People v. Williams

Annotate this Case
People v. Williams, No. 80377 (1/23/98).

Docket No. 80377--Agenda 4--September 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
ELTON L. WILLIAMS, Appellant.
Opinion filed January 23, 1998--Modified on denial of rehearing March 30, 1998.

CHIEF JUSTICE FREEMAN delivered the opinion of the court:
Following a jury trial in the circuit court of Will County, defendant, Elton L.
Williams, was convicted of first degree murder arising from the shooting death of
police officer Timothy Simenson. At a separate sentencing hearing, the same jury
found defendant eligible for the death penalty. The jury also found that there were no
mitigating factors sufficient to preclude imposition of that sentence. The trial judge
accordingly sentenced defendant to death. 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). For the reasons which follow, we affirm defendant's conviction and
sentence.

BACKGROUND
We here provide the relevant facts leading to defendant's arrest and conviction.
Other facts will be provided as they pertain to the issues discussed.
On September 28, 1994, shortly after midnight, Bill Chaney parked his car in the
lot of the Arbor Club apartment complex and walked to the entrance of his apartment
building at 1620 Arbor Club in Crest Hill, Illinois. He noticed a white car with its
motor running, but saw no one in it. As Chaney approached the entrance of his
building, Elton Williams, the defendant, ran towards him, pointed an altered .22-
caliber rifle at him, and demanded his wallet. Chaney tossed his wallet, fled to his
apartment, and dialed 911.
At 12:23 a.m., Jane Randolph, emergency dispatcher for the Crest Hill police
department, answered Chaney's call. Chaney told Randolph he was robbed at gunpoint
by a black man wearing a black jacket. He also mentioned the possible involvement
of a white car.
At the time of Chaney's call, Sergeant Simenson and Officer Evanoff were parked
in their respective squad cars near Chaney's apartment complex. Upon hearing the
call, they immediately drove towards the Arbor Club complex, where they saw a black
male driving a white car out of the parking lot. Simenson followed the white car;
Evanoff drove to Chaney's residence. Simenson reported the license plate to Randolph
and she advised him that the plates were registered to a 1989 Ford. Simenson reported
that he was going to stop the car at Theodore and Burry Circle. Officer Ralph Smith
also heard the call and went to assist Simenson.
When Officer Smith arrived at Theodore and Burry Circle, Simenson was standing
outside of the white car with a black male. Simenson reported the male's name as
Gregory Shaw and reported the vehicle identification number of the car. Simenson
then shined his flashlight inside the car, removed the keys, and instructed Shaw to
move to the rear of the car. Rather than comply, Shaw sat, inexplicably, on the trunk
of the white car. Simenson told Shaw to get off the trunk and to stand next to
Simenson's squad car, which was parked directly behind them. Shaw slid down from
the trunk, but remained there for a few seconds before moving to the squad car.
Simenson unlocked the trunk and lifted the trunk deck, holding the keys in his
right hand and a flashlight in his left. As the trunk deck rose, the barrel of a gun
simultaneously emerged from within the trunk. As Simenson looked into the trunk,
defendant shot Simenson twice in the face. Defendant then aimed the gun at Officer
Smith, but the gun jammed. Defendant jumped out of the trunk and continued to aim
the gun at Officer Smith. Smith and Evanoff shot defendant until he fell to the
ground.
Defendant made a few attempts to get up, but Officer Evanoff ordered him to stay
down. Evanoff asked defendant if he had any more weapons and defendant responded
that he did not. Evanoff then holstered his weapon and handcuffed defendant.
Two ambulances arrived at the scene of the shooting. Paramedics detected a faint
pulse on Simenson, but it was later determined that Simenson died as he fell to the
ground. Paramedics treated defendant at the scene and transported him to the hospital;
the police transported Shaw to jail. On October 5, 1994, defendant and Shaw were
indicted for five counts of first degree murder and one count of armed robbery.
Following trial, a jury found defendant guilty of first degree (knowing) murder,
first degree (intentional) murder, and felony murder. 720 ILCS 5/9--1(a) (West 1992).
The trial court accepted all the verdicts and entered judgment on the intentional
murder count, as well as the armed robbery count to which defendant had already pled
guilty.
The jury also found defendant eligible for the death penalty, and following
evidence in aggravation and mitigation, the jury further found no mitigation sufficient
to preclude the imposition of the death penalty. Pursuant to the jury's finding, the trial
court imposed a sentence of death.

ANALYSIS
Defendant raises various issues pertaining to both the guilt and sentencing phases
of the trial.

Guilt Phase
Pretrial
Prior to trial, defendant sought to suppress a statement he made to paramedic Scott
Shear while in the ambulance. At the hearing on defendant's motion to suppress,
Shear testified that, "out of curiosity," he asked defendant why he shot Officer
Simenson. Defendant responded that he shot the officer because he did not want to
go to jail. Defendant did not testify at the suppression hearing. The trial court found
that defendant had not been given his Miranda rights at the time he made the
statement. Nevertheless, the trial court found that the statement was made voluntarily.
Defendant contends that the trial court improperly found that his statement to
paramedic Scott Shear was voluntary. Initially, defendant argues that we should
conduct a de novo review of this argument. We note that, generally, a trial court's
ruling on a motion to suppress evidence is subject to reversal only if manifestly
erroneous. People v. Dilworth, 169 Ill. 2d 195, 201 (1996). De novo review by this
court is appropriate when neither the facts nor the credibility of witnesses is
questioned. People v. Mitchell, 165 Ill. 2d 211, 230 (1995). Because issues of
credibility and fact are questioned in the present case, we must review this issue based
on the manifest weight of the evidence standard.
Whether a statement is made voluntarily is judged by the totality of the
circumstances. People v. House, 141 Ill. 2d 323, 376 (1990). The test to determine
whether a confession is voluntary is whether the accused's will was overborne at the
time he confessed. People v. Kincaid, 87 Ill. 2d 107, 117 (1981). If so, the confession
cannot be deemed the product of a rational intellect and a free will. Kincaid, 87 Ill. 2d at 117.
Defendant argues that he was so badly injured from the gunshot wound he
sustained that his statement to the paramedic was not the product of a free and
rational choice. In support of this argument, defendant cites People v. Strickland, 129 Ill. 2d 550 (1989). In Strickland, defendant sustained a gunshot wound to his finger.
Although the police were aware of defendant's wound, they did not transport him to
the hospital until after nine hours in custody. By the time defendant received
treatment, he had made five incriminating statements. In upholding the trial court's
suppression of defendant's statements, this court held that the defendant's statements
were not voluntary because defendant could have concluded that further treatment was
dependent on his cooperation with the police. Strickland, 129 Ill. 2d at 558. See also
People v. O'Leary, 45 Ill. 2d 122 (1970) (holding that defendant's confession, coming
so soon after being sprayed with tear gas, was involuntary and not a product of his
free will).
Defendant also relies on Mincey v. Arizona, 437 U.S. 385, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978). In Mincey, the investigators interrogated the defendant in the
hospital a few hours after being seriously wounded by the police. Defendant was in
intensive care and intubated. He had been given various drugs and was unable to
speak. Defendant responded to questions by writing on pieces of paper; however,
some of his answers were not entirely coherent. Although defendant repeatedly
requested that the interrogation stop and requested a lawyer, police detectives
continued to interrogate him for almost four hours. The Supreme Court stated that
based on the record, defendant's statements were not the product of his free and
rational choice. The court concluded that, weakened by pain and shock, and barely
conscious, defendant's will was simply overborne. Mincey, 437 U.S. at 401-02, 57 L. Ed. 2d at 306, 98 S. Ct. at 2418. See also Beecher v. Alabama, 389 U.S. 35, 19 L. Ed. 2d 35, 88 S. Ct. 189 (1967) (holding that defendant's confession was a product of
gross coercion where he was under the influence of morphine and police threatened
to kill him if he refused to confess).
The defendant, like the defendants in Mincey and Strickland, suffered the pain of
gunshot wounds at the time he made the statement. However, those cases, as well as
O'Leary and Beecher, are clearly distinguishable from the instant case. At the
suppression hearing, paramedics Shear and Laroy Aldridge testified that when they
arrived at the scene, defendant became uncooperative and verbally abusive. The
paramedics, nevertheless, provided immediate medical attention, examining
defendant's injuries, noting the amount of blood loss and level of consciousness.
Although defendant complained of pain, he was stable and did not appear to be in
shock. According to Shear and Aldridge, defendant's wound appeared to have stopped
bleeding; defendant was not medicated, was coherent and able to provide personal
information, such as his name, address and any preexisting medical problems. Shear
testified that when he asked defendant why he shot Simenson, defendant seemed to
ponder the question before answering that he did not want to go back to jail.
The paramedics' testimonies were corroborated by Officer Stoddard of the Crest
Hill police department. Officer Stoddard testified that he guarded defendant in the
ambulance; however, his gun was not drawn at the time. Although defendant
complained of pain, he was coherent and able to answer questions. Dr. Kasbekar,
defendant's treating physician, testified that upon defendant's arrival at the hospital,
defendant was in severe pain and in shock. However, defendant was alert and
personally gave Dr. Kasbekar consent to operate. Dr. Kahn, who also treated
defendant in the emergency room, testified by stipulation that at the time of
defendant's admission, defendant was in shock, but coherent.
We do not believe that the circumstances surrounding defendant's statement rose
to the level of coercion found in the cases cited above. The tenor of defendant's
statement is inconsistent with that of one whose will is overborne. Also, there is no
evidence that defendant believed that he was compelled to answer Shear's question
as a condition to receiving medical treatment. In any event, the "constitutional inquiry
into the issue of voluntariness `requires more than a mere color-matching of cases.' "
Beecher, 389 U.S. at 38, 19 L. Ed. 2d at 39, 88 S. Ct. at 191, quoting Reck v. Pate,
367 U.S. 433, 442, 6 L. Ed. 2d 948, 954, 81 S. Ct. 1541, 1547 (1961). Viewing the
totality of the circumstances in the case sub judice, we believe that the trial court
properly found that defendant's statement was voluntary. Therefore, the trial court's
denial of defendant's motion was proper.

Trial
Defendant argues that he was deprived of his right to confront witnesses against
him when the trial court permitted the jury to hear the contents of the 911 telephone
call from the victim of the robbery to the Crest Hill police dispatcher. Although
defendant claims that his constitutional rights were violated, the substance of his claim
is that the tape recording constituted inadmissible hearsay. The tape can be
summarized as follows. In response to Chaney's phone call regarding the robbery, the
911 operator relays the information to Officer Evanoff. Officer Evanoff advises the
operator that he is on his way to speak to Chaney. Officer Simenson then reports that
a black male in a white car has left the apartment complex and he will stop the car
at Theodore and Burry Circle. After stopping the car, Officer Simenson reports the
license plate of the car, the vehicle identification number, and the name of the driver,
Gregory Shaw. Officer Smith reports that he is on his way to assist Officer Simenson.
Officer Evanoff reports Chaney's description of the robber and states that he is en
route to Theodore and Burry Circle with Chaney. After approximately four minutes
of silence, Officer Evanoff reports that an officer is down and requests an ambulance.
The operator dispatches the Joliet police department for assistance. Officer Smith
requests a second ambulance.
As stated earlier, defendant argues that introduction of the 911 tape constituted
inadmissible hearsay. Hearsay is an out-of-court statement offered to establish the
truth of the matter asserted; hearsay is generally not admissible in evidence. People
v. Rogers, 81 Ill. 2d 571, 577 (1980). However, testimony about an out-of-court
statement which is used for a purpose other than to prove the truth of the matter
asserted in the statement is not "hearsay." People v. Simms, 143 Ill. 2d 154, 173
(1991). For example, a hearsay statement is allowed where it is offered for the limited
purpose of showing the course of a police investigation where such testimony is
necessary to fully explain the State's case to the trier of fact (Simms, 143 Ill. 2d at
174) or to establish the intent or state of mind of the declarant (People v. Newbury,
53 Ill. 2d 228 (1972)). The admissibility of evidence is within the sound discretion
of the trial court, and its ruling will not be reversed unless there has been an abuse
of that discretion. People v. Ward, 101 Ill. 2d 443 (1984).
Here, the trial court found that the tape was relevant to establish that Simenson
was a police officer acting in the course of his official duties. The court also found
that the tape assisted the jury in understanding the parties' conduct and refuted
defendant's claim of self-defense. Therefore, we hold that the tape did not constitute
inadmissible hearsay. Defendant claims, however, that to establish that Simenson was
acting in the course of his duties, the jury would have to accept the truth of the matter
asserted, i.e., statements that decedent was pulling the car over and statements
identifying the decedent as a police officer. We reject defendant's reasoning. The
determination of whether a statement constitutes inadmissible hearsay does not focus
upon the substance of the statement, but rather the purpose for which the statement
is being used.
Furthermore, the record reflects that the trial court specifically instructed the jury
that it was to consider the 911 tape for the limited purpose of understanding the
manner in which the police conducted their investigation; to show the continuity of
the police conduct, the effect of the conversations on the listeners' states of mind and
why the listeners acted as they did; to show the declarants' states of mind and why
the declarants acted as they did; and to show the actual time in which all the events
took place. We must presume, absent a showing to the contrary, that the jury followed
the trial judge's instructions in reaching a verdict. Simms, 143 Ill. 2d at 174.
Defendant also argues that the admission of the tape was prejudicial because it
was used to counter defendant's defenses and inflame the jurors' passions by allowing
them to hear decedent's voice. It is true that the admissibility of evidence may also
depend upon whether the probative value outweighs its prejudicial effect to the
defendant. People v. Monroe, 66 Ill. 2d 317, 323 (1977). However, evidence which
is otherwise relevant will not be excluded merely because it may prejudice the
accused or because it might arouse feelings of horror or indignation in the jury.
People v. Foster, 76 Ill. 2d 365, 375-76 (1979). The effect of prejudicial or
inflammatory evidence depends on the circumstances of the case. People v. Gacy, 103 Ill. 2d 1, 86 (1984). It is the function of the trial judge to weigh the probative value
and potential prejudicial effect of such evidence. People v. Greer, 79 Ill. 2d 103, 117
(1980). The exercise of that discretion will not be interfered with unless there has
been an abuse which prejudices the defendant. People v. Williams, 97 Ill. 2d 252, 291
(1983).
We do not believe that the nature of the tape was highly prejudicial to defendant
in light of the fact that the jury was confronted with defendant's description of the
shooting and the testimony of police officers who witnessed the shooting of Officer
Simenson. Also, the jury heard only the procedures taken in stopping the defendant's
car and not the actual shooting event. In view of this evidence, we cannot say that the
admission of the tape was so prejudicially inflammatory as to deny defendant a fair
trial. The probative value outweighed any inflammatory effect.
Defendant also contends that the use of the 911 tape was not necessary because
other witnesses were capable of explaining the events without the tape. However,
evidence may properly be admitted even if cumulative to oral testimony covering the
same issue. People v. Jurczak, 147 Ill. App. 3d 206, 213 (1986). Accordingly, we hold
that the trial court did not abuse its discretion in allowing the jury to hear the 911
tape.
Defendant further contends that the prosecutor engaged in improper argument
during trial. The prosecution made the following remark in rebuttal during closing
arguments:
"You talk about restraint. These officers exercised the utmost in restraint.
Elton Williams could have had another gun and shot Tom Evanoff right there.
Tom Evanoff gets him handcuffed and again, as I said, he was given
appropriate medical treatment."
Defendant failed to offer a contemporaneous objection to the remark and failed to
raise this issue in his post-trial motion. Therefore, defendant has waived this issue.
See People v. Enoch, 122 Ill. 2d 176, 186 (1988). Further, we do not believe that the
challenged prosecutorial comments rose to the level of plain error. See 134 Ill. 2d R.
615(a). The evidence at trial was not closely balanced where defendant admitted to
shooting Officer Simenson and his claim of self-defense was not supported by the
evidence nor does the alleged error affect substantial rights.
Defendant next contends that he is entitled to a new trial because the jury
convicted him without the benefit of written jury instructions on second degree
murder and self-defense. To decide this issue, a detailed recitation of the jury
instruction procedure followed by the trial court is necessary.
At the conclusion of closing arguments, the trial judge read the prepared jury
instructions to the jury, including the instructions on second degree murder and self-
defense. The jury retired at 5:15 p.m. Shortly thereafter, the parties discovered that
the written second degree murder instruction contained an extra phrase. The trial judge
gave defense counsel the option of whiting out the extra phrase and sending the
instructions back to jury; re-reading the correct instructions; or retyping the instruction
to reflect the correct version. Initially, defense counsel elected to simply "white out"
the extra phrase. However, he later decided to have the instructions retyped and sent
back to the jury without re-reading the instruction to the jury. The trial judge decided
to wait for the second degree murder instruction to be retyped before sending all of
the instructions back to the jury.
At 5:50 p.m., the bailiff delivered all written instructions to the jury. At that same
time, the jury informed the bailiff that they had reached a verdict. However, the jury
did not then return to the courtroom. Instead, at 6:10 p.m., the foreman sent the judge
a note advising him that the jury had inadvertently signed an incorrect verdict form.
The judge then suggested that he: (1) have the jury submit all the verdicts, (2) poll
the jury, and (3) question the foreman regarding the improperly signed verdict. All
parties agreed with the court's suggested approach. At 6:25 p.m., the jury
returned. The foreman handed the judge the voided verdict form and the correctly
signed verdicts. The jury found defendant guilty of first degree (intentional) murder,
and first degree (felony) murder. After they were polled, the jurors left the courtroom.
The judge advised the parties that the jury had voided the "guilty of first degree
(knowing) murder" verdict. Both sides agreed that the jury should be called back and
reinstructed to sign one of three additional verdicts: (1) guilty of first degree
(knowing) murder; (2) not guilty of first degree (knowing) murder; or (3) guilty of
second degree murder. The judge instructed the jury as agreed.
At 6:59 p.m., the jury reported that it had reached its verdict on the third count.
The jury found defendant guilty of first degree (knowing) murder. The trial court
accepted all the verdicts and entered judgment on the intentional murder count, as
well as the armed robbery count to which defendant had already pled guilty.
On the next court date, defendant moved for a mistrial, arguing that the jury
lacked the opportunity to read the second degree or self-defense instructions prior to
reaching its decision. The trial court denied the motion, finding that the jury was
given the instructions at 5:50 p.m., but did not return its verdicts until 6:37 p.m. The
jury was further instructed on the remaining counts and reached a verdict on those
counts sometime after 7 p.m. The judge concluded that the jury had time to read the
instructions before filling out the verdicts and that it, in fact, had to have read them
in order to fill out the verdicts.
The State argues that defendant has waived this issue because defense counsel
agreed to, and, in fact, dictated, the method of jury instruction. We note that defendant
did not make a contemporaneous objection at the time the jury stated it had reached
a verdict without the benefit of the jury instructions. Generally, such inaction
constitutes a waiver of any impropriety regardless of whether the objection was raised
in a post-trial motion. Enoch, 122 Ill. 2d at 186. However, because the alleged error
affects defendant's substantial rights, we will consider it under the plain error
doctrine.
Supreme Court Rule 451(c) provides that "[i]nstructions in criminal cases shall be
tendered, settled, and given in accordance with section 2--1107 of the Code of Civil
Procedure ***." 135 Ill. 2d R. 451(c). Section 2--1107 states:
"(a) The court shall give instructions to the jury only in writing, unless the
parties agree otherwise, and only as to the law of the case. ***
(b) The original written instructions given by the court to the jury shall be
taken by the jury to the jury room, and shall be returned by the jury with its
verdict into court." 735 ILCS 5/2--1107 (West 1992).
The function of the instructions is to convey to the jurors the correct principles of
law applicable to the facts so that they can arrive at a correct conclusion according
to the law and the evidence. People v. Cadwallader, 181 Ill. App. 3d 488, 503 (1989).
It is the trial court's burden to insure the jury is given the essential instructions as to
the elements of the crime charged, the presumption of innocence, and the question of
burden of proof. Cadwallader, 181 Ill. App. 3d at 501. Fundamental fairness requires
the trial court to give correct instructions on the elements of the offense in order to
insure a fair determination of the case by the jury. Failure to so instruct the jury
constitutes plain error. People v. Ogunsola, 87 Ill. 2d 216 (1981).
Defendant argues that because the jury did not initially have the benefit of written
instructions, he was precluded from effectively presenting a lesser offense and his
self-defense claim to the jury. He relies on Cadwallader to support his argument. In
Cadwallader, the jury deliberated without the written instructions for a period of time
after having been inaccurately instructed orally. The oral instructions omitted an
essential element of the offense of theft. After receiving the oral instructions, the jury
was permitted to deliberate without written instructions for 35 minutes out of a total
deliberation time of 72 minutes.
The jury, was, the court stated, erroneously left to its own speculation and
improvisation concerning the elements of the crime charged. Further, there were only
two witnesses who provided evidence of the defendant's guilt; both of these witnesses
had admittedly taken part in the crimes with which the defendant was charged. The
court concluded that in order to weigh fairly the testimony of these two witnesses
against the testimony of the defendant's alibi witnesses, the jury should have had
before it the written accomplice instruction. "On these facts" the court said, "we
consider it plain error for the jury to have also been deprived, for any amount of time,
*** of the crimes charged, the presumption of innocence, and the burden of proof."
Cadwallader, 181 Ill. App. 3d at 503.
The court further noted that there was some indication in the record on appeal that
the jury had concluded that the defendant was guilty before it had examined the
written jury instructions. The court stated:
"Without placing undue emphasis on that fact, we find the other factors,
i.e., improper oral instruction, partial deliberation without written instructions,
and the presentation of a substantial defense, combine to constitute plain error
in the instruction of the jury in this case. Fundamental fairness and the
`interests of justice' require that defendant be awarded a new trial."
Cadwallader, 181 Ill. App. 3d at 503.
We believe that Cadwallader is distinguishable from the instant case in several
important aspects. First, in this case, the oral instructions given were proper. In fact,
the jury was reinstructed on knowing murder and second degree murder. Second,
defendant did not present a substantial defense--the evidence against this defendant
was overwhelming. Third, although the jury stated that it had reached a verdict prior
to receiving the instructions, the jury had the opportunity to deliberate for over one
hour after receiving the instructions. Therefore, we do not believe that any
instructional error was so substantial that it reflected on the fairness of the trial.

Sentencing
Eligibility Phase
Defendant contends that the jury improperly found him eligible for a death
sentence based on the felony murder aggravating factor because the elements
instruction and the verdict form did not include the required culpable mental state. As
the State correctly observes, this issue is waived because defense counsel did not
object to the instruction or verdict form and failed to raise this issue in a post-trial
motion. However, defendant argues that defense counsel's failure to object constituted
ineffective assistance of counsel. This court has held that the doctrine of waiver
should not bar consideration of an issue where the alleged waiver stems from
incompetency of counsel. See People v. Guest, 166 Ill. 2d 381 (1995); People v.
Salazar, 162 Ill. 2d 513 (1994). To prove ineffective assistance of counsel, defendant
must show (1) that his counsel's performance fell below an objective standard of
reasonableness and (2) that counsel's deficient performance resulted in prejudice to
defendant. If defendant fails to make a sufficient showing of either prong, this court
need not consider the remaining prong. Strickland v. Washington, 466 U.S. 668, 697,
80 L. Ed. 2d 674, 699, 104 S. Ct. 2052, 2069 (1984).
Initially, we note that it appears this court has not previously addressed the issue
of whether a defendant is properly found to be eligible for the death penalty, where
the jury instructions as well as the verdict form fail to set forth the requisite mental
state for an aggravating factor. But see People v. Mack, 167 Ill. 2d 525 (1995)
(holding that where the verdict form attempts to set forth a statutory aggravating
factor, the verdict form must include the essential elements of the offense). We need
not resolve that issue here because even if the felony murder aggravating factor is
invalid, defendant's eligibility for the death penalty is not altered.
The jury found defendant eligible for the death penalty based on two separate
statutory aggravating factors: (1) felony murder and (2) murdering a police officer.
See 725 ILCS 5/9--1(b)(1), (b)(6) (West 1992). This court has repeatedly recognized
that the Illinois death penalty statute does not place special emphasis on any one
aggravating factor and does not accord any special significance to multiple
aggravating factors as opposed to a single aggravating factor. People v. Page, 156 Ill. 2d 258, 268-69 (1993); People v. Brown, 169 Ill. 2d 132, 164 (1996); People v. Cole,
172 Ill. 2d 85, 102-03 (1996). There is no claim that the second aggravating factor is
in any way defective. Thus, defendant remains eligible for the death penalty, even if
the felony murder aggravating factor was invalid.
We also disagree with defendant that the invalid aggravating factor requires a new
second stage sentencing hearing. Resentencing is necessary where the sentencing
body, at the second phase of the sentencing hearing, might have considered an
aggravating factor which was not supported by the evidence. See People v. Brownell,
79 Ill. 2d 508 (1980). We find that the jury in the present case could not have
considered matters not supported by the evidence. Assuming arguendo the felony
murder aggravating factor is invalid, the jury was, nevertheless, entitled to consider
defendant's same conduct in making its sentencing determination. See Page, 156 Ill. 2d 258. The elimination of one of the statutory aggravating circumstances does not
reduce that evidence. An error in the instruction or verdict form did not diminish the
weight of the evidence to support the felony murder conviction. See Cole, 172 Ill. 2d
at 103. In view of the circumstances in this case, we hold that defendant was not
prejudiced by defense counsel's failure to object to the flawed instruction and verdict
forms.

Aggravation and Mitigation
Before further addressing the defendant's arguments regarding the second stage
of his sentencing hearing, we note that section 9--1(e) of our death penalty statute
allows the introduction of evidence during the sentencing hearing that would not
ordinarily be admissible during the guilt phase of the trial. 720 ILCS 5/9--1(e) (West
1992). This court has held that a sentencing judge has wide discretion in the sources
and types of evidence used to assist him in determining the kind and extent of
punishment to be imposed within the limits fixed by the law. People v. Eddmonds,
101 Ill. 2d 44, 65 (1984); People v. Adkins, 41 Ill. 2d 297, 300 (1968). The only
requirement for admission is that the evidence be reliable and relevant, as determined
by the court within its sound discretion. People v. Foster, 119 Ill. 2d 69, 96, (1987).
Defendant argues that he is entitled to a new second stage sentencing hearing
because decedent's wife recommended that the death penalty be imposed and
commented upon defendant's courtroom demeanor. Defendant concedes that he has
waived these issues because no contemporaneous objections were made and they were
not included in a post-trial motion. Defendant nevertheless urges that defense
counsel's failure to object either amounted to plain error or constituted ineffective
assistance of counsel. The failure to object to the consideration of allegedly improper
evidence during a sentencing hearing and to raise the issue in a post-sentencing
motion results in a waiver of the issue on appeal unless the error is deemed plain
error. People v. Mahaffey, 166 Ill. 2d 1, 27 (1995).
The record reflects that, in aggravation, the State presented defendant's criminal
record, which included charges of theft and robbery. The State also presented evidence
of defendant's gang activity and testimony of David Ward, who was an inmate with
defendant at Pontiac Correctional Center while defendant awaited trial on the instant
offense. Ward testified that defendant informed him that he and Shaw planned to
commit a robbery and if stopped by the police, defendant would shoot them. Ward
also testified that defendant showed no remorse for the shooting and, in fact, wrote
a song about the shooting. The State also presented the testimony of Officer Love,
who testified that an informant provided information about defendant's role in a
burglary. The informant also stated that defendant had decided that if police tried to
arrest him, he would "shoot it out with them."
In mitigation, defendant presented evidence that he was raised in a poor family
and his father hated him and physically, emotionally, and sexually abused defendant
and his siblings. A mitigation expert and a psychologist testified on defendant's behalf
and opined that defendant's conduct may have been caused by the abuse he suffered
as a child. The evidence also revealed that defendant had worked several jobs,
including one that involved working with severely handicapped persons.
In viewing the record, we do not believe that the evidence in aggravation and
mitigation was so closely balanced as to warrant granting defendant a new second
stage sentencing hearing. However, we must determine whether the alleged error was
so substantial that it denied the defendant a fair proceeding. Mahaffey, 166 Ill. 2d at
27.
In People v. Howard, 147 Ill. 2d 103 (1991), we adopted the United State's
Supreme Court's holding in Payne v. Tennessee, 501 U.S. 808, 115 L. Ed. 2d 720,
111 S. Ct. 2597 (1991), which declared that "a State may properly conclude that for
the jury to assess meaningfully the defendant's moral culpability and blameworthiness,
it should have before it at the sentencing phase evidence of the specific harm caused
by the defendant." Payne, 501 U.S. at 825, 115 L. Ed. 2d at 735, 111 S. Ct. at 2608.
We agreed with the court that such evidence is relevant to a consideration of the
appropriate punishment for a capital defendant. Howard, 147 Ill. 2d at 158. However,
we also held that the opinions of witnesses regarding what sentence should be
imposed are not evidence and therefore are irrelevant and inadmissible. Howard, 147 Ill. 2d at 162; see People v. Williams, 161 Ill. 2d 1, 70 (1994).
Specifically, defendant refers to comments made by decedent's wife, Mrs.
Simenson, regarding the impact her husband's death had upon her and her children:
"My family and I are very confident that all of you will return a quick
verdict which will send a message to my children, society, and the law
enforcement community that we simply will not tolerate or accept our last
means of protection being annihilated on our streets. Renew our faith in the
criminal justice system and bring a phase of closure to this ongoing nightmare
that fills our lives.
* * *
It hurts and upsets my family terribly to know I can never talk to Tim
again and my children will never see their dad again. Elton Williams' attitude
is a slap in the face to not only my family but to those--but to those of police
officers as well."
Defendant argues that Mrs. Simenson's references to a "quick verdict" and "closure"
communicated a desire for the death penalty. He relies on People v. Threadgill, 166
Ill. App. 3d 643 (1988), to support his argument.
In Threadgill, the prosecution made repeated comments to the jurors that their
decision would indicate whether they supported their police officers who were out
protecting them and that their decision would affect what the police felt as far as
support from the jurors. The court held that these comments were highly inflammatory
and prejudiced defendant because they bore no relationship to the evidence and,
instead, diverted the jurors away from the evidence by turning the trial into a test of
the jurors' support for their local police officers. Threadgill, 166 Ill. App. 3d at 651.
We do not regard Mrs. Simenson's comments as recommending the death penalty
to the jury. We do not believe that she recommended that the jury bring "closure" to
defendant's life. Rather, we believe that "closure" and a "quick verdict" referred to her
desire that the jury deliberate in an expedient manner so that she and her family could
move on with their lives. We further do not believe that Mrs. Simenson's remarks
rose to the level of impropriety found in Threadgill. Her request to "send a message
to [her] children, society, and law enforcement community" was directed at the
community at large and not improperly focused upon support of police officers. We
especially do not believe her remarks were intended to inflame the jurors' fears that
a sentence less than death was tantamount to not supporting law enforcement in the
community. Moreover, the trial court instructed the jury that its decision was not to
be swayed by sympathy, passion, or prejudice. Therefore, we find plain error did not
occur; therefore, the issue is waived.
Defendant also argues that Mrs. Simenson improperly commented on defendant's
behavior in the courtroom. Specifically, Mrs. Simenson stated:
"Elton Williams has shown no remorse for taking my husband's life. It has
been very hurtful throughout all the court proceedings of the last fifteen
months to see Elton Williams converse with his wife and child with smiles
and waves. Elton Williams was even bold enough to ask a guard to move
because he was blocking his view to his wife."
Although this remark is irrelevant to the effect that decedent's death has had upon
Mrs. Simenson and her family, we do not believe that defendant was prejudiced by
the remarks. Because the evidence in aggravation and mitigation was not closely
balanced and the errors, if any, are not so substantial that defendant was denied a fair
sentencing hearing, we do not find that plain error applies to this issue. Additionally,
because defendant was not prejudiced, we conclude that defense counsel was not
ineffective. See Strickland v. Washington, 466 U.S. at 697, 80 L. Ed. 2d at 697, 104 S. Ct. at 2067.
Defendant also contends that the State improperly argued during sentencing:.
"In closing, why are we here? How did we get here? We got here by an
example of how the system works. Tom Evanoff and Ralph Smith had another
twelve bullets in their semi-automatic, .40 caliber Glocks. When they saw Tim
Simenson get shot in the face and fall before their very eyes, they could have
pulled those weapons. And you heard the testimony. They can fire two or
three shots a second. They could have opened fire on Elton Williams and cut
him in half. They could have emptied their revolvers in three to four seconds
and cut him in half, and we wouldn't be here."
Defendant contends this comment diminished the jury's sense of responsibility in
violation of Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633
(1985). However, this issue is also waived because defendant failed to object and did
not raise this issue in his post-trial motion. Enoch, 122 Ill. 2d at 186. We also do not
believe that the plain error doctrine applies to this issue. See 134 Ill. 2d R. 615(a).
The evidence at the second stage of defendant's sentencing hearing was also not
closely balanced where the State's evidence in aggravation heavily outweighed
defendant's mitigation evidence.
Furthermore, we do not believe that the alleged error was so substantial that it
deprived defendant of a fair sentencing hearing. The prosecutor's closing argument
at sentencing emphasized the testimony of the witnesses and reviewed the aggravating
factors and mitigating evidence. The prosecutor also asked the jury to sign the verdict
form that indicated there were insufficient mitigating factors to preclude the
imposition of the death penalty. Further, during closing arguments, the trial judge
carefully instructed the jury regarding its responsibilities. Moreover, the verdict forms
properly stated that it was the jury that must decide the question of whether the death
sentence should be imposed.
Defendant also contends that the trial court erred in allowing the State to introduce
his voluntary statement into evidence at the second stage sentencing hearing.
Defendant argues that because the police did not advise him of his Miranda rights,
admittance of the statement violated his fundamental right against self-incrimination.
We disagree.
Any statement which is volunteered is not necessarily barred by the fifth
amendment and can be admitted at trial. Miranda v. Arizona, 384 U.S. 436, 478, 16 L. Ed. 2d 694, 726, 86 S. Ct. 1602, 1630 (1966). In Harris v. New York, 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971), the Supreme Court held that even
statements which were obtained in violation of Miranda could be used for
impeachment purposes if the defendant took the stand and testified in a manner
contrary to his earlier statements. The court held that this procedure would not
undermine the deterrent effect of the exclusionary rule and determined that sufficient
deterrence flows when the evidence in question is made unavailable to the prosecution
in its case in chief. Harris, 401 U.S. at 225, 28 L. Ed. 2d at 4, 91 S. Ct. at 645.
In the instant case, defendant testified at trial that he shot Officer Simenson in
self-defense. However, paramedic Shear testified during the second stage of the
sentencing hearing that defendant stated that he shot Officer Simenson because he did
not want to go back to jail. Therefore, the State properly used defendant's voluntary
statement to impeach defendant's testimony.
We believe that defendant's reliance on Estelle v. Smith, 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 1866 (1981), and People v. Szabo, 94 Ill. 2d 327 (1983), is
misplaced. In Estelle, the Supreme Court held that testimony given at the death
penalty hearing regarding defendant's pretrial fitness examination violated the
defendant's rights under the fifth amendment. The defendant was given no indication
that the compulsory examination would be used to gather evidence necessary to
sentence him to death. The Court stated that the fifth amendment required that the
defendant be informed of his right to remain silent and be advised of the possible use
of his statements. Because the defendant was afforded no such warnings, the Court
concluded that his death sentence could not stand. Estelle, 451 U.S. at 469, 68 L. Ed. 2d at 373, 101 S. Ct. at 1876.
In Szabo, this court vacated defendant's death sentence because the State cross-
examined the defendant regarding his post-arrest silence. This court held that a
prosecutor's remarks on the defendant's silence following his arrest cannot be used
to impeach exculpatory testimony of a defendant at trial or sentencing. Szabo, 94 Ill. 2d at 360.
In the instant case, defendant's statement was neither court ordered nor obtained
for the specific purpose of determining his eligibility for death. Furthermore, unlike
the defendant in Szabo, the defendant in the present case chose not to remain silent.
Thus, the State did not comment upon a "post-arrest silence," but upon a prior
inconsistent voluntary statement.
Defendant also claims that the State improperly used his voluntary statement to
impeach the defendants' expert witness on cross-examination. In general, any
permissible kind of impeaching matters may be developed on cross-examination since
one of the purposes of cross-examination is to test the credibility of witnesses.
Counsel may also probe the witness' qualifications, experience and sincerity,
weaknesses in his basis, the sufficiency of his assumptions, and the soundness of his
opinion. Counsel is also permitted to test the knowledge and fairness of the expert by
inquiring into what changes of conditions would affect his opinion, and in conducting
such an inquiry, the cross-examiner is not limited to facts finding support in the
record. Likewise, an expert may be cross-examined for the purpose of explaining,
modifying, or discrediting his testimony, as well as to ascertain what factors were
taken into account and what ones were disregarded in arriving at this conclusions.
People v. Page, 156 Ill. 2d 258, 275 (1993), quoting People v. Pasch, 152 Ill. 2d 133,
179 (1992).
At the sentencing hearing in the instant case, defendant's expert witness, Dr.
Brown, testified that as a result of sexual, physical, and emotional abuse at the hands
of his father, defendant was unusually fearful and mistrustful and prone to overreact
in stressful situations. Dr. Brown concluded that defendant's experiences made
defendant extremely sensitive about being victimized, and prompted the belief that he
needed to shoot the decedent to protect himself. On cross-examination, Dr. Brown
testified that he could not recall whether defendant informed him that he shot Officer
Simenson because he did not want to go to prison. Dr. Brown stated that the
statement would be extremely significant to the validity of his conclusion that
defendant had acted out of fear because it revealed another motive for the crime. We
believe that the prosecution's cross-examination of Dr. Brown, which questioned the
soundness of his opinion and tested the knowledge and fairness of his opinion, was
within the proper scope of cross-examination.
Defendant also argues that the State improperly used defendant's voluntary
statement during rebuttal to denigrate the mitigation evidence. Generally, prosecutors
are permitted wide latitude in their closing arguments, although their comments must
be based on the facts in evidence or upon reasonable inferences drawn therefrom.
Page, 156 Ill. 2d at 276.
During rebuttal, the State commented:
"Now I asked him [Dr. Brown] specifically, if Elton Williams lied to you
about how everything went down in the trunk of that car and how the officer
was killed, would all your theories go out the window? He said yes. Well,
what do we know? Elton Williams did lie to him about what happened in the
trunk of the car, so therefore Dr. Brown's opinions as to whether this abuse
that he suffered until the age of nine had any effect would go out the
window."
We believe that the prosecutor's comment was proper commentary on defendant's
self-defense theory. Furthermore, the trial court instructed the jurors that closing
arguments are not to be considered as evidence. Therefore, where defendant has not
shown that the remarks of the prosecutor were so prejudicial and improper that they
could not be cured by an admonition to the jury, no grounds exist upon which to
vacate his sentence. See People v. Fields, 135 Ill. 2d 18, 64 (1990).
Lastly, defendant argues that he was denied a fair sentencing hearing because the
trial court allowed into evidence unreliable testimony of a police officer that the State
called in aggravation during the second phase of the sentencing hearing. Defendant
maintains that the witness' testimony was unreliable and deprived him of his eighth
and fourteenth amendment right to a fair and accurate capital sentencing hearing.
Specifically, defendant's contention concerns the testimony of Officer Love.
Officer Love testified that an informant, Tony Saxon, told him that an individual by
the name of "Scoots" had possession of a .25-caliber weapon which was stolen during
a burglary. Officer Love also testified that "Scoots" told Saxon that he ("Scoots")
would "shoot it out" with any police officer that tried to arrest him. Officer Love later
determined that "Scoots" was defendant. He attempted to locate defendant to question
him about the burglary, but he was unable to contact him. Although defendant was
a suspect in the burglary, Officer Love testified that he was unable to "make a case."
The gun was never recovered.
Defendant argues that the officer's testimony constituted unreliable, uncorroborated
double hearsay. It is well settled that hearsay testimony is not per se inadmissible at
a sentencing hearing as unreliable or as denying a defendant's right to confront
accusers. The objection goes to the weight of the evidence and not its admissibility.
People v. Foster, 119 Ill. 2d at 98. Also, this court observed in People v. Jones, 94 Ill. 2d 275, 286-87 (1982), that "a defendant in a capital case has no due process right
to cross-examine all out-of-court sources of information relied upon in sentencing."
This court has recognized, however, that where this court has approved the admission
of double hearsay, at least some parts of the double hearsay have been corroborated
by other evidence. People v. Erickson, 117 Ill. 2d 271, 300 (1987). Hearsay evidence
of crimes that did not result in prosection or conviction is therefore admissible at the
aggravation and mitigation phase if it meets the requirements of relevancy and
reliability. People v. Young, 128 Ill. 2d 1, 54 (1989).
Defendant argues that the officer's testimony was too unreliable to be admitted
because Saxon was a suspect in the crime in which he implicated defendant. It is true
that the United States Supreme Court has labeled "presumptively unreliable"
accomplices' confessions that incriminate a defendant. Lee v. Illinois, 476 U.S. 530,
541, 90 L. Ed. 2d 514, 526, 106 S. Ct. 2056, 2062 (1986). Although the Court made
this statement in reference to testimony used for determining guilt rather than for
sentencing, the Court's statement was "premised on the basic understanding that when
one person accuses another of a crime under circumstances in which the declarant
stands to gain by inculpating another, the accusation is presumptively suspect." Lee,
476 U.S. at 541, 90 L. Ed. 2d at 526, 106 S. Ct. at 2062.
Notwithstanding the indicia that Saxon's statement was not reliable, we believe
there are sufficient indicia of reliability to overcome the presumption of unreliability
and justify its admission. In particular, we note that the officer compiled the
information during an official investigation. See Foster, 119 Ill. 2d at 99. Saxon
identified defendant as "Scoots." The officer corroborated that "Scoots" was in fact
defendant, located defendant's residence and talked to defendant's mother, who
verified defendant's alias as "Scoots." Also, defendant conceded that "Scoots" is his
name. Assuming arguendo the trial court erred in admitting the testimony, we believe
that the error is harmless because the evidence in aggravation was so overwhelming
that the error would not have impacted the jury's decision.

Constitutionality of Statute
In his final two arguments, defendant challenges the Illinois death penalty statute
(720 ILCS 5/9--1 (West 1992)), arguing that it places a burden of proof on the
defendant which precludes meaningful consideration of mitigation and allows the
sentencer to weigh a vague aggravating factor: "any other reason" a defendant should
be sentenced to death.
This court has previously rejected defendant's argument that the sentencing
provision unconstitutionally places on the defendant the burden of persuasion on the
question whether sufficient mitigating circumstances exist to preclude imposition of
the death penalty. People v. Whitehead, 116 Ill. 2d 425, 465 (1987); People v.
Caballero, 102 Ill. 2d 23, 49 (1984). We decline to consider this argument anew. We
also reject defendant's argument that the language set forth in the statute contains a
vague aggravating factor for the sentencer to consider. Rather, we find that the statute
sets forth specific aggravating factors for consideration of imposing the death penalty.
See 720 ILCS 5/9--1(b) (West 1992). Although aggravating factors need not be
limited to those factors set forth in subsection (b) (see 720 ILCS 5/9--1(c) (West
1992)), the sentencer is limited to consideration of matters introduced in evidence
before it. People v. Phillips, 127 Ill. 2d 499, 537 (1989). Therefore, we conclude that
the death penalty statute is not unconstitutional in this regard.
Defendant also contends that while various aspects of the statute have been found
constitutional individually, the cumulative effect of all the aspects is to render the
statute unconstitutionally arbitrary and capricious. This argument has been considered
and rejected by this court on several occasions and defendant presents nothing new
here to persuade us to reconsider. People v. Edgeston, 157 Ill. 2d 201, 247 (1993).

CONCLUSION
For the reasons stated, the judgment of the circuit court of Will County is
affirmed. We direct the clerk of this court to enter an order setting Tuesday, May 19,
1998, as the date on which the sentence of death, entered by the circuit court of Will
County, shall be carried out. The defendant shall be executed in the manner provided
by law. 725 ILCS 5/119--5 (West 1994). The clerk of this court shall send a certified
copy of the mandate to the Director of Corrections, the warden of Stateville
Correctional Center and to the warden of the institution where the defendant is now
confined.

Affirmed.




Modified Upon Denial of Rehearing

Defendant argues in his petition for rehearing that this court failed to address his
claim that James v. Illinois, 493 U.S. 307, 107 L. Ed. 2d 676, 110 S. Ct. 648 (1990),
prohibits the impeachment of a defense expert witness with a statement made by the
defendant in violation of Miranda. Defendant specifically refers to the testimony
elicited from his expert witness, Dr. Brown. On cross-examination, Dr. Brown
testified that he could not recall whether defendant informed him that he shot Officer
Simenson because he did not want to go to prison. Dr. Brown further testified that the
statement would be extremely significant to the validity of his conclusion that
defendant had acted out of fear because it revealed another motive for the crime
Although we did not state it in the opinion, James is inapplicable to the facts in
this case. The testimony elicited from Dr. Brown during cross-examination was used
not to impeach the expert, but rather to test the soundness and fairness of the expert's
opinion regarding defendant's state of mind at the time of the shooting. This type of
questioning is within the proper scope of cross-examination. See People v. Page, 156 Ill. 2d 258, 275 (1993), quoting People v. Pasch, 152 Ill. 2d 133, 179 (1992).
Furthermore, even if the cross-examination was improper, section 9--1(e) of our death
penalty statute allows the introduction of evidence during the sentencing hearing that
would not ordinarily be admissible during the guilt phase of the trial, as long as the
evidence is reliable and relevant. See 720 ILCS 5/9--1(e) (West 1992). We believe the
statement elicited from Dr. Brown was reliable and, as we stated earlier, relevant to
defendant's state of mind at the time of the shooting.