People v. Armstrong

Annotate this Case

People v. Armstrong, No. 78197 (3/19/98)

Docket No. 78197--Agenda 1--November 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DONALD
ARMSTRONG, Appellant.
Opinion filed March 19, 1998.

JUSTICE HEIPLE delivered the opinion of the court:
A jury found the defendant, Donald Armstrong, guilty of five counts of first
degree murder, and one count each of armed robbery, residential burglary and
burglary, in connection with the death of Marion Smigiel. The same jury found
the defendant eligible for the death penalty and that no mitigating circumstances
existed sufficient to preclude imposition of that sentence. The circuit court entered
judgment on the jury's finding and sentenced the defendant to death.[fn1] The
defendant's sentence has been stayed pending direct review by this court. Ill.
Const. 1970, art. VI, sec. 4(b); 134 Ill. 2d Rs. 603, 609(a). In this appeal, the
defendant raises 25 issues challenging his conviction and death sentence. We
affirm in all respects.

I
At the time of her death, 86-year-old Marion Smigiel stood 5 feet 4 inches tall
and weighed 123 pounds. She lived in an apartment building which she owned at
4301 West Haddon in Chicago. Stooped over and arthritic, Smigiel walked with
a metal cane, but nonetheless managed to collect her tenants' trash, which she
would carry to the garage each evening. On the morning of February 4, 1992,
police found Smigiel's body lying in a pool of blood on the floor of her garage.
Her skull had been smashed into several pieces leaving a gaping hole in her head
measuring 5 inches by 2« inches. Lying next to Smigiel's body was her metal
cane--broken in two--along with several bags of trash.
Police found the door to Smigiel's apartment ajar, although there were no
signs of forced entry. The bedroom had been ransacked: the mattress was upended,
someone had gone through the dresser drawers, and a television set was missing.
In the living room, a desk had been rifled through, although a social security
check and $1,580 in cash were still in a desk drawer.
After speaking with tenants in the building, police began looking for Richard
Makowski, another building tenant. Makowski was known to have had almost
daily arguments with the victim and was suspected of stealing money from her in
the past. Police found Makowski hiding on a third-floor landing in the building
and took him to the police station for questioning. Makowski was released after
the initial questioning, but was later arrested and charged with the murder of
Marion Smigiel.[fn2]
The crime went unsolved for several months. No identifiable fingerprints, other
than the victim's, were found at the crime scene or at the apartment. Five months
after the death of Marion Smigiel, police began looking for the defendant, Donald
Armstrong, in connection with an unrelated incident. The defendant reportedly had
gotten into some sort of an altercation with his cousin Lamark Odell and Lamark's
father, Noba Odell. The Odells told police that they had some information
regarding a homicide. The defendant was arrested in connection with the
altercation with the Odells.
Lamark Odell told police that six months earlier, the defendant approached
him on the street. The defendant asked him for money and explained that he had
to leave town because he had killed an old lady in a garage near Division and
Kostner after she refused to give him money. The defendant told Odell that he had
gained $50 from the incident.
After speaking to the Odells, the police began to investigate the defendant's
connection to the murder of Marion Smigiel. The defendant's brother, Ronald
Armstrong, told police that he and the defendant knew Richard Makowski, and
that the three of them had been drinking one evening in January in Makowski's
apartment. Makowski told them how he had stolen money from his landlady, and
that she always had money around the third of each month after collecting her
tenants' rent. Ronald Armstrong told police that Makowski and the defendant then
discussed robbing the old woman and decided to do so on February 3. Ronald
Armstrong said that on February 3 the defendant came home with a television set,
which he later sold for $50 to his older brother, Anthony Patrick. The defendant
told Ronald Armstrong that he took the television set from the home of the
woman he had killed. The defendant then, according to Ronald, left town.
The police then spoke with the defendant's brother Anthony Patrick. Patrick
explained that he had bought a television set from the defendant for $50 on the
night of February 3. The defendant initially told Patrick that he had taken the
television from someone who owed him drug money. Later the defendant told
Patrick that he had gotten the television set from a woman that he had killed. The
defendant told Patrick that he had beaten the woman on the head with a cane
because he thought she had some money. She was screaming as he hit her. Patrick
told police how he had removed the serial number from the back of the television,
and he gave them the television. At the station, the police located the serial
number on the inside chassis of the television, which matched the serial number
on a television carton found in Marion Smigiel's garage.
The police interviewed the defendant after advising him of his rights. The
defendant stated that he understood his rights and agreed to speak to police about
Smigiel's death. The police subsequently placed the defendant under arrest for the
death of Marion Smigiel. After again being advised of his rights, including the
right to remain silent and the right to counsel, the defendant chose to make a
court-reported statement. The defendant stated that he and Makowski spoke in
early January about robbing Makowski's landlady. Makowski explained that the
lady was old and collected rents around the third of every month. At the end of
January, the defendant and Makowski spoke again about robbing the defendant.
Together, Makowski and the defendant concocted a scheme which called for the
defendant to knock on the landlady's door and to pretend to be interested in
renting an apartment. The defendant was then to push his way into her apartment
and to let Makowski in the back door. The defendant and Makowski agreed to
execute their plan on February 3.
The defendant stated that late in the afternoon on February 3, the defendant
went to Makowski's building. He noticed Smigiel in the garage putting some
garbage away; Makowski was standing on the back porch. The defendant entered
the garage, shut the door and told Smigiel that he "was a dope fiend and wanted
her money." Smigiel began to scream. Makowski yelled from the back porch,
"Make that bitch be quiet." The defendant took Smigiel's cane from her and struck
her with it. Smigiel continued to scream. Makowski yelled again, "Make that bitch
be quiet before someone hear [sic] her." The defendant then hit Smigiel in the
head with the cane several more times. The defendant could not recall how many
times he struck Smigiel before the cane broke on the last blow and Smigiel fell
to the ground.
The defendant then explained that he and Makowski entered Smigiel's
apartment and searched for money. Not finding any, the defendant and Makowski
took Smigiel's television. The defendant sold the television to one of his brothers
for $50 and split the proceeds with Makowski.
After the court reporter transcribed the defendant's statement, he was given the
opportunity to read it. He read the first page out loud and made changes to it. The
defendant initialed the changes and signed the statement along with a police
officer and two assistant State's Attorneys who were present. The defendant was
subsequently charged by indictment with five counts of murder and one count
each of armed robbery, residential burglary and burglary.
Prior to trial the defendant moved to quash his arrest for lack of probable
cause and to suppress certain evidence, including his statement to police. The trial
court denied the motions, finding that there was probable cause for the defendant's
arrest and that the defendant's court-reported statement was freely and voluntarily
given.
A jury subsequently found the defendant guilty on all charges and eligible for
the death penalty. At the second stage of the sentencing hearing, the State
introduced evidence of the defendant's criminal history, which included prior
convictions for battery, aggravated battery, attempted robbery, robbery, armed
robbery, and burglary, and an extensive disciplinary record while an inmate with
the Illinois Department of Corrections. In mitigation, the defendant elicited
testimony of his mother, among others, who stated that she and the defendant's
father were alcoholics; that her son was a slow learner; and that she was a single
mother who raised her 10 children while on public aid. According to the testimony
of a social worker, the defendant's parents had a history of mental illness and
alcoholism; the defendant had an extensive history of drug and alcohol abuse; and
the defendant grew up in an unstable and sometimes violent home.
The jury unanimously found that there were no mitigating circumstances
sufficient to preclude the imposition of the death penalty, whereupon the trial
court sentenced the defendant to death. This direct appeal followed.

II
The defendant raises 25 issues on appeal, challenging both his conviction and
death sentence. We shall address each in turn.
The defendant first contends that (1) the trial court abused its discretion when
it excluded a prospective juror for cause because the venire member indicated she
was opposed to capital punishment. While a prospective juror cannot be removed
for cause simply because he or she expresses a general objection to the death
penalty (Witherspoon v. Illinois, , 522, 20 L. Ed. 2d 776, 784-85, 88 S. Ct. 1770, 1777 (1968)), removal is proper where a juror's views would prevent
or substantially impair the performance of his duties as a juror (People v. Cole,
172 Ill. 2d 85, 99 (1996)). Whether such is the case is a matter within the trial
court's discretion. People v. Brown, 172 Ill. 2d 1, 33 (1996). During voir dire, the
juror in question stated that her feelings about the death penalty would in fact
affect her ability to find the defendant guilty:
"Court: *** [W]ould you consider the death penalty, you said you
would if you thought it was appropriate? Would you sign--
Juror: That's hard for me.
Court: Well--
Juror: Because I'm a mother, I've had kids but to pass down a
judgment like that that's like playing God and--
Court: You said you believe in the death penalty, I mean, you have no
feelings against the death penalty?
Juror: I'm sorry.
Court: That's all right. If appropriate, if the law and the facts call for
it--we'll qualify it. If you found him guilty and if you decided he should
receive the death penalty would you sign the verdict form?
Juror: That makes me want to turn and walk away. I'm sorry. I don't
know. I don't know how to answer that.
Court: Are you telling me that you couldn't sign a death penalty in any
case?
Juror: I don't know. I really don't know. I haven't played God on
television. Let somebody else."
The standard for removal in this instance is whether a prospective juror's views
on capital punishment would prevent or substantially impair the performance his
or her duties as a juror. Cole, 172 Ill. 2d at 99; People v. Williams, ,
54 (1994). It is clear that the juror in question expressed a profound reluctance to
vote for a death sentence and she gave tentative, equivocal and even conflicting
responses when asked her views on capital punishment. Accordingly, we conclude
that the trial court did not abuse its discretion in excusing the juror.
Next the defendant contends that (2) the trial court abused its discretion in
denying the defendant's motion for a continuance on the grounds of potentially
prejudicial pretrial publicity. Two days before jury selection began, a Chicago
newspaper reported that an 11-year-old boy had killed an elderly woman by
beating her with a cane and then cutting her throat. In his motion, the defendant
asserted that the similar nature of the crime described in the article and the
charges against the defendant would encourage the jury to convict him in an
attempt to halt a perceived "epidemic" of violence against elderly women. The
granting of a continuance is within the trial court's discretion (People v. Williams,
173 Ill. 2d 48, 92 (1996)), and not all pretrial publicity necessarily leads to an
unfair trial (Nebraska Press Ass'n v. Stuart, , 554, 49 L. Ed. 2d 683,
695, 96 S. Ct. 2791, 2800 (1976); People v. Taylor, , 386 (1984)).
The issue is whether the jury has the ability to lay aside its impressions and reach
a verdict based on the evidence presented at trial. People v. Coleman, , 547 (1995). It strains credulity to assume that the jury here was prejudiced
against the defendant by reports of an unrelated crime. Chicago is a big city; its
newspapers regularly report on a variety of crimes. Thus, the trial court did not
abuse its discretion in denying the defendant's motion.
Now the defendant argues for the first time that the trial court should have
inquired during voir dire whether any of the jurors had read or heard about the
similar crime. During voir dire, however, the defendant never requested that the
trial court make such an inquiry, nor did he object to the trial court's failure to
make such an inquiry. For an issue to be preserved on appeal, a contemporaneous
objection must be made at trial and in a subsequent post-trial motion. People v.
Enoch, , 186 (1988). In failing to do so here, the defendant has
waived this issue.
The defendant argues (3) that the trial court abused its discretion when it
overruled the defendant's objection to the State's rebuttal closing argument that
the defendant treated his victim like a baby seal, because this argument inflamed
the passions of the jury. Prosecutors, however, are afforded wide latitude in
closing argument, and even improper remarks do not merit reversal unless they
result in substantial prejudice to the defendant. People v. Kitchen, ,
38 (1994). Nevertheless, prosecutors may not engage in inflammatory arguments
designed solely to arouse the passions of the jury. People v. Johnson, , 139 (1987). A trial court's determination regarding the propriety of closing
arguments will not be disturbed absent an abuse of discretion. People v. Byron,
, 295 (1995). In its closing argument, the defense asserted that the
defendant did not have an intent to kill. The State responded in rebuttal:
"Prosecution: He didn't have to kill her. He chose to kill her, though.
When he was striking her with that cane, one can only imagine how
loud her screams could have been for anybody to hear her. Because,
Folks, I would submit to you that she's on that concrete floor long before
that--long before that last blow was struck. He was treating her like she
was a baby seal and this guy was competing for poacher of the year.
Defense: Objection, Judge.
Court: Overruled.
Prosecution: Intent to kill? You better believe it. Every time he struck
that woman with that cane, his intent was quite clear. At the very least
what he knew was, those acts he knew that he was killing her at the very
least created a strong probability of death or great bodily harm.
To determine intent you look to his actions. And you'll be able to
answer that question."
Closing arguments must be viewed in their entirety, and remarks must be viewed
in context. Kitchen, 159 Ill. 2d at 38. From the context, it is clear that the
prosecution's remarks were not improper; rather, they were designed to rebut the
defense claim that the defendant lacked an intent to kill. Prosecutors may respond
to comments by the defense that clearly invite a response. Kitchen, 159 Ill. 2d at
39. The language and imagery used by the prosecution to describe the defendant's
conduct was not a personal attack on the defendant, and was scarcely more
prejudicial than a clinical rendition of the cold facts. Therefore, the prosecution's
remarks did not deny the defendant a fair trial and the trial court did not abuse its
discretion in overruling the defendant's objection.
The defendant complains that (4) the trial court erred in denying the
defendant's request that the jury be instructed that the testimony of narcotics
addicts should be subject to close scrutiny and that "the law recognizes that
narcotics addicts become habitual liars." The defense cross-examined prosecution
witness Ronald Armstrong on his addiction to drugs and alcohol. While parties
must be allowed to cross-examine witnesses on the issue of drug use (People v.
Strother, , 99 (1972)), it is not required that a trial court instruct the
jury on the unreliability of testimony by narcotics addicts (People v. Adams, , 123 (1985)). It is the function of the jury, not the trial court, to
determine the credibility of witnesses. While the defense was free to argue the
issue of Ronald Armstrong's credibility in light of his drug addiction, it was not
entitled to a jury instruction on the issue.
The defendant contends that (5) the trial court abused its discretion when it
allowed morgue and crime scene photographs to go to the jury during its
deliberations. Specifically, the defendant argues that whatever probative value the
photographs had was outweighed by their potentially prejudicial effect. The
responsibility of weighing the probative value and potentially prejudicial effect of
photographic evidence rests within the discretion of the trial court. People v.
Brown, 172 Ill. 2d 1, 40-41 (1996). Even gruesome or disgusting photographs may
be properly admitted into evidence if they are relevant to establish any fact at
issue in the case. People v. Lucas, , 439 (1989). Here the
photographs showed, among other things, the shattered pieces of the victim's
skull. These photographs demonstrated the extent and severity of the injuries
suffered by the victim--a valid purpose for admitting such evidence. See Brown,
172 Ill. 2d at 41; Kitchen, 159 Ill. 2d at 35. Furthermore, these photographs
countered the defense argument that the defendant did not have an intent to kill
by depicting the manner in which Smigiel had been beaten. Accordingly, these
photographs were highly probative toward establishing intent, and the trial court
did not abuse its discretion in permitting them to go to the jury. People v.
Williams, , 64 (1995).
The defendant argues that (6) there was insufficient evidence to convict him
of armed robbery because (a) there was no property taken from the person or
presence of the deceased and (b) the jury may have relied on this improper
conviction in finding him eligible for the death penalty. Armed robbery is the
taking of property from the person or presence of another by use of force or by
threatening the imminent use of force, while armed with a dangerous weapon. 720
ILCS 5/18--2, 18--1 (West 1996). The property taken does not have to be within
the victim's immediate control as long as there is some concurrence between the
defendant's threat of force and the taking of the victim's property. People v.
Blake, , 320 (1991); People v. Lewis, , 339 (1995).
The defendant's argument here is misplaced. The defendant took the victim's cane
from her by force and beat her to death with it; then he proceeded to her
apartment and took her television set. On these facts, there is a clear concurrence
between the defendant's use of force and his taking of Smigiel's television set;
and any rational trier-of-fact could have found the essential elements of armed
robbery beyond a reasonable doubt. See Jackson v. Virginia, , 319,
61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). Accordingly, there was
sufficient evidence to convict the defendant of armed robbery and the jury could
properly consider this conviction during the death eligibility phase of the trial.
The defendant complains that (7) the trial court abused its discretion in not
allowing the defense to argue in the eligibility phase whether the murder occurred
in the course of an armed robbery. During the eligibility phase, the defense argued
to the jury:
"You also have to consider in considering whether there was a felony
murder sequence of events here. All the evidence indicates that first there
was this beating and the killing of Marion Smigiel. Then there was the
taking of property."
The trial court subsequently sustained the prosecution's objection to the above-
quoted argument and directed the jury to disregard it. Was this an abuse of
discretion? No. While an attorney is afforded wide latitude in making arguments,
he may not misstate the law. People v. Williams, , 49 (1994); People
v. Buckley, 282 Ill. App. 3d 81, 89 (1996). The "sequence of events" here, i.e., the
fact that the armed robbery may not have been completed until after the death of
the victim, is of no legal significance. See People v. Flores, , 97
(1989) (holding that it was immaterial that the armed robbery did not commence
prior to the fatal gunshots). The defense was permitted and did argue to the jury
that the murder did not occur in the course of a felony. The defense argument on
the sequence of events, however, constituted a misstatement of law, and thus the
trial court did not abuse its discretion in sustaining the prosecution's objection.
The defendant argues that (8) the trial court erred in the eligibility phase when
it instructed the jury on the requisite elements of murder during the course of a
felony and failed to tender the proper verdict forms. The tendered verdict form
was not a special verdict form, but instead was the standard Illinois Pattern Jury
Instructions (IPI) general verdict form which is appropriate where only one
statutory aggravating factor is at issue. See People v. Mack, , 538
(1995). The verdict form found the defendant "eligible for a death sentence" and
that "the statutory aggravating factor exists." The wrinkle here has to do with the
jury instructions. At the eligibility phase of the death penalty hearing, the trial
court instructed the jury:
"Before the Defendant may be found eligible for a death sentence
under the law, the State must prove the following propositions:
First: That the Defendant was 18 years old or older at the time of the
commission of the murder of which he was found guilty at the trial of the
case, and
Second: That the following statutory aggravating factors exist:
The murdered person was killed in the course of another felony if the
murdered person was actually killed by the Defendant; and the other
felony was one or more of the following: armed robbery, residential
burglary or burglary."
The defendant contends that the trial court improperly instructed the jury because
it neglected to instruct the jury that the State must prove that the defendant "acted
with the intent to kill the murdered individual or with the knowledge that his acts
created a strong probability of death or great bodily harm to the murdered
individual." 720 ILCS 5/9--1(b)(6)(b) (West 1996). At sentencing, the State sought
to have the defendant declared eligible for the death penalty based on the felony
murder provision contained in section 9--1(b)(6) of the Criminal Code of 1961,
which provides:
"(b) Aggravating Factors. A defendant who at the time of the
commission of the offense has attained the age of 18 or more and who
has been found guilty of first degree murder may be sentenced to death
if:
* * *
(6) the murdered individual was killed in the course of another
felony if:
(a) the murdered individual:
(i) was actually killed by the defendant, or
(ii) received physical injuries personally inflicted by the
defendant ***; and
(b) *** the defendant acted with the intent to kill the murdered
individual or with the knowledge that his acts created a strong
probability of death or great bodily harm to the murdered individual
or another; and
(c) the other felony was one of the following: [armed robbery,
robbery, burglary]." (Emphasis added.) 720 ILCS 5/9--1(b)(6) (West
1996).
Illinois Pattern Jury Instructions, Criminal, No. 7B.07(6) (3d ed. 1992), tracks the
language of the statute and provides that the culpable mental state must be proven
in order to find a defendant eligible for the death penalty.
When compared with the statute and the IPI instruction, it is clear that the
complained-of instruction in this case did not contain the requisite language
regarding the defendant's culpable mental state. A majority of this court has held
that a defendant's death sentence must be vacated where "[a]n essential element
which the State was required to prove in order to establish the existence of the
sixth aggravating factor--a culpable mental state--was not included in the
instruction to the jury." People v. Ramey, , 545 (1992). In Ramey,
however, the defendant had objected to the deficient instruction and preserved the
issue on appeal. The defendant in this case failed to do this. A defendant must
object to alleged errors at trial and include the objection in a post-trial motion in
order preserve the issue for appellate review. Enoch, 122 Ill. 2d at 186.
This waiver doctrine, however, is not absolute; Supreme Court Rule 615(a)
provides that plain errors affecting substantial rights may be reviewed on appeal,
though not objected to at trial or in a post-trial motion.[fn3] 134 Ill. 2d R. 615(a).
In criminal cases, plain error may be invoked where the evidence is closely
balanced or the error was of such magnitude that the accused was deprived of a
substantial right and denied a fair trial. People v. Bean, , 80 (1990).
Neither element is satisfied here. The evidence of the defendant's guilt is
overwhelming, including the defendant's own statement which corroborated the
other evidence presented at trial. It is clear from the record that the defendant
intended to kill his victim: he beat her to death with her cane, smashing her skull
into three pieces. Moreover, the sentencing jury was instructed on the issue of the
defendant's intent at the guilt phase of the trial. The same jury returned a general
verdict finding the defendant guilty of murder. Such a general verdict raises the
presumption that the jury found that the defendant committed the most serious
crime alleged--intentional murder. People v. Thompkins, , 456
(1988). Accordingly, the trial court's erroneous instructions during the eligibility
phase and the tendered general verdict form did not deprive the defendant of a fair
trial. Thus, there exists no plain error to excuse the waiver.
The defendant argues next that (9) the trial court abused its discretion in
admitting into evidence at the eligibility phase of the death penalty hearing the
same crime scene and morgue photographs that the court admitted during the guilt
phase of the trial. For the reasons discussed above at (5), the trial court did not
abuse its discretion.
The defendant contends that (10) the trial court abused its discretion in
sustaining various prosecution objections and restricting Dr. George Savarese, a
social worker, from testifying about, among other things, the defendant's genetic
predisposition to alcoholism. Although the rules of evidence are relaxed in a
sentencing hearing, the evidence offered in the aggravation-mitigation phase of a
death penalty hearing must be both relevant and reliable. People v. Free, , 426 (1983); People v. Brisbon, , 364-65 (1985). Relevancy
determinations are, of course, within the sound discretion of the trial court. Free,
94 Ill. 2d at 426-27. Here the trial court sustained the prosecution's objections to
Savarese's testimony on (a) the history of mental problems in the defendant's
family; (b) the existence of a genetic predisposition to alcoholism; (c) whether
other members of the defendant's family suffered from mental retardation; (d) the
implications of mental retardation; and (e) the defendant's ability to adapt to
prison life. On the issue of the history of mental illness, the trial court did allow
Savarese to testify "as a licensed social worker and not as a doctor or
psychiatrist." The trial court would not let him testify regarding the mental health
of the defendant's brother because his disorder was undiagnosed and the only
evidence of any disorder was that the defendant's brother was discharged from the
Marines after five weeks. In response to this vague and inconclusive testimony,
the trial court stated:
"I strike that as not being any evidence at this point for mental illness of
[the defendant's brother]. If you don't know and [the family doesn't]
know, I don't know how we could come to that conclusion."
On the issue of the genetic predisposition to alcoholism, the trial court found that
Savarese was not qualified to offer an opinion on genetics. Similarly the trial court
ruled that Savarese could not testify whether the defendant suffered from an
organic brain disorder, noting that he "is a social worker, not a doctor." The trial
court properly sustained the prosecution's objections to questions involving the
history of mental retardation in the defendant's family. Savarese's investigation
focused on the defendant--not his family--and speculative testimony regarding the
health of the defendant's family would shed little if any light upon the defendant's
character and the nature of his crime. Likewise, questions regarding the
implications of mental retardation were of dubious relevance. Moreover, the
defendant never made a formal offer of proof, which is a prerequisite to appellate
review. People v. Peeples, , 457 (1993). Finally, on the question
of the defendant's ability to adapt to prison life, Savarese had no particular
expertise regarding prison life and had not reviewed in any detail the defendant's
extensive 14-year prison record. In sustaining the prosecution's objections in each
of these instances, the trial court sought to exclude unreliable or irrelevant
evidence or to preclude the witness from offering testimony beyond his expertise.
Therefore, the trial court did not abuse its discretion in sustaining prosecution
objections to Savarese's testimony.
The defendant argues that (11) the trial court erred in granting the
prosecution's motion in limine to preclude the defense from introducing evidence
at the eligibility phase of the sentence and plea agreement of the codefendant,
Richard Makowski. The defendant contends that the jury should have able to
consider such evidence and whether imposition of the death penalty would have
been disproportionally harsh in comparison to Makowski's 60-year prison
sentence. The focus of a sentencing hearing, however, is the defendant's "character
and the circumstances of his offense." People v. Jimerson, , 53
(1989). This court has specifically ruled that introduction of such evidence is
neither constitutionally mandated nor relevant to the jury's examination to the
individual defendant's character and offense: "requiring the sentencer to examine
and compare the relative culpability of the defendants and the circumstances in
aggravation and mitigation applicable to each would unnecessarily complicate an
already difficult task." People v. Page, , 272 (1993). Thus, the trial
court did not err in granting the prosecution's motion in limine.
The defendant contends that the trial court abused its discretion in excluding
testimony from (12) the defendant's sister regarding the death penalty's effect on
the defendant's family and (13) the defendant's mother regarding her other
children's problems at school and with the law and on "the condition of the
furniture" in the family's home. Again, the focus of a sentencing hearing is on the
defendant's character and the crime he committed. Jimerson, 127 Ill. 2d at 53.
While the rules of evidence are "relaxed" during a sentencing hearing, they are not
simply thrown out the window: the evidence offered must still be both relevant
and reliable. People v. Johnson, , 152 (1991). The excluded
testimony was wholly tangential to the defendant's character and the nature of his
offense. Clearly the trial court was within its discretion in excluding such
testimony.
The defendant next complains that (14) that the trial court abused its discretion
when it sustained the prosecution's objection to defense questions of a psychiatrist
regarding the effects of the drug Mellaril on a person suffering from a psychosis.
The defense did elicit testimony that during the time the defendant was prescribed
Mellaril, the defendant's behavior in prison improved. The trial court, however,
sustained the prosecution's objection to questions on the effect Mellaril would
have on a psychotic person because the questions assumed a fact not in evidence:
there is no evidence that the defendant was a diagnosed psychotic. Subsequently,
the defense made no offer of proof: "[w]hen a trial court refuses evidence, no
appealable issue remains unless a formal offer of proof is made." Peeples, 155 Ill. 2d at 457. The purpose of a requiring an offer of proof as a prerequisite to
appellate review is to enable the reviewing court to determine whether the
exclusion of the evidence was proper. People v. Andrews, , 421
(1992). By neglecting to make a formal offer of proof, the defendant has waived
the issue. Peeples, 155 Ill. 2d at 458.
The defendant argues that the trial court abused its discretion in permitting
(15) Cameron Forbes, the custodian of records at the Illinois Department of
Corrections, to testify regarding the defendant's prison disciplinary record while
incarcerated because such records were unreliable, and (16) Sergeant Joseph
Knowles, a member of the Inmate Disciplinary Board, to testify as to the
defendant's disciplinary record while at the Cook County jail awaiting trial
because these records contained unreliable hearsay. With regard to the Forbes' and
Knowles' testimony on the defendant's disciplinary records, the defense did not
object at trial and did not include the issues in the defendant's post-trial motion.
For an issue to be preserved on appeal, an objection must be raised at trial and in
a post-trial motion. Turner, 128 Ill. 2d at 555. Thus, these issues are waived.
Moreover, there is no plain error. This court has held that the contents of a prison
incident report are admissible during the penalty phase of a sentencing hearing:
" `[O]ur death penalty statute allows the introduction of evidence
during the sentencing hearing that would not ordinarily be admissible
during the guilt phase of a trial. [Citations.] The factors controlling the
admissibility of evidence at a capital sentencing hearing are relevance and
reliability, and the determination of admissibility rests in the discretion of
the trial court. [Citations.] Hearsay testimony will not per se be deemed
to be inadmissible at a sentencing hearing as denying a defendant's right
to confront witnesses. [Citations.]' " People v. Ward, , 329
(1992), quoting People v. Hall, , 416-17 (1986).
The defendant contends that (17) the trial court abused its discretion in
permitting Forbes to testify that he had never seen a disciplinary record worse
than the defendant's. The defendant did object to this testimony, but only because
the prosecution was putatively using "an incomplete set of reports" to establish the
defendant's conduct while incarcerated. In any event, Illinois law permits a lay
witness to "express opinion based on his observations where it is difficult or
impossible for [the witness] to reproduce for the jury the totality of the conditions
perceived and where the opinion given is one that men in general are accustomed
to, and capable of, making, comprehending, and understanding." People v.
Sprinkle, 74 Ill. App. 3d 456, 464-65 (1979). Here Forbes testified:
"At the Joliet Correctional Center we take in 450 inmates a week. I have
been there for sixteen years and I have never seen anybody with a worse
disciplinary record than Donald Armstrong."
Forbes testified that he is the custodian of such records for the Department of
Corrections, and thus he was testifying about matters within his knowledge. His
testimony was qualitative in nature and conveyed probative information
concerning the defendant's behavior while incarcerated--a relevant issue at the
sentencing hearing. Thus, the trial court did not abuse its discretion.
The defendant complains that (18) the trial court abused its discretion and he
was denied a fair sentencing hearing because the prosecution's closing argument
misrepresented defense counsel's argument, misstated evidence, and improperly
impugned the role of defense counsel. "It is axiomatic that parties in closing
argument may not go beyond the scope of the evidence presented and facts fairly
inferable therefrom [citation], misstate the law [citation], or express their personal
opinions on the evidence [citation], or on defendant's guilt [citation]." People v.
Williams, , 78 (1994). Arguments designed to play on the jurors'
emotions are improper, but all depends on context. Williams, 161 Ill. 2d at 78;
Kitchen, 159 Ill. 2d at 38. The complained-of comments here, however, when
viewed in their complete context, are not of the kind to so inflame the passions
of the jury as to implicate the defendant's right to a fair sentencing hearing. First,
in rebuttal to the defense argument regarding the jury's responsibility to follow the
law and its role in sentencing, the prosecutor remarked:
"Responsibility. Apparently an absolute and total foreign concept to the
Defense. They are the ones who told you Donald Armstrong, he is not
responsible for the murder. Wrong.
* * *
They are the ones who told you he was not responsible. He is not
eligible for the death penalty. Wrong.
And now they have the audacity to suggest that you are killing a
human being. To compare your actions with his actions? Absolutely,
totally, 100 percent unequivocally wrong.
Because ladies and gentlemen, the one obligation that you do have that
you swore to us that you would uphold is the obligation to follow the
law, the one thing that Donald Armstrong had never ever ever done."
There is nothing improper in these remarks, which were in response to an issue
raised by the defense. Kitchen, 159 Ill. 2d at 39.
Next the defendant claims that the prosecution misrepresented the defense
argument when it argued to the jury:
"Someone once said all it takes for evil to thrive is for good men to do
nothing. That is what they are suggesting you should do--nothing. To give
him what he wants.
Don't give him what he wants. Give him what he deserves, what he
has earned, what he has spent the better part of an entire lifetime
developing and nurturing, the hostility, viciousness and vileness to end
human life under no auspices of law."
The defendant, however, has failed to preserve this issue for appeal because he
failed to object to this argument at trial and to raise the issue in his post-trial
motion. Turner, 128 Ill. 2d at 555. Moreover, even had the defendant raised the
issue, the prosecution's argument was within the proper scope as to what was the
appropriate sanction for this particular crime. The defendant also claims that the
prosecution mischaracterized facts when it argued that only Dr. Linda Wetzel, a
neuropsychologist, testified that the defendant was mentally retarded. The
defendant observes that there was evidence from the defendant's mother and
teacher that the defendant was a slow learner. The defendant has waived this issue
by failing to raise this objection below, and in any event, the record demonstrates
that the prosecution's remark was accurate: Wetzel was the only psychologist who
classified the defendant as mentally retarded. On this same issue, the defendant
complains of a prosecution remark that the defendant did not call Dr. Albert
Stipes, a psychiatrist employed by the Psychiatric Institute of the circuit court of
Cook County, to testify on the issue of mental retardation because "they probably
wouldn't have particularly liked the answer they would have gotten." The
defendant failed to raise this issue in his post-trial motion, and thus has waived
it.
The defendant contends that the prosecution improperly argued in its opening
statement that the facts surrounding the defendant's crime were "so bad that if
Donald Armstrong were to find a cure for cancer on the same day he took a bullet
for the President, that still wouldn't be enough" to warrant a sentence less than
death. Again, the defendant failed to object during the sentencing hearing to this
remark, and thus has waived it.
Finally, the defendant asserts that the prosecution impugned the role of defense
counsel when it argued:
"How easy it must be and what a criminal justice system we have
when a man can have that type of criminal history, have those acts behind
him, have that brutality in his background and have lawyers who stand up
here and be able to argue--
* * *
*** --it's not his fault. No, it's society's fault. It is his environment's
fault. It is his teacher's fault. And it is going to be your fault. How easy
it must be to stand up here do that.
Well, folks, our entire system of a civilized society rests upon the
notion of responsibility. And Donald Armstrong must be held to the same
standards that each of us are."
Viewed in context, the prosecution's remarks were not an attack on the defense
counsel, but rather an attempt to characterize the manner in which the defendant
chose to explain away his criminal history. As with the other allegations of error
with regard to the prosecution's argument, we conclude that the trial court did not
abuse its discretion in overruling the defendant's objection. Moreover, we are
persuaded that the complained-of comments were accurate statements of the
evidence and proper responses to the defense case. Finally, in view of the trial
court's careful and complete admonitions to the jury to decide the case on the
evidence and only the evidence and not on sympathy or prejudice, we conclude
that the defendant received a fair sentencing hearing.
The defendant argues that (19) the trial court erred in denying the defendant's
motion for discovery of the evidence the prosecution intended to introduce in
aggravation at the sentencing hearing. This court, however, has held that discovery
of evidence in aggravation is "not constitutionally required." People v. Foster, , 102 (1987); see also People v. Guest, , 406 (1995);
People v. Williams, , 264 (1991). Accordingly, the trial court did
not err.
The defendant complains that (20) the admission of hearsay testimony during
his sentencing hearing violated his right to confrontation. Hearsay evidence,
however, is admissible at sentencing hearings where the evidence is relevant and
reliable (People v. Hall, , 416-17 (1986)) and does not violate a
defendant's right to confront witnesses (People v. Young, , 54 (1989)).
The defendant argues that (21) the trial court erred when it refused to instruct
the jury with a non-IPI instruction proffered by the defendant which listed several
nonstatutory mitigating factors. This court, however, has held that nonstatutory
mitigating factors need not be specified in an instruction to the jury when, as here,
the jury is instructed that it may consider any relevant mitigation factor not
specified in the instruction. People v. Jackson, , 114 (1991).
The defendant contends that (22) the factors in mitigation substantially
outweighed the factors in aggravation. Specifically, the defendant cites his
"dysfunctional family" and poverty which "deprived him of the opportunity for
development of the kind of moral responsibility expected of citizens." This court
has held that the decisions of a capital sentencing jury will not be overturned
lightly, particularly where that decision is amply supported by the record. People
v. Hooper, 172 Ill. 2d 64, 77 (1996). After reviewing the record in this case,
including the brutality of the crime as well as the defendant's extensive and
violent criminal history, we conclude that the facts support the sentencing jury's
determination.
The defendant raises two challenges to the IPI instructions alleging that (23)
the instructions are ambiguous and inadequate to guide the jury in capital cases,
and (24) the instructions are unconstitutional because they contain the phrase "no
mitigating factors sufficient to preclude the imposition of the death sentence,"
which could cause a juror to erroneously believe that he or she must find that
more than one mitigating factor exists before voting for a sentence other than
death. The defendant, however, never objected to the instructions at trial, offered
alternative instructions or included an objection to the instructions in his post-trial
motion. Accordingly, the issues are waived. Moreover, this court has already held
that the IPI instructions in death penalty cases adequately guide the jury (People
v. Brown, 172 Ill. 2d 1, 55-56 (1996) (IPI instructions are constitutionally sound);
People v. Franklin, , 29 (1995) (same)) and that the instructions
apprise the jurors that the existence of any one mitigating factor is sufficient to
preclude a death sentence (cf. People v. Smith, 176 Ill. 2d 217, 260 (1997)).
Finally, the defendant argues that (25) the Illinois death penalty statute is
unconstitutional on 12 grounds. This court has already decided each of the issues
raised by the defendant. See, e.g., People v. Gaines, , 369 (1981)
(pretrial notice of intent to seek death penalty is not constitutionally mandated);
People v. Orange, , 390 (1988) (the statutory grant of prosecutorial
discretion in deciding whether to seek the death penalty is not unconstitutional and
the statute does not place an improper burden on the defendant to establish that
a noncapital sentence should be imposed); People v. Albanese, ,
541-42 (1984) (statute provides sufficient information-gathering procedures to
insure adequate appellate review); People v. Perez, , 97 (1985)
(statute is not unconstitutional because it does not provide a means to assure that
all aggravating factors are relevant and permissible; the reviewing court may
examine the evidence for relevancy); People v. Lewis, , 144-46
(1981) (statutory aggravating factor "no significant history of prior criminal
history" is neither vague nor overly broad); People v. Spreitzer, , 43
(1988) (instructions do not preclude the jurors from making a "reasoned moral
response" to the defendant's background, character and crime (emphasis omitted));
People v. St. Pierre, , 520 (1992) (statute sufficiently minimizes the
risk against the arbitrary and capricious imposition of the death penalty); People
v. Gilliam, 172 Ill. 2d 484, 522 (1996) (statute is not invalid because it allows the
sentencer to consider nonstatutory aggravating factors); People v. Stewart, , 377-82 (1988) (fact that prosecutorial discretion may be exercised
unevenly by different prosecutors does not render the statute unconstitutional);
People v. Page, , 282-83 (1993) (it is not unconstitutional to allow
the prosecution both initial and rebuttal arguments in the capital sentencing
hearing). We decline to overrule our prior decisions and continue to adhere to our
holdings on these issues.

III
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, May
12, 1998, 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 1996). 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 the defendant is confined.

Affirmed.

CHIEF JUSTICE FREEMAN, concurring in part and dissenting in part:
I, like my colleagues, believe that defendant's convictions must be affirmed;
however, I am unable to conclude, as they do, that defendant's death sentence
must also be affirmed. I specifically take issue with the majority's decision to
hold, as waived, defendant's arguments concerning the errors associated with the
death eligibility verdict form and jury instructions. In my opinion, our precedents
compel a different resolution to this issue from the one the court reaches today.
Accordingly, I respectfully dissent from that portion of the opinion.

I
The dispositive question raised with respect to this issue is whether
defendant's failure to object to these errors at trial and his failure to include the
issue in his post-trial motion bars review of the matter in this direct appeal. To
answer this question, one must consider both the constitutional and statutory
backdrop against which these errors occurred. The Illinois death penalty statute
lists several aggravating factors which serve a constitutionally necessary function--
to narrow the death eligible class. See 720 ILCS 5/9--1(b) (West 1992); People
v. Lewis, , 145 (1981). Under the statute and the court decisions
interpreting it, the State is required to prove, beyond a reasonable doubt, the
existence of an aggravating factor, that is, a factor that makes the defendant
subject to a death sentence in the first place. See 720 ILCS 5/9--1(f) (West 1992);
People v. Simms, (1991); Stewart v. Peters, 958 F.2d 1379 (7th
Cir. 1992). Once the State has met this burden of proving an aggravating factor
beyond a reasonable doubt, the sentence hearing moves to a second stage in which
"a weighing of aggravating and mitigating factors presented by the State and
defendant is to occur, and the State has no burden of proving that the weight of
these factors is such that a death penalty should be imposed." People v. Bean, , 138 (1990). This court has recognized that, by virtue of this second
stage of the hearing, our death penalty statute places upon the defendant a burden
of persuasion to dissuade the jury from imposing a sentence of death. However,
both this court and the Seventh Circuit Court of Appeals have found that the
imposition of such a burden of persuasion upon the defendant passes constitutional
muster "because at this point in the hearing the prosecution has already proven
beyond a reasonable doubt that a statutory aggravating factor exists [which]
mak[es] the defendant eligible for the death penalty." Bean, 137 Ill. 2d at 139;
Silagy v. Peters, 905 F.2d 986, 998 (7th Cir. 1990). Thus, the existence of
aggravating factors and the State's burden of proof during the eligibility phase of
the hearing serve as important constitutional safeguards within the framework of
our death penalty statute.
In this case, the State sought to establish defendant's death eligibility on the
basis that the murder was committed in the course of another felony. Under our
death penalty statute, however, it is not enough that the murder occurred during
an armed robbery, a burglary or a residential burglary for the existence of this
aggravating factor to be proved. The State must also prove that defendant "acted
with the intent to kill the murdered individual or with the knowledge that his acts
created a strong probability of death or great bodily harm to the murdered
individual or another." 720 ILCS 5/9--1(b)(6)(b) (West 1992). Thus, at the
eligibility stage of a death sentence hearing, the State "shoulder[s] the burden all
over again" that defendant really did intend to kill his victim or create a strong
probability of death. Stewart v. Peters, 958 F.2d at 1387. The importance of this
mens rea requirement cannot be minimalized. As the United States Supreme Court
has recognized:
"A critical facet of the individualized determination of culpability
required in capital cases is the mental state with which the defendant
commits the crime. Deeply ingrained in our legal tradition is the idea that
the more purposeful is the criminal conduct, the more serious is the
offense, and, therefore, the more severely it ought to be punished." Tison
v. Arizona, , 156, 95 L. Ed. 2d 127, 143, 107 S. Ct. 1676,
1687 (1987).
The problem in this case stems from the fact that defendant's sentencing jury was
never instructed that it had to find "all over again" that defendant intended to kill
his victim or that defendant acted with the knowledge that his conduct created a
probability of death or great bodily harm. Nor was it asked to evaluate the
purposefulness of defendant's conduct in order to establish the individualized
determination required in capital cases. See slip op. at 11 (setting forth text of
issues instruction given to the jury). Instead, the jury was told that it could find
defendant eligible for the death penalty if it found that the murdered individual
was actually killed by the defendant and the other felony was armed robbery,
residential burglary, or burglary. This instruction, without more, tells the jury that
the defendant's mens rea is not relevant to its eligibility decision. But, as the
previously cited case law makes clear, a defendant's mens rea is indeed relevant
to the trier of fact's determination during the eligibility phase of a capital sentence
hearing. Moreover, the State's burden of proving this element beyond a reasonable
doubt is also relevant for purposes of satisfying constitutional requirements
inherent to capital sentencing. For these reasons, this court has held that where an
essential element that the State is required to prove in order to establish the
existence of an aggravating factor is omitted from the jury's instruction, the
subsequent death sentence must be vacated. People v. Ramey, , 545
(1992).
My colleagues do not dispute that under our decision in Ramey, a defendant's
death sentence must be vacated where "[a]n essential element which the State was
required to prove in order to establish the existence of the sixth aggravating factor
-- a culpable mental state--was not included in the instruction to the jury." Slip op.
at 12. Moreover, they admit that the complained-of instruction here, when
compared with our death penalty statute and the appropriate Illinois Pattern Jury
Instruction, clearly "did not contain the requisite language regarding the
defendant's culpable mental state." Slip op. at 12. Under the majority's view,
however, vacatur of defendant's death sentence is unnecessary because defendant
here, unlike defendant Ramey, failed to preserve the issue for appellate review.
My colleagues, having found this issue waived, next conclude that our plain error
rule (134 Ill. 2d R. 615(a)) does not operate to excuse the waiver because the
evidence of defendant's guilt is "overwhelming" (slip op. at 13) and because "the
sentencing jury was instructed on the issue of the defendant's intent at the guilt
phase of the trial" so that the error did not deprive defendant of a fair trial.
(Emphasis in original.) Slip op. at 13.
Although the majority chooses to evaluate defendant's procedural default under
Rule 615(a) (see 134 Ill. 2d R. 615(a) (allowing excusal of waiver in cases where
(i) the evidence is closely balanced or (ii) where the error deprived defendant of
a substantial right)), I believe that the instructional error at issue here and
condemned by this court in Ramey falls within the category of errors to which the
waiver doctrine cannot apply and which are specifically excused under Supreme
Court Rule 451(c) (134 Ill. 2d R. 451(c)). Rule 451(c) provides that "substantial
defects" in jury instructions "are not waived by failure to make timely objections."
This rule provides a remedy for "grave" errors with regard to instructions in the
same manner as Rule 615(a) does with respect to errors generally. See People v.
Keene, , 31 (1995). Under Rule 451(c), a procedural default will not
bar review of an error in jury instructions involving a substantial right if to
enforce the bar would work fundamental unfairness. Keene, 169 Ill. 2d at 31;
People v. Roberts, , 12-14 (1979); People v. Jenkins, , 66
(1977). In discussing Rule 451(c), this court has stated that the waiver rule " `will
not operate to deprive an accused of his constitutional rights of due process.' "
People v. Roberts, 75 Ill. 2d at 14, quoting People v. Burson, , 370
(1957). In my view, the instructional error at issue satisfies the "substantial defect"
requirement contained in Rule 451(c) and mandates vacatur of defendant's death
sentence in this case.
As the majority readily acknowledges, this court in Ramey concluded that the
omission from death eligibility jury instructions of an essential element which the
State was required to prove constituted an error serious enough to warrant vacatur
of the death sentence. In reaching this holding in Ramey, we rejected several
arguments made by the State, which the majority inexplicably resurrects today to
form the basis of its holding that the components of the plain error rule have not
been met. This court's rationale for dismissing the State's contentions in Ramey,
however, demonstrates (i) the constitutional magnitude of the complained-of error
and (ii) the reason why the error cannot be the subject of a procedural default.
Therefore, I will address each seriatim.
Relying on People v. Thompkins, (1988), the State in Ramey
first maintained that the jury's return of a general verdict on the murder charge
raised a presumption that the jury found that defendant intentionally murdered the
victim. My colleagues today also rely on Thompkins for their conclusion that the
general verdict raised the presumption that the jury found that defendant
committed the most serious crime alleged, i.e., intentional murder, simply because
the jury was instructed on the issue of intent during the guilt phase of the trial.
See slip op. at 13. However, as we pointed out in Ramey, our decision in
Thompkins in no way supports such a conclusion. In Thompkins, a jury returned
a general verdict of guilty after being instructed as to intentional, knowing, and
felony murder during the guilt phase of the trial. At sentencing, the trial judge,
sitting as the trier of fact, found defendant eligible for the death penalty after
determining that defendant intentionally killed the victims. This court held that the
jury's return of a general verdict did not preclude the death penalty. Thompkins,
121 Ill. 2d at 456. In Thompkins, the circuit court, sitting as the trier of fact during
sentencing, did in fact make the mental culpability finding required under the
death penalty statute, whereas in both Ramey and the case at bar, the sentencing
jury, sitting as the trier of fact, never found that the defendant acted intentionally
or knowingly with respect to death eligibility. For this reason, Thompkins is as
inapposite to the facts in this case as it was to the facts in Ramey.
Nevertheless, my colleagues use Thompkins to conclude that defendant was not
substantially prejudiced by the complained-of errors. However, I find the rationale
for their conclusion, i.e., that the erroneous instructions during the eligibility phase
and the tendered general verdict form "did not deprive defendant of a fair trial"
because the jury received instructions concerning the defendant's intent and
returned a general verdict during the guilt phase (slip op. at 13), to be untenable.
A general verdict returned by the jury in the guilt phase of the trial does nothing
to diminish the amplitude of the instructional error at sentencing because the two
stages of the proceedings address two very different questions. During the guilt
phase of the trial, the trier of fact must determine whether the State has satisfied
its burden of proving defendant guilty of the commission of the crime beyond a
reasonable doubt. At the death eligibility stage of the proceedings, the trier of fact
is concerned solely with determining whether the State has proved defendant
eligible for the death penalty beyond a reasonable doubt. In this case, the fact
remains that the sentencing jury was not instructed to consider, in any way,
defendant's mental state during the eligibility phase of the trial. Moreover, the jury
was not asked to make the requisite culpability finding in its verdict. Stated
differently, the given instructions failed to inform the jury that the State was
required to "shoulder" its burden on defendant's mental culpability "all over
again." Although the jury received instructions during the guilt phase of the trial
as to intentional, knowing, and felony murder; its general verdict cannot imply
unanimity as to any one count or theory. See People v. Sims, , 170
(1991). The existence of the general verdict rendered in the guilt phase of the trial
does not "make up" for the failings of the eligibility instructions during the
sentencing phase of the proceedings. Given the constitutional ramifications of this
error and the framework of our death penalty statute, I cannot but conclude that
the complained-of errors were substantial enough and grave enough to have
deprived defendant of a fair sentence hearing.
As I stated previously, I would invoke Rule 451(c) to excuse defendant's
procedural default in this case even though my colleagues elect to use the more
general plain error rule in considering this same question. Nevertheless,
defendant's procedural default would still be excused under our plain error rule,
notwithstanding my colleagues' conclusion to the contrary. According to the
majority, the first prong of the plain error rule, i.e., whether the evidence is
closely balanced, is not satisfied in this case. I question the relevance of such an
inquiry given the nature of the erroneous instruction. That the State adduced
evidence of the requisite intent is immaterial if the trier of fact was never asked
to make a finding as to the sufficiency of that evidence. I note that the State in
Ramey specifically argued that the court's failure to instruct the jury on the subject
of intent did not require reversal because under People v. Jones,
(1979), defendant's intent "was manifest from the evidence." Ramey, 151 Ill. 2d
at 546. We rejected this argument due, in large part, to the fact that, in Jones,
defense counsel conceded that the intent to commit murder was blatantly evident
and because the error was minimized by a correct instruction. None of these
factors were present in Ramey. For this reason, we concluded that "the error in the
eligibility instructions cannot be considered harmless." Ramey, 151 Ill. 2d at 546-
47. Notwithstanding this precedent, my colleagues hold that "the evidence of the
defendant's guilt is overwhelming" and that "[i]t is clear from the record that the
defendant intended to kill his victim." (Emphasis in original.) Slip op. at 13. That
may well be, but presenting evidence in and of itself is not the same as instructing
the jury that it must find, from that evidence, that defendant possessed a certain
type of mens rea before declaring him eligible for the death penalty. My
colleagues seemingly suggest that because the record contains evidence which
could support a finding of intent to kill, this court can simply affirm the jury's
finding of death eligibility even though the instructions did not require the jury to
consider the question of defendant's mental culpability. Such an approach amounts
to nothing more than directing a verdict for the prosecution, which, in my view,
is impermissible under these circumstances.
I should also point out that the majority finds that the requisite intent to kill
was present in this case despite the fact that this court in Ramey specifically
declined the State's request that this court make the necessary intent finding itself
and affirm defendant Ramey's death sentence. See Ramey, 151 Ill. 2d 547. In
rejecting the State's invitation, we noted that
"[w]hile this court independently evaluates the record when a death
sentence has been imposed [citation], this court acts as a court of review
and, as such, we defer to the findings made in the trial court when there
is ample support in the record. [Citation.] According to the death penalty
statute, the trial court or the jury has the responsibility of deciding
whether the defendant is eligible for a death sentence. [Citation.]" Ramey,
151 Ill. 2d at 549-50.
While I may agree with my colleagues that the evidence of defendant's intent to
kill his victim is overwhelming, I must emphasize that this conclusion is not mine
to make in the first instance. Illinois law requires the State to prove the requisite
culpable mental state for death eligibility beyond a reasonable doubt, and the law
also entitles the defendant, if he or she so chooses, to have a jury make that
finding. Defendant here elected to have a jury do just that. Thus, the question is
one exclusively reserved to the jury in which defendant has a protected liberty
interest. See Ramey, 151 Ill. 2d at 547. As a result, due process concerns are
implicated. See Ramey, 151 Ill. 2d at 547-49. In my view, Ramey compels the
conclusion that the instructional errors in this case cannot be barred from review
by the waiver doctrine because the errors are of a fundamental and substantial
nature.

II
The majority's treatment of this issue today also runs counter to this court's
decision in People v. Mack, (1995). In Mack, the State sought to
establish defendant's eligibility for the death penalty on the basis that the murder
was committed in the course of another felony. As in this case, the verdict form
failed to specify that the defendant acted with the requisite mental state or
knowledge as required under section 9--1(b)(6)(b) of the Criminal Code of 1961.
Mack, 167 Ill. 2d at 529-30. Unlike this case, however, the jury in Mack was
given a proper issues instruction which specifically mentioned the need to find
that defendant possessed the requisite mental culpability before eligibility could
be found. Defendant Mack did not challenge the sufficiency of the jury's
eligibility stage verdict in his direct appeal; however, he included the issue in his
subsequent post-conviction petition, claiming that appellate counsel's failure to
raise the issue deprived him of his constitutional right to effective assistance of
counsel. Mack, 167 Ill. 2d at 530. As a result, we considered the verdict form
error on its merits and concluded that counsel's error constituted deficient
performance. In so holding, we stated the following:
"This court has emphasized that a culpable mental state of intent to kill
or knowledge of a strong probability of death or great bodily harm is an
essential element of the particular statutory aggravating factor upon which
defendant's eligibility for the death penalty was ostensibly based.
[Citations.] Moreover, this court has specifically held that an attorney's
apparent misunderstanding of this mental state requirement fell outside the
range of competence demanded of attorneys in criminal cases. [Citation.]
Notwithstanding the absence of case law involving the precise defect at
issue here, we believe that a competent attorney would have recognized
the fundamental importance of a legally sufficient eligibility-stage verdict
representing a finding on all essential elements of the statutory
aggravating factor at issue. In our view, appellate counsel's failure to
seek reversal of defendant's death sentence on the basis of the defective
eligibility-stage verdict was patently erroneous." (Emphasis added.) Mack,
167 Ill. 2d at 533.
Implicit in this holding is the recognition that this type of error is not one that is
readily apparent to the average criminal defendant and that therefore it is
incumbent upon defendant's attorneys, not to mention the trial judge, to guard
against it. In my view, the tenor of these statements indicates that this court has,
at least up until today, deemed the omission of the requisite mental state language
from the death eligibility jury verdict form to be an error of "fundamental"
proportion.
Moreover, given the above characterization of the error, it is not surprising that
this court had little trouble in finding that defendant Mack established prejudice
from counsel's failure to raise the error. See Mack, 167 Ill. 2d at 538. We
concluded that had appellate counsel included the issue in the direct appeal, a
reasonable probability existed that the death sentence would have been reversed.
Mack, 167 Ill. 2d at 534-39. In reaching this conclusion, we acknowledged the
constitutional implications concerning the question of the sufficiency of the
sentencing jury's verdict. See Mack, 167 Ill. 2d at 534 (and federal cases cited
therein). Moreover, we rejected the State's assertion that the error was cured by
the inclusion of the requisite mental state in the issue instruction given to the jury,
stating that "the interpretative process should not become a speculative attempt to
reconstruct the jury's deliberations and divine its unexpressed conclusions." Mack,
167 Ill. 2d at 536-37. If, during post-conviction proceedings, this court views
appellate counsel's failure to raise this issue on direct review as ineffective
assistance of counsel, then surely the same error, on direct appeal, can only be
viewed as "substantial" enough to excuse its procedural default at trial. Moreover,
I find it telling that a majority of this court in Mack deemed the error in the
verdict form alone serious enough to mandate vacatur of the death sentence,
notwithstanding the inclusion of the requisite mental state language in the
instructions. I am puzzled, therefore, by my colleagues' refusal to excuse
defendant's procedural default in the instant case where both the issues instruction
and the jury's verdict form omitted the requisite language.
Our decision in Mack also instructs us that, contrary to the majority's holding,
this court lacks the ability to glean the requisite intent for a finding of death
eligibility from the evidence adduced during the course of the trial. As I stated
previously, my colleagues today hold that "[i]t is clear from the record that
defendant intended to kill his victim." (Emphasis in original.) Slip op. at 13. This
court specifically concluded in Mack that such an eligibility verdict could not
withstand scrutiny and stated that:
"[i]n reaching our decision, we are not unaware of the strength of the
evidence relative to defendant's state of mind when he killed [the victim].
Indeed, in the opinion in defendant's direct appeal, this court remarked
that defendant's testimony at the aggravation/mitigation stage of
sentencing that the fatal shot was accidental was 'impossible to accept in
view of the other evidence in the case.' [Citation.] However, *** the State
has limited its argument to the sufficiency of the jury's verdict. The State
has not argued that an insufficient verdict could be deemed harmless error
based on the strength of the evidence, and the availability of a harmless
error analysis in this setting is doubtful at best. Review under the
harmless error rule presupposes an actual verdict. `The inquiry *** is not
whether, in a trial that occurred without the error, a guilty verdict would
surely have been rendered, but whether the guilty verdict actually
rendered in this trial was surely unattributable to the error.' (Emphasis in
original.) Sullivan v. Louisiana (1993), , 279, 124 L. Ed. 2d 182, 189, 113 S. Ct. 2078, 2081 (where constitutionally defective
instruction on definition of reasonable doubt vitiated the jury's verdict, the
harmless error rule did not apply); see also Williams v. Calderon (9th Cir.
1995), 52 F.3d 1465, 1477 (citing Sullivan in support of conclusion that
error in instruction which omitted an element of statutory aggravating
factor was not cured by State court's determination that evidence was so
overwhelming that no rational, properly instructed jury could have failed
to find the omitted element)." Mack, 167 Ill. 2d at 538-39.
These statements amply illustrate why my colleagues' finding that the evidence
was not closely balanced in this case (see slip op. at 13) is wholly irrelevant in the
context of this particular type of error. Rather, the inquiry must focus solely on
whether the instructional error was substantial enough to fall within the purview
of either Supreme Court Rule 451(c) or the second prong of the plain error rule.
In my opinion, this court's decision in Mack compels the conclusion that it does.

III
My research reveals that, in the past, this court has not hesitated to vacate a
death sentence when the jury's eligibility verdict is legally insufficient and when
the jury has not been instructed on the mental culpability required to prove the
existence of a statutory aggravating factor during the eligibility phase of the
hearing. Today's decision marks a radical departure from these precedents, not on
the basis of better reasoning, but solely on the principle of ipse dixit--it is so
because the majority says it is so. I, for one, do not see any principled distinction
between this case and Ramey, waiver notwithstanding. Nor do I see any
consistency in holding as we did in Mack that an attorney's failure to raise this
issue on direct review constitutes ineffective assistance of counsel and in holding
today that the same error does not rise to "plain error" when procedurally
defaulted at trial. Although appellate counsel here properly based their arguments
in this direct appeal on our decision in Ramey, it would now appear that counsel,
in so doing, may have done defendant a grave disservice because any relief
seemingly available under Mack may now be jeopardized by principles of res
judicata. Accordingly, I respectfully dissent from the majority's decision to affirm
defendant's death sentence.

JUSTICE McMORROW joins in this partial concurrence and partial dissent.

[fn1] The circuit court also sentenced the defendant to concurrent terms of 30
years for robbery, 15 years for residential burglary, and 7 years for burglary.

[fn2] Makowski was charged in the same indictment as the defendant and
subsequently entered a blind guilty plea to one count of first degree murder, armed
robbery and residential burglary. The trial court sentenced him to 60 years in
prison.

[fn3] Supreme Court Rule 451(c) provides that "substantial defects" in jury
instructions "are not waived by failure to make timely objections thereto if the
interests of justice require." 134 Ill. 2d R. 451(c). This court has consistently
emphasized the limited nature of Rule 415(c) and has restricted its application to
the correction of "grave errors" or to situations where the case is close factually
and there is a question of fundamental fairness. See People v. Easley, , 337 (1992); People v. Huckstead, , 544 (1982). Thus, Rule
451(c) offers a remedy for "grave errors," which parallels Rule 615(a)'s remedy
for plain errors generally, and we construe Rule 451(c) and Rule 615(a)
"identically." People v. Keene, , 31-32 (1995) (Freeman, J.).

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