The opinion of the court was delivered by: Justice Fitzgerald
Docket No. 87443-Agenda 2-January 2001.
Following a jury trial in the Kane County circuit court, the defendant, Tony Dameron, was convicted of first degree murder for killing his three-month-old daughter. The defendant waived his right to a sentencing-phase jury, and the trial court found him eligible for the death penalty. The court then found no mitigating circumstances sufficient to preclude the death penalty and sentenced the defendant to death. That sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a).
We affirm the defendant's conviction, but we reverse his death sentence and remand for a new sentencing hearing.
Rachel Dameron was born on May 23, 1995. She lived with her mother, Cynthia Michniewicz, her one-year-old half-brother, Christopher Thornton, and her father, the defendant, in an Aurora apartment.
The defendant was unemployed, and he would baby-sit Christopher and Rachel while Michniewicz worked. On August 29, 1995, the defendant told Michniewicz he planned to attend a sobriety party at a local restaurant. He assured her that he would return around 9 p.m. to watch the children, so she could leave for work. When the defendant failed to arrive, Michniewicz left him a note saying she took the children to the Alejandros' house. Neighbors Deborah and David Alejandro (Deborah and David) occasionally cared for Christopher and Rachel.
The defendant did not attend a sobriety party. Instead, he walked to several Aurora bars where he drank beer and hard liquor from 5 p.m. to 1 a.m. When the defendant came home around 1:30 a.m., he saw Michniewicz's note and went to the Alejandros' house to retrieve the children. Deborah gave him Rachel. Christopher was sleeping, so he remained with the Alejandros.
At trial, the defendant testified that he brought Rachel to their apartment, took her upstairs to bed, and went downstairs to shoot some heroin. When Rachel began crying, he went back upstairs to attend to her. As the defendant was taking her downstairs for a bottle, he dropped her. The defendant saw Rachel was not breathing; he told her to wake up and smacked her face to revive her. The next thing the defendant remembered was Michniewicz waking him later that morning.
Michniewicz returned to the apartment around 6:30 a.m. and found the defendant sleeping in bed. She woke him to ask about the children, and he told her that both children had stayed with the Alejandros overnight. Michniewicz got into bed to sleep for several hours. According to the defendant, he arose and went to the children's playroom. Inside the closet, he saw Rachel's lifeless body wrapped in a towel. The defendant put Rachel and the towel into plastic bags and then into a canvas duffel bag. He placed the duffel bag inside the closet and returned to bed. The defendant woke Michniewicz around 9:30 a.m. She asked if she should retrieve the children from the Alejandros; he said he would. Around 10:30 a.m., Michniewicz left to meet a friend from work, and the defendant visited the Alejandros to get Christopher. The defendant soon returned to the Alejandros and told David that Rachel had been kidnapped. David drove the defendant to a pay telephone to call the police.
An Aurora police officer was dispatched to the defendant's apartment around 11:30 a.m. The officer met the defendant, who reported that he had left Rachel in her car seat outside their apartment while he went inside to warm a bottle for her; when he returned, she was gone. Aurora police investigator Randall Place soon arrived at the defendant's apartment and spoke with the other police officer. Officer Place briefly surveyed the apartment, then asked the defendant to accompany him to the police station. The defendant agreed, locked the apartment, and left with Officer Place.
At the police station, the defendant gave Officer Place background information about his relationship with Michniewicz. The defendant gave his keys to the police, who returned to the apartment to search for Rachel. Inside the playroom closet, an officer found the canvas duffle bag. He opened it and found two white plastic bags. The officer felt a damp towel inside the second plastic bag. He looked inside and saw a baby's arm or leg. Around 2:30 p.m., Officer Place received a call from the defendant's apartment that Rachel was dead.
Officer Place gave Miranda warnings to the defendant and told him that Rachel had been found inside the apartment. When this statement elicited no reaction from the defendant, Officer Place asked the defendant to tell the police what he knew about Rachel. The defendant responded that he had killed Rachel-that he had dropped her on the stairs.
An autopsy revealed at least 37 types of injuries to Rachel's body, including blunt force trauma, skull and spine fractures, various other bone fractures, brain injury, contusions, strangulation marks, and lacerations of the liver and genital area. Rachel also had been exposed to water; her body had been washed. Rachel's head was deformed and discolored, and her brain was liquified. Blood and brain matter seeped from her right ear. Her vagina was dilated and stretched, and her vaginal and anal areas were torn. Not all of these injuries could be explained by falling down stairs; Rachel's injuries were not accidental. The forensic pathologist who performed the autopsy surmised that Rachel had been wielded by the legs and swung against a smooth, hard surface more than 10 times. This beating caused her death.
On September 18, 1998, the jury convicted the defendant of first degree murder. On September 21, 1998, the trial court found him eligible for the death penalty on two grounds: the defendant murdered a person during an attempted aggravated criminal sexual assault (720 ILCS 5/9-1(b)(6)(c) (West 1996)); and the defendant murdered a person under 12 years of age, and the death resulted from "exceptionally brutal or heinous behavior indicative of wanton cruelty" (720 ILCS 5/9-1(b)(7) (West 1996)). On October 6, 1998, after a two-week aggravation/mitigation hearing, the court sentenced the defendant to death. This appeal followed. See 134 Ill. 2d R. 603.
The defendant's appeal raises eight issues. These issues fall into three categories: guilt-phase issues, sentencing-phase issues, and issues attacking the constitutionality of the Illinois death penalty statute.
The defendant first contends he was denied a fair trial because, on direct examination by the State, Officer Place mentioned the defendant's post-Miranda-warning request for an attorney. On this legal issue, we review the record de novo. People v. Daniels, 187 Ill. 2d 301, 307 (1999).
During direct examination by the State, Officer Place testified that he gave Miranda warnings to the defendant. The State questioned Officer Place about his interview with the defendant:
"Q: What did he say to you at that time?
A: The second time I said Tony, you need to tell us what you know, and he said I killed her, I was drunk and I was taking her downstairs to fix her a bottle an [sic] I dropped her on the stairs.
Q: And in response to that question did you know she was dead what did he say?
A: Umm, at that point he said that she was dead, she was dead. Again, no eye contact, just stared straight ahead.
Q: Did you ask him whether or not he believed she was dead?
A: Umm, that question was asked, and he stated that she-that she in fact was dead.
Q: And what did he say after that if anything?
A: Umm-Officer Snyder asked him: When you knew Rachel was dead, what did you do with the body? At that point he said: I can't remember. I just freaked out. I can't remember.
And then in turn I asked him after that: Was the amount of alcohol you drank was that a factor in you dropping Rachel on the stairs? And he stated: No, it wasn't. It was all me. And then he took a breath, he said: It was all my fault.
And then at that point he looked up, he did make eye contact with me, and he stated that he wanted to talk to an attorney, and I didn't ask him anymore questions."
Defense counsel objected and moved for a mistrial, and the State conceded Officer Place's statement was improper. The trial court denied the defendant's mistrial motion. Instead, the court barred the State from making further references to Officer Place's testimony about the defendant's request for an attorney or Place's testimony about the defendant's eye contact during the interview. The court also offered to give a curative jury instruction. After conferring with the defendant, ...