People v. Haynes

Annotate this Case

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to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.

Docket No. 77569--Agenda 2--May 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JONATHAN
HAYNES, Appellant.
Opinion filed October 24, 1996.

CHIEF JUSTICE BILANDIC delivered the opinion of the court:
The defendant, Jonathan Haynes, was indicted on three counts
of murder (720 ILCS 5/9--1(a)(1), (a)(2), (a)(3) (West 1992)) and
one count of burglary (720 ILCS 5/19--1 (West 1992)) arising out of
the August 6, 1993, shooting death of Dr. Martin Sullivan in
Wilmette, Illinois. Following a bench trial in the circuit court of
Cook County, the defendant was found guilty on all counts. The
defendant waived a jury for death sentencing. The trial court found
that the defendant was eligible for the death penalty. 720 ILCS
5/9--1(b)(6), (b)(11) (West 1992). The trial court further found
that there were no mitigating factors precluding imposition of the
death penalty and, accordingly, sentenced the defendant to death.
The defendant's death sentence has been stayed pending his direct
appeal to this court. 134 Ill. 2d Rs. 603, 609(a). We now affirm
the defendant's convictions for intentional murder and burglary and
sentence.

FACTS
Prior to the defendant's trial, a hearing was held to
determine the defendant's fitness to stand trial. The defendant
waived a jury for this hearing, and the hearing proceeded before
the trial judge. Expert witnesses testified on behalf of both the
State and the defendant. The testimony given by these witnesses is
discussed in detail later in this opinion. After hearing the
evidence, the trial court ruled that the defendant was fit to stand
trial.
Immediately after the trial court ruled on the defendant's
fitness, the defendant informed the court that he wished to proceed
without counsel. The trial court accepted the defendant's waiver of
counsel and appointed two assistant public defenders to act as
standby counsel. The defendant proceeded to represent himself at
his trial and death sentencing hearing. The defendant waived a jury
for trial.
At trial, the defendant admitted murdering Dr. Martin
Sullivan. The defendant delivered an opening statement in which he
condemned "fake Aryan cosmetics," in particular, bleached blond
hair, blue tinted contact lenses and plastic surgery. The defendant
further stated that, in committing his "murders," he had issued a
challenge to society to act "in accordance with your stated ideals
of human equality."
The State's evidence established that, at approximately 2:15
p.m. on August 6, 1993, a man who identified himself as "John
Rothmann" entered the office of plastic surgeon Dr. Martin Sullivan
in Wilmette, Illinois. This "John Rothmann" had earlier contacted
the office and scheduled an appointment for this time with Dr.
Sullivan to discuss undergoing a rhinoplasty. Witnesses in the
office later identified the defendant as the man who had identified
himself as "John Rothmann." After sitting in the waiting area, the
defendant was shown into examination room 1, a room with only one
door. Dr. Sullivan entered examination room 1 shortly after the
defendant. Several minutes later, office employees heard loud
noises, including "popping" noises and glass shattering coming from
examination room 1. The door to examination room 1 opened and the
defendant ran out of the room and out of the office suite. Dr.
Sullivan stumbled bleeding out of examination room 1 and asked
someone to call an ambulance because he had been shot. An ambulance
arrived at the scene a few minutes later and transported Dr.
Sullivan to the hospital. Dr. Sullivan died as a result of his
injuries. An autopsy revealed that Dr. Sullivan had sustained three
gunshot wounds to the chest and a graze wound to the head. The
shots had been fired at close range, from 18 to 24 inches away.
On the evening of August 6, 1993, Mitchell Lifson, an
administrative aide for State Representative Jeff Schoenberg, saw
a television news report of the Sullivan murder. The report
identified the perpetrator as "John Rothmann" and included a
description of the man. Lifson recalled that, at approximately
10:45 a.m. that day, the defendant, using the name "John Rothmann,"
had come into Representative Schoenberg's office and spoken to
Lifson. The Representative's office is located about three or four
blocks from Dr. Sullivan's office. Lifson told the defendant that
the Representative was not available and asked for the defendant's
name. The defendant was hesitant to divulge his name, though he
eventually did identify himself as "John Rothmann," and refused to
leave his telephone number. When Lifson spoke to Representative
Schoenberg about the defendant a short time later, the
Representative told Lifson to obtain the defendant's license plate
number if possible.
Lifson left the office at about 12:15 p.m. As he was leaving,
he noticed the defendant standing next to a light-blue Volkswagen
Beetle with Maryland license plates. Lifson wrote down the license
plate number. Thereafter, when Lifson heard on the news that police
were looking for a "John Rothmann," he contacted Wilmette police
and gave them his information. Lifson identified the defendant as
the man who had come to the Representative's office on August 6,
1993.
The name "John Rothmann," a description of his vehicle with
the license plate number and a police sketch were distributed to
local police agencies. In the early morning hours of August 8,
1993, a Skokie police officer observed a vehicle that matched the
distributed description and license plate number driven by a white
male. The officer stopped the vehicle and the driver identified
himself as Jonathan Haynes. The officer identified the defendant as
the man driving the car.
The defendant was taken into custody by Wilmette police. After
being read Miranda warnings, the defendant requested a pen and some
paper so that he could write a statement. The defendant also gave
an oral statement to Wilmette police detectives. In that statement,
the defendant stated that he telephoned Dr. Sullivan's office on
August 3 or 4, 1993, and made an appointment for August 6, 1993, at
2:15 p.m. under the name "John Rothmann." The defendant described
that he arrived in Wilmette at around noon on August 6 and first
went to Representative Schoenberg's office. The defendant wanted to
ask the Representative some questions about problems he perceived
in society. After leaving the Representative's office, the
defendant drove to a gas station located next to Dr. Sullivan's
office and parked his car in that lot. At almost exactly 2:15 p.m.,
the defendant left his car and walked to Dr. Sullivan's office. The
defendant related that, upon entering the office, he identified
himself as John Rothmann and filled out patient identification
forms using that name. He was shown into an examination room at
about 2:50 p.m., where he waited for Dr. Sullivan for approximately
10 minutes. After Dr. Sullivan walked into the room and introduced
himself, the defendant pulled out a gun and started shooting at
him. The defendant stated that the gun was a blue steel Colt .38
Special revolver. After the first shot, Dr. Sullivan reached for
the gun and the two men grappled for it. The defendant stated that
he pulled the trigger seven times, firing six rounds. After the
last shot, the defendant ran out of the examination room and out of
the office. The defendant ran back to his car and drove away. The
defendant described in his statement that he had planned an escape
route and he sketched the detectives a diagram of that route. The
defendant also stated that he had deliberately chosen a parking
spot which allowed him a quick escape.
The defendant further related, in this statement, his reason
for choosing Dr. Sullivan. The defendant said that he had decided
to kill a plastic surgeon and Dr. Sullivan had the largest
advertisement in the Yellow Pages. The defendant relayed that he
had waited to shoot Dr. Sullivan in his office so that he could be
sure that he killed the right person. The defendant also told
police that he had arrived in the Chicago area about a month
earlier for the express purpose of killing Charles Stroupe, who
lived in Lake Forest, Illinois. The defendant desired to kill
Stroupe because he was the president of Wesley Jensen Corporation,
which, according to the defendant, was the original and largest
manufacturer of blue tinted contact lenses. The defendant told
police that he had conducted surveillance of Stroupe's home, and
had attempted to kill Stroupe on August 2, 1993, but had been
unable to perpetrate the killing. As a result, the defendant
decided to target a plastic surgeon instead. The defendant stated
that he remained in the Chicago area after killing Dr. Sullivan so
that he could again attempt the murder of Stroupe. Finally, the
defendant relayed that his purpose in killing Dr. Sullivan and in
trying to kill Stroupe was to strike out against those who promoted
"fake Aryan beauty."
The defendant's written statement was also read into evidence.
In addition to confessing to the murder of Dr. Sullivan and the
attempted murder of Charles Stroupe, the written statement included
the defendant's confession to the 1987 murder of Frank Ringi in San
Francisco, California. Ringi, the defendant described, was a hair
colorist. In that statement, the defendant again described his
motivation for the murders as the condemnation of fake Aryan
cosmetics. The defendant also stated that he had "fallen in love"
with the "beauty of the Hitler youth" at the age of 12, and that he
was "fundamentally in sympathy" with the neo-Nazi movement.
Police searched the defendant's car and apartment. Inside the
car, police recovered a page torn from the Yellow Pages, which
contained Dr. Sullivan's advertisement. In the apartment, the
police found a loaded pistol, later identified through forensic
testing as the murder weapon. Also found in the apartment was a
cassette tape marked "taped confession," which was played at trial.
In this tape, the defendant stated that he had killed two persons
and that he was "quite happy" with the murders. The tape was meant
to be sent to cosmetics industry executives to warn them against
perpetuating fake Aryan cosmetics. The police also found the
defendant's diary, the contents of which was read into evidence.
Therein, the defendant detailed his plans to kill Charles Stroupe
and described that he had killed Dr. Sullivan.
The defendant presented no evidence at trial, other than his
own testimony. In that testimony, the defendant admitted killing
Dr. Sullivan and again reiterated that his motivation was to make
a statement condemning fake Aryan cosmetics. The defendant
explained that "we fought World War II against the reality of Aryan
beauty and now we are trying to fake it with cosmetics." The
defendant also made a closing argument in which he again confessed
to the murders of Dr. Sullivan and Frank Ringi.
The trial court found the defendant guilty as charged in the
indictment of intentional murder (720 ILCS 5/9--1(a)(1) (West
1992)), knowing murder (720 ILCS 5/9--1(a)(2) (West 1992)), felony
murder (720 ILCS 5/9--1(a)(3) (West 1992)), and burglary. The
defendant waived a jury for the capital sentencing hearing. The
trial court found that the defendant was eligible for death on two
grounds: (1) that the defendant had committed the murder in the
course of another felony, burglary (720 ILCS 5/9--1(b)(6) (West
1992)), and (2) that the murder was committed in a cold, calculated
and premeditated manner pursuant to a preconceived plan (720 ILCS
5/9--1(b)(11) (West 1992)). The State thereafter presented evidence
in aggravation.
Dr. Mathew Markos, a psychiatrist, testified for the State.
Dr. Markos stated that he had considered whether the defendant had
committed the murder of Dr. Sullivan while he was under the
influence of an "extreme mental or emotional disturbance," the
standard under the statutory mitigating factor contained in section
9--1(c)(2) of the death penalty statute (720 ILCS 5/9--1(c)(2)
(West 1992)). In Dr. Markos' opinion, the defendant was not
operating under the influence of any such disturbance at the time
of the murder.
Thomas Trulli also testified for the State in aggravation.
Trulli was the life companion and business partner of Frank Ringi.
Trulli identified the defendant as the man who, identifying himself
as "John Rockman," had entered their San Francisco hair salon on
May 27, 1987, for a consultation with Ringi. After the defendant
entered the consultation room with Ringi, Trulli heard Ringi shout
and heard three "popping" sounds. Trulli entered the room and the
defendant shot him in the abdomen. Ringi had fallen to the floor.
As a result of the shooting, Trulli was in surgery for 17 hours and
was hospitalized for three weeks. Ringi died as a result of the
shooting. Following the murder, business at the salon declined to
the point where Trulli was forced to file for corporate bankruptcy.
The defendant's confession to the murder of Frank Ringi, given
to San Francisco police detectives after the Sullivan shooting, was
also entered into evidence. Therein, the defendant admitted that he
went to Ringi's salon on May 27, 1987, in order to kill him. He
killed Ringi because he advertised himself as a hair colorist. The
defendant stated that he was "not repentant" for this crime,
although he knew that it was against the law. The defendant also
stated in this statement that he believed that "Jews" wanted to
control this country and that the population was growing
increasingly uglier. The defendant also relayed that he is a
"loner" and does not affiliate with any groups.
The State also presented testimony from Detective Brian King
of the Wilmette police department. Detective King testified that
the defendant said that it was his plan, after he had committed
three murders, to send newspaper accounts of those murders to
fashion magazines.
The State presented evidence that the defendant had been
employed as a chemist with the Federal Bureau of Alcohol, Tobacco
and Firearms in Maryland from November 17, 1991, to March 26, 1993.
In addition, a certified copy of the defendant's birth certificate,
showing his date of birth as October 3, 1958, was admitted into
evidence.
Finally, the written statements of Dr. Sullivan's wife and
seven of his eight children were read into evidence. In those
statements, Dr. Sullivan was described as a caring father and
husband, and a strong role model for his children and 21
grandchildren. Those statements also relayed that Dr. Sullivan's
practice specialized in the repair of cleft lips and palates in
infants. Dr. Sullivan also performed reconstructive surgery on
accident victims and had performed charity work for the past 32
years. According to the statements, Dr. Sullivan was 68 years old
when he died, was in very good health and planned to retire soon.
With this evidence, the State rested in aggravation. The trial
court thereafter gave the defendant time to consult with standby
counsel and with his parents. After this consultation, the
defendant informed the court that he wished to present no
mitigation evidence other than his own statement. The defendant
gave a very brief statement in which he again condemned fake Aryan
cosmetology.
The trial court denied standby counsel's request that the
court consider a memorandum of mitigation evidence and a letter
from Dr. Karen Smith offered in mitigation. Those documents are
contained in the record. The mitigation memorandum, prepared by the
public defender's office, urged that the statutory mitigating
factor of "extreme mental or emotional disturbance" (720 ILCS 5/9--
1(c)(2) (West 1992)) was present. Dr. Smith's letter concluded that
the defendant suffered from paranoid schizophrenia at the time of
the crime and was therefore legally insane when he committed the
crimes.
After hearing the evidence, the trial court ruled that there
were no mitigating circumstances sufficient to preclude a sentence
of death. The trial court accordingly sentenced the defendant to
death.

ANALYSIS
Fitness Hearing
Waiver of Jury for Fitness Hearing
The defendant charges that the trial court committed
reversible error in accepting his waiver of a jury for the fitness
hearing. We find no error in this regard.
The defendant's fitness hearing was set to begin on March 2,
1994. At the start of proceedings on that date, defense counsel
appeared for the defendant and stated that a jury had been
requested for the hearing. One of the prosecutors then informed the
trial judge that the defendant had indicated, during one of his
fitness examinations, that he wished to proceed without a jury. The
trial judge questioned the defendant on this issue:
"THE COURT: *** I am going to ask him. You have a
right, not a constitutional right, Mr. Haynes, to have
this issue concerning whether you are legally competent
mentally to stand trial in this criminal case to be
decided by a jury of six persons, this is a civil
proceeding, or whether you want to present--whether that
issue can be presented to the Court sitting without a
jury.
The decision is yours to make, and I am asking you
to make that decision. Do you want six people seated in
this jury box to hear evidence from your doctors and
other persons concerning your mental status and your
legal competence to stand trial, or do you want to have
the Court make that decision without the jury?
Tell me.
THE DEFENDANT: I wish the Court to make that
decision."
The defendant thereafter executed a written waiver of a jury for
the fitness hearing. The defendant now contends that the trial
court incorrectly accepted his jury waiver when defense counsel had
already demanded a jury for the proceeding.
There is no constitutional right to a jury at a hearing to
determine fitness to stand trial. People v. Manning, , 239 (1979). Our legislature, however, has made provisions for
a jury to determine the issue of a defendant's fitness under some
circumstances. 725 ILCS 5/104--12 (West 1992). Section 104--12 of
the Code of Criminal Procedure of 1963 provides:
"Right to Jury. The issue of the defendant's fitness
may be determined in the first instance by the court or
by a jury. THE DEFENSE or the State may demand a jury or
the court on its own motion may order a jury. However,
when the issue is raised after trial has begun or after
conviction but before sentencing, or when the issue is to
be redetermined under Section 104--20 or 104--27, the
issue shall be determined by the court." (Emphasis
added.) 725 ILCS 5/104--12 (West 1992).
The defendant's argument rests upon the wording of this
statutory provision. The defendant asserts that section 104--12, by
use of the term "the defense," gives the right to demand or waive
a jury to defense counsel and not to the defendant himself. In most
cases, the defendant reasons, defense counsel's decision on this
issue will coincide with the defendant's wishes. However, the
defendant posits, in the rare situation such as that presented
here, where defense counsel has demanded a jury and the defendant
expresses a desire to waive a jury, defense counsel's decision
predominates. In essence, the defendant argues that the defendant
does not personally have the right to waive a jury for the fitness
determination. The defendant's contention is without merit.
This court has held "[i]t is clear that an accused may waive
a jury in a proceeding to determine his competency." People v.
Lyons, , 440 (1969); see also People v. Brown, , (1969). The defendant acknowledges this holding and
concedes that, at the time of that holding and up until the
legislature enacted the current version of the fitness jury statute
in 1979, a defendant had the statutory right to waive a jury for
his fitness hearing. He argues, however, that the legislature
altered that rule in enacting the current version of section 104--
12.
The defendant emphasizes that, prior to the 1979 change, the
fitness jury provision provided that "the defendant" (in addition
to the State or the court) could demand a jury. Ill. Rev. Stat.
1977, ch. 38, par. 1005--2--1(d). In 1979, the section was changed
to provide, as noted above, that "the defense" may demand a jury.
The defendant contends that, in substituting "the defense" for "the
defendant," the legislature intended to take away from the
defendant the right to demand or waive a jury and to give that
right to defense counsel instead. The defendant's interpretation of
the statute is erroneous.
In construing a statute, a court's duty is to ascertain and
give effect to the intent of the legislature. People v. Parker, , 209 (1988). In determining that intent, a court must
look first to the language of the statute and interpret that
language in accordance with its plain and ordinary meaning. People
v. Ross, , 350 (1995). We find that the plain and
ordinary meaning of the phrase "the defense," as used in section
104--12, does not exclude the defendant. "The defense," as used in
this context, is commonly considered to connote the "team" or the
"side" that is defending. This definition does not exclude the
defendant, but clearly encompasses him as a part of "the defense
team." We note that, in other sections of article 104 of the Code
of Criminal Procedure, the article pertaining to fitness matters,
the legislature expressly referred to "the attorney for the
defendant" or "defendant's counsel" where it sought to refer to
defense counsel. See 725 ILCS 5/104--23(a), 104--27(c) (West 1992).
Had the legislature intended, in section 104--12, to grant the
right to demand or waive a jury solely to defense counsel, to the
exclusion of the defendant, it would have used specific language to
that effect. We thus conclude that the plain language of section
104--12 does not evince an intent to alter the defendant's right to
demand or waive a jury for the fitness determination.
The legislative history surrounding the 1979 change in the
fitness jury provision confirms our conclusion. This change was
effected as part of a major overhaul of the statutory provisions
governing fitness for trial and sentencing. Public Act 81--1217,
effective December 28, 1979, repealed previous provisions regarding
fitness (Ill. Rev. Stat. 1977, ch. 38, pars. 1005--2--1, 1005--2--
2), and replaced them with sections 102--21 and 104--10 through
104--29 of the Code of Criminal Procedure. The new sections
provided detailed procedures to be employed in determining fitness
and dealing with unfit defendants. Thus, changing "the defendant"
to "the defense" was not the only, and was certainly not the most
significant, change wrought by Public Act 81--1217.
Moreover, the debates in the legislature leave little doubt as
to the motivating factor behind the legislative overhaul. The
legislators' comments reveal that the primary purpose of the act
was to address situations such as that in the much-publicized case
of Donald Lang. This court issued an opinion in Lang's case in May
1979. People v. Lang, (1979). As noted in that
opinion, Lang was an illiterate, deaf-mute with virtually no
communicative abilities who, over the course of 14 years, had been
twice charged with murder, but had been found unfit for trial and
not civilly committable. According to the House debates, Public Act
81--1217 was the result of the Lang case and was intended to bridge
a "glaring gap" in the statutory framework for dealing with unfit
defendants. 81st Ill. Gen. Assem., House Proceedings, June 19,
1979, at 75 (statements of Representative Daniels). Under the then-
existing framework, persons such as Lang went into a "procedural
limbo," and the bill was intended to alleviate that problem by
creating "a comprehensive statute that covered defendants who are
found not fit to stand trial and sets up a series of hearings and
treatments for such persons." 81st Ill. Gen. Assem., House
Proceedings, July 1, 1979, at 61 (statements of Representative
Daniels).
Accordingly, the relevant legislative history provides no
support for the defendant's interpretation of section 104--12. The
1979 act was primarily intended to address the concerns raised by
the Lang case. According to this court's opinion in that case, it
does not appear that the Lang case involved any issue relating to
the waiver of a jury for fitness. We thus find no basis for holding
that, in changing "the defendant" to "the defense," the legislature
sought to effect the change suggested here by the defendant. The
more rational explanation for this very minor change in wording is
that the drafters used the word "defense" to allow defense counsel
to speak on the defendant's behalf to inform the court of the
defendant's wishes on this issue. We therefore reject the
defendant's contention that section 104--12 grants only defense
counsel, and not the defendant, the right to demand or waive a
jury.
The defendant nonetheless argues that logic compels the rule
he proposes. The defendant asserts that, where a bona fide doubt of
a defendant's fitness has been raised (as there must be for a
fitness hearing to take place), it is not logical to allow that
potentially unfit defendant to personally make the decision whether
to have a jury decide his fitness. This court rejected this precise
argument in People v. Brown, , (1969), stating:
"Defendant asserts, however, that it is inconsistent
to try a person's competency to stand trial and at the
same time accept his tendered jury waiver as being
understandingly made. This argument has some surface
appeal, but we do not think it makes a tendered jury
waiver a nullity as defendant contends. The other side of
the coin is that it would be reversible error for the
trial court to deny a competent defendant's jury waiver."
Brown, 43 Ill. 2d at 82.
The defendant acknowledges the holding in Brown, but urges a
different result here. We see no reason not to adhere to the Brown
court's resolution of this issue. The defendant concedes that, up
until 1979, the legislature expressly granted defendants in this
situation the right to demand or waive a jury, apparently finding
no lack of logic in that procedure. We have held that the 1979
change in the fitness jury statute did not take away that right. We
therefore continue to adhere to the Brown court's rejection of this
argument. We find no inherent inconsistency in upholding the
legislature's grant to defendants of the right to decide whether a
jury will determine their fitness for trial.
In a related argument, the defendant contends that the
acceptance of his jury waiver was improper because it was based
upon the trial judge's "unsubstantiated personal belief" that the
defendant's judgment was not impaired even if he was mentally ill.
Having found that the defendant possessed the statutory right to
decide whether to have a jury determine fitness, we agree with the
State that there is no need to consider the trial court's "reason"
for accepting the defendant's waiver. Accordingly, we hold that the
trial court properly held the defendant's fitness hearing without
a jury.

Fitness Finding
The defendant next contends that the trial court's ruling that
he was fit to stand trial must be reversed. The defendant makes
several arguments in this regard.

A. Manifest Weight of the Evidence
The defendant asserts that the trial court's ruling on fitness
was against the manifest weight of the evidence. We find the
evidence was sufficient to support the finding of fitness.
The due process clause of the fourteenth amendment prohibits
the prosecution of a defendant who is not fit to stand trial.
Medina v. California, , 439, 120 L. Ed. 2d 353, 359,
112 S. Ct. 2572, 2574 (1992); People v. Brandon, ,
455 (1994). Under Illinois law, a defendant is presumed to be fit
to stand trial, and will only be considered unfit if, because of
his mental or physical condition, he is unable to understand the
nature and purpose of the proceedings against him or to assist in
his defense. 725 ILCS 5/104--10 (West 1992); People v. Eddmonds,
, 512 (1991). Fitness speaks only to a person's
ability to function within the context of a trial; a defendant may
be fit to stand trial even though his mind is otherwise unsound.
Eddmonds, 143 Ill. 2d at 519. If a bona fide doubt of the
defendant's fitness is raised, the trial court has a duty to hold
a fitness hearing before proceeding further. 725 ILCS 5/104--11(a)
(West 1992); Brandon, 162 Ill. 2d at 456. The trial court's ruling
on the issue of fitness will be reversed only if it is against the
manifest weight of the evidence. People v. Mahaffey, ,
18 (1995).
At the fitness hearing in this case, defense counsel agreed
that there was no dispute that the defendant understood the nature
and purpose of the proceedings against him. Rather, the dispute
centered on the second part of the fitness inquiry, whether the
defendant had the capacity to assist in his defense. 725 ILCS
5/104--10 (West 1992). The testimony at the fitness hearing is
summarized below.
Dr. Mathew Markos, a licensed forensic psychiatrist and acting
clinical director of the Psychiatric Institute of the Circuit Court
of Cook County (Psychiatric Institute), testified for the State.
Dr. Markos testified that he had previously conducted examinations
to determine fitness for trial or sanity thousands of times. Dr.
Markos met with the defendant, pursuant to court orders, on four
occasions between August 27, 1993, and February 15, 1994. Dr.
Markos testified that, during his meetings with the defendant, the
defendant was calm and cooperative, exhibiting good eye contact and
no anxiety. Dr. Markos specifically looked for looseness of
association and delusions on the part of the defendant, but saw no
evidence of such symptoms. Dr. Markos discussed the defendant's
"philosophy" with him and determined that his beliefs regarding
Aryan supremacy did not constitute a delusion in the psychiatric
sense. Rather, the defendant's philosophy, Dr. Markos determined,
was a highly personalized idiosyncratic belief.
Dr. Markos diagnosed the defendant as suffering from a
personality disorder with schizoid, narcissistic and paranoid
traits, which does not constitute a mental illness or mental
disorder. Using the criteria set forth in the Diagnostic and
Statistical Manual of Mental Disorders (Third Edition-Revised)
(DSMIII-R), Dr. Markos concluded that the defendant was not
suffering from schizophrenia. The DSMIII-R requires that, for a
diagnosis of schizophrenia, there must be the presence of at least
two symptoms, and one of those must be a prominent delusion. The
defendant exhibited no delusions or delusional thinking. Neither
did the defendant exhibit other symptoms of schizophrenia, such as
hallucinations, catatonia or incoherence.
Dr. Markos further testified that, according to his medical
records, the defendant had been treated with various antipsychotic
drugs while in custody. There was, however, no change in the
defendant's beliefs as a result of the medications. According to
Dr. Markos, a true psychiatric delusion would be amenable to
treatment with medications. Dr. Markos conceded that drugs will not
always cure a delusional disorder.
Dr. Markos acknowledged that Drs. Fauteck and Rabin, also of
the Psychiatric Institute, had diagnosed the defendant as
schizophrenic. Dr. Markos took these opinions into account in
reaching his own diagnosis. Dr. Markos also acknowledged that other
doctors had diagnosed the defendant as suffering from delusional
disorder. Dr. Markos testified that the symptoms described by those
doctors did not support a diagnosis of delusional disorder, without
the additional symptom of a psychiatric delusion. Dr. Markos never
personally observed any of the symptoms described in the records of
those other doctors.
Based upon all of this information, Dr. Markos found the
defendant fit to stand trial. In Dr. Markos' opinion, the defendant
understood the charges against him and had the capacity to
cooperate with counsel if he so chose. The defendant had simply
chosen not to cooperate with counsel and had very clearly
articulated that he wished to represent himself.
The defendant's first witness at the fitness hearing was
Assistant Public Defender Thomas Verdun. Verdun was assigned to
represent the defendant at his August 9, 1993, bond hearing. Verdun
interviewed the defendant for 20 to 30 minutes, during which time
the defendant never looked directly at him. While in court at that
hearing, the defendant interrupted the judge in order to make a
statement condemning "fake Aryan beauty." The defendant also stated
to the court that he was disgusted by the ugliness of people and
that he was honored to give his life for his cause. The judge
conducting the bond hearing ordered that the defendant undergo a
behavioral clinical examination at the Psychiatric Institute.
Dr. Satinder Brar, a clinical psychologist and coordinator of
the residential treatment unit of Cook County jail, also testified
for the defendant. Dr. Brar had diagnosed the defendant with
delusional disorder, grandiose type, which is a mental illness. Dr.
Brar determined that the defendant was not willing to cooperate
with counsel in his defense because his delusional system was so
precious to him that he must protect it.
The defense also called Dr. Paul Fauteck, a forensic
psychologist at the Psychiatric Institute. Pursuant to court
orders, Dr. Fauteck examined the defendant four times between
August 19, 1993, and February 15, 1994, administering psychological
tests on two occasions. At the first examination, the defendant
seemed very intense, maintaining unbroken eye contact, but was
overall appropriately behaved. The defendant described to Dr.
Fauteck his philosophy, stating that he was alarmed at the
increasing ugliness of the American population and believed that it
was due to "false Aryan cosmetics," specifically plastic surgery,
hair coloring and tinted contact lenses. The defendant reported
that he believed that the Anti-Defamation League was tracking him
and had labelled him a "very dangerous man." After the first
examination, Dr. Fauteck diagnosed the defendant as suffering from
delusional disorder, persecutory type.
During the second examination, Dr. Fauteck administered
several psychological tests, the Minnesota Multiphasic Personality
Inventory (Second) (MMPI-2), the Rorschach Ink Blot Test and the
Thematic Apperception Test, to the defendant. After analyzing the
test results, Dr. Fauteck diagnosed the defendant as schizophrenic,
paranoid type, which is a mental illness. In reaching this
diagnosis, Dr. Fauteck also relied on a social history provided by
the defendant's parents, showing a history of apparent
schizophrenia in the family, the defendant's statements and
behavior, and the defendant's medical records while incarcerated.
Dr. Fauteck also noted that the defendant exhibited marked
looseness of association, in that he did not have an internal
consistency in his delusions, and that he had reported experiencing
auditory hallucinations in 1983 while mildly intoxicated. Dr.
Fauteck further testified that it is not uncommon for a psychosis
to be intractable and nonresponsive to medications.
In Dr. Fauteck's opinion, the defendant was not fit to stand
trial. Dr. Fauteck found that the defendant understood the charges
against him, but that his mental illness rendered him incapable of
assisting in his defense. Dr. Fauteck explained that, for the
defendant, the virtual survival of civilization depends on him and
on his sacrificing his life to make a statement. In Dr. Fauteck's
opinion, because of his delusion, the defendant could not view the
trial process as a defendant should view it and could not make
rational decisions about his defense.
On cross-examination, Dr. Fauteck testified that the defendant
was very bright and articulate. Dr. Fauteck admitted that, after
his first examination of the defendant, his provisional opinion was
that the defendant was fit. Dr. Fauteck acknowledged that the
criteria in the DSMIII-R for diagnosing schizophrenia are used
almost universally in his profession. Dr. Fauteck also acknowledged
that, under the DSMIII-R, more than just a delusion is necessary
for a diagnosis of schizophrenia. Dr. Fauteck further conceded that
a diagnosis of schizophrenia does not by itself render a person
unfit for trial.
Dr. Michael Rabin, a forensic psychologist at the Psychiatric
Institute, also testified for the defense. Dr. Rabin had
particularized training in the scoring of the MMPI and Dr. Fauteck
asked him to analyze the defendant's test. Dr. Rabin also sat in on
Dr. Fauteck's interviews with the defendant on two occasions. The
defendant stated during these interviews that he expects to use the
trial as a forum to warn America about the danger posed by fake
Aryan cosmetics and that he did not want a lawyer to represent him
because his ideas were so unique that only he could fully explain
them. Dr. Rabin diagnosed the defendant as a paranoid
schizophrenic. In Dr. Rabin's opinion, the defendant was unable to
cooperate with counsel due to his delusional beliefs and was
therefore unfit for trial. Dr. Rabin agreed, however, that a
diagnosis of schizophrenia does not necessarily mean that a person
is unfit.
In addition, psychiatrists Drs. Rafael Carreira and Usha
Kartan testified for the defense. While both had diagnosed the
defendant as suffering from delusional disorder, neither offered an
opinion on the defendant's fitness.
After hearing all of the evidence, the trial court ruled that
the defendant had the ability to assist in his defense and was
therefore fit to stand trial. This ruling was not against the
manifest weight of the evidence. Dr. Markos' testimony provided
adequate support for the trial court's finding that the defendant
was fit. The only dispute was whether the defendant was capable of
assisting in his defense. Dr. Markos, whose qualifications as an
expert in this regard were unchallenged, testified that the
defendant was capable of assisting in his defense and was therefore
fit to stand trial. Dr. Markos' opinion was based on repeated
examinations of the defendant and took into consideration all
relevant information, including the contrary opinions of his
colleagues. While the defendant presented other expert witnesses
who testified to a contrary opinion, the trial court was not
required to accept the defense experts' view. The credibility and
weight to be given to psychiatric testimony are for the trier of
fact to determine. Mahaffey, 166 Ill. 2d at 18; People v. Bilyew,
, 302 (1978). As this court has previously stated,
"[t]he ultimate issue was for the trial court, not the experts, to
decide." Bilyew, 73 Ill. 2d at 302.
Moreover, the opinions of the defense experts who found the
defendant unfit were based on the finding that the defendant's
beliefs regarding the Aryan race constituted a psychiatric
delusion. Dr. Markos disagreed with the finding that the
defendant's beliefs were delusional. The trial court was thus
called upon to make a credibility determination and decide between
the two opposing views expressed by Dr. Markos and by the defense
experts. The judge's decision to accept the conclusion of Dr.
Markos and reject that of the defense experts was not manifestly in
error. The ruling that the defendant was fit to stand trial was
therefore not against the manifest weight of the evidence.

B. Trial Court's Reference to Delusions
In a further attempt to obtain reversal of the fitness
finding, the defendant charges that the trial court's ruling cannot
be upheld because the trial court made a factual finding which
compelled the opposite conclusion. The defendant refers to the
following statement by the trial court, made while delivering its
ruling on fitness:
"The fact that an individual has deep-seated, delusional
beliefs which are fixed and which do not change in the
light of more reasoned beliefs does not lift such
feelings to the level of being unable, and I underscore
unable, to assist counsel who may not hold or agree with
such delusional thought."
The defendant asserts this statement reveals that the trial court
found the defendant's beliefs were delusional. The defendant
contends all of the expert witnesses testified that, if the
defendant's beliefs were delusional, he was not fit to stand trial.
Accordingly, the defendant concludes, this factual finding by the
trial court required the court to rule that the defendant was
unfit.
The defendant's argument fails. When the trial judge's comment
is considered in context, it is clear that he had accepted Dr.
Markos' testimony that the defendant's belief system did not
preclude him from cooperating with counsel. The trial court stated
that he found the defendant fit because, he determined, the
defendant was capable of assisting in his defense. The judge's use
of the term "delusional" does not render his ultimate conclusion
erroneous. Viewed in context, it is apparent that the judge was
using the term in a lay or nontechnical sense and was not
demonstrating agreement with the opinion of the defense experts.
See People v. Scott, , 507-08 (1992) (fitness
finding upheld despite trial court's comment that the defendant was
"unable to cooperate with his own counsel," where it was clear that
the court found that the defendant was simply unwilling, not
unable, to cooperate and the evidence supported that finding).

C. Prejudgment of Fitness
The defendant next contends that a comment by the trial judge
revealed that he had prejudged the fitness issue. The record does
not support this contention.
As discussed earlier in this opinion, prior to the start of
the fitness hearing, an issue was raised concerning the defendant's
desire to waive a jury for the proceeding. In connection with this
issue, the trial court asked the parties for a synopsis of the
evidence which would be presented at the fitness hearing. Defense
counsel stated that doctors were expected to testify that the
defendant was schizophrenic, and argued that this would render the
defendant incompetent to waive a jury for fitness. The trial court
responded with the following comment:
"Well I do because I do not think that a paranoid
schizophrenic--By nature of that disease, I do not think
you are going to find anything that says that they are
impaired because of the disease, if they are actively
suffering from that disease, in making decisions. Their
decisions may be bad, but it does not say anything--."
The defendant contends that these remarks reveal that the
trial court had prejudged the issue of the defendant's fitness. We
disagree. It is clear from the context of these remarks that the
trial judge was not prejudging fitness, but was simply addressing
defense counsel's claim that the defendant was not competent to
waive a jury for the fitness hearing.

D. Reliance on Presumption of Fitness
The defendant finally asserts that the trial court improperly
relied on the statutory presumption of fitness in finding the
defendant fit. For this contention, the defendant relies on the
following comment by the trial court in delivering its ruling:
"It is, therefore, the finding of this Court that the
State has borne its burden by a preponderance of the
evidence as to fitness and that the legal presumption of
fitness has not been overborne and that the defendant is
adjudged to be legally fit to stand trial."
The defendant correctly asserts that, once the trial court
finds that a bona fide doubt of fitness exists, the presumption of
fitness no longer adheres and the burden shifts to the State to
prove the defendant's fitness. 725 ILCS 5/104--11(c) (West 1992);
People v. Yonder, , 383-84 (1969); People v. Brown,
252 Ill. App. 3d 377, 383 (1993). The defendant contends the above
comment demonstrates that the trial court improperly required the
defendant to overcome a presumption of fitness and thereby diluted
the State's burden of proof. The defendant's argument is
groundless. The trial court's comments as a whole indicate that it
properly allocated the burden of proving fitness to the State and
did not, as the defendant suggests, require the defendant to
overcome a presumption of fitness. The trial court repeatedly
stated the correct burden of proof in making its ruling. The
incidental reference to the presumption of fitness does not support
a finding that the court improperly allocated the burden of proof.
See Yonder, 44 Ill. 2d at 384 (harmless for trial court to instruct
jury both that there was a presumption of competency and that the
State had the burden of proving competency); People v. Coulter, 230
Ill. App. 3d 209, 217 (1992).

Trial
Waiver of Counsel
The defendant asserts that reversal of his convictions is
warranted because his waiver of counsel was accepted without
compliance with Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)).
We find the defendant's waiver of counsel was valid.
It is well established that the sixth amendment to the United
States Constitution guarantees an accused in a criminal proceeding
both the right to the assistance of counsel and the correlative
right to proceed without counsel. Faretta v. California, , 833-34, 45 L. Ed. 2d 562, 580-81, 95 S. Ct. 2525, 2540 (1975);
People v. Lego, , 564 (1995); People v. Silagy, , 179 (1984). The right of self-representation is "as
basic and fundamental as [the] right to be represented by counsel."
People v. Nelson, , 574 (1971). Accordingly, an
accused may waive his constitutional right to counsel as long as
the waiver is voluntary, knowing and intelligent. Faretta, 422 U.S.
at 835, 45 L. Ed. 2d at 581, 95 S. Ct. at 2541; Lego, 168 Ill. 2d
at 564. Although a court may consider the decision unwise, a
defendant's knowing and intelligent election to represent himself
must be honored out of " `that respect for the individual which is
the lifeblood of the law.' " Silagy, 101 Ill. 2d at 180, quoting
Illinois v. Allen, , 350-51, 25 L. Ed. 2d 353, 363, 90 S. Ct. 1057, 1064 (1970) (Brennan, J., concurring).
Supreme Court Rule 401(a) governs the trial court's acceptance
of an accused's waiver of counsel. Pursuant to Rule 401(a), certain
admonishments must be given by the trial court before a defendant
may be found to have knowingly and intelligently waived counsel.
Rule 401(a) provides as follows:
"(a) Waiver of Counsel. Any waiver of counsel shall
be in open court. The court shall not permit a waiver of
counsel by a person accused of an offense punishable by
imprisonment without first, by addressing the defendant
personally in open court, informing him of and
determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence
prescribed by law, including, when applicable, the
penalty to which the defendant may be subjected
because of prior convictions or consecutive
sentences; and
(3) that he has a right to counsel and, if he
is indigent, to have counsel appointed for him by
the court." 134 Ill. 2d R. 401(a).
This court has held that compliance with Rule 401(a) is
required for an effective waiver of counsel. People v. Baker, , 137 (1983). Strict, technical compliance with Rule
401(a), however, is not always required. Rather, substantial
compliance will be sufficient to effectuate a valid waiver if the
record indicates that the waiver was made knowingly and
voluntarily, and the admonishment the defendant received did not
prejudice his rights. People v. Coleman, , 333
(1989); People v. Johnson, , 132 (1987).
In this case, the record reveals that the defendant's waiver
of counsel was preceded by substantial compliance with Rule 401(a).
The defendant first expressed his desire to "speak on [his] own
behalf" at his bond hearing on August 9, 1993. Although it is not
entirely clear, the judge presiding over that hearing appears to
have allowed the defendant to represent himself for the purposes of
that hearing, with an assistant public defender acting in a standby
capacity. Subsequently, however, at the defendant's arraignment,
the public defender's office entered an appearance on his behalf
and acted as his representative at that hearing.
On October 13, 1993, the defendant, still represented by
assistant public defenders, appeared before circuit court Judge
Locallo. At that time, the defendant indicated that he did not want
an attorney to represent him. Judge Locallo responded that before
the defendant would be allowed to represent himself, the court
would have to be satisfied that he was competent to do so.
Accordingly, Judge Locallo stated, he would order the defendant
examined for fitness. The defendant, still represented by assistant
public defenders, again appeared before Judge Locallo on November
19, 1993. As of that date, a report had been issued by Dr. Mathew
Markos stating that the defendant was fit to stand trial. Judge
Locallo inquired of the defendant about his desire to represent
himself. The defendant stated, "At the moment I will retain my
counsel."
On December 14, 1993, the defendant again appeared before
Judge Locallo. At that time, Judge Locallo raised the issue of
defendant's self-representation. The following colloquy ensued:
"THE COURT: Mr. Haynes, you have appeared before me
a number of times. Initially if I recall correctly from
one of the first times that you came before me you had
indicated that you wished to represent yourself, but then
at the same time also have standby counsel.
[DEFENSE COUNSEL]: I am sorry. I didn't realize you
were going to address this at this point. If it's your
intention, if it's your Honor's intention to address the
matter of Mr. Haynes' representation, we're going to
interpose an objection at this point.
THE COURT: Before you propose your objection.
Obviously you are working hard on this case with co-
counsel, and the State is working hard on this case, too,
to get ready for trial. The Court is getting mixed
signals from Mr. Haynes as to whether he is going to
represent himself or whether he is going to have you as
counsel. The Court is not going to require Mr. Haynes to
make that decision today. But I feel that it is incumbent
since this case is in the system that he should be
admonished regarding the consequences of representing
himself. *** So I am not going to make Mr. Haynes make
his decision, but I feel it is incumbent that he
understands the consequences. And he will be given some
additional time to make a decision as to what he wishes
to do. But I am not going to allow this case to go too
much longer because at some point the State has to know
who they are going to be dealing with."
Defense counsel objected, asserting that it was inappropriate
to address the issue of the defendant's representation before the
fitness issue had been resolved. Judge Locallo, however, stated
that he believed it was appropriate to admonish the defendant
pursuant to Supreme Court Rule 401. The judge proceeded to clarify
the defendant's position on the issue:
"THE COURT: All right. Mr. Haynes you had previously
stated to me before that you wanted to represent
yourself. But then wanted standby counsel. And then on
another court date you said you wanted to retain the
attorneys that are representing you today. Then on
December 6th you had again indicated you wished to
represent yourself. Is that a fair assessment of what you
had stated before?
THE DEFENDANT: Yes. It's a fair assessment."
Thereafter, Judge Locallo described to the defendant each of
the three counts of first degree murder and the one count of
burglary with which he was charged. The judge further informed the
defendant of the minimum and maximum penalties for first degree
murder, including the possibility of an extended term sentence and
the death penalty. Judge Locallo informed the defendant that he had
the right to be represented by counsel and that, if he could not
afford an attorney, one would be appointed for him. The judge also
described the functions a lawyer would undertake on the defendant's
behalf. The defendant stated that he understood the judge's
admonishments. Judge Locallo also inquired into the defendant's
personal history, determining that the defendant was 35 years old,
possessed a bachelor's degree in chemistry and had previously
appeared in court. Judge Locallo concluded by informing the
defendant that, if no further fitness exams were subsequently
requested, "then the issue as to who is going to represent you will
again be addressed."
Following this court appearance, subsequent fitness
examinations were conducted, leading up to a fitness hearing which
took place between March 2 and 4, 1994. On March 4, 1994,
immediately following the trial court's ruling that the defendant
was fit to stand trial, the defendant orally informed the court he
would "like to make a move to be my own counsel and be my own
representative." The trial judge, Judge Strayhorn, responded as
follows:
"THE COURT: You have that right. Mr. Haynes, I will
grant that right, but I will order Mr. Sarley and Miss
Marchigiani [assistant public defenders] to stand by and
offer you such assistance as you ask them to offer in the
trial process.
Therefore, defendant's request to represent himself
is allowed. Public defender is appointed as standby
counsel.
I will set the trial date then.
[DEFENSE COUNSEL]: We would ask for a hearing on
whether Mr. Haynes can represent himself.
THE COURT: No. If he wants to represent himself, I
have advised him, other judges have advised him against
the wisdom of representing oneself in a criminal case.
The supreme court says that right cannot be taken away
from an individual who wants to do so. Therefore, I am
going to let him do so. You will stand by as standby
counsel."
Later in this same court appearance, one of the prosecutors
sought to obtain from the trial judge clarification of the judge's
position on the required admonitions, and the following colloquy
ensued:
"[PROSECUTOR]: With respect to Supreme Court Rule
401 regarding the admonishments required, Judge Locallo
in our presence did advise the defendant of that.
THE COURT: I know that.
[PROSECUTOR]: I want to make sure that is of record
and that is what you are relying on at this point. At
that time Judge Locallo--
THE COURT: It was done in open court in the presence
of a court reporter. I have no reason to doubt that it
wasn't done. I do not feel it necessary to repeat it. It
has already been repeated many times to this man.
Therefore, if he persists in his determination to
represent himself, fine, so be it."
On the first day of trial, April 25, 1994, Judge Strayhorn
inquired of the defendant whether he continued in his wish to
represent himself and warned him that it was unwise to proceed
without counsel. The defendant responded that he wished to
represent himself.
On this record, we find that there was substantial compliance
with Rule 401(a). After the defendant had repeatedly expressed a
desire to represent himself, Judge Locallo admonished the defendant
at length regarding his right to counsel and the role defense
counsel would play in the proceedings, the nature of the murder and
burglary charges against him, and the fact that he could be
sentenced to a lengthy term of imprisonment or the death penalty.
The defendant stated that he understood each of these
admonishments. Judge Locallo also questioned the defendant
regarding his personal history to ensure that the defendant was
capable of understanding these matters. These efforts by Judge
Locallo constituted, at least, substantial compliance with Rule
401(a).
The defendant nonetheless contends that Judge Locallo's
admonishments were insufficient to satisfy the requirements of Rule
401(a), for two reasons. First, the defendant argues that the
admonishments given by Judge Locallo were ineffective because they
were given on December 14, 1993, and the defendant did not actually
waive counsel until March 4, 1994. The defendant argues that
compliance with Rule 401(a) required that Judge Strayhorn, the
judge who accepted the waiver of counsel, give the defendant the
required admonishments at the time he accepted the waiver.
We reject the defendant's contention. Under the specific
circumstances of this case, the admonishments given by Judge
Locallo were sufficient to comply with Rule 401(a). Judge Locallo's
admonishments, though given a number of weeks prior to the
defendant's waiver, were given at a time when the defendant had
indicated a desire to waive counsel. Moreover, Judge Locallo's
comments reveal that he specifically contemplated that the
defendant would not make a decision on the waiver issue
immediately, but would take time to consider the decision. Judge
Locallo stated that he was admonishing the defendant so that the
defendant could consider all the pertinent information while he
pondered his decision, which would be made at a later date.
Thereafter, at the earliest time the issue of the defendant's
representation could be revisited (after the defendant's fitness
was resolved), the defendant informed the court that he had made
the decision to waive counsel. Given these circumstances, we find
it reasonable to conclude that the defendant had fully considered
the admonishments given by Judge Locallo and was relying on those
admonishments when he made his decision to waive counsel.
Further, it is clear that the trial judge, in accepting the
defendant's waiver of counsel, was aware that Judge Locallo had
admonished the defendant in accordance with Rule 401(a) and relied
on those admonishments to conclude that the waiver was knowing and
intelligent. The purpose of Rule 401(a) is to ensure that a waiver
of counsel is knowingly and intelligently made. People v. Stahr,
255 Ill. App. 3d 624, 627 (1994). Judge Strayhorn was aware of the
actions of Judge Locallo and thus had a sufficient basis for
concluding that the defendant knew and understood his rights and
had made a knowing and intelligent decision to waive counsel. The
purpose of Rule 401(a) therefore was not frustrated.
It would have been preferable for the trial judge accepting
the waiver to admonish the defendant in accordance with Rule 401(a)
at the time he accepted the defendant's waiver of counsel. We
cannot hold, however, that the failure of a trial judge to admonish
a defendant contemporaneously with his waiver is always fatal to
the validity of a waiver of counsel. Rather, each case must be
assessed on its own particular facts. In some cases, circumstances
may dictate that a lapse in time between the giving of Rule 401(a)
admonishments and the defendant's waiver rendered the waiver
invalid. See, e.g., People v. Langley, 226 Ill. App. 3d 742, 749-50
(1992) (waiver held invalid because only admonishments had been
given at the defendant's arraignment seven months earlier, at a
time when the defendant was not requesting to waive counsel). Given
the circumstances present in this case, we find that the lapse of
time between the admonishments and the waiver did not negate the
effectiveness of the admonishments.
The defendant also charges that, aside from timing, Judge
Locallo's admonishments were insufficient to satisfy Rule 401(a)
because Judge Locallo neglected to include the minimum and maximum
sentences possible for the burglary charge. We find that this
omission did not invalidate the defendant's waiver of counsel. As
noted, this court has held that substantial compliance with Rule
401(a) is sufficient where the record shows that the waiver was
knowingly and intelligently made. Coleman, 129 Ill. 2d at 333;
Johnson, 119 Ill. 2d at 132. In Coleman, the trial court had
incorrectly admonished the defendant that the minimum sentence
possible if he was convicted of murder was 20 years' imprisonment
when, in fact, the minimum sentence possible was natural life
imprisonment. This court held that the trial court had
substantially complied with Rule 401(a) in that it had informed the
defendant of his right to counsel, described the nature of the
charges and explained that the death penalty was a possible
sentence. This court concluded that the defendant's waiver of
counsel was valid, reasoning that:
"Where a defendant knows the nature of the charges
against him and understands that as a result of those
charges he may receive the death penalty, his knowledge
and understanding that he may be eligible to receive a
lesser sentence pales in comparison." Coleman, 129 Ill. 2d at 333-34.
Likewise, in Johnson, this court held a waiver of counsel to be
valid despite the fact that the trial court had failed to
specifically advise the defendant that he faced a mandatory minimum
sentence of life imprisonment. This court relied upon the fact that
the defendant had been fully apprised that he could receive the
death penalty. Johnson, 119 Ill. 2d at 132-34.
In this case, as in Coleman and Johnson, the information
omitted from the admonishments did not invalidate the defendant's
waiver of counsel. Here, as in those cases, the defendant was fully
aware of the range of sentences possible for the most serious
charge against him, first degree murder, including the possibility
of the death sentence. Given that, the importance of the
defendant's having specific knowledge of the minimum and maximum
sentences for the significantly less serious charge of burglary
clearly "pales in comparison." Coleman, 129 Ill. 2d at 334.
Accordingly, we hold that Judge Locallo's admonishments, despite
the omission of the sentences for burglary, substantially complied
with Rule 401(a).
In addition, the record as a whole clearly demonstrates that
the defendant's decision to waive counsel was made freely,
knowingly and intelligently. The defendant first expressed his
desire to represent himself at the outset of the proceedings
against him, and reiterated that desire in open court on several
other occasions. Further, several examining doctors at the fitness
hearing testified that, during their meetings with the defendant,
he was adamant in his desire to represent himself. Consequently,
there can be no doubt as to the defendant's choice on the
representation issue. In addition, testimony at the fitness hearing
revealed that the defendant expressed an understanding of the
nature of the charges against him, the role an attorney would play,
and the fact that the death penalty was a possible sentence. With
regard to his right to appointed counsel, the defendant was
repeatedly advised of that right and, in fact, received the
assistance of appointed counsel for a period of time prior to
trial. It is therefore evident that the defendant understood that
he was entitled to legal representation, free of charge if
required.
All of these circumstances, combined with the detailed
admonishments of Judge Locallo, compel the conclusion that the
defendant knew and understood the nature of the charges against
him, the sentencing possibilities, and his right to counsel, all of
the matters encompassed by Rule 401(a). The defendant's waiver of
counsel was valid and reversal of his convictions on this ground is
not warranted.
In a related claim, the defendant charges that his waiver of
counsel was invalid because his reason for the waiver was
irrational, pointing to the testimony at the fitness hearing that
the defendant planned to use the trial to broadcast his philosophy.
We do not agree that the defendant's waiver may be invalidated on
such a basis. We have found that the defendant's waiver was made
knowingly and intelligently, and in substantial compliance with the
mandates of Rule 401. We decline to require that a trial court,
having determined that a defendant's waiver was knowing and
intelligent, must make the further inquiry into whether the
defendant has a proper reason for making the waiver. To the
contrary, a court must honor a defendant's knowing and intelligent
election to proceed pro se, even if the court considers the
decision unwise. Silagy, 101 Ill. 2d at 179-80.
Alternatively, the defendant claims that the trial court erred
in failing to readmonish him regarding his waiver of counsel prior
to the sentencing hearing. This court has held that, in the absence
of circumstances indicating that the waiver is limited, a valid
pretrial waiver of counsel by a defendant who is advised that he
has the right to counsel at all stages of the proceedings is
operative at sentencing. People v. Johnson, , 145-47
(1987); People v. Baker, , 95 (1982). We find no
indication in the record that the defendant's pretrial waiver of
counsel was limited to trial only. Further, we note that, prior to
the sentencing hearing, the trial court inquired of the defendant
whether he persisted in his desire to represent himself and advised
him against proceeding pro se. The defendant informed the trial
court that he wished to continue representing himself.
Readmonishment of the defendant prior to sentencing was not
required.

Other-Crimes Evidence
The defendant also charges that he was denied a fair trial by
the introduction of irrelevant and inflammatory evidence of other
crimes he committed. During trial, the State introduced evidence
demonstrating that the defendant had attempted to murder Charles
Stroupe and had murdered Frank Ringi. The defendant contends that
this evidence was irrelevant and its introduction requires a new
trial. We find no grounds for reversal.
The defendant raised no objection to the admission of any of
the challenged evidence. Consequently, the defendant waived any
error in the admission of this evidence. People v. Enoch, , 186 (1988). Moreover, even if error occurred in the
introduction of this evidence, we would be compelled to find that
the error was harmless beyond a reasonable doubt. See People v.
Williams, , 24 (1994). The properly admitted evidence
demonstrating the defendant's guilt of the murder of Dr. Sullivan
was nothing short of overwhelming. Not only did the defendant
confess to the murder to police, the defendant also repeatedly
confessed to the murder in open court during the trial. In
addition, several eyewitnesses identified the defendant as the
perpetrator of this crime, and the murder weapon and other
incriminating evidence were found in the defendant's apartment.
Under these circumstances, any error in the admission of the
complained-of evidence was harmless.
For the foregoing reasons, we reject the defendant's claims
that he is entitled to a new trial. The defendant has raised the
point, and the State agrees, that it was error for the trial court
to enter judgment on three counts of murder, where there was only
one victim. Accordingly, the conviction for felony murder and the
conviction for knowing murder are vacated. People v. Pitsonbarger,
, 377 (1990) (when multiple murder convictions have
been entered for the same act, the less culpable convictions must
be vacated). The defendant's convictions for intentional murder and
burglary are affirmed.

Sentencing
Eligibility Determination
The defendant's first claim of error with regard to sentencing
is directed at the trial court's finding that he was eligible for
the death penalty. As noted, the defendant was found eligible based
on two statutory eligibility factors: (1) that the defendant
intentionally killed Dr. Sullivan in the course of committing a
burglary (720 ILCS 5/9--1(b)(6) (West 1992)), and (2) that the
defendant committed the murder in a cold, calculated and
premeditated manner pursuant to a preconceived plan (720 ILCS 5/9--
1(b)(11) (West 1992)).
The defendant does not challenge the sufficiency of the
evidence to support a finding of death eligibility. Rather, the
defendant contends that the eligibility finding must be reversed
because it was made summarily by the trial court without a hearing
on the issue. The record supports the defendant's factual
assertions in this regard. According to the record, immediately
after the trial court issued its guilty verdict at trial, the court
went on to find the defendant eligible for the death penalty
without hearing any additional evidence or argument. Later in the
proceeding, the State informed the court that it was prepared to
proceed with the eligibility hearing and the trial judge responded
that he would not hold such a hearing because he had already found
the defendant eligible. The State subsequently requested that the
trial court inquire of the defendant whether he wished to present
any evidence on eligibility. The trial court refused, stating:
"THE COURT: No. Doesn't need to be. I found as a
matter of law that he is eligible. So, whatever he says
is not going to have any consequence because the law says
he's eligible."
After reviewing these comments and others made by the trial
court, we conclude that the trial court did, as the defendant here
claims, dispense with a hearing on eligibility and make a summary
finding of eligibility. This conduct by the trial court was clearly
in violation of our death penalty statute. The death penalty
statute expressly requires that a separate sentencing hearing be
conducted for the dual purposes of "determin[ing] the existence of
factors set forth in subsection (b) [eligibility factors]" and
"consider[ing] any aggravating or mitigating factors." 720 ILCS
5/9--1(d) (West 1992); People v. Brown, 169 Ill. 2d 132, 155-56
(1996). The statute provides that, at the sentencing hearing, "any
information relevant to any of the factors set forth in subsection
(b) [eligibility factors] may be presented by either the State or
the defendant under the rules governing the admission of evidence
at criminal trials," and "[t]he State and the defendant shall be
given fair opportunity to rebut any information received at the
hearing." 720 ILCS 5/9--1(e) (West 1992). The trial court thus
clearly erred in making the eligibility determination without
providing the defendant the opportunity, at a separate sentencing
hearing, to offer evidence on the issue and rebut that of the
State.
Our review of the record further reveals, however, that at no
time prior to or during the sentencing proceedings did the
defendant demand a hearing on eligibility, request that he be
permitted to present evidence on the issue, or otherwise object to
the trial court's handling of the issue. Thus, we are compelled to
find that the defendant acquiesced in the summary procedure
employed by the trial court, and thereby waived this claim of error
for review. People v. Enoch, , 186 (1988). The fact
that the defendant was proceeding pro se does not excuse his
failure to preserve an error for review. People v. Long, , 43 (1968). This is particularly true here, where the defendant
was provided with standby counsel who were available to assist him.
Long, 39 Ill. 2d at 43. Moreover, the defendant has not
demonstrated that he was prejudiced by the trial court's actions.
As discussed later in this opinion, the evidence supporting the
defendant's eligibility, at least under the factor set forth in
section 9--1(b)(11) of the Criminal Code of 1961 (720 ILCS 5/9--
1(b)(11) (West 1992)), was nothing short of overwhelming. Moreover,
the circumstances of this case are unique, in terms of the
potential for prejudice to the defendant. We cannot view this
error in a vacuum; rather, we must look at the record as a whole to
determine if reversal is required. The defendant represented
himself throughout the trial and sentencing proceedings. In the
course of that representation, the defendant chose to present no
evidence to challenge either his guilt or the death penalty, save
for his own inflammatory comments in which he admitted his guilt
and espoused his racist philosophy. The evidence at trial, in
particular the defendant's own detailed confessions, overwhelmingly
established the defendant's guilt of the charged crimes, and also
overwhelmingly established his eligibility for the death penalty.
The same judge who acted as the fact finder at the defendant's
trial took into account all of this evidence and found that the
defendant was eligible for the death penalty. A hearing on
aggravation and mitigation was held, at which hearing the defendant
had every opportunity to present evidence or argument in opposition
to a death sentence. The defendant presented no evidence other
than his own brief statement in which he again condemned fake Aryan
cosmetics. After the aggravation-mitigation hearing, the trial
judge reiterated the eligibility finding in his sentencing order.
In addition, as noted above, the defendant made no objection to the
manner in which the eligibility finding was made. The dissent
speculates that the defendant's failure to object should be excused
because objection would have been futile. If speculation is to be
considered, however, it may also be speculated that the defendant's
lack of objection was simply consistent with his strategy
throughout the proceedings. The defendant does not now suggest
what argument or evidence could have been presented in opposition
to eligibility. Thus, we find no circumstances which require
reversal of the defendant's sentence in this case, particularly in
light of the defendant's waiver. We note that this court recently
held that reversal of a defendant's death sentence was not
warranted where defense counsel failed to mount any challenge to
the defendant's eligibility, because the evidence supporting the
defendant's eligibility was overwhelming. People v. Shatner, No.
76406 (September 19, 1996).
We emphasize, however, that we do not condone the procedure
employed here of summarily deciding a defendant's eligibility for
the death penalty. The evidence presented at a defendant's
culpability trial is properly considered in making the eligibility
determination. However, a trial court may not simply combine the
eligibility determination with the culpability trial. Not only does
the statute provide otherwise, fairness militates against such a
procedure. The issues to be decided at the culpability trial differ
from those to be decided for death eligibility. Not all those
convicted of murder may be found eligible for the death penalty,
and the requirement of a statutory eligibility factor fulfills the
constitutional requirement of " `narrow[ing] the class of persons
eligible for the death penalty and *** reasonably justify[ing] the
imposition of a more severe sentence on the defendant compared to
others found guilty of murder.' " People v. Hope, , 36
(1995), quoting Zant v. Stephens, , 877, 77 L. Ed. 2d 235, 249-50, 103 S. Ct. 2733, 2742 (1983). The culpability trial
focuses only on whether the defendant is guilty of murder, not on
the further consideration of whether he is also eligible for the
death penalty. Under this scheme, a defendant cannot be expected to
defend against both a guilty verdict and a finding of eligibility
at the culpability trial.
The dissent strenuously urges that reversal of the defendant's
sentence is warranted on this ground. The basis for the dissent's
belief that this error requires reversal in this case is less than
clear. The bulk of the dissent's argument sets forth reasons why
the trial court's actions were in error. As we have stated, we are
in agreement with the dissent that the requirements of the death
penalty statute were violated when the trial court summarily
determined eligibility. We, along with the dissent, strongly
condemn the trial court's actions in failing to adhere to the
mandated statutory procedures. The dissent would hold that
reversal of the defendant's sentence is required as a result of
this error. Notably lacking in the dissent, however, is any
explanation of how, given the unique circumstances in this case,
the defendant was prejudiced by the trial court's actions. Our
holding here is predicated on the unique facts of this case, and we
do not suggest that the procedure employed would not result in
reversal in another case.
Parenthetically, we are compelled to point out that the
dissent, in discussing People v. Brown, 169 Ill. 2d 132 (1996),
misstates the holding of that case. The dissent states that in
Brown, this court reversed a death sentence on the ground that the
trial court committed error in immediately proceeding to determine
eligibility after finding the defendant guilty. Brown, however, did
not even address the propriety of the trial judge's actions in this
regard, let alone order reversal on that ground. Rather, reversal
of the defendant's death sentence in Brown was predicated wholly on
the fact that the defendant's pretrial waiver of a jury for death
sentencing was invalid because the trial judge, in obtaining the
waiver, misinformed the defendant that he must waive a jury for
sentencing as a precondition to waiving a jury for trial. Brown,
169 Ill. 2d at 154-161. No similar facts are present here, and the
dissent's suggestion that Brown compels reversal in this case is
not accurate.
In a related contention, the defendant argues that reversal is
required because the trial court's summary finding of eligibility
indicated that the trial court was predisposed to impose the death
penalty. We fail to see, however, how a determination of
eligibility, which must be made in every case before the death
penalty may be imposed, indicates a "predisposition" to impose a
death sentence.

Jury Waiver at Sentencing
The defendant waived a jury for his capital sentencing
hearing. The defendant now claims that his waiver was not knowing
and intelligent because the trial court failed to inform him that
the vote of one juror could preclude a sentence of death. This
claim is without merit. We have repeatedly held that a valid
capital sentencing jury waiver does not require the trial court to
admonish the defendant that the vote of a single juror is
sufficient to preclude imposition of the death penalty. People v.
Todd, , 72 (1992); People v. Erickson, , 295 (1987). This court has held it is sufficient, for a valid
capital sentencing jury waiver, for the trial court to explain to
the defendant that he is waiving the right to have a jury consider
the capital sentencing issues and that the sentencing decision
would, therefore, be made by the judge alone. People v. Brown, 169 Ill. 2d 132, 156 (1996); People v. Wiley, , 301
(1995). The record reveals that the trial court's admonishments to
the defendant prior to accepting the sentencing jury waiver met
these requirements. The defendant's contention that his sentencing
jury waiver was invalid is therefore rejected.
The defendant also suggests that his jury waiver was invalid
because he was not specifically told by the trial court that he had
the right to a jury for the eligibility determination. As noted
above, however, we have found that the trial court's admonishments
to the defendant were sufficient to effectuate a valid sentencing
jury waiver. Further, our review of the record reveals that the
defendant clearly waived a jury for the entire sentencing
determination.

Reevaluation of Fitness Prior to Sentencing
The defendant next claims that reversal of his death sentence
is warranted because the trial court erred in rejecting standby
counsel's request for a reevaluation of the defendant's fitness
prior to sentencing. Shortly after the trial court issued its
verdict finding the defendant guilty, standby counsel for the
defendant asked the court to order the defendant examined for
fitness for sentencing. The trial court refused this request,
stating that the defendant had already been found fit.
On appeal, the defendant acknowledges that he was found fit to
stand trial after a lengthy pretrial hearing. The defendant does
not claim that, subsequent to that hearing, a bona fide doubt of
his fitness was raised such that the trial court was required to
hold a fitness hearing prior to sentencing. 725 ILCS 5/104--11(a)
(West 1992). Rather, the defendant contends only that the trial
court should have ordered him examined for fitness at that time. We
disagree.
The decision whether to order a fitness examination is
expressly left to the discretion of the trial court because it is
in a superior position to observe and evaluate the defendant's
conduct. 725 ILCS 5/104--11(b) (West 1992); People v. Hall, 186
Ill. App. 3d 123, 131-32 (1989). In this case, we find no abuse of
discretion in the trial court's denial of standby counsel's request
for appointment of an expert. The defendant had already been
extensively examined for fitness by several experts and the
findings of those experts were fully presented at the pretrial
fitness hearing. After hearing that testimony, the trial court
ruled that the defendant was fit, and we have found that this
ruling was supported by the evidence. In denying the request for
reevaluation, the trial court stated that it had observed nothing
during the course of the trial which indicated that the defendant's
status with regard to fitness had changed. The only new matter
pointed to by standby counsel as justification for ordering a new
fitness examination was the defendant's behavior of "rocking back
and forth" during the trial. This matter, however, was brought to
the attention of the trial judge, who indicated that he had noticed
the behavior, but that he did not find that it required a new
fitness examination. The trial judge was in the best position to
make this determination, having personally observed the defendant
over the course of these proceedings. We cannot find that the trial
court's denial of the request for reevaluation was an abuse of
discretion. See Hall, 186 Ill. App. 3d at 133-34; People v. Banks,
94 Ill. App. 3d 122, 129 (1981).
The defendant also makes the vague assertion that a new
fitness examination was required because the trial court "knew"
that the defendant was receiving antipsychotic medications. This
assertion is groundless. The trial court's knowledge that the
defendant was receiving such medications was gained from the
testimony presented at the defendant's fitness hearing. Thus, the
trial court certainly took this information into account in making
the pretrial fitness determination. There is no evidence that the
administration of antipsychotic drugs to the defendant changed in
any manner that would have required a revisitation to the issue of
his fitness prior to sentencing.

Constitutionality of Section 9--1(b)(11)
The defendant asserts that his death sentence must be vacated
because he was found eligible on the basis of an unconstitutionally
vague eligibility factor. As noted, the defendant was found
eligible for death on the basis of two eligibility factors: (1)
murder in the course of a felony (720 ILCS 5/9--1(b)(6) (West
1992)), and (2) murder committed in a cold, calculated and
premeditated manner pursuant to a preconceived plan (720 ILCS 5/9--
1(b)(11) (West 1992)). The defendant challenges the
constitutionality of section 9--1(b)(11), arguing that its terms do
not adequately narrow the class of those eligible for death. The
defendant's challenge fails.
Section 9--1(b)(11) provides that a statutory eligibility
factor exists if:
"the murder was committed in a cold, calculated and
premeditated manner pursuant to a preconceived plan,
scheme or design to take a human life by unlawful means,
and the conduct of the defendant created a reasonable
expectation that the death of a human being would result
therefrom." 720 ILCS 5/9--1(b)(11) (West 1992).
This court has already held that section 9--1(b)(11) is not
unconstitutionally vague, finding that its terms places the
necessary restraint on the sentencer's discretion to impose death.
People v. Munson, 171 Ill. 2d 158, 191-92 (1996); People v.
Johnson, , 372-73 (1993).
In this case, the evidence overwhelmingly supported a finding
of eligibility based on section 9--1(b)(11). The evidence showed
that the defendant coldly and meticulously planned the murder of
Dr. Sullivan. Some time prior to the crime, the defendant decided
to commit the murder of a plastic surgeon in order to "strike out"
against the perpetrators of "fake Aryan cosmetics." In furtherance
of this goal, the defendant perused the yellow pages of the
telephone book and selected Dr. Sullivan as his target, based on
the size of his advertisement. A few days prior to the crime, the
defendant called Dr. Sullivan's office and made an appointment
under a false name. At the scheduled date and time, the defendant
went to Dr. Sullivan's office for the purpose of carrying out his
plan. The defendant waited to commit the murder until he was in the
office with Dr. Sullivan so that he could be sure that he was
murdering the right man. In addition, the defendant stated that he
had planned an escape route and that he had carefully parked his
car to best effect his escape after the murder. A more coldly
planned murder is difficult to imagine. Thus, the evidence clearly
established the existence of this eligibility factor.

Existence of Statutory Mitigating Factor
The defendant also contends that reversal of his death
sentence is warranted because the trial court effectively ignored
the existence of a statutory mitigating factor. The defendant
claims the evidence showed that, at the time of the murder, he was
acting under the influence of extreme mental or emotional
disturbance within the meaning of section 9--1(c)(2) of the death
penalty statute. 720 ILCS 5/9--1(c)(2) (West 1992). This contention
is not supported by the record. The only expert witness to give an
opinion at sentencing with regard to the existence of this
mitigating factor at the time of the murder was Dr. Markos. Dr.
Markos testified that, in his opinion, the defendant was not
operating under the influence of extreme mental or emotional
disturbance at the time of the murder.
The defendant also claims that brief questioning of Dr. Markos
by the trial court, designed to ascertain if the doctor considered
the defendant to be mentally ill, demonstrates that the trial court
applied an erroneous interpretation of the statutory factor. This
conclusion is not supported. The trial court expressly stated that
it had considered the mitigating factors set forth in the death
penalty statute. We find no indication in the record that the trial
court failed to properly evaluate these factors. The questioning
referred to by the defendant constituted nothing more than the
trial court's effort to clarify a portion of Dr. Markos' testimony,
which he found confusing. We find no abuse of discretion in the
trial court's determination that this statutory mitigating factor
was not present.

Constitutionality of Death Penalty Statute
Finally, the defendant raises two constitutional challenges to
the Illinois death penalty statute. The defendant first contends
that the statute is unconstitutional because it places a burden of
proof on the defendant which precludes meaningful consideration of
mitigating evidence. This court has previously rejected this
argument (see People v. Edgeston, , 247 (1993)), and
we decline to reconsider that holding. The defendant also contends
that the death penalty statute is unconstitutional because it does
not sufficiently minimize the risk of arbitrarily or capriciously
imposed death sentences. We decline to reconsider our previous
holding rejecting this constitutional challenge. See People v.
Tenner, , 390 (1993).

CONCLUSION
For the reasons set forth above, we affirm the defendant's
convictions for intentional murder and burglary and affirm his
death sentence. We vacate, however, the defendant's convictions for
knowing and felony murder. We hereby direct the clerk of this court
to enter an order setting Wednesday, January 15, 1997, as the date
on which the sentence of death entered by the circuit court of Cook
County shall be carried out. The defendant shall be executed in the
manner provided by law. 725 ILCS 5/119--5 (West 1994). The clerk of
this court shall send a certified copy of the mandate in this case
to the Director of Corrections, the warden of Stateville
Correctional Center, and the warden of the institution where the
defendant is now confined.

Convictions affirmed in part
and vacated in part;
sentences affirmed.

JUSTICE FREEMAN, concurring in part and dissenting in part:
Although I concur in the majority's affirmance of the
defendant's burglary and intentional murder convictions in this
case, I disagree with its conclusions concerning the propriety of
the death sentence hearing. Specifically, I am deeply troubled by
the majority's treatment of the trial judge's summary finding that
defendant was eligible for the death penalty. The trial judge here
not only failed to follow the procedure established by the
legislature in conducting the hearing, but also misstated the law
to a pro se defendant. These errors, taken together, cast serious
doubt on the integrity of the proceeding which we review today.
Therefore, I must respectfully dissent from that portion of the
opinion.

I
Our death penalty statute expressly provides that upon the
State's request, the court "shall conduct a separate sentencing
proceeding to determine the existence of factors set forth in
subsection (b) [eligibility factors] and to consider any
aggravating or mitigating factors as indicated in subsection (c).
The proceeding shall be conducted *** before the court alone if the
defendant waives a jury for the separate proceeding." 720 ILCS 5/9-
-1(d)(3) (West 1992). During the hearing, "any information relevant
to any of the [eligibility] factors *** may be presented by either
the State or the defendant 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." 720 ILCS 5/9--1(e) (West 1992). Finally, the
statute further provides that the burden of proof for establishing
the existence of the eligibility factors is on the State and "shall
not be satisfied unless established beyond a reasonable doubt." 720
ILCS 5/9--1(f) (West 1992).
The transcript of proceedings in this case reveals that the
trial judge did not follow these procedures. I quote from the
record at length in order to relate in full the extent to which the
judge deviated from the statute. As demonstrated by the portion of
the transcript quoted below, the eligibility hearing took place
immediately after the trial court found defendant guilty as charged
in the indictment.
"[THE COURT]: There's really nothing that the court
can add to what has already been added by virtue of the
totality of the evidence in this case and so, therefore,
it now becomes my obligation and responsibility to tell
Mr. Jonathan Haynes that he is guilty in the manner and
form as charged in the indictment. That is the finding of
the court, and judgment will be entered on the finding.
Please step up, Mr. Haynes. Mr. Haynes, under the
charge that has been placed against you, this is felony
murder. A felony murder carries with it a possible
sentence of death. And since the court has found you
guilty in manner and form as charged in the indictment,
and since one of the allegations in the indictment was
that you committed this first degree murder in the course
of the perpetration of another felony, that being
burglary, that makes you eligible to have death imposed
upon you as a sentence in this case.
The law states that under these circumstances, a
Defendant having been found guilty under the felony
murder count of the indictment has a right to have the
determination made as to whether or not death should be
imposed by a fact finder, either a jury or by the court.
And I now ask you at this time, do you understand what I
have just stated?
MR. HAYNES: Yes, I do.
THE COURT: Do you wish to confer again with [stand-
by counsel] with reference to your rights now as to
whether you wish to have a jury hear and make a
determination as to what the sentence should be in this
case or whether you wish the court to make that
determination? Do you wish to--confer with [stand-by]
counsel on that issue?
MR. HAYNES: No, I do not.
THE COURT: What is your desire? Do you wish a jury
to hear and make a determination as to the sentence to
impose upon you after you have been found guilty of first
degree felony murder or do you wish to [sic] court to
make that determination?
MR. HAYNES: I will let the court decide.
THE COURT: I will ask you at this time, therefore,
to sign the jury waiver which states that you waive your
constitutional right to have a jury determine what your
punishment should be in this case, and are willing to
submit this issue to a court sitting without a jury.
* * *
Mr. Haynes, I'm passing to you a document which if
you sign it means that your will waive your
constitutional right to have a jury hear evidence and
determine what the sentence should be in this case after
a finding of guilty. I want you to be absolutely clear
that you understand what you are signing when you sign
this document. Do you understand that?
MR. HAYNES: Yes. Yes, I do."
At this point in the proceedings, stand-by counsel requested to
have defendant ordered examined for a determination of his fitness
to be sentenced. The court denied the request. The following
colloquy then occurred:
"MR. PAYNTER [Assistant State's Attorney]: Your
Honor, the People at this time would just merely wish to
supplement the action the court has taken by filing with
the court A MOTION TO CONDUCT A SENTENCE PROCEEDING TO
DETERMINE THE IMPOSITION OF THE DEATH PENALTY.
THE COURT: Proceed.
MR. PAYNTER: We are prepared to proceed on the
eligibility.
THE COURT: No, I find him eligible. SO WE DON'T HAVE
TO HAVE ANY EVIDENCE PRESENTED ON THAT ISSUE. I FIND THAT
THE LAW IS SUCH THAT HE IS CHARGED WITH FELONY MURDER. HE
HAS BEEN FOUND GUILTY OF FELONY MURDER.
With felony murder, one of the sentences that is
possible for a felony murder is the death penalty. So I
find him based upon the evidence that has been presented
in the trial, that he is eligible to have the death
penalty imposed upon him.
MR. PAYNTER: The court also takes judicial notice
the Defendant is over the age of 18.
THE COURT: Yes." (Emphasis added.)
The court then continued the proceeding to the following week,
stating that "[t]here's been a finding of eligibility for the
imposition of the death penalty."
At the beginning of the next court session, the trial judge
stated to defendant that "this is the sentence hearing. The State
is asking that you be sentenced to death, and under the statute,
there is a sentencing hearing required because the Court has found
that your are eligible to have the death penalty imposed. Do you
still desire and wish to represent yourself in this sentencing
hearing?" Defendant responded affirmatively. The following exchange
between the assistant State's Attorney and the trial judge then
occurred:
"MR. NELSON: Judge, we addressed the eligibility
question on Friday.
We'd ask you to inquire of the defendant if there
was any evidence he wished to offer on that particular
issue.
THE COURT: No. DOESN'T NEED TO BE. I FOUND AS A
MATTER OF LAW THAT HE IS ELIGIBLE. SO, WHATEVER HE SAYS
IS NOT GOING TO HAVE ANY CONSEQUENCE BECAUSE THE LAW SAYS
HE'S ELIGIBLE." (Emphasis added.)

II
The majority concludes that the "trial court did, as the
defendant here claims, dispense with a hearing on eligibility and
make a summary finding of eligibility. This conduct by the trial
court was clearly in violation of our death penalty statute." Slip
op. at 32. The majority, however, goes on to hold that "at no time
*** did the defendant demand a hearing on eligibility, request that
he be permitted to present evidence on the issue, or otherwise
object to the trial court's handling of the issue *** and thereby
waived this claim of error for review." Slip op. at 32. I find this
resolution of defendant's contentions, on the basis of waiver,
disconcerting on two levels.
Initially, I cannot fathom how a pro se defendant, having just
been found guilty of murder, can be expected to perceive and
appreciate the ramifications of the trial judge's errors with
regard to sentencing procedure when, with all respect, the learned
trial judge did not. Even if defendant had, the record indicates
that the judge would not have been receptive to a challenge. As
revealed in the transcript quoted above, the trial judge refused
even the prosecutor's attempts to tailor the hearing to conform
with the requirements of the statute. There is no reason to believe
that this pro se defendant's exhortations would have fared any
better. Although I generally agree that a pro se defendant must be
held to the same standards as an attorney, the United States
Supreme Court has recognized that the judge before whom a defendant
appears without counsel has a duty "to take all steps necessary to
insure the fullest protection" of the constitutional right to a
fair trial "at every stage of the proceedings." Von Moltke v.
Gillies, , 722, 92 L. Ed. 309, 320, 68 S. Ct. 316, 322
(1948). This protection extends both to the right to counsel and to
all "essential rights of the accused." Glasser v. United States,
, 71, 86 L. Ed. 680, 699, 62 S. Ct. 457, 465 (1942). The
transcript in this case demonstrates that the trial judge was less
than meticulous in safeguarding defendant's rights at sentencing.
Under my reading of our death penalty statute, a defendant is
not under any obligation to "demand" a hearing on eligibility. The
statute mandates that the trial court "shall" conduct such a
hearing upon the State's request. See 720 ILCS 5/9--1(d) (West
1992). The transcript amply illustrates that any objection or
request for permission to adduce evidence regarding eligibility on
defendant's part would have been futile: The prosecutor, sensing
the gravity of the judge's actions, specifically requested the
judge to inquire of defendant if there was any evidence he wished
to offer as to eligibility. The trial judge refused, stating that
there "[d]oesn't need to be" because he had already "found that as
a matter of law that [defendant was] eligible." The statute,
however, expressly provides that a defendant may present any
information relevant to factors regarding eligibility. See 720 ILCS
5/9--1(e) (West 1992). Thus, the majority's stated reasons for
finding waiver ring hollow when juxtaposed against what was
actually said and done at the hearing.
It is with these concerns in mind, perhaps, that the majority
ultimately concludes that defendant "has not demonstrated that he
was prejudiced by the trial court's actions." Slip op. at 33. The
reason the majority gives for this conclusion is that the evidence
of defendant's eligibility was "overwhelming." Slip op. at 33. That
may be so, but the harm caused by the trial judge's error affected
more than mere eligibility. Contrary to the majority's position, I
believe that the trial court's determination of defendant's death
eligibility, made before the State even filed its motion for a
death sentencing hearing, resulted in two distinct problems which
mandate reversal.
First, the trial judge preempted the State from going forth
with its case of death eligibility. Indeed, when the prosecutor
attempted to adduce its evidence of eligibility, the trial judge
replied, erroneously, that we "don't have to have any evidence
presented on that issue. He has been found guilty of felony
murder." Not only does this statement presuppose that the State
wished to proceed on a felony-murder theory of death eligibility,
but it evinces the trial judge's disregard of defendant's statutory
right both to put on evidence and to rebut the information adduced
by the State at the eligibility phase of the hearing. In upholding
the constitutionality of our death penalty statute, the Seventh
Circuit Court of Appeals noted that the statute's "series of
procedural safeguards ensure that the defendant is given a
meaningful opportunity to respond to the State's request for the
imposition of the death penalty." Silagy v. Peters, 905 F.2d 986,
997 (7th Cir. 1990). As a result, that court determined that the
sentencing hearing mandated by our statute provides for all the
procedure which is due under the fourteenth amendment. Silagy v.
Peters, 905 F.2d at 998. Thus, when a trial judge dispenses with
the eligibility hearing, one of the series' procedural safeguards
of due process is lost.
More important, the trial judge's statement demonstrates a
disregard of the fact that not all defendants found guilty of
felony murder at trial are ipso facto death eligible at sentencing.
A capital sentencing scheme must provide a " `meaningful basis for
distinguishing the few cases in which [the penalty] is imposed from
the many cases in which it is not.' " Gregg v. Georgia, , 188, 49 L. Ed. 2d 859, 883, 96 S. Ct. 2909, 2932 (1976),
quoting Furman v. Georgia, , 313, 33 L. Ed. 2d 346,
392, 92 S. Ct. 2726, 2764 (1972) (White, J., concurring). The
United States Supreme Court has recognized that the eligibility
phase of a death sentence hearing plays a "constitutionally
necessary" function by "circumscrib[ing] the class of persons
eligible for the death penalty." Zant v. Stephens, ,
877-78, 77 L. Ed. 2d 235, 251, 103 S. Ct. 2733, 2743 (1983). This
phase of the hearing safeguards against arbitrary and capricious
sentencing because it reasonably justifies the narrowing of the
class of persons convicted of murder who are eligible for the death
penalty. Zant, 462 U.S. at 874-77, 77 L. Ed. 2d at 248-49, 103 S. Ct. at 2741-42. In the past, this court, too, has echoed these same
concerns by noting that "[a]ggravating factors serve as necessary
prerequisites without which the death sentence cannot be imposed;
they delineate the borderline between those cases in which death is
a possible punishment and those in which it cannot be considered."
People v. Lewis, , 145 (1981); see also People v.
Ramey, , 544 (1992); People v. Simms, , 170 (1991). Thus, the trial judge's error unnecessarily
compromised the constitutionality of the hearing conducted in this
case.

III
Despite the trial judge's failure to adhere to the statute's
procedural requirements and his numerous misstatements of the law
throughout these proceedings, the majority holds that the trial
court's admonishments to the defendant "were sufficient to
effectuate a valid sentencing jury waiver." Slip op. at 36. I
strongly disagree.
After the trial judge had found, sua sponte, defendant
eligible for the death penalty, he undertook to ascertain if the
defendant wished to waive a jury for his hearing. As noted, our
death penalty statute grants defendants the right to choose a jury
for their death sentencing hearing even when they are convicted at
a bench trial. See 720 ILCS 5/9--1(d) (West 1992). The statute thus
contemplates a hearing in which a jury will consider defendant's
eligibility for the death penalty in addition to whether the death
penalty should be imposed. Thus, defendant possesses a liberty
interest, protected by the due process clause of the fourteenth
amendment, to have, if he so desires, a jury decide all of the
issues relevant to sentencing. See People v. Mack, ,
534 (1995). Here, however, the trial judge effectively denied
defendant his right to elect to have a jury determine eligibility.
Therefore, I cannot join in the majority's terse conclusion that
the "record reveals that the defendant clearly waived a jury for
the ENTIRE sentencing determination." (Emphasis added.) Slip op. at
36. Although defendant may have knowingly given up his right to
have a jury elect his fate IN THE MANNER ERRONEOUSLY DESCRIBED TO
HIM BY THE TRIAL JUDGE, it cannot be said that he knowingly waived
a statutory right which, unbeknownst to him, had already been
denied.

IV
Accordingly, I cannot agree with my colleagues that because
there is evidence in the record to support a finding of
eligibility, defendant suffered no prejudice from the trial judge's
actions. In the past, this court has required "a high standard of
procedural accuracy" in death sentencing hearings in order to
ensure that "THE PENALTY IS APPLIED IN AS UNIFORM A MANNER AS
POSSIBLE WITHIN THE FRAMEWORK OF AN ADVERSARY PROCEEDING."
(Emphasis added.) People v. Walker, , 517 (1982). In
fact, this court recently, in a unanimous decision, reversed a
sentence of death imposed by the same trial judge for actions
similar, in part, to those reviewed here today. See People v.
Brown, 169 Ill. 2d 132, 163 (1996) (finding error where trial judge
immediately proceeded to determine death eligibility after finding
defendant guilty of murder). Given the similarity of the
complained-of actions in the case at bar, I see no reason for
today's departure from such recent precedent.
Where, as here, the trial judge takes it upon himself to
declare a defendant death eligible immediately after finding that
defendant guilty and prior to the State's formal request for a
death sentencing hearing, the resultant "hearing" loses the
appearance of an adversarial proceeding. The manner in which the
trial judge rushed to make the eligibility judgment was not only
statutorily infirm, but unseemly. His statements regarding the
felony-murder eligibility factor reflect an erroneous belief that
all defendants convicted of felony murder are eligible for death as
a matter of law and no evidence need be heard on the issue. Such a
viewpoint certainly does not inspire confidence in the judge's
ability to hear the issue impartially. Although the majority
"emphasize[s]" that it "do[es] not condone" the procedure employed
by the trial judge (slip op. at 34), its ultimate affirmance of the
death sentence, in my mind, provides little, if any, incentive
against its future commission. As the cases analyzing the
constitutionality of our death penalty clearly demonstrate, the
procedure established by the General Assembly for conducting a
death sentencing hearing is not a mere suggestion to be complied
with on an ad hoc basis. In matters of life and death, it is this
court's constitutional, if not moral, obligation to do more than
"not condone" the improper actions of the trial judge in this case.
We must not hesitate to reverse those actions lest bench and bar
assume that the laxity at issue here is, in any way, tolerable or
excusable. It simply is not. Therefore, I would vacate defendant's
death sentence and remand the matter for a new sentencing hearing
which comports with the procedural requirements of the statute.

JUSTICES MILLER and McMORROW join in this partial concurrence
and partial dissent.

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