The opinion of the court was delivered by: Justice Bilandic
Defendant, Delbert Heard, was charged in the circuit court of Cook County with 12 counts of first degree murder, 6 counts of home invasion, one count of residential burglary, and one count of burglary. These charges related to the November 11, 1992, murders of Natalie Wilson, Kenneth Seals, and Zita Jones. Prior to defendant's trial, the State nol-prossed three counts of murder, three counts of home invasion, the residential burglary count, and the burglary count. The jury returned a verdict of guilty against defendant on three counts of first degree murder, and the trial court entered judgment on these counts. The jury returned a verdict of not guilty on the home invasion counts. Defendant filed a post-trial motion for judgment of acquittal or a new trial. The trial court denied defendant's motion.
Defendant waived a jury for the death sentencing hearing. The trial court found defendant eligible for the death penalty based upon the statutory aggravating factor that the defendant murdered two or more individuals. 720 ILCS 5/9-1(b)(3) (West 1992). After considering evidence in aggravation and mitigation, the trial court found no mitigating factors sufficient to preclude imposition of the death penalty and sentenced defendant to death.
Defendant's death sentence has been stayed pending direct review by this court. See Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). For the reasons that follow, we affirm defendant's convictions and death sentence.
The evidence adduced at trial showed that on November 11, 1992, Natalie Wilson, Natalie's 10-year-old daughter, Tanquinka (nicknamed TQ), and Natalie's cousin, Zita Jones, lived in a first-floor apartment behind a storefront at 136 East 118th Street in Chicago. At the time of the murders, Kenneth Seals was Natalie's boyfriend, and Natalie was pregnant with Kenneth's child. Natalie and Kenneth began their relationship in April of 1992. Previously, defendant (nicknamed Heavy) had been Natalie's boyfriend for approximately five years. Sometime in 1992, Natalie and defendant ended their relationship.
TQ testified that, on November 10, 1992, at approximately 8 p.m., defendant knocked on the front door of Natalie's apartment and asked if he could enter. Natalie, Kenneth, and TQ were all in the apartment. When Natalie told defendant that he could not come into the apartment, defendant replied, "I'm not going to hurt you." Defendant asked where TQ was, stating that he wanted to buy some of the candy that TQ was selling for a school fundraiser. Natalie told defendant that TQ was not home. Kenneth did not say anything to defendant. Defendant kicked the door and left.
TQ then bathed and went to bed. TQ's bedroom was next to Natalie's bedroom. There was no heat in TQ's room because the radiator was in Natalie's room. The door that led from TQ's room to Natalie's room was therefore kept open. Later that evening, TQ heard the side door unlock, and heard Zita and her boyfriend talking and laughing. Zita and her boyfriend went into Zita's bedroom. TQ later heard Zita and her boyfriend walk back to the side door and unlock it. TQ heard the door lock again and then heard Zita walk back to her bedroom.
As TQ was going back to sleep, she heard the door unlock again, slower this time, and she heard the floor squeak. After hearing these noises, TQ saw defendant standing at the foot of Natalie's bed. TQ heard defendant exchange words with Natalie and Kenneth, and heard defendant say, "Don't try it." TQ heard gunshots and saw defendant lean over Natalie and Kenneth. According to TQ, defendant had a long black gun, and sparks were coming from it. TQ heard about 25 or 30 shots coming from her mother's room. TQ then heard Zita screaming and the floor squeaking again. Defendant went to Zita's room, and TQ heard more gunshots. TQ then heard the floor squeaking very fast and the outside gate rattle.
At this point, TQ arose from her bed and went into her mother's bedroom. TQ asked Natalie if she was okay. Natalie tried to lift her head but did not respond. Kenneth had been moaning, but the moaning stopped. TQ went to Zita's room. Zita was lying down with "a hole in her head" and "stuff" coming out of her neck.
TQ called the police and ran upstairs to get help from the landlords, Monique and Melvin DeYoung. Mrs. DeYoung testified regarding the events of the evening. On November 10, 1992, the DeYoungs went to sleep at approximately 10 p.m. They were later awakened by gunfire. Mrs. DeYoung heard heavy footsteps and then heard the kitchen door to Natalie's apartment slam. Mrs. DeYoung heard moaning from the first floor. Mrs. DeYoung testified that TQ came into Mrs. DeYoung's bedroom. TQ's eyes were "bugged," and she was shaking. TQ told Mrs. DeYoung that "somebody shot my mama" and "something" was coming out of Natalie's eye. TQ stated that she tried to wake Natalie and Kenneth, but that Natalie would not wake up, and Kenneth said "huh" and then died. TQ told Mrs. DeYoung that she next went to Zita's room, but Zita had "something" coming out of her eye and was dead.
TQ and Mrs. DeYoung went to Natalie's apartment. Paramedics and police officers were in the apartment. TQ tried to get back to Natalie. When the police officers would not let TQ into the area, TQ became very upset and began mumbling to herself. Mrs. DeYoung heard TQ say, "Man, why did Heavy shoot my mama?" When Mrs. DeYoung asked TQ if she saw defendant, TQ said, "Man, why did he shoot my mama? I didn't see nothing. I didn't see nothing Mrs. DeYoung." Mrs. DeYoung described TQ as "very shaken," "concerned," "frightened," and "in shock."
Mary Pearson, the common law wife of defendant's second cousin as well as the sister-in-law of Natalie, also testified regarding her arrival at the crime scene. When Mary entered the apartment, TQ ran to her and said, "Auntie Net, he gon killed my mother." When Mary asked TQ who killed Natalie, TQ hugged Mary but did not answer Mary's question. Mary and TQ then went with detectives in an attempt to find defendant. The group went to defendant's house, defendant's parent's house, defendant's sister's house, and the garage where defendant parked his tow truck. At each location, TQ laid down in the back seat of the car as if she did not want to be seen. When the detectives pulled up in front of defendant's parent's home, TQ told Mary, "He gon see us" and TQ began to cry. The day after the crimes occurred, defendant learned that the police were looking for him, and he then went to the police station.
Chicago Police Officer John Butler, a forensic investigator, testified regarding his processing of the crime scene. In one bedroom, Natalie and Kenneth's bodies were on the bed. In a second bedroom, Zita's body was on the bed. The victims had been shot numerous times. The police recovered a total of 32 cartridge cases from Natalie's apartment. All of the cartridge cases were 9-millimeter Luger FC. The police found a set of keys in the outside kitchen door. No fingerprints suitable for comparison were recovered from the keys. The police also found a Taurus .380 semiautomatic pistol on the window sill closest to Kenneth's body. Assistant Chief Medical Examiner Dr. Mitra Kalelkar testified regarding her performance of the autopsies on the victims' bodies. The victims died from multiple gunshot wounds. Natalie and Zita were shot 5 times, and Kenneth was shot 17 times. Natalie was six to eight weeks pregnant.
After the prosecution rested, defendant presented the testimony of Alonzo Williams, Tina Coleman, and Kimberly Nelson. Alonzo Williams, defendant's friend, and Tina Coleman, defendant's fiancee, testified that they were with defendant on the night of the murders. Alonzo stated that on November 10, 1992, he met defendant and Tina at approximately 10 p.m. at a bowling alley. According to Alonzo, the group stayed at the bowling alley until 1:30 a.m. and then went to a restaurant until 2:30 a.m.
Tina testified that she was engaged to defendant, and that he is the father of her son. According to Tina, at 9:30 p.m. on November 10, 1992, defendant picked her up, and they met some of defendant's friends at a bowling alley. Tina stated that her sister paged her at about 1:30 a.m., and that she called her sister back from the bowling alley. Tina, defendant, and defendant's friends left the bowling alley at about 1:30 a.m. and went to a restaurant, where the group stayed until 2:30 a.m. Tina stated that she and defendant went to a hotel because defendant had overnight company at his apartment. They stayed at the hotel until 7 a.m.
Kimberly Nelson, Tina's sister, testified that, on November 11, 1992, at about 1:30 a.m., she talked to Tina on the phone. Tina called Kimberly after Kimberly paged her. Kimberly stated that she could hear that Tina was at a bowling alley because she heard pins in the background. Kimberly also stated that she heard defendant talking in the background.
The jury returned a verdict of guilty against defendant on three counts of first degree murder. At this stage in the proceedings, defendant obtained a new attorney. Defendant's new attorney filed a post-trial motion for judgment of acquittal or a new trial. The trial court denied defendant's motion. Defendant waived a jury for the death sentencing hearing. The trial court found defendant eligible for the death penalty based upon the statutory aggravating factor that the defendant murdered two or more individuals. 720 ILCS 5/9-1(b)(3) (West 1992).
At the aggravation-mitigation phase of the death penalty hearing, the State presented a number of victim impact statements from the families of the victims. The prosecution also presented the testimony of Chicago Police Officer Allan Garant. Officer Garant testified that on October 11, 1989, he and his partner followed defendant and another individual. Defendant, with a coat hanger, made a downward motion near a car.
Defendant opened the car door, and the other individual entered the car. Defendant stood near the car, moving his head from left to right, and looking around. Two to three minutes later, the individual exited the car, and he and defendant started to walk back to their car. Defendant was arrested for burglary and possession of burglary tools, and he later pled guilty to a reduced misdemeanor charge.
In mitigation, defendant called 12 individuals to testify and presented affidavits from 33 persons. These people included family, friends, business associates, school authorities and prior teachers, and inmates and jail personnel. All of these witnesses described defendant as a hardworking, caring, and nonviolent person. Defendant's family was described as close, supportive, and religious. Some witnesses recounted specific instances when defendant helped them during a financial or emotional crisis. Other witnesses relayed that defendant was never involved in a gang, and stayed away from drugs and alcohol.
The trial court recognized that a statutory mitigating factor existed, i.e., that defendant has no significant history of criminal activity. See 720 ILCS 5/9-1(c)(1) (West 1992). After considering evidence in aggravation and mitigation, however, the trial court found no mitigating factors sufficient to preclude imposition of the death penalty and sentenced defendant to death for the murder of the three victims. Defendant now appeals his convictions and sentence.
Defendant first argues that he was denied a fair trial because the State exercised its peremptory challenges in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). According to defendant, the State excluded five black venirepersons by peremptory challenges. The final jury included two black females, but no black males. We note that defendant is black, as were the three victims.
Challenges to the composition of a jury must be brought before the jury is sworn. See People v. Fair, 159 Ill. 2d 51, 71 (1994). In this case, defendant raised the Batson issue for the first time in his post-trial motion. Defendant's failure to object in a timely manner to the prosecutor's peremptory challenges results in waiver of the issue upon review. See Batson, 476 U.S. at 99, 90 L. Ed. 2d at 89-90, 106 S. Ct. at 1724; Fair, 159 Ill. 2d at 71.
Defendant argues, however, that his trial counsel was ineffective for failing to preserve the Batson claim. To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) his defense counsel's performance was deficient and (2) there is a reasonable probability that, but for defense counsel's deficient performance, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984); People v. Albanese, 104 Ill. 2d 504, 525 (1984). A court need not consider the deficiency prong where the defendant fails to establish prejudice under the second prong. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069. Defendant here fails to establish the requisite prejudice.
In Batson, the United States Supreme Court established a three-step process for evaluating a claim that the State has exercised its peremptory challenges in a racially discriminatory manner. Batson, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. First, the defendant must establish a prima facie case of purposeful discrimination in the selection of the jury. A prima facie showing of discrimination requires the defendant to demonstrate that relevant circumstances in the case raise an inference that the prosecutor exercised peremptory challenges to remove prospective jurors based upon their race. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723; People v. Williams, 173 Ill. 2d 48, 71 (1996). Courts should consider the following circumstances in determining whether a defendant has established a prima facie case of discriminatory jury selection: (1) racial identity between the defendant and the excluded venirepersons; (2) a pattern of strikes against black venirepersons; (3) a disproportionate use of peremptory challenges against black venirepersons; (4) the level of black representation in the venire as compared to the jury; (5) the prosecutor's questions and statements during voir dire examination and while exercising peremptory challenges; (6) whether the excluded black venirepersons were a heterogeneous group sharing race as their only common characteristics; and (7) the race of the defendant, victim, and witnesses. Williams, 173 Ill. 2d at 71. A trial Judge's determination of whether a defendant has demonstrated a prima facie case of discriminatory jury selection will not be overturned unless it is against the manifest weight of the evidence. Williams, 173 Ill. 2d at 71; People v. Hudson, 157 Ill. 2d 401, 426 (1993).
Once the defendant establishes a prima facie case, the burden shifts to the State to articulate a race-neutral explanation for challenging the venirepersons in question. If the State provides a race-neutral explanation, the trial Judge must consider this explanation and determine whether the defendant has established purposeful racial discrimination. Batson, 476 U.S. at 96-98, 90 L. Ed. 2d at 87-89, 106 S. Ct. at 1723-24. The trial Judge's determination on the ultimate issue of discrimination will not be reversed unless it is clearly erroneous. Hudson, 157 Ill. 2d at 426.
Defendant argues that he established a prima facie case of discrimination in the selection of the jury, and that the State should be required to provide a race-neutral explanation for striking the venirepersons in question. Defendant argues that the State excluded five black venirepersons by peremptory challenges: Barbara Martin, Alice Robinson, James Robinson, John Watson, and William Brown. The record of the jury selection proceedings, however, does not conclusively establish the race of these individuals. Even assuming, arguendo, that the State used peremptory challenges to exclude five black venirepersons, the record shows that trial counsel would not have been successful in raising his Batson claim. The transcript of the hearing on defendant's post-trial motion provides information regarding defendant's Batson argument. At this hearing, the trial Judge stated his recollections of the jury selection proceedings:
"My records show that the State exercised 13 challenges and the defense exercised 13 challenges. And as both counsel indicated, there were 2 African American women who were on the jury. I was cognizant of the Batson issue before the jury selection starts as I am in every case. I pay close attention to look to see if I can see the development of any pattern with regard to either gender or race discrimination. That's the first thing I would note just briefly looking at this. I recall that the first 5 challenges by the State were of white persons and it was not until the State exercised their 6 challenges [sic] that they moved to excuse Alice Robinson. There were situations where while male black jurors were in a position and female black jurors were in a position to be seated on the jury where defense counsel exercised peremptory challenges of those individuals and not the State. Specifically, John Watson, William Brown. They were two male black jurors dismissed upon the challenge of the defendant. There is also a female black who is also Miss Donetta Isley who was excused as a result of the defendant's motion. I watched this jury selection process very carefully, kept notes of the whole matter and I did not see the development of any pattern on either side with regard to any racial motive to exclude jurors. And I did not see any challenges therefore with regard to the Batson matter as raised by counsel. The Court finds that first there is no prima facie case of any such development or Conclusions that counsel was not effective in raising that issue because the issue wasn't an issue."
The record reveals that, contrary to the trial court's recollections, the prosecution, and not defendant, challenged John Watson and William Brown. Nevertheless, the trial court's finding that defendant failed to establish a prima facie case under Batson is not against the manifest weight of the evidence. Defendant's argument rests solely on the basis that the prosecution used peremptory challenges to exclude five black venirepersons. The mere number of black venirepersons peremptorily challenged, without more, will not establish a prima facie case of discrimination. See People v. Garrett, 139 Ill. 2d 189, 203 (1990). Because defendant has not provided any other information to support his claim of discriminatory jury selection, he has failed to establish a prima facie case of discrimination in the jury selection. Consequently, even if trial counsel had made a Batson argument during jury selection, the outcome of defendant's trial would not have been different.
Defendant has therefore failed to establish the requisite prejudice for his ineffective assistance of counsel claim. For this reason, we reject defendant's claim that his trial counsel was ineffective for failing to preserve a Batson argument.
Defendant also raises a related argument, i.e., that his trial counsel was ineffective for exercising a peremptory challenge to exclude venireperson Dahnetta Ousley, a black woman. Trial counsel exercised this peremptory challenge after the trial court denied the defense's challenge of Ousley for cause on the basis that she had previously served on a Cook County grand jury. Defendant now argues that he "specifically and expressly" disagreed with trial counsel's decision to excuse Ousley.
Nothing in the record supports defendant's position that he disagreed with trial counsel's decision to excuse Ousley. Regardless, this court has emphasized that the strategic decisions of trial counsel are generally protected by a strong presumption that the attorney's decisions reflect sound trial strategy rather than incompetence. People v. Wiley, 165 Ill. 2d 259, 289 (1995); People v. Steidl, 142 Ill. 2d 204, 240 (1991). Here, even if defendant had disagreed with trial counsel's decision in this regard, we find that the decision to exclude a certain venireperson is a matter of trial strategy. Hence, this ineffective assistance of counsel claim fails.
II. Evidence of Other Crimes
Defendant next argues that the admission of other-crimes evidence deprived him of his due process right to a fair trial. At defendant's trial, TQ testified regarding several violent episodes between defendant and Natalie. One such incident occurred on June 28, 1992. On that date, Natalie filed a police report because all of her clothes had been stolen from her apartment. Defendant later came to the apartment and asked to visit Natalie. When Natalie refused, defendant said, "I'll give you your clothes back." Natalie let defendant enter the apartment. Defendant then tried to give Natalie the keys to his apartment. When Natalie refused to accept the keys, defendant repeatedly hit Natalie and ripped her phone out of the wall. Defendant eventually left the apartment. Natalie suffered a swollen face from this attack.
TQ testified that another episode occurred on July 7, 1992, when TQ, Natalie, Kenneth, and Zita were together in a rental car. Defendant, while driving in his truck, rammed into the back of the car. Defendant pulled back and rammed the car a second time. When defendant pulled his truck back a third time, the victims drove away and went to the police station to file a report.
According to TQ, a third episode occurred on July 18, 1992. Natalie and TQ went to a hair appointment, and Kenneth picked them up when they were finished. As Natalie and TQ were leaving, defendant drove up and asked Natalie if he could talk to Kenneth. Natalie responded that she did not care. TQ saw defendant and Kenneth talking. TQ, Natalie, and Kenneth then entered Kenneth's car. Defendant got into his truck and rammed it into Kenneth's car. When Kenneth exited the car to assess the damage, defendant pulled to the side of the car and fired a gun from his truck toward Kenneth's car multiple times. Kenneth took cover under nearby bushes. Defendant drove away but continued to shoot as he did so. The police were called to the scene, and a report was filed.
Defendant argues that this admission of other-crimes evidence, and the prosecution's reference to these crimes during opening and closing arguments, deprived defendant of his due process right to a fair trial. According to defendant, this evidence was not relevant for any proper purpose, and any possible probative value of this evidence was outweighed by its prejudicial effect. We disagree.
Evidence of a crime for which a defendant is not on trial is not admissible if relevant merely to establish the defendant's propensity to commit crime. People v. Placek, 184 Ill. 2d 370, 385 (1998). Other-crimes evidence is admissible, however, when it is relevant for any purpose other than to show the defendant's propensity to commit a crime. People v. Illgen, 145 Ill. 2d 353, 365 (1991). For instance, other-crimes evidence is admissible to prove motive or intent. Illgen, 145 Ill. 2d at 364-65. Where other-crimes evidence is relevant for a permissible purpose, the trial court must still weigh the prejudicial effect of admitting the other-crimes evidence against its probative value. Placek, 184 Ill. 2d at 385. The admissibility of other-crimes evidence rests within the sound discretion of the trial court. Placek, 184 Ill. 2d at 385; People v. Robinson, 167 Ill. 2d 53, 63 (1995). As such, the trial court's decision will not be overturned absent a clear abuse of discretion. Placek, 184 Ill. 2d at 385; Robinson, 167 Ill. 2d at 63.
Here, the trial court did not abuse its discretion in admitting evidence of defendant's prior crimes as evidence of his motive and intent to harm Natalie and Kenneth. This case is analogous to People v. Manzella, 56 Ill. 2d 187 (1973), overruled in part on other grounds, People v. Huckstead, 91 Ill. 2d 536, 548 (1982). In Manzella, the defendant shot and stabbed his ex-wife Candace and murdered Candace's two sisters. The defendant testified and denied any involvement in the crimes. Candace testified at trial that, following her divorce from the defendant, a series of events occurred in which the defendant had harassed her by following her, physically abusing her, and attempting to frighten her.
Candace also testified that, approximately five months before the murders, the defendant entered her home with a gun in the middle of the night and held her and her family hostage for two hours. One month prior to the murders, Candace and the defendant argued at a lounge, at which time defendant hit Candace and knocked her to the ground. Manzella, 56 Ill. 2d at 192-93. The court in Manzella held that the other-crimes evidence was admissible "to throw light on the intention of the defendant." Manzella, 56 Ill. 2d at 196. Proof of the defendant's various acts in the months prior to the crimes at issue was relevant to the defendant's malice, motive, and criminal intent. Manzella, 56 Ill. 2d at 197.
Similarly, in this case, the other-crimes evidence was admissible to prove defendant's motive and intent to commit the murders. The other-crimes evidence revealed defendant's continuing hostility and animosity toward Natalie and Kenneth. The clothes-stealing incident served as evidence that defendant's motive for the murders was his anger over the break-up of his relationship with Natalie. It also showed defendant's intent to harm ...