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People v. Macri

October 29, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
GENO F. MACRI, APPELLANT.



The opinion of the court was delivered by: Justice McMORROW

Agenda

9/2/97

The defendant, Geno F. Macri, was charged by indictment with one count of intentional murder (720 ILCS 5/9-1(a)(1) (West 1994)), one count of knowing murder (720 ILCS 5/9-1(a)(2) (West 1994)), four counts of felony murder (720 ILCS 9-1(a)(3) (West 1994)), one count of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 1994)), and one count of unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West 1994)). Following a bench trial in the circuit court of Du Page County, defendant was found guilty of all charges. Defendant thereafter requested a jury for the sentencing proceedings. In the first phase of the sentencing hearing, the jury found defendant eligible for the death penalty on four separate eligibility factors: defendant committed the murder in a cold, calculated and premeditated manner pursuant to a preconceived plan, scheme or design to take a life by unlawful means (720 ILCS 5/9-1(b)(11) (West 1994)); and defendant committed the murder in the course of an aggravated criminal sexual assault (720 ILCS 5/9-1(b)(6) (West 1994)), in the course of an armed robbery (720 ILCS 5/9-1(b)(6) (West 1994)) and in the course of a robbery (720 ILCS 5/9-1(b)(6) (West 1994)). After hearing additional evidence in the second phase of the hearing, the jury concluded that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Accordingly, the trial court sentenced defendant to death. The trial court also sentenced defendant to 60 years' imprisonment on the aggravated criminal sexual assault conviction, and a consecutive 7 years' imprisonment on the possession of a stolen motor vehicle conviction. Defendant's death sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). Defendant's appeal is limited solely to alleged errors committed by the trial court during the sentencing proceedings. For the reasons which follow, we affirm defendant's sentence.

BACKGROUND

Defendant's convictions stem from the murder of Maria Djordjic, who was killed by repeated blows to the head with a crowbar on August 14, 1993. During the eligibility phase of the sentencing hearing, the State called 21 witnesses, essentially duplicating its presentation at the guilt-determination phase of the proceedings, while the defense called one witness.

Testimony during the eligibility hearing established that in the fall of 1992, defendant moved into the one-bedroom condominium of Floyd and Susan Graf, which was located in Addison, Illinois, a suburb of Chicago. Defendant, who was acquainted with Floyd Graf as a result of their working together, converted the den of the condominium into a bedroom and had been paying the Grafs rent in the amount of $60 per week. The victim, Maria Djordjic, was a close friend of Susan Graf. On occasion, Maria stayed in the Grafs' home and slept on the sofa bed located in the living room. At the end of July 1993, Maria, who was 19 years old at the time of her murder, had moved out of an apartment she had shared with a girlfriend and asked the Grafs if she could stay with them for a few weeks until she could move back into her father's home in preparation of returning to college in the fall. Around this same time, defendant had been given notice by the Grafs to move out of the condominium because he had failed to pay rent and cover his own expenses.

The testimony further established that on Saturday, August 14, 1993, Floyd Graf departed the condominium at 7:30 a.m. for his job and Susan left around noon with their three-year-old daughter, Marcie, to attend a relative's birthday party. At the time Susan and Marcie left, Maria was sleeping on the sofa bed. When Susan and Marcie Graf returned on the afternoon of August 14, 1993, they discovered Maria's body on the sofa bed, naked from the waist down, her head covered with a pillow. Defendant had disappeared, along with Maria's purse, VCR and car. Defendant's arrest for the murder of Maria Djordjic occurred in New York City on June 10, 1994, nearly one year after the crime took place. Upon learning of defendant's arrest, Detectives Mark Van Stedum and Michael Simo, both of the Addison police department, flew to New York City. Detective Van Stedum testified that after informing defendant of his Miranda rights, he and Detective Simo began an unrecorded conversation with defendant, during which defendant confessed to Maria's murder and recounted details of the crime. Detective Van Stedum testified that this first conversation lasted a little over an hour and defendant thereafter agreed to give a taped statement repeating his confession.

The sentencing jury heard both Detective Van Stedum's testimony recollecting defendant's first statement to the police, as well as the audio tape of defendant's confession. In his conversations with the detectives, defendant recounted that the week before the murder, the Grafs had given defendant three weeks' notice to vacate the premises due to defendant's unpaid bills. Defendant also stated that he had missed a meeting with his probation officer, and he knew that a warrant for his arrest would be forthcoming. Defendant then told the detectives that on the day of the murder, he was alone in the condominium with Maria and he saw her sleeping on the sofa bed. She then got up, took a shower, and dressed in green shorts and a top. Defendant asked Maria if she wanted "to fool around a little bit, kiss and stuff like that." Maria declined and defendant stated that he "got upset." Defendant told the detectives that he went into his bedroom to retrieve a crowbar, returned to Maria, who was sitting on the corner of the sofa bed, and hit her over the head with the crowbar. Defendant related that after the first time he struck Maria in the head, she fell back on the bed and started bleeding. Defendant then jumped on top of her and repeatedly hit her in the head with the crowbar. Although Maria initially attempted to fend off the blows by lifting her hands and kicking at him, defendant stated, she eventually stopped moving and, at that point, defendant believed that he had killed her. Defendant told the detectives that he thereafter tried to clean up some of the blood splatters on the wall behind the sofa bed, and then he cleaned himself up and did his laundry. Defendant related that while his laundry was washing, defendant placed a pillow over Maria's head, took off her green shorts, and had sexual intercourse with her. Defendant stated that he then took Maria's car and drove to a neighboring suburb, where he pawned Maria's VCR, as well as some of his own items. According to defendant, he then returned to the condominium, gathered his laundry from the dryer, packed his things together, and planned to take Maria's car and go to New York City. Defendant related that on the way out of the Grafs' condominium, he again saw Maria lying on the sofa bed and had sexual intercourse with her a second time. Defendant told the detectives that on both occasions that he had intercourse with her, he believed Maria was dead. Defendant stated to the detectives that he covered Maria's head with a pillow before he left.

The detectives questioned defendant about the crowbar. Defendant stated that he kept the crowbar in his room and that he had purchased it for "protection" and "for, you know, 'cause I-I was-the year before I was, you know, kind of planning on doing the same thing." When Detective Van Stedum inquired whether defendant meant hitting a girl over the head, defendant replied, "Right, or taking her purse or, you know ***." Defendant stated that he had planned to commit these attacks along the Illinois Prairie Path.

Defendant related to the detectives that on his way to New York, he stole Ohio license plates to replace the Illinois plates on Maria's car. Defendant further stated that he had attempted to sell Maria's car at six different car dealerships in New Jersey, but because none would purchase the car without the title, he ended up selling pieces of the car. Defendant also told the detectives that he had unsuccessfully attempted to use Maria's ATM card in a bank in New Jersey. In addition to his testimony concerning defendant's confession, Detective Van Stedum related occurrences in the investigation which took place in the days after Maria's murder. On August 15, the day after the murder, Van Stedum had a conversation with Tom Richardson, a friend of defendant. Van Stedum testified that he and Richardson went to an Ace Hardware store in Addison where Richardson identified a crowbar similar to the crowbar Richardson had previously seen in defendant's possession. On August 17, Van Stedum received information from the Itasca Bank that Maria's ATM card had been used at an ATM machine at the United Jersey Bank in Teterboro, New Jersey. Detective Van Stedum also testified that he was called back to the murder scene by Floyd Graf on the 18th of August, because Graf had discovered a green pair of shorts and a black pair of underwear rolled up inside the shorts under a chair in defendant's room. Van Stedum related that on August 19, he received a call from the New York City police department that Maria's vehicle, which displayed stolen Ohio license plates, had been recovered. On that date Van Stedum also received copies of photo stills from the videotape taken at the United Jersey Bank showing defendant using Maria's ATM card.

Testimony from Floyd and Susan Graf was presented to the jury. Floyd Graf testified that he had met defendant in 1990 at Olympus Auto Parts, where both men worked, and defendant had come to live with them in the fall of 1992. However, defendant failed to make his rent payments and in August 1993, the Grafs' phone was disconnected because defendant had made excessive calls to "900" numbers. Graf stated that he took away defendant's house keys and told defendant to move out. According to Graf, on the day of the murder, Graf had left for work at 7:30 a.m. and did not return to his home until Maria's body had been found by his wife and daughter. Graf related that a few days after the murder, the police allowed him to go back into his apartment, and, while he was clearing everything out with the intention of moving, he found a pair of green shorts with black underwear inside under a chair in defendant's room. He then called police and Detective Van Stedum came to investigate. Susan Graf testified that Maria had been her best friend for five years, and that prior to moving into their apartment, Maria would stay with them a few times per month. According to the witness, Maria purchased the VCR and left it at the Grafs' residence so that the Grafs' three-year-old daughter, Marcie, could watch videos. The witness further testified that a few weeks before the murder she and her husband told defendant to move out of their residence because defendant owed them money for the rent and other expenses, and that defendant stole money from their daughter's piggy bank. On the day of the murder, Susan and her daughter Marcie left their residence to attend a birthday party shortly before noon, and when they returned at approximately 5 p.m., Marcie discovered Maria's body on the sofa bed.

The State then called several witnesses who testified to defendant's whereabouts on the afternoon of the murder. William Madalinski, a friend of defendant, testified that on August 14, he and another friend, Ernie Silvesteri, went to defendant's apartment to see if defendant wanted to play basketball. Madalinski stated that sometime between 12:20 p.m. and 12:45 p.m., Silvesteri beeped his car horn from the parking lot and defendant came to the window. From the window, defendant told them that he did not want to go with them, and, a few minutes later, defendant came down to the parking lot and repeated that they should go without him. George Jakes testified that he worked at Village Pawn and Jewelry in Elk Grove Village, and that defendant pawned a Goldstar VCR on August 14, 1993. The bill of sale for that transaction showed the time as 1:40 p.m., and was signed by defendant. Denise Feinberg, a neighbor of the Grafs, testified that at about 2 p.m. on August 14, she was sitting in a chair by the window looking down at the complex's parking lot and saw defendant drive Maria's car into the lot.

The State next called witnesses to testify regarding the scene of the crime. Richard Carnaggio, a firefighter/paramedic for the Addison fire department, arrived at the scene and found Maria lying on the sofa bed with a pillow over her head. As he removed the pillow, a sock, which was stuck to the pillow as a result of dried blood, was dislodged from Maria's mouth. Carnaggio stated that he observed a great deal of blood at the scene, and that the large wounds to Maria's head resembled a crushing injury. Michael Tierney, an Addison police officer assigned to assist as an evidence technician in the murder investigation, testified that a sock matching the sock recovered from Maria's body was found in defendant's room.

Dr. Shaku Teas, a forensic pathologist, testified that she performed the autopsy on Maria on August 15, 1993. Upon an external examination of the injuries to Maria's head, Dr. Teas discovered multiple chop and incised wounds of varying lengths scattered over Maria's face and to both sides of her head. Dr. Teas also testified to numerous blunt trauma injuries, bruises, and abrasions which were visible on Maria's face and head. Dr. Teas also found defensive wounds on Maria's hands, with bruising on the left hand and bruises, abrasions, and characteristics of a sharp instrument on the right hand, as well as abraded areas on Maria's wrist. Dr. Teas then testified concerning her findings upon an internal examination of Maria's skull and head area. Maria suffered multiple fractures of the skull as well as a large amount of subgaleal hemorrhage, which Dr. Teas described as a hemorrhage inside the scalp. Dr. Teas testified in detail concerning the numerous fractures suffered by Maria, including: a fracture on top of the skull; a fracture which extended forward into the forehead region, in a v-shaped form; and a fracture that extended from above Maria's ear all the way to the back of her head, with two portions of the fractured area having been displaced. Dr. Teas additionally testified to fractures found inside Maria's skull, including a large fracture extending in a semi-circular fashion. Dr. Teas related that the portions of the skull which support the nose, right eye, and left inner ear had all suffered fractures. Dr. Teas opined that a considerable amount of force would be necessary to cause these types of fractures. Dr. Teas concluded her recitation of Maria's specific injuries by noting that in addition to the numerous fractures, Maria's brain suffered a subarachnoid hemorrhage. Dr. Teas then related her finding that the cause of Maria's death was craniocerebral injuries due to blunt and sharp force injury, and testified that a crowbar would be consistent with causing the type of injuries suffered by Maria. The State also called Tom Richardson, who testified that he met defendant in high school in 1989, and worked together with defendant for a short time in 1992. Richardson stated that he became acquainted with Maria in the fall of 1992 when he met her at the Grafs' apartment during his visits to defendant. Richardson testified that on October 31, 1992, he had visited defendant at the Grafs' condominium, and during a conversation in defendant's room, defendant told Richardson that defendant was going to hit Maria over the head with a crowbar, rape her, and take off to New York City in her car. Defendant told Richardson that defendant would attack Maria upon her exit from the bathroom of the apartment, which was located between defendant's room and the Grafs' bedroom. During this conversation, defendant also showed Richardson a crowbar, which defendant retrieved from his dresser, one end of which had been wrapped in black electrical tape. Defendant at that time also told Richardson that he wanted to ask Maria out but that she probably would laugh at him because he was short.

Richardson testified that he had two other conversations with defendant in which defendant mentioned his plan to attack Maria. According to Richardson, in April 1993, as he and defendant were driving in Richardson's truck, defendant again stated that he planned to hit Maria over the head with the crowbar, rape her, and steal her car to escape to New York City. Defendant repeated these statements to Richardson once again in May 1993.

Richardson testified that on August 15, 1993, Detective Van Stedum came to talk to him regarding Maria's murder, and it was at that time that Richardson told the police about the conversations he had with defendant concerning Maria. Richardson then went with Detective Van Stedum to a hardware store to show the detective the type of crowbar that defendant had shown Richardson in defendant's room. On cross-examination, Richardson admitted that he did not previously go to the police concerning the conversations he had with defendant about Maria, nor did he ever inform Maria about defendant's statements. Richardson testified that he remained silent because at the time he thought defendant was only joking.

The sole witness called by defendant during the eligibility phase was Detective Michael Simo, and the sole inquiry of the detective was a conversation Simo had with Susan Graf the day after Maria's murder. Detective Simo testified that Susan told him that defendant wanted to purchase a small quantity of marijuana from Maria, but that Maria would not give it to him until he paid the Grafs the money that he owed them on his bills.

Following arguments by counsel, the jury found beyond a reasonable doubt that defendant was eligible for the death penalty in that he was 18 years of age or older at the time of the murder and that four statutory aggravating factors existed: (1) commission of first degree murder in the course of an aggravated criminal sexual assault (720 ILCS 5/9-1(b)(6) (West 1994)); (2) commission of first degree murder in the course of an armed robbery (720 ILCS 5/9-1(b)(6) (West 1994)); (3) commission of first degree murder during the course of a robbery (720 ILCS 5/9-1(b)(6) (West 1994)); and (4) commission of the murder in a cold, calculated and premeditated manner pursuant to a preconceived plan, scheme or design to take a life by unlawful means (720 ILCS 5/9-1(b)(11) (West 1994)).

At the aggravation and mitigation phase of the sentencing hearing, the State presented 25 witnesses in aggravation. In mitigation, the defense called five witnesses and defendant elected to speak in allocution. The majority of the State's evidence in aggravation concerned defendant's criminal record. The State first called Detective Michael Simo, who informed the jury that while defendant was in New York City, defendant had been arrested for disorderly conduct and possession of marijuana. Defendant pled guilty to the marijuana charge and was fined $50, while the disorderly conduct charge was dropped. Defendant never returned to court to pay the $50 fine. Detective Simo testified that defendant informed him about defendant's history of committing burglaries in the Chicago suburban area, including burglaries at suburban recreational vehicle dealers, public storage facilities, and trucking firms. Defendant also told Detective Simo he stole money from the piggy bank of the Grafs' daughter.

The State then presented numerous witnesses, including friends of defendant and law enforcement officers, who testified regarding the burglaries committed by defendant. The evidence indicated that defendant staked out various businesses in order to assess whether they presented good prospects for a burglary, and then related this information to his friends in an effort to induce them to join him in the burglary. Because these burglaries remained unsolved, no arrests were made and no charges were filed against defendant in connection with these crimes. In one instance, however, defendant was arrested when he and three friends attempted to burglarize a public storage facility in Bensenville. Craig Grude, a sergeant with the Bensenville police department, testified that defendant provided a handwritten statement confessing that the burglary had been planned and that defendant was involved. However, defendant was not charged in connection with this incident.

Robert Budig, an officer with the Villa Park police department, testified that he stopped a pickup truck containing defendant and two friends. In the bed of the pickup truck, the officer discovered numerous items which had been reported stolen from a Wisconsin campground. Michael King, a sergeant with the Villa Park police department, also responded to the traffic stop and upon a search of the truck's cab recovered spent .380-caliber shell casings, narcotics paraphernalia, and a .380 semiautomatic from between the front seats. All three individuals were transported to the police station, where defendant was charged with felony theft. Upon being placed in a jail cell, defendant was observed throwing a plastic bag containing a green leafy substance into the cell's urinal. Officer Budig retrieved the bag, field tested the bag's contents, and additionally charged defendant with possession of cannabis. Defendant was convicted of felony theft and sentenced to 24 months' probation.

Next, the State introduced testimony concerning defendant's commission of thefts from his employers. Genaro Esposito, a police officer with the Villa Park police department, testified that in July 1990 he investigated a theft from Olympus Auto Parts, a store where defendant was employed at that time. The owner informed police that $1,050 was missing from a bank bag which the owner placed in a desk drawer in his office. The owner notified police, and Officer Esposito phoned defendant's residence and informed defendant's father that defendant was a suspect in the theft. During this conversation, defendant arrived home and denied he was involved in the theft. However, after being induced by his father to tell the truth, defendant admitted that he stole the money and returned $400 to the owner, stating that he had already spent the balance. The owner decided not to prosecute defendant on the condition that defendant would return the remainder of the missing money. Steven Kowalewski, a controller for National Plan Service, testified regarding defendant's employment with that company in 1992. Kowalewski stated that defendant's duties including working in the warehouse and delivering the mail on a daily basis, which allowed defendant access to the firm's minivan. On August 3, 1992, the minivan was discovered missing, and sometime thereafter it was found abandoned in Cicero, Illinois. Kowalewski testified that although he received an anonymous call that defendant had stolen the van, no charges were filed against defendant in connection with the missing van. However, two of defendant's friends, Daniel Kapellen and Tom Richardson, testified that defendant admitted to them that he had stolen the van. Richardson further testified that in September 1992, defendant told Richardson that he had duplicated the van's key and would routinely take the van after work on Fridays and return it before the weekend was over. Defendant stated to Richardson that defendant had to leave the van in Cicero because on one of his outings the van had a flat tire which he was unable to change.

The State also called several witnesses to testify regarding defendant's conduct and attitudes towards women. Detective Simo testified that defendant told him that while defendant was in New York City, on at least two occasions defendant had thought about hitting two different women over the head and raping them. Mark Heuser, a friend of defendant, testified that defendant often spoke about torturing women, and that defendant was the only one in their circle of friends to make such comments. Another friend of defendant, Daniel Kapellen, testified to conversations with defendant wherein defendant spoke in detail of sexually abusing and torturing defendant's former girlfriend. Kapellen also testified to various other conversations he had with defendant wherein defendant detailed plans to assault and rape other women. Defendant told Kapellen that defendant already owned a crowbar and that defendant had taped one end for a handle. According to Kapellen, defendant stated that he kept the crowbar at home and sometimes in his backpack. The State also called Tom Richardson, who testified that in addition to the specific conversations with defendant concerning Maria in April and May of 1993, defendant also spoke in general terms concerning his desire to kill and rape other women. Cynthia Ledlow, another friend of defendant, testified that in the spring of 1989, defendant asked her to go on a drive to Springfield. Thereafter, Mark Heuser and his brother approached her and told her that defendant planned to rape her if she went to Springfield with him and then throw her body in a field. Consequently, she refused to accompany defendant.

The State also called Roshanna Tokh, who testified that in June 1984, when she was five years old, defendant assaulted her. Defendant, who was approximately 12 years old at the time, was questioned by the police and subsequently released into his mother's custody. The State then introduced evidence of defendant's conduct while he was incarcerated in the Du Page County jail, awaiting trial in this matter. Nikki Cokinis, a deputy for the Du Page County sheriff's department, testified that in the fall of 1994, she transported defendant on two or three occasions from the jail to a holding cell in the courthouse for his court appearances. Deputy Steven Smith testified that in October 1994, he was escorting defendant to the courthouse when defendant asked Smith if Deputy Cokinis could escort him to the courtroom. In November 1994, while escorting defendant, Deputy Smith testified that defendant inquired whether Smith could handcuff defendant and Deputy Cokinis together and send them up in the elevator to court. Thereafter, Deputy Smith informed Deputy Cokinis about defendant's comments and requested that Cokinis no longer escort defendant to and from court. Further, Deputy Smith testified that his superior, Chief Smith, circulated a memo on November 22, 1994, in reference to a statement made by defendant that he was going to rape a female in the courthouse if he received a long sentence. After the memo was circulated, female bailiffs were no longer allowed to escort defendant.

Thomas Hughes testified that in the fall of 1994, while he was at Du Page County jail awaiting trial on a retail theft charge, he became familiar with defendant, who was housed in the same jail pod. Hughes testified that in November 1994, he and defendant were watching television in a common area of the pod when a female appeared on the screen. According to Hughes, defendant stated that he wanted to hit her over the head with a cinder block and have sexual intercourse with her afterwards. Hughes further testified that on another occasion, defendant stated that if it were possible, defendant wanted to throw Deputy Cokinis to the ground, take her panic button from her, get her out of the camera's view, and rape her. According to Hughes, defendant stated that he would attack Cokinis in the holding cell, that defendant thought it would be fairly easy to overpower her, and that defendant wanted to take advantage of the opportunity because it would probably be his last chance of having sex or contact with a woman. Finally, Hughes related to the jury that defendant spoke to him concerning Maria's murder. Defendant told Hughes that defendant felt that Maria owed him something and she was not going to give it up, so defendant had to resort to physical violence. Defendant used vulgarities to refer to Maria, and defendant showed Hughes Maria's autopsy reports. The final witness for the State was Maria's father, Jovan Djordjic, who read into evidence a victim impact statement. After he testified, the State rested.

Defendant called five witnesses in mitigation. Dr. Carl Wahlstrom, a board-certified expert in forensic psychiatry, testified that prior to meeting with defendant, he spent approximately 10 hours reviewing a wide array of records pertaining to defendant, including defendant's school records, psychological and psychiatric records, drug-treatment records, and work records. In addition, Dr. Wahlstrom reviewed details regarding defendant's arrest and confession, as well as the police reports and the autopsy records. Dr. Wahlstrom testified that he examined defendant over a three-day period, for a total of less than eight hours. Dr. Wahlstrom testified that, in his opinion, at the time of the murder defendant was not out of touch with reality. However, based upon his examination of defendant's drug-treatment records and his conversations with defendant, Wahlstrom concluded that defendant suffered from dependence on PCP, cocaine, LSD, and marijuana. Wahlstrom related that defendant stated that subsequent to inflicting the blows to Maria's head, defendant hallucinated that he saw snakes and bugs on Maria's face. Based upon defendant's description of these hallucinations, Wahlstrom believed that at the time of the murder defendant was under hallucinogen intoxication with perceptual disturbances.

Dr. Wahlstrom also testified that he diagnosed defendant as having an antisocial personality disorder, characterized by a disregard for the rights of others. Wahlstrom testified that there were indications of this disorder during defendant's childhood, including defendant's talking back to teachers, threatening teachers, setting fields on fire, and displaying cruelty to animals. As an adult, defendant evidenced periodic failures to conform to social norms with respect to lawful behavior, had indications of impulsivity, and failed to plan ahead. Defendant also showed reckless disregard for the safety of others, as evidenced by the driving of a car while intoxicated, as well as repeated failure to follow and honor financial obligations.

Dr. Wahlstrom also diagnosed defendant as having a borderline personality disorder, characterized by a disturbed view of one's self-image. This disorder, according to Wahlstrom, involves very unstable relationships with others, an unstable mood, and impulsivity. Defendant met the criteria by engaging in frantic efforts to avoid real or imagined abandonment, and showed impulsivity in spending, sex, substance abuse and reckless driving. Defendant also evidenced recurrent suicidal behavior, inappropriate intense anger or difficulty controlling his anger, and fantasies of hurting other individuals.

Dr. Wahlstrom stated that defendant had an avoidant personality disorder, characterized by feelings of inadequacy, social inhibition, and hypersensitivity to negative evaluations of others. As a result, defendant showed restraint with intimate relationships because of his fear of being shamed or ridiculed, and defendant was preoccupied with being criticized and rejected in social settings, viewing himself as being socially inept, personally unappealing, and inferior to others. Wahlstrom related that defendant's sole dating relationship occurred at age 15, and defendant patronized prostitutes because that was the only sexual intimacy that he felt he could accomplish.

Dr. Wahlstrom further testified that family dysfunction affected defendant's self-image. There was marital stress between defendant's mother and father, who divorced when defendant was 12, and there was differential dislike by defendant's mother, who treated defendant differently than his siblings. For example, Wahlstrom related that defendant's mother would kiss defendant's brother while ignoring defendant, thereby pushing defendant away emotionally, and hindering his development of good self-esteem. However, Wahlstrom acknowledged that defendant was neither physically nor sexually abused as a child. In addition, Dr. Wahlstrom testified that at the time of the murder, defendant was under the influence of an extreme mental or emotional disturbance, due to various emotional stresses including the disruption of defendant's family, the failure of in-patient drug and mental health treatment, constant job losses, defendant's history of arrests, defendant's impending eviction from his residence, and acute feelings of rejection due to Maria's spurning of defendant's sexual advances. Dr. Wahlstrom testified that defendant fantasized that he had a real relationship with Maria, and on the day of the murder he was building up his courage to ask her for a sexual relationship, which she declined. According to Wahlstrom, this fantasy, Maria's rejection, and defendant's poor self-esteem combined to result in an "experience of extreme rage and a feeling of a culmination of all the mistreatment regarding everyone who he felt didn't think him to be any good, and I think that at that moment in time the culmination of all these caused him to have -to commit a senseless, irrational act."

In regards to defendant's fantasies of torturing women, Dr. Wahlstrom stated that it is only through the fantasies that defendant can realize total power and control. Dr. Wahlstrom acknowledged that defendant has a "chronic history" of violent fantasies towards women, and additionally related that while defendant was awaiting trial in this matter, defendant had made a comment in reference to a television program where a girl was found murdered. Defendant stated to his fellow inmates that because the girl had only been murdered and not raped, it was a "waste of a good body."

Dr. Wahlstrom opined that defendant could be treated in a secured institution, but defendant would have to cooperate and avail himself of the treatment, something defendant had refused to do in the past. Wahlstrom acknowledged that defendant has an inability to experience a feeling of remorse due to defendant's antisocial personality disorder, and concluded that because of defendant's feelings of inadequacy defendant can have only a very limited emotional attachment with other human beings. When asked if defendant is a dangerous person, Dr. Wahlstrom replied, "I think he has shown himself to be a dangerous individual."

On cross-examination, Dr. Wahlstrom related that defendant's only thoughts immediately after he killed Maria and left for New York City was that it was too late to change anything; defendant had no thoughts concerning Maria. Also during cross-examination, Dr. Wahlstrom admitted that defendant told him that defendant wanted to have sex with Maria "before she got cold and stiff," that defendant was satisfied with his life after the murder, and that defendant's life at the Du Page County jail had been "great."

Finally, the State questioned Dr. Wahlstrom during cross-examination concerning defendant's truthfulness regarding his drug use, since in all testing done from August 19, 1991, through June 20, 1994, by the Du Page County probation department, defendant never tested positive for PCP or cocaine, and only tested positive for marijuana use. Defendant also told his probation officer that he stopped using PCP in 1990. Wahlstrom admitted that he was aware of these reports, but that they did not change his opinion regarding defendant's drug dependence on the night of the murder. The State questioned Dr. Wahlstrom concerning a probation report wherein defendant said that his family life was good because defendant had a good relationship with his mother, father, stepmother and siblings. Again, Wahlstrom stated that this fact would not change his opinions.

The next witness called by the defense in mitigation was Robin Boothby, a probation officer with the division of adult special services in Du Page County, who prepared a presentence report detailing defendant's criminal history. Defendant's first arrest was in April 1989 for unlawful possession of cannabis, and resulted in defendant's paying a fine. In September 1990, defendant was arrested for driving under the influence and sentenced to court supervision with the condition that he complete drug counseling. This supervision was subsequently revoked along with defendant's driver's license. In April 1991, defendant was arrested for driving with a suspended license, and again sentenced to court supervision. Due to defendant's noncompliance with the conditions of supervision, the supervision was revoked. After being convicted of theft on August 19, 1991, defendant was placed on probation for a period of 24 months, with the condition that he complete outpatient drug-treatment counseling. Defendant failed to comply with the counseling requirement, was found in violation of his probation, and was sentenced to 14 days in the Du Page County jail. Shortly thereafter, defendant was again found in violation of probation due to noncompliance with drug counseling and a second petition to revoke defendant's probation was filed. The witness further indicated that drug screenings performed on defendant in January 1992 and July 1993 were positive only for cannabis. Donald Knoll, a sergeant in the Du Page County sheriff's department, was the next witness called by the defense in mitigation. Knoll testified that defendant was the subject of 12 jail incident reports since defendant arrived in the jail in June 1994. These reports included several incidents of damage to property, disorderly conduct, disrespect of jail guards, abusive language, and failure to follow orders. Five of these incidents resulted in defendant's being placed in disciplinary segregation. Knoll also testified that special rules in regards to defendant are in place prohibiting female guards from escorting defendant in order to assure the guards' safety.

Defendant testified that he grew up in a house in suburban Elmhurst, and that his everyday life as a child was not really happy because he did not have many friends and was constantly fighting with his brother and sister. According to defendant, he did not have a good relationship with his mother, who gave defendant far less attention than his siblings. Defendant also stated that his mother beat him with a shoe, chased him with a knife, and on one occasion threw scissors at him after defendant had hit his brother, causing his mother to leave her job and come home from work early. Defendant stated that he moved out of the family home and into the Grafs' residence because his mother remarried and her husband did not get along with defendant. However, defendant also related that on two occasions when he was behind in his rent payments to the Grafs, his mother gave him $260 to cover his expenses. On cross-examination, defendant stated that he had a good relationship with his father and that defendant believed that he was his father's favorite child. Defendant also admitted that he told the probation department in August 1994 that he had a good relationship with his mother, father, stepmother and siblings. During cross-examination defendant acknowledged that his parents had arranged for counseling; defendant refused to accept that help and informed his parents that drug treatment was a waste of time because he intended to return to drug usage.

Defendant further testified on cross-examination that "[i]t wasn't a choice" to murder Maria; instead, "[i]t was something that happened." Defendant agreed that his main objective after inflicting the blows to Maria's head was to rape her before she became cold and stiff. Defendant further admitted on cross-examination that he could hear the life leaving Maria's body as he raped her the first time, and he placed the pillow over her head when he returned from the pawn shop because he was hallucinating that there were snakes on her face. Defendant also admitted on cross-examination that he has thought about hitting women over the head since murdering Maria, and that he wanted to rape Deputy Cokinis.

The last witnesses to testify in mitigation were defendant's parents, Eugene Macri and Kathleen Koutsogiannis, who related that their marriage had been in trouble since defendant was two years old, and that many arguments and instances of violence occurred in the household. Defendant's parents also related that they placed defendant in treatment but that defendant refused to continue with the programs. Defendant's father testified that defendant's mother scolded defendant more harshly than their other children and, in his opinion, defendant's mother never liked defendant. Defendant's father additionally related that he and defendant had a good relationship and that they would do many activities together, including going to shows and participating in Little League. Defendant's mother testified that her relationship with defendant was not close, and that she never took an interest in him the way that she did with her other children. She testified that during defendant's childhood, she belittled him by telling him he was stupid, no good, and short. She related that defendant shared a bedroom with his brother, and when she came home, she would kiss defendant's brother but never defendant.

After closing arguments, the jury returned a verdict finding no mitigating factors sufficient to preclude the imposition of the death penalty. Defendant was sentenced to death. All post-trial motions were denied. This appeal followed.

ANALYSIS

Defendant's appeal to this court is limited solely to alleged errors committed by the trial court during his sentencing proceeding. Defendant asserts numerous claims of error at both phases of his sentencing hearing, and argues that each of these claimed errors requires that he be given a new sentencing hearing.

I. Eligibility Jury Selection

Defendant raises two issues concerning the selection of a jury for the sentencing phase of his trial. Defendant first contends that his constitutional rights to due process of law and freedom from cruel and unusual punishment were violated because the trial court refused to pose three tendered questions to prospective jurors during voir dire questioning. In the alternative, defendant asserts that the trial court's refusal to ask these questions constitutes an abuse of discretion. Defendant tendered to the trial Judge three voir dire questions to inquire of potential jurors whether, if they should determine that a death sentence was not appropriate, they could withstand pressure from their cojurors during deliberation and stand alone against imposition of a death sentence. The following are the proffered questions:

"(1) Question #114: Will you be able to consider all the evidence presented? In the event you are to consider this question, you would have to vote unanimously for death. But if any one of you were against death, you could so vote alone and stop the entire proceeding. Would you be able to stand alone this way?

(2) Question #115: If your fellow jurors did not agree with you that some fact mitigates outweighs [sic] aggravation or that the sum of the mitigation outweighs aggravation, could you vote alone against death? (3) Question #116: If there were another juror who did not want to impose death, would you respect that other juror's opinion?" *fn1 The trial court ruled that only the first sentence of question No. 114 ("Will you consider all the evidence presented?") would be asked at voir dire, and declined to ask the remainder of question No. 114 as well as question No. 115 and No. 116. The record reveals that the trial Judge based this decision on her belief that all three questions covered the same issue, and that these questions related to the jurors' deliberation process, a matter the trial court indicated was properly within the province of predeliberation jury instructions. Further, the trial Judge specifically ruled that she did not "think it[ ] appropriate to single out some aspects of the [jury] instructions and not others."

Defendant contends that the purpose of the three proffered questions was to determine a potential juror's "bias" or "prejudice" towards the statutory requirement of section 9-1(g) of the Criminal Code of 1961 that a jury's determination that the death penalty should be imposed must be unanimous. 720 ILCS 5/9-1(g) (West 1994). Defendant argues that he has a constitutional right to inquire whether a potential juror could be swayed by the majority of cojurors during deliberations and not vote his or her conscience in a death penalty case. Based upon this contention, defendant concludes that he was denied his constitutional right to an impartial jury.

In support of his argument, defendant relies upon Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992). In Morgan, the Supreme Court held that a defendant is constitutionally entitled to inquire at voir dire whether prospective jurors would automatically impose the death penalty to the same extent that the State may inquire of prospective jurors pursuant to Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), whether they would automatically vote against the death penalty. In Morgan, the defendant tendered the following question to the trial court to be asked of prospective jurors on voir dire: "If you found [the defendant] guilty, would you automatically vote to impose the death penalty no matter what the facts are?" Morgan, 504 U.S. at 723, 119 L. Ed. 2d at 499, 112 S. Ct. at 2226. The trial ...


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