Petition — Davis v. Illinois

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xo. 82-6729

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

GIRVIES DAVIS, Petitioner

PEOPLE OF THE STATE OF ILLINOIS, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

THEODORE A. GOTTFRIED

State Appellate Defender

Office of the State Appe

300 East Monroe, Suite l

Springfield, IL 62701

(217) 782-7203

COUNSEL FOR PETITIONER

CHARLES M. SCHIEDEL

Supervising Attorney

Supreme Court Unit

Office of the State Appellate Defender

OF COUNSEL

RECEIVED

May 13,1983

Orrice ur ime CLERK

SUPREME CORT US.

llate Defender

RECEIVED

io, 82 6729 MAY 1.6 1983

IN THE Orricc ur int CLERK

SUPREME COURT. US

SUPREME COURT OF THE UNITED STATES

October Term, 1982

GIRVIES DAVIS, Petitioner

PEOPLE OF THE STATE OF ILLINOIS, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

QUESTIONS PRESENTED FOR REVIEW

(a)

Does due process permit a reviewing court to

affirm a death sentence on the basis of a

factual determination that was not made by

the sentencing jury?

(b)

Does the Eighth Amendment permit the execution

of a defendant in the absence of a finding at

trial that he took or intended to take life?

Is the Eighth Amendment ban on unguided dis-

cretion in capital cases violated by a sentencing

scheme that places no defined limits on factors

that may be considered as reasons for imposing

death?

Does the standardless, post-charging discretion

given to Illinois prosecutors to convene a death

penalty hearing in murder cases violate the

Eighth and Fourteenth Amendments?

Does a statute which fails to provide any form

of comparative review of capital cases violate

the Eighth and Fourteenth Amendments?

QS.

Does the Sixth Amendment allow a state to

exclude blacks from a jury on the basis of

race?

ii.

IV.

Vv.

TABLE OF CONTENTS

Opinion Below . . . . . . . . . . . . . . . .

Jurisdiction . . . . . . . . .

Constitutional and Statutory Provisions

Involved . . .«+«-+«-+«ee-e » °°

Statement of the Case... .

Reasons for Granting Certiorari. .

l. THIS COURT SHOULD GRANT CERTIORARI:

(a)

TO RESOLVE A CONFLICT BETWEEN THE

HOLDING OF THE ILLINOIS SUPREME

COURT AND THE DECISION IN

PRESNELL V. GEORGIA, 429 U.S. 14,

58 L.£d.20 207, 99 S.Ct. 235 (1978)

THAT A REVIEWING COURT CANNOT AFFIRM

A DEATH SENTENCE ON THE BASIS OF A

FACTUAL DETERMINATION WHICH WAS NOT

MADE BY THE SENTENCING JURY... -

(b)

TO RESOLVE Kk QUESTION POSED BY MR.

JUSTICE WHITE'S CONCURRENCE IN

LOCKETT V. OHIO, 438 U.S. 586, 57

L.Ed.20 975, 96 S.Ct. 2954 (1978)

AND LEFT UNDECIDED BY ENMUND V.

FLORIDA, U.S. , J3 L-Bd.2a

02 5.Ct. 33887 (1982):

WHETHER THE EIGHTH AMENDMENT PERMITS

THE EXECUTION OF A DEFENDANT FOR MURDER

IN THE ABSENCE OF A FINDING BY THE

TRIER OF FACT THAT THE DEFENDANT

INTENDED TO TAKE THE LIFE OF THE

VICTIM. . . >. . * . * . . * * * *

2. THIS COURT SHOULD GRANT CERTIORARI

TO RESOLVE A QUESTION CURRENTLY PEND-

ING IN BARCLAY V. PLORIDA, NO. 81-6908:

WHETHER THE EIGHTH AMENDMENT BAN ON

UNGUIDED DISCRETION IN CAPITAL CASES

IS VIOLATED BY A SENTENCING SCHEME

WHICH PLACES NO DEFINED LIMITS ON

THE FACTORS WHICH MAY BE CONSIDERED

AS REASONS FOR IMPOSING DEATH. ... .

iii.

-14

Wie

TABLE OF CONTENTS (cont.)

Conclusion

Appendix A

Appendix B

THE ILLINOIS DEATH PENALTY STATUTE

VIOLATES THE EIGHTH AND FOURTEENTH

AMENDMENTS BY ALLOWING PROSECUTORS

TO EXERCISE STANDARDLESS DISCRETION

IN SEEKING THE DEATH PENALTY FOLLOW-

ING A CONVICTION . « «© © © © © © © «

THE ILLINOIS DEATH SENTENCING SCHEME

FAILS TO PROVIDE ADEQUATE COMPARATIVE

REVIEW PROCEDURES TO INSURE THAT THE

DEATH PENALTY IS NOT IMPOSED IN AN

ARBITRARY OR DISPROPORTIONATE MANNER

MR. DAVIS WAS DENIED HIS RIGHT TC

TRIAL BY AN IMPARTIAL JURY BY THE

PROSECUTION'S PEREMPTORY EXCLUSION

OF ALL BLACK JURORS. .. +++ +

. . . . . . . . . . . . . . . . .

iv.

Pag:

TABLE OF AUTHORITIES

Cases

Barclay v. Florida, No. 81-6908 . ...+ + + «+»

Clark v. Louisiana State Penitentiary, 697 F.2d 75

(1982) . . . . . . . . . . . . . . . . .

Commonwealth v. Soares, 377 Mass. 593, 387 N.E.2d.

499 (1979) . .* . . . . . * .* .* * .* * . . . . . . .

Enmund v. Florida, U8 » 73 L.Ed.2d 1140,

aan Bice. Baek taeGe). « 6 ee ae eo 7

Furman v. Georgia,

92 S.Ct. 2726

408 U.S. 238, 33 L.Ed.2d 346,

(A972) « « © + u's © OH, @\8

Gregg v. Georgia, 428 U.S. 153,

49 L.ED.2d 859,

96 S.Ct. 2909, (1976). ar i ok er ee

Harris v. Pulley, 692 F.2d 1189, 1194 (9th Cir., 1981)

cert. granted sub nom. Pulley v. Harris,

No. 82- March 21, 1983) .. « « «© « e

Henry v. Wainwright, 661 F.2d 56 (5th Cir., 1981),

vacated on other grounds, U.S. » 73 L.Ed.2d

1326, 102 S.Ct. 2922, (1982), aff'd 686 F.2d 311

(lith Cir., Umit B, 1962). «~ «© ecse ee eer

Lockett v. Ohio, 438 U.S. 586, 57 L.Ed.2d 973,

98 Bieee 2954 (1978) . . . . . . . . . . . .

People v. Wesley Brents, Illinois Appellate Court,

Sth District, RO. 16274. . .«e«eeee2eet ee ©

People ex rel. carey v. Cousins, 77 I111.2d 531, 397

People v. Davis, I1l.2d , No. 54276 (Feb. 18,

l ). —- Ye @ 8s oe oe ae Pe ee ee, eo 6 (ea, £2. a 4

82 Il1l1.2d 145, 411 N.E.2d

People 7. oe Gleckler,

People v. Greer, 79 Ill.2d 103, 402 N.E.2d 203 (1980) .

People v. Donald Grotn, Sangamon County Case No.

Page

14, 15

9, 11, 12

15,16,18,2

18, 22, 23

15, 24

17, 19

9,11,16,25

People v. Vernon Hicks, Illinois Appellate Court,

ath District, WO. 16674 . + «2222728 2 eo 8 21

People v. Glen Hipkins, 97 Ill.App.3d 579, 423 N.E.2d

. . . . . . . . . . . . . . . . . . . . 20

People v. Robert ST ae 70 Ill.App.3d 166,

. . . . . . . . . . . . . . . . 20

People v. Michael LeCrone, Illinois Appellate Court,

ath District, No. 15877 . . . . . . . . . . . . . 21

People v. James Lee, Illinois Appellate Court, 4th

D str ct, No. 16273 . . . . . . . . . . . . . . . 21

People v. Lewis, 88 I11.2d 129, 430 N.E.2d 1346

(1961), cert. denied, U.S. __, 73 L.Ed.2d

1308, 102 S.ct. (1982). » ee ee eevee 17,18,19

People v. Ozark Nesbit, Sangamon County Case, No.

= . . . . . . . . . . . . . . . . . . . . 21

People v. Phillip Peeples, Illinois Appellate Court,

759 . . ,. . . . . . . ,. . . . 21

People v. Michael Robinson, 87 Ill.App.3d 621,

410 N.E.20 21 (1980) . . . . . . . . . . . . . . 20

People v. Thompson, 435 N.Y.S.2a 739 (1981). + + «© + 26

People v. Walker, 84 I11.2d 512, 419 N.E.2d 1167

. . . . . . . . . . . . . . . . . . . . . . 20

People v. Wheeler, 22 Cal.3d 248, 148 Cal. Rptr. 890,

. (1978) . . . . . . . . . . . . . . . 26

Presnell v. Georps 439 U.S. 14, 58 L.Ed.2d 207,

. Ge 1978) . . . . . . . . . . . . . . . 9

Pprofitt v. Wainwright, 685 F.2d 1227, (llth Cir.,

. . . . . . . . . . . . . . . . . . . . . . 15

State v. Bartholemew, 654 P.2a 1170, 1183 Wash.

. . . . . . . . . . . . . . . . . . . . . . 15

Swain v. Alabama, 380 U.S. 202, 13 L.Ed.2d 759,

Ss. t. 4 (1965) a's @ -s "8 6 © 76 8: BJP Soe 25

Statutes

Ill.Rev.Stat., 1977, Ch. 38, Sec. 9-1 (b) 1-8. a. et a 14

vi.

Statutes (cont. )

1ll.Rev.Stat., 1977, Ch. 38, Sec. 9-1(b) and (c) « «+ » 19

1ll.Rev.Stat., 1977, Ch. 386, Sec. 9rilC) »- >= ss % * ° 14

tll.Rev.Stat., 1977, Ch. 98, Bec. 9-1(G) - + 222 2° 17

tll.Rev.Stat., 1977, Ch. 38, Sec. 9-l(e) »- *+ 2s * * * ° 14

vii.

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

GIRVIES DAVIS, Petitioner

PEOPLE OF THE STATE OF ILLINOIS, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

The petitioner, GIRVIES DAVIS, prays that a writ of

certiorari issue to review the judgment and opinion of the

Supreme Court of Illinois which held, over two dissents, that

a sentence of death was properly imposed and that the Illinois

death penalty statute does not violate the Eighth Amendment's

proscription of cruel and unusual punishment.

OPINION BELOW

The opinion of the Supreme Court of Illinois was filed

on February 18, 1983, as No. 54276. It has not yet been

reported. A copy of the opinion is attached hereto as

Appendix A.

JURISDICTION

The judgment of the Supreme Court of Illinois was entered

on February 18, 1983. A petition for rehearing was denied

by order of the court on April 8, 1983, a memorandum of which

order is attached hereto as Appendix B. This petition is

@* ?

being filed within sixty days of the Illinois Supreme Court's

denial of rehearing. The jurisdiction of this Court is

invoked under 28 U.S.C. Sec. 1257 (3).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the Constitution of the United

States provides in pertinent part:

In all criminal prosecutions, the accused

shall enjoy the right to ... trial, by

an impartial jury

The Eighth Amendment to the Constitution of the United

States provides:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and

unusual punishments inflicted.

The Fourteenth Amendment to the Constitution of the

United States provides in pertinent part:

No State shall...deprive any person of

life, liberty, or property, without due

process of law...

The offense of murder in Illinois is defined in I1l.Rev.

Stat., 1977, Ch. 38, Sec. 9-l(a):

A person who kills an individual without

lawful justification commits murder if,

in performing the acts which cause the

death:

(1) He either intends to kill or

do great bodily harm to that in-

dividual or another, or knows that

such acts will cause death to that

individual or another; or

(2) He knows that such acts create

a strong probability of death or

great bodily harm to that individual

or another; or

(3) He is attempting or committing a

forcible felony other than voluntary

manslaughter.

~”

le <.

Provision for convening 4 capital sentencing hearing

following an Illinois defendant's conviction for murder is

found in I11.Rev.Stat., 1977, Ch. 38, Sec. 9-1(d):

(4) Separate sentencing hearing.

Where requested by the State, the Court

shall conduct a separate sentencing

proceeding to determine the existence

of factors set forth in Subsection (b)

and to consider any aggravating or

mitigating factors as indicated in

Subsection (c).

The statutory aggravating factor involved in this case

is found in I11l.Rev.Stat., 1977, Ch. 38, Sec. 9-1(b) (3):

3. The defendant has been convicted

of murdering two or more individuals

under subsection (a) of this Section

..regardless of whether the deaths

occurred as the result of the same

act or of several related or unre-

lated acts so long as the deaths

were the result of either an intent

to kill more than one person or of

separate premeditated acts;

Provision for consideration of additional aggravating

factors at the death sentencing proceeding are found in

I1l.Rev.Stat., 1977, Ch. 38, Sec. 9-l(c) and 9-l(e):

and Mitigation. The court shall consider

or shall instruct the jury to consider any

aggravating factors which are relevant to

the imposition of the death penalty. Ag-~-

gravating factors may include but need not

be limited to those factors set forth in

subsection (b)..--

(e) Evidence and Argument....

Any information relevant to any additional

aggravating factors or any mitigating fac-

tors indicated in Subsection (c) may be

presented by the State or defendant regard-

less of its admissibility under the rules

governing the admission of evidence at crim-

jnal trials. The State and the defendant

shall be given fair opportunity to rebut

any information received at the hearing.

ec:

IV.

STATEMENT OF THE CASE

On December 7, 1979, Girvies Davis was charged, along

with Richard Holman, with the murder of Charles Biebel.

Girvies Davis was found guilty and sentenced to death.

(C. 8)

Prior to trial Mr. Davis raised three of the federal

questions involved in this petition by moving the trial

court to declare the Illinois Death Penalty Statute un-

constitutional. The motion alleged in part that the statute

provided inadequate guidance for the sentencing body, failed

to provide adequate appellate review and afforded the prosecution

standardless and unreviewable discretion to seek the death

penalty. (C. 128-129) The motion was denied by the Circuit

Court of St. Clair County on October 16, 1980. (C. 161) A

fourth federal question was raised during voir dire, when

Mr. Davis asked that it be noted for the record that all

prospective black jurors had been excused through peremptory

challenges by the State. (Vol. X, R. 173, 232) His objection

to the all white jury which resulted was rejected by the

trial court. (Vol. XI, R. 54)

On appeal to the Illinois Supreme Court, Mr. Davis

raised the principal federal question involved in this

petition by arguing that he could not be executed as there

was no evidence he killed the victim and no finding that he

acted with intent to kill and where the jury may have found

him guilty upon a theory of felony murder.

‘Aa

Over two dissents, the Illinois Supreme Court affirmed

the sentence of death. The majority distinguished Emnund v.

Florida, _—*U.S. ___,- 73 L.Ed.2d 1140, 102 S.Ct. 3368

(1982), holding that although there was no evidence petitioner

killed the victim, petitioner “had reason to contemplate that

a life would be taken” as he had participated in a prior

incident where a person was killed. People v. Davis,

__T1ll.2d ___, No. 54276 (Feb. 18, 1983) (Appendix A, pg.

34)

The evidence at trial showed that on December 22, 1978,

Charles Biebel was found shot to death in a mobile home.

(Vol. XI, R. 38-49) On September 10, 1979, petitioner told

a police officer that he and a companion, Richard Holman,

had stolen some items from the Biebel residence. While

petitioner was carrying these items out to his car he heard

a shot. Holman then emerged from the residence and said he

had shot the man. (Vol. XII, R. 4245)

Petitioner gave the authorities a second statement in

which he related that he and Holman had taken property from

the home of a woman in a rural area. While he was outside

the home >lacing a T.V. set in his car, he was told by

Holman that Holman had shot the woman. (R. 42-45) Evidence

was presented that a Frieda Mueller was found shot in her

home on December 8, 1978. (Vol. XI, R. 63-68) It was also

shown at trial that a woman named Esther Sepmeyer had been

killed on July 13, 1979. Petitioner told police he and

Holman had burglarized her home but that he had told Holman

tae

to leave the woman alone. However, Holman shot her while

petitioner was outside. (Vol. XII, R. 120-122)

In closing argument, the prosecutor told the jury that

petitioner was guilty of felony murder regardless of whether

he intended that Mr. Biebel be killed. (Vol. XIII, R. 79-

81) The jury was then instructed, in part, that it could

find the petitioner guilty of murder if it found that

petitioner, or one for whose conduct he was responsible, had

caused the death, and that petitioner was committing the

crime of burglary. (R. 148) The jury returned a general

verdict of guilty. (R. 155)

A sentencing proceeding was then conducted before the

same jury. The State first showed that petitioner had been

convicted of murder in two unrelated cases for which he was

sentenced to imprisonment. The jury found that this rendered

petitioner statutorily liable to the death penalty. (Vol. XIV,

R. 9-37, 213)

At the second stage of sentencing, over petitioner's

objection, the State introduced as non-statutory aggravation,

the fact that the wife of a murder victim had given birth to

a child following her husband's death. (Vol. X’, R. 36)

The State was also allowed, over objection, to show the jury

a video-taped conversation in which petitioner told the

prosecutor that he would plead guilty in exchange for a

swift execution. (R. 120-129)

After being instructed that they must consider "any

aggravating ... factors ... relevant to the imposition of

006

the death penalty", and deliberating for eight and one half

hours, the jury determined that petitioner should be sentenced

to death. (C. 215, R. 180)

Petitioner's conviction and death sentence for the

murder of Mr. Biebel were appealed to the Illinois Supreme

Court. It was argued that petitioner could not be put to

death for the murder in the absence of a finding that he

actually killed or intended to kill, the victim. The

exclusion of black jurors, the State's use of nonstatutory

factors in aggravation, the failure to require comparative

appellate review of death sentences, and the standardless

discretion granted the State to seek the death penalty were

also challenged on appeal.

A majority of the Illinois Supreme Court held that

petitioner was properly sentenced to death, even if guilty

only of felony murder, because the evidence showed he had

“reason to contemplate” that Mr. Biebel's life would be

taken. People v. Davis, I11l.2d (Appendix A, pg.

34) The court rejected all challenges to the Illinois

statute and affirmed petitioner's sentence without engaging

in any form of comparative or proportionality review.

People v. Davis, I1l.2d (Appendix A, pg. 15)

In separate dissents, Justice Goldenhersh and Justice

Simon stated that the death sentence should be vacated in

light of Enmund v. Florida, U.S. __, 73 L.Ed.2d 1140,

102 S.Ct. 3368 (1982).

Justice Goldenhersh found that “nothing in the record

supports [the] conjecture” that petitioner had reason to

contemplate that Mr. Biebel would be killed. People v. Davis,

__—«*tll.2d (Appendix A, pg. 36) (Goldenhersh, J.,

concurring in part and dissenting in part)

Justice Simon, reasoning that the majority had expanded

the definition of the term "contemplate" to include foreseeability,

found that this analysis "does violence to the clear holding

of Enmund that a person convicted of felony murder cannot

constitutionally be put to death absent a showing that he

intended that life be taken[.]" People v. Davis, I11.2d

(Simon, J. dissenting) (Appendix A, pg. 46)

On April 8, 1983, the Illinois Supreme Court denied a

petition for rehearing.

REASONS FOR GRANTING CERTIORARI

THIS COURT SHOULD GRANT CERTIORARI:

(a)

TO RESOLVE A CONFLICT BETWEEN THE HOLDING OF THE

ILLINOIS SUPREME COURT AND THE DECISION IN

PRESNELL V. GEORGIA, 439 U.S. 14, 58 L.éd.2d

1978) THAT A REVIEWING COURT

CANNOT AFFIRM A DEATH SENTENCE ON THE BASIS OF

A PACTUAL DETERMINATION WHICH WAS NOT MADE BY

THE SENTENCING JURY.

Girvies Davis was sentenced to death for the murder of

Charles Biebel. At no point in his trial or sentencing was

a finding made that he killed, intended to kill, or contemplated

that Mr. Biebel's life would be taken. Moreover, the jury

which convicted and sentenced Mr. Davis may have found that

he had no intent to kill but was guilty only of felony

murder.

A majority of the Illinois Supreme Court affirmed the

death sentence after finding, on review, that the evidence

showed Mr. Davis had "reason to contemplate” that a life

would be taken. The court based this conclusion on evidence

that Mr. Davis had participated in a prior burglary where his

companion had killed a person. People v. Davis, I11.2d

(Appendix A, pg. 34)

Regardless of whether this result accords with Enmund v.

4 Florida, U.S. , 73 %..Ea.2a 1140, 102 S.Ct. 3368

(1982), it is certainly in violation of this Court's holding

OAT

in Presnell v. Georgia, 439 U.S. 14, 58 L.Ed.2d 207, 99

S.Ct. 235 (1978), that a reviewing court cannot affirm a

death sentence on the basis of a factual determination not

made by the sentencing jury. In Presnell, the Supreme Court

of Georgia had affirmed a death sentence for murder in the

course of a kidnaping with bodily injury. The court found

that bodily injury had resulted from the forcible rape of

one of the victims. Because this specific finding had not

been made by the sentencing jury, which may have found

Presnell guilty of only statutory rape, this Court held that

the affirmance of the death sentence violated due process.

Presnell, said this Court, was entitled to have the validity

of his sentence appraised on consideration of the case as it

was triec and as the issues were determined in the trial

court. 58 L.Ed.2d at 211.

The issue of whether Girvies Davis contemplated the

taking of a life was never determined by the jury which

convicted him and sentenced him to death. The affirmance of

that sentence violates due process. This Court should grant

certiorari and reverse the judgment of the Illinois Supreme

Court.

-_~

(b)

THIS COURT SHOULD GRANT CERTIORARI

TO RESOLVE A QUESTION POSED BY MR. JUSTICE

WHITE'S CONCURRENCE IN LOCKETT V. OHIO, 438

U.S. 586, 57 L.Ed.2d 973, 99 S.Ct. 25954 (1978)

AND LEFT UNDECIDED BY ENMUND V. FLORIDA,

U.S. , 73 L.Ed.2d 1140, 102 S.Ct. 3368

T1582): WHETHER THE EIGHTH AMENDMENT PERMITS

THE EXECUTION OF A DEFENDANT FOR MURDER IN

THE ABSENCE OF A FINDING BY THE TRIER OF FACT

THAT THE DEFENDANT INTENDED TO TAKE THE LIFE

OF THE VICTIM.

In affirming the sentence of death in this case a

majority of the Illinois Supreme Court distinguished

Edmund v. Florida, U.S. » 73 L.Ed.2d 1140, 102 S.Ct.

3368 (1982) on the basis of evidence which supposedly

indicated petitioner's contemplation that life would be

taken. Even assuming that this determination is factually

correct, the result violates the Eighth Amendment. It should

be noted that one of the dissenting justices found “nothing

in the record” to support this "conjecture", People v. Davis,

Ill.2d ss (Appendix A, pg. 36) (Goldenhersh, J. concurring

in part and dissenting in part) while another felt that the

cited evidence showed no more than that death was "forseeable”

People v. Davis, I11l.2d. (Appendix A, pg. 46) (Simon,

J. dissenting).

In his concurrence in Lockett v. Ohio, 438 U.S. 586, 57

L.Ed.2d 973, 98 S.Ct. 2954 (1978), Mr. Justice White noted

that the facts of that case:

"might well permit the inference that

the petitioners did in fact intend the

death of the victims. But there is a

vast difference between permitting a

factfinder to consider a defendant's

C44

‘

willingness to engage in criminal

conduct which poses a substantial

risk of death in deciding whether

to infer that he acted with a pur-

pose to take life, and defining

such conduct as an ultimate fact

equivalent to possessing a purpose

to kill as Ohio has done.”

57 L.Ed.2d at 1004.

It is apparent from the holding in petitioner's case

that Illinois has elevated conduct giving rise to an inference

of intent to kill to an “ultimate fact," equivalent to

possessing a purpose to kill.

Because of the factual situation in Enmund v. Florida,

__—iULS. __, 73 L.Ed.2d 1140, 102 S.Ct. 3368 (1982), this

Court was not required to resolve the question now presented.

In Enmund there were no facts to support an inference that

the defendant acted with the intent to take life. Since the

Enmund decision, however, the United States Court of Appeals

for the Fifth Circuit has held in Clark v. Louisiana State

Penitentiary, 694 F.2d 75 (1982), that, even where there was

evidence that the defendant did the actual killing, because

the jury was not required to find that the defendant killed

or possessed an intent to kill, the Eighth Amendment, as

interpreted in Enmund, does not permit his execution. The

court stated:

Before the Constitution will allow

this conviction and sentence, however,

we must know that the jury found beyond

any reasonable doubt that Clark,

personally, did have that mind to

kill....We are left with "a level of

uncertainty and unreliability [in] the

fact finding process that cannot be

tolerated in a capital case." Beck v.

Alabama (citations omitted) ae te

694 F.2d at 78.

ma, yt

The decision of the Fifth Circuit is obviously at odds

with the holding of the Illinois Supreme Court ir, this case.

As in Clark it cannot be determined from the jury instructions

and the verdicts returned that a finding was made that

Girvies Davis possessed an intent to kill. Is is respectfully

submitted that this situation will arise in numerous other

cases where a conviction of murder and a sentence of death

do not require a finding of intent to kill. This Court

should grant certiorari to resolve the important constitutional

question of whether such a result violates the Eighth Amendment.

oP]

THIS COURT SHOULD GRANT CERTIORARI TO RESOLVE

A QUESTION CURRENTLY PENDING IN BARCLAY V.

FLORIDA, NO. 81-6908: WHETHER THE EIGHTH

AMENDMENT BAN ON UNGUIDED DISCRETION IN

CAPITAL CASES IS VIOLATED BY A SENTENCING

SCHEME WHICH PLACES NO DEFINED LIMITS ON

THE FACTORS WHICH MAY BE CONSIDERED AS

REASONS FOR IMPOSING DEATH.

An Illinois defendant convicted of murder is liable to

the death penalty when the State proves beyond a reasonable

doubt the existence of one or more statutorily defined

factors. Ill.Rev.Stat., 1977, Ch. 38, Sec. 9-l(b)1-8. If

one of these factors is found, the sentencing jury is

statutorily required to consider any “additional aggravating

factors” relevant to the imposition of the death penalty.

These factors may include but need not be limited to the

statutory factors necessary to render the defendant liable

to the death penalty. Ch. 38, Sec. 9-l(c). The nature of

the additional factors in aggravation is not defined by

statute. The admissibility of these nonstatutory factors is

not limited by the rules of evidence. Ch. 38, Sec. 9-l(e).

Thus, when an Illinois defendant has been found liable to

the death penalty there are no restrictions on the factors

which may then be considered as reasons for actually imposing

death on that defendant. It is respectfully submitted that

this scheme violates the Fighth Amendment ban on unguided

sentencing discretion in capital cases. This conclusion

follows from the holding wf the United States Court of

Appeals for the Fifth Circuit in Henry v. Wainwright,

“

661 F.2d 56 (5th Cir., 1981), vacated on other grounds,

U.S. __, 73 L.Ed.2d 1326, 102 S.Ct. 2922 (1982), aff'd 686

P.2d 311 (llth Cir., Unit B, 1982). The sentencing jury in

Henry was instructed that in considering aggravating circumstances

the jurors were not limited to Statutorily defined factors.

661 F.2d at 57. The Fifth Circuit held that this instruction

improperly broadened sentencing discretion and violated this

Court's decision in Furman v. Georgia, 408 U.S. 238, 33

L.Ed.2d 346, 92 S.Ct. 2726 (1972).

Illinois juries in capital cases are required to consider

undefined nonstatutory factors in aggravation. The jury in

petitioner's case was instructed to consider "any" aggravating

factors relevant to the imposition of the death penalty.

(C. 215)

The Henry decision has been followed in Profitt v.

Wainwright, 685 F.2d 1227 (llth Cir., 1982), and State v.

Bartholemew, 654 P.2d 1170, 1183 Wash. (1982); but see,

Harris v. Pulley, 692 F.2d 1189, 1194 (9th Cir., 1982),

cert. granted sub nom. Pulley v. Harris, No. 82-1095 (Mar. 21,

1983) The issue of whether a death sentence can be premised

on the consideration of nonstatutory aggravating factors is

currently before this Court in Barclay v. Plorida, No. 8l-

6908, (oral argument held March 30, 1983.)

In its effort to obtain a death sentence for Girvies

Davis, the State of Illinois was allowed to introduce nonstatutory

aggravation regarding such inflammatory and irrelevant

factors as the birth of a child to the widow of a murder

C45

victim and the petitioner's erstwhile offer to plead guilty

in exchange for a prompt execution. The Illinois Supreme

Court approved the use of this nonstatutory aggravation,

holding that the evidence was properly admitted for the

consideration of the jury in determining the penalty to be

imposed. People v. Davis, I1l.2d . (Appendix A, pg.

23, 27)

The unrestricted consideration of undefined nonsteatutory

aggravation will inevitably lead to the kind of arbitrary

and capricious imposition of death condemned by this Court

in Furman v. Georgia. It will increase the danger that

death will be imposed for emotional rather than rational

reasons and will preclude any possibility of meaningful

appellate review. There will be no way to determine if one

sentencing jury has considered the same undefined aggravating

factors as another and thus no way to meaningfully distinguish

cases in which death is imposed from those in which the

defendant's life is spared.

For these reasons this Court should grant certiorari

and reverse the sentence of death affirmed by the Illinois

Supreme Court.

THE ILLINOIS DEATH PENALTY STATUTE VIOLATES

THE EIGHTH AND FOURTEENTH AMENDMENTS BY ALLOWING

PROSECUTORS TO EXERCISE STANDARDLESS DISCRETION

IN SEEKING THE DEATH PENALTY FOLLOWING A CONVICTION.

The Illinois Death Penalty Statute is unique. It is

the only death statute that permits the prosecutor to exercise

discretion to decide who shall be spared from the ultimate

penalty during the middle of a death penalty proceeding. In

every other state, a death penalty hearing automatically

follows the conviction.

After a conviction for murder, a death penalty hearing

can be held only “[w]here requested by the State.” I11.Rev.Stat.,

1977, Ch. 38 Sec. 9-l(d). The Supreme Court of Illinois

recognized that this statutory language places the decision

on whether to convene a death hearing solely and squarely

in the hands of the Illinois prosecutor. People ex rel. Carey v.

Cousins, 77 I11.2d 531, 397 N.E.2d 809 (1979).

Four of the seven Justices now sitting on the Supreme

Court of Illinois believe that the Illinois Statute violates

the Eighth Amendment. See People v. Lewis, 88 Ill.2d 129,

430 N.E.2d 1346 (1981).

In the Cousins case, three Justices -- Ryan, Clark, and

Goldenhersh -- joined in a dissent. All three opined that

giving the Illinois prosecutor the crucial decision, without

any guiding standards, of who shall be spared from the ultimate

penalty, violated the Eighth Amendment. A fourth, Mr. Justice

Simon, adopted this position in Lewis and has adhered to it

in subsequent cases. Although the three Cousins dissenters

reaffirmed their views in Lewis, each refused to join Justice

Simon for reasons ranging from stare decisis to reliance

that this Court would review the case. People v. Lewis,

430 N.E.2d at 1364. (Chief Justice Goldenhersh and Justices

Ryan and Clark, concurring).

It is apparent from this Court's decisions that four

of the seven Illinois Supreme Court Justices are correct in

their view that the statute is unconstitutional. This Court

in Gregg v. Georgia, 428 U.S. 153, 49 L.Ed.2d 859, 96 S.Ct.

2909 (1976), stated:

While Furman did not hold that the infliction

of the death penalty per se violates the

Constitution's ban on cruel and unusual

punishment, it did recognize that the

penaity of death is different in kind from

any other punishment imposed under our

System of criminal justice. Because of

the uniqueness of the death penalty, Furman

held that it could not be imposed under

sentencing procedures that created a

substantial risk that it would be inflicted

in an arbitrary and capricious manner.

428 U.S. at 188,

Applying Furman v. Georgia to the Statutes being reviewed,

this Court in Gregg held:

Furman mandates that where discretion is

afforded a sentencing body on a matter

SO grave as the determination of whether

a human life should be taken or spared,

that discretion must be Suitably directed

and limited so as to minimize the risk of

wholly eeretien and capricious action.

Emphasis adde 2S. at °

1 Justice Simon was not sitting on the court in November,

1979, when Cousins was decided.

e418

In Illinois, the prosecutor has the unfettered discretion

to decide whether to convene a death penalty hearing. The

failure to “suitably direct" the prosecutor's post-trial

discretion is the legal equivalent of the failure to "suitably

direct" the sentencing body's discretion. Stated ar ther

way, by requiring the prosecutor to exercise standardless

discretion during a death penalty proceeding, Illinois has

recreated the pre-Furman problem.

In upholding the constitutionality of the Illinois

death penalty statute, the Illinois Supreme Court has relied

on the majority opinion in Cousins. People v. Lewis, 430

N.E.2d at 1354. In Cousins, the Court recognized the the

Illinois statute contained no guidelines to govern the

prosecutor's decision whether to convene a death penalty

hearing. However, the court referred to the aggravating and

mitigating factors listed in I1l.Rev.Stat., 1977, Ch. 38,

Sec. 9-1(b) and (c). The court then assumed that the pro-

secutor would be guided by these factors. However, as

Justice Ryan pointed out in his dissent in Cousins, there is

no requirement in the statute that the prosecutor be so

guided, and therefore the prosecutor is free to ignore these

factors in making his decision. People ex rel. Carey v.

Cousins, 397 N.E.2d at 822. (Justice Ryan, dissenting).

In fact after nearly 6 years of operation of the Illinois

Statute, facts and cases are now available to demonstrate

the arbitrary and capricious exercise of discretion by local

prosecutors which demonstrates the unconstitutionality of

the statute. For example, in People v. Greer, 79 Ill.2d

103, 402 N.E.2d 203 (1980), both the Illinois Attorney

General and the local prosecutor admitted that the local

prosecutor's predecessor had erroneously (and successfully)

sought imposition of the death penalty. In two other cases,

the prosecutors reversed their own decisions to seek imposi-

tion of the death penalty for reasons apparently unrelated

to either the possible existence of an aggravating factor or

the prosecutor's evaluation of the evidence. See People v.

Glen Hipkins, 97 I1l.App.3d 579, 423 N.E.2d 208 (1981);

People v. Michael Robinson, 87 Il1l.App.3d 621, 410 N.E.2d

121 (1980). In People v. Walker, 84 I11l.2d 512, 419 N.E.2d

1167 (1981), the local prosecutor initially agreed to allow

the defendant to plead guilty and receive a sixty-year

sentence. The defendant later withdrew the plea. The

prosecutor, citing "mistake" and concern for “conservation

of tax dollars" as affecting his earlier opinion, changed

his mind and requested the death penalty after defendant

pleaded guilty once again.

A good example of the arbitrariness which exists in

practice appears in a comparison of two similar central

Illinois jurisdictions, Champaign and Sangamon Counties.

Since the enactment of the Illinois Death Penalty Statute,

prosecutors in Champaign County have sought the death penalty

in every murder case in which they felt an aggravating

factor was present. See People v. Robert Kirkpatrick, 70

Ill.App.3d 166, 387 N.E.2d 1284 (1979), (double murder);

People v. Jerry Gleckler, 82 I11.2d 145, 411 N.E.2d 849

(1980) (double murder); People v. Michael LeCrone, Illinois

Appellate Court, 4th District, No. 15877 (murder-robbery) ;

People v. Phillip Peeples, 4th District, No. 16759 (murder-

attempted rape). This practice is in sharp contrast to the

apparent policy in nearby Sangamon County, where although

five murder defendants were subject to the death penalty

because a statutory aggravating factor existed, the prosecution

has never sought the death penalty. See People v. Ozark Nesbit,

Sangamon County Case No. 78-CF-537 (second murder conviction);

People v. Wesley Brents, 4th District, No. 16274 (murder-

robbery); People v. James Lee, 4th District, No. 16273

(murder-robbery); People v. Vernon Hicks, 4th District, No.

16674 (murder-attempted murder-armed robbery); People v. Donald Groth,

Sangamon County Case No. 80-CF702 (second murder conviction).

The different results in these cases demonstrate that

the fear of guideless prosecutorial discretion under section

9-1(d), to which Justice Ryan's dissent in Cousins referred,

has now been borne out in practice.

It is no answer to the constitutional problem to argue

that Gregg decided the issue. This Court in Gregg recognized

that certain types of pre-trial prosecutorial discretion are

unavoidable. One of the arguments urged by the defendants

in Gregg and its companion cases was that the inherent power

of the prosecutor to undercharge, not charge at all, and

plea bargain, all of which would allow a particular defendant to

}

escape the death penalty, rendered all death penalty statutes

unconstitutionally arbitrary and capricious. In rejecting

this argument, the Court viewed these prosecutorial decisions

to be unavoidable and an integral part of our system.

Gregg allows the Illinois prosecutor to make the traditional

re-trial choices. But, the Illinois prosecutor is also given

the power under the Illinois statute to make a post-trial

choice and a vital one at that: whether to convene the penalty

hearing and put the defendant's life in jeopardy. It is this

choice, which was not an issue in Gregg, that we challenge

here on Eighth Amendment grounds.

Thus, one major difference between the prosecutor's inherent

pre-trial discretion attacked in Gregg and the prosecutor's

discretion attacked here is that the former is unavoidable

while the latter is fully avoidable. *

There is another major difference between the discretion

approved in Gregg and that of Illinois prosecutors. In Georgia,

the only way for a prosecutor to avoid a death penalty hearing

is to refuse to charge <= capital offense. Such undercharging

would violate his duty as a prosecutor and the public trust.

As three members of this Court found, however, very few pro-

secutors would arbitrarily ignore both their duty and public

trust by failing to charge a capital offense, when warranted

by the evidence, simply to avoid a death penalty. Gregg v.

2 As this Court recognized in Gregg, to prohibit the

traditional charging discretion in a death penalty case would

in effect “outlaw” capital punishment. (428 U.S. at 199, n. 50).

Our attack on the Illinois statute in no way challenges the

traditional charging power of the prosecutor.

cre

Ore 7

Georgia, 428 U.S. at 224-5 (White, J-, Burger, C. Je, and

Rehnquist, J.).

In contrast to Georgia, the discretion afforded

prosecutors in Illinois is totally different. As discussed

above, the Illinois statute contains no standards whatever

which govern the prosecutor's decision whether to seek the

death penalty. The Illinois statute does not even require

that the prosecutor request a death penalty hearing if his

evidence establishes one or more of the statutory aggravating

factors. Therefore, in contrast to Georgia, an Illinois

prosecutor is free to not seek the death penalty as he sees

fit, and that decision violates neither his duty nor the

public trust.

In summary, the discretion granted Illinois prosecutors

is unique and totally avoidable. Such @iscretion has not

yet been reviewed by this Court. As demonstrated, the

discretion afforded Illinois prosecutors is not 4 component

of the traditional charging power. Also as demonstrated,

that discretion is totally without standards. Therefore, by

interjecting needless complications into the death sentencing

process, the Illinois statute certainly has not “minimize (d)

the risk of arbitrary and capricious” death sentences.

Gregg v. Georgia, 428 U.S. at 189. Finally, although a

majority of the Illinois Supreme Court have found the

Illinois statute does violate the Eighth and Fourteenth

Amendments, three of those justices have deferred to this

Court for a final resolution of the issue.

For these reasons, certiorari should be granted.

tts

THE ILLINOIS DEATH SENTENCING SCHEME FAILS TO

PROVIDE ADEQUATE COMPARATIVE REVIEW PROCEDURES

TO INSURE THAT THE DEATH PENALTY IS NOT IMPOSED

IN AN ARBITRARY OR DISPROPORTIONATE MANNER.

In Purman v. Georgia, 408 U.S. 238, 33 L.Ed.2d 346, 92

S.Ct. 2726 (1972), this Court held that the penalty of death

may not be imposed under sentencing procedures that create a

substantial risk that the punishment will be inflicted in an

arbitrary and capricious manner. A capital sentencing

scheme must provide a “meaningful basis for distinguishing

the few cases in which the death penalty is imposed from the

many cases in which it is not."

Appellate review procedures which serve to insure that

the death penalty is not being imposed arbitrarily and

capriciously, by providing for comparative review, are

essential to a constitutional death penalty scheme. Because

such procedures are not yet provided for in Illinois, there

is no guarantee that the death penalty will not be imposed

in an arbitrary and capricious manner.

In the present case, petitioner's sentence was affirmed

in an opinion which made no attempt at any form of comparative

or proportionality review.

This issue is presently before the Court in Pulley v. Harris,

No. 82-1095. Certiorari should be granted to determine

whether the lack of comparative review in Illinois violates

the Constitution.

nos

MR. DAVIS WAS DENIED HIS RIGHT TO TRIAL BY AN

IMPARTIAL JURY BY THE PROSECUTION'S PEREMPTORY

EXCLUSION OF ALL BLACK JURORS.

Girvies Davis, a black man, was charged with the

murder of a white. He was subsequently convicted and

condemned to die by an all white jury. The record shows

that all prospective black jurors were peremptorily challenged

by the State. (Vol. X, R. 133, 160, 232) This practice was

objected to by the defense and called to the attention of

the trial court. The court's only response was that it was

"the perogative of both sides to kick whomever they choose

to kick for whatever reasons they choose to kick them.”

(Vol. XI, R. 54)

This response was not adequate to insure petitioner's

right to a fair trial and sentencing. At the very least,

the court should have made further inquiry into the State's

apparently “purposeful exclusion” of black jurors.

In Swain v. Alabama, 380 U.S. 202, 13 L.Ed.2d 759,

85 §.Ct. 824 (1965) it was held that a prosecutor's exercise

of peremptory challenges to exclude blacks from a jury did

not violate equal protection of the law absent a showing

that a prosecutor followed a pattern of intentionally

excluding black jurors in a series of cases.

A majority of the Illinois Supreme Court relied on

Swain in affirming petitioner's conviction. People v. Davis,

___ ‘111.24 ___ (Appendix A, pg. 6). Ina dissent, Justice

Simon noted that:

Aha

the strength of the Swain holding has

been diminished by later decisions under

the sixth amendment in Duncan v. Louisiana,

391 U.S. 145, 20 L.Ed.2d 491, 88 S.Ct. 1444

(1968) and Taylor v. Louisiana, 419 U.S.

522, 42 L.Ed oa 690, 95 S.Ct. 692 (1975).

These decisions recognized the 'fair-cross-

section requirement as fundamental’ to the

sixth amendment right of a defendant to a

jury in a State criminal prosecution.

People v. Davis, Ill.2d. ’

TAppendix A, pg. 39) (Simon, J., dissenting)

Even if no violation of the Fourteenth Amendment has

been shown under Swain this Court should conclude that the

right to an impartial jury under the Sixth Amendment has

been violated. The courts of California, Massachusetts and

New York, for example, have recognized the importance of

impartial juries and the difficulty of meeting the Swain

test, and overturned convictions by juries which were chosen

as was the instant jury. People v. Wheeler, 22 Cal. 3d 248,

148 Cal. Rptr. 890, 583 P.2d 748 (1978); Commonwealth v.

Soares, 377 Mass. 593, 387 N.E.2d 499 (1979); People v.

Thompson, 435 N.¥.S.2d 739 (1981).

These States have established a more realistic test for

evaluating the use of peremptory challenges in a manner

which excludes minority groups. In order to preserve the

traditional function of the peremptory challenge their use

is presumed to be appropriate. However if it is shown that

there is a “substantial likelihood” that peremptory challenges

are being used on a solely racial basis the State has the

burden of demonstrating that race is not the basis for their

use.

poe

In the present case the exclusion of prospective black

jurors on a solely racial basis is apparent. Despite

objections during jury selection the State failed to provide

any explanation for the exclusion of black jurors, and the

trial court did not require one.

An impartial jury comprised of a cross-section of the

community is necessary to eliminate bias froma jury.

Racial bias is a tragic reality of our society and if

prosecutors are free to form a jury based on race, bias will

taint the jury's ability to fairly evaluate evidence. This

is particularly true when, as here, the jury, the murder

victim, the court and the prosecutors are white, while the

defendant is black.

Girvies Davis’ guilt or innocence and life or death

should not have been decided by a jury that was selected in

a manner which permitted the prosecution to exclude black

jurors. Certiorari should be granted to reverse the conviction

and remand for a new trial.

vil.

CONCLUSION

For the foregoing reasons, GIRVIES DAVIS, petitioner,

respectfully requests that a writ of certiorari be issued

to the Supreme Court of Illinois.

Respectfully submitted,

THEODORE A. GOTTFRIED

State Appellate Defender

Office of the State Appellate Defender

300 East Monroe, Suite 100

Springfield, IL 62701

(217) 782-7203

COUNSEL FOR PETITIONER

CHARLES M. SCHIEDEL

Supervising Attorney

Supreme Court Unit

Office of the State Appellate Defender

OF COUNSEL

PEOPLE v. DAVIS ll. 353

Chee as 447 6.0.36 353 (A 1963)

have required the ulilives to account for all

interest earned on the consumer ulility Lax

revenues billed and cullected pmor to their

remittance to the special protest fund.

Contrary to appellant Barkhausen’s con-

tention, we find that, in collection and re-

mittance of taxes in precise accordance

with their duties under the respective con-

sumer utility ordinances, the uulives cannot

be deemed to be unjustly ennched. The

utilities are, however, not ented to be

compensated for expenses incurred in col-

lecting the consumer utility lax.

{5} We further find that interest that

has accrued on the protest fund established

in Lake County w refundable to the com

sumers along with the corpus of the fund

In the past the court has held that in the

absence of a statule or agreement to the

contrary, interest is not normally recovera-

ble. (Lakefront Realty Corp. v. Lorens

(1960), 19 Ill 2d 415, 167 NE2d 236) The

arcumstances in Lake County differ from

the situation presented to the court in

Lakefront Realty. Presuming that interest

income has been earned on the protest fund

established in Lake County, it w recoverable

as an incident of the protest fund itself.

See Town of City of Peoria v. O'Connor

(1981), 85 Ill.2d 195, 207, 52 Ill Dee. 49, 421

N.E.2d 912

The situation in Couk County, however,

more akin to the circumstances the court

was confronted with in Lakefront Realty.

No money was available in Lakefront Real-

ty and it is presumed that no money is

available in the instant case in Cook County

to pay the interest No protest fund was

ever established in Cook County. The con-

sumers are therefore not entitled to an in-

terest award since no interest has been gen-

erated by a special protest fund.

(6) Finally David N. Barkhausen con-

tends that his request of the circuit court of

Lake County to have all the Waukegan

taxpayers certified as a class and himself as

a representative of that class should have

been granted. If Mr. Barkhausen seeks to

pursue this remedy, as the mechanism for

refunds is established, he may raise the

issue of class certification at a hearing in

the circuit court. A proponent of a class

action has the burden of establishing (the

statutory prerequisites, and the court must

find them present before it can sanction

maintenance of the action as a class aclon.

(McCabe v Burgess (1979), 75 Ill2d 457, 27

[ll Dee. 501, 389 N.E.2d 565, cert denied

(1979), 444 US 916, 100 SCt 230, 62

L.Ed.2d 170.) No such finding has been

made in the instant case, and Mr. Barkhau-

sen has not demonstrated before this court

that he has satisfactorily established the

statutory prerequisites.

In summation, we affirm the order of

March 15, 1982, entered by the circuit court

of Lake County upholding the constitution-

ality of the 5% statutory ulility tax and

stinking down Waukegan's 3% home rule

consumer utility tax as an unconstitutional

occupation tax. We reverse the order of

March 19, 1982, entered by the circuit court

of Cook County that dismissed the com-

plaint and declared that the consumer uuli-

ty laxes al issue are constitutional exercises

of home rule powers. We remand to the

circuit courts of Lake and Cook counties

with directions to oversee the distribution

of Une previously collected consumer utility

Laxes in accurdance with this opinion.

56393— Affirmed and remanded, with di-

rections.

56394— Reversed and remanded, with di-

95 12d 1

69 Il Dec. 136

The PEOPLE of the State of

[llinots, Appellee,

Girvies L. DAVIS, Appellant.

Ne. 4276

Supreme Court of Illinois.

Feb. 18, 1983.

Rehearing Denied April 8, 1983.

Defendant was convicted before the

Circuit Court of St. Clair County, Steven M.

364 ill

Kernan, J, of murder and was sentenced lo

death, and he appealed The Supreme

Court, Thomas J. Moran, J., held that: (1)

no reversible error occurred during guilt

phase of defendant's tnal, and (2) death

sentence was properly imposed

Judgment affirmed

Goldenhersh, J, concurred im part and

dissented in part and filed opimon

Simon, J, dissented and filed opimon

1. Jury 335.1)

State's use of peremptory challenges to

alleged!) obtain all-white jury did not de-

prive defendant of his mght to fair and

imparual jury USCA ConstAmend 6

2. Constitutional Law @ 7221/1)

Only systematic and purposeful exclu-

sion of blacks from jury in case after case

raises question under Fourteenth Amend-

ment USCA ConstAmend M4

3. Constitutional Law © 221(1)

Defendant has burden of producing ev-

idence establishing systematic exclusion of

blacks from jury 80 as lo rame queslon

under Fourteenth Amendment USCA

ConstAmend 14

4. Jury 13114)

During voir dire, questions shal! not

directly or indirectly concern matters of law

or instructions

5. Jury @ 131(15)

Prosecutor in murder proseculion did

not instruct jury as to law of accountability,

but merely inquired as to whether jurors

could follow law even if evidence revealed

that defendant did not actually do shooting

al issue

6. Jury & 33(2)

Exclusion of veniremen for cause does

not improperly result in convietion-prone

jury

7. Jury @97(2)

Where defense counsel in murder pros-

ecution indicated in opening remarks that

tests revealed that gun used im robbery at

issue had also been used in prior incident

447 NORTH EASTERN REPORTER, 24 SERIES

and juror informed court that {mend of he

was related to someone who was murdered

during such pror incident, trial judge did

not err in permitting service by such juror

where juror's final response indicated thal

he could view defendant's tria! as “separate

case,” notwithstanding that juror iniually

was equivoca! and hesitant

& Jury 8S

Trial judge ws in supernor position to

observe venireman's demeanor

8. Jury @97(2)

Fact that juror could never pul com-

pletely out of his mind pror incident involv-

ing relative of juror’s {mend did not reflect

on his impartality with respect to tral at

mas.ue

10. Criminal Law @ 1171.7

Where trial judge in murder prosecu-

on carefully instructed jury that evidence

pertaining to other murders had “been re-

ceived solely on the issue of the defendant's

design and knowledge” and was to be con-

adered only for such limited purpose, prose-

cutor'’s rebuttal closing argument reference

to other murders was not reversible error

11. Criminal Law @© 577.9, 577.14

“Judgment” as used in speedy tna!

statute providing that defendant must be

tned on all remaining pending charges

within 160 days from date of judgment on

first charge refers to date upon which de-

fendant was first sentenced, and not date

upon which he was granted new trial

8.H.A. ch 38, 11 102-14, 103-SHie).

See publication Words and Phrases

for other judicial constructions and

defimuons.

12 Criminal Law © 577.14

Where defendant's trial on one of sev-

eral charges ended in new trial, there was

no “judgment” within purvies of speedy

trial statute. SHA. ch. 88, 11 102-14, 103-

Ke).

13. Criminal Law © 677.105)

Where, excluding delay occasioned by

defendant's mouon for change of venue and

argument on defendant's pretrial moons,

PEOPLE v. DAVIS Hil.

355

Cite a0 447 N.4.36 363 (1 1983)

mitations penod following sentencing of

defendant oa first charge had run for 144

days, tnal of defendant on second charge

was not prohibited by speedy trial statute

SHA ch 38, 1103-Se, f).

14. Criminal Law © 577.14

Notwithstanding approximate seven

week delay between tial and retnal, de

fendant's mght to speedy tnal was not vio

lated where defendant had at least three

charges pending and dunng (he seven- week

period was ined on one charge. S.H.A. ch

38, 1 103-—Ha)

1% District and Prosecuting Attorneys

Prosecutor has discretion to determine

offenses with which person shall be

charged.

16 Homicide @ 127

Indictment was sufficient upon which

to predicate murder conviction.

17. Judges @= 4% 2)

Trial judge's comment that he need not

determine whether he could substitute his

judgment for that of jury and his posttnal

statement that defendant “is a no-good,

cold-blooded kuller tha: doesn't deserve to

live” did not indicate Unat judge was predis-

posed against the defendant durnng tnal,

and absent instances of inappropriate judi-

cial behavior of intentional unfair treat-

ment of defendant, there was no error in

disallowing motion for substitution of

judge

1&8 Criminal Law 414

Trial judge was not required to believe

defendant's version of events regarding voi-

untariness of his statements W police.

19. Criminal Law @= 5199)

Trial court was not required to assume

Unat defendant's confessions were involua-

tary because defendant was questioned

from 10:00 p.m. until 4.00 am. on following

morning where, although defendant gave

written statement at 4.00 am. he indicated

wulingness to discuss comes {rom moment

he met, at his own request, with police

20. Searches and Seizures 141)

Where items recovered by police from

defendant's residence were simply observed

during course of pmor authorized search

and were seized only upon issuance of new

search warrant authorizing such seizure,

seizure was not invalid USCA Const

Amend. 4

21. Searches and Seizures = 7(27)

Defendant's consent was unnecessary

to search conducted pursuant to warrant

USCA. Const Amend. 4

22 Criminal Law 31

Whether or not State chose to prose

cute person who bought item taken from

victim's home was irrelevant to disposilion

of defendant's murder prosecuuon.

23. Criminal Law @ 1159.2(7)

It w for tuner of fact to determine

weight and sufficency of evidence, and

such determination will not be reversed un-

less evidence is so improbable as lo create

reasonable doubt of defendant's guilt

Us. Homicide 250

Evidence was more than sufficient to

support murder conviction.

25. Indictment and Information 113

Procedure whereby State sets forth in

imhetment aggravauing factors upon which

it will rely, eluminaling noUce as wsuc, @

preferable procedure.

26. Indictment and Information 113

Where bill of particulars requesting in-

formation concerning State's intent to seek

death penalty was filed prior to murder

trial and defendant did not allege that he

was unaware of aggravating factors upoa

which State would rely, defendant received

sufficient pretrial notice of aggravating

factors SHA ch 38, 19-1.

27. Indictment and Information © 113

Where defendant in murder prosecu-

tion was informed of agrravating factors

upon which State would rely and did not

show prejudice as result of State's failure to

specify aggravating factors in indictment,

indictment was sufficrent upon which to

predicate death penalty, SHA ch

191.

356 ll

28. Criminal Law © 1203.17

Where defendant in murder prosecu-

tion did not deny fact of pmor convictions or

assert that he was nol the same person

named in certified copies of two pror in-

dictments and murder convictions admitted

into evidence, State's proof with regard to

prior convictions was sufficient, notwith-

standing lack of independent proof that de-

fendant was the same person named in such

certified records

29. Criminal Law 323

Identity of name in certified copies of

pnor indictments and conviclions gives mse

to rebuttable presumption of identity of

person

30. Homicide 344

Legsiature, in enacting death penalty

statute, could not have intended that only

unrelated murders which result from pre

meditated acts may support death sentence,

but some mental! state is required in order

to impose death penalty SHA. ch 88,

1o1

31. Homicide 344

Where defendant is convicted of two or

more murders resulluung from intenvona! or

knowing acts, death penalty may properly

be imposed S.H.A. ch. 38, 19-1

32. Criminal Law @ 1637.1(2)

Defendant, in failing to object to prose-

cutor’s statement with respect to defend-

ant's eligibility for death penalty, failed to

properly preserve issue for review.

33. Criminal Law © 717

In murder prosecution, prosecutor's

comment with respect to defendant's eligi-

bility for death penalty, that “under the

Iilinois law, if you killed and are convicted

of kilhng two or more persons, then it is 6

case that properly fits the death penalty

where jurom should conmder miugating and

aggravaling circumstances as to Unat ind?

vidual,” merely defined general procedure

employed in bifurcated sentencing hearing

and did not constitute error SHA ch. 38,

181

447 NORTH EASTERN REPORTER, 24 SERIES

4. Homicide = 165

Comments and testimony regarding de-

ceased's family are generally improper in

murder prosecuLon

35. Criminal Law © 966.6(3)

Ordinary rules controlling admissibility

of evidence do not apply in second phase of

sentencing proceeding

%. Homicide 354

Where jury im sentencing phase of

murder prosecution was aware that defend-

ant had three murder convictions and an

attempted-murder conviction, and thal he

was convicted of burglary, battery and gun-

violation charge, it was not reasonable to

beleve that jury, in voting for death penal-

ty, was influenced by testimony that one

victim's wife delivered a baby the day after

his death SHA. ch 38, 19-1.

37. Criminal Law @°966.6(3)

Even assuming that videotaped conver-

sation between defendant and State's atior-

ney was plea related, admission of video

lape into evidence during second phase of

sentencing hearing did not consUlute error

SHA ch 88, 19a), ch LOA, 140af,

38. Criminal Law @ 1208(1)

During first stage of sentencing hear-

ing, State must prove aggravating factor

wpon which death penalty could be imposed.

39. Criminal Law ©3341)

In ruling on admissibility of evidence,

trial judge may conduct broad inquiry

largely unlimited either as to kind of infor

mation be may consider or source from

which it may come.

4. Criminal Law ©3341), 383

Factors controlling admussibility of ev

dence are relevance and reliability of prof-

fered evidence, and determination bes with

in discretion of trial judge.

4. Criminal Law @ 1177

Not withstanding that defendant's nght

to remain silent was not scrupulously hoo-

ered during videotaped conversation be

tween defendant and State's attorney, ad-

mussion of Lape into evidence during second

phase of sentencing hearing was pot revere

+ be

PEOPLE ¥. DAVIS ue 35

Cue as 447 N £26 353 (1983)

error where no new evidence was elicit-

@ of prejudicially incmmuinating nature for

oe of sentencing.

42) Criminal Law & 10396.1(1)

Failure to object © admission of evi-

dence, even in context of death case, gener-

ally precludes review of sue on appeal

43. Constitutional Law = 26411)

Reason for refusing proffered instruc

on, that factors luted therein were not

specifically listed as mitigating circum

stances in sentencing slatule, was improper,

but defendant was not denied due process

by refusal to give proffered instruction

where factors listed therein were actually

given lo jury, were overbroad of were not

supported by record evxience and tinal

judge clearly indicated that jury was not

limited to consideration of statutory mil

gating curcumstances, SHA. ch 38, 19-1

4. Criminal Law © 956.6(1)

Trial court did not err in allowing State

to present both closing and rebuttal argu-

ments dumng sentencing hearnng.

4S. Homicide 154

Death penalty may be imposed on de-

fendant who does not himself kill if likeli-

hood of killing in course of felony 3 so

substanual that one should share blame for

killing uf he somehow participated in felony.

SHA. ch. 3, 191.

Daniel D. Yuhas, Deputy State Appellate

Defender, and Charlies M Schedel, Law-

rence Bapst and David Bergschnexier, Asst

State Appellate Defenders, Springfield, Gir-

vies Davis, pro se, for appellant

Tyrone C. Fahner, Atty. Gen, Chicago

(Herbert L. Caplan, Melbourne A. Noel, Jr.,

Darrell Panethiere, and Terence M. Madsen,

ee Oe

THOMAS J. MORAN, Justice:

Defendant, Girvies Davis, was indicted

with a codefendant, Richard Holman, age

17, wm the cirewit court of St. Clair County

for one count of murder in violation of

section lial) of the Code

1961 (ll Rev. Stat 1977, ch 38, par.

liakl). The causes were severed, and

[si

ERS EEG

eRe

gravating factors existed, and

(IL Const. 1970, art VI, gee. &{b); 73 L2d

R 603), alleging numerous errors in ail

stages of the proceedings.

The evidence adduced at (nal indicates

that on Friday, December 22, 1978, the vie

um, &@-yearold Charies Brebel, was shot to

death in hus motile home located off Route

161. Jean Biebel Moore, the daughter of

the deceased, Ueslified Unat she discovered

her father's body at 4pm She stated that

two watches, a tullfold, “a number of guns,”

and a television set had been Laken from he

home. On crom-<xamination, she indicated

that she had offered a $5,000 reward for

information leading to the arrest aad con-

vicuon of her father's murderer

Gregory Mitchell, who testified that he

was a “fence,” stated that in late January

of 1979, Une defendant phoned him and sad

“we mught have something for (you) later

on.” That everung, Holman brought Mitch

ell a gun. Mitchell further stated that he

saw defendant later that same night, and

defendant inquired as to how much money

Holman was paid for the gun He also

testified that he again saw defendant on

September 10, 1979, in the company of po

lee officers. At Unat Lime, defendant told

him to turn over to the police “any of the

guns or T.V.'s" because Holman accused

him of “doing some crimes.”

Mitchell stated that a police officer gave

him money to buy beck the gun which he

had sold to another individual. He did so,

< a”

358 I

and the weapon was introduced into evi-

dence at trial Mitchel! identified the gun

as the one he purchased from Holman. One

of the victim's neighbors, William Imbocen,

testified thal this weapon belonged to the

victim

The State was permitted at tral! to intro

duce evidence of two other murders for the

hmited purpose of showing defendant's mo-

dus operand: One of the victims, Frieda

Mueller, was 78 years old at the time of her

death She lived off Route 163 Mueller

was found shot to death on the afternoon of

Friday, December 8, 1978 A television set,

billfold and checkbook were stolen Evi-

dence of this emme, which occurred two

weeks pror to the Bebe! murder, was also

admitted tw show defendant's knowledge

that a murder was contemplated because

previously, under similar circumstances, a

murder did take place

Similarly, Esther Sepmeyer was an elder-

ly woman who lived im a rural area off

Route 162 Her grandson, Rodney Sepmey-

er, Llestified that Mrs Sepmeyer was shot to

death on Friday, July 13, 1979. A television

sel, rep.ca anuque radio, stereo, lawnmow-

er and a 22 Remington rifle were taken

from the home The lawnmower and radio

were introduced into evidence and identi-

fied by the witness These items had been

recovered from defendant's home pursuant

a search warrant. The witness also drew

& picture detailing the insicle of the victim's

home. Further evidence isclosed that a

latent fingerprint recoverec from the home

belonged to Holman Ny fingerprints

matching defendant's were found.

James Lay, chief investigator for the St

Clair County sheriff's department, testified

that pursuant to defendant's request, he

spoke with him at approximately 10 p.m on

September 9, 1979. Defendant was read his

Miranda rights and signed a form indicat-

ing that he understood them. Defendant

then stated that he had information regard-

ing certain murders in which he was in-

which evidence of the crimes could be

447 NORTH EASTERN REPORTER, 24 SERIES

found, but none of Une items described were

recovered. Pursuant to defendant's de

scnption, Officer Lay drew @ sketch of the

inside of the Sepmeyer home. This picture

was later circulated w the jury along with

the sketch drawn by Rodney Sepmeyer.

Lay further testified that on September 10,

1979, defendant dictated three slatements

to polee officers admitting complicity in

the Sepmeyer, Mueller and Biebe! murders

On cross«xamination he stated that six

months earlier defendant had denied in-

volvement in the Biebel murder and had

Stated thal he could not locate the victim's

home

The defendant's statements regarding the

Biebel, Mueller and Sepmeyer murders

were read to the jury Defendant gave the

following statement concerning the Decem-

ber 8, 1976, Mueller murder:

“Me, Girvies L Davis, and Richard Hol

man drove my blue "70 Buick to a farm

house off of Route 163 on the Centreville

ude of Millstadt We turned to the right

on @ back road and pulled up in the

driveway to the left We got out of the

car and went Wo a side or back door and

pushed it open. This door opens into the

kitchen. Once we got in, an old lady was

coming towards us from the bedroom |!

Started to search the house when Ricky

told the old lady to sit in a chair in the

kitchen. We took some items, | think a

T.V. from the kitchen. While I was tak-

ing the T.V. out to the car, Ricky said he

shot her in the back I heard the shot

PEOPLE v. DAVIS

1 359

Che os 47 N26 283 (1983)

we walked in. There was an old man

\sitting in a wheelchair facing the front

door. | asked him where the money was

He said he didn't have any. We took a

deuble barrel shotgun and a T.V. | was

in the bedroom in the front room, and

insade of the trailer was the kitchen on

the right of the front door. Then the

living room, then a bedroom down the

hall to the left The T.V. was in the

front room, and the shotgua was ia the

bedroom. I carned the TV. and gua out

to the car. Then | heard « shot and

Ricky came out and said he shot the old

man. He sold the TV. and gun some

where but I can't remember where.”

Regarding the arcumstances of the July 13,

1979, Sepmeyer murder, defendant stated:

“{AJbout two months ago a {mend of

mine by the name of Rucky Holman who

also goes by the name of Ricky Shaw, and

| were driving in my 1970 Buick 225. We

were driving on the interstate and | re-

member seeing a sign that said, St Jacob

on it We drove past thu and (then we

exited the highway by some service sta-

tions. We drove down this road until we

came to an old house. [t was sitting on

the right side of the road. This house

had a barn sitting in the back. I drove

into the dnveway and drove to the back

of the house with the front of the car

facing the back door. Both Ricky and I

got out of the car and went up the

back door. I can't remember if we had to

force the door open or not, but we went

into the house. The back door leads into

a kitchen and from the kitchen | could

see that there was an old lady laying in a

bed in a bedroom next to the kitchen.

Ricky and | both walked into the bed-

room right away. I went into the bed-

room for a short time and then I started

looking around the rest of the house and

Ricky stayed in the bedroom. After I

left the bedroom, I walked into the dining

room and then in the spare room, and

then into a hallway. The hallway had

stairs leading to the upstairs but | never

went upstairs, In the spare room there

was a lawn mower, it was yellow with @

three and a half hp. motor. | took the

handle off this lawn mower and then |

carried it outside and put it in the trunk.

While in the back room, | saw a motor

thing with a black hose on it. I believe it

was used to suck water and things up,

but | didn’t take it Im the hallway there

was a turn table sitting on a heater. |

can’t recall what name it was, but it had

& plastic top and it had a top om it and |

loaded it into the car. After | loaded the

record player in the car, | came beck in

and got a T.V. that was sitting in the

kitchen The T.V. was sitting on a table

just to the right of the door when |

walked into the kitchen the T.V. was a

little white T.V. with black trim around it

and it's a color TV. When | firs went

into the bedroom with Ricky, | found

a 2onew rifle ina box This gun was in

a cabinet in the bedroom and there were

also some shells with it | loaded the gua

and gave it to Ricky. When | was out

side putting the T.V. im the car, | heard a

gunshot and when I got back in the bed-

room, the old lady was shot and she was

laying on the bed. At the ume | told

Ricky, let's get out of here. Again when

| first went in the house, | saw an an-

uque type radio in the bedroom and |

unplugged it and sat it in the kitchen

table. Just as we were leaving the house

PEOPLE v. DAVIS il.

361

Cue ws 47 NE.26 383 (1983)

\questioned prospecuve jurors about (heir

willingness to follow the law of accountabil-

ity It w clear that dumng vow dire

“{qjuesuons shail not directly of indirectly

concern matters of law of instructions.”

(73 Jil2d R 24) Two of the jurors who

wera ullimately selected were asked (he

following ques¥oa-

“Mr Kuehn [State's Attorney): New,

there's going to be—there's going lo be

evidesce involved in thus case of a code

fendant, another defendant apart from

this defendant Some of the evidence

will pertain to that co-defendant and how

it relates to this defendant's case, and

evidence that runs to this defendant

The law in certain instances would pro

vide that a person would be held responsi-

ble for the acts of a co-defendant, & co

hort in cmme.

this, this aspect of the law, thal a person

can be held accountable and responsi bie

for the acta of another. Would it affect

your ability in deciding this case on the

‘ssue or the charge of murder provided

that the law states that the defendant

could be held accountable under the facts

that the defendant, this defendant before

you, did not do the direct act, did not pull

the tngger of the gun so to speak, that

caused the death of the individual. Do

you think that would affect your ability

to decide or could you follow that law?

The prosecutor did not instruct the jury

as Lo the applicable aw Rather, he merely

inquired as to whether the jurors could

follow the law even if the evidence revealed

that the defendant did not actually do (he

shooting. We do not agree that the quoted

comment improperly concerned the law of

accountability.

[6] Defendant next conteads that exclu-

sion of veniremen for cause, tw

Witherspoon v. [ilinoss (1968), 391 U.S. 510,

88 SCL 1770, 2 LEd2d 776, improperly

results in a conviction-prone jury. We have

consistently held to the contrary (¢¢., Peo

ple v. Lewis (1981), 88 Ill2d 129, 147, 58

lll. Dee. 895, 430 N.E2d 1346, cert denied

(1982), 456 US 011, 102 S.Ct 2307, 73

LEd 2d 1308, and recently affirmed our

pror holdings People v. Tiller (1982), 94

Il 2d 303, 68 iL Dee. 916, 447 N.E2d 174;

People v. Free (1983), lil2d 378, @

lil Dee. 1, 47 N.E-2d 218

[7-9] Defendant's final assignment of

error with respect to the voir dire concerns

the trial judge's refusal to excuse & juror

for cause. Defense counrel, in his opening

remarks, informed the jury that defendant

had been in jail with two men who were

convicted of attempted murder in cunnec

tion with the robbery of a gas station. He

further indicated that certain Lesea revealed

that the gun used in the robbery had also

been used in a murder at the Mexico City

Cafe, and may have been the weapon used

to kill Frieda Mueller.

After Jean Biebel Moore testified, the

court recessed. During this recess, a Juror,

Mr. Lewis, informed the court that a {rend

of his was related to someone who was

murdered during the Mexico City Cafe inel-

dent. The judge asked Mr. Lews if that

inextent would affect his decision in the

case, and he responded:

“Well, the only thing I can say there is

that at the time, like I say, this individual

and I became close friends °° *. He

was pretty bitter about the incident be-

cause he would have been there had he

stopped, he apparently decided to go

home that night. | would like to say, no,

that I can keep an open mind on it, but i

don’t know at this time. But I do know

that he was very bitter at the time.”

He further stated, in response to an in-

quiry by defense counsel, that any decision

he made would not result in embarrassment

to him because of his friendship. When

asked if he could put the incident complete-

ly out of his mind and arrive at a fair

verdict, Mr. Lewis replied:

“i don't think I could ever put it totally

out of my mind because it was

near to me and I’m not used to this type

of situation. But I think for this case,

since it is a separate case, I think | could

look at this case—the only reason |

brought it up is because it was macs

mention and | do recall the incident”

360 ll

right lo talk with s lawyer and have him

here But | want to turn State's evi

dence and get exactly, get everything off

my mind”

Defendant called as witnesses Dennis

Kuba and Gerald Johnson, two special

agents with the Ilinow Division of Criminal

Investugation They testified that Law-

rence and Harns, two men with whom de-

fendant shared a cellblock, were convicted

of other ernmes to which defendant confess

ed (The theory of the defense was that

defendant merely heard about the Mueller,

Bietel and Sepmeyer murders from hus cell-

mates and, for some reason, confessed Wo

being one of the perpetrators) Kubs also

testified that Lawrence and Harms were

not in custody on the date the Biebel and

Mueller murders wére committed. On

crossxamination, Kubse stated that Law-

rence and Harris were in custody at the

time of the Sepmeyer murder

The final defense witness, a {nend of

defendant, identified the lawn mower and

radio taken from the Sepmeyer home He

stated that, while he was at defendant's

home, defendant bought these items from

his cousin On crossexamination, the wit-

ness testified that he could not hear the

conversation, but he saw the defendant

hand his cousin some money after looking

at the items

{i-3] The first meue we address uw

whether the State's use of peremptory chal-

lenges wo allegedly obtain an all-white jury

deprived defendant of hu nght tw « fair

and impartial jury. This contention has

been resolved adversely to the defendant in

Swain v. Alabama (1965), 380 US. 202, 8

S.Ct. 84, 13 LEd.2d 759. In Swain, the

Supreme Court held that, in a particular

case, the prosecutor may constitutionally

exercise his peremptory challenges to elimi-

nate blacks from the jury (880 US 22,

223, 85 S.Ct 824, 837, 13 LEd2d 756, 774;

accord, People v. Gaines (1961), 68 Lil.2d

$42, 358, 53 Ill Dec 795, 480 N.E2d 1046,

cert. denied (1982), 456 U.S. 1001, 102 S.Ct

2285, 73 LEd2d 1295, Commonwealth v.

Henderson (1981), 497 Pa. 23, 488 A2d 91.)

Only a systematic and purposeful exclusion

447 NORTH EASTERN REPORTER, 24 SERIES

of blacks from the jury, “in case after

case.” rases & quesuon under the four-

teenth amendment (Swain vy. Alabama

(1965), 380 US 22, 223, 6 SCr 624, 837,

13 L.Ed 2d 78, 774) Defendant has the

burden of producing some evidence estab-

lishing @ systematic exclusion (People v.

Powell (1973), 53 IN 2d 466, 471-78, 22

N E24 609), and he has not met that bur-

den here

The evidence indicates that three pro

spective black jurom were perempton|y

challenged by the State The record does

not reveal the number of black jurors called

for service Nor w there evidence thal the

jurors were necessarily excluded because of

In objecting to the jury panel,

defense counsel merely stated “I believe

the number of the jurors which were black

were excused by the State” Defendant's

post-unal motion for e new tral simply

alleged that three black jurors were per-

emptonly challenged by the State

We recognize that at least two States,

California and Massachusetts, have rejected

facie showing Unal veniremen were exclud-

ed because of race, the prosecution has the

burden to prove Ube exclusion was based on

(Commonwealth v. Soares

362 WW

He also indicated that he was not pervonally

acquainted with the vicum Following this

exchange, defense counse! requested Unal

Mr Lewis be excluded from Une jury and

replaced by one of the sllernale jurors

The court dened Unis request

It cannot be sad thal the judge erred in

permitung Mr. Lewis Wo serve as & juror

The tna! judge is in & superior posilion lo

observe Une venireman's demeanor (Cf

People v Gaines (1981), 8 1\) 2d 342, 357, Se

I)|. Dec 7¥5, 480 N E2d 1066 (tral judge s

in & supenor pusilion lv delermine & venire:

man's attitude toward the death penalty))

Although initially equivocal and hesitant,

Mr Lewis’ final response indicated Unat he

could view defendant's Ural as & “separals

case” The fact that he could never put the

inexdent completely out of his mind does not

reflect on his imparuality with respect Wo

this tnal See People » Szabo (1985) Bo

1124 327, 6 WiDee 935, 47 NE2d

193 (prospective juror should not have

been excluded, purmuant Ww Witherspoon,

because of equivucal and Lentalive stale

ments concerning her ability Wo impose the

death penally

{10} Defendant further alleges as error

the prmeculor’s reference, iM hue rebuttal

closing argument, lo the Mueller and Sep

meyer murders In closing argument, de-

fendant frequently insinuated that the po

lice officers fabricated the confessions at-

tributed w defendant, that they com mitted

perjury, and that defendant was innoce nt

In rebuttal, the prosecutor bascally stated

that be was not prosecuting defendant be-

cause he was innocent, or because be was an

“gitar boy.” The prosecutor then stated.

“Mr Kuehn Why do we (the State and

police officers) want [the defendant)”

Because there are only three rural kill-

ings of old people, defenseless old decrep-

it, aged people, in 1979, and the last one

was Sepmeyer, and he details them all,

and he's » good {rend of Ricky Holman,

and they were out killing. That's why

we want him”

Defendant objected to this comment He

does not argue in this court that the “other

erimes” evidence was improperly admitted,

447 NORTH EASTERN REPORTER, 24 SERIES

but rather that it was argued for an im

proper purpose He contends thal the prow

eculor’s comment indicated that defendant

should be found guilty of the Biebe! murder

because he was involved in two other mur-

ders The Suu urges Uhal, considering Une

comment in its context, the statement

merely refers to defendant's knowledge and

modus operand:

Even if we were Wo agree with defendant,

still, there would be no reversible error

The comment was “not so inherently preju-

dicia! that no instruction could have correct-

ed the situation” (People v. Lewis (1981),

8 11) 2d 124, 149, SH Tl) Dee 895, 430 8 E24

1346) Here, the trial judge carefully im

structed the jury thal the evidence pertain-

ing o the Mueller and Sepmeyer murders

had “been received solely on the issue of the

defendant's design and knowledge” and was

to be considered only for Unat limuted pur-

prem

Defendant has filed « pro se brief raumng

numerous issues concerning the guilt phase

of the proceedings We will address Unuse

contentions which were not raised by de-

fense counse! Defendant assers that his

cites sections 103 Sa) and (b) of the Code

of Crmina!l Procedure of 1963 (Ti. Rev Stat

1977, ch 38, pars 103-Ha), (b)) These

provisions state thal « defendant must be

offense. The relevant statutory provision is

section 106-Ke), which states in part:

“If a person is simultaneously in custo

the period prescribed by

PEOPLE +. DAVIS

i. 363

Cae os 447 N36 353 (1083)

. (a) and (b) of this Section. Such person

shall be tried upon all of the remaining

charges thus peoding within 160 days

{rom the date on which judgment relauive

te the first charge thus prosecuted

rendered pursuant to Section 118-1 of

thie Act or, if such trial upon such first

charge is terminated without judgment

and there is no subsequent trial of * ° 4

such first charge within 6 reasonable

Lime, the person shall be tried upon ail of

the remaining charges thus pending with-

in 160 days from the date on which such

trial is terminated; if either such period

of 160 days expires without the com

mencement of trial of * * * any of such

remaining charges thus pending, such

charge or charges shall be dismissed and

barred for want of prosecution unless de-

lay ws occasioned by the defendant * * °.”

[iL Rev Stat. 1977, ch 38, par. 103-S(e)

The relevant records have not been sup

plied to us in this proceeding In order lo

resolve this issue, we will examine the rec-

ords in defendant's other murder (nals

from the pleadings, pertaining to such

cases, contained in the record before us

The defendant was taken into custody of

August 30, 1979, on one of the three pend-

ing murder charges, He conceded, dunng

the pretrial hearing, that he was brought lo

trial on the initial murder charge within the

preseribed time period. He was found

guilty, but on either February 2 of 4, 1980,

the trial judge granted defendant s new

trial. Following a substitution of judges,

the retrial began on March 24, 1980, and

resulted again in a guilty verdict rendered

on March 27. Post-trial motions were de-

nied on May 2, 1980, and defendant was

apparently sentenced on that date.

On March 10, 1980, prior to the retrial on

the first charge, defendant was ined on the

second murder charge. He was convicted

on March 11, and sentenced on April 23,

1980. His trial om the instant charge was

scheduled to commence on August 25, 1980.

However, on August 22, defendant moved

for a change of venue, which motion was

granted. The trial judge scheduled trial for

October 20, 1980, in a different county. On

September 19, defendant withdrew his mo

tion for a change of venue, and the tnal

was rescheduled in St Clair County for the

week of October 14, 1980. Numerous pre

trial motions were filed by defendant and

argued on October 10 through 16. The jury

was selected on October 20, after which the

tinal began.

{11} As quoted above, section 103-Ke)

states that a defendant “shall be uned upon

all of the remaining charges thus pending

within 160 days from the data oa which

judgment relauve to the first charge thus

364 sII 447 NORTH EASTERN

days lapsed frum October 16 until the trial

commenced According Ww our calculation,

the limitations periud had run for 144 days

This » within the 160-day limit presenbed

by the statute

[14] At the pretrial hearing, defendant

also alleged that he was not retned on the

first murder charge within @ reasonable

time, as required by section 103-—S(e) Al-

though there was approximately @ seven-

week delay between trials, we agree with

the trial judge that Unis was not unreason-

alie in vew of the circumstances Defend-

ant had at least three murder charges pend-

ing and was timed on one such charge pror

Wo his retrial This is not, therefore, @ situ-

ation in which the State “sat” on defend-

Ont s Case without atlempling lo pursue any

prosecution For these reasons, we find

that defendant's mght W « speedy tral was

not violated

{15,16} Defendant further contends

that the indictment was insufficent be-

Cause it Charged him with murder when he

was only guilty of home invasion or burgla-

ry Clearly, the prosecutor has discretion lo

Getermine the offenses with which s person

Shall te charyed, and here the indictment

was sufficent upon which W predicale a

murder convicuon

{17} Prior to trial, we fendant moved fcr

& substitution of judge on the grounds that

this same judge presided over an unrelated

murder trial of Holman. This mouon was

Genved After the jury returned a verdict

imposing Une death penalty, defense counsel

inquired as lo whether the judge could set

aside the jury's verdict. The judge indi-

Caled that he need not determine whether

he could substitute hus judgment for that of

the jury and stated “* * * Mr Davis is a

nho- good, cold-blooded killer Unat doesn't de-

serve Ww live” Defendant contends that

this post-trial statement proves that the

judge had been prejudiced against him, and

therefore his pretnal motion for a substitu-

ton of judge should have been granted

Without commenting on the propriety of

this statement, it does not indicate Lhat the

judge was predisposed against the defend-

REPORTER, 24 SERLES

ant during tnal Our review of the record

does not disclose any instances of inappro-

priate judicial behavior, or intenuonal un-

fair treatment of the defendant Conse

quenUy, Unere was no error in disallowing a

substituuion of judge

(18) It is also contended that defend-

ants statements should have been sup

pressed because they were involuntary, and

his mght Ww counsel was violated. We disa-

gree Defendant's initial contact with Ser-

geant Lay, whom he confessed regarding

a number of crimes, was initiated by de

fendant himself The evidence shows that

defendant was advwed of his Miranda

mghts, inciuding the mght to counsel, and

he signed forms indwating that he under-

sloxd them Although, et @ pretrial hear-

ing, defendant Lestifed Unat the police and

certain inmates threatened and coerced him

into confessing, Unere w no corroborating

evidence Wo support thw claim Clearly, a

question of credibility was involved, and the

tnal judge was not required Wo believe de

fendant's version of events.

{19} Nor was the court required to as

sume the confessions were involuntary be

cause defendant was questioned from 10

pm on September 9, until 4 am the fol-

lowing morning Although defendant gave

& writlen slatement at 4 am., he indicated

& willingness to discuss Une crimes from the

moment he met, at his own request, with

Sergeant Lay Indeed, as soon as the inter-

view began, he handed Lay a lst of crimes

in which he claimed involvement It has

been held that “[t}he finding of the trial

court on the voluntariness of « confession

will not be dusturbed unless it can be said

that it contrary to the manifest weight of

the evidence.” (People v. Brownell (1980),

79 Li.2d 508, 521, 38 Il Dec. 757, 404 N.E2d

181, appeal dismissed (1960), 49 US. 811,

101 S.Ct 66, 66 L.Ed2d M4, citing People v.

Aldridge (1960), 79 lil2d 87, 87 Ill Dec. 286,

402 N.E2d 176; People v. Medina (1978), 7)

li2d 24, 256, 16 Ill Dee. 447, 875 N.E2d

7%) There was sufficient evidence from

which the judge could conclude the defend-

ant voluntaniy, in all respects, gave the

inculpalory statements. The judge, there-

PEOPLE v. DAVIS

ll. 365

Cie as 447 N.£.26 383 (1 1983)

fore, did not err by allowing the statements

into evidence.

(20,21) Defendant argues that his

fourth amendment nghtus were violated

whea police officers executed a search of

his home beyond the scope of the warrant

Evidence at the pretrial hearing disclosed

Unal a search warrant was issued, authoriz-

ing the officers to seize a color television set

from a front room in defendant's home

Probable cause for issuance of the warrant

was based on statements given by Ricky

Holman The officers did not find the tele

vision set, but they did seize a gold watch

and knife’ Defendant's motion to suppress

nese items as evidence was granted.

While in the home pursuant to the search

warrant (which defendant does not contend

was improperly issued), an officer noticed a

replica antique radio, a lawnmower and a

stereo turntable. It subsequently became

known that items similar to those found in

defendant's home were reported stolen

from the Sepmeyer residence A new

search warrant was wsued, authorizing «

seizure of those items. Defendant claims

Unat Lhe sewure was improper because the

officer's search should have been restncted

Wo the room in which the television set was

loca ted. :

If the items taken from the Sepmeyer

residence were seized at the Lime they were

discovered, the Unal judge may well have

suppressed thus evidence, as he suppressed

the watch and knife. However, they were

not recovered by the police at that time;

they were simply observed during the

course of an authorized search We there

fore cannot say that the seizure of the

tens was invalid In a related contention,

defendant challenges the validity of the sei-

ture on Uhe grounds that be did not consent

\ the search However, the search was

conducted pursuant to s warrant, and his

consent w therefore unnecessary The case

upon which defendant relies, Peuple v Ri-

aldo (1960), 80 Ill App.3d 433, 35 Ill Dee

738, 399 N.E.24 1027, is inapposite because

% involved a warranties search

It further asserted that certain police

officers and the State's Attorney conspured

to violate defendant's nights, and that the

State's Attorney intimidated Mitchell into

lying about the defendant in order to obtain

a convicuon. These conclusory allegations

are not supported by the record and are

without ment

(22] Defendant also contends that Mr.

Kuehn of the police officers lied about his

role in the Biebel murder in order to obtain

the $5,000 reward which was offered by the

vicum's daughter. Although such a reward

was offered, there is no evidence from

which an inference of misconduct can be

derived Also without merit is defendant's

argument that Mitchell should have been

arrested as an accessory to the crime.

Whether or not the State chooses to prose-

cute Mitchell is irrelevant to the disposition

of defendant's case.

Defendant makes a conclusiwnal state

ment that he was prejudiced by the intro

duction into evidence of the murder victim's

pectures, the shotgun taken from hus home,

and the “testimony” He offers no support

for the allegation and our review reveals

none.

Finally, defendant contends that a ver

dict should have been directed in his favor

al the close of the State's case, and that the

evidence was insufficent to support a con-

vietion, The evidence, if believed by the

jury, establishes that defendant contacted

Mitchell concerning the purchase of a gun,

which was delivered by Holman. The gun

was one of the items taken from the de

ceased’s home. Certain items stolen from

366 1

defense dows nol rae a reasonable doubt as

to defendant's guilt

[23,24] It ws for the tmer of fact w

determine the weight and sufficiency of the

evidence (People + Akis (1976), 63 Ill 2d

24), B47 NE 2d 733), and that determina-

Lion will not be reversed unless the evidence

is so improbable as lo create & Peasonable

doubt of defendant's guilt ( People v Yar

rough (1977). 67 Mi 2d 222, 10 lll Dee 213.

3o7 NE 2d 606) Prom our review of the

record, we find the evidence was more than

sufficient lo support @ murder conviction

It follows that the judge did not err in

denying defendant's motion for a directed

verdict

Having determined that no reversible er-

ror occurred during the guilt phase of de-

fendants trial, we next consider allegations

of error at the sentencing proceeding De-

fendant raiss a number of contentions con-

cerning the constitutionality of the death

penalty stalule which have been reselved

This court has determined that the statute

is not incompatible with article 1, section 11

of the Iinow Constitution ( People v Saale

(1983), 94 Ill 24 S27, 68 Ill Dec 935, 447

NE2d 193, People v Gaines (198)), 88

Ji) 24 S42, Se Ii) Dee 795, 430 N E.2d 1046),

thal the slatulory grant of discretion and

authont) to the prosecutor is proper, Peo

ple v. Szaty (1943), 4 Ill 2d 377, 68 Il

Dec 935, 44) NE2d 193, People v

Browm |) (1ysd), 79 Iil2d Ss, 3 Ili Dec

i el

757, 404 N BE 2d 18), People ex rel Carey v

Cousins (1979), 77 Ui2d $31, 84 Ill Dee 137,

397 N E20 BUY, cert denied (1960), 45 US

953, 100 8.Ct 1600 63 LEd.2d 788, that the

State need not prove, beyond a reasonable

doubt, that there are no mitigating facton

sufficient to preclude imposition of the

death penalty (People v. Free (1983), 4

lii2d 376, 69 IiDec 1, #7 N.E2d

218. see also People v Brownell (1980), 79

Ii 2d S08, 3s Ill Dee 757, 404 N.E2d 181),

and Unal the statule provides for adequate

revie™ Wo insure Unal sentences are not ar-

bitranl) imposed People v Kubat (1983),

4 Iil2d 437, 6 Ili Dee 80, 47 NE2d

27, People » Saabo (1983), $4 12d 827,

& Iii Dec 935, 447 NE2d 198, People

447 NORTH EASTERN REPORTER, 24 SERIES

¥. Brownell (1980), 79 1U.2d 508, 38 II)_Dee

757, M4 N E.2d 18)

Defendant next argues that the indict-

ment was insufficient to support a death

sentence because it failed to allege @ statu-

lory agyravaung factor In People v

Brow nel! (1980), 79 112d 508, 524, 8 Ill

Dec 757, 44 N E2d 181, it was held that

“lajn indictment’s allegations must be set

oul with such specificity of particulanty

that the accused is informed of the offense

with which he w charged and enabled to

prepare his defense and, further, that he is

protected against being later prosecuted for

the same crime ”

(25) Defendant, charged with one count

of murder, does not assert thal the neces-

sary elements of that emme were insuffi-

cently alleged in the indictment Since

“there uw only one offense of murder in

Iilinow, [and Unus) no distinction is made

between capital and non-<capital murder”,

People v Brownell (1980), 79 Il2d 508,

$24. & Iii Dec 757, 4 N E2d 18), People

» Kubet (1983), $4 2d 437, 6 Ili Dee.

&%, 47 NE 2d 193 defendant, when prop-

erly charged, ws protected from being

twice prosecuted for the same cnme The

agyravauing factors are nol necessary ele-

ments of the offense, and are relevant only

Ww # determination of the appropriate pun-

ishment Therefore, the real question con-

cerns defendant's knowledge Unat the death

penalty would be sought, and his ability to

adequately prepare a defense. Had the

State set forth in the indictment the aggra-

vating factors upon whuch it would rely,

police would not be an issue. We therefore

believe this procedure to be preferable.

When defendant raised this issue during

the tnal, the State responded:

“MR. STURGEON [Assistant State's

Attorney), For the record, | would indi-

cate that in response to « court order, an

order of the Court, for a bill of particu-

lars, the defendant prior to the com-

mencement of this trial was advised of

what the aggravating factors would be

and what [se ) we would be seeking the

death penalty, and so they would be ap

prised of it, which is the basis for what

_—7.

PEOPLE v. DAVIS Hl.

367

Clee os 47 % £26 383 (1 1 883)

they are asking for, so | dont see any

prejudice that would result from the fail-

ure to be in the indictment since they

were fully advised pror to tnal.

THE COURT: Anything else?

MR YOUNG [Defense Counsel}: No.”

[26,27] Defendant did not deny the

truth of the prosecutor's statement. Fur-

ther, Une bill of particulars requesting infor-

mation concerning the Slate's intent lo seek

the death penalty was filed om October 7,

1980, pmor to his tnal On October 16,

1980, he made a pretnal motion to declare

the death penalty statute unconstitutional.

Defendant does not allege that he was un-

aware of the aggravating factors upon

which the State would rely. For these rea-

sons, we find that he received sufficient

pretmal notice of the aggravating factors.

This w not, therefore, situation in which

the indictment either failed to specify ag-

gravauing factors or defendant received no

pretmal notice. Since defendant was in-

formed of the above facts, and has shown

NO prejudice as a result of the State's fail-

ure Wo specify aggravating faclors in the

indictment, we hold that the indictment

was sufficient upon which to predicate the

death penalty (Cf People vy. Gaines (191),

SB 12d W2, Se lil Dee 795, 400 NE 2d

1046 (pretmal notice of the State's intent to

seek the death penalty i not always re-

quired where the indictment apprised de-

fendant that he covid potentially be sen-

tenced to death).) Defendant appears to

recognize the shortcomings of his argument

since he merely urges (hat we adopt the

reasoning of the dissenting opinion in Peo

ple ex rel Carey v Cousins (1979), 77 Ill 2d

531, SM Il Dee 137, S97 NE2d 89, cert

denied (1980), #5 US. 953, 100 SCtu 1s,

63 L.Ed 2d 788, and the partial concurrence

and partial dissent in People vo Creer

(1980), 79 Li2d 103, 37 Ill Dee. 313, 402

N E26 3

[28 29) Defendant's next contentions

concern the sufficiency of the State's proof

With regard to the aggravating factors

During this stage of the sentencing hearing,

the State introduced into evidence certified

copies of two pmor indictments and murder

convictions. The documents indicated that

a Girvies L. Davis was convicted dor the

murders of John Ocertel and Frank Cash,

and the attempted murder of James Ost-

man. In response to an inquiry by the

prosecutor, an employee of the circuit

clerk's office testified that the certified cop-

ves represented convictions of the defend-

ant Defense counsel did not cross-examine

the witness as lo the basis for her knowl

edge. Nor did he move to strike her testy

mony for failure wo identify the defendant

However, he now alleges, as he did in a

moon made while the sentencing jury was

deliberating, that the State failed Wo estab-

lish that defendant w the same person

Named in the documenta He relies prmar-

ily on two appellate court cases for the

proposition that an idenucal name in a doc-

ument does not prove beyond a reasonable

doubt the idenuty of the defendant as that

jeron named in the document. Pevpile v.

Martin (1981), 97 || App.dd 704, 53 Lil App

109, 43 NEU 493, People v. Langdon

(1974), 73 ULApp dd sl, 29 Til Dee. S85, 392

N E.2d 142

It has teen held that, in addition to the

presumption which anses from the similan-

ty in names, independent proof must be

made that defendant is the same person

named in the certified records. (People v.

Casey (1948), 399 Lil 374, 378-79, 77 N Edd

S12) However, this court recently stated:

‘Rarlier cases in this court would ap

pear to preclude a judge from taking

judicial notice of the orders or decrees

entered in other cases in the court in

which he presules, (Citations) It has

heen repeatedly held that proof of pnor

convictions should be by means of certi-

fied copies of the record and identifica-

won of the defendant in the price case as

the same person. (Citations.} To the

extent that these and similar holdings

may be thought to create an inflexible

rule requiring formal proof of earlier

court records only by authenUcated or

certified copies of those records and proof

of wentity, they are incompauble with

considerations of judicial economy and ef-

ficiency essential to the disposition of

camioads Nor do such pro-

cedures provide any necessary or useful

safeguards W the defendants in cases

guch as this where the fact Unat the prvor

present<ia

consiciion Rad vocurted Ras never lew

Genied People » Davis (1976), 6 Wiad

157, 164, 2 Ill bee 572, 357 N E24 Tye

In the instant case, defendant did not

Gens the fact of h prmor convictions ofr

assert that he was not the same Girvies L

Dasis named in the documents Therefore

it is difficult to imagine hoe defendant

could have suffered an) prejudice as @ re

sult of the State's proof on the issue of

identit We adopt the general rule thal

ider of name gives mise W @ Pebullable

presump ior of went i) of permeeon Me

Pe pies Cheer (lysz), 93 lli2d 82, 90. 66

Ill Dee 316, 42 NE 2d 877, @ AmdJur ai

Evidence we Zs) (1967

(30) Defendant mext asserts that th

State failed wo pr that the pror murder

COnVICLIONS constituted aggravating factor

which the jury coud

determining whether &

properly consider if

impame the death

penalty He urges us to constrve the death

penalty slatule @ requiring thal, where

murder are unfeiated, ney must Peauil

from premeditated acts or, in the alterna:

lve, Une killings must be intentional Spe-

cifical'., he argues that there w no evidence

that the Cash and Oerte! murders resulted

from an intent to kill more Unan one person

or from separate premeditated acts The

relevant portion of section #1 provides

“(a) A person who kills an individual

without lawful justificauon commits

murder if, in performing Une acts which

Cause ne death

(1) He either intends w kill or do

great bodily harm to that individual or

another, or knows Unal such acts will

cause death to that individual or anoth-

er, or

(2) He knows Ural such acts creale a

strong probability of death or great

bodily harm W thal individual or anoth-

er, or

(3) He is atlempling or committing a

forcible felony other Uhan voluntary

mMansiaugnhler

447 NORTH EASTERN REPORTER, 24 SERIES

(b) Aggravating Factors. A defendant

who at the ume of the commission of the

offense has allained the age of 18 or

more and who has been found guilty of

murder ma) le sentenced Wo dealh if

. . . . . .

defendant has been convicted

(so OF more

n (a) of this Sectoon or

of the United States or

of any Stale which is substanually sim

(a) of this Section

reyardiess of whether the deaths oc

curred a Une result of the same act or

of several Pelaled or unrelated acts so

long as the deaths were the result of

either an intent to kill more han one

person or of separate premeditated acts

(Emphasis added) = Ii! Re

Stat 1977, ch 38, pars 9 Ma), (bx3)

At first glance, the italicized portion of

the Slatule would seem vo support defend-

an's interpretation However, for a num-

ber of reasons, we do not fee! that the

construction uryed represents the leguia-

tive intent Section 9 1(bm3) inmitually

Slates that a defendant (who attained the

age of 18 at the time of the offensc) may be

sentenced to death if he “has been convict-

ed of murdering two or more individuals

under subsection (a) of this Section” In

suteection (a), murder uw defined as an in-

tent wo kill or do great bodily harm, know!-

edge Unal the act creales a strong probabil

ty of death or great bodily harm, or death

results during the commussion of a forcible

felony other Uhan voluntary manslaughter

If we were to construe the italicized portion

of the statute as limiting the murder con-

vicuions upon which a death sentence could

be predicated, only those murders that fall

under subsection (a1), and require an in-

tent tw kill, would qualify to support a

death penalty. This would be the result

since murder, as defined in part of subsec-

on (a1), and in subsections (aX 2) and (3),

does not require either an intent Ww kill or

premeditation Consequently a defendant

could conceivably murder 10 people within

the meaning of these subsections and yet

never, according Ww defendant's interpreta-

3 ens

of murdering

indi\ duals

under sultaetlio

under an) law

lar Ww Suleccvhon

PEOPLE ¥

DAVIS Iii 369

Cue as 47 N £3638) (1h 18D,

vion, be eliynbic for the death penalty This

would be the resull even Unough defendant

knew his acts would resull in death or great

bextily harm Despite the language of the

statule, We cannol assume thal the legisla

ture intended to creale such an anomaly

To so interpret the slatule would substan-

tially undercut the apparent legisiative in-

tent that two or Mure conviclhons for mur-

der, falling within subsection (a), May sup

port @ death penalty

Further, as the State points oul, premed-

Lalion is Nol & recognized mental stale in

lilinow. The statute defining relevant

states of mind in cmmina! offenses refers

only Ww know ledge

negligence, and absolute lability (Ill Res

Stat 1977, ch 3s, pam 4-4, 45, 4-6, 4-7

4-9) Consequentl), there is no definition

of murder which encompasses the concept

f premeditation (see Ill Rey Stat 1977, ch

S, par 9 lie)), and Whe jury & Rever in

structed thereon For this reason, the legis

lature 1 not intended hal only

unrelated murders which result from pre-

meditated acls ma) support a death sen

lence

invent Peck iessness

Cue i have

We do agree wilt defendant that the

legisiative language 8 Nol Meaningiess

We also believe thal some mental sla bs

required in order W impose the death penal-

ty House Bill 10, which was the bill to

enact @ statute for the impusition of the

death penalty, omginally provided that a

defendant could be sentenced to death if he

was convicted of murdemng two or more

persons, regardiess of whether the deaths

occurred as a result of the same act or of

several related or unrelated acts. The omg-

inal bill was amended by Senate amend-

ment No 2, which added the phrase “so

long as the deaths were the result of either

An intent to kill more than one person or of

separate premeditated acts.” As amended,

House Bill 10 was passed by both houses,

approved by the Governor, and enacted as

Public Act 8-26 (1977 Ili.Laws 71). This

leguslative history indicates that some

Meaning is to be attmbuted to the added

phrase The legislative intent may best be

discerned by a consideration of the Senate

and House debates.

After the omginal bill had passed both

houses, a subsequent vole was Laken on (he

adoption of the Senate amendment Sena-

tor Knuppel, desembing the amendment,

slated

“House Bill 10 a» amended provides in

paragraph three, thereof, Unal the de

fendant when the defendant has been

convicted of murdering two or more ind:-

viduals, this us without reference W what

his intent was or how it happened Now,

you've got & possibility of three situa-

tions You got ihe possi bilily of a man

who kills two people wilh two separate

premeditated acts, you've got the situa.

lion where @ man intends Ww kill

people as a result of one premedilaed

act, or you've got the case of an individu-

al who intends to kill one person bul as a

result of his act, kills two Now, the

person who intends to kill only one person

and we have a recent case in Carthage or

over in that vicinity where a genUeman

muniered a mother, an expectant mother,

and there was a seven month old child in

her womb That person actua'ly, I'm

sure. must have intended to kill on y one

person, or it's possible that | could aim

a a revolver at someone that | intend-

ed w kill planned to kill and as «

result of that shot, killed some innocent

person who walked between there Now,

the result would be that I had one

premeditated intention to kill one person,

but |, in fact, killed two. Now, | think

that person is entitled to some kind of

of clemency because you've got the felony

provisions where if he kills someone in

the act of a felony, he still may be he

still may be guilty of @ crime which

would be punishable by death, but if he

intends only to kill one person and acc

dentally kills two, | say his crime is no

more heinous than the person who

tends intends to kill one person and

actually kills one person. I think this

amendment would strengthen the bil! be-

cause it specifically now provides, so long

as the deaths were the result of either an

intent to kill two kill more than one

person or of separate premeditated acts

lwo

370 bh

It would take out of this classification

thal jaron eho who intended W hill

one bul tAruugh inadvertence Ailied (wu

(Emphasis added

Ir propusing ec ao pion of this amend-

menl, Representative Kosinsk: stated

Amendment & 2

tient

™ nals is somese hal

ome nted in as much as it elim

nutes accidenta/! death of a second person

romorm in a muluple murder | concur

with that Amendment ° °°” (Em-

phasis added

Sev also Pinal Legislative Synopsis and Di-

x Y’, Sti hey Ses BULh Gen Assem

SAmemi No 2

of ihe

+ peePliets

yuolalior ridicale Une Dill was amended U

alae

ure that @ defendant would not suffer

» where & Mulliple Munter

is an accidental consequence of a single act

In olher words, ne physical act leading W a

Multiple Murder must be accompanied by 8

Culpable Mental Stale wm lo each murder A

Gefendant Mas fol Peceive Une dealh penal:

th for related. multiple murder where

more Wan Om person Was econdenlally

killed Thus the intent of the amendment

was W Bddress the problem of Mul lipie

murders commilled at the same Ume

{31} Im the instant case, defendant did

not receive the death penalty because of his

parucipalion in a mulliple-murder siluauon

He was convicted of Unree separate and

unrelated murders In the Cash murder

case, he was convicted after Une jury had

been instructed solely on an intent-to-kill

theory In the Oertel case, the jury was

instructed Ww find defendant guilty if be (or

& person for whom he was responsibie) in-

tended w kill or do great bodily harm, or

knew fis act would cause death or greal

bodily harm In Uhe case at bar, the jury

Was instructed as tl each murder theory,

and it us therefore unclear upon which theo

ry they found defendant guilty. We hold in

Ulis Case Unal where, as here, defendant is

convicted of two or more murders resulung

from intentional or knowing acts, the death

penally ma) properly be imposed

447 NOKTH EASTEKN REPORTER, 24 SERIES

(32,33) Defendant further contends

thal he was dened a fair sentencing hear-

ing because the prosecutor misstated the

law with respect to defendant's eligibility

for the death penalty. In his remarks to

the senlencing jury, the prosecutor stated

that, “under the Illinois law, if you killed

and are convicted of killing two or more

persons, then it is @ case Uhat properly fits

the death penalty where jurors should con-

sider mitigating and aggravating circum-

stances @ W Unat individual” Defendant

did not object Lo Unis statement, and there-

fore failed W properly preserve the issue for

review (People v Lewis (1981), 8 Il2d

12. 149, Sw 1 Dee 895, 480 NE2d 1346

(objections Wo pruseculor’s argument not

raised are waived)) Further, we find that

the comment did not constitute error The

pruseculor was merely defining the general

procedure empkyed in @ bifurcated sentenc-

ing Nearing

'H-36}) Defendant alleges Uhat he is en-

tilled lo a new sentencing heamng because

he was prejudwed by evidence thal a mur-

der victim's wife delivered a baby the day

afver his death This evidence was elicited

through the testimony of Mr. Ostman, an

allempted-murder victim, and was brefly

referred to in Une prosecutor's closing argu-

ment Defendant asserts that he objected

to this evidence, bul the basis for the objec-

tion ws not disclused in the record The

record does reveal thal, after the witness

Stated the child's date of birth, defense

counse! asked to approach the bench A

discussion was held off the record, follow-

ing whch the judge remarked “I'l allow

it Go ahead.” We will assume thal, as the

above exchange implies, a proper objection

was registered

We agree with defendant that comments

and testimony regarding s deceased's fam:-

ly are generally improper. (People v. Ber-

nette (1964), 30 Lil2d $59, 197 N.E2d 436)

However, the evidence in question was pot

elicited durng the guilt or innocence phase

of the tnal. Nor was it introduced dumng

the furst phase of the sentencing heanng,

where the State must establish the exist-

ence of an aggravating factor in order to

PEOPLE v. DAYIs Il

371

Cre os 47 S 38 353 (1D,

qualify defendant for the death penal)

The testimony was given in the second

phase of the sentencing proceeding, in

which the ordinary Pules controlling the ac-

missibility of evidence do not app!)

In People v Pree (1983), #4 12d 37s, &

li Dec 1, &7 NE2d 2is, as in Ue

instant case, the State introduced testimon)

regarding the deceased's family im the

second phase of the sentencing hearing A

witness deserted the emotional effects of

the vicum's death on the family, and stated

that the family moved because It Was UN-

able to enter the oid house, Wal the Rus-

band felt “completely shut out”, nat the

daughter would have no mother lo relate

Ww as they Were growing up thal the vic-

tums mother was depressed anc Wonk tran:

quilizers, and that one of the victims whk

survived no longer trusted people The

court, after noting that defendant failed &

object Ww this umony, went on W empha-

size that the evidence was introduced in the

second phase of the sentencing heanng

Defendant's death sentence was upheld

We decline to depart from the reasoning

adopted in Free

Further, we cannot say this evidence

would have influenced the jury s verdict

The jury was aware that defendant had

three murder convictions (for the Bietel,

Oerte! and Cash murders), an atltempted-

murder conviction, that he was convicted of

burglary, of battery, and of a gun-violation

charge In view of this significant criminal

history, it is not reasonable to believe that

the jury, in voting for the death penalty,

was influenced by the statements in ques

ton

In a related contenuon defendant argues

that, pursuant w Henry v. Wainwrght (Sth

Cir 1981), 661 F.2d 56, cert. allowed (1982),

457 US ——, 102 SCt Be, T LEA 2d

1326, it w improper for a jury consider

nonstatutory aggravating factors (Henry

Was remanded to the court of appeals for

further consideration in hght of Engle v

Isaac (1982), 456 US 107, 102 S.Cv. 1558, 71

L Ed 2d 783.) We have recently determined

that Henry is inapplicable “because our

Statutory procedure is different from that

of Florda’s death penalty law, under which

the defendant in Henry was sentenced”

People v Free (1983), 94 Ill 2d 378, 427, 69

Ili Dec 1, 25, 47 N.E2¢ 218, 242

(37] Defendant further contends thal he

was denied a fair sentencing hearing by the

intruductson into evidence of a videotaped

conversation between Une defendant and

State's Attorney Kuehn Specifically, de

fendant argues (nal lhe Lape #as inadmiss

bh because it contained evidence of a pice

discussion, it violated defendant's mgnht w

silence and to tw free from eelf-incnmina-

tion, and it violated his mght to confronta-

tion under Bruton + United States (19%),

391 US 123, & SCt 1620, @ LEd 2d 476

We first addrms defendants contention

concerning the allege? plea discussion = Su-

pre tt Court Rule wal) prov ides

“Lf a prea discusson does not result in &

plea of guilty, or if a plea of guilty not

accepted of » withdrawn, or if judgment

on a plea of guilly & reversed on direct or

collateral reves, neither the plea Giscus

sion nor any resullung agreement, plea, or

judgment shall be admussible against the

defendant in any emminal proceeding ~

73 Wiad R Wal)

The record indicates that the discussion in

question was imitated by Mr Kuehn, the

State's Attorney, for the purpose of ques-

tioning defendant about various crimes, in-

cluding the Biebel, Mueller and Sepmeyer

murders Defendant was informed of hus

mght to have his counse! present, but he

stated that he did not mind talking without

his attorney After being told his consutu-

tional mghts, defendant indicated that be

had no personal knowledge of the crimes,

and had learned about them from other

people, particularly Ricky Holman Afvr

further questioning, tne following exchange

wok place

“MR DAVIS Hey, like, if I plead to

all this, what would happen to me

though” That's what I'd like to know.

MR KUEHN: Well, if you plead wo all

these cmmes, you would be pleading to

more than one homucide, or the responsi-

372 = Oi 447 NORTH EASTEKN REPORTER, 24 SERIES

bility for it If you were the active par-

Uicipant, in other words if you were the

individual who actually did the shouting

youd be subject Wo the capital punish

ment The electric chair) However, you

do hase W te Me atlive participant

receive Ute death penails In other

words you Nave Ww be the person who did

tte stating

ME DAVIS Onay If 1 got, if | plead

tu all the and | got the death penalty

would the, send tm on, would they send

me on and let me go ahead and do it”

MRK AURHN Well, w that what you

want

Mk DAVIS bo | have Ww wail”

Yeah. I [s« ] rather have ut, | would rath-

er have i lhe thal than wait That's

what | want yeah, right

MK RKUEHN 1 don't understand

sume thing Mr Davis ] don't under-

stand how you cuuld detail all them

things and rememter all this from other

peopl, and even if you did, why” Why

would you have gven all these stale-

ments implicating youruif afler yuu

hnew that they could be used against

you” Huh”

MRK DAVIS | don't know

MR KUEHN Wh)?

MR DAVIS Like I said, | (inaudible)

I'm, you know, willing to pay for what |

done Like those guns, you know, [i}f

they were going lo give me the chair or

something, I [would) go on with it—go on

and send me on down, let me get it over

with I don't want to wait or nothing

Nos [sic }, that 1 would plead to all this if

that would happen, but if that don’t hap

pen then, no, I'm not going to plead to it

And that’s just it. Now, if that could be

arranged in some kind of way, everything

would be al! mght

MR KUEHN Well, 1 don’t under-

stand | don't understand you're saying

In one sentence that you just heard ths

about other people, from other people,

that you didn't really participate in any

of Unese crimes thal you've given state-

ments on And then in the next, you say,

but if you can arrange it that | can get

Une death penalty quickly, I'll plead to it

If you duin’t do them, why would you

want lo plead wo it?

MR DAVIS. To get out

MRK DAVIS. Yeah, [I was at one home

invasion) But there was nobudy killed in

tm home | was at See, like | said, like |

sand if things can be arranged like 1] said

everything will be all right. But 1 don’t

want Wo te situng, I don't want wo be

waiting | just want W go ahead and get

itoover with

MR KUEHN Let me tell you some

thing, Mr Davis I'll do everything | can

Ww arrange that for you To see that you

are executed promptly and efficiently,

but I only want Ww do that if you're a

murderer Are you a murderer”

MRK DAVIS Yeah, I'm a murderer

MK KUEHN. Is Unat the truth?

MK DAVIS Yeah, that’s the truth

MRK KUEHN Well, now convince me

Unal that's the truth Tell me about each

one of Unese like you told the police |

don't want W send an innocent man Ww his

death Do you understand’

MK DAVIS Yes, sir If I can get

some papers that I can sign saying that |

will be destroyed after | get through

talking. I'll talk, I'l give you, I'll tell you

everything | mean everything | mean

everything”

Defendant sutsequently indicated that he

wanted the State to destroy him, and Mr.

Kuehn responded that, as State's Attorney,

it was his duty to prosecute cases. He then

Blaled

“MR KUEHN: Probably from beng

in Ube jail, you realize I've convicted Mr.

Jones, Mr. Tiller and Mr. Bush They're

all looking at the death penalty. Eugene

Walker has already received thal sem

tence out of this jurisdiction. I'm telling

you, es the State's Attorney, that if you

are a murderer, if you can convince me

that you're telling the truth that you are

involved in all of these crimes, | give you

my personal guarantee, Mr. Daves, that

PEOPLE v. DAVIS i

373

Cae os 47 N-£.26 35) (1 1883)

I'll do everything | can W see you down

at Menard and in the electric chair and

destroyed &s 800n as possibile, but I'm not

going W give you any favors on thal

guarantee until | hear you explain to me

why | should seek that death penalty

Why you are @ murderer

MR DAVIS Okay, lke, okay, then

Inaudible) After I] give you all the in-

formation atout how long would it taae”

MR KUEHN A few months

MR DAVIS That's like suffering

Knowing youre going W do it, knowing

you'll get it, you know, waiting, Caust,

that's the hang of waiting I don’t want

to wait for nothing And I ain't wailing

| wasn't waiting when | was doing that

stuff out there on the street Why

should J wait now™

Defendant

later stated that he had not told

the truth up to this point He asked if it

would Lake @& Coupe of months before hk

could be executed, to which Mr Kuehn re-

sponded

“MR KUEHN I can't make you any

promises, you understand” I| can't man

you any promises | don't want you w&

give Me any Slalement as @ result of

some promise even if it's @ unique prom-

ise that I'll try W see you receive the

death penalty That's an odd request of

a man But | can't give you any prom-

Do you want W tell me or explain

something w me? Do you want Wo ex-

plain about these slalemenu? Why

would you tell the police that you were at

all these places? Do you want to tell me

that, or do you want to tell—go through

the details and convince me of the fact

that you were telling them the truth’

Do you want to talk o me at all? | want

to do whatever you want tw do mght

now.”

ises

Defendant immediately indicated that he

did not wish to talk anymore. Mr. Kuehn

then asked why he would make the state-

ments and defendant stated that he was

“ured of living” Subsequently, however,

he claimed that his previous statements ac-

curately reflected what had happened.

It ws certainly questionable whether the

quoted exchange can be fairly characterized

as a plea discussion The prosecutor obvi-

ously lacks authonty to guarantee defend-

ant a prompt execution However, even

assuming the conversation was pica related,

we do not beleve that evidence of this

discussion consututed error at this stage of

the pruceedings

[34] In People » Hill (190), Te Til24

465, 472, 36 Il) Dec 676, 401 N E2d 517, this

court determined thal the purpose underly-

ing Rule 402/f) is to insure “that plea dis-

cussions may be conducted in an alm

sphere of candor, free of Unc risk Unal slale~

ments made during negotations will be

used as evidence of guilt” (Emphasis add-

ei) Evidence of plea discussions could

have « ” ‘devastating’ effect” upon the jury

(7™ I2d 465, 474, 3% Ii Dec 676, 401

N E-2d 517), because it may well infer de-

fendant's guilt from the fact that he plead-

ed, of allempted wo plead, guilty However,

in the instant case, the plea discussion was

not used as evidence of guilt Defendant's

guilt had already been established, in the

guilt phase of his tal, and therefore the

purpose for the rule w no longer applicable

(See People vo Greer (1980), 79 12d 163,

114-19, 37 Ill Dee 313, 402 N.E.2d 23 (evi

dence of plea discussion ws proper where

commussion of alleged act is not disputed).)

Further, the tape was not introduced in the

first stage of the sentencing hearing, dur-

ing which the State must prove an aggra-

vating factor upon which the death penalty

could be imposed. There, we would agree

that defendant's guilt of a necessary aggra-

vating factor should not be determined by

the fact that be admitted guilt thereto in

the course of plea discussions. Here, how-

ever, the Lape was introduced into evidence

during tne second phase of the sentencing

hearing, when defendant's eligibility for the

death penalty had already been determined.

(39, 40] Section -1(e) (Ill Rev Stat. 1977,

ch. 38, par 9 1(e)) allows for the introduc-

tion of evidence during the second phase of

the sentencing hearing which would not be

admissible during the guilt phase of trial.

In ruling on the admissibility of evidence,

374

ma} conduct a broad inquiry

uniimiled either as to the

kind of information he may consider, or Lhe

may come'” (People

v La Pointe (1981), B Il2d 482, 496, 59

59, 431 N E2d HH, quoting Roterts

Une jucgt

. “ee * largely

source from which it

’ '

sii Len

» United States (198v), 45 US. 552, 556,

lwo $ 135, 1362, 63 LEd2d 622, 62,

” 7 New York (1949), 37 US Wl,

247. 6 SCt 1079, 1083, 93 LEd 1337,

1342) The factors controlling admissibility

i reliability of the prof-

fer t This determination hes

within the Giscre lion of the tnmal judge

2 Pe Free (1953), $4 11\.2d 375, 69

lil Dee 1, 47 NE 2d 218

[4)) It ws further that the

inaimiss ble as evidence be-

t violated defendants mgnht Wo silence

{ree ee! f-incmminauon

defendant asseru thal he was

contended

videclaj» ¥e

and Ww tex from

subjected to further questioning after in-

voking hi mght wo remain silent There us

no question that if an “individual indicates

in amy manner, at any Ume pmor Ww or

during questioning, thal he wishes Wo re-

the inlerrogalon must cease

At this point he has shown Unat he intends

Wo exercise his Fifth Amendment pnvuege,

any) Statement taken after Une person in-

vokes his pmvilege cannot be other Unan the

product of compulsion, subtle or otherwise ~

Miranda » Anzona (1966), S4 US 436,

473-74, 8% SCu 1602, 1627-2, 16 LEd 2d

644. 72). we. eg, Michigan v. Masicy

(1975), 423 US 96, 96 SCt 821, 4 LEd 2a

313

At the beginning of the taped discussion,

defendant was informed of his consutuuon-

al mghts, including the right to have coun-

se! present dumng the quesuoning and the

mght to remain silent He stated that he

did not mind talking without his lawyer

present and indicated a willingness to dis-

cuss his pmor statements. As noted previ

ously, after the prosecutor informed de-

fendant that he could not make any prom-

wes regarding the request for a prompt

execution, defendant stated that he did not

wish Wo talk anymore. The prosecutor then

asked defendant if he realized that evidence

main sient

447 NORTH EASTERN REPORTER, 24 SERIES

was being developed based on the pror

written statements and if he would like to

explain his defense. Defendant indicated

that he made the statements because he

was “ured of living,” and that he was not

threatened or promised anything by anyone

to make those statements. Subsequently,

the following exchange took place

“MR. KUEHN. I'm at this point trying

to understand, but you indicated that you

don't really want to talk anymore. Is

that your wish?

MR DAVIS

MR KUEHN

you anymore

MR DAVIS. Like I gave them state

ments” That's the way it happened

Just the way | gave my statement”

Sergeant Lay, who was present at the

questioning, asked defendant to tell the

truth, and Mr Kuehn stated that he was

willing to listen, “but everytime we get

down to talking about it, I don't know

whether you really want to talk about it”

After further bmef questioning, defendant

again stated that he did not wish to talk

anymore Mr. Kuehn repled that he would

have defendant returned to jail and would

not conunue the conversation. However, as

defendant was preparing to leave, the pros

ecutor asked if defendant would mind being

asked one more question Defendant re

sponded: “Go ahead.” In reply to several

further inquiries, defendant stated that he

knew Lawrence and Harms, that they were

bis cellmates, that he knew they were con

victed for a crime in which defendant impli-

cated himself, and that he was not threal-

ened to confess to that crime. Mr. Kuelin

then asked: “Well, then why did you con-

fess to that? Did you do that one” De

fendant replied: “Like you say, I'll get beck

with you in the next day or two.” The

conversation was then terminated

We agree with defendant that his right

to remain silent was not scrupulously hon-

ored. He was subjected to questioning af-

ter he indicated a desire to cease the discus

sion. It has recently been held that, even in

the sentencing hearing, a defendant's fur

damental constitutional rights cannot be

(Inaudible)

I'm not going to talk to

PEOPLE +» DAYIs Hi

375

Cae ws 47 § 24 4) me 8D

abrogated (People vy Szabo (1983) ow)

12d 327, 6 IiDee 935, “7 NEW

193) Nevertheless, afver a careful review

of the conversalion in question, we find

that it was nol reversible error As poled

previously the jury, dumng the guill phase

of the tmal, was already familiar wilh Un

statements defendant made regarding Un

murders, as they were read in full by tne

prosecutor During the layed discussion

there were only vague references W add

tional crimes, except one offense for which

Lawrence and Harris were convicted = Thx

jury was previously aware, Gumng ihe guill

phase of defendant's tral, of thw incident

because it was argued by defense couns

in an effort to indicale that defendant con

fessed W emmMes in which he Was fol in-

volved Although defendant did stau thal

he Wook part in burglanes dumng which no

one was killed, the jury heard testimony

establishing that he was convicted for bur:

giary With respect Wo defendants state

ment that he was “tured of living” we

cannot assume, as defendant urges, hal

this would influence Une jury)» decison a

lo whether or not lo impuse the Gealh pen-

alty In fact, defens counse! referred Ww

defendant's desire to dw as & miligaling

circumstance, aaserting that it indicaled Mm

was emotionally disturted Finally, al-

though defendant did admit dumng the dis-

cussion that the statements he gave the

police were Urve, he did so immediately

after Une prosecutor agreed nol W Lalk wilh

him anymore

While defendant does not cite Estelle v

Smith (1981), 451 US 454, 101 SCt 1866,

68 L.Ed.2d 359, with reference to thus con-

tention, we feel that it should be distin-

guished from the circumstances in Ue in-

stant case. In Estelle, the Supreme Court

Vacated a death sentence because defend-

ant’s fifth amendment nghu were violated

during the sentencing hearing At that

ume, a doctor who had conducted a pretna!

psychiatric examiration of the defendant

testified that, from his conversauion with

defendant, he concluded that defendant was

& severe sociopath and would commit fur-

ther criminal! acts if given an opportunity to

do so. Under the applicable Texas law, an

wsue for the jury lo determine in deciding

the propmety of the death sentence is th

probatality that defendant would commit

future erminal acts of violence The court

held that defendant's fifth amendment

mghis were violaled because, pror Wo the

poychatre examnalon, he was not in

formed of hu mght lo remain silent and

that Une slatements could be used against

him =6oThe evidence was spparenUy not

presented lo the jury dumng Une guilt phax

of defendant's tral Thus, the possibility

that Uno “new” evidence could prejudice

the defendant wo chear It was directly rele-

van W an aggravating factor necessary for

the impusitwn of Une death penalty

In contrast. the defendant here was fully

apprised of his consulubona nights That

he was aware he could refum Wo answer

certain questions w clear because he did so

twice dunng Uy conversavion Further, no

new evidence: was elicited which we believe

was of @ prejudicially incmminaling nature

for purposes of sentencing See People v

Black (1972), 52 L2d 544, 556, Ze N Ed

876. cert dened (1973), 41 US 967, 9

SCt 2155, % LEd 2d 689 (fourth amend-

ment vwishon deemed harmiess where

Lainted evidence could have no “impact of

consequence upon the jury when viewed

against Une other evidence”).

Defendant further asserts that the video

Lape was improperly admitted into evidence

because it violated his mght to confronta-

ton At ome point dumng defendant's

taped discussion with Mr. Kuehn, the prose-

cutor informed him that Holman stated

that defendani “did the shooting” Because

defendant could not confront Holman on

this msve, he alleges that the rule estab

hahed in Bruton v. United States (1968), 39)

US 12, SC. 162), D LEd.24 476, was

vwlaled

In Bruton, defendants Evans and Bruton

were jointly ined on a Federal charge of

armed postal robbery. A witness testified

that Evans confessed that he and defendant

committed the robbery. Because Evans did

nol lestify, he was not subject to cross-ex-

amination by Bruton In reversing Bru-

ton's conviction, the court held thal « code-

376 1! “i

fendants confession, implicaung the de-

fendant, is not admissible in evidence where

the codefendant does not tase the sland

and w not subject Ww cross-¢ kami navon

This situation is not analogous to the

instant cam Here, defendant and Holman

codefendants in @ joint tal, and

the evidence was not used at inal W prove

{ (See People v. Wright

defendants gv \

(1974), $6 Wi 2d Ses, Shs, N.E.2d 537

were not

(Bruton » mapposie where the statement

was not made by @ codefendant in & joint

trial)) Further, we are unaware of any

iman would have been una-

vailable wo testify Defendant could have

the stand for purposes of

russ+ 1aminalion if he so Gesured

reason why Hi

Called P

n le noted that he video

\ vid age

aja was intrudu ed ino evidence dunng

the second pha of Lhe sentencing hearing

AL that time, the only wave be deler-

mined was whether there were miligaung

ufficven’ & precivde Im yjsusi-

The defens

rele Cam W miligal-

that provided by defend

rea! point of her usti-

that, uf defendant

Wo pmson instead of death,

nim Under these circum-

bay thal the jury would

have improper!) considered the Videotape &

as W oulweigh olnerwise significant mili-

gating factors

circumstances 5

yf tne

presented nu es mons

tor jealh pf fa \y

ing factor except

ants wife The om)

mon, we Ww indicate

were sentenced

sm ’OV a visit

slances, ¥¢ cannot

Dunng the prosecutors closing argument

lo the sentencing jury, be slated

“(Whether or not tus defendant actually

receives the death penalty, won't be in your

hands. This decision of whether you're go

ing lo recommend he receive it is” De

fendant alleges that this remark ws either an

improper reference appellale meview or &

misstatement of the law, either of which

denied hum a fair sentencing hearing

[42] Defendant did not object to this

siaternent Failure w object to the adm

sion of evidence, even in the context of «

death case, generally precludes review of

the issue on appeal (See People v. Lewis

(1981), 88 12d 129, 149, 58 1M Dee. 895, 430

N E24 1346, People v. Carlson (1980), 9

NORTH EASTERN REPORTER, 24 SERIES

12d S64, 575-76, 38 ll. Dec. 809, 404

N.E24 233) In addition, the jury was

clearly instructed Unat its decision was bind-

ing upon Une judge Defense counsel, dur-

ing closing argument, also emphasized the

{act Unat any decuson the jury made would

be final

[43) Defendant further contends thal he

was dened due process at the senlenang

hearing when Une court refused give an

instruction lisung nonstatulory muligaung

factors for the jury consider Speci fical-

ly, defendant requested that tne jury be

instructed as follows

“Mitigating factors include, bul are not

limited to, the following circumstances

1 The defendant was not personally

present during Une commission of the act

or acts causing death,

2 The murdered individuals were not

actually killed by tne defendant,

3 The defendant's criminal conduct

was induced or facilitated by someone

other than the defendant.

If. from your consideravion of the evr

dence, you find Unat any of the above

mitigating factors are present in thus

case. of that any other miligating factors

are present in this case, then you should

consider such factors in determining

whether to recommend the imposilion of

the ceath sentence.”

The instrucuon was refused on the

grounds that these factors were pot specifi

cally listed as miugauing carcumstances in

the statute We bebeve the tral judge's

reason for refusing Uhe instruction was i

proper As the Supreme Court stated in

Lockett v. Ohio (1978), 488 U.S. 586, 4,

2964-65, 57 LEd2d 973, 990:

sentence less than death.”

PEOPLE v. DAVIS Ii)

377

Cire os 47 8.0.26 353 (1 1885)

Here, however, factor No 1} of the in-

struction was ectually given Wo Une jury

With regard to factor No 2, we find that

this instruction was overly broad The evi

dence indicated that defendant did actually

kill one of the murder victims With re-

gard w facwor No @. there is no evidence in

the record W support it

Further. the Locket! court held only that

a defendant cannot & precluded from in-

evudence any relevant mili

Because the Ofio statule in

aiowed considefation of sj"

tralucing ints

gating factor

que stion Onis

c if mitigating circums lances the cuourt

held that if ¥e unconstitutional In th

case tafore us, the Uriel judge Clearly indi

that We jury Bae not limited Ww @

of the slatulor) mitigating

He imstructed the jury, in

Caled

considetatior

circumstlafces

part ~ fuliuws

“In your deliterations in this stage of Une

hearing. you shell co neuler any agyrayat-

ing and any miuigating factors which an

relevant lo We imposition of the death

penalty

Mitigating factors are those facts or

circumstances which provide Peasons for

imposing @ sentence less than the death

penalty Mit gating factors may incluck

1 The defendant ha no significant

history of prior criminality,

2 The murder was committed while

the defendant was under the influence of

extreme mental or emotional disturbance,

although not such as W constilule a de-

fense WO prosecution,

3 The murdered individual was @ par-

Ucipant in the defendant's homicidal con-

duct or consented to the homicidal act.

4 The defendant acted under the

compulsion of threat or menace of the

imminent inflicuon of death or great bod-

ily harm,

5 The defendant was not personally

present dumng commission of the act or

acts causing death,

6 Any other facts or circumstances

that provide reasons for imposing less

than the death penalty” (Emphasis add-

ed )

We have held that where the instruction

requires the jury Ww consider all milugating

factors, the dictates of Lockett v. Ohio

(197s), 438 US Sab, 98 SCt 4, 57

L.Ed 2d 973, are satisfied People v. Pree

(1983), @4 INl.2d 878, 420, @ Ili Dec 1,

21, 447 N E.2d 218, 238

{44} Defendant's next allegation of er-

ror concerns a tna! court ruling that al-

lowed the State lo present both closing and

rebuttal argument dunmng the sentencing

hearing He urges that this was error since

the prosecution, during the second stage of

the sentencing heanng, no longer had an)

burden of proof This issue was recently

rewived advermely w the defendant in Peo

ple v Kubut (1980), 94 Ill 2d 437, 487-489,

6 IiiDec 30, 52-53, 47 NE2d 27,

29 270

While this case has been under advise

ment, the United States Supreme Count

filed an opimon in Enmund wv Florida

(19e2), 45" US ——, 102 SCt 336s, 75

LEd 211140 Defendant contends that the

Enmund decision precludes imposition of

the death penalty in Uhe instant case We

disagree

In Enmund, Wwo people were shot to

death by Enmund's codefendanus dunng

the course of # robbery Enmund’s partic)

pation in the offense was that he drove the

getaway car He was not present at the

scene of the crime On the basis of this

limited involvement, he was convicted of

first<legree murder and sentenced Ww death

under the felony-murder portion of the

Florida statute In reversing the death

penalty, @ majority of the Supreme Court

held

“(It is for us ulumately to judge whether

the Eighth Amendment permits imposi-

tion of the death penalty on one such as

Enmund who aids and abet a felony in

the course of which # murder s commit-

ted by others but who does not himself

kill, attempt to kill, or intend that «

killing take place or that lethal! force will

be employed. We have concluded, along

with most legislatures and jures, that it

does not.” (458 US ——, ——, 1@

SCt 3368, 3376-77, 73 LEd2d 1140,

1151)

375 bh

The court went on W slate thal We sen-

tence had W be reversed “| byecaus Lm

Florida Supreme Court affirmed the death

penalty ° * * in the atnence of proof that

Enmund killed of attempted Ww kill

reyar jiess of whether Enmund intended or

and

contemplated thal life would be Laken chaiag ca

(Emphasis adked) #2 US. ——,

102 S.Ct 3G6*, 3379, 73 L.Bab2d 1140 ll

We find the circumstances in Une instant

cam from those if

Enmund In thw Came, Une defendant did

not receive the Gealh penalty for hus paruci

chuariy G sLingruishable

pation in @ felony, dumng the cours of

which @ Murder ta fianeousiy OCC sfted

The aggravating factor upon which the

death penall) was sougn! was that defend

ant had teen convicted of murdering two or

more peopi As pres iusly noted, in Un

Cash cam defendant eas Clearly con) od

an inte nt-lire theory), a thal wa Pr

only murder Uheory upon whi mh the jury

“a ructe A different jury found de

‘ gu fur Oerte! murder on Ue

rrounds that he (or @ person for whom he

was Posie either intended to bill of

Jo great tant harn rhnew Ris att ould

caum death or great taatily harm = In the

instant cam, Me jury Be nstructed as Ww

all theumes of murder It is therefore uf

theor, they found defend-

However, ev returned &

gully based on felony murder, and

although the thal de

fendant was not the “tnggerman,” Enmund

is inapplicable In the instant case, by de

fendant’s own admission, he was present

during the course of the burglary. Indeed,

defendant stated that while his codefendant

shot the victim, he was carrying sWien

jterms out to his car Further, defendant

certainly had reason lo contemplate thal &

life would be taken, or that lethal force

would be employed As previously noted,

defendant confessed lo partcipating in the

Mueller murder This killing occurred be-

fore the murder which w the subject of the

instant case Defendant stated thal the

victim was shot by Holman while defendant

was carrying stolen property his car In

view of the similamty in circumstances, the

jury

verdict

evidence indicates

447 NORTH EASTERN REPORTER, 24 SERIES

conclusion is inescapable that defendant

must have anucialed the killing of the

victim in Une instant Case

(45) As the Supreme Court inumated in

Enmund, the death penalty may be unposed

on « defendant who does not himaelf mill “u

the likelihood of @ killing in the course of a

[felony] were so substantia! that one should

share the blame for the killing if he some-

how parlicipaled in the felony.” (458 US

, 102 S Ct 336s, 3378, 73 L.Ed. 2d

1}40. 1153.) This ws just such @ case, and we

hold that Enmund does not preclude imposi-

tion of the death penalty

Also distingruishable from the instant case

is this court's recent opinion in People v

Tilier (192), 94 Ill 2d 303, 68 Il] Dee 916,

447 NE2d 174 There defendant's death

sentence was reversed in light of Enmund

However. in Tiller, the evidence indicated

that defendant was not present when his

cudefendant murdered one of the two vic-

urs Here defendant was present and it is

Clear Unal he must have contem plated thal

etna! force would be employed by Ruchard

Holman Finally, the defendant in Tiller

war convicted of two related murders. The

deaths oecurred at virtually Une same time,

in Lhe same place, and arose out of the same

In our case, the defendant was

convicted of three separate murders. The

Cash conviction resulted from an intent lo

kill. and there the evidence indicated de

fendant was the “Uniggerman.”

In defendant's pro se bref, he raises two

additional contenuons regarding the sen-

Lencing proceeding He argues Unat hus

nghts were “totally violated by the Court

and State,” and that the videotapes intro

duced during Une sentencing hearing were

altered by the State. We find no evidence

in support of this allegation, and defendant

points lo none

He also contends that his eighth amend-

ment mghis were violated because he re

ceived a death sentence instead of pmson

term He states that the prosecutor of-

fered him « plea bargain in which he would

receive 80 years’ imprisonment “for all the

[ermes) they had Defendant (charged)

incident

PEOPLE v. DAVIS Ii

379

Cee os 47 8 26 353 (IR 18D)

with” Again, the record discloses No eVi-

dence in support of this allegation

For the reasons stated, the judgment of

the circuit court of St Clair County is al.

firmed The clerk of this court directed

tw enter an order fixing Tuesday, May &.

1G. as the date on which the sentence of

death entered in the circuit court shall ta

execuled A certified copy of the order

shal! te furnished by the clerk of this court

wo the Director of Corrections and the ward:

ens of the Tilinow State Penitentiary at

Menard and Joliet

Judgmm nt affirmed

GOLDEN HERSH. Justice

part and dissenting in part

concurring if

|] would affirm the conviction for murder

vacate the Gealh ja fall) and remand &

th cirpevit coun for im bi per Lior of

senlence Other than Geal? Clearly, Umer

Enmund + Fiorida (Gal), oe US -

02 SCr Sir 73 Lbs St 1140, the death

penalty cannot te Imjpamed In this Cam

In hus statement, afler relating the man-

ner in which he and Holman entered th

victim's mobile home, defendant stated, “I

carried the TV end gun oul wo the car

Ther, | heard @ shot and Ricky came out

and said he shot the old man” There w no

evidence that shows that defendant was

present when the murder was committed or

that he contemplated it The mayomty

opinion states, “(Djefendant certainly had

reason Ww contemplate thal @ life would be

taken, or that ketha! force would be em-

ployed” (95 Ili2d at 51, 6 Ill Dec at

161, 447 NE2d at 378) but cites noth-

ing in the record which supports this conjec-

ture

The majonty makes reference to the fact

that in the Cash murder defendant was the

“uiggerman.” (95 Ili.2d at 50-51, 6 Ill

Dec at 161, 47 NE2d at 878) We

are not here concerned with the ques-

ton whether the death penalty may be

imposed for the Cash murder The question

here is whether defendant may be sen-

tenced Ww death on an accountability theory

for the death of Mr Bietel. Obviously,

under Enmund, the answer is “No”

SIMON, Justice, dusents

Although | have no inten. f disputing

the prosecutors obsery al: { the de-

fendant, Girvies L Davis, is - ailar boy, he

was still entitled to a far trial and to the

protections the law gives lo every person

charged with cnme Both the guilt and the

sentencing hearings wer deficient in these

resjacts Becaum of the seres of error

outlined tewlow | belewe the defendant's

conviction should la revemed and Wn Cause

remanded for a new tra!

Tre Vexwer or Guirt

1 find no yustification for the courts re

fuss! WW dismin juror Lewis after he in-

formed the trval judge of his clase {mend-

ship With Pelalive of & person murdered in

a rottery in which the defendant might

have teen involved As the majonty opin-

yon points oul, the juror knew that his close

{rend was bitter about the incident and

because of his {mendship with the victim's

relative, juror Lewis stated he did not know

whether he could keep an open mind He

recugnized that he had a conflict of interest

and thal it was his duty lo make the court

aware of it. The only thing Mr Lewis said

which could possibly support the majority's

conclusion thal leaving him on Une jury was

not improper was hu statement, “] think

for this case, since it ws @ separate case, |

think 1 could look at this case * °°.” This

was at best an ambiguous response to the

problem which confronted Mr Lew. It

did not justify the conclusion that he could

be impartial, especially because the state-

ment quoted above was preceded by his

remark, “I don’t think I could ever put it

totally out of my mind because it was some-

one near to me * * *.” | am disturbed, as

juror Lewis himself apparently was, over

whether he could be objective, knowing

that if he voted for scquittal his close

friend might be displeased In my judg-

ment, the trial judge did not properly take

into account the concern that juror Lewis

might have about facing his close {mend if

380 I 447 NORTH EASTERN

he found it necessary to vole to aequil the

defendant, @ prospect which might have

prevented Mr Lewis from viewing the evi-

dence impartially

The majority relies on the tna! judge

being in & supeMor position Ww observe the

juror’s demeanor and decide what his atti-

tude really was But | cannot understand

how observing the juror’s demeanor would

fMosist the tra! judge in knowing how Mr

Lewis would resolve the conflet of interest

arising from his fmendship with the victim's

relative The fact that # conflet of interest

existed should have been sufficient to dis-

qualify Mr Lewis People v Stoval (1968),

40 Ii) 2d ly, 2a N B2d 441

A remark made by the tral judge, who

had previously) presided over an unrelated

murder trial of the defendant's accomplice,

is relevant Wo this issue After the jury in

this case had returned the verdict imposing

the death penalty, the trial judge stetcu,

good, cold-blooded killer that doesn't de-

serve to live” It ws not clear from the

record at what point the tmal judge formed

this impression of the defendant, it is en-

urely possible that he might have formed

that opinion, at least in part, ear|y in the

trial before juror Lewis mentioned his con-

cern about continuing to sit in the case If

that is so, the trial judge's own observation

of juror Lewis’ demeanor in deciding

whether Wo retain him on the jury w sus-

pect

With two allernate jurors having been

selected, | see no reason why in the interest

of fairness and having a jury which was not

only impartial but also had the appearance

of impartiality, the Una! judge should not

have acquiesced in the replacement of Mr

Lewis by one of the alternates. It appears

t me that juror Lewis was more sensitive

to the conflict of interest that his [nendship

with the victim's relative created for him

than was either the circuit judge or this

court, and that permitung Mr. Lewis wo

remain on the jury was an abuse of discre-

tion

REPORTER, 24 SERIES

A second reason for granting @ new tnal

is the prosecutor's highly improper refer-

ence w the other murders in which the

State claimed the defendant was involved.

Evidence of the Mueller and Sepmeyer

murders was admitted for the purpose of

showing knowledge and modus operand)

—preying upon elderly persons by invading

their homes when they were alone, stealing

their property and shooting them I find

no fault with admitting this evidence for

this limited purpose. But that not the

wa) the prosecutor used the other two mur-

ders in his final argument. He told the

jury that the State and police officer

wanted the defendant convicted because he

and his accomplice were out killing and

they killed three “defenseless old, decrepit,

aged people” The defendant was charged

in this case with only one murder, that of

89-year-old Charles Biebel. He was not on

tra! for the Mueller and Sepmeyer mur-

ders It was improper to urge the jury lo

convict the defendant because he also mur-

dered Mueller and Sepmeyer, and the de-

fendant's obyecuon to the final argument

should have been upheld

Unlike the majonty, | am not comforted

by the tal judge's instruction to the jury

that the Mueller and Sepmeyer murders

were lo be considered only for the limited

purpose of showing defendant's design and

knowledge. This advice was not given in a

single, direct instruction but rather in two

separate instructions, one of which simply

stated the genera] rule that any argument

made by the attorneys not based on the

evidence should be disregarded. There is

no realistic way of knowing whether the

instruction it received impressed the jury as

much as the prosecutor's colorful and highly

prejudicial argument, designed to remind

the jury that the defendant was involved in

three killings in addition to the two for

which he already stood convicted.

Ill

1 also disagree with the way the majority

disposes of the defendant's objection that

the prosecutor used peremptory challenges

PEOPLE v. DAVIS

i 38]

Cia os 47 § £24 35) (1M 1089)

to obtain an all-white jury After conciud-

ing. a the majority did, that the record

fails W show any pattern of exclusion of

prospective jurors on the basis of race, | fail

to understand the need for the majority to

refer to Swain s Alalwma (1965), Sw US

aye BS SCt BA, LL LE dd 759, for the

proposition that the prosecutor has e mgnt

ve JUPOPS IM exercising

for any reasun, in-

to exciude prospect

peremy tory Challenges

cluding Weir Pace

1 am not certain that

Suain mw hoids, ever as & Malu of duc

process Although, a pointed out by the

appellate court in People v Payne (1982)

10) Li App Set 1034. 1041, 62 Ti Dee 744

43> NE 2d 1046. the Supreme Court in

Swain slated thal “|t jhe essential mature of

the peremptory chalienge is thal it is ore

exercised Withoul @ Peason Slated, wilhoul

inquiry and without being subject Ww UM

court's control” (4 US 22. 2, 6 SC

B24, 66, 13 L.Ed 2d 759, 772), the court

observed later in the Opinion Unat the pur-

emptor) challenge iw not designed wo facili-

late or justify @ system which resulls in

denying black perorm “the same mgt and

Opportunity W participate in the admuinis-

tration of justice enjoyed by the white poy-

viation” (S80 US B2, 24, & S.Ct B24,

=, 13 L.Ed 2d 759, 774.) Thus, | construe

Swain as recognizing that peremptory ehal-

lenges are not Wally outside Une control of

the tra! court

Second, | beleve Unat the strength of the

Swain holding has been diminushed by later

Gecisions under the sixth amendment in

Duncan v. Louisiana (1968), 891 U.S 145,

SCt 144, 2 LEd.2d 491, and Taylor v.

Louisiana (1975), 419 U.S $22, 95 S.Ct 692,

42 L Ed 24 68) §=These decisions recognized

“the fair<cross-section requirement as fun-

damental” w the sixth amendment right of

& defendant w # jury tal in « State enmi-

hal prosecuuon The mghts of an accused

in a State tra! wo the strictures of the sixth

amendment in the selection of a jury and

their impact on exclusion of persons from a

jury by peremptory challenge only on the

basis of race, sex or religvon were not decid-

ed in Swain In fact they were not even

raised, because Swain was decided before

In Le firs! piace

the sixth amendment was held to be appli

cable to State criminal trials (People v

Payne (1982), 106 IlLApp.3d 1034, 1042, 62

l\i Dec 744, 436 N.E2d 1046) The Swain

holding dealt only with whether perempto-

ry challenges aimed at producing an all-

while jury comported with due process of

law under the fifth and fourteenth amend-

ments, and is not authority for # holding

that such challenges do not violate the sixth

amendment, particularly in light of Taylor

and Duncan

For these reasons | believe that deciding

lo whal extent Uhe tinal court is responsible

for controlling the use of peremptory chal-

lenges by & prosecutor to exclude persons

from # jury on the basis of their race, sex or

relignon is # Mistake in Uhis case, and should

be deferred until @ case reaches this court

with a record which shows more clearly

than the one now before us that a numler

of prospective jurors were excluded on the

basis of race with the purpose of obtaining

anali-white jury Until such @ factual situ-

ation ws presented to this court, | believe

that resolution of the msue merely in re

hance on Swain s Alabama is obsolete and

too simplistic to provide helpful guidance

fur tna! courts The issue has come Wo the

attention of our appellate court on numer-

Ous Occasions in the past three years and

also during the 1970 Ww 1980 decade, ai-

though on less frequent occasions. | believe

that Wo give proper guidance to our Una!

courts we should deal with the constitution

a! issue more fully Unan the court has been

able Ww on the basis of the fects presented,

briefs filed and arguments advanced in this

case

Tre Death SENTENCE

In my judgment, the defendant is also

entitled lo & new sentencing hearing

] believe that it was error to allow evi-

dence that the wife of Frank Cash, one of

defendant's victims, gave birth to a baby

the day after he was murdered. My rea-

sons for arriving at Unis conclusion are fully

382 Il

Slated in my dissent in People v. Free

(1983), Ii2d $78, 69 Ili Dec 1, 47

N E2d 21® (Simon, J, dissenting) The

only purpose this evidence could serve was

as an emotional appeal to the jury. The

majority relies on Free, where the admis-

sion of similar testimony was not held to be

a ground for reversal However, in that

Cas, as the Majomty acknowledges, the de-

fendant faied Ww object Ww the improper

testimony and the court emphasized in Free

that the defendant had waived the mgnt to

have the propriety of the evidence con-

sidered on appeal In this case the majomty

concedes that the record imples thal a

timely objection Was presented

While it is true, & the majomty points

that this evidence came in dumng the

second pham of the sentencing procedure, |

am nol aware hal the law is nal anything

goes wl Ui shape of the Unal and that the

duors are thrown open Ww any type of evi

Gence the Stale Gesires Wo put in Th

Majomt) agrees “that comments and lesti-

mony regarding @ deceased's family are

generally improper” (95 Til2d at 87, 6%

Ili Dec at 183. 47 NE2d at 870) 1 a

not understand how they can be regarded

a relevant of as serving &n) purpose olher

than to arouse the passions of the jury even

when offered dumng the phase of the sen-

lencing proceeding in which the court is

receiving evidence in Mmiligation

The majomty's willingness on the basis of

Free W accep! irrelevant and improper evi-

dence is inconsistent with this court's rea-

soning and decision in People v. Szabo

(1983), @ Ill.2d 327, 68 Ill Dec 935, 447

NE2d 193 In the latter case we held

that there were limits on the types of evi-

dence that were acceptable in the second

phase of the sentencing Thus, for exam-

ple, a prosecutor's closing remarks “calcu-

lated to play upon the jurors’ emotions” and

which we charactenzed as “clearly improp-

er,” “inflammatory and prejudicial” were

held to be grounds for vacating the sen-

tence of death in Szabo (94 Ill2d 327,

363-44, 66 Ill Dec 935, 953, 47 N.E2d

193, 211) The limitations placed by Szabo

upon the type of evidence which may be

offered at the sentencing hearmng do not

447 NORTH EASTERN REPORTER, 24 SERIES

correspond with what the majority of this

court had to say on the same subject in

Free and is saying in this case; it w my

respectful suggestion that there exists a

dichotomy between these opinions calling

for reconciliauion by this court

The majority appears to be saying thal

reference to Une birth of a child the day

following the murder of its father was

harmless in view of the three murder con-

victions, an atlempted

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