People v. Smith

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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. 77695--Agenda 1--November 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DAVID SMITH,
Appellant.
Opinion filed March 20, 1997.

JUSTICE HARRISON delivered the opinion of the court:
Defendant, David Smith, was convicted following a jury trial
in the Cook County circuit court of first degree murder, aggravated
criminal sexual assault and home invasion arising from the March
17, 1987, stabbing death of Lisa Ferguson. At a separate sentencing
hearing, the same jury found defendant eligible for the death
penalty and found that there were no factors in mitigation
sufficient to preclude imposition of the death sentence.
Accordingly, the trial court sentenced defendant to death for the
murder conviction and to concurrent terms of 30 years each for the
aggravated criminal sexual assault and home invasion convictions.
On review, this court affirmed defendant's convictions, but
found that the trial court's refusal to "life-qualify" the jury
amounted to a violation of defendant's due process rights requiring
vacation of the death sentence and a remand of the cause for a new
sentencing hearing. People v. Smith, (1992). The
evidence presented at defendant's trial and original sentencing
hearing is set forth in that opinion in detail. Therefore, only the
facts necessary for understanding and adjudicating the issues in
the present appeal will be discussed.
On remand, the trial court, after a new sentencing hearing,
reimposed the death penalty for defendant's murder conviction. The
sentence of death has been stayed pending direct review by this
court. Ill. Const. 1970, art. VI, 4(b); 134 Ill. 2d Rs. 603,
609(a). Defendant argues on appeal that numerous errors committed
during both the eligibility and penalty phases of his capital
resentencing deprived him of the right to a fair sentencing
hearing. We first address those he cites that are associated with
the eligibility phase.
Defendant initially contends that his waiver of a jury for
purposes of sentencing was not knowing, intelligent or voluntary
because he was not specifically advised that he was entitled to
have a jury determine his eligibility for the death penalty. The
record shows that, prior to the sentencing hearing, the trial court
admonished defendant as follows:
"THE COURT: *** [Defendant], you understand that you
have a right to have a jury make a determination as to
the sentencing in this case.
Do you understand that?
[DEFENDANT]: Yes, sir.
Q. And you may, if you so choose, give that ***
right up and have a judge, in this case that would be
myself [sic], make that determination.
Do you understand that?
A. Yes, sir.
Q. In other words, that would be the difference
between having a jury of twelve people hearing the facts
of this case, hearing these matters, and then deciding
all of them, twelve to zero, whether--with regards [sic]
to the death penalty, whether that sentence should be
imposed.
Do you understand that?
A. Yes, sir, I do.
Q. That right cannot be taken away from you. You
must knowingly waive that right.
Do you understand that?
A. Yes, sir.
Q. Do you wish to have a jury make that
determination, or do you wish to have a judge decide?
A. I wish at this time to have the judge decide."
Defendant also executed a written waiver of jury sentencing.
Defendant argues that despite these oral and written
precautions, his waiver of his right to a jury was not knowing,
intelligent or voluntary because the trial court did not admonish
him as this court recommended in People v. Albanese, (1984). We disagree. It is true that the Albanese court stated:
"[W]e suggest to trial judges that it would be preferable
if, before accepting a jury waiver at a capital
sentencing hearing, they would inform defendants that a
sentencing jury would have to unanimously decide that the
State has proved beyond a reasonable doubt the existence
of a statutory aggravating factor and that there are not
sufficient mitigating factors established to preclude the
death sentence." Albanese, 104 Ill. 2d at 536.
However, it is sufficient for a valid jury waiver that the trial
court explain to the defendant that he is waiving his right to have
a jury consider the capital sentencing issues and that the
sentencing decision would, therefore, be made by the court alone.
People v. Haynes, 174 Ill. 2d 204, 252 (1996); People v. Ramey, , 59 (1992).
Although it is "preferable" for the court to admonish a
defendant regarding the specific rights he is waiving at each stage
of capital sentencing, this court ultimately held in Albanese that
the sixth amendment requires no precise formula for determining
whether a waiver has been knowingly and intelligently made, and
that each case will turn on its own facts and circumstances.
Albanese, 104 Ill. 2d at 535-36; see also People v. Strickland, , 517 (1992) (there is no fixed formula that must be
recited by the court prior to receiving a defendant's valid jury
waiver at a capital sentencing hearing). Here, the record shows the
trial court admonished defendant that he had a right to have a jury
make the sentencing determination, that, after hearing "these
matters," the jurors would have to decide unanimously whether the
death sentence should be imposed, and that if defendant chose to
give up that right, a judge would make the sentencing
determination. Defendant stated that he understood the consequences
of his waiver. Additionally, we find it significant that defendant
had originally been convicted of murder and sentenced to death by
a jury, and thus was familiar with the jury's function in a capital
sentencing hearing. See Albanese, 104 Ill. 2d at 536. Therefore, we
are satisfied that the facts and circumstances of this case
demonstrate that defendant's waiver was knowing, intelligent and
voluntary.
Defendant next argues that he was denied effective assistance
of counsel at his sentencing hearing because defense counsel
misunderstood the eligibility issue and accordingly did not contest
defendant's eligibility for the death penalty. In a related
argument, defendant contends that the trial court improperly found
him eligible for the death penalty where the State did not prove
and the court did not find the element of intent as required under
section 9--1(b)(6) of the Criminal Code of 1961 (720 ILCS 5/9--
1(b)(6) (West 1994)).
At resentencing, the State asked the court to take judicial
notice that the jury had convicted defendant of murder, aggravated
criminal sexual assault and home invasion, and that, given his
birth date of June 26, 1963, defendant was over the age of 18 at
the time of the offenses. The State requested that "[b]ased on
those two findings," defendant be found eligible for the death
penalty. The following colloquy then occurred:
"THE COURT: Do you have any objection to me taking
judicial notice of those facts?
[DEFENSE COUNSEL]: Judge, my understanding of the
opinion is that the sentencing--or the eligibility is not
an issue. It's merely the sentencing."
The court then took judicial notice of those facts and found,
"pursuant to the provisions of the statutes, [defendant] is
eligible for the death penalty."
We agree with defendant that his counsel evidently believed,
incorrectly, that the resentencing ordered by this court based upon
Morgan v. Illinois, , 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992), was limited to the second phase of the proceeding. In
People v. Johnson, , 134-35 (1994), we held that
there was no distinction between the two stages of sentencing for
purposes of the Morgan doctrine, because "the jury involved in any
aspect of the death sentencing procedure must be fair and
impartial." Thus, on remand, defendant clearly had a right to both
stages of the hearing. However, we find that under the
circumstances present herein, counsel's mistake as to the law did
not deny defendant a fair sentencing hearing, because the trial
court properly determined defendant's eligibility and the outcome
of the hearing would not have differed had defense counsel
contested the point.
"For the purposes of imposing the death sentence, it is
incumbent upon the sentencer to determine whether an aggravating
factor exists." People v. Johnson, , 156 (1992).
Section 9--1(b)(6) sets forth the elements of the statutory
aggravating factor of murder in the course of another felony, and
includes the requirement that the defendant acted with the intent
to kill or with the knowledge that his acts created a strong
probability of death or great bodily harm. 720 ILCS 5/9--1(b)(6)(b)
(West 1994); Johnson, 149 Ill. 2d at 156. Defendant argues, as did
the defendant in Johnson, 149 Ill. 2d at 156, that the trial court
failed to make any finding that he, in performing the acts which
caused the victim's death, acted with the necessary intent.
Specifically, defendant argues that proof that he was convicted of
murder, aggravated criminal sexual assault and home invasion and
that he was over 18 at the time of the murder is insufficient to
establish his eligibility for the death penalty. However, defendant
was indicted and proceeded to trial on, inter alia, two counts of
first degree murder alleging the mental states of intent or
knowledge (Ill. Rev. Stat. 1987, pars. 9--1(a)(1), (a)(2)), and the
jury returned a general verdict of guilty on the murder charge. See
People v. Thompkins, (1988) (where an indictment
contains several counts arising out of a single transaction and a
general verdict is returned the effect is that the defendant is
guilty as charged in each count). In Johnson, under strikingly
similar facts, we reasoned:
"The jury was charged with instructions which included
intentional murder, and a general verdict was returned.
That raised the presumption that the jury found the
defendant guilty of intentional murder. During the
sentencing hearing, the trial judge took judicial notice
of the jury's verdict. Since the verdict encompassed the
necessary finding of intent, there was no omission on the
part of the trial judge, and defendant's argument must
fail." Johnson, 149 Ill. 2d at 157.
We believe Johnson to be controlling here, and hold that the trial
court made the requisite finding of intent under the statute, where
the court took judicial notice of the jury's verdict.
Defendant cites People v. Ramey, , 545-50
(1992), wherein this court found that a jury's general verdict
would not support imposition of the death penalty because use of
the presumption that the jury found the defendant intentionally
murdered the victim would deny the defendant his right to have his
eligibility for the death penalty decided by a trial court or jury.
Defendant's reliance on Ramey is misplaced. In Ramey, the
instructions given the jury at the first stage of sentencing failed
to specify that there must be a finding that the defendant acted
with the intent required under section 9--1(b)(6)(b). Thus, this
court declined to find that the defendant's eligibility had been
established because, unlike the case before us, a statutory finding
of intent was not made at sentencing. Ramey, 151 Ill. 2d at 545-46.
Having established that the trial court properly determined
defendant's eligibility, we examine whether defense counsel's
failure to contest that finding constituted ineffective assistance.
A defendant alleging a violation of his sixth amendment right to
effective assistance of counsel must generally meet the two-pronged
test established by the United States Supreme Court in Strickland
v. Washington, , 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984), and recognized by this court in People v. Albanese, (1984). Under Strickland, the defendant must show that:
(1) his counsel's performance fell below the objective standard of
reasonableness; and (2) there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding
would have been different. Strickland, 466 U.S. at 688, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064, 2068. A court need not
determine whether counsel's performance was deficient before
examining the prejudice suffered if it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; Albanese, 104 Ill. 2d at 527.
As an initial matter, defendant contends that because his
counsel wholly failed to subject the prosecution's case to
meaningful adversarial testing at the eligibility stage of
sentencing, ineffective assistance of counsel can be presumed
without application of the Strickland test. See United States v.
Cronic, , 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984).
Defendant argues that counsel's concession of his eligibility for
the death penalty is equivalent to the concession of a defendant's
guilt that this court held constituted ineffective assistance of
counsel in People v. Hattery, (1985). However, the
facts in the instant case are clearly distinguishable from those in
Hattery. The concession by counsel in this case occurred at the
sentencing hearing, not during the opening arguments at trial.
"Thus, unlike Hattery, the question of defendant's guilt or
innocence in this case had previously been `presented to the jury
as an adversarial issue.' " People v. Holman, , 160
(1989), quoting Hattery, 109 Ill. 2d at 464. Rather, here, as in
Holman, counsel merely conceded the undisputed fact of defendant's
murder and felony convictions. We therefore reject defendant's
claim that his counsel's concession of eligibility constituted
ineffective assistance under Hattery. See Holman, 132 Ill. 2d at
160-61.
We similarly find that counsel's mistaken belief that
eligibility was "not an issue" did not constitute ineffective
assistance under Strickland. "An error by counsel, even if
professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the
judgment." Strickland, 466 U.S. at 691, 80 L. Ed. 2d at 696, 104 S. Ct. at 2066. Defendant contends that his counsel was ineffective
because, at the eligibility stage, he failed to argue that
defendant did not have a culpable mental state, yet later presented
evidence that defendant was under the influence of alcohol and
narcotics and may have experienced a transient psychotic episode at
the time of the murder. In People v. Shatner, 174 Ill. 2d 133
(1996), we recently rejected this argument raised by a defendant
whose counsel, under similar circumstances, declined to make an
opening statement in the eligibility phase, presented no evidence,
and made no argument against a finding of eligibility. There, the
sentencing court, after taking judicial notice of its presence when
the jury returned a general verdict of guilty to the charges of
first degree murder, armed robbery and arson, ruled that the
defendant was eligible for the death penalty under section 9--
1(b)(6). We held that defense counsel's actions were not
ineffective, because the defendant could not show, under the second
prong of Strickland, that there was a reasonable likelihood that,
but for counsel's inaction, the result of the eligibility
proceeding would have been different. Shatner, 174 Ill. 2d at 150.
"Johnson undermines defendant's claim that, had his
attorney challenged his eligibility, the sentencing judge
would have found that he lacked the requisite intent
under the aggravating felony murder factor and was not
eligible for the death penalty. *** Since the jury
verdicts encompassed the necessary finding of intent, and
since the trial judge took judicial notice of these
verdicts, his conclusion that defendant acted with the
requisite intent to be eligible for the death penalty
cannot be assailed." Shatner, 174 Ill. 2d at 150-51.
Moreover, we note that the trial court herein heard the
evidence defendant presented at trial and sentencing concerning his
alcohol and narcotics ingestion and "psychotic episode" on the
night of the murder, and rejected the notion that defendant's
mental condition had any effect on his criminal conduct. Prior to
handing down defendant's sentence, the court stated: "There is as
we referred to mitigation offered. The question is, is it
sufficient. Mr. Smith, you lost control. You lost control not
because in our mind of any mental condition, not because of any
disease. You just went out of control." Thus, as we stated in
Shatner:
"From these comments, it is apparent that
defendant's contention that his eligibility hearing might
have been different had his counsel contested eligibility
is speculative at best. Defendant thus cannot satisfy the
prejudice prong of the Strickland test, and his claim of
ineffective assistance of counsel at the eligibility
phase must be rejected." Shatner, 174 Ill. 2d at 151.
We next consider defendant's assertions of error with regard
to the second phase of his capital sentencing hearing. Defendant
first argues that he is entitled to a new sentencing hearing
because the record does not reflect that he waived his right to
testify. The State responds that defendant has waived appellate
review of this issue and, alternatively, that defendant's
contention is without merit. We agree with both the State's
arguments.
Section 9--1(e) of the Criminal Code of 1961 allows the
defendant to testify at his capital sentencing hearing. 720 ILCS
5/9--1(e) (West 1994); People v. Gaines, , 376
(1981). However, in the case at bar, the record shows that at no
time during the hearing did defendant indicate a desire to testify
in his own behalf. Nor did defendant raise this matter in his post-
sentencing motion. Thus, defendant has waived this issue for
purposes of appellate review. People v. Enoch,
(1988). Notwithstanding defendant's waiver, we choose to address
the merits of this issue. See People v. Shelton, 252 Ill. App. 3d
193, 200 (1993); People v. Raso, 234 Ill. App. 3d 1099, 1100-01
(1992).
Defendant urges that this court adopt the holding of a small
minority of jurisdictions which have required a defendant's waiver
of the right to testify to be on the record. See Tachibana v.
State, 79 Haw. 226, (1995); Annotation, Necessity
That Waiver of Accused's Right to Testify in Own Behalf Be on the
Record, 90 A.L.R.4th 586 (1991). Illinois courts have consistently
found, however, that when a defendant contends on appeal that he
was precluded from testifying at trial, his conviction cannot be
reversed on the basis that he was prevented from exercising that
right unless he contemporaneously asserted his right to testify by
informing the trial court that he wished to do so. See People v.
Thompkins, , 177-78 (1994); People v. Brown, , 24 (1973); Shelton, 252 Ill. App. 3d at 201; Raso, 234 Ill.
App. 3d at 1100; People v. Knox, 58 Ill. App. 3d 761, 767-68
(1978). Indeed, a vast majority of the states considering this
question have held that a defendant's waiver of his right to
testify is presumed if, as in the present case, he fails to testify
or notify the court of his desire to do so. See Shelton, 252 Ill.
App. 3d at 201, citing United States v. Martinez, 883 F.2d 750, 760
(9th Cir. 1989), vacated on other grounds, 928 F.2d 1470 (9th Cir.
1991).
Additionally, a majority of jurisdictions, and our own
appellate court, have found that a trial court has no duty to
advise a defendant, represented by counsel, of his right to
testify, nor is the court required to ensure that an on-the-record
waiver has occurred. Shelton, 252 Ill. App. 3d at 201; Raso, 234
Ill. App. 3d at 1102; see also Martinez, 883 F.2d at 760. Although
such procedures are required to establish a valid jury waiver (725
ILCS 5/103--6 (West 1994)) or a voluntary guilty plea (725 ILCS
5/113--4(c) (West 1994); 134 Ill. 2d Rs. 402, 605), there is no
need for a comparable requirement that the trial court set of
record defendant's decision on this matter. As the Martinez court
stated:
"At least seven reasons have been given for this
conclusion: First, the right to testify is seen as the
kind of right that must be asserted in order to be
recognized. [Citation.] Second, it is important that the
decision to testify be made at the time of trial and that
the failure to testify not be raised as an afterthought
after conviction. [Citation.] Third, by advising the
defendant of his right to testify, the court could
influence the defendant to waive his right not to
testify, `thus threatening the exercise of this other,
converse, constitutionally explicit and more fragile
right.' [Citation.] Fourth, a court so advising a
defendant might improperly intrude on the attorney-client
relation, protected by the Sixth Amendment. [Citation.]
Fifth, there is danger that the judge's admonition would
introduce error into the trial. [Citation.] Sixth, it is
hard to say when the judge should appropriately advise
the defendant--the judge does not know the defendant is
not testifying until the defense rests, not an opportune
moment to conduct a colloquy. [Citation.] Seventh, the
judge should not interfere with defense strategy.
[Citation.]" (Emphasis in original.) Martinez, 883 F.2d
at 760.
For all these reasons, we join the majority of states in concluding
that the trial court is not required to advise a defendant of his
right to testify, to inquire whether he knowingly and intelligently
waived that right, or to set of record defendant's decision on this
matter.
Here, defendant does not assert that his counsel was
ineffective for advising him to refrain from testifying at
sentencing, nor does he indicate of what his testimony would have
consisted. We recognize that the decision whether to take the
witness stand and testify in one's own behalf ultimately belongs to
the defendant (Thompkins, 161 Ill. 2d at 177; Brown, 54 Ill. 2d at
23), but it should be made with the advice of counsel (Brown, 54
Ill. 2d at 23-24; Raso, 234 Ill. App. 3d at 1101-02). Thus, in the
instant case, defendant's decision not to testify must be viewed as
strategy with which he agreed. See Thompkins, 161 Ill. 2d at 177;
Raso, 234 Ill. App. 3d at 1101. Accordingly, we conclude that
defendant waived his right to testify because he did not
contemporaneously assert his right to do so and that the trial
court did not err by failing to advise defendant of his right to
testify at sentencing or by failing to require that defendant's
waiver of the right be incorporated in the record. See Shelton, 252
Ill. App. 3d at 202; Raso, 234 Ill. App. 3d at 1101-02.
Defendant next contends that the trial court erred in relying
on its notes from the original sentencing hearing without informing
defense counsel. Richard Rizzo, a Cook County sheriff's office
employee assigned to the Cook County jail, testified for the State
in aggravation at both defendant's original sentencing hearing in
1989 and at the 1994 resentencing hearing which is the subject of
this appeal. In 1994, Rizzo testified that he discovered a shank in
a cell occupied by defendant and another inmate, and that defendant
admitted it was his. During closing arguments, defense counsel
stated that defendant denied ownership of the shank. In rebuttal,
the State argued that defendant had admitted the shank was his and
defense counsel objected, stating there was no such evidence. The
trial court commented that it did not recall whether defendant
admitted or denied ownership of the shank. The court then stated:
"I just happen to have my notes which indicate as long as
this has been brought out. It talks about him--and I
believe his name was officer Rizzo *** recovered a shank
from the defendant's cell, questioned both inmates.
I guess [defendant] was there with another man named
*** Rollins--never saw the defendant attack anybody or
use the shank. He indicated the defendant denied that it
was his shank.
And then it goes on. Redirect. He was found guilty
of an offense and was sanctions [sic] for that."
Defendant argues that the notes referred to by the trial court
do not reflect Rizzo's testimony at the 1994 hearing, but his "more
extensive and more aggravating" testimony at the 1989 hearing. We
agree that the record on appeal, which includes a transcript of
proceedings at both sentencing hearings (134 Ill. 2d R. 608),
supports defendant's claim. In 1994, Rizzo did not testify that
defendant denied it was his shank, was found guilty of an offense,
or was sanctioned for it. Nor was Rizzo subject to redirect at the
1994 hearing. Therefore, where the trial court's notes reflect
proceedings which occurred in 1989 but not in 1994, we will presume
for purposes of this appeal that the trial court was referring to
its notes from the original sentencing hearing.
While the State argues that defendant has waived this issue on
appeal, we find that his failure to object to the court's use of
its notes is excused where defense counsel did not know at the time
that the court was referring to notes from the original sentencing
hearing. Although defendant also failed to include the court's
reference to the 1989 notes as error in his post-sentencing motion,
application of the waiver rule is less rigid where the basis for
the objection is the trial court's conduct. People v. Nevitt, , 455 (1990). We choose, therefore, to examine this
issue on the merits.
"The law is well settled that, exclusive of certain
matters of which the court may take judicial notice, the
deliberations of the trial judge are limited to the
exhibits offered and admitted in evidence and the record
made before him in open court. Any private investigation
by the court *** constitutes a denial to the defendant of
the constitutional guarantee of due process of law."
People v. Rivers, , 416 (1951).
Further, if an accused is not informed at trial of the facts of
which the court is taking judicial notice, he does not know upon
what evidence he is being convicted, and he is deprived of any
opportunity to challenge the deductions drawn from such notice or
to dispute the truth of the facts allegedly relied upon. Garner v.
Louisiana, , 173, 7 L. Ed. 2d 207, 219, 82 S. Ct. 248,
256-57 (1961). Thus, in the case at bar, the trial court erred in
relying on notes from the previous sentencing hearing without
informing the defense. The court's brief reference to "my notes"
was insufficient to inform the defense that the court was taking
judicial notice of testimony presented at a prior proceeding, and
thus counsel had no opportunity to challenge any deductions which
might be drawn from such testimony or to dispute its truth.
However, we do not believe this error deprived defendant of
due process for several reasons. First, defendant was not
prejudiced by the court's reliance on Rizzo's original testimony
that defendant had denied ownership of the shank, because the
court's notes mirrored what defense counsel maintained during
closing argument. Defense counsel argued that the shank was never
in defendant's actual possession and that he denied that it was
his. The court, after referring to its notes, concurred with
defense counsel. Additionally, our review of the record reveals
that the trial court's isolated reference to its notes was
inconsequential and had no effect on the sentence it imposed on
defendant. Thus, where defendant has failed to demonstrate that he
would not have received the death sentence absent the court's
reliance on its notes, we consider the court's error to be
constitutionally insignificant. See People v. Byron, , 304 (1995) (trial court's reliance on allegedly incorrect
statements in presentence report concerning capital defendant's
drug use was constitutionally insignificant where defendant denied
accuracy of report and court's comments on matter were isolated).
Defendant next contends that the trial court erred in
considering that the jury in the original proceedings had sentenced
defendant to death. During closing argument at defendant's
resentencing hearing, the State urged the court to consider that
essentially the same evidence had been presented to the jury in
1989 and that the jury had returned a sentence of death. A defense
objection was overruled. In his post-sentencing motion, defendant
alleged that the State erred in referring to the jury's finding in
the first sentencing hearing and in arguing that "the same
essential evidence was balanced by 12 people." At the hearing on
defendant's motion, defense counsel responded as follows to the
State's position that the references to the jury's finding were
"proper": "[T]he State is arguing that somehow the jury's
determination has a legitimate place in this Court's determination.
That's wrong, Judge. That jury determination was thrown out by the
Supreme Court. It has no validity in any aspect in this courtroom."
We agree.
This court vacated the sentence of death originally imposed on
defendant because the trial court's refusal to "reverse-
Witherspoon" or "life-qualify" the jury, over defendant's
objection, amounted to a due process violation. Smith, 152 Ill. 2d
at 274. "It is elemental that the vacatur of a sentence renders the
sentence null and void and of no legal effect." People v. Brooks,
, 274 (1994). Further, as the United States Supreme
Court has stated:
"Although we have acknowledged that `there can be "no
perfect procedure for deciding in which cases
governmental authority should be used to impose death," '
we have also made it clear that such decisions cannot be
predicated on mere `caprice' or on `factors that are
constitutionally impermissible or totally irrelevant to
the sentencing process.' [Citation.]" Johnson v.
Mississippi, , 584-85, 100 L. Ed. 2d 575,
584, 108 S. Ct. 1981, 1986 (1988).
Here, because the jury's sentence had been vacated and was "of
no legal effect," it was an irrelevant factor in the resentencing
process. Thus, the State's argument urging the trial court to
consider the prior death sentence was improper and the court's
failure to sustain defendant's objection to that argument was
error. However, we do not agree with defendant that a new
sentencing hearing is necessary, where it is apparent from the
record that the trial court did not rely on the improper argument
in determining to impose the death penalty. "The rule that this
court will `not lightly overturn the findings of the trial court,
particularly when they are amply supported by the record,' applies
to findings made during the aggravation and mitigation phase of the
death penalty hearing. [Citations.]" People v. Christiansen, , 122-23 (1987).
In the case at bar, the record clearly indicates that the
trial court relied on only proper evidence in sentencing defendant.
In pronouncing sentence, the court noted that it had reviewed its
notes, the exhibits which had been offered and admitted, the
transcripts from the prior proceedings and the doctors' reports.
The court then stated that it had also considered the testimony of
the witnesses presented in aggravation and mitigation, the offenses
defendant had been found guilty of committing, and its own finding
that defendant was eligible for the death penalty. The court
further stated that it had considered the facts of the case,
concluding: "In our view--and we have now seen a fair number of
cases, this is in our mind *** an exceptionally brutal case." The
court then noted its consideration of defendant's post-arrest
behavior and the evidence presented in mitigation and held:
"Considering the facts of the case, your conduct subsequent to the
arrest and also your conduct after conviction, we feel that the
sentence of death is appropriate; and we sentence you thereto."
It is well established that where a sentencing hearing is
conducted before the trial court instead of a jury, the court is
presumed to consider only competent and relevant evidence in
determining sentence. People v. Ashford, , 508
(1995). This rule applies to arguments and remarks of counsel.
People v. Grodkiewicz, , 199-200 (1959). Unless it
affirmatively appears that the court was misled or improperly
influenced by such remarks and that they produced a judgment and
sentence contrary to the law and the evidence, this court will not
reverse. Grodkiewicz, 16 Ill. 2d at 200. At no point did the trial
court herein refer to the sentence imposed by the jury or, in any
way, indicate that it had influenced its sentencing decision. As we
have noted, the express findings of the trial court contained in
the record show that the court considered only the proper statutory
factors in aggravation and mitigation. Thus, we find that defendant
has failed to support his allegation that the trial court
improperly considered the jury's finding at the original proceeding
in sentencing defendant.
Defendant next argues that the trial court erred in allowing
occurrence witness Sirena Moya to testify as a witness in
aggravation. Defendant contends that Sirena's "testimony and her
very appearance on the stand were inappropriate and overly
prejudicial" and denied him a fair and reliable death penalty
hearing. The State maintains that Sirena's presence at the scene of
the crime makes her testimony relevant and reliable, "especially
where she recognized defendant's voice from previous encounters."
At sentencing, the State called 11-year-old Sirena as a
witness and defendant objected, arguing her testimony was not
relevant, reliable or appropriate. The trial court overruled the
objection as to relevance, and after some qualifying questions,
overruled the objection as to competency. Sirena then testified
that on March 17, 1987, she was four years old. About 5 p.m. on
that date, her parents went to a bar and left her at home with her
cousin, Lisa Ferguson. The two were watching a movie and eating
popcorn in the living room when there was a knock at the kitchen
door. Lisa got up and asked who it was and a voice said it was
Dave. Sirena recognized the voice as a friend of her father's,
David Smith, and identified defendant as that person at the
sentencing hearing.
Sirena further testified that Lisa told defendant that she
"couldn't let him in" the apartment, and then Lisa came back and
watched the movie again. Approximately an hour later, there was
another knock at the door. Lisa asked who it was and a man's voice
said it was Lisa's brother Max. Sirena testified that she was
walking to her bedroom as Lisa opened the door. When Sirena saw
defendant at the door, alone, she "ran underneath [her] bed."
Sirena next heard Lisa screaming, then heard someone say "shut up."
Sirena testified that besides Lisa's screams coming from the
kitchen, she heard the silverware drawer shake, and then everything
went silent. About five minutes later, Sirena, still under her bed,
heard water running in the bathroom. A "police lady" then came into
her room, put a blanket over her head and took her to the next door
neighbor's home. Sirena testified that when she saw her mother, she
told her, "mommy, mommy, Lisa died." Later that night, Sirena went
to the police station and picked defendant out of a lineup.
"Wide latitude is granted to the parties in introducing
evidence in aggravation and mitigation at a capital sentencing
hearing. The testimony presented need not satisfy the more
restrictive rules of evidence that govern the guilt-innocence
phase." People v. Tenner, , 380 (1993); 720 ILCS
5/9--1(e) (West 1994). Rather, the only requirement is that the
evidence be relevant and reliable. People v. Fair, ,
89 (1994); Tenner, 157 Ill. 2d at 380. The evaluation of the
evidence's relevance and reliability lies within the sound
discretion of the sentencing judge. Fair, 159 Ill. 2d at 89;
Tenner, 157 Ill. 2d at 380. "Evidentiary rules are waived at this
stage because, in determining the appropriate sentence, the
sentencing authority must possess the fullest information possible
concerning the defendant's life, character, criminal record and the
circumstances of the particular offense." (Emphasis added.) Fair,
159 Ill. 2d at 89-90.
Applying this authority to the case at bar, we find the trial
court did not abuse its discretion in allowing Sirena to testify.
The testimony was relevant to "the circumstances of the particular
offense," providing a vivid aural picture of the victim's terror as
defendant rummaged through the silverware in search of a weapon.
Further, although defendant does not challenge the reliability of
Sirena's testimony, we note that the trial court conducted a
preliminary in-person examination of Sirena to determine her
competence to testify, as was recommended in People v. Crews, , 338 (1967). Further, her statements were fully
corroborated by other evidence presented at the sentencing hearing.
See People v. Gosier, , 150-52 (1991) (no abuse of
discretion in admitting, at the second stage of a capital hearing,
corroborated testimony as to hearsay statements by a 3«-year-old
who was present at a homicide scene).
Defendant further argues that the State called Sirena as an
aggravating witness to appeal to the court's sympathies, that her
appearance on the stand, "primarily as a victim of the crime," was
more prejudicial than probative, and that the State's commentary on
her testimony during closing arguments heightened the prejudicial
effect of her testimony. It is true that the State argued in
closing that Sirena's testimony was "compelling" because:
"[I]t took a lot for her to get up there and recount
this. Because not only was Lisa Ferguson a victim of this
man, [Serina] is a victim, too. Because she has to go
through her life remembering this.
To be subject to such a horrible, horrendous crime
at the age of four and have to live with it for the rest
of your life, your Honor, is outrageous."
However, this court has ruled that certain victim impact evidence
may be admitted during the sentencing phase, reasoning that it is
relevant to a consideration of the appropriate punishment for a
capital defendant for the sentencing authority to have before it
evidence of the specific harm caused by the defendant. People v.
Hobley, , 316 (1994); People v. Howard, , 158 (1991). Therefore, although evidence of any psychological
trauma suffered by Sirena would be more appropriately addressed by
an expert witness rather than by Sirena herself (see People v.
Pavlovskis, 229 Ill. App. 3d 776, 783 (1992)), we decline to find
that use of her testimony as victim impact evidence was so
prejudicial that it rendered the sentencing hearing fundamentally
unfair. See Payne v. Tennessee, , 825, 115 L. Ed. 2d 720, 735, 111 S. Ct. 2597, 2608 (1991).
We next examine defendant's contention that the trial court
erred in considering unsupported and irrelevant factors in
aggravation. Defendant argues that the trial court exaggerated the
"primary evidence in aggravation" by commenting, in imposing
sentence, that Lisa Ferguson was stabbed "numerous times" and that
there were "in excess of 50 sites of trauma" on her body. Defendant
cites, as an additional misstatement of fact, the trial court's
comment that "there is also at least an inference that [defendant]
knew that at least one small child was there." Defendant also
argues that because defendant did not know Sirena Moya was present
at the time of the offense, the court erred in overruling
defendant's relevancy objection when the State asked a defense
witness if he was aware the murder was committed in the presence of
a small child. The State argues that defendant has waived review of
this issue, and we agree that defense counsel's objections at
sentencing are incomplete and the allegation in the post-sentencing
motion is lacking in specificity. See Enoch, 122 Ill. 2d at 186.
However, as we have noted, application of the waiver doctrine is
less rigid where the basis for the objection is the trial court's
conduct. Nevitt, 135 Ill. 2d at 455. Thus, we choose to address the
merits of the issue.
It is clear that reliance on an improper factor in imposing
the death penalty requires resentencing because of the "profound
importance" of the trial court's role in weighing aggravating and
mitigating factors. People v. Hayes, , 154 (1990);
People v. Brownell, , 535 (1980). Our review of the
record reveals, however, that the trial court herein based its
sentence of death on evidence properly before it.
First, the trial court's observation that defendant had
stabbed the victim "numerous times" was supported by the testimony
of the medical examiner. Dr. Nancy Jones stated that the victim had
sustained "sharp injuries," including three stab wounds and two
incised wounds. Indeed, where "multiple stab wounds with
strangulation contributing" was Dr. Jones opinion as to the cause
of death, we find no inaccuracy in the court's comment. Similarly,
the court's recollection of "in excess of 50 sites of trauma" on
the victim's body was not error where it is apparent from the
record that the "sites of trauma" were profuse. Although Dr. Jones'
testimony does not provide their exact number, she stated that, in
addition to the "sharp injuries," the victim had "numerous blunt
trauma injuries *** to the head, the trunk and the extremities."
Dr. Jones further testified: "[I]n my autopsy protocol I list about
29 separate areas of injury. There were more than 29 injuries
because in some areas I described more than one injury." The trial
court also noted defendant's own statement, made after his arrest,
that "he was glad that [the victim] had died because he didn't want
her to live remembering how bad [sic] he had beaten her." Thus, the
exact number of injuries was immaterial where that fact would not
have changed the trial court's valid conclusion, based on the
evidence presented, that this was "an exceptionally brutal case."
Defendant further claims the trial court considered the
unsupported and irrelevant factor that defendant knew four- year-
old Sirena Moya was in the apartment at the time of the murder. In
imposing sentence, the trial court remarked: "[Defendant] broke
into the apartment of a friend to steal a VCR ***. He knew that the
victim was alone. And there is also at least an inference that he
knew that at least one small child was there." It is therefore
clear that the court considered both factual possibilities in
sentencing defendant. We see no error in this finding where,
contrary to defendant's contention, the record provides support for
both conclusions. Testimony at both defendant's trial and
sentencing established that he was a "family friend" of the Moyas.
Thus, it may be inferred that he knew the couple had a small
daughter who was not with them at the bar that evening and was
likely at home. Additionally, Sirena testified that when Lisa
Ferguson opened the apartment door, she saw defendant and then ran
and hid in her bedroom. This testimony raises the inference that
when the door opened, defendant likewise saw Sirena. The record
shows that the trial court properly weighed the evidence presented
in aggravation and mitigation.
Defendant next argues that the trial court erred in finding
there was no competent evidence that self-defense justified
defendant's act of throwing scalding water at men on two separate
occasions while imprisoned. Defendant also contends the manifest
weight of the evidence supported his self-defense claim over the
trial court's conclusion that defendant "just went out of control."
At the sentencing hearing, Robert Green, an officer with the
Illinois Department of Corrections assigned to the "condemned unit"
at Pontiac, testified that on May 14, 1992, he heard an inmate
named Neal yelling and saw him with his clothes wet and blisters
forming on his arms. Hot steam rose from Neal's clothing and water
dripped from the bars of defendant's cell. Green asked Neal what
happened and Neal said he "got burnt." Green then heard defendant
say, "I got the last laugh." When other officers arrived on the
scene, defendant, in anticipation of being disciplined, had his
belongings packed and was ready to move. Defendant handed his
"stinger," a coil used to heat water, to an officer. Following a
hearing on the incident, defendant received six months' segregation
and had his "grade classification" changed. Green testified that as
a standard precaution taken when an inmate is identified as a
possible victim, Neal, who had been a laundryman and free to walk
the gallery uncuffed, lost his job and was placed back in his cell
"like a regular ordinary resident of death row." Green stated that
although the incident was "no accident," no one ever learned what
the problem was between defendant and Neal.
Brian Upchurch, another Department of Corrections officer
assigned to the condemned unit at Pontiac, testified at sentencing
that on November 11, 1992, defendant threw boiling water on him as
he walked past defendant's cell. The water, which Upchurch thought
smelled of urine, hit him on the left side of his face, neck,
shoulder, and back. Defendant told Upchurch, "Now, quit walking
around like a peacock," and stated that Upchurch was not as tough
as he thought he was. Upchurch was treated for burns, but did not
suffer any permanent disability. As defendant was being taken from
his cell to segregation, the resident in the next cell threw
boiling liquid on defendant and the officers escorting him.
Upchurch further testified that just prior to this incident,
a condemned unit inmate named Aaron Patterson had been placed in
segregation as a result of a complaint about his monopolizing the
telephone. Upchurch stated that he did not know why Patterson would
believe that his segregation initiated with defendant and Upchurch,
and denied that defendant ever approached him in an effort to
straighten out any misunderstanding other inmates had about
defendant informing on them to Upchurch. Upchurch testified that as
a result of this scalding incident, defendant's classification was
downgraded, he was placed in segregation for a year, and he was
also prosecuted and convicted for aggravated battery.
Dr. Lawrence Heinrich, a clinical psychologist, testified that
he was asked by defense counsel to evaluate defendant for purposes
of gathering evidence in mitigation. Dr. Heinrich reviewed various
documents, interviewed defendant and others, and administered four
psychological tests. Dr. Heinrich concluded, inter alia, that
defendant could function and adjust in the structure of an
incarcerated setting. Asked about the scalding incidents, Dr.
Heinrich stated that they were examples of "the way he was
surviving there." Dr. Heinrich distinguished inmates like
defendant, who are fearful and "counterphobic" and do things to
protect themselves, and inmates who are "overtly predatory and
aggressive." Dr. Heinrich stated that from defendant's description
of the scalding incidents, "he was attempting to protect himself
and [gain] some status with people who [sic] he felt could protect
him, and also to retaliate against a guard whom *** he perceived or
they perceived to be excessively aggressive with other inmates."
Dr. George Savarese, a licensed clinical social worker,
testified in mitigation that he compiled a psychosocial
developmental history of defendant. Dr. Savarese reviewed various
records and documents, and interviewed defendant and other sources.
Dr. Savarese concluded, inter alia, that defendant could adapt to
incarceration. Asked about the two scalding incidents, Dr. Savarese
said it was his understanding that Neal and defendant had quarreled
and defendant believed he might be in danger. Defendant threw hot
water on Neal in order to protect himself and so that "the system
would separate them and [defendant] wouldn't have to be exposed to
[Neal] anymore." In the other instance, it was Dr. Savarese's
understanding that defendant had been labeled as a "snitch" after
another inmate was disciplined for abusing telephone privileges.
Defendant told Dr. Savarese that he tried to discuss the situation
with the guard and the guard "just laughed him off and didn't
really listen." Defendant felt that if he could get back at the
guard it would show that he was not a "snitch." Dr. Savarese
testified that the two incidents were "an aggressive way of
protecting one's self" which showed defendant's poor judgment and
heightened fearfulness, rather than any malicious or predatory
nature.
As previously noted, in imposing sentence, the trial court
stated that on the date of the murder defendant "just went out of
control." The court continued:
"You did not just do it on March 17, you did it
again. You did it again on at least two occasions in our
mind. And we don't by [sic] this, that he was a snitch
and he was doing this to show--I don't think that was the
case. And I don't think there is any compitent [sic]
evidence of that."
Defendant contends that the court erred in concluding there was no
competent evidence that the scalding incidents were acts of self-
defense, where defendant's account of the incidents to Drs.
Savarese and Heinrich was credible and uncontradicted.
Defendant cites People v. Jordan, , 163 (1954),
for the general proposition that the finder of fact cannot
disregard a defendant's version of what occurred unless it is
improbable, uncorroborated or contradicted in its material parts.
According to defendant, the court erred in not believing his
explanation and, instead, applying its own characterization to what
occurred. However, the trial court is permitted to draw reasonable
inferences from the evidence introduced during trial. People v.
Ward, , 339 (1992). Here, where the officers
testified that after throwing scalding water on his victims
defendant said, "I got the last laugh," and "quit walking around
like a peacock," a reasonable inference may be made that
defendant's actions were motivated by maliciousness and
uncontrolled anger, rather than self-defense. Thus, the trial
court's finding that defendant "just went out of control" was not
against the manifest weight of the evidence. See Christiansen, 116 Ill. 2d at 122 (supreme court will not lightly overturn trial
court's findings during aggravation and mitigation phase of death
penalty hearing).
Further, although defendant claims that the trial court was
not free to disregard the doctors' testimony (see In re Ashley K.,
212 Ill. App. 3d 849, 890 (1991) (the circuit court cannot
disregard expert medical testimony that is not countervailed by
other competent medical testimony or medical evidence)), the
credibility and weight to be given this testimony was for the trial
court as trier of fact (People v. Oaks, 169 Ill. 2d 409, 467
(1996)). Where both Dr. Heinrich and Dr. Savarese admitted that
their interpretations of the scalding incidents came from
defendant, and we have concluded that the trial court could
reasonably reject his account based on the evidence and inferences
therefrom, we cannot say that the trial court abused its discretion
in finding there was no competent or credible evidence to support
defendant's self-defense claim. See Oaks, 169 Ill. 2d at 468.
Defendant next contends that he was denied a fair and reliable
sentencing hearing because the trial court failed to consider in
mitigation the testimony of Josephine Palomino, defendant's former
girlfriend and the mother of his son. At sentencing, defendant
called three witnesses in mitigation and stipulated to the
testimony of four mitigation witnesses who had testified at the
original sentencing hearing. In presenting its reasons for imposing
the death penalty, the trial court stated that it had considered
"the testimony of the two individuals called in mitigation" and
included in its discussion the mitigation testimony of the two
doctors. Defendant argues that the court forgot or refused to
consider the mitigating testimony of the third witness, Palomino.
Although the State contends that defendant has waived review of
this issue by failing to make an objection at sentencing, the
record shows defense counsel attempted to preserve the issue
through its inclusion in the post-sentencing motion, and, once
again, application of the waiver rule is less rigid where the basis
for the objection is the trial judge's conduct. Nevitt, 135 Ill. 2d
at 455.
It is clear that while the sentencer in a capital case may
determine the weight to be given relevant mitigating evidence, it
may not give such evidence no weight by excluding it from
consideration. Eddings v. Oklahoma, , 114-15, 71 L. Ed. 2d 1, 10-11, 102 S. Ct. 869, 877 (1982); People v. Munson, 171 Ill. 2d 158, 193 (1996). Here, however, despite defendant's contentions,
we are unconvinced that the trial court failed to consider
Palomino's mitigating testimony simply because he failed to
specifically mention it in imposing sentence. This court has held
that a sentencer in a capital proceeding is not required to make
specific findings as to the aggravating and mitigating factors it
relied upon in reaching its verdict. People v. Gaines, , 383-84 (1981); People v. Brownell, , 541-44
(1980). This court has further stated:
"Although the requirement of an explanation or
designation by the sentencing authority of certain
reasons necessary for imposition of the death penalty has
been noted with approval in decisions upholding the
validity of death penalty statutes [citations], this
court consistently has held that a statement of findings
is not constitutionally required in the second part of a
sentencing hearing [citations]. Meaningful review can,
and does, occur in its absence ***." People v. King, , 550-51 (1986).
In imposing sentence herein, the trial court declared several
times that it had reviewed its notes, which would encompass
Palomino's "live" testimony, and the transcripts submitted from the
prior proceeding, which would include Palomino's previous testimony
entered by stipulation. We agree with the State that the court's
failure to discuss Palomino's testimony was most likely due to the
fact that the court had considered her testimony and given it
little weight. See Jackson v. Roth, 24 F.3d 1002, 1005 (7th Cir.
1994) (the "predictable" testimony of relatives is usually
favorable and receives little weight at sentencing hearings as a
result). Thus, we find no error in the court's omission.
Defendant next contends that the trial court improperly failed
to consider nonstatutory mitigating factors and limited the two
statutory mitigating factors it did consider. Careful examination
of the record shows, however, that the trial court weighed all of
the mitigation evidence defendant presented and found it
insufficient to preclude imposition of the death penalty. Section
9--1(c) of the Criminal Code of 1961 provides, in pertinent part:
"The court shall consider *** any mitigating factors
which are relevant to the imposition of the death
penalty. *** Mitigating factors may include but need not
be limited to the following:
(1) the defendant has no significant history
of prior criminal activity;
(2) the murder was committed while the
defendant was under the influence of extreme mental
or emotional disturbance, although not such as to
constitute a defense to prosecution." 720 ILCS 5/9-
-1(c) (West 1994).
In pronouncing sentence herein, the trial court made the
following comments with regard to evidence in mitigation:
"We consider the matters which were alluded to in
opening argument, are alluded to once again in closing
and were testified to during those proceedings.
Number 1, that the defendant prior to this incident
had--there was no evidence of a prior criminal activity.
*** [H]owever, we must temper that a little bit because
there was at least testimony *** regarding some incidents
of prior criminal activity at his younger years.
We have also *** received evidence and testimony
regarding an additional factor *** not testified to at
the original proceeding, that being the testimony of the
doctors regarding what they view and what they interpret
as [defendant's] condition of a boarderline [sic]
personalty disorder and a schizotypo *** disorder.
* * *
We do not feel there is *** any evidence of any
mental disease. *** Maybe I ought to correct that, and
say organic mental disease. *** [W]e just don't think
there is any evidence of any mental disease or disorder
caused by anything of that nature.
* * *
There is as we referred to mitigation offered. The
question is, is it sufficient. Everyone has stresses.
[Defendant], you lost control. You lost control not
because in our mind of any mental condition, not because
of any disease. You just went out of control."
First, defendant contends that the court's comments indicate
it considered only the two statutory factors in mitigation alluded
to in defense counsel's opening statement, but not the nonstatutory
factors that were mentioned, such as the value of defendant's life
and his troubled background. We believe it is clear from a reading
of the court's comments as a whole that, in the prefatory statement
quoted above, the court meant it was considering all the mitigating
"matters which were alluded to in opening argument *** and were
testified to during those proceedings," and not just the statutory
mitigating factors which it chose to specifically mention. See
Gaines, 88 Ill. 2d at 383 (capital sentencer is not required to
make specific findings of what aggravating and mitigating factors
it relied upon in reaching its verdict).
Second, defendant argues the trial court improperly limited
the statutory mitigating factor set forth in section 9--1(c)(1) to
"no evidence of a prior criminal activity," and indicated it was
not present in light of testimony "of prior criminal activity at
his younger years." Defendant has misinterpreted the court's
remarks, which, fairly read, properly addressed whether defendant
had "no significant history of prior criminal activity" under
section 9--1(c)(1). 720 ILCS 5/9--1(c)(1) (West 1994). Defendant
presented evidence at sentencing that he committed shoplifting and
burglary when he was 12 to 14 years of age. This court has held
that the sentencer may consider in aggravation evidence of a
defendant's prior misconduct, including juvenile delinquency,
"although the misconduct may not have resulted in prosecution or
conviction." People v. Lego, , 346-47 (1987); see
also In re W.C., , 341 (1995). Therefore, here, we
find no error where the trial court first found the presence of the
statutory mitigating factor, and then "tempered" that finding by
noting evidence of defendant's juvenile misconduct.
Third, defendant argues the trial court improperly limited the
statutory mitigating factor set forth in section 9--1(c)(2) to
insanity arising from an organic mental disease. Dr. Savarese
testified in mitigation that defendant had a borderline personality
disorder with schizotypal features, possibly caused by either a
mental illness or brain damage. Dr. Savarese further testified
that, in his professional opinion, defendant was suffering an
extreme mental and emotional disturbance, possibly a "transient
psychotic episode," at the time he murdered Lisa Ferguson. Dr.
Heinrich testified in mitigation that defendant suffered from long-
standing emotional and personality deficiencies, the most prominent
of which were borderline personality and schizotypal personality
disorders. Dr. Heinrich concluded that these deficiencies,
exacerbated by defendant's drug and alcohol abuse, severely
impaired his judgment at the time of the murder.
Defendant argues that the court's comments regarding the
absence of any "organic mental disease" in defendant are irrelevant
to whether the statutory mitigating factor of "extreme mental or
emotional disturbance" existed. This is true. However, it is
defendant who presented the testimony concerning the possibility of
organic disorders or brain damage. The trial court was simply
stating that it did not believe there was "any evidence" to support
a finding "of any [organic] mental disease or disorder caused by
anything of that nature." The court specifically addressed the
statutory mitigating factor when it later stated: "Everyone has
stresses. [Defendant], you lost control. You lost control not
because in our mind of any mental condition, not because of any
disease. You just went out of control." It is clear that the court
differentiated between the two separate mental condition arguments
made by defendant. We therefore find no impropriety in the court's
rejection of the section 9--1(c)(2) mitigating factor of "extreme
mental or emotional disturbance." 720 ILCS 5/9--1(c)(2) (West
1994); see Oaks, 169 Ill. 2d at 467 (although expert testimony as
to presence of statutory mitigating factor was unrebutted, the
credibility and weight to be given the testimony were for the trial
court as trier of fact).
We next address defendant's contention that the trial court
applied an unconstitutionally vague standard in sentencing
defendant to death. In concluding its remarks, the trial court
stated: "Considering the facts of the case, your conduct subsequent
to the arrest and also your conduct after conviction, we feel that
the sentence of death is appropriate; and we sentence you thereto."
Defendant argues that the factors cited by the trial court are
nonspecific, and equate and commingle the offense for which
defendant was being sentenced with his post-offense conduct.
However, a defendant's post-offense conduct is relevant at the
aggravation-mitigation stage of a death penalty hearing (People v.
Hope, , 38 (1995)), and nothing in the record
indicates that the court further used this factor as an
unconstitutional basis for imposing the death penalty herein.
Defendant also argues that the trial court's use of the word
"appropriate" in imposing the death penalty indicates that the
court added a "second `appropriateness' tier to the sentencing
process," a practice that this court has rejected. People v.
Albanese, , 536-37 (1984). However, it is clear from
the record that the trial court acknowledged the existence of the
two statutorily mandated phases of capital sentencing in Illinois,
and then applied both phases to the facts of defendant's case,
stating:
"We began these proceedings with the eligibility
phase. And based upon the convictions and also the fact
that at the time [defendant] had attained the age of 21,
he was eligible for the death penalty.
As we stated, we reviewed the transcripts submitted
to us. We have reviewed our notes. The question now
before us is whether there are *** mitigating factors
sufficient to preclude the imposition of the death
penalty."
The trial court made no mention of an additional tier, or of
a "final test." After considering the evidence in aggravation and
mitigation, the court imposed the death penalty, a sentence it
characterized as "appropriate." Rather than applying an
unconstitutionally vague standard, we interpret the court's use of
"appropriate" to mean the death penalty was "proper," "correct,"
and "suitable." Indeed, this court has found the death penalty to
be "appropriate" numerous times. See People v. Bounds, , 71 (1995); People v. Taylor, , 432 (1995); People
v. Christiansen, , 129 (1987).
Defendant next asserts that his death sentence is "excessive,
disproportionate, and inappropriate" given his character and
history and the circumstances of the offense. We disagree. First,
with regard to defendant's claim that his sentence is
"disproportionate," we note that "[c]omparative proportionality
review in death penalty cases is not required by the United States
Constitution (Pulley v. Harris (1984), , 79 L. Ed. 2d 29, 104 S. Ct. 871) and is not a feature of the capital sentencing
process in Illinois (People v. Jimerson (1989), ,
54)." People v. Page, , 270 (1993). We therefore
decline defendant's invitation to compare the sentence in the case
before us with penalties imposed in similar cases. See People v.
Perez, , 92 (1985).
Next, we agree with defendant that analysis of the propriety
of the death penalty requires an individualized consideration of
the circumstances of the offense and of the character and
background of the offender. Eddings v. Oklahoma, , 110-
12, 71 L. Ed. 2d 1, 8-9, 102 S. Ct. 869, 874-75 (1982); People v.
Shatner, 174 Ill. 2d 133, 161 (1996). In deciding whether the death
penalty is excessive in a particular case, this court examines
whether the circumstances of the crime and the character of the
defendant are such that the deterrent and retributive functions of
the "ultimate sanction" will be served by its imposition. Shatner,
174 Ill. 2d at 161.
Defendant was convicted of murder, aggravated criminal sexual
assault and home invasion. The circumstances of the offense
presented herein are that defendant went to the apartment where
Lisa Ferguson was babysitting with the intent to steal a
videocassette recorder. Defendant was denied entrance to the
apartment, but returned later with the express purpose of murdering
Ferguson. Defendant forced his way into the apartment and sexually
assaulted, stabbed and strangled Ferguson. Defendant inflicted over
30 wounds to Ferguson's body, including penetrating her anus with
his penis or the curling iron found beneath her. Additionally, the
court heard character evidence that defendant had a history of
theft, shoplifting and burglary dating back to when he was a
juvenile, although he was never convicted of any of these offenses.
Defendant also had an extensive history of drug abuse, but had
repeatedly refused drug counselling when his girlfriend urged him
to seek help. Since being incarcerated, defendant had scalded
another inmate and a correctional officer with boiling water, and
a shank was found in his cell on two occasions.
In contrast, the evidence defendant presented in mitigation
consisted mainly of testimony that he had had a troubled childhood,
that he had a good relationship with his son, born one month after
the murder, and that at the time of the offense his judgment was
severely impaired because he was under the stress of impending
marriage and fatherhood and was suffering from emotional and
personality deficiencies which were exacerbated by his drug and
alcohol abuse. We find that the trial court's determination that
the aggravation evidence outweighed the mitigation evidence is
supported by the record. We therefore conclude that imposition of
the death penalty was not excessive or inappropriate under the
particular facts and circumstances of this case.
Finally, defendant contends that the Illinois death penalty
statute is unconstitutional because it does not sufficiently
minimize the risk of arbitrarily or capriciously imposed death
sentences. Defendant concedes that this court has reviewed many of
the issues he raises, and has resolved them adversely to his
position. We continue to adhere to those holdings. See People v.
Cole, 172 Ill. 2d 85, 114-15 (1996) (rejecting the arguments the
statute is invalid for the discretion it affords the prosecutor in
deciding to request the death penalty in a particular case, for
failing to require the prosecution to provide the defense with
pretrial notice of the aggravating evidence to be used at capital
sentencing, or for not requiring the sentencer to make a written
statement of its findings); People v. Hooper, 172 Ill. 2d 64, 84
(1996) (rejecting the argument the statute is unconstitutional
because it does not require the sentencer to make an ultimate
determination that death is the appropriate punishment); People v.
Taylor, , 439 (1995) (rejecting the argument the
statute unconstitutionally allows the sentencer to consider "any"
aggravating factor); People v. Strickland, , 538-39
(1992) (rejecting the argument defendant has the burden of proof).
Defendant urges us to give "renewed attention" to the question of
whether the statute provides adequate judicial review. We likewise
decline to revisit this argument, having repeatedly held that the
statute provides sufficient information-gathering procedures to
insure adequate appellate review of death sentences. People v.
Bounds, , 72 (1995); People v. Albanese, , 541-42 (1984).
Defendant also raises a question he contends this court has
not considered, namely, whether the use of the plural in the
statutory phrase "no mitigating factors sufficient to preclude the
imposition of the death sentence" prevents the sentencer from
finding a single mitigating factor is sufficient to preclude death.
(Emphasis added.) 720 ILCS 5/9--1(h) (West 1994). However, it is
well established that, in Illinois, the sentencer's belief "that
any one mitigating factor sufficient to preclude the death penalty
exists is sufficient to do so." People v. Ramey, , 77
(1992); see also People v. Brown, 172 Ill. 2d 1, 58-59 (1996). "As
such, Illinois' death penalty procedure clearly provides for
meaningful consideration of any and all mitigating factors." Ramey,
152 Ill. 2d at 77. Further, where, as here, the trial court is the
sentencer, it is presumed to know the law and apply it properly,
and its decision regarding sentencing will be presumed to be proper
absent an affirmative showing of error. See People v. Askew, 273
Ill. App. 3d 798, 805 (1995). Accordingly, defendant has raised no
arguments to persuade us to reconsider our conclusion that the
death penalty statute insures adequate safeguards to prevent the
arbitrary or capricious imposition of the penalty. See People v.
Shatner, 174 Ill. 2d 133, 162-63 (1996), citing People v. Kubat, (1983).
For the reasons stated, the judgment of the circuit court of
Cook County is affirmed. The clerk of this court is directed to
enter an order setting Tuesday, September 9, 1997, as the date on
which the sentence of death entered in the circuit court of Cook
County is to 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, to the warden of Stateville
Correctional Center, and to the warden of the institution where
defendant is confined.

Affirmed.

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