People v. Hudson

CHIEF JUSTICE MILLER, concurring:

I concur in the judgment of the court, and I join most of the majority opinion. I do not entirely agree, however, with the majority’s discussion of the prosecutor’s closing argument at the sentencing hearing, and for that reason I write separately.

In closing argument at the second phase of the sentencing hearing, the prosecutor urged the jurors to “think about the fact, ladies and gentlemen, that given the chance, [the defendant] will do it again. He will kill again if he is given the chance.” The majority concludes that these comments were proper because they were supported by the evidence in this case. (157 Ill. 2d at 457.) I do not agree.

This court has previously expressed its disapproval of remarks, unsupported by any evidence, that a capital defendant might commit another murder if he is not sentenced to death. (People v. Hooper (1989), 133 Ill. 2d 469, 500-01 ; People v. Gacho (1988), 122 Ill. 2d 221, 256-60 ; People v. Holman (1984), 103 Ill. 2d 133, 161-65 .) The potential prejudice from comments of this nature can be especially great. The sentencing determination in a capital case requires, as a constitutional matter, an individualized consideration of the offense and the offender. (Eddings v. Oklahoma (1982), 455 U.S. 104, 110-12 , 71 L. Ed. 2d 1, 8-9 , 102 S. Ct. 869, 874-75 ; Woodson v. North Carolina (1976), 428 U.S. 280, 304-05 , 49 L. Ed. 2d 944, 961 , 96 S. Ct. 2978, 2991 (plurality opinion).) Mere speculation regarding a defendant’s future dangerousness, however, threatens to divert the jury’s attention from that important task. People v. Hayes (1990), 139 Ill. 2d 89, 156-57 ; People v. Szabo (1983), 94 Ill. 2d 327, 366-67 .

The State argues, and the majority agrees, that the prosecutor’s comments in this case were supported by evidence of the defendant’s involvement in a plan to escape from jail. As part of the State’s evidence in aggravation, an investigator with the Cook County department of corrections testified to information he had received from an inmate of the Cook County jail. According to the investigator, this inmate had implicated the defendant and six other inmates in a plan to escape from the jail. As part of the plan, one of the inmates, Robert St. Pierre, was to kill a guard and a sergeant at the jail. Evidence was found corroborating the inmate’s account of the escape plan, including the discovery, in an air shaft, of a 100-foot long rope fashioned from bed sheets. Also, two shanks were found in St. Pierre’s jail cell.

Although I agree with the majority’s determination that this evidence was properly admitted, I do not believe that the testimony substantiated the prosecutor’s later argument that the defendant “will kill again if he is given the chance.” The aggravating evidence implicated only St. Pierre, and not the defendant, in the scheme to kill the jailers. Although the defendant could have been responsible for offenses committed by other escapees on an accountability theory, there was no evidence directly linking the defendant to the plan to kill the jailers, or even showing that the defendant had advance knowledge of inmate St. Pierre’s intended role.

In further support of its conclusion that the prosecutor’s comments were proper, the majority notes that on two occasions shanks had been found in the defendant’s jail cell. Again, I do not consider this testimony sufficient to support the prosecutor’s prediction that the defendant would commit another murder if not sentenced to death. Cases in which this court has declined to find error in prosecutorial comments on a defendant’s future dangerousness involved substantially more evidence of the likelihood of misconduct by the defendant than was presented here. (See, e.g., People v. Johnson (1991), 146 Ill. 2d 109, 148-49 (defendant’s statements to psychiatrist expressing intent to commit further murders if set free); People v. Gacy (1984), 103 Ill. 2d 1, 97 (defendant convicted of 33 murders).) The record in the case at bar does not contain evidence of a similar nature.

Although this portion of the prosecutor’s closing argument was improper, I do not believe that the defendant is entitled to a new' sentencing hearing. Defense counsel made no objection to the prosecutor’s comments, and therefore the matter may be noticed on review only if it rises to the level of plain error. (See 134 Ill. 2d R. 615(a) ("Plain errors or defects affecting substantial rights may be noticed [on review] although they were not brought to the attention of the trial court”); see also People v. Pitsonbarger (1990), 142 Ill. 2d 353, 401-02 .) The remarks in this case clearly do not constitute plain error. The challenged comments were brief and unrepeated, the State presented substantial evidence in aggravation, and the defendant introduced only slight evidence in mitigation. Accordingly, I would conclude that the plain error exception is not applicable here. I concur in the judgment of the court affirming the defendant’s convictions and death sentence.

JUSTICES FREEMAN and McMORROW join in this concurrence.