# People v. Henderson

> Illinois Supreme Court · November 30, 1990 · 142 Ill. 2d 258

URL: https://www.frixlaw.com/law-library/cases/9715925

## Case

- **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DEMETRIUS HENDERSON, Appellant
- **Court:** Illinois Supreme Court
- **Decided:** November 30, 1990
- **Citations:** 142 Ill. 2d 258; 154 Ill. Dec. 785; 568 N.E.2d 1234; 1990 Ill. LEXIS 138
- **Precedential status:** Published
- **Opinion:** Dissent by Clark
- **Judges:** Stamos, Clark, Calvo
- **Cited by:** 334 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Declined to follow on other grounds by People v. Terry, 183 Ill. 2d 298 (1998).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9715925

## How later opinions describe it (automated extraction)

- holding that the totality of evidence supported the conclusion that defendant’s mother consented to the police entry of her apartment where the police officer identified himself and asked if defendant was home, and mother said defendant was inside the apartment and then steppe…
- finding that conduct of defendant’s mother–stepping back from the open door and pointing toward defendant’s bedroom–“was a wordless invitation to enter, and faced with this conduct the officers need not have asked for permission to enter and received verbal confirmation”
- finding it was error to admit a witness’s prior consistent statement because it was “possible” the jury saw the witness as “more credible because he said he had given the police the same account four days after the murder, and people are more apt to believe what is repeated”
- finding that the State waived its argument that the defendant failed to make a timely Batson objection by failing to make this argument in the trial court
- finding prosecutorial comments improper where there was no evidence at trial to support the comments but not reversible error given the objection and the instruction to the jury

## Opinion text

JUSTICE CLARK, dissenting:
Because I believe the numerous errors committed at defendant’s trial unconstitutionally deprived him of his right to due process, I respectfully dissent from the majority’s decision to affirm defendant’s conviction. Even if I were to agree that these errors did not deprive defendant of his right to a fair trial, because I believe defendant did not knowingly and intelligently waive his right to a jury during sentencing, and because the trial court may have failed to consider defendant’s evidence of mitigating circumstances, I would vacate the death sentence and remand for a new sentencing hearing.
Initially I note that the majority relies on this court’s opinion in People v. Bean (1990), 137 Ill. 2d 65, 78-79 , for its finding that defendant’s rights were not violated by his absence while the judge questioned two sworn and one prospective juror. (142 Ill. 2d at 291-92.) While I dissented in Bean I recognize that it is now the law in Illinois, and is properly applied in this case. I also note that the defendant in Bean was absent during the questioning of a prospective juror who was dismissed through the use of a peremptory challenge. In this case, all'the jurors questioned outside the presence of the defendant were dismissed for cause. Thus defendant’s presence during the questioning would not have affected the court’s decision to dismiss the jurors.
As the majority recognizes, numerous evidentiary errors were made at defendant’s trial. For example, the majority finds that certain statements relating to defendant’s intent to commit an unrelated crime should have been redacted from defendant’s confession before it was read to the jury (142 Ill. 2d at 305-09); that the State improperly asked questions formulated to elicit testimony of a prior consistent statement from one of the State’s key witnesses (142 Ill. 2d at 309-13); that the prosecutor made numerous improper statements in his closing argument intended to “inflame the jurors’ emotions and engender feelings of sympathy for [the victim] and her family, causing some prejudice to defendant” (142 Ill. 2d at 322); and that the prosecutor made improper statements regarding the absence of fingerprint evidence which would tie defendant to the crime (142 Ill. 2d at 323-24).
In considering each of these errors individually, the majority concludes that none of them warrant reversal. The majority’s basis for this conclusion is that some of the errors made at trial were waived by defendant’s failure to raise them in his post-trial motion, and others were harmless due to the overwhelming evidence of defendant’s guilt. I agree that when considered individually, none of the errors warrant reversal. However, I believe that the cumulative effect of these errors has deprived defendant of his constitutional right to a fair trial.
This court has frequently reversed convictions and sentences where there were errors which cumulatively served to deprive the defendant of due process. (See, e.g., People v. Walker (1982), 91 Ill. 2d 502, 516-17 ; People v. Whitlow (1982), 89 Ill. 2d 322, 341-42 ; People v. Romero (1967), 36 Ill. 2d 315, 319-20 .) Because I believe that the cumulative effect of the numerous errors cited above have deprived defendant of a fair trial, I would reverse defendant’s conviction.
Even if the numerous errors committed at trial did not deprive defendant of his constitutional right to a fair trial, I believe that his death sentence must be vacated because defendant did not make a knowing and intelligent waiver of his right to a jury for his sentencing. As the majority notes, prior to trial, the trial judge misstated the law regarding who would determine defendant’s eligibility for the death penalty. (142 Ill. 2d at 333-35.) Specifically the trial judge stated, “If you are found guilty there first has to be a hearing to determine whether or not you are eligible for the Death Penalty. There is [sic] a number of factors that enter into that and it is a decision I make as the Judge.” (Emphasis added.) 142 Ill. 2d at 333-34.
Despite this misstatement, the majority finds that defendant’s jury waiver was made knowingly and intelligently. The majority relies on this court’s opinions in People v. Guest (1986), 115 Ill. 2d 72 , and People v. Morgan (1986), 112 Ill. 2d 111 , which state that a jury waiver is not invalid merely because the trial judge did not inform the defendant that a jury’s sentencing decision must be unanimous. (142 Ill. 2d at 334-35. See also People v. Albanese (1984), 104 Ill. 2d 504, 535-36 (where this court held that the Constitution does not require that the trial court inform the defendant of the unanimity requirement).) The cases cited by the majority stand for the proposition that a trial court’s failure to inform the defendant of the need for juror unanimity, which is not a constitutional requirement, can be overcome by a showing that the defendant consulted with his attorney, that the defendant said he understands the consequences of waiving the jury, and that defendant’s attorney said he believes the defendant’s waiver was made knowingly and intelligently. (142 Ill. 2d at 334-35.) Because the majority finds these factors to exist in the present case, it concludes that defendant’s jury waiver was made knowingly and intelligently. 142 Ill. 2d at 334-35.
The majority’s reliance on Guest and Morgan is misplaced. This court has previously held “the sixth amendment requires no precise formula for determining whether a waiver has been knowingly and intelligently made. Each case will turn on its own facts and circumstances.” (People v. Albanese (1984), 104 Ill. 2d 504, 535-36 .) The test applied by the majority has, until now, only been applied to a court’s failure to inform a defendant of the need for unanimity among jurors. Clearly there is a difference, which the majority ignores, between an omission of information not required under the Constitution (i.e., the unanimity requirement) and inclusion of information which might mislead the defendant (i.e., who will decide defendant’s eligibility for the death penalty). Nonetheless, in its holding the majority implies that any time the factors enumerated in Guest and Morgan are present, a defendant’s jury waiver will be valid, even when the judge misstates the law. The majority thereby creates a standard test to determine if a defendant’s jury waiver was made knowingly and intelligently. Such a holding comes dangerously close to prescribing an impermissible formula for a knowing and intelligent jury waiver.
Reviewing the facts of the instant case, I cannot agree with the majority’s conclusion that the judge’s misstatement of the law played no part in defendant’s decision to waive his right to a jury at the sentencing hearing. (142 Ill. 2d at 335.) The majority points to nothing in the record which indicates the judge cured this error, nor does the majority consider the fact that defendant’s attorney consultations occurred after the trial judge made the misstatements of the law. It is certainly plausible that during consultations with his attorney, defendant still harbored a misunderstanding of the law which was brought about by the judge’s error. Because it is impossible for me to conclude that the judge’s misstatement played no role in defendant’s decision to waive his right to a jury, I would hold the jury waiver invalid.
In addition to the invalid jury waiver, I believe the trial court may have misunderstood the law regarding mitigation evidence which defendant presented during the sentencing hearing. Ms. Dinguss, a social worker who prepared a psychosocial evaluation of defendant, testified about defendant’s traumatic childhood. As the majority noted, this testimony showed:
“Defendant, an only child, was raised by his mother, his father having been shot and killed by his mother’s uncle before defendant reached his first birthday; this same uncle was shot and killed by his own wife; defendant’s grandfather committed suicide; defendant’s mother was sexually promiscuous throughout his childhood, a situation he resented, and defendant had been abused by men; his mother had also been molested to some degree by her father and uncle; defendant said his female cousins had molested him ***.” (142 Ill. 2d at 335-36.)
Based on these factors, Ms. Dinguss concluded that defendant was “severely dysfunctional” and would continue to have violent impulses “unless he received ‘long-term intensive psychotherapeutic intervention.’ ” 142 Ill. 2d at 336.
Before he imposed the death penalty, the trial judge referred to Ms. Dinguss’ testimony and stated:
“[Tjhere has been testimony from Miss Dinguss relative to the fact that she believes that it was inevitable in the Defendant’s life that this act of outrageous violence would occur because of the Defendant’s upbringing. A mitigating factor is not that it is inevitable that the Defendant act out his aggressions against people and society, the mitigating factor is that there is some way to rehabilitate and change that and make sure that it will never happen again.” (Emphasis added.) (142 Ill. 2d at 336.)
I believe the transcript shows the judge may have misunderstood the nature of mitigation evidence. From the above quote, it appears that the judge may have believed that, as a matter of law, evidence of defendant’s upbringing could only be a mitigating factor if this evidence shows defendant is capable of rehabilitation. However, there is no such limitation on the type of mitigation evidence which the sentencing court must consider before imposing a death sentence.
The United States Supreme Court has held that in capital cases “the eighth amendment requires that a defendant’s punishment be proportional to his personal culpability and blameworthiness.” (People v. Hayes (1990), 139 Ill. 2d 89, 150 , citing Tison v. Arizona (1987), 481 U.S. 137, 149 , 95 L. Ed. 2d 127, 139 , 107 S. Ct. 1676, 1683 .) The sentencing body must be permitted to consider any relevant mitigating evidence regarding the defendant’s character or background, and the circumstances of the particular case. (Eddings v. Oklahoma (1982), 455 U.S. 104 , 71 L. Ed. 2d 1 , 102 S. Ct. 869 .) While the United States Constitution does not dictate the amount of weight the sentencing judge must give to the evidence of mitigation, it does require that all mitigating circumstances be considered before a death sentence is imposed.
In Illinois, “there is no limit on the type or number of mitigating factors [a defendant] can offer.” (People v. Guest (1986), 115 Ill. 2d 72, 106 .) Thus, while rehabilitation is a factor which may be considered, it is not a necessary component for mitigation evidence. Although the trial court is not precluded from imposing a death sentence where mitigating evidence has been introduced, it may do so only after considering all possible mitigating factors. In this case, it is unclear whether the trial court considered defendant’s mitigation evidence, but attached little weight to that evidence, or whether the court failed to consider the evidence as a mitigating circumstance due to the lack of potential for rehabilitation. Therefore, I would vacate defendant’s death sentence, and remand for a new sentencing hearing.
JUSTICE CALVO joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9715925. Public record. Not legal advice.