregation for a few days. When he returned to Byrne's area, his behavior was very similar, and he exposed himself to her almost every night. She testified that she did not report those incidents because they were not very serious. Byrne also testified that, just before defendant's release from prison in June 1986, he approached her and said, "I will get you. I will find you and I will get you." On another day shortly before defendant's release, he approached Byrne and asked her "how little girl was doing." Byrne explained that she had an 18-month-old daughter at the time, and that defendant's tone was "very threatening." Byrne then found out defendant's release date and, after his release, began carrying a weapon when off-duty and taking different routes home from work. She also taught her baby-sitter how to use the weapon. Byrne did not file disciplinary reports of these two incidents. She never saw defendant outside of the jail.

Joseph Knowles, head of the inmate disciplinary hearing board at the Cook County jail and keeper of records for the Cook County department of corrections, testified that defendant was the subject of 10 disciplinary reports in the period from November 16, 1985, to April 29, 1986. These included several incidents of fighting, including one in which defendant threw a chair at another inmate; an assault on another inmate; and one incident of intentional indecent exposure (the same incident described by Byrne). In the period from November 5, 1986, to November 8, 1987, defendant was the subject of 10 additional disciplinary reports. These included two reports for fighting with other inmates; one for possession of a weapon, a "shank"; and one for assault on a corrections officer.

Knowles testified that on April 25, 1988, defendant was told by a corrections officer to turn around, so that the officer could search him. (It appears from the record that Knowles may have misstated this date, though defendant did not object.) Defendant refused and told the guard, as the report describes, "that he and his people *** will kick reporting officers ass and any other officers who came to Wing 2-J. At this time, called to the other inmates to kick their ass. Reporting officer then called for several more officers, and after searching inmate Jackson, reporting officer found a sharpened metal object thought to be a weapon." On the day of this incident, the superintendent of the prison wrote to Director Glotz to request that defendant be transferred to "increased maximum security." He explained that defendant had been housed in segregation six times in the previous eight months, and had just "attempted to incite a riot among the Vice Lords on Wing 2-J." Knowles testified that the Vice Lords are a Chicago street gang.

Knowles testified that defendant was the subject of 16 disciplinary reports between March 4, 1993, and September 12, 1994. In one incident, a female corrections officer twice ordered defendant to "lock up." Both times he refused, and followed the second refusal by threatening the officer using extremely abusive language. He then approached the bars and reached through, attempting to grab the officer. In an August 1993 incident, at which Knowles was personally present, a riot broke out in a wing of the jail. Defendant armed himself with a three-foot-long steel rod. After authorities ordered the prisoners to cease rioting, and the prisoners refused, the officers stormed the wing. The prisoners, including defendant, fought the officers. Defendant fought until he was subdued by three or four officers and a dog.

On December 5, 1993, defendant was charged with arson for setting a fire in the jail. On December 6, 1993, defendant was charged with possession of five shanks. On August 15, 1994, an officer reported a disturbance from a number of cells. When he opened defendant's cell, defendant punched the officer. None of defendant's violations involved possession of drugs. Knowles testified that, in his 27 years as a corrections officer, he had come into contact with about one thousand prisoners, and that defendant would rank fourth in terms of dangerousness among that group of prisoners.

On cross-examination, Knowles testified that defendant had never been charged with murder, sexual assault, or stabbing a guard while in jail, and that the State had never charged him with a criminal offense for conduct while in jail. With regard to the December 1993 arson charge, Knowles testified that defendant was in a two-person cell at the time, and that the fire had been set outside of the cell. The disciplinary report did not indicate that anyone saw defendant set the fire, and defendant denied setting it. With regard to the August 1993 riot, Knowles admitted that the disciplinary report did not indicate that defendant was armed with a weapon. With regard to the superintendent's request of Director Glotz that defendant be moved because he had "attempted to incite a riot," Knowles testified that no riot materialized, despite defendant's exhortations.

Jimmy Utley, the keeper of records for the Illinois Department of Corrections, testified about the disciplinary records contained in the Department of Corrections' master file on defendant. He testified that defendant was in the Illinois Department of Corrections twice. He was in Pontiac Correctional Center from January 18, 1982, to November 15, 1983, when he was paroled. During that first period of incarceration, defendant was found to have committed 58 violations of institutional rules. These included the 1981 failure to return; numerous incidents of insubordination toward corrections officers; possession of a shank in August 1982; and a February 1983 incident in which he threatened to kill a prison schoolteacher.

Defendant's second term in the Illinois Department of Corrections was from September 8, 1988, to January 5, 1993. In that period, defendant was found to have committed 38 violations of institutional rules. These included an October 1989 incident in which defendant refused to follow an officer's orders, and then threatened and assaulted him; another October 1989 incident in which corrections officers were removing another inmate from his cell, and defendant began pelting the officers with shoes, trash, and feces while using abusive language; a November 1989 incident in which defendant threw a meal tray at an officer and threatened him; a March 1990 incident in which defendant threatened and assaulted a guard; an April 1990 incident in which defendant threw a mirror and some boxes at an officer; an April 1991 incident in which defendant was found to possess a shank; another April 1991 incident in which defendant masturbated in the hatch of his cell while a female officer was present; yet another April 1991 incident in which he assaulted a corrections officer; a July 1991 incident in which defendant slammed a gate on an officer's arm; a November 1991 incident in which defendant masturbated out the hatch of his cell in the presence of a female officer; two January 1992 incidents in which defendant threw items at guards and then threatened them; a June 1992 incident in which two shanks were found in defendant's cell; a June 1992 incident in which defendant threatened to kill an officer while holding a metal stool; a July 1992 incident in which defendant assaulted an officer; an August 1992 incident in which defendant assaulted a guard; a September 1992 incident in which defendant threw a mirror at an officer, requiring the officer to get stitches; a November 1992 incident in which defendant threw hot liquid on another inmate, burning him; and numerous other incidents of insubordination. Utley also identified an April 29, 1991, memo from a Lieutenant Shettleworth to Louis Lowery in which Shettleworth explained defendant's recent conduct and the difficulty that corrections officers were having in moving him because he refused to comply with their orders and would drag them around while handcuffed. Defendant was "well over" three hundred pounds. Utley testified that none of the reports indicated that defendant was under the influence of drugs at the time, and that he was never reported for possession of narcotics.

On cross-examination, Utley testified that he had never met defendant. He also testified that a number of defendant's disciplinary reports were for putting up a curtain in his cell so that one could not see the toilet in defendant's cell. Other violations for which defendant was reported included taking extra portions of food, wearing shower shoes to the dining hall, and refusing to take off a homemade hat. Utley testified that, except for the failure to return, defendant was not charged criminally for any of his conduct while incarcerated. He admitted that on a December 1981 "supplemental program consideration report," defendant is described as "not *** aggressive." A March 1981 report found that defendant was "not viewed as aggressive and appears at this time [to be] cooperating with institutional personnel." Utley admitted that numerous data summary reports (dated from September 1988 through 1992) each indicate that defendant denied having any gang affiliation when asked.

The State then recalled Joseph Knowles. He testified that in a December 1993 disciplinary report, defendant was charged with possession of a weapon and "gang activity." Knowles then testified that, in his previous testimony, he had related the portion of the report which indicated that officers had uncovered a shank in a search of defendant's cell. However, he had not related the portion of the report which indicated that the search had also uncovered a letter with "gang literature." The hearing board found defendant guilty of both possession of a weapon and gang activity. Knowles also testified that, in a July 1987 report, defendant was charged with fighting and gang activity. The latter charge was the result of a search of defendant's cell after the fight, in which officers found a copy of the "prayer" of the Conservative Vice Lords. That "prayer" was attached to defendant's file. He was found guilty of both fighting and gang activity. On cross-examination, Knowles admitted that the 1987 charge was in fact "gang items," and that the gang literature from the 1993 incident was not preserved or made part of defendant's file, though it should have been. The "literature" from the 1993 charge was a letter. Knowles could not say whether it was a letter someone had sent defendant, though he admitted that if someone sent an inmate a letter relating to gangs, that inmate would be held responsible for the contents of the letter.

Dr. Demetra Soter was next to testify in aggravation. Dr. Soter is a member of the pediatric trauma unit at Cook County Hospital. She testified that, on the morning of September 25, 1986, she was paged and found Urica Winder in the trauma unit. She was conscious, though pale, with "open sucking chest wounds on both sides of her chest," her lungs were visible, and her "belly laid open with part of her intestines hanging out." She was in shock, with low blood pressure and high pulse. Though Urica seemed to be in pain, Dr. Soter testified that she could not be given any medicine to relieve the pain, because it would have further lowered her blood pressure. Urica was in the trauma unit for an hour, while doctors attempted to stabilize her for the operating room.

When Urica finally went into the operating room, the doctors found wounds to her heart, diaphragm, lungs, small intestine, liver, and aorta. Dr. Soter testified that the doctors performed an appendectomy on Urica, even though she did not have appendicitis. She explained that the scarring left by the stab wounds and surgery would be so severe that it would be impossible for anyone to cut her stomach open again. Thus, if she were ever to get appendicitis, it would have been impossible for anyone to operate on her, so the doctors removed her appendix. Urica was given a colostomy, and she had at least 18 tubes and drains inserted in her body. During the surgery, Urica's vital signs dropped five times, and she was given a great deal of blood. Her condition after surgery was critical, and Dr. Soter did not expect her to survive.

In the days after the surgery, doctors continued treating Urica heavily. She had to have the dressings on her bowels changed three times each day, and this was very painful for Urica. She had to continue changing these dressings for three months. She was in the hospital for a month. The doctors found 48 scars on Urica, but Dr. Soter estimated that Urica had been stabbed 42 times, and that six of the scars were "through and through" scars. Urica's permanent injuries include the external scarring; the internal scarring which would complicate any surgery she required; and a propensity for bowel obstructions. Dr. Soter asked Dr. Mary Fabri to provide therapy to Urica.

On cross-examination, Dr. Soter testified that Urica was referred to a psychologist (Dr. Fabri) because Urica would need a support system to explain what had happened. Dr. Soter explained that "it is important for victims of violence, abuse, to have a support system." On redirect examination, Dr. Soter testified that, when she asked Urica who stabbed her, she replied "Tiny's cousin," and later told her that "Pumpkin" was with him. She also corrected her previous testimony, saying that there were 46 scars that were the result of stabbing, so Urica was stabbed 40 times.

After a recess, Joseph Bennett, a deputy Cook County sheriff who was working as a courtroom security officer at the time of defendant's sentencing hearing, was called to testify about events that occurred during the recess. He testified that just before the recess, he noticed that defendant had a paperclip in his hand. While Bennett was escorting defendant out of the courtroom, he saw defendant place the paperclip in his pocket. Bennett's partner asked defendant to stand against the wall and defendant refused, and then pushed Bennett against the wall. At that point, Bennett and his partner attempted to restrain defendant, and the three men were involved in a scuffle that lasted for about 15 minutes. Bennett suffered lacerations on his cheek and mouth. It eventually took more than 10 deputy sheriffs to restrain defendant. When defendant was finally handcuffed, he threatened the officers. After this testimony, the State rested.

Dr. James O'Donnell, an expert in the fields of pharmacology and pharmacy, testified that he had been retained to examine defendant and render findings in his fields of expertise. He testified that his research of defendant's case included: a 1988 interview with defendant; a review of police reports; a review of transcripts of his earlier testimony (apparently from defendant's first sentencing hearing); a review of transcripts of Roland's testimony and statement to police; an interview with Mr. and Mrs. George Rowe; and a review of some educational materials on the effect of drugs on the brain. Dr. O'Donnell testified about the effects of heroin, cocaine, PCP, and alcohol. Of particular relevance was his testimony that, with chronic use, cocaine can cause paranoic reactions, fear, increased tendency towards violence, increased impulsivity, and rage reactions, and, in severe cases, can cause psychiatric reactions. A cocaine high also leads to strong cravings for more cocaine. Dr. O'Donnell also testified that PCP can create horrible hallucinations in users, and that alcohol releases inhibitions. The effects of alcohol add to the effects of any other drugs in a person's system.

With regard to defendant's condition on the night of the murders, Dr. O'Donnell testified that defendant told him that he had used cocaine and heroin over a period of several hours, and that Roland told him that he and defendant had also used PCP, alcohol, and perhaps marijuana that night. He said that the Rowes told him that defendant was giddy and visibly high. Defendant reported to him that, while he was growing up, he had used cough syrup laced with sleeping pills, cocaine, heroin, and PCP. Defendant's drug usage started when he was 10, and he claimed to have been using cocaine, heroin, and PCP on an "almost daily" basis as a "young adult." Defendant also told O'Donnell that he was able to obtain cocaine, heroin, PCP, marijuana, and "speed" while incarcerated. On the basis of these facts, Dr. O'Donnell opined that defendant was "intoxicated and impaired by PCP, cocaine, and heroin" at the time of the murders. By "impaired," Dr. O'Donnell explained that he meant that the brain's ability for thinking, mood, judgment, behavior, and perception would have been diminished; that there would have been a loss of control; and that tendencies toward impulsive and violent behavior would have been enhanced.

On cross-examination, Dr. O'Donnell testified that, during their interview, defendant told him that he was "always stealing things" to buy drugs; that he made a living selling heroin and cocaine, and had started at age 15; and that "if he had no money, [he would] stick somebody up." When Dr. O'Donnell asked defendant what happened the night of the murders, defendant said that his memory was fuzzy and that he could not really remember. Dr. O'Donnell stated that his opinion was based largely on defendant's own statement that he was high. He also admitted that, based on statements by Roland and Driskel, defendant might not have ingested either alcohol or PCP before the murders. Dr. O'Donnell admitted that, while defendant told him that he considered himself a drug addict, O'Donnell did not know that defendant had told a probation officer that he did not have a real problem with drugs. Moreover, he conceded that this last statement by defendant did not comport with defendant's statements to him.

Dr. Michael Gelbort, an expert in the fields of psychology and neuropsychology, testified in mitigation that he had been retained to evaluate defendant. To this end, he interviewed defendant, examined him, and looked at the results of a number of tests. On the basis of this data, Dr. Gelbort concluded that defendant's brain functions are "abnormal." Defendant shows "a general diffuse pattern of cognitive deficits" in "a number of different areas having to do with learning, memory, judgment, intellect." They include a "fairly significant learning disability." Dr. Gelbort identified the source of this problem as a head injury while young, a difficult pregnancy, or a congenital problem. He said that defendant told him of two or three fairly significant head injuries. Defendant told him that he used alcohol, though not heavily, and that he used cocaine, marijuana, and PCP. Defendant's school records contained mostly failing grades.

Dr. Gelbort relied on a number of tests which were performed on defendant. The intelligence test showed that he has a verbal IQ of 80, a performance IQ of 80, and a full scale IQ of 78. Dr. Gelbort explained that the range of 80 to 89 is "low average," while the range of 70 to 79 is "borderline mentally deficient." He also found that defendant's powers of attention and concentration, while not completely impaired, were less than normal. Defendant also seemed to have an "abnormal function level" of memory. Generally, Dr. Gelbort identified defendant's problems as lying in the frontal lobes of his brain. In sum, he opined that defendant suffers from abnormalities in "the frontal lobe function" and "a high diffuse brain kind of problem." He explained that these problems would probably lead to impaired reasoning and problem-solving, and reduced ability to control inappropriate behavior.

On cross-examination, Dr. Gelbort testified that he personally had spent about one hour with defendant. He stated that his opinion was based on the interview, the testing of defendant, and certain of defendant's records. He admitted that defendant had not been completely truthful with him, that he could not be sure that defendant was honest in answering questions that were part of the testing, and that defendant would have a motive to be less than truthful so that he would appear less blameworthy. Finally, Dr. Gelbort stated that he had not concluded that defendant did not know the difference between right and wrong. On redirect examination, Dr. Gelbort noted that defendant has a GED.

Defendant also presented the testimony of several family members. His former sister-in-law testified that defendant feels remorse for the killings. George Rowe, Jr. (defendant's cousin), Alicia Jackson (defendant's sister), and Donald Jackson (defendant's brother) testified about defendant's family life as a child. Each testified that the family lived in a series of dilapidated homes which often were unheated and garbage-strewn, and that defendant's mother (Irene Jackson) had several boyfriends and a brother who would beat defendant. These included one boyfriend named Melvin who would tie defendant to a chair and whip him with an extension cord which had been placed in boiling water. They also testified that defendant's mother was an alcoholic. George and Alicia admitted having testified at defendant's first sentencing hearing in 1988, and not mentioning the abuse suffered by defendant in that testimony. Rowe testified that he was never asked in 1988 whether defendant had been abused. Alicia explained that, at defendant's first sentencing hearing in 1988, she testified only about defendant's personality, and did not mention the abuse he suffered. When defense counsel for the second sentencing hearing contacted her, counsel asked her whether the reports that defendant had been abused were true. Alicia initially disagreed. On cross-examination, Alicia admitted that her 1988 testimony did not include mention of Melvin's beating her mother or defendant. She explained that she had testified that her childhood was "okay" and "normal," but had done so only because that was what she "wanted to believe."

Irene Jackson, defendant's mother, testified that she and defendant's father separated in 1970, when defendant was seven years old. After they separated, neither Irene nor defendant had any contact with defendant's father. Defendant would occasionally ask about his father, and wondered why he never came to see him. She testified that defendant never graduated from elementary school. On cross-examination, she testified that Melvin lived with the family for only a short time and never disciplined defendant, and that defendant had never had a job.

On rebuttal, the State introduced a stipulation that, if called to testify, John Atiles, a Chicago police officer, would testify that on October 22, 1985, he responded to a call that George Rowe and Vincent Rowe had committed battery on defendant, and that both George and Vincent were arrested for battery. The State then rested. After closing arguments, the jury returned a verdict finding no mitigating factors sufficient to preclude the imposition of the death penalty. Defendant subsequently filed a motion for a new sentencing hearing, which the trial court denied.


Defendant raises 14 issues on appeal. We consider each issue separately.

I. Reverse-Witherspoon

Defendant argues that he should have been allowed to voir dire the potential jurors on whether they would always vote for the death penalty if certain statutory aggravating factors were present. The State argues that, under our prior decisions, the trial court's voir dire questioning adequately protected defendant's constitutional right to "life-qualify" potential jurors.

A defendant has the right to "life qualify" the jury by having potential jurors asked if they would automatically vote for the death penalty in any case in which the defendant was found guilty of murder. In Morgan v. Illinois, the United States Supreme Court noted its prior holdings that the sixth and fourteenth amendments require an impartial jury, that jurors who would not vote for the death penalty in any case are not impartial jurors, and that the State may challenge such jurors for cause. See Morgan v. Illinois, 504 U.S. 719, 726-34, 119 L. Ed. 2d 492, 500-06, 112 S. Ct. 2222, 2228-32 (1992), citing, inter alia, Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968). Following this reasoning, the Court held in Morgan that the converse is also true: that " juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do." Morgan, 504 U.S. at 729, 119 L. Ed. 2d at 502, 112 S. Ct. at 2229. The Morgan Court found that, because such a juror has already formed an opinion on the merits of the case, he would not listen to the aggravating and mitigating factors in making a decision, and that juror cannot satisfy "the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment." Morgan, 504 U.S. at 729, 119 L. Ed. 2d at 502-03, 112 S. Ct. at 2229-30. For this reason, a defendant may challenge for cause any juror who would automatically impose the death penalty upon conviction. Morgan, 504 U.S. at 729, 119 L. Ed. 2d at 503, 112 S. Ct. at 2230.

This court has reviewed two cases in which the scope of the voir dire questions under Morgan was an issue. In People v. Hope, 168 Ill. 2d 1 (1995), the defendant was convicted of murder for an accomplice's shooting of a McDonald's employee during an armed robbery. The defendant had shot and killed a police officer while fleeing the McDonald's, and was convicted of that murder in a separate proceeding. As a result of the prior conviction, and the fact that the defendant was over the age of 17 at the time of the offense, the jury in the McDonald's murder conviction found him eligible for the death penalty under the multiple-murder eligibility factor. See 720 ILCS 5/9-1(b)(3) (West 1994). The jury then sentenced the defendant to death. The defendant challenged his conviction and sentence on a number of grounds, including the scope of the Judge's voir dire questions. The Judge had asked all potential jurors "whether they would automatically vote to impose death if they should convict the defendant of murder." Hope, 168 Ill. 2d at 29. The trial court refused the defendant's request to ask 10 other reverse-Witherspoon questions. The defendant challenged the court's denial with respect to all 10, though he focused on the last two. The two key questions both asked "whether the potential juror would automatically vote to impose the death penalty if the jury should convict the defendant of murder and if they should be told that he was eligible for death because he had been convicted of another murder." Hope, 168 Ill. 2d at 28. This court upheld the trial court's refusal to ask these additional questions. It interpreted Morgan as holding "only that the defendant is entitled to have potential jurors questioned as to whether they would automatically vote to impose the death penalty upon a finding of guilt, without regard to the aggravating or mitigating circumstances present in the case." (Emphasis in original.) Hope, 168 Ill. 2d at 29. The court noted that the trial court complied with this mandate. "The further questioning desired by the defendant, inquiring into how the venire members would act given a particular aggravating factor, i.e., the murder conviction, is clearly not required by Morgan. To the contrary, Morgan specifically directed its holding toward the end of discovering jurors for whom `the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant.' [Citation.] Conducting inquiry into whether a potential juror would vote to impose the death penalty, given a particular set of circumstances, is thus not required by Morgan." (Emphasis in original.) Hope, 168 Ill. 2d at 29-30, quoting Morgan, 504 U.S. at 729, 119 L. Ed. 2d at 502-03, 112 S. Ct. at 2229.

In People v. Brown, 172 Ill. 2d 1 (1996), the defendant was convicted of three counts of murder. The victims were a mother and her two children, ages two and three. The defendant was found eligible for the death sentence because he had been found guilty of murder of a victim under 12 years of age and "the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty." 720 ILCS 5/9-1(b)(7) (West 1994). The jury sentenced him to death. He challenged his conviction and sentence on a number of grounds, including the Judge's voir dire questions. The trial court had refused a question submitted by the defendant: "If you sign a guilty verdict convicting Anton Brown of first degree murder of a two-year-old child, a three-year-old child and their mother, would you be able to consider reasons not to impose the death penalty, or would you automatically impose the death penalty?" Instead, the Judge merely asked whether any of the jurors " `would automatically impose the death penalty,' " and, later, whether any of the jurors " `would always vote for the death penalty.' " Brown, 172 Ill. 2d at 30. This court upheld the trial court's refusal to ask the question proffered by the defendant. Citing the decision in Hope, the court found that Morgan entitles a defendant only to have prospective jurors "questioned as to whether they would automatically vote to impose the death penalty upon a finding of guilt, without regard to the aggravating or mitigating circumstances present in the case." Brown, 172 Ill. 2d at 30. The court held that the question submitted by the defendant, which asked whether a juror would automatically impose the death penalty given the aggravating circumstances present in the case, was clearly not required by Morgan. Brown, 172 Ill. 2d at 31. Rather, it held, Morgan requires that courts attempt to expose jurors who will vote to impose the death penalty without regard to the aggravating or mitigating circumstances of an individual case. Brown, 172 Ill. 2d at 31.

In the present case, the trial court asked all of the prospective jurors: "Is there any one of you among the jurors who would return a verdict directing the court to impose the death penalty in every case where there is a finding of guilty of the offense of murder regardless of what the facts were that you heard?" The court refused to ask two questions requested by defendant. These questions, both relating to the statutory factors on the basis of which defendant was found eligible, were: "Would you impose the death penalty in all murder cases where more than one person was killed?" and "Would you impose the death penalty in all murder cases where a child is killed?" It is the decision of the trial court to refuse those questions that gives rise to the defendant's first argument.

Under this court's decisions in Brown and Hope, the trial court's questions were sufficient to vindicate defendant's right under Morgan to "life qualify" the jury. In each of those two cases, we held that the defendant is entitled only to have the prospective jurors questioned as to whether they would automatically vote to impose the death penalty for a defendant convicted of murder. In Brown, the court held that the defendant does not have a right to have the jurors questioned with respect to whether they would automatically vote for the death penalty in a case which included certain specific aggravating factors. Rather, it held that the jurors need only be asked whether they would automatically vote for the death penalty "upon a finding of guilt." Brown, 172 Ill. 2d at 30. The ...

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