Petition — Martinez v. Winans
Supreme Court brief1983
Ask Donna
What actually matters in this document.
Text
*»
82-688]
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1982
JAMES P. FREE, JR., Petitioner
PEOPLE OF THE STATE OF ILLINOIS, Respondent.
FILED
JUM 6 1963
ALEXANDER L. STEVAS,
CLERK
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS
June 6,
G. JOSEPH WELLER, Deputy Defender
PAUL J. GLASER, Assistant Defender
OFFICE OF THE STATE APPELLATE DEFENDER
63 Douglas Avenue
Elgin, Illinois 60120
(312) 695-8822
Counsel for Petitioner
1983
QUESTIONS PRESENTED FOR REVIEW
I. Is the Eighth Amendment ban on unguided discretion in
capital cases violated by a sentencing scheme that places no
defined limits on factors that may be considered as reasons for
imposing death, particularly where the sentencer is presented
with irrelevant and highly prejudicial evidence, including
testimony regarding the families of the victims of the offense?
II. Does the prohibition against capricious and freakish
imposition of the death penalty require any specific form of
"proportionality review" prior to execution of a death sentence?
III. Does the standardless, post-trial discretion given to
Illinois prosecutors to convene a death penalty hearing in murder
cases violate the Eighth and Fourteenth Amendments?
IV. Absent any reason for the police to fear for their
safety or to believe another person is within the premises, does
a “protective sweep" of premises subsequent to the removal of an
arrestee from those premises constitute an unreasonable search?
TABLE OF CONTENTS
Opinion BElOW. ccc ee eee eee ereeeeer creer sssenseseseeseeeseeee
FUPLSELCEION c 0 60.6.0 6508 666 0B S4 C6646 Re EEOEED EDN E HOSA DEES OS
5
5
Constitutional and Statutory Provisions Involved......eeeeee 6
Statement Of the CasS. occeccecccccsccesscsvesessasvvensecens &
1
Reasons for Granting the Wi Giscic ce cakkc ah 6a eek ee wame cee eas
I. Where the Illinois death penalty statute
requires the sentencer to consider aggravating
factors which are left undefined and, pursuant
to that mandate the jury below was directed to
consider irrelevant and highly prejudicial
evidence under the guise of "aggravation,"
certiorari should be granted to review whether
the procedure comports with the Eighth and
Fourteenth Amendments and especially in light
of Barclay v. Florida, presently pending before
CHIiS COUFt. ccccccccccccccccccccccscccsccccscece 15
II. This Court should grant certiorari to
resolve a question presently pending in Pulley
«j=
v. Harris: Whether the Eighth and Fourteenth
Amenaments require any specific forn of
"proportionality review" prior to execution of
SB SERte GOACH SONCENCE...cccccnccccevssecscsccvcseces 20
III. The convening of a hearing to consider
the imposition of the death penalty only “where
requested by the State" under section 9-1(d) of
the Illinois Death Penalty Act violates the
Eighth and Fourteenth Amendments by allowing
prosecutors to exercise standardless discretion
in seeking the penalty..ccccccccccccscvecescseveseee 22
IV. Certiorari should be allowed to consider
whether a “protective sweep" of premises
subsequent to the removal of the arrestee from
those premises violates the Fourth and
Fourteenth Amendments as an unreasonable,
general search where the police have no reason
to fear for their own safety and no reason to
believe another person might be within the
PFEMISES..cccccccccccccccccceccsccsccccesesecseses 29
COMSLUSIOMN sce ccccccceceeccccsnceverccvccccncs
eevee eweeweeneneeeee 30
Appendices
Opinion of the Illinois Supreme Court.....seeeeeeeeeeee App. A
Order of the Illinois Supreme Court Denying Rehearing.. App. B
TABLE OF AUTHORITIES
Page
Barclay v. Florida, 411 So.2d 1310 (Fla. 1982), No. 81-6908
(orally argued, Mar. 30, 1983) 33 Crim.L.Rep. (BNA)
(as eke ee eae ee eee reso ene eee nee ee eens eeeD 15,17,19
Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978)..... 16
Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d
1 2 ESS SAS er ereerrerreereereeererereeererer yy 16
Foster v. State, 266 So.2d 97 (Fla.Dist.Ct.App. 1972).....6+. 16
Furman v. Georaqia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d
346 DPPC iacaecuseebeeeeseseeeccoececrereeneeeeeeoeeneceneee 16,22,23
Gagliano v. State, 97 Nev. 297, 629 P.2d 781 (1981)....+-++6+ 27
Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d
eeeeeeeeeeve eevee eeeweeeeeeeeeeeeeeenee eee e eee eeee 19
Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.
2d 398 TROMOP cece seer eee eee ee eeereroreroererereoreecere 16
Goode v. Wainwright, 704 F, © 2193 (llth Cir. 1983).....6656-- 17
Gregg v. Georgia, 428 U.S. 4% 96 S.Ct. 2909, 49 L.Ed.2d 859
eoeeeeeeeeneeereeeeeeeu © 20,22,23,24
Harris v. Pulley, 692 F.2d 1189 (9th Cir. 1982), cert.granted
Sub nom. Pulley v. Harris, No. 82-1095 (Mar. 21, toes},
32 Crim.L.Rep. (BNA) 4229 17,20,21,22
Henry v. Wainwright, 661 F.2d 56 (5th Cir. 1981), vacated
on other grounds, U.S. » 102 §.Ct. 2922, 73 L.
BET bs EYL OLY) F 962), atf'd, 636 F.2d 311 (Sth Cir.,
Unit B. Dia eee en eb 6 60688 bs eee eceseresbocesseseee 17,18
Hopkins v. Alabama, 524 F.2d 473 (Sth Cir, 1975) ....eeeeeee8 27
-2-
; Page
Hopper v. Evans, 456 U.S. , 202°8.Ct.: 2049, 72 B. EAs 22 és
Knight Vv. State, 142 So.2d 899 (Ala. LG Zi occa venseeedocsere 16
Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d
rere eee eee eee eee eee eee eer eeeeeeeeeeeeeeeeeee 16
McGeehan v. Wainwright 526 F.2d 397 (Sth Cir. 1976)...eceeeee 25727
Newton v. State, 378 So.2d 297 (Fla.App. 1980)....cseeeeeeeee 27
People v. Bartik, 94 Ill.App.3d 696, 418 N.E.2da 1108 (2d a
ist., eee eee eeeeeereeeeeeeeeneeaneenene eee -
People v. Bernette, 30 I11.2d 359, 197 N.E.2d 436 (1964).... 17
People v. Brownell, 79 I11,.2d 508, 404 N.E.2d 181 (1980).... 20
People v. Connolly, 55 I11.2d 421, 303 N.E.2d 409 (1973).... 26
People v. Dukes, 12 I11.2d 334, 146 N.E.2da 14 (1957)........ 17
People Vv. Free, 94 i22.28 378, 447 N.E.2d 218 EPCS?) 6 aes ween 15,17,18,19
28:34) 22-25,
People v. Gualandi, 21 Ill.App.3d 992, 316 N.E.2d 195 (4th ,
Dist., ROUTER hao balwn s604 Os 646008 REES ee OCA ee bie 26
People v. Jackymiak, 381 Ill.2d 528, 46 N.E.2d 50 (1943).... 16,17
People v. LaPointe, 88 Ill.2d 482, 431 N.E.2d 344 (1981).... 21,24
People v. Lewis, 88 I11.2d 129, 430 N.E.2d 1346 (1981)...... 23
People v. Lewis, 75 Ill.App.3d 259, 393 N.E.2d 198 (lst
SC.» led Deh ceca d i ued paren ea ee ode hele kh wie iedeukall an 28
People v. Miller, 6 N.Y¥.2d 152, 188 N.Y.S.2d 534, 160 N.E.
PR ee ee Oe er ere ee ee 16
People v. Wilson, 55 I11.2d 302, 281 N.E.2d 626 (1972)......17
People v. Winston, 106 Ill.App.3d 673, 435 N.E.2d 1327 (2d
ist., COCO HOHE E EOE EE EEE EL EERE EEE E OOO COLE OOo aL
People ex rel. Carey v. Cousins, 77 I11.2d 531, 397 N.E.2d
809 LAP V IPC CECE ASSO OMEN CED ORES OO 02655640) 00 Tas ee
Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.
9 i eT 20
Proffitt v. Wainwright, 685 F.2d 1227 (llth Cir. 1982)......17
Root v. Gauper, 438 F.2d 361 (8th Cir, 1971). ..cceccccevccee 26
Ruiz v. Illinois, No. 82-6466, cert.docketed March 25, 1983. 24
Silverthorne Lumber Company v. United States, 251 U.S. 385,
. Ce ’ L. .
eee eeweweeee ee eee eaeaeaeeae 29
State v. Bartholemew, 654 P.2d 1170 (Wash. 1982)......0+000+17
State Vv. Ranker, 343 So.2d 189 Ce AOETE ch cdhae ve Habu ewdscah 28
State v. Tolliver 5 Wash.App. 321, 487 P.2d 264 (1971)...... 27
State v. White, 15 Ohio St.2d 146, 239 N.E.2d 65 (1968).....16
Terry; v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2da 869
FRPORE SE cha ie chwka cae WONOUETER Cheeks eduantbes Ae
~3-
‘
United States v. Gamble, 473 F.2d 1274 (7th Cir. 1973)..eee 29
United States v. Goldenstein, 456 F.2d 1006 (8th Cir. 1972). 26
United States v. Kinney, 638 F.2d 941 (6th Cir. 1981) ..ceeee 29
Wade v. Commonwealth, 116 S.E.2d 99 (Va. 1960) .seeeeeeeeeers 16
Walker Vv. State, 338 S.W.2da 13 (Ark. 1965) .ccceccseveveesere 16
Williams v. Maggio, 679 F.2d 381 (Sth Cir., Unit A. 1982)..-.- 21
Constitutional provisions and statutes
Il1l1.Rev.Stat., 1977, Ch. 38, Sec. Ree ce housed eee edsereueeee 15
22
Ill. Rev.Stat., 1977, ch. 110A, Sec. 603, 606(a), 607(a)
6ll(a), SIS UR) 6c ce OHOSKOEHHO ROSES THE KHOR TEECEOES OOH GREOOS 20
uU.S.Const. amend ‘, eee ee eo ee ee ee AR A ee de 25,26
U.S.Const. amend Lp 3 > ere oe ee ee eS RE Eke ee de edi 13
36:55-a
uU.S.Const. amend REV Gb 6 0 860.66 FS OK PET SECEHREDSESTCSIVSC OVS EH COTO VC 15,16,20,
26
Textbooks, etc.
Administrative Office of the Illinois Courts, 1978 Annual
Report to The Supreme Court Of ITlLlLiInNOiS...ceeeveeeveees 21
Administrative Office of the Illinois Courts, 1979 Annual
Report to the Supreme Court Of ILLINOIS... ee eeeeeeeeees 21
67 A.L.R.2d pf) ee eT ere Se a ee Be la 16
Brief for Defendant, People v. James Free, 94 Ill.2d 378,
447 N.E.2d 218 (1983) wecccccceneeeesevesse reeset essstes 21
C.J5.S8. Homicide Sec. Zao cesvecdsvtetoewe
eee ewe eewr eee eeweeneeee 16
2 Lafave, Search and Seizure Sec. 6.5(C)(19O7B) .. cece ween eees 25
Reply Brief for Defendant, People v. James Free, 94 111.2
378, 447 N.g.2d 218 (1983) Ve. : 11.24
eee ee eee eeeeeeeneee 21
-4-
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1982
JAMES P. FREE, JR., Petitioner
-VvVs-
PEOPLE OF THE STATE OF ILLINOIS, Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS
The petitioner, James P. Free, Jr., prays that a writ of
certiorari issue to review the judgment and opinion of the
Supreme Court of Illinois holding, in conflict with decisions
from other state and federal courts, that a search can be
justified as a “protective sweep" absent sufficient grounds and,
further, 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
January 24, 1983, and is reported at 94 I11l.2d 378, 447 N.E.2d
218. A copy of the opinion is attached hereto as Appendix A. A
petition for rehearing was denied by the Illinois Supreme Court
on April 8, 1983. A copy of the court's latter order appears in
Appendix B.
JURISDICTION
This petition is being filed within sixty days of the
Illinois Supreme Court's denial of rehearing on April 8, 1983.
The jurisdiction of this Court is invoked under 28 U.S.C. Sec.
1257(3).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
U.S. Const. Amend. IV:
The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing
the place to be searched, and the persons or things
to be seized.
U.S. Const. Amend. VIII:
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual
punishments inflicted.
U.S. Const. Amend. XIV, Sec. l:
All persons born or naturalized in the United
States, and subject to the jurisdiction
thereof, are citizens of the United States and
of the State wherein thev reside. No State shall
make or enforce any law which shall abridge
the privileges or immunities of citizens
of the United States; nor shall any State deprive
any person of life, liberty, or property, without
due process of law; nor deny to any person within
its jurisdiction the equal protect:cn of the laws.
The provision tor convening a capital sentencing hearing
following an Illinois defendant's conviction for murder is
found in Ill.Rev.Stat., 1977, Ch. 38, \Sec. 9-1(d):
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 I1l.Rev.Stat., 1978, Ch. 38, Sec. 9=-1l(b) (6):
(b) Aggravating factors. A defendant who at
the time of the commission of the offense has
attained the age of 18 or more and who has been
found guilty of murder may be sentenced to
death if:
-+- 6. the murdered individual was killed
in the course of another felony if:
(a) the murdered individual was killed
by the defendant and not by another party
to the crime or simply as a consequence of
the crime; and
(b) the defendant killed the murdered individu-
al intentionally or with the knowledge that
the acts which caused the death created a strong
probability of death or great bodily harm to the
murdered individual or another; and
(c) the other felony was one of the following:
armed robbery, robbery, rape, deviate sexual
assault, ac ravated kidnapping, forcible deten-
tion, arson, burglary, or the taking of in-
decent liberties with a child.,..
=6-
»
The provision for consideration of additional aggravating
factors at the death sentencing proceeding is found in 1[11l.Rev.Stat.,
1977, Ch. 38, Sec. 9-l(c) and 9-l(e):
(c) Consideration of factors in Aggravation
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. Aggravating
factors may include but need not be limited to
those factors set forth in subsection (b).-...
(e) Evidence and Argument. During the pro-
ceeding any information relevant to any of the
factors set forth in Subsection (b) may be
presented by either the State or the defendant
under the rules governing the admission of evidence
at criminal trials. Any information relevant to any
additional aggravating factors or any mitigating
factors indicated in Subsection (c) may be
presented by the State or defendant regardless
of its admissibility under the rules governing
the admission of evidence at criminal trials.
The State and the defendant shall be given fair
opportunity to rebut any information received at
the hearing.
The provision for review of a conviction and sentence
of death is found in I11.Rev.Stat., 1977, Ch. 38, Sec. 9-l1(i):
Appellate Procedure.
The conviction and sentence of death shall
be subject to automatic review by the Supreme
Court. Such review shall he in accordance with
rules promuigated by the Supreme Court.
Pitas STATEMENT OF THE CASE
James P. Free, Jr., the petitioner, was charged by
indictment with the April 24, 1978 attempt rape and attempt
murder of Lori Rowe and the attempt rape and murder of Bonnie
Serpico, at the M-2 Service Center in Glen Ellyn, Illinois.
Lori Rowe and Bonnie Serpico were working at M-2, a
24-hour data processing office, on the night of April 23-24.
At about 3:50 a.m., Rowe looked up from her desk and saw a
man standing inside the front door. A white towel was secured
around the man's head with twine, covering his face from the
bridge of the nose to the bottom of his neck. The towel never
came away from his face; she saw only his eyes, forehead and
hair. He had a gun in one hand and carried a cloth bag in
the other hand. (C. 4902-4922, 4949-4953, 5043-5044,
5164)
The man motioned Rowe toward the back room. As she
got up, Serpico, who had been in the back, entered into the
front room. The man then told both women to go to the back
room. They proceeded into the office's lunchroom, where
the women asked the man to take their money and leave them
alone. He ordered the women to lie on the floor and
to take their clothes off, saying he wanted to "rape" them.
(C. 4908, 4913, 4915, 5033-5036, 5180)
Rowe said the man did not talk very much; he talked in short
sentences, at times not responding to the women's statements
and at times appearing scared, as if he was losing control
of the situation. (C. 5029, 5039)
After he tied up Rowe, the man took Serpico into another
room where Serpico removed her clothing. During this time, the
man went back and forth, about three to four times, between
the two rooms, to check on Rowe's bindings. While the man
checked Rowe on the last occasion, Serpico ran from the room
she was in and headed towards the front door. The man stepped
from the lunchroom and fired one shot, killing Serpico. He
returned to the lunchroom and fired a second shot at Rowe,
striking her in her right arm, chest and left leg. The man
then ran from the premises. (C. 4869, 4921-4926, 4939A)
-O-
'
. ° Rowe said the entire incident lasted about twenty
minutes. (C. 5040) The man never removed his clothes. (C. 4993)
She identified the petitioner as the man in question. (Cc. 4928)
After being shot, Rowe telephoned the police, who arrived
fifteen minutes later. (C. 4926-4930, 4711, 4714, 4741, 4742)
Through police investigation, suspicions focused on the
petitioner, whom the police learned was staying at his parents’
townhouse in Dubugue, Iowa, on leave from the army.
On April 25, prior to proceeding to Dubuque, three Glen
Ellyn police officers went to a fishing barge on the Mississippi
River near Hazel Green, Wisconsin, the home of the petitioner's
parents. (C. 2104, 2105-2111) His mother, Lillian Free, told
the police her son was in the Dubuque townhouse, alone. (C.
2112) James P. Free, Sr., the petitioner's father, explained
that he rented a residence at 1961 Stanton. Neither Lillian
nor James, Sr., gave consent to search the townhouse, and neither
was served with a copy of a warrant until two or two and a
half hours after Mr. Free, Sr. arrived on the scene of the
townhouse at 7:00 or 7:30 a.m. (C. 2120, 2122-2139)
At 5:00 a.m., the Glen Ellyn police officers arrived
in Dubuque and informed the Dubuque police that the petitioner
was being sought for his possible involvement in a homicide
and was armed with a .38 or .357 caliber hand-gun. (C. 1291,
1293, 1294) By 6:15, police began to assemble at 1961 Stanton.
(C. 1262) Estimates of the number of officers present ranged
from nine to twenty, (C. 1295, 1385, 1523, 1647, 1801), with
approximately five squad cars and other emergency vehicles,
including a fire truck. (C. 1296, 1999)
The police announced their presence over a public
address system aimed at the townhouse and informed the petitioner
about the warrant for his arrest. After thirty to thirty-
five minutes of repeated warnings to surrender went by without
a response, a tear gas projectile was fired into a second-story
window. (C. 1267, 1274) The petitioner testified he was awakened
by the sound of breaking glass and looked out a window and
saw the police. Already wearing a t-shirt, socks and shorts,
he put on a pair of trousers and went outside, unarmed, with his
-9-
.hands up. He was told to lie down, so he went over to the
grass in front of the building. He saw several officers
with shotguns drawn on him, some fifteen to twenty feet
away. He did not feel free to walk away. His pants were
falling, so he asked for permission to pull them up. He
was told “no” and ordered to lie down; he went down, lying
flat on his stomach. (C. 1858-1864)
While on the ground, the petitioner felt a shotgun
aimed two or three feet from his head. He was handcuffed
and asked about a gun; he said it was in the house. He was
also asked if anyone else was in the house; he answered no.
He was then grabbed and pulled into a squad car. (C. 1871, 1872)
A couple of minutes after the petitioner was taken away
from the townhouse, a group of police officers entered the
residence, wearing gas masks. According to Dubuque Police
Captain Patrick Egan, the officers came out shortly, complaining
that the gas masks were not functioning properly. Egan
entered the building, without a mask, along with the second
group of police. He entered, he said, to make certain that
no one else was inside the building; he was also concerned about
the tear gas projectile starting a fire or having hit someone.
His first trip inside the house lasted no more than 30 seconds
before his eyes began stinging from the tear gas. During this
trip he proceeded to the second floor, finding no one else inside;
nothing was seized during this search. A few minutes later, Egan
and a few other officers made a second trip into the building.
During the second search, the tear gas cylinder was found, having
scorched the floor on which it lay. A minute or so later, Egan
left the building again, to return for third and fourth searches.
During the fourth trip, an exhaust fan wae placed inside the
building. Egan testified that he never entered the building
for the purpose of obtaining evidence; closets and drawers
were not opened. He never saw anyone pick up anything from
inside the building aside from the gas projectile. (C. 1933-2003)
Dubuque Police Captain Terrence Lambert testified that
he gave no orders to check the building for others and did not
hear Egan, who was in command of the police unit on the scene, give
-10-
any .guch order. Lambert said they assumed the thing to do was
to go inside the building. He admitted that no consent or
warrant had been obtained for the preliminary entries into the
building. The fire hazard, he said, was confined to the second
floor. (C. 2098-2103)
Glen Ellyn Police Detective Robert Velon, during one of
the preliminary searches of 1961 Staton, saw some twine on top
of a garbage bag near the kitchen on the first floor of the
building. The twine was similar to twine he recalled seeing
at the scene of the incident in Glen Ellyn. Velon did not
seize the twine from the townhouse on this occasion. (C. 2195-
2205) He related his observation to a magistrate in Dubuque
who subsequently issued a search warrant. (See 79-88; 2196)
The magistrate's endorsement noted only two factors upon
which probable cause was found for tiie issuance of a warrant
to search the townhouse: Velon's observation of the twine
and Free's statement immediately after his arrest that the
gun was in the house. (Supplemental Record) Pursuant to
that warrant, police seized a gun, ammunition, items of
clothing and other evidence which linked the petitioner to the
offense and were admitted at the trial and sentencing proceedings.
During the pretrial hearings on motions to suppress state-
ments and evidence, the defense introduced a videotape of the
petitioner's arrest, prepared by a Dubuque television station
which was reporting the incident. (Df.Ex. 5; C. 1921-1922, 2236)
In response to defense motions, the petitioner's statements
made at the scene of the arrest were suppressed for purposes of
the trial; the statements were allowed to stand as support for
probable cause for the search warrant. (C. 3165) The trial court
denied the motion to suppress the search of the townhouse, stating
that the search was justified by probable cause and the exigencies
of the situation. (C. 2175-3184)
At trial, supplementing testimony from Lori Rowe, investigating
police officers and other witnesses placing the petitioner in the
Glen Ellyn area on the date of the offense, the State presented
evidence that a fingerprint found on the front door knob of the
-ll-
M-2 Service Center and a palm print on the door frame to M-2's
storace room matched prints taken from the petitioner. (C. 5533,
5534, 5797, 5799, 5848, 5865, 5887, 5889, 5892; P1.Ex. 71, 72,
73, 91, 93) A tool mark and firearms examiner testified tnat,
when he received a gun seized from the Free townhouse, (P1l.Ex. 17;
C. 5913), it had been cleaned since it was last fired. (C. 5682,
5702) Based upon his tests, the examiner concluded that the
projectile extracted from Bonnie Serpico's body could have
been fired from the gun found at the townhouse. (P1.Ex. 74;
C. 5696-5705, 5839)
In his defense, the petitioner claimed to have no actual
recollection of the circumstances surrounding the offense.
Through his own testimony, (C. 6350-6491), and testimony from
other witnesses, including two psychiatrists and one toxicologist,
(C. 6628-6917), the petitioner sought to establish that, at the
time of the incident, he was suffering from a “toxic psychosis
secondary to a chemical or drug intoxication,” (C. 6647-6648), in-
duced by his ingestion of alcohol and P.C.P., or phencyclidine,
prior to the incident. A "psycnopharmacologist” testified for
the State to dispute the evidence regarding drug intoxication.
(C. 6981-7219)
On June 22, 1979, at the conclusion of a 26-day trial,
the petitioner was found guilty of the murder and
attempt rape of Bonnie Serpico and the attempt murder and attempt
rape of Lori Rowe. (C. 628, 630-632, 7795)
Prior ts the convening of the two-stage death penalty
sentencing hearing, on August 1, 1979, the petitioner filed a motion
to declare the Illinois death penalty statute unconstitutional.
One of the grounds of the motion alleged that the statute fails
to designate standards under which the State may seek to prosecute
a murder case as a capital case and is therefore violative
of the Eighth and Fourteenth Amendments. (C. 827, 7880) The
trial court denied the motion. (C. 7892)
At the first-stage of the sentencing proceeding, held to
determine the existence of statutory aggravating factors, the
jury found that the murder of Bonnie Serpico occurred in the
course of a rape and in the course of a burglary, (Cc. 8015-8016),
-l2-
‘
.théreby rendering the death penalty available against the
petitioner.
The second and final phase of the sentencing hearing
took place on August 2, 6 and 7, 1979, when evidence in
aggravation and mitigation was presented by both sides.
In aggravation, over defense objection, (C. 8053), the
State was permitted to present testimony regarding the effects
of the offenses upon the victims and their families. (C. 8056-
8061, 8078-8084, 8098) Also over defense objection, (C. 8114),
a police officer was allowed to testify about having observed
the petitioner, at 4:00 in the morning on the day before the
instant offense, driving slowly through the business district
of nearby Winfield, Illinois. Although the officer stopped
and talked with the petitioner at the time, no crime was
committed. (C. 8115-8122)
The State also offered testimony regarding the petitioner's
educational and employment history. He was characterized
as an average to above average student while in high school
and an extremely good worker while employed prior to enlisting
in the army. (C. 8086-8092) It was also indicated that the
petitioner had a previous conviction, for misdemeanor theft,
in 1972. (C. 8063)
In mitigation, several members of the petitioner's family
offered positive testimony about his childhood and family life.
(C. 8144-8178, 8208-8223, 8274-8286) Three army officers
testified about his exemplary service record. (C. 8224-8272) A
psychiatrist opined that the petitioner's conduct in the
offense was out of his character. (C. 8192) The petitioner also
made a statement on his own behalf. (C. 8353-8360)
On August 7, 1979, the jury returned a verdict recommending
that the petitioner be sentenced to death. (C. 997, 8465) The
court thereupon entered judgment on the verdict. (C. 8468)
In his post-trial and post-sentencing motions, the petitioner
gited as error the denial of his pretrial suppression motions
relating to the search of his townhouse and the allowance of
testimony at the final sentencing hearing regarding the victim's
families and the petitioner's activities in Winfield 24 hours
before the offense. (C. 1001 et. seq.) The petitioner also raised
@-l13-
issue with the absence, in the death penalty statute, of
constitutionally sufficient guidelines for prosecutorial
discretion. (C. 1038) All the petitioner's post-trial
and post-sentencing motions were denied. (C. 8637, 8650, 8656,
8888-8894) On November 27, 1979, the petitioner was sentenced
on the remaining charges: two concurrent 15 year prison terms
for attempt rape and a consecutive 30 year prison sentence for
attempt murder. (C. 8846-8849)
In his direct appeal to the Illinois Supreme Court, the
petitioner raised sixteen issues relating to errors in his trial
and sentencing. Affirming his conviction, the Illinois Supreme
Court ruled that the entries and searches of the petitioner's
house were justified under the exigencies of the arrest and as
valid “protective sweeps." People v. Free, 94 Ill.2d 378, 447
N.E.2d 218, 226 (1983). The court rejected the petitioner's
federal constitutional challenge to the permission granted in
the Illinois statute to consider nonstatutory aggravation by
finding that the sentencing body is "suitably directed and
limited" under the statute. 447 N.E.2d at 242. Relying on
previous decisions, the court further rejected constitutional
challenges to the unlimited grant of discretion afforded the
sentencing decision of Illinois prosecutors and to the inade-
quacy of the court's comparative review proce. res. 447 N.E.2d
at 224.
On April 8, 1983, the Illinois Supreme Court denied a
petition for rehearing. (Appendix B.)
REASONS FOR GRANTING THE WRIT
I.
WHERE THE ILLINOIS DEATH PENALTY STATUTE REQUIRES THE SFNTENCER
TO CONSIDER AGGRAVATING FACTORS WHICH ARE LEFT UNDEFINED AND,
PURSUANT TO THAT MANDATE THE JURY BELOW WAS DIRECTED TO CONSIDER
IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE UNDER THE GUISE OF
"AGGRAVATION," CERTIORARI SHOULD BE GRANTED TO REVIEW WHETHER THE
PROCEDURE COMPORTS WITH THE EIGHTH AND FOURTEENTH AMENDMENTS AND
ESPECIALLY IN LIGHT OF BARCLAY V. FLORIDA, PRESENTLY PENDING
BEFORE THIS COURT.
This Court granted certiorari in Barclay v. Florida, 4ll
So.2d 1310 (Fla. 1982), No. 81-6908 (orally argued, Mar. 30,
1983) 33 Crim.L.Rep. (BNA) 4024, in part on the issue of whether
the sentencing authority in a capital prosecution can consider
nonstatutory aggravating circumstances in making its decision.
A similar issue exists in the instant case, aggravated by the
utterly irrelevant and highly prejudicial nature of the
nonstatutory evidence. Not only was the sentencing authority
here, a jury, presented with irrelevant and inflammatory evidence
including testimony regarding the families of the victims of the
offense, but the jury was instructed that consideration of this
evidence was required before its sentencina decision could be
reached.
The evidence and instructions presented below, endorsed by
the Illinois Supreme Court as appropriate under the Illinois
death penalty statute, People v. Free, 94 I11,.2d 378, 447 N.E.2d
218, 241-242 (1983), blatantly conflicts with the Eighth and
Fourteenth Amendments to the United States Constitution, as well
as precedent from this Court, and requires this Court's review.
The Illinois death penalty statute, Ill1.Rev.Stat., 1977, Ch.
38, Sec, 9-l(c), mandates that the sentencing body, whether the
trial court or a jury, “consider any aggravating ... factors
which are relevant to the imposition of the death penalty.
Aggravating factors may include but need not be limited to those
*
factors set forth in subsection (b)." Thus, under Illinois law,
Subsection(b), Ill.Rev.Stat., 1977, Ch. 38, Sec. 9=-lib), sets
forth a number of “aggravating factors” which constitute the
prerecuisites for application of the death penalty, such as
murder of a peace officer or fireman or a murder committed in the
course of another, enumerated felony. The statutory aggravating
factors at bar were that the murder occurred in the course of a
rape and in the course of a burglary.
the decision of the sentencer is not channeled but is broadened
to permit the consideration of nonstatutory factors in violation
of the Eighth and Fourteenth Amendments.
This Court, in capital cases beginning with Furman v.
Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed. 2d 346 (1972), has
required that sentencing discretion be directed and limited so
that a “meaningful basis [exists] for distinguishing the ...
cases in which it is imposed from ... the cases in which it is
not." Lockett v. Ohio, 438 U.S. 586, 601, 98 S.Ct. 2954, 57
L.Ed.2d 973 (1978); see also Godfrey v. Georgia, 446 U.S. 420,
428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); Hopper v. Evans, 456
U.S. __»__» 102 S.Ct. 2049, 72 L.Ed.2d 367, 373 (1982).
Allowing imposition of the death penalty to be based on
nonstatutory aggravating factors is inconsistent with this
fundamental] constitutional requirement of channeled discretion
and rational, consistent application of the death penalty. Cases
involving identical statutory aggravating factors could
nonetheless result in different sentencing decisions because the
trial court in one case elected to allow evidence and
instructions on nonstatutory factors while the other court did
not.
The opinion of the Illinois Supreme Court below has done
nothing to insure the concept of fairness and reasonable
consistency which this Court has set forth as a minimum safeguard
against the arbitrary and capricious imposition of the death
penalty. See Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct.
869, 71 L.Ed. 2d 1 (1982). It has long been the law in Illinois,
as it has been elsewhere , that evidence of the effect of the
offense upon the homicide victim's families serves no purpose
other than to arouse passion and prejudice against the defendant
and is irrelevant and inadmissible. People v. Jackymiak, 381
*
See e.q., Knight v. State, 142 So.2d 899 (Ala. 1962); Walker
v. State, 8 S.W.od 13 (Ark. 1965); Foster v. State, 266 So.2da
a.Dist.Ct.App. 1972); People v. Miller, 6 N.¥.2d 152, 188
N.Y.S. 2d 534, 160 N.E.2d 74 (1S®9); State v. White, 15 Ohio
St.2d 146, 239 N.E.2d 65 (1968); Commonwealth v. Story, 476
Pa.391, 383 A.2da 155 (1978); Wade v. Commonwealth, 116 S.E.2d 99
(Va. 1960); See also C.J.S. Homicide Sec. 225; 67 ALL. 44 73ie
-l6-
Tll.2c 528, 46 N.E.2d 50 (1943), People v. Dukes, 12 Ill. 2¢ 334,
146 N.E.2d 14, 19 (1957), People v. Bernette, 30 Ill. 2d 359,
197 N.E.2d 436 (1964), People v. Wilson, 55 I11l1.2d 302, 281
N.E.2d 626, 629 (1972). Although the court's opinion implicitly
approved such testimony in the instant case, the court failed to
explain the relevance of the testimony to the question of the
petitioner's sentence or expressly overrule, let alone question,
the rationale of the Jacymiak, Dukes, Bernette and Wilson cases.
See People v. Free, 447 N.E.2d at 241-242. Trial courts in
capital cases in Illinois are thus left in a quandry of whether
to follow or abandon historical precedent. Without explicit
statutory guidance, the individual discretion of the 800 judges
in the State of Illinois will render consistency impossible.
The conclusion that the Illinois death penalty scheme
violates the prohibition against unbridled discretion is further
supported by the holding in Henry v. Wainwright, 661 F.2d 56 (5th
Cir. 1981), vacated on other grounds, U.S. » £202.6.. SE.
2922, 73 L.Ed.2d 1326 (1982), aff'd, 686 F.2d 311 (Sth Cir., Unit
B. 1982), where it was held unconstitutional to instruct a
sentencing jury that in considering aggravating circumstances it
was not limited to factors specified by statute. Henry has
recently been followed in Proffitt v. Wainwright, 685 F.2d 1227
(llth Cir. 1982), Goode v. Wainwright, 704 F.2d 593 (llth Cir.
1983), 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). As noted above, the Henry rationale is one of the
issues pending before this Court in Barclay v. Florida.
) In the case against the petitioner, the sentencing jury was
instructed to consider “any aggravating factors and any miti-
gating factors which are relevant to the imposition of the death
penalty.” The jury was further instructed that: "Aggravating
factors are those facts and circumstances which provide reasons
for imposing a more severe sentence.“ (See court's iretructions
to jury, beginning at C. 8439) Thus informed that it need not
consider as aggravation only those statutory factors already
found at the first-stage hearing, murder in the course of a
abte
rape and in the course of a burglary, (C. 8015, 8016), the jury may
well have believed that other, nonstatutory factors were legi-
timate reasons for imposing a sentence of death. Those other
factors, presented through testimony proffered by the State,
included: that Bonnie Serpico's father died of cancer a month
after the offense, that her mother took tranquilizers for de-
pression and that her husband developed a drinking problem, (C.
8056-8061); that Lori Rowe was now afraid of the dark and re-
quested a private room at school. (C. 8075-8079) The State was
also allowed to argue to the jury that Serpico left a husband and
two daughters. (C. 8408) In addition, the State was permitted to
present testimony asserting that the petitioner had been
“prowling” the west suburban area 24 hours before the instant
offense. (C. 8111-8119, 8379-8392)
The Illinois Supreme Court rejected petitioner's claim of
error based on the Henry rationale by concluding that Illinois
procedure, which provides for a three-phase capital prosecution,
is "different" from Florida's law, which provides for only two
phases. People v. Free, 447 N.E.2d at 242. The Illinois Supreme
Court's opinion thus rests upon a distinction without a
difference. Regardless of whether a two- or three-stage
proceeding is involved, if a jury deliberating on the question of
life or death is not carefully and particularly directed to
consider only specific statutory aggravating factors, its
decision may well result in a wholly arbitrary and capricious
death verdict.
The instruction which was forbidden in Henry, ("In con-
sidering aggravating circumstances, you shall consider all
factors which are aggravating including, but not limited to, the
following...." 661 F.2d at 57), is strikingly analogous to both
the instruction tendered to the jury below, and, equally important,
practically identical to the Illinois death penalty statute, Sec.
9-l(c): “Aggravating factors may include but need not be limited
to those factors set forth in subsection (b)." (emphasis added).
Inasmuch as the lancquage of the instruction failed to provide
proper direction to the jury, it must be held reversible error.
-18-
—i> quscsment
Inasmuch as the language of the statute contravenes any notion of
direction or limitation, the statute itself must be found
unconstitutional.
It must be noted that the Illinois Supreme Court's finding
of waiver on the issue of the admissibility of the suspect
testimony, People v. Free, 447 N.E.2d at 241, is not supported by
the record. Defense trial counsel objected to the testimony both
contemporaneously, (C. 8053, 8114), as well as in a post-trial
motion for new trial. (See post-trial motion at 15-16; in Common
Law Record at C. 1001 et seq.)
Because death is qualitatively different from any other kind
of punishment, there is the greatest need that the procedure for
imposing the penalty of death comport with due process in order
to insure that the imposition of death is not the result of
passion or prejudice. Gardner v. Florida, 430 U.S. 349, 358, 97
S.Ct. 1197, 51 L.Ed.2d 393 (1977). Allowing the sentencing body
to hear and consider irrelevant testimony dealing with a non-
statutory factor constitutes a quantum step backward from all
concepts of due process and results in an arbitrary and capricious
punishment violative of the Eighth Amendment. Especially in
light of the pendency of a similar issue before this Court in
Barclay v. Florida, this Court should grant certiorari and
reverse the sentence of death affirmed by the Illinois Supreme
Court.
-19-
oe
THIS COURT SHOULD GRANT CERTIORARI TO RESOLVE A QUESTION
PRESENTLY PENDING IN PULLEY V. HARRIS: WHETHER THE EIGHTH AND
FOURTEENTH AMENDMENTS REQUIRE ANY SPECIFIC FORM OF “PROPORTION-
ALITY REVIEW" PRIOR TO EXECUTION OF A STATE DEATH SENTENCE.
An Illinois defendant's capital conviction and death
sentence is subject to automatic review by the Illinois Supreme
Court. The death penalty statute provides that "review shall be
in accordance with rules promulgated by the [Illinois] Supreme
Court.” I1l1.Rev.Stat., 1977, Ch. 38, Sec. 9-1(i). Although the
Illinois Supreme Court has enacted a series of rules dealing
primarily with procedural matters of docketing and briefing of
capital cases, Il1l.Rev.Stat., 1977, Ch. L1OA, Sec. 603, 606(a),
607(a), 6l1l(a), 613(a); see, People v. Brownell, 79 I11.2da 508,
404 N.E.2d 181, 198 (1980); People v. Free, 94 I11.2d 378,
447 N.E.2d 218, 224 (1983), none of these rules provide for any
meaningful comparative review of similar crimes and defendants
which alone can insure uniformity and parity of sentences in
murder prosecutions in the State of Illinois.
The Illinois Supreme Court's failure to adopt any substantive
procedure for proportionality review violates the requirement of
the Eighth and Fourteenth Amendments ~hat the death sentence not
be imposed capriciously or in a freakish manner. Gregg v.
Georgia, 428 U.S. 153, 204, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976);
Profitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 49 L.Ed.2d
913 (1976). This conclusion also follows from the holding in
Harris v. Pulley, 692 F.2d 1189, 1196 (9th Cir. 1982), cert.
granted sub nom. Pulley v. Harris, No. 82-1095, 32 Crim L.Rep.
(BNA) 4229, where the Ninth Circuit Court of Appeals remanded a
capital case to enable the California Supreme Court to determine,
specifically, whether the penalty in the case was "proportionate
to other sentences imposed for similar crimes."
On March 21, 1983, this Court granted certiorari in the
Harris decision, 32 Crim L. Rep (BNA) 4229, to review two
questions: whether any specific form of proportionality review
is required by the federal Constitution and, if so, what is the
required focus, scope and procedural structure of such review.
Affirming the petitioner's death sentence, the Illinois Supreme
Court compared the instant offense with those in four other
capital cases of recent years: three of which resulted in
affirmances and one of which resulted in the vacature of the
death sentence. People v. Free, 447 N.E.2d at 243. This attempt
at proportionality review is as constitutionally insufficient as
was the absence of any review in Harris.
In his briefs before the Illinois Supreme Court, Mr. Free
called the court's attention to over 80 Illinois cases in which,
although applicable, the death penalty either was not sought by
the State or was not imposed by the sentencing authority. Brief
for Defendant, People v. James Free, Docket No. 52775, at C. 1-6;
Reply Br. at 47-48, 60. No comment on the lists appears in the
court's opinion,
Comparison of cases on a statewide basis is not an
impossible task. The Illinois Supreme Court already reviews and
publishes data regarding the numbers of criminal cases. See
Administrative Office of the Illinois Courts, 1978 Annual Report
to the Supreme Court of Illinois, at p. 170-180; Administrative
Office of the Illinois Courts, 1979 Annual Report to the Supreme
Court of Illinois, at p. 166-176. For example, in 1979, the year
of the petitioner's trial, there were 352 murder convictions in
Illinois. The death penalty was imposed for only 12 of these
convictions. 1979 Report at 172. The raw statistics provided in
the report, however, offer no basis for meaningful comparative
review of similar prosecutions.
Even if comparative review need only be limited to
consideration of cases at the judicial district-level, see
Williams v. Maggio, 679 F.2d 381, 395 (5th Cir., Unit A. 1982),
three of the eighty cases presented to the Illinois Supreme Court
below arose out of the same county as the petitioner's case,
DuPage County: People v. LaPointe, 88 Ill.2d 482, 431 N.E.2da 344
(1981), People v. Bartik, 94 Ill.App.3d 696, 418 N.E.2a 1108 (2d
Dist., 1981), and People v. Winston, 106 Ill.App.3d 673, 435
N.E.2d 1327 (2d Dist., 1981). Had the Illinois Supreme Court
compared the facts and circumstances of these three cases against
-2le
the petitioner's case, it would have discovered a sharp example
of the arbitrary application of the death penalty in DuPage
County.
Only when provided with information regarding all similar
murder cases, whether on a statewide or county-wide basis, can
the Illinois Supreme Court undertake the type of review set forth
by this Court in Gregg v. Georgia.
Inadequate comparative review has already , in Illinois, led
to the arbitrary and capricious imposition of the death penalty
condemned by this Court in Furman v. Georgia, 408 U.S. 238, 92
S.Ct. 2726, 33 L.Ed.2d 349 (1971). Since the instant issue is
similar to the question before this Court in Pulley v. Harris,
this Court should grant certiorari in this case and reverse the
sentence of death affirmed by the Illinois Supreme Court.
sane
THE CONVENING OF A HEARING TO CONSIDER THE IMPOSITION OF THE
DEATH PENALTY ONLY “WHERE REQUESTED BY THE STATE" UNDER SECTION
9-1(d) OF THE ILLINOIS DEATH PENALTY ACT VIOLATES THE EIGHTH AND
FOURTEENTH AMENDMENTS BY ALLOWING PROSECUTORS TO EXERCISE
STANDARDLESS DISCRETION IN SEEKING THE PENALTY.
In Illinois a sentence of death may never be imposed unless
it is requested by the prosecutor after conviction. It is only
where the special sentencing procedures provided in
Tll.Rev.Stat., 1977, Ch. 38, Sec. 9-l(d) are invoked by the
prosecutor, in his sole discretion, that the court is empowered
to impose the death sentence.
In every other state, a death penalty hearing automatically
follows the conviction. In Illinois, after a conviction for
murder, a death penalty can be held only "(w]here requested by
the State." Sec. 9-l(d). The Illinois Supreme Court recognizes
that this statutory language places the decision on whether to
convene a death hearing entirely in the hands of the Illinois
prosecutor. People ex rel. Carey v. Cousins, 77 I11.2d 531, 397
N.E.2d 809 (1979); People v. Free, 94 Ill. 2d 378, 447 N.E.2d
218, 224 (1983) Four of the seven justices now sitting on the
Illinois Supreme Court believe that the Illinois statute violates
the Eighth Amendment. See People v. Lewis, 88 Ill.2d 129, 430
N.E.2d 1346 (1981). Nevertheless, for reasons ranging from stare
decisis to reliance on this Court to review the issue, Lewis, 430
N.E.2d at 1364 (Goldenhersch, C.J., and Ryan, J. and Clark, J.
concurring), the court has declined to invalidate the statute as
unconstitutional.
The hesitancy of the Illinois Supreme Court cannot hide the
conclusion that the statute is unconstitutional in terms of the
decisions from this Court. In Gregg v. Georgia, 428 U.S. 153,
188, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), this Court stated that
because of the uniqueness of the death penalty, it cannot be
imposed under procedures that create "a substantial risk that it
would be inflicted in an arbitrary and capricious manner.” Any
discretion afforded on the life or death decision "must be
suitably directed and limited so as to minimize the risk of the
wholly arbitrary and capricious action.” 428 U.S. at 189.
The discretion granted Illinois prosecutors to decide
whether to convene a death penalty hearing is completely
unfettered. The failure to “suitably direct" the prosecutor's
post-trial discretion creates the same problem raised by a
failure to “suitably direct" the sentencing body's discretion.
Since the decision in Furman v. Georgia, 408 U.S. 238, 92
S.Ct. 2726, 33 L.Ed.2d 346 (1972), it has been clear that such
absolute discretion in a capital sentencing scheme violates the
Constitution. Rather than minimizing the risks of arbitrariness
and capriciousness, the Illinois statute injects those forbidden
characteristics into the Illinois capital sentencing process.
Because there are absolutely no guidelines anywhere in the statute
to govern a prosecutor's exercise of discretion, the State need
not seek the death penalty in any case and in fact, when faced
with a similar or identical factual situation or similarly
situated defendants, the State could in good faith request a
death sentence in one case and not in the other, all the while
acting in accord with the statute. Further, the Illinois Supreme
Court, as yet, has failed to offer any guidance on the issue.
Perhaps the most glaring example of prosecutorial abuse can
be found in another recent DuPage County murder case, People v.
LaPointe, 88 Ill.2d 482, 431 N.E.2d 344, 353 (1981), where the
Illinois Supreme Court noted" "(T]he defendant, a young man with
a significant history of criminal activity, acted with
premeditated, cold-blooded deliberation in deciding to kill a cab
driver, a homicide for which the death penalty could have been
sought, had the prosecutor elected to do so." (Emphasis added).
The fact remains that the same prosecutor's office which decided
not to seek the death penalty for Phillip LaPointe is now urging
the execution of James Free. The absurdity of the present
statute is thus revealed by a comparison of these two cases.
This Court, in Gregg, see 428 U.S. at 199, recognized that
certain types of pre-trial prosecutorial discretion, such as the
inherent power to undercharge, not charge at all, or plea
bargain, are unavoidable and an integral part of our justice
system. Gregg allows the Illinois prosecutor to make those
traditional pre-trial choices. However, the Illinois prosecutor
is also given the power under the Illinois statute to make a
vital post-trial choice: 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 is challenged on Eighth and
Fourteenth Amendment grounds. See also Ruiz v. Illinois, No.
82-6466, cert. docketed March 25, 1983,
There is another major difference between the discretion
approved in Gregg and that allowed Illinois prosecutors. In
Georgia, the only way for a prosecutor to avoid a death penalty
hearing is to refuse to charge a 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 prosecutors 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.
Grega v. Georgia, 428 U.S. at 224-5 (White, J., Burger, C.J., and
Rehnquist, J.).
In contrast to Georgia, the discretion afforded prosecutors
in Illinois is totally different. Since the Illinois statute
-24-
contains no standards whatever which govern the prosecutor's
decision whether to seek the death penalty, the statute does not
require that the prosecutor request a death penalty hearing even
if his evidence establishes one or more of the statutory
aggravating factors. Therefore, in contrast to Georgia, an
Tllinois prosecutor is free to not seek the death penalty as he
sees fit, and that decision violates neither his duty nor the
public trust.
The application of the death penalty in Illinois has
depended upon, and will always depend upon, the unguided,
personal predilection of each Illinois prosecutor. Nothing in
the statute even indicates that this should not be so. Nothing
directs these State's Attorneys to base their judgment on the
listed aggravating factors, or on any mitigating factors. To the
contrary, the unambiguous language of Section 9-l(d), that a
separate sentencing hearing shall be held simply “where requested
by the State," manifests a legislative intent to leave this
decision totally to the absolute discretion of the prosecutor.
The statute cannot withstand the critical review of this Court
and certiorari in this case should therefore be granted.
iV
CERTIORARI SHOULD BE ALLOWED TO CONSIDER WHETHER A “PROTECTIVE
SWEEP" OF PREMISZS SUBSEQUENT TO THE REMOVAL OF THE ARRESTEE FROM
THOSE PREMISES VIOLATES THE FOURTH AND FOURTEENTH AMENDMENTS AS
AN UNREASONABLE, GENERAL SEARCH WHERE THE POLICE HAVE NO REASON
TO FEAR FOR THEIR OWN SAFETY AND NO REASON TO BELIEVE ANOTHER
PERSON MIGHT BE WITHIN THE PREMISES.
A “protective sweep" can be defined as a general, cursory
inspection of premises effected by police, for reasons of safety,
subsequent to an arrest. 2 LaFave, Search and Seizure Sec. 6.4(c)
427 (1978). The concept of a protective sweep has been endorsed
as a valid exception to the Fourth Amendment's warrant
requirement because of the need for police officers to ensure
their own safety or to seek out accomplices, due to the
“'potentiality of danger surrounding the arrest,'" LaFave at
431, quoting jicGeehan v. Wainwright, 526 F.2d 397,399 (Sth Cir.
1976); People v. James Free, 94 I1l.2d 378, 447 N.E.2d 218, 227
(1983). Critical to application of the protective sweep
doctrine, however, is the presence of factors suggesting danger
subsequent to the arrest of a suspect. There being no such
circumstances below, the warrantless, general search of the
petitioner's townhouse subsequent to his arrest, approved under
the guise of “protective sweep," was unreasonable and violated
the Fourth and Fourteenth Amendments.
The Illinois Supreme Court upheld the searches of the
petitioner's home as “reasonable, necessary and cursory searches
under the exigencies of the (petitioner's) arrest [and) also
justified as valid 'protective sweeps.'" Free, 447 N.E.2d at
226. The evidence presented at the pretrial suppression hearing
demonstrates that the authorities exceeded the scope of any
necessity that may have existed.
In conducting the petitioner's arrest, the police in this
case fired a tear gas canister into the building, scorching the
floor of a second-floor bedroom. (C. 2000) No fire ever
resulted. When a tear gas canister fired into a house actually
causes a fire, exigent circumstances may well justify a
warrantless entry. See, e.g., People v. Connolly, 55 Ill.2d 421,
303 N.E.2d 409 (1973). However, a search beyond the area where
an imminent hazard may exist is impermissible. See People v.
Gualandi, 21 Ill.App.3d 992, 316 N.E.2d 195 (4th Dist., 1974).
Only in the area which the emergency requires to be investigated
can an officer properly search. See United States v.
Goldenstein, 456 F.2d 1006 (8th Cir. 1972). Furthermore, once
the emergency situation no longer exists, the justification for a
warrantless search likewise ceases. Root v. Gauper, 438 F.2d 361
(8th Cir. 1971). In this case, the danger of fire cannot
constitute an exigent circumstance which justifies the entries
into the first floor and basement of the townhouse.
Police acknowledged that they knew the tear gas canister was
on the second floor and that the fire hazard was confined to that
floor. (C. 2103) Moreover, the fact that the second floor could
be reached without proceeding through any of the rooms on the
first floor, (C. 1855-1856), made it unnecessary for officers to
-26-
go through any of those rvuoms to respond to the fire hazard.
Thus, the searches of the first floor rooms by Dubuque and Glen
Ellyn police officers cannot be justified by the potential for
fire on the second floor.
Since no fire hazard existed sufficient to justify a
thorough search of the entire house, the warrantless entry and
search of the first floor and basement can cnly be condoned under
a “protective sweep" theory. The totality of the circumstances
render such approval inappropriate.
In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968), this Court acknowledged the safety risks faced by police
officers and their need to search particular areas in order to
protect themselves in the performance of their duties. That
principle, however, “must necessarily be tempered ...by a respect
for the personal security and privacy of individuals which is
served by the Fourth and Fourteenth Amendments." State v.
Tolliver, 5 Wash.App. 321, 487 P.2d 264, 268 (1971). Before a
general search of any particular premises can be undertaken,
then, the police must have, at the least, reasonable cause to
believe their safety is endangered. Tolliver,
Some courts have found that the "potentiality for danger"
may be so high that entry and search of a premise for protective
sweep purposes will be in order even if the arrest is achieved
without entry and even if the arrestee is already in police
custody, where an unaccounted for weapon was used in the offense,
McGeehan v. Wainwright, 526 F.2d 397, or when tear gas has been
used, Hopkins v. Alabama, 524 F.2d 473 (Sth Cir, 1975).
However, in both McGeehan and Hopkins a major additional factor,
not present at bar, existed: reasonable grounds to suspect
additional persons may be present in the premises. The absence
of any reasonable belief in the presence of others is the
distinguishing feature of the instant case, see, e.g.,, Newton v.
State, 378 So.2d 297 (Fla.App. 1980), Gagliano v. State, 97 Nev.
297, 629 P.2d 781 (1981), and the point which renders the
Illinois Supreme Court's opinion unfounded.
When police have specific information that other persons may
-27-
j
be in a residence after a suspect's arrest who might pose a
threat to their safety, it is reasonable for them to search for
others. See People v. Lewis, 75 Ill.App.3d 259, 393 N.E.2d 198
(lst Dist., 1979). However, the officers gathered outside the
petitioner's townhouse had no specific reason to believe others
were inside after he was arrested, so no exigency justified the
entries into the first floor and basement.
One officer testified that the police had no information
that anyone else was in the townhouse. (C. 2102) Another testified
that only one suspect, the petitioner, was being sought and that
the police had been told he was alone inside the townhouse. (C.
2062) Yet another also acknowledged that the petitioner was the
sole suspect of the offense and that the police had information
that he was alone. (C. 2204, 2229) There was testimony that one
officer saw someone or something at both the front and rear
windows of the house. Free, 447 N.E.2d at 227. However, that
testimony, offered only to rebut the petitioner's claim that he
was in bed sleeping, should not be construed to mean that the
alleged sightings occurred simultaneously. Moreover, the officer
who supposedly saw the movement in the townhouse did not testify,
(C, 1268), and therefore the accuracy of that observation
was never tested. In any event, the sighting occurred before the
petitioner came outside and peacefully submitted to his arrest, a
factor of dispositive importance. See State v. Ranker, 343 So.2d
189 (La. 1977)
Not only did the testimony of the police officers belie any
fear for safety or suspicion that others were present, but a
videotape of the arrest, made by a local television station,
(D£.Ex. 5), completely repudiates any notion that the police
feared for their safety after the petitioner walked out of the
front door.
The tape shows that after the petitioner was taken from the
area, most of the officers lowered their weapons. Numerous
officers conqregated below the second floor window, in front of
the front door and first floor windows, the places from which
they could casily have been fired upon, in such a way as to
indicate no concern about their safety. The one officer who
specifically testified that he feared that others were inside did
not even recall where his weapon was when he entered the
building. (C. 2222) The officers' conduct outside the building
and their method cf entry into the buildings indicates that
whatever fear thev might have had was put to rest by the
handcuffing of the petitioner.
Because the evidence below fails to include any objective
facts supporting a reasonable fear on the part. of the police, the
Illinois Supreme Court's decision below conflicts with decisions
from a number of Federal Circuit Courts of Appeal. See, e.g.
United States v. Kinney, 638 F.2d 941 (6th Cir. 1981); United
States v. Gamble, 473 F.2d 1274 (7th Cir. 1973). This conflict,
together with the fact that this Court has not yet specifically
ruled on the permissibility, scope and focus of the protective
sweep, constitutes further grounds for allowance of this petition.
As a result of the unlawful entry and search below,
information was obtained which formed a cornerstone for the
issuance of a search warrant for the premises. That search later
yielded considerable evidence utilized by the State at the
petitioner's trial and death penalty sentencing hearing: a gun
purported to be the weapon used in the offense, boxes of
ammunition, clothing, brown twine, a gym bag, reloading
equipment, plastic ear muffs and a towel; several photographs of
guns and gun equipment were also taken inside the building and
used in the proceedings below. It is elementary that evidence
obtained by illegal means cannot be used to obtain a search
warrant. Silverthorne Lumber Company v. United States, 251 U.S.
385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). Because the search of
petitioner's townhouse was pursuant to an invalid warrant and the
conviction and sentence below was irreparably tainted by the
fruits of that search, this petition should be granted and the
decision below reversed.
CONCLUSION
For the foregoing reasons, petitioner respectfully requests
this Court to issue a writ of certiorari to the Illinois Supreme
Court and summarily reverse the opinion below.
Respectfully submitted,
G. JOSEPH WELLER, Deputy Defender
PAUL J. GLASER, Assistant Defender
OFFICE OF THE STATE APPELLATE DEFENDER
63 Douglas Avenue
Elgin, Illinois 60120
(312) 695-8822
Counsel for Petitioner
-30-
APPENDIX A
Opinion Of The Illinois Supreme Court
People v. Free, 94 Ill.2d 378, 447 N.E.2d 218 (1983)
218 Il. 447 NORTH EASTERN REPORTER, 2d SERIES
The PEOPLE of the State of
Illinois, Appellee,
v.
James P. FREE, Jr., Appellant.
No. 52775.
Supreme Court of Illinois.
Jan. 24, 1983.
Rehearing Denied April 8, 1983.
Defendant was convicted in the Circuit
Court, Du Page County, William V. Hopf,
J., of murder, attempted murder, and at-
tempted rape, and he appealed. The Su-
preme Court, Ryan, C.J., held that: (1) en-
try and search to determine if anyone wa.
in house who might pose a danger to police
was justified as a protective sweep; (2)
exclusion of veniremen solely on basis of
their refusal to follow death penalty did not
deny defendant his right to a jury repre-
sentative of a cross section of community;
(3) toxic psychosis prompted by voluntary
ingestion of alcohol and drugs did not con-
stitute a mental disease or defect warrant-
ing an instruction on insanity defense; (4)
testimony of psychologist as to whether de-
fendant had ability to act intentionally at
time of crime was admissible in relation to
defense of voluntary intoxication; (5) testi-
mony concerning victim's family was admis-
sible since it was not presented in a manner
as to cause jury to believe that those facts
were material to defendant's guilt; and (6)
penalty of death was imposed after proper
consideration of statutory aggravating cir-
cumstances and was neither arbitrary nor
capricious.
Affirmed.
Clark, J., concurred in part and dissent-
ed in part and filed opinion in which Simon,
J., joined.
Simon, J., concurred in part and dis-
sented in part and filed opinion in which
Clark, J., joined.
1. Searches and Seizures 3.3(1)
Initial entries into house were reasona-
ble, necessary and cursory searches under
exigencies of defendant's arrest, and were
also justified as valid “protective sweeps,”
given description of assailant and informa-
tion which led to address, as well as obliga-
tion of police to enter premises, retrieve
tear gas canister, air out house, check for
fire, and determine whether there were per-
sons present who either were in danger or
posed a substantial danger. U.S.C.A.
Const.Amend, 4. wt
2. Searches and Seizures @7(1)
In determining whether law enforce-
ment officials acted reasonably in a given
search, courts should judge the circumstanc-
es as known to the officials at the time they
acted. U.S.C.A. Const.Amend. 4.
3. Searches and Seizures #3.3(1) “
A warrantless entry by criminal law
enforcement officials may be legal when
there is a compelling need for official action
and no time to secure a warrant. USCA,
Const.Amend. 4. ~ ar
wv
4. Searches and Seizures @3.3(1) x
Exigent circumstances authorizing
warrantless entries for purpose of searching
may also authorize warrantless entries for
less intrusive purposes. U.S.C.A. Const.
Amend. 4. 5
5. Searches’ and Seizures @=3.3(1) = * "4
It was not necessary to wait until a fire
started before the officers could effect &
warrantless entry to retrieve a tear gas
canister which presented a fire hazard.
U.S.C.A. Const.Amend. 4. rite
6. Searches and Seizures @3.3(1) 4"
Officers who had knowledge that a
lent crime had been committed, that
aj
Bs Ain 4 ee
_o
“3
et «
“Al-
PEOPLE v. FREE Ill.
219
Cite as 447 N.£.24 218 (TIL 1963)
gun used had not been recovered, and that
someone might be in the house who would
have access to the weapon were justified in
effecting a warrantless entry into house for
a “protective sweep” to determine if anyone
was in the house who might pose a danger
to the police. U.S.C.A. Const.Amend. 4.
7. Searches and Seizures #=3.3(4)
Where officer was properly in house to
effect a “protective sweep,” his observation
of twine in plain view was properly used in
affidavit to determine probable cause for
issuance of a warrant to search premises for
evidence of attempted rape. U.S.C.A.
Const.Amend. 4.
8. Criminal Law @394.4(6)
If lawfully obtained information
amounts to probable cause and, apart from
tainted information, would have justified
issuance of search warrant, evidence seized
pursuant to the warrant is admissible. U.S.
C.A. Const.Amend. 4.
9. Searches and Seizures =3.6(2)
Whether probable cause exists for is-
suance of a search warrant depends upon
totality of circumstances and facts known
to officers and court when warrant is ap-
plied for. U.S.C.A. Const.Amend. 4.
10. Searches and Seizures @=3.6(2)
In deciding question of probable cause
for issuance of a search warrant, courts are
not disposed to be unduly technical; rather,
the probabilities considered are the factual
and practical considerations of everyday life
on which reasonable men, not legal techni-
cians, act. U.S.C.A. Const.Amend. 4.
11. Searches and Seizures ¢=3.6(2)
Probable cause for issuance of a search
warrant means simply that facts and cir-
cumstances within knowledge of affiant
were sufficient to warrant a man of reason-
able caution to believe that the law was
violated and that evidence of it is on the
premises to be searched. U.S.C.A. Const.
Amend. 4.
12. Criminal Law o1158(4)
A trial court's determination of factual
matters in a hearing on a motion to sup
press will not be disturbed on appeal unless
manifestly erroneous. U.S.C.A. Const.
Amend. 4. ;
13. Jury $33(2.1)
A jury qualified in compliance with
Witherspoon does not affect the validity of
a conviction.
14, Jury ¢33(1.2)
Exclusion of veniremen solely on basis
of their refusal to follow the death penalty
did not deny the defendant his nght to a
jury representative of a cross section of the
community in violation of his constitutional
rights. U.S.C.A. Const.Amends. 6, 14;
S.H.A. ch. 38, €9-1(d), par. 2, C.
15. Jury @33(1.1)
Right to trial by jury or right to a
representative jury does not include right to
be tried by jurors who have stated that
they will refuse to follow the law. U.S.C.A.
Const.Amends. 6, 14; S.H.A. ch. 38, © 9-
\(d), par. 2, C. -
16. Criminal Law @773(1)
Toxic psychosis prompted by the volun-
tary ingestion of alcohol and drugs does not
constitute a mental disease or defect war-
ranting an instruction on an insanity de-
fense. S.H.A. ch. 38, §€ 6-2, 6-3.
17. Criminal Law 53
An actor should not be insulated from
criminal! responsibility for acts which result
from a temporary mental state that is vol-
untarily self-induced. S.H.A. ch. 38, {9 6-2,
6-3.
18. Criminal Law @=57
A voluntary intoxication or a voluntary
drugged condition precludes the use of the
insanity defense unless the mental disease
or defect is traceable to the habitual or
chronic use of drugs or alcohol and the use
results in a settled or fixed permanent type
of insanity. S.H.A. ch. 38, 146-2, 6-3.
“A2-
220 tL
19. Criminal Law @655(1)
Trial court's response to State's motion
to strike the insanity defense did not imply
that the court would instruct the jury on
that issue and, hence, did not deny defend-
ant a fair trial on ground that by being
allowed to present expert witnesses on the
insanity issue he was misled into believing
that jury would be instructed on insanity
defense. S.H.A. ch. 38, 19 6-2, 6-3.
20. Criminal Law o=480
The burden of establishing the qualifi-
cations of an expert witness rests on the
proponent of the testimony.
21. Criminal Law e481
_ The trial court must be left to deter-
mine, absolutely and without review, the
fact of possession of the required qualifica-
tion by a particular expert witness.
22. Criminal Law 474
Testimony of a psychologist and psy-
chopharmacologist on the question of the
defendant's ability to act intentionally
while under ‘.e influence of alcohol and
PCP relatec to defense of voluntary intoxi-
cation and was admissible on issue whether
defendant had ability to act intentionally at
time of crime. S.H.A. ch. 38, 416-2, 6-3.
23. Criminal Law e345
Testimony of police officer with respect
to stopping defendant in his automobile at
approximately 4:00 am. on day in question
was relevant to place defendant in vicinity
of crime within 24 hours before it was
committed and was admissible.
24. Criminal Law o=385
A defendant's guilt must be established
by competent evidence uninfluenced by bias
and prejudice.
25. Criminal Law @=338(7), 1169.5(4)
Where testimony in a murder case re-
specting the fact that the deceased has left
a spouse and family is not elicited inciden-
447 NORTH EASTERN REPORTER, 2d SERIES
tally, but is presented in such a manner as
to cause the jury to believe it is material, its
admission is highly prejudicial and consti-
tutes reversible error unless an objection
thereto is sustained and the jury instructed
to disregard such evidence.
26. Criminal Law @338(7)
Testimony of homicide victim's spouse -
and his references to his family were prop-
erly admitted in that they were incidental
and not calculated and were not presented
in such a manner as to cause jury to believe
that facts relating to victim's family were
material to defendant's guilt.
27. Criminal Law @=404(3), 438(2)
A gun holster, boxes of ammunition, an
ammunition reloading device, plastic ear
muffs, a gun box, a photo of clothing and
the area where it was found, and a photo of
the murder weapon and related parapher-
nalia were relevant to prove constructive
possession and control of the murder weap-
on and the bag in which the weapon was
apparently kept, together with ammunition
suitable for the commission of the crime,
and were admissible.
28. Criminal Law @404(3, 4)
Physical evidence may be admitted pro-
vided there is proof to connect it with the
defendant and the crime; it is only neces-
sary that the object at least be suitable for
the commission of the crime, but it is not
necessary that the object actually be used
in committing the crime. '
29. Criminal Law @1169.1(10)
Admission of a gun holster, boxes of —
ammunition, and an ammunition reloading
device, if error because evidence was irrele- |
vant to show familiarity with guns in gen-
era] and to connect defendant with the
murder weapon in particular, was not prej-
udicial error where evidence of defendant's
guilt was overwhelming and the items could
not have aroused or inflamed the jury.
30. Indictment and Information 113
Indictment was not fatally defective
for failure to inform the defendant that the
“Aj-
PEOPLE v. FREE Ill.
221
Cite as 447 N.£.24 218 (IIL 1983)
death penalty would be sought; defendant
was informed that the death penalty could
be sought because he was charged with
murder and attempted rape and was made
aware on third day of jury selection that
burglary would also be proved as an aggra-
vating factor. S.H.A. ch. 38, §9-1(d), par.
2, C; U.S.C.A. Const.Amends. 5, 14.
31. Criminal Law @720(9)
Prosecutor's closing argument at guilt
phase that no insanity defense existed as a
matter of law and that intoxication defense
was a false defense or a lie was a proper
comment upon evidence and was not preju-
dicial as predisposing jury to reject evi-
dence of extreme mental or emotional dis-
turbance at sentencing phase. S.H.A. ch.
38, $9-1(d), par. 2, C; U.S.C.A. Const.
Amends. 5, 14.
32. Criminal Law 796
Instruction on death penalty included
the two relevant statutory mitigating fac-
tors and also provided that mitigating fac-
tors were not limited to those listed, but
that the jury should consider any other
mitigating factors present in the case and
was not erroneous as precluding jury from
considering as a mitigating factor any as-
pect of defendant's character or record and
any of the circumstances of the offense that
defendant proffered as a basis for a sen-
tence less than death. S.H.A. ch. 38,
© 9-1(d), par. 2, C; U.S.C.A. Const.Amends.
5, 14.
33. Criminal Law o=796
Instruction that sentencing jury con-
sider any mitigating factors which were
relevant to imposition of death penalty was
sufficient to satisfy the constitutional provi-
sion that the trial court instruct the jury to
consider potential of defendant to be re-
stored to useful citizenship. S.H.A. ch. 38,
©9-1(c); S.H.A. Const. Art. 1, § 11.
34. Criminal Law @1122(1)
Record served to establish, contrary to
defendant's contention, that the jury was
instructed to consider all mitigating factors
which were relevant to the imposition of
the death penalty, not just statutory miti-
gating factors. S.H.A. ch. 38, © 9-1(d), par.
2, C; U.S.C.A. Const.Amends. 5, 14.
35. Criminal Law @1208(1)
A unanimous jury or the court must
weigh mitigating factors against aggravat-
ing factors and must conclude that there
are no mitigating factors sufficient to pre-
clude imposition of the death sentence; it is
not a question of the state proving an issue
beyond a reasonable doubt, but is simply a
weighing process. S.H.A. ch. 38, © 9-l(c, e,
g, h). .
36. Criminal Law 2796
The prosecution did not have burden of
proving beyond a reasonable doubt that no
mitigating factors precluding imposition of
death penalty were present and, hence, no
instruction to that effect was required.
S.H.A. ch. 38, £9-I(e, e, g, h).
37. Criminal Law @986.6(3)
The only finding necessary in determin-
ing admissibility of evidence at the aggra-
vation/ mitigation phase is that the evidence
be relevant; the rules of evidence are sus-
pended at this stage so that judge or jury
as sentencing authority may have all rele-
vant evidence before it. S.H.A. ch. 38,
19-1(c, e, g, h).
38. Criminal Law @986.6(3)
Testimony of police officer with respect
to observing defendant driving a pickup
truck slowly past residences and commercial
establishments in area of crimes at time
they were committed was admissible dumng
aggravation/ mitigation phase as relevant to
determination of proper sentence in that it
bore upon likelihood or unlikelihood that
defendant would commit other offenses, ap-
peared trustworthy, was solicited after af-
fording defendant an opportunity to cross-
examine officer, and was not challenged as
to accuracy. S.H.A. ch. 38, © 9-(c, e, g, h).
“A4a-
222 Ill.
39. Criminal Law @= 1042
Where defendant did not object to ad-
missibility of probation officer’s testimony,
but only to admissibility of presentence re-
port itself, which was not admitted in evi-
dence, and defendant requested that pre-
sentence investigation report be made over
State's objection, failure to object to admis-
sion of that evidence operated as a waiver
of his right to have the Supreme Court
consider the question on appeal.
40. Criminal Law @1208(1)
Sentencing body’s discretion, under
statute requiring the judge or jury to first
determine whether the state has proved a
statutory aggravating factor beyond a rea-
sonable doubt before it proceeds to weigh
aggravating and mitigating factors and to
make its decision whether or not to sen-
tence the defendant to death, is suitably
directed and limited so as to minimize the
risk of wholly arbitrary and capricious ac-
tion. S.H.A. ch. 38, 4 9-1(g, h).
4
41. Criminal Law ¢1208(1)
Determining whether death sentence is
proper in particular case requires considera-
tion of character and record of the individu-
al offender and the circumstances of the
particular offense as a constitutionally in-
dispensable part of the process of inflicting
the penalty of death. S.H.A. ch. 38, £9
1(g, h).
42. Criminal Law @1206(2)
A death sentence does not offend the
proportionality requirement if it is commen-
surate with the seriousness of the crimes
and gives adequate consideration to any
relevant mitigating circumstances, includ-
ing the rehabilitative potential of the de-
fendant. S.H.A. ch. 38, £ 9-1(g, h).
43. Criminal Law @1208(1)
Arbitrary or capricious death sentences
must be avoided by adequately defining
capital crimes, by directing sentencing dis-
cretion, and by providing adequate judicial
review. S.H.A. ch. 38, ©9-1(g, h).
-Ao-
447 NORTH EASTERN REPORTER, 2d SERIES
44. Homicide 354
Rape 64
Penalty of death imposed on conviction
of murder and attempted rape was justified
by statutory aggravating circumstances and
was neither arbitrary nor capricious.
S.H.A. ch. 38, © 9-1(g, h).
Mary Robinson, Deputy State Appellate
Defender and Paul J. Glaser and Kyle Wes-
endorf, Asst. State Appellate Defenders, E)-
gin, for appellant.
J. Michael Fitzsimmons, State's Atty.,
Wheaton (Thomas L. Knight, Chief, Crim.
Div. and Barbara A. Preiner, Asst. State's
Attys., Wheaton, of counsel), and Daniel E.
May, Villa Park, for the People.
RYAN, Chief Justice:
James Free was indicted in the circuit
court of Du Page County for the murder
(Il. Rev.Stat.1977, ch. 38, par. 9-1) and at-
tempted rape of Bonnie Serpico (I}l.Rev.
Stat.1977, ch. 38, par. 8-4) and for the at-
tempted murder and attempted rape of Lon
Rowe. At the conclusion of the trial, the
jury returned verdicts of guilty on all
counts. The prosecutor requested a hearing
to determine whether the death penalty
should be imposed. (Ill.Rev.Stat.1977, ch.
38, par. 9-1(d).) The jury found unani-
mously beyond a reasonable doubt that the
victim was murdered in the course of a
burglary and a rape, both of which are
aggravating factors supporting the imposi-
tion of the death penalty. (Ill.Rev.Stat.
1977, ch. 38, par. 9-1(bX6Xc).) The jury
also found no mitigating factors existed to
preclude the imposition of the death penal-
ty. (Ill.Rev.Stat.1977, ch. 38, pars. 9~1(c),
(g).) The trial judge entered judgment sen-
tencing the defendant to death. The de-
fendant was also sentenced on the other
counts of attempted murder and attempted
rape. The death sentence was stayed (73
Ill.2d R. 60%a)), pending direct appeal to
this court, pursuant to Rule 603 (73 Ill.2d R.
PEOPLE v. FREE Ill.
223
Cite as 447 N.£.26 218 (TL 1983)
603). For the reasons expressed in this
opinion, we affirm the convictions and the
sentences.
The circumstances of the crimes were tes-
tified to by Lori Rowe. The defendant
testified but claimed not to have any actual
recollection of the circumstances surround-
ing his criminal acts.
Lori Rowe began work shortly before
midnight on April 24, 1978, at the M-2
Service Center, an all-night keypunch busi-
ness. It is located in a large office complex
known as the Glen Hill Office Complex in
Glen Ellyn, Illinois. Shortly before 4 a.m.,
while Lori Rowe was sitting at her desk,
she saw a stranger, later identified by her
as the defendant, standing just inside the
door. Bonnie Serpico, the only other em-
ployee present, was in a back room. The
defendant held a gun in his left hand and a
cloth bag in the other,
As Lori Rowe approached the defendant,
Bonnie Serpico came out of the back room.
The defendant ordered both women into the
back room. He forced them, at gunpoint,
into the lunchroom and ordered them to lie
down on their stomachs, which they eventu-
ally did.
The women asked him what he was there
for and if he wanted their money. The
defendant stated that he did not want their
money, but that they should take off their
clothes because--he wanted to rape them.
Rowe started to cry, and Serpico tried to
persuade the defendant to take their money
and leave the office. The defendant again
stated that he did not want their money
and turned toward Rowe, telling her to
remove her clothes. Serpico continued try-
ing to reason with the defendant, but he
stated, “I've done this before.” As he made
that statement, he moved toward Rowe and
took some twine out of the cloth bag he was
carrying. He tolu her to put her hands
behind her back.
After securely tying Rowe, the defendant
took Serpico into the other room. As they
were going into the other room, Serpico
looked in his bag and commented “you
came prepared for this." The defendant
replied, “Yes, I've all sorts of stuff in
there.”
After Serpico and the defendant went
into the next room, Rowe began struggling
to get loose. She heard Serpico say that
she had her clothes off and the defendant
responded “get on your stomach, put your
hands behind your back, | want to We your
hands.” Serpico urged the defendant not to
tie her hands, pointing out that she had not
resisted the defendant.
In the meantime, Rowe managed to get
her shoes off and was attempting to get the
rope off her feet. The defendant came into
the room to check on Rowe, and he saw that
Rowe had loosened the rope. He became
angry and yanked the rope, pulling her
sideways until she fell onto her side.
While lying on her side, Rowe heard Ser-
pico get up and run, The defendant started
running after her. Seconds later Rowe
heard a gunshot. The defendant then ran
back into the room where Rowe was lying.
Rowe was sitting up now and the defendant
pointed his gun at her and she cried “oh
no.” As she lowered her shoulder and
turned away from the defendant, he shot
her and ran from the building.
With her hands still tied behind her back,
Rowe managed to crawl out to the main
office area where Serpico lay dead. Rowe
was able to pull the telephone off a desk
and contact the police. She remained there
until the police arrived about 15 minutes
later,
An autopsy revealed that the cause of
Serpico’s death was exsanguination, or se-
vere loss of blood, related to a gunshot
wound.
Through a police investigation, suspicion
focused on the defendant, who was arrested
early the next morning, April 25, 1978, in a
house owned by his father in Dubuque,
Iowa. He was charged with one count of
murder and attempted rape against Bonnie
Serpico and one count of attempted murder
and attempted rape against Lon Rowe.
The jury found the defendant guilty on
all counts. Ata sentencing hearing on the
murder conviction, as noted, the jury found
-Ao-
224 i.
that Bonnie Serpico was killed in the course
of a rape and a burglary and that no miti-
gating factors existed sufficient to preclude
imposition of the death sentence. The trial
judge entered a judgment sentencing the
defendant to death. Ata later sentencing
hearing, on the other convictions, the court
sentenced the defendant to serve two con-
current 15-year prison terms for the two
counts of attempted rape and a consecutive
30-year sentence for the attempted murder.
The defendant has raised some 16 issues
to be resolved on this appeal, Other facts
relevant to their resolution will be set forth
with the discussion of each particular issue.
Several issues raised in this case have been
resolved in prior opinions of this court and
will not be further discussed in this opinion.
The defendant challenges the constitution-
ality of our death penalty statute, which
was resolved in People ex rel. Carey ¥.
Cousins (1979), 77 111.24 581, 34 Ill.Dec. 137,
897 N.E.2d 809, The defendant argues that
our statute does not include attempt (here,
attempted rape) in the list of aggravating
factors which trigger eligibility for the
death penalty, That issue was resolved
against the defendant in People v. Walker
(1982), 91 M1.2d 502, 64 Tll.Dec, 531, 440
N.E.2d 83. Defendant argues that the trial
court erred when it held it has no power or
discretion to disregard a jury's verdict in a
death penalty proceeding and must enter
judgment on that verdict, That was re-
solved, contrary to defendant's position, in
People v. Lewis (1981), 88 Iil.2d 129, 58
Ill.Dec. 895, 430 N.E.2d 1846, and People v.
Gaines (1981), $8 I1.2d 342, 58 Ill.Dec. 795,
430 N.E.2d 1046. Also previously rejected
were the contentions that the appellate re-
view procedure provided by our statute is
inadequate (People v. Brownell (1980), 79
I.2d 508, S414 38 Ml.Dec. 757, 404
N.E.2d 181; People v. Gaines (1981), 88
I.2d 342, 383, 58 Il.Dec, 795, 430 N.E.2d
1046; People v, Lewis (1981), 88 Ill.2d 129,
146-47, 58 Ill.Dec, 895, 430 N.E.2d 1346),
and that defendants sentenced to death are
denied relief under the Post-Conviction
Hearing Act (Ill.Rev.Stat.1977, ch. 38, par.
122-1 et seq.), in violation of their constitu-
tional rights. People v. Gaines (1981), 88
-A7-
447 NORTH EASTERN REPORTER, 2d SERIES
Ill.2d 342, 384-86, 58 Ill.Dec. 795, 430
N.E.2d 1046.
As to the issues to be decided in this case,
we first consider whether a motion to sup
press certain physical evidence should have
been granted.
Through police investigation it was
learned that the alleged assailant was
James Free, a former employee of the Glen
Hill Office Complex. On Sunday, April 23,
1978, another incident involving the defend-
ant occurred. It was reported by several
women working at the office complex that
a man, later identified by them as the de
fendant, came into their office. The wom-
en questioned him, and he said that he had
come to clean the carpet. He walked
through the office and then left.
Two of the women, Julie Kelly and Mary
Ferner, went down to the basement to a
vending machine. They saw the defendant
walk past the doorway, When they went
back into the hallway, they observed him
staring at them through a window, They
ran back to their office and later received a
phone call from a person with a male voice.
The caller described the women who had
been in the basement and stated that they
had left change in the vending machine.
He suggested they come down to get their
change. The women knew they had not
left any change and refused to go down to
the basement. They then saw the defend-
ant riding around the parking lot of the
office complex in a red Ford pickup truck,
The police talked with the manager of
the Glen Hill Office Complex, and he stated
that the description of the offender and the
vehicle driven by the offender matched that
of James Free, a former employee of the
construction company that built the com-
plex and of the complex itself. He was
later identified in a photo lineup by Lori
Rowe as her assailant. Further informa-
tion led the police to believe that the de-
fendant was residing at his parents’ town-
house in Dubuque, lowa, on leave for 30
days from the army. :
On April 25, 1978, Detective Velon and
two other Glen Ellyn, Illinois, police officers
PEOPLE v. FREE I,
225
Cite as 447 N.E.24 218 (IL 1983)
accompanied lowa officers to the Free
townhouse in Dubuque. The police had an
arrest warrant for James Free for murder
and attempted murder. Emergency equip-
ment, including fire equipment and an am-
bulance, were stationed in the vicinity.
The police officers, using a public address
system, made repeated attempts to call the
defendant from the house for about 30 min-
utes, After that time, and after seeing
someone at both the front and back win-
dows, a tear gas canister was fired into the
second-floor window. The defendant came
out of the house and was ordered to lie on
the ground with his hands out in front of
him. Other officers were ordered to watch
the house in the event that someone else
was still in there. While lying on the
ground, the defendant was handcuffed.
The defendant, at this time, was asked
where his gun was and whether anyone was
in the house. He replied that his gun was
in the basement and that no one was in the
house. No other questions were asked of
the defendant. The defendant was then
taken to the Dubuque police department.
Only a short period of time elapsed between
the time the defendant came out of the
house and the time he was placed in the
squad car. No threats were made, and no
physical contact ensued, although it is indi-
cated that officers had guns pointed at him
during this period.
After the defendant was in custody, sev-
eral officers attempted to enter the house.
Captain Egan of the Dubuque police de-
partment entered and proceeded to the
Second floor “to make certain there was no
one else pres#nt in the building and to make
certain that the tear gas projectile did not
hit someone or start a fire.” On his first
two entries, Captain Egan was forced out
of the house by the tear gas. On his third
trip to the second floor, Egan retrieved the
tear gas canister.
Officer Kisting and Detective Velon at-
tempted to check the first-floor area to
determine if anyone else was present in the
building. During this entry, Velon ob-
served brown twine “in a garbage bag, on
the very top of that bag, fully exposed * *.”
He testified that the twine was similar to
the twine that he knew had been used to tie
the hands of Lori Rowe. He also testified
that he was not looking for the twine when
he entered the premises and did not seize
the twine during this search,
Officer Kisting and Detective Velon also
went to the basement. Their search of the
first floor and the basement lasted about 45
seconds. Captain Egan testified that all
three of his attempts to search the second
floor lasted about two minutes.
All three officers testified that they did
not look into any drawers, cabinets or clos-
ets during their search. The only item
seized was the tear gas canister, which had
left a scorch mark on the floor of the bed-
room where it landed.
The officers left the scene and’ obtained a
search warrant through an lowa magis-
trate. They returned to search the house
and seized a gun, boxes of ammunition,
clothing, the brown twine, a gym bag, re-
loading equipment, plastic earmuffs, and a
towel. Photographs were also taken of the
scene,
The defendant filed a motion to suppress
the physical evidence because the granting
of the search warrant was based upon the
defendant's involuntary statement made
following his arrest and information gained
during allegedly unlawful entries into the
house after he was arrested. The defend-
ant also filed several motions to suppress
certain statements, which motions are not
before us on this appeal,
The trial court denied the motion to sup-
press the physical evidence after a lengthy
evidentiary hearing. The court found that
the entries into the house were not unlaw-
ful searches and that the statement made
by the defendant that his gun was in the
basement at the time of his arrest was
involuntary, but not in violation of his Mi-
randa rights. The court held that although
the statement could not be used as evi-
dence, it was properly used in the affidavit
for a search warrant. The court also found
that even excluding the “gun statement”
and information gained in the prior entries
-A8-
226 = i.
and searches of the house, the affidavit and
oral testimony given to the issuing magis-
trate constituted probable cause for the is-
suance of the warrant.
On appeal, the defendant again argues
that the search warrant was invalid because
it was based on information gathered at an
allegedly prior illegal entry and on the al-
legedly involuntary statement made by the
defendant. He also argues that because the
warrant is invalid, all the evidence seized
pursuant to the warrant must be sup-
pressed.
{1] We hold that the prior entries into
the house were reasonable, necessary and
cursory searches under the exigencies of
defendant's arrest. The entries were also
justified as valid “protective sweeps.”
While lawfully on the premises, Detective
Velon observed the twine which was in
plain view. This information was therefore
properly included in the search warrant af-
fidavit and relied upon by the magistrate.
The information concerning the twine, plus
other information presented to the magis-
trate, all of which will be discussed later,
established probable cause to issue the war-
rant, even without consideration of the de-
fendant’s allegedly involuntary statement.
Therefore, we need not decide whether the
statement could properly be considered in
support of the search warrant.
(2-4) The guiding principle is reasona-
bleness in fourth amendment searches and
seizures. (United States v. Chadwick
(1977), 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53
L.Ed.2d 538, 447.) In determining whether
law-enforcement officials acted reasonably
in a given case, courts should judge the
circumstances as known to the officials at
the time they acted. (People v. Clay (1973),
55 I.2d 501, 504, 304 N.E.2d 280.) It must
be remembered “that a warrantless entry
by criminal law enforcement officials may
be legal when there is compelling need for
official action and no time to secure a war-
rant.” (Michigan v. Tyler (1978), 436 U.S.
499, 509, 98 S.Ct. 1942, 169, 56 L.Ed.2d 486,
498.) Warrantiess searches are permissible
where exigent circumstances are present.
Since exigent circumstances authonze war-
-A9-
447 NORTH EASTERN REPORTER, 2d SERIES
rantless entries for purposes of searching,
certainly circumstances may exist which au-
thorize warrantless entries for less intrusive
purposes.
We believe that circumstances existed
here which justified the warrantless entry
into the house. In fact, the police had an
obligation to enter the premises, retrieve
the tear gas canister, air out the house,
check for fire, and determine whether there
were persons present who either were in
danger or posed a substantial danger to the
police. (See 2 W. LaFave, Search and Sei-
zure secs. 6.4(c), 6.6 (1978).) In People v
Connolly (1973), 55 Ul.2d 421, 308 N.E.2d
409, the police surrounded a two-story
building, and efforts to persuade the de-
fendant to surrender had failed. Tear gas
canisters were fired into the building, and a
fire started on the second floor. Defendant
was arrested as he descended the stairs
from the second floor. A fireman entered
the building and was overcome by smoke.
A police officer then entered the apartment
attempting to assist the fireman, “as well
as attempting to locate other persons possi-
bly still in the gas-filled house.” (People v.
Connolly (1973), 55 WL2d 421, 427, 303
N.E.2d 409.) The officer observed a fur
coat and two revolvers on top of a garbage
can. He seized the evidence.
The court in Connolly held that the trial
court properly denied the defendant's mo
tion to suppress, The court stated that the
officer was in the building to help a fire-
man, as well as to ascertain if any persons
were in the building. The items seized
were known by the officer to be similar to
those used in the commission of a crime,
and they were in plain view. People v.
Connolly (1973), 55 UL2d 421, 427, 308
N.E.2d 409.
(5] A substantially similar situation ex-
isted in our case. The officers entered the
house to make certain there was no one in
the house who was either a danger to the
police or in danger himself. Also, the offi-
cers were concerned about the fire hazard
presented by the tear gas canister, which
did, in fact, scorch the floor. It was not
|
PEOPLE v. FREE I.
227
Cite as 447 N.E.24 218 (IL 1983)
necessary to wait until a fire started before
the officers could enter to retrieve the tear
gas canister as (he defendant would appar-
ently require. >
{6} The entry and search to determine if
anyone is in the house who may pose a
danger to the police is often referred to as a
“protective sweep.” Professor LaFave
states:
“In some situations, the ‘potentiality
for danger surrounding the arrest’ may
be so high that entry of premises to make
a ‘protective sweep’ will be permissible
even though the arrest itself was
achieved without entry. Typically, the
reason no entry was made to arrest is
because the police perceived the situation
as a very dangerous one and thus took
Steps to cause the prospective arrestee to
exit the premises and submit to arrest
outside. Even with that person now in
custody, the police may have good reason
to doubt whether they can withdraw
from the area with their prisoner without
being fired upon, in which case an entry
and ‘protective sweep’ is justified. Such
entries have been upheld when a weapon
used in a recent crime by the arrestee or
& weapon used by someone in firing at
the police from those premises is as yet
unaccounted for, and also’ when police
have information the defendant was
travelling with armed associates or that
the defendant was armed and accompa-
nied by another.” 2 W. LaFave sec.
6.4(c), at 431 (1978).
The officers’ entry into the house falls
within the above rule. The officers knew
that defendant had used a gun in the com-
mission of the crimes. His brother-in-law
had told the police that the defendant
carried a handgun in his truck. When the
defendant was captured, he did not have
the gun. Although there was no evidence
that the defendant had an accomplice in the
commission of the crimes, one officer testi-
fied that he saw someone at both the front
and back windows of the house before the
defendant came out, and he could not be
sure if both were the same person. Thus,
the officers had knowledge that a violent
crime had been committed, that the gun
used had not been recovered, and that
someone was possibly in the house who
would have access to the weapon. There
was a potentiality for danger surrounding
the arrest which justified the “protective
sweep” of the house. (See McGeehan v.
Wainwright (5th Cir.1976), 526 F.2d 397.)
A serious and demonstrable potential for
danger clearly existed here. (See United
States v. Kinney (6th Cir.1981), 688 F.2d
941; United States v. Smith (5th Cir.1975),
515 F.2d 1028, 1031.) The officers did not
enter the house for the purpose of conduct-
ing a search except for the limited purposes
indicated. Only this limited search was
made while in the house, and nothing ex-
cept the tear gas canister was seized. Even
the brown twine, which one officer ob-
served while in the house, was not taken,
although it resembled twine which had been
used to bind the victims. ;
{7} At the hearing on the motion to
suppress, the trial court was shown a video-
tape of the entire arrest scene. Although
defendant argues that the videotape dem-
onstrates that the officers did not feel that
they were in danger, the court was of the
opinion that the videotape and other evi-
dence showed that an exigency existed.
The court stated, “Having viewed the vi-
deotape and having considered the testimo-
ny in my opinion there was a sufficient
exigency to have warranted these entrances
by the officers.” The trial court found that
the entrances were reasonable for the rea-
sons stated by the officers and justified
under the exigencies of the arrest. Detec-
tive Velon was properly in the house, and
his observation of the twine in plain view
was properly used in the affidavit for the
search warrant. See People v. Connolly
(1973), 55 Ill.2d 421, 427, 303 N.E.2d 409;
People v. Bombacino (1972), 51 [11.24 17, 280
N.E.2d 697.
The defendant also argues that to find
probable cause the lowa magistrate relied
on Detective Velon’s observation of the
twine made during an illegal search and the
defendant's involuntary statement made at
the time of his arrest and that, therefore,
-Al0-
228 Il.
the warrant was invalid. The defendant
argues that any unlawfully obtained infor-
mation used to secure a search warrant
invalidates that warrant and the subse-
quent search is a fruit of the poisonous tree,
even if probable cause can be found without
the illegal information.
{8} As we have already stated, Detec-
tive Velon’s entry into the house was legal,
and his observation of the twine in plain
view was properly included in the affidavit
for the search warrant. The only remain-
ing allegedly unlawfully obtained informa-
tion used to secure the search warrant was
the statement made by the defendant at the
time of his arrest, which the trial court,
while suppressing its use as evidence, per-
mitted to be used in the affidavit for the
search warrant. We need not decide
whether it was properly included in the
affidavit for “[i}f the lawfully obtained in-
formation amounts to probable cause and
would have justified issuance of the war-
rant, apart from the tainted information,
the evidence seized pursuant to the warrant
is admitted.” James v. United States (D.C.
Cir.1969), 418 F.2d 1150, 1152; United
States v. Marchand (2d Cir.1977), 564 F.2d
983, 1002; United States v. Koonce (8th
Cir.1973), 485 F.2d 374, 379; see also 3 W.
LaFave, Search and Seizure sec. 11.4(f), at
649-50 (1978,. Me
The magistrate who issued the warrant
had before him the affidavits of two police
officers and the oral testimony of one of the
officers. He was informed that the officers
had an arrest warrant for defendant which
indicated there was probable cause to be-
lieve defendant had committed the crimes
with which he was charged. The mags-
trate knew that the defendant had been
arrested after he was forced from the
house, for which a search warrant was
sought, and that the weapon used in the
commission of the crimes was not recov-
ered. The magistrate was also informed
concerning the brown twine which an offi-
cer saw while lawfully in the house. It was
described to the magistrate as the same
color, size and texture as that used to tie
the victims. The affidavits also stated that
-All-
447 NORTH EASTERN REPORTER, 2d SERIES
the defendant's brother-in-law, a police of-
ficer employed by the Wheaton, Illinois po-
lice department, told the affiants that on
April 22 or 23 defendant had in his posses-
sion bullets of the same caliber used on the
victims and that the defendant carried a
handgun in his truck capable of firing the
bullets that were taken from the victims’
bodies. The magistrate was also informed
that the assailant had in his possessicn a
cloth bag in which he carried the twine and
that his face had been covered with a terry-
cloth towel which was tied with brown
twine. An officer testified before the mag-
istrate that a military button had been
found at the scene of the crime and that
defendant was, at that time, a member of
the United States Army. The property list-
ed in the search warrant consisted of the
gun, bullets, brown twine, towel, white
laundry bag, multicolored plaid shirt (assail-
ant had been described as wearing a multi-
colored plaid shirt) and clothing with mili-
tary-type buttons, with a button missing.
With the exception of this last item, there
was testimony that the assailant had all of
these items in his possession when the
crimes were committed. The defendant
had returned to the house, for which the
search warrant was sought, the same day
the crimes were committed, had slept there
overnight, and had been forced from the
building the next morning by the use of
tear gas and did not have the items listed in
the search warrant in his possession when
he came from the house.
(9, 10] Whether or not probable cause
exists in a particular case depends upon the
totality of the circumstances and facts
known to the officers and court when the
warrant is applied for. In deciding the
question of probable cause the courts are
not disposed to be unduly technical. Rath-
er, the probabilities considered are the fac-
tual and practical considerations of every-
day life on which reasonable men, not legal
technicians, act. Draper v. United States
(1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d
327; People v. Clay (1973), 55 Ill.2d 501,
505, 304 N.E.2d 280.
PEOPLE v. FREE Ill.
229
Cite as 447 N.E£.24 218 (UL 1983)
(11,12) Probable cause means simply
that the facts and circumstances within the
knowledge ot the affiant were sufficient to
warrant a man of reasonable caution to
believe that the law was violated and evi-
dence of it is on the premises to be
searched. It is not required that the com-
plaint or affidavits show beyond a reasona-
ble doubt that the warrant should be issued.
(See People v. Fiorito (1960), 19 Ill.2d 246,
257, 166 N.E.2d 606; People v. Francisco
(1970), 44 INl.2d 373, 376, 255 N.E2d 413.)
In our case, even if we exclude defendant's
allegedly involuntary statement that the
gun was in the basement of the house, the
information before the magistrate was suf-
ficient to establish probable cause for the
issuance of the search warrant. The court
held extensive hearings and made findings
of fact. The trial court's determination of
factual matters in a hearing on a motion to
Suppress will not be disturbed unless mani-
festly erroneous. (People v. Conner (1979),
78 Ill.2d 525, 532, 36 Ill. Dec. 672, 401 N.E.2d
513; People v. Williams (1974), 57 Ill.2d 239,
246, 311 N.E.2d 681; People v. Clay (1973),
55 Ill2d 501, 505, 304 N.E.2d 280.) We
conclude that the trial court's determina-
tion, even excluding consideration of the
involuntary statement, was not manifestly
erroneous.
(13] The defendant next contends that
he was denied a fair trial because the jury
was selected in compliance with Wither-
spoon v. Illinois (1968), 391 U.S. 510, 88
S.Ct. 1770, 20 LEd.2d 776, resulting in a
conviction-prone jury. We need not ad-
dress that issue here because we held in
People v. Lewis (1981), 88 Ill.2d 129, 147, 58
Ill. Dec. 895, 430 N.E.2d 1346, that a jury
qualified in compliance with Witherspoon
does not affect the validity of the convic-
tion.
The defendant also contends that certain
studies demonstrate that a venire qualified
in compliance with Witherspoon results in a
jury not only conviction prone, but also
unwilling to accept an insanity defense.
We need not address that issue because, as
will be discussed later, this defendant did
not present an insanity defense and was not
entitled to an insanity-defense instruction.
(14,15) The defendant makes the fur-
ther objection that the exclusion of venire-
men solely on the basis of their refusal to
follow the death penalty law denies the
defendant his right to a jury representative
of a cross-section of the community in viola-
tion of his sixth and fourteenth amendment
rights. (Cf. Taylor v. Louisiana (1975), 419
U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690.)
This contention was specifically rejected in
Lockett v. Ohio (1978), 438 U.S. 586, 98
S.Ct. 2054, 57 LEd.2d 973, and we reject it
also. In Lockett the court stated:
“Nor was there any violation of the
principles of Taylor v. Louisiana, supra.
In Taylor, the Court invalidated a jury
selection system that operated to exclude
a ‘grossly disproportionate’ [citation]
number of women from jury service
thereby depriving the petitioner of a jury
chosen from a ‘fair cross-section’ of the
community (citation). Nothing in Taylor,
however, suggests that the mght to a
representative jury includes the right to
be tried by jurors who have explicitly
indicated an inability to follow the law
and instructions of the trial judge.”
(Lockett v. Ohio (1978), 488 U.S. 586, 596-
97, 98 S.Ct. 2954, 2960, 57 L.Ed.2d 973,
984-85.)
(See Spinkellink v. Wainwright (5th Cir.
1978), 578 F.2d 582.) The right to trial by
jury or the right to a representative jury
does not include the right to be tried by
jurors who have stated that they will refuse
to follow the law.
We have previously rejected the conten-
tion that a juror who states that he would
be able to decide the issue of guilt impar-
tially should be permitted to pass on that
issue notwithstanding his inability to vote
for the death penalty. (Peopie v. Gaines
(1981), 88 I!].2d 342, 357, 58 Ill.Dee. 795, 430
N.E.2d 1046.) In People v. Lewis (1981), 88
I2d 129, 146-47, 58 Ill.Dec. 895, 430
N.E.2d 1346, we also rejected the argument
that the mere conviction of a defendant by
a jury establishes “good cause” under sec-
tion 9NdN2VC) (Il.Rev.Stat.1977, ch. 38,
par. 9-1(dX2\C)) to excuse the convicting
-Ai2-
230 = I.
jury and to impanel another jury for sen-
tencing purposes. People v. Lewis (1981),
88 Ill.2d 129, 146-47, 58 Ill.Dec. 895, 430
N.E.2d 1346.
The defendant states that of the four
veniremen excused for cause, over defense
objection, only one stated that he would
automatically vote against the death penal-
ty, while the answers of the other three
jurors were “equivocal.” The defendant's
characterization of the potential jurors’ an-
swers results from his focus on a single
question and answer in isolation from oth-
ers. (People v. Gaines (1981), 88 Ill.2d 342,
352, 58 Ill.Dec. 795, 430 N.E.2d 1046.) The
defendant also focuses on the answers given
to general questions instead of the answers
given to specific questions dealing with the
willingness or unwillingness of a potential
juror to follow the death penalty law. Our
examination of the record satisfies us that
the standards of Witherspoon are clearly
met. The record unambiguously establishes
that each of these veniremen would not
impose the penalty of death regardless of
the evidence. They have not stated that
they have only general religious or moral
objections to the death penalty, but have
made it unmistakably clear that they would
automatically vote against the death pewal-
ty without regard to the evidence or the
law. In considering any incons'stencies in
the answers given by a venireman, we rec-
ognize the superior position of the trial
judge to ascertain the meaning which the
one being questioned intends to convey.
People v. Gaines (1981), 88 Il1.2d 342, 357, 58
Ill. Dec. 795, 430 N.E.2d 1046.
The defendant next claims that the trial
court erred in ruling that toxic psychosis is
not an insanity defense under sec\.on 6-2 of
the Criminal Code of 1961 (II| Rev.Stat.
1977, ch. 38, par. 6-2). The defendant's
position is that the trial court should have
instructed the jury on toxic psychosis as a
form of mental disease or defect under sec-
tion 6-2 and also instructed the jury on the
defense of voluntary intoxication. (Ill.Rev.
Stat.1977, ch. 38, par. 63.) The defendant
also claims that the trial court misled him
into believing that he would instruct the
jury on insanity by allowing the defend-
447 NORTH EASTERN REPORTER, 2d SERIES
ant’s expert witnesses to testify, thereby
denying him a fair trial.
The State argues that toxic psychosis,
under the facts of this case, is not a mental
disease or defect in the legal sense. The
State argues that the voluntary-intoxica-
tion or drugged-condition provision of sec-
tion 6-3 of the Criminal Code of 1961 (III.
Rev.Stat.1977, ch. 38, par. 6-3) should be
read to qualify or limit the legal meaning of
the term “mental disease or mental defect”
in section 6-2, so that a “mental disease or
mental defect” does not include a condition
which might otherwise qualify as a mental
disorder from a medical viewpoint when
that condition is attributable solely to vol-
untary intoxication on alcohol or drugs or
both. The State also contends that the trial
court did not mislead the defendant.
The defendant testified that on the night
of April 23, 1978, and into the morning of
April 24, 1978, he had consumed a few
beers, a marijuana cigarette and a “mint
leaf or, as it's called, dust.” The mint leaf
was soaked in a PCP or phencyclidine com-
pound and dried. The defendant testified
that he had used PCP on only three prior
occasions. The defendant testified that he
had no actual recollection of what he had
done between 12:30 a.m. and 5:30 a.m. on
April 24, 1978. The crimes occurred at ap-
proximately 4 am. on April 24.
The defendant also testified that his “rec-
ollection” of the incident and the informa-
tion he gave his expert witnesses was from
“bits and pieces of dreams.” The dreams
started about one month after he was incar-
cerated. The defendant also indicated that
his “recollection” of the incident was taken
from reports and interviews from his attor-
ney that the defendant had read.
The defendant had three expert witnesses
testify in his behalf. Doctor Lyle Rossitter,
a psychiatrist, testified that the defendant
was suffering from a mental disease;
namely, “a toxic psychosis, secondary to
some sort of chemical or drug intoxication,”
which is listed as a mental disease in the
Diagnostic and Statistical Manual of Mental
Disorders (2d ed. 1968), published by the
-Al3-
PEOPLE v. FREE Ill.
231
Cite as 447 N.E.24 218 (lL 1983)
American Psychiatric Association. Doctor
Rossitter’s opinion was that the defendant
could not appreciate the criminality of his
acts or conform his conduct to the require-
ments of the law.
Doctor Rossitter, however, indicated that
he had several reservations about his diag-
nosis and opinion. He testified that the
defendant was not sure what substance he
had ingested and that would affect his opin-
ion. Secondly, the defendant's previous ex-
periences with PCP were peaceful, calm
experiences, whereas the experience in issue
was violent and fearful. His third reserva-
tion was the source of the defendant's in-
formation. The doctor refused to accept
the defendant's reconstruction through
“bits and pieces of dreams” as an accurate
representation of what the defendant actu-
ally experienced at the time of the offense.
He also testified that such dream recon-
struction, when the events are beyond recall
due to amnesia, is not an acceptable method
to arrive at a diagnosis or opinion in psychi-
atry. His diagnosis and opinion were,
therefore, contingent upon accepting the
defendant's reconstruction of the events
through his dreams, even though the doctor
himself could not accept such a reconstruc-
tion and psychiatry, generally speaking,
does not use dreams to reconstruct events.
On cross-examination, Doctor Rossitter
testified, in response to a hypothetical ques-
tion based on Lori Rowe's testimony con-
cerning the events, that the defendant was
capable of acting intentionally and that,
within a reasonable degree of medical and
psychiatric certainty, no mental disease or
defect existed, even though the defendant
had used PCP and drank a few beers.
Doctor Wayne Tuteur, a psychiatrist, tes-
tified in response to a hypothetical question
based on defendant's reconstruction of the
events, that the hypothetical man was suf-
fering from a mental disease called psycho-
sis with drug intoxication. The doctor also
testified that the hypothetical man lacked
substantial capacity to either appreciate the
criminality of his conduct or conform his
conduct to the law. On cross-examination
the doctor testified that he had never done
any research in the area of PCP.
Doctor Frank Fiorese, a toxicologist, tes-
tified as to the physiological and psychologi-
cal effects of PCP. He stated that certain
amounts of PCP could cause nystagmus,
slurred speech, blurred vision, and trem-
bling muscles. The possible psychological
effects include amnesia, excitement, anxi-
ety, hallucination, and drowsiness.
[16] The trial court ruled that toxic psy-
chosis prompted by the voluntary ingestion
of alcohol and drugs does not constitute a
mental disease or defect warranting an in-
struction under section 6-2. We agree.
The insanity defense is defined in section
6-2 as follows:
“(a) A person is not criminally respon-
sible for conduct if at the time of such
conduct, as a result of mental disease or
mental defect, he lacks substantial capac-
ity either to appreciate the criminality of
his conduct or to conform his conduct to
the requirements of law.” (Il].Rev.Stat.
1977, ch. 38, par. 6-2.)
Section 6-3, in relevant part, provides:
“A person who is in an intoxicated or
drugged condition is criminally responsi-
ble for conduct unless such condition ei-
ther:
(a) Negatives the existence of a mental
state which is an element of the offense.”
Ill. Rev.Stat.1977, ch. 38, par. 6-3.
(17] The rule that a defendant who is
legally insane will be relieved of criminal
liability must be reconciled with the gener-
ally accepted rule that a defendant who is
voluntarily under the influence of intoxi-
cants at the time of the crime wiil not be
relieved of criminal responsibility. The es-
sential consideration is not whether the
medical profession characterizes the defend-
ant's use of intoxicants resulting in a psy-
chosis as a mental disease or defect, but
rather whether society should relieve from
criminal responsibility a defendant who vol-
untarily ingests such intoxicants and then
commits criminal acts. It is obvious to us
that an actor should not be insulated from
criminal responsibility for acts which result
from a temporary mental state that is vol-
untarily self-induced.
-Al4-
232 =I. 447 NORTH EASTERN REPORTER, 2d SERIES
We therefore hold that toxic psychosis
induced by voluntary intoxication on drugs,
alcohol or both is not a “mental disease or
mental defect” which amounts to legal in-
sanity under our statute. In Upstone v.
People (1883), 109 Ill. 169, 175, the court
stated, “The question in the «case was,
whether there was but a temporary insani-
ty, produced immediately by intoxication, or
fixed insanity. If it was the former, it
furnishes no excuse.” We hold the same is
true under our present statute and find
that a majority of jurisdictions agree.
(State v. Ingram (Mo.1980), 607 S.W.2d 438;
Jackson vy, State (1980), Ind., 402 N.E.2d
947; State v. Berge (1980), 25 Wash.App.
433, 607 P.2d 1247; O'Leary v. State (Alas-
ka 1979), 604 P.2d 1099; Jackson v. State
(1979), 149 Ga.App. 253, 253 S.E.2d 874;
Commonwealth v. Hicks (1979), 483 Pa. 305,
896 A.2d 1183; Commonwealth v. Sheehan
(1978), 376 Mass. 765, 383 N.E.2d 1115;
State v. Kolisnitschenko (1978), 84 Wis.2d
492, 267 N.W.2d 321; State v. Toth (1977),
52 Ohio St.2d 206, 6 0.0.3d 461, 371 N.E.2d
831; State v. James (1977), 223 Kan. 107,
574 P.2d 181; State v. Clarken (Minn.1977),
260 N.W.2d 463; Barrett v. United States
(D.C.App.1977), 377 A.2d 62; State v. Plum-
mer (1977), 117 N.H. 820, 374 A.2d 431;
State v. Fox (1975), 112 Ariz. 375, 542 P.2d
800; State v. Hall (lowa 1974), 214 N.W.2d
205; People v. Kelly (1973), 10 Cal.3d 565,
516 P.2d 875, 111 Cal.Rptr: 171; Demou-
chette v. State (Tex.Cr.App.1973), 502
S.W.2d 712; State v. Linn (1969), 93 Idaho
430, 462 P.2d 729; Cirack v. State (Fla.
1967), 201 So.2d 706; see also United States
v. Shuckahosee (10th Cir.1979), 609 F.2d
1351; Springer v. Collins (4th Cir.1978), 586
F.2d 329; United States v. Burnim (9th
Cir.1978), 576 F.2d 236; United States v.
Romano (5th Cir.1973), 482 F.2d 1183; Unit-
ed States v. Jewett (8th Cir.1971), 438 F.2d
495; United States v. Currier (2d Cir.1969),
405 F.2d 1039; Annot., Modern Status of
the Rules as to Voluntary Intoxication as
Defense to Criminal Charge, 8 A.L.R.3d
1236 (1966); Annot., Effect of Voluntary
Drug Intoxication Upon Criminal Responsi-
bility, 73 A.L.R.3d 98 (1976).
{18} Simply stated, a voluntary intoxica-
tion or a voluntary drugged condition does
not raise the defense of insanity, but is
governed by section 6-3 and may be used to
negate the existence of the mental state
which is an element of the crime. (III. Rev.
Stat.1977, ch. 38, par. 6-3.) A voluntary
intoxication or a voluntary drugged condi-
tion precludes the use of the insanity de-
fense unless the mental disease or defect is
traceable to the habitual or chronic use of
drugs or alcohol (State v. Toth (1977), 52
Ohio St.2d 206, 6 0.0.3d 461, 371 N.E.2d
831) and such use results in a “settled” or
“fixed” permanent type of insanity. (Peo
ple v. Cochran (1924), 313 Ill. 508, 145 N.E.
207; Upstone v. People (1883), 109 Ill. 169;
People v. Jones (1977), 56 Ill.App.3d 600, 14
Ill.Dee. 97, 371 N.E.2d 1150; People v. Mask
(1975), 34 Ill.App.3d 668, 339 N.E.2d 417;
see O'Leary v. State (Alaska 1979), 604 P.2d
1099; Jackson v. State.(1980), Ind., 402
N.E.2d 947; State v. Kolisnitschenko (1978),
84 Wis.2d 492, 267 N.W.2d 321; State v.
James (1977), 223 Kan. 107, 574 P.2d 181;
Barrett v. United States (D.C.App.1977),
377 A.2d 62; People v. Kelly (1973), 10
Cal.3d 565, 516 P.2d 875, 111 Cal.Rptr. 171;
Cirack v. State (Fla.1967), 201 So.2d 706.)
There is no evidence in the record that this
defendant was a habitual or chronic user of
drugs or alcohol, or that the claimed disease
or defect was “settled” or “fixed.”
The defendant relies on People v. King
(1973), 181 Colo. 439, 510 P.2d 333, and
People v. Kuhn (1979), 68 Ill. App.3d 59, 24
Ill.Dec. 476, 385 N.E.2d 388. Neither case
deals with this particular issue and, there-
fore, we will not discuss them further.
The trial court properly instructed the
jury on the defense of voluntary intoxica-
tion and properly refused, as a matter of
law, to instruct the jury on the insanity
defense. See United States v. Shuckahosee
(10th Cir.1979), 609 F.2d 1351, 1355;
O'Leary v. State (Alaska 1979), 604 P.2d
1099, 1103; State v. Toth (1977), 52 Ohio
St.2d 206, 6 0.0.3d 461, 210, 371 N.E.2d 831,
834.
{19} The defendant also contends ‘that
the trial court misled him into believing
-A1L5-
_—= oe
— ase
PEOPLE v. FREE Ill.
233
Cite as 447 N.E.24 218 (TIL 1983)
that the jury would be instructed on the
insanity defense by allowing the defend-
ant’s expert witnesses to testify on that
issue, thereby denying him a fair trial. The
defendant's argument essentially is that the
trial court’s response to the State’s motion
to strike the insanity defense implied that
the court would instruct the jury on that
issue.
We find that the defendant's contention
is wholly without merit. The record un-
equivocally supports the State’s position
that it attempted to head off any surprise
later in trial by making defense counsel
fully aware of its objections to the use of
the insanity defense in this case before de-
fendant presented any evidence. The trial
judge did not either expressly or impliedly
rule on the issue at that time. In fact,
defense counsel urged that the trial judge
not rule on the question until after the
expert witnesses testified and the evidence
was in.
Again, during the course of the trial,
defense counsel was made aware of the
prosecution's continuing objections to de-
fendant’s evidence on the insanity defense.
The court made it clear at that time that it
had not ruled that there was or was not
sufficient. evidence to raise such a defense.
We find this issue urged by the defendant
to be totally unsubstantiated and a waste of
counsel's time and the time of this court; it
should not have been raised.
The defendant next objects to the trial
court's ruling which allowed a psychologist
and psychopharmacologist, Doctor Ronald
Siegel, to give opinion testimony on the
question of the defendant's ability to act
intentionally while under the influence of
alcohol and PCP.
The court ruled that the State's expert
witness could not testify as to whether the
defendant had a mental disease or defect,
but that he could testify as to whether the
defendant had the ability to act intentional-
ly. The court stated that Doctor Siegel was
both a pharmacological expert and a psy-
chological expert and could give his opinion
as to the effect of the drug on the defend-
ant as that relates to intoxication only.
Thus, this witness’ testimony would relate
only to the intoxication defense under sec-
tion 6-3 and not the insanity defense under
section 6-2. Defendant's objections to this
testimony are that Doctor Siegel was not a
qualified “expert” to offer an opinion as to
defendant's “intent,” that only a psychia-
trist could testify in this manner, and that
his opinion was on an ultimate issue in the
case, thus invading the province of the jury.
We do not agree.
Doctor Siegel testified that, in his opin-
ion, the defendant “was not rendered incap-
able of acting * * * intentionally.” His
opinion was based on his observations and
the examinations that he conducted on the
defendant, plus his education, experience
and research on PCP. Doctor Siegel also
testified that the defendant's conduct was
not “consistent with the phenominology of
PCP intoxication, or indeed, other types of
hallucinogenic intoxications.” In response
to the State’s hypothetical based on Lori
Rowe's testimony and the defendant's testi-
mony that he had consumed beer and had
smoked marijuana and used PCP, Doctor
Siegel stated that the hypothetical man
“was not so intoxicated as to render him
incapable of acting intentionally at that
time.”
[20,21] We note that the burden of es-
tablishing the qualifications of an expert
witness rests on the proponent of his testi-
mony—in this case, the State. (People v.
Park (1978), 72 111.24 203, 209, 20 Il).Dec.
586, 380 N.E.2d 795.) The standard of re-
view in this area is whether the trial court
has abused its discretion in permitting this
particular “expert” witness to testify.
(People v. Park (1978), 72 Ill.2d 203, 209, 20
Ill. Dec. 586, 380 N.E.2d 795; People v. Saw-
hill (1921), 299 Ill. 393, 182 N.E. 477.)
“(T]he trial court must be left to determine,
absolutely and without review, the fact of
possession of the required qualification by a
particular witness.” (2 Wigmore, Evidence
sec. 561 (Chadbourne rev. ed. 1979).) The
trial court ‘did not abuse its discretion in
permitting Doctor Siegel to testify.
Doctor Siegel is both a psychologist and
hoph logist. A psychopharma-
ey Y
-Al6-
234 = iil.
cologist is one who specializes in the study
of the effects of drugs on behavior and
usually is trained in psychology, pharmacol-
ogy, medicine, neurology, chemistry, and re-
lated disciplines.
That expert testimony concerning the
drug PCP was necessary cannot be contest-
ed. The jurors, like most people, had a
limited understanding of this drug and,
therefore, the knowledge and experience of
Doctor Siegel was needed as expert testi-
mony in this area. “The true test of the
admissibility of such testimony * * ° is
whether the witnesses offered as experts
have any peculiar knowledge or experience,
not common to the world, which renders
their opinions founded on such knowledge
or experience any aid to the Court or the
jury in determining the questions at issue.”
(7 Wigmore, Evidence sec. 1923 (Chad-
bourne rev. ed. 1978); see Miller v. Pillsbury
Co. (1965), 33 I11.2d 514, 516, 211 N.E.2d 733.
We believe that Doctor Siegel, in view of
his education, qualifications, experience,
and extensive research in the area of PCP,
was eminently qualified to give his opinion
as to whether the defendant had the ability
to act intentionally at the time of the crime,
as that relates to the defense of voluntary
intoxication. The doctor's opinion was
based on his education, experience and re-
search in the area of the effects of drugs on
humans, plus his examinations of the de-
fendant.
(22] The defendant's reliance on People
v. Noble (1969), 42 Ill.2d 425, 248 N.E.2d 96
is misplaced. Noble dealt with a clinical
psychologist diagnosing and giving his opin-
ion on the issue of the defendant's sanity.
Noble also dealt with a psychiatrist's use of
testing done by a psyche ogist pursuant to
that osychiatrist’s direction. In Noble the
court held that the clinical psychologist
should have been permitted to testify as to
the tests done, the procedure followed and
the test results, at least when a psychiatrist
has requested such tests. Also, that court
held that the trial court should not have
restricted the psychiatrist's use of the psy-
chological testing he had ordered to evalu-
ate the defendant. We note that the court
-Al7-
447 NORTH EASTERN REPORTER, 2d SERIES
indicated that “the trend of the more recent
decisions is to permit a properly qualified
psychologist to testify as to the nature and
results of psychological tests °° °" (42
Ill.2d 425, 433, 248 N.E.2d 96) and “even to
the extent of permitting the expression of
opinions as to the mental condition of the
individual” (42 Ill.2d 425, 434, 248 N.E.2d
96) when a qualified psychologist testifies.
(See People v. Nelson (1980), 92 Ill.App.3d
35, 47 Ill. Dec. 683, 415 N.E.2d 688; People
v. Whitaker (1980), 87 Ill.App.3d 563, 43
Ill.Dec. 166, 410 N.E.2d 166.) We also note
that the General Assembly enacted a stat-
ute permitting a qualified clinical psycholo-
gist to testify on a defendant's fitness, in-
sanity or mental illness. (II].Rev.Stat.1981,
ch. 38, par. 1005-2-5.) However, in this
case Doctor Siegel did not testify on the
issue of defendant's insanity. The trial
court restricted Doctor Siegel's testimony to
defendant's intoxication defense.
(23] The defendant next objects to the
admission of the testimony of Scott Carlson,
a Winfield police officer. Defendant claims
that the testimony was irrelevant and im-
plied criminal misconduct on the part of the
defendant.
Officer Carlson testified that he stopped
a red Ford truck driven by James Free at
approximately 4 a.m. on April 23, 1978, in
Winfield, Illinois. Carlson observed that
the defendant was carrying a knife in a
leather case on his left hip. He talked with
the defendant for six to seven minutes and
released him.
The trial court ruled that the testimony
was relevant because it placed the defend-
ant, an out-of-State resident, in the vicinity
of the crime. Also, that it was relevant to
show the defendant's possession of a red
Ford pickup truck, which was seen at an-
other time in the area where the crime was
committed. We agree.
The testimony did not imply criminal mis-
conduct on the part of the defendant. The
trial court was very cautious so as to pre-
vent any indication, through Officer Carl-
son's testimony, that the defendant may
have violated the law.
PEOPLE v. FREE Il.
235
Cite as 447 N.E.2d 218 (IIL 1983)
“Relevant evidence’ means evidence
having any tendency to make the existence
of any fact that is of consequence to the
determination of the action more probable
or less probable than it would be without
the evidence.” (Fed.R.Evid. 401; People v.
Monroe (1977), 66 Ill.2d 317, 322, 5 Ill.Dec.
824, 362 N.E.2d 295.) “Relevancy is estab-
lished where a fact offered tends to prove a
fact in controversy or renders a matter in
issue more or less probable.” (Marut v.
Costello (1966), 34 Ill.2d 125, 128, 214 N.E.2d
768.) Officer Carlson's testimony was rele-
vant to place the defendant in the vicinity
of the crime within 24 hours before it was
committed. It is particularly relevant here
because the defendant was an out-of-State
resident who was residing in Iowa with his
parents at the time of the offense, while on
leave from his army post in the State of
Washington.
The defendant next contends that during
the guilt phase, and again at the aggrava-
tion/mitigation phase of the trial, testimo-
ny concerning the victims’ families was ad-
mitted which was irrelevant and highly
prejudicial, thereby denying the defendant
a fair trial. The State made certain refer-
ences to Bonnie Serpico's family in its open-
ing statement, and it had Andrew Serpico,
the victim's husband, testify at the guilt
phase of the trial. We will discuss later
whether the testimony at the aggrava-
tion/ mitigation phase of the trial was prop-
erly admitted.
Mr. Serpico testified that he was married
to Bonnie Serpico for 14 years. He testified
that they had two children and the evening
before the murder they had gone out to a
restaurant for dinner, His testimony estab-
lished the identity of the murder victim and
that she was a living person in good health
prior to her departure for work the night
she was murdered. He also established
that certain clothing found at the scene of
the crime belonged to Bonnie Serpico and
that she had worn those clothes to work the
night she was murdered. He testified that
his wife was survived by a sister who was
pictured in a photograph he gave to t
police.
Defendant argues that these statements
constitute reversible error, relying on this
court's decisions in People v. Wilson (1972),
51 Ill.2d 302, 231 N.E.2d 626, People v.
Bernette (1964), 30 Ill.2d 359, 197 N.E.2d
436, People v. Dukes (1957), 12 Ill.2d 334,
146 N.E.2d 14, and People v. Jackymiak
(1943), 381 Il), 528, 46 N.E.2d 50.
[24,25] A defendant's guilt must be es-
tablished by competent evidence uninflu-
enced by bias and prejudice. Generally, the
rule is that “where testimony in a murder
case respecting the fact the deceased has
left a spouse and family is not elicited inci-
dentally, but is presented in such a manner
as to cause the jury to believe it is material,
its admission is highly prejudicial and con-
stitutes reversible error unless an objection
thereto is sustained and the jury instructed
to disregard such evidence.” (People v.
Bernette (1964), 30 Ill.2d 359, 371, 197
N.E.2d 436.) “However, every mention of a
deceased's family does not ipso facto ent.tle
the defendant to a new trial, since in cer-
tain instances, dependent upon the ‘acts,
such a statement can be harmless.” People
v. Jordan (1967), 38 II1.2d 53, 91-92, 230
N.E.2d 161; People v. Wilson (1972), 51
Ill.2d 302, 281 N.E.2d 626; People v. Golson
(1965), 32 Ill.2d 398, 207 ).E.2d 68; People
v. Brown (1964), 30 I]].2d 297, 166 N.E.2d
664.
The case at bar is such an a‘stance, since
significant factual distinctions evist be-
tween this case and the one relied on by
the defendant. Those cases nvveal that the
prosecution there did more than just make
the jury aware of the fact that the deceased
left behind a spouse and children. Rather,
in those cases, the prosecution dwelt vnon
the deceased's family in closing argument
to the point that the jury could have related
that evidence to the defendant's guilt
Herein, the evidence was not accompanied
by testimony or statements of the tender
years of the children left behind by Bonnie
Serpico, nor was there an inflammatory
closing argument. (See People v. Jordan
(1967), 38 Ill.2d 83, 92, 230 N.E.2d 161.)
Also, the trial court ruled the testimony
admissible for the purpose of identification
-Al18-
*-
236 = iLL
of the decedent. (See People v. Brown
(1964), 30 I1].2d 297, 196 N.E.2d 664; People
y. Golson (1965), 32 Ill.2d 398, 410, 207
N.E.2d 68.) Common sense tells us that
murder victims do not live in a vacuum and
that, in most cases, they leave behind fami-
ly members.
(26] We believe that the testimony of
Andrew Serpico and his references to his
family were properly admitted, that the
statements were incidental and not calcu-
lated, and that they were not presented in
such a manner as to cause the jury to
believe this fact to be material as to the
defendant's guilt. See People v, Wilson
(1972), 51 Ill.2d 302, 307, 281 N.E.2d 626.
The defendant contends that the admis-
sion of certain physical evidence and photo-
graphs during the trial caused him preju-
dice requiring the reversal of his convic-
tions. The items the defendant objects to
were seized at his residence in Dubuque
pursuant to a search warrant. The items
include a gun holster, boxes of ammunition,
an ammunition-reloading device, plastic
earmuffs, a gun box, a photo of clothing
and the area where it was found, and a
photo of the murder weapon and related
paraphernalia.
The State argues that the physical evi-
dence is relevant to prove constructive pos-
session and control of the murder weapon
and the bag in which the weapon was ap-
parently kept, together with ammunition
suitable for the commission of the crime.
(27, 28] The trial court ruled the evi-
dence admissible. We believe the trial
court's ruling was proper, As we stated
previously, relevant evidence means evi-
dence having any tendency to make the
existence of any material fact more proba-
ble or less probable than it would be with-
out the evidence. The general rule is that
physical evidence may be admitted provided
there is proof to connect it with the defend-
ant and the cmme. (See People v, Ashley
(1960), 18 Ill.2d 272, 164 N.E.2d 70; People
v. Miller (1968), 40 Ill.2d 154, 288 N.E.2d
407.) It is only necessary that the object at
least be suitable for the commission of the
-Al9-
447 NORTH EASTERN REPORTER, 2d SERIES
crime (People v. Miller (1968), 40 Ill.2d 154,
238 N.E.2d 407), but it is not necessary that
the object actually be used in committing
the crime (People v. Magby (1967), 37 Ill.2d
197, 226 N.E.2d 33).
In this case the State had the burden of
proving the defendant had possession of the
gun. The gun admitted in evidence was the
gun used to kill Bonnie Serpico and to in-
jure Lori Rowe. Detective Velon testified
that when he searched the house he found a
bag in’the basement of the house which
contained the gun later proved to be the
murder weapon. Also in that bag was the
evidence objected to by the defendant—the
gun holster, plastic earmuffs, boxes of am-
munition, including .857~aliber and .38-cali-
ber bullets, and a belt with 13 rounds of
ammunition on it. The gun was in the
holster, and that was attached to the belt
which had bullets on it. All of these items
were found inside the bag. The reloading
apparatus and component parts were locat-
ed in the immediate area of the bag.
We believe the evidence was relevant be-
cause it tended to establish the existence of
the material fact that the defendant pos-
sessed a gun and, in fact, must have been
familiar with guns. There was testimony
that the defendant entered the office build-
ing with a “cloth bag,” though it was never
definitely stated that the “cloth bag” and
the bowling bag or gym bag, as it was also
described, were one and the same. Lon
Rowe also testified that Bonnie Serpico
looked in the bag and stated, “You came
prepared for this,” and the defendant re-
plied, “Yes, I've all sorts of stuff in there.”
The defendant's cousin testified that, when
the defendant arrived at her house in St.
Charles at 6:30 a.m. on April 24, 1978, some
2’ hours after the crime, she saw the de-
fendant get out of his truck and take a gym
bag from the cab of the truck and put it in
the rear of the truck.
We must not confuse the distinction be-
tween the admissibility of evidence and its
probative value. (See People v. Scott
(1963), 29 Ill.2d 97, 113, 193 N.E.2d 814;
McCormick, Evidence sec. 185, at 434 (2d ed.
1972).) In Scott the court held that the
PEOPLE v. FREE il.
237
Cite as 447 N.£.24 218 (Ii 1983)
trial court had erred in sustaining defend-
ant’s objection to the introduction of a
wrench which had been found near the de-
cedent's body. The court stated:
“The argument of the defendant that the
wrench must first be connected with the
defendant before it may be admitted into
evidence confuses the distinction between
the admissibility of evidence and its pro-
bative value. * * * The defendant is en-
titled to argue to the jury the lack of any
connection between the wrench and the
defendant, or the lack of proof that the
defendant owned or used the wrench; he
may point out the weakness of its proba-
tive valuc, but he cannot bar its admis-
sion.” People v. Scott (1963), 29 Ill.2d 97,
113-14, 193 N.E.2d 814.
The defendant relies on People v. Miller
(1968), 40 [ll.2d 154, 238 N.E.2d 407, and
People v. Smith (1952), 413 Ill. 218, 108
N.E.2d 596. In Miller the court stated that
there was no showing that the object ad-
mitted was even suitable for the commis-
sion of the crime or that the items were in
any way connected with the defendant be-
cause they were found in a codefendant’s
car. Miller did not deal with the issue
present here—the State here was attempt-
ing to prove that this murder weapon was
connected to this defendant.
People v. Smith (1952), 413 Ill. 218, 108
N.E.2d 596, is distinguishable because the
items admitted into evidence were never
connected by the State to the crime com-
mitted. The items admitted into evidence
were two sawed-off shotguns and ammuni-
tion for them not alleged to be connected
with the crime. The gun used to commit
the murder in Smith was identified and
admitted into evidence. Also, the items of
evidence improperly admitted were other
weapons obviously not used in the crime.
Here, only one gun—the murder weap-
on—was introduced into evidence. The oth-
er items were relevant to show familiarity
with guns in general and to connect the
defendant with the murder weapon in par-
ticular. The other items were closely
enough related to the use and maintenance
of the murder weapon to make evidence
that defendant possessed these items rele-
vant. These items, as well as the photo-
graphs, were properly admitted into evi-
dence.
[29] Even if some of this evidence were
irrelevant, no prejudicial error resulted to
this defendant. The evidence of the de-
fendant’s guilt is overwhelming, and the
introduction of this physical evidence could
not have served to arouse or inflame the
jury.
We now address the issues raised by the
defendant relating to the death penalty
phase of his trial.
(30] The defendant argues that the in-
dictment did not sufficiently inform him
that the death penalty would be sought.
The basis for this argument is that the
indictment did not charge the defendant
with burglary, and although he was
charged with attempted rape, defendant ar-
gues that an attempt is not an aggravating
factor. In People v. Walker (1982), 91 Ill.2d
502, 64 Ill.Dec. 531, 440 N.E.2d 83, we held
that the death penalty statute “does not
require that the other felony be completed
or that the defendant be charged with or
convicted of the other felony or an attempt-
ed felony.” (People v. Walker (1982), 91
Ill.2d 502, 511, 64 Ill.Dee. 531, 440 N.E.2d
83.) Consequently, the defendant was suf-
ficiently informed in the indictment that
the death penalty could be sought because
he was charged with the murder and at-
tempted rape of Bonnie Serpico. See Peo-
ple v. Ruiz (1982), 94 Ill.2d 245, 265, —-
Ill.Dec. ——, 447 NE2d 148,
In People v. Brownell (1980), 79 Ill.2d 508,
524, 38 Ill.Dec. 757, 404 N.E.2d 181, we
stated: = - P ae
“Secondly, without holding that every in-
dictment must contain every aggravating
factor which the State will attempt to
prove, we hold that, in the indictment
involved here, one of the aggravating
factors found by the court at the sentenc-
ing hearing was sufficiently alleged in
the indictment to fulfill the requirements
of law.” ‘ °
~A20-
238 I.
As we have stated, in our case one of the
aggravating factors was sufficiently alleged
in the indictment so as to inform the de-
fendant of the potential penalty in this
case. The defendant was also made aware
on the third day of jury selection that bur-
glary would also be proved as an aggravat-
ing factor. Thus, the defendant was suffi-
ciently informed of both aggravating fac-
tors prior to the introduction of testimony
at the trial.
Also, the trial court ruled prior to jury
selection that the jury must be qualified
under Witherspoon and that each side
would have 20 peremptory challenges since
it was a death penalty case.
The defendant's next claim is that the
prosecutor's closing argument concerning
the insanity defense at the guilt phase of
the trial prejudiced the defendant so as to
establish “good cause” under section 9-
1(d\(2XC) (Il.Rev.Stat.1977, ch. 38, par. 9-
1(dX2XC)) to discharge the first jury and
impanel a new jury for sentencing. De-
fendant asserts that the prosecutor's closing
argument at the guilt phase that no insani-
ty defense existed as a matter of law and
that the intoxication defense was a false
defense or a lie predisposed the jury to
reject evidence of extreme mental or emo-
tional disturbance at the sentencing phase.
First, we note that the closing comments
alluded to by the defendant now were not
objected to at trial, thus precluding these
claims. People v. Lewis (1981), 88 Ili.2d
129, 149, 58 Ill. Dec. 895, 480 N.E.2d 1346;
People v. Carlson (1980), 79 111.2d 564, 575-
78, 38 Ill. Dec. 809, 404 N.E.2d 233.
[31] Even if not precluded by waiver,
our review of the record shows the prosecu-
tor’s argument to be proper comment upon
the evidence. Also, the sentencing phase of
the trial did not begin until five weeks
after the jury returned its verdict, and it is
pure conjecture on the part of the defend-
ant that any prejudice resulted to him.
“Good cause” to impanel a new jury for the
purposes of sentencing was not shown. See
People v. Lewis (1981), 88 Ill.2d 129, 146417,
58 Ill.Dee. 895, 430 N.E.2d 1346.
447 NORTH EASTERN REPORTER, 2d SERIES
The defendant next contend: that the
jury was improperly instructed in several
aspects as to whether the death penalty
should have been imposed. The defendant
offered two instructions detailing nonstatu-
tory mitigating factors to be considered by
the jury. The court refused both instruc-
tions and instructed the jury as follows:
“Mitigating factors include, but are not
limited to the following circumstances:
(1) The defendant has no significant
history of prior criminal activity
(2) The murder was committed while
the defendant was under the influence of
extreme mental or emotional disturbance,
although not such as to constitute a de-
fense to prosecution.
If, from your consideration of the evi-
dence, you find that any of the above
mitigating factors are present in this
case, or that any other mitigating factors
are present in this case, then you should
consider such factors in light of any exist-
ing aggravating factors in determining
whether the death sentence shall be im-
posed.” (Emphasis added.)
(32] This instruction includes the two
relevant statutory mitigating factors and
also properly provides that mitigating fac-
tors are not limited to those listed, but that
the jury should consider any other mitigat-
ing factors present in this case. This in-
struction, contrary to defendant's conten-
tion, satisfies Lockett v. Ohio (1978), 438
U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973. The
instruction given required the jury to con-
sider all mitigating factors as. required by
Lockett. It does not preclude the jury
“from considering, as a mitigating factor,
any aspect of a defendant's character or
record and any of the circumstances of the
offense that the defendant proffers as a
basis for a sentence less than death.” Lock-
ett v. Ohio (1978), 438 U.S. 586, 604, 98 S.Ct.
2954, 2964-65, 57 L.Ed.2d 973, 990.
(33) Defendant’s next alleged error is
that the trial court did not instruct the jury
to consider the potential of the defendant to
be restored to useful citizenship pursuant to
section 11 of article I of the 1970 Illinois
Constitution. This issue was recently decid-
~A21-
PEOPLE v. FREE Ill.
239
Cite as 447 N.E.24 218 (ML 1983)
ed in Peopie v. Gaines (1981), 88 Ill.2d 342,
381-82, 58 Ill.Dec. 795, 430 N.E.2d 1046,
where we held that the requirement of sec-
tion 9-l(c) of the Criminal Code of 1961
(Ill. Rev.Stat.1977, ch. 38, par. 9-1(c)) that
the sentencing jury consider “any mitigat-
ing factors which are relevant to the impo-
sition of the death penalty” was sufficient
to satisfy the constitutional provision. As
we have stated, the jury was so instructed
in this case.
[34] Defendant next alleges that his in-
struction No. 6a) should have been given.
It states that the jury is not required to
find any statutory mitigating factors in or-
der to conclude that the death penalty
should not be imposed. Our previous dis-
cussion demonstrates that the jury was in-
structed to consider all mitigating factors,
not just statutory mitigating factors, and
we need not discuss this issue further.
(35, 36) The defendant's last contention
regarding the instructions given at the ag-
gravation/ mitigation phase is that the jury
was not instructed that the prosecution -
bore the burden of proving beyond a rea-
sonable doubt that no mitigating factors
are present. People v. Brownell (1980), 79
Ill.2d 508, 38 Ill.Dee. 757, 404 N.E.2d 181,
disposed of this issue. In Brownell we stat-
ed that a unanimous jury or the court must
weigh \he mitigating factors against the
aggravating factors and must conclude that
there are no mitigating factors sufficient to
preclude the imposition of the death sen-
tence. (People v, Brownell (1980), 79 Ill.2d
508, 534, 38 Ill.Dec. 757, 404 N.E.2d 181,
Ml.Rev.Stat.1977, ch. 38, pars. 9-1(g), (h).)
It is not a question of the State proving an
issue beyond a reasonable doubt at this
phase of the trial. Rather, it is a weighing
process, which we determined to be consti-
tutional in Brownell.
(37] The defendant also argues that cer-
tain testimony admitted at the aggrava-
tion/mitigation phase of trial was not rele-
vant. Specifically, defendant contends that
Officer Scott Carlson's more detailed testi-
mony of a traffic stop of the defendant in
Winfield, Illinois, about 24 hours before the
crime was irrelevant. Defendant also con-
tends that testimony concerning the vic-
tim’s family was irrelevant and prejudicial,
violating his due process rights and thereby
requiring a new sentencing hearing.
Section 9-1(c) states:
“The court shall consider, or shall in-
struct the jury to consider any aggravat-
ing and any mitigating factors which are
relevant to the imposition of the death
penalty.” (Ill. Rev.Stat.1977, ch. 38, par.
9-1(c).)
Section 9-1(e) provides:
“Any information relevant to any addi-
tional aggravating factors or any miti-
gating factors indicated in Subsection (c)
may be presented by the State or defend-
ant regardless of ita admissibility under
the rules governing the admission of evi-
dence at criminal trials.” (III.Rev.Stat.
1977, ch. 38, par. 9-1(e).)
Our statute clearly provides that the only
finding necessary in determining the admis-
sibility of evidence at the aggravation/miti-
gation phase is that the evidence be rele-
vant. The rules of evidence, as provided in
section 9-l(e), are suspended at this stage,
so that the judge or jury, as the sentencing
authority, may have ail relevant evidence
before it. In this phase of the sentencing
hearing, the State and defendant are al-
lowed considerable leeway in the presenta-
tion of relevant evidence as long as the
evidence is also reliable. See People v. La
Pointe (1981), 88 Il1.2d 482, 497, 59 III.Dee.
59, 431 N.E.2d 344; People v. Adkins (1968),
41 Ill.2d 297, 300, 242 N.E.2d 258.
In Woodson v. North Carolina (1976), 428
U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944, the
court noted the importance of placing be-
fore the sentencing jury all relevant factors
and circumstances focusing on the character
and record of the individual offender and
the circumstances of the particular offense.
People v. La Pointe (1981), 88 Ill2d 482, 59
Ill.Dec. 59, 431 N.E.2d 344, emphasizes the
broad standard governing admissibility of
evidence in sentencing proceedings without
regard to the “restrictive rules of evidence
properly applicable to the trial,” quoting
Williams v. New York (1949), 337 U.S. 241,
“A22-
240 I.
247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1387, 1342.
La Pointe also emphasized that the factors
controlling admissibility of evidence in a
sentencing hearing were the relevance and
reliability of the proffered evidence. (See
People v. La Pointe (1981), 88 Ill.2d 482,
498, 59 Ill.Dec. 59, 431 N.E.2d 344.) The
admission of relevant and reliable evidence
at the sentencing hearing does not violate
the due process guarantees of the Federal
Constitution. See People v. La Pointe
(1981), 88 Ill.2d 482, 498, 59 Ill.Dec. 59, 431
N.E.2d 344.
The same benchmarks of relevance and
reliability apply whether the sentencing au-
thority is the trial judge or the jury.
Whether evidence is relevant and reliable is
initially determined by the trial court in the
exercise of its informed discretion. People
v. La Pointe (1981), 88 Ill.2d 482, 498, 59
Ill.Dec. 59, 431 N.E.2d 344.
La Pointe dealt with prior misconduct for
which the defendant was not prosecuted or
convicted. We stated there that “(t]he con-
duct testified to was relevant to a determi-
nation of a proper sentence in that it bore
upon the likelihood or unlikelihood that de-
fendant would commit other offenses; it
appeared trustworthy; defendant had the
opportunity to face and cross-examine the
witness; and the accuracy of the informa-
tion was not challenged.” People v. La
Pointe (1981), 88 Ill2d 482, 498-99, 59 III.
Dec. 59, 431 N.E.2d 344.
(38] Applying the La Pointe test, we
find that Officer Carlson's testimony was
both relevant and reliable. He testified
that he observed a red Ford pickup truck
driving slowly past residences and commer-
cial establishments in the downtown area of
Winfield. The driver of the truck appeared
to be looking at the residences and business-
es. It was approximately 4 a.m. on April
23, 1978, approximately 24 hours before the
murder in Glen Ellyn. Officer Carlson: no-
ticed a car next to the truck and the occu-
pants appeared to be talking by use of their
citizen-band radios. The officer also testi-
fied that he ran a license check on the Ford
truck and was informed that the owner of
the truck had been convicted of theft some
447 NORTH EASTERN REPORTER, 2d SERIES
years earlier. All these facts combined to
cause the officer to be suspicious, and he
continued to follow the truck. Both vehi-
cles continued through the town slowly, still
appearing to look over the businesses and
houses. The officer then testified that he
stopped the truck and determined that
James Free was the driver. The officer
had summoned help prior to the stop, and
his fellow officer observed a gym bag in the
truck.
Defense counsel elicited on cross-exami-
nation that the officer did not observe the
driver of the truck commit any crime. Of-
ficer Carlson also testified on cross-exami-
nation that the defendant told him he was
born in Winfield and lived there for a num-
ber of years. The officer testified that he
told the defendant to look around town
during the daytime, rather than in the early
morning hours. ;
Relevance may be considered as existing
in various degrees. We find this testimony
to be sufficiently relevant to be admissible
at the sentencing hearing. It again tied
together the defendant, the red pickup
truck and the gym bag. Although the tes-
timony does not relate to an arrest or con-
viction, it did disclose the propensity of the
defendant to “prowl around” at 4 a.m., ap-
proximately the hour at which the crimes
were committed the next day. The testi-
mony appeared trustworthy. Defendant
had the opportunity to face and cross-exam-
ine the witness, and the accuracy of the
information was not challenged. We can
see no prejudice to the defendant by the
admission of this testimony. The trial
judge did not abuse his informed discretion
in admitting this relevant and reliable evi-
dence.
The defendant also contends that the tes-
timony of Deborah Ahlstrand, a probation
officer for Du Page County, was improperly
admitted. She conducted a presentence in-
vestigation, interviewing approximately 18
people. Ahlstrand testified that she met
with Bonnie Serpico’s mother, husband and
two children. She testified as to emotional
effects on the family in general. She also
testified that the Serpico family moved af-
-A23-
PEOPLE v. FREE Il.
241
Cite as 447 N.E.24 218 (IIL 1983)
ter the murder because the children and
their grandmother could not enter the old
house. Mr. Serpico told the probation offi-
cer that he felt “completely shut out” and
that “the biggest loss was that his two
daughters would not have a mother to re-
late to as they were growing up, as they
were experiencing young adulthood and
marriage, pregnancy, those times when
mothers and daughters have a close rela-
tionship.” °
The probation officer testified that Bon-
nie Serpico’s mother was “particularly de-
pressed over the way in which her daughter
died.” Also, that she took tranquilizers un-
til June or July of 1979.
Ahlstrand also interviewed Lori Rowe's
parents. Mrs. Rowe, the victim's mother,
stated that her daughter was no longer
trusting of other people but very suspicious
of most people. The probation officer also
testified that Miss Rowe had returned to
college in the fall of 1978 and that she had
not seen a psychiatrist or a psychologist
since she was hospitalized immediately af-
ter the incident.
[39] The defendant did not object to the
admissibility of this testimony but only as
to the admissibility of the presentence re-
port itself, which was not admitted into
evidence. In fact, the defendant requested
that the presentence investigation and re-
port be made over the State's objection.
We conclude that the failure to object to
the admission of this evidence operates as a
waiver of the right to consider the question
on appeal.’ (People v. Lewis (1981), 88 I!l.2d
129, 149, 58 IIl.Dec. 895, 430 N.E.2d 1346;
People v. Carlson (1980), 79 IlI.2d 564, 575~
76, 3S Ill.Dec. 809, 404 N.E.2d 233.) As
noted, the defendant did object to the intro-
duction of the presentence report itself, and
the court did not admit it. If a timely
objection would have been made to the tes-
timony of the probation officer concerning
the results of her presentence investigation,
the court could have ruled on the admissi-
bility of the testimony now objected to.
Not having given the court this opportuni-
ty, the defendant waived the right to raise
the questi
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.