{ "id": 3141477, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GEORGE W. DEL VECCHIO, Appellant", "name_abbreviation": "People v. Del Vecchio", "decision_date": "1985-02-22", "docket_number": "No. 52800", "first_page": "414", "last_page": "449", "citations": [ { "type": "official", "cite": "105 Ill. 2d 414" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "100 S. Ct. 1603", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "63 L. Ed. 2d 788", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "445 U.S. 953", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1777890, 1777309, 1777767, 1777866, 1777514, 1777806, 1777458, 1777592, 1777335, 1777720, 1777467, 1777725 ], "opinion_index": 0, "case_paths": [ "/us/445/0953-01", "/us/445/0953-11", "/us/445/0953-05", "/us/445/0953-09", "/us/445/0953-06", "/us/445/0953-10", "/us/445/0953-04", "/us/445/0953-12", "/us/445/0953-02", "/us/445/0953-07", "/us/445/0953-03", "/us/445/0953-08" ] }, { "cite": "354 U.S. 156", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6159400 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "175-77" }, { "page": "1265-67" }, { "page": "1137-38" } ], "opinion_index": 0, "case_paths": [ "/us/354/0156-01" ] }, { "cite": "103 Ill. 2d 133", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152504 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/103/0133-01" ] }, { "cite": "103 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152076 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/103/0001-01" ] }, { "cite": "77 Ill. 2d 531", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5489531 ], "weight": 2, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0531-01" ] }, { "cite": "196 Cal. 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Ed. 2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "456 U.S. 959", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6331589, 6331112, 6330419, 6330131, 6331349, 6330714, 6330908 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/456/0959-07", "/us/456/0959-05", "/us/456/0959-02", "/us/456/0959-01", "/us/456/0959-06", "/us/456/0959-03", "/us/456/0959-04" ] }, { "cite": "88 Ill. 2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082394 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "384" }, { "page": "380-83" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0342-01" ] }, { "cite": "82 Ill. 2d 145", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474529 ], "weight": 2, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0145-01" ] }, { "cite": "79 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3069192 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/79/0564-01" ] }, { "cite": "43 Ill. 2d 375", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2844221 ], "weight": 2, "pin_cites": [ { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/43/0375-01" ] }, { "cite": "104 S. 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GEORGE W. DEL VECCHIO, Appellant." ], "opinions": [ { "text": "JUSTICE GOLDENHERSH\ndelivered the opinion of the court:\nIn an indictment returned in the circuit court of Cook County, defendant, George W. Del Vecchio, was charged with murder (Ill. Rev. Stat. 1975, ch. 38, par. 9 \u2014 1(a)(2)), rape (Ill. Rev. Stat. 1975, ch. 38, par. 11 \u2014 1), deviate sexual assault (Ill. Rev. Stat. 1975, ch. 38, par. 11 \u2014 3), and burglary (Ill. Rev. Stat. 1975, ch. 38, par. 19 \u2014 1). Following a jury trial, defendant was found guilty of each of the charged offenses. In a hearing requested by the People, the jury found that there existed one or more of the factors set forth in section 9 \u2014 1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9 \u2014 1(b)) and that there were no mitigating factors sufficient to preclude a sentence of death. Defendant was sentenced to death, and the sentence was stayed (87 Ill. 2d R. 609(a)) pending appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill. 2d R. 603). The defendant was also sentenced to 15 years for rape, 6 years for deviate sexual assault, and 7 years for burglary.\nAt trial, Karen Canzoneri testified that she and her six-year-old son, Tony, occupied the first-floor and attic levels in a two-flat building in Chicago. On the evening of December 22, 1977, Mrs. Canzoneri, Tony, and Santo Falcone had driven to Lombard, where Mrs. Canzoneri purchased a stereo receiver. When they returned to Chicago they stopped at a tavern, and while there they saw defendant and his wife, Rose, both of whom they knew. When they left the tavern approximately a half hour later, Rose Del Vecchio came with them. After assembling the stereo which Mrs. Canzoneri had purchased, Falcone put Tony to bed downstairs. When Falcone returned upstairs, defendant was with him. Defendant brought with him a briefcase containing marijuana which he, Falcone, and Rose Del Vecchio smoked. After approximately an hour, Mrs. Canzoneri asked them to leave.\nAt about dawn, Mrs. Canzoneri was awakened when she heard footsteps. When she asked who was there, defendant identified himself, stating he \u201cwanted to talk.\u201d Mrs. Canzoneri attempted to shoot defendant with a pistol which Falcone had given her, but defendant slapped it out of her hand. Defendant would not permit her to check on Tony, responding that Tony was sleeping peacefully. When she attempted to leave the room to check on her son, defendant pushed her back on the bed, kissed her face, breasts, vagina, and legs, and despite her request to stop, had intercourse with her. During the intercourse, she heard a telephone ring. She asked defendant to let her answer it because it was probably her mother, who lived across the street. She told him that unless she answered the telephone, her mother would come over. Defendant did not respond. Mrs. Canzoneri could not determine which of the three telephones in the apartment was ringing. The ringing stopped. The telephone rang again and defendant went downstairs. Mrs. Canzoneri looked for the telephone but could find only the cord. The telephone, severed from the cord, was found later when the police searched the premises. She ran downstairs and across the street to her mother\u2019s house. Mrs. Canzoneri told her mother she had been raped and called the police.\nChicago police officer William Sacco testified that five police officers responded to the call of a rape in progress. Mrs. Canzoneri told the officers that there was a man with a gun in her house, that she knew the man and that it was defendant. After searching the first floor, the officers went up to the attic bedroom. Alerted by the sound of snow crunching outside the window, Officer Sacco saw defendant crawling on the roof and ordered him inside. Defendant responded by blurting, \u201cI didn\u2019t kill nobody.\u201d Defendant was arrested, given Miranda warnings, and handcuffed. Officer Richard Elmer testified that, after searching various areas of the building and interviewing a neighbor, he and other officers discovered a crawl space located under the stairs. They opened the door and found the body of Tony Canzoneri. Later examination showed that the boy\u2019s trachea, carotid artery, jugular vein and vagus nerve were completely severed, and the third and fourth cervical vertebrae were fractured.\nIt appears from the testimony that when she entered her home earlier that evening Mrs. Canzoneri left her purse on the kitchen table. Her purse, among other things, contained her keys, and a credit card. When defendant was taken into custody, the credit card was in his possession.\nDefendant contends first that he did not receive effective assistance of counsel. The record shows that prior to trial defense counsel had indicated that the defense would be insanity. Counsel attempted to determine whether the circuit court would permit the People to rebut the insanity defense with evidence of defendant\u2019s 1965 convictions for murder, robbery and attempted robbery. The circuit court stated that until the evidence of insanity was presented it could not determine whether evidence of the prior convictions was relevant. Defendant contends that defense counsel should have made an offer of proof concerning the evidence which would be presented and that the failure to do so constituted ineffective assistance of counsel. Defendant argues that because of the failure to make an offer of proof counsel did not learn whether the circuit court would exclude evidence of the prior convictions and therefore were unable to make an informed tactical decision concerning the defense to be presented. Defendant contends that, as a result, counsel withdrew a meritorious insanity defense and instead relied on an intoxication defense for which the evidence did not present a prima facie case.\nThe People contend that defendant received excellent representation. They state that defense counsel interviewed 30 to 40 witnesses, filed numerous pretrial motions, obtained court-ordered psychiatric examinations of defendant, vigorously cross-examined the People\u2019s witnesses, and called 24 witnesses to testify on behalf of defendant. The People further note that prior to the People\u2019s cross-examination of Dr. Stipes, who had testified concerning the effect of the ingestion of PCP, defense counsel, in limine, indicated they would tender an insanity instruction. The court offered defense counsel a choice of an insanity instruction, in which event the People would be permitted to rebut the defense with evidence of defendant\u2019s prior convictions, or forgoing an insanity instruction, thereby precluding introduction of evidence of the prior convictions. It was at this point, and for this reason, that defense counsel elected to withdraw the insanity defense and proceed on an intoxication theory.\nIn People v. Albanese (1984), 104 Ill. 2d 504, after reviewing the Supreme Court\u2019s recent opinion in Strickland v. Washington (1984), 466 U.S. _, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and this court\u2019s opinion in People v. Greer (1980), 79 Ill. 2d 103, the court said:\n\u201cAlthough we do not foresee that application of the Strickland rule will produce results that vary significantly from those reached under Greer, we hereby adopt the Supreme Court rule for challenges to effectiveness of both retained and appointed counsel (see People v. Royse (1983), 99 Ill. 2d 163, 170) and reject the single-component test of Twomey.\nTo assist lower courts, the Supreme Court also offered the following guidelines for applying its two-component standard: \u2018[A] court need not determine whether counsel\u2019s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. *** If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.\u2019 466 U.S. _., _, 80 L. Ed. 2d 674, 699, 104 S. Ct. 2052, 2069-70.\u201d 104 Ill. 2d 504, 526-27.\nOn this record, we are unable to say that defendant was prejudiced by counsel\u2019s alleged ineffectiveness. Clearly, defendant\u2019s contention that the evidence presented with respect to the intoxication defense failed to establish a prima facie case is without merit because an instruction was given on the intoxication defense and the jury chose to reject it. Obviously the jury also rejected the evidence of defendant\u2019s insanity adduced at the sentencing hearing because it failed to find the existence of the mitigating factor that \u201cdefendant was under the influence of extreme mental or emotional disturbance\u201d (Ill. Rev. Stat. 1977, ch. 38, par. 9 \u2014 1(c)(2)). Thus, we are unable to say that counsel\u2019s performance caused substantial prejudice to the defendant without which the result of the trial would probably have been different.\nDefendant contends next that he was denied a fair trial because of the assistant State\u2019s Attorneys\u2019 personal attacks on defense counsel and their improper argument that the defense was a fraud. In the cross-examination of a police officer, defense counsel attempted to show that the officer had refused to discuss the case with one of defendant\u2019s attorneys. On redirect examination the assistant State\u2019s Attorney asked the officer if it was \u201chis practice to talk to defense attorneys, people who represent murderers?\u201d In closing argument the assistant State\u2019s Attorney asserted that the jury had heard \u201cmany different defenses,\u201d with the defenses shifting first to one and then back to the other. Comment was made to the effect that the insanity defense had been withdrawn \u201cbecause it wasn\u2019t working.\u201d In several instances objections were sustained, and in one instance a motion for mistrial was denied.\nIt would have been better if the comments of which defendant complains had not been made, but on this record we conclude that the comments did not result in prejudice which requires reversal. Defendant has not denied that he committed the homicide, and the context in which the improper argument was made is unlikely to have influenced the jury in deciding the crucial question whether defendant\u2019s intoxication from the ingestion of POP rendered him unable to form the intent necessary to commit the offense.\nAs the court said in People v. Smothers (1973), 55 Ill. 2d 172:\n\u201cThe character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial judge has performed his duty and properly exercised the discretion vested in him. (North Chicago Street Ry. Co. v. Cotton, 140 Ill. 486.) The general atmosphere of the trial is observed by the trial court, and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld.\u201d (55 Ill. 2d 172, 176.)\nWe find no such abuse of discretion here.\nDefendant contends next that the circuit court committed reversible error in permitting the People to introduce irrelevant testimony that defendant had committed adultery and to argue, without any basis in the evidence, that defendant and his wife engaged in deviate sexual activity. The testimony to which this contention refers was elicited during the cross-examination of defendant\u2019s wife, Rose Del Vecchio, who stated that Mary Blackstone had lived in their home and that during that period she had slept with defendant. The reference to improper prosecutorial comment concerns a remark to the effect that defendant, his wife, and another woman were in bed together. This comment was in turn based on an attempt to elicit from Mrs. Del Vecchio the admission that there had been a lesbian relationship between the witness and Ms. Blackstone.\nIn the context of the entire record it is difficult to see that the relationship of either defendant or his wife with Ms. Blackstone was material to the issues in the case, but an argument can be made that in view of the wide-ranging direct testimony of Mrs. Del Vecchio the cross-examination concerning defendant\u2019s adultery with Ms. Blackstone may have been proper. In our opinion, however, neither question warrants lengthy analysis or discussion. Defendant\u2019s evidence shows that he was an admitted narcotics dealer, a regular user of PCP, and on the night of the occurrence in question, he asserts that he was so completely intoxicated by reason of the ingestion of PCP that he has no recollection of what occurred. In view of those circumstances we conclude that evidence of his adultery with Ms. Blackstone or the possibility that the jury may have concluded there was a lesbian relationship between defendant\u2019s wife and Ms. Blackstone would have had no prejudicial effect on the jury. This was not a situation where defendant denied the commission of the offenses; the only issue involving defendant\u2019s credibility was whether he was intoxicated at the time of the homicide. Under the circumstances we hold that if any error was committed, it was, beyond a reasonable doubt, harmless.\nDefendant contends next that the circuit court erred in refusing to grant a mistrial or to excuse veniremen who overheard a juror state her personal opinion of the accused. Defendant contends that the circuit court should have interrogated the remaining veniremen concerning the effect of the remark. Upon commencement of voir dire, the court instructed the prospective jurors that defendant was presumed innocent, that this presumption would be overcome only by proof of guilt beyond a reasonable doubt, and that they were to base their decision solely on the evidence presented at trial. The court then posed several questions to the prospective jurors collectively, regarding whether any had discussed the case. The court instructed them to answer by standing. If a prospective juror stood he would then be examined individually by the court. Following that questioning period, jurors were called to the jury box 12 at a time and examined individually in panels of four. One of the prospective jurors said she had read about and discussed the case. When asked whether she had reached an opinion of defendant\u2019s guilt, she responded, \u201cI think the guy shouldn\u2019t be out walking the streets.\u201d The court then excused all five prospective jurors who had previously responded that they had knowledge of the case through pretrial publicity.\nWhile our system of jurisprudence requires the participation of fair and impartial jurors, it is not necessary that they be totally ignorant of the facts of the case before they assume their roles as jurors. (Irvin v. Dowd (1961), 366 U.S. 717, 722, 6 L. Ed. 2d 751, 756, 81 S. Ct. 1639, 1642.) The court excused those who had responded that they had previous knowledge of the case. The remaining veniremen who heard the comment had not otherwise heard about the case. We are unable to say that because of this single, isolated comment the jurors were unable to reach a verdict based solely on the evidence.\nDefendant has also argued that the systematic exclusion of veniremen opposed to the death penalty denied him his right to a jury drawn from a fair cross-section of the community and resulted in a jury biased toward the prosecution. We have considered and rejected this latter contention that qualifying a jury according to the principles of Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, results in a jury biased in favor of conviction (People v. Lewis (1981), 88 Ill. 2d 129, 147, cert. denied (1982), 456 U.S. 1011, 73 L. Ed. 2d 1308, 102 S. Ct. 2307) and decline to reconsider it here. Implicit in that holding was our conclusion that a jury chosen in accordance with the principles of Wither-spoon does not deny defendant a jury drawn from a fair cross-section of the community.\nWe consider next defendant\u2019s contention that his sentence must be vacated because it was imposed by a jury which was selected in violation of the principles established in Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770. In Witherspoon, the Supreme Court held that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. The court said:\n\u201cUnless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.\u201d (391 U.S. 510, 516 n.9, 20 L. Ed. 2d 776, 781-82 n.9, 88 S. Ct. 1770, 1774 n.9.)\nDefendant contends that one juror was improperly excused during voir dire in violation of the standard set forth in Witherspoon. The following colloquy, in pertinent part, occurred:\n\u201cTHE COURT: *** Now, with respect to\u2014 I asked some questions with respect to the juror\u2019s views on the death penalty.\nIs there anyone here who feels that\u2014 who feels that after you\u2014 if you sat on a jury that found a defendant guilty of murder, is there anyone here who feels that he or she would automatically set the penalty at death after a\u2014 after a finding of guilty of murder?\n(No responses.)\nTHE COURT: Okay, yes, sir.\nPROSPECTIVE JUROR RADEK: Russell Radek, 397. You know, I thought about it last night, you know, about the statement, and the death penalty, and I just don't think I\u2014 that I could do that.\n* * *\nTHE COURT: Is your feeling such that no matter what the circumstances, no matter what the background of the defendant is, is your feeling such that you consider a set of facts under which you would consider signing\u2014 consider signing a verdict affixing the punishment of death?\nPROSPECTIVE JUROR RADEK: I don\u2019t think I have that right to do that.\u201d\nDefendant argues that \u201cat no time did Mr. Radek make it unmistakably clear that he would vote against the death penalty regardless of the evidence.\u201d The circuit court is in a superior position to ascertain the meaning a venireman intends to convey. In our opinion the standards of Witherspoon were met and the prospective juror\u2019s inclusion of \u201cI think\u201d did not render his answers ambiguous. We are persuaded that regardless of what the evidence showed, he would have voted against the imposition of the death penalty, and we conclude that the circuit court did not err in excusing him.\nDefendant contends next that the circuit court erred in holding a single hearing at which the jury heard evidence of statutory aggravating factors along with evidence of mitigation and nonstatutory aggravating factors. Defendant contends that this resulted in prejudice requiring reversal. He points out that with reference to the statutory aggravating factors the People\u2019s burden of proof is beyond a reasonable doubt, and the rules of evidence apply; whereas on the question whether the mitigating factors are sufficient to preclude a death sentence, information is admissible without regard to the rules of evidence, and the statute specifies no burden of proof. Defendant argues that evidence of defendant\u2019s prior convictions for armed robbery and attempted armed robbery, which were introduced as evidence of nonstatutory aggravating factors, were irrelevant to the question of the statutory aggravating factors.\nWhile we do not exclude the possibility that a factual situation might arise which would require a hearing bifurcated in the manner for which defendant contends, we are of the opinion that no such bifurcation was required here, and that defendant was not prejudiced. The two statutory aggravating factors alleged were that the defendant had been convicted of two intentional or premeditated murders, and that the murder of Tony Canzoneri occurred in the course of the commission of another felony. We fail to perceive in what manner the evidence of nonstatutory aggravating matters could have affected the verdict of the jury on these two questions. The testimony shows that, in the 1965 murder of which defendant was convicted, he fired several shots at the deceased while he lay helpless on the sidewalk. With respect to the other aggravating factor, the evidence is overwhelming of defendant\u2019s guilt of rape and deviate sexual assault. On the record before us we conclude that defendant\u2019s contentions are without merit.\nDefendant contends next that the circuit court erred in admitting evidence at the sentencing hearing of his allegedly involuntary confession and subsequent guilty plea to the 1965 murder of Fred Christiansen without first conducting a hearing on his motion to suppress the confession on voluntariness grounds. While defendant contests the voluntariness of his inculpatory statement, he does not contend that the guilty plea was involuntarily entered. This court has held that \u201ca constitutional right, like any other right of an accused, may be waived, and a voluntary plea of guilty waives all errors or irregularities that are not jurisdictional.\u201d (People v. Brown (1969), 41 Ill. 2d 503, 505.) Thus, the issue was waived by the voluntary plea of guilty.\nDefendant next contends that the circuit court improperly sustained the People\u2019s objections to evidence which would have shown the manner in which defendant had helped other persons. Defendant argues that the evidence was relevant to mitigation and to show his potential for rehabilitation. The first ruling of which defendant complains occurred during the following exchange between defense counsel and defendant\u2019s half-sister, Laura Rosiles:\n\u201cMR. QUEENEY [defense counsel]: In what ways would he help those men in jail?\nLAURA ROSILES [half-sister]: Well, I talked to Howie. From what I understand he was suffering\u2014\nMR. THEOBALD [assistant State\u2019s Attorney]: Objection.\nTHE COURT: Sustained.\u201d\nThe defense also presented testimony of Marilyn Berg that defendant had helped her oldest son in his problems with the police, and had talked to her about her husband\u2019s problems. The second allegedly erroneous ruling occurred during the following colloquy:\n\u201cMR. QUEENEY [defense counsel]: Did George ever talk to you about your husband?\nA: Yes, he did.\nQ: What kind of problems does your husband have?\nMR. OBBISH [prosecuting attorney]: Objection, Judge.\nTHE COURT: Objection sustained.\u201d\nAs the People point out, defense counsel was at no time precluded from eliciting testimony regarding the help defendant offered to these men. In the first instance, the circuit court properly sustained an objection to the witness\u2019 nonresponsive answer. In the second instance, it correctly sustained the objection to defense counsel\u2019s irrelevant questions regarding the nature of Mrs. Berg\u2019s husband\u2019s problems. There was no offer of proof concerning the evidence sought to be introduced, and absent such offer we are unable to review the matter.\nDefendant contends next that the People improperly introduced irrelevant and prejudicial evidence that Fred Christiansen, the 1965 murder victim, was survived by a spouse and a child. At the death penalty hearing, during the assistant State\u2019s Attorney\u2019s interrogation of a Chicago police officer, the following ensued:\n\u201cQ: And while you were at the Belmont Hospital, did you have occasion to see Helen and Geraldine Christian-sen?\nA: Yes, I did.\nQ: And did they make an identification of their husband and their father at the Belmont Hospital?\nA: Yes, they did.\u201d\nThe People respond that this testimony was relevant for the purpose of showing the victim\u2019s identity. Defendant contends that it cannot be argued that this testimony was offered for the purpose of identification because the victim had already been identified by Officer Cavanaugh, who had appeared at the scene and who testified that he knew Christiansen. There was no further interrogation on the matter, and we conclude that the error, if any, was harmless.\nThe next reference to the victim\u2019s family to which defendant objects occurred during closing argument, when the assistant State\u2019s Attorney commented:\n\u201cMrs. Christiansen in 1965 lost her husband, and for that life she got the short end of the stick. Mrs. Christiansen got shortchanged by the criminal justice system in Illinois, because for that life, for that precious life, eight years was the penalty that he paid for that, and not only did Mrs. Christiansen suffer from that, but now the Canzoneri family has had to suffer from that.\u201d\nCiting People v. Bernette (1964), 30 Ill. 2d 359, defendant argues that, despite the fact that defense counsel did not object, the reference to the victims is prejudicial error requiring reversal. In Bernette the court held that the evidence relating to the victim\u2019s family had no relevance to guilt or innocence. What occurred here, both in the testimony and in argument, is clearly distinguishable from Bernette. In Bernette the People elicited detailed testimony concerning the deceased\u2019s surviving family and commented on it in argument. Moreover, although remarks regarding a deceased\u2019s family are generally improper, we have held that where, as here, the comments occurred during the sentencing hearing, the ordinary rules controlling the admissibility of evidence do not apply. (People v. Davis (1983), 95 Ill. 2d 1, 37.) In Davis, the defendant\u2019s death sentence was upheld despite similar comments. (See also People v. Free (1983), 94 Ill. 2d 378, cert. denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 200.) Furthermore, the jury was fully aware of the prior murder and the circumstances surrounding it, and we doubt that its verdict was influenced by the argument.\nWe consider next defendant\u2019s argument that certain comments made by the People during both opening and closing arguments improperly referred to the possibility of defendant\u2019s parole in the event the jury chose not to impose the death sentence. During opening argument, the assistant State\u2019s Attorney argued:\n\u201cThe so-called experts who are in charge of the criminal justice system decided that Mr. Christiansen\u2019s life was worth fourteen to twenty years. That\u2019s the sentence that George Del Vecchio received for the murder of Mr. Christiansen. Well, you can see that if George Del Vecchio from 1965 had served even the minimum of that sentence, fourteen years, Tony Canzoneri would be alive today and looking forward to Thanksgiving tomorrow. The so-called experts have said, let George Del Vecchio out after serving eight years in custody, various juvenile facilities and then the Illinois State Penitentiary. They decided George Del Vecchio had been rehabilitated. Those decisions from those so-called experts cost Tony Canzoneri his life.\u201d\nDuring closing arguments, he argued:\n\u201cYou have a right, ladies and gentlemen, to protect yourself from people like George Del Vecchio. You should demand that you be protected from people like George Del Vecchio.\nYou must, you can\u2019t leave it up to the experts. You can\u2019t trust the experts. People like George Del Vecchio\u2014\nMR. QUEENEY: Objection.\nTHE COURT: He may argue.\nMR. OBBISH: \u2014can fool the experts. He\u2019s a manipulator, he\u2019s a malingerer, he fools other people, he uses other people.\nDon\u2019t put the decision on somebody else, because you can\u2019t count on them, because you can bet a few years from now there will be another expert who will be willing to come along and say he\u2019s fine.\u201d\nCiting People v. Walker (1982), 91 Ill. 2d 502, defendant contends that because these comments were made during the sentencing hearing he is entitled to a new sentencing hearing. In Walker the court noted that the possibility of parole was a factor in at least one juror\u2019s mind because the circuit judge had received a note from the jury asking for clarification of the possibility of parole. We find Walker distinguishable in that there is no evidence that the possibility of parole was a factor considered in the jury\u2019s deliberations. Further, the assistant State\u2019s Attorney accurately described the jury\u2019s sentencing choices. As the Supreme Court said, \u201c[s]urely the [defendant] cannot argue that the [United States] Constitution prohibits the State from accurately characterizing its sentencing choices.\u201d (California v. Ramos (1988), 463 U.S. 992, 1005 n.19, 77 L. Ed. 2d 1171, 1183 n.19, 103 S. Ct. 3446, 3455 n.19.) The assistant State\u2019s Attorney was attempting to \u201cinform the jury of the nature of the sentence of imprisonment that may be imposed, including its implication with respect to possible release upon parole, if the jury verdict is against sentence of death.\u201d (463 U.S. 992, 1009 n.23, 77 L. Ed. 2d 1171, 1186 n.23, 103 S. Ct. 3446, 3457 n.23.) We cannot say, in the circumstances shown here, defendant was denied a fair trial. People v. Williams (1983), 97 Ill. 2d 252, 805-06.\nDefendant contends next that psychiatrists, called by the People at the sentencing hearing, were improperly allowed to testify as to the opinions of nontestifying experts. Dr. Richard Rogers, a clinical psychologist, and Dr. James Cavanaugh, a psychiatrist called by the People in rebuttal, testified that, in their opinions, defendant was sane at the time of the offenses, was a sociopath and malingerer who at the time of the offense was not suffering from extreme mental or emotional distress. The testimony of which defendant complains consists of statements that other psychiatrists who had examined defendant reached conclusions consistent with those of Drs. Rogers and Cavanaugh. Citing People v. Ward (1975), 61 Ill. 2d 559, and Wilson v. Clark (1981), 84 Ill. 2d 186, defendant argues that in permitting these experts to testify concerning the opinions of nontestifying witnesses, the circuit court, in violation of defendant\u2019s sixth amendment right of confrontation, erroneously permitted the jury to consider the opinions of the nontestifying psychiatrists. He argues that although under Ward and Wilson an expert may state an opinion based on the report of another witness it was error to permit him to state the opinion of the other witness. The evidence was admitted at the sentencing hearing pursuant to section 9 \u2014 1(e) (Ill. Rev. Stat. 1977, ch. 38, par. 9\u2014 1(e)), which provided:\n\u201cDuring the proceeding any information relevant to any of the factors set forth in Subsection (b) may be presented by either the State or the defendant under the rules governing the admission of evidence at criminal trials. Any information relevant to any additional aggravating factors or any mitigating factors indicated in Subsection (c) may be presented by the State or defendant regardless of its admissibility under the rules governing the admission of evidence at criminal trials. The State and the defendant shall be given fair opportunity to rebut any information received at the hearing.\u201d\nThis court has held that this section suspends the rules of evidence so that the jury may have all relevant information before it. (People v. Free (1983), 94 Ill. 2d 378, 422, cert, denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 200.) Moreover, we are not persuaded that the brief reference to the fact that the opinions of other nontestifying experts were consistent with those experts who testified was prejudicial.\nDefendant\u2019s next contention also concerns the testimony of Dr. James Cavanaugh. Dr. Cavanaugh testified that defendant was sane at the time of the offense, not under \u201cextreme emotional distress,\u201d and diagnosed defendant as possessing an antisocial personality disorder and being a malingerer. It is defendant\u2019s contention that he is entitled to a new sentencing hearing because the circuit court denied him the opportunity to make an offer of proof that Dr. Cavanaugh relied on the report of an unqualified, unlicensed psychologist in forming his own opinion on defendant\u2019s mental condition at the time of the offenses. The record shows that defense counsel sought to examine Dr. Cavanaugh outside the presence of the jury to determine the extent of his reliance on the report. The circuit court denied defense counsel\u2019s request and concluded from a review of the doctor\u2019s report and Dr. Cavanaugh\u2019s direct testimony that the report of the psychologist did not materially affect Dr. Cavanaugh\u2019s opinion. The People argue that the issue has been resolved because this court in People v. Free (1983), 94 Ill. 2d 378, cert, denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 200, found that Dr. Ronald K. Siegel, the psychologist involved, is qualified. (94 Ill. 2d 378, 411.) The circuit court concluded that Dr. Cavanaugh\u2019s opinion was not materially affected by Dr. Siegel\u2019s allegedly unreliable report. On this record we are unable to say that the circuit court erred in its conclusion.\nDefendant contends next that he must be granted a new sentencing hearing because the circuit court, in violation of the statute and defendant\u2019s fifth amendment rights, improperly admitted the testimony of psychiatrists who had made a court-ordered examination of defendant. Defendant argues that under the provisions of section 115 \u2014 6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 115 \u2014 6) the testimony was inadmissible unless he sought to raise the defense of insanity and points out that the defense of insanity was withdrawn during the guilt phase of the trial.\nIn the sentencing hearing defendant called Dr. Edward Senay, who testified that in his opinion defendant was under extreme emotional distress, was unable to conform his conduct to the requirements of the law at the time of the offense, and was suffering from \u201ctoxic psychosis.\u201d It is the position of the People that the testimony of Drs. Cavanaugh and Rogers, who had examined defendant, was admissible, and as previously noted, they testified in rebuttal that defendant was not suffering from extreme emotional disturbance, was able to conform his conduct to the requirements of the law, was possessed of an antisocial personality disorder, and was a malingerer. We find no violation of defendant\u2019s constitutional rights and conclude that under the authority of People v. Silagy (1984), 101 Ill. 2d 147, 174-75, the testimony of Drs. Cavanaugh and Rogers was properly admitted to rebut the testimony of Dr. Senay.\nCiting Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, defendant contends next that at the sentencing hearing he was denied the right to confront witnesses when the circuit court erroneously permitted a police officer to testify concerning the statements of defendant\u2019s accomplices who had implicated defendant in the 1965 robbery and murder of Fred Christiansen. Bruton held that admission at a joint trial of a defendant\u2019s extrajudicial confession implicating a codefendant violated the codefendant\u2019s right of cross-examination guaranteed by the confrontation clause of the sixth amendment. This court has interpreted Bruton and its progeny not to require \u201c \u2018reversal of a defendant\u2019s conviction when the defendant himself has confessed and his confession \u201cinterlocks\u201d with and supports the confession of his codefendant.\u2019 \u201d (People v. Davis (1983), 97 Ill. 2d 1, 21.) Defendant\u2019s confession is not only consistent with, but is more detailed than, the statements attributed to his codefendants. In these circumstances, the admission into evidence of the accomplices\u2019 statements concerning the 1965 murder did not constitute reversible error.\nDefendant contends next that he must be granted a new sentencing hearing because the jury was not instructed that in order to support the finding that there existed the aggravating factor set forth in section 9\u2014 1(b)(3) (Ill. Rev. Stat. 1977, ch. 38, par. 9 \u2014 1(b)(3)), multiple murders occurring as a result of unrelated acts must be premeditated. Alternatively, he contends that he is entitled to a new sentencing hearing because the verdict form finding the existence of that aggravating factor did not state that the murders for which defendant had been convicted were intentional. Defendant\u2019s first argument was considered by this court in People v. Davis (1983), 95 Ill. 2d 1, which held that section 9 \u2014 1(b)(3) does not require premeditated acts, but merely \u201ctwo or more murders resulting from intentional or knowing acts.\u201d (95 Ill. 2d 1, 36.) Notwithstanding,, the error, if any, was cured by the jury instruction which provided:\n\u201cBefore the defendant who has attained the age of eighteen years can be eligible for the death penalty, either or both of the following statutory aggravating factors must be proven beyond a reasonable doubt.\nOne: ***.\nTwo: The defendant George Del Vecchio has been convicted of intentionally murdering Anthony Canzoneri and intentionally murdering one Fred Christiansen.\u201d\nDefendant\u2019s alternative argument that the verdict form omitted the word \u201cintentionally\u201d was waived by his failure to object to the form when tendered or to submit an alternative form.\nDefendant contends next that the death penalty statute is unconstitutional because it permits the consideration of undefined nonstatutory aggravating factors and thus violates the eighth amendment ban on arbitrary and capricious imposition of the death penalty. In support of his argument defendant cites Henry v. Wainwright (5th Cir. 1981), 661 F.2d 56, vacated and remanded (1982), 457 U.S. 1114, 73 L. Ed. 2d 1326, 102 S. Ct. 2922, affd on remand (5th Cir. 1982), 686 F.2d 311, vacated and remanded (1983), 463 U.S. 1223, 77 L. Ed. 2d 1407, 103 S. Ct. 3566, affirmed in part and reversed in part on remand (5th Cir. 1983), 721 F.2d 990, cert. denied (1984), 466 U.S. _, 80 L. Ed. 2d 846, 104 S. Ct. 2374. In People v. Free (1983), 94 Ill. 2d 378, 427, cert, denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 200, we distinguished the Florida statute considered in Henry and need not discuss it again.\nDefendant next contends that he was denied a fair sentencing hearing where the assistant State\u2019s Attorney made insinuations concerning defendant\u2019s misconduct and engaged in prejudicial argument not supported by the evidence. In support of his argument he cites People v. Nuccio (1969), 43 Ill. 2d 375, in which the judgment was reversed and the cause remanded because the State\u2019s Attorney repeatedly insinuated that defendant had previously threatened decedent and some of the prosecution\u2019s witnesses, but failed to call those witnesses, some of whom were in the courtroom. We find it unnecessary to enumerate the instances where the assistant State\u2019s Attorney in the instant case made these alleged insinuations. The court in Nuccio limited its holding to \u201c[wjhere, as here, the guilt of the accused is not manifest, but is dependent upon the degree of credibility accorded by the trier of fact to his testimony and that of the witnesses who testify on his behalf ***.\u201d (43 Ill. 2d 375, 396.) Given the overwhelming evidence of guilt, we find Nuccio inapposite.\nDefendant contends next that the assistant State\u2019s Attorney improperly argued that the jury was to decide whether to impose the death penalty by determining whether the mitigating or aggravating evidence was greater. He argues that the admonition is contrary to the statute and misinformed the jury of its function. We find it unnecessary to set forth the specific remarks which defendant enumerates because we have determined that the effect of the improper argument, if any, was cured when the circuit court sustained defendant\u2019s objections and admonished the jurors that they would be correctly instructed on the law. Prior to retiring for deliberations, the jurors were correctly instructed by the court regarding the law to be applied in the second phase of deliberations. We conclude that the circuit court took proper steps to insure that the jury properly applied the law to the facts of this case.\nWe next consider defendant\u2019s contention that the People\u2019s being given the opportunity to both open and close the final arguments at the sentencing hearing denied him due process. In People v. Williams (1983), 97 Ill. 2d 252, 302-03, we considered and rejected this contention, and we decline to reconsider it here.\nDefendant next argues that the death penalty is excessive and requests this court to reduce the sentence to a term of imprisonment. Citing People v. Carlson (1980), 79 Ill. 2d 564, and People v. Gleckler (1980), 82 Ill. 2d 145, defendant argues that this court is obliged to reduce his sentence because his crimes were caused by mental or emotional disturbance. However, both cases are inapposite, decider vacated the death sentence which had been imposed on the defendant, one of three persons indicted for the murder, because \u201cGleckler, with no criminal history, *** was not the ringleader in this sordid affair; nor [were] his rehabilitative prospects demonstrably poorer than those who received imprisonment terms.\u201d (82 Ill. 2d 145, 171.) Likewise, in Carlson, the court considered as a mitigating factor, inter alia, the fact that defendant had no prior criminal background. Given defendant\u2019s prior serious criminal history (including murder and robbery) and his sole responsibility for the crime, we do not agree that imposition of the death penalty upon defendant was excessive.\nDefendant raises a number of constitutional issues, all of which have been determined adversely to defendant\u2019s contentions. Defendant argues that the constitutional requirement of adequate appellate review mandates written, factual findings by the jury. This precise issue was considered in People v. Gaines (1981), 88 Ill. 2d 342, 384, cert. denied (1982), 456 U.S. 959, 72 L. Ed. 2d 482, 102 S. Ct. 2034, and relying on People v. Brownell (1980), 79 Ill. 2d 508, the court held such findings were not required. Defendant also contends that article I, section 11, of the Illinois Constitution requires that the jury be instructed to consider whether he possessed any rehabilitative potential and because his attorney failed to tender such an instruction, his death sentence should be vacated. In People v. Gaines (1981), 88 Ill. 2d 342, 380-83, cert. denied (1982), 456 U.S. 959, 72 L. Ed. 2d 482, 102 S. Ct. 2034, this issue was decided adversely to defendant. We have also considered and rejected the argument that the statutory mitigating factor of \u201cextreme mental or emotional disturbance\u201d (Ill. Rev. Stat. 1977, ch. 38, par. 9 \u2014 1(c)(2)) is both unconstitutionally vague and impermissibly limiting. (People v. Silagy (1984), 101 Ill. 2d 147, 163-65.) Defendant has also argued that because the death penalty statute provides no data-gathering procedures for compilation of all capital felony cases, this court is unable to prevent its arbitrary imposition. We have previously considered and rejected this contention. (People v. Brownell (1980), 79 Ill. 2d 508, 541-44.) In Pulley v. Harris (1984), 465 U.S. 37, 79 L. Ed. 2d 29, 104 S. Ct. 871, the Supreme Court imposed no requirement not met by our present method of review. Defendant contends that the failure of the death penalty statute to require the People to prove beyond a reasonable doubt the absence of mitigating factors sufficient to preclude the death penalty violates due process of law and the eighth amendment. In People v. Free (1983), 94 Ill. 2d 378, cert, denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 200, we reaffirmed our holding in People v. Brownell (1980), 79 Ill. 2d 508, that a unanimous jury, or the court, must weigh the mitigating factors against the aggravating factors and conclude that there are no mitigating factors sufficient to preclude the imposition of the death sentence. We decline the invitation to reconsider the propriety of those holdings.\nDefendant, in his supplemental brief, argues that, in violation of the eighth and fourteenth amendments, the circuit court improperly instructed the jury that \u201c[n]either sympathy nor prejudice should influence you.\u201d The court gave instructions in the form of Illinois Pattern Jury Instructions (IPI) Criminal, No. 1.01 (2d ed. 1981) (general instructions regarding the functions of the court and the jury), omitting paragraph 4 as recommended by the Illinois Supreme Court Committee for capital cases. Defendant cites People v. Easley (1983), 34 Cal. 3d 858, 671 P.2d 813, 196 Cal. Rptr. 309, which held that, although appeals to the sympathy or passions of the jury are inappropriate at the guilt phase, it is necessary that the jury consider the sympathetic elements of defendant\u2019s background during the death penalty phase, (34 Cal. 3d 858, 880, 671 P.2d 813, 827, 196 Cal. Rptr. 309, 323.) We are not persuaded that the instruction given was inappropriate and note further that no instruction consistent with defendant\u2019s contentions was tendered.\nDefendant contends next that the death penalty was imposed in violation of the eighth and fourteenth amendments to the Constitution of the United States. He argues that \u201cthe essence of the death penalty decisions of the Supreme Court has been that a constitutionally imposed death sentence requires an individualized sentencing process in which the senteneer will decide whether \u2018death is the appropriate punishment in a specific case.\u2019 \u201d He argues, too, that the jurors, despite finding that mitigation did not outweigh aggravation, may have considered capital punishment inappropriate, but may have felt that they were without discretion to return a verdict other than one imposing the death penalty. He contends that for those reasons the jury, in addition to the finding that mitigation did not outweigh aggravation, should have been required to find that death was the appropriate punishment. He contends, too, that the jury may have assumed that it was defendant\u2019s burden to disprove the suitability of the death sentence. We do not agree. Implicit in the statutory scheme is that the jury should carefully weigh the factors \u201cin order to reach a fair and just result, one that is based on the particular circumstances of the offense and the defendant.\u201d (People v. Brownell (1980), 79 Ill. 2d 508, 538.) The holding in Brownell resolves any question of \u201cappropriateness.\u201d\nDefendant contends next that after being found eligible for the death sentence, in violation of the eighth and fourteenth amendments he bore the burden of proving that the death penalty was inappropriate. In People v. Williams (1983), 97 Ill. 2d 252, 302, we held that at the aggravation and mitigation hearing there is no burden of proof, but, rather, the People have the burden of going forward with the evidence, and we decline to reconsider that holding here.\nFinally, defendant asserts that four of the members of this court have previously expressed the opinion that the statute is unconstitutional because it bestows upon the People the sole discretion to determine whether to seek the death penalty, and that this may result in arbitrary application of the statute. (See People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 544 (Ryan, J., Goldenhersh, C.J., and Clark, J., dissenting); People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting), cert, denied (1982), 456 U.S. 1011, 73 L. Ed. 2d 1308, 102 S. Ct. 2307.) Defendant notes that three of the judges filed concurring opinions, relying on stare decisis, upholding the constitutionality of the death penalty statute (see People v. Lewis (1981), 88 Ill. 2d 129, 165 (Goldenhersh, C.J., concurring), 166 (Ryan, J., concurring), 167 (Clark, J., concurring), cert. denied (1982), 456 U.S. 1011, 73 L. Ed. 2d 1308, 102 S. Ct. 2307), and that these opinions were predicated on the assumption that the Supreme Court would review the validity of the statute. The argument continues that because the Supreme Court has denied certiorari, this court is, in effect, the \u201cfinal tribunal\u201d to determine the statute\u2019s validity. Defendant argues that the Supreme Court\u2019s denial of certiorari in, inter alia, People v. Lewis (1981), 88 Ill. 2d 129, cert, denied (1982), 456 U.S. 1011, 73 L. Ed. 2d 1308, 102 S. Ct. 2307, requires this court to reconsider the constitutionality of the statute. We do not agree. However, we note parenthetically that there are decisions of this court on which petitions for writs of certiorari await consideration. (See People v. Gacy (1984), 103 Ill. 2d 1; People v. Holman (1984), 103 Ill. 2d 133; People v. Albanese (1984), 104 Ill. 2d 504.) As the People note, previous denials of certiorari by the Supreme Court do not preclude it from later granting certiorari. (Chessman v. Teets (1957), 354 U.S. 156, 175-77, 1 L. Ed. 2d 1253, 1265-67, 77 S. Ct. 1127, 1137-38.) In People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, cert, denied (1979), 445 U.S. 953, 63 L. Ed. 2d 788, 100 S. Ct. 1603, the majority traced the history of the broad discretion enjoyed by the State\u2019s Attorney in both the initiation and the management of criminal litigation and determined that such discretion was not unconstitutional. Cousins has subsequently been reaffirmed (see, e.g., People v. Lewis (1981), 88 Ill. 2d 129, cert, denied (1982), 456 U.S. 1011, 73 L. Ed. 2d 1308, 102 S. Ct. 2307), and we decline to reconsider it here.\nFor the reasons stated, we affirm the judgment of the circuit court of Cook County. The clerk of this court is directed to enter an order fixing Tuesday, September 17, 1985, as the date on which the sentence of death entered by the circuit court is to be executed. The defendant shall be executed by lethal injection in the manner provided by section 119 \u2014 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 119 \u2014 5). A certified copy of this order shall be furnished by the clerk of this court to the Director of Corrections, to the warden of Stateville Correction Center, and to the warden of the institution wherein the defendant is confined.\nJudgment affirmed.", "type": "majority", "author": "JUSTICE GOLDENHERSH" }, { "text": "JUSTICE SIMON,\nconcurring in part and dissenting in part:\nI concur in the majority\u2019s judgment that the defendant\u2019s conviction for murder should be affirmed, but I dissent from the decision to impose the death penalty. For the reasons set forth in my separate opinions in People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting), in People v. Silagy (1984), 101 Ill. 2d 147, 184 (Simon, J., concurring in part and dissenting in part), and in People v. Albanese (1984), 104 Ill. 2d 504, 549 (Simon, J., concurring in part and dissenting in part), I have concluded that the Illinois death penalty statute violates the United States and Illinois constitutions.\nMoreover, the comments made by the assistant State\u2019s Attorney during the sentencing hearing regarding the possibility of parole for the defendant if the jury chose not to impose the death penalty require that the death sentence be reversed. In People v. Walker (1982), 91 Ill. 2d 502, 515, this court held:\n\u201cOur statute requires that the court or jury, as the case may be, consider aggravating and mitigating factors, which are relevant to the imposition of the death penalty. (Ill. Rev. Stat. 1977, ch. 38, par. 9 \u2014 1(c).) Whether or not the defendant may, at some future time, be paroled is not a proper aggravating factor to consider in determining whether the death penalty should be imposed.\u201d\nThe majority\u2019s attempt to distinguish Walker from this case is unpersuasive. Here, as in Walker, the prosecution argued that the defendant might be paroled if he received a prison term. Here, as in Walker, the trial court overruled objections to this improper argument. Here, as in Walker, the jury may have considered the possibility of parole in determining whether the defendant should be executed, a factor that is not permitted by the Illinois death penalty statute.\nAs this court said in Walker, \u201c[in] a death penalty case, a high standard of procedural accuracy is required in determining whether or not that penalty will be imposed. The procedural errors in this case do not conform to the high standard which must be followed to insure that proper matters are considered in aggravation and that the penalty is applied in as uniform a manner as possible within the framework of an adversary proceeding.\u201d 91 Ill. 2d 502, 517.\nCalifornia v. Ramos (1983), 463 U.S. 992, 1005 n.19, 77 L. Ed. 2d 1171, 1183 n.19, 103 S. Ct. 3446, 3454-55 n.19, is not in point. The defendant has not argued here that the United States Constitution prohibits the State from accurately characterizing its sentencing choices. Rather, he has argued that our death penalty statute prohibits the State from raising improper issues in the determination of aggravating factors. Our opinion in People v. Walker supports that contention. I would therefore vacate the sentence of death and remand to the trial court for resentencing.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE SIMON," } ], "attorneys": [ "Daniel D. Yuhas, Deputy Defender, and David P. Bergschneider, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.", "Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State\u2019s Attorney, of Chicago (Mark Rotert, Assistant Attorney General, of Chicago, and Michael E. Shabat and Sara Dillery Hynes, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 52800.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GEORGE W. DEL VECCHIO, Appellant.\nOpinion filed February 22, 1985.\n\u2014 Rehearing denied March 29, 1985.\nSIMON, J., concurring in part and dissenting in part.\nDaniel D. Yuhas, Deputy Defender, and David P. Bergschneider, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.\nNeil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State\u2019s Attorney, of Chicago (Mark Rotert, Assistant Attorney General, of Chicago, and Michael E. Shabat and Sara Dillery Hynes, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0414-01", "first_page_order": 424, "last_page_order": 459 }