People v. Free

JUSTICE SIMON, also concurring in part and dissenting in part:

I join in the partial concurrence and partial dissent of Justice Clark and in his constructive proposal for establishment of guidelines to control death sentence hearings. I also believe that another grave error occurred at the sentencing stage which independently requires us to vacate the sentence of death.

The defendant complains that the testimony of Deborah Ahlstrand, a probation officer for Du Page County, was admitted into evidence despite its likely prejudicial effect and its irrelevance to the sentencing inquiry. Ms. Ahlstrand interviewed Lori Rowe’s mother and Bonnie Serpico’s mother, husband and two children and testified as to the emotional effects the defendant’s conduct had on them. She related that Lori Rowe’s mother stated that her daughter had become very suspicious of people in general, and further reported that Bonnie Serpico’s mother had grown depressed and had begun taking tranquilizers. Ms. Ahlstrand also testified that Bonnie’s husband felt “ ‘completely shut out’ ” after her death and that “ ‘the biggest loss was that his two daughters would not have a mother to relate to as they were growing up, as they were experiencing young adulthood and marriage, pregnancy, those times when mothers and daughters have a close relationship.’ ” 94 Ill. 2d at 424-25.

The majority concludes that the defendant waived the issue because he failed to object when the testimony was admitted. While the general rule is that a failure by defendant to object at trial constitutes a waiver on appeal (see, e.g., People v. Precup (1978), 73 Ill. 2d 7 ), this court has recognized on numerous occasions that plain errors that affect substantial rights of the parties may be addressed even though there was no objection at trial. (People v. McCarty (1983), 94 Ill. 2d 28, 36-37 ; People v. Jones (1982), 94 Ill. 2d 275, 294-95 ; People v. Carlson (1980), 79 Ill. 2d 564, 576-77 ; People v. Brownell (1980), 79 Ill. 2d 508, 542 ; see 73 Ill. 2d R. 615(a).) It is all the more important that this court provide an avenue for review of such errors in a capital case, where the defendant’s life hinges on such review; 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 .) I see no indication that an express renunciation of any right on appeal occurred here.

To the extent that the majority addresses the merits of the issue, it concludes that this case is distinguishable from cases such as People v. Bernette (1964), 30 Ill. 2d 359 , in which this court held the admission during the guilt phase of trial of evidence pertaining to a victim’s surviving family to be reversible error. However, while it is true that information can be presented at a sentencing hearing “regardless of its admissibility under the rules governing the admission of evidence at criminal trials” (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(e)), this does not mean that the discretion of the trial judge in this regard is without limits. The United States Supreme Court and recent decisions of this court have emphasized that “whether a death sentence is proper in a particular case ‘requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death’ ” (94 Ill. 2d at 428, citing Woodson v. North Carolina (1976), 428 U.S. 280, 304 , 49 L. Ed. 2d 944, 961 , 96 S. Ct. 2978, 2991 ; see Ill. Const. 1970, art. I, sec. 11; People v. Szabo (1983), 94 Ill. 2d 327, 352-53 ; People v. Gleckler (1980), 82 Ill. 2d 145, 162 ; People v. Carlson (1980), 79 Ill. 2d 564, 590 ), and that trial courts do not have the discretion to admit evidence at sentencing hearings which does not bear on the aggravating or mitigating factors alleged to exist in a given case or on the circumstances of the offense or the character and rehabilitative potential of the defendant, or the probative value of which in this regard is outweighed by its prejudicial effect (People v. Szabo (1983), 94 Ill. 2d 327, 363-68 ; People v. Devin (1982), 93 Ill. 2d 326, 346-48 ; People v. Walker (1982), 91 Ill. 2d 502, 515 .

It would be difficult to find anything less relevant to the circumstances of this offense or the character of this defendant than testimony concerning the reactions of family members of his unfortunate victims. Their reaction was not to the nature of his crimes or the character of the defendant, but to the fact that the crimes happened. An emotional rendition of the grief of a victim’s family, while understandable, can only distract the jury from its weighing of the aggravating and mitigating factors peculiar to this defendant and his crime. Such testimony is always inflammatory. The majority’s approval of it in this case will give prosecutors and trial judges the idea that we were not serious in our previous pronouncements, and that there are no limits. Why should they content themselves with the second-hand testimony of a probation officer? Why not put the victim’s children on the stand and ask them what life will be like without their mother?

The testimony of Deborah Ahlstrand had no value other than to arouse passion. By allowing its introduction, we run the risk that capital punishment will be imposed in an arbitrary fashion, and ignore the statement of the United States Supreme Court that “[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida (1977), 430 U.S. 349, 358 , 51 L. Ed. 2d 393, 402 , 97 S. Ct. 1197, 1204 .

JUSTICE CLARK joins in this partial concurrence and partial dissent.