People v. Bean (137 Ill. 2d 65, 1990)

JUSTICE STAMOS

delivered the opinion of the court:

Defendant, Harold Bean, was convicted of the murder of Dorothy Polulach (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)) following a jury trial in the circuit court of Cook County. On the State’s motion, a death penalty hearing was held; the same jury found that defendant had attained the age of 18 years or more at the time of the murder and that, while two statutory aggravating factors existed, no mitigating factors existed sufficient to preclude the imposition of the death penalty (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 1(b)(5), (b)(6), (g)). The court then sentenced defendant to death on the murder conviction. The jury also convicted defendant of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2), for which he was sentenced to 30 years’ imprisonment, and solicitation and conspiracy (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 1(a), 8 — 2(a)), which merged with the murder conviction. Defendant’s execution was stayed pending direct appeal to this court. (Ill. Const. 1970, art. VI, §4(b); 107 Ill. 2d Rules 603, 609(a).) We affirm.

FACTS

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

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

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

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

ANALYSIS

Defendant presents 19 issues for consideration, and he argues that either we should reverse and remand for a new trial, or we should vacate his death sentence and remand for a new death penalty hearing or imposition of a sentence other than death; defendant also seeks remand for a new sentencing hearing on his armed robbery conviction. Defendant’s issues can be arranged as: (1) a challenge to the trial court’s conduct of voir dire; (2) challenges to rulings of the trial court and this court that denied defendant discovery of a witness’ mental health records; (3) challenges to the admissibility of evidence; (4) challenges to the trial court’s conduct of the trial and death penalty hearing; (5) claims of ineffective assistance of counsel; (6) challenges to the appropriateness of his sentences of death and imprisonment; and (7) challenges to the constitutionality of the Illinois death penalty statute.

Defendant’s Absence from a Portion of Voir Dire

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

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

Defendant’s argument is divided into a broader argument and a more specific argument; his broader argument is that as a result of his absence from the in camera voir dire he was deprived of his right to be present at all stages of trial at which his presence was necessary, whereas defendant’s more specific argument is that he was only actually prejudiced by his absence from the in camera voir dire of one venire member, venire member B***. In addressing both levels of this argument we make two observations: (1) none of these six venire members served on the jury which convicted defendant, and (2) if defendant had been present he could have influenced only whether venire member B*** served on the jury. This is because, of the six venire members, four were excused for cause by the trial judge, and one was a potential alternate juror but all of the alternate jurors were chosen before she was reached. (Further negating any prejudice to defendant relating to this potential alternate juror was the excusal of the alternate jurors in this case before the jury deliberated.) Thus, defendant necessarily rests his argument of actual prejudice on his absence from the in camera voir dire of venire member 6 * * *, whom defendant's attorney peremptorily challenged.

Our standard of review on this issue is that of the plain error doctrine, for defendant did not raise this issue either through a trial objection or in his post-trial motion. (People v. Precup (1978), 73 Ill. 2d 7, 16-17; 107 Ill. 2d R. 615(a).) A plain error occurs only when a defendant is deprived of a substantial right, and thus is deprived of a fair trial, or when an error is made in a case with closely balanced evidence. (People v. Carlson (1980), 79 Ill. 2d 564, 576-77.) The evidence in defendant’s trial was not closely balanced, for the State presented more than sufficient evidence to support a conviction and defendant chose not to present a defense. Therefore, only if defendant was deprived of a substantial right could we recognize the in camera voir dire to be plain error.

Undeniably, a criminal defendant has a general right to be present at every stage of his trial, including jury selection. (Illinois v. Allen (1970), 397 U.S. 337, 338, 25 L. Ed. 2d 353, 356, 90 S. Ct. 1057, 1058; People v. Smith (1955), 6 Ill. 2d 414, 416.) This court and the United States Supreme Court, however, have limited the situations in which the denial of this broad right of presence constitutes a violation of the Illinois and United States Constitutions. We examine this issue first by applying Illinois constitutional law, then by applying Federal constitutional law.

In the past we have declared that the broad “right to be present at trial” is not itself a substantial right under the Illinois Constitution. (See People v. Martine (1985), 106 Ill. 2d 429, 439.) Instead, it is a lesser right the observance of which is a means to securing the substantial rights of a defendant. Thus a defendant is not denied a constitutional right every time he is not present during his trial, but only when his absence results in a denial of an underlying substantial right, in other words, a constitutional right; and it is only in such a case that plain error is committed. (See Martine, 106 Ill. 2d at 439-40 (defendant absent during an offer of proof); People v. Kubat (1983), 94 Ill. 2d 437, 493-94 (defendant absent during a jury instructions conference); People v. Devin (1982), 93 Ill. 2d 326, 333-34 (defendant, later sentenced to death, absent during jury’s view of crime scene); People v. Pierce (1974), 56 Ill. 2d 361, 365 (defendant absent when trial judge and attorneys considered how to answer jury’s request for testimony of two witnesses).) Some of these substantial rights are the right to confront witnesses, the right to present a defense, and the right to an impartial jury. In the present case, the right to an impartial jury is the only substantial right possibly denied defendant.

We conclude that no plain error occurred because, although defendant’s broad right of presence was improperly denied and could have affected the impartiality of the jury, defendant’s absence from the in camera voir dire did not, in fact, have the slightest effect on the impartiality of the jury selected. Indeed, even defendant does not claim that his jury was not impartial. Instead, his argument is based upon the broad right of presence and the possibility that if he had been present he might have decided not to peremptorily challenge venire member B***, who then might have become a juror. Yet the Illinois Constitution merely grants a right to an impartial jury; thus, because defendant does not challenge the impartiality of the 12 jurors who convicted him, the possibüity that this one venire member would have become a juror is of no consequence.

Defendant tries to support his position by citing cases he believes established an absolute, inflexible right of presence throughout trial in Illinois; but each of these cases shares one significant limiting fact: The defendants were absent when witnesses testified. People v. Davis (1968), 39 Ill. 2d 325 (defendant absent from entire trial); People v. Mallett (1964), 30 Ill. 2d 136 (defendant absent when witness testified to the burglary of his business, and when defendant re-entered courtroom he was not told the complete testimony before testimony resumed); People v. Smith (1955), 6 Ill. 2d 414 (defendant absent during presentation of his own defense and when verdict of guilty and sentence were entered).

Therefore, defendant’s right to an impartial jury under the Illinois Constitution was preserved, and no plain error on these grounds occurred. Now we consider defendant’s right of presence under the United States Constitution.

Under the United States Constitution, criminal defendants also have a general right to be present at their trials; significantly, though, this Federal right of presence is not an express constitutional right but arises from the due process clause of the fourteenth amendment. (Kentucky v. Stincer (1987), 482 U.S. 730, 745, 96 L. Ed. 2d 631, 647, 107 S. Ct. 2658, 2667; United States v. Gagnon (1985), 470 U.S. 522, 526, 84 L. Ed. 2d 486, 490, 105 S. Ct. 1482, 1484; Snyder v. Massachusetts (1934), 291 U.S. 97, 105-06, 78 L. Ed. 674, 678, 54 S. Ct. 330, 332.) Because it originates in the due process clause, the Federal right of presence is not an absolute, inviolable right; instead, its scope is contained within the scope of due process. (Snyder, 291 U.S. at 105-08, 116, 78 L. Ed. at 678-79, 683-84, 54 S. Ct. at 332-33, 336; see Gagnon, 470 U.S. at 526, 84 L. Ed. 2d at 490, 105 S. Ct. at 1484 (citing Snyder and quoting favorably Stevens, J., concurring in the judgment, in Rushen v. Spain (1983), 464 U.S. 114, 125-26, 78 L. Ed. 2d 267, 277, 104 S. Ct. 453, 459 (“ ‘[T]he mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right. The defense has no constitutional right to be present at every interaction between a judge and a juror’ ”)).) Thus, as long as a defendant’s absence from a portion of his trial does not deprive him of due process, there is no violation of a defendant’s derivative due process right of presence under the United States Constitution.

The Court has further explained that the concept of due process in this context is the equivalent of a fair and just trial; consequently, the due process right of presence is violated only when a defendant’s absence results in his being denied a fair and just trial. “So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” (See Snyder, 291 U.S. at 107-08, 78 L. Ed. at 679, 54 S. Ct. at 333.) To phrase the rule another way, “a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure” (Stincer, 482 U.S. at 745, 96 L. Ed. 2d at 647, 107 S. Ct. at 2667). This means that in a particular case it must be determined if a defendant’s absence resulted in an unfair trial. If it does not appear that an unfair trial resulted, the defendant’s constitutional rights were not violated; this is true even if a defendant’s absence in similar circumstances is usually considered to be improper. The Court has warned that the fourteenth amendment does not “assure[ ] the privilege of presence when presence would be useless, or the benefit but a shadow.” (Snyder, 291 U.S. at 106-07, 78 L. Ed. at 678, 54 S. Ct. at 332.) Whether the benefit would have been “but a shadow” because the fairness of the trial was not affected by the defendant’s absence from a portion of his trial “must be determined in the light of the whole record.” Snyder, 291 U.S. at 115, 78 L. Ed. at 683, 54 S. Ct. at 336; see Gagnon, 470 U.S. at 527, 84 L. Ed. 2d at 490-91, 105 S. Ct. at 1484-85.

Defendant recognizes that his right of presence is limited to those situations when his presence is necessary to a fair trial, in other words, a critical stage of trial. Jury selection is a critical stage of trial. Defendant argues that his right to be present at this critical stage encompasses every moment of the jury selection process, and thus the fairness of his trial was impaired by his absence from the in camera voir dire.

Although we agree that criminal defendants generally have a right to be present throughout the jury selection process, and that usually the exclusion of a defendant from jury selection will result in an unfair trial, we disagree with the assertion that in this case the fairness of defendant’s trial was impaired. Defendant’s argument is based on broad principles and is not adapted to the specifics of this case. Here defendant was absent from a portion of jury selection, and so the fairness issue in this case concerns the impartiality of defendant’s jury. (See Rushen, 464 U.S. at 118-21, 78 L. Ed. 2d at 273-75, 104 S. Ct. at 455-57 (juror’s ex parte conversations with judge about the fact that a defense witness had been convicted of murdering juror’s childhood friend were harmless error because juror testified at post-trial hearing that she was impartial, and judge and juror did not discuss facts or law of case); Howard v. Kentucky (1906), 200 U.S. 164, 50 L. Ed. 421, 26 S. Ct. 189 (defendant not deprived of due process by judge’s excusing an accepted but unsworn juror after questioning him about his impartiality in the absence of defendant and defendant’s attorney, for defendant merely had a constitutional right to be tried by an impartial jury and did not contend that replacement juror was prejudiced).) The issue is: Did defendant’s absence from the in camera voir dire cause him to be tried, convicted, and sentenced by a jury prejudiced against him? A new trial will be ordered only if the answer is yes.

We answer the question with a no. Defendant was tried by an impartial jury despite his absence from the in camera voir dire. As we said earlier, defendant does not dispute the impartiality of his jury; rather, defendant claims he had an absolute right to be present at all times and that but for his absence he might not have allowed his attorney to peremptorily challenge venire member B***, the one potential juror who was interviewed in chambers and not excused by the trial judge. We have already explained that there is no absolute right of presence, and will later address the cases defendant cites in support. As to his claim that if present he might have decided that he wanted venire member B*** as a juror, it falls short of establishing a due process violation, for defendant does not assert that the juror who served in place of venire member B*** was prejudiced. The United States Constitution, as does the Illinois Constitution, guarantees a defendant an impartial jury, not a jury of his choice. (Howard, 200 U.S. at 173-74, 50 L. Ed. at 425, 22 S. Ct. at 191.) Defendant’s due process rights were also not violated as a result of his absence from the in camera voir dire of the other five venire members; four were excused for cause by the trial judge, so defendant could not have influenced whether or not they would become jurors, and as to the fifth, a potential alternate juror who was never reached, the alternate jurors in his trial were excused after closing arguments in the guilt-innocence phase of the trial (see Gagnon, 470 U.S. at 527, 84 L. Ed. 2d at 490, 105 S. Ct. at 1485 (if defendant had been present at in camera discussion among judge, a juror concerned about defendant’s sketching him, and defendant’s attorney, defendant could have done nothing to affect whether juror would remain on jury)).

Defendant’s argument that he had a constitutional right of presence during every moment of the jury selection process relies on two Supreme Court cases, Hopt v. Utah (1884), 110 U.S. 574, 28 L. Ed. 262, 4 S. Ct. 202, and Lewis v. United States (1892), 146 U.S. 370, 36 L. Ed. 1011, 13 S. Ct. 136. Defendant believes that in Hopt and Lewis the Court held that a defendant has a constitutional right to be present during the entire jury selection process, and that exclusion from any portion denies a defendant a fair trial and requires the reversal of his conviction. The rationale for this absolute right of presence is that a defendant is entitled to see and hear every venire member so that he, not his attorney, can decide whom to peremptorily challenge based on his own unique and highly subjective perspective on and reactions to each venire member. In support of this rationale, defendant quotes a passage of dicta in Hopt concerning the special insight a defendant may contribute to his own defense; but defendant disregards the fact that in Hopt the Court was analyzing provisions of the criminal code of the Territory of Utah, and defendant ignores the import of the first part of that quotation: “The prisoner is entitled to an impartial jury composed, of persons not disqualified by statute, ***.” (Hopt, 110 U.S. at 578, 28 L. Ed. at 265, 4 S. Ct. at 204.) The import of that quotation, and to a lesser extent the entire opinion, is that a defendant’s personal presence is needed to ensure empanelment of an impartial jury, not a jury of defendant’s choice, for by his presence as well as his active assistanee of his counsel he may reveal venire members’ prejudices.

Furthermore, neither Hopt nor Lewis held that there is a constitutional right to be present throughout jury selection. The facts in Hopt were that the Utah criminal code provided that in all felony trials defendants must be present at the trial, including a hearing at which the parties’ challenges for actual bias are “tried”; the Court held that defendant and his attorney, who had been excluded from such a hearing, had a right to attend this hearing in order to elicit facts supporting any challenge for actual bias. (Hopt, 110 U.S. at 576-78, 28 L. Ed. at 263-65, 4 S. Ct. at 203-04.) Thus, the Court held in Hopt that defendant had been deprived of his liberty, and would be deprived of his life, without due process of law as a result of his exclusion from a stage of trial at which the criminal code required a defendant’s presence. The Court did not hold that the due process clause of the fourteenth amendment created a right to be present. (Hopt, 110 U.S. at 579, 28 L. Ed. at 265, 4 S. Ct. at 204-05.) In Lewis, the Court reviewed an unusual jury selection procedure: The trial court gave the State and defendant a list of the venire and required them to use their peremptory challenges without first seeing the venire members or having them submit to voir dire; of the unchallenged venire members, the first 12 were sworn as jurors. The Court disapproved this procedure and held that the common law gives criminal defendants the right to meet venire members face to face and as a group before exercising peremptory challenges, so that defendants can choose among them. The Court did not hold that the Constitution created such a right of presence. (And in the present case defendant did meet the venire members face to face, as Lewis demands.) Our conclusion that the Court in Hopt and Lewis did not recognize a constitutional right to be present has been reached thrice by the Court itself. Allen, 397 U.S. at 342, 25 L. Ed. 2d at 358, 90 S. Ct. at 1060; Snyder, 291 U.S. at 117 n.2, 78 L. Ed. at 684 n.2, 54 S. Ct. at 336 n.2; Diaz v. United States (1912), 223 U.S. 442, 458-59, 56 L. Ed. 500, 507, 32 S. Ct. 250, 255.

Defendant also cites as support a case decided by the Idaho Supreme Court reversing a defendant’s burglary conviction and ordering a new trial because the defendant was absent during jury selection. (State v. Carver (1972), 94 Idaho 677, 496 P.2d 676.) In clear contrast with the present case, though, is the fact that the defendant in Carver was absent from the entire jury selection process and had no input into the exercise of peremptory challenges. Given this significant factual difference, we are not persuaded that the fundamental nature of the right of presence recognized by the Carver court warrants a new trial in this case.

Although we agree with defendant’s exposition of why he should have been present throughout jury selection, defendant’s argument does not establish an absolute, inviolable right of presence, which if applied to the present case would require a new trial even though defendant’s presence at the in camera voir dire could not have affected the judge’s excusal of four venire members, and even though defendant has not shown that his absence resulted in a prejudiced juror serving on his jury. Yet while we hold that defendant’s due process right of presence was not violated in this case, we note that the procedure of in camera voir dire without defendant’s presence and without defendant’s express waiver of this right is improper and, in some cases, will inevitably result in the denial of a defendant’s fundamental rights to a fair trial by an impartial jury.

To conclude, we hold that defendant’s right to be present at his trial was not denied him because the facts of the present case are such that he was not denied either his substantial rights under the Illinois Constitution or his due process rights guaranteed by the fourteenth amendment of the United States Constitution; defendant enjoyed a fair trial and was tried, convicted, and sentenced by an impartial jury.

Discovery of Witness’ Mental Health Records

Defendant asserts that his sixth amendment rights to confront and to cross-examine witnesses against him were violated because the trial court did not give his counsel access to all of the mental health records of an important State witness, Deborah Youngbrandt. Youngbrandt testified for the State at both of defendant’s trials, and her testimony was similar at both.

Youngbrandt was defendant’s girlfriend at the time of the murder and testified as follows. In early April 1981 she, defendant, and Danny Egan, who admitted that he drove defendant "to and from the murder, drove her car out of Illinois after defendant heard that the Walterses had confessed to the police. Defendant initially told her that she would be let out of the car at the Illinois-Missouri border, but she was not, instead staying with defendant for approximately a week as he drove through a number of States and then returned to Chicago, where she escaped. During this journey Egan was arrested in Nebraska for a traffic violation, and defendant stole a set of license plates and a pickup truck and then abandoned Youngbrandt’s car. Most importantly, during this journey defendant described to Youngbrandt in detail how he had murdered an elderly woman by dressing as a priest, including the fact that the first gun did not fire, and when Youngbrandt expressed disgust he stated that he had not tortured the woman; defendant also said that the murder was “business,” and there should not have been any risk involved but he had not expected the Walterses to confess. Youngbrandt further testified that the State’s Attorney’s office had helped her recover her car and find a new apartment and had given her rent money.

Before trial, defense counsel moved for an order that the State disclose all psychiatric records generated as a result of Youngbrandt’s voluntary hospitalization on seven occasions between June 1981 and March 1986 for problems with depression and chronic alcoholism. Defendant also sought a court-ordered psychiatric examination of Youngbrandt and a fitness hearing. The court denied the last two requests, but it subpoenaed all of Youngbrandt’s mental health records. The trial judge reviewed these records in camera, without disclosing any of the records to defense counsel or the prosecution.

The judge then held two in camera hearings at which both defense counsel and the prosecutors were present. At these hearings, the judge explained that he had reviewed the records looking for information that would bear on Youngbrandt’s competence as a witness and would be relevant to impeach her credibility. He orally disclosed certain information he found relevant and also disclosed six pages of records. These six pages comprised discharge summaries for two hospitalizations in 1981 and two pages of handwritten notes revealing Youngbrandt’s conversations with therapists. In these six pages, psychiatric personnel identified the many sources of the stress that had caused Youngbrandt to experience depression, alcoholism, and suicidal tendencies. These sources included defendant’s “kidnapping” Youngbrandt, her being placed in protective custody when she returned to Chicago, her worries about being a witness in defendant’s first trial, and threats she had received from defendant’s sister. The records revealed that she felt guilty about her involvement in the murder case and its effect on her family, and that she resented defendant because as a result of his actions she had to get a new apartment, a new job, and new friends. The disclosed records also contained statements about her depression, chronic alcoholism, and other aspects of her mental state, and contained information about what drugs were prescribed for her, her use of illegal drugs, and some of the other problems in her life and how they affected her. Additionally, the trial judge told the attorneys that Youngbrandt had been depressed in February 1986 in part because she would have to testify at defendant’s second trial.

The trial judge found irrelevant all other information in the records that he had not disclosed, and he stated that the records did not indicate that Youngbrandt had at any time been delusional or suffering from a mental illness affecting her perceptual abilities or memory. Though he refused to disclose these other records, the trial judge did not restrict to any extent the scope of the defense’s cross-examination of Youngbrandt about her mental health problems. In addition, access to the other records was denied the prosecution, as well as the defense.

At trial, defense counsel used some of the disclosed information in his cross-examination of Youngbrandt. Defense counsel asked her if she had told her psychiatrist that she had witnessed a murder, as one of the discharge summaries stated; Youngbrandt explained that this was incorrect and her psychiatrist must have misunderstood. Under cross-examination Youngbrandt admitted that in 1981 she had used marijuana and been prescribed lithium, was an alcoholic, and had taken Valium to try to wean herself off alcohol. But Youngbrandt also stated that in April 1981 she had not drunk excessively or taken Valium. Further, she testified that at the time of the trial she was not using any medication. Defense counsel also asked other questions to try to discredit her reliability as a witness. Yet notably defense counsel did not ask Youngbrandt about her many hospitalizations; or about her statement in 1981 to a therapist that she resented defendant, which was included in the disclosed records; or about other indications in the disclosed records that this entire incident created great stress and disrupted her life.

Defendant argues that in granting the right to confront and cross-examine witnesses the sixth amendment (U.S. Const., amend. VI) grants defendants, or at least their attorneys, the right to read through the mental health records of witnesses. Defendant recognizes that in Illinois mental health records are privileged, confidential, and not subject to disclosure in any judicial proceeding (Ill. Rev. Stat. 1979, ch. 91½, par. 803), but argues that his sixth amendment rights are paramount over Youngbrandt’s statutory rights. Defendant rests his argument on the authority of Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, our affirmance of the decision in People v. Dace (1983), 114 Ill. App. 3d 908, aff'd (1984), 104 Ill. 2d 96, and other decisions of the appellate court.

The State counters by distinguishing Davis from the present case, by noting that courts have repeatedly stated that the right to cross-examine is not absolute but is subject to the discretionary control of trial judges, by contending that in this case the trial judge’s in camera inspection of the mental health records fairly protected the rights of both defendant and Youngbrandt, and by citing to our decision in People v. Foggy (1988), 121 Ill. 2d 337, concerning disclosure of a rape victim’s statutorily privileged communications to rape crisis counselors. In Foggy, the trial court denied defendant’s motion for an in camera review of records in order to determine if the records, which were created by a rape crisis counselor and contained communications between the counselor and the rape victim about the rape, contained any impeaching evidence, even though defendant did not seek to have his attorney present at the review. This court upheld the trial court’s ruling, finding that the defendant’s constitutional right to confront witnesses was not violated because the defendant had not shown that the records he sought contained any impeaching information and because of the strong public policy underlying the unqualified privilege of confidentiality for communications to rape crisis counselors.

After considering the arguments of both defendant and the State, we conclude that defendant’s sixth amendment rights were not denied him when the trial judge refused to give him and his attorneys access to all of Youngbrandt’s mental health records. In being denied access to these records, defendant was not denied an opportunity to effectively cross-examine Youngbrandt. (See Delaware v. Van Arsdall (1986), 475 U.S. 673, 679, 89 L. Ed. 2d 674, 683, 106 S. Ct. 1431, 1435; Delaware v. Fensterer (1985), 474 U.S. 15, 19-20, 88 L. Ed. 2d 15, 19, 106 S. Ct. 292, 294 (per curiam).) To be more specific, defendant was denied neither an opportunity to discredit Youngbrandt’s abilities to perceive, recall, and relate events, nor an opportunity to impeach her by revealing any biases or improper motives she might have had for testifying. Because the right to confront and cross-examine is not absolute (Van Arsdall, 475 U.S. at 679, 89 L. Ed. 2d at 683, 106 S. Ct. at 1435), our conclusion necessarily depends upon the particular facts of this case. Nonetheless, we also rely on certain governing principles, established by the Court, that control a criminal defendant’s access to privileged information.

In Davis, the Court first dealt with the conflict between a criminal defendant’s right to cross-examine a witness and the interests of the State and of the witness in keeping certain information confidential. Defendant views Davis as supportive of the proposition that a court’s refusal to disclose all of a witness’ mental health records effectively deprives a defendant of his constitutional rights to confront and to cross-examine. The State, on the other hand, thinks that Davis established a narrower rule: A court commits constitutional error if, while it allows defense counsel to ask questions on cross-examination suggesting that a witness is biased, the court bars defense counsel from informing the jury of the reason why the witness might be biased. We find the State’s characterization of the holding in Davis to be closer to the mark.

In Davis, the crucial witness in a burglary trial was a juvenile who, at the time of the burglary and at the time of trial, was on probation after having been adjudicated a delinquent on two charges of burglary. This juvenile had identified defendant’s photograph and had identified defendant in a lineup as the man he spoke with on the day of the burglary near the spot where the stolen safe was found, which was on the property of this juvenile’s parents. Apparently, defendant was arrested as a result of this juvenile’s identification. And at trial, this juvenile was the only lay witness to link defendant with the burglary. Before the juvenile testified, the prosecutor moved for a protective order barring all reference to the juvenile’s record of delinquency. Defense counsel explained that he would not use this evidence to make a general attack on the juvenile’s character, but argued that he should be allowed to inform the jury that the juvenile had a possible motive for misidentifying the defendant and lying — to divert any suspicion from himself and thus prevent the revocation of his probation. The trial court disagreed with defense counsel and granted the protective order. Davis, 415 U.S. at 309-12, 39 L. Ed. 2d at 350-51, 94 S. Ct. at 1108.

Regardless, defense counsel’s cross-examination was designed to elicit an admission from the juvenile that when the police questioned him about the safe’s being found on his parents’ property he was worried that the police might suspect he was the burglar. But the juvenile, although conceding that he thought the police might suspect him, said this had not worried him. He also denied ever having been questioned by the police “like that” before. Davis, 415 U.S. at 314, 39 L. Ed. 2d at 352, 94 S. Ct. at 1109.

The Court began by stating that the right to cross-examine a witness included the right to impeach the witness by revealing possible biases and ulterior motives the witness might have for testifying. (Davis, 415 U.S. at 315-16, 39 L. Ed. 2d at 353-54, 94 S. Ct. at 1109-10.) The Court then held that defendant was denied the right of effective cross-examination because “[o]n th[o]se facts” defense counsel was not able to “develop the issue of bias properly to the jury,” for “[wjhile counsel was permitted to ask [the witness] whether he was biased, counsel was unable to make a record from which to argue why [he] might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial.” (Emphasis in original.) (Davis, 415 U.S. at 318, 39 L. Ed. 2d at 355, 94 S. Ct. at 1111.) As a consequence of defense counsel’s inability to present evidence showing why a witness might be biased, a jury might view defense counsel’s cross-examination with disapproval as a groundless attack on the witness. In addition, the Court believed that the juvenile improperly used the protective order as a shield to untruthfully answer that he had never been questioned by the police “like that” before, despite his delinquency record. The Court concluded its analysis by declaring that the witness’ and the State’s interests in the confidentiality of juvenile justice records are subordinate to a defendant’s constitutional right to effectively cross-examine an adverse witness to show bias. Davis, 415 U.S. at 319-20, 39 L. Ed. 2d at 355-56, 94 S. Ct. at 1111-12.

We think Davis established the rule that a trial court cannot bar defense counsel from exploring the subject of a crucial witness’ potential bias on cross-examination, including the reason for that potential bias, even if this information is protected by a statutory privilege intended to protect the witness; such information is valuable in the jury’s evaluation of the truthfulness of the witness’ testimony. In the present case, this rule was not violated; defendant was given full rein to cross-examine Youngbrandt about her mental health. Davis does not demand that we hold that the right to effective cross-examination required the trial court to allow defendant or his counsel to read all of Youngbrandt’s privileged mental health records to assure themselves that all relevant and otherwise proper information that could be used to impeach Youngbrandt had been disclosed. We decline, to hold that defendant’s sixth amendment rights were violated. Our conclusion is supported by the Court’s subsequent explanation of its Davis holding in Pennsylvania v. Ritchie (1987), 480 U.S. 39, 94 L. Ed. 2d 40, 107 S. Ct. 989 (opinion by Powell, J., joined by Rehnquist, C.J., and White and O’Connor, JJ.). See also Van Arsdall, 475 U.S. at 679, 89 L. Ed. 2d at 683, 106 S. Ct at 1435 (confrontation clause is violated when defense counsel is barred from all inquiry about a witness’ possible bias and motive for testifying, but trial judges retain power to limit such cross-examination on such bases as irrelevancy and confusion of the issues); United States ex rel. Blackwell v. Franzen (7th Cir. 1982), 688 F.2d 496 (defendant’s sixth amendment rights not violated when his attorney was allowed, during cross-examination of a government witness, to develop a variety of reasons why witness’ testimony was unreliable but was not allowed to elicit contents of a privileged conversation between the witness and his attorney).

Ritchie specifically dealt with the situation in the present case: whether a defendant has a constitutional right to review statutorily privileged information about a witness so he can argue the relevancy and admissibility of the information to the court. Although Ritchie was a plurality opinion, five Justices concurred in the judgment and concurred that while the defendant had a constitutional right to all material information contained in statutorily privileged records, he had no right to review the full records himself or through his attorney; instead, the trial judge alone should review the records in camera and should then disclose only material information. Ritchie, 480 U.S. at 58-61, 94 L. Ed. 2d at 58-60, 107 S. Ct. at 1002-04.

Ritchie involved child abuse records. The defendant was tried for sexually abusing his daughter, who was the main witness against him at trial. He sought disclosure of records compiled by a State agency which investigated a number of reports that his daughter was an abused child. The trial judge denied defendant’s motion for disclosure of the records after reviewing some, but not all, of the records in camera. Neither the prosecutor nor defense counsel had access to any of the records. Ritchie, 480 U.S. at 43-45, 94 L. Ed. 2d at 48-49, 107 S. Ct. at 994-95.

The disagreement among the concurring Justices did not concern whether defendant had a right of access to these privileged records; rather, the disagreement concerned which constitutional right gave defendant a right to material information contained in these privileged records. Four Justices found the right of access to material information to be encompassed by the due process right to all information known to the prosecution that is either favorable to the accused or material to guilt or punishment (material evidence is information that, if disclosed to the defense, probably would have changed the outcome of the trial). (Ritchie, 480 U.S. at 57-58, 94 L. Ed. 2d at 57-58, 107 S. Ct. at 1001-02.) They rejected the claim that the confrontation clause, as interpreted in Davis, gave defendant a right to any of this privileged information. They explained that in Davis the confrontation clause was implicated because the trial judge had infringed defendant’s right of confrontation, which is a trial right, by barring defense counsel from cross-examining a witness about privileged information known to defense counsel; in contrast, defendant’s trial right of confrontation was not infringed in Ritchie because the trial court did not limit defense counsel’s cross-examination, even though the trial court did deny defendant pretrial discovery of privileged information. (Ritchie, 480 U.S. at 52-53 & n.9, 94 L. Ed. 2d at 54 & n.9, 107 S. Ct. at 999 & n.9.) According to these four Justices, the right to confrontation is not violated when the scope of cross-examination is not directly limited at trial but rather is indirectly limited by barring pretrial discovery of privileged information. Justice Blackmun, the fifth concurring Justice, disagreed; he thought that it was the right to effective cross-examination that gave a defendant a right to discover impeaching information contained in privileged records, and Justice Blackmun stated that denying such pretrial discovery violated the right to confrontation just as surely as did barring defense counsel from cross-examining a witness about impeaching information already known to defense counsel, as in Davis. Nevertheless, Justice Blackmun agreed that the confrontation clause did not give a defendant a right to review privileged records himself or to have his attorney do so. Ritchie, 480 U.S. at 65, 94 L. Ed. 2d at 62, 107 S. Ct. at 1006.

The critical part of the Ritchie decision for this case is not which constitutional provision requires that a defendant have access to material privileged information, but the procedure for reviewing these privileged records approved by a majority of the Court as not violative of either the sixth amendment or the fourteenth amendment’s due process clause. (Ritchie, 480 U.S. at 58-61, 65, 94 L. Ed. 2d at 58-60, 62-63, 107 S. Ct. at 1002-04, 1006 (opinion of Powell, J., joined by Rehnquist, C.J., and White and O’Connor, JJ.; Blackmun, J., concurring in part and concurring in the judgment).) The five Justices of the majority concluded that a defendant does not have a constitutional right, under either the due process clause or the sixth amendment confrontation clause, to make his own search of privileged records; the due process right to a fair trial is fully protected, as is the State’s and the witness’ statutory right to preserve the confidentiality of child abuse records, if the trial court reviews the records in camera and uses its discretion to disclose only material information, which includes impeaching information. A defendant has no right to cast his “ ‘advocate’s eye’ ” over statutorily privileged records. But if a defendant knows of any particular information contained in the privileged records, “he is free to request it directly from the court, and argue in favor of its materiality.” Ritchie, 480 U.S. at 60, 94 L. Ed. 2d at 59, 107 S. Ct. at 1003.

The in camera review procedure prescribed by the Court in Ritchie was precisely the procedure used by the trial judge in the present case: He reviewed Youngbrandt’s psychiatric records himself and, without giving access to either defense counsel or the prosecution, held a hearing at which both parties were allowed to argue their positions; the trial judge then disclosed, orally and by releasing copies of certain pages of the records, all information he thought was relevant and could be used to impeach Youngbrandt. Furthermore, this procedure was as appropriate in this case involving mental health records privileged by the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1979, ch. 91½, par. 801 et seq.) as it was in Ritchie, which involved privileged child abuse records. In passing the Act, the Illinois legislature expressed a strong public policy in maintaining the confidentiality of records and communications made “during or in connection with providing mental health *** services to a recipient” (Ill. Rev. Stat. 1979, ch. 91½, par. 802(1)) in all circumstances except for stated exceptions (Ill. Rev. Stat. 1979, ch. 91½, pars. 804(a), 806 through 812.2), none of which apply in this case. This public interest, and the individual recipient’s interest, in maintaining the secrecy of this personal information in order to assist the individual’s recovery (see Novak v. Rathnam (1985), 106 Ill. 2d 478, 483) justifies its protection from the unlimited scrutiny of a criminal defendant or defense counsel wielding the sixth amendment as a weapon before which all other interests must fall.

We conclude that this procedure did not violate defendant’s sixth amendment rights to confront and to have an opportunity to effectively cross-examine witnesses against him. (See People v. Barkauskas (1986), 147 Ill. App. 3d 360 (defendant’s sixth amendment rights not violated when trial court inspected a witness’ mental health records in camera and, without input from either the prosecution or defense, decided what information would be disclosed).) The rights to confront and to cross-examine do not encompass the right to full knowledge about a witness’ mental health problems in the hope of finding impeaching information that a trial judge might overlook; these rights are secured even though a defendant has to rely upon a court’s judgment of what is relevant and impeaching. And just as a trial judge can limit cross-examination to prevent inquiries that are irrelevant, repetitive, or too time-consuming, that harass the witness, or that threaten to distract the jury from the actual issues by unduly emphasizing details of the witness’ life, a defendant’s access to statutorily privileged information can be limited by the same considerations. Thus, when the patient or a therapist asserts the privilege, a trial judge can review in camera, without disclosure to any attorneys, a witness’ mental health records and disclose only those portions that are relevant when that relevance is not outweighed by other factors.

Defendant argues that the in camera review conducted in the present case was improper under this court’s previous decision in People v. Dace (1984), 104 Ill. 2d 96, aff'g (1983), 114 Ill. App. 3d 908, and we should therefore hold that defendant’s rights were violated. In Dace, the testimony of an accomplice was the sole evidence that the defendant had committed a burglary. The accomplice had been involuntarily committed to a mental health hospital V-k years before the burglary. The trial court had barred defense counsel from discovering any information about the witness’ mental health and from inquiring into this subject on cross-examination, ruling that the information was too old to be relevant. (Dace, 114 Ill. App. 3d at 911-12.) The appellate court held that when it reasonably appears that a witness’ mental health history is relevant, a court should permit discovery of the information and then, if the witness asserts the privilege, hold a hearing at which the prosecution and defense may argue over the admissibility of the information as relevant to the witness’ credibility. (Dace, 114 Ill. App. 3d at 915.) We affirmed the appellate court’s judgment on other grounds, and we briefly commented that “we agree with the appellate court that, under the circumstances shown by the evidence, the refusal to permit the discovery was reversible error.” (Dace, 104 Ill. 2d at 103.) Defendant erroneously reads this dictum as a holding by this court that the only procedure appropriate when discovery of privileged information is sought is the procedure outlined by the appellate court in Dace.

We find not only that the review procedure used here was proper, but that the trial court did not err in its decision as to what information was relevant and properly should have been disclosed to defendant. We have reviewed all of Youngbrandt’s mental health records and cannot say that the trial court abused its discretion, manifestly prejudicing defendant. (See People v. Collins (1985), 106 Ill. 2d 237, 269; United States v. Cameron (7th Cir. 1987), 814 F.2d 403, 406.) All of the undisclosed information contained in the records was irrelevant to Youngbrandt’s credibility, for it neither indicated any bias against defendant nor revealed Youngbrandt to be lacking in her abilities to perceive, remember, or relate the occurrences about which she testified. The trial court disclosed all of the information relevant to impeachment of Youngbrandt, including information about her chronic alcoholism, her drug use, and her resentment toward defendant for disrupting her life (defendant argues he should have had access to the records to determine the reasons why Youngbrandt resented him and was depressed in part because she had to testify at his trials, but the records contain no information on these issues beyond what was disclosed). Furthermore, the trial court did not in any way limit defense counsel’s use of the disclosed information during the cross-examination of Youngbrandt. We find no error on this issue.

Defendant further claims that his appellate counsel should have been allowed to review Youngbrandt’s mental health records; defendant reasons that his appellate counsel had to be allowed to learn the contents of these records in order to convincingly argue to this court that defendant’s trial counsel should have been allowed to review the records because they contain relevant impeaching information. We denied appellate defense counsel’s prior motion for such access. Now defendant claims that by denying that motion this court deprived him of his sixth amendment right to the effective assistance of appellate counsel (see Evitts v. Lucey (1985), 469 U.S. 387, 83 L. Ed. 2d 821, 105 S. Ct. 830 (due process requires that a defendant receive effective assistance of counsel during his first appeal as of right)).

Although we recognize that the argument of defendant’s appellate counsel was limited by his inability to point to portions of the mental health records and argue that they were discoverable, this limitation did not cause defendant’s appellate counsel to be ineffective when arguing this issue. When deciding a claim of ineffective assistance of appellate counsel we apply a standard of fairness. (See Evitts, 469 U.S. at 392, 396-97, 83 L. Ed. 2d at 827, 830-31, 105 S. Ct. at 833, 836 (Court decided case on due process grounds and held that to be effective appellate counsel must give assistance of such quality as to make the appellate proceedings fair); see also Strickland v. Washington (1984), 466 U.S. 668, 685, 696, 80 L. Ed. 2d 674, 692, 699, 104 S. Ct. 2052, 2063, 2069 (stresses that in deciding a claim of ineffective assistance of counsel the focus is on “the fundamental fairness of the proceeding whose result is being challenged” and whether the adversarial quality of our justice system was preserved).) This appellate proceeding was not unfair in consequence of the discovery limitation we imposed on appellate defense counsel. As part of our consideration of counsel’s argument we reviewed the mental health records mindful of defendant’s limited knowledge of the contents. In addition, the State had no greater knowledge of these records’ contents at either the trial or appellate proceedings. Thus, neither party was able to make the kind of detailed adversarial argument that otherwise would have been possible, and the comparative quality of the arguments of these two adversaries was unaffected by our ruling.

Admissibility of Other Evidence

Defendant argues that he was also deprived of his constitutional rights to confront and cross-examine witnesses because he was not allowed to confront and cross-examine two people, Ann Walters and defendant’s ex-wife, Gerri Smith, who were not called as witnesses but whose statements were admitted at trial through the testimony of Wayne Walters. Defendant contends that Wayne Walters’ testimony was hearsay, and defendant further contends that the admission of this testimony, despite the State’s failure to call Ann Walters or Gerri Smith as a witness, caused him to be deprived of his constitutional rights. Defendant asks us to grant him a new trial on this basis, although no objection was made to this testimony at trial and the issue was not included in defendant’s post-trial motion for a new trial. We decline to do so, for we find that this issue was waived and does not constitute plain error warranting our attention (107 Ill. 2d R. 615(a)).

The testimony about which defendant complains consists of the following statements made by Wayne Walters during his direct examination:

“Q. Now *** the 17th of February, 1981, did you receive a call from Gerri Smith?

A. Yes. *** We received a phone call from Gerri Smith that morning.

* * *

Q. After that phone call from Gerri Smith, on the 17th of February, 1981, did Harold Bean call your house?

A. Yes.

* * *

Q. Who told you Harold Bean had called?

A. My wife.

Q. Ann?

A. Yes.

Q. What did Ann tell you regarding Harold Bean’s phone call?

A. She says, ‘Harold is coming back into town. He needs to talk to us. He did it, and he needs money.’ And I said—

Q. Did you understand what Ann meant when she said, ‘He did it’?

A. Oh, yes. Because when Gerri called, she said, ‘That has been done. Dorothy was killed.’ ”

Defendant characterizes the above testimony as highly prejudicial hearsay because Wayne Walters testified that defendant had confessed to both Ann and Gerri that he had killed Polulach, yet defense counsel was never able to question Ann or Gerri about these confessions. We characterize this testimony differently. It was not highly prejudicial, for immediately following the testimony quoted above Wayne Walters testified that when he met with defendant the next day defendant described in detail how he had killed Polulach.

The admission of this testimony was not plain error. The other evidence presented at trial was more than sufficient to support defendant’s conviction — the evidence was not closely balanced (see People v. Carlson (1980), 79 Ill. 2d 564, 576). Furthermore, assuming defendant’s substantial rights are involved and that error was committed, we do not find that the error was so devastating that defendant was denied a fair trial. See People v. Howell (1975), 60 Ill. 2d 117,120-21.

Because we decline to recognize as plain error the trial court’s admission of the above testimony and failure to exclude the testimony on its own initiative, we do not decide whether it in fact was hearsay because it was offered to prove the truth of the assertion that defendant killed Polulach or whether it was offered for another purpose, such as to explain Wayne Walters’ subsequent actions; nor do we decide whether this testimony fell under the hearsay rule’s exception for statements made by co-conspirators, as suggested by the State.

Defendant next asserts that he was denied his constitutional right to have a jury fairly determine his guilt or innocence of the crimes for which he was tried because ■witnesses testified that defendant said he had murdered someone in the past, that defendant threatened to murder various people, and that defendant committed two crimes during his journey out of Illinois. Defendant argues that either this testimony was irrelevant or its relevance was outweighed by its prejudicial implication that defendant had a propensity to commit murder.

Defendant waived these claims by failing to object to any of this testimony at trial and by failing to raise these claims in his motion for a new trial. (People v. Adams (1985), 109 Ill. 2d 102, 116.) The plain 'error doctrine does not save these claims because as to each piece of testimony cited by defendant we find that either it was admissible or, although inadmissible, its admission did not constitute plain error depriving defendant of a fair trial. See Carlson, 79 Ill. 2d at 576-77; 107 Ill. 2d R. 615(a).

Defendant most strenuously attacks the admissibility of a statement Wayne Walters made in response to the prosecutor’s question if there was “any further discussion about what Mr. Bean had volunteered to do.” Wayne Walters answered that Ann asked defendant why he would murder Polulach and defendant said, “ Well, it’s been done before,’ or, ‘I’ve done it before,’ or something of that nature.” Defendant believes that the prosecutor gratuitously elicited this testimony merely to persuade the jury that defendant had committed a murder-for-hire in the past and so had a propensity to murder. We find this testimony to have been admissible because it was relevant and its relevance was not outweighed by any potential prejudice to defendant. This testimony was relevant to defendant’s intent and willingness to murder Polulach. The statement reveals how serious defendant was about committing the murder during this initial conversation with his co-conspirators. While evidence of other crimes