People v. Enoch

JUSTICE SIMON, concurring in part and dissenting in part:

With but one reservation, I concur in the court’s decision to affirm the defendant’s murder conviction. The question of whether the police officer’s conduct constituted the “functional equivalent” of interrogation within the meaning of Rhode Island v. Innis (1980), 446 U.S. 291 , 64 L. Ed. 2d 297 , 100 S. Ct. 1682 , cannot be left to the fact finder, as the majority suggests. Whether the circumstances as found by the fact finder constitute interrogation is a legal question, and the majority appears to have abdicated its judicial responsibility for deciding that issue of law. But in light of the substantial evidence of the defendant’s culpability, any error in admitting the statement at issue (“Oh no, not Kay Burns”) must be deemed harmless beyond a reasonable doubt.

However, because I have strong convictions that imposition of the death penalty is improper in this case, I dissent. I believe that the majority’s adoption of a new waiver rule both unfairly punishes this defendant and impermissibly narrows this court’s constitutional obligation to review all capital cases. Furthermore, as I understand them, the consequences that the majority attaches to the defendant’s failure to file a post-trial motion are inconsistent with the court’s previously stated position in People v. Caballero (1984), 102 Ill. 2d 23 , and People v. Porter (1986), 111 Ill. 2d 386 .

“[In] a death penalty case, which under our constitution is automatically reviewed by this court (Ill. Const. 1970, art. VI, sec. 4(b)), we must review the case whether or not a written motion for a new trial has been filed. Otherwise, the constitutional provision for an automatic appeal would be meaningless.’’ People v. Caballero (1984), 102 Ill. 2d 23, 32 .

In Caballero, the court attempted to circumscribe this constitutional obligation by suggesting that review was limited to “issues of some significance,” which trial lawyers should identify in a post-trial motion. (People v. Caballero (1984), 102 Ill. 2d 23, 32-33 .) In Porter, the court similarly admonished trial counsel to comply with the post-trial motion statute. (People v. Porter (1986), 111 Ill. 2d 386, 399 .) But in both cases, after admonishing counsel, this court proceeded to decide issues that had not been preserved in a post-trial motion, thereby at least implicitly recognizing that its constitutional duty to review capital cases was of greater import than the waiver doctrine or trial counsel’s statutory obligation to file post-trial motions. This recognition is consistent with my previous observation that “few propositions have a longer pedigree in the common law of this State than that any irregularity not expressly waived in the trial of a capital case must be heard on review. (Nomaque v. People (1825), 1 Ill. (1 Breese) 145 , 149; see People v. Fisher (1930), 340 Ill. 216, 259 .)” (Emphasis in original.) People v. Free (1983), 94 Ill. 2d 378, 435 (Simon, J., concurring in part and dissenting in part).

Here, without warning, the court has adopted a retroactive change in the rules of criminal procedure requiring defendant to have filed a post-trial motion in order to raise significant issues that do not fall within the court’s new — and unprecedented — three-way exception for certain constitutional issues, sufficiency of the evidence and plain error. (122 Ill. 2d at 190.) It strikes me as fundamentally unfair for the court to impose sanctions for the failure to file a motion in a case where the defendant did not and could not have known of the court’s new sanctions at the time the motion was to have been filed. What value there is in imposing sanctions in these circumstances eludes me, but whatever it may be, it cannot be a value greater than that of the defendant’s life.

Application of the court’s new waiver rule is especially troublesome in light of the Supreme Court’s recognition that “the penalty of death is qualitatively different from a sentence of imprisonment, however long.” (Woodson v. North Carolina (1976), 428 U.S. 280, 305 , 49 L. Ed. 2d 944, 961 , 96 S. Ct. 2978, 2991 .) As Justice Clark has noted, “[b]ecause the United States Supreme Court has stated that a sentence of death is qualitatively different, I believe these cases should be treated differently under the waiver rule.” (People v. Szabo (1986), 113 Ill. 2d 83, 99 (Clark, C.J., dissenting).) Thus, I fail to understand, particularly in view of the special constitutional provision for direct appeal to this court, why a meritorious claim should be lost on appeal in a capital case simply because defense counsel failed to file a post-trial motion.

I dissent not only from the application of the court’s new rule in this case, but to the new rule itself. Generally, the absence of a proper objection or motion at trial and the omission of the issue from a written motion for a new trial constitutes a waiver of that issue on appeal. (People v. Black (1972), 52 Ill. 2d 544, 551 ; People v. Needham (1961), 22 Ill. 2d 258, 259 .) As the majority notes by quoting Caballero, the purposes of this waiver rule are straightforward. (122 Ill. 2d at 186, quoting People v. Caballero (1984), 102 Ill. 2d 23, 31-32 .) Requiring a defendant to identify alleged errors to the trial court enables that court to consider and correct its own errors and thereby eliminates the need for an appeal with its attendant delay and expense. This procedure also “gives to the reviewing court the benefit of the judgment and observations of the trial court” regarding the alleged errors. (People v. Irwin (1965), 32 Ill. 2d 441, 443-44 .) That rationale for the waiver rule is satisfied if an issue is properly presented either during trial or in the post-trial motion except where a contemporaneous objection is required.

In this case, the defendant raises a question regarding the admission of evidence of prior offenses; an objection was made and the issue was fully argued in the trial court. The observations and explanations of the circuit judge are explained in the transcript of the trial. Even though the goals of the waiver rule have been satisfied, this court states that it need not consider the issues raised on appeal because no post-trial motion was filed. Instead, the majority asserts that there is a separate rationale for applying the waiver doctrine in cases where the alleged error was brought to the attention of the trial court, but was not included in a post-trial motion. Relying on the post-trial motion statute (Ill. Rev. Stat. 1983, ch. 38, par. 116 — 1), which requires defendants who choose to file post-trial motions to do so within 30 days and to specify the grounds therefor, the majority concludes that defendants’ rights to appeal are contingent upon compliance with that statute. But I respectfully suggest that the majority has confused the requirements of the post-trial motion statute by reading more into the statutory language than is there. Section 116 — 1 provides:

“Motion for New Trial, (a) Following a verdict or finding of guilty the court may grant the defendant a new trial.

(b) A written motion for a new trial shall be filed by the defendant within 30 days following the entry of a finding or the return of a verdict. Reasonable notice of the motion shall be served upon the State.

(c) the motion for a new trial shall specify the grounds therefor.”

I am unable to understand how the statute itself can be read to place any requirements or impose any penalties on defendants who prefer to seek appellate review immediately. As I read “shall” in sections 116 — 1(b) and (c), it merely mandates the timing and the contents of a motion for those who choose to file a motion for a new trial. Even if there were some ambiguity to section 116 — 1, the rule of lenity requires that this statute be construed strictly in favor of the defendant. (Busic v. United States (1980), 446 U.S. 398, 406 , 64 L. Ed. 2d 381, 389 , 100 S. Ct. 1747, 1753 .) Because we have often “recognized that a policy of lenity applies with respect to the interpretation of criminal statutes” (People v. Haron (1981), 85 Ill. 2d 261, 278 ), I find the construction the majority gives the statute even less acceptable.

Moreover, the majority’s construction conflicts with our Rule 366, which this court has applied to criminal cases in the past. (See, e.g., People v. Lilly (1974), 56 Ill. 2d 493, 496 (applying Rule 366(a)); People v. Murrell (1975), 60 Ill. 2d 287, 292 (applying Rule 366(a)(5)); People v. Scott (1977), 69 Ill. 2d 85, 88 (applying Rule 366(a)).) In Scott, the court said: “Although Rule 366 is not specifically made applicable to criminal appeals (58 Ill. 2d R. 612), in People v. Lilly (1974), 56 Ill. 2d 493 , the court, citing Rule 366, held that it had authority to vacate an incomplete judgment entered on a verdict.” (Scott, 69 Ill. 2d at 88 .) These decisions applied only Rule 366(a), but there is no reason why Rule 366(b)(3)(ii) should not similarly be applicable to criminal cases. Specifically, Rule 366(b)(3)(ii) provides that in nonjury trials, “[njeither the filing of nor the failure to file a post-trial motion limits the scope of review.” (50 Ill. 2d R. 366(b)(3)(ii).) Considering that the sentencing in this case was a nonjury proceeding, Rule 366(b)(3)(ii) should be applied to preclude the majority’s novel interpretation of section 116 — 1.

Finally, I note that the majority’s new waiver rule is not supported by its citation of People v. Pickett (1973), 54 Ill. 2d 280 , for that case, just as the majority points out in distinguishing People v. Porter (1986), 111 Ill. 2d 386 , “is not in point, because in that case a post-trial motion was filed.” 122 Ill. 2d at 191.

In justifying this new waiver rule the majority purports to promote judicial economy. (122 Ill. 2d at 190.) But the economy of a reargument before the same authority is illusory. One can only expect perfunctory treatment of such post-trial motions given the trial court’s perspective of relative costs. If the trial court erroneously accepts a defendant’s request for a new trial, the cost of error is that of a new trial. Alternatively, if the motion is erroneously denied, the additional cost is only that of appealing the death sentence directly to this court, which in most cases is not as costly as a new trial. Therefore, a trial judge should, if motivated solely by judicial economy, deny every motion for a new trial except those which are overwhelmingly meritorious. Since judicial economy preordains the outcome in virtually every motion for a new trial, the requirement of making the perfunctory post-trial motion is itself uneconomical.

Ironically, the court’s new waiver rule, though a convenient tool with which to dispose of Enoch’s contentions in this case, may well spawn a new breed of ineffective-assistance-of-counsel claims based on failure to preserve issues for appeal. Although this court in Caballero viewed the post-trial motion as valuable for the purpose of “limiting the consideration to errors considered significant” ( 102 Ill. 2d at 31 ), the court’s ruling today likely will cause trial counsel to burden trial courts with motions that argue every conceivable basis for a new trial. As I argued in my dissent in Caballero, 102 Ill. 2d at 52-53 , defendants in capital cases should not be forced to make binding decisions regarding which issues to preserve for appeal without sufficient time to review the record thoroughly. If defendants are forced to make such hurried decisions, the results may be perverse. Because the post-trial motion statute itself (Ill. Rev. Stat. 1985, ch. 38, par. 116 — 1) places only time (and not substantive) constraints on post-trial motions, and because the new consequences that attach to failure to specify grounds for a new trial are so harsh, defense counsel will no longer be encouraged to do precisely what would save judicial resources — spend time to weed out less promising arguments.

The record in this case reveals that following an offer of proof by the State and argument by counsel, the trial court found that evidence of prior offenses against the witnesses Burnside and McClain was admissible to show common design and the defendant’s intent to commit rape, kidnapping, and armed robbery. The court informed the jury that the evidence would be admitted for a limited purpose, and later instructed the jury that the purpose was to show common design and criminal intent. On appeal the State argues that the evidence was properly admitted to demonstrate the defendant’s modus operandi and intent. Purporting to find the plain error doctrine inapplicable, the majority refuses to consider whether the defendant’s prior misconduct was properly admissible even though the evidence of attempted rape was exceptionally weak and the conviction on that count or aggravated kidnapping was a necessary factor in imposing the death sentence on the defendant. Not only is the court’s reliance on the waiver doctrine misguided, but its discussion of the plain error exception is flawed. The court concludes that admission of the evidence “did not constitute plain error, because, as noted above, there was sufficient evidence, in addition to the now complained-of evidence, to support the finding of intent to commit rape and the conviction for attempted rape.” (122 Ill. 2d at 198.) I do not understand how the majority can conclude that the plain error doctrine is inapplicable simply because of its view that the evidence was sufficient to support defendant’s conviction. “ ‘[T]he doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error is of such a magnitude that the accused is denied a fair trial.’ ” (People v. Friesland (1985), 109 Ill. 2d 369, 375 , quoting People v. Black (1982), 107 Ill. App. 3d 591, 593 .) There is no requirement that defendant prove insufficiency of the evidence in order to invoke the plain error doctrine. In effect, the majority collapses the plain error inquiry into a mere question of whether the evidence was sufficient to support conviction. The determination whether an error constitutes a plain error that affects substantial rights (107 Ill. 2d R. 615(a)), however, has always been and should remain an inquiry independent of, and distinct from, an assessment of the sufficiency of evidence.

The general rule is that evidence of offenses not charged in the indictment on which a defendant is being tried is inadmissible. (People v. McDonald (1975), 62 Ill. 2d 448, 455 .) “The law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime. And so, as a matter of policy, where the testimony has no value beyond that inference, it is excluded.” (People v. Lehman (1955), 5 Ill. 2d 337, 342 .) However, evidence that tends to prove a fact at issue — such as motive, intent, identity or common design — or to establish the defendant’s identity as the perpetrator by his distinctive modus operandi is admissible for the limited purpose of proving that fact, even though that evidence also reveals the commission of a separate offense. People v. Lindgren (1980), 79 Ill. 2d 129, 137 ; People v. McDonald (1975), 62 Ill. 2d 448, 455 .

In considering the admissibility of the prior-offenses evidence, the trial court appears to have confused common design with modus operandi. A common design is a criminal scheme of which the crime charged is only one part. (E.g., People v. Brown (1962), 26 Ill. 2d 308, 316 ; People v. Steele (1961), 22 Ill. 2d 142, 146 ; see generally 2 S. Wigmore, Evidence §304 (Chadbourn rev. ed. 1979) (proof of a scheme or design is used to prove the very doing of the act charged when such is at issue).) Since there is no evidence in the record of a larger criminal scheme than the crimes charged, and the prior offenses in question were separate from and unrelated to those crimes, the evidence was inadmissible on a common design theory.

A modus operandi, on the other hand, is a pattern of criminal behavior so distinctive that unrelated crimes are recognizable as the work of the same person. Most often, establishing a modus operandi, in part through evidence of prior offenses, is useful in identifying the defendant as the perpetrator of the offense charged. Because of its potential prejudicial effect, evidence of prior unrelated offenses is admissible as proof of modus operandi “only upon a strong and persuasive showing of similarity” between those offenses and the crime charged. (People v. Tate (1981), 87 Ill. 2d 134, 141 .) “Although the similarities need not be unique *** to the *** offenses being compared, there must be present some distinctive features that are not common to most offenses of that type in order to demonstrate modus operandi.” 87 Ill. 2d 134, 142-43 .

The primary crime with which the defendant was charged in this case was a vicious murder involving a post-mortem mutilation of the victim’s body. He was also charged with attempted rape, aggravated kidnapping, armed robbery, and three felony murder counts based on those three charges. The incident to which Burnside testified was a rape, and that to which McClain testified was an attempted armed robbery. Although the State maintains that the events involving McClain constituted attempted rape, her testimony does not support that contention except by unwarranted inferences. Thus, the prior offenses appear to be quite different from the offenses at issue here.

The State argues, however, that there are substantial similarities among the three incidents. The offenses occurred at approximately three week intervals, and the assailant in each incident initially approached each of the three victims in a nonthreatening manner. Each of the victims had her hands bound behind her back with materials found at the site of the crime. Burnside and McClain were also gagged; evidence as to whether Burns was gagged was equivocal. Each of the three victims was cut in the course of the assault on her.

Notably absent from the State’s analysis of the similarities among the three incidents is any distinctive feature common to those offenses that is not common to many such crimes. There is nothing so nearly identical in the methods used in these three incidents as to mark them as the work of the same person. Moreover, there are differences among the three incidents at least as substantial as the similarities pointed out by the State. For example, the victim here was murdered in her apartment after having been accompanied there from work by the defendant. Burnside was raped in a garage after having been accosted by the defendant on the street. McClain was attacked in her apartment after having engaged in conversation with the defendant, who came to her door. Burnside and the victim were partially disrobed; McClain was not. Burnside was raped; the victim and McClain were not. McClain’s assailant attempted to rob her; Burnside’s did not. Although a knife was used in each of the three incidents, apparently it was not the same knife since the knife used in the Bum’s murder was identified as a kitchen knife, and McClain stated that the defendant had a pocket knife. Burnside received a small cut in her back; McClain had a small cut in her stomach; the victim had her throat and face slashed, had a stab wound in the back, was repeatedly stabbed in the chest, and was cut open from her sternum to her pubic bone. The victim’s hands were bound tightly with wire; both Burnside’s and McClain’s hands were bound loosely, the latter’s so loose that she was able to free her hands within a few minutes.

In sum, the three crimes share the single feature that in each instance the victim was injured by an assailant brandishing some type of knife. But the three crimes apparently were not committed with the same weapon (see People v. Taylor (1984), 101 Ill. 2d 508, 521 ), nor with the same criminal purpose. The three offenses in question were not “so nearly identical in method as to earmark them as the handiwork of the accused” (McCormick, Evidence §190, at 449 (2d ed. 1972)); thus, the prior-crimes evidence was, in my opinion, inadmissible to prove the identity of the perpetrator on a modus operandi theory.

The State argues that the prior-offenses evidence was admissible to establish defendant’s intent to rape the victim and his guilt on the charge of attempted rape. Evidence regarding defendant’s rape of Burnside was, I believe, properly admissible for that purpose. Although the defendant argues that Burnside’s testimony only tends to prove his propensity to commit the crime charged, the evidence in fact tends to establish that in assaulting the victim he intended to rape her. The trial court received this testimony and issued a limiting instruction that it be considered to establish defendant’s intent. That intent was the key issue on the attempted rape charge, an issue for which the Burnside rape had tangible probative value. People v. Nye (1951), 38 Cal. 2d 34, 37 , 237 P.2d 1, 3 (“The evidence of the attempt to rape Miss W. was clearly admissible to show that defendant’s acts against Mrs. P. were committed with the intent to commit rape”); cf. People v. Peyser (1942), 380 Ill. 404 (in prosecution for criminal abortion, evidence of prior criminal abortions held admissible to establish criminal intent); see generally 2 S. Wigmore, Evidence §357 (Chadbourn rev. ed. 1979) (“former acts of the kind are relevant to negative the intent as being of any other kind than to commit rape”).

McClain’s testimony, however, was not probative of the defendant’s intent to rape the victim. Whether the defendant would have raped McClain had she not escaped is entirely speculative; thus, the testimony should not have been admitted because its prejudicial potential outweighed its negligible tendency to establish a fact in controversy.

Nor was McClain’s testimony admissible to establish intent on the armed robbery allegation. Unlike the attempted rape charge, the armed robbery count on which the defendant was acquitted did not allege an inchoate offense, so the most probative evidence of intent would have been proof of the completed offense. In People v. Rogers (1927), 324 Ill. 224 , evidence of Rogers’ prior crimes of taking indecent liberties was not admissible to prove the intent to commit indecent liberties in the case then at bar. “Such was shown by the act itself.” ( 324 Ill. 224, 233 .) Therefore, evidence of prior crimes to establish intent may only be admitted to establish intent for a completed offense where a defense is premised on lack of intent or knowledge. (People v. Wilson (1970), 46 Ill. 2d 376, 381 ; People v. Fiorito (1952), 413 Ill. 123, 131 ; see United States v. Silvern (7th Cir. 1973), 494 F.2d 355, 360 .) To hold otherwise would expand the contours of the intent exception to the boundaries of the general rule itself. United States v. Miller (7th Cir. 1974), 508 F.2d 444, 450 (“Since intent is always an issue, it would emasculate the rule to hold that evidence of other crimes may always be admitted to show criminal intent”).

Because of this unduly prejudicial and improperly admitted evidence, the defendant’s conviction for attempted rape should be reversed and that portion of the case remanded for a new trial. The evidence of defendant’s intent to rape the victim is simply too equivocal for the admission of McClain’s testimony to be regarded as harmless error.

In reliance upon its waiver analysis, the majority opinion also rejects the defendant’s contention that he should not have been convicted of aggravated kidnapping because he did not confine the victim to any extent greater than that inherent in the other crimes charged. Aggravated kidnapping occurs when “[a] kidnapper within the definition of paragraph (a) of Section 10 — 1 *** [c]ommits the offense of kidnapping while armed with a dangerous weapon.” (Ill. Rev. Stat. 1983, ch. 38, par. 10 — 2(a)(5).) Section 10 — 1 includes within the definition of kidnappers “a person [who] knowingly *** [a]nd secretly confines another against his will.” (Ill. Rev. Stat. 1983, ch. 38, par. 10 — (a)(1).) Rather than merely accepting the fact of secret confinement to establish that element of aggravated kidnapping, the defendant argues that the secret confinement must be of substantial duration. Otherwise, the defendant argues, crimes such as murder, rape and robbery would frequently fall within the broad statutory definition because some confinement is virtually inherent in those crimes.

In People v. Levy (1965), 15 N.Y.2d 159 , 204 N.E.2d 842 , 256 N.Y.S.2d 793 , the New York Court of Appeals considered this question in a case where the victims had been robbed in their automobile while it was driven some 27 city blocks. The New York court decided that the asportation involved was merely incidental to the robbery. “In essence the crime remained a robbery although some of the kidnapping statutory language might literally also apply to it.” ( 15 N.Y.2d 159, 165 , 204 N.E.2d 842, 844 , 256 N.Y.S.2d 793, 796 .) Concerned that prosecutors might take advantage of broadly drafted kidnapping statutes to expose defendants to more severe criminal sanctions than their actions and intentions warranted, the court of appeals limited the broad statutory definítion of kidnapping then in effect to embrace only “ ‘kidnapping’ in the conventional sense in which that term has now come to have acquired meaning.” ( 15 N.Y.2d 159, 164-65 , 204 N.E.2d 842, 844 , 256 N.Y.S.2d 793, 796 ; see People v. Lombardi (1967), 20 N.Y.2d 266 , 229 N.E.2d 206 , 282 N.Y.S.2d 519 .) The restrictive definition of kidnapping adopted in New York has found acceptance in other States. See People v. Daniels (1969), 71 Cal. 2d 1119 , 459 P.2d 225 , 80 Cal. Rptr. 897 ; People v. Adams (1973), 389 Mich. 222 , 205 N.W.2d 415 ; Wright v. State (1978), 94 Nev. 415 , 581 P.2d 442 ; State v. Wilder (1971), 4 Wash. App. 850 , 486 P.2d 319 ; see also State v. Buggs (1976), 219 Kan. 203 , 547 P.2d 720 ; but see Samuels v. State (Del. 1969), 253 A.2d 201 ; Lester v. State (1970), 9 Md. App. 542 , 266 A.2d 361 ; State v. Morris (1968), 281 Minn. 119 , 160 N.W.2d 715 ; State v. Ginardi (1970), 111 N.J. Super. 435 , 268 A.2d 534 .

This court considered the Levy rule in People v. Canale (1972), 52 Ill. 2d 107 , where the victim had been forced to drive to a vacant lot where she was then raped. Recognizing that the “apparent rationale and purpose of Levy was to prevent, in an excess of prosecutorial zeal, the elevation of the lesser crimes, under New York law, of rape and robbery to the more serious crime of kidnapping,” the court affirmed Canale’s conviction for aggravated kidnapping because the penalty for aggravated kidnapping, an indeterminate sentence of at least two years, was at that time less severe than those provided for rape and robbery. 52 Ill. 2d 107, 118 .

Since Canale, however, the penalty for aggravated kidnapping has been greatly increased; aggravated kidnapping, other than for ransom, is now punished as a Class 1 felony, for which the sentence may range from 4 to 30 years’ incarceration. (Ill. Rev. Stat. 1983, ch. 38, pars. 10 — 2(b)(2), 1005-8-1(a)(4), 1005-8-2(a)(3).) The appellate court has reacted to the relatively greater sanction now imposed for aggravated kidnapping. In People v. Smith (1980), 91 Ill. App. 3d 523, 529 , the court identified four factors to be considered when deciding whether an incident of asportation or secret confinement as part of another crime rises to the level of statutory kidnapping:

“ ‘(1) [T]he duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.’ Government of the Virgin Islands [v. Berry (3d Cir. 1979)], 604 F.2d 221, 227 .”

The interpretation of aggravated kidnapping accepted by the majority in this case is even more critical than where a greater period of incarceration results from the kidnapping conviction. The question here is whether a defendant should be sentenced to death for murder because the prosecutor argued that the short period of detention which accompanies many murders fits the statutory definition of aggravated kidnapping — one of the aggravating factors that may trigger imposition of the death penalty in Illinois (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)(6)). This very problem was anticipated by the drafters of the Model Penal Code: “Examples of abusive prosecution for kidnapping are common. Among the worst is use of this means to secure a death sentence.” (Model Penal Code §212.1, Comments (Tent. Draft No. 11, 1960).) In cases of murder, rape or robbery in which a detention or asportation occurs incidentally to the substantive crime, and the detention or asportation thereby does not materially increase the victim’s peril, a conviction for kidnapping or aggravated kidnapping is purely redundant and should not be used to justify the imposition of capital punishment. It is absurd to conclude that “[t]he criminalogically non-significant circumstance that the victim was detained or moved incident to the crime” was intended by the General Assembly to “determine!] whether the offender lives or dies.” Model Penal Code §212.1, Comments (Tent. Draft No. 11, 1960).

The court should take this opportunity to distinguish between asportations and secret confinements that are merely incidental to an underlying forcible felony and those that in fact implicate the separate dangers kidnapping statutes address. It has been suggested in the Model Penal Code that the distinction is a matter of time or distance, and the Code resolves the matter by requiring a “substantial” asportation or period of confinement to charge kidnapping. But that distinction ignores what I view as the real harm that differentiates kidnapping from unlawful restraint: that by carrying the victim away or secreting the victim, the victim is not only confined but also dispossessed of legal and societal protection — as though the victim had been sold into slavery (Exodus 21:6) or removed from the country of citizenship (see 4 W. Blackstone, Commentaries 219). Given the evil peculiar to kidnapping, it follows that it is the act of denying those protections in addition to perpetrating an act of murder, rape or robbery, and not merely the duration of the secret confinement, that suggests a kidnapping has been committed.

I believe that the intention of the General Assembly and the interests of criminal justice are best served by excluding from the statutory definition of kidnapping an asportation or confinement that occurs incidentally to another forcible felony; a denial of legal and societal protections is assumed to occur during the time an independent crime is being perpetrated against the victim. Of course, “it is the rare kidnapping that is an end in itself; almost invariably there is another ultimate crime.” (.People v. Miles (1969), 23 N.Y.2d 527, 540 , 245 N.E.2d 688, 695 , 297 N.Y.S.2d 913, 922 .) Therefore, I suggest that if the asportation or confinement in a particular case is not inherent in the substantive crime, but substantially facilitates the commission of that other offense and enhances the risk to the victim, then a conviction for kidnapping could be affirmed.

As the jury found, the crime in this case was essentially murder in that the defendant stabbed the victim knowing that the wounds he inflicted created a strong probability of death. The murder might as effectively have been accomplished at a distance with poison or even a gun, and the defendant would clearly not be guilty of kidnapping. That the method by which murder was committed in this case required momentary confinement cannot, in my opinion, supply the basis for an aggravated kidnapping conviction. The heinous nature of the victim’s death may support an extended sentence, but it should not be contorted to shape a statutory aggravating factor supporting a capital sentence. Compare Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3.2(b)(2) with Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)(7).

Thus, because I would reverse the defendant’s convictions for both attempted rape and aggravated kidnapping, I cannot join in the majority’s decision to affirm the defendant’s sentence of death. Without a proper conviction for one of the felonies included as aggravating factors in our death penalty statute (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)(6)(c)), the death sentence cannot be imposed in this case. Moreover, I continue to adhere to my opinion that the Illinois death penalty statute is unconstitutional. (See People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting). See also United States ex rel. Lane v. Lewis (C.D. Ill. Jan. 8, 1987), No. 86-2086, slip op. at 29 (expressing “grave doubt” over the constitutionality of the Illinois death penalty statute).) In fact, the constitutional problems set forth in the dissent in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 544-45 , that “the statute contains no guidelines to prevent the arbitrary exercise of discretion by the State’s Attorney,” are exacerbated by the majority’s decision. By upholding a death sentence based in part on an expansive definition of aggravated kidnapping, the court expands the prosecutor’s discretion and thereby heightens my objections that the death penalty statute violates both article II, section 1, of the Illinois Constitution and the eighth amendment to the United States Constitution.