*1 (No. 63322. ex rel. RICHARD M.
THE DALEY, PEOPLE Petitioner, STRAYHORN, v. EARL E. Attorney, al., et Judge, Respondents.
Opinion March 1988. filed *2 CLARK, J., concurring. specially Attorney, Chicago M. Daley,
Richard Gainer, Jr., Heath, Assistant Timothy V. W. (Thomas for counsel), People. State’s Attorneys, Hon. Chicago, respondent for Richard S. Kling, Earl E. Strayhorn. Defender, Chicago (James Public Doherty,
James J. Defender, counsel), Assistant Public Perlman, N. Manuel Zarco. respondent opinion MILLER
JUSTICE delivered court: *3 the cir judge
The Earl Strayhorn, respondent, defendant, the County, court of Cook sentenced cuit to Zarco, proceeding, also a this respondent Manuel Although for murder. 40 years’ imprisonment of de convicted second had been previously defendant for a different slaying, in Rhode Island gree murder request the prosecutor’s refused respondent offense on the current hearing to hold (Ill. 1961 of Code section 9—1 of Criminal also The trial 1985, 38, 1). par. ch. Rev. 9— impris to natural-life the defendant to refused sentence Code Unified of the section 5—8—1 onment to pursuant 38, 1005— 1985, par. ch. Rev. Stat. (Ill. of Corrections for leave motion the State’s granted This court 1). to our pursuant of mandamus and prohibition file a writ 381). R. Ill. 2d (107 Rule 31,
On defendant, Manuel August Zarco, stabbed and killed Ernesto Cabrera The Chicago. where, defendant then went to Rhode Island on January he murdered Clarence Robertson. After turning himself in police, defendant was found guilty degree second a Rhode Island trial by court 2, 1982, for the January Rhode Island court slaying. sentenced defendant to 40 years’ imprisonment, but suspended 13 of the term. The years defendant was then extradited Illinois.
Following a bench trial in the circuit court Cook on County 25, 1986, February respondent Judge Stray- horn found the defendant of the 1980 murder guilty un der section 9—1 of the Criminal Code Stat. 1985, 1). The statute was subse amended quently Public Act effective July 1, 1987. At the beginning of the sentencing 20, 1986, March the public defender tendered to the court a motion to preclude the imposition the death prosecutor explained to the court that he seeking because the defendant had also been convicted of murder in Rhode Island for a separate offense. The defender public that the responded Rhode Island statutory definition of murder significantly differed from that in Illinois’ statutes and that was, therefore, not for the eligible death pen alty. Without either side having to ad opportunity significance dress the sequence the murder con victions, the trial judge denied the State’s for a request death penalty hearing, stating because of the order of the defendants’ murder convictions, he believed the defendant was ineligible be sentenced to death under *4 Illinois’ death (Ill. statute penalty Rev. Stat. 1985, ch. 38, par. 1). The trial judge explained that the Illinois murder preceded the Rhode Island murder and convic tion, and the had defendant been tried first for the lili- not have murder, eligible
nois the would been defendant 1985, (See 38, Rev. Stat. ch. for the death Ill. penalty. other statu considering Without whether 1(b)(3).) par. 9— 38, Ill. Rev. Stat. ch. (see factors tory aggravating for eligible to render the defendant existed par. 1(b)) the matter a calling the death and without penalty, (see the request at the hearing 2d 531), Ill. ex rel. Cousins Carey stages sentencing proceeding the the distinguishing the trial ch. par. 1(d)), Ill. Rev. Stat. (see and defense to proceed ordered the judge prosecution for a sentence mitigation aggravation did not object the The State other than for a death on its request the court’s ruling sentencing hearing. with the but hearing, proceeded to discuss a Rhode Island detective permitting After murder, trial judge of the Island the certain facts Rhode effec attorney’s objections, the defendant’s sustained testimony. prosecution further tively curtailing any defend copy then into evidence certified offered conviction, which the Island murder ant’s Rhode ar hearing, prosecution admitted. At the close of the Unified Code 1(a)(1)(c) that section gued 5—8— 1005—8— Corrections to sentence the defendant to the court 1(a)(1)(c))required conviction the Illinois life because imprisonment, Following second murder conviction. defendant’s factors, concerning mitigating remarks defender’s public im years’ to 40 sentenced prisonment. sentencing after 21, 1986, day
On March Stray- Judge before again appeared parties motion reconsider to the State’s horn, pursuant Illinois that both argued State sentence imposed. convicted provide person case law and statutes natural- of either receive sentence two murders must
475 life or trial death. The found the imprisonment judge statutes and cases cited the State by be- inapplicable, cause the defendant not subjected could have been mandatory life Illinois had he been tried imprisonment for the Illinois murder he went to before Rhode Island. The stated that the judge circumstances pre- sented, Illinois did not require law life mandatory impris- did, it onment; found, if the the judge statute was un- constitutional trampling by legislature of the prerogative The then judiciary. judge opined that of whether regardless section mandated 1(a)(1)(c) 5—8— life he imprisonment, found mitigating that Rhode Island murder conviction after the occurred Illinois mur- der, but before conviction Illinois. The judge trial declared that he would not sentence the defendant either to death life and imprisonment, de- nied the State’s motion to reconsider the original sen- tence. the State filed Subsequently, the present action mandamus prohibition, or for a supervisory or- der to compel Judge Strayhorn to vacate his orders of March 21, 1986, 20 and sentencing defendant 40 years’ imprisonment and the State’s motion to denying reconsider. In the alternative, the State seeks an order requiring Judge Strayhorn clarify whether the Illinois sentence is with, to be served concurrent or consecutive to, the Rhode Island sentence.
The State first submits that section 1(d) Criminal Code 1961 1(d)) imposes a nondiscretionary duty upon trial following a murder
judges, conviction, to hold a death penalty hearing once the prosecution has requested the death State contends that although the as sistant State’s Attorney informed the trial in the judge present cause that the State sought the death penalty, judge failed to hold as penalty hearing re quired by section 1(d). held a contends that for a death remanding and that
death penalty hearing the Federal jeop- would violate double penalty Rumsey (1984), on Arizona Relying clause. ardy Bul- 164, 104 Ct. 203, 81 L. Ed. 2d S. U.S. 430, 68 L. Ed. 2d v. Missouri 451 U.S. lington he argues the defendant S. Ct. and that by acquitted are barred proceedings further death any *6 clause. double jeopardy in a sen- Bullington, separate
In a determined jury life that the defendant should receive tencing hearing sentence, the death the only rather than imprisonment the defendant could have received other sentence that The Court held the double Missouri law. Supreme hearing once jury bars a death jeopardy penalty clause in a of death penalty the defendant acquitted has Rumsey, In trial sentencing hearing. trial-type similar to a sentencing proceeding a capital conducted specifi- law. The trial judge with Arizona accord that no hearing, aggra- found, after the cally completed defendant, to the factors applied vating mitigating for the death ineligible and held the defendant therefore death sen- penalty The Court held that second once defendant is acquitted is barred tencing hearing sentenc- completed trial-type after a penalty found sentencing judge even ing hearing though due an erro- the death ineligible penalty defendant statute. the death penalty neous interpretation Rumsey verdicts viewed the defendants’ Court sentencing as because and Bullington “acquittals” indeed, and, of those cases “resembled hearings in both immediately preced- like the was respects all relevant (Bullington, or innocence.” the issue of guilt trial on ing at 2d 101 S. Ct. 438, 68 L. Ed. at at 451 U.S. on the principle Rumsey rest Bullington and Both
477 State, that once a with all its resources and has power, received fair it “one to offer whatever opportunity proof assemble,” could at a trial-type it double clause from jeopardy prohibits placing of death
death-acquitted jeopardy again. Bullington, at L. U.S. Ed. 2d at 101 S. Ct. at 1862.
This has court Illinois previously recognized capital sentencing procedures share the char “many acteristics that the Supreme Court has found significant in applying of double to those principles sen jeopardy v. Davis tencing determinations.” (People 112 Ill. 2d 81-82.) cause, however, facts the present differ substantially from those in Bullington and present Rumsey. In cases, both of those the sentencer rejected the death after at full which evidence hearings testimony presented, no aggra statutory factors vating ruled, were found. The Court Supreme therefore, the double clause jeopardy prohibits States from sentencing defendants to death at new sen tencing proceedings retrial after following reversals the original convictions. Rumsey, 209-10, 467 U.S. at *7 L. Ed. at 170-71,104 2d Ct. S. at 2309.
The interests which the double clause seeks jeopardy are protect implicated not unless a defendant is in put v. jeopardy. (Serfass United States 377, 420 U.S. (1975), 43 L. v. Shields 265, Ed. 2d 95 1055; S. Ct. 76 2d (1979), Ill. In 543.) trials, at nonjury jeopardy taches when the first witness is sworn and the court be v. gins to hear evidence. (People Shields 2d (1979), 76 Ill. v. United States 546-47; 543, 420 (1975), U.S. Serfass 377, 43 265, L. Ed. 2d 95 S. Ct. The defendant “ must ‘put be to trial facts, before the trier of whether ” the trier be a or a jury judge.’ 420 U.S. (1975), Serfass 388, at 43 L. Ed. 274, 1062, 2d at S. Ct. at quoting 470,
United States Jorn 479, 400 U.S. L. 543, 553, 547, 554. Ed. 2d 91 S. Ct.
Bullington and Rumsey are to the inapplicable in cause the was never present because placed action, In did not the jeopardy. present the hold a accord with capital sentencing proceeding death 1(d). pen of section Our State’s requirements 9— sentencing alty hearing. statute bifurcated provides seeks the The statute that when State provides “the sen separate court shall conduct a penalty, any ag to determine whether of tencing proceeding” (Ill. out in exist. 9--1(b) factors set section gravating 38, this 1985, Rev. At par. 1(d).) phase Stat. ch. 9— has the ex the State the burden proving listed in be (b) istence of the factors subsection any 38, 1985, Rev. ch. (Ill. par. a reasonable doubt Stat. yond of the fac any information relevant to 1(f)) “any be ei (b) tors set forth may presented subsection under the rules govern ther the State or the defendant (Ill. at criminal trials” the admission of evidence ing 1985, If court or jury Rev. ch. par. 1(e)). Stat. (b) ex finds that of the factors subsection one more second ist, stage the court or moves jury and considers any aggravating bifurcated are relevant imposition factors which mitigating ch. finds that hand, the court or If, jury on the other 1(c).) exist, (b) none the factors found subsection to a term of impris the defendant court “shall sentence of Corrections.” onment under V of the Unified Code Chapter 1(g), (h). Il l. Rev. Stat. pars. 9— before the brought After the Zarco was respondent ten- 20, 1986, attorney the defendant’s court on March pre- motion to motion and dered to court a post-trial stat- Without clude the of the death penalty. imposition was to sentencing hearing that a death ing *8 if proceed, judge asked defendant’s attorney she wished state on the record. briefly She anything court, addressed the after the trial judge which denied stated, the motion for a new trial are also “[Y]ou asking for the of the death imposition penalty?” After the State’s stated, “[Y]es,” the asked Attorney judge him, The State’s that he “[W]hy?” replied was Attorney the death seeking based second upon conviction. Both the and defense prosecutor attorney then discussed the Rhode briefly Island murder and the defense attorney by stating, concluded “I submit for those reasons this not a death case. Mr. Zarco should not have to go through a death proceeding this with morning only here, regular sentencing [sic] Judge.” The State’s then Attorney stated that he felt the defendant was death eligible then stated:
“I going am to deny your petition to impose penalty on basis the murder committed here in this jurisdiction preceded the he murder that was convicted in Rhode Island.”
Our review the record reveals that in the present cause, the trial failed hold the first requested of the phase bifurcated statutory capital sentencing hear Instead, ing. at issue more re proceedings closely semble often preliminary proceedings heard on motions before trials, which do not (See constitute Peo jeopardy. ple Shields 2d Ill. trial judge was acting response to defendant’s motion preclude of the imposition and the prosecutor responding that motion. Although the State had the burden of establishing, doubt, beyond reasonable factor, the existence of an aggravating State was from precluded a certified introducing copy defendant’s Rhode conviction, Island murder presenting testimony a Rhode police Island detective concern- *9 the arguing and murder conviction the defendant’s
ing to the convictions due the to sequence law applicable to permitted The State was ruling. abrupt trial judge’s tes- the detective’s the conviction and present introduce to grant had decided trial judge after the only timony sentencing a capital to preclude the defendant’s request was in this situation is clear that the State It hearing. to offer whatever fair “one opportunity not provided hear- sentencing full-scale assemble” at a it could proof at L. Ed. 2d at 451 U.S. ing. (Bullington, the first that we believe at Because 101 S. Ct. never was sentencing hearing a penalty death phase hearing sentencing conducted, capital find that we double by jeopardy. not barred the sequence that stating after
Immediately the death precluded and convictions defendant’s offenses to the parties proceed instructed the trial judge penalty, of sentence. mitigation and hearing aggravation to a to to the court’s refusal State, without objecting The trial to the acceded hearing, sentencing hold a capital in aggravation. witness called its and direction judge’s mo- to the State’s however, following day, pursuant The the prosecution imposed, the sentence tion to reconsider The the trial judge. before appeared and defense again eligible the that alleged motion to conduct the court requested for the death penalty, the judge hearing, After a brief hearing. a death penalty motion. the State’s denied waived that the State contend now respondents object failing hearing by right
any conducting capital first without the trial judge, when to a to proceed the parties directed sentencing sentence; the mitigation aggravation on hearing issue this State waived the also argue respondents request- without hearing sentencing engaging a continuance in which to seek ing mandamus other relief.
The State did not waive its right death sentence. the State raised the issue of a Clearly, in the trial rec- capital sentencing court: the proceeding ord shows that prosecutor advised at the outset of the hearing that State sentencing would be ar- seeking death penalty. prosecutor gued before the beginning sentencing hearing the death statute because of the applied defend- ant’s two murder convictions. After the State had made known its intention to request penalty, defense argued that death penalty *10 inapplicable because the dissimilarity between the Illinois and Rhode Island statutes. trial ruled judge against the State and in favor defendant, of the denying the State a death penalty grounds not ad- vanced either the State or by the defense.
The State did not waive its to a right death sentenc ing hearing by proceeding without further objection to the noncapital hearing on aggravation mitigation. The State had a death requested penalty hearing and the State, as defendant, well as the had presented to the trial its views on the judge applicability the death sen tence. Further objection before proceeding with the sen tencing hearing would have served no purpose. Peo (Cf. ple v. Holloway 86 Ill. 2d (1981), 78, 91-92.) Similarly, the State did not waive the issue to im by failing seek a mediately continuance to for petition mandamus or other relief. One of the purposes waiver rule to encourage all parties present issues at a single so as to avoid piecemeal litigation. (People v. McAdrian 52 Ill. 253-54.) 2d an Requiring interlocutory petition for relief would contradict this principle by pro moting, rather than avoiding, litigation. We piecemeal the trial in sufficiently preserved
find that the State hearing. its to capital sentencing court right that the doctrine maintain respondents equitable now requesting of laches the State from precludes wait- by death sentence hearing. Respondents argue the defendant until after the trial sentenced ing term, rather than natural-life imprisonment years’ relief from seeking delayed State unreasonably hearing. of a denial judge’s recovery an which bars equitable principle Laches is bringing litigant delay whose unreasonable of the other party. for relief the rights action prejudices Here, the 81 Ill. 2d (See Finley (1980), Finley a death penalty State argued support filed a motion denied. The State promptly which was heard sentence, and the motion was reconsideration of Seventeen sentencing. following original day denied the motion for reconsid after the trial days for manda petition filed in this court a eration the State than delaying, relief. Rather mus supervisory correct attempting State acted promptly laches, therefore, does not error. The doctrine judge’s relief. right preclude next assert the imposition The respondents arbitrary be on the defendant would death penalty the respondent and would also violate and capricious *11 Both argu- rights. and State due process Zarco’s Federal defend- order of the upon nonsequential ments rest murdered The defendant acts and convictions. ant’s subsequently in in Illinois Ernesto Cabrera mur- Island, he committed another to Rhode where fled in was con- 1984 der in 1982. He was apprehended, The defend- in of the 1982 murder. Rhode Island victed guilty and was found to Illinois ant then extradited Chicago in the 1980 murder. 1986 of
483 that to the death pen- respondents argue impose be- would violate defendant’s due alty process rights if for the cause the defendant had tried in Illinois been conviction, murder, first he before his Rhode Island would be the death in Illi- ineligible receive nois. The that the defendant’s contend respondents for the Illinois murder cannot be penalty eligibility mur- based conduct which after Illinois occurred der was committed.
This court in People considered a similar argument Ill. (1986), Guest 2d 72. The com defendant Guest Illinois, California, mitted then went where he committed another murder. The defendant was tried and mur apprehended, convicted of California Illinois, der. his return Following the defendant was convicted of the State, murder he had committed in this and sentenced to death under section 1(b)(3). that argued of the death imposition was unconstitutionally arbitrary because the California upon conviction which his eligibility depended involved a which killing after, occurred before, not in Illi killing nois. This court rejected that argument, quoting from earlier decision construing section which 1(b)(3) stated “ that statute 9—par. ‘[t]he [Ill. 1(b)(3)]speaks convictions, in terms of prior not of prior ” fenses, no room for leaving judicial interpretation.’ (Guest, 115 Ill. 2d at quoting People v. Albanese Ill. 2d 533-34.) The court Guest fur ther noted “it is convictions, sequence not the sequence conduct, which determines whether or not the multiple-murder, aggravating-factor provision ap in a plies given (Guest, case.” at 105.) Ill. 2d In light Guest, our find holding we statute does not violate defendant’s process rights due because of the order of his convictions. *12 for
The that he is argues ineligible defendant also because one his 1(b)(3) death under section penalty 9— Island, not have convictions from which does is Rhode sim death substantial 1(b)(3) Section requires 9— 1985, our murder statute Rev. Stat. ilarity (Ill. between 38, ch. murder statute of another 1) and the par. 9— State, not be penalties may imposed by other of murder. See State conviction upon 115 Ill. 2d “difference be (The Guest tween in the manner of imposing Illinois California for murder is to conviction penalty subsequent multiple- not or not our deciding relevant whether murder, applies”). aggravating-factor provision the Rhode Island respondents allege (R.I. was convicted statute under which the defendant similar substantially Gen. Laws not (1983)), §11—23—1 (Ill. Criminal Code Rev. 1(a) section of Illinois’ 9— Stat. and that defendant is par. ch. 1(a)) 9— for Illinois. eligible therefore not as For a State to serve murder conviction another statute, factor under Illinois’ death aggravating State, other must substantially murder law the be 1(a). similar to section reckless con claim that 1(b)(3).) respondents mur may
duct in death conviction resulting support law; the conduct and der under Rhode Island identical involun comprise only death, respondents argue, would A of in Illinois conviction law. tary manslaughter the multiple- not manslaughter implicate would voluntary factor of section 1(b)(3) murder aggravating submit, there respondents Criminal Code of 1961. The fore, between Illinois’ that because of differences is not laws, eligible the defendant and Rhode Island’s in Illinois. death penalty provides: Our State’s murder statute penalties Exceptions Separate “Murder —Death — — procedures Hearings Findings—Appellate —Re- —Proof— versals. *13 (a) A an person who kills individual without lawful justification if, performing commits murder in the acts which cause death:
(1) He either great bodily intends to kill or do another, harm to that individual or or knows that such acts will cause death to that individual or an- other; or
(2) He knows that strong prob- such acts create a ability great of death or harm to that individ- bodily another; or ual or
(3) committing He is or attempting a forcible fel- ony other voluntary (111. than manslaughter.” Rev. 1.) ch. par. 9— The Rhode Island murder statute provides: killing
“The unlawful of a being human with malice is aforethought murder. Every murder perpetrated by poison, wait, in lying wilful, or of any other kind deliber- ate, malicious and premeditated or killing, committed in of, the perpetration attempt arson, or perpetrate any *** rape, burglary or robbery, resisting or while arrest by, of, or under any arrest state or trooper policeman performance duty; perpetrated pre- his from a design meditated unlawfully maliciously to effect the *** any death of human being is murder the first de- gree. Any other murder is murder in degree.” the second (R.I. Gen. Laws (1983).) §11-23-1 An examination of the two statutes under the analysis v. Guest 115 Ill. 2d reveals that -Rhode Island statute is similar to our statute substantially ( Stat., Rev. 1987 ch. Supp., par. 1(b)(3)). Ill. , In People v. Guest (1986), 115 Ill. 2d this court 72 concluded that statute, California’s murder sections 187 through Code, 189 of the California Penal met “sub stantial similarity” test of section our 1(b)(3) Crimi- Stat.,
nal Supp., Code 1(b)(3)). review
The court examined California opinions that murder statute and construing courts ing statute a mental state found that California’s required in Illinois. The for murder required equivalent mere recklessness was argument court rejected mental state for murder under either Califor a sufficient 98-103.) 115 Ill. 2d at (Guest, nia or Illinois law. shared the same court on whether both States focused in order to mens rea requirements support conviction, court as aid at California decisions looking that, The court noted that determination. making Illinois, knowledge as the actor’s “[tjhus, in California is conduct consequences of the probable particular mur killing whether or not a critical in determining that Cali Ill. at The court held (Guest, der.” 2d *14 similar Illi fornia’s statute was substantially murder Criminal of section 1(b)(3) nois’ for purposes in of murder Califor Code. The definition and elements Rhode Is nia those murder closely parallel land’s law. Guest, we must de- set forth in
Following
analysis
mur-
a
termine
the mens rea needed to support
whether
similar to
in
is substantially
der
Rhode Island
conviction
re-
“knowledge”
of
and
the Illinois definitions
“intent”
(a)(2).
and
1(a)(1)
in sections
quired
A.2d
(1980), 415
In
v. McGranahan
State
malice, either
that
Island
Court declared
Supreme
Rhode
both first
essential element of
or
is an
express
implied,
malice
Legal
in
Island.
Rhode
degree
and second
an
intent
either
express
in Rhode Island arises “from
of
from a hardness
harm or
bodily
kill or to inflict great
recklessness
of
heart, cruelty,
disposition,
wickedness
duty.”
social
a mind dispassionate
and
consequence,
The court stated that
1302.)
415 A.2d at
(McGranahan,
malice
from the
sur-
be inferred
circumstances
may
a
a
conduct; proof
defendant’s
defendant’s
rounding
or
for the
of death
unjustified disregard
great
possibility
harm and
to the
bodily
an extreme indifference
sanctity
of human life
establish malice.
In Iovino 524 A.2d the Rhode State Is- land Court Supreme upheld defendant’s second de- into gree murder conviction for the walls and inte- firing in rior a station. A at a counter police bystander station was killed the shots. The court stated police by that firing
“defendant’s conduct
in
a
of shots into
volley
building
every
that he had
occupied
reason
believe was
by
beings
human
amounted to wanton recklessness.
It
long
has
been well
jurisdictions
settled
this and other
that wanton
supply
recklessness can
element of
mal-
ice
is necessary
to raise homicide
level
com-
Iovino,
mon-law murder.”
Iovino makes that wanton recklessness clear Rhode Island can only murder conviction when support (Iovino, it rises to malice. A.2d at Because the Iovino fired into he building had every reason to believe occupied human beings, the Rhode Island court that his held wanton recklessness malice, rose to supported murder conviction.
Malice, also a required element for conviction under Illinois’ former murder statute, could be Illi implied nois under equivalent circumstances: “Malice shall be im no plied when provocation considerable when appears, all circumstances of the killing show abandoned heart.” Rev. Stat. malignant *15 358.) Before the adoption 1961, the Criminal Code of which established murder present statute in Illinois (Ill. 1961, 38, court, Rev. Stat. ch. par. 1), this statutes, previous upheld convictions based upon malicious and (See Mayes wanton recklessness. v. People 306; 18 Ill. 2d
(1883), People (1960), 106 Ill. v. Jordan 165; v. 489; (1954), People v. 2 Ill. 2d People Johnson Ill. In section 9— (1948), enacting Simmons to retain “the the Illinois intended 1(a)(2), legislature murder, as indicated which type conduct constitute^] cases,” of the term the Illinois but without use by Stat., 1, (Ill. 38, “malice.” Ann. ch. Committee par. 9— Comments, 1979); see (Smith-Hurd at 17 Guest states 72, 96-97.) 9-l(a)(2) 115 Ill. 2d Section when knows knowledge defendant acts with “[h]e or of death strong probability that such acts create 1985, 38, ch. (Ill. harm.” Rev. Stat. great bodily par. Iovino, when wanton reckless by As illustrated 1(a)(2).) to that is necessary ness “the element of malice supplies murder,” raise homicide to the level common-law Island, it to of our 1(a)(2) Rhode section equivalent reject we Accordingly, respondent’s murder statute. recklessness which does not rise assertion that mere implied support malice is sufficient express either hold that section Rhode Island. We murder conviction Rhode Island’s Laws is substan 11—23—1 of General Code to section 9—1 the Illinois Criminal similar tially the multiple-murder aggravating of 1961 for purposes factor in 1(b)(3). subsection 9— asks, remanding an alternative next as
The State re court direct the that this death penalty re a life sentence impose spondent of section 5—8— Zarco under the provisions spondent (Ill. Corrections Rev. Code of Unified 1(a)(1)(c) We note par. 1(a)(1)(c)). ch. 1005—8— section of Pub was amended 1(a)(1)(c) section 5—8— That statute 1987. effective July lic Act 84— of natural-life imprisonment for a sentence provides now of first been convicted “if the defendant has previously law.” or federal any murder under state degree Be- Stat., 1(a)(1)(c).) 1987 Supp., 1005—8— *16 cause we are to directing judge trial hold a death sentencing we do not consider here the penalty State’s alternative that we direct the trial request judge to a sentence of impose natural-life Be- imprisonment. cause of our we also not holding, need address request Judge be to clar- Strayhorn required the sentence ify previously him imposed by upon is that the sentence to be served by declaring with or concurrently to the im- consecutively sentence posed on the defendant in Rhode Island.
Finally, we consider the motion, Zarco’s respondent which was case, taken with the to strike exhibit a of the copy respondent Zarco’s Rhode Island murder confession, from the petitioner’s for writ petition of mandamus, strike references the exhibit from petitioner’s corrected suggestions in of his support peti- tion and petitioner’s brief. Because of the disposition case, this we have had no occasion to consider or review relevancy exhibit, the contested and note that it has no role in our played consideration. We believe that because the offered exhibit was not record, part the respondent’s motion to strike should be allowed within the narrow perimeter of this case. Zarco’s motion to strike the exhibit and references to the is exhibit therefore granted.
We conclude that the first phase a death sentenc ing was never held hearing and that judge this cause was without a to refuse to basis hold such a As a hearing. held, was hearing never respondent Zarco’s double jeopardy will not if rights be violated death penalty sentencing is In conducted.
ex rel. Carey Cousins 77 Ill. 2d the court noted that a death sentencing “can proceeding not take unless it is place requested by prosecutor, which case it (77 becomes Ill. 2d at mandatory.” The facts present cause, to the trial presented to hold a death hear after he had refused
judge Rhode of the defendant’s ing, copy certified including conviction, indicate that Island murder the State’s hold deny request without a basis to For the reasons sentencing hearing. death penalty stated, respondent shall issue and mandamus sentence the defendant’s directed vacate *17 death pen and hold bifurcated years’ imprisonment 1(d) in with section accordance alty of 1961 Criminal Code 1(d)).
Writ awarded. CLARK, concurring: specially JUSTICE the basis of stare decisis. only I concur upon to the wording this is identical nearly statute wording in similar substantially of the California statute deemed at 2d 72. As I said 115 Ill. Guest Guest, not I am convinced my time dissent heart, murder, “hardness of defined as malice” “implied of conse recklessness of disposition, wickedness cruelty, can be duty,” of social and a mind dispassionate quence, I statute; under murder our equated knowing with for of a sec capital penalty that the lack further believe signifi is also a statutes ond both degree re However, has been my since position cant difference. Rhode Island and California once, since the jected contin identical, I point see no are essentially statutes not an ab decisis is on this issue. Stare dissent uing may convince and circumstances times Changing solute. I cases, past us, precedent. overrule appropriate however, over conscience, argue in good cannot Since yet dry. in ink not which of a case written ruling cannot, I concur. specially I