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People v. Buss

April 15, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
V.
TIMOTHY D. BUSS, APPELLANT



The opinion of the court was delivered by: Justice McMORROW

Agenda November 2, 1998

In connection with the August 7, 1995, disappearance and murder of Christopher Meyer, defendant, Timothy D. Buss, was indicted on six counts of first degree murder, three counts of aggravated kidnaping, and one count of aggravated unlawful restraint. Following a trial in the circuit court of Will County, a jury found defendant guilty of all of these charges. The same jury determined that defendant was eligible for the death penalty. After hearing evidence in aggravation and mitigation, the jury found that there were no mitigating factors sufficient to preclude the imposition of the death penalty. The circuit court sentenced defendant to death for first degree murder and imposed sentences of 30 years' imprisonment and 5 years' imprisonment for aggravated kidnaping and aggravated unlawful restraint, respectively.

On appeal, defendant argues that this court must grant him a new trial and capital sentencing hearing because of errors relating to voir dire, the denial of his pretrial motion to quash arrest and suppress evidence, errors that occurred at trial, and errors at both stages of the sentencing hearing. 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). We affirm defendant's convictions and death sentence.

BACKGROUND

At defendant's 1996 trial, Mika Moulton, Christopher Meyer's mother, testified that, in August 1995, she and her children lived in Aroma Park, Illinois. During the afternoon of August 7, 1995, she gave 10½-year-old Christopher permission to go to the Aroma Park boat launch on the Kankakee River. Moulton instructed Christopher to return home at 5 p.m. that day. When he left on his bicycle for the boat launch, Christopher was wearing blue shorts, a green patterned T-shirt, Chicago Blackhawks high-top tennis shoes, and Ninja Turtle underwear. When Christopher did not return home that evening, Moulton looked for him without success. She notified police, who began a search for Christopher.

In the days following Christopher's disappearance, members of the team searching for him found Christopher's clothing and bicycle in areas around the Kankakee River. Searchers testified that, while dragging the river on August 8, they found one of Christopher's shoes floating near the Aroma Park boat launch. That same day, searchers found the bicycle Christopher was last seen riding. The bicycle was recovered across the river from the boat launch in a wooded area east of the railroad trestle on Birchwood Drive. During the morning of August 9, 1995, Christopher's other shoe was found floating in the Kankakee River near the Kankakee Country Club, which is downstream from the Aroma Park boat launch. On August 12, searchers found pieces of Christopher's clothing in the area around the gravel parking lot for Hunting Area 10 in the Kankakee State Park. On a path leading from the parking lot, there was a piece of Christopher's T-shirt on the ground, and a pair of Ninja Turtle underwear was hanging in a nearby bush.

While the search for Christopher proceeded, police learned that several individuals had seen Christopher and a man resembling defendant at the boat launch during the afternoon of August 7. Jacob Mailloux, who was 14 years old at the time of trial, testified that he went to the boat launch with his friend Paul Buckner during the afternoon of August 7. As he and Buckner fished at the bayou, an area adjacent to the boat launch, Mailloux saw Christopher talking to a man. Mailloux knew Christopher because he had seen him at the boat launch before. The man with Christopher had dark hair and a mustache and was wearing a turquoise tank top and blue jean cut-off shorts. During a conversation Mailloux had with this man, the man said that he had been raised in Aroma Park, had family in the area, and had just returned from Florida. The man also talked to Mailloux about salt water fishing in Florida. Mailloux noticed that the man's tackle box contained a filet knife and lures that were too big to be used by fishermen in the Aroma Park area. Although Mailloux was unable to make a positive identification of defendant in court or at the lineup he viewed, he testified that defendant was similar to the man he saw with Christopher.

Fifteen-year-old Edward Meier testified that, around 4 p.m. on August 7, 1995, he was at the boat launch with his friends Dustin and Darren Posing. Meier saw Christopher walk out of the woods on a path leading from the fishing area adjacent to the boat launch. Christopher walked to a car, where he spoke to someone, after which he jogged to the boat ramp to wash mud from his shoes in the river. He then retrieved his bike, which was leaning on a nearby tree. Darren suggested that Christopher ride his bike into the river but Christopher refused, saying he had to be home by 4:30 p.m. Dustin told him it was only 4:17 p.m., but Christopher replied that he had to leave. Meanwhile, the car slowly circled around the parking lot and then drove out of the lot toward Harry's Bait Shop. Christopher quickly rode out of the parking lot after the car. On August 10, 1995, Meier selected defendant's car from 25 or 30 cars in the parking lot of the Kankakee County sheriff's department and identified it as the car he saw at the boat launch on August 7.

Darren Posing's testimony was essentially the same as Meier's, except that he did not see Christopher talking to anyone at the boat launch. Posing, who was 12 years old at the time of trial, did, however, see one car in the boat launch parking lot, a gray or dark blue car that appeared to be a 1984 Oldsmobile Ciera. He told police that defendant's car was similar to the one he saw at the boat launch. In addition, he testified that Christopher rode toward Harry's Bait Shop when he left the parking lot of the boat launch.

Beth Waselewski testified that she was at the Aroma Park boat launch with her boyfriend, Jason Forbes, on August 7, 1995. She saw Christopher pushing his bike and following a man in his late thirties or early forties. The man wore a dark sleeveless shirt, had a mustache, had dark hair, and was smoking a cigarette. Christopher and this man were walking out of the woods on the path leading from the bayou. Waselewski saw a dark gray four-door car in the parking lot of the boat launch but was unable to tell members of the Kankakee County sheriff's department whether the car she saw at the boat launch was among the cars she later viewed in the parking lot of the department. She was also unable to tell whether the man she saw with Christopher was in a lineup she viewed, but she testified that it was "very possible" that defendant was that man, and it was "possible" that defendant's car was the one she saw at the boat launch.

Other individuals saw defendant or defendant's car in the Aroma Park area around August 7. Charles Henry testified that, in August 1995, he lived east of the trestle on Birchwood Drive. Across the road from his house there was a park between the road and the river. On August 7, 1995, he was driving home from work when he saw a car in the parking area of the park. The car was parked facing him, and there was a man standing behind the car by the open trunk. As Henry drove past the park, he had a side view of the man. He made eye contact with the man when the man turned to look at him.

According to Henry, the man had dark, wavy hair and was wearing blue jeans and a gray T-shirt. Henry did not notice any facial hair on the man, but he did see a filet knife in a leather case protruding from the man's back pocket. Henry, a fisherman, explained that it was common for fishermen to have this type of leather case and filet knife, which he described as a thin, single-edged, flexible knife. Henry could not remember whether he saw the car and the man when he came home for lunch between 12:30 and 1 p.m. or when he returned home from work between 4:30 and 5:30 p.m.

Henry reported his observations to police on August 9. On August 10, Henry viewed a group of 20 to 25 cars in the parking lot of the Kankakee County sheriff's department. From these cars, he selected defendant's car, which he stated looked like the car he saw on August 7. On August 11, Henry viewed a lineup, from which he identified defendant as the person he saw on August 7. Henry also made a courtroom identification of defendant.

Bobbye Fancher testified that, at 12:45 a.m. on August 7, 1995, she was driving to work on Route 113 when she saw an older model silver-blue Spectrum turn in front of her from a dirt road just west of Hunting Area 7 in the Kankakee State Park. At about 9:25 p.m. on August 8, Fancher was driving on the same route when she saw the same car turn onto Route 113 at the same location. The car did not turn on its headlights for one-half to one mile. The man driving the car had a mustache. Fancher contacted police and, after viewing a group of 23 to 35 cars at the police station, she identified the defendant's car as the one she saw on August 7 and 8. She admitted having worked with defendant's father at one time but stated that she was unaware that defendant had been arrested for Christopher's murder when she contacted police about the car she saw. David Buss testified that he and Fancher had had disagreements at work but that they had last worked together 15 to 20 years ago.

According to records from the Illinois Secretary of State, defendant owned a 1986 four-door Chevy Spectrum around the time of Christopher's murder. In June 1995, defendant obtained Illinois license plates for this car and title was transferred from Florida to Illinois.

Other testimony by some of defendant's neighbors linked him to Christopher's disappearance. Candace Adkins testified that, in August 1995, she lived in the same apartment building as defendant. He had moved there from Florida in May of that year. On August 6, her sister returned a hammer that they had borrowed from defendant. The hammer was clean when they returned it to him. Around 1 p.m. on August 7, she saw defendant's car at the apartment building, but it was gone when she looked for it around 4, 5, or 6 p.m. that day. On August 9, defendant asked Adkins if she knew where he was on Monday (August 7) and told her that he was a suspect in Christopher's disappearance. Adkins noticed that defendant had three scratches on his forearm when she saw him on August 9.

Candace's sister, Laura Adkins, testified that she lived with her sister in August 1995 and had seen defendant that summer with a filet knife in a case on his belt. On August 8, she saw him sitting in his car for long periods of time in a daze. He had not acted this way in the past.

Members of the Kankakee police department and Kankakee County sheriff's department testified concerning their attempts to speak to defendant about Christopher's disappearance. On August 9, police visited the home of David and Terry Buss, defendant's father and stepmother. Terry Buss refused to speak to police that morning without an attorney. That afternoon, however, David Buss told police that defendant was living in Joliet with his brother. When police visited defendant's Joliet address that afternoon, no one was home. Defendant was also not at his place of employment. Police placed defendant's apartment under surveillance and observed him return home that evening. At around 9 p.m., police saw defendant's car parked in front of his apartment building but, shortly thereafter, police realized that defendant's car had disappeared. Their attempts to locate the car that night were unsuccessful.

Wanda Poole, a neighbor of defendant's in August 1995, testified that she is familiar with defendant's car. Around 8:40 or 9 p.m. on August 9, she was sitting in her garage when she saw defendant's car traveling down the alley behind her home at 35 to 40 miles per hour. Although it was dark, the car's headlights were off.

Theresa Billingsley testified that she was working as a desk manager at the B and P Motel in Braidwood on the night of August 9. A man checked into the motel at about 10 p.m. under the name of Jim Benson. The man was driving a blue-gray, older model, four-door Spectrum with fishing rods in the back window. He was smoking when he registered at the motel and was assigned a smoking room. Billingsley contacted police because she believed that this man resembled the composite sketch on a flier police had distributed regarding Christopher's disappearance. In response to Billingsley's call, police placed defendant under surveillance at the motel.

Marsha Pressler testified that she worked as a desk clerk at the B and P Motel during the day on August 10. At around 8:25 a.m., defendant checked out of the motel. After defendant left the motel office, Pressler saw him place a pair of boots in the motel dumpster. Pressler asked another guest at the motel to retrieve the boots from the dumpster and place them in a plastic bag. Pressler gave this bag to Braidwood police officer Keith Kemp, who testified that the boots were "water soaked" but in good condition when he received them.

Kankakee County Deputy Sheriff Brady Bertrand, the police officer assigned to watch defendant at the motel, testified that he also observed defendant place a pair of boots in the motel dumpster and then drive away from the motel in a light blue or gray Chevy Spectrum. Bertrand followed defendant to the Wilmington Dam.

William Treadman, testified that he was at the Wilmington Dam around 9 a.m. on August 10. Defendant approached Treadman and asked whether Treadman had seen him fishing at the Dam before. Treadman responded that he had not.

David Buss explained at trial that, after police came to his house on August 9, he had contacted defendant and advised him to spend the night at a motel around the Wilmington Dam, speak to people at the Dam in the morning to "verify his whereabouts" on August 7, and turn himself in to police.

After Bertrand and defendant arrived at the Dam on August 10, four other officers joined Bertrand. Three of those officers, Lieutenant Gary Mitchell, Detective Rich Sims, and Lieutenant Larry Osenga, approached defendant. Mitchell identified himself and told defendant they wanted to speak to him. Defendant appeared nervous, walked in circles, and did not make eye contact with the officers. In addition, when Sims attempted to take a picture of him, defendant turned his face away and put his hands up to shield his face.

At the request of the police officers, defendant then drove his car to the sheriff's department. Two officers accompanied defendant to the sheriff's department in their own cars. Defendant parked his car in the parking lot of the sheriff's department. While he was inside, police had a towing company bring other similar cars to the parking lot, after which police asked potential witnesses if they recognized any of the cars in the parking lot. That afternoon, after consulting with his attorney, defendant consented in writing to the search of his car. Defendant was arrested on August 10, 1995.

Christopher's body was found in Will County on August 15, 1995. Will County Sheriff's Deputy Scott Swearengen testified that he and another deputy were searching the hunting areas of the Kankakee State Park during the early morning hours of August 15. In a clearing at the end of a path leading from the parking area of Hunting Area 7, they found the body of a small child in a shallow grave under a sheet of plywood.

Forensic evidence presented by the State established that the body was that of Christopher and that he had died from multiple stab wounds prior to sunset on August 7. Dr. Edward Pavlik, an expert in forensic odontology, testified that he was asked to assist in identifying the body recovered in Hunting Area 7. Based on the development of the teeth in the body and a comparison of these teeth to photographs of Christopher's teeth before his death, Pavlik determined that the body belonged to Christopher.

Dr. Larry Blum, an expert in forensic pathology, testified that he performed the autopsy of Christopher's body. The body was unclothed and showed signs of decomposition. Blum found a contusion to Christopher's jaw and 52 stab wounds and cuts on the body, primarily to the chest, abdomen, and back. In Blum's opinion, the stab and slash wounds were made by a sharp, single-edged knife that was relatively long and narrow. This knife could have been a filet knife. There was also evidence that this type of knife had been used to cut Christopher's genital area; his external genitalia were missing. None of Christopher's wounds, including one stab wound to his heart and 12 to his lungs, was sufficient to cause immediate death. Blum opined that the cause of death was multiple stab wounds.

Neal Haskell, a forensic entomologist, explained that certain insects are attracted to human remains, sometimes within seconds of death, and lay their eggs in these remains. Based on the stage of development of the insects found in a corpse, a precise estimation of the time of death may be obtained. Haskell analyzed the insects recovered from Christopher's body, as well as the environmental conditions to which the body had been subjected. He concluded that the time of death was most likely sometime before sunset on August 7.

Other forensic evidence connected defendant to Christopher's murder. Randy Hartman, a Kankakee County police detective and evidence technician, helped process defendant's car after defendant consented to the search. He testified that he vacuumed the car and placed the collected debris in sealed bags. On the floor of the back seat, Hartman found a bucket and hammer with mud caked on the claw. There were fishing poles in the back window and a tackle box in the trunk. There was no filet knife in this tackle box, but the box did contain various lures, sinkers, and a salt water fishing hook. There was blood on the carpet of the trunk, as well as on items in the trunk, such as a lug wrench, dent puller, and bottle.

The police also searched defendant's apartment, as well as his room at the B and P Motel. In the motel dumpster, police found a motel receipt with the name of Jim Benson on it. No filet knife was found in the apartment or at the motel.

Ralph Meyer, a forensic microscopist for the Illinois State Police Forensic Science Lab, testified that he analyzed hairs recovered from defendant's car and from the T-shirt fragment found in Hunting Area 10. He obtained hair samples from Christopher's body and from defendant. He stated that the characteristics of two hairs recovered from the front passenger area of defendant's car matched the characteristics of Christopher's hair, which was very unique in terms of structure and pigment. Characteristics of a hair found on the T-shirt fragment also matched those of Christopher's hair.

Kenneth Knight, a forensic scientist with the Illinois State Police Crime Lab and an expert in forensic microscopy, testified that he analyzed soil recovered from the claw of the hammer found in defendant's car and soil from the grave site. He found that these soil samples were consistent with each other.

Robert Hunton, a forensic scientist with the Illinois State Police and an expert in foot marks testified that he compared a partial footprint found at the grave site to the boots defendant discarded at the B and P Motel. The pattern and size of the right boot was the same as the footprint.

Gail Kienast, a forensic scientist at the Illinois State Bureau of Forensic Sciences and an expert in serology and blood analysis, testified that she analyzed items recovered by police in this case. She determined that there was human blood on the dent puller found in the trunk of defendant's car. On carpet from the trunk there was a stain of human blood that had soaked through the carpet. There was human blood on a box found at the grave site. There was also blood on the boots defendant had placed in the motel dumpster, although the test to determine whether this blood was human was not positive.

William Frank, the DNA Research Coordinator for the Illinois State Police Forensic Sciences Command and an expert in forensic DNA (deoxyribonucleic acid) analysis, testified that he analyzed DNA extracted from an inhaler prescribed for Christopher, from carpet from the trunk of defendant's car, from a piece of Christopher's right femur, and from a bloodstained box found at the grave site. Frank used two methods of DNA analysis: PCR (polymerase chain reaction) and RFLP (restriction fragment length polymorphism). Each of these methods is used to identify particular characteristics of a given sample of DNA. Those characteristics are referred to as the "profile" of that DNA. Because each method of analysis, PCR and RFLP, identifies different characteristics, two different profiles are obtained by subjecting a sample of DNA to both types of analysis.

Frank used the PCR method to analyze DNA found on the inhaler, carpet, femur, and box. The PCR profile of the DNA from each of these items was the same. Frank calculated that this particular DNA profile could be found in one out of 19,000 Caucasian individuals.

Using the RFLP method, which is more discriminating, Frank compared the DNA in blood samples from Christopher's parents and defendant to the DNA in blood found on the box and carpet. (Because the amount of DNA extracted from Christopher's inhaler and femur was insufficient for the RFLP method of analysis, Frank used DNA from Christopher's parents to determine whether the blood from the box and carpet belonged to Christopher.) By comparing the DNA profiles he obtained, Frank determined that the blood on the box and the carpet came from a child of Mika Moulton and James Meyer, Sr., Christopher's father. Frank calculated that the chance of two Caucasian parents producing a child with the same RFLP DNA profile as the DNA found on the carpet and box was one out of 3.8 million.

Having obtained a PCR and an RFLP profile for the DNA found on the box and carpet, Frank then estimated the frequency of DNA with these both of these profiles in the population. He determined that a person with such DNA would occur in the Caucasian population only 1 out of 419 million times.

The parties stipulated that defendant was 28 years old at the time of trial.

The defense presented the testimony of three witness who believed they saw defendant around the time of Christopher's disappearance. In an effort to show that such eyewitness identifications are unreliable, the defense then called witnesses whose testimony indicated that defendant was not the individual these three witnesses saw. For example, Kankakee County Deputy Sheriff Marcia Dillon testified that, while she was working at the search command center on August 8 at 6 a.m., she saw a man resembling the composite sketch police had distributed. The man drove into the command center parking lot in a blue-gray, early eighties model Buick, Chevy, or Oldsmobile. Dillon could not positively identify defendant as the driver and testified that defendant's car was not the car she saw that morning.

Cindy Berglund testified that, around 1 p.m. on August 8, she was at a pond a half hour from Kankakee with her 13-year-old son, David Berglund. A man driving a silver-blue Chevy exited his car and began talking to her son. After seeing defendant's picture in the newspaper, she believed that the man she saw talking to her son was defendant, and she contacted police. David Berglund testified that the man talked to him about fishing. Both Berglunds testified that, if the man they saw was not defendant, he was defendant's twin. Neither Berglund, however, was able to identify the car they saw from the group of cars police showed them.

In contradiction to Dillon's and Berglund's testimony, Michelle Cash, one of defendant's neighbors, testified that her children did not awaken defendant until 10 a.m. on August 8. In addition, Cash testified that, between 10:30 a.m. and 2 p.m. on August 8, defendant was with her running errands.

Like Berglund, Francis Wood testified that she was at a lake near Wilmington with her grandchildren at about 7:30 or 8:30 p.m. on August 5, 1995, when a man approached her grandson and spoke to him about fishing. He was driving an eighties model dark-gray automobile with a dent on the driver's side. She contacted police about the incident after seeing a picture of defendant on television. She testified that she believed the man was defendant. Defendant's father and aunt, however, testified that defendant was at his sister's wedding and reception on August 5 from 2 to 10:30 p.m.

In addition, to rebut Fancher's testimony that she saw defendant driving near Hunting Area 7 on the evening of August 8, defendant's grandmother, Alice Buss, testified that defendant was with her in Kankakee that evening from 6 p.m. to 10 p.m.

Defendant sought to further undermine the identifications of him by the State's witnesses by presenting the testimony of witnesses who thought they may have seen defendant and Christopher together but who were unable to identify defendant at lineups. For example, Thomas Dellibac testified that, on August 7 at around 5:30 p.m., he saw a boy and a man fishing on the Kankakee River 50 to 100 yards downriver from the Aroma Park boat launch. The boy resembled Christopher and the man looked similar to defendant. Dellibac could not, however, positively identify anyone in the lineup police showed him.

Similarly, Steven Jones testified that, around 4:30 p.m. on August 7, 1995, he saw a man and a blond-haired boy in a car leaving a playground on the Kankakee River in Aroma Park. The car was traveling at a high rate of speed, and there was a 20-inch bicycle in the trunk. Although he first tentatively selected defendant from a lineup he saw in October 1995, he was unable to positively identify the driver of the car.

To show that defendant was not the only man in Aroma Park to have recently arrived from Florida around the time of Christopher's murder, defendant also presented the testimony of Michael Ingalls, who testified that, around noon on August 8, he had a conversation with a man in Harry's Bait Shop in Aroma Park. The man said that he had driven to Illinois from Florida. The man was in his late thirties to mid-forties, had black hair and a mustache, and was driving a white compact car.

After hearing this evidence, the jury found defendant guilty of all of the charges against him. The same jury found defendant eligible for the death penalty based on the following three statutory aggravating factors: (1) defendant had been convicted of murdering two or more individuals (720 ILCS 5/9-1(b)(3) (West 1994)); (2) the murder occurred in the course of a felony (720 ILCS 5/9-1(b)(6) (West 1994)); and (3) the murder victim was under the age of 12 and his death resulted from exceptional brutal or heinous behavior indicative of wanton cruelty (720 ILCS 5/9-1(b)(7) (West 1994)). Following a hearing at which extensive testimony concerning aggravation and mitigation was presented, the jury found that there were no mitigating factors sufficient to preclude the imposition of the death penalty. The circuit court entered judgment on counts I (intentional first degree murder), VIII (aggravated kidnaping), and X (aggravated unlawful restraint) of the indictment. The court sentenced defendant to death for the first degree murder conviction and imposed sentences of 30 years' imprisonment for the aggravated kidnaping conviction and five years' imprisonment for the aggravated unlawful restraint conviction.

ANALYSIS

I. Jury Selection

Defendant claims that the voir dire conducted by the court in this case was deficient in several respects, as a result of which he was denied his right to a fair and impartial jury under the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV). Specifically, he contends: (1) the court erred in refusing to ask certain questions proposed by the defense; (2) the court erred in refusing to grant defense requests that certain jurors be excused for cause; and (3) the manner in which the court conducted voir dire denied him a fair and impartial jury. According to defendant, these errors require that he receive a new trial and sentencing hearing.

A. Refusal of Defense Voir Dire Questions

Before voir dire began, the defense made a motion for attorney participation in voir dire. The circuit court denied this motion. In addition, defendant provided the court with a number of questions for the court to include in its questioning of the venire, as well as a written questionnaire for the jurors. The court had provided the parties with the 23 questions it planned to ask prospective jurors, but the defense argued that the court's questions did not address certain subjects. The court refused to use defendant's questions in voir dire and refused to require jurors to complete the defense questionnaire. The court found that its own questions covered the issues raised by defendant, that questions proposed by defendant were an attempt to "educate" the jurors concerning defendant's position, and that defendant's proposed questions concerned matters more appropriate for instruction or argument. During the course of voir dire, defendant asked the circuit court to reconsider its rulings on these voir dire issues, but the court refused. Defendant now argues that the circuit court's refusal to ask the questions he proposed violated his constitutional right to an impartial jury by preventing him from identifying unqualified jurors.

Under the fourteenth amendment to the United States Constitution, a defendant in a capital case has a right to an impartial jury for capital sentencing. Morgan v. Illinois, 504 U.S. 719, 727, 119 L. Ed. 2d 492, 501, 112 S. Ct. 2222, 2228-29 (1992); U.S. Const., amend. XIV. This constitutional guarantee includes the right to an adequate voir dire to permit the identification of unqualified jurors. Morgan, 504 U.S. at 729, 119 L. Ed. 2d at 503, 112 S. Ct. at 2230. Accordingly, voir dire should "ascertain sufficient information about prospective jurors' beliefs and opinions so as to allow removal of those members of the venire whose minds are so closed by bias and prejudice that they cannot apply the law as instructed in accordance with their oath." People v. Cloutier, 156 Ill. 2d 483, 496 (1993).

In Illinois, a defendant's right to an impartial jury does not include the right to examine jurors himself. People v. Peeples, 155 Ill. 2d 422, 459 (1993). Instead, the circuit court has the primary responsibility for examining prospective jurors, and the manner and scope of voir dire is within its discretion. People v. Williams, 164 Ill. 2d 1, 16 (1994). So long as the procedures employed by the circuit court provide a reasonable assurance that prejudice, if any, would be discovered, the court's exercise of discretion will be upheld. Peeples, 155 Ill. 2d at 459.

1. Questions Concerning Consideration of Mitigation

Defendant contends that it was error for the circuit court to refuse to ask prospective jurors questions he submitted concerning their ability to consider and weigh mitigating evidence. According to defendant, as a result of the court's refusal to ask these questions, he was prevented from intelligently exercising his challenges and denied a fair and impartial jury.

We first address the circuit court's refusal to ask the following two questions submitted by the defense:

"If the State proves Mr. Buss guilty of first degree murder beyond a reasonable doubt, and also proves he is eligible for the death penalty, a hearing will be held as to whether he lives or dies, where you would hear evidence both against him (aggravation) and for him (mitigation). Would you be able to keep an open mind in considering this question?" "If the State proves Mr. Buss guilty of first degree murder beyond a reasonable doubt, and also proves he is eligible for the death penalty, are your feelings such that there are no mitigating factors which you feel should prevent imposition of the death penalty?"

The circuit court refused to ask the venire these questions because it found that its own questions covered these concepts. The defendant argues, however, that the court's questions were general and did not cover the three stages of a death penalty case or the jurors' ability to consider mitigating evidence.

Defendant's argument is belied by the record. Before questioning the prospective jurors about their views on the death penalty, the circuit court explained to the venire the three phases of a death penalty case and cautioned the venire not to infer from its Discussion of the death penalty that the defendant was guilty or that a particular penalty was appropriate. In addition, during voir dire, the circuit court posed the following questions to the venire:

"Are your feelings about the death penalty such that you would always vote to impose the death penalty in every case where there has been a finding of guilty?" "Will you be able to keep an open mind and follow the court's instructions in each phase of this proceeding?" "Do you understand that simply because a verdict of guilty of the charge of murder of Christopher Meyer is returned, if in fact such a verdict is returned, that a sentence of death does not automatically follow from that?"

Our review of the record convinces us that the concepts contained in defendant's proposed questions were more than adequately covered by the circuit court's statements to the venire and its own questions. We are unable to perceive what incremental value defendant's questions would have had. Consequently, we find that the circuit court did not err in refusing to ask defendant's proffered questions. See Peeples, 155 Ill. 2d at 460-62 (circuit court did not err in refusing voir dire questions proposed by the defense when court's general questions were sufficient to expose areas of bias) .

Defendant also asserts that the circuit court's failure to ask these other questions he proposed caused jury selection to be constitutionally inadequate:

"Do you understand that it is not a question of counting how many aggravating circumstances the State may try to present versus how many mitigating circumstances the Defense may try to present?" "Do you understand that the existence of any one mitigating circumstance could outweigh all of the aggravating circumstances?" "Do you understand the term `mitigate': -it means to make less severe?" "Would you be able to consider any mitigating factors presented by the defense? a. Would you be able to consider and give full weight to psychiatric/psychological testimony? b. Would you consider mercy as a possible mitigating factor, based upon the evidence?"

The circuit court refused to ask these questions on the basis that they were adequately covered by its own questions or involved matters more appropriate for instructions or argument. On more than one occasion, the circuit court commented to the defense, "I think *** what you are doing here is attempting to educate these jurors with regard to the direction you want your case to go in."

As the circuit court observed, these four questions, as well as the other questions defendant contends should have been asked of the venire, indicate an attempt by the defense to focus the attention of the venire on mitigation evidence. Although defendant argues that he was entitled to determine whether the venire was biased against psychological evidence or mercy, voir dire is not to be used to indoctrinate jurors or to impanel a jury with a "particular preDisposition." People v. Bowel, 111 Ill. 2d 58, 64 (1986).

Moreover, under Supreme Court Rules 234 and 431, voir dire questions "shall not directly or indirectly concern matters of law or instructions." 134 Ill. 2d R. 234; see also 134 Ill. 2d R. 431. The Illinois Pattern Jury Instructions (IPI) used in this case provide that "[u]nder the law, the defendant shall be sentenced to death if you unanimously find that there are no mitigating factors sufficient to preclude imposition of a death sentence" and that "[m]itigating factors are reasons why the defendant should not be sentenced to death." See Illinois Pattern Jury Instructions, Criminal, Nos. 7C.05, 7C.06 (3d ed. 1992) (hereinafter IPI Criminal 3d). By seeking to inform the jury how to weigh mitigating evidence and how to define the term "mitigate," defendant's proposed questions undoubtedly involved "matters of law or instructions" in violation of Rules 234 and 431 (134 Ill. 2d Rs. 234, 431). Accordingly, the circuit court acted properly in denying defendant's request to ask these questions.

Defendant's reliance on this court's decision in People v. Stack, 112 Ill. 2d 301 (1986), as authority for the proposition that the circuit court was required to ask members of the venire whether they would consider psychiatric or psychological testimony and mercy is misplaced. In Stack, this court held that it was error for the circuit court to refuse to ask members of the venire about their feelings concerning the defense of insanity. The Stack court reasoned: "Just as the State is allowed to probe the venire for jurors who would not follow the law of capital punishment, the defendant should be allowed to identify and challenge those prospective jurors who would refuse to follow the statutory law of the insanity defense." Stack, 112 Ill. 2d at 313.

Contrary to defendant's argument, the holding in Stack did not require the circuit court in the case at bar to ask jurors about bias concerning psychological evidence or mercy. While it is appropriate to ask prospective jurors whether they will follow the law (see, e.g., People v. Davis, 95 Ill. 2d 1, 17-18 (1983)), the purpose of voir dire is not to ascertain prospective juror's opinions with respect to evidence to be presented at trial (see People v. Howard, 147 Ill. 2d 103, 135-36 (1991) (circuit court did not err in refusing to ask jurors their attitudes about handguns)). Accordingly, while it was error for the circuit court in Stack not to ask prospective jurors whether they would refuse to apply a statutory defense, it was not error for the circuit court in this case to refuse to ascertain prospective jurors' views on defendant's theory of defense (see Bowel, 111 Ill. 2d at 65 (circuit court properly refused questions aimed at selecting jury receptive to theory of defense).

2. Questions Concerning Imposition of the Death Penalty in Particular Circumstances

In addition to requesting questions concerning prospective jurors' views on mitigating evidence, defendant requested that the circuit court ask members of the venire whether they would automatically impose the death penalty if they found that certain statutory aggravating factors were present in the case. Defendant now argues that the circuit court's refusal to use these questions denied him his right to an impartial jury for sentencing.

Pursuant to the United States Supreme Court decision in Witherspoon v. Illinois, 391 U.S. 510, 522 n.21, 20 L. Ed. 2d 776, 785 n.21, 88 S. Ct. 1770, 1777 n.21 (1968), the State is entitled to excuse for cause prospective jurors who would refuse to vote for the death penalty under any circumstance. See also Wainwright v. Witt, 469 U.S. 412, 420-23, 83 L. Ed. 2d 841, 849-51, 105 S. Ct. 844, 850-51 (1985). In Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992), the Court held that a defendant has a corresponding constitutional right to "life-qualify" a jury; that is, a defendant may exclude for cause prospective jurors who would automatically vote for the death penalty in every capital case. The Court explained in Morgan:

"A 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. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. Therefore, based on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any prospective juror who maintains such views." Morgan, 504 U.S. at 729, 119 L. Ed. 2d at 502-03, 112 S. Ct. at 2229-30.

To permit a defendant to identify jurors with these views and intelligently exercise his challenges for cause, the Morgan Court held that a defendant is entitled to have prospective jurors asked whether they would vote for the death penalty in every case involving a conviction for a capital offense, regardless of the circumstances of the case. Morgan, 504 U.S. at 735-36, 119 L. Ed. 2d at 506-07, 112 S. Ct. at 2233.

As required by Morgan, the circuit court in this case included a "reverse-Witherspoon"question in its voir dire inquiry. It asked prospective jurors, inter alia, "Are your feelings about the death penalty such that you would always vote to impose the death penalty in every murder case where there has been a finding of guilt." Finding this question sufficient to comply with Morgan, the circuit court rejected defendant's request to ask these additional questions:

"Would you impose the death penalty in all murder cases?" "Would you impose the death penalty in all murder cases where the deceased was also a child?" "Would you impose the death penalty in all murder cases which involved the kidnaping and death of a child?" "Would you impose the death penalty in all murder cases which involved a child under twelve (12) years of age and the death resulted from exceptionally brutal and heinous behavior indicative of wanton cruelty?" "Do you believe that if a person has been previously convicted of murder of a child and is found guilty of first degree murder of another child, that such person should automatically receive the death penalty? (a) Is that a belief you hold strongly? (b) Would it be hard for someone to change your mind? (c) If you were on the jury, would it be difficult or next to impossible for someone to convince you or tell you to set that view aside?"

We find no error in the court's ruling.

Defendant's argument that it was error for the circuit court to omit these questions from voir dire is in direct conflict with several recent holdings by this court. In People v. Jackson, 182 Ill. 2d 30 (1998), we held that Morgan does not require the circuit court to ask prospective jurors whether they would automatically impose the death penalty in a case involving particular aggravating factors. In Jackson, as in the case now before us, the circuit court asked prospective jurors whether they 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?" Jackson, 182 Ill. 2d at 61. The defendant in Jackson requested that the circuit court also ask the venire, " `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?' " Jackson, 182 Ill. 2d at 61. The circuit court refused.

We held that the circuit court properly denied the defendant's request that it ask these additional questions of the venire. Jackson, 182 Ill. 2d at 61. We explained that, under our decisions in People v. Brown, 172 Ill. 2d 1 (1996), and People v. Hope, 168 Ill. 2d 1 (1995), a defendant's right under Morgan to "life-qualify" a jury does not include the right to have prospective jurors asked whether they would automatically impose the death penalty in a case involving certain aggravating factors. In Brown and Hope, we interpreted Morgan as requiring that jurors be asked only whether they would automatically vote for the death penalty based on a finding of guilt in a capital case. Jackson, 182 Ill. 2d at 61-62. The Morgan holding, we stated, is intended to permit discovery of jurors to whom the presence of mitigating or aggravating factors is " `entirely irrelevant.' " Jackson, 182 Ill. 2d at 59-60, quoting Hope, 168 Ill. 2d at 29-30. Asking jurors whether they would " `vote to impose the death penalty, given a particular set of circumstances, is thus not required by Morgan.' " (Emphasis in original.) Jackson, 182 Ill. 2d at 59-60, quoting Hope, 168 Ill. 2d at 29-30.

Defendant presents us with precisely the same argument we rejected in Jackson. The questions he argues were erroneously omitted from voir dire in his case are virtually identical to the ones at issue in Jackson. Defendant presents us with no compelling reason to overturn Jackson, Brown, and Hope, and we decline to do so. Indeed, although Jackson was decided prior to the filing of defendant's reply brief, he fails to explain why its holding should not be applied to his case. Under Jackson, Brown, and Hope, the circuit court's refusal to ask the questions submitted by defendant was proper.

3. "Stand Alone" Question

This court has also recently rejected another of defendant's arguments regarding voir dire questions. Defendant argues that it was error for the circuit court to refuse to ask prospective jurors this question: "In the event you are to consider [the death penalty] question, you would have to unanimously vote 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 in this way?" (Emphasis in original.) The circuit court refused to ask this question on the basis that its substance was covered by the court's instructions and the questions the court already planned to ask the venire.

Defendant argues that the circuit court was required to include his "stand alone" question in its voir dire inquiry under this court's decision in People v. Zehr, 103 Ill. 2d 472 (1984). In Zehr, this court held that the circuit court erred when it refused a defendant's request to have prospective jurors asked whether they understood that defendant was presumed innocent. This court stated:

"We are of the opinion that essential to the qualification of jurors in a criminal case is that they know that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be held against him. If a juror has a prejudice against any of these basic guarantees, an instruction given at the end of the trial will have little curative effect." Zehr, 103 Ill. 2d at 477.

Based on this reasoning, this court held that a question concerning the presumption of innocence was required. ...


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