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. 78406--Agenda 2--November 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LATASHA
PULLIAM, Appellant.
Opinion filed April 17, 1997.
CHIEF JUSTICE HEIPLE delivered the opinion of the court:
Defendant, Latasha Pulliam, was indicted on 131 counts of
murder, aggravated criminal sexual assault, aggravated kidnapping,
and aggravated unlawful restraint. She and her codefendant, Dwight
Jordan, were tried simultaneously by separate juries in the circuit
court of Cook County. Defendant's jury convicted her of first
degree murder, two counts of aggravated criminal sexual assault,
and two counts of aggravated kidnapping. The jury determined that
there were no mitigating factors sufficient to preclude imposition
of the death penalty. The trial court sentenced defendant to death
for first degree murder. Additionally, the court sentenced
defendant to three consecutive prison terms of 60 and 30 years for
aggravated criminal sexual assault and 15 years for aggravated
kidnapping. Defendant's death sentence has been stayed pending
direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134
Ill. 2d Rs. 603, 609(a).
On appeal to this court, defendant argues that the trial court
erred in (1) admitting hearsay; (2) admitting evidence of a book
found in defendant's apartment; (3) allowing testimony concerning
a court-ordered fitness examination at both trial and sentencing;
(4) allowing various items of evidence in aggravation; (5)
preventing a defense witness from testifying; (6) allowing the
State to make improper arguments at sentencing; (7) refusing to
respond to a question from the jury; and (8) imposing an excessive
sentence. Defendant also argues that the death penalty is
unconstitutional for a number of reasons. We affirm defendant's
convictions and sentences.
FACTS
On March 21, 1991, defendant was arrested for the murder of
six-year-old Shenosha Richards (hereinafter Shenosha). The next
day, defendant spoke to law enforcement officers and signed a
court-reported confession. On appeal, defendant does not challenge
the admissibility of this confession. In the confession, defendant
related the following account of the murder.
On March 21, defendant was outside on the street when Shenosha
asked to come to her house. Defendant took Shenosha to her third-
floor apartment. Upon entering the apartment, she took Shenosha to
her bedroom, where Dwight Jordan, her boyfriend and codefendant,
was sitting on the bed. She told Shenosha to sit down and watch
television. Defendant then went to the kitchen to use cocaine, and
remained there for half an hour. When she returned to the bedroom,
Shenosha was on the floor crying, with her underwear down to her
knees. Jordan was behind her on the floor, fondling his penis in an
attempt to achieve an erection. Upon failing to do so, he picked up
a white shoe polish bottle and inserted it into Shenosha's rectum.
Shenosha continued crying and asked Jordan to stop, saying that she
would not tell anyone.
Defendant further confessed that Jordan then told her to get
a hammer. After retrieving the hammer, defendant put saliva on it
and inserted the straight end into Shenosha's vagina. As defendant
did this, Jordan continued inserting the shoe polish bottle in and
out of Shenosha's rectum. Defendant and Jordan continued this
activity for 10 minutes. When they stopped, Shenosha was crying.
Defendant put her hand over Shenosha's mouth, and Shenosha tried to
scream. Defendant then took an electrical cord from a television,
wrapped it around Shenosha's neck, and "started to strangle her."
Defendant stated that she then took Shenosha to an empty
apartment down the hall, with the electrical cord still wrapped
around her neck. Defendant said that as they entered this
apartment, Shenosha fell onto a board with a nail protruding from
it. Defendant took Shenosha to the kitchen of the apartment where
she started a fire "to scare her." After defendant put the fire
out, Shenosha said that she would not tell anyone, except that she
would have to tell her parents. At that point, defendant pulled the
cord tighter around Shenosha's neck and continued tightening it for
10 minutes. Then, because she heard knocking on the door of her
apartment down the hall, she put Shenosha in a closet in the empty
apartment and threw Shenosha's shoes out the window.
Defendant said that she looked in the closet a few minutes
later and saw that Shenosha was not breathing. Defendant then took
the hammer that she had used earlier and hit Shenosha on the head
three or four times. Defendant then placed Shenosha in a garbage
can, hit her on the head with a two-by-four, and tried to cover her
up with garbage.
Defendant said that she gave this statement willingly, fully
aware of her constitutional rights to remain silent and have the
assistance of counsel. Investigators who searched the crime scene
recovered Shenosha's shoes, a hammer, a white shoe polish bottle,
and a triangular piece of wood with a protruding nail.
At trial, the medical examiner who performed the autopsy on
the victim testified that Shenosha suffered 42 distinct injuries.
She sustained two puncture wounds to her chest which damaged her
lungs and coronary artery. The examiner testified that these wounds
were consistent with being struck by a board with a nail. Shenosha
had six lacerations on her head, three of which penetrated through
to the skull. These injuries were consistent with being hit with a
hammer, or a board such as a two-by-four. She had injuries under
her chin which were consistent with ligature strangulation. She
sustained lacerations to the skin of her anus which were consistent
with a traumatic penetration or sexual assault. Injuries caused by
the penetration were at least eight inches deep, consistent with
the handle of the hammer or the shoe-polish bottle. She also had
lacerations alongside her clitoris and on the lower surface of her
vagina extending to her anus which were consistent with penetration
of the hammer or the shoe-polish bottle.
In its case in chief, the defense called a psychologist who
had examined defendant in 1994. He testified that defendant has an
IQ of 69 and that he believed her to be mildly mentally retarded.
He further testified that a person with defendant's degree of
mental retardation would be easily influenced by others, would not
anticipate the consequences of her actions, and would have
difficulty predicting the outcome of a situation.
In rebuttal, the State called a psychologist who had examined
defendant in 1991. He testified that he did not believe defendant
was mentally retarded. He also testified that defendant had
malingered, or faked mental illness, during his examination of her,
and further opined that she likely did so during the 1994
examination as well.
The jury found defendant guilty of first degree murder (720
ILCS 5/9--1(a)(1) (West 1992)), two counts of aggravated criminal
sexual assault (720 ILCS 5/12--14(a)(2) (West 1992)), and two
counts of aggravated kidnapping (720 ILCS 5/10--2(a)(3) (West
1992)). The jury then found defendant eligible for the death
sentence on two grounds: (1) that she committed the murder in the
course of other felonies, namely, aggravated criminal sexual
assault and aggravated kidnapping (720 ILCS 5/9--1(b)(6) (West
1992)); and (2) that the victim was under the age of 12 and her
death resulted from exceptionally brutal and heinous behavior
indicative of wanton cruelty (720 ILCS 5/9--1(b)(7) (West 1992)).
At the second stage of the sentencing hearing, the State
offered evidence in aggravation. An employee of the Department of
Children and Family Services testified that defendant frequently
had been placed in state facilities as a youth, but had often run
away. The employee testified that on one occasion, defendant ran
away with another girl who was under state care, and that while the
two were gone, defendant physically forced the girl to submit to
oral, anal, and vaginal sex performed by one of defendant's former
boyfriends. The employee testified that the girl was also forced to
perform oral sex on both defendant and her former boyfriend.
The State presented evidence that defendant's daughter was
twice hospitalized, once for injuries consistent with physical
abuse, and once for both physical and sexual abuse. The State also
offered evidence that defendant, while incarcerated awaiting trial,
sexually assaulted an inmate. Finally, in order to show defendant's
lack of remorse, the State presented evidence that defendant
described to another inmate in great detail her sexual assault and
murder of Shenosha.
In mitigation, defendant offered evidence that her parents and
other adults physically and sexually abused her as a child. The
evidence indicated that defendant gave birth to a child when she
was 15 and to another when she was 17, and that the fathers of
these children were two separate boyfriends of defendant's mother.
Defendant also offered evidence that her codefendant, Jordan,
physically abused her. A second defense psychologist testified that
defendant is mildly mentally retarded, with a long history of
alcohol and drug abuse.
The jury found no mitigating factors sufficient to preclude
imposition of the death sentence. The trial court sentenced
defendant to death.
ANALYSIS
Trial
Hearsay
Defendant contends that the trial court erred in allowing
testimony concerning certain statements made by various persons
about the crime because the statements were hearsay. An out-of-
court statement is hearsay only if it is offered to establish the
truth of the matter asserted. People v. Simms, 143 Ill. 2d 154, 173
(1991).
Defendant's first hearsay argument concerns the testimony of
the police officer who apprehended her. This officer testified that
during his pursuit of defendant, numerous bystanders shouted such
things as "There she goes, right there, she's running." The officer
also testified that after he apprehended defendant, members of the
crowd said such things as "They got her, there she is right there,
they got her in the car."
A police officer may testify about statements made by others,
such as victims or witnesses, when such testimony is not offered to
prove the truth of the matter asserted, but is instead used to show
the investigative steps taken by the officer leading to the
defendant's arrest. Simms, 143 Ill. 2d at 174. We hold that the
statements made by bystanders at the crime scene were not
inadmissible hearsay because they were not offered to prove what
they asserted, i.e., that defendant fled and that she was taken
into police custody. Rather, the statements were offered to explain
the steps taken by the police in investigating the crimes and
apprehending defendant.
Defendant next argues that the trial testimony of Kenosha,
Shenosha's sister, contained inadmissible hearsay. Kenosha
testified that on the day of the murder, a young girl in the
neighborhood told her that Shenosha had gone to the movies with
Shenosha's aunt. We hold that this statement was not inadmissible
hearsay because it was not offered to prove the truth of the
statement. Shenosha had not gone anywhere with her aunt, but rather
was in defendant's apartment at the time. The statement was offered
to explain why Kenosha continued looking for Shenosha after talking
with the young girl.
Kenosha also testified that while she was looking for her
sister, she encountered codefendant Jordan, who told her that
defendant "live[s] up there." This statement also was not
inadmissible hearsay, as it was not offered to prove that defendant
in fact lived in the apartment Jordan identified. No one disputed
this fact at trial. The statement was instead offered to explain
why Kenosha and her mother went to defendant's apartment.
Defendant further contends that some of the testimony given by
Emma Richards, Shenosha's mother, was hearsay. Emma testified that
the night before the murder, Shenosha asked her if she knew Dwight
Jordan's girlfriend. Emma testified that when she answered yes,
Shenosha told her that Jordan's girlfriend had taken her to a park
across the street that day. We reject defendant's contention that
these statements made by the victim were hearsay. The statements
were not offered to prove that defendant took Shenosha to the park,
but were instead offered to explain why Emma and Kenosha sought out
defendant after they discovered that Shenosha was missing.
Emma also testified that while she was searching for her
daughter, a neighbor, Leslie Moon, told her that no one had left
defendant's apartment recently. We likewise do not believe this
statement was hearsay, because it was offered not to prove that no
one had left the apartment, but rather to show why Kenosha and her
mother went to the apartment a second time.
Finally, Emma further testified that during her search, Moon
told her that she had observed defendant place something in the
garbage can on the porch of defendant's apartment. We agree with
defendant that the purpose for offering this statement was to
corroborate the State's allegation that defendant placed the
victim's body in the garbage can. The statement was therefore
hearsay, and the trial court erred in admitting it. We do not
believe, however, that this error requires reversal of defendant's
conviction. An error in the admission of evidence is harmless if
properly admitted evidence is so overwhelming that no fair-minded
juror could reasonably have voted to acquit the defendant. People
v. Miller, 173 Ill. 2d 167, 195 (1996). Because the evidence of
defendant's guilt was overwhelming, we hold that the trial court's
error in admitting this statement was harmless.
Evidence of Book Found in Defendant's Apartment
At trial, the State was permitted to show the jury the cover
of a book entitled The Force of Sex. A police officer who
investigated the murder testified that he found the book on a
coffee table in defendant's apartment two days after the murder.
The officer testified that he did not notice the book when he
searched the apartment the day after the murder. He testified that
the apartment was not locked between the time of the murder and his
discovery of the book. No testimony was offered concerning the
nature of the book's contents, or about who owned or had read the
book.
Defendant objected when the State sought to introduce the book
into evidence. Defendant argued that the book's potential for
prejudice outweighed any probative value it might have. Defendant
also contended that there was insufficient evidence linking her to
the book, because there was no testimony that she owned or had read
it, and because the apartment had not been secured between the time
of the murder and the discovery of the book. The trial court ruled
that the cover and title of the book were probative to show the
defendant's state of mind, and overruled defendant's objections.
The jury was allowed to view only the cover of the book and to hear
the testimony of the investigating officer about where and when he
found it.
Evidentiary rulings are within the sound discretion of the
trial court and will not be disturbed on review unless the court
has abused that discretion. People v. Boclair, 129 Ill. 2d 458, 476
(1989). The general rule is that physical evidence may be admitted
provided there is proof to connect it with the defendant and the
crime. People v. Free, 94 Ill. 2d 378, 415 (1983). Evidence may be
inadmissible, however, if it has little probative value due to its
remoteness, uncertainty or its possibly unfair prejudicial nature.
People v. Enis, 139 Ill. 2d 264, 281 (1990).
We hold that the trial court erred in admitting the book into
evidence. First, because there was no testimony that defendant
owned or had read the book, or concerning the nature of its
contents, the court had no sound basis for concluding that the book
was relevant to the crimes. Second, the fact that the apartment was
unsecured for two days before the book was found further diminished
the book's relevance to defendant's role in the crimes. Given these
circumstances, the trial court abused its discretion in admitting
the book. Because the properly admitted evidence of defendant's
guilt was so overwhelming, however, we hold that this error was
harmless. Miller, 173 Ill. 2d at 195.
Use of Fitness Examination
Defendant contends that because she did not raise the
affirmative defense of insanity, the trial court erred in allowing
testimony from a state psychologist concerning a 1991 examination
which the court ordered to determine her fitness to stand trial.
See 725 ILCS 5/104--14 (West 1992) (providing that statements made
by a defendant during a court-ordered fitness examination may not
be admitted against the defendant unless she raises the defense of
insanity or the defense of drugged or intoxicated condition). The
psychologist testified that during the 1991 examination, defendant
stated that she heard voices and acted as though she were talking
to an invisible person. The psychologist also testified that
defendant said that she saw crack cocaine all over the floor of the
examining room, and that if she had a pipe, she would pick up the
crack and smoke it. We hold that defendant waived any error in the
admission of this testimony by failing to object when the testimony
was offered at trial. Miller, 173 Ill. 2d at 191.
Defendant contends, however, that because the trial court's
admission of the testimony concerning the fitness examination was
plain error, her failure to object does not constitute waiver.
Under the plain error doctrine, a reviewing court may consider a
trial error not properly preserved by objection when (1) the
evidence is closely balanced or (2) the error is so fundamental and
of such a magnitude that the defendant was denied her right to a
fair trial. Miller, 173 Ill. 2d at 191-92.
As noted earlier, the evidence in defendant's case was not
closely balanced. Furthermore, we do not believe that the alleged
error was so fundamental as to deny defendant her right to a fair
trial. Defendant herself injected the issue of mental competence
into the proceedings by arguing that her low IQ and purported
mental retardation absolved her of responsibility for her actions.
See Buchanan v. Kentucky, 483 U.S. 402, 422-23, 97 L. Ed. 2d 336,
355, 107 S. Ct. 2906, 2917-18 (1987) (holding that prosecution may
constitutionally offer evidence from court-ordered fitness
examination when defendant presents psychiatric evidence).
Defendant alternatively contends that her trial counsel's
failure to object to the testimony concerning the fitness
examination deprived her of the effective assistance of counsel in
violation of the sixth amendment to the United States Constitution.
U.S. Const., amend. VI. In order to prove that counsel's assistance
was unconstitutionally ineffective, a defendant must establish a
reasonable probability that the result of the proceeding would have
been different had counsel not committed the alleged errors. People
v. Albanese, 104 Ill. 2d 504, 525 (1984). In light of the
overwhelming evidence of defendant's guilt, we do not believe that
the jury's verdict would have been different if the court had
excluded the testimony concerning the fitness examination.
Defendant also contends that the trial court erred in allowing
the psychologist who conducted the 1991 fitness examination to
testify that because of his conclusion that defendant had
malingered, i.e., faked mental illness, during that examination,
she likely did so again during a defense psychologist's subsequent
evaluation of her in 1994. Defendant argues that the state
psychologist's assessment of the 1991 examination was irrelevant to
the defense psychologist's interpretation of the 1994 results.
Defendant was the first to raise the issue of malingering at
trial, when her psychologist testified on direct examination that
defendant had not malingered during the 1994 evaluation. Only after
this testimony was offered did the State counter with its
psychologist's opinion that defendant had malingered in 1991 and
had continued to do so since. The latitude to be allowed in the
presentation of rebuttal evidence is within the sound discretion of
the trial court. People v. Collins, 106 Ill. 2d 237, 269 (1985).
Because defendant initially raised the issue of malingering, we do
not believe the trial court erred in allowing the State to rebut
defendant's arguments on this point.
Sentencing
Use of Fitness Examination
Defendant contends that testimony concerning the 1991 fitness
examination was also improperly admitted during the sentencing
phase of trial. At the sentencing hearing, the psychologist who
conducted the 1991 examination repeated the testimony he had given
earlier at trial. In addition, he further testified that defendant
suffered from poly-substance abuse, borderline intellectual
functioning, antisocial personality disorder, and sexual sadism. He
testified that persons who suffer from sadism enjoy tormenting
their victims.
As with the evidence of the fitness examination offered during
the first phase of trial, we hold that defendant waived any error
in the admission of this evidence at sentencing by failing to
object contemporaneously when it was offered. Miller, 173 Ill. 2d
at 191. We also reject defendant's argument that the admission of
this evidence at sentencing was plain error. The evidence of
defendant's guilt was overwhelming and there was a substantial
amount of evidence in aggravation. In addition, because defendant
was the first to introduce psychiatric evidence, admission of
testimony concerning the fitness examination did not deprive her of
a fundamental right. Buchanan, 483 U.S. at 422-23, 97 L. Ed. 2d at
355, 107 S. Ct. at 2917-18. Furthermore, we hold that defense
counsel's failure to object to the admission of this evidence at
sentencing did not violate defendant's sixth amendment right to the
effective assistance of counsel because, in light of the evidence
against her, defendant failed to establish a reasonable probability
that the jury's verdict would have been different absent counsel's
alleged error. Albanese, 104 Ill. 2d at 525.
Defendant also contends that the psychologist's testimony at
sentencing about sexual sadism improperly converted the mitigating
factor of mental illness into an aggravating factor. See Zant v.
Stephens, 462 U.S. 862, 885, 77 L. Ed. 2d 235, 255, 103 S. Ct.
2733, 2747 (1983) (holding that certain factors may not
constitutionally be labeled as aggravating). Once again, we hold
that defendant waived this alleged error by failing to object.
Defendant further contends that the trial court improperly
admitted testimony by the psychologist that defendant was sane.
Defendant asserts that sanity cannot be an aggravating factor
because it applies to every defendant eligible for the death
penalty. See Arave v. Creech, 507 U.S. 463, 474, 123 L. Ed. 2d 188,
200-01, 113 S. Ct. 1534, 1542-43 (1993) (holding that if an
aggravating circumstance applies to every defendant eligible for
the death penalty, the circumstance is constitutionally infirm). We
reject defendant's challenge to this testimony. The State did not
affirmatively attempt to use defendant's sanity as an aggravating
factor, but rather mentioned it solely to rebut defendant's
argument in mitigation that the jury should refrain from imposing
the death penalty due to defendant's purported mental illness.
Evidence in Aggravation
Defendant contends that the trial court erred in admitting
testimony of a fellow inmate in aggravation. First, defendant
argues that the testimony was irrelevant and prejudicial. The
inmate testified that defendant confessed to committing the sexual
assault and murder at issue in the instant case. The inmate also
related specific details of the crimes as told to her by defendant.
Defendant argues that in eliciting this testimony, the State was
improperly relitigating defendant's guilt. We disagree. Evidence
concerning a defendant's role and participation in the commission
of an offense is admissible at sentencing to establish defendant's
character. People v. Turner, 156 Ill. 2d 354, 368 (1993).
The inmate also testified that defendant had stated she could
avoid going to prison for the assault and murder by pleading
insanity. Defendant argues that the prejudicial nature of this
testimony outweighed its probative value. We hold that this
testimony was properly admitted at sentencing to show defendant's
lack of remorse for her crimes. People v. Barrow, 133 Ill. 2d 226,
281 (1989).
Second, defendant contends that the trial court improperly
admitted evidence that she took her infant daughter to the hospital
in 1989. The examining doctor testified that the infant had a
severe second-degree burn in a clearly demarcated line around her
buttocks. The doctor testified that he believed the burn was caused
by someone intentionally dipping the child into scalding water,
because there were no burns or splash marks on any other part of
her body. Defendant argues that because it is plausible that her
daughter was burned accidentally, the doctor's testimony was unduly
prejudicial. We disagree. Given the State's presentation of
extensive additional evidence that defendant had a history of
sexually and physically abusing her daughter, the testimony
concerning the burn injury was admissible.
Third, defendant contends that the trial court erred in
admitting evidence that she allegedly sexually assaulted another
inmate while incarcerated awaiting trial. A prison guard testified
that one morning, several inmates told her that defendant had
sexually assaulted an inmate. The guard testified that when she
asked the alleged victim if defendant had assaulted her, the inmate
nodded slightly, but would not say anything out loud. The guard
testified that the alleged victim had marks on her neck, face and
arm, and seemed frightened of defendant. The guard further
testified that no report was filed about the incident because the
alleged victim refused to talk about it.
Defendant argues that this testimony was inadmissible because
it was not corroborated by a prison disciplinary report. Evidence
is admissible at the aggravation/mitigation phase of a sentencing
hearing, however, as long as it is relevant and reliable. People v.
Free, 94 Ill. 2d 378, 422 (1983). This determination lies within
the discretion of the trial judge. People v. Eddmonds, 101 Ill. 2d
44, 65 (1984). Because the allegations that defendant perpetrated
a sexual assault were corroborated by the guard's testimony that
the alleged victim was visibly injured and frightened after the
incident, we hold that the trial court did not abuse its discretion
in admitting this testimony.
Defendant also argues that the guard improperly testified as
to the race of the incarcerated sexual assault victim, describing
her as "a real petite little white girl." Because this reference
consisted of a single, isolated statement, we hold that it was not
intended to incite racial prejudice, and did not in fact have such
an effect. People v. Thomas, 137 Ill. 2d 500, 543 (1990). The jury
was repeatedly instructed that it was not to be influenced by any
person's race, and we find no error in the court's handling of this
testimony.
Exclusion of Testimony Concerning Mental Disabilities
Defendant contends that the trial court erred in refusing to
allow a witness to testify regarding the difficulties faced by
mentally handicapped people. The offered witness was a member of
the Illinois Human Rights Commission at the time of trial, and had
previously served as chair of the Advisory Council for the
Education of Handicapped Children of the Illinois State Board of
Education. In an offer of proof, she testified that mentally
handicapped people have a difficult time learning. She also
testified that mentally handicapped parents need support because
they have trouble performing basic parenting skills. On cross-
examination, she conceded that she was not acquainted with
defendant's case.
The trial court refused to allow the witness to testify before
the jury. Defendant argues that this was error because the evidence
the witness would have offered was relevant to mitigation. The
determination of relevance lies within the discretion of the trial
judge. Eddmonds, 101 Ill. 2d at 65. When the witness was introduced
to the court, the defense conceded that it had already presented
expert testimony substantially similar to the testimony it desired
the witness to offer. The defense also conceded that the witness
would not be offering expert testimony. The witness admitted that
she did not know defendant and had not reviewed her medical
history. Finally, the defense failed to notify the court or the
State that it would offer the witness until the moment it did so.
Given the above factors, as well as the trial judge's observation
that there was a significant dispute over whether defendant was in
fact mentally retarded, we hold that the trial court did not abuse
its discretion in refusing to allow the witness to testify.
State's Closing Argument at Sentencing
Defendant contends that the trial court erred in allowing the
State to make various arguments to the jury at the conclusion of
the sentencing phase of trial. Specifically, defendant asserts that
the State improperly argued that there was no excuse for
defendant's crimes, that defense counsel was trying to make the
jury feel guilty, that the evidence clearly established defendant's
guilt, and that defendant's daughter was a "cocaine baby."
We hold that defendant waived these issues by failing to
object contemporaneously when the arguments were made. People v.
Miller, 173 Ill. 2d 167, 191 (1996). Furthermore, because the
evidence in this case was not closely balanced, and because the
State's arguments did not deny defendant a fair trial, we will not
address these issues under the plain error doctrine. Miller, 173
Ill. 2d at 191-92.
Court's Response to Question from Jurors
Defendant contends that the trial court erred in responding to
a note the jury sent to the judge during its deliberations on
defendant's sentence. The note consisted of the following question:
"What happens if we cannot reach a unanimous decision on either
verdict?" Defendant moved that the court respond to this inquiry by
giving the jury the following instruction: "According to the law,
if you are not unanimous, you are to sign the verdict that says you
are not unanimous and it is a no death verdict." The court
overruled this motion, and instead instructed the jury in writing
as follows: "You have your instructions. Keep deliberating."
The general rule is that the trial court has a duty to provide
instructions to the jury where it has posed an explicit question or
requested clarification on a point of law arising from facts about
which there is doubt or confusion. People v. Childs, 159 Ill. 2d
217, 228-29 (1994). A trial court may, however, exercise its
discretion and properly decline to answer a jury's inquiries where
the instructions are readily understandable and sufficiently
explain the relevant law; where further instructions would serve no
useful purpose or would potentially mislead the jury; when the
jury's inquiry involves a question of fact; or if providing an
answer would cause the court to express an opinion which would
likely direct a verdict one way or another. Childs, 159 Ill. 2d at
228.
We believe that the trial court properly exercised its
discretion in refusing defendant's requested instruction and in
directing the jury to continue deliberating. Immediately before
beginning its deliberations on defendant's sentence, the jury was
instructed as follows: "You may not sign a verdict imposing a death
sentence unless you unanimously vote for it." Because the
instructions given to the jury concerning unanimity were readily
understandable and sufficiently explained the relevant law, we hold
that the court did not err in the manner in which it responded to
the jury's inquiry.
Excessiveness of Punishment
Defendant contends that the death sentence imposed by the jury
is excessive when juxtaposed with the evidence in mitigation.
Defendant presented evidence that she was physically and sexually
abused by her alcoholic mother, sexually abused by her mother's
boyfriends, and physically abused by her boyfriend/codefendant. She
also offered evidence that she was depressed and had received
psychiatric treatment, and that she suffers from an antisocial
personality disorder. She asserts that her low IQ qualifies her as
mildly mentally retarded and that this factor alone should preclude
the imposition of the death penalty.
A capital sentencing jury's decision will not be lightly
overturned, particularly where it is amply supported by the record.
People v. Johnson, 146 Ill. 2d 109, 145 (1991). Mitigation evidence
of a defendant's cognitive abilities and mental health does not
preclude imposition of a death sentence when that evidence is
outweighed by aggravating evidence. People v. Wilson, 164 Ill. 2d
436, 460 (1994). Likewise, evidence that a defendant has been
physically or sexually abused or is an alcohol and drug abuser does
not invalidate a death sentence when outweighed by aggravating
evidence. People v. Taylor, 166 Ill. 2d 414 (1995).
Here, defendant confessed to a brutal rape, torture, and
murder of a six-year-old girl. An expert attributed the victim's
death to 42 distinct injuries arising from a combination of
strangulation, puncture wounds to the chest, and blunt head trauma.
In addition, the State offered evidence in aggravation that
defendant had previously assisted in raping one of her friends,
that she had sexually and physically abused her child, and that she
had sexually assaulted a fellow inmate. Considering all of this
evidence, we cannot say that the jury was required to find that the
mitigation evidence precluded imposition of the death penalty. See
People v. Johnson, 146 Ill. 2d 109, 145 (1991).
Constitutionality of Death Penalty
Defendant contends that the trial court's imposition of the
death penalty is unconstitutional on several grounds. First, she
argues that section 9--1(b)(7) of the Criminal Code (720 ILCS 5/9--
1(b)(7) (West 1992)) is facially vague. This section permits the
jury to impose a death sentence if the victim was under 12 years of
age and the death resulted from exceptionally brutal or heinous
behavior indicative of wanton cruelty. We have previously rejected
this argument, and we decline to reconsider that holding. People v.
Odle, 128 Ill. 2d 111, 140 (1988).
Defendant also contends that the Illinois Pattern Jury
Instructions given at both stages of her sentencing hearing
unconstitutionally failed to guide the jury's discretion. See Free
v. Peters, 806 F. Supp. 705 (N.D. Ill. 1992), aff'd in part and
rev'd in part, 12 F.3d 700 (7th Cir. 1993). We have likewise
rejected this argument and refuse to reconsider our holding. People
v. Williams, 161 Ill. 2d 1, 59 (1994).
Defendant next argues that section 9--1(g) of the Criminal
Code (720 ILCS 5/9--1(g) (West 1992)) is unconstitutional because
it places the burden on a criminal defendant to establish that a
sentence other than death should be imposed and thereby precludes
meaningful consideration of mitigation evidence. We reject this
argument, as we have done in the past. People v. Miller, 173 Ill.
2d 167, 200 (1996). In a related argument, defendant asserts that
sections 9--1(c) and (e) are unconstitutionally vague because they
allow the jury to consider aggravating factors other than those
enumerated in the statute. We also adhere to precedent in rejecting
this contention. Miller, 173 Ill. 2d at 200.
Finally, defendant argues that the death penalty statute as a
whole is unconstitutional because it results in arbitrarily or
capriciously imposed death sentences. We decline to reconsider our
previous rejection of this argument. Miller, 173 Ill. 2d at 201.
CONCLUSION
For the reasons stated, defendant's convictions and sentences
are affirmed. The clerk of this court is directed to enter an order
setting Wednesday, September 10, 1997, as the date on which the
sentence of death is to be imposed. Defendant shall be executed in
the manner provided by law. 725 ILCS 5/119--5 (West 1994). The
clerk shall send a certified copy of the mandate in this case to
the Director of Corrections, the warden of Stateville Correctional
Center, and the warden of the institution where defendant is now
confined.
Affirmed.
JUSTICE HARRISON, dissenting:
The trial court should not have admitted testimony from the
state psychologist concerning statements made by defendant during
a 1991 court-ordered examination to determine her fitness to stand
trial. The statements made by defendant during the fitness
examination fell squarely within the terms of section 104--14 of
the Code of Criminal Procedure of 1963 (725 ILCS 5/104--14 (West
1992)), and their admission was specifically prohibited.
Although trial counsel failed to make the appropriate
objections to the psychologist's testimony, admission of that
testimony denied defendant her right to a fair trial and
constituted plain error. The majority invokes Buchanan v. Kentucky,
483 U.S. 402, 97 L. Ed. 2d 336, 107 S. Ct. 2906 (1987), to avoid
this conclusion, but nothing in Buchanan legitimizes the
introduction at trial and sentencing of statements made by a
defendant during a court-ordered fitness hearing where, as here, a
statute expressly prohibits their use.
The due process clause of the fourteenth amendment (U.S.
Const., amend. XIV) prohibits the prosecution of a person who is
unfit to stand trial. People v. Brandon, 162 Ill. 2d 450, 455
(1994). The legislature has enacted a detailed statutory scheme to
ensure that that prohibition is honored, and section 104--14 of the
Code of Criminal Procedure is an integral part of that scheme. In
ruling as it has, the majority has rendered section 104--14 a
nullity. By so doing, it has taken something that was intended to
protect the integrity of the criminal process and subverted it into
a trap for defendants who may be suffering from mental or
psychological impairments.
From this day forward, any defendant who cooperates with a
court-ordered fitness hearing does so at his own peril. Under the
majority's analysis, trial courts will be free to disregard the
terms of section 104--14 without risk of reversal, even where a
timely objection is made, just as long as there is enough other
evidence to support a conviction. For my colleagues, it is simply
a question of the ends justifying the means. In my view, the
concept of a fair trial involves considerably more than that.
I would reverse and remand for a new trial. Accordingly, I
dissent.