People v. Bean

• Decision Date: 18 April 1990
• Docket Number: No. 65062,65062
• Citation: 137 Ill.2d 65,147 Ill.Dec. 891,560 N.E.2d 258
• Parties: , 147 Ill.Dec. 891 The PEOPLE of the State of Illinois, Appellee, v. Harold BEAN, Appellant.
• Court: Illinois Supreme Court

Page 258

560 N.E.2d 258

137 Ill.2d 65, 147 Ill.Dec. 891

The PEOPLE of the State of Illinois, Appellee, v. Harold BEAN, Appellant.

No. 65062.

Supreme Court of Illinois.

April 18, 1990.

Rehearing Denied Oct. 1, 1990.

Charles M. Schiedel, Deputy Defender, Springfield, and Charles W. Hoffman, Asst. Defender, Chicago, both of the Office of the State Appellate Defender, for appellant.

Neil F. Hartigan, Atty. Gen., Springfield, (Robert J. Ruiz, Sol. Gen., and Terence M. Madsen and William P. Pistorius, Asst. Attys. Gen., of Chicago, of counsel), for the People.

Justice STAMOS delivered the opinion of the court:

Defendant, Harold Bean, was convicted of the murder of Dorothy Polulach (Ill.Rev.Stat.1979, ch. 38, par. 9--1(a)) following a jury trial in the circuit court of Cook County. On the State's motion, a death penalty hearing was held; the same jury found that defendant had attained the age of 18 years or more at the time of the murder and that, while two statutory aggravating

                [147 Ill.Dec. 896] factors existed, no mitigating factors existed sufficient to preclude the imposition of the death penalty (Ill.Rev.Stat.1979, ch. 38, pars. 9--1(b)(5), (b)(6), (g)).  The court [137 Ill.2d 76] then sentenced defendant to death on the murder conviction.  The jury also convicted defendant of armed robbery (Ill.Rev.Stat.1979, ch. 38, par. 18--2), for which he was sentenced to 30 years' imprisonment, and solicitation and conspiracy (Ill.Rev.Stat.1979, ch. 38, pars. 8--1(a), 8--2(a)), which merged with the murder conviction.  Defendant's execution was stayed pending direct appeal to this court.  (Ill. Const.1970, art.  VI, § 4(b);  107 Ill.2d Rules 603, 609(a).)   We affirm
                

FACTS

Defendant's involvement in the murder of Dorothy Polulach began in December 1979, when he talked with Ann and Wayne Walters after the wake for Ann's father, who had committed suicide. Ann's father and mother had been divorced, and her father had then married Polulach. During this conversation in December 1979, Ann talked about how she hated Polulach and hated the fact that Polulach would own the house her father had built for her mother, who was living with Ann and her husband, Wayne. At this time, according to the testimony of Wayne Walters, defendant gratuitously offered to "off the bitch," meaning to kill Polulach, in return for "monetary gain." Over the next year defendant intermittently discussed this idea of killing Polulach with the Walterses. When the Walterses explained that they did not have the $2,500 that defendant asked for in advance, defendant suggested they borrow the money from a neighbor, and they did so; the rest of defendant's fee for the killing, agreed to be about $23,000, was to be paid later, after Polulach's will was probated. While Ann favored the idea, Wayne had to be persuaded by his wife and defendant to accede.

Defendant planned the killing and carried it out in Chicago while the Walterses were at their home in Florida. Defendant obtained a priest's cassock and two guns. On February 17, 1981, after setting up an appointment with Polulach, he and an accomplice went to her house while another accomplice waited in a car. After being admitted to the house by Polulach, defendant, dressed as a priest, handcuffed her hands and feet and dragged the 80-year-old woman up a flight of stairs while she kicked and screamed. When his gun did not fire, defendant sent his accomplice back to their car to get the second gun; defendant then shot Polulach twice in the back of the head. After searching the house for valuables but finding only some jewelry, which they took, defendant and his accomplice left.

Defendant then went to Florida looking for money from the Walterses, but got very little. While there, defendant told the Walterses how he had killed Polulach. Later, in April, the Walterses confessed to the Chicago police their part in the killing. When defendant heard of this, he, one of his accomplices, and his girlfriend, Deborah Youngbrandt, fled by car out of Illinois, only to return to Chicago in a few days in a stolen pickup truck minus the accomplice, who had been arrested for a traffic violation in Nebraska. After they returned to Chicago, Youngbrandt managed to escape from defendant (she considered herself kidnapped, and testified she only learned of the killing during this journey). Defendant was later found and arrested by the police.

Originally, defendant and one of his accomplices were jointly tried for murder and other offenses, and defendant was convicted and sentenced to death; but this court reversed and remanded for a new trial, holding that the original trial court erroneously refused to grant defendant's motion for severance. (People v. Bean (1985), 109 Ill.2d 80, 84, 92 Ill.Dec. 538, 485 N.E.2d 349.) Defendant's pending conviction and death sentence resulted from a second trial.

ANALYSIS

Defendant presents 19 issues for consideration, and he argues that either we should reverse and remand for a new trial, or we should vacate his death sentence and remand for a new death penalty hearing or

[147 Ill.Dec. 897] imposition of a sentence other than death; defendant also seeks remand for a new sentencing hearing on his armed robbery conviction. Defendant's issues can be arranged as: (1) a challenge to the trial court's conduct of voir dire; (2) challenges to rulings of the trial court and this court that denied defendant discovery of a witness' mental health records; (3) challenges to the admissibility of evidence; (4) challenges to the trial court's conduct of the trial and death penalty hearing; (5) claims of ineffective assistance of counsel; (6) challenges to the appropriateness of his sentences of death and imprisonment; and (7) challenges to the constitutionality of the Illinois death penalty statute.

Defendant's Absence from a Portion of Voir Dire

Defendant's first argument for reversal of his convictions and remand for a new trial is that during the individual voir dire of five venire members, each was brought back into the judge's chambers for further questioning, questioning from which defendant himself was absent in each instance. Defendant argues that his absence from these in camera voir dire sessions deprived him of his right to be present during the entire jury selection process, a right secured by the Illinois and United States Constitutions. Because defendant is not clear as to what particular provisions of the Illinois and United States Constitutions he is relying upon, we analyze his claim using the provisions we find most appropriate and most promising for the success of his claim: section 8 of article I of the Illinois Constitution and the fourteenth amendment to the United States Constitution (Ill. Const.1970, art. I, § 8; U.S. Const., amend. XIV).

Initially, we note that there were actually six venire members questioned by the trial judge in his chambers, although defendant's argument refers to only five venire members. These discussions were initiated by the trial judge during the individual voir dire of each of the six venire members when three of them said that they had read or heard publicity about the murder, when two of them had difficulty expressing their views on the death penalty, and when one of them said that his previous services as a juror in a murder trial might cause him to not be fair and impartial in this trial. Each time, in open court and in defendant's presence, the trial judge instructed the venire member to come back to his chambers. Also attending these in-chambers discussions, besides the trial judge and each venire member, were defendant's two attorneys, the two prosecuting assistant Attorneys General, and a court reporter who transcribed the discussions.

Defendant's argument is divided into a broader argument and a more specific argument; his broader argument is that as a result of his absence from the in camera voir dire he was deprived of his right to be present at all stages of trial at which his presence was necessary, whereas defendant's more specific argument is that he was only actually prejudiced by his absence from the in camera voir dire of one venire member, venire member B* * *. In addressing both levels of this argument we make two observations: (1) none of these six venire members served on the jury which convicted defendant, and (2) if defendant had been present he could have influenced only whether venire member B* * * served on the jury. This is because, of the six venire members, four were excused for cause by the trial judge, and one was a potential alternate juror but all of the alternate jurors were chosen before she was reached. (Further negating any prejudice to defendant relating to this potential alternate juror was the excusal of the alternate jurors in this case before the jury deliberated.) Thus, defendant necessarily rests his argument of actual prejudice on his absence from the in camera voir dire of venire member B* * *, whom defendant's attorney peremptorily challenged.

Our standard of review on this issue is that of the plain error doctrine, for defendant did not raise this issue either through a trial objection or in his post-trial motion. (People v. Precup (1978), 73 Ill.2d 7, 16-17, 21 Ill.Dec. 863, 382 N.E.2d 227; 107 Ill.2d R. 615(a).) A plain error occurs only when a defendant is deprived of a Undeniably, a criminal defendant has a general right to be present at every stage of his trial, including jury selection. (Illinois v. Allen (1970), 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353, 356; People v. Smith (1955), 6 Ill.2d 414, 416, 129 N.E.2d 164.) This court and the United States Supreme Court, however, have limited the situations in which the denial of this broad right of presence constitutes a violation of the Illinois and United States Constitutions. We examine this issue first by applying Illinois constitutional law, then by applying Federal constitutional law.

                [147 Ill.Dec. 898] substantial

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