People v. Cloutier
Annotate this Case
People v. Cloutier, No. 79309 (9/18/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion to
request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The official copy of the following opinion
will be published by the Supreme Court's Reporter of Decisions in the Official Reports advance
sheets following final action by the Court.
Docket No. 79309--Agenda 3--January 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBERT CLOUTIER,
Appellant.
Opinion filed September 18, 1997.
JUSTICE NICKELS delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, defendant, Robert Cloutier, was
found guilty of the first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9--1(a)) and aggravated
criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12--14(a)(4)) of Alice Cogler on January
28, 1990. Thereafter, a capital sentencing hearing was held before the jury, and defendant was
sentenced to death. On appeal, this court affirmed defendant's convictions, but vacated his death
sentence because the trial court improperly failed to "reverse-Witherspoon," or "life-qualify," the
jurors in accordance with Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222
(1992). People v. Cloutier, 156 Ill. 2d 483 (1993). We remanded the cause for a new sentencing
hearing. On remand, a bifurcated capital sentencing hearing was held before a jury, which
determined that defendant was eligible for the death penalty and that there were no mitigating
factors sufficient to preclude imposition of the death sentence. The trial court sentenced defendant
to death in accordance with the jury's verdict, and this appeal followed.
BACKGROUND
The factual background of guilt phase in this case is set forth in our earlier opinion
(People v. Cloutier, 156 Ill. 2d 483 (1993)) and will not be repeated in detail here. Defendant
was arrested on February 1, 1990, after he was identified as the perpetrator of attacks on two
women, Susan Bradford and Elizabeth Halili. Also, the victim in this case, Alice Cogler, had last
been seen with defendant, and defendant was suspected of involvement in the disappearance of
a fourth woman, Cynthia Cooney. Following his arrest, defendant admitted to police that he had
killed both Cogler and Cooney, and he disclosed where their bodies could be found. Defendant
gave detailed statements about the killings in the presence of a court reporter, and the statements
were read to the jury at the eligibility stage of defendant's sentencing hearing.
According to defendant's statement, he visited a tavern called the Huggery on the evening
of January 27, 1990. At about 9 p.m. defendant left the tavern, accompanied by Alice Cogler.
Defendant related that Cogler performed oral sex on him, and they later returned to the Huggery,
where they remained until closing time. They then proceeded in Cogler's car to the vicinity of
the Rose Meat Packing Company in Chicago, where they engaged in consensual vaginal and anal
sex in the backseat of the car. After having sex, defendant and Cogler held each other for a few
minutes. Defendant then began choking Cogler with his hands. After determining that Cogler still
had a heartbeat, defendant wrapped a fan belt that he found in the car around Cogler's throat.
Defendant squeezed the fan belt until Cogler's lips were blue and he could no longer detect a
heartbeat. Defendant then covered the body with some clothing and left it on the backseat.
Defendant eventually transferred the body to the trunk of the car, which he then abandoned.
Defendant told the authorities that he met Cynthia Cooney on the evening of January 29,
1990, at a tavern called Panama Sid's. They left together at 12:30 or 1 a.m. and drove in
Cooney's car to Summit, Illinois, where they engaged in vaginal and oral sex. Defendant stated
that he and Cooney then held each other for a while, and defendant started to choke Cooney with
his hands. When defendant believed that Cooney was dead, he drove to Willow Springs, and
disposed of Cooney's body in the Des Plaines River.
The State presented evidence that defendant had previously been found guilty by a jury
of first degree murder and aggravated criminal sexual assault with respect to Cogler, and that
defendant had pleaded guilty to the same charges in connection with Cooney's death. During the
eligibility stage, the State also presented the testimony of Chicago police detective William Drish
regarding conversations with Susan Bradford and Elizabeth Halili, who reported being attacked
by defendant. Defendant objected that the proffered testimony was inadmissible hearsay, but the
trial court overruled the objection.
According to Detective Drish's testimony, Susan Bradford recounted that on the morning
of January 28, 1990, she met an individual with long blond hair named Bob at a lounge, and they
later proceeded to a house where a group of people were gathered. Bob offered Bradford a ride
home, and during the drive, he began to struggle with her. Bradford's clothes were torn and Bob
grabbed her breasts. At one point, Bob grabbed Bradford by the hair and turned her head toward
the backseat of the car, where she saw the body of a white female. Bradford was able to escape
from the car, and after she started screaming, Bob drove away. The incident described by
Bradford would have occurred about 2« hours after the time of Alice Cogler's murder.
Elizabeth Halili reported to Detective Drish that on the morning of January 28, she was
working as a clerk at a gas station when she encountered a man with long blond hair worn in a
ponytail. The man announced a robbery, and forced Halili into a brown Oldsmobile. (According
to Detective Drish, Susan Bradford had provided a similar description of the vehicle driven by
her assailant.) After forcing Halili into the Oldsmobile, the man ordered her to remove her
clothes, and also tore at parts of her clothing. Like Bradford, Halili told Detective Drish that her
attacker grabbed her hair and turned her head toward the backseat, where she observed the body
of a white female. Halili was able to escape from the vehicle, and her attacker drove off.
Based on this evidence, the jury unanimously determined that defendant was eligible for
the death penalty for the murder of Alice Cogler based on two separate statutory aggravating
factors: (1) the murder occurred during the course of another felony (Ill. Rev. Stat. 1989, ch. 38,
par. 9--1(b)(6)); and (2) defendant had been convicted of murdering two or more individuals (Ill.
Rev. Stat. 1989, ch. 38, par. 9--1(b)(3)). Thereafter, the jury heard evidence of aggravating and
mitigating factors. Susan Bradford and Elizabeth Halili testified in person regarding the attacks
by defendant that Detective Drish had described during the eligibility stage. Another woman,
Marie Goodman, testified that defendant attacked her during the same time frame. Goodman
testified that she had made defendant's acquaintance in September 1989. About 7 a.m. on January
28, 1990, defendant arrived, uninvited, at Goodman's home, with visible scratch marks on his
chin, neck and wrist. Defendant claimed he had been in a fight, and he departed from Goodman's
apartment after a few minutes. Defendant returned at around 10:30 a.m. and took Goodman and
her young son out for breakfast. After they returned from breakfast, defendant attacked Goodman.
He placed his thumb at the base of her throat so that she was barely able to breathe. Defendant
physically placed Goodman's hand on his penis and tore her shirt open. When Goodman's son
came into the room, defendant left.
A number of witnesses for the State provided accounts of several robberies committed by
defendant in 1983. Defendant targeted convenience stores, gas stations and liquor stores. In
October 1983, while driving a stolen vehicle, defendant led Chicago police on a high-speed chase
that ended when defendant collided with a police vehicle. It was stipulated that defendant entered
the Department of Corrections in 1983 to serve four 12-year sentences for armed robbery and a
three-year sentence for theft. All sentences were to be served concurrently. It was further
stipulated that defendant was "paroled" in September 1989. (In fact, defendant was not paroled,
but was released as a result of the accumulation day-for-day good-conduct credits under section
3--6--3(a)(2) of the Unified Code of Corrections (730 ILCS 5/3--6--3(a)(2) (West 1994)).)
Springfield police officer Robert Crouch testified that on the morning of October 28,
1989, he observed defendant striking a woman in the head and face with a large chain. The
woman told Officer Crouch that defendant was her boyfriend. He had become angry with her,
dragged her down the street with the chain around her neck, and then began beating her with the
chain. It was stipulated that defendant thereafter returned to prison because of a violation of the
terms of his "parole," and was again released from custody in late December 1989. After his
release, defendant engaged in an extensive spree of armed robberies in January 1990 before being
arrested for the murders of Alice Cogler and Cynthia Cooney.
It was stipulated that during his incarceration from 1983 to 1989, defendant received a
total of 52 disciplinary tickets from Department of Corrections personnel. Defendant also received
five disciplinary tickets between August 1991 and January 1995 during his incarceration in the
Department of Corrections following his convictions for the murders of Alice Cogler and Cynthia
Cooney. Timothy Pruett, a correctional officer, testified that on July 17, 1994, defendant threw
a pitcher of scalding water at him at the Pontiac Correctional Center. Officer Pruett suffered
minor burns to his neck and back.
As evidence in mitigation, defendant presented the testimony of Lawrence Heinrich, a
clinical psychologist. Based on psychological testing, interviews with defendant and review of
documents relating to defendant's criminal history and personal background, Dr. Heinrich
concluded that defendant suffered from antisocial personality disorder and mixed substance abuse
disorder. Defendant also showed some traits of narcissistic personality disorder. Antisocial
personality disorder is characterized by defects in interpersonal relationships and a lack of
conscience and social sensitivity, and is commonly associated with criminal or delinquent
behavior. Mixed substance abuse disorder involves the abuse of a variety drugs and alcohol in
such a manner that the toxic effects of the substances tend to aggravate each other. Narcissistic
personality disorder is characterized by self-centeredness, grandiosity in pleasure-seeking
endeavors and a lack of empathy.
In connection with his evaluation, Dr. Heinrich reviewed a biographical sketch of
defendant prepared by defendant's mother. The biography indicated that defendant was raised by
his mother along with his four sisters. Defendant never fit in or felt connected with the rest of
the family. Defendant's problems became worse when he suffered a serious eye injury as a child.
He was abusing drugs and alcohol by the time he was in high school. During his teen years,
defendant spent time in a youth home or detention center. At one point while defendant was in
the facility, his family moved without telling him where they could be found.
Dr. Heinrich observed that a police bulletin issued in connection with efforts to arrest
defendant identified him as a heavy user of cocaine and other drugs. Dr. Heinrich further noted
that defendant had been ordered to participate in an alcohol abuse program as a condition of his
supervised release from prison. Dr. Heinrich noted that persons suffering personality disorders
often use drugs and alcohol for purposes of self-medication to soothe the unpleasant feelings
associated with their disorders. Dr. Heinrich believed that drugs and alcohol influenced
defendant's behavior and impaired his judgment during the series of fatal and nonfatal attacks
on women on January 28 and January 29, 1990.
Alvin Hill, coordinator of the Cook County Public Defender's Sentencing Advocacy
Program, also testified on defendant's behalf, elaborating on the biographical information
supplied in written form by defendant's mother. Defendant's mother indicated that defendant's
life changed drastically when he was 13 years of age: he no longer took pride in himself, started
to cruelly tease his sisters, and substantially withdrew from family life. Defendant also
experienced problems with truancy and stole money from the family. Defendant's mother noted
that when the family moved while defendant was in the youth home, they left no forwarding
address and changed their telephone number. According to defendant's mother, they "left no
trace."
Hill also testified about conversations with defendant. Defendant expressed his love for
and loyalty to his family, but maintained that his family did not understand him. Defendant was
adamant that his family not be asked to testify on his behalf. Defendant related that he began
using alcohol at about the age of 10 and street drugs at the age of 13. Defendant indicated that
he was "drugging" at the time of the murder of Alice Cogler. Defendant expressed remorse for
his crimes and the suffering inflicted on the families of the victims and on his own family.
Defendant had received a general equivalency degree while incarcerated, and felt that he could
help younger inmates.
Having heard the foregoing evidence, the jury returned a verdict finding that there were
no mitigating factors sufficient to preclude imposition of the death sentence.
ANALYSIS
I. Eligibility Stage
A. Hearsay Evidence
Defendant contends that the trial court erred at the eligibility stage of sentencing by
allowing Detective Drish to testify about conversations with Susan Bradford and Elizabeth Halili
in which they described how they were attacked by defendant. Defendant argues that the evidence
was both irrelevant and inadmissible under the hearsay rule. In defendant's original appeal, we
held that testimony by Bradford, Halili and other victims who survived attacks by defendant was
admissible to establish that defendant's sexual conduct with Alice Cogler was achieved by the
use of force. Cloutier, 156 Ill. 2d at 505-06. Similarly, Detective Drish's testimony was relevant
at the eligibility stage of sentencing to establish the statutory aggravating factor that Cogler was
murdered during the course of another felony: aggravated criminal sexual assault. We agree with
defendant, however, that notwithstanding the relevance of the subject matter of Detective Drish's
testimony, the testimony was inadmissible hearsay.
Hearsay evidence is an out-of-court statement offered to prove the truth of the matter
asserted, and is generally inadmissible unless it falls within a recognized exception. People v.
Lawler, 142 Ill. 2d 548, 557 (1991). Without citation of authority, the State argues that Detective
Drish's account of conversations with Bradford and Halili was admissible under the state of mind
exception to the hearsay rule. The State argues that the evidence that defendant displayed the
victim's body to Bradford and Halili in an effort to force them to "submit to his wishes." This,
according to the State, shows that in killing the victim defendant acted with the culpable mental
state necessary under Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368
(1982), before capital punishment may constitutionally be imposed. The State contends that the
out-of-court statements were not offered to prove the truth of the matter asserted.
The State's argument is unpersuasive. Unless the out-of-court statements by Bradford and
Halili were true, they could have no bearing on defendant's mental state. The State's effort to
shed light on defendant's mental state necessarily depended on the truth of the matter asserted.
The State misunderstands the state of mind exception to the hearsay rule. Under that exception,
an out-of-court statement of a declarant is admissible when that statement tends to show the
declarant's state of mind at the time of the utterance. Lawler, 142 Ill. 2d at 558. In order to be
admissible, the declarant's state of mind must be relevant to a material issue in the case. People
v. Nyberg, 275 Ill. App. 3d 570, 580 (1995). In this case, defendant was not the declarant: the
declarants were Bradford and Halili. Their state of mind when they spoke with Detective Drish
has no bearing on defendant's state of mind when he killed the victim. Because the State relies
exclusively on the state of mind exception, we need not consider whether any other exceptions
to the hearsay rule might apply to this case.
Although Detective Drish's testimony regarding out-of-court statements by Bradford and
Halili was inadmissible hearsay, the error in admitting this testimony does not require reversal
of defendant's death sentence. Defendant argues that the evidence may have contributed to the
jury's determination that defendant was eligible for the death penalty on the basis that he
murdered Alice Cogler during the course of another felony: aggravated criminal sexual assault.
Defendant notes that the victim showed no signs of vaginal trauma, and cocaine was detected in
the victim's blood. According to defendant, this evidence is consistent with his account of the
crime, in which he maintained that he engaged in consensual sex with the victim prior to the
murder. Defendant argues that but for the improperly admitted evidence of his attacks on
Bradford and Halili, the jury might have returned a verdict in his favor on the felony-murder
aggravating factor.
Be that as it may, based on careful review of the record we conclude that the improperly
admitted hearsay could have had no effect on jury's separate verdict on the multiple-murder
aggravating factor set forth in section 9--1(b)(3) of the Criminal Code of 1961 (Ill. Rev. Stat.
1989, ch. 38, par. 9--1(b)(3)). In determining whether a defendant is eligible for the death penalty
under section 9--1(b)(3), the sentencing jury must consider whether the defendant was convicted
of murdering two or more individuals and whether the deaths were the result of either an intent
to kill more than one person or of separate acts that the defendant knew would cause death or
create a strong probability of death or great bodily harm to the victim. People v. Hooper, 172 Ill. 2d 64, 73 (1996). In the present case, overwhelming evidence was presented establishing
defendant's eligibility for the death penalty under the multiple-murder factor. The State
introduced certified copies of defendant's convictions of the murders of Alice Cogler and Cynthia
Cooney, and defendant's own statements detailing the deliberate manner in which he killed the
two women establish that he acted with the requisite mental state under section 9--1(b)(3).
This court has held that the Illinois death penalty statute does not place special emphasis
on any aggravating factor and does not accord added significance to multiple aggravating factors
as opposed to a single factor. People v. Brown, 169 Ill. 2d 132, 164 (1996). Once one statutory
aggravating factor has been found, the defendant is eligible for the death penalty, regardless of
whether other factors have been proved as well. Brown, 169 Ill. 2d at 165. Thus, where a
defendant is found eligible for the death penalty based upon two or more statutory aggravating
factors, the fact that one of those factors may later be invalidated will not generally impair the
eligibility finding as long as a separate, valid aggravating factor supported eligibility. People v.
Cole, 172 Ill. 2d 85, 102-03 (1996); People v. Bounds, 171 Ill. 2d 1, 69 (1995); Brown, 169 Ill. 2d at 165; People v. Page, 156 Ill. 2d 258, 268 (1993), citing Zant v. Stephens, 462 U.S. 862,
880-90, 77 L. Ed. 2d 235, 252-58, 103 S. Ct. 2733, 2744-50 (1983); see also People v. Todd, 154 Ill. 2d 57, 75 (1992). In the case at bar, the jury's verdict on the multiple-murder factor
independently established defendant's eligibility for the death penalty regardless of the validity
of the verdict on the felony-murder factor. See Todd, 154 Ill. 2d at 75.
We further emphasize that the improper hearsay evidence did not taint the jury's ultimate
determination, based on evidence in aggravation and mitigation, that defendant should be
sentenced to death. See Tuggle v. Netherland, 516 U.S. ___, ___, 133 L. Ed. 2d 251, 256, 116 S. Ct. 283, 285 (1995) (although error under Ake v. Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985), affected only one of two statutory aggravating circumstances making
defendant eligible for the death penalty, error may also have affected the jury's ultimate decision,
based on all the evidence before it, to sentence defendant to death rather than life imprisonment).
As indicated, Detective Drish's testimony regarding the attacks on Bradford and Halili should not
have been admitted during the eligibility stage of the sentencing proceedings. However, the
testimony could properly be considered by the jury for purposes of its determination whether
there were any mitigating factors sufficient to preclude the imposition of the death penalty.
Ordinary rules of evidence are relaxed at the aggravation/mitigation stage of sentencing. The only
requirements for admissibility are that the evidence be reliable and relevant. People v. Hudson,
157 Ill. 2d 401, 449 (1993). This is so because in determining the appropriate sentence, the
sentencing authority must possess the fullest information possible concerning the defendant's life,
character, criminal record and circumstances of the particular offense. Hudson, 157 Ill. 2d at 450.
Hearsay evidence of other crimes which did not result in prosecution or conviction is therefore
admissible at the aggravation/mitigation stage if it meets the requirements of reliability and
relevance. Hudson, 157 Ill. 2d at 450. Detective Drish's hearsay testimony regarding defendant's
attacks against Bradford and Halili was relevant to the jury's sentencing decision, and it was
reliable because it was corroborated by testimony of the victims themselves. Accordingly, the
admission of Detective Drish's hearsay testimony during the eligibility stage of sentencing was
harmless error.
B. Improper Closing Argument
Defendant argues that he was denied a fair hearing on his eligibility for the death penalty
because during closing argument the prosecution improperly suggested that additional evidence
of defendant's eligibility existed which could not be introduced at the eligibility stage.
Defendant's argument is based on the following portion of the proceedings occurring near the
end of the State's closing argument:
"MR. BYRNE [Assistant State's Attorney]: Many of you might be
wondering, so what's next? Remember, here at the eligibility stage, we're only
able to present a limited amount of evidence on the murders and the rape, not the
entire case.
And remember your oaths, at this point. Follow the law. Read the
instructions. It's crystal clear what happened here, and it's crystal clear what he's
been convicted of and it's crystal clear he's eligible for the death penalty.
For those of you who have some lingering, unanswered questions in your
mind as to certain facts, that's for a later time.
MS. PLACEK [defense attorney]: Objection.
MR. RICHARDS [defense attorney]: Objection.
THE COURT: Sustained. Proceed.
MR. BYRNE: At the next phase, ladies and gentlemen, in aggravation and
mitigation, both sides will have an opportunity to present additional evidence.
MR. RICHARDS: Objection, not relevant.
THE COURT: Sustained. Proceed.
MR. BYRNE: Only after the second phase is concluded, the phase of
aggravation and mitigation, will we return to you and ask you to decide on the
sentence in this case.
For now, we ask you to follow your oaths, look at the evidence that we've
presented. Look at the instructions of law. Return both verdicts of eligibility on
both statutory aggravating factors. Thank you."
Contrary to defendant's argument, these remarks did not insinuate that evidence bearing
on defendant's eligibility for the death penalty had been withheld. Instead, when the remarks are
considered in their entirety, it is apparent that the prosecutor was simply reiterating that if the
jurors found defendant eligible for the death penalty, their ultimate decision whether to impose
the death penalty would not be based solely on the eligibility stage evidence: a broader range of
evidence in aggravation and mitigation would be available for their consideration. With respect
to the eligibility stage decision, the prosecutor specifically advised the jurors to confine their
deliberations to the evidence introduced at that stage of the proceedings: "For now, we ask you
to follow your oaths, look at the evidence that we've presented." (Emphasis added.) The jurors
were also properly instructed by the trial court "to determine the facts and to determine them only
from the evidence." (Emphasis added.) Considering the prosecutor's remarks as a whole, together
with the instruction from the court, we conclude that the remarks were not prejudicial.
II. Aggravation/Mitigation Stage
A. Jury Misconduct
During the course of the State's presentation of evidence in aggravation, the foreman of
the jury delivered a note to the trial judge asking, "Can we have a list of the events in
chronological order from the release of [defendant] from prison in [September] of 1989 to his
capture on [February] 1, 1990 when we start deliberation?" Based on this note defendant surmises
that, in defiance of instructions from the court, the jury improperly discussed the case before
being instructed to begin its deliberations. Defendant argues that this misconduct deprived him
of a fair sentencing hearing. We disagree.
For purposes of our analysis, the following cogent summary of general principles is
instructive:
"As a rule, it is improper for jurors to discuss among themselves the case
or any subject connected with the trial until all of the evidence has been presented
and the case has been submitted to them after final instructions by the trial court.
By permitting the jurors to discuss the case among themselves *** the trial court
authorizes and encourages them to give premature consideration to the evidence
presented--consideration unaided by the final instructions of the trial court as to
the law to be applied to the facts in the case. Furthermore, it is human nature that
an individual, having expressed his or her views of the guilt or innocence of a
defendant, would be inclined thereafter to give special attention to testimony
which strengthened or confirmed the views already expressed to other jurors.
Even so, under certain circumstances discussions of evidence among jurors
before the final submission of a criminal case have been deemed not to have been
improper, or as not having resulted in prejudicial error where, for instance, a
review of the jurors' responses to questions of the trial court indicated that the
jurors' impartiality had not been affected by their discussions among themselves
of certain exhibits prior to deliberations. Even assuming that discussion by jurors
of a case during recesses in the proceedings constitutes juror misconduct, the test
for reversibility is whether the misconduct has prejudiced the defendant to the
extent that he has been denied a fair trial. The important question in this regard
is not whether the jurors kept silent with each other about the case, but whether
each juror kept an open mind until the case was submitted to them." 75B Am. Jur.
2d Trial sec. 1610, at 379-80 (1992).
While jurors should not discuss the facts of the case before being instructed to begin
deliberations, there is nothing in the record to indicate that the jurors did so in the present case.
Contrary to defendant's argument, the jury foreman's note does not imply that any discussion of
the evidence or the facts of the case had taken place. It merely reflects a possible discussion of
a tangential matter regarding the presentation of the State's case. Assuming such a discussion
occurred among some or all of the jurors, it could have engendered no prejudice to defendant.
Defendant also contends that if the jurors did in fact disregard the judge's admonition not
to discuss the case, they may also have ignored the judge's instructions as to the law applicable
to their decision whether defendant should be sentenced to death. In support of this argument,
defendant cites two cases--People v. Jones, 105 Ill. 2d 342 (1985), and People v. Rogers, 135
Ill. App. 3d 608 (1985)--where criminal convictions were reversed because during trial the jurors
were exposed to prejudicial material not admitted into evidence. In Jones a mimeographed copy
of a racist joke was found in the jury room, and in Rogers certain jurors were exposed to a
newspaper article containing information about the defendant that the trial court had ruled
inadmissible. In each case, the reviewing court commented that the jurors' failure to bring the
misconduct to the court's attention might indicate a lack of appreciation for their responsibilities
as jurors. Jones, 105 Ill. 2d at 352; Rogers, 135 Ill. App. 3d at 628. Jones and Rogers do not
control the case at bar. Both those cases involved flagrant misconduct bearing directly on the
fairness of the defendants' trials. Here, however, even if the jurors did in fact discuss the
desirability of a chronological list of events, the discussion would be at most an innocuous
technical violation of the judge's admonition to refrain from discussing the case. This provides
no basis for concern that the jurors did not generally appreciate their responsibilities or that they
failed to abide by their oaths to follow the law as instructed by the judge.
To the extent that the jury foreman's note might have been viewed as creating the specter
of improper communications among the jurors, defendant should have raised the matter in the
trial court, as was done in People v. Gilyard, 124 Ill. App. 2d 95 (1970). This would have
enabled the trial court, in its discretion, to probe the nature of the jurors' discussions, if any, and
the extent to which those discussions might have compromised the jury's ability to render a fair
verdict based on the evidence. However, on the basis of the record as it stands, defendant's
contention that the jurors engaged in a premature discussion of the facts of the case, or any other
misconduct, is entirely speculative.
In this vein, defendant argues that his trial attorney's failure to move for a mistrial based
on juror misconduct represents ineffective assistance of counsel. We disagree. Claims of
ineffective assistance of counsel are evaluated in accordance with the two-prong test set forth in
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), which
requires a showing of deficient performance by counsel and resultant prejudice. To establish
deficient performance, the defendant must show that counsel's performance fell below an
objective standard of reasonableness. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Prejudice exists when there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S.
at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Defendant has failed to show either requirement.
.
As already stated, by itself the jury foreman's note evidences at most a nonprejudicial
technical violation of the trial court's admonitions. Under these circumstances, the decision
whether to seek the jury's discharge was properly a matter for counsel's exercise of professional
judgment. Counsel was familiar with the composition of the jury, and was able to observe the
jurors' reactions to the evidence and to defendant. Counsel was therefore in the best position to
determine whether the danger of prejudice from premature discussion of the case outweighed the
risk of empaneling a new jury which might be less favorably disposed to defendant. Counsel's
failure to request a mistrial was not objectively unreasonable under the particular circumstances
of this case. Moreover, defendant cannot show prejudice. The jury foreman's note was not, in
itself, grounds for a mistrial, and there is no way to determine from the record whether further
inquiry into communications among the jurors would have revealed any misconduct sufficiently
serious to justify a mistrial.
B. Improper Closing Argument
Defendant argues that a number of remarks by the prosecutor during closing argument at
the aggravation/mitigation stage were improper and deprived him of a fair sentencing hearing.
At the outset, we note that defendant failed to object to several of the challenged remarks during
sentencing. The State maintains that these issues are therefore waived. See People v. Enoch, 122 Ill. 2d 176 (1988). Defendant responds that he was excused from objecting to these remarks
because objections would have been futile. Defendant argues that by repeatedly overruling
defense objections to prosecutorial remarks, the trial court demonstrated a disinclination to
limiting closing argument, and the pursuit of futile objections by defendant would simply have
antagonized the jury. Defendant cites no authority that one may dispense with contemporaneous
objections and assert error on appeal merely because he or she has suffered adverse rulings on
other unrelated objections. Contemporaneous objections will often enable the trial court to cure
error, thereby avoiding the possible need to retry the defendant. Obviously, the requirement of
a contemporaneous objection promotes judicial economy and the swift and fair administration of
justice. We are hesitant to undermine these objectives by allowing a criminal defendant to base
his choice whether to object not on the merits of the objection but on a general appraisal of the
trial court's inclinations. Hence we agree with the State that these claims of error are waived.
An exception to the waiver rule permits review of plain error. 134 Ill. 2d R. 615.
However, this exception does not operate as a general savings clause: it may be invoked only
when the evidence is closely balanced or the alleged error is so serious that it deprived the
defendant of a fair trial. People v. Childress, 158 Ill. 2d 275, 300 (1994). Although the evidence
in mitigation presented by the defense was not insubstantial, overall the evidence at sentencing
cannot be regarded as closely balanced. Thus, in considering claims of error involving comments
to which defendant failed to object, our review is limited to consideration of whether the
comments, if improper, were so prejudicial as to deprive defendant of a fair sentencing hearing.
Defendant first argues that the prosecutor misstated the law by arguing that defendant
"signed his own death verdict" or "chose the death sentence" by killing Alice Cogler and Cynthia
Cooney. Because defendant failed to object to these remarks, our review is confined to the
question of whether the allegedly improper remarks were so prejudicial as to deprive defendant
of a fair trial. According to defendant, the prosecutor's statements implied that the death penalty
was mandatory in the case of multiple murders. We interpret the remarks differently. The
prosecution's argument was designed to convey, albeit with rhetorical flourish, that defendant was
responsible for the acts for which he was to be punished. The jury was properly instructed that
in reaching its verdict, it was to determine whether there were any mitigating factors sufficient
to preclude imposition of a death sentence, and the prosecution's remarks could not have misled
or confused the jury about the basis for its decision. The challenged remarks do not constitute
plain error on this basis.
Defendant alternatively argues that the prosecution's remarks improperly diminished the
jury's sense of responsibility for imposing the death penalty, violating of the principles of
Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985). In Caldwell,
the prosecutor emphasized to the jury that if it should decide to impose the death penalty, its
decision would be subject to review by the state supreme court. The Caldwell Court held that "it
is constitutionally impermissible to rest a death sentence on a determination made by a sentencer
who has been led to believe that the responsibility for determining the appropriateness of the
defendant's death rests elsewhere." Caldwell, 472 U.S. at 328-29, 86 L. Ed. 2d at 239, 105 S. Ct.
at 2639. However, in several cases involving remarks similar to those in the case at bar, this
court has concluded that the jury would have understood the remarks not as literal statements of
the law but as comments on the evidence. See People v. Burgess, 176 Ill. 2d 289, 318-20 (1997);
People v. Cole, 172 Ill. 2d 85, 112-13 (1996); People v. Page, 155 Ill. 2d 232, 280-82 (1993);
People v. Kokoraleis, 132 Ill. 2d 235, 286 (1989); see also People v. Moore, 171 Ill. 2d 74, 120-
21 (1996) (prosecutor's remark that defendant "sentenced himself to death" may have been
interpreted as merely emphasizing the strength of the aggravating evidence). The same conclusion
emerges in this case. The prosecutor's comment that defendant "chose" the death penalty simply
expressed the idea that defendant deserved the death penalty for the acts of violence he chose to
commit. Unlike the remarks in Caldwell, the pros
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion to
request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The official copy of the following opinion
will be published by the Supreme Court's Reporter of Decisions in the Official Reports advance
sheets following final action by the Court.
Docket No. 79309--Agenda 3--January 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBERT CLOUTIER,
Appellant.
Opinion filed September 18, 1997.
JUSTICE NICKELS delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, defendant, Robert Cloutier, was
found guilty of the first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9--1(a)) and aggravated
criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12--14(a)(4)) of Alice Cogler on January
28, 1990. Thereafter, a capital sentencing hearing was held before the jury, and defendant was
sentenced to death. On appeal, this court affirmed defendant's convictions, but vacated his death
sentence because the trial court improperly failed to "reverse-Witherspoon," or "life-qualify," the
jurors in accordance with Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222
(1992). People v. Cloutier, 156 Ill. 2d 483 (1993). We remanded the cause for a new sentencing
hearing. On remand, a bifurcated capital sentencing hearing was held before a jury, which
determined that defendant was eligible for the death penalty and that there were no mitigating
factors sufficient to preclude imposition of the death sentence. The trial court sentenced defendant
to death in accordance with the jury's verdict, and this appeal followed.
BACKGROUND
The factual background of guilt phase in this case is set forth in our earlier opinion
(People v. Cloutier, 156 Ill. 2d 483 (1993)) and will not be repeated in detail here. Defendant
was arrested on February 1, 1990, after he was identified as the perpetrator of attacks on two
women, Susan Bradford and Elizabeth Halili. Also, the victim in this case, Alice Cogler, had last
been seen with defendant, and defendant was suspected of involvement in the disappearance of
a fourth woman, Cynthia Cooney. Following his arrest, defendant admitted to police that he had
killed both Cogler and Cooney, and he disclosed where their bodies could be found. Defendant
gave detailed statements about the killings in the presence of a court reporter, and the statements
were read to the jury at the eligibility stage of defendant's sentencing hearing.
According to defendant's statement, he visited a tavern called the Huggery on the evening
of January 27, 1990. At about 9 p.m. defendant left the tavern, accompanied by Alice Cogler.
Defendant related that Cogler performed oral sex on him, and they later returned to the Huggery,
where they remained until closing time. They then proceeded in Cogler's car to the vicinity of
the Rose Meat Packing Company in Chicago, where they engaged in consensual vaginal and anal
sex in the backseat of the car. After having sex, defendant and Cogler held each other for a few
minutes. Defendant then began choking Cogler with his hands. After determining that Cogler still
had a heartbeat, defendant wrapped a fan belt that he found in the car around Cogler's throat.
Defendant squeezed the fan belt until Cogler's lips were blue and he could no longer detect a
heartbeat. Defendant then covered the body with some clothing and left it on the backseat.
Defendant eventually transferred the body to the trunk of the car, which he then abandoned.
Defendant told the authorities that he met Cynthia Cooney on the evening of January 29,
1990, at a tavern called Panama Sid's. They left together at 12:30 or 1 a.m. and drove in
Cooney's car to Summit, Illinois, where they engaged in vaginal and oral sex. Defendant stated
that he and Cooney then held each other for a while, and defendant started to choke Cooney with
his hands. When defendant believed that Cooney was dead, he drove to Willow Springs, and
disposed of Cooney's body in the Des Plaines River.
The State presented evidence that defendant had previously been found guilty by a jury
of first degree murder and aggravated criminal sexual assault with respect to Cogler, and that
defendant had pleaded guilty to the same charges in connection with Cooney's death. During the
eligibility stage, the State also presented the testimony of Chicago police detective William Drish
regarding conversations with Susan Bradford and Elizabeth Halili, who reported being attacked
by defendant. Defendant objected that the proffered testimony was inadmissible hearsay, but the
trial court overruled the objection.
According to Detective Drish's testimony, Susan Bradford recounted that on the morning
of January 28, 1990, she met an individual with long blond hair named Bob at a lounge, and they
later proceeded to a house where a group of people were gathered. Bob offered Bradford a ride
home, and during the drive, he began to struggle with her. Bradford's clothes were torn and Bob
grabbed her breasts. At one point, Bob grabbed Bradford by the hair and turned her head toward
the backseat of the car, where she saw the body of a white female. Bradford was able to escape
from the car, and after she started screaming, Bob drove away. The incident described by
Bradford would have occurred about 2« hours after the time of Alice Cogler's murder.
Elizabeth Halili reported to Detective Drish that on the morning of January 28, she was
working as a clerk at a gas station when she encountered a man with long blond hair worn in a
ponytail. The man announced a robbery, and forced Halili into a brown Oldsmobile. (According
to Detective Drish, Susan Bradford had provided a similar description of the vehicle driven by
her assailant.) After forcing Halili into the Oldsmobile, the man ordered her to remove her
clothes, and also tore at parts of her clothing. Like Bradford, Halili told Detective Drish that her
attacker grabbed her hair and turned her head toward the backseat, where she observed the body
of a white female. Halili was able to escape from the vehicle, and her attacker drove off.
Based on this evidence, the jury unanimously determined that defendant was eligible for
the death penalty for the murder of Alice Cogler based on two separate statutory aggravating
factors: (1) the murder occurred during the course of another felony (Ill. Rev. Stat. 1989, ch. 38,
par. 9--1(b)(6)); and (2) defendant had been convicted of murdering two or more individuals (Ill.
Rev. Stat. 1989, ch. 38, par. 9--1(b)(3)). Thereafter, the jury heard evidence of aggravating and
mitigating factors. Susan Bradford and Elizabeth Halili testified in person regarding the attacks
by defendant that Detective Drish had described during the eligibility stage. Another woman,
Marie Goodman, testified that defendant attacked her during the same time frame. Goodman
testified that she had made defendant's acquaintance in September 1989. About 7 a.m. on January
28, 1990, defendant arrived, uninvited, at Goodman's home, with visible scratch marks on his
chin, neck and wrist. Defendant claimed he had been in a fight, and he departed from Goodman's
apartment after a few minutes. Defendant returned at around 10:30 a.m. and took Goodman and
her young son out for breakfast. After they returned from breakfast, defendant attacked Goodman.
He placed his thumb at the base of her throat so that she was barely able to breathe. Defendant
physically placed Goodman's hand on his penis and tore her shirt open. When Goodman's son
came into the room, defendant left.
A number of witnesses for the State provided accounts of several robberies committed by
defendant in 1983. Defendant targeted convenience stores, gas stations and liquor stores. In
October 1983, while driving a stolen vehicle, defendant led Chicago police on a high-speed chase
that ended when defendant collided with a police vehicle. It was stipulated that defendant entered
the Department of Corrections in 1983 to serve four 12-year sentences for armed robbery and a
three-year sentence for theft. All sentences were to be served concurrently. It was further
stipulated that defendant was "paroled" in September 1989. (In fact, defendant was not paroled,
but was released as a result of the accumulation day-for-day good-conduct credits under section
3--6--3(a)(2) of the Unified Code of Corrections (730 ILCS 5/3--6--3(a)(2) (West 1994)).)
Springfield police officer Robert Crouch testified that on the morning of October 28,
1989, he observed defendant striking a woman in the head and face with a large chain. The
woman told Officer Crouch that defendant was her boyfriend. He had become angry with her,
dragged her down the street with the chain around her neck, and then began beating her with the
chain. It was stipulated that defendant thereafter returned to prison because of a violation of the
terms of his "parole," and was again released from custody in late December 1989. After his
release, defendant engaged in an extensive spree of armed robberies in January 1990 before being
arrested for the murders of Alice Cogler and Cynthia Cooney.
It was stipulated that during his incarceration from 1983 to 1989, defendant received a
total of 52 disciplinary tickets from Department of Corrections personnel. Defendant also received
five disciplinary tickets between August 1991 and January 1995 during his incarceration in the
Department of Corrections following his convictions for the murders of Alice Cogler and Cynthia
Cooney. Timothy Pruett, a correctional officer, testified that on July 17, 1994, defendant threw
a pitcher of scalding water at him at the Pontiac Correctional Center. Officer Pruett suffered
minor burns to his neck and back.
As evidence in mitigation, defendant presented the testimony of Lawrence Heinrich, a
clinical psychologist. Based on psychological testing, interviews with defendant and review of
documents relating to defendant's criminal history and personal background, Dr. Heinrich
concluded that defendant suffered from antisocial personality disorder and mixed substance abuse
disorder. Defendant also showed some traits of narcissistic personality disorder. Antisocial
personality disorder is characterized by defects in interpersonal relationships and a lack of
conscience and social sensitivity, and is commonly associated with criminal or delinquent
behavior. Mixed substance abuse disorder involves the abuse of a variety drugs and alcohol in
such a manner that the toxic effects of the substances tend to aggravate each other. Narcissistic
personality disorder is characterized by self-centeredness, grandiosity in pleasure-seeking
endeavors and a lack of empathy.
In connection with his evaluation, Dr. Heinrich reviewed a biographical sketch of
defendant prepared by defendant's mother. The biography indicated that defendant was raised by
his mother along with his four sisters. Defendant never fit in or felt connected with the rest of
the family. Defendant's problems became worse when he suffered a serious eye injury as a child.
He was abusing drugs and alcohol by the time he was in high school. During his teen years,
defendant spent time in a youth home or detention center. At one point while defendant was in
the facility, his family moved without telling him where they could be found.
Dr. Heinrich observed that a police bulletin issued in connection with efforts to arrest
defendant identified him as a heavy user of cocaine and other drugs. Dr. Heinrich further noted
that defendant had been ordered to participate in an alcohol abuse program as a condition of his
supervised release from prison. Dr. Heinrich noted that persons suffering personality disorders
often use drugs and alcohol for purposes of self-medication to soothe the unpleasant feelings
associated with their disorders. Dr. Heinrich believed that drugs and alcohol influenced
defendant's behavior and impaired his judgment during the series of fatal and nonfatal attacks
on women on January 28 and January 29, 1990.
Alvin Hill, coordinator of the Cook County Public Defender's Sentencing Advocacy
Program, also testified on defendant's behalf, elaborating on the biographical information
supplied in written form by defendant's mother. Defendant's mother indicated that defendant's
life changed drastically when he was 13 years of age: he no longer took pride in himself, started
to cruelly tease his sisters, and substantially withdrew from family life. Defendant also
experienced problems with truancy and stole money from the family. Defendant's mother noted
that when the family moved while defendant was in the youth home, they left no forwarding
address and changed their telephone number. According to defendant's mother, they "left no
trace."
Hill also testified about conversations with defendant. Defendant expressed his love for
and loyalty to his family, but maintained that his family did not understand him. Defendant was
adamant that his family not be asked to testify on his behalf. Defendant related that he began
using alcohol at about the age of 10 and street drugs at the age of 13. Defendant indicated that
he was "drugging" at the time of the murder of Alice Cogler. Defendant expressed remorse for
his crimes and the suffering inflicted on the families of the victims and on his own family.
Defendant had received a general equivalency degree while incarcerated, and felt that he could
help younger inmates.
Having heard the foregoing evidence, the jury returned a verdict finding that there were
no mitigating factors sufficient to preclude imposition of the death sentence.
ANALYSIS
I. Eligibility Stage
A. Hearsay Evidence
Defendant contends that the trial court erred at the eligibility stage of sentencing by
allowing Detective Drish to testify about conversations with Susan Bradford and Elizabeth Halili
in which they described how they were attacked by defendant. Defendant argues that the evidence
was both irrelevant and inadmissible under the hearsay rule. In defendant's original appeal, we
held that testimony by Bradford, Halili and other victims who survived attacks by defendant was
admissible to establish that defendant's sexual conduct with Alice Cogler was achieved by the
use of force. Cloutier, 156 Ill. 2d at 505-06. Similarly, Detective Drish's testimony was relevant
at the eligibility stage of sentencing to establish the statutory aggravating factor that Cogler was
murdered during the course of another felony: aggravated criminal sexual assault. We agree with
defendant, however, that notwithstanding the relevance of the subject matter of Detective Drish's
testimony, the testimony was inadmissible hearsay.
Hearsay evidence is an out-of-court statement offered to prove the truth of the matter
asserted, and is generally inadmissible unless it falls within a recognized exception. People v.
Lawler, 142 Ill. 2d 548, 557 (1991). Without citation of authority, the State argues that Detective
Drish's account of conversations with Bradford and Halili was admissible under the state of mind
exception to the hearsay rule. The State argues that the evidence that defendant displayed the
victim's body to Bradford and Halili in an effort to force them to "submit to his wishes." This,
according to the State, shows that in killing the victim defendant acted with the culpable mental
state necessary under Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368
(1982), before capital punishment may constitutionally be imposed. The State contends that the
out-of-court statements were not offered to prove the truth of the matter asserted.
The State's argument is unpersuasive. Unless the out-of-court statements by Bradford and
Halili were true, they could have no bearing on defendant's mental state. The State's effort to
shed light on defendant's mental state necessarily depended on the truth of the matter asserted.
The State misunderstands the state of mind exception to the hearsay rule. Under that exception,
an out-of-court statement of a declarant is admissible when that statement tends to show the
declarant's state of mind at the time of the utterance. Lawler, 142 Ill. 2d at 558. In order to be
admissible, the declarant's state of mind must be relevant to a material issue in the case. People
v. Nyberg, 275 Ill. App. 3d 570, 580 (1995). In this case, defendant was not the declarant: the
declarants were Bradford and Halili. Their state of mind when they spoke with Detective Drish
has no bearing on defendant's state of mind when he killed the victim. Because the State relies
exclusively on the state of mind exception, we need not consider whether any other exceptions
to the hearsay rule might apply to this case.
Although Detective Drish's testimony regarding out-of-court statements by Bradford and
Halili was inadmissible hearsay, the error in admitting this testimony does not require reversal
of defendant's death sentence. Defendant argues that the evidence may have contributed to the
jury's determination that defendant was eligible for the death penalty on the basis that he
murdered Alice Cogler during the course of another felony: aggravated criminal sexual assault.
Defendant notes that the victim showed no signs of vaginal trauma, and cocaine was detected in
the victim's blood. According to defendant, this evidence is consistent with his account of the
crime, in which he maintained that he engaged in consensual sex with the victim prior to the
murder. Defendant argues that but for the improperly admitted evidence of his attacks on
Bradford and Halili, the jury might have returned a verdict in his favor on the felony-murder
aggravating factor.
Be that as it may, based on careful review of the record we conclude that the improperly
admitted hearsay could have had no effect on jury's separate verdict on the multiple-murder
aggravating factor set forth in section 9--1(b)(3) of the Criminal Code of 1961 (Ill. Rev. Stat.
1989, ch. 38, par. 9--1(b)(3)). In determining whether a defendant is eligible for the death penalty
under section 9--1(b)(3), the sentencing jury must consider whether the defendant was convicted
of murdering two or more individuals and whether the deaths were the result of either an intent
to kill more than one person or of separate acts that the defendant knew would cause death or
create a strong probability of death or great bodily harm to the victim. People v. Hooper, 172 Ill. 2d 64, 73 (1996). In the present case, overwhelming evidence was presented establishing
defendant's eligibility for the death penalty under the multiple-murder factor. The State
introduced certified copies of defendant's convictions of the murders of Alice Cogler and Cynthia
Cooney, and defendant's own statements detailing the deliberate manner in which he killed the
two women establish that he acted with the requisite mental state under section 9--1(b)(3).
This court has held that the Illinois death penalty statute does not place special emphasis
on any aggravating factor and does not accord added significance to multiple aggravating factors
as opposed to a single factor. People v. Brown, 169 Ill. 2d 132, 164 (1996). Once one statutory
aggravating factor has been found, the defendant is eligible for the death penalty, regardless of
whether other factors have been proved as well. Brown, 169 Ill. 2d at 165. Thus, where a
defendant is found eligible for the death penalty based upon two or more statutory aggravating
factors, the fact that one of those factors may later be invalidated will not generally impair the
eligibility finding as long as a separate, valid aggravating factor supported eligibility. People v.
Cole, 172 Ill. 2d 85, 102-03 (1996); People v. Bounds, 171 Ill. 2d 1, 69 (1995); Brown, 169 Ill. 2d at 165; People v. Page, 156 Ill. 2d 258, 268 (1993), citing Zant v. Stephens, 462 U.S. 862,
880-90, 77 L. Ed. 2d 235, 252-58, 103 S. Ct. 2733, 2744-50 (1983); see also People v. Todd, 154 Ill. 2d 57, 75 (1992). In the case at bar, the jury's verdict on the multiple-murder factor
independently established defendant's eligibility for the death penalty regardless of the validity
of the verdict on the felony-murder factor. See Todd, 154 Ill. 2d at 75.
We further emphasize that the improper hearsay evidence did not taint the jury's ultimate
determination, based on evidence in aggravation and mitigation, that defendant should be
sentenced to death. See Tuggle v. Netherland, 516 U.S. ___, ___, 133 L. Ed. 2d 251, 256, 116 S. Ct. 283, 285 (1995) (although error under Ake v. Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985), affected only one of two statutory aggravating circumstances making
defendant eligible for the death penalty, error may also have affected the jury's ultimate decision,
based on all the evidence before it, to sentence defendant to death rather than life imprisonment).
As indicated, Detective Drish's testimony regarding the attacks on Bradford and Halili should not
have been admitted during the eligibility stage of the sentencing proceedings. However, the
testimony could properly be considered by the jury for purposes of its determination whether
there were any mitigating factors sufficient to preclude the imposition of the death penalty.
Ordinary rules of evidence are relaxed at the aggravation/mitigation stage of sentencing. The only
requirements for admissibility are that the evidence be reliable and relevant. People v. Hudson,
157 Ill. 2d 401, 449 (1993). This is so because in determining the appropriate sentence, the
sentencing authority must possess the fullest information possible concerning the defendant's life,
character, criminal record and circumstances of the particular offense. Hudson, 157 Ill. 2d at 450.
Hearsay evidence of other crimes which did not result in prosecution or conviction is therefore
admissible at the aggravation/mitigation stage if it meets the requirements of reliability and
relevance. Hudson, 157 Ill. 2d at 450. Detective Drish's hearsay testimony regarding defendant's
attacks against Bradford and Halili was relevant to the jury's sentencing decision, and it was
reliable because it was corroborated by testimony of the victims themselves. Accordingly, the
admission of Detective Drish's hearsay testimony during the eligibility stage of sentencing was
harmless error.
B. Improper Closing Argument
Defendant argues that he was denied a fair hearing on his eligibility for the death penalty
because during closing argument the prosecution improperly suggested that additional evidence
of defendant's eligibility existed which could not be introduced at the eligibility stage.
Defendant's argument is based on the following portion of the proceedings occurring near the
end of the State's closing argument:
"MR. BYRNE [Assistant State's Attorney]: Many of you might be
wondering, so what's next? Remember, here at the eligibility stage, we're only
able to present a limited amount of evidence on the murders and the rape, not the
entire case.
And remember your oaths, at this point. Follow the law. Read the
instructions. It's crystal clear what happened here, and it's crystal clear what he's
been convicted of and it's crystal clear he's eligible for the death penalty.
For those of you who have some lingering, unanswered questions in your
mind as to certain facts, that's for a later time.
MS. PLACEK [defense attorney]: Objection.
MR. RICHARDS [defense attorney]: Objection.
THE COURT: Sustained. Proceed.
MR. BYRNE: At the next phase, ladies and gentlemen, in aggravation and
mitigation, both sides will have an opportunity to present additional evidence.
MR. RICHARDS: Objection, not relevant.
THE COURT: Sustained. Proceed.
MR. BYRNE: Only after the second phase is concluded, the phase of
aggravation and mitigation, will we return to you and ask you to decide on the
sentence in this case.
For now, we ask you to follow your oaths, look at the evidence that we've
presented. Look at the instructions of law. Return both verdicts of eligibility on
both statutory aggravating factors. Thank you."
Contrary to defendant's argument, these remarks did not insinuate that evidence bearing
on defendant's eligibility for the death penalty had been withheld. Instead, when the remarks are
considered in their entirety, it is apparent that the prosecutor was simply reiterating that if the
jurors found defendant eligible for the death penalty, their ultimate decision whether to impose
the death penalty would not be based solely on the eligibility stage evidence: a broader range of
evidence in aggravation and mitigation would be available for their consideration. With respect
to the eligibility stage decision, the prosecutor specifically advised the jurors to confine their
deliberations to the evidence introduced at that stage of the proceedings: "For now, we ask you
to follow your oaths, look at the evidence that we've presented." (Emphasis added.) The jurors
were also properly instructed by the trial court "to determine the facts and to determine them only
from the evidence." (Emphasis added.) Considering the prosecutor's remarks as a whole, together
with the instruction from the court, we conclude that the remarks were not prejudicial.
II. Aggravation/Mitigation Stage
A. Jury Misconduct
During the course of the State's presentation of evidence in aggravation, the foreman of
the jury delivered a note to the trial judge asking, "Can we have a list of the events in
chronological order from the release of [defendant] from prison in [September] of 1989 to his
capture on [February] 1, 1990 when we start deliberation?" Based on this note defendant surmises
that, in defiance of instructions from the court, the jury improperly discussed the case before
being instructed to begin its deliberations. Defendant argues that this misconduct deprived him
of a fair sentencing hearing. We disagree.
For purposes of our analysis, the following cogent summary of general principles is
instructive:
"As a rule, it is improper for jurors to discuss among themselves the case
or any subject connected with the trial until all of the evidence has been presented
and the case has been submitted to them after final instructions by the trial court.
By permitting the jurors to discuss the case among themselves *** the trial court
authorizes and encourages them to give premature consideration to the evidence
presented--consideration unaided by the final instructions of the trial court as to
the law to be applied to the facts in the case. Furthermore, it is human nature that
an individual, having expressed his or her views of the guilt or innocence of a
defendant, would be inclined thereafter to give special attention to testimony
which strengthened or confirmed the views already expressed to other jurors.
Even so, under certain circumstances discussions of evidence among jurors
before the final submission of a criminal case have been deemed not to have been
improper, or as not having resulted in prejudicial error where, for instance, a
review of the jurors' responses to questions of the trial court indicated that the
jurors' impartiality had not been affected by their discussions among themselves
of certain exhibits prior to deliberations. Even assuming that discussion by jurors
of a case during recesses in the proceedings constitutes juror misconduct, the test
for reversibility is whether the misconduct has prejudiced the defendant to the
extent that he has been denied a fair trial. The important question in this regard
is not whether the jurors kept silent with each other about the case, but whether
each juror kept an open mind until the case was submitted to them." 75B Am. Jur.
2d Trial sec. 1610, at 379-80 (1992).
While jurors should not discuss the facts of the case before being instructed to begin
deliberations, there is nothing in the record to indicate that the jurors did so in the present case.
Contrary to defendant's argument, the jury foreman's note does not imply that any discussion of
the evidence or the facts of the case had taken place. It merely reflects a possible discussion of
a tangential matter regarding the presentation of the State's case. Assuming such a discussion
occurred among some or all of the jurors, it could have engendered no prejudice to defendant.
Defendant also contends that if the jurors did in fact disregard the judge's admonition not
to discuss the case, they may also have ignored the judge's instructions as to the law applicable
to their decision whether defendant should be sentenced to death. In support of this argument,
defendant cites two cases--People v. Jones, 105 Ill. 2d 342 (1985), and People v. Rogers, 135
Ill. App. 3d 608 (1985)--where criminal convictions were reversed because during trial the jurors
were exposed to prejudicial material not admitted into evidence. In Jones a mimeographed copy
of a racist joke was found in the jury room, and in Rogers certain jurors were exposed to a
newspaper article containing information about the defendant that the trial court had ruled
inadmissible. In each case, the reviewing court commented that the jurors' failure to bring the
misconduct to the court's attention might indicate a lack of appreciation for their responsibilities
as jurors. Jones, 105 Ill. 2d at 352; Rogers, 135 Ill. App. 3d at 628. Jones and Rogers do not
control the case at bar. Both those cases involved flagrant misconduct bearing directly on the
fairness of the defendants' trials. Here, however, even if the jurors did in fact discuss the
desirability of a chronological list of events, the discussion would be at most an innocuous
technical violation of the judge's admonition to refrain from discussing the case. This provides
no basis for concern that the jurors did not generally appreciate their responsibilities or that they
failed to abide by their oaths to follow the law as instructed by the judge.
To the extent that the jury foreman's note might have been viewed as creating the specter
of improper communications among the jurors, defendant should have raised the matter in the
trial court, as was done in People v. Gilyard, 124 Ill. App. 2d 95 (1970). This would have
enabled the trial court, in its discretion, to probe the nature of the jurors' discussions, if any, and
the extent to which those discussions might have compromised the jury's ability to render a fair
verdict based on the evidence. However, on the basis of the record as it stands, defendant's
contention that the jurors engaged in a premature discussion of the facts of the case, or any other
misconduct, is entirely speculative.
In this vein, defendant argues that his trial attorney's failure to move for a mistrial based
on juror misconduct represents ineffective assistance of counsel. We disagree. Claims of
ineffective assistance of counsel are evaluated in accordance with the two-prong test set forth in
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), which
requires a showing of deficient performance by counsel and resultant prejudice. To establish
deficient performance, the defendant must show that counsel's performance fell below an
objective standard of reasonableness. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Prejudice exists when there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S.
at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Defendant has failed to show either requirement.
.
As already stated, by itself the jury foreman's note evidences at most a nonprejudicial
technical violation of the trial court's admonitions. Under these circumstances, the decision
whether to seek the jury's discharge was properly a matter for counsel's exercise of professional
judgment. Counsel was familiar with the composition of the jury, and was able to observe the
jurors' reactions to the evidence and to defendant. Counsel was therefore in the best position to
determine whether the danger of prejudice from premature discussion of the case outweighed the
risk of empaneling a new jury which might be less favorably disposed to defendant. Counsel's
failure to request a mistrial was not objectively unreasonable under the particular circumstances
of this case. Moreover, defendant cannot show prejudice. The jury foreman's note was not, in
itself, grounds for a mistrial, and there is no way to determine from the record whether further
inquiry into communications among the jurors would have revealed any misconduct sufficiently
serious to justify a mistrial.
B. Improper Closing Argument
Defendant argues that a number of remarks by the prosecutor during closing argument at
the aggravation/mitigation stage were improper and deprived him of a fair sentencing hearing.
At the outset, we note that defendant failed to object to several of the challenged remarks during
sentencing. The State maintains that these issues are therefore waived. See People v. Enoch, 122 Ill. 2d 176 (1988). Defendant responds that he was excused from objecting to these remarks
because objections would have been futile. Defendant argues that by repeatedly overruling
defense objections to prosecutorial remarks, the trial court demonstrated a disinclination to
limiting closing argument, and the pursuit of futile objections by defendant would simply have
antagonized the jury. Defendant cites no authority that one may dispense with contemporaneous
objections and assert error on appeal merely because he or she has suffered adverse rulings on
other unrelated objections. Contemporaneous objections will often enable the trial court to cure
error, thereby avoiding the possible need to retry the defendant. Obviously, the requirement of
a contemporaneous objection promotes judicial economy and the swift and fair administration of
justice. We are hesitant to undermine these objectives by allowing a criminal defendant to base
his choice whether to object not on the merits of the objection but on a general appraisal of the
trial court's inclinations. Hence we agree with the State that these claims of error are waived.
An exception to the waiver rule permits review of plain error. 134 Ill. 2d R. 615.
However, this exception does not operate as a general savings clause: it may be invoked only
when the evidence is closely balanced or the alleged error is so serious that it deprived the
defendant of a fair trial. People v. Childress, 158 Ill. 2d 275, 300 (1994). Although the evidence
in mitigation presented by the defense was not insubstantial, overall the evidence at sentencing
cannot be regarded as closely balanced. Thus, in considering claims of error involving comments
to which defendant failed to object, our review is limited to consideration of whether the
comments, if improper, were so prejudicial as to deprive defendant of a fair sentencing hearing.
Defendant first argues that the prosecutor misstated the law by arguing that defendant
"signed his own death verdict" or "chose the death sentence" by killing Alice Cogler and Cynthia
Cooney. Because defendant failed to object to these remarks, our review is confined to the
question of whether the allegedly improper remarks were so prejudicial as to deprive defendant
of a fair trial. According to defendant, the prosecutor's statements implied that the death penalty
was mandatory in the case of multiple murders. We interpret the remarks differently. The
prosecution's argument was designed to convey, albeit with rhetorical flourish, that defendant was
responsible for the acts for which he was to be punished. The jury was properly instructed that
in reaching its verdict, it was to determine whether there were any mitigating factors sufficient
to preclude imposition of a death sentence, and the prosecution's remarks could not have misled
or confused the jury about the basis for its decision. The challenged remarks do not constitute
plain error on this basis.
Defendant alternatively argues that the prosecution's remarks improperly diminished the
jury's sense of responsibility for imposing the death penalty, violating of the principles of
Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985). In Caldwell,
the prosecutor emphasized to the jury that if it should decide to impose the death penalty, its
decision would be subject to review by the state supreme court. The Caldwell Court held that "it
is constitutionally impermissible to rest a death sentence on a determination made by a sentencer
who has been led to believe that the responsibility for determining the appropriateness of the
defendant's death rests elsewhere." Caldwell, 472 U.S. at 328-29, 86 L. Ed. 2d at 239, 105 S. Ct.
at 2639. However, in several cases involving remarks similar to those in the case at bar, this
court has concluded that the jury would have understood the remarks not as literal statements of
the law but as comments on the evidence. See People v. Burgess, 176 Ill. 2d 289, 318-20 (1997);
People v. Cole, 172 Ill. 2d 85, 112-13 (1996); People v. Page, 155 Ill. 2d 232, 280-82 (1993);
People v. Kokoraleis, 132 Ill. 2d 235, 286 (1989); see also People v. Moore, 171 Ill. 2d 74, 120-
21 (1996) (prosecutor's remark that defendant "sentenced himself to death" may have been
interpreted as merely emphasizing the strength of the aggravating evidence). The same conclusion
emerges in this case. The prosecutor's comment that defendant "chose" the death penalty simply
expressed the idea that defendant deserved the death penalty for the acts of violence he chose to
commit. Unlike the remarks in Caldwell, the pros
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