People v. Kirchner

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

I agree that Kirchner’s murder convictions should not be disturbed. In my view, however, his sentence of death cannot be allowed to stand.

Contrary to the majority, I would hold that the circuit court abused its discretion when it excused James Rent-fro from the jury for cause. A trial court may not exclude a prospective juror for cause because the juror voices general religious or conscientious reservations about capital punishment. Removal for cause is permissible only if the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. People v. Shaw, 186 Ill. 2d 301, 316 (1998). That standard does not appear to have been met here.

Juror Rentfro specifically stated that in spite of his personal feelings regarding the death penalty, he would be able to fulfil his duty to weigh the evidence and follow the law as instructed by the court. Although the court’s follow-up question raised uncertainty about that answer, Rentfro’s views are, at most, ambiguous. Based on the record before us, we cannot say with any certainty what Rentfro’s answer to the follow-up question actually meant.

The majority resolves the ambiguity by deferring to the trial judge. In my view, however, such deference is unwarranted under the circumstances present here. Yielding to the trial judge would be appropriate only if he saw or heard something not reflected in the written record. The majority does not explain what that something might be, and I am at a loss to understand it. No matter what Rentfro’s demeanor might have been, no matter what inflection his voice might have possessed, the meaning of his terse response would still be unclear.

Given the ambiguity created by the trial judge’s follow-up question, the appropriate course would have been to seek further clarification from Rentfro. Such an approach would not have caused any undue delay and would have ensured that the jury-selection process was free from taint. To have excluded Rentfro without taking this simple measure constitutes error, entitling Kirchner to a new sentencing hearing. People v. Shaw, 186 Ill. 2d 301, 360-61 (1998) (Harrison, J., concurring in part and dissenting in part).

Kirchner is also entitled to a new sentencing hearing based on the trial judge’s mishandling of the issue of mercy. Our court has specifically held that a jury may properly consider mercy as a mitigating factor at a capital sentencing hearing. People v. Buss, 187 Ill. 2d 144, 234-35 (1999). Defense counsel in this case, however, was not permitted to argue mercy to the jury. When he attempted to broach the issue of mercy, the trial judge sustained the State’s objections, then gave an explanation to the jury which suggested that mercy was not an appropriate factor for it to consider.

There is no merit to my colleague’s assertion that the court’s erroneous oral discussion of mercy was cured by IPI Criminal 3d No. 7C.06. Under that instruction, mitigating factors which the jury is entitled to consider include “[a]ny other reason supported by the evidence why the defendant should not be sentenced to death.” IPI Criminal 3d No. 7C.06. This language has been found sufficient to advise the jury that it may take mercy into account in reaching its decision. If IPI Criminal 3d No. 7C.06 is given, no separate, additional instruction on mercy is required. Buss, 187 Ill. 2d at 235 . Where our court has found IPI Criminal 3d No. 7C.06 sufficient, however, we have also observed that defense counsel was allowed to argue for mercy in his closing statement. See People v. Miller, 173 Ill. 2d 167, 199 (1996); People v. Pitsonbarger, 142 Ill. 2d 353, 405 (1990); People v. Sanchez, 115 Ill. 2d 238, 269-70 (1986). As previously indicated, defense counsel here did not have that opportunity. When he argued to the jury that mercy is a relevant, mitigating factor, “one of those any other reasons supported by the evidence,” the State objected and its objection was sustained.

By sustaining the State’s objection, the court told the jury, in effect, that mercy does not fall within the mitigating factors it could consider under IPI Criminal 3d No. 7C.06. Because the jury was told that mercy was not one of the mitigating factors defined by IPI Criminal 3d No. 7C.06, submitting IPI Criminal 3d No. 7C.06 could not possibly have sufficed to advise the jury that it could properly take mercy into account as a mitigating factor. To the contrary, because of the court’s ruling on the State’s objection to defense counsel’s explanation, the effect of IPI Criminal 3d No. 7C.06, with respect to the issue of mercy, was specifically negated. After hearing the judge’s remarks, no reasonable juror would have thought that mercy could still be considered. That is not harmless error. It is grounds for a new sentencing hearing.

Even if the foregoing errors did not entitle Kirchner to a new sentencing hearing, his death sentence could not be allowed to stand. For the reasons set forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law violates the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2). Kirchner’s sentence of death should therefore be vacated and he should be sentenced to a term of imprisonment. 720 ILCS 5/9 — 1(j) (West 1998). Because Kirchner was found guilty of murdering more than one victim, the term of his imprisonment must be natural life. 730 ILCS 5/5 — 8—1(a)(1)(c)(ii) (West 1998).