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People v. Terrell

December 31, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
DREW TERRELL, APPELLANT.



The opinion of the court was delivered by: Justice Nickels

Defendant, Drew Terrell, was convicted in the circuit court of Cook County of the murder and aggravated criminal sexual assault of 15-month-old Laura Hampton. Defendant was sentenced to death for the murder conviction and to a 60-year prison term for the aggravated criminal sexual assault conviction. On appeal, this court affirmed defendant's convictions but vacated his sentences and remanded to the circuit court for a new sentencing hearing. People v. Terrell, 132 Ill. 2d 178 (1989). The specific facts pertaining to defendant's conviction are set forth in detail in our prior opinion. Therefore, only the facts necessary for understanding and adjudicating the issues in the present appeal will be repeated.

At the resentencing hearing, a jury found defendant eligible for the death penalty based on two statutory aggravating factors: (1) the defendant had been found guilty of murdering a victim under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(7)); and (2) the defendant murdered the victim in the course of another felony, that of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)). The jury found no mitigating circumstances sufficient to preclude imposition of the death penalty and the circuit court sentenced defendant to death. See Ill. Rev. Stat. 1985, ch. 38, par. 9-1(g). Defendant's death sentence was stayed pending direct appeal to this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a).

ISSUES

In this direct appeal, defendant raises 24 separate issues as grounds for vacating his death sentence. These contentions essentially raise claims of error occurring in the: (1) jury selection; (2) eligibility stage of sentencing; (3) aggravation/mitigation stage of sentencing; and (4) sentencing. Defendant additionally raises 10 separate challenges to (5) the constitutionality of the Illinois death penalty statute.

DISCUSSION

1. Jury Selection

Defendant contends three errors occurred during the jury selection process which deprived him of the right to be sentenced by an impartial jury (U.S. Const., amends. VI, XIV). First, defendant maintains that the trial court erred when it refused to ask potential jurors whether the age of the victim would make a difference in their ability to be fair. Defendant argues that the trial court's conduct violated the mandates of Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992), because it prevented him from being able to ascertain whether potential jurors would consider all the mitigating evidence. Defendant further argues that his case is analogous to cases in which it was held to be error to refuse voir dire questions regarding racial bias (see Turner v. Murray, 476 U.S. 28, 90 L. Ed. 2d 27, 106 S. Ct. 1683 (1986)) and prejudice against criminal street gangs (see People v. Jimenez, 284

Ill. App. 3d 908 (1996)).

The purpose of voir dire is to assure the selection of an impartial panel of jurors who are free from bias or prejudice. People v. Williams, 164 Ill. 2d 1, 16 (1994). The primary responsibility of conducting the voir dire examination lies with the trial court and the manner and scope of such examination rests within that court's discretion. Williams, 164 Ill. 2d at 16; 134 Ill. 2d Rs. 234, 431. Indeed, the trial court possesses great latitude in deciding what questions to ask during voir dire. Mu'Min v. Virginia, 500 U.S. 415, 424, 114 L. Ed. 2d 493, 505, 111 S. Ct. 1899, 1904 (1991). On review, an abuse of the court's discretion will be found only when the record reveals that the court's conduct "thwarted the selection of an impartial jury." Williams, 164 Ill. 2d at 16.

Initially, we observe that this court recently rejected an argument similar to the one advanced by defendant here. In People v. Brown, 172 Ill. 2d 1 (1996), the trial court disallowed the defendant's supplemental voir dire question which would have asked potential jurors whether they would consider not imposing the death penalty if the defendant was convicted of killing two young children and their mother. On review, this court found no error in the trial court's refusing to ask the proposed voir dire question. Brown, 172 Ill. 2d at 29-31. This court observed that the mandates of Morgan do not require questioning potential jurors about how they would act given the particular aggravating circumstances of the victim's murder. Brown, 172 Ill. 2d at 31.

Similarly, in the instant case, we find that the trial court did not abuse its discretion in refusing to ask defendant's proposed voir dire question. In its initial statements, the trial court informed the venire that the victim involved was a child. The trial court also educated the venire that the purpose of the voir dire examination was to select fair and impartial jurors who would decide the matter based solely on the evidence and the law. In addition, during the individual examination, the trial court asked each venireperson whether he or she would automatically vote to impose death without consideration of the mitigating evidence. A thorough review of this record reveals that the trial court did nothing to frustrate the selection of an impartial jury. The other cases defendant relies upon are inapposite. In Turner, the United States Supreme Court held that a capital defendant accused of an interracial crime is entitled to have prospective jurors questioned on the issue of racial bias. Turner, 476 U.S. at 36-37, 90 L. Ed. 2d at 37, 106 S. Ct. at 1688. The instant case does not involve an interracial crime. In Jimenez, the defendant was convicted of murdering a man who opposed defendant's gang activities. Jimenez, 284 Ill. App. 3d at 910-11. On review, the appellate court recognized a widespread prejudice against street gangs. In reversing defendant's conviction, the appellate court determined that, under those individual circumstances, fundamental fairness required the trial court to question potential jurors regarding their biasness towards gang members. Jimenez, 284 Ill. App. 3d at 912-13. We find that the circumstances and fairness concerns involved in Turner and Jimenez are not present in defendant's case. To be constitutionally compelled, it is not enough that a voir dire question be helpful, rather, the trial court's failure to ask the question must render the defendant's proceedings fundamentally unfair. Mu'Min, 500 U.S. at 425-26, 114 L. Ed. 2d at 506, 111 S. Ct. at 1905. We find that defendant's proceedings were not rendered fundamentally unfair by the trial court's failure to ask defendant's proposed voir dire question. Defendant next contends that certain comments the trial court made to potential jurors during voir dire denigrated the mandates of Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), and Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992). In Witherspoon, the Supreme Court set forth guidelines under which the court may exclude for cause prospective jurors because of their views on the death penalty. Witherspoon, 391 U.S. at 520-22, 20 L. Ed. 2d at 784-85, 88 S. Ct. at 1776-77; People v. Cole, 172 Ill. 2d 85, 99 (1996). Subsequently, in Morgan, the Supreme Court held that a 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. Morgan, 504 U.S. at 734-39, 119 L. Ed. 2d at 506-09, 112 S. Ct. at 2232-35; People v. Hope, 168 Ill. 2d 1, 29 (1995). Defendant cites instances during the examination of seven venirepersons when the trial court commented on voir dire questions, characterizing the questions as silly, unnecessary, or repetitious. Defendant describes the trial court's comments as flippant and disparaging and argues that, through these comments, the trial Judge expressed his personal opinion to the jury. The result, defendant argues, is that the jury empaneled for his sentencing proceeding was not impartial.

In order to satisfy the mandates of Witherspoon and Morgan, the trial court here asked each potential juror these two questions:

"Would you automatically vote against the death penalty no matter what the facts of the case would be?"

"Would you automatically vote for the death penalty no matter what the facts would be?"

A review of the record reveals that the two voir dire questions were typically asked by the trial court consecutively. In addition, the two questions were preceded by general questions as to whether the potential juror possessed any scruples or religious concerns against the imposition of the death penalty. Following are examples typical of the comments challenged by defendant:

"THE COURT: It seems like a silly question. Would you automatically vote for the death penalty no matter what the facts would be?

THE COURT: Would you automatically vote-it's rather repetitious, but you'll bear with me. Would you automatically vote against the death penalty no matter what the facts would be?

THE COURT: Okay. So the next question is kind of-you wouldn't think it's necessary because you have answered the first one. Would you automatically vote against the death penalty in all cases?"

We agree with defendant that the trial court should not have made such comments during the examination of potential jurors. As this court has previously observed, trial Judges maintain great influence upon jurors. The Judge's slightest word is received with deference and may prove controlling. Accordingly, a trial Judge should exercise restraint over his or her utterances and refrain from unnecessary disparagement of issues. See People v. Peeples, 155 Ill. 2d 422, 466-67 (1993), citing 1 Standards for Criminal Justice §6-3.4 (2d ed. 1980).

While we agree with defendant that the venirepersons should not have heard the trial court's comments regarding the voir dire questions, we nevertheless cannot say that the remarks prejudiced defendant. This court has previously reviewed cases where the venire heard remarks which were more likely to affect a jury's impartiality than the remarks in the present case. See Peeples, 155 Ill. 2d at 464-68 (trial Judge's disparaging comment that rules of evidence prevent jury from hearing all of the State's evidence); People v. Erickson, 117 Ill. 2d 271, 292-93 (1987) (venireperson quoting prosecutor that only a " `locked solid case' " goes to trial); People v. Del Vecchio, 105 Ill. 2d 414, 428-29 (1985) (venireperson's comment that defendant should not be walking the streets). In those instances, this court did not consider the trial court's comments to be so prejudicial as to preclude the juries from reaching verdicts based solely on the evidence presented to them. Similarly, in the instant case, the trial court's comments were not so prejudicial as to damage the impartiality of defendant's jury. The trial court advised the potential jurors that the persons selected to serve on the jury would be relied upon to decide the issues based solely on the evidence and the law. Moreover, in its written instructions, the trial court admonished the jury that it did not intend, by any ruling or remark, to indicate an opinion as to the evidence or what the verdict should be. We find that these jury instructions rendered this particular error harmless. See Peeples, 155 Ill. 2d at 467-68.

Defendant's final contention regarding jury selection is that the trial court erred in excusing for cause one venireperson, David Rose.

Defendant argues that Rose was excused because of his opposition to the death penalty in violation of Wainwright v. Witt, 469 U.S. 412, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985). In Wainwright, the United States Supreme Court clarified that a potential juror may be excluded for his views on capital punishment only when those views prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath. Wainwright, 469 U.S. at 424, 83 L. Ed. 2d at 851-52, 105 S. Ct. at 852. Because the Wainwright standard is inapplicable to the instant situation, we reject defendant's contention. The record clearly indicates that venireperson Rose was not excluded because of his views on capital punishment but, rather, was excluded because of his preDisposition towards police testimony. During the trial court's initial examination, Rose generally stated that he could be fair and impartial. Thereafter, the trial court indicated that police officers would be testifying and specifically asked Rose whether he was predisposed towards believing a police officer's testimony. In response, Rose stated: "Well, other than the fact that they're professionals and do this job for a living, I think I'd have a little more belief because of that." At the end of the trial court's examination, the State moved to excuse Rose for cause. Rather than ruling on the State's motion, the trial court, sua sponte, excused Rose for cause. The trial court repeatedly indicated that it was doing so because of Rose's preDisposition towards police testimony.

The trial court is granted wide discretion in determining whether to exclude a potential juror for cause based upon that person's voir dire. Hope, 168 Ill. 2d at 31. Upon review, the entire voir dire of the potential juror must be considered, rather than selected statements. Peeples, 155 Ill. 2d at 462-63. Moreover, the trial court's ruling is entitled to substantial deference because it is in the best position to interpret the meaning of the potential juror's remarks. Hope, 168 Ill. 2d at 31. In the instant case, the testimony of several police officers was offered during defendant's sentencing hearing. Rose expressed doubt as to his ability to be impartial regarding police testimony and, thus, was "not prepared to stand indifferent, and to be guided only by law and the evidence." Peeples, 155 Ill. 2d at 463. Accordingly, we hold that the trial court did not abuse its discretion in excluding Rose from the jury.

2. Eligibility Stage

Defendant next raises several issues regarding the eligibility stage of his capital sentencing hearing. First, defendant contends he was denied a fair sentencing hearing because the State, in order to prove defendant's eligibility for the death sentence, presented "more evidence than was proper" in order to "relitigate" the issue of defendant's guilt. Specifically, defendant challenges the trial court's admission into evidence: (1) the 26-count indictment returned against defendant; (2) a certified copy of conviction showing defendant had been found guilty of all 26-counts; (3) Marketta Hampton's observations of Laura in the hospital and her identification of various objects in her apartment; (4) testimony regarding defendant's initial non-inculpatory statement; and (5) police testimony regarding the sequences of the criminal investigation. Defendant believes that this evidence had no relevance to his eligibility for the death penalty and that its inflammatory nature improperly influenced the jury.

The purpose of the first stage of a capital sentencing hearing is to allow the jury to determine a defendant's eligibility for the death penalty free from any potentially inflammatory evidence that could improperly influence this decision. People v. Edgeston, 157 Ill. 2d 201, 224 (1993). Following this principle, only evidence having a direct bearing on the statutory prerequisites should be admitted during the eligibility stage. People v. Hooper, 172 Ill. 2d 64, 73 (1996). However, the determination of whether to admit evidence at the first stage of a capital sentencing hearing is for the trial court, and its decision will not be disturbed absent an abuse of discretion. Edgeston, 157 Ill. 2d at 224.

In the instant case, the State relied upon two separate statutory aggravating factors as its basis for invoking the death penalty. First, the State sought to prove that defendant had been found guilty of murdering a victim under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty. See Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(7). In addition, the State sought to prove that defendant murdered the victim in the course of the felony of aggravated criminal sexual assault. See Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)(c). In order to find defendant eligible for the death penalty pursuant to this felony-murder factor, the sentencing jury had to determine that the victim was killed by defendant or was physically injured by defendant substantially contemporaneously with the injuries that caused her death. See Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)(a). Moreover, the sentencing jury had to determine that defendant killed the victim intentionally or with the knowledge that the acts which caused the death created a strong probability of death or great bodily harm. See Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)(b). The State had the burden of establishing the existence of all the elements of both statutory aggravating factors beyond a reasonable doubt. See Ill. Rev. Stat. 1985, ch. 38, par. 9-1(f).

Despite defendant's assertion otherwise, we find that the trial court did not abuse its discretion in admitting the specified evidence. Initially, we observe that, as to most of the allegedly improper evidence, defendant failed to either object during the sentencing hearing or raise the issue in his post-sentencing motion. Therefore, unless deemed to be plain error, defendant has waived his challenge to most of the specified evidence. People v. Williams, 181 Ill. 2d 297, 322 (1998). Nevertheless, because defendant raises general allegations of plain error (134 Ill. 2d R. 615(a)), we address his particular evidentiary challenges.

Defendant disputes the admissibility of police testimony regarding the investigation leading to his arrest. A police detective testified about interviewing defendant's mother, Elizabeth Terrell, who stated that she left Laura Hampton alone with defendant while she went to a currency exchange to pick up a public aid check. When Elizabeth returned to the apartment, she found Laura had been injured so she took her to the hospital, accompanied by defendant. The detective also testified about verifying Elizabeth's story with the manager of the currency exchange. Defendant now asserts that testimony regarding his mother's "alibi" was both irrelevant and inadmissible under the hearsay rule. However, because the sentencing jury here was not the same jury that heard the evidence presented at defendant's trial, it was within the trial court's discretion to allow general testimony describing the circumstances of the crimes. Moreover, Elizabeth's statements to police established the duration of time defendant had to commit the crimes, contemplate a cover story, and then take actions to effectuate that story. All of these details are probative of defendant's mental state at the time of the acts. Although police testimony of Elizabeth's interview might have been hearsay, defendant did not object to this testimony or oppose it in his post-sentencing motion and, therefore, his hearsay challenge is waived. Williams, 181 Ill. 2d at 322. In addition, any error in admitting this testimony does not rise to the level of plain error. Overwhelming evidence was presented establishing defendant's eligibility for the death penalty under two aggravating factors. Evidence of Elizabeth's actions prior to the crime only established how defendant came to be alone with the victim, a fact which defendant corroborated himself in his confession. Accordingly, any error in admitting the police detective's hearsay testimony was harmless.

The State also presented police testimony that during the early stages of the investigation, defendant gave a non-inculpatory statement. Initially, defendant told police that he was in the bathroom when he heard a loud crash in the bedroom. When defendant investigated, he found Laura injured on the floor with stereo components lying on her head and legs. Defendant told the police that he was in the process of washing Laura's wounds when his mother arrived home and took Laura to the hospital. Defendant now contends that evidence of his initial non-inculpatory statement is not relevant to any of the statutory prerequisites of eligibility for the death penalty. However, evidence that defendant lied to the police and attempted to cover up the real source of Laura's injuries was relevant to establish his state of mind at the time of the murder. See Edgeston, 157 Ill. 2d at 226; People v. Rogers, 123 Ill. 2d 487, 516-17 (1988). Accordingly, the trial court did not err in allowing testimony regarding defendant's initial statement. Another police detective testified that, during the initial stages of his investigation, he spoke with a doctor who told him Laura's injuries could not have been caused by a radio falling upon her. Defendant argues that the police detective's testimony was not relevant to any matter at issue during the eligibility stage. However, establishing the actual cause of Laura's injuries was clearly required in order to prove that defendant's behavior was brutal or heinous. Moreover, we have already determined that evidence of defendant's attempts to cover up the incident was probative of his state of mind. Accordingly, this testimony was properly admitted.

Regarding Marketta Hampton's testimony, defendant argues that her testimony was irrelevant and designed to evoke sympathy from the jury. Marketta testified about observing Laura's injuries at the hospital. Her testimony established that Laura had not sustained any injuries prior to being left in defendant's care that day. Evidence of a victim's injuries are relevant to show the deliberate nature of the defendant's actions in killing that person. Hope, 168 Ill. 2d at 42. Thus, the trial court properly admitted such testimony. In her direct testimony, Marketta also identified various objects that were found in her apartment, including a hair brush, tooth brush, and metal rod. The State subsequently argued that these objects may have been used to sexually assault Laura and may have caused the internal injuries which contributed to her death. Evidence of the weapon used during the crimes is clearly relevant to establish a defendant's intent at the time of the incidents. Rogers, 123 Ill. 2d at 516-17. Moreover, the use of such an object in the present case would clearly be probative of whether defendant's behavior was exceptionally brutal or heinous. Accordingly, the trial court did not err in allowing Marketta Hampton's testimony.

Defendant also takes issue with the trial court's admission into evidence of the indictment returned against him and the certified copy of convictions showing that he had been found guilty of all 26 counts of the indictment. Defendant argues that the underlying indictment in this case was not relevant to any eligibility factor. In addition, defendant argues that the certified copy of convictions was inadmissible because certain convictions were for felonies not included in the felony-murder aggravating factor. See Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)(c). Initially, we observe that defendant has waived his challenge to the admissibility of the certified copy of convictions. Not only did defendant fail to contemporaneously object to its admission, defendant specifically stated that he had no objections to the certified copy of convictions. In addition, we do not believe that any error in admitting the certified copy of convictions would be plain error. In order to sustain its burden in showing defendant's eligibility under the felony-murder aggravating factor, the State had to show that defendant had been found guilty of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)) and that the victim was killed during the course of one of the statutory listed felonies (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)(c)). The certified copy of defendant's convictions was relevant to establish these prerequisites. Because the State presented overwhelming evidence to establish defendant's death eligibility under both statutory aggravating factors, we find that any error caused by the admission of the indictment or the evidence of defendant's other felony convictions was harmless.

Defendant next argues that the trial court abused its discretion when it allowed the jury to view several photographs taken during Laura Hampton's autopsy. Specifically, defendant argues that the photographs that depict examination of the victim's internal injuries are disgusting and any probative value they had was outweighed by their potentially prejudicial effect. Whether or not a jury is allowed to view photographs depicting a victim's injuries rests within the sound discretion of the trial court, and such decision will not be reversed unless it represents an abuse of discretion. People v. Harris, 182 Ill. 2d 114, 151 (1998); People v. Henderson, 142 Ill. 2d 258, 319 (1990). If photographs are relevant to prove any fact at issue, they are admissible and can be shown to the jury unless their nature is so prejudicial and so likely to inflame the jurors' passions that their probative value is outweighed. Henderson, 142 Ill. 2d at 319. However, if a photograph has sufficient probative value, it may be admitted in spite of its gruesome or disgusting nature. People v. Scott, 148 Ill. 2d 479, 546 (1992); People v. Lucas, 132 Ill. 2d 399, 439 (1989). Photos of a deceased victim may be utilized to prove the nature and extent of the injuries, the force ...


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