The opinion of the court was delivered by: Justice Freeman
Docket No. 83279-Agenda 22-May 1999.
Following a jury trial in the circuit court of Cook County, defendant, Julius Kuntu, was convicted of seven counts of first degree murder and one count of aggravated arson. 720 ILCS 5/9-1(a), 20-1.1(a) (West 1994). At a separate sentencing hearing, the same jury found defendant eligible for the death penalty and further determined that there were no mitigating circumstances sufficient to preclude imposition of that sentence. Accordingly, the trial court sentenced defendant to death on the murder convictions and to a 30-year prison term on the aggravated arson conviction. The death sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a).
Retaining jurisdiction, this court remanded the cause to the trial court for an evidentiary hearing to determine whether a relationship exists between the jury foreperson and Cook County State's Attorney Richard Devine and, if so, whether defendant was thereby prejudiced. People v. Kuntu, 188 Ill. 2d 157, 162 (1999). The trial court found that "[i]t was a casual relationship at best," which did not prejudice defendant's right to a fair trial.
The cause was returned to this court. We now affirm defendant's convictions, as modified, but reverse his death sentence and remand the cause for a new death sentencing hearing.
The State's evidence at trial was essentially as follows. Defendant, his girlfriend Toni Junes, and their baby lived in an apartment at 917 West Dakin Street in Chicago (hereafter building). The four-story building contained 47 apartments. On Saturday March 19, 1994, Edward Adler, the managing partner in the partnership that managed the building, and Judge DeLeon, the onsite building manager, spoke with tenants who were behind in their rent. Defendant was one such tenant. Adler told defendant that defendant had fallen too far behind in his rent and that Adler was going to evict defendant. Adler explained to defendant, however, that if defendant left prior to Monday, Adler would forgive the back rent that defendant owed.
At approximately 7 a.m. on Sunday, March 20, defendant, Junes, and their baby left their apartment carrying bags. Edward Stacy, defendant's friend who lived across the street, saw them at the Sheridan Road station on the CTA Dan Ryan "El" line. Defendant told Stacy that "they locked him out, so [defendant] was going to burn their ass out." Stacy warned defendant "not to do anything stupid."
After leaving Junes and their baby at the home of Junes' aunt in Riverdale, defendant returned to the area of the building. At approximately noon, he went to Stacy's apartment. Discussing the building, defendant told Stacy: "I am going to set the motherfucker on fire either after work or sometime this week." Stacy repeated his earlier warning to defendant, who then left.
At approximately noon, Larry Weaver, who lived in the building and knew defendant, saw him at a nearby gasoline station at the corner of Irving Park and Sheridan Roads. Carrying a bucket, defendant entered the station.
Defendant attempted to buy gasoline. The station attendant, Jose Bautista, told defendant that he could not buy gasoline in a bucket, but that he could buy a plastic gasoline can. Defendant bought a red gasoline can and gave the bucket to Bautista. The gasoline can cost $7.50; defendant paid for it with a $10 bill and bought gasoline with the change.
At around 12:30 p.m., Faustino Piniero, a neighbor who lived across the street from defendant, was sitting by his front window looking out at the building. Piniero saw defendant, whom he recognized, enter the building carrying a red gasoline can. Approximately five minutes later, Piniero saw defendant exit the building without the can. Shortly thereafter, Piniero saw smoke coming from the building.
DeLeon lived in a first-floor apartment in the building. At approximately 12:40 p.m., he was awakened by a loud kick to the door. Seconds later, he heard a voice he recognized as defendant's say: "Fuck you." DeLeon arose and looked through the peephole in his door, but saw only darkness. He opened the door and saw smoke and people shouting and screaming. He and his daughter left the building. He saw much smoke coming from the fourth-floor windows. He saw one tenant, Armando Tapia Rodriguez, jump from his window. Tapia broke a leg. DeLeon saw another tenant, Persephone Estes, drop children from a window. DeLeon caught one child himself; he injured his arm catching a second child. A third child was dropped onto a mattress.
The fire was set on the third-floor landing of the enclosed rear stairwell. It engulfed that portion of the stairs and spread to other areas of the building. Seven persons, all residents of fourth-floor apartments, died as a result of the fire. Six of those persons died from carbon monoxide poisoning and smoke inhalation: Jacqueline Vargas, age 15; Rolando Frausto, age 31; his wife Gladys Lopez, age 29; their children Gary Frausto, age 3, and Karen Frausto, age 5; and Gladys' brother Gary Lopez, age 15. Their bodies displayed severe thermal burns, which probably occurred after they died. The seventh fatality, John McKinney, age 43, died from multiple injuries suffered when he jumped from a fourth-floor window. Also, firefighter Kenneth Dorsen and many other tenants suffered injuries as a result of the fire.
Shortly after the fire was extinguished, investigators determined that the fire was intentionally set with gasoline. At the scene of the fire, Chicago police officers Dennis Connelly and Patrick Moyer questioned DeLeon, Weaver, and Stacy. At approximately 3 p.m., the officers left the scene and drove to the Popeye's Fried Chicken Restaurant at 1959 West Howard Street, where defendant worked, and arrested him. Although defendant was not scheduled to work until 4 p.m., he had been at the restaurant prior to 2 p.m. Officer Connelly saw that the hair on the top rear of defendant's head was singed. Connelly also smelled a strong odor of gasoline on defendant.
The officers placed defendant in the rear seat of their vehicle in the restaurant parking lot and waited for assistance. Officer Connelly then gave defendant Miranda warnings. Approximately 10 minutes later, several police officers arrived, including Officer Connelly's supervisor. Connelly was directed to take defendant to the 23rd District police station.
En route to the police station, defendant spontaneously and voluntarily spoke to the officers. Defendant told the officers as follows. He had argued with his landlord over rent and had intended to get even with him. Defendant's landlord had threatened to have the sheriff throw him out of his apartment and lock him up. This angered defendant. He obtained gasoline as earlier described, went to the building, went up to the third-floor rear landing, poured the gasoline onto the landing, lit a match, and threw the lighted match onto the gasoline. Defendant then ran from the building.
A few hours later at the police station, defendant gave a court- reported statement, in which he again confessed to the above-described acts. In addition, defendant stated that on the night of March 19, 1994, the electricity in his apartment was cut off. DeLeon came to defendant's apartment and told him that the electricity was cut off because defendant had failed to pay the rent. On March 20, after defendant left with Junes and their child, the apartment was padlocked.
Also, the assistant State's Attorney who took defendant's statement asked defendant whether he knew how many persons lived in the building. Defendant responded: "I don't think very many because people wouldn't live there. Because the guy was irresponsible [sic] of taking care of things." Defendant also stated that: from the time that he was in custody, no one made any threats or promises to him; he understood that the assistant State's Attorney who spoke with him was a prosecutor and not his lawyer; he was given and understood the Miranda warnings. We note that Adler, in his trial testimony, denied having defendant's electricity cut off and having defendant's apartment door padlocked.
Shortly after his arrest, police seized defendant's clothing, which was tested for the presence of accelerants. Tests of his coat and shirt were negative, tests of his pants were inconclusive, but tests of his shoes revealed the presence of gasoline. During an inspection of the building five days after the fire, a melted piece of red plastic was found among the debris toward the rear of the third floor. It smelled strongly of gasoline, the presence of which was confirmed by subsequent testing.
Defendant was charged in a 43-count indictment. He was charged with 28 counts of first degree murder in connection with the deaths of the seven victims of the fire. He was charged with intentional and knowing murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1994)) and felony murder based on both the felonies of arson and of aggravated arson (720 ILCS 5/9-1(a)(3) (West 1994)). He was also charged with 14 counts of aggravated arson (720 ILCS 5/20-1.1(a)(West 1994)) and one count of arson (720 ILCS 5/20-1(a) (West 1994)). Subsequently, the State entered a nolle prosequi on 14 of the murder counts, 11 of the aggravated arson counts, and the arson count.
The defense case was essentially that the State failed to prove defendant guilty of the charged offenses beyond a reasonable doubt. The theory of the defense was that defendant was an innocent person whom the State could conveniently blame for the fire. The defense attacked the credibility of the State's witnesses and argued that defendant's confession was not knowing and voluntary. The defense case consisted of testimony regarding defendant's background, mental condition, and whereabouts at the time of the fire.
Karen Affram, defendant's mother, testified as follows. Her father impregnated her when she was 15 years old. Defendant's birth, on February 22, 1968, was the result of this incestuous act. Her pregnancy had complications, and defendant's infancy was abnormal. Defendant could not sit up at the age of two, could not walk until age four, and could not speak in sentences until age five. She could not spank defendant because "he wouldn't know what he's getting a spanking for."
As to school, defendant was placed in learning-disabled classes. He attended high school for two months. At age 22, defendant could not read. He then attended a reading class with his mother. He lasted in the class for approximately two weeks because the work was too difficult for him.
Defendant began working at age 18. Defendant had a series of jobs; he was never able to hold one for more than a month due to his lack of comprehension. In 1992, defendant's mother moved to San Antonio, Texas. She had kept in touch with defendant by having him telephone her collect monthly.
Toni Junes testified as follows. She was 20 years old and met defendant when she was age 16. Defendant was the father of her three- year-old son. When they lived at the building, defendant at one point held three jobs, one of which was working at the Popeye's restaurant. The rent was $300 per month. Defendant had complained about the kitchen and bathroom sinks, the toilet, and the presence of rats and roaches. A few months prior to the fire, defendant and Junes stopped paying rent because the building management did not do anything about these problems. The night before the fire, their apartment did not have electricity.
Theophilus Green, a clinical psychologist, testified as follows. The defense hired him to evaluate defendant's mental condition. Green interviewed defendant in October 1995, April 1996, and March 1997. Although defendant was legally sane at the time of the offenses, he nevertheless suffered from an emotional illness and mental defect. Defendant scored 58 on an IQ test that Green administered. Based thereon, Green opined that defendant was, in Green's words, mentally retarded. Defendant suffered from schizo-affective disorder and mental retardation. "Schizo-affective" meant that defendant had difficulty with relationships and reality. Intellectually and emotionally, defendant's problem-solving and reasoning capabilities were below average or immature.
Also, Green did not believe that defendant was malingering. However, Green acknowledged that feigning mental illness was especially likely to occur in criminal cases, and that there was no foolproof method to disclose malingering.
The defense also presented alibi testimony. Junes testified as follows. On the morning of March 20, 1994, she and defendant took a CTA "El" train to the end of the Dan Ryan line, caught a bus, and then walked to her aunt's house in Riverdale. They arrived at around 11 a.m. At around noon, defendant left, saying that he was going to work. Further, Junes took $5 from defendant, leaving him with only $2.
Burton McGlothin, the manager of the Popeye's at 1959 West Howard Street when defendant worked there, testified as follows. On March 20, 1994, defendant arrived at the restaurant at around noon or 12:30 p.m. Although he was not scheduled to work that day until 4 p.m., he asked McGlothin if he could start early. McGlothin told defendant that he was not needed until his regular starting time. Defendant then went to the back of the restaurant. McGlothin did not recall previously telling an investigator that defendant arrived at the restaurant at approximately 2:45 p.m. McGlothin did not smell gasoline on defendant that day. Also, according to McGlothin, defendant was a dependable employee, with whom he had no problem communicating. Defendant did a good job at his assigned tasks.
The State's case in rebuttal consisted of testimony regarding defendant's mental condition and his whereabouts at the time of the fire.
Dr. Paul Fauteck, a clinical and forensic psychologist at the Department of Forensic Clinical Services in the circuit court of Cook County, testified as follows. Those who knew his work considered him as "being something of an expert on malingering." He had done his doctoral research on malingering, had given several presentations and had written an article on malingering, and was conducting ongoing research on the subject.
Dr. Fauteck interviewed defendant in May and July 1996, reviewed his records and the police reports, and administered an IQ test. Dr. Fauteck made the following determinations. Defendant was malingering, and there was no evidence of psychosis. Defendant had been taking antipsychotic medication unnecessarily for over two years. Defendant's thinking was normal and goal-oriented. Defendant's IQ was 69, "which would place him at the very top of the mild range of mental retardation, right at the edge of the borderline range." However, defendant was not mentally retarded. Rather, defendant "was not doing his best on the test."
Dr. Roni Seltzberg, a forensic psychiatrist at Forensic Clinical Services, testified as follows. She interviewed defendant in August 1996. Dr. Seltzberg determined that defendant was malingering to avoid prosecution. She believed that defendant's IQ was "certainly higher" than the 69 he scored when tested by Dr. Fauteck. She opined that defendant "functioned at least at the borderline intellectual level of functioning, which is better than any kind of mental retardation, but not quite-certainly not your average intellectual functioning person."
The State also called witnesses to rebut defendant's alibi evidence. Chicago Police Detective Carl Kurth testified as follows. On March 20, 1994, he and his partner spoke with Junes at her aunt's home in Riverdale. Junes told Kurth that she and defendant arrived at her aunt's home at approximately 10 a.m., and that defendant left immediately after their arrival. Cook County State's Attorney Investigator Robert Sullivan testified as follows. On February 7, 1997, he and one of the trial prosecutors spoke with McGlothin, the manager of the restaurant where defendant worked. McGlothin told them that on March 20, 1994, defendant arrived at the restaurant sometime between 1:30 p.m. and 1:45 p.m.
At the close of the evidence, the jury returned seven general verdicts of guilty of first degree murder, and one general verdict of guilty of aggravated arson.
In the eligibility phase of the death sentencing hearing, the jury found beyond a reasonable doubt the presence of a statutory aggravating factor: the murder was committed in the course of a felony, namely, aggravated arson. 720 ILCS 5/9-1(b)(6) (West 1994). Thus, the jury found that defendant was eligible for the death penalty.
At the second stage of the death sentencing hearing, the State presented victim impact evidence. Mitchell McKinney, brother of victim John McKinney, read his victim impact statement. The statements of five family members of victim Jacqueline Vargas were each read into the record. Additionally, the statements of three family members of victims Gladys and Gary Lopez were each read into the record.
Defendant's case in mitigation included the following evidence. Defendant testified as follows. He left elementary school at the age of 15, without graduating, because he had grown too old to continue attending there. He then attended high school for two months. He once had been arrested and charged with theft, but the charge was dropped when another person was arrested and convicted of that offense. Defendant had never been arrested for anything else, and had never caused anyone serious injury.
He and his family were evicted from their apartment because they withheld rent; they did so because the apartment was in disrepair and was infested with rats and roaches. On March 20, 1994, defendant took Junes and their baby to Riverdale and then went back to work at the Popeye's on Howard Street. He had only $5.
Defendant first learned of the fire when he was arrested. Police officers hit him in the parking lot of Popeye's. They threatened him with bodily harm if he did not make a statement. The assistant State's Attorney told defendant what to say and scripted the court-reported statement that he signed.
Defendant knew that he was on trial for murder, because the building had been burned and people had died. They had been his friends, and he felt sad for them. However, he denied setting the fire. He knew that setting such a fire could cause serious injury. Defendant believed that Stacy set the fire.
During the three years that defendant was in custody, he lived in the residual treatment unit, which was the psychiatric wing, of Cook County jail. He was being administered the prescription medications Haldol, Cogentin, and Zoloft. Defendant believed that he needed the medications because when taking them he no longer heard voices and saw things.
Karen Affram, defendant's mother, and Pauline Kuntu Caballero, Affram's mother, each testified in a manner consistent with Affram's testimony at the guilt phase of the trial. Also, Theophilus Green repeated much of his testimony at the guilt phase of the trial. He concluded that defendant suffered from a mental and emotional disturbance.
At the close of the sentencing hearing, the jury found that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. The trial court accordingly sentenced defendant to death on the first degree murder convictions. The court also sentenced defendant to a 30-year prison term on the aggravated arson conviction.
Defendant appeals. Additional pertinent facts will be discussed in the context of the issues raised on appeal.
We will consider defendant's allegations of error in the sequence in which the alleged errors occurred in the proceedings below. Defendant contends that he was denied a fair trial, during voir dire and at the guilt phase of the trial, because: (1) a juror failed to reveal during voir dire his relationship with the Cook County State's Attorney; (2) the trial court admitted photographs of the burnt victims; and (3) the State made inappropriate and prejudicial remarks during closing argument. Defendant also contends (4) that the trial court erred in entering judgment on both knowing murder and felony murder.
Defendant contends that he was denied a fair capital sentencing hearing at the eligibility phase because: (5) the State improperly used his aggravated arson conviction as the predicate felony to establish his eligibility for the death penalty; and (6) the State made improper and prejudicial remarks during closing argument. Defendant also contends (7) the jury's death eligibility verdict form did not include the required affirmative finding that he actually killed the victims.
Defendant contends that he was denied a fair capital sentencing hearing at the penalty phase because: (8) his trial counsel was constitutionally deficient for failing to present the testimony of defendant's treating psychiatrist; (9) the State made improper and prejudicial remarks during closing argument; and (10) the trial court sent the written victim impact statements with the jury during its deliberations.
Defendant also contends: (11) his death sentence is an excessive penalty; and (12) the Illinois death penalty statute is unconstitutional.
I. The Juror and the State's Attorney
Defendant seeks a new trial because juror Paul Kosin failed to reveal his relationship with Cook County State's Attorney Richard Devine during voir dire. According to defendant, this failure prevented the defense from seeking Kosin's exclusion for cause or from exercising a peremptory challenge against him.
Kosin was called as a venireperson. He had never before served on a jury. The trial court introduced the venire to defendant, defense counsel, and the two trial prosecutors. The court informed the venire of the charges. The court read a list of the possible witnesses. The court then asked the venirepersons if they were acquainted with defendant, the victims, the lawyers trying the case, or the witnesses. None were. The court repeated the question and received the same negative response.
Kosin was called as part of a panel for questioning. Reading his juror card, the trial court noted that Kosin was an attorney at "a well- known law firm in the Chicago area." Responding to the court's questions, Kosin indicated as follows. He had been an attorney since 1968 and practiced securities law. He had never worked for either a prosecutorial office or for the office of a defense attorney. In fact, he had never been in court. There was nothing about his training or experience that would prevent him from giving either side a fair trial.
During this questioning, the following colloquy occurred:
"Q: [THE COURT] Are any members of your immediate family or any of your close personal friends, and again it seems silly to ask this questions [sic], are they police officers or lawyers of any sort, judges, or anything at all like that?
A: My brother, Don, is a lawyer.
Q: The other lawyers are lawyers that you may know or come in ...