stating that, under the plain error doctrine, courts may address a waived issue if the evidence is closely balanced or if the error affects substantial rights
How later courts described this case
- stating that, under the plain error doctrine, courts may address a waived issue if the evidence is closely balanced or if the error affects substantial rights
- noting that the court can, by sustaining the objection or instructing the jury to disregard the answer or remark, usually correct the error
- the defendant had no criminal record and the murders occurred while the defendant was under an extreme emotional disturbance
- mitigating factor included evidence that, following his arrest, defendant gave a friend $3,200 to pay for his son's education
Written by the judges who cited it.
The opinion
MR. JUSTICE UNDERWOOD, concurring in part and dissenting in part:
I concur in the affirmance of the conviction. I dissent from the reversal of the death sentence.
The majority reverses because “the [trial] court gave no consideration to the absence of any prior criminal activity as a mitigating factor” and erred “in determining that the defendant was not under extreme mental or emotional disturbances.” (79 Ill. 2d at 588-89.) It is, however, entirely clear in this record that the trial judge considered the absence of a prior criminal record, but believed its mitigating effect outweighed by the fact that, as the judge put it, defendant had “brutally murdered his wife and committed arson of the house in which her body lay.” It is not factually correct, and it is unfair to the trial judge to state, that he gave “no consideration” to the absence of a prior criminal record.
My colleagues apparently are also influenced by the fact that they view these murders and arson as “all apart of one unfortunate and tragic event” (79 Ill. 2d at 588) and seem impressed by defendant’s concern for his son. They say the circumstances here “do not bespeak a man with a malignant heart who must be permanently eliminated from society.” (79 Ill. 2d at 590.) I would have thought that all murders were “unfortunate and tragic,” but I would not view that fact as any justification for vitiating all death penalties. Nor do I find any great amount of parental concern being manifested by a father who has just murdered his son’s mother and intends to flee to California.
Any suggestion that defendant was attempting suicide when he killed Sergeant White is, in my judgment, little short of ridiculous. As my colleagues acknowledge, defendant knew the officers were police when they entered the bar, and he drew his gun as they approached. Defendant killed Sergeant White by firing two shots into his chest at point blank range, and fired three or four more shots during the ensuing struggle. His conduct clearly negates any claim of attempted suicide or anything other than the intentional killing of a known police officer.
Death penalty cases are not pleasant. The General Assembly, however, in response to overwhelming public demand (S. Gove & T. Kitsos, Revision Success: The Sixth Illinois Constitutional Convention 135 (National Municipal League, State Constitutional Convention Studies, No. 8, 1974)) has repeatedly enacted death penalty statutes. We have upheld the constitutionality of the current one (People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531 , People v. Brownell (1980), 79 Ill. 2d 508 ), and we ought to permit its implementation, absent reversible error. There is, in my judgment, no such error here. I would affirm the death sentence.