The opinion of the court was delivered by: Justice Heiple
Docket No. 83911-Agenda 26-May 2000.
Following a jury trial in the circuit court of Cook County, defendant, Robert Casillas, was convicted of two counts of first degree murder. Defendant waived his right to a jury for purposes of sentencing, and the trial court found him eligible for the death penalty on the basis of having committed two or more murders. After hearing evidence in aggravation and mitigation, the trial court 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). For the reasons that follow, we affirm. *fn1
The following evidence was adduced at trial. At approximately 5:15 p.m. on February 24, 1989, police responded to a holdup alarm at Key Jewelers, 6903 North Clark Street, in Chicago. Upon their arrival, police found the back screen door of the store ripped and the back door open. Snow on the ground near the back door was trampled on and police found several pieces of gold jewelry on the ground near the rear of the store and in the alley behind the building.
Inside the store, police discovered the bodies of the owners, Myung Choi and her husband, Chang Choi, each dead from a gunshot wound to the head. Jewelry was on the floor and several cases had been opened and emptied out. Police investigators recovered several spent shell casings and a right-hand black leather glove from the scene. Additionally, one live round was found laying on top of Mrs. Choi's leg and another bullet was recovered from a ceiling panel. A firearms examiner determined that all of the bullets, including those recovered from the bodies of Mr. and Mrs. Choi, were fired from the same .32 caliber semiautomatic weapon. Police also recovered 28 fingerprint impressions from the scene, but no murder weapon was found and the crimes remained unsolved for several years.
In May 1995, acting on a tip from a confidential informant, police contacted Patty Farias, at whose apartment defendant stayed during early 1989. The apartment was located on West Farwell, around the corner from Key Jewelers. According to Farias, as she arrived home from work and parked her car the evening of February 24, 1989, she noticed several police cars and officers going in and out of the jewelry store. When she got to her apartment, Farias found the door deadbolted from the inside, which was unusual. She knocked on the door and co-defendant Guadelupe Aguilar, whom Farias knew by the nickname "Stilleto," let her inside. Farias went to her bedroom, which was also locked. Defendant, whom Farias also knew by his nickname "Rush," opened the door, and Farias saw two large green trash bags, several black jewelry trays and pieces of gold jewelry strewn across the bed.
Farias became angry and demanded defendant leave her apartment. Defendant gathered up the trash bags and jewelry and, at defendant's request, Farias drove defendant and Aguilar to the home of defendant's sister, Alvina Hernandez. Once there, the two men removed the bags from the trunk of Farias' car and took them into the house. Farias did not see either man again, and spoke to defendant on only one other occasion approximately one month later, when defendant called Farias to ask how her children were. Farias stated that she never went to police because she was afraid.
Police then interviewed defendant at Area 3 headquarters. After being advised of his Miranda rights, defendant spoke privately with Chicago Police Detective Richard Zuley, eventually admitting to his involvement in the crimes committed at Key Jewelers on February 24, 1989. Assistant State's Attorney Joseph Alesia subsequently arrived to speak with defendant, and, after again being advised of his Miranda rights, defendant agreed to give a handwritten statement. In his statement, defendant said that both he and Aguilar stayed at Farias' apartment the night of February 23, 1989. Farias left for work the next morning and her two children went to school, leaving defendant and Aguilar alone in the apartment all day. Defendant stated that, at approximately 4 o'clock on the afternoon of February 24, he and Aguilar walked around the corner to Key Jewelers to "case it," meaning to look for security and see if the store would be easy to rob. After looking around the store and looking at some of the jewelry, the two men left.
Defendant and Aguilar walked back to Farias' apartment, where they were still the only ones home. The two men snorted some cocaine, and then went back to Key Jewelers at approximately 5:10 p.m., in defendant's words, "to rob it." Mr. and Mrs. Choi were the only persons present in the store. After entering the store, defendant stated, Aguilar told him to keep his eyes open, meaning that "something was going to happen." While Aguilar looked at a gold medallion, defendant stated that he stood by the display cases near the front of the store to watch for anyone approaching.
According to defendant's statement, he then heard a pop, at which time he turned around and saw Aguilar's arm extended and either a .25-or .32-caliber gun in his hand pointed at Mr. Choi's head. Mr. Choi slumped down, at which time Mrs. Choi ran to the back of the store and pressed an alarm buzzer. Aguilar chased the woman to the back of the store, grabbing her by the neck. Aguilar tried to shoot Mrs. Choi, but the gun jammed, and a live bullet popped out of the gun. Aguilar then shot Mrs. Choi once in the head and she fell to the ground.
Defendant stated that Aguilar then began emptying trays of jewelry into a box, handing defendant approximately seven or eight jewelry trays. The two men removed a board from the back door and escaped through the back, cutting through an alley and a gangway to Farias' apartment. Shortly after they arrived back at the apartment, Farias came home and found defendant on her bed with the trays of jewelry. According to defendant, Farias "started looking for answers from him," at which time he and Aguilar put the jewelry in plastic garbage bags. Defendant then pulled Farias' car up to the apartment. Aguilar came out of the apartment carrying the trash bags of jewelry. Farias also came out and drove the two men to defendant's sister's home, where defendant and Aguilar stayed overnight. Defendant further stated that the next day, Aguilar gave him a handful of gold chains, rings and medallions which he gave away the following week.
The cause proceeded to trial in April 1997. Defendant and Guadelupe Aguilar were tried in simultaneous, severed trials before two separate juries. The State's theory at trial was that defendant and Aguilar planned and carried out the robbery together, but that it was defendant who actually shot and killed Mr. and Mrs. Choi. In addition to testimony by several other police personnel who responded to the initial alarm and who worked on the case, latent fingerprint examiner Officer William Kovacs testified for the State as to two fingerprint impressions and one palmprint impression taken from a counter at the store which matched those of Aguilar. Detective Zuley testified as to his conversation with defendant prior to defendant's giving his handwritten statement in which defendant stated that he was wearing a pair of dark-colored gloves, either dark green or black, the day of the murders.
Patty Farias also testified on behalf of the State, repeating her account of the events February 24, 1989, as previously told to police in 1995. Additionally, Farias stated that defendant had told her a month prior to the murders that he wanted to get a gun because he always had one. Farias added, however, that she had never seen defendant carrying a gun, nor did she ever see a gun in her apartment.
Paul Hernandez, defendant's brother-in-law, also testified for the State. He and his wife, Alvina, defendant's sister, were home with several other family members the evening of February 24, 1989, when defendant and Aguilar arrived. Hernandez testified that Aguilar was carrying about three bags of jewelry, which he placed on the kitchen table. Aguilar told Hernandez that they had robbed a jewelry store, and then gave Hernandez's brother a gold bracelet and offered to sell some of the jewelry to Hernandez. Hernandez further stated that he thought Aguilar had a gun because he had his shirt untucked on one side and was constantly adjusting his pants, although he did not actually see either Aguilar or defendant with a gun. The next morning, Hernandez asked both men to leave his house.
Additionally, the jury heard testimony regarding defendant's August 1995 escape from the Cook County jail, where he was being held pending trial. Victor Cervantes, whom defendant did not know, but who was attending a party near the Cook County jail the night defendant escaped, testified that he invited defendant inside and later arranged a ride for defendant. William Prybell of the fugitive warrant unit of the Cook County sheriff's police apprehended defendant approximately one month later in Pasadena, Texas, and transported him back to the custody of the Cook County department of corrections. The trial court instructed the jury to consider defendant's escape only as evidence of his consciousness of guilt.
Defendant testified on his own behalf, providing a different account from that in his earlier statement to police. Defendant stated that he and Aguilar stopped by the jewelry store initially, not to case it, but to look at jewelry on their way to find Patty Farias' car, which they believed was parked nearby on the street. Defendant further stated that, after they went back to Farias' apartment, Aguilar told him he wanted to purchase a ring he had seen earlier in the store. They went back to Key Jewelers and Aguilar spoke with Mr. Choi while defendant looked at jewelry. According to defendant, he was scared and shocked when he heard the first shot. He saw Aguilar chase Mrs. Choi to the back of the store and shoot her, at which time, defendant stated, he fell to his knees and felt sick and scared. Defendant further testified that he only helped Aguilar carry jewelry out of the store out of fear, and initially refused to accept any of the proceeds of the robbery, but kept some of jewelry after Aguilar gave him a "crazy look." Defendant said he only signed the handwritten statement admitting to participation in the robbery after Assistant State's Attorney Alesia promised him he would not be charged with murder. He also stated that he escaped from the Cook County jail because he feared for his safety when the business card Alesia gave to him was taken away, although defendant did not know who took the card.
At the close of all the evidence, the jury was instructed on intentional, knowing and felony murder as well as on the law of accountability. The trial court, however, failed to give Illinois Pattern Jury Instructions, Criminal, No. 2.02, instructing the jury that an indictment is not evidence of guilt, and Illinois Pattern Jury Instructions, Criminal, No. 2.03, instructing the jury as to the presumption of innocence and the burden of proof. The jury returned a general verdict finding defendant guilty of both murders.
Defendant waived his right to a jury for his death penalty sentencing hearing, and, after admitting the jury verdicts into evidence, the court found him eligible for the death penalty on the basis of having committed two or more murders. 720 ILCS 6/9-1(b)(3) (West 1996).
At the aggravation-mitigation phase of defendant's death penalty hearing, the prosecution introduced evidence of defendant's extensive criminal history, which included evidence linking defendant to the September 1991 shooting of Artemio Garcia and the October 1991 murder of Gerardo Gonzalez. The prosecution also introduced evidence of defendant's numerous disciplinary infractions while in the custody of the Department of Corrections, as well as his 1995 escape and previous escape attempts in 1983 and 1984.
In mitigation, defendant presented testimonial evidence of his good behavior while in custody at Stateville Prison. Defendant's brother and sister offered evidence of defendant's abusive childhood. Defendant's childhood foster father also testified on his behalf.
At the close of all the evidence, the trial court ruled that there was no mitigation sufficient to preclude the imposition of the death penalty, whereupon defendant was sentenced to death. Defendant's subsequent motion for a new trial, sentencing hearing, and reconsideration of sentence was denied.
Defendant raises 11 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 violated when the trial court failed to give Illinois Pattern Jury Instructions, Criminal, No. 2.02 and No. 2.03 (3d ed. 1992) (hereinafter IPI Criminal 3d). IPI Criminal 3d No. 2.02 states:
"The [(information)(indictment)(complaint)] in this case is the formal method of accusing the defendant[s] of an offense and placing [(him)(them)] on trial. It is not any evidence against the defendant[s] and does not create any inference of guilt."
IPI Criminal 3d No. 2.03 states:
"[(The) (Each)] defendant is presumed to be innocent of the charge[s] against him. This presumption remains with him each defendant throughout every stage of the trial and during your deliberations on the verdict and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence."
At trial, neither the State nor defense tendered either instruction to the court. Defendant did not object to the omission of these instructions at trial or in his post-trial motion. Ordinarily, the failure of a defendant to tender an instruction or to otherwise object at trial waives the issue for appellate review. People v. Layhew, 139 Ill. 2d 476, 485 (1990). Defendant, however, argues that trial counsel's failure to do so constitutes ineffective assistance of counsel. Additionally, defendant claims that, in keeping with the constitutional requirement that he be provided a fair trial, principles of waiver or procedural default do not apply.
In Layhew, we noted that a written instruction informing the jury of the presumption of defendant's innocence and the State's burden of proving defendant guilty beyond a reasonable doubt is a time-honored and effective method of protecting a defendant's right to a fair trial, which is guaranteed by the due process clause of the fourteenth amendment. Layhew, 139 Ill. 2d at 486, citing Taylor v. Kentucky, 436 U.S. 478, 490, 56 L. Ed. 2d 468, 478, 98 S. Ct. 1930, 1937 (1978). Thus, despite defendant's failure to object, this court will notice this error and endeavor to determine whether defendant was denied a fair trial by the court's failure to sua sponte give IPI Criminal 3d No. 2.03.
The court bears the burden of seeing that the jury is instructed as to the presumption of innocence and the burden of proof. Although error, the trial court's failure to give this written instruction does not automatically result in a finding that defendant's constitutionally protected right to a fair trial has been violated. Kentucky v. Whorton, 441 U.S. 786, 789, 60 L. Ed. 2d 640, 643, 99 S. Ct. 2088, 2090 (1979). In Layhew, this court adopted the totality of the circumstances analysis used by the United States Supreme Court in Whorton. Under this test, to determine whether defendant received a fair trial, we must look to all the circumstances including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming and any other relevant factors. Layhew, 139 Ill. 2d at 486, quoting Whorton, 441 U.S. at 789, 60 L. Ed. 2d at 643, 99 S. Ct. at 2090.
Applying this test to the facts of the instant case, we find the jury was adequately informed about the burden of proof and the presumption of innocence. Under the first factor enunciated in Whorton, the reviewing court looks to the instructions that the trial court actually did give the jury. Here, at the start of voir dire, the trial court discussed at length, repeatedly and in the presence of all the jurors, the State's burden of proof and defendant's presumption of innocence. Specifically, the trial judge stated to all potential jurors:
"One of the significant characteristics in a criminal case is that the State bears the burden of proof in a criminal case. The standard is proof beyond a reasonable doubt. In a criminal case the State bears the burden to prove the defendant guilty beyond a reasonable doubt. That burden never shifts. It remains with the State throughout the trial.
Kind of on the other side of that coin is a constitutional principle that has to do with our system of law, and that is called the presumption of innocence. Under our system of law, every criminal defendant, meaning one who has been accused of committing a crime, every criminal defendant, not just this defendant, but any criminal defendant is in the law presumed innocent. Sometimes that is described as saying a defendant is cloaked with the presumption of innocence.
That presumption of innocence remains with the defendant throughout the trial and never goes away. That presumption of innocence remains with the defendant even while the jury is deliberating. That presumption of innocence is not removed or rebutted until and unless the jury, having been instructed and having heard all the evidence and deliberating, removes that presumption with a finding of guilty. Those are two very basic premises under our system of law, and one has to keep in mind throughout jury service on a criminal case.
The defendant in a criminal case under our system of law, and it doesn't matter whether it is a state court or federal court, any jurisdiction, a defendant in a criminal case has no burden. All of the burden in the criminal case is on the prosecution. There is no burden on the defendant, and by that I mean the defendant does not have to present any evidence. A defendant may choose to present evidence. What is important to understand is that there is no requirement for a defendant to present evidence.
A defendant does not have to prove anything. The burden of proof is on the prosecution. Least of all, the defendant does not have to prove his innocence. It is the State's obligation under our system of law to prove the defendant guilty beyond a reasonable doubt. That is the only burden and it stays with the State throughout the trial."
The trial judge then went on to state that the defendant is under no obligation to testify on ...