author: CHIEF JUSTICE RYAN JUSTICE SIMON,

text:
    (No. 53415.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LUIS RUIZ, Appellant.

      Opinion filed, December 17, 1982.

    Rehearing denied January 28, 1983.

      SIMON, J., concurring in part and dissenting in part.
    Joel S. Ostrow, of Chicago, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Melbourne A. Noel, Jr., and Thomas E. Holum, Assistant Attorneys General, and Marcia B. Orr and James S. Veldman, Assistant State’s Attorneys, of Chicago, of counsel), for the People.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

By information filed in the circuit court of Cook County, Luis Ruiz and Juan Caballero were charged with the murders of Michael Salcido, Arthur Salcido, and Frank Mussa. The defendants were also charged with armed violence (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 33A — 2) and unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 3(a)) as to each of the victims. Ruiz and Caballero were granted a severance and were subsequently tried simultaneously before a single judge, making use of two separate juries. At the conclusion of trial, the Ruiz jury returned a verdict of guilty on all counts. The prosecutor requested a hearing to consider whether the death penalty should be imposed. The defendant waived a jury and, after hearing evidence in aggravation and mitigation, the trial judge sentenced Luis Ruiz to death. (Ill. Rev. Stat., 1978 Supp., ch. 38, pars. 9 — 1(d), (h).) The sentence was stayed (73 Ill. 2d R. 609(a)), pending direct appeal to this court pursuant to Rule 603 (73 Ill. 2d R. 603). Caballero was also convicted of three counts of murder, three counts of armed violence and three counts of unlawful restraint. After a separate sentencing hearing he was also sentenced to death. We consider in this appeal only the conviction and sentence of Luis Ruiz.

For the reasons expressed in this opinion, we affirm the conviction and sentence of death.

On the evening of February 24, 1979, Arthur Salcido, then 19 years of age, and Frank Mussa, 16 years of age, both of Princeton, Illinois, together with Arthur’s brother, Michael Salcido, 17 years of age, drove from Princeton to Chicago. Michael had been visiting his brother in Princeton, and that night the three boys went to his mother’s apartment in Chicago. The boys had borrowed a car in Princeton and arrived in the city about midnight. At approximately 1 a.m., the three youths left the apartment and drove to an all-night restaurant in the neighborhood.

Defendant Luis Ruiz, aged 19, Juan Caballero, Placedo Laboy, and a fourth youth named Aviles, encountered Arthur, Michael and Frank in the restaurant. Michael approached Ruiz and inquired whether he knew where some marijuana could be obtained. Ruiz responded that he did not have any marijuana and he did not know where any could be obtained. Michael then asked Ruiz if he knew a person named Jose Cortez, a Latin Eagle. Ruiz, who was himself a member of a rival gang, the Latin Kings, asked Michael if he was a Latin Eagle. Michael responded affirmatively. Ruiz then told Michael that he and his companions were also Latin Eagles. At this point, Michael began to brag to Ruiz that he had ridden on “hits” with the Eagles and had been the driver on one such “hit” by the Eagles on two Latin Queens, the female companions and counterparts of the Latin Kings. After this exchange, Ruiz told Michael that he did in fact know where to obtain marijuana and that he would show Michael where to get it.

All got into the victims’ automobile with Michael, Arthur and Frank in the front. Ruiz and his companions were in the back seat. Ruiz directed the driver into an alley where Ruiz and his companions got out of the car. They told Michael to accompany them down the alley and they would show him the location of the marijuana. Once they were out of sight of the automobile, Ruiz and his friends revealed that they were not Eagles but were instead Latin Kings, after which they beat Michael Salcido to the ground. When the beating was over, La-boy produced a gun and Aviles a knife, and they all marched Michael back to the car.

All seven youths then got into the car at the direction of Ruiz and his group. Laboy took over as driver, with Ruiz occupying the back seat along with Michael. Laboy drove to a second alley which was T-shaped. He drove some distance down the “T” where he stopped the car. Laboy and Caballero then took Michael and Frank around the corner of the alley and forced them to lie face down in the snow. Ruiz remained with the car while Aviles stabbed and killed Arthur Salcido in the automobile. Laboy then brought Frank Mussa back to the car, took the same knife, and stabbed Frank Mussa to death. Finally, Caballero returned with Michael Salcido and stabbed him to death in the back seat of the car. The members of the group then took articles of clothing from the trunk of the victims’ automobile and attempted to wipe the vehicle clean of fingerprints. After completing this task, Ruiz and the others all left the scene. Ruiz and Caballero were arrested on March 3, 1979, and charged with the offenses described above.

In this appeal, defendant argues that because there is no evidence that he actually did any of the acts which resulted in death, his conviction on the principle of accountability cannot form the basis for imposition of the death penalty under the Illinois statute (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 9 — 1). Further, if the statute allows death to be imposed on a defendant who is merely accountable for the conduct of another, such provision is unconstitutional. In addition, the defendant argues that the procedure employed at trial denied his right to a severance and that he has not been proved guilty beyond a reasonable doubt.

We turn first to a consideration of whether the proof adduced at trial is sufficient to sustain a conviction for murder, armed violence, and unlawful restraint. We agree with the defendant that there is no direct evidence establishing that Ruiz ever struck any of the blows that resulted in the deaths of the victims. However, the case was submitted to the jury with proper instructions setting forth the principle of accountability, and the record proves Ruiz’ guilt on each charge beyond a reasonable doubt as a willing participant in the criminal enterprise. There is no doubt that Ruiz was legally accountable for the conduct of his companions and, as such, shares equally in their guilt.

In People v. Rybka (1959), 16 Ill. 2d 394, this court upheld the defendants’ murder convictions predicated solely upon their being accountable for the actors’ conduct, even though they were not present during the crime. In Rybka, 13 persons embarked upon a venture to “get a negro.” (16 Ill. 2d 394, 400.) They departed in two groups, employing separate vehicles, an Oldsmobile and a Chrysler. The two groups started out together, being led by the Oldsmobile, but soon became separated. The occupants of the Chrysler eventually disbanded and went home without incident. The other group, however, accomplished their purpose when one of them struck the victim in the head with a hammer. Despite the fact that defendants Gorski and Budz were occupants of the Chrysler and consequently not present when the crime was committed, this court upheld their convictions for murder and observed:

“Evidence that a defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its design supports an inference that he shared the common purpose and will sustain his conviction as a principal for a crime committed by another in furtherance of the venture. People v. Tarver, 381 Ill. 411; People v. Rudecki, 309 Ill. 125.” People v. Rybka (1959), 16 Ill. 2d 394, 405.

Active participation has never been a requirement for the imposition of criminal guilt upon the theory of accountability. People v. Morgan (1977), 67 Ill. 2d 1, 9; People v. Kessler (1974), 57 Ill. 2d 493, 497-98, cert. denied, (1974), 419 U.S. 1054, 42 L. Ed. 2d 650, 95 S. Ct. 635; People v. Allen (1974), 56 Ill. 2d 536, 541, cert. denied (1974), 419 U.S. 865, 42 L. Ed. 2d 102, 95 S. Ct. 120; People v. Hill (1968), 39 Ill. 2d 125, 134-35, cert. denied (1968), 392 U.S. 936, 20 L. Ed. 2d 1394, 88 S. Ct. 2305; People v. Johnson (1966), 35 Ill. 2d 624, 626; People v. Richardson (1965), 32 Ill. 2d 472, 476-77, cert. denied (1966), 384 U.S. 1021, 16 L. Ed. 2d 1023, 86 S. Ct. 1935.

Section 5 — 2(c) of the Criminal Code of 1961 provides that a person is legally accountable for conduct of another when:

“Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. ***” Ill. Rev. Stat. 1977, ch. 38, par. 5-2(c).

In this case, the testimony of Julio Lopez and the assistant State’s Attorney, to whom Ruiz made incriminating statements, establishes that Ruiz was a principal character in the common enterprise obviously bent on committing acts of violence upon the victims. Ruiz admitted to the State’s Attorney that he initiated the plan to mislead the victims into believing that Ruiz and his group were Latin Eagles. This admission was corroborated by Julio Lopez, who testified that on March 2, 1979, Ruiz, in the presence of Placedo Laboy and himself, stated, “Do you know who ‘offed’ those three guys in that car? It was us.” Ruiz then went on to relate the details of the event, including the fact that they had misled their victims into believing they were Latin Eagles instead of Latin Kings. The only conceivable purpose of the deception was to allow Ruiz and his friends to maneuver the victims into a situation where they could avenge the “hit” upon the Latin Queens, of which Michael had bragged earlier. Having aided Caballero and the others in their plot to do violence to these victims by deceiving them and getting them into the car, Ruiz became accountable for the conduct of each member of the group. In fact, the evidence discloses that it was Ruiz who told the victims he could procure marijuana for them and who directed them to drive into the alley where Ruiz and his companions administered a severe beating to Michael. After the beating, Ruiz again entered the car, which then proceeded to the location where the victims were brutally murdered. The defendant argues that his mere presence at the scene of the crime does not make him accountable for the murders. The evidence shows much more than the defendant’s mere presence. His continued presence during the commission of all three murders, plus his participation in the attempt to obliterate fingerprints after the crimes were committed, are alone sufficient to show ‘a common design to do an unlawful act to which all assent.’ ” (People v. Morgan (1977), 67 Ill. 2d 1, 10, cert. denied (1977), 434 U.S. 927, 54 L. Ed. 2d 287, 98 S. Ct. 411; People v. Washington (1962), 26 Ill. 2d 207, 209.) Later in this opinion we shall discuss additional evidence concerning the extent of Ruiz’ involvement.

We also reject the defendant’s assertion that because he did not take the knife and did nothing to facilitate the actual killings he had somehow withdrawn from the enterprise and ceased to be accountable for the conduct of the others. Once a person becomes accountable for the conduct of another, he remains so until he detaches himself from the criminal enterprise. (People v. Brown (1962), 26 Ill. 2d 308; People v. Rybka (1959), 16 Ill. 2d 394, 406; Ill. Rev. Stat. 1979, ch. 38, par. 5 — 2(c)(3).) The defendant in this case has failed to produce any evidence of his withdrawal. In point of fact, all inferences to be drawn from the record are to the contrary. If Ruiz desired to withdraw from the murders of these three boys, he had ample opportunity even after Michael had been beaten. The fact that Ruiz got into the car and rode to the second alley, and remained during the commission of all three murders, destroys any notion that he was no longer participating in the criminal enterprise. Further, as noted earlier, after the crime had been completed, all of the perpetrators, including Ruiz, remained at the scene to wipe fingerprints off of the vehicle. Evidence of events occurring after the crime had been committed is competent to show participation in the crime itself. People v. Kolep (1963), 29 Ill. 2d 116, 120.

We turn next to the matter of how this trial was conducted and the issue raised concerning severance. The defendant’s contention is basically that although his motion for a severance was granted, the trial court negated its effect by conducting a simultaneous trial before two juries and ruling that if either defendant took the stand to testify, both juries would be present. The defendant argues that this action deprived him of his right to a severance and amounted to a denial of a fair trial.

An accused does not have a right to be tried separately from his companions when charged with offenses arising out of a common occurrence. (People v. Yonder (1969), 44 Ill. 2d 376, 386, cert. denied (1970), 397 U.S. 975, 25 L. Ed. 2d 270, 90 S. Ct. 1094; People v. Watt (1942), 380 Ill. 610, 613.) The question of whether a severance should be granted in a particular case is a matter largely within the discretion of the trial judge. (People v. Henderson (1967), 37 Ill. 2d 489, 492, cert. denied (1967), 389 U.S. 943, 19 L. Ed. 2d 297, 88 S. Ct. 305.) The primary question to be considered is whether the defenses of the several defendants are so antagonistic that any or all of them could not receive a fair trial unless a severance is granted. (People v. Brooks (1972), 51 Ill. 2d 156, 166; People v. Bernette (1970), 45 Ill. 2d 227, 241, rev’d on other grounds (1971), 403 U.S. 947, 29 L. Ed. 2d 858, 91 S. Ct. 2290-91; People v. Gendron (1968), 41 Ill. 2d 351, 357, cert. denied (1969), 396 U.S. 889, 24 L. Ed. 2d 164, 90 S. Ct. 179.) Here, neither Ruiz nor Caballero gave notice that he intended to proceed by way of any defense which would be inconsistent with their presence at the crime scene or their mental capacity to commit these offenses. It would be pure speculation to conclude that either of these defendants was forced not to testify, or was otherwise prejudiced by the fear that accusatory testimony might be delivered by the other in retaliation. Mere apprehension of a particular result will not sustain an allegation of prejudice to the accused. People v. Yonder (1969), 44 Ill. 2d 376, 386, cert. denied (1970), 397 U.S. 975, 25 L. Ed. 2d 270, 90 S. Ct. 1094; People v. Gendron (1968), 41 Ill. 2d 351, 357, cert. denied (1969), 396 U.S. 889, 24 L. Ed. 2d 164, 90 S. Ct. 179.

Moreover, the motion for severance was gran ted,in this case primarily to avoid possible conflict with Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620. Caballero had apparently made certain incriminating statements which implicated Ruiz. To avoid the possibility that these statements would be admitted into evidence as a confession, regardless of whether Caballero took the stand, and thereby violate the Bruton rule as to Ruiz, the trial court employed two juries. Under the procedure used, including the ruling that both juries would hear the testimony of either defendant, any possible conflict with Bruton was avoided. The reason is that if Caballero took the stand and, consistent with his prior statement, implicated Ruiz, he would be in effect a State’s witness against him, subject to cross-examination the same as any other witness. In this situation the Bruton problem is avoided because the out-of-court statement would not be put into evidence. On the other hand, if Caballero did not take the stand and the State attempted to introduce the statement as proof of Caballero’s guilt, any potential conflict with Bruton could be avoided by removing the Ruiz jury. In addition, even if the trial judge had ruled that both juries would be present during cross-examination, Nelson v. O’Neil (1971), 402 U.S. 622, 29 L. Ed. 2d 222, 91 S. Ct. 1723, would compel us to hold that such ruling would be correct. In Nelson, the Supreme Court held that in a joint trial before a single jury a defendant’s sixth amendment rights were not violated when his codefendant took the stand and was subsequently impeached with a prior statement implicating the defendant.

We hold therefore that since both juries would have been entitled to hear the testimony of these defendants, the trial court’s granting of the motion upon these conditions was not an abuse of discretion, nor did it prejudice defendant Ruiz so as to deny him a fair trial. There remains, however, the question of whether the procedure of employing two juries in this fashion amounts to a per se denial of some constitutional protection.

This identical issue has been presented and resolved in favor of the multiple-jury procedure as a device to avoid the Bruton confrontation problem. In United States v. Sidman (9th Cir. 1972), 470 F.2d 1158, cert. denied (1973), 409 U.S. 1127, 35 L. Ed. 2d 260, 93 S. Ct. 948, the court, recognizing the potential for error of constitutional proportions, nonetheless found that multiple juries did not deny an accused any of his rights provided by the Constitution or the Federal Rules of Criminal Procedure. The same conclusion has been reached in other cases. (See United States v. Rowan (6th Cir. 1975), 518 F.2d 685, cert. denied (1975), 423 U.S. 949, 46 L. Ed. 2d 284, 96 S. Ct. 368; United States v. Rimar (6th Cir. 1977), 558 F.2d 1271, cert. denied (1978), 435 U.S. 922, 55 L. Ed. 2d 515, 98 S. Ct. 1484.) While we, too, recognize the possibility for prejudicial error resulting from confusion at trial inherent in this procedure, we conclude that in this case no such error exists.

From the onset the trial judge exercised extreme caution in instructing each member of the two juries as to what exactly was going on. The record is replete with reminders and admonishments to the effect that neither jury is to discuss any aspect of the case with the other. Each side was well aware of the presence of the other jury, and counsel, along with the court, took great care in insuring that each jury heard only that evidence which was relevant to each respective case. Due to the nature of the testimony, most of the evidence offered at trial was admissible against both defendants. The record fails to disclose a single incident of confusion or impropriety. The Supreme Court has observed that a defendant in a criminal case is entitled to a fair trial, not a perfect one. (Lutwak v. United States (1952), 344 U.S. 604, 619, 97 L. Ed. 593, 605, 73 S. Ct. 481, 490.) Based upon the record now before us, we believe that mandate has been fulfilled in this case.

The defendant next argues that the Illinois statute providing for imposition of the death sentence was not intended to be applied to those persons found guilty of murder under the theory of accountability. We do not agree. The statute does not specifically preclude the imposition of the death penalty if the defendant’s conviction is based on accountability. Section 9 — 1(c)(5), however, lists, as a mitigating factor, “the defendant was not personally present during the commission of the act or acts causing death.” (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 9 — l(c)(5).) Thus, if a defendant were convicted of murder under the accountability theory, and was not personally present when the acts causing death were committed, as was the case with some of the defendants in People v. Rybka (1959), 16 Ill. 2d 394, mentioned above, this fact may be considered in mitigation. By contrast, there is no provision in the statute for special consideration of a defendant convicted on the theory of accountability when he is personally present when the acts causing death are committed. It would appear that the typical case in which a defendant would not be present during the act or acts causing death would be a case in which the defendant would be found guilty of murder on the basis of accountability. If the legislature had intended that the death penalty would not be applicable where the defendant is found guilty of murder on the basis of accountability, there would have been no reason to provide for Ms absence as a mitigating factor.

The defendant notes that the legislature, in cases of felony murder, precludes the imposition of the death penalty if the defendant did not actually kill the individual. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 9 — 1(b)(6)(a).) The defendant argues that tins establishes the legislature’s intent that any defendant who does not strike the fatal blow should not be sentenced to death. This conclusion does not follow. Since the oMy intent necessary to support a felony-murder conviction is that to commit the underlying felony (People v. Hickman (1974), 59 Ill. 2d 89, cert. denied (1975), 421 U.S. 913, 43 L. Ed. 2d 779, 95 S. Ct. 1571; People v. Auilar (1974), 59 Ill. 2d 95, 101; People v. Miller (1980), 89 Ill. App. 3d 973, 979; People v. Nelson (1979), 73 Ill. App. 3d 593, 595; Ill. Rev. Stat. 1979, ch. 38, par. 9— 1(a)(3)), the legislature provided that the death penally can only be imposed upon the one actually doing the killing, to avoid the possibility of a person being put to death without having possessed even the general intent for the crime of murder. Also, as noted above, it provided that a mitigating factor in other murders, obviously based on accountability, is the lack of personal presence. If the legislature intended that the death penalty not be imposed on those who were personally present but did not actually kill in every case, it could have so provided. The trial court properly noted that accountability is not incompatible with the death penalty in cases other then felony murders.

In addition to the evidence as to Ruiz’ involvement previously noted, some other evidence not previously recited is extremely significant. Julio Lopez, a former member of the Latin Kings gang, testified that Ruiz, in telling him of the murders, said that he, Ruiz, held a gun on the victims while the others did the stabbing and that he checked the bodies afterwards to see if the victims were dead. The defendant contends that since Lopez did not include these comments in his prior statement to the assistant State’s Attorney, they are not worthy of belief. The degree to which Lopez’ testimony may have been discredited must be determined by the trier of fact at the trial, or by the trial judge at the sentencing hearing, if the hearing is before the judge and not a jury. We cannot say, as a matter of law, that Lopez’ testimony had no probative value. On the contrary, it strongly supports the verdicts of guilty and the judge’s decision as to the penalty. Although the statements concerning the gun and checking of the bodies do not show that Ruiz struck the actual blow that killed the victims, they do show a substantial involvement by Ruiz in the actual killings.

Also, the assistant State’s Attorney who questioned Ruiz testified that, in relating his story, Ruiz told him that after they had beaten Michael and before arriving at the alley where the victims were murdered, Placedo Laboy stated that they would have to kill these people because they had seen their faces. The assistant State’s Attorney also testified that Ruiz told him that when the boys were being stabbed, he stayed outside the car and that, after Frank had been stabbed, Laboy handed him the knife, but he refused to take it. Michael was then brought to the car, pushed into the back seat, and stabbed by Juan Caballero. Although Ruiz consented to be interviewed by the assistant State’s Attorney, he refused to give a statement in the presence of a court reporter. The assistant State’s Attorney’s testimony was based on a memorandum he had prepared following his interview with Ruiz and also based on his memory. In any event, all of the evidence, both favorable and unfavorable to the accused, was properly presented to the jury at trial, and the judge during sentencing, for their consideration as to its persuasiveness. The defendant has failed to establish that any of the incriminating evidence was not worthy of belief as a matter of law.

The defendant relies heavily on Justice White’s concurring opinion in Lockett v. Ohio (1978), 438 U.S. 586, 621-28, 57 L. Ed. 2d 973, 1000-04, 98 S. Ct. 2954, 2981-85 in support of his contention that the death penalty cannot be constitutionally imposed upon a defendant guilty of murder on the basis of accountability. We find this reliance to be misplaced. Justice White’s opinion does not state that a person who does not do the actual killing may not constitutionally be sentenced to death. The opinion, instead, is concerned with the question of intent. In that case the defendant was participating in a planned robbery and was seated in a car while her companions, in the course of the robbery, killed a person. Justice White expressed the concern that although proved guilty beyond a reasonable doubt, it was not established that Lockett possessed any intent to kill independent of the person who actually performed the acts resulting in death. As noted earlier, under our statute, the death penalty will not be imposed where a defendant is convicted of felony murder unless he performed the acts which resulted in death. This limitation insures that an inference of at least the general intent sufficient to support a murder conviction will be present before someone is put to death for felony murder. Where guilt is premised on the accountability theory the intent of the actor is imputed to the defendant but his absence from the crime scene will be a mitigating factor that would prevent imposition of the ultimate penalty in cases like Rybka. Moreover, the concurring opinion of Justice White recognizes that the facts of a particular case might well permit an inference that the defendant had the requisite intent independent of any imputed to him by way of accountability. This conforms to the settled law of this State holding that the intent to take a life may be inferred from defendant’s acts and the circumstances surrounding the commission of the offense. People v. Jones (1979), 81 Ill. 2d 1, 9-10; People v. Muir (1977), 67 Ill. 2d 86, cert. denied (1977), 434 U.S. 986, 54 L. Ed. 2d 481, 98 S. Ct. 615 (partially overruled in People v. Harris (1978), 72 Ill. 2d 16, 27); People v. Koshiol (1970), 45 Ill. 2d 573, cert. denied (1971), 401 U.S. 978, 28 L. Ed. 2d 329, 91 S. Ct. 1209; People v. Coolidge (1963), 26 Ill. 2d 533.

In this case Ruiz’ intent to participate in the premeditated acts resulting in the death of the three victims is established beyond a reasonable doubt, whether considered under the accountability statute (Ill. Rev. Stat. 1977, ch. 38, par. 5 — 1 et seq.), or whether his intent is judged solely from his own acts and conduct. In support of this conclusion it is again appropriate to reiterate Ruiz’ participation in this series of tragic events.

It was Ruiz who first deceived the three victims by telling them that he was a Latin Eagle when they bragged to him that they had participated in a “hit” on some Latin Queens. It was Ruiz who directed that they all get into the victims’ car and drive to the first alley. Ruiz took Michael down the alley and participated in beating him to the ground. Ruiz told the assistant State’s Attorney that his companions said that they would have to kill the three boys. After learning this, when they stopped in the second alley, Ruiz did not depart but stayed while each of the three was systematically and ruthlessly executed. Arthur Salcido was stabbed a total of eight times in the chest, and his throat was cut completely across, severing his windpipe, as well as the major arteries on either side of his neck. Frank Mussa was stabbed a total of 21 times: three times in the neck, three times in the chest and 15 times in the back. Michael Salcido was stabbed a total of 18 times: 10 times in the face and neck, five times in the abdomen and three times in the back. Ruiz never told either Lopez or the assistant State’s Attorney that he protested while all of these blows were being struck. In fact, nothing in the record shows what he was doing during the considerable time that it took to perform these acts, which must have been accomplished in the face of extreme effort on the part of the victims to preserve themselves and through greater efforts on the parts of the participants to overcome the victims’ defenses. In any event, when all was finished, Ruiz assisted the others in wiping the car free of fingerprints and then walked away from the scene with his companions. Even without considering the testimony of Lopez that Ruiz said he held a gun on the victims and felt their bodies to see if they were dead, the evidence is sufficient to prove Ruiz guilty of three murders beyond a reasonable doubt, along with the necessary intent required to establish the aggravating factor set forth in section 9— 1(b)(3).

The defendant also contends that the indictment did not sufficiently inform him that the death penalty would be sought. In People v. Brownell (1980), 79 Ill. 2d 508, appeal dismissed (1980), 449 U.S. 811, 66 L. Ed. 2d 14, 101 S. Ct. 59, this court held that the charge in the indictment constitutes sufficient notice that the death penalty would be sought. Although Ruiz acknowledges that he was charged with killing three people, which, under the statute, would make him eligible for the death penalty, he contends that the statute removes accountability convictions from the death penalty. Therefore he argues that the charge failed to inform him that the death penalty would be sought. Since our statute provides that a person convicted of felony murder is not subject to the death penalty unless he actually did the killing, Ruiz argues that this provision of the statute, by implication, prohibits the imposition of the death penalty where one is convicted of murder on the basis of accountability. This argument has been disposed of by our holding above that section 9 — 1(b)(6) does not remove accountability convictions as a foundation for the death penalty. Consequently, based upon Brownell, the defendant was sufficiently informed that the death penalty would be sought.

It is appropriate to distinguish the result here reached from another recent decision of this court. In People v. Gleckler (1980), 82 Ill. 2d 145, we vacated the death sentence imposed by a jury partly because of the mitigating factors presented and the extent of the defendant’s participation relative to his codefendants’. In Gleckler, although the accused did in fact fire shotgun blasts into the heads of two young boys, his overall involvement in the episode was shown to be that of a follower. A great deal of evidence was produced in mitigation to show the accused’s limited mental capacity, his docile personality, and his “definite propensity to go along with whatever events were happening at the time.” (82 Ill. 2d 145, 164.) It was also established that the defendant was an alcoholic and that he had been drinking on the night of the murders. We also considered that Gleckler did not have a criminal record. These factors in mitigation, coupled with the fact that Theodore Parsons, charged with the same murders and far more culpable than Gleckler, received only a prison term, led a majority of this court to conclude that “Gleckler, with no criminal history, the personality of a doormat, and a problem with alcohol, was not the ringleader in this sordid affair; nor are his rehabilitative prospects demonstrably poorer than those who received imprisonment terms. Our revulsion toward this crime and our lack of sympathy for Gleckler cannot justify executing only him.” People v. Gleckler (1980), 82 Ill. 2d 145, 171.

By contrast, the trial judge in this case was presented with no mitigating factors other than the testimony of one police officer to whom the defendant had expressed remorse and the argument of counsel that Ruiz did not take an active part in the crime because he feared for his own life. However, although Ruiz did not stab the victims, he was not a “follower” or a “doormat.” We believe the inference that he actively participated in and directed the commission of crime could easily have been drawn by both the jury and the judge during the sentencing hearing. It is inconceivable that these three victims would calmly submit to their own systematic slaughter without resistance. It would likewise be absurd to preclude the inference that all of the perpetrators actively participated in overcoming such resistance by restraint and other acts of violence until each victim was finally killed. We cannot, therefore, reverse the trial court’s ruling that no mitigating factors sufficient to preclude the death penalty had been proved. We believe that imposing the ultimate penalty of death based upon the evidence presented against Ruiz and the inferences properly drawn therefrom does not amount to cruel and unusual punishment. Nor is this case like Gleckler, where sufficient mitigating factors precluded imposition of the ultimate penalty.

Finally, the defendant asserts that the court improperly considered evidence in aggravation. At the sentencing hearing, both sides stipulated that if the State called all of its witnesses previously produced at trial, they would testify similarly. Thereafter, the State introduced testimony establishing that Thomas Griebell, age 16, died as a result of a gunshot wound to the head which he received on July 13, 1976. The State next called an assistant State’s Attorney who laid the foundation for introduction of a statement, signed by Luis Ruiz, that admitted in great detail the events of July 13, 1976. The document related in essence that Luis Ruiz fired a rifle from a gangway into a crowded parking lot across a street and thereafter saw a person in the parking lot grab his head and fall to the ground. This act was done in furtherance of plans made earlier that day by Ruiz and others to “hit a Royal.” The parking lot into which Ruiz fired was adjacent to a restaurant used as a meeting place for members of that gang. The defendant objected to the introduction of this document and now contends that, since no conviction resulted from the alleged event, it was error for the court to consider it. In People v. La Pointe (1981), 88 Ill. 2d 482, we discussed this question in detail and held that a judge conducting a sentencing hearing is not limited to considering evidence that would only be admissible during a trial but could exercise wide discretion in the types of evidence used to assist him in determining the punishment to be imposed. The defendant’s argument in our case is clearly answered by the statute. Section 9 — 1(e) provides that during the sentencing hearing any evidence relative to the aggravating factors set out in subsection (b) (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(b)) may be presented “under the rules governing the admission of evidence at criminal trials.” This section further provides that any additional aggravating factor may be presented “regardless of its admissibility under the rules governing the admission of evidence at criminal trials.” (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(e).) The evidence objected to did not pertain to an aggravating factor set out in subsection (b). The rules governing the admissibility of evidence at criminal trials therefore would not apply to this statement of the defendant. The statement was properly admitted for the consideration of the trial judge in determining the penalty to be imposed.

This case has been held under advisement pending the filing of an opinion by the United States Supreme Court in Enmund v. Florida (1982), 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368. The holding of the majority in that case is stated as follows:

“[I]t is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty on one such as Enmund who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed. We have concluded, along with most legislatures and juries, that it does not.” 458 U.S. 782, 797, 73 L. Ed. 2d 1140, 1151, 102 S. Ct. 3368, 3376-77.

In Enmund v. Florida the court emphasized that the focus must be on the culpability of the defendant Enmund, not on that of those who, during the course of the robbery, shot the victims. Enmund was a robber and aided and abetted a robbery, in the course of which murder was committed by others. Enmund’s criminal culpability was thus limited to his participation in the robbery and his punishment was tailored to his personal responsibility and moral guilt. (458 U.S. 782, 798, 73 L. Ed. 2d 1140, 1152, 102 S. Ct. 3368, 3377.) The evidence showed that Enmund, although intending to participate in the robbery of the victims, stayed in an automobile while his two accomplices approached the victims’ home, robbed them and then killed both victims after one of them had shot and wounded one of the accomplices.

“Enmund himself did not kill or attempt to kill; and as construed by the Florida Supreme Court, the record before us does not warrant a finding that Enmund had any intention of participating in or facilitating a murder.” 458 U.S. 782, 798, 73 L. Ed. 2d 1140, 1152, 102 S. Ct. 3368, 3377.

We have detailed above the participation of Luis Ruiz in the three murders involved in this case. In Enmund v. Florida the defendant was found guilty of felony murder solely on the basis of his participation in the commission of the felony, robbery. In our case Ruiz was not tried or convicted on the theory of felony murder. We noted above in this opinion that, under our statute, the death penalty cannot be imposed for felony murder unless the defendant actually kills the victim. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 9 — 1(b)(6)(a).) In our case Ruiz was present throughout the violent episode, actively participated, except for striking a fatal blow, and his conduct was such as to support an inference that he possessed the intent to take the lives of the victims.

Nothing in the holding or the language of the majority opinion in Enmund v. Florida requires a conclusion in this case contrary to that reached above.

For the reasons stated, the judgments of conviction and sentence of death of the circuit court of Cook County are affirmed. The clerk of this court is directed to enter an order fixing Wednesday, March 16, 1983, as the date on which the sentence of death entered in the circuit court shall be executed. A certified copy of this order shall be furnished by the clerk of this court to the Director of Corrections and the wardens of the Illinois State Penitentiary at Menard and Joliet.

Judgment affirmed.

JUSTICE SIMON,

concurring in part and dissenting in part:

I dissent from the imposition of the death sentence for the reasons set forth in my dissent in People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting). I also dissent from the majority’s holding that the death penalty statute (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1) covers defendants such as Luis Ruiz who are convicted of murder under the theory of accountability. My judgment is that the intent of the legislature and the plain language of the statute restrict the scope of the death penalty to defendants who kill or who actually possess the intent required for murder, and exclude from its coverage those individuals who are convicted of murder under a theory which does not require that they do the killing and under which “intent” to kill may be imputed.

The death penalty provisions appear in subsections (b) and (c) of the murder statute, which is section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9— 1(b), (c).) Subsection (a) of the statute, to which the next two subsections refer, does not mention accountability or imputed intent other than through felony murder, and in fact states clearly that “[a] person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death ***.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a).) The crime of murder by accountability is not defined in section 9 — 1, or anywhere specifically in the Criminal Code of 1961; instead, it derives from sections 5 — 1, 5 — 2 and 5 — 3 of the Code (Ill. Rev. Stat. 1979, ch. 38, pars. 5 — 1, 5 — 2, 5 — 3) by applying those sections in conjunction with the murder statute. The placement of the death penalty provisions within the murder statute rather than as a separate section, combined with the introductory language of the murder statute which I have quoted, suggests that the death penalty was never meant to be imposed on a person who committed none of the acts which caused the victim’s death and who can be convicted of murder only by means of accountability.

This conclusion is bolstered by the wording of the statutory sections involved. Subsection (b) of our murder statute sets forth eight aggravating factors the presence of which will permit the death penalty to be imposed. Except for the fifth factor, which involves the hiring of another to perform a murder, only one of the factors enumerated allows death for a murder in which the defendant did not personally do the killing. The sixth aggravating factor, which pertains to felony murder, is the only one which could even remotely involve a defendant who, like Ruiz, neither “performed] the acts which cause[d] the death” nor was convicted on a theory of murder which requires the actual, as opposed to the imputed, intent to kill. Yet that factor is specifically limited in its application to cases where “the murdered individual was actually killed by the defendant and not by another party to the crime or simply as a consequence of the crime” (emphasis added) (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)(6)(a)), regardless of the nature of the underlying felony, or even the extent of the defendant’s involvement in that felony or the intensity of his intention that the victim should die. It is significant that the third aggravating factor, which pertains to murders of two or more individuals, requires that the defendant have the “intent to kill more than one person” or that the deaths result from “separate premeditated acts” (emphasis added) (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)(3)), neither of which conditions is met where the theory under which defendant was convicted permits his intent to be imputed. Not one aggravating factor pertains to defendants like Ruiz who do not do the actual killing and who must be prosecuted for murder under a theory such as accountability which allows the element of murderous intent to be supplied vicariously. The fact that the legislature specifically rejected or modified more inclusive forms of factors (6) and (3) in enacting the limiting provisos I have mentioned is strong evidence that it intended not to countenance so broad an application of the death penalty. See 1 H.R.J., 80th Ill. Gen. Ass’y at 316-18 (1977) (factor (6)); 1 Legislative Synopsis & Dig., 80th Ill. Gen. Ass’y, at 955 (1977) (factor (3)).

The majority attempts to demonstrate a contrary intent by pointing to one of the mitigating factors set forth in subsection (c) of the murder statute. Its reasoning is that there would be no need to provide that absence during the commission of the acts causing death may be considered in mitigation (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(c)(5)) if accountability were not a basis for the imposition of the death penalty. This argument assumes that a defendant who is absent during the commission of the fatal acts cannot be charged with murder directly under the provision of the murder statute without resorting to accountability theories. I question the soundness of this assumption. As I have noted, one who solicits the killing of a victim does not do the actual killing; he need not be at the scene of the crime. Yet I see no reason why he cannot be prosecuted directly for murder. His intent to kill is real and need not be imputed; the act of soliciting another to perform the murder may well qualify as an “[act] which causefs] the death” (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)). In fact, as I have also noted above, the murder statute specifically allows the death penalty to be imposed on one who solicits the murder of another. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)(5).) I fail to see why the mitigating factor relied on by the majority cannot apply to such a person, or why the factor must be construed as applying to persons merely accountable for the murderous acts of others in order to have meaning.

This court should not permit a person to be sentenced to death when all that it can determine is that there is a strong possibility, or even a probability, that the death penalty statute applies to his conduct. Our practice has been to interpret criminal statutes and punishment-enhancing provisions with lenity, and to resolve each and every ambiguity in the reach of such provisions in favor of the defendant. (See, e.g., People v. Hobbs (1981), 86 Ill. 2d 242; People v. Haron (1981), 85 Ill. 2d 261, 277-78; People v. Lund (1943), 382 Ill. 213, 215-16.) This practice should be followed with particular rigor in interpreting the death penalty statute, not only because of its severity but also because of its irrevocability. In this case the statute does not extend on its face to the grounds on which the defendant was convicted of murder, and further inquiry into the various aggravating and mitigating factors leaves room for considerable doubt as to whether the statute was ever intended to extend to those grounds. My interpretation is that such an intent did not exist. To the extent that this interpretation is disputable all doubts should be resolved in favor of the defendant. And inasmuch as the majority’s attempt to make the death provision cover accountability cases depends on a labored construction of a mitigating factor which is probably not obvious to most laymen, the court should at the very least have given careful consideration to Ruiz’ claim that the indictment did not sufficiently inform him that the death penalty would be sought, rather than dismissing it in two brief sentences as it did.

Traditionally, the courts of this State have adhered to the maxim that “[t]he degree of activity or participation in a crime should receive attention in fixing the sentence” (People v. Colone (1978), 56 Ill. App. 3d 1018, 1022; see People v. Viser (1975), 62 Ill. 2d 568, 586-87; People v. Morris (1969), 43 Ill. 2d 124, 131; People v. Parish (1980), 82 Ill. App. 3d 1028, 1033-34; People v. Mikel (1979), 73 Ill. App. 3d 21, 32). Accountable accomplices have generally-been given lesser sentences than principal perpetrators in accordance with this maxim, even though both are guilty of the crime. (See, e.g., People v. Parish (1980), 82 Ill. App. 3d 1028 (affirming disparate sentences because appellant was the principal perpetrator); People v. Mikel (1979), 73 Ill. App. 3d 21 (same); People v. Colone (1978), 56 Ill. App. 3d 1018 (reducing appellant’s sentence because he was merely an accountable accomplice).) The evidence in this case shows that Ruiz not only did not stab any of the victims but specifically refused to do so. He had every right to expect, as a constitutional matter (Enmund v. Florida (1982), 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368) if not as a matter of prosecutorial choice, jury discretion (Woodson v. North Carolina (1976), 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978; Gregg v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909) or statutory interpretation that this refusal would make some difference in the punishment he would receive.

While Ruiz may not have been a “doormat” (People v. Gleckler (1980), 82 Ill. 2d 145, 164), neither was he a principal in the three murders for which the death penalty is being sought. I respectfully suggest that the majority should have considered this at greater length, both in exercising review of the sentence imposed in this case and in deciding whether the legislature, in enacting a capital punishment statute silent on its face regarding accountability, really intended to allow infliction of the ultimate penalty upon anyone but ultimate murderers. I would reverse the death sentence and remand for resentencing.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH JUSTICE SIMON,

license: Public Domain

text:
    (No. 53414.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ANDRE JONES, Appellant.

      Opinion filed December 17, 1982.

    Rehearing denied April 8, 1983.

      SIMON, J., concurring in part and dissenting in part.
    David C. Hoffman, of Belleville, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Melbourne A. Noel, Jr., and Michael Vujovich, Assistant Attorneys General, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Andre Jones, was indicted with a codefendant, Freddie C. Tiller, Jr., in the circuit court of St. Clair County for three counts of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)(1)), three counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2) and three counts of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a)). The St. Clair County public defender was appointed to represent him, but upon allowance of the public defender’s motion to withdraw other counsel was appointed. Defendant entered a plea of not guilty which was subsequently withdrawn, and he pleaded guilty to the three murder charges. Pursuant to section 9 — 1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(d)) the People requested a separate sentencing hearing and defendant elected to have a jury impaneled for those proceedings. The jury found, unanimously, that one or more of the factors set forth in the statute existed and, following the consideration of aggravating and mitigating factors, found unanimously that there were no mitigating factors sufficient to preclude a sentence of death. (See Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(g).) The jury returned a verdict directing the court to sentence defendant to death, and defendant was sentenced to death for each of the three murders. The sentences were stayed (73 Ill. 2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill. 2d R. 603).

The testimony and defendant’s confession showed that on the morning of April 30, 1979, defendant left his apartment carrying a .22-caliber Rohm revolver. Defendant and his girlfriend walked until they met with Tiller. The three of them walked until they saw an elderly man, Richard Stoltz, standing in the back of a pickup truck, stacking bricks. Tiller, stating that he was going to rob Stoltz, asked defendant for his gun. Defendant gave his gun to Tiller, who told Stoltz, “This is a stickup.” Stoltz raised his hands, and Tiller fired the gun, striking Stoltz in the left eye. Tiller then took a wallet, keys and a wrist watch from Stoltz’ body. Defendant and Tiller rejoined the girlfriend, who had crossed the street. They continued their walk until they arrived at the Illinois Cleaners, located across the street from Jones’ apartment. The girlfriend left after being told by defendant to go home. Defendant then suggested that he and Tiller rob the cleaners, and Tiller agreed. Defendant and Tiller entered the store and, once inside, defendant shot the proprietor, Samuel Nersesian, in the head. He fell to the floor, and defendant shot him again. Defendant then opened the cash register and took an undetermined amount of money. As they were about to leave, a mail carrier, Debra Brown, who had arrived in a mail truck, entered the store. Defendant hid behind the door, and when Miss Brown entered, defendant grabbed her around the neck from behind. He pushed her back through a kitchen located at the rear of the business and into a storage room. There defendant knocked her down, shot her in the chest, and then shot her in the mouth. Defendant and Tiller then left the store. Tiller left the scene in the mail truck, and defendant walked across the street to his apartment. All three of the shooting victims died.

Following the introduction of the foregoing evidence and the giving of instructions to the jury, the jury returned a verdict finding that defendant had been convicted of murdering two or more individuals and that at the time of the offenses he had attained the age of 18 or more. (See Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)(3).) The cause then proceeded to the aggravation and mitigation phase.

The evidence showed that defendant had a significant history of criminal activity. Included therein was defendant’s confession to two murders committed prior to the offenses for which he was being sentenced. No information in mitigation was offered by either defendant or the People. After deliberating for approximately 20 minutes, the jury returned a verdict unanimously finding that there were no sufficiently mitigating factors present to preclude imposition of the death sentence. Pursuant to the verdict and statute (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(g)), the court sentenced defendant to death for the murders of Richard Stoltz, Samuel Nersesian and Debra Brown.

We consider first defendant’s contention that the death penalty provisions of the statute are unconstitutional for the reason that they do not contain sufficient guidelines to enable a jury to properly determine when the death penalty may be imposed. Defendant cites first the language of section 9 — 1(g) which in pertinent part provides:

“If there is a unanimous finding by the jury that one or more of the factors set forth in Subsection (b) exist, the jury shall consider aggravating and mitigating factors as instructed by the court and shall determine whether the sentence of death shall be imposed. If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death.” (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(g).)

Citing definitions of “preclude” (Webster’s Seventh New Collegiate Dictionary (1963); Random House Dictionary of the English Language (1973)) defendant argues that the statutory provision which requires the jury to impose death if it “unanimously finds that there are no mitigating factors sufficient to preclude the imposition of the death sentence *** must necessarily impose the capricious and arbitrary sentencing it seeks to avoid.” He argues further that under a literal interpretation of the statute a jury “would be required to impose death unless defendant presented a complete defense to the aggravating factors qualifying him for the death penalty.” The alternative to the literal interpretation, he contends, is that there are no standards or guidelines, and the weighing procedure mandated by our earlier cases is nullified.

We do not agree. In People v. Brownell (1980), 79 Ill. 2d 508, the defendant contended that the trier of fact was not given guidance as to the weight to be given the aggravating versus the mitigating factors and that section 9— 1(g) was therefore unconstitutionally vague. In rejecting this contention the court said:

“Without doubt, a balancing process is required; while the precise weight to be given each aggravating and mitigating factor is not made a matter of numerical calculation, that is not a constitutional infirmity. Rather, since the sentencing authority is given specific evidence to weigh, based upon the particularized circumstances of the case, any ‘ “discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application.” ’ Gregg v. Georgia (1976), 428 U.S. 153, 198, 49 L. Ed. 2d 859, 888, 96 S. Ct. 2909, 2936, quoting Coley v. State (1974), 231 Ga. 829, 834, 204 S.E.2d 612, 615. As stated in Proffitt: ‘While the various factors to be considered by the sentencing authorities do not have numerical weights assigned to them, the requirements of Furman [Furman v. Georgia (1972), 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726] are satisfied when the sentencing authority’s discretion is guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.’ Proffitt v. Florida (1976), 428 U.S. 242, 258, 49 L. Ed. 2d 913, 926, 96 S. Ct. 2960, 2969.” (79 Ill. 2d 508, 534.)

It is clear from the foregoing statement that preclusion of the death penalty does not require, as defendant contends, “a complete defense to the aggravating factors qualifying him for the death penalty” Furthermore, we find that section 9 — 1(g), as construed, fulfills the constitutional requirement that the sentencing authority be given specific factors to examine in determining whether to impose the death penalty.

We consider next defendant’s contention that section 9 — 1(e) is invalid for failing to set any standard save relevance for the admission of information in the second phase of the sentencing hearing. Section 9 — 1(e) provides:

“(e) Evidence and Argument. During 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.” (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(e).)

It is argued that since the People are permitted to present any “information” relevant to other aggravating and mitigating factors regardless of its admissibility under the rules of evidence, the only restraint placed upon the State’s Attorney’s discretion is his personal sense of propriety. It is also argued that this provision penalizes a defendant for electing to be sentenced by a jury rather than a judge, who, when considering the information presented, would be possessed of knowledge of the rules of evidence. Finally, specific alleged examples are cited where it is claimed that defendant was prejudiced by reason of the jury’s consideration of certain information.

The purpose of the aggravation and mitigation phase of the sentencing hearing is to insure that discretion in the area of sentencing be exercised in an informed manner. In Woodson v. North Carolina (1976), 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978, the Supreme Court said:

“This Court has previously recognized that ‘[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.’ Pennsylvania ex rel. Sullivan v. Ashe [(1937), 302 U.S. 51, 55, 82 L. Ed. 43, 46, 58 S. Ct. 59, 61]. Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. See Williams v. New York [(1949), 337 U.S. 241, 247-49, 93 L. Ed. 1337, 1342-43, 69 S. Ct. 1079, 1083-84]; Furman v. Georgia [(1972), 408 U.S. 238, 402-03, 33 L. Ed. 2d 346, 443-44, 92 S. Ct. 2726, 2810-11] (Burger, C.J., dissenting). While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles [(1958), 356 U.S. 86, 100, 2 L. Ed. 2d 630, 642, 78 S. Ct. 590, 597] (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” 428 U.S. 280, 304, 49 L. Ed. 2d 944, 961, 96 S. Ct. 2978, 2991.

In People v. La Pointe (1981), 88 Ill. 2d 482, 496, we quoted with approval from People v. Adkins (1968), 41 Ill. 2d 297:

“ ‘[A] sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.’ (41 Ill. 2d 297, 300.) While ‘the judge *** is not limited to considering only information which would be admissible under the adversary circumstances of a trial,’ he must ‘exercise care to insure the accuracy of information considered.’ 41 Ill. 2d 297, 300.”

While in La Pointe and the authorities therein discussed the court was the “sentencing body,” there is no valid reason to apply a different rule where the jury makes the determination. The court and the People are under a duty to avoid the introduction of evidence, the prejudicial effect of which outweighs its relevance. (See People v. Riley (1941), 376 Ill. 364, 369.) Section 9 — 1(e) also provides that both the People and the defendant “shall be given fair opportunity to rebut any information received at the hearing.” The requirement that the information be relevant, construed in the light of these basic rules, imposes sufficient restraints on the exercise of the prosecutor’s discretion and serves to minimize the risk of arbitrary and capricious action. Our holding that in imposing sentence a jury is entitled to the same latitude in considering information relevant to sentencing as is the court is in accord with those of most of the jurisdictions which have considered the question. See cases collected at Annot., 96 A.L.R.2d secs. 13 through 16, at 768, 811 (1964); 96 A.L.R.2d secs. 13 through 16, at 333, 339 (Later Case Serv. 1976); 96 A.L.R.2d Supp. secs. 13 through 16, at 153,169 (Later Case Serv. 1981).

In considering many of defendant’s contentions we note that it is well settled that a defendant in a capital case has no due process right to cross-examine all out-of-court sources of information relied upon in sentencing. (Williams v. New York (1949), 337 U.S. 241, 250-51, 93 L. Ed. 1337, 1343-44, 69 S. Ct. 1079, 1085.) Defendant contends that the revolver used in the April 30 shootings was improperly-offered for the jury’s consideration because its admission was based on hearsay testimony. During the aggravation and mitigation phase of the hearing an East St. Louis detective testified on direct examination that a certain .22-caliber Rohm revolver was the weapon used in the April 30 shootings. The detective testified that he obtained this information from a sergeant on the East St. Louis police department who had received the information concerning the weapon from defendant and had then obtained the weapon from the home of the defendant’s grandmother. The detective also testified that the weapon was tested for ballistics with slugs removed from the bodies of the victims. At this point defense counsel objected, and his objection was overruled. Defense counsel then asked that the record show continuing objection, and the court so ordered. The detective then testified that the ballistics tests from the crime laboratory were “positive,” indicating that the revolver was the weapon used in the April 30 shootings. In view of the fact that defendant confessed to using a .22-caliber Rohm revolver in the shootings, we hold that the weapon was not improperly introduced into evidence.

Next, we consider whether information concerning defendant’s past misconduct contained in a presentence investigation report was properly introduced at the sentencing hearing. A St. Clair County probation department investigator who had prepared a presentence report of defendant’s character and background testified that according to records of the Juvenile Department of Corrections defendant had been involved in theft while incarcerated in a juvenile detention institution. The investigator further testified that according to information obtained from the parole board defendant had been involved in 22 disciplinary violations while incarcerated in the Menard Correctional Center. The investigator also quoted from a psychiatric report contained in an evaluation of defendant given to the parole board. The report stated that defendant “has aggressive tendencies, low frustration tolerance, high impulsivity, very poor delaying mechanism, and total inability to channel his aggression into constructive aspects of life.”

In cross-examining the investigator defense counsel elicited other general information obtained from records concerning defendant. Apparently preparing the groundwork for his closing argument, defense counsel reviewed some of the information the parole board had before it when it released defendant. In closing argument defense counsel asked the jury to channel their desire to place blame on the parole board that released the defendant into a society where he did not belong. Had defense counsel’s strategy succeeded it is doubtful that it would now be argued that it was unfair to permit proof by means of hearsay testimony of the information contained in the reports. In addition, we note that defense counsel asked the investigator whether it was not true that after talking with defendant and completing his investigations that it was found that much of the information provided by defendant was true, and the investigator agreed. Past criminal involvements disclosed by presentence investigation reports have been held a proper matter for consideration in sentencing (see Williams v. New York (1949), 337 U.S. 241, 250-51, 93 L. Ed. 1337, 1343-44, 69 S. Ct. 1079, 1085; see cases collected at Annot., 96 A.L.R.2d sec. 10(h), at 768, 804 (1964); 96 A.L.R.2d sec. 10(h), at 333, 339 (Later Case Serv. 1976); 96 A.L.R.2d sec. 10(h), at 153, 167 (Later Case Serv. 1981), and we hold that the inquiry here into defendant’s background was within reasonable bounds.

We next consider whether the information contained in the defendant’s confession to the other murders, committed prior to the April 30 murders, was improperly admitted at the aggravation and mitigation phase of the sentencing hearing. The record shows that on August 30,, 1979, a detective from the St. Clair County sheriff’s office interviewed Tiller at the St. Clair County jail to determine whether Tiller had any knowledge of other unsolved crimes in the St. Clair County area. Tiller told the detective that defendant might have been involved in some of those crimes. The detective then interviewed defendant at the St. Clair County jail. After being advised of his constitutional rights, defendant expressed general knowledge of other homicides in the St. Clair County area without providing any specific information. Two days later, on September 1, 1979, defendant asked to see the detective. When the detective met defendant at the jail he was given a six-page statement, handwritten by defendant, confessing to the homicides of Michael and Dora Wallace. Having no knowledge of these homicides, the detective did not question defendant about his confession at that time. After having obtained information regarding the homicides the detective again met with defendant at the St. Clair County jail. As a result of this interview, information was gathered that corroborated the confession. In addition, defendant also arranged to have an unidentified female deliver to the detective the butcher knife used in the killings. The knife was subsequently identified as a butcher knife belonging to one of the victims.

The first question presented is whether this information was obtained in violation of the defendant’s right to counsel. There is no question that under the sixth and fourteenth amendments a defendant is entitled to advice of counsel at the sentencing stage of the criminal process unless he has knowingly and intelligently waived this right. (Mempa v. Rhay (1967), 389 U.S. 128, 19 L. Ed. 2d 336, 88 S. Ct. 254; Carter v. Illinois (1946), 329 U.S. 173, 91 L. Ed. 172, 67 S. Ct. 216; Johnson v. Zerbst (1938), 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019.) The record here reflects that the detective from the St. Clair County sheriff’s office interviewed defendant at the St. Clair County jail where defendant was incarcerated after being charged with the April 30 murders. The purpose of this initial interview was to obtain any information defendant might have about other homicides in the East St. Louis area. Although counsel had been appointed for defendant, this initial interview was conducted, and subsequently a confession was obtained, without the presence of or notice to defendant’s attorney. The record shows, however, that at the time of the initial interview defendant was advised of his constitutional right to counsel and that he signed a waiver form. At this first interview he gave no specific information but told the detective that the reason he had been caught for the crimes he had committed in the past was that he had been identified by the victim or witness. He stated that the last time he was in the penitentiary he had made up his mind that he would never be identified by a witness or victim again because he would destroy them. It was defendant who initiated the subsequent contact with the detective, at which time defendant gave the officer his six-page handwritten confession of the Wallace killings. The record does not show how many more times the detective talked to defendant or whether defendant was again advised of his rights at the subsequent interviews. At those times he corroborated his confession by informing the detective that there had been a small brown dog at the Wallace home, where the killings occurred, by describing the knives and small caliber pistol that had been at the home, and by arranging to have the knife he said he used in the killings, later identified as the victim’s knife, delivered to the county jail. Nevertheless, we find no violation of defendant's constitutional right to counsel. It is clear that defendant was no stranger to criminal proceedings and there is no claim that defendant was not aware of his right to confer with his attorney prior to giving any information to the detective. The voluntariness of defendant’s participation in the interviews conducted at the St. Clair County jail is not contested. Defendant apparently voluntarily and knowingly waived his right to have counsel present at these interviews, and therefore the information obtained pursuant to these interviews cannot be suppressed on the ground that defendant’s sixth amendment right to counsel was violated.

We next consider whether the offenses shown by defendant’s confession were properly admitted into evidence. In United States v. Dalhover (7th Cir. 1938), 96 F.2d 355, the court considered whether it was permissible for a jury to consider a defendant’s statement to a government agent, made while under arrest, in which the defendant’s participation in approximately 150 robberies was admitted. In rejecting the contentions that it would be unfair to allow in this information of other offenses and that a jury lacked the discrimination capable of a judge in considering the information, the court said:

“Of course it is illegal and manifestly unfair to require one charged with a specific crime to prepare a defense against other unrelated crimes that the state may attempt to prove against him, but which are not charged in the indictment. *** However, where, as here, the evidence of other crimes comes only from the lips of the accused in his admissions following his arrest, which he has never denied; and where he has pleaded guilty, so that there is no question as to finding him guilty of the crime charged by the proof of other unrelated crimes, there is no need for the application of the rule. Moreover, it seems to be generally the rule that the court in imposing sentence may take into consideration other offenses committed by the defendant, in the absence of a statute forbidding it. See annotation in 86 A.L.R. 832. There seems to be no good reason for denying the jury the same latitude.” (United States v. Dalhover (7th Cir. 1938), 96 F.2d 355, 360.)

(See cases collected at Annot., 96 A.L.R.2d sec. 13, at 768, 811-12 (1964); 96 A.L.R.2d sec. 13, at 333, 339-40 (Later Case Serv. 1976); 96 A.L.R.2d sec. 13, at 153, 169-70 (Later Case Serv. 1981).) In view of defendant’s conviction on pleas of guilty, his voluntary confession, and the substantial corroboration present, we find no reason to conclude that the defendant’s confession to the Wallace murders was improperly presented at the sentencing hearing.

We consider next the specific allegations of prosecutorial abuse as to the information presented. The record shows that Dora and Michael Wallace were found dead in their burning home in East St. Louis on November 15, 1978. It was established that Mrs. Wallace suffered deep lacerations to the throat area and bludgeoning of the face and head area, as well as deep gashes in the hands and arms. Mr. Wallace had been decapitated. Defendant’s confession, which was read to the jury, contained the details of defendant’s commission of the acts that resulted in the deaths of the Wallaces and the burning of their home. Defendant also confessed to taking Mr. Wallace’s head with him and later discarding it in the area where the skull was subsequently found. A detective from the East St. Louis police department was asked on direct examination to relate to the jurors the circumstances as he confronted them when he arrived at the scene of the Wallace case on November 15,1978. The following colloquy then took place:

“A. Well, the first thing I saw was a fireman running down the street, screaming. And it was about two or three firemen standing on the porch. And I approached the porch, and there was blood running down off the front porch, because it was raining, and I saw a body of a man who was — who had been beheaded, and was burning on one side. He had on some shorts, undershorts, and a white T-shirt that was soaked in blood.
Q. He was not fully dressed when you arrived there?
A. No.
Q. Did anyone indicate to you or did you learn whether or not that was the way he was when he was first seen by the fireman?
A. Well, the fireman explained to me they had entered the building or the smoke filled room, and had stumbled upon this body. And they had pulled it out onto the porch in an effort to give the person artificial respiration, and the fireman who was running down the street was the guy who was going to give artificial respiration, and there wasn’t a head.
Q. So it was originally inside the house, the body?
A. Yes.”

The description of the fireman’s reaction was elicited in response to general questions posed by the State’s Attorney on direct examination. The gruesome description contained in the detective’s testimony was unnecessary to describing the circumstances of the scene, but we are not prepared to conclude that it was so totally unrelated to sentencing and prejudically inflammatory as to deny the defendant a fair hearing. While we acknowledge that the description of the fireman’s reaction was bound to cause emotional response, we note that the jurors heard defendant’s own grim and detailed description of the Wallace killings and the burning of their home. The jurors received this information after hearing defendant’s confession to the murders of three people. In view of the aggravating factors present, and the complete absence of any mitigating circumstances, we cannot conclude that the jury was so inflamed by receiving the challenged information that it was unable to base its decision that there were no mitigating factors sufficient to preclude the death penalty on information properly presented.

At the first phase of the sentencing hearing the widow of Richard Stoltz was asked to identify a photograph of her husband, taken after he had been shot. At the conclusion of the second phase this photograph, along with several other photos depicting the victims of both the April 30 and the Wallace killings and the burned Wallace home, was presented to the jury as information relevant to an aggravating factor, specifically, to show the type of brutality in which defendant had engaged. It is unlikely that at this point in the proceedings the photographs would have created more revulsion in the jurors toward defendant than was already present. Since the jury deliberation took approximately 20 minutes it is clear that there was little difficulty in deciding that the death penalty was warranted, and we do not believe that the admission of these photographs at this late date in the proceedings deprived defendant of the right to be sentenced by a rational tribunal.

We consider next whether the court’s conduct during the sentencing proceedings violated defendant’s fundamental right to a fair hearing as guaranteed by the due process clause of the fourteenth amendment. Foremost among the errors alleged is the claim that the court erred in allowing defendant’s plea of guilty to be read to the jury. It is argued that the reading of the transcript denied defendant a fair trial because the court’s comments contained therein implied the court’s predisposition as to the sentence to be imposed, which in turn improperly influenced the jury in arriving at the verdict. The transcript of the plea proceeding was read to the jury during the first phase of the bifurcated hearing to establish defendant’s age and the presence of a statutory factor in aggravation. Included in the reading were the court’s admonishments to defendant that if statutory factors in aggravation were proved the court would not hesitate to sentence defendant to death.

At the time the People made a motion to introduce the transcript of the plea proceeding into evidence the court inquired of defense counsel, who expressly stated that there was no objection. It is urged that the failure to object to the reading at the sentencing hearing precludes our consideration of this claim.

In People v. Carlson (1980), 79 Ill. 2d 564, this court considered whether alleged errors not objected to by defendant at trial were waived. After examining the waiver doctrine, and our Rule 615(a) (73 Ill. 2d R. 615(a)), which embodies the exception to the waiver rule, the court adhered to the rule that even in the absence of objection at trial, a court of review will grant relief if the trial error is so prejudicial that real justice has been denied or the verdict of the jury resulted from such error. (See People v. Carlson (1980), 79 Ill. 2d 564, 576-77; People v. Wright (1974), 56 Ill. 2d 523, 533-34; People v. Manzella (1973), 56 Ill. 2d 187, 200.) The same rule applies whether the alleged errors occurred at trial or at sentencing. We will therefore examine the content of the transcript, as well as the other alleged sentencing errors, to determine whether any error deprived defendant of the fundamental right to a fair hearing.

In addressing defendant the court remarked, “if certain factors are present, you could be sentenced to death, ***. Did he [defendant’s defense attorney] tell you that if the factors which are necessary and which are present and which I will read to you are present, I wouldn’t hesitate to sentence you to death.” He later went on to say, “I have to take into consideration our society, which has been neglected far too long by crimes of violence. And from what the facts appear to be here, these are senseless killings.”

A judicial opinion should not influence the jury, either directly or indirectly. (People v. Finn (1959), 17 Ill. 2d 614, 617; People v. Coli (1954), 2 Ill. 2d 186, 189; Marzen v. People (1898), 173 Ill. 43, 57-59.) We note that at the conclusion of the first phase of sentencing the court instructed the jury: “Neither by these instructions nor by any ruling or remark which I have made do I mean to indicate any opinion as to the facts or as to what your verdict should be.” Furthermore, when the court’s remarks are read in the context of the entire plea proceeding, it becomes apparent that the court attempted to firmly impress upon defendant the grim fact that if he pleaded guilty to three murders, and if he chose to be sentenced by the court, and if the People proved beyond a reasonable doubt any statutory factor in aggravation, the court would not hesitate to sentence defendant to death. The court was required to inform defendant of such matters at the time of accepting his plea, and to determine that defendant understood this information. (73 Ill. 2d R. 402.) The veniremen were addressed, without challenge, along the same lines, in that each was questioned as to any hesitancy to abide by the death penalty statute, even if it meant the imposition of the death penalty if the aggravating factors were proved. We are not persuaded that defendant was prejudiced as the result of the transcript having been read to the jury at the sentencing hearing.

It is alleged that certain comments made by the court to the veniremen during voir dire examination were misstatements of law and that the court’s conduct expressed a sarcastic attitude toward defendant. The record shows that, prior to questioning each panel of veniremen, the court attempted to familiarize the panel with the purpose and order of the bifurcated sentencing procedure. It is argued that the court’s introductory remarks concerning the aggravation and mitigation phase of the hearing are considered objectionable for the same reason that section 9— 1(g) is challenged on appeal; that the court implied that defendant must disprove the aggravating factors to escape the death penalty. We have examined the challenged passages and conclude that the court sufficiently informed the veniremen of the procedure under section 9 — 1(g). We find no merit in the contention that the court misstated the law in this regard.

It is further urged that another of the court’s comments during voir dire compounded the prejudicial effect of an inappropriate jury instruction given at the conclusion of the hearing. A standard and unobjected-to general instruction included the sentence, “Your agreement upon a verdict must be unanimous.” At one point during voir dire, the court advised a prospective juror, “you go out and determine whether or not this evidence has taken away the factors, mitigated the factors so that you might say no, we don’t want to vote for the death penalty. Now, that has to be a unanimous verdict in this case.” It is urged that the instruction and comment created a presumption in favor of the imposition of the death sentence. The record shows, however, that the jury was instructed that it would receive, and that the jury did receive, two forms of verdict. One form stated that the jury was unable to unanimously conclude that the death penalty was warranted, and another stated that the jury unanimously concluded that there were no sufficiently mitigating factors to preclude the imposition of the death sentence. The jury was instructed that it was entitled to determine which verdict form was warranted. In view of the comments made by counsel during the proceedings, the proper instructions given by the court, and the verdict forms, it is clear that any confusion caused by the inappropriate instruction and the ambiguous, isolated comment by the court was inconsequential. There is no question whether the jurors were made aware of the right to arrive at a verdict of their choice, and the record presents no reason to conclude that defendant was prejudiced by court pronouncements of law.

It is also claimed that during voir dire the court improperly expressed personal knowledge of an essential element not yet proved and improperly implied that the determination of this critical question was nothing more than a formality. A prospective juror asked the court, “Why don’t you know if he [the defendant] is 18?” The court responded that “I do know whether he is 18 or not, but the legislature said we have to do it all over again. *** This is something that was given to us by the legislature, and I have to proceed according to law. So that — well, that is what the defendant wants, and that is what he gets.” Although no objection was made at the time the court’s comment was made, the venireman was later challenged for cause by defense counsel. The record shows that the age element was satisfied through defendant’s own admission of his age. The court’s comment could not possibly have affected the finding of age, and we are not persuaded that this statement communicated a negative attitude toward defendant. In another comment made by the court at the conclusion of the first stage of the bifurcated hearing the court directed court personnel to “Get instructions for this stage of the game.” This comment, like the reference to the legislative decision above, may be criticized as showing discontent with legislative imposition of time-consuming procedures, but it does not indicate an opinion as to what penalty should be imposed against defendant.

Finally, we consider whether, as contended by defendant, the closing argument of the State’s Attorney denied defendant his right to a fair sentencing hearing. Although there was no contention that defendant was in any way involved in the crime of rape, the State’s Attorney in closing argument made several references to the threat posed by the crime of rape. First, in arguing the harm caused by defendant’s acts of violence the State’s Attorney alluded to the amount of liberty lost by society in general as a consequence of criminal activity and then mentioned the inability of a man to go to work in the morning in East St. Louis without being gunned down, and the inability of a woman to deliver mail in broad daylight in East St. Louis without being afraid that she is going to be raped and shot, obviously alluding to the victims of the April 30 shootings. At this point the court sustained an objection made by defense counsel and instructed the jury to disregard any reference to rape. Next, in arguing the need for severe penalties for those who commit violent crimes, the State’s Attorney twice mentioned the crime of rape. The initial reference to rape was clearly objectionable, but the court’s ruling on the objection and the court’s instruction to disregard any reference to rape substantially corrected this error. (See People v. Lion (1957), 10 Ill. 2d 208, 216.) The later two references to rape were not directed at defendant, and no objection was made to these references during argument. In view of the earlier instruction to disregard all references to rape we are of the opinion that the jury was not misled thereby. We are not persuaded that defendant, by these comments, was deprived of a fair hearing. See People v. Smothers (1973), 55 Ill. 2d 172, 176.

At another point in closing argument the State’s Attorney, apparently in an attempt to discredit defense counsel’s argument in favor of a natural life sentence, presented the following rhetorical question to the jury, “How about the guards in that institution, and the inmates in that institution, are you so sure that you can preserve him from committing crime again by doing anything other than what he deserves, the death penalty?” We cannot say that this question regarding the safety of the hypothetical guard and inmates, not objected to at sentencing, was improper under these circumstances. After examining the State’s Attorney’s closing argument we find no reason to conclude that any comment made was so inflammatory as to deny defendant his right to a fair hearing.

We find no reversible error, and the sentences imposed for the murders of Samuel Nersesian and Debra Brown are affirmed. The sentence imposed for the murder of Richard Stoltz must, however, be vacated and the cause remanded to the circuit court of St. Clair County for the imposition of a sentence other than death. In Enmund v. Florida (1982), 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368, the Supreme Court held that the defendant could not be put to death for two killings that he did not commit and had no intention of committing or causing. With respect to the death of Richard Stoltz there is nothing in the record that shows that defendant killed, attempted to kill, or intended to kill the victim, and the decision in Enmund requires that the death sentence be vacated. The cause as to the Stoltz murder is therefore severed and remanded to the circuit court of St. Clair County for the imposition of a sentence other than death.

As to the judgment pertaining to the other two murders, the clerk of this court is directed to enter an order fixing Wednesday, May 18, 1983, as the date on which the sentence of death entered in the circuit court shall be executed at the Illinois State Penitentiary at Joliet. A certified copy of this order shall be furnished by the clerk of this court to the Director of Corrections and the wardens of the Illinois State Penitentiary at Menard and Joliet.

Affirmed in part and vacated in part and remanded in part, with directions.

JUSTICE SIMON,

concurring in part and dissenting in part:

I do not agree that the defendant was given a fair sentencing hearing by a jury free from undue influence by the trial judge. A transcript of the proceedings in which Jones entered his guilty plea was read to the sentencing jury as a part of the evidence. The jury heard that the trial judge told Jones when the guilty plea was received “if certain factors are present, you could be sentenced to death ***. Did he [defendant’s attorney] tell you that if the factors which are necessary and which are present and which I will read to you are present, I wouldn’t hesitate to sentence you to death.” Also read to the jury was the trial judge’s later statement, “I have to take into consideration our society, which has been neglected for too long by crimes of violence. And from what the facts appear to be here, these are senseless killings.”

What the trial judge meant by these statements is not clear. When he spoke of the factors “which are present” was it simply a slip of the tongue? Did he mean to say that if certain necessary factors which he would read to the defendant were present, he would sentence the defendant to death, or was he actually expressing his opinion that the factors were present? When he said he would not hesitate to sentence the defendant to death did he intend to indicate that he believed such a sentence was appropriate in this case or was he merely expressing his willingness to follow the law which he believed gave him no discretion? When he said the killings were senseless did he mean they were more deserving of the death penalty than other triple murders, or that all murders were senseless in his eyes?

The risk that the jurors interpreted the trial judge’s words to mean that he thought the death sentence was appropriate for Jones is too great. I believe that, in spite of the cautionary instruction given by the judge at the close of trial telling the jurors that nothing he said should be construed as expressing his opinion, some of the jurors may well have interpreted his comments as partisan.

The majority agrees that an expression of opinion by a judge must not be allowed to influence a jury. (See People v. Finn (1959), 17 Ill. 2d 614, 617; People v. Coli (1954), 2 Ill. 2d 186, 189; Marzen v. People (1898), 173 Ill. 43, 57-59.) A judge at a jury trial is not merely a moderator. The jury looks to him for guidance and wisdom. They depend upon his knowledge of the law and experience. As such, they are apt to be impressed by his every word. (Bollenbach v. United States (1946), 326 U.S. 607, 90 L. Ed. 350, 66 S. Ct. 402.) In this case the manner in which the jurors might have construed the trial judge’s remarks cast him in the role of an additional prosecutor. (See Wong Yang Sung v. McGrath (1950), 339 U. S. 33, 94 L. Ed. 616, 70 S. Ct. 445, modified on other grounds (1950), 339 U.S. 908, 94 L. Ed. 1336, 70 S. Ct. 564; Ruiz v. Delgado (1st Cir. 1966), 359 F.2d 718.) I believe it was a serious error to allow the jury to hear the judge’s remarks quoted above.

I also believe, even from the cold record, that the jury could have gained the impression that the trial judge was impatient with the defendant and therefore become prejudiced against the defendant himself for delaying the disposition of the case. I refer here to the trial judge’s remarks, set forth in the majority opinion, when a juror asked the judge why he did not know if the defendant was 18 and also the court’s direction to “get instructions for this stage of the game.” Both of these comments are set forth in the court’s opinion. Both remarks could have left the jury with the impression that the defendant was taking positions that caused the State to introduce matters over which there should have been no controversy and thus might have resulted in the jury being biased against the defendant.

I am also concerned about this court’s failure to deal adequately with the defendant’s argument that some members of the jury might have understood the judge to say that the burden of proof is on the defendant to prove that mitigating factors exist. The judge advised prospective jurors, “you go out and determine whether or not this evidence has taken away the factors, mitigated the factors so that you might say no, we don’t want to vote for the death penalty.” The defendant contends the jurors may have interpreted this to mean that the burden was on him. The majority points out that at other stages in the proceeding, it was made clear that a unanimous verdict must be reached before a death penalty can be imposed, and thus no harm occurred. The issue here, however, is not how many persons must agree, but what they agree to. Must the jury unanimously agree that beyond a reasonable doubt no sufficient mitigating factor exists, or that more likely than not no sufficient mitigating factor exists or that the defendant has failed to show that such mitigating factors exist? The jury does not know and neither do I. Unanimity, however, has nothing to do with the question.

For the above reasons I would vacate the defendant’s sentence of death and remand for a new sentencing hearing.