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People v. Emerson

February 17, 2000


The opinion of the court was delivered by: Justice McMORROW

Agenda 4-May 1999.

In 1985, defendant was convicted of the murder and armed robbery of Delinda Byrd, as well as the attempted murder and armed robbery of Robert Ray. A jury found defendant eligible for the death penalty based on Byrd's murder and found no mitigating factors sufficient to preclude the imposition of the death penalty. Pursuant to defendant's petition for a writ of habeas corpus, the United States District Court for the Northern District of Illinois ordered that defendant receive a new sentencing hearing. United States ex rel. Emerson v. Gramley, 883 F. Supp. 225 (N.D. Ill. 1995). The federal appellate court affirmed the district court. Emerson v. Gramley, 91 F.3d 898 (7th Cir. 1996).

The circuit court of Cook County held a new sentencing hearing, at which a jury again found defendant eligible for the death penalty and found no mitigating factors sufficient to preclude the imposition of the death penalty. The propriety of that sentence is now before this court pursuant to defendant's direct appeal. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d R. 603. Defendant's death sentence has been stayed pending our review. 134 Ill. 2d R. 609(a).


This case is before this court for the fourth time. The procedural history of the case begins in the early 1980s, when defendant was tried for the 1979 murder and armed robbery of Byrd, the attempted murder and armed robbery of Ray, and aggravated arson. A jury convicted defendant of these offenses and imposed the death penalty for Byrd's murder. On direct review, however, this court found that defendant was denied a fair trial based on (1) the admission at trial of a prior consistent statement by Ray and (2) improper comments by the prosecution during closing argument. This court reversed defendant's convictions and sentence and remanded the cause for a new trial. People v. Emerson, 97 Ill. 2d 487 (1983) (Emerson I). On remand, a jury again convicted defendant of murder, attempted murder, armed robbery and aggravated arson and imposed the death penalty. Pursuant to defendant's direct appeal, this court reversed his conviction for aggravated arson but affirmed his other convictions and death sentence. People v. Emerson, 122 Ill. 2d 411 (1987), cert. denied, 488 U.S. 900, 102 L. Ed. 2d 235, 109 S. Ct. 246 (1988) (Emerson II). The circuit court dismissed defendant's subsequent petition for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122-1 et seq. (now 725 ILCS 5/122-1 (West 1996))) without an evidentiary hearing, and this court affirmed that dismissal. People v. Emerson, 153 Ill. 2d 100 (1992), cert. denied, 507 U.S. 1037, 123 L. Ed. 2d 485, 113 S. Ct. 1865 (1993) (Emerson III).

The federal district court granted in part defendant's petition for a writ of habeas corpus. The court rejected defendant's claim that he received ineffective assistance of counsel at trial but remanded the cause for a new sentencing hearing after finding that defendant failed to receive the effective assistance of counsel at sentencing. United States ex rel. Emerson v. Gramley, 883 F. Supp. 225 (N.D. Ill. 1995) (Emerson IV). The United States Court of Appeals for the Seventh Circuit affirmed the district court. Emerson v. Gramley, 91 F.3d 898 (7th Cir. 1996) (Emerson V), cert. denied, 520 U.S. 1122, 137 L. Ed. 2d 339, 117 S. Ct. 1260 (1997).

On remand, at the eligibility phase of defendant's sentencing hearing, Robert Ray testified that, in 1979, he and his cousin owned the Centaur Lounge at 1154 West 69th Street in Chicago. On Sunday, August 12, 1979, Ray opened the lounge at noon. During the day, he received three or four telephone calls from defendant. Defendant's brother Ricky Jackson had introduced Ray to defendant, and Ray had known defendant for about a year. When he called, defendant indicated that he planned to visit Ray at the lounge that day. Because business was slow, Ray closed the lounge early, at around midnight or 1 a.m.

Before Ray closed the lounge, he received another telephone call from defendant, during which defendant told him that he still planned to visit. After the lounge was closed, defendant arrived with his brother Richard Jackson (Jackson). Although Ray knew defendant's brother Ricky, he had never met defendant's other brother, Richard. Ray opened the door and security gate for defendant and Jackson, and the three men walked to the apartment in the rear of the lounge.

Ray explained that he rented this apartment, which was accessed by a door behind the bar in the lounge. Inside the apartment were two bedrooms, a bathroom, and a kitchen. In the bedroom where Ray slept, there was a window that opened onto an air shaft between the apartment and the neighboring building. The window in the other bedroom was covered with boards.

Soon after the three men sat down in the kitchen area of the apartment, Ray's girlfriend, Delinda Byrd, arrived. After Byrd's arrival, Ray left the apartment to go across the street to buy a package of cigarettes. When he returned, the group continued to talk in the kitchen area. Ray could not remember if they had anything to drink and could not remember much about their conversation, except that he told defendant and Jackson that the lounge had not yet started to "pay off."

During their conversation, Ray turned to look at defendant and saw that defendant had a gun pointed at him. Defendant told Ray that it was a robbery or a stick up. Defendant then made Ray and Byrd lie face down on the floor and tied their hands and feet with electrical cord he took from a lamp.

Defendant then searched Ray and Byrd and took the money they were carrying. Afterward, he emptied the cash register in the lounge. When he returned to the apartment, defendant asked Ray if he had any guns. Ray told him that there were two guns in the closet of his bedroom, and defendant went into the bedroom to retrieve the guns. Defendant then walked back and forth transporting other items from the apartment into the lounge. While defendant tied Ray and Byrd, emptied the cash register, and removed items from the apartment, Jackson sat on a desk in the apartment and pointed a gun at Ray and Byrd.

After defendant stopped moving items from the apartment to the lounge, Ray heard Jackson say "use this" to defendant. Ray could not see what Jackson was referring to at the time because he was lying on his stomach, but then defendant stood over him with the half pair of scissors that Ray used to operate a broken doorknob in the apartment. Defendant lifted Ray's shoulder from the ground and stabbed him twice in the chest with the scissors. Jackson was still sitting at the desk holding the gun during Ray's stabbing.

Ray lay very still after defendant stabbed him until he saw defendant stand over Byrd. When he realized that defendant "was about to do the same thing to her," Ray begged him not to do it. Defendant turned and gave Ray a "real evil" look. Ray did not actually see defendant stab Byrd because he looked away as he saw defendant swing his hand holding the scissors in a downward motion toward Byrd.

Next, Ray heard defendant walk past him into Ray's bedroom. Ray did not recall whether Jackson accompanied defendant into the bedroom. Defendant stayed in the bedroom for a minute or two. When he exited the room, defendant and Jackson lifted Ray and threw him into the bedroom, which was now on fire. Defendant and Jackson then threw Byrd on top of Ray. They closed the door, and Ray heard a noise as if they were fastening the doorknob. After the noise stopped, Ray untied his hands and tried to open the door but could not. Ray then opened the window in the bedroom and fell into the air shaft. Byrd, who was able to follow him, fell on top of him. Ray then untied his feet and untied Byrd's hands and feet.

After freeing himself and Byrd, Ray reentered the bedroom and again tried unsuccessfully to open the bedroom door. He then climbed back into the air shaft, where he opened the kitchen window. The smoke and heat coming from the kitchen, however, made him immediately close that window. He and Byrd screamed for help, after which Ray stood on the kitchen window sill and "kicked in" an air conditioner and some plasterboard from a window leading from the air shaft to the lounge. He and the air conditioner fell into the lounge. Ray exited the lounge through the front door. After learning that neighbors had called the fire department, he attempted to re-enter the lounge, but the smoke prevented him from doing so. He then ran to the back of the building, where he could see into the air shaft through a two- or three-inch opening between the air shaft and the neighboring building. Byrd told him that it was getting hard to breathe in the air shaft, and Ray told her that he would save her. He returned to the front of the building, and he saw that the fire department had arrived. He told the firemen where Byrd was trapped but then collapsed on the ground because of his injuries.

While Ray was in the hospital, he learned that Byrd had died. The police visited Ray in the hospital and showed him a photographic array. Ray testified that he selected photographs of defendant and Jackson from the array and told police that these were the men who had robbed him and Byrd. When shown these same photographs in court, Ray again selected photographs of defendant and Jackson and stated that these two men robbed and stabbed him.

Chicago police officer Gregory Stevenson testified that, around 4 a.m. on August 13, 1979, he and his partner responded to a call at the Centaur Lounge. They found Ray sitting on the curb bleeding from his chest and the lounge on fire. Ray told Stevenson that he was the owner of the lounge, that he had been robbed, and that his girlfriend was still trapped in the building. After observing that the fire department had arrived, Stevenson and his partner spoke further with Ray. Ray said that two men had robbed him, stabbed him, and set the lounge on fire. Ray identified the two men as defendant and his brother Richard Jackson. Ray described the building where the brothers lived. Stevenson and his partner went to this building, but did not find defendant or Jackson. When they returned to the lounge, the fire had been extinguished. Inside the apartment, they found a wire coat hanger wrapped around a doorknob assembly on the floor outside the bedroom. In the bedroom, they also found two electrical wires. Stevenson did not remember seeing an air conditioner at the scene. He did not know whether fingerprints or scissors were found at the scene.

Chicago firefighter Edward Barry testified that, when he arrived at the Centaur Lounge on August 13, 1979, Ray was standing in front of the building. Ray told the firefighters that Byrd was trapped in the rear of the building. When Barry went to the rear of the building, he saw Byrd in the air shaft. Because of the intensity of the fire, the firefighters were unable to remove her from the air shaft. They poured water on top of her but, by the time the fire was extinguished, Byrd had died. Based on his experience, Barry opined that the fire began in the apartment behind the lounge.

Detective Craig Cegielski testified that a warrant was issued for defendant's arrest on August 14, 1979. Defendant was arrested on February 12, 1980.

Dr. Edmund R. Donoghue testified that he is the chief medical examiner for Cook County, and he examined the report of the autopsy performed on Delinda Byrd. The doctor who had performed this autopsy and prepared the report had passed away. Donoghue explained that there were second- or third-degree burns over 90% of Byrd's body. The deposits of soot in her larynx and trachea, as well as the amount of carbon monoxide in her blood, indicated that she was alive when the fire began. The report also stated that Byrd had five stab wounds to her back. According to the autopsy report, Byrd died of multiple stab wounds to her back, and the burns to her body were a "significant contributing condition" to her death. The immediate cause of her death was the stab wounds, but an unrelated condition that contributed to her death was the burns. Dr. Donoghue concurred in the report's conclusion with respect to the cause of Byrd's death. In Donoghue's opinion, one instrument could have caused all of Byrd's stab wounds, and it was possible that the wounds were caused by scissors.

At the conclusion of its case at the eligibility hearing, the State presented evidence that, in 1985, a jury had returned guilty verdicts against defendant for the murder and armed robbery of Byrd and the attempted murder and armed robbery of Ray. In addition, the State presented a stipulation that defendant was born on September 26, 1951.

The defense presented no evidence at the eligibility hearing. Instead, defendant made a motion for a directed finding. The circuit court denied this motion. The jury returned a verdict finding defendant eligible for the death penalty under the felony murder statutory aggravating factor. Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)(6) (now 720 ILCS 5/9-1(b)(6) (West 1996)). The circuit court denied defendant's motion for judgment notwithstanding the verdict.

At the aggravation-mitigation phase of defendant's sentencing hearing, the State presented the following evidence: David Heim testified that he was working as a clerk in a camera store on March 13, 1975. That morning, defendant entered the store and placed a camera on layaway. Around noon, defendant returned to the store, pointed a gun at Heim, and demanded the money in the cash register. Defendant took this money, as well as the paper documenting the layaway. He then pushed Heim to the back of the store, where the manager was processing a bank deposit. Defendant also took the money that was to be included in the deposit and exited the back of the store.

Ronald Parram testified that, on February 27, 1971, he was working as an assistant manager in a shoe store. A few minutes before the store closed, defendant entered the store and asked for change for a $10 bill. When Parram opened the register, defendant placed a gun to his head and said, "[T]his is a stickup." Defendant removed the money from the register and also asked the customer in the store for his money. Defendant then exited the store and hailed a cab. Parram followed defendant and, when the cab stopped at a stop sign, Parram wrestled the gun from defendant and held him until police arrived.

Detective Thomas Duffy testified that, on April 13, 1971, he and his partner were on patrol in an unmarked police car when they observed a young man driving a Cadillac in a parking lot across from the criminal courthouse at the intersection of 26th and California in Chicago. By comparing the license number to their "hot sheet," they discovered that the car was stolen. They arrested defendant, who was driving the car. Duffy learned that the car had been stolen on April 9, 1971, from Harold Guberman. The keys to the car had been taken on January 30, 1971, during an armed robbery of Guberman's store. On February 8, 1971, Guberman had been robbed again at gunpoint by defendant while walking to his car after closing his store. Guberman had identified defendant as the robber in a lineup.

Lieutenant James Devereaux testified that, at about 9:50 p.m. on February 11, 1980, he and his partner were working in an unmarked car when they responded to a call of a suspicious man. The man, whom Devereaux identified as defendant, was standing on the corner of Broadway and Addison looking down those streets in all four directions. The drugstore at the corner of this intersection closed at 10 p.m. The officers approached defendant and performed a pat-down search after seeing a bulge in his waistband. They found a .38-caliber fully-loaded revolver. Defendant told them that his name was Micky Johnson. After arresting defendant, Devereaux learned that the gun had been stolen on October 21, 1979. He also learned that defendant was wanted in connection with Byrd's murder.

In addition to this testimony, the State presented seven certified copies of conviction. These documents indicated that, in 1970 and 1971, in the circuit court of Cook County, defendant pleaded guilty to three armed robbery offenses, grand theft, and robbery. For each of these offenses, he received a sentence of four to eight years' imprisonment, to run concurrently. In June 1975, defendant pleaded guilty in federal court to knowingly receiving and possessing money stolen from a federally insured bank and to unlawfully using a firearm to commit felonies. Defendant was sentenced to a total of five years' imprisonment for these federal convictions. On February 23, 1976, in the circuit court of Cook County, defendant pleaded guilty to armed robbery and received a sentence of five to eight years' imprisonment, to run concurrently with his federal sentence. On July 24, 1979, less than a month before Byrd's murder, defendant was released from prison on parole.

As mitigating evidence, the defense presented the testimony of Jill Miller, a forensic social worker, whom the defense had retained to prepare a social history of defendant. In preparing this history, Miller reviewed police reports, defendant's criminal history, and other records. She interviewed defendant, his family members, and his friends. According to Miller, defendant was born in 1951 in rural Missouri. Defendant was the fourth of six children. The family moved to Chicago when defendant was about four years old. Shortly after this move, defendant's father left the family. Defendant's mother, whom relatives described as illiterate, did not work when defendant was a child and used welfare to support the family. According to Miller, defendant's mother was loving but seemed cognitively impaired and did not enforce limits with respect to her children's behavior.

In 1958, defendant's oldest brother died of cancer. In 1960, when defendant was eight years old, defendant was shot in the abdomen during an armed robbery of the grocery store where he worked. After the shooting, defendant was unable to complete the school year. He fell behind in school and had to repeat the second grade when he was nine years old. He was afraid to leave the house and became a truancy problem, as a result of which he was placed in a special school for truant children.

When he was 11 years old, he was placed in a residential school for truant children. He was assigned to the fourth grade even though other children of his age were in the sixth grade. As the result of an act of sexual misconduct at the residential school, defendant was adjudicated delinquent and transferred to the custody of the Illinois Youth Commission in 1963. He spent his teenage years in and out of juvenile correctional facilities. His conduct and adjustment in these facilities was good, and he was frequently paroled.

He was repeatedly returned to the facilities, however, for truancy, parole violations, or his mother's inability to control him. For example, he was returned to one of the facilities in 1966 because his mother could not control him. Two months after he was paroled in August 1966, he was arrested for burglary and again returned to a Youth Commission facility. At the end of 1968, he was absent without leave from a facility. One month later, he was arrested for petty theft and disorderly conduct.

During the summer of 1968, defendant was placed in a vocational welding program, but he was removed from the program when he missed classes due to oversleeping. Subsequently, defendant was placed in a work release program with Caterpillar in Joliet, where he worked until December 1969. At that time, however, he was paroled to Chicago, even though he had requested to be paroled elsewhere on the basis that Chicago was not a good environment for him.

Testing in 1964 showed that defendant had an IQ of 80, which is low-average or on the borderline of mental retardation. A later test showed that his IQ was 87. Testing in 1965 indicated that defendant had a learning disability. Counseling was recommended but not provided. The highest grade in which defendant was placed was fifth grade. His highest functioning level was fourth grade. He was unable to pass the general equivalency diploma examination.

Defendant was formally paroled from the Youth Commission in February 1970. In August of that year, he was arrested for an armed robbery at an insurance agency. He was released on bond. Three months later, he committed his first armed robbery of Guberman. He was arrested in February 1971 for the shoe store robbery but was released on bond in March, shortly after the death of his daughter. In April, he was arrested for stealing Guberman's car. He pleaded guilty to these offenses and was incarcerated. He was released on parole in December of 1974. In March 1975, he robbed the camera store. After pleading guilty to that offense, he was again incarcerated. He was released on July 24, 1979.

During the 1970s, defendant spent most of his time in prison, where he did well in work assignments and adjusted well. While in prison in 1975, defendant was married, but he was divorced two years later. He has been in prison since 1980 for the offenses at issue in this case. His prison records during his most recent incarceration show that his adjustment has been positive, he follows rules, he is respectful to staff and to others, and he occupies his time constructively. He had an assignment working in the prison laundry, got married, and spent his free time crocheting and knitting gifts.

Various prison staff members testified with respect to defendant's behavior in prison during the 1990s. Marvin Skidmore, a captain at the Pontiac Correctional Center, testified that he had known defendant since 1990, although he did not have close contact with him until January 1997. Skidmore testified that he supervises inmates' movements when they are outside their cells. Since January 1997, he had supervised defendant's work in the prison laundry. Before he could work in the laundry, defendant had to apply for this job, and his application had to be approved by numerous prison officials. Defendant picked up inmates' laundry, washed it, and returned it. He worked seven days a week, although he was paid for only five days a week. He made $25 a month doing laundry. Defendant enjoyed certain privileges as a result of his laundry job. When he was out of his cell performing his job, he was not placed in handcuffs, although a guard checked on him every hour. There were very few complaints about defendant's work in the laundry, and he never had any problems with the guards or other inmates. The job would have been taken from him immediately if he had caused any trouble.

Another guard, Jill Ann Beatty, testified that she worked in the condemned unit of the prison for most of the period between September 1988 and the present. Defendant had given her no problems, and he treated her better than did other inmates. In his spare time, he made jewelry boxes, knitted, and crocheted. According to Beatty, defendant behaved the way she would want all of the inmates to behave. He was polite, smiled, and cared about his job.

Frances Childress testified that she had known defendant since 1992, when he started in his laundry position. She was a correctional clerk in the condemned unit, and her office was next to the laundry where defendant worked. He made coffee for her in the morning, gave her poetry he had written, and asked about her family. She described him as a friend and an excellent worker. She called him by his nickname, "M.O." In his spare time, he made jewelry boxes, afghans, and pillows to give as gifts or to sell.

Joni Stallman testified that she met defendant in 1992 when she was working as a paralegal in the condemned unit at Pontiac. She would see him a few days a week. He was very kind and polite and helped her carry books.

Reverend Eldon Kendall testified that he had known defendant since he began working as a chaplain at Pontiac in 1988. According to Kendall, defendant was one of the easiest inmates "to get along with." Kendall married defendant and his wife, Patricia, and helped them renew their wedding vows on their first anniversary. Kendall testified that defendant always reminded him when the date of their anniversary was approaching.

In addition to the testimony of these prison staff members, there was testimony from several individuals with whom defendant had corresponded while in prison. Harold Gullett testified that he began corresponding with defendant in 1987. Defendant's letters were kind, considerate, and contained discussions of his faith. They did not discuss the reason he was in jail. Harold and his wife had received birthday and holiday cards from defendant, as well as gifts, including a scarf, a stocking cap, and western shirts with their names cross-stitched on them. The work on these crafts was very well done. According to Harold, defendant seemed articulate, well-read, of above-average intelligence, and well-versed in the written word, such as the Bible. Harold stated that defendant was a living example of a person who had made lemonade with the lemons the world handed him. Testimony by Harold's wife, Marjorie, was similar. She added that, when defendant learned that she needed major surgery, he asked if there was anything he could do to help. He offered to give her anything that she needed. Marjorie interpreted this as an offer of blood or an organ. Neither Harold nor Marjorie knew why defendant was in prison, but Marjorie testified that the knowledge that defendant could be good under his circumstances had enriched her life.

Jana Minor testified that she corresponded with defendant from the early 1980s until 1990. She had also visited him in prison. Minor stated that defendant had showed concern for her and her family and had crocheted a cape for her.

Lynn Bones testified that she began corresponding with defendant in the early 1980s. They exchanged over 100 letters. During the time that they corresponded, defendant's letter writing improved. Defendant's views seemed well thought out. He enriched her life by teaching her that individuals in jail were not necessarily bad. Defendant gave her a jewelry box he had made for her birthday and an afghan.

Donald Wheat testified that he had corresponded with defendant for 10 years. He was impressed with the quality of defendant's letters, thoughts, and philosophy of life. Defendant had sent Wheat items that he had made, such as afghans. Wheat would sell these items for defendant and give him the proceeds. He learned from defendant that people can change.

Defendant's wife, Patricia Emerson, testified that she lives in London and first met defendant in 1992 through correspondence. In their correspondence, they discussed Patricia's friends, her job as a school teacher, her hobbies, her interests in mathematics and philosophy, defendant's interest in learning Spanish, his crafts, and his interest in painting. They were married in 1993. Since that time, Patricia Emerson had visited defendant 18 times. She was able to spend about 50 days a year visiting defendant. Patricia Emerson stated that, after she retires, she plans to move to the United States to be with defendant. Defendant had given her many gifts that he made, including a poncho, a jacket with a hood, and a jewelry box. According to a previously prepared statement Patricia Emerson read to the jury, defendant had taught her to see the good in people and not to criticize others. She testified that defendant had offered an organ to Marjorie Gullett. Patricia Emerson further testified that defendant had changed in the past few years by becoming better able to express his feelings and had written poetry for her.

After hearing this evidence, the jury found no mitigating factors sufficient to preclude the imposition of the death penalty. The circuit court entered judgment sentencing defendant to death on August 19, 1997.


Defendant argues that his death sentence must be reversed and the cause remanded for the imposition of a sentence other than death because (1) the circuit court failed to comply with the federal court order remanding the case for resentencing within 120 days; (2) the jury verdict finding him eligible for the death penalty was not supported by the evidence at the sentencing hearing; (3) his death sentence is excessive based on the evidence presented at the aggravation-mitigation stage of sentencing; (4) his death sentence is disproportionate when compared to sentences received by his co-defendant and by defendants in other cases; and (5) the Illinois death penalty statute is unconstitutional on its face and as applied to defendant. Alternatively, defendant contends that errors at both the eligibility and aggravation-mitigation stages of sentencing require that he receive a new sentencing hearing. Finally, defendant challenges the performance of his counsel at his 1985 trial.

I. Presentencing Issues

A. Compliance With the Federal Court Mandate

We begin by addressing defendant's claim that the circuit court lacked jurisdiction to sentence him because it failed to do so within the time period required by the federal courts. The federal district court mandate provided: "Emerson's petition for habeas corpus is granted with respect to this sentence of death and denied in all other respects. The state is ordered to resentence petitioner pursuant to the dictates of the Sixth Amendment within 120 days of the date of this order." The order was dated March 30, 1995. On July 30, 1996, the federal appellate court affirmed the federal district court. Emerson V, 91 F.3d at 907. On October 4, 1996, the federal district court issued an order that provided, "The 120-day period for Emerson's resentencing shall run from the date on which the supreme court disposes of Emerson's petition for certiorari." The United States Supreme Court denied defendant's petition for a writ of certiorari on March 17, 1997. Emerson v. Gilmore, 520 U.S. 1122, 137 L. Ed. 2d 339, 117 S. Ct. 1260 (1997).

At a June 26, 1997, status conference, counsel for defendant informed the circuit court of the time limit provided in the federal district court's order. Defense counsel indicated his agreement to begin the sentencing proceedings on July 14, 1997, the day before the expiration of the 120-day period. The circuit court, therefore, set the case for sentencing on July 14 "[b]y agreement." On July 14, the jury for the sentencing proceedings was selected. Testimony in the eligibility phase began the next day. On July 16, the jury found defendant eligible for the death penalty. The jury returned its verdict in the aggravation-mitigation phase on July 18, 1997. The circuit court's judgment and execution order was dated August 19, 1997.

According to defendant, the 120-day time limit set by the federal courts expired on July 15, 1997, and the circuit court did not have jurisdiction to sentence him after this date. Defendant concludes that, because he was sentenced on August 19, 1997, his sentence is null and void. He, therefore, asks us to vacate his death sentence and remand the cause for imposition of a sentence other than death. The State responds that defendant's sentence is valid because the sentencing proceedings commenced within the 120-day period. Alternatively, the State asks us to reject defendant's argument because, inter alia, (1) defense counsel agreed to a continuance until July 14, and (2) certain delays in the sentencing proceedings were attributable to defendant.

We find that defendant's restrictive interpretation of the federal district court order is unwarranted. Counsel for both sides, as well as the circuit court, were aware of the 120-day time limit contained in the federal district court order. Given the nature of capital sentencing proceedings, their agreement to begin the sentencing proceedings on July 14, 1997, indicates that the court and the attorneys, including defense counsel, believed that the federal district court's order required commencement, but not completion, of the sentencing proceedings within the 120-day period. We conclude that this is the reasonable interpretation of the federal district court order. See also Cave v. Singletary, 84 F.3d 1350 (11th Cir. 1996) (holding that state-court sentencing proceedings were timely when, during the 90-day period mandated by the federal court order, a status conference was held at which the parties agreed on a later sentencing date).

Defendant provides us with no authority to support his claim that the federal district court order required the sentencing proceedings to be completed by the expiration of the 120-day period. He relies on cases in which federal courts have found that a state court failed to comply with the time limit contained in a federal court order disposing of a defendant's petition for writ of habeas corpus. In these cases, however, the state courts failed to even commence, much less complete, the necessary proceedings within the time period required by the federal court orders. See Latzer v. Abrams, 615 F. Supp. 1226 (E.D.N.Y. 1985) (during the 60-day period within which the federal court required the defendant to be retried pursuant to his petition for a writ of habeas corpus, the state court arraigned the defendant but failed to begin his trial); Homan v. Sigler, 283 F. Supp. 404 (D. Neb. 1968) (the state court never conducted the evidentiary hearing that the federal court required it to hold within 90 days of its order disposing of the defendant's petition for a writ of habeas corpus). Thus, these decisions fail to support defendant's claim that initiation of resentencing proceedings within the time period ordered by a federal court is insufficient to comply with an order such as the one in this case.

In any event, even assuming that the circuit court failed to comply with the time limit contained in the federal district court order, we would reject defendant's challenge to his sentence. Even if a state court fails to conduct new sentencing proceedings within the time period ordered by the federal court pursuant to a defendant's petition for a writ of habeas corpus, the state court may nevertheless resentence the defendant. See Smith v. Lucas, 16 F.3d 638 (5th Cir. 1994); Moore v. Zant, 972 F.2d 318 (11th Cir. 1992); see also Foster v. Lockhart, 9 F.3d 722 (8th Cir. 1993) (if the state fails to retry a defendant within the time ordered by the federal court, the state may usually nevertheless rearrest and retry the defendant). Thus, even if untimely, the circuit court's sentencing order in this case is valid.

B. Voir Dire

Next, we address defendant's argument that his sentence must be vacated and his cause remanded for a new sentencing hearing because of certain errors that occurred during voir dire. According to defendant, the circuit court erred in "death-qualifying" prospective jurors and in excusing venireperson Sandra Hersil for cause based on her views about the death penalty.

1. Death Qualification of the Jury

During voir dire, the circuit court asked prospective jurors whether their feelings about the death penalty were such that "no matter what the facts of the case may be and no matter what the background of the Defendant may be, that under no circumstances would you ever give the death penalty in a murder case." The court excluded for cause those venirepersons who indicated that their feelings about the death penalty would prevent them from imposing it under any circumstances.

According to defendant, the exclusion of these venirepersons violated his federal and state constitutional rights because it resulted in a jury that was more punitive and more likely to impose the death penalty and denied him his right to be tried by an impartial jury drawn from a fair cross-section of the community. See U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §§ 2, 8.

In other cases, the United States Supreme Court has already rejected the federal constitutional challenges defendant makes to the death-qualification procedure. The Court has stated that the State has a "legitimate interest in excluding those jurors whose opposition to capital punishment would not allow them to view the proceedings impartially, and who therefore might frustrate administration of a State's death penalty scheme." Wainwright v. Witt, 469 U.S. 412, 416, 83 L. Ed. 2d 841, 846-47, 105 S. Ct. 844, 848 (1985). Thus, a juror may be excluded for cause based on his or her views on the death penalty if "the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " Wainwright, 469 U.S. at 424, 83 L. Ed. 2d at 851-52, 105 S. Ct. at 852, quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589, 100 S. Ct. 2521, 2526 (1980). Under this standard, the Court has held that a juror who "in no case would vote for capital punishment, regardless of his or her instructions, is not an impartial juror and must be removed for cause." Morgan v. Illinois, 504 U.S. 719, 728, 119 L. Ed. 2d 492, 502, 112 S. Ct. 2222, 2229 (1992).

Defendant argues that this court should nevertheless find that the death qualification of the jury in this case violated his rights to due process and an impartial jury under the Illinois Constitution. See Ill. Const. 1970, art. I, §§ 2, 8. As defendant argues, this court may interpret provisions of the Illinois Constitution more broadly than analogous federal constitutional provisions. See People v. Krueger, 175 Ill. 2d 60, 74 (1996). In determining the extent of state constitutional protections, federal decisions interpreting similar federal constitutional provisions are persuasive but not controlling. People v. McCauley, 163 Ill. 2d 414, 436 (1994).

Defendant fails to offer a convincing reason why, in the context of death qualification, this court's interpretation of state constitutional rights to due process and an impartial jury should differ from the Supreme Court's interpretation of their federal constitutional counterparts. He provides us with no basis for concluding that the framers of the Illinois Constitution intended it to be interpreted differently than the federal constitution with respect to death qualification of jurors. See People v. DiGuida, 152 Ill. 2d 104, 118 (1992) ("[W]here the language of the State constitution, or where debates and committee reports of the constitutional convention show that the Framers intended a different construction, [this court] will construe similar provisions in a different way from that of the Supreme Court"). Moreover, in the past, this court has indicated agreement with the Supreme Court's decisions finding that death qualification of a jury does not violate a defendant's federal constitutional rights to due process and an impartial jury. See, e.g., People v. Silagy, 101 Ill. 2d 147, 165 (1984); People v. Free, 94 Ill. 2d 378, 401-02 (1983).

In addition, in an analogous case involving death qualification of a jury, this court has already rejected the argument that the state due process clause provides greater protections for defendants than the federal due process clause. In People v. Coleman, 168 Ill. 2d 509 (1995), this court held that, where the same jury that determines a defendant's guilt also decides whether to impose the death penalty, death qualification of the jury does not violate the due process provision of the Illinois Constitution. After noting that the United States Supreme Court had held that death qualification of a jury under these circumstances does not violate federal due process (see Lockhart v. McCree, 476 U.S. 162, 90 L. Ed. 2d 137, 106 S. Ct. 1758 (1986)), the Coleman court rejected the defendant's argument that death qualification nevertheless violates Illinois constitutional due process protections. Coleman, 168 Ill. 2d at 549-50, citing People v. Sanchez, 115 Ill. 2d 238, 266 (1986) ("defendant has not presented, nor do we perceive independently, any State constitutional basis for departing from our prior cases and the now-consistent Supreme Court position on the issue").

In arguing that this court should that find the death-qualification process violates the Illinois Constitution, defendant relies entirely on three "empirical studies on the effect of death qualification." See C. Haney, "Modern" Death Qualification: New Data on its Biasing Effects, 18 Law & Hum. Behav. 619, 629 (1994); R. Fitzgerald & P. Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 Law & Hum. Behav. 31, 46 (1984); E. Bronson, Does the Exclusion of Scrupled Jurors in Capital Cases Make the Jury More Likely to Convict? Some Evidence from California, 3 Woodrow Wilson L.J. 11, 25-31 (1981). He asserts that these studies "conclusively demonstrate that death qualification disproportionately excludes African-Americans, women, Democrats, younger people, low income people, the least and the best educated, unskilled workers, Jews, and agnostics."

Both this court and the United States Supreme Court have rejected such studies as a basis for finding that death qualification of a jury denies a defendant of his right to an impartial jury drawn from a fair cross-section of the community. See Lockhart, 476 U.S. at 168-79, 90 L. Ed. 2d at 144-51, 106 S. Ct. at 1762-68; People v. Kubat, 114 Ill. 2d 424, 439-40 (1986). In this case, we also decline to base a finding that death qualification violates our state constitution ...

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