People v. Szabo

CHIEF JUSTICE RYAN, concurring in part and dissenting in part:

I agree with the opinion of the court on the issue of the exclusion of the polygraph results at a sentencing hearing, and in that portion of the remand directions I concur. In other respects, I dissent.

It seems clear from this case that we are going to have to come to grips with the waiver-plain-error question, especially in capital cases, and formulate and adhere to some consistent position or policy. In the case now before this court a majority has applied the plain error rule and held that certain matters at the sentencing phase of the trial constituted error necessitating a rehearing, even though no objections were made by trial counsel. I view these holdings as not consistent with the holding of this court in People v. Free (1983), 94 Ill. 2d 378 .

I have stated my position as to the application of the plain error rule many times. (People v. Carlson (1980), 79 Ill. 2d 564 ; People v. Roberts (1979), 75 Ill. 2d 1 ; People v. Precup (1978), 73 Ill. 2d 7 ; People v. Green (1979), 74 Ill. 2d 444, 453 (Ryan, J., specially concurring); People v. Pickett (1973), 54 Ill. 2d 280 .) I need not again state the guidelines for its use in this opinion. In People v. Carlson, the proper application of plain error was discussed at length, following which discussion this court stated:

“We thus construe the plain error rule to be a limited exception to the waiver doctrine.” People v. Carlson (1980), 79 Ill. 2d 564, 577-78 .

I am compeUed to observe that unless this court adopts some uniform standard — unless it establishes a degree of certainty in the application of plain error — its decisions are going to be terribly confusing to the bar and to the trial courts, which must apply the law as construed by this court. Plain error should be used sparingly and according to the standards and guidelines which this court has stated in the above-cited cases. It should not be used simply to avoid or postpone the imposition of a penalty provided by law or to set aside a result we do not agree with. If we apply plain error on an ad hoc basis, which this court has been doing, we will be forcing our trial judges into an adversary role. They will be compelled to inject themselves into the trial of a case because they cannot know from the rulings of this court whether a statement or a question by the prosecutor, whether or not objected to, will be viewed as error by this court.

In almost every criminal appeal, different counsel represent the defendant on appeal than represented him at the trial. In such a situation appellate counsel do not know why objections are not made at trial. Many times failure to object is part of the defense counsel’s trial strategy or the incident passes so unobtrusively as not to warrant an objection. It is not good trial practice for counsel to constantly be raising objections. Therefore, although everyone in the courtroom may be aware that a statement or question is objectionable, they may also realize that the defense counsel is willing to waive objection and therefore voices none.

The cold transcript, however, does not reflect the actual flow or feel of the trial, and appellate counsel combs the record for anything that can be construed as error, whether or not it had been called to the trial court’s attention by timely objection and whether or not it was apparent to those attending the trial that counsel did not want to raise an objection. To appellate counsel’s delight, no doubt, this court has willingly applied the plain error rationale to many of these unobjected-to deviations, although the failure to object may well have been intentional and possibly even a part of the trial counsel’s strategy.

As an example, in the case now before us the majority has held that the failure of trial counsel to object to the court’s excusing two jurors for cause on Witherspoon grounds did not constitute waiver of the claimed error on appeal. Although highly unlikely in this case, it is possible that defense counsel may have wanted those two jurors excused and therefore did not object to their being excused for cause by the court. Defense counsel, by not objecting, may have saved two peremptory challenges. If counsel did not have this strategy in mind and actually felt that cause for a Witherspoon-type excuse had not been established, a simple objection in the record would have told this court that counsel did not want to waive this claimed error.

Furthermore, the majority opinion states that, as to Mrs. Ivezich, the judge did not actually definitely establish that she would not impose the death penalty. The opinion states: “[Ajnother question should have been posed.” ( 94 Ill. 2d at 356 .) If counsel would have objected, the trial court could have easily posed another question to satisfy the objection. The alleged error could have been thereby corrected at the trial level instead of being the basis for a remandment for another sentencing hearing and, no doubt, another journey through the appellate process.

Since I am discussing the Witherspoon issue, before considering other plain error questions in the majority opinion, I wish to also voice disagreement with the majority’s view of the merits of the Witherspoon question involved in this case. The opinion states that Mrs. Ivezich’s answers on voir dire did not unequivocally state that she would not impose the death penalty. Anyone who has ever conducted a voir dire examination knows that it is veiy difficult to get a juror to unequivocally commit himself to any position on a controversial subject in open court in front of the full panel of jurors and spectators. An answer such as “I don’t think I could” or “It would be hard to do” is often about as unequivocal an answer as one can get from a juror. The examiner can only satisfy himself from the total examination as to whether or not a juror is committed to a certain position. The demeanor of the juror while responding to the interrogation often conveys a more precise meaning than do his answers. It is apparent from the questions asked in this case that the judge knew the Witherspoon test. The nature of the interrogation also shows that he was seeking to satisfy that test. It is apparent that he felt that he had. As this court stated in People v. Gaines (1981), 88 Ill. 2d 342, 357 , we must “recognize the superior position of the trial judge to ascertain the meaning which the venireman intends to convey.” Also, as noted in Gaines, if the defendant felt that the answers were not precise enough or that they should have been clarified, he had the right under our Rule 234 (73 Ill. 2d R. 234) to suggest to the judge additional questions.

Returning now to the waiver - plain-error question, the majority applied plain error in other instances where the defendant’s trial counsel did not object. One situation involved the cross-examination of the defendant as to his silence following arrest and the prosecutor’s comment on that silence during closing argument. In neither case did defendant’s trial counsel object; no motion in limine was made; no opportunity was given to the trial judge to prevent what the majority now views as reversible error. The opinion stresses that such a comment on defendant’s silence constitutes a due process violation. However, the fact that a constitutional right is involved does not preclude the application of the waiver rule. This court has held on several occasions that the waiver rule applies to constitutional questions, as well as to other issues. (People v. Precup (1978), 73 Ill. 2d 7 ; People v. Howell (1975), 60 Ill. 2d 117 ; People v. Pickett (1973), 54 Ill. 2d 280 ; People v. Black (1972), 52 Ill. 2d 544 ; People v. Long (1968), 39 Ill. 2d 40 .) The fact that a fifth amendment right may have been involved does not put the matter beyond the reach of the waiver rule. A trial judge does not know what is in the mind of defense counsel when he does not object. Counsel may want to use the objectionable question and its answer as a basis for future redirect examination. He may want the prosecutor to open the door for a line of interrogation he otherwise could not explore. If the trial judge were to prohibit the prosecutor from asking the question, the judge would be closing the door and would in effect be assuming the role of an advocate.

I see no reason for saying that failure to object to the alleged error does not constitute waiver here when this court has held that such a failure did constitute waiver in the several cases cited above. The holding of the majority is further evidence of the vacillation of this court on the waiver - plain-error question.

The same can be said of the majority’s holding that the prosecutor’s remarks were error. These remarks were to the effect that there was an increase in the number of homicides when there were no executions. There were no objections to these remarks. I consider that any error in relation thereto was waived.

Another misapplication of plain error involves the prosecutor’s comments in closing remarks concerning the possibility of parole if the defendant were to be sentenced to the penitentiary. There were no objections to these comments. The holdings of this court in the line of cases cited above would therefore seem to require, for sake of consistency, that we here hold that any error involved in the making of these remarks was waived. The opinion relies on People v. Walker (1982), 91 Ill. 2d 502 . As noted later, I do not think that Walker supports the holding of the majority in this case. On the question of waiver and plain error, it offers no support whatsoever because in Walker the comments of the prosecutor concerning the possibility of defendant’s parole were objected to.

In Walker we stated that if it were not for other matters in the record that indicated the jury was confused on the question of the possibility of parole, we would have considered the remarks by the prosecutor on that subject invited by the remarks of defense counsel. In the case now before us I find that the prosecutor’s comments were clearly invited by, and were responsive to, comments that the defense counsel made in the closing arguments. In pleading with the jury to send the defendant to prison, instead of imposing the death penalty, defense counsel emphasized the number of years defendant would be confined and defense counsel himself brought up the subject of parole. The prosecutor, replying to these statements, correctly pointed out that the laws governing the number of years that the defendant would serve and the subject of parole were subject to change and in fact had been changed several times in recent years.

We cannot permit defense counsel unlimited range in final argument to play on the jury’s sympathies and emotions without any possibility of committing reversible error and at the same time require that the prosecutor’s argument be so sanitized as to preclude any effective reply.

I also dissent from the majority’s holding vacating the conviction and remanding the cause so that the trial court may conduct an in camera inspection of reconstructed memoranda of pretrial interviews with Leatherman. My first observation is that this is not a very practical solution considering that the interviews were conducted four years ago. Second, no need for such a procedure has been demonstrated.

This court has held that noncompliance with discovery requests does not require reversal absent a showing of prejudice. (People v. Greer (1980), 79 Ill. 2d 103, 120 .) The defendant had shown no prejudice by not having been furnished the notes taken of the interview with Leatherman. The bare assertion that the defendant was effectively prevented from testing the credibility of Leatherman is not a sufficient allegation of prejudice. He does not contend that he did not have any other means of ascertaining what Leatherman had said, or that he did not know where Leatherman was, or that he did not have an opportunity to interview him. The majority opinion relies on dicta in People v. Abbott (1977), 55 Ill. App. 3d 21 . However, aside from the dicta, the actual holding in Abbott does not support the conclusion reached by the majority in our case. Abbott found, as was true in our case, that the State had furnished a statement of the witness to the defendant and that the record did not disclose that the defendant made any attempt to interview the witness prior to trial. No memoranda of the witnesses’ surveillances had been made. Abbott did not reverse the defendant’s conviction for the prosecution’s failure to provide the defense counsel with notes concerning these surveillances. The court in Abbott noted that a prosecutor need not reduce all of his witnesses’ pretrial statements to writing and that a defense counsel should not rely on the State to prepare a case for the defense.

There is just no substance to the defendant’s contention that he has somehow been prejudiced by the prosecutor’s failure to keep the notes made of Leatherman’s interviews. This is just another issue which appellate counsel has discovered as the record was searched for the purpose of review. It is not contended that the notes were destroyed to prevent material unfavorable to the prosecution from falling into the hands of defendant, or that the destruction of the notes resulted from any other detrimental design.

Finally, even assuming the remandment was proper in this case, the manner in which the opinion directs it be handled is not. The opinion states that after the notes have been reconstructed and examined by the court in camera:

“In the event the court finds the notes to contain discoverable, substantially verbatim statements, it should deliver them to defense counsel and order a new trial.” ( 94 Ill. 2d at 350 .)

Surely the majority does not mean that a new trial should be ordered if those notes contain statements that coincided in every respect with what Leatherman had testified to at trial, or with the contents of his statements, copies of which had previously been furnished to the defendant. That would be a useless waste of judicial resources. A new trial should not be ordered unless the reconstructed notes reveal some material that would have been of some value to the defendant for cross-examination purposes. Certainly, a new trial should not be granted simply to allow the defense counsel to follow a different and hopefully more successful game plan the second time around, using the same material that was at his disposal during the first trial.

UNDERWOOD and WARD, JJ., join in this partial concurrence and partial dissent.