People v. Terrell

CHIEF JUSTICE FREEMAN, specially concurring:

I concur in the judgment of the court, and I join most of the majority opinion. I am troubled, however, by what I perceive to be the majority’s nonchalant and, at times, inconsistent treatment of several of the arguments defendant has procedurally defaulted. I, therefore, write separately to express these concerns.

I

Before I address the specific portions of the majority opinion with which I disagree, an overview of our precedents that deal with the issue of waiver is necessary. This court has long required that, in order to raise an issue as a ground for reversal on appeal, a defendant both object contemporaneously at trial to the matter and include it in a written post-trial motion. The failure to do so results in the waiver, or more appropriately the procedural default, of the issue on appeal. People v. Enoch, 122 Ill. 2d 176, 186 (1988); People v. Precup, 73 Ill. 2d 7, 16 (1978). This rule applies to constitutional issues as well as to nonconstitutional issues. People v. Pickett, 54 Ill. 2d 280 (1973).

In capital cases, this court has recognized only three bases for excusing a procedural default on direct review and reaching the substantive aspects of defendant’s assertions of error. The first basis encompasses those errors for which a timely trial objection was made, but which were not included in the post-trial motion. Under this exception, the procedural bar will be excused if the claims could be asserted later in a petition filed under the Post-Conviction Hearing Act. People v. Keene, 169 Ill. 2d 1, 10 (1995); People v. Mitchell, 152 Ill. 2d 274, 284-85 (1992); Enoch, 122 Ill. 2d at 190 . The second category consists of challenges to the sufficiency of the evidence. Keene, 169 Ill. 2d at 10 ; Enoch, 122 Ill. 2d at 190 . The third category encompasses “plain” errors. Keene, 169 Ill. 2d at 10 ; Enoch, 122 Ill. 2d at 190 . With respect to plain error, Supreme Court Rule 615(a) provides the following:

“Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” 134 Ill. 2d R. 615(a).

This court has consistently interpreted Rule 615(a) to allow a court of review to consider substantively an error that has not been properly preserved when (i) the evidence is closely balanced or (ii) the purported error is of such magnitude as to deny defendant a fair and impartial trial. People v. Vargas, 174 Ill. 2d 355, 363 (1996) (and cases cited therein). In sum, once a reviewing court holds that an issue has been procedurally defaulted, one of the above exceptions must be present in order for that court to pass upon the substantive aspects of the claim.

II

As today’s opinion clearly demonstrates, defendant failed to preserve properly several of the errors he now contends necessitate reversal. In most instances, the court agrees with the State that the issue has been waived and that one of the above exceptions to the waiver doctrine — the plain error rule — has not been met. See 185 Ill. 2d at 507, 511, 513-14, 519. However, in three other instances, the court departs from this well-established practice and embarks on what I consider to be an analysis which is either internally contradictory or contrary to our previous case law. I address each instance in turn.

The first instance to which I refer occurs during the court’s discussion of the eligibility phase of defendant’s capital sentence hearing. As the court notes, defendant specifically challenges the circuit court’s admission of (i) the 26-count indictment returned against defendant, (ii) the certified copy of conviction showing defendant had been found guilty of all 26 counts, (iii) Marketta Hampton’s observations of Laura in the hospital and her identification of various objects in her apartment, (iv) police testimony regarding defendant’s initial noninculpatory statement, and (v) police testimony regarding the sequences of the criminal investigation. After reviewing the purpose of the eligibility phase of the hearing and its attendant evidentiary standards, the court then states:

“Despite defendant’s assertion otherwise, we find that the trial court did not abuse its discretion in admitting the specified evidence. Initially, we observe that, as to most of the allegedly improper evidence, defendant failed to either object during the sentencing hearing or raise the issue in his post-sentencing motion. Therefore, unless deemed to be plain error, defendant has waived his challenge to most of the specified evidence. [Citation.] Nevertheless, because defendant raises general allegations of plain error (134 Ill. 2d R. 615(a)), we address his particular evidentiary challenges.” 185 Ill. 2d at 491.

Notwithstanding the fact that, in the above-quoted paragraph, the court has already held that the circuit court did not abuse its discretion in admitting the complained-of evidence, the court goes on to discuss each piece of evidence individually, noting at times that defendant did not object to the evidence at trial. See, e.g., 185 Ill. 2d at 491-95.

The majority’s treatment of this claim is inherently contradictory. First, the court begins its discussion by specifically holding that the circuit court did not abuse its discretion in admitting the specified evidence. This, of course, constitutes a ruling on the merits of defendant’s claims in their entirety. Despite this initial, substantive holding, the court in the next two sentences states that defendant failed to preserve properly most of these challenges and that unless deemed to be “plain error,” defendant has “waived” his challenge to these claims. The court then explains that because defendant has raised “general allegations of plain error,” it will address the particular challenges. Thus, under the majority’s analysis, the words “plain error” appear to have talisman-like effect — they serve to transform claims which have been otherwise procedurally defaulted into claims which are automatically subject to substantive review. However, as I noted previously, in order to reach the merits of a procedurally defaulted claim under the plain error rule, one of the two prongs of the rule must first be present. See Vargas, 174 Ill. 2d at 363 . After reading the majority’s analysis, I have trouble identifying which of defendant’s five specific challenges were procedurally defaulted and which were properly preserved. This, in turn, makes it difficult to discern whether the majority has rendered its judgment with respect to this issue on “waiver” principles or on the merits of the claim. Moreover, because the court initially holds that the circuit court did not abuse its discretion in admitting any of the evidence, I am confused as to why it is necessary to continue on with a discussion of each piece of evidence. The subsequent individualized treatment of each claim appears to contradict the first sentence in the above-quoted paragraph.

In my opinion, the better approach would be to refrain from holding, at the outset, that the circuit court did not abuse its discretion in admitting the five pieces of evidence. Indeed, I would simply discuss each of the five pieces of evidence individually, noting, where appropriate, whether defendant procedurally defaulted the challenge and, if so, whether a basis exists upon which to excuse the procedural bar. My review of the record indicates that defendant failed to object at trial to the admission of (i) the 26-count indictment and (ii) the certified copy of conviction. Moreover, defendant failed to include these contentions in his post-sentencing motion. As a result, the contentions have been procedurally defaulted. None of the bases for excusal of the default as set forth in Enoch are present with respect to these evidentiary challenges. The claim is not based on the sufficiency of the evidence. See Enoch, 122 Ill. 2d at 190 . Moreover, plain error cannot be used as a basis for excusing the default because neither is the evidence closely balanced nor is the error of such magnitude as to deny defendant a fair and impartial trial. Of course, “[bjefore plain error can be considered as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed.” People v. Precup, 73 Ill. 2d 7, 17 (1978). I note that, in undertaking the plain error analysis contemplated by Rule 615(a), it is necessary to consider the underlying merits of the claims on only a rudimentary level. See People v. Young, 128 Ill. 2d 1, 54 (1989). In so doing, it becomes readily apparent that an error affecting a substantial right has not been committed in this case. See People v. Kokoraleis, 132 Ill. 2d 235 (1989) (finding no reversible error where redundant multiple convictions were admitted into evidence). Plain error being absent, no basis exists to excuse the procedural bar with respect to the admission of the indictment and certified convictions. As for the remaining three evidentiary challenges which were properly preserved, I agree with the court that the circuit court did not abuse its discretion by admitting them into evidence. See 185 Ill. 2d at 492-93. Under my analysis, the majority’s internally inconsistent holding of both “waiver” and “no abuse of discretion” is avoided. The claims which have been procedurally defaulted are resolved in accordance with Enoch and its progeny, and the claims which were properly preserved are given substantive review.

I also disagree with the court’s treatment of defendant’s contention that the circuit court erroneously allowed into evidence certain hearsay testimony from four of the State’s witnesses during the aggravation/mitigation phase of the hearing. See 185 Ill. 2d at 505-06. According to my colleagues in the majority, because defendant failed (i) to specify the particular testimony he deems hearsay and (ii) to include the issue in his post-sentencing motion, “the issue is waived.” 185 Ill. 2d at 505. The court then notes that “[e]ven if defendant had properly preserved this issue, we would find it meritless.” The reason that my colleagues would find this issue “merit-less” is because this court has long held that hearsay evidence may be admitted during the aggravation/ mitigation phase of a capital sentence hearing so long as it is relevant and reliable. See 185 Ill. 2d at 505. However, given the fact that defendant has not identified the portions of the testimony about which he now complains, I am somewhat at a loss to understand how the court can say that this claim would be “meritless” if addressed substantively. If defendant has not bothered to identify to either this court or the circuit court the precise testimony complained of, how then can it be determined that the testimony is, in fact, reliable and relevant? For this reason, I would hold that defendant has procedurally defaulted this claim and that no basis exists to excuse the bar. More importantly, I would refrain from commenting on the relative strengths of its merits.

I must also take issue with the majority’s substantive discussion of defendant’s contention that the circuit court erred by refusing a nonpattern jury instruction that would have informed the jury that defendant could be sentenced to life imprisonment without parole if he was not sentenced to death. See 185 Ill. 2d at 515. The majority first begins its analysis of this issue by holding that because defendant did not raise the claim with any specificity in his post-sentencing motion, it is waived. 185 Ill. 2d at 515-16. Nevertheless, the majority then proceeds to reject defendant’s claim on substantive grounds. See 185 Ill. 2d at 516-17. I, for one, cannot discern the basis for this substantive discussion. If the claim is waived, as the court states, our case law, as set forth above, dictates that one of the three exceptions must be satisfied before the claim can be addressed in this manner. Under Enoch, defendant’s claim need not rise to the level of plain error in order for this court to excuse the procedural bar if defendant made a contemporaneous trial objection and the error is such that it could be asserted later in a post-conviction proceeding. I note that defendant did, in fact, object at trial — he tendered his own instruction to the circuit court — and he has framed this claim as a fourteenth-amendment-based due process deprivation, as well as an eighth amendment violation against cruel and unusual punishment. Thus, defendant’s constitutionally based claim is one that may be entertained under the Post-Conviction Hearing Act. See 725 ILCS 5/122 — 1 (West 1994). Because the purported error is one which can be accommodated under the Post-Conviction Hearing Act, this court may, under both Enoch and Keene, excuse the procedural bar. The contention, however, fails substantively for the reasons stated in the opinion. Under my analysis, the principles of procedural default, as well as the exceptions to them, are properly applied in accordance with this court’s own precedent. More importantly, the analysis actually allows the court to reach, substantively, the merits of defendant’s constitutional claim and gives the reason for doing so.

I, of course, acknowledge that the concept of waiver in Illinois serves as a limitation on the parties and not on the court. For this reason, a court of review is always free to refrain from invoking the doctrine of waiver in order to reach the merits of a given issue. This court, in fact, has in the past often chosen to do just that. See, e.g., People v. Farmer, 165 Ill. 2d 194, 200 (1995); People v. Bailey, 159 Ill. 2d 498, 506 (1994). In such cases, we refrained from stating that the claim was, indeed, waived. In today’s opinion, however, the court does not do this with respect to several of the issues I have discussed in this concurrence. Rather, the court, at times, holds that the claims are waived and then, without any explanation whatsoever, goes on to discuss the substantive merits of each claim. The court cannot have it both ways. If the court wants to reach the merits of these issues, then it should refuse, from the outset, to invoke the waiver doctrine. If the court wishes to apply the bar, then it should do so, subject only to the exceptions established in Enoch. But the court cannot, and should not, do both. By its actions today, the court inadvertently diminishes the role of the waiver doctrine in appellate review and creates confusion for application of the doctrine in future cases.

I must note that my concern in this area is not just an academic one. Nor does it relate to matters of mere “tidiness” in opinion-writing style. The manner in which a state court expresses the reasons for its judgment affects the scope of review in later federal proceedings. The federal judiciary has continually struggled with the ambiguity created by the type of unclear state-court pronouncements concerning procedural default which I identify in this case, particularly in the area of habeas corpus. See, e.g., Coleman v. Thompson, 501 U.S. 722 , 115 L. Ed. 2d 640 , 111 S. Ct. 2546 (1991); Harris v. Reed, 489 U.S. 255 , 103 L. Ed. 2d 308 , 109 S. Ct. 1038 (1989). State-court judgments which rest on an independent and adequate state ground are outside the scope of habeas corpus review. See Coleman, 501 U.S. at 729-32 , 115 L. Ed. 2d at 655-57 , 111 S. Ct. at 2553-55 . For example, a federal claim which has been procedurally defaulted in state court will only be subject to habeas review if the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or else demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Wainwright v. Sykes, 433 U.S. 72 , 53 L. Ed. 2d 594 , 97 S. Ct. 2497 (1977). The United States Supreme Court has emphasized that the above “cause and effect” standard serves to eliminate any inconsistency between the respect federal courts show for state procedural rules and the respect they show for their own procedural rules. Coleman, 501 U.S. at 751 , 115 L. Ed. 2d at 670 , 111 S. Ct. at 2565 (recognizing that “ ‘[n]o procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it’ ”), quoting Yakus v. United States, 321 U.S. 414, 444 , 88 L. Ed. 835 , 859, 64 S. Ct. 660, 677 . A federal court in habeas proceedings, however, cannot properly apply the foregoing principles if the underlying state-court judgment is abstruse. The ambiguity leaves the federal court with the unenviable task of having to decipher whether the state court resolved the issue on the independent and adequate state ground, i.e., procedural default, or on substantive principles grounded in or interwoven with federal law. Although the United States Supreme Court has acknowledged that it has “no power to tell state courts how they must write their opinions,” the Court has nonetheless attempted to alleviate the very real problem caused by ambiguous language by specifically “ encouraging] state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest.” Coleman, 501 U.S. at 739 , 115 L. Ed. 2d at 662 , 111 S. Ct. at 2559 . Under the analyses I offer in this concurrence, all ambiguity is avoided, and a clear statement of the grounds for the resolution of each of defendant’s claims is readily apparent.

Ill

To be sure, many state-court opinions include within their analyses the same imprecise language contained in today’s opinion. Nevertheless, the fact that other courts may have been indiscriminate in their examinations should not guide our own review, nor should it cause us to ignore our own precedent. In this respect, I must iterate a point made throughout this concurrence: if an issue is indeed “waived,” then our case law clearly dictates that one of the three bases for excusing the procedural bar must exist in order for the court to reach the substantive merits of the defaulted claims. These exceptions, as established in this court’s capital jurisprudence, work to ensure that mechanical application of the waiver doctrine will not allow serious errors that relate to either constitutional violations or fundamental fairness to go unnoticed and uncorrected in capital cases. In other words, the exceptions temper the potential harshness which attends the waiver doctrine. In my view, the proper application of this doctrine to the defaulted claims I discuss here not only would harmonize the court’s treatment of all of the procedurally defaulted claims that are raised in this appeal, but would also allow the court to accommodate the suggestion made to us in Coleman by our colleagues on the United States Supreme Court.

In all other respects, I join in the court’s opinion.

JUSTICE McMORROW joins in this special concurrence.