The opinion of the court was delivered by: Justice Heiple
Agenda September 3, 1999.
Following a jury trial in the circuit court of Cook County, defendant Hector Nieves was convicted of first degree murder. The same jury found defendant eligible for the death penalty based on his having been convicted of two murders. After the jury found that no mitigating circumstances existed sufficient to preclude imposition of the death penalty, the court entered judgment on the jury's finding and sentenced defendant to death. Defendant's sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d R. 609(a). In this appeal, defendant raises 12 issues challenging his conviction and death sentence. We affirm defendant's conviction but vacate defendant's sentence of death and remand for a new sentencing hearing.
The following evidence was adduced at trial. Late in the evening of September 13, 1992, police found the body of the victim, Louis Vargas, behind a building at 2808 West North Avenue in Chicago. Vargas' face and head had been badly beaten with what police believed to be a blunt object. His body was found between the rear wall of the building and a large truck, lying face down in a pool of blood on top of several cardboard boxes. Police determined that Vargas had died fairly recently, as his head was still bleeding when they arrived on the scene. Vargas' shoes were missing and one of his pants' pockets was turned inside out and bloody. No identifiable fingerprints or any other physical evidence was found at the murder scene. Police searched the vicinity of the crime scene, including nearby dumpsters and garbage cans, but did not find a murder weapon.
The day after Vargas' body was found, police conducted interviews with several people in the area regarding the murder. Although no witnesses to Vargas' beating were located, Anthony Laboy told police that he had seen Vargas in Humboldt Park the previous day. Laboy was sitting on a bench drinking a beer around 6:30 p.m. when he saw Vargas and another man, known only to Laboy as "Papo," about 25 feet away. According to Laboy, the two were arguing over money to buy liquor.
Laboy further told police that, in the course of the argument, Papo took out a long cylindrical object that looked liked a screwdriver or an ice pick. Papo turned toward Vargas, who took the object away and threw it to the ground. Vargas then grabbed Papo's walking cane and threw it to the ground. Next, Vargas "slammed" Papo to the ground. After this incident, Vargas and Papo walked away with several other men. According to Laboy, the argument had ended and everything looked to be "straightened out." Laboy did not see Vargas or Papo the rest of the night.
Based on Laboy's information, police searched Humboldt park for Papo, later identified as the defendant, Hector Nieves, to question him in connection with Vargas' murder. Police were unable to locate the defendant, however, and the murder went unsolved for more than a year and a half.
On May 20, 1994, New York City officials contacted the Chicago State's Attorney's office regarding a man who had turned himself in to New York police in connection with a murder in Central Park, and who also wished to make a statement regarding a murder in Chicago. Cook County Assistant State's Attorney John Muldoon, Chicago police detective Lou Rabbit, and a court stenographer traveled that same day to New York City to meet with the man, who identified himself as Hector Nieves, the defendant. After Muldoon and Rabbit advised defendant of his rights, defendant spoke privately with them for about 20 minutes. At the conclusion of this conversation, defendant agreed to give a court-reported statement.
After again being advised of his rights, including the right to remain silent and the right to counsel, defendant stated that he was with Vargas in Humboldt Park during the afternoon of September 13, 1992. The two began arguing when defendant refused to give Vargas a dollar to buy wine. Vargas got very upset and threw defendant's walking cane, which defendant needed due to a recent leg surgery. Defendant stated that he got angry at Vargas for taking his cane and decided to retaliate. He formed a plan to wait for Vargas to go to sleep and then kill him.
Defendant further stated that, later that night, he went to Vargas' usual sleeping place behind a restaurant at the intersection of North Avenue and California Street. Defendant knew that there was always a truck parked in the rear alley and that Vargas always slept underneath this truck. After finding a pipe in the alley, defendant climbed into the back of the truck, which was unlocked, and waited for Vargas. Vargas arrived sometime around 9:30 or 10 p.m. Defendant waited approximately 15 minutes to be sure that Vargas was sound asleep, and then climbed out of the truck. He struck Vargas on the head with the pipe between 10 and 15 times, killing him. Defendant stated that he then left the scene, throwing the pipe into a back yard about three houses away.
The case proceeded to trial in June 1997. In addition to Alexander Laboy and John Muldoon, several Chicago police personnel who worked on the case testified for the prosecution. Dr. Edmond Donoghue, chief medical examiner for Cook County, testified as to the cause of Vargas' death. Dr. Robert Kirschner, who had performed the autopsy on Vargas' body, had since retired and was out of the country. Dr. Donoghue, however, reviewed Dr. Kirschner's file and testified as an expert in forensic pathology. Dr. Donoghue concluded that Vargas died from severe injuries to the skull and brain consistent with being beaten about the head with a pipe. According to Dr. Donoghue, Vargas had been struck at least eight times in a beating that "would have killed anyone."
No witnesses testified on behalf of the defense, which rested at the close of the prosecution's case in chief. The jury then found defendant guilty of first degree murder.
At the death penalty eligibility hearing, New York City police detective Eugene Heghmann and New York Assistant District Attorney Cynthia Sippnick both testified regarding defendant's involvement in the June 1993 killing of Santos Bermudez. Sippnick further testified that defendant subsequently pleaded guilty in New York to first degree manslaughter in connection with Bermudez's killing and a certificate of conviction was entered into evidence.
At the close of Sippnick's testimony, the trial court ruled, outside the presence of the jury, that the New York first degree manslaughter statute was substantially similar to the Illinois first degree murder statute. The jury then returned a verdict unanimously finding defendant eligible for the death penalty under the aggravating factor of having been convicted of murdering two or more individuals. 720 ILCS 5/9-1(b)(3) (West 1996).
At the aggravation-mitigation phase of the death penalty hearing, the prosecution introduced evidence of defendant's lengthy criminal history and numerous prison disciplinary infractions since his first incarceration after convictions for burglary and armed robbery in the late 1970s. The jury also heard evidence linking defendant to two additional murders, that of Lonnie Jackson in 1991 and of Rafeal Cuevas in 1992, to which defendant had confessed in separate court-reported statements made at the same time as his statement regarding the Vargas murder.
In mitigation, defendant presented testimonial evidence of his good behavior while held at the Cook County jail. Defendant's brother also offered testimony of defendant's abusive childhood. In addition, two licensed clinical psychologists testified as to defendant's low intelligence and severe personality disturbance.
After hearing all the factors in aggravation and mitigation, the jury unanimously found that there were no mitigating circumstances sufficient to preclude the imposition of the death penalty. The trial court then sentenced defendant to death.
Defendant raises 12 issues on appeal, challenging both his conviction and death sentence. We address each in turn.
Defendant first contends that his right to due process and a fair trial was abridged when he was not afforded the opportunity to question potential jurors after their responses to the trial court's voir dire questions resulted in their excusal for cause. During voir dire, the trial court first individually questioned each potential juror, without input from the State's Attorneys or defense counsel. On the basis of their responses, the trial court either excused the potential jurors for cause or passed them along for further questioning by both parties.
After the first stage of this process, three potential jurors, George Mikicich, Eleanor Taylor and Jewel Heingeininger, were excused for cause after their responses to the court's questions revealed that their beliefs would prevent them from imposing the death penalty. Two other potential jurors, Cecilia Isom and George Lyons, passed the first stage of questioning by the trial court, although they expressed concerns about the death penalty but stated that they would consider it. Upon further questioning by the prosecution, however, both Isom and Lyons were excused for cause after both stated that they would not be able to impose the death penalty.
Initially, we note that defendant objected only to the excusal of Mikicich, Isom and Lyons. Defendant did not object to the excusal of Taylor or Heingeininger, nor did he seek to question those potential jurors who were excused for cause after the court had concluded its examination of them. In this appeal, however, defendant does not argue that these potential jurors were improperly excused. Rather, he argues for the first time that the voir dire was unfair and prejudicial because the trial court allowed the prosecution to examine potential jurors who expressed scruples against the death penalty after their initial examination, but summarily excused for cause without further questioning by defense counsel those potential jurors who stated that they could not impose the death penalty. According to defendant, the prosecution was given greater latitude to question potential venire members, and received a benefit when Isom and Lyons were excused without the prosecution having to use any of its peremptory challenges. Thus, the number of venire members that the prosecution was able to excuse was increased, some of whom may have been sympathetic to defendant. Defendant claims that he should have been given the same opportunity to question venire members Mikicich, Taylor and Heingeininger to clarify their stance regarding the death penalty.
The State asserts that defendant has waived review of this issue because defense counsel failed to object on this particular ground before the trial court and failed to raise this issue in his post-trial motion. We agree. To preserve an issue for review, a defendant must both object at trial and specifically include the objection in a post-trial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Here, defendant has never before raised the issue of being denied an opportunity to conduct additional voir dire of potential jurors Mikicich, Taylor and Heingeininger. Thus, this issue is waived.
Defendant next claims that the trial court abused its discretion when it refused to grant his motion for a mistrial after the prosecution asked a potential juror who worked at the Cook County jail whether he had worked with defendant. During voir dire, potential jurors were called to the jury box in groups of 12 to be questioned. One such potential juror, James Graham, stated that he was a minister and had worked for 35 years as a volunteer at the Cook County jail. After the trial court's initial voir dire, the prosecution continued to question Graham about his work at the jail, during which the following exchange took place:
"Prosecution: In the course of your work with inmates at Cook County Jail, have you ever had occasion to work with any of the individuals on death row?
Prosecution: Have you ever had occasion to work with Mr. Nieves who is before your Honor, before the court today?
At this point, a conference was held outside the presence of the jury where defense counsel moved for a mistrial on the basis that the prosecutor's question implied that defendant was or had been incarcerated at the Cook County jail. Defendant's motion was denied.
Defendant contends that the potential jurors who were present during the prosecutor's questioning of Graham were left with the clear implication that he was involved in other criminal conduct or may already be on death row. Despite that Graham responded in the negative, defendant claims that the prosecutor's question was deliberately posed to link defendant with the Cook County jail, thus prejudicing him to such a degree that a new trial is warranted. Defendant points out that the trial court had already asked all potential jurors whether they knew defendant, to which Graham responded in the negative. Thus, according to defendant, there was no reason to further ask Graham if he had worked with defendant.
The State responds that its questioning of Graham was proper in its entirety and was intended only to uncover whether Graham knew defendant. At worst, the State argues, the question may have alerted other potential jurors to the fact that defendant was in custody, but defendant's conclusion that the question would lead other potential jurors to believe defendant had committed other crimes is unsupported. Further, the State points out, defendant has failed to establish how the jury which eventually heard this case was influenced or prejudiced by the prosecution's questioning of Graham during voir dire.
The decision whether to grant a mistrial is left to the discretion of the trial court. People v. Hall, 114 Ill. 2d 376 (1986). There is no evidence to suggest that the prosecution's questioning was designed to do anything more than determine whether Graham was acquainted with defendant. Given that defendant was awaiting trial for murder, it was not unreasonable for the prosecutor to ask Graham if he had encountered defendant through his work with inmates at the Cook County jail. This question, however, does not necessarily imply that defendant had committed other crimes or was already on death row. It is more likely that potential jurors hearing the prosecutor's question would make the quite logical inference that the prosecutor was referring to defendant's time in custody pending trial for the murder of Louis Vargas. The jury pool was not so tainted, however, as to warrant a mistrial based upon this question. Thus, the trial court did not abuse its discretion when it denied defendant's motion for mistrial.
Furthermore, even assuming an error in the selection of jurors, reversal is not required unless the defendant has in some way been prejudiced. See People v. Lewis, 165 Ill. 2d 305, 344 (1995). In Lewis, this court held that the trial court's statement to potential jurors that witnesses from Folsom Prison and the Alameda and Oakland police departments would be testifying did not so prejudice the defendant as to require reversal. Lewis, 165 Ill. 2d at 347. In so holding, we rejected the defendant's claim that the entire venire would have wondered, if not assumed, that the defendant was a convicted felon, stating that compelling eyewitness ...