People v. Pasch (152 Ill. 2d 133, 1992)

JUSTICE MORAN

delivered the opinion of the court:

Defendant, John Pasch, was charged with two counts of murder and one count of aggravated kidnapping in Cook County. Following a jury trial, defendant was found guilty of the murders of Leslie Shearer and Officer Richard Clark, as well as the aggravated kidnapping of Jean Wiwatowski. After finding defendant eligible for the death penalty based on three statutory aggravating factors, the jury found there were insufficient mitigating factors to preclude imposition of the death sentence. Therefore, defendant was sentenced to death, as well as to a 15-year term of imprisonment for the aggravated kidnapping conviction. The death sentence was stayed (134 Ill. 2d R. 609(a)), pending direct appeal to this court (Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d R. 603).

Concerning pretrial procedures, defendant raises as issues whether: (1) the trial court erred in not granting a hearing to determine if promises to defendant, made during the negotiations leading up to his surrender, should be specifically enforced; (2) a Batson hearing is required, as the State peremptorily challenged the only Hispanic venireperson; and (3) defendant’s right to an impartial jury had been violated when the trial court refused to excuse for cause three jurors.

Pertaining to the guilt phase of the trial, defendant raises as issues whether: (1) the insanity and the guilty but mentally ill (GBMI) instructions violated due process with their conflicting burdens of proof which might have resulted in the jury’s rejecting a GBMI verdict; (2) the GBMI instructions violated due process by failing to place the burden of proof upon the State; (3) defendant’s right of confrontation was violated when the State referred to nontestifying experts’ opinions during the direct examination of its expert and the cross-examination of defendant’s experts; (4) the impeachment of defendant’s expert with the conclusions of other experts upon which he did not rely was proper; (5) due process was violated when defendant was forced to give tape recordings of his interview with his expert to the State when he was not allowed to tape-record his interview with the State’s expert; (6) the opening and closing statements were inflammatory and denied defendant his right to a fair trial; (7) the cross-examination of a defense witness, Brian Kelly, violated defendant’s right of confrontation; (8) defendant was proven guilty beyond a reasonable doubt of aggravated kidnapping; (9) the stricken testimony of Officer Walsh concerning his telephone conversation with defendant upon arrival requires reversal; and (10) the trial court erred in sustaining the State’s objection to the question asked of Officer Biebel about what defendant said had caused him to shoot the two people.

Concerning his sentencing hearing, defendant raises as issues whether: (1) the introduction of victim impact evidence denied defendant his eighth amendment right to a fair trial and sentencing; (2) the mitigating evidence precluded the death sentence; (3) the State’s argument at sentencing denied defendant due process and the right to a fair sentencing hearing under the eighth and fourteenth amendments; (4) it was proven beyond a reasonable doubt that defendant knew or should have known that Officer Clark had been a peace officer; (5) due process was abridged by Officer Walsh’s testimony in the first phase that defendant told him over the phone that he “had material to make gasoline bombs, he had armor-piercing ammunition, and he wanted to kill more policemen”; and (6) the GBMI instruction was reasonably likely to cause the sentencer to disregard defendant’s mitigating evidence of his mental state.

Concerning the constitutionality of the Illinois death penalty statute, the defendant raises as issues whether: (1) the statute unconstitutionally places the burden upon a defendant to prove mitigating circumstances; and (2) the death penalty statute results in the arbitrary imposition of the death penalty.

The facts of this case are as follows. Defendant was visited by his landlord, Leslie Shearer. During the visit, defendant had a heated conversation with Shearer, then chased him into the yard and shot him several times, killing him. Immediately thereafter, defendant ran next door and struggled with an older woman, Mary Wagner, on the porch of an apartment building that she shared with her sister, Jean Wiwatowski. Wagner was able to escape, but then defendant ran into her apartment carrying weapons. After fleeing, Wagner proceeded to tell a neighbor what had transpired, and that her sister was still in the house with defendant.

Shortly thereafter, police arrived in response to a call indicating that shots had been fired and that a man had been shot. Three officers walked down the street, taking shelter behind parked cars. Defendant shouted that no one should come into the house and then shortly thereafter shot and killed a plainclothes officer, Richard Clark, after which a long standoff ensued.

During the standoff, a full hostage program was put into effect, with the immediate area sealed off, while negotiators talked to defendant. A hostage negotiator recalled making promises to defendant, but does not remember any promises made about the death penalty. Another negotiator stated that defendant brought up the death penalty, but that the negotiator had changed the subject. Both negotiators opined that defendant knew what he was doing. The entire standoff lasted approximately 36 hours, at the conclusion of which defendant and the police agreed on how defendant would surrender. He was then arrested.

At trial, the insanity defense was raised. Defendant presented several photos of his apartment which showed it to be in complete disarray. Several neighbors stated that defendant had been a recluse. Defendant’s friend, A1 Fleck, stated that, since 1981, the defendant had been “hanging out” with transvestites. The defendant’s expert, Dr. Gaspero, a clinical psychologist, stated that, in his opinion, defendant suffered from moderate to severe depression, obsessive compulsive thoughts, and an avoidant personality disorder; that defendant took refuge in his apartment due to his delusions that the world was a threat, delusions which arose from a beating he suffered at the hands of a gang of Hispanic youths a year earlier; that his estranged son’s 30th birthday, which occurred on the same day as the shootings, was not a mere coincidence, but was a contributing factor; and that defendant was insane at the time of the shootings. Another neighbor, who lived in the same apartment building as defendant, stated that in the weeks prior, he had heard defendant arguing with himself, repeatedly turning the water on and off, and breathing in an amplified and unusual manner.

The State’s expert, Dr. Cavanaugh, a psychiatrist, stated that defendant suffered from mild to moderate depression; that defendant had schizoid personality traits; that defendant had been suffering from a mental illness, dysthymia; that defendant was mildly paranoid; that defendant’s condition did not rise to the level of a personality disorder; that defendant’s mental condition did not meet the legal definitions of insanity or guilty but mentally ill; that the other State experts who examined defendant did not agree with Dr. Gaspero’s opinions; and that neither defendant’s choice of friends, his divorce, his obesity, his filthy apartment, nor the attack by the Hispanic street gang affected his sanity.

After the jury found defendant guilty of the murders of Shearer and Clark, as well as the aggravated kidnapping of Wiwatowski, the trial proceeded to the sentencing hearing. In the first phase of sentencing, the jury found defendant eligible for death since (1) he had killed two people; (2) one of the persons he had killed was a police officer; and (3) one of the victims had been killed in the course of a felony (i. e., aggravated kidnapping).

In the second phase of the hearing, all of the evidence and testimony from trial was allowed to be used. Defendant’s estranged son testified that he had not seen his father in nearly 20 years; that it was significant that the shootings took place on his birthday; and that his father needs help and should not be executed.

Additional relevant facts will be forthcoming as each individual issue is discussed in depth.

PRETRIAL ISSUES

Before trial, the defense filed a motion requesting the specific performance of promises made to defendant during the hostage standoff. According to defendant, the negotiators promised him that if he surrendered, he would not have the death penalty imposed against him, that he would be taken to a mental hospital, and that he would be afforded a lawyer. The State filed a motion to strike, dismiss and deny defendant’s motion for specific performance. Subsequently, the defense requested an evidentiary hearing to establish the factual allegations in the motion for specific performance. This request was denied. The court also dismissed the original motion as untimely, even though it had apparently been filed prior to the cut-off date established by the court. Notwithstanding the timeliness problem, the court ruled that the promises given were made under duress, and were therefore not enforceable.

Defendant alleges that the court erred in failing to grant defendant a hearing on this motion. He submits that there was a question over exactly what was promised him; therefore a hearing should have been granted to resolve any conflict that existed. As support for his position that promises not to seek the death penalty are enforceable, defendant relies on People v. Walker (1981), 84 Ill. 2d 512, and People v. Brownell (1983), 96 Ill. 2d 167.

We find that Walker and Brownell are not controlling in this instance. An analysis of those cases reveals that in each the State’s Attorney’s office had entered into a plea bargain with the defendant to the effect that the State’s Attorney would not seek the death sentence in return for a concession from the defendant (e.g., a guilty plea or a written confession). This differs substantially from the situation at hand, where, according to defendant, the police promised him.that they would refrain from seeking the death penalty if he would surrender.

It is clear that defendant did not enter into a plea bargain with the State when the police promised him that they would not seek the death penalty if he would surrender. Defendant never said during the negotiations that he would plead guilty to the charges, and the prosecutor never accepted a plea in exchange for a lesser sentence than death, nor did defendant ever actually plead guilty to the charges against him. It is only where a defendant enters a guilty plea in reliance upon the promises of a prosecutor that he is entitled to a remedy when such promises are breached. Santobello v. New York (1971), 404 U.S. 257, 262, 30 L. Ed. 2d 427, 433, 92 S. Ct. 495, 499.

More importantly, defendant’s claim that such promises were enforceable disregards the fact that he was legally required to give up his hostage and surrender; thus, any promises made to induce him to do what he already was legally obligated to do would not constitute an even exchange of promises as required for the existence of a plea bargain. Additionally, any promises which were made to defendant during this period of time were void from the very beginning and unenforceable as a matter of public policy, as they were made through violence and coercion. See State v. Rollins (1976), 116 R.I. 528, 359 A.2d 315.

A trial court’s decision to hold an evidentiary hearing is discretionary, and such a decision will not be reversed absent an abuse of such discretion. (People v. Adams (1987), 164 Ill. App. 3d 742, 747.) Here, there was clearly no abuse of discretion in denying defendant an evidentiary hearing where the trial court found as a matter of law that he was not entitled to one. The court specifically found that sufficient evidence of the promises made to defendant had been presented through various defense and prosecution motions. Moreover, the State never contested the existence of promises, only that whatever promises were made were unenforceable (for the reasons previously discussed). Thus, there was clearly no need for an evidentiary hearing.

Defendant, a Caucasian, next contends that his equal protection rights were violated because the State chailenged the only apparently Hispanic venireperson and the court did not require the prosecutor to explain the basis of his challenge. The State, on the other hand, maintains that defendant has waived appellate consideration of this issue by failing to compile an adequate record which would indicate the race or ethnic origin of all the venirepersons.

In order to provide for meaningful appellate review of a Batson issue, the record should disclose the race of the venirepersons. (People v. McDonald (1988), 125 Ill. 2d 182, 194-95.) However, the absence of such information will not overcome strong evidence weighing in favor of a prima facie case. (People v. Andrews (1992), 146 Ill. 2d 413, 434-35.) Consequently, we shall review the relevant facts of voir dire and the Batson claim as they appear from the trial court record.

Equal protection is denied where a defendant is put on trial before a jury from which prospective jurors have been purposely excluded because of their race. (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) “Batson established a two-step procedure for the resolution of a defendant’s claim that the prosecution used its peremptory challenges in a racially discriminatory manner. First, the defendant must establish a prima facie case of purposeful discrimination in the selection of his jury. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a race-neutral explanation for challenging each of the venirepersons. [Citation.] The trial court must then consider those explanations and determine if the defendant has established purposeful discrimination.” Andrews, 146 Ill. 2d at 424, citing Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1724.

For a prima facie showing, the defendant must establish that the relevant circumstances surrounding the selection of the jury raise an inference of racial discrimination by the State. (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723.) Here, defendant claims that there was a prima facie showing of racial discrimination under Batson, as Mexican-Americans are a clearly identifiable class under equal protection analysis. Castaneda v. Partida (1977), 430 U.S. 482, 495, 51 L. Ed. 2d 498, 511, 97 S. Ct. 1272, 1280; see also Hernandez v. New York (1991), 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859.

A number of factors are relevant in determining whether a prima facie case of discriminatory jury selection has been established. These factors include:

“a ‘pattern’ of strikes against [Hispanic] jurors; ‘the prosecutor’s questions and statements during voir dire examination and in exercising his challenges’ [citation]; the disproportionate use of peremptory challenges against [Hispanics] [citations]; the level of [Hispanic] representation in the venire as compared to the jury [citations]; whether the excluded [Hispanics] were a heterogeneous group sharing race as their only common characteristic [citation]; the race of the defendant and victim [citations]; and the race of the witnesses [citations].” People v. Evans (1988), 125 Ill. 2d 50, 63-64.

The trial judge in the case at bar never made a finding as to whether a prima facie case had been established by the defendant. The only discussion found in the record with regard to defendant’s Batson claim is as follows:

“MR. SMITH [Defense Counsel]: Your Honor, regarding one of the last jurors excused, Mr. Maldadado [sic], we’d like the record to reflect Mr. Maldadado [sic] was called in chambers. He was asked date of birth and social security number. The purpose for that, the State believed that he was a possible felon.

MR. SCHOLZ [Defense Counsel]: Correct.

MR. SMITH: He was then excused. We object. The only Latin.

THE COURT: He was excused on peremptory.

MR. SMITH: We are just making a record. We object to him being excused. He was apparently of Hispanic descent. Mexico.

MR. SCHOLZ: Mr. Pasch indicates that Dr. Cavena [sic] took profuse notes during the interview.

THE COURT: We will — if he has them, we will get them. Order of Court 10-20.

MR. McNERNY [Prosecutor]: Mr. Pasch, he is not Latin.

THE COURT: You don’t have to give me reasons for peremptory challenge. Mr. Pasch is not Mexican, go on.

MR. McNERNY: Jury of cross section, Judge.”

Defense counsel argues that if we determine that he has failed to prove a prima facie case, then, by virtue of the above passage, we should hold that defendant was found by the trial court not to have standing to present a Batson violation. From review of this passage in its proper context, it is not absolutely clear that the judge made that specific determination. Arguably, it can be inferred that the judge overruled the defendant’s objection after concluding that defendant’s and the excluded venireperson’s ethnic origins differed; however, the lack of a clear record on this point prohibits us from making that conclusion. If he had disposed of the Batson objection solely because of ethnic diversity, his actions would certainly be improper. (Powers v. Ohio (1991), 499 U.S. 400, 402, 113 L. Ed. 2d 411, 419, 111 S. Ct. 1364, 1366 (“a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded jurors share the same race”).) While Powers was decided after defendant was tried, it is still applicable to this case for the same reasons that Batson was applied retroactively to cases pending on direct appeal at the time Batson was decided. (See Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708.) Even though racial identity between the defendant and the excluded venireperson is not required, it still remains a relevant factor in determining whether a prima facie case of discrimination has been established. Andrews, 146 Ill. 2d at 425.

Assuming, arguendo, that the judge had erred by dismissing defendant’s objection solely because of the lack of racial/ethnic identity, it does not preclude us from reviewing the trial court record to determine whether defendant made out a prima facie case, as he claims existed. This is a logical step since there is no indication at trial (i.e., there was no request for a hearing on the matter, no offer of proof made, or no claim in defendant’s post-trial motions), nor does defendant allege on appeal that the trial court prohibited him from presenting any evidence of a prima facie case.

There is no indication as to which, if any, of the relevant factors the trial judge considered in analyzing whether a prima facie case had been established. The standard to be applied “in reviewing the trial judge’s determination on this issue is not whether the judge abused his discretion. Rather, it is our role to review the evidence in its entirety and to determine if the trial judge’s ruling is against the manifest weight of the evidence.” (Emphasis in original.) (Andrews, 146 Ill. 2d at 428.) Since there appears to have been no affirmative ruling one way or the other by the judge on this issue, we must determine whether the trial judge’s action, or inaction, which presumes the lack of a prima facie showing, was against the manifest weight of the evidence. (See People v. Garrett (1990), 139 Ill. 2d 189, 202.) Therefore, we believe that it is appropriate to make an objective review of the record.

Defendant, in proving a prima facie case of racial discrimination, claims that the State’s peremptory challenge eliminated an entire race from sitting on the jury. Although it is true that a prima facie case can be established where the State excludes the only venireperson of a certain race (see People v. Jones (1988), 177 Ill. App. 3d 663), it is not unconstitutional, without more, to strike one or more individuals of a certain race or ethnic origin from the jury. See Evans, 125 Ill. 2d at 63-64; People v. Hooper (1987), 118 Ill. 2d 244, 247-49 (Ryan, J., specially concurring, joined by Ward and Moran, JJ.).

Except for citing the ethnic origin of the peremptorily challenged venireperson, defense counsel pointed to no circumstances that could support a prima facie case of racially motivated discrimination. Defendant alleges no pattern to the State’s use of peremptory challenges against Hispanic jurors which would show purposeful discrimination. The trial court, not the prosecutor, conducted the voir dire, and defendant does not contend on appeal, nor did he at trial, that the prosecutor’s statements in exercising this peremptory challenge indicated that the challenge was discriminatory.

Moreover, due to the lack of an adequate record, we cannot conclude that the State used a disproportionate number of peremptory challenges by excluding this one Hispanic venireperson from the jury. Furthermore, the level of Hispanic representation in the venire (one) as compared to the jury (none) does not indicate purposeful discrimination by the State. Since there was apparently only one Hispanic venireperson excluded (even that being unsubstantiated), we cannot analyze whether the excluded “group” was a heterogeneous group sharing race as its only common characteristic. Finally, of significance is the fact that there is no allegation that this case involves an interracial crime in which any specific racial groups would be prone to show prejudice.

On review of the record, we do not feel that any circumstances were revealed which would be seen by a reasonable trial judge as raising a prima facie inference of State discrimination. See Garrett, 139 Ill. 2d 189 (on appellate review, after the trial judge failed to make a determination as to whether a prima facie case had been established, the defendant’s allegation that the State exercised five out of six peremptory challenges against black veniremembers, without supplementing this fact with any other relevant circumstances, failed to raise an inference of purposeful discrimination).

Therefore, we find that defendant has not met his burden to prove, through facts and relevant circumstances, that the prosecution’s exercise of this peremptory challenge was racially motivated, as is required by Batson. Consequently, the State was properly never required to provide race-neutral explanations for this challenge, and the defendant was not deprived of his fourteenth amendment right to equal protection.

Defendant’s next assignment of error is that the court improperly refused to disqualify certain jurors for cause, in violation of defendant’s sixth amendment and fourteenth amendment right to an impartial jury. Defendant argues that the responses of venirepersons Esly, Rogers, and Burdick demonstrated their inability to be fair and impartial, as they were prejudiced against the insanity defense, and that, accordingly, the court’s refusal to excuse these potential jurors for cause constituted per se reversible error.

When raising an insanity defense, the defendant has the right to have potential jurors asked whether they have any feelings concerning this particular defense. (People v. Stack (1986), 112 Ill. 2d 301, 313.) In this case, the court properly inquired of the potential jurors as to their feelings concerning the insanity defense. In the case of these three individuals, their responses to questions posed to them indicated that they had some problem with this defense. The relevant portions of the questioning are as follows:

Potential juror Esly was asked:

“Q. *** How about insanity. Do you feel a person could be insane at the time he did—

A. I do have a problem with temporary insanity.

Q. What is your problem?

A. I don’t really believe that. I think people go around committing crimes and they plead temporary insanity — maybe they are and maybe they aren’t.

Q. Could you listen to the evidence and determine from that whether or not he was insane? They have to prove by a preponderance of the evidence that he was insane.

A. I probably could.

Q. Could you listen to that?

A. Yes.

Q. And make your mind up?

A. Yes.

Q. Right now, would you say that if his plea was temporary insanity, without having heard any evidence, would you still — could you give him a not guilty by reason of insanity?

A. Not right now.

Q. I know, but without knowing anything about the case, you’re not going to find him guilty until — or—

A. Right now, I don’t think there is such a thing as temporary insanity as a defense.”

Potential juror Rogers was asked:

“Q. How about the defense of insanity. Do you understand that as a proper defense?

A. I could accept it but I would have a skeptical concern about the authenticity of a mental condition involved in any case.

Q. We have expert testimony. Would you consider the testimony and consider what they have to say on the case?

A. Yes, I think I would.

Q. But you could if you were convinced by the expert or by what any other evidence [sic] to give a not guilty by reason of insanity if you thought that was a proper judgment?

A. Yes, I believe I could.

Q. Will you follow the law given you by the Court at the end of the trial whether or not you agree with it?

A. Would I follow—

Q. I will instruct the jury at the end of the trial as to the law that is applicable to these charges or this charge whichever it might be. Will you follow that law?

A. Yes, I would.

Q. Without hesitancy?

A. No.

Q. Any reason why you believe you could not give both the State and defense a fair trial?

A. None that I could think of.”

Potential juror Burdick was asked:

“Q. What do you think about [sic] insanity defense?

A. John Wayne Hinkley comes to mind.

Q. What?

A. The shooting of Reagan comes to mind and I don’t agree with that.

Q. That’s another incident.

A. I think it’s overused.

Q. Would you be guided by that?

A. I think it’s overused.

Q. What?

A. I think it’s overused.

Q. Well it could be overused. I’m not saying that; but at this point if you just [sic] knowing that the insanity plea has been entered, would you right now, wouldn’t you even listen if there’s any evidence of insanity?

A. I would listen, sure.

Q. Would you consider that evidence.

A. Yes.

Q. Okay whether it came from one side or the other because you see when doctors are put on the stand, they’re subject to cross-examination.

A. Yes.

Q. And you understand that?

A. Yes.

Q. And the knowledge that you would gain might be through cross-examination rather than direct examination. Do you understand that?

A. Yes.

Q. Can you follow that?

A. Sure.”

After the court’s refusal to exclude these three venirepersons for cause, the defense exercised three of its peremptory challenges to dispose of them.

Initially, the State maintains that defendant has waived this issue on appeal since he failed to specifically include these alleged errors in his post-trial motion for a new trial. It is clear that where objections are not presented both during trial and in a post-trial motion, the issue has not been properly preserved for review. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) Here, defendant undoubtedly objected during voir dire as to the court’s determination not to excuse the three venirepersons. Although defendant’s allegation as to this particular error in his motion for a new trial is fairly general, it was sufficient to alert the court as to one of his reasons for requesting a new trial. Therefore, this issue is not waived for purposes of our review.

It is well settled that the party making a challenge for cause must show the existence of a state of mind in the juror that will raise a presumption of partiality. The determination of whether a prospective juror does, or does not, possess the state of mind which will enable him to give an accused a fair and impartial trial rests in the sound discretion of the trial judge. Mere suspicion of bias or partiality in a juror is insufficient to disqualify a juror. Because the trial court is in a superior position to observe the venireperson’s demeanor and evaluate the candor of the responses, the trial court’s determination will not be set aside on review unless it is against the manifest weight of the evidence. People v. Cole (1973), 54 Ill. 2d 401, 413-15; People v. Davis (1983), 95 Ill. 2d 1, 19.

From reviewing the record, it is apparent that each of these potential jurors did have some difficulty with the insanity defense. For example, Esly said that she had a problem with the temporary insanity defense, Rogers said that he was skeptical about the authenticity of a mental condition involved in any case, and Burdick said that he believes the insanity defense has been overused. However, all three of these individuals indicated that they could consider the evidence as presented at trial and then make a determination as to whether defendant was sane.

Here, defendant’s claim is without merit since he failed to demonstrate that these three potential jurors possessed a disqualifying state of mind. An analysis of the record reveals that the responses of these individuals were not such that it could be determined that they could not be impartial. Because the trial judge was in the best position to observe and evaluate their demeanor, his determination that they could give defendant a fair trial should not be set aside. See Davis, 95 Ill. 2d at 19.

In sum, the court’s denial of defendant’s challenge for cause was not against the manifest weight of the evidence where these venirepersons’ responses indicated that they could be fair and impartial. Because defendant could not sustain his burden of demonstrating bias, and could not prove that the court’s denial of defendant’s challenge for cause was an abuse of discretion, we find that he was not denied his right to an impartial jury.

THE TRIAL

Defendant next contends that he was denied due process because the conflicting burdens of proof for the not guilty by reason of insanity verdict and the GBMI verdict resulted in the jury’s finding of guilty, rather than guilty but mentally ill. The instruction given to the jury for the insanity defense stated that defendant had the burden of proving his insanity by a preponderance of the evidence. An instruction was also given to the jury that to find defendant GBMI, it had to be proven beyond a reasonable doubt that defendant was not insane at the time he committed the alleged crimes.

This court has previously recognized, in dictum, that an instruction requiring a defendant to prove his insanity by a preponderance of the evidence creates an anomaly when combined with the GBMI instruction that the defendant’s sanity must be proven beyond a reasonable doubt. (People v. Fierer (1988), 124 Ill. 2d 176.)

“Under the current statutes, the State continues to bear the burden of proving sanity beyond a reasonable doubt for purposes of a GBMI verdict. (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4(j).) At the same time, the defendant bears the burden of establishing insanity by a preponderance of the evidence for purposes of a not guilty by reason of insanity verdict. Under this scheme, a theoretical class of defendants exists who cannot be found insane and thus [cannot be found] not guilty by reason of insanity, because they have not carried their preponderance burden, but who also may not be found GBMI because their noninsanity has not been proved by the State beyond a reasonable doubt. In other words, defendants whose sanity is a close question, the very group one would think should be covered by the GBMI verdict, may not be found GBMI because they fall into the gap between ‘preponderance’ and ‘beyond a reasonable doubt.’ ” Fierer, 124 Ill. 2d at 189.

Defendant submits that because the evidence concerning insanity in this case is very close, we have one of those instances described in Fierer, where the defendant cannot be found GBMI. Defendant contends that had he been found GBMI, it is quite likely that he would not have been sentenced to death, since a jury is not likely to sentence a mentally ill individual to death.

The State initially maintains that defendant has waived this argument for purposes of appeal since he failed to object to the language of the instruction submitted by the State or to offer an alternative instruction. (People v. Roberts (1979), 75 Ill. 2d 1.) Further, it asserts that the defendant’s failure to raise the alleged error in his post-trial motion waives this issue on appeal. Enoch, 122 Ill. 2d at 186.

Defendant, admitting that he may have procedurally waived this issue, nevertheless contends that these jury instructions undermined the fairness of the trial court proceedings and, therefore, this issue should be considered. As previously stated by this court, “substantial defects are not waived by failure to make timely objections thereto if the interests of justice require.” (People v. Ogunsola (1981), 87 Ill. 2d 216, 222; 134 Ill. 2d R. 451(c).) Fundamental fairness includes, among other things, seeing to it that “ ‘[cjertain basic instructions, essential to a fair determination of the case by the jury (e.g., burden of proof, elements of offense charged), must be given, and the concept of waiver will not be employed to bar reversal if a defendant has been convicted in the absence of these instructions.’ ” Roberts, 75 Ill. 2d at 13, quoting ABA Standards, Trial By Jury, Commentary, at 116 (1968).

In Fierer, this court held that it would consider the jury instruction issue on appeal despite the defendant’s apparent waiver, since the instruction clearly misstated the burden of proof required to find the defendant guilty but mentally ill (the judge instructed the jury as to the “preponderance of the evidence” standard instead of the “beyond a reasonable doubt” standard), thereby making it easier for the defendant to be found GBMI. In the case at bar, the instructions on the issues of GBMI and insanity mirrored the elements and the burdens of proof contained in the respective statutes.

We find that the fairness of this court proceeding was not so undermined by the giving of these instructions as to avoid the general rule of waiver. Therefore, defendant, by not objecting at trial and by not including the alleged error in his post-trial motion, has waived this argument on appeal. As a result, we do not reach defendant’s constitutional question.

Defendant next claims error in the GBMI jury instruction because it failed to inform the jury that the State bears the burden of proving the elements for a GBMI verdict. Again, the State maintains that defendant has waived this argument by failing to object to the instruction when given at trial and not alleging such error in his motion for a new trial.

The following excerpt is that portion of the jury instructions dealing with the not guilty by reason of insanity verdict and the GBMI verdict:

“If you find from your consideration of all the evidence that the defendant has proved by a preponderance of the evidence that he is not guilty by reason of insanity of murder of Richard Clark, you should find him not guilty by reason of insanity of murder of Richard Clark, your deliberations on this charge should end, and you should return the verdict of not guilty by reason of insanity on the charge of murder of Richard Clark.

If you find from your consideration of all the evidence that the defendant has not proved by a preponderance of the evidence that he is not guilty by reason of insanity of murder of Richard Clark, then you should continue your deliberations on this charge to determine whether the defendant is guilty but mentally ill of murder of Richard Clark.

A special verdict of guilty but mentally ill shall be returned by you instead of a general verdict of guilty if you find each of the following propositions to be present in this case:

First: That the defendant is guilty of murder of Richard Clark; and

Second: That the defendant was not legally insane at the time he committed murder of Richard Clark: and

Third: That the defendánt was mentally ill at the time he committed murder of Richard Clark.

If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should return the special verdict finding the defendant guilty but mentally ill on the charge of murder of Richard Clark.

If you find from your consideration of all the evidence that either the Second or Third propositions concerning the guilty but mentally ill verdict has not been proved beyond a reasonable doubt, you should return the general verdict finding the defendant guilty of murder of Richard Clark.”

The same instruction was given regarding the murder of Shearer.

Defendant claims that these instructions were “given over objection.” Upon review, however, we found that the objection by defense counsel did not call this alleged error to the court’s attention, but merely stated that he was unhappy with the manner in which the instructions were printed through the State’s computer. According to Supreme Court Rule 451(b), objections to proposed instructions must be “particularly specified” to enable the court to take action (134 Ill. 2d R. 451(b)). Thus, defendant’s objection was clearly insufficient to constitute a proper objection, and coupled with defendant’s omission of this alleged error in his post-trial motion, the issue is thereby waived. Enoch, 122 Ill. 2d 176.

Defendant submits that if this court finds that he has waived this argument, we should still consider this issue under the plain error exception to the waiver rule. Consequently, it is necessary to determine whether the alleged defect in the instruction is a substantial one, rising to the level of plain error. Here, the court did not explicitly inform the jurors as to which party carried the burden of proof with regard to the elements of the GBMI verdict. Thus, some confusion may have been created by this instruction. However, before a reviewing court can decide whether an error has occurred in the giving of certain instructions, the jury instructions from the entire trial must be read as a whole. See People v. Fields (1988), 170 Ill. App. 3d 1, 11.

In this case, it is doubtful that the jury did not understand the GBMI instruction, which as its name expresses is a verdict of guilty, requiring the State to prove that the defendant was not insane but was mentally ill. Here, the jury was informed that the defendant is presumed innocent, that this presumption remains until the jury is convinced beyond a reasonable doubt that defendant is guilty, that the State has the burden of proving the defendant’s guilt beyond a reasonable doubt, and that this burden remains on the State throughout the case.

As a result, the failure of the trial court to specifically acknowledge that the State was the party carrying the burden of proof in the GBMI instruction, in light of the jury instructions as a whole, was not so substantial a defect as to avoid the normal waiver rule that a reviewing court will not review an issue not raised at trial. Consequently, we find that defendant was not denied due process as a result of these instructions.

Defendant next argues that his sixth amendment and fourteenth amendment right to confront adverse witnesses was violated by the State. Dr. Gaspero testified for the defense and Dr. Cavanaugh testified for the State. During the cross-examination of Gaspero and the direct examination of Cavanaugh, the State repeatedly brought out the psychiatric opinions of Doctors Reifman, Waldman, and Wassalau, none of whom testified at trial.

Defendant points to various passages in the record where the prosecutors, during examination of the expert witnesses, referred to the nontestifying experts’ findings, including their data, observations, and conclusions. They further elicited this information through the testifying experts’ responses. Defendant contends that because of this, it became apparent to the jury that there were three other experts who came to the conclusion that defendant was sane at the time of the charged crimes. Since defendant’s only defense in this case was that of insanity, the fact that the jury was under the impression that four experts found defendant sane, while only one found him insane, may have caused it to disregard the credibility of Gaspero’s conclusions on sheer weight of opinion alone. Defendant concedes that admission of facts and data contained in the nontestifying experts’ reports were properly admissible, but maintains that their conclusions and opinions were inadmissible as highly prejudicial hearsay.

In the case of Wilson v. Clark (1981), 84 Ill. 2d 186, this court adopted the standard contained in Federal Rules of Evidence 703 and 705 for the use of expert opinion testimony at trial. It is now clear that an expert can give his opinion based upon facts that are not in evidence if those facts are of a type reasonably relied upon by experts in the particular field. (Fed. R. Evid. 703.) In this case, the experts relied upon reports of other doctors who had analyzed defendant’s mental fitness. The psychiatric profession relies heavily upon a patient’s psychiatric history in making a diagnosis. (People v. Anderson (1986), 113 Ill. 2d 1, 7-8.) Thus, there can be no question that the reports of the other doctors relied upon by the State are of a type customarily utilized by the medical profession.

Initially, we must determine to what extent evidence resulting from the nontestifying experts’ examinations of defendant was admissible. Secondly, we must determine in what manner it could have been admitted.

In People v. Ward (1975), 61 Ill. 2d 559, this court, relying on Federal Rule of Evidence 703, held that expert medical opinion on the question of sanity, based in part on records compiled by others which had not been admitted into evidence, was permissible if the reports “are of a type customarily utilized by the medical profession.” (Ward, 61 Ill. 2d at 568.) Through the development of the law in this area, it now appears to be well settled that experts may consider not only medical and psychological records commonly relied upon by members of their profession in forming their opinions (Ward, 61 Ill. 2d 559), but they may testify as to the contents of these records as well (Henry v. Brenner (1985), 138 Ill. App. 3d 609; Kinsey v. Kolber (1982), 103 Ill. App. 3d 933; In re Germich (1981), 103 Ill. App. 3d 626; People v. Rhoads (1979), 73 Ill. App. 3d 288). Case law supports the proposition that an expert can testify as to nontestifying experts’ findings and conclusions. Likewise, it is logical that the attorney may also refer to this source in posing his questions, as long as he is not attempting to elicit inadmissible hearsay. See Bobb v. Modern Products, Inc. (5th Cir. 1981), 648 F.2d 1051.

While the contents of reports relied upon by experts would clearly be inadmissible as hearsay if offered for the truth of the matter asserted, an expert may disclose the underlying facts and conclusions for the limited purpose of explaining the basis for his opinion. (Anderson, 113 Ill. 2d at 12.) By allowing an expert to reveal the information for this purpose alone, it will undoubtedly aid the jury in assessing the value of his opinion.

Scattered throughout the examination of both expert witnesses, and to some extent in the State’s closing argument, there was reference made to these nontestifying experts’ findings and conclusions. Based upon our reading of the record, we find that the references were in fact made to either support or discredit Dr. Gaspero’s or Dr. Cavanaugh’s testimony. At no point does the prosecutor dwell on the other experts’ conclusions. Dr. Cavanaugh’s testimony did not establish the truth of the facts and conclusions contained in the various reports and did not convert that information into substantive evidence, but only demonstrated that he compiled all available medical history on defendant before making his determinations. Further, it is clear from the judge’s manner of controlling the introduction of this evidence that his intention was to allow such evidence only for this purpose, and not to prove the truth of the nontestifying experts’ findings and conclusions.

We agree with defendant that, to a certain extent, the jury may have been confused as to how this evidence was being introduced. Providing limiting instructions during the trial would have been a preferable way to control the admission of this critical information. However, in the absence of such instructions, since we have determined that the judge’s intention, manifested to the jury through his rulings during the trial, was to not allow this evidence substantively, we will not disturb the court’s decision. We believe that the judge did not abuse the discretion granted him, and therefore find that defendant’s sixth amendment and fourteenth amendment right to confront adverse witnesses was not violated here.

Closely related to the preceding issue is defendant’s next alleged error, that the State improperly impeached defendant’s expert witness, Dr. Gaspero, with psychological reports upon which he had not based his conclusion. Dr. Gaspero examined defendant to determine his criminal responsibility for the killings of Shearer and Clark. He testified that defendant was legally insane at the time of the killings. A lengthy cross-examination ensued, during which the State asked Dr. Gaspero whether he had heard of Dr. Cavanaugh, and whether he knew that Dr. Cavanaugh had found defendant to be sane. Dr. Gaspero replied that although he was aware that Dr. Cavanaugh had evaluated defendant, he was not familiar with Dr. Cavanaugh’s results and, in fact, had not even seen his reports. Dr. Gaspero was similarly questioned regarding Dr. Waldman’s and Dr. Wassalau’s evaluations of defendant. He responded that he did not review either of their reports. Since the State cross-examined Dr. Gaspero regarding the reports generated by Doctors Cavanaugh, Wassalau, and Waldman, even though Dr. Gaspero indicated that he had not relied on them, defendant asserts that his conviction should be reversed.

As previously mentioned, under Federal Rule of Evidence 705, as adopted in Illinois, an expert may give an opinion without disclosing the facts underlying that opinion. This places the burden on the adverse party to elicit the facts underlying the expert’s opinion. (Wilson, 84 Ill. 2d at 194.) Clearly, if an expert admits relying upon a report, that party may be impeached with the contents of that report. (People v. Silagy (1984), 101 Ill. 2d 147, 171-72.) What we must determine here is to what extent an expert may be questioned regarding the reports and conclusions of other experts which he did not rely upon in coming to his conclusions.

The defendant points to Martin v. Zucker (1985), 133 Ill. App. 3d 982, and Bobb v. Modern Products, Inc., 648 F.2d at 1055-56, as support for the proposition that if an expert did not rely upon a certain report in reaching his conclusion, then he may not be cross-examined concerning the contents of that report. However, those cases are distinguishable from the present one since those courts had different reasons for not allowing the introduction of the evidence. In Martin, plaintiff had sought to read verbatim to the jury certain contents of his medical records. This evidence was barred for a combination of reasons, only one of which was that the testifying doctor did not rely upon it in his testimony, the most important reason being that no foundation could be established for this evidence. In Bobb, the evidence was barred since the questioning attorney was clearly trying to “impeach by slipping hearsay evidence into the trial *** where [he] had previously succeeded in keeping out closely related evidence.” Bobb, 648 F.2d at 1055.

“On cross-examination, counsel may probe the witness’s qualifications, experience and sincerity, weaknesses in his basis, the sufficiency of his assumptions, and the soundness of his opinion.” (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §705.2, at 553 (5th ed. 1990).) An expert may also be cross-examined with respect to material reviewed by the expert but upon which he did not rely. (Piano v. Davison (1987), 157 Ill. App. 3d 649, 671-72.) “Counsel is also permitted to test the knowledge and fairness of the expert by inquiring into what changes of conditions would affect her opinion [citation], and in conducting such an inquiry, *** the cross-examiner is not limited to facts finding support in the record.” (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §705.2, at 555 (5th ed. 1990).) Likewise, an expert may be cross-examined for the purpose of explaining, modifying, or discrediting his testimony, as well as to ascertain what factors were taken into account and what ones disregarded in arriving at his conclusions. See People v. Fields (1988), 170 Ill. App. 3d 1, 14.

A thorough review of the record in this case reveals that the prosecutor’s cross-examination of Dr. Gaspero as to the other experts’ findings was isolated and sporadic. In our view, the data and conclusions drawn from the other experts’ reports through the prosecutor’s inquiries were not introduced substantively. At no time did the State try to establish that the other doctors declared defendant to be sane. Instead, the inquiries were utilized to determine if Dr. Gaspero had referred to them in making his determination. Also, he was posed hypothetical questions to determine what effect certain conclusions, if found to be correct, would have on his own conclusion.

The court allowed the State to attack Dr. Gaspero’s credibility and the basis of his opinion by asking him whether other experts’ data and conclusions would alter his opinion concerning defendant’s sanity. It does not matter that Dr. Gaspero did not rely on the other experts’ data and conclusions pertaining to defendant. What does matter is that the jury was allowed to properly evaluate his opinion. Because the prosecutor can elicit on cross-examination what factors an expert considered and what factors he disregarded, or simply did not utilize, the cross-examination here was proper.

The basis of Dr. Gaspero’s opinion was a critical factor in the jury’s assessment of defendant’s sanity, and the State could support its theory of defendant’s sanity by attacking the defense expert’s thoroughness in formulating his opinion. The facts elicited from Dr. Gaspero indicate that his evaluation of defendant may have been based on a somewhat incomplete investigation into defendant’s psychiatric and medical history. Thus, the jury was given the factors which Dr. Gaspero took into account, along with the ones he disregarded, in arriving at his conclusion that defendant was insane at the time of the alleged crimes. This information was then used by it to assess the weight to be given to Dr. Gaspero’s testimony.

It is well settled that the scope of cross-examination is largely within the discretion of the trial court and that its rulings will not be overturned unless an abuse of that discretion results in manifest prejudice to the defendant. (People v. Wright (1985), 111 Ill. 2d 128, 149; People v. Evans (1988), 173 Ill. App. 3d 186, 203.) In our opinion, the judge did not abuse his discretion in determining the scope of the State’s cross-examination. The prosecutor properly used absent experts’ conclusions for the limited purpose of impeaching the witness; therefore, defendant’s constitutional right to confront adverse witnesses was not violated.

Defendant’s next contention is that his due process rights were violated when he was forced to turn over tape recordings of his interviews with the defense psychologist to the State, whereas he was not allowed to tape-record his interviews with the State’s psychiatrist. Nevertheless, the State was required to turn over to the defense all notes from its expert’s interviews with defendant.

Defendant asserts that his rights were violated by this discovery inequality, since this likely affected the outcome of the trial. He alleges that since the State had tape recordings of defendant’s interviews with Dr. Gaspero, it was much better prepared for cross-examination than the defense was, which had only notes from Dr. Cavanaugh’s examination. Therefore, defendant argues, since the trial court erred by not balancing the right to discovery between the defense and the prosecution, as it is required to do by virtue of Wardius v. Oregon (1973), 412 U.S. 470, 37 L. Ed. 2d 82, 93 S. Ct. 2208, the conviction should be overturned.

Defendant has misinterpreted the holding of Wardius to require identical terms for discovery by both parties to the litigation. This is certainly not what the Court intended. It held only that discovery is a two-way street; that it is unfair to require a defendant to divulge information, while at the same time to allow the State secrecy for its own witnesses. (Wardius, 412 U.S. at 475-76, 37 L. Ed. 2d at 88, 93 S. Ct. at 2212-13.) By no means did the Court require discovery to be perfectly symmetrical.

Under Illinois Supreme Court Rule 413(c), the State must be informed of, and permitted to inspect and copy, any reports or results, or testimony relative thereto, of physical or mental examinations, or any other reports or statements of experts which defense counsel has in his possession or control (134 Ill. 2d R. 413(c)). This includes psychiatric evaluations performed on defendants who raise the defense of insanity. See People v. Childers (1981), 94 Ill. App. 3d 104.

Here, Dr. Gaspero’s “reports and results” of interviews of defendant were subject to disclosure under Rule 413(c). Because defense counsel informed the State that there were no notes made during such interviews, but that tape recordings of the conversations were available, defendant was ordered to tender such tapes. Furthermore, the court ordered that these tapes be used only for the purpose of cross-examining Dr. Gaspero as to defendant’s mental state, and that at no time should they be used for the purpose of substantively introducing defendant’s statements, or as an admission of his guilt.

As defendant is required under Rule 413(c) to make various disclosures to the State, so is the State required to similarly disclose reports or results of physical or mental examinations under Supreme Court Rule 412(a)(iv) (134 Ill. 2d R. 412(a)(iv)). The State’s expert, Dr. Cavanaugh, was ordered to submit his “reports and results” to defendant, in conformity with this rule. The Supreme Court in Wardius pointed out that “the ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their case[ ] and thereby reduce[ ] the possibility of surprise at trial.” (Wardius, 412 U.S. at 473, 37 L. Ed. 2d at 87, 93 S. Ct. at 2211.) The trial court, by virtue of its orders, complied with this goal.

Dr. Gaspero chose not to take notes during his sessions with defendant, but rather chose to conduct such interviews with the use of a tape recorder. It is irrelevant why he chose to do so, but the fact is that he made this tactical decision to tape-record the sessions, and once he did, the tape recordings became subject to disclosure under Rule 413(c) because they were the only memorialization of the interviews. In contrast, Dr. Cavanaugh did not conduct his sessions with the use of a tape recorder or any audio device and specifically informed the trial court of his “strong professional opinion that psychiatric interviews with the defendant should not be audio-taped.” (Emphasis added.) He did, however, take extensive notes during his interviews with defendant and these notes were properly tendered to defendant in accordance with Rule 412(a)(iv).

There is absolutely no law which states that a psychiatrist must tape-record his interviews, even where the expert for the opposing party has done so. Accordingly, defendant’s claim that he was denied due process because of this inequality is without merit.

Defendant’s next argument is that he was denied a fair trial due to certain allegedly inflammatory and improper remarks made by the prosecutor during his opening statement and closing argument. Defendant, in his brief, recounts 24 separate remarks that he believes are, either individually or cumulatively, sufficient to overturn the court’s verdict.

Among the allegedly prejudicial comments made during the opening statement were those to the effect: that the jury should have been thinking about punishment; that defendant was a “coward”; and that the prosecutor misstated the burden of proof in reference to the insanity defense. During his closing argument and rebuttal, the prosecutor allegedly erred by: improperly commenting on defendant’s demeanor; using manipulative language to grossly misstate the purpose of the trial; implying that a defense is an avoidance of responsibility; inaccurately stating what is required to prove the insanity defense; implying that very few people are able to meet the requirements for an insanity defense; drawing conclusions unsupported by the evidence; making reference to defendant’s conduct at counsel table; referring to defendant’s defense as “temporary” insanity; expressing his opinion on the credibility of defendant’s defense; and projecting a threatening image of defendant to the jury.

Many of the remarks complained of were not objected to at trial and were not included in defendant’s post-trial motion for a new trial. Absent plain error, these remarks will not be considered as being properly before this court for review. (Enoch, 122 Ill. 2d at 186.) We find that none of the unpreserved remarks amount to plain error, under Supreme Court Rule 615 (134 Ill. 2d R. 615), and thus, we will analyze only those remarks which were properly preserved in the record.

Every defendant has the right to a trial free from improper prejudicial comments or arguments by the prosecutor. Whether a prosecutor’s comments or arguments constitute prejudicial error is evaluated according to the language used, its relation to the evidence, and the effect of the argument on the defendant’s right to a fair and impartial trial. People v. Bivens (1987), 163 Ill. App. 3d 472, 482.

On the other hand, the prosecutor is allowed a great deal of latitude in making his opening statement and closing argument. (People v. Hampton (1979), 78 Ill. App. 3d 238, 243; People v. Morrison (1985), 137 Ill. App. 3d 171, 184.) He has a right to comment on the evidence and draw all legitimate inferences deducible therefrom, even if they are unfavorable to the defendant. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 322.) Because the trial court is in a better position than a reviewing court to determine the prejudicial effect of any remarks made, the regulation of the substance and style of the opening statement or closing argument is within the trial court’s discretion. (People v. Smothers (1973), 55 Ill. 2d 172, 176.) Although the prosecutor’s remarks may sometimes exceed the bounds of proper comment, the verdict must not be disturbed unless it can be said that the remarks resulted in substantial prejudice to the accused, such that absent those remarks the verdict would have been different. (People v. Morgan (1986), 112 Ill. 2d 111, 132; People v. Sheridan (1978), 57 Ill. App. 3d 765, 772.) The trial court’s determination of the propriety of the remarks made will not be disturbed absent a clear abuse of discretion. Smothers, 55 Ill. 2d at 176.

Applying these legal principles to the allegedly improper remarks