*1 (No. 88885.
THE PEOPLE THE ILLINOIS, OF STATE OF Appel
lee, v. MARK BALLARD, Appellant. Opinion August Supplemental opinion on filed 2002. filed rehearing denial December 2002. *3 concurring. specially McMORROW J-> HARRISON, C.J., KILBRIDE, J., dissenting. Schiedel, Defender, M. Deputy Kathryn
Charles Saltmarsh, Defender, Assistant of the Office of the State Defender, of Appellate Springfield, appellant. Ryan, Attorney General, Springfield, James E. of (Joel Birkett, Attorney, E. State’s of D. Joseph Wheaton Bertocchi, General, Solicitor and William L. Browers and Iskowich, General, Attorneys David H. Assistant counsel), Chicago, People. for the opinion delivered JUSTICE FREEMAN court:
Following a bench trial held the circuit court defendant, Mark judge the trial found Page County, Du *4 (720 ILCS murder degree first Ballard, guilty of 5/9— (West 1(a) (720 (West 1(a) ILCS 1996)); robbery 5/18 — (720 ILCS death 1996)); of a homicidal concealment 5/9— 3.1(a) (West a mo 1996)); stolen possession unlawful (West 103(a)(1) (625 1996)); and ILCS tor vehicle 5/4 — (West 1996)). 2(a) (720 After robbery ILCS armed 5/18 — and for the death eligible defendant finding the testimony at the mitigation hearing aggravation judge trial sentenced sentencing hearing, the subsequent murder convic degree for the first defendant to death 5-year a addition, imposed judge the trial tion. death, a the concealment of homicidal sentence for of a stolen motor possession unlawful 7-year sentence for robbery; armed sentence vehicle, 60-year concurrently. The death sentence to be served sentences Ill. to this court. stayed appeal direct pending has been 609(a). VI, 4(b); § Ill. 2d Rs. 1970, art. Const. follow, affirm both the convic For the reasons that we tions and the sentences.
BACKGROUND The Patty This case involves the murder of Noland. by against used the State primary evidence family, to his came from defendant’s own admissions as fol- and to which can be summarized police, friends living at a residence lows. In October defendant was previously had lived owned John McGuire. Noland out and was liv- residence, recently had moved this but However, left some of Noland had ing boyfriend. with her to retrieve yet house and had her clothes at McGuire’s home, he resided at his normally them. McGuire While approximately from staying girlfriend with his 25, 1997, of November through beginning October dog with defendant. 1997, but left the care of his p.m., around On October go Elgin that he could money a car and so wanted Knowing that drugs. thought Defendant Noland. buy *5 Noland would not lend defendant her car and money, he thought of robbing her first her luring to McGuire’s house under the pretense that she could pick up her remaining there, clothes. Once defendant would knock Noland out with chloroform and handcuff her down in However, the basement. thinking that Noland could later identify him, thoughts defendant’s ultimately turned to end, murder. To that defendant called Noland at restaurant where she was a waitress working p.m. the 5 to midnight shift. Defendant told her to come over to pick McGuire’s house to her up clothes after she was work, done with but requested that she call him before coming so that he would know when expect to her. No- agreed. land defendant call,
While waited for Noland’s he retrieved a bottle of chloroform from McGuire’s room and it in put a box next to the front door so that Noland would not recognize it. Defendant then wrapped a hammer in a bath and placed towel it in the entranceway. Defendant also laid a blanket out on the floor in the front living room so that he something would have to wrap body addition, in. defendant pair retrieved a of handcuffs from put McGuire’s room and them in his back pocket. called
Noland defendant around 10:30 let him p.m. to that know she was on her to way pick up her clothes. bring Defendant asked her to him a soda. call,
After Noland’s defendant rag soaked a with the chloroform. When Noland in the driveway, arrived grabbed rag defendant and held it in hand. Upon his house, Noland’s entrance into McGuire’s defendant asked her for his responded soda. Noland she had left the in her car and for get soda defendant to it himself. As proceeded house, Noland further into the walk grabbed put defendant her and the chloroform-soaked rag over her face. There a struggle and both fell to ground onto the blanket previ- defendant had realized that laid down. When ously Noland, he held an on having effect was not chloroform to hit began the hammer grabbed while he her down keep continued Defendant her on the head. hit he her on face as rag over Noland’s chloroform hitting approxi- Noland After the hammer. head with off times, got to wash the blood up mately hands, defendant heard washing As his hands. he was attempted to stab Defendant then mumbling. Noland “finish off’ and [her] a knife in order to Noland with more,” suffering her but the blade any from “prevent a three-foot- Defendant then retrieved impact. on bent in the bar and hit Noland long pry screwdriver or side/ next proceeded times. Defendant couple area rib *6 such as a two things, take a number of McGuire’s TV VCRs, He the items in put and stuffed owl. Noland’s put the house and car. Defendant went back into in that dog McGuire’s McGuire’s room. Worried Noland’s her, might looking wrapped come defendant boyfriend dragged body blanket her in up Noland another and of the and out of from the window. No- front couch view so the handcuffs mumbling put land was still her, get Defendant then set thinking might away. on she filled next to and plastic bags white with clothes Noland body. conceal against leaned two her to her bikes money purse Defendant from which she took Noland’s vehicle, car, leaving had left in the and before Noland’s up house. lights defendant turned off the and locked telephone that he call on McGuire testified received 31, 1997, from defendant. McGuire asked October drove for a ride to the store. Defendant to and from the store in Noland’s car. McGuire McGuire had car asked defendant how he Noland’s possession dropped had off responded and defendant he Noland at work.
On became concerned November McGuire dog about his because McGuire had been unable to days. contact defendant for a few McGuire asked a friend house, drive him his house. When he entered his he detected a foul odor. dog found McGuire his his room and dog weight. noticed had lost a lot of McGuire had buy dog his friend drive him the store to some food. returning house, After to the McGuire looked around and noticed items from missing some his home. normally McGuire also saw blood under a that he rug kept by proceeded the front door and lift up a corner of the blanket Noland’s covering body saw a large mass At of blood. this McGuire dialed 911. point,
Sergeant Jeffrey A. Driskill of the Hanover Park police department to the responded scene. When he ar- rived, recognized he detected an odor he and associated with human decaying body flesh. Noland’s was discovered bikes, clothes, blankets; underneath the exactly how Driskill Sergeant carefully defendant had left her. noted where each item was in and placed around Noland while fact, being items were removed and inventoried. Sergeant Driskill the crime videotaped scene of before body. and after the items were taken off the Dossey John police Detective the Hanover Park department was also at the crime scene and was lead detective in On investigation. November Dossey Detective autopsy body observed received that of body Patty confirmation that autopsy Noland. The revealed that had died from Noland *7 injuries due to multiple craniocerebral blunt-force exposure, trauma with chloroform and handcuffed wrists a playing part. Dossey Detective instructed offic- ers to for look defendant.
On 8:15 approximately p.m., November police department officers from Broadview saw No- of a and parking strip land’s car in lot mall detained pursuit. defendant after foot Defendant was arrested possession aof stolen on a unlawful based warrant police depart- the Broadview and taken to motor vehicle Dossey and until Detective ment, where he remained Hanover Park Piacenza, also from the Detective Edward department, police back to to escort defendant arrived meeting police Upon defen- Hanover Park station. Dossey and Detective himself dant, Detective introduced police Park the Hanover Piacenza detectives with as immediately department. that stated he was Defendant running.” “glad and he was “tired of it was over” they Dossey would talk Detective told police station. later at the Hanover Park Dossey By p.m. had and Piacenza 9:45 Detectives police defendant to the Park sta- returned with Hanover placed him in a to conduct an tion. The detectives room Dossey p.m., approximately interview. At 9:50 Detective warnings, reading gave defendant Miranda verbatim preprinted warning from a Miranda and waiver form. rights After defendant indicated that he understood signed murdering Patty form, he admitted to having also as detailed above. He admitted Noland burglaries. committed a number Dossey inter- While Detectives Piacenza were viewing Sergeant defendant, Driskill inventoried No- upon finding car, vehicle, in the land’s various items including pair bloody clothing shoes, and a of tennis investigators efforts those coordinated his with interviewing identified who were defendant. Defendant clothing those had worn and shoes to be he while murdering Noland. early morning As-
In the hours November Attornеy Timothy met sistant State’s Diamond with attorney, that he not his defendant and informed him responded attorney an for the State. Defendant but was prosecutor’s that he role. Diamond understood the signed with defen- reviewed defendant’s Miranda form *8 dant, confirming defendant’s understanding rights. of his relayed then of Defendant the murder facts Noland’s and burglaries the signed to Diamond and a written confes- sion. trial,
At defendant’s defendant’s biological father, cousin, Charles Stophlet, Petersen, defendant’s Walter Jr., Judy and girlfriend, Mullins, McGuire’s each testified prior arrest, to defendant’s he had contacted them having Additionally, admitted to killed someone. via stipulation, forensic examinations of the physical evi- dence found at crime the scene and in car Noland’s revealed that on pants the stains the and shoes defendant admitted to wearing during the murder indeed were hu- blood, man sample the of taken the liquid from scene was chloroform. Dossey Detective and Assistant State’s Attorney Diamond both to the testified circumstances and substance of defendant’s confession.
Defendant presented through very case one short concerning testimony the stipulation Judy Mullins and Petersen, Walter if Namely, testify, Jr. called Detective Edward Piacenza he would state that inter- Mullins Judy 13, 1997, on viewed November and that did Mullins not want McGuire to find out that defendant had with her her gone apartment on an occasion prior addition, to the murder of if Noland. called testify, Dossey Detective that on testify would November Attorney he spoke and Assistant State’s Diamond with Petersen, Jr., and Walter Petersen stated that on Novem- ber defendant told him that he feeling was bad for he closing argu- what had done. Defendant waived against nol-prossed. ment. A theft defendant charge As at trial opinion, judge mentioned the outset of this judgment finding guilty entered on his defendant of all remaining charges. court,
After admonishments from for jury eligibility penalty phases waived both presented All evidence hearing. sentencing eligibility phase. at the readmitted trial was defendant’s sentencing hear- stage of the of the first Upon completion death eligible judge found defendant ing, trial (West 1996)) (b)(ll) (720 1(b)(6), ILCS 5/9 — the murdered age, was 18 years because felony, of another killed the course person was *9 defendant, and by killed actually murdered person the death of the acts caused performing the which acted the intention the defendant with person, murdered knowledge that person kill the or with the to murdered or great death strong probability acts a of his created felony or more was com- bodily harm, and another cold, in a mitted, and the murder was committed manner, to a calculated, premeditated pursuant and a scheme, design or to take human preconceived plan, means, the conduct of defendant by life unlawful and created a that a death of human expectation reasonable result being would therefrom. stage sentencing hearing,
At the all of second of eligibility defendant’s trial and presented evidence at penalty After phases phase. was readmitted mitigation, aggravation evidence in and considering detail, we will later discuss in more evidence which no to mitigating trial court found factors sufficient of preclude imposition the death sentenced Patty murder Noland. In defendant to death addition, sentence for imposed 10-year the trial court death, a 14-year concealment of a homicidal sentence for vehicle, a 60- unlawful a stolen motor possession robbery; to be year sentence for armed the sentences concurrently. served to
The court denied defendant’s motion recon trial to defendant’s sentence pertaining sider sentences years robbery. for armed death and his sentence of agreement However, motion and pursuant defendant’s court, the State and the trial the sentences imposed for concealment of a homicidal death and unlawful pos session of stolen motor were vehicle modified to five and seven years respectively. the trial Additionally, court denied defendant’s “motion for judgment notwithstand ing the verdict” or a motion for a new trial. Defendant appeals directly to pursuant Supreme this court Court (134 603). Rule pertinent Ill. 2d R. Additional facts will be discussed the context of the issues raised this appeal.
ANALYSIS I. Suppression of Statements trial, Prior filed three sup motions to press statements, his incriminating which trial court motions, denied. In these claimed that (A) State: denied his right sixth amendment to counsel (U.S. 8) Const., VI; I, amend. Ill. § Const. art. (B) statutory right presented judge be to a (725 1(a), unnecessary delay” “without ILCS 5/109 — 2(a) (West 1996)). assigns Defendant error to the 109— *10 trial denial court’s of his motions to suppress. argument
We address at the outset defendant’s we hearing should review this contention At a de novo. on a motion to it is the suppress, function of the trial court to determine the credibility witnesses, given weight testimony, to be to their and the inferences to be from Galvin, drawn the evidence. v. Ill. People 127 (1989). 2d Accordingly, ruling 163 the trial court’s on a to suppress generally motion will not be overturned Galvin, at manifestly unless it is erroneous. 127 Ill. 2d (1988). 162; Evans, 2d People “Manifestly v. 125 Ill. 78 arbitrary, erroneous means unreasonable and not based Wells, on v. the evidence.” 182 Ill. 2d 481 People (1998). However, appropriate de novo review is when is credibility neither the facts nor witnesses Ill. 2d Williams, 181 People questioned.
(1998). this conten review that we should argues
Defendant are We undisputed. facts tion de novo because of wit credibility turns on This contention disagree. contention based Therefore, review this we must nesses. Williams, Ill. 2d standard. See manifest error on the at 309. the fol- hearing adduced suppression at the
Evidence Park 5, 1997, a Hanover facts. On November lowing complaint, in a criminal charged defendant police officer of a possession by prosecutor, with was reviewed which charge, a warrant Based on this motor vehicle. stolen It stipulated arrest. was issued for defendant’s was 7, 1997, Friday, on November p.m. 8:15 approximately at upon defendant based officers arrested police Broadview motor of a stolen possession for unlawful the warrant police to the Broadview Defendant taken vehicle. was police questioned Broadview officer No department. on matter. any He the lead as follows. was Dossey Detective testified assigned He to the investigation. detective in the was body night that Noland’s case on November 7, shortly p.m., after 8 Detec- found. On was November a telephone at home he received Dossey tive when defendant. Detec- regarding Detective Piacenza call from station, where he met with police to the Dossey tive went assigned to the Piacenza, investigators other Detective Diamond. Detective case, Attorney and Assistant State’s custody that defendant was Dossey was informed Piacenza were instructed He and Detective Broadview. and return with go police department to the Broаdview defendant. Broad- Piacenza to the Dossey
Detectives went p.m. arriving approximately department, police view Dossey intro- Detective They were taken defendant. *11 duced himself and Detective Piacenza as detectives with the Hanover Park police department. According to Detec- Dossey, tive immediately defendant stated he that was it “glad was over” and that he was “tired of running.” Dossey
Detective told defendant they would talk later at the Park police Hanover station.
During Park, the drive back to Hanover detec- defendant, did question tives not and defendant did not attorney indicate he wanted an or wished remain Initially, silent. there was no conversation at all. Eventu- ally, defendant again volunteered comments as he such glad over,” it “was was he tired running,” “was he tired looking “was over shoulder all his the time.” 9:45
By p.m. Dossey Detectives and Piacenza had returned with defendant to the Hanover police Park sta- placed tion. The detectives him in room to an conduct At approximately p.m., interview. 9:50 Dossey Detective gave warnings, defendant Miranda verbatim reading from a preprinted warning Miranda form. waiver rights Defendant indicated that he understood signed Dossey form. Detective then asked defendant willing if he be to talk him would with and Detective Pia- Dossey, cenza. According Detective re- sponded everything.” that “he would tell us Dossey basically
Detective “then just [defen- asked what then happened.” dant] Defendant related the 1997. essentially events October The interview was narrative, interrupted defendant’s which the detectives only to ask for clarification. questions Defendant was very cooperative. calm and Defendant also told detec- he not under drugs tives that the influence of or alcohol. approximately p.m., requested
At 10:20 he cigarette, during and received a which smoked They At 10:30 food arrived for defendant. p.m., interview. three of ate and relocated to another room. The them *12 nothing do having to “casual, talk” small engaged with case. if defendant Dossey asked meal, Detective
After their At- State’s speak with Assistant willing he to would be Dia- that Dossey explained torney Diamond. Detective lawyer. a defense and not prosecutor was a mond talk Diamond. that he would with rеsponded Defendant a.m. At 12:15 approximately resumed. The interview room Dossey left the interview on Detective November Detective 12:26 a.m. approximately to Diamond. At get already there was the room. Diamond Dossey returned to ex- Diamond and Detective Piacenza. with defendant attorney. not his he to defendant was plained prosecutor’s responded that he understood Defendant the signed defendant then reviewed with role. Diamond understanding of form, confirming defendant’s Miranda rights. his statement from to take an oral proceeded
Diamond 1:30 a.m. defendant, approximately concluded at which that he statement, defendant indicated During the oral he wrong done should knew what he had was he be it. then defendant if would die for Diamond asked writing; willing put to his statement his in the affirmative. Defendant dictated responded Diamond, transcribed defendant’s statement who time, allowed to use During defendant was words. this the written state- restroom. Defendant then reviewed Diamond portions Defendant indicated to ment. exactly and told Diamond
statement that were inaccurate rewrote sec- say. he Diamond then those what wanted to Defendant according defendant’s instructions. tions The state- signed his statement. written then written concluded at 4:30 a.m. ment no they go could further
The detectives believed that for physical could search daylight, they until when away. threw Defendant evidence that defendant placed cell and sleep. allowed to The detectives agreed meet back at the later Saturday station morn- ing.
At approximately a.m., 10:30 given defendant was breakfast. Detectives Dossey and Piacenza read defendant from rights a preprinted warning Miranda and waiver form, signed. breakfast, which he As he ate stated that he remembered what he had done with the hammer and some the other the investiga- items that tors sought. Defendant investiga- volunteered take the tors to where the items were located. Defendant was al- lowed to take a shower. defendant,
At approximately p.m., 1:10 Detectives Piacenza, Dossey and Attorney Assistant State’s *13 Diamond drove to Broadview. Defendant led them to where had dumped he some of the They stopped evidence. for lunch. They returned to police the station at ap- 3 At prоximately p.m. request, defendant was allowed use to the restroom. Defendant voluntarily then assisted investigators the in identifying items recovered from No- land’s car.
At approximately p.m., Dossey Detective asked if willing videotaped defendant he would be to make a scene; statement the crime that responded defendant Defendant, detectives, he would. the and the assistant again the Attorney State’s left station. While en route to scene, the crime to defendant offered show them some burglarized. houses he had Defendant made a videotaped statement at the crime scene. At the conclu- video, sion of the Diamond again reviewed the Miranda with warning defendant. to
They police approximately returned the station at 4:43 p.m. Waiting them were law enforcement officers from to jurisdictions. They speak two other wanted with regarding burglaries defendant some that occurred in Dossey their communities. Detective advised defendant However, those talk with officers. did not have to that he with them to he wanted talk stated that returned was property that stolen make sure proper people. complaint charging p.m., after criminal
Sometime prepared, degree with first murder was At the of- point, defendant. Dossey Detective served longer no at- investigation and ficers had their completed Accord- from defendant. any statements tempted to elicit course of defendant’s Dossey, ing to Detective Friday, on interview, p.m. 9:50 approximately from on 1997, through approximately p.m. November “continually divulged 8, defendant Saturday, November information investigation.” Detective Dos- regarding Du sey any press Page not of release from the did know Saturday earlier after- Attorney State’s issued County noon. Attorney County Diamond Page
Du Assistant State’s night testified as follows. On November Attorneys Diamond and several other assistant State’s legal crime scene to offer assistance to were called department. night, That Dia- police Hanover Park being that defendant mond first became aware was investigated evening for Noland’s murder. From that 8, he evening legal until offered November Park police department other assistance the Hanover the course of during investigation. its Diamond evening Friday, On the November *14 рolice Park He and the at the Hanover station. police assigned to the case were informed that investigators accompanied in in He custody defendant was Broadview. Dossey to Detectives and investigators the Broadview. in Diamond and another of- Piacenza were one car and had remained with ficer another. If defendant were Diamond likewise police department, the Broadview there assist those officers. He would have remained to returned the with Hanover Park investigators, with riding defendant with Dossey Detectives and Piacenza. At the Hanover Park police station, Diamond waited to learn what defendant had told the He did detectives. speak anyone not to at the Attorney’s State’s office dur- ing this time. At approximately 12:26 a.m. he entered the room where being defendant was and interviewed did not leave it until a.m. 4:30 He remained at the police sta- for tion about an hour thereafter and then home. drove a.m., At 6 Diamond telephoned his supervisor, Michael Diamond Wolfe. informed that Wolfe defendant gave written statement admitting his involvement murder, and Diamond related the details that statement to Wolfe. Diamond also told Wolfe that investigators hoped to recover murder weapon and attempt would the burglaries corroborate to which give had confessed. did not Wolfe Diamond any explicit instructions regarding charge. defendant’s Rather, timing of the charge up was left to Diamond thought he investigation when was complete. Wolfe took information from Diamond the purpose press release, preparing which the office does all murder cases. Diamond had do nothing prepar- with ing the release.
According Diamond, he, detectives, when from videotaping returned defendant’s state- scene, at point ment the crime “I had determined at that that we had much all of I’s pretty dotted our and crossed all of our investigation tight T’s was as point as it needed to be.” approved Diamond then charge against murder defendant. testimony Wolfe,
The Page County Du State’s At- torney Birkett, Joseph First Assistant State’s At- torney presented stipulation. John Kinsella was The if parties were stipulated testify, Wolfe called he would as follows. He received a call testify telephone *15 Novem- Saturday, early morning Diamond the from conversa- telephone during only It was ber 1997. to charge Diamond actually authorized tion that Wolfe would charging when discussed They further defendant. evidence, the specifically additional occur and whether statement, sought. Very would be videotaped crime scene Diamond, Wolfe with after Wolfe’s conversation soon and informed him of Attorney Birkett telephoned State’s the conversation with the of the case and related status charge defendant with agreed Birkett Diamond. that after- later press murder and to hold a conference noon. Attorney Bir- of State’s
According stipulation to the early a from Wolfe in the kett, telephone he call received informed 1997. Wolfe morning Saturday, on November Birkett investigation, ap- Birkett of the status first charge degree the decision to defendant with proved scheduling They murder. also discussed the content and Birkett then press of a conference later that afternoon. assistant, telephone had conversation with first Kinsella, in they press John which discussed the confer- ence. Pollastrini, public manager the information at
Laura office, Du Page County Attorney’s State’s testified as approximately Saturday, follows. At 9:30 a.m. on Novem- telephone call from ber Pollastrini received Kinsella her that the office would conduct a informing day. conference that She received information from press at completed release press approximately Wolfe Attorney, approved it p.m. She showed State’s who 1 p.m. press it. after release issued shortly Sometime press media and was read conference. Birkett, The State’s At- press release stated: “Joe *** torney Page County today that First of Du announced Degree have been this charges Murder afternoon filed Ballard, Court, against Mark C. of 5712 Bedford Hanover charged Park. He is in connection with the Noland, 43, death of Patricia A. of that same address.” added.) (Emphasis stipulation, In his Birkett conceded the press erroneously charges release stated that fact, had been filed that charges afternoon. had not yet According Birkett, been filed. press release should have indicated that degree charges first murder *16 against expected defendant were to bе filed after- that noon. Page
Defendant was to Du presented County judge 1997; Sunday morning, 9, on November a criminal complaint defendant with charging degree first murder was filed.
A. Sixth Right Amendment to Counsel trial, Prior to defendant filed motion to al suppress intentionally the leging delayed bringing State him judge before a to attachment of to prevent right his counsel the under sixth amendment to the United States (U.S. XIV) Const., VI, Constitution I, amends. and article (Ill. 8, section of the Illinois 1970, Constitution Const. 8). I, § motion, art. claimed that his right to counsel the had attached when State committed prosecute early itself to him “at least as as the issuance release, press perhaps earlier.” Defendant sought of suppression any statements that he made subsequent right to the attachment of his to counsel. The trial court denied this motion. court, this He
Before focuses his claim. alleges on the amendment. solely specifi- relies sixth He the cally prosecute State’s “commitment to was early morning Saturday, made the hours of November 8, filing charges intentionally delayed.” but the of only video- Accordingly, defendant now claims that the on taped statement that he the afternoon gave 8, 1997, been Defen- suppressed. November should have dant seeks a new trial. The sixth established. are controlling principles
The the four- through the to states amendment, applicable “In all amendment, part: in relevant guarantees teenth enjoy right shall the accused prosecutions, criminal *** for his defense.” of Counsel the Assistance have VI, sixth purpose XIV The Const., amends. U.S. that, prosecu- any criminal is assure amendment her to his or own tion, not be left accused shall organized forces of facing prosecutorial devices in only terms, very applicable its it becomes society. “By investigation from role shifts government’s when the of one only it is then that assistance accusation. For is needed [citation] in the ‘intricacies ... law’ versed case encounters ‘the prosecution’s assure that ” testing.’ [Citation.] meaningful crucible of adversarial 2d Burbine, 89 L. Ed. Moran 475 U.S. (1986). 106 Ct. S. or right The amendment to counsel attaches at sixth initiation judicial proceedings— of adversarial after way charge, preliminary hearing, of a formal whether information, indictment, arraignment. or United States *17 146, 180, 187-88, L. 2d Gouveia, v. 467 U.S. 81 Ed. 153- 2292, 54, (1984), Illinois, 104 v. quoting Kirby S. Ct. 2297 682, 688-89, 417, L. 411, 406 U.S. 32 Ed. 2d 92 S. Ct. (1972) 1877, Gouveia, the (plurality opinion). 1881-82 Court explained:
“Thus, given of plain language the the Amendment and protecting of at purpose layman its the unaided critical adversary, with our conclusion that confrontations his adversary right to counsel attaches at the initiation of judicial proceedings criminal ‘is far from a mere formal- only govern- time [Citation.] ism.’ It is at that ‘that only then that prosecute, ment has committed itself and positions government defendant have of adverse himself solidified. It is then that a defendant finds faced society, organized forces and im- prosecutorial with the procedural mersed in the intricacies of substantive 172 [Citation.]”Gouveia, 189,
criminallaw.’ 467 at 81 U.S. L. 155, 2dEd. at 104S. Ct. at 2298. plurality Kirby point,
As the
concluded: “It is this
therefore, that
marks
commencement of the ‘criminal
prosecutions’
explicit guarantees
to which alone the
applicable.” Kirby,
the Sixth Amendment are
In this when defendant statement on the afternoon of November there charging proceeding, preliminary had no been formal hearing, arraignment indictment, information, or accus ing defendant of murder. It has never been held that an by triggers right arrest, itself, the sixth amendment Gouveia, 190, 467 155, counsel. U.S. at 81 L. 2d at Ed. People 2298, Wilson, 104 Ct. at S. cited v. 116 Ill. 2d (1987). 29, Here, 50 an fact that arrest warrant was prior obtained to defendant’s arrest was not sufficient to by contemplated create trial-like confrontation the sixth People Hayes, 89, amendment. See v. 139 Ill. 2d 126 (1990), citing People App. Boswell, 52, v. 132 Ill. 3d 59-60 (“Where (1985) prosecutor’s the extent of the involve procurement ment in the of the warrant is no more than *** preparation complaint assistance purely investigatory the arrest must be characterized as any point without commitment the State at this pursue prosecution”). interrogation, by
Further, itself, custodial does not trigger right Moran, sixth amendment to counsel. at 431-32, 427-28, 475 U.S. 89 L. Ed. 2d 106 S. atCt. (1988). People 1146; Evans, 125 Ill. 2d 79 These principles apply investiga sixth if amendment even the targeted tion has focused on or the defendant. United (9th 2000); Hayes, F.3d States v. Cir. State v. (1996); Register, 471, 323 S.C. 476 S.E.2d (Tenn. 1989). McCormick, State v. 778 S.W.2d pros- However, has held that “the this court level *18 may determining ecutorial involvement be considered in to counsel right amendment a defendant’s sixth whether Garrett, 179 Ill. 2d 239, 248 People has attached.” cases). (1997) case, therefore, “defen In this (collecting if only there right to counsel dant a sixth amendment has at the involvement significant prosecutorial has been has if the government time action or questioned of the defendant.” prosecute itself at that time to committed is Garrett, inquiry Ill. 2d our Accordingly, at 250. the time prosecutorial involvement at degree into the statement. videotaped of the crime scene case, the defendant’s prior In this to or at time of statement, not such a crime scene there was videotaped constitutionally significant degree of prosecutorial as to defendant’s sixth amendment trigger involvement in the initial right to counsel. Diamond’s involvement in their solely case to law enforcement officers was assist investigation role was one of investigation. Diamond’s Indeed, accusation. it was not until Diamond not spoke morning on with Wolfe the November actually authority that from Diamond received Wolfe to charge defendant.
Further, having authority is charge not deciding charge the same as him. Diamond was charge authorized defendant when Diamond believed that investigation in- complete. was Wolfe never structed Diamond to charge particular a time. press “[t]he
Defendant contends that release is one totality of the circumstances that demonstrates charging early had decision been made defendant, hours of morning According November 8.” release “is the deci- press significant evidence made paperwork deliberately sion had been delayed police getting videotaped while succeeded crime, at the of houses statement scene of the and tour burglarized.” had [defendant]
We disagree. Although the release press supports contention, defendant’s it is of the only many one factors not press considered and is conclusive. The release should have that charges expected announced were to be filed against agree that, defendant. We with the State in the course of a criminal there an investigation, likely exists expectation charges pending that will be filed its conclu However, sion. this does not that mean whenever the police or prosecutors investigate activity criminal and an charges nounce that are be filed expected govern to “the ment hаs committed prosecute itself at that time to Garrett, defendant.” See 179 Ill. at 250. 2d protests Defendant that was no investiga- “[t]here tion to that needed be done to sufficient to get evidence charge [him],” investigation and that “further yield could little that would be relevant charging to the decision.” argument Describing paradoxical,” this as “novel and Supreme rejected United States Court it as follows: right police “There is no constitutional be arrested. The to guess precise are not to required peril at their moment they probable have arrest a suspect, which cause to risk- ing a if they violation the Fourth Amendment act too soon, they and a Amendment if violation Sixth wait long. too enforcement are Law officers under no constitu- tional call a duty investigation to halt to a criminal they moment have the minimum evidence to establish cause, probable quantum which may of evidence fall far necessary support short of the amount a criminal convic- 293, States, tion.” v. United 385 U.S. 17 L. Ed. Hoffa (1966). 2d S. 87 Ct. case, investigators In this did violate not defendant’s right by failing sixth amendment to counsel to cease their e.g., Craig, United States v. See, ongoing investigation. (7th 1977). 573 F.2d Cir. testimony Diamond,
The trial heard the as court Dossey well as that Detective and Pollastrini. The court assessed their observed their demeanor and cred- evidence, ibility. testimony Based on their and the other intentionally not did prosecutors that court found in order charging defendant unreasonably delay Rather, to counsel. right amendment him his sixth deny wanted prosecutors police that court found say cannot We investigation. ongoing their continue manifestly erroneous. finding was trial court’s B. Presentment motions pretrial filed two additional Defendant 1(a) and of sections alleging violations suppress, 109— Procedure of Criminal 2(a), of the Code respectively, 109— (West 1996)). 2(a) (725 1(a), of 1963 ILCS 109— 5/109 — 1(a) part “[a] requires pertinent Section 109— shall be taken or without a warrant arrested with person nearest and most delay before the unnecessary without *20 ILCS county in that ***.” 725 judge accessible 5/109— 1996). 1(a) (West motion, claimed that In his 1(a) him by presenting violated section State 109— to his subsequent 36 hours judge approximately a before “[a]ll statements sought suppression Defendant arrest. appeared he should have by made after the time [him] judge.” before а 2(a) part: in requires pertinent
Section 109— in “Any county in a other than one person arrested shall be taken a warrant for his arrest was issued which ac- unnecessary delay before the nearest and most without or, county in the arrest was made judge cessible where created, delay if before the nearest no additional is judge county in the from which the war- most accessible 2(a) (West 1996). rant was issued.” 725 ILCS 5/109 — motion, In defendant noted that he was arrested 1997, in Friday, 8:15 on November approximately p.m. County. in Defendant Broadview, is located Cook which in Cook affidavit evidence that bond court also submitted p.m. from 6:30 to 10:45 County night was in session that morning ap- from following in and on the Chicago in Defendant claimed Maywood. 9 to 10 a.m. proximately 2(a) by present- not that the violated section State 109— him ing to a Cook County judge, rather judge than to a Page Du County, where he ultimately taken. Defendant sought suppression of “[a]ll statements made after the [him] time he should appeared” have before a County Cook judge.
The trial court denied these motions. Before this court, defendant seeks a trial. new
The committee comments to article 109 of the Code succinctly practical identifies the concern:
“The most tedious and perplexing problem in the area happens is what taking between arrest and before a [judge] judicial hearing for a probable practice, on cause. time between arrest hearing police is that in which of- question obtain, ficers possible, the accused and if a confes- weak, If sion. the case is tendency there is a If delay. confession is obtained during delay, such should it be admissible in evidence at the trial?
Illinois continues to look at the solely confession cases light of the voluntary-involuntary test.” 725 ILCS (Smith- Ann., art. Committee at 3 Comments — 1992). Hurd Article 109 was drafted to assure an accused all neces- sary rights preliminary and, inherent examination time, at the same statutory to continue Illinois and case law pertaining to time within which the accused must presented be to a judge hearing. Ann., such 725 ILCS (Smith-Hurd art. Committee at 3 Comments — 1992). 1(a) (725
Although section of the Code ILCS 109— *21 1(a) (West 1996)) requires that an arrestee be 5/109 — presented judge to a “without unnecessary delay,” noncompliance not, itself, therewith by does obviate a confession or render an voluntary otherwise cоnfession Rather, delay merely inadmissible trial. such is a fac tor to question be considered on the of voluntariness. House, v. People People v. (1990); 141 Ill. 2d (1972). Brooks, 51 Ill. 2d 164-65 This is also true for 2(a). Pittman, v. 55 Ill. People a violation of section 109— (1973). 2d 56-57 is whether the defendant
The test of voluntariness
and
freely, voluntarily
made the statement
without
inducement,
or
or whether
defendant’s
compulsion
A
at the time he or she confessed.
will was overcome
requires
determination of voluntariness
consideration
of the
of each case. Factors to
totality
circumstances
include:
determining
consider when
voluntariness
age, intelligence, background,
experience,
defendant’s
education,
mental
and
at the
capacity,
physical condition
time of
and duration of the
questioning;
legality
detention;
the duration of the questioning; whether
rights;
defendant was advised of his constitutional
and
subjected
any
whether defendant was
or
physical
mental
The
of the
of a
question
competency
abuse.
for the trial
confession is
court alone to decide
evidence,
preponderance
its determination
against
will not be disturbed on review unless it is
Gilliam,
weight
People
manifest
evidence.
v.
(1996); House,
Ill. 2d
500-01
While statutes such as sections and 109— 109— 2(a) require presentment unnecessary “without delay,” some latitude is judge allowed. Presentment to a need be performed only with such reasonable promptness as permit. circumstances Whether there was or was not un necessary delay must be determined from all the facts Jackson, circumstances each case. 23 Ill. People (1961). Although 2d “no arbitrary may rule be (Jackson, judicially 278), fixed” 23 Ill. 2d at deci- Illinois *22 178 24 to suggest delay prior present
sions
a
to 36 hours
unnecessary. People
ment
not considered to be
usually
is
Shannon,
v.
(1986);
People
v.
149 Ill.
3d
530
App.
(1984)
cases).
Martin,
(collecting
121
App.
Ill.
3d
208
Further,
custody
once a defendant
lawful
has
waived his or her Miranda
and indi
rights
knowingly
1(a)
willingness
police,
cated a
to talk to
section 109—
interrogation
their
obligate police
intеrrupt
does not
and the
long
length
as its
is not unreasonable
as
The
voluntary.
continue
to be
defendant’s
statements
from a
taking
voluntary
involved in
a
statement
“delay”
“necessary”
is
under
these circumstances
1(a).
v.
People
meaning
within the
of section
See
109—
Smith,
Groves,
People
(1998);
294 Ill.
3d
App.
(1990).
legislative
The
direc
App.
203 Ill.
3d
“
presented
judge
that an accused be
‘without
tions
”
officers
delay’
police
“cannot mean
unnecessary
can
comply,
all other duties to
and neither
must forsake
have
latitude
police
mean that the
do not
reasonable
they
Jackson,
280;
crime.”
23 Ill. 2d at
investigate
fully
House,
principles apply
2d at
These
accord
Ill.
380.
2(a)
Pittman,
the factors to the voluntariness the court Regarding delay, the factor statements. from willingly cooperated police with found: interview; cooperation defendant’s beginning of his detention; and throughout prearraignment extended was not unreasonable. length interrogation concluded evidence, the trial court considering After and denied voluntary were that defendant’s statements 1(a) and based on sections suppress his motions to 109— 2(a) The trial Procedure. of the Code of Criminal 109— manifestly erroneous. determination was not court’s Mitigation Evidence Sufficiency II. it court erred when the trial Defendant claims mitigating preclude the found no factors sufficient to imposition of the sentence of death. Defendant contends suffering that he was from extreme emotional distur- significant crime; bance at the time of the that he has potential; full rehabilitative responsibility and that he has taken argues for his actions. Defendant that one mitigation preclude all or of these factors is sufficient *23 imposition of the death sentence. Defendant asks this court to vacate his death sentence and remand for a sentence other than death. determining proper, whether a sentence of death is
we must consider “the character and record of the
particu
individual offender and the
circumstances
People Pitsonbarger,
lar
offense.”
v.
142 Ill. 2d
388
(1990), citing
Carolina,
Woodsonv. North
428 U.S.
(1976).
49 L. Ed. 2d
96 S. Ct.
“[Ejach capital
unique
case is
and must be
on
evaluated
focusing
faсts,
its own
on
whether
circumstances of
the crime and the character of the defendant are such
that
the deterrent and retributive functions of the
by imposing
ultimate sanction will be served
penalty.” People
the death
(1989).
Johnson,
128 Ill. 2d
appropriate
“A death sentence is
if the sentence is com
gives
mensurate with the seriousness of the offenses and
adequate
mitigating
consideration to relevant
circum
Pitsonbarger,
stances.”
The defendant evidence mitigation. family consisting members, Six of defendant’s stepsister, great-aunt, sister, aunt, cousin, and a cousin of biologicalmother, defendant’s related that defendant had stepfather. been raised his mother and Defendant’s children into three of his own stepfather brought and defendant’s sister. marriage adopted mother and defendant’s marriage, after their Soon Furthermore, these wit- had children. two stepfather towards physical incidents of abuse nesses stated lived with his siblings while defendant defendant and his heard of witnessed. were stepfather mother and/or lot of there was a testified stepsister Defendant’s and defen- in the household violence, anger rage, when he lived that it was “like hell” cousin stated dant’s addition, time. In on a number Ballard home for a in the away from home did defendant run only not of occasions away, ran with three never siblings five of his but aunt, cousin, and the Furthermore, defendant’s return. mom stated that defen- biological cousin of defendant’s a con artist. distrustful and very stepfather dant’s always that defendant was testified The witnesses him. obedient, asked of anything and did respectful, Ballard, she ex-wife, testified that Susan Defendant’s and still maintains years to defendant for was married Throughout in jail. him while he is with regular contact discuss with would marriage, periodically their *24 as a child at he suffered physical abuse Susan defendant’s described Susan stepfather. hands of his controlling. and domineering stepfather and as mother of defen- was aware stated that she addition, In Susan their mar- during dependencies alcohol drug and dant’s alcohol, аnd drugs was on when defendant and that riage around. and not nice be violent, argumentative, he was sober, very he was was clean and defendant But when incidents told of loving. Susan also and helpful, pleasant, her and stole assaulted physically had defendant where met with Furthermore, that she Susan testified her. from and murdered Noland after he had days a few defendant had her that he he told crying when defendant was killed someone.
A who 10 or times minister counseled defendant so eight years six to murder past prior Noland’s he thought testified that defendant was unstable help. needed individuals, worker,
Eight including a clinical social minister, jail chaplain, and a time who volunteer their supervising helping various classes and inmates with their jail issues testified on of defendant. behalf following Defendant in the Men’s Is- participated classes: Group; AA; sues Study; Anger Management, Bible Management, Education; Relapse Healing and Addiction Losses, Readiness, Our Change; Job and Commitment and Parenting. eight collectively Those individuals thought that defendant was an active member class and was well liked by others. Defendant other brought the classes, inmates to and some considered him their mentor. One inmate testified that he met defendant one of the classes above and felt that played an outstanding recovery. addition, role in his who supervise volunteers these classes stated that sincere, honest, always searching Furthermore, answers. defendant admitted in class to killing Noland and feelings discussed his of remorse and guilt. The minister specifically believed that defendant has accepted reality and understands he choices has made.
Dr. Stipes, psychiatrist, Albert a forensic testified as a mitigation Stipes witness. Dr. evaluated defendant and review, based on his found that defendant suffers from Bipolar II disorder. II Bipolar is a disorder of the mood. many There are types bipolar disorders, they but are all mood, characterized by i.e., moods, extremes of elated depressed moods, and sometimes delusions and hallucina- accompany tions Additionally, one of these. Stipes Dr. noted that defendant suffered from alcohol and cocaine dependency that, sometimes, people bipolar with *25 their symptoms.
disorder use substances to control own they feeling use when are example, pеople For cocaine agitated. feeling and alcohol when Further- depressed more, very Dr. has short life Stipes stated that cocaine a put Bipolar and when into someone II disorder can with changes depres- from promote rapid cycling frequent — Dr. agitation. Stipes sion to elation or concluded that disorder suffering II when Bipolar defendant was from herein, defendant, discussed later assaulted fellow as he inmates and when killed Noland. mitigation on a
Defendant testified his own behalf as past physical witness. Defendant related his abuse at the he hands of and the number of times ran stepfather his drinking he alcohol away. Defendant stated that started using he cocaine years when was nine old and started committing he when 18. Defendant admitted over drug hundred order to fund his burglaries anytime the alcohol habits. Defendant testified that caught him, readily Being he would police confess. life, times jail out of his there were when defendant whole ultimately revert up, tried to clean himself but would and alcohol. drugs back morning murder,
On the defendant was Noland’s drug on That years binges. day, old and was one of his 2 to approximately from smoked cocaine more, is Noland came wanted some which when p.m. only to rob Initially, to his intended No- mind. him, later land, thinking identify but that she would Defendant wrestled with the thoughts turned murder. an or not to kill Noland for over hour idea of whether her, he was to kill but going and decided that not es- in her when left his car. sentially snapped Noland soda he to stop that at one had wanted point Defendant stated if he hammer, but had hitting Noland with knew vegetable for the rest of probably she be stopped, would that what he had done was her life. Defendant believed *26 readily horrible and admitted that he deserved to die as a consequence. Defendant further admitted that arrest, time of his he felt relieved to be from away drugs ashamed irritated at himself for what he had done and unmindful if he lived or died. Defendant testi- fied that he now cares and wishes to live.
Furthermore, while in jail, defendant attended the above, classes actively mentioned sought psychiatric help because he thought he had a imbalance, chemical put God into his life. began Defendant taking medication for his psychological problem in December of 1997.
In addition, defendant told the court that he physi- (1) cally assaulted fellow inmates because the first inmate (2) slammed a ill mentally person against wall, second inmate was homosexual and had made a pass at (3) him, and a third inmate was him calling names. In contrast to this mitigating evidence, the State presented the following evidence aggravation. The State introduced all of the produced evidence at trial regarding murder, Noland’s including a videotape of defendant walking through the murder scene and defendant’s oral and written addition, confessions. In evidence of defendant’s extensive criminal record admitted, which included aggravated convictions for: bat- tery; battery; burglary; residential burglary; attempted residential burglary; criminal trespass; theft; assault; and violation of a court order. It appears defendant has been in and out of jail since early 20s.
Further evidence of defendant’s background was presented a through number witnesses, the majority of which are as follows. The State presented defendant’s stepfather, stepbrother, sister, half and a family friend; all of whom stated that there was no abuse the family while defendant was growing and, in up particular, defendant was not abused as a child by his stepfather.
Colonel Steve Connolly, from the United States Army in 1978 army
Reserve, joined that defendant testified weeks within three counseling a statement and received counseling statement is army, In the of his arrival. Defendant’s of misconduct. type for some received “unmo- that defendant was stated counseling statement with his cooperate won’t tivated, self-discipline, lacked not perform of the work and will doing his share peers addition, supervision.” direct without An Article “Field Article 15s.” received two Grade for a sentence option impose a commander an gives to court. A sending a matter instead criminal violation sentencing op- more Article 15 has a severe Field Grade ranking higher it is for a an Article 15 because tion than a more authority impose greater has officer who Article Field Defendant’s first Grade sentence. significant *27 unlawfully where defendant to an incident pertained with a broom- body in and the wrist hit another soldier intimidating to defendant pertained The second stick. court party’s to a third threatening witnesses and an end, received honorable In the defendant martial. and for being after reviewed army from the discharge 15s. Field Grade Article receiving the two father witnesses, biological defendant’s including Six their homes were ex-brother-in-law, testified that biological In defendant’s defendant. by burglarized home to find that his from vacation father came home later, told his A defendant burglarized. year had been burglary committed father that he biological items. he the stolen that sold relation addition, 12 officers testified police In burglaries committed and other burglaries the above Officer Carlton investigating. they were defendant that he stated department police the Bartlett Perry of 28, 1981, to a September on burglary investigating was That on father. biological to defendant’s belonging home and defendant defendant date, he interviewed that same home. biological father’s burglarizing admitted Also, Officers Mike Gartner Robert Christ of the Elgin police department August testified that on they responded to a break-in at a local bar. Officer Gart- ner found defendant the basement and defendant was subsequently charged with burglary.
In December Kenneth Piletic testified that he was home sleeping when he ringing. heard his doorbell Upon going downstairs, Piletic saw a a figure shadow of go around his so house he went to the back of his home through look By window. the time Piletic reached his door, back the window in the door was broken and someone was trying get in. Piletic called the police, who apprehended defendant neighbor’s yard. Piletic’s Defendant received a nine-year attempted sentence for residential burglary of Piletic’s home.
Detective Norman Landwehr of the Elgin police department testified 18, 1984, that on January defendant confessed to committing 41 burglaries and was subse- quently charged for a number them. Defendant also told Detective Landwehr that he had a drug severe problem and that he committed burglaries to pur- chase drugs.
Lieutenant Steve Schinkel of the Algonquin police department testified that on January admitted to committing well over a burglaries hundred within the year, last some within Algonquin. After the interview, charged with residential addition, burglary. defendant told Lieutenant Schinkel that he wanted to confess everything so he could *28 start life over he got prison. when out of
Sergeant Randy Johnson the North Aurora police department testified that January 26, 1984, on confessed that on December he had stolen a television and traded it for cocaine in Elgin. 1997, November Officer Shawn Talluto of West police
Frankfort department responded to a call made by grandmother 6, Defen- defendant’s on November 1997. grandmother dant’s told Officer Talluto that defendant kicking door, had been at her home and had tried her demanding refusing to be let in. After to let defendant safety, police. spent in, for her she called the Scared she day, night with a friend. The next Officer William police department, Troutt, also of the West Frankfort grandmother and Officer met defendant’s she asked her home before she went back Troutt to search addition, make not there. In both of- sure was responded investigated burglaries in to and ficers area. Sergeant McVety
Detective Bruce of the Bureau County department stated that he interviewed sheriffs with another officer at defendant on November police Park station. Defendant confessed to the Hanover McVety committing burglaries. Detective testified four burglaries that defendant told him he committed the committing buy that he felt bad about cocaine and belonged burglary home to his friends. fourth because the Dossey discussing Detective testified that after No- defendant, to commit- land’s murder with he admitted Elgin, ting burglaries Princeton, in South number Frankfort between the dates of November West Furthermore, Detective and November 1997. Dossey told him that he had wished stated that defendant an “asshole he had killed because McGuire was McGuire people drug problem and would blame other and had a just [McGuire].” things, for and that he didn’t care for going “chop [McGuire’s] Defendant that he was stated during At no time Detective Dos- head off with an axe.” sey’s sorry say he did defendant interview murdering Noland. Driskill testified that he searched Noland’s
Detective There, defendant had stolen from car. he found items burglarized. previously homes he had *29 addition, gave testimony relating four witnesses physically incidents where defendant assaulted them. The four officers took the of the police reports physi- who cal all par- assault incidents also testified stated that involved, one, exception ties with the named defendant witnesses, wrongdoer. as the One of these Baldemar San- tana, 28, 1979, walking testified that on October he was through pаcked Elgin bar in when he heard someone yelling at him. Santana did not hear what was said. As seat, he started to walk he hit back was over the head awith beer bottle. Santana testified that he did not him person know who hit and had never seen him Later, before. witnesses at the bar told him police that defendant the culprit. Another of these wit- nesses, Kusch, sister, Brenda defendant’s half testified July on her picked up by ears, ground, threw her to the and hit her over the head with a reported beer bottle. Kusch the incident to police and filed a complaint against Also, defendant for battery. August on defendant tried to break into Kusch’s home.
Additionally, two inmates testified that defendant physically them jail assaulted while defendant inwas awaiting trial for the Eight murder Noland. officers registered and one nurse testified to their involvement pertaining jail the two incidences in with one officer stating that fighting he saw defendant a third on inmate another occasion. Jerry Wolfe,
Dr. a psychologist, interviewed defendant after defendant’s second physical assault on an inmate. Dr. testified that displayed Wolfe no sense of remorse, or regret, apology for the assaults. He further stated that defendant had been aon number of different up medications to that point, which was unusual.
Lastly, presented the State victim impact testimony from family five of Noland’s members. 1(h) death
Section
the Illinois
statute
9—
provides that “once the State has
the existence of
proved
1(b) (West
any
aggravating
factors
ILCS
[720
5/9 —
1(f)
1996)], beyond a reasonable doubt
ILCS
[720
5/9 —
***
(West 1996)], a
weigh
mitigating
court must
fac
against
aggravating
tors
factors and must conclude
sufficiently
mitigating
preclude
no
factors
Brownell,
imposition
People
of the death sentence.”
*30
1(h) (West 1996).
508,
(1980);
Ill. 2d
720
534
ILCS 5/9 —
A
of the
balancing process
aggravation
mitigation
presented
required
sentencing
evidence
is
of the
author
“
Brownell,
ity.
As upbring- court defendant’s childhood and trial considered committed defendant ing; whether the murder was while under the influence of extreme mental or emotional disturbance, to constitute a defense although not such as may whether or not defendant be prosecution; to the
189 citizenship at some or restored useful rehabilitated sup- any there were other reasons future and if point; why in the record as to by the evidence ported court The trial not be death. should sentenced matters suf- none of these were ultimately found that the death sentence. preclude imposition ficient to find trial court erred in Defendant contends imposition mitigation preclude no sufficient ing that he has Specifically, death. believes which demon significant potential, rehabilitative he jail for his addic actively pursuing help strated However, tions, anger, good and psychological problems. not prison need offset otherwise substantial behavior v. aggravating against People evidence the defendant. See Emerson, (2000); 495 People Madej, 189 Ill. 2d v. Turner, (1997); Ill. 2d 2d People Ill. (“ (1993) crime, a capital ‘[0]ne arrested for particularly awaiting convicted defendant sentenc every flawlessly has incentive to if
ing, prison behave sentencing good might authority behavior cause the life. Good behavior in those circumstances spare rarely would be as to the conduct of predictive *31 in imposed’ has been prisoner (emphasis sentence after v. Carolina, 476 U.S. original)”), quoting Skipper South (1986) 1669, 1, 14-15, 90 L. 2d Ct. Ed. 106 S. 1676 C.J., (Powell, J., and Rehn concurring, joined by Burger, J.). quist, in
Defendant also contends that his violent behavior prison directly drug of and out attributable that, and dependencies bipolar and alcohol disorder and disorder, defendant dependencies because of these and an disturbance at the time was under extreme emotional assaulted his fellow physically he murdered Noland and However, recognized that “a his inmates. this court has the double-edged is a sword at tory of substance abuse hearing.” phase of aggravation/mitigation 190 “
Madej,
177 Ill.
at
imply
‘[S]
2d
138.
because
drug
views his
as
history
mitigating
abuse
”
Madej,
require
does
do
not
the sentencer
so.’
Ill.
177
Shatner,
v.
138,
2d
quoting People
133,
at
2d
174 Ill.
159
(1996).
Accordingly,
sentencing judge was free to
conclude that
dependencies
defendant’s
and disorder
were aggravating
had no
simply
mitigating value.
Furthermore,
respect
with
to the
psychologi
defendant’s
“
disorder,
cal
repeatedly
this court has
held that
‘infor
mation about a defendant’s mental or psychological
”
Madej, 177
impairments
inherently mitigating.’
is not
Tenner,
quoting People
v.
Ill. 2d
175 Ill. 2d
(1997).
Tenner, “[a]t
382
explained
This court
sentenc
ing, a
or
judge
jury
evidence of this nature
considering
might
either mitigating
ag
view
information
as
or
gravating,
course,
on
depending,
whether
the indi
hearing
vidual
the evidence finds that
it
compas
evokes
”
possible
sion or demonstrates
future dangerousness.’
Tenner,
Similarly, remainder evidence offered little, if any, weight mitiga defendant carries in terms of childhood, tion. to defendant’s troubled As somewhat “ trial court this case was free conclude ‘that it been, simply mitigating may had no value but have ” aggravating.’ Madej, fact, actually Ill. 2d at (1992). Ward, quoting People v. 2d Ill. “ Moreover, that a been physi ‘evidence defendant has *** not cally sexually or abused does invalidate death ” evidence.’ outweighed by aggravating sentence when
191 People quoting Pulliam, Madej, Ill. 2d (1997). Further, defendant we note that Ill. 2d quitting job very long, a result often as held a never dependencies drug or because and of his alcohol years, appears for more than 20 It incarceration. burglaries jail committing to either in or defendant was although Finally, drug and habits. fund his alcohol may responsibility and full for his crime took defendant by saying “I deserve have some sense of remorse showed mitigat may did,” I as to which be viewed die for what sufficiеntly ing, offset not consider that evidence we do ting light aggravating in this of the circumstances case. foregoing, court of the we hold that the trial
In view weighed presented all the evidence before considered ag- presented addition, it. we find that the evidence gravation mitigation closely balanced; not to be grant therefore, decline sentenc- we to defendant a new ing hearing. Testimony Improper
III. Other-Crimes Witnesses: argues Defendant next that he is to a new entitled hearing sentencing the trial in allow- because court erred ing impact present from the State victim evidence prior Specifically, victims of raises is- crimes. defendant aggravation witnesses, sue with two State’s Nicole burglarized and Lisa Trone’s home Stieber Troné. merely like Troné described it was defendant. what entering it had her home on after November jarred open burglarized. been found the front door Troné large muddy carpet. footprints Due on her saw white exactly through- seeing burglar had where the traveled feeling. having home, out Troné an eerie her testified testimony object to Trone’s Since failed required by post-trial Code of motion, as (West (725 Procedure Criminal of 1963 ILCS 5/116—1 1996)), argues this issue the State waived
as it pertains agree. Troné. We This court has stated general rule that the failure to an raise issue in a written motion for a new trial results in a waiver of that Enoch, issue on appeal. People v. 122 Ill. 2d 185-86 (1988). preserve To an on appeal, issue a defendant must object to the purported error at trial and include init his Enoch, written post-trial motion. 122 Ill. 2d at A186. defendant must same if he procedure follow this wishes sentencing raise errors occurred at or risk which waiv ing appeal. them on v. People Mahaffey, 166 Ill. 2d (1995). case, this defendant failed to raise Trone’s motion; testimony post-sentencing therefore, his defendant waived the issue. Defendant does not raise the plain and, above, issue of error noted aggravation as evidence overwhelming was and not closely balanced. See (1996) People Simpson, v. 2d 172 Ill. (stating that plain defendant did not raise the issue error noticing and that the evidence at trial overwhelming was balanced). closely and not turn
We now to defendant’s raised properly conten- concerning tion Nicole Stieber’s Stieber tеstimony. testi- fied dated bragged that she 1992 and that he previous burglaries about he had After committed. four dating, months of relationship Stieber tried break the off though with defendant. Even Stieber invoked restrain- ing protection, and orders of orders defendant would always come back and into On August break her home. 26, 1992, defendant was drunk when he called Stieber at her home, evening, later that went yelled began Stieber’s house. Defendant Stieber he hitting anything on, her with could put hands including During assault, ceramic cup. Stieber protected her face this incident, with her hands. Due to right hand severely damaged Stieber’s and remains told the crippled. Stieber further trial court she surgeries hand, seven on her details of gave underwent injury has performed, procedures how and stated therapy requires continuing addition, life. In her affected every night on her hours for six to wear brace Stieber mobility. help hand to with stage of a “at the second established
It is well admissibility sentencing hearing, capital the standard reliability, and that evalua is relevance of evidence judge.” trial discretion to the sound tion is left (1998). Defendant People Hope, 39, 51 184 Ill. 2d concerning testimony detailed that Stieber’s contends reli was neither offense of defendant’s the aftereffects testimony impact it victim and that is nor relevant able Rights and Wit of Crime Victims that is barred 1996)). (West (725 seq. The State et Act ILCS nesses responds 120/1 testimony and reli was relevant that Stieber’s *34 the to admit court’s decision that the trial able and The State an of discretion. was not abuse evidence regarding the detailed account contends that Steiber’s injury it was relevant because of her hand extent disagree. highlighted taste for violence. We defendant’s prior are considered the details of crimes “While they aggravation charac illuminate the because relevant capital [citation], the un record of a ter and prior are on their victims of those crimes forseen effects Hope, 52. In this 184 Ill. 2d at of no such assistance.” defendant, to her encounters with case, testified Stieber injury upon and the her the assault which included questioning upon resulting further However, therefrom. concerning the un detail State, went into the Steiber injury consequences her its effect on of forseen regarding defen detailed account life. find Stieber’s We tеstimony. impact irrelevant victim dant’s offense be this introduction of However, conclude State’s we unduly prejudicial impact not to be so evidence victim hearing sentencing capital fundamen that it renders the sentencing stage tally hear- unfair. At the second ing, the State presented aggravation, through evidence alia, inter witnesses, of, defendant’s criminal back ground, burglaries assaults, his numerous and his prison. misconduct impact testimony Stieber’s covered four approximately pages Considering the record. aggravation voluminous amount of evidence presented, we conclude that State’s error was and not harmless egregious so deprive as defendant of fair sentencing (2000) Hall, e.g., People hearing. See, Ill. 2d (significant in aggravation compelled evidence finding that, even if given by the brief answer the aggravation Hope supra, rule, witness violated such error harm doubt). beyond less a reasonable IV of Death Constitutionality Penalty Statute lastly Defendant contends death Illinois (720 (West 1996)) penalty statute ILCS uncon- is 5/9 —1 stitutional for several reasons. Defendant us to asks vacate his death sentence and remand the cause of a sentence than imposition other death.
A. Excessive Number Eligibility Factors of Defendant claims that the Illinois death penalty constitutionally statute has a number statu- excessive tory aggravating argues Defendant factors. adequately statute is “unconstitutional because it fails to eligible limit for the death class individuals penalty.” principles quite
The constitutional are established. eighth The penalty jurisprudence amendment death *35 Supreme the United States Court addresses “two differ- the aspects capital decisionmaking process: ent of the Tuilaepa and selection eligibility decision the decision.” 750, California, v. 967, 971, 759, 512 U.S. 129 L. Ed. 2d (1994). 2630, eighth 114 S. Ct. 2634 The amendment’s appropriate concern that the death be both penalty imposed requires perform a state to two randomly not
195 death impose the contradictory tasks somewhat 1, 6, L. Ed. Oklahoma, U.S. 129 v. 512 Romano penalty. (1994). 2004, 2009 1, 9, 114 S. Ct. 2d must First, genuinely a scheme capital sentencing for the death eligible the of individuals narrow class a more reasonably justify imposition of and must penalty to others compared the defendant sentence on severe sentencing A procedure of murder. state’s guilty found the discretion of suitably and limit the must direct risk of completely as to minimize the sentencing body so 7, Romano, 512 at action. U.S. arbitrary and capricious v. 2009, Zant 9, quoting 2d 114 S. at L. Ed. at Ct. 129 874, 235, 248, 2d 103 S. 862, 77 L. Ed. 462 Stephens, U.S. U.S. (1983), Georgia, quoting Gregg Ct. Ct. Ed. 2d 96 S. L. (1976). eligible a for the to render defendant
Accordingly, the the trier of fact must first convict penalty, death “aggravating of and find one circum- murder or guilt or its at either the equivalent stance” aggravating may The circumstance be phase trial. crime, separate in the definition a contained of factor, circumstance sentencing aggravating or both. The First, requirements. meet two circumstance must to a defendants convicted apply only must subclass of murder; may apply every it not convicted not Second, may circumstance aggravating a murder. 971-72, 512 U.S. constitutionally vague. Tuilaepa, at be (and Ed. 2d 114 S. at 2634-35 cases 129 L. Ct. therein). cited
Second, capital sentencing must state ensure that inquiry, under which decision rests on an individualized record of the defendant the character are A offense considered. particular circumstances of body’s consideration sentencing state cannot limit cause it to decline relevant circumstance that could any *36 196 impose The penalty. state cannot channel sentencing body,
discretion of the it but must allow to any consider relevant information defendant of- Romano, 7, 512 10, fers. U.S. at 129 Ed. 2d 114 L. at S. 2009, atCt. quoting McCleskey 279, v. 481 U.S. Kemp, 306, (1987). 95 L. Ed. 2d 107 S. Ct. 1774
Accordingly,
separate requirement
this is a
for the
decision,
selection
where the sentencing body determines
whether a
eligible
defendant who is
penalty
for
death
should receive that sentence.
requirement
The
of an
individualized determination is met when the sentencing
body can
all
mitigating
consider
relevant
evidence of the
character and record of the defendant and the circum-
stances of
Tuilaepa,
the crime.
a defined classification.
The selection
on the
hand, requires
other
sentencing
individualized
and must
expansive enough
be
to accommodate relevant mitigating
evidence so as to assure an
of
assessment
the defendant’s
512
culpability.” Tuilaepa,
U.S. at
Procedure under the Illinois death is statute familiar. A penalty hearing death in Illinois consists of a two-stage process. the first it During phase, is determined eligible whether a defendant is death A penalty. has guilty eligible defendant who been found of murder is (1) (2) 18; if: he or has of age she obtained the jury ag has found the existence of at one least listed (West 2000). 1(b) gravating 720 factor. ILCS The 5/9 — phase nonweighing first is a scheme deter statutory mine death statute not eligibility. place special The does any on emphasis single aggravating factor and does not any significance multiple aggravating accord added Coleman, (1989); People factors. v. Ill. 2d 344-45 (1992). Todd, 154 Ill. 2d “So as the People long aggravating sentencing body least one valid has found at may an invalid have considered that it also factor, the fact process aggravating of the formal factor does not infect appropriate penalty.” deciding Todd, is an whether death distinguish aggravating 2d The factors Ill. at 75. eligible. group persons are who death narrow limiting factors, the offense one these the absence of imprison qualifies for a term of the defendant murder *37 (1988). People 446, 484 Britz, v. 123 Ill. 2d ment. eligible for it that the defendant is If is determined penalty, during phase the then, of the the second death weighs any jury penalty hearing, court the or death aggravating mitigating factors and deter relevant any mitigating sufficient there are factors mines whether imposition penalty. preclude ILCS of the death 720 (h) (West 2000). 1(c), provides (g), Also, this court 5/9— meaningful appellate every of death 720 review sentence. l(i) (West 2000); 345; Coleman, 2d 129 Ill. ILCS 5/9 — 2d Britz, 123 Ill. at 484. consistently upheld the
Courts have
above-described
procedure
penalty
as
under the Illinois death
statute
process,
conjunction
“It
constitutional.
is this
with
beyond
any ag
requirement
proof
of
reasonable doubt
gravating
mandatory
[citation],
factor, as well as
review
sufficiently
persons
the class or
which
circumscribes
eligible
penalty.” People Williams, 147
v.
the death
(1991);
Young,
People v.
Ill.
173,
Ill.
128
2d
267-68
accord
(1989);
484-85;
1,
Britz,
2d
123 Ill. 2d at
Williams
64-65
(N.D.
1990),
Supp.
Chrans,
472,
aff’d,
F.
501
Ill.
742
(7th
1991) (“In sum,
death
linois death statute ILCS 5/9 — 2000)). When originally 1977, enacted in the statute listed aggravating seven 1977, factors. Ill. Rеv. Stat. ch. 1(b). 38, par. 1981, the By had grown eight. list Ill. 9— 1(b). 38, Rev. Stat. ch. par. By 1989, the listed 9— aggravating factors totaled 10. Ill. Rev. Stat. ch. 1(b). par. By 1991, the list contained 11 aggravating 9— (Ill. factors Rev. Stat. 1(b)), ch. par. ag 12 9— (720 1(b) (West gravating by factors 1992 ILCS 5/9 — (720 1992)), 14 aggravating by factors 1994 ILCS 5/9— 1(b) (West (720 1994)), 15 aggravating by factors 1(b) (West 1996)), ILCS 19 aggravating by factors 5/9 — (720 1(b) (West ILCS 1998)), and aggravat 5/9 — (720 (West 1(b) 2000)). ing factors ILCS 5/9 — Defendant contends that the death penalty statute is unconstitutional because it contains too many aggravat- ing argues: factors. Defendant
“The number and breadth of these factors do not suf- ficiently persons narrow eligible class for the death Indeed, penalty. high number of aggravating factors so greatly expands eligible the class death defendants that is imagine degree it difficult to a first murder defendant one, qualify who does not under at if least not several fac- *38 tors.”
According defendant, to this statutory sentencing scheme to genuinely fails eligible narrow the class of persons for the death penalty.
We cannot contention accept defendant’s for at least First, two level, reasons. on a literal practical and defendant’s contention is incorrect. Looking at the entire murderers, first degree universe of and murders the Il- linois death penalty genuinely statute narrows the class of eligible individuals for the death penalty and reason- ably justifies imposition a of more severe sentence on compared guilty those defendants to others found of first murder. See Zant v. Stephens, 462 U.S. degree (1983). 235, 77 Ed. 249-50, 2733, L. 2d 103 S. Ct. 2742 persons application limits its Initially, the statute can younger than 18 age. of Persons years older than 18 yet eligible will never be degree first murders commit penalty. the death examples of first
Further, are innumerable there fit of the statute’s any that do not within degree murders narrowly is tailored to provision factors. Each eligibility circumstances, murder e.g., fit a set of facts specific (720 emergency paramedic medical technician or of an (West 1(b)(12) 2000)), murder of a disabled ILCS 5/9 — l(b)(17) (West (720 2000)), of murder ILCS person 5/9 — l(b)(18) (720 ILCS community a volunteer policing 5/9 — (West 2000)), subject a an order person or murder of 2000)). l(b)(19) (West (720 Each protection of ILCS 5/9 — class of who can genuinely persons narrows the provision Further, require eligible penalty. be for the death any ag of proof beyond of a reasonable doubt ments appellate review direct gravating factor automatic as sentencing body of so and limit the discretion minimize arbitrary capricious completely risk Romano, 9, at at 129 L. Ed. 2d action. See U.S. 2009; at 481 U.S. 302- McCleskey Kemp, S. Ct. (1987). 1756,1772-73 L. Ed. 107 Ct. 2d S. rejecting reason for defendant’s contention A second assuming penalty that a death is more Even conceptual. many” aggravating have “too factors statute could eligible for the rendering degree a murder first many factors are “too aggravating death how penalty, Delaware, thorough decision, In a a trial court many”? death statute has number state whose Illinois, that of comparable to death-eligibility factors thoughtfully reasoned: not that at first blush the dispute the Court does
“While argument appears logical, it is disturbed defendant’s point of how one determines the which prospect causes the death aggravating circumstances number Is the generally unconstitutional. penalty statute be *39 200 engage
Court to in some mathematical as calculation might not; who be covered the statute and who is and if so, logical what would be reasonable and factors to include arbitrarily the formula? Can the Court fifty declare that aggravating many forty-nine circumstances is too but is permissible? assuming Even one could ever create tool that the percentage eligible would measure of defendants capital punishment, dividing where line is constitutionality and who makes that decision?” State v. 1996). (Del. Steckel, 994, 708 1000 Super. A.2d this Affirming reasoning, Supreme the Delaware Court that, concluded substantiation, absent factual remaining inquiry was whether an aggravat individual factor ing apply any degree could first murder defen dant, all aggravating not whether apply factors combined virtually degree all defendants convicted of first (Del. State, murder. v. 5, Steckel 711 A.2d & n.11 12-13 1998) (noting although many too aggravating fac may principles, tors violate constitutional the defendant had not shown such a limit had been reached in Delaware), Creech, 463, 474, v. citing Arave 507 U.S. 123 (1993). 200, 188, 1534, L. Ed. 2d 113 S. Ct. 1542 “ lastly We observe that ‘defendant not has demon record, or through strated on this sources which we notice, might judicial take that his empirically claims are accurate, that, correct, if they require or were this would ” the invalidation of the death penalty (Emphasis law.’ omitted.) Crittenden, 83, 155, v. People 9 4th Cal. 885 887, 930, (1994), Rptr. quoting P.2d 36 Cal. 2d 517 Wader, 80, 114, 5 4th v. Cal. 854 P.2d People (1993). Rptr. Cal. 2d Defendant does not any way. pres substantiate this contention in “As we are ently Harris, 37, 54, (Pulley informed” 465 U.S. 79 L. (1984)), say Ed. 2d 104 S. cannot Ct. we that the Illinois death statute is unconstitutional in this regard.
B. Challenges Remaining Defendant makes several additional constitutional *40 However, penalty death statute. to the Illinois challenges that the argument the previously rejected this court has because: is unconstitutional penalty Illinois death statute (1) the death at of phase not the second require, it does beyond a reason prove the to sentencing hearing, State sufficient mitigating that there are no factors able doubt (People v. penalty of the death preclude imposition to (2) (2002)); Davis, 349, it a places Ill. 372-75 205 2d precludes meaning that proof burden of on a defendant mitigation evidence v. Wil (People ful of consideration (3) it the liams, (2000)); permits Ill. 193 2d 376 “vague” aggravating factor sentencing body weigh to the a be sentenced “any of other reason” defendant should 2d Kirchner, 194 Ill. 558-59 (People v. death (4) sufficiently the risk of (2000)); it fails to minimize Ill. (Gilliam, 172 2d imposed death sentences arbitrarily (5) 522-23); eligibility the death factor for murder “cold, in a man premeditated committed calculated design” scheme or pursuant preconceived plan, ner (11) 1996)) (720 1(b) (West is unconstitution ILCS 5/9 — (2000)). Hall, Ill. 2d ally vague (People v. 358 persuaded Defendant has not us to overturn these deci sions.
CONCLUSION reasons, For of the circuit foregoing judgment the clerk Page County court of Du is affirmed. We direct January setting Tuesday, this an order court enter death, date on the sentence as the which shall Page County, of Du be the circuit court by entered in the manner carried out. Defendant shall be executed (West 1996). The by law. 725 ILCS provided 5/119 —5 of the copy a certified clerk this court shall send Corrections, in this to the Director of mandate case Center, and the warden Tamms Correctional warden of is confined. where defendant institution
Affirmed. Supplemental Opinion Upon Denial of Rehearing petition In his rehearing case, this single raises but a issue. It argument concerns his Illinois death statute is unconstitutional because it does require prove not the State to beyond reasonable doubt there no mitigating are factors preclude sufficient imposition of the death penalty. He Court, contends that a recent decision Supreme which we did not original address our dispositiоn of case, calls our of this question. resolution issue into Arizona, See Ring U.S. 153 L. Ed. 2d (2002). S. Ct. 2428 We distinguishable. find the case In Ring Court considered the constitutionality of death penalty scheme, Arizona’s wanting. found it doing so, the Court reversed an earlier decision which constitutionality *41 upheld of death penalty procedure in Arizona, and a portion Apprendi. disavowed related of Arizona, 639, 511, See Walton v. 497 U.S. 111 L. 2d Ed. 110 (1990); 496-97, S. Ct. 3047 530 at Apprendi, U.S. 147 459, 2366, L. Ed. 2d quoting at 120 S. Ct. at Almendarez- States, 224, n.2, Torres v. United 523 U.S. 257 140 L. Ed. (1998) 350, n.2, 1219, (Scalia, 2d 118 S. 377 Ct. 1237 n.2 J., dissenting, joined by Stevens, Souter and Ginsburg, JJ.).
The infirmity constitutional the Court identified in was that the death Ring penalty Arizona scheme removed from the jury the determination of required facts establish the defendant’s eligibility a death sentence— specifically, finding aggravating of factors. “Because Arizona’s enumerated as aggravating operate factors ‘the equivalent functional of an element of greater offense,’ a 494, U.S., 19, 530 at n. Apprendi, Sixth Amendment requires they by jury.” Ring, that be found a 536 at U.S. 609, 577, 153 Ed. 122 Ct. L. 2d at S. at 2443.
Defendant contends that his sentence was unconstitu- according tional to the He that reasoning Ring. argues of degree under the first murder lack statute, Illinois of
203 fact, death is a to preclude sufficient factors mitigating a before a by jury unanimously be found which must 720 ILCS to death. See can be sentenced 5/9— 1996). (West inac- (h) that it is contends Defendant 1(g), is authorized penalty that the death curate to conclude stage of after the first by jury by the facts found finding this second because proceedings, death penalty can penalty before that made, unanimously, must still be imposed. be Ring. support find argument appears to some
This
defen-
There,
arguments
one of Arizona’s
was
range
punishment
of
dant
“sentenced within the
he
convicted
jury
verdict” because
“was
authorized
murder,
specifies
Arizona
first-degree
for which
law
op-
only sentencing
or life
as the
imprisonment’
‘death
603-04,
L. Ed. 2d at
Ring,
However, dowe not find As a analysis, Apprendi threshold matter in of terms it is not beyond question finding that the at issue in the instant mitigating case—“that there are no factors sufficient to (720 preclude imposition of the death sentence” ILCS (h) (West 1998)) 1(g), properly characterized as —is 5/9— stage capital sentencing “factual.” The of second Illinois proceedings clearly bears marked resemblance to the balancing traditionally of in factors which trial courts engage determining impose in what sentence to within a statutory range, practice Apprendi explicitly of which approved. Apprendi, 530 U.S. at L. 147 Ed. 2d at 449-50, 120 S. atCt. 2358. diverges Ring
Moreover, this case
from
because
complaint
mitigating,
aggravat-
defendant’s
concerns
not
ing,
Apprendi,
factors. See
n.16,
530
atU.S.
147 L.
(noting
n.16,
Ed. 2d at 455
205 mitigating challenge Apprendi raised in a factor an were context. distinguishable.
Ring Also, in our we noted is as previously disposition original case, has of this court this People question. 349, Davis, 205 Ill. 2d v. this See decided (2002). Ap previously in stated As we have 372-75 prendi context, Supreme to the United States are bound follow
“We of the United interpretation of the Constitution Court’s (1990); People Gersch, Ill. 2d 398 People v. 135 States. (1948). v. See also Mаrtin Loftus, v. 400 Ill. 436 Wheat.) (1816). (1 Lessee, 304, 4 Ed. L. 97 Hunter’s U.S. the decisions of the Court But we are not bound to extend address, indeed purport to arenas it did not which which addressing, in order to find specifically it disavowed true especially a law this state. This is unconstitutional where, here, require as to do so us overrule settled would Wagener, in 196 Ill. 2d People law this state.” (2001). expression philoso- an of the The above remains accurate rehearing phy of this The for is denied. court. motion concurring: specially McMORROW, JUSTICE agree majority I convic- with defendant’s separately tions and sentences affirmed. I write should be argument that Illinois to comment on defendant’s penalty is fails death statute unconstitutional because it adequately eligible narrow the class defendants penalty. the death Georgia, 2d
In Furman v.
33 L. Ed.
U.S.
(1972),
Supreme
the United States
The views of Justice White were similar
ex
those
concurrence,
Justice
pressed
Stewart.
Justice
that,
penalty
White
under the death
at
observed
statutes
Furman,
issue in
“the
penalty
death
is exacted with great
infrequency even for the most atrocious crimes and that
meaningful
no
distinguishing
there is
basis for
the few
imposed
many
cases in
it is
from the
in
which
cases which
Furman,
it is not.”
standards 12”). man or of of one whim on the die, dependent or again Court Furman, Supreme after years Four penalty death constitutionality Georgia’s addressed 2d L. Ed. 428 U.S. Georgia, Gregg in statute (1976). at issue Georgia statute The 859, 96 S. Ct. to Fur- response in amended had been which Gregg, the death for which offenses range of man, narrowed the death Illinois’ current Much like available. penalty was provided statute Georgia statute, the amended penalty for the death eligible would be that a defendant met one of the murder if the circumstances only fac- eligibility or aggravating defined statutorily several tors. Georgia the amended upheld Court
The Supreme majority opinion Furman, was no there As statute. concurring opinions However, the two Gregg. White, and Justice Stewart
Court,
by Justice
authored
terms:
in similar
meaning of Furman
understood
is afforded
discretion
mandates
where
“Furman
grave
the determination
body on a matter so
as
sentencing
spared, that
be taken or
a human life should
of whether
and limited so as to
suitably directed
must be
discretion
*45
ac-
arbitrary
capricious
minimize
and
wholly
of
the risk
883,
Ct.
Ed. 2d at
96 S.
at
49 L.
Gregg,
tion.”
428 U.S.
JJ.).
Stevens,
Stewart,
and
of
Powell
(opinion
at 2932
giving
Furman,
a
of
held that as
result
“In
this Court
or not
impose
unguided discretion
the sentencer
murder,
was be-
penalty
for
penalty
the death
impose
freakishly, and
wantonly and
discriminatorily,
ing imposed
cruel
any given death sentence
infrequently that
so
220-21,
L. Ed. 2d at
statute, statutory aggravating limited factors of capital By narrowing number offenses. the number of offenses which death penalty was available to a few, select the amended necessarily statute reduced the arbitrary capricious risk of and sentencing. Justice White explained: types
“As the of penalty may murders for which the death imposed narrowly be become more defined and are limited to those particularly which are serious or for which the *** penalty peculiarly death appropriate is it becomes juries expect given reasonable to that discretion not —even impose penalty impose the death penalty the death —will portion they do, in a substantial of cases If so defined. longer being it can no said imposed be that the is wantonly freakishly infrequently or so that it loses its sentencing usefulness as a in (Emphasis original.) device.” Gregg, 222-23, 901-02, Ed. U.S. at 49 L. 2d at 96 S. Ct. (White, J., concurring, 2947-48 joined by Burger, C.J., J.). Rehnquist, This principle narrowly death penalty drawn —that statute the risk of arbitrary capricious reduces sentencing later explained these terms: —was
“[T]he risk of arbitrariness condemned Furman is a persons function of the of size the class convicted who eligible death penalty. are for the When Furman was decided, virtually Georgia included all defendants convicted robbery, rape, kidnapping, of forcible armed and first- degree opinions murder in that class. As the in Furman observed, large cases other ir- class of race and unquestionably played unacceptable relevant factors an in determining role which defendants would die and which However, would live. the size of the bemay class narrowed arbitrariness, sufficiently to reduce if risk even jury given complete mercy is then discretion to show when evaluating the individual characteristics the few eligible.” individuals who have been found death Walton v. Arizona, 639, 715-16, 111 L. U.S. Ed. 2d (1990) (Stevens, J., dissenting). S. Ct. following In cases United Gregg, Supreme States
209 that death principle has continued to reaffirm the Court narrowly be circumscribed: penalty statutes must arbitrary capri- [of constitutional [the] “To avoid flaw sentencing], aggravating circumstance must cious an eligible genuinely persons narrow the class of for the death penalty reasonably justify imposition and must of a compared on to others more severe sentence guilty found of murder.
[***] indicate, then, statutory aggravating Our cases play constitutionally necessary function at circumstances stage legislative they definition: circumscribe persons eligible penalty.” class of for the death Zant v. Ste 862, 877-78, 235, 249-50, phens, 462 U.S. L. Ed. 2d 103 77 (1983). 2733, S. Ct. 2742-43 Harris, 37, 50,
See v. Pulley also 465 U.S. 79 L. Ed. 2d (1984) 29, 40, 104 Ct. (noting S. 879 the “constitu- tionally necessary narrowing function of statutory ag- circumstances”); gravating v. McCleskey Kemp, 481 U.S.
279, 305, 262, 287, 95 L. Ed. 2d 107 S. Ct. 1774 (1987) (state may not death it impose unless has “rational criteria that narrow the judgment”); decisionmaker’s Tuilaepa California, 512 U.S. 129 L. Ed. 2d (1994) 750, 759, 114 S. Ct. (narrowing circumstances apply only “must to a subclass of defen- murder”). dants convicted of bar,
In the at argues case that the Illinois’ penalty death statute because, is unconstitutional when the statutory aggravating factors are considered aggregate, the statute “genuinely fails to narrow the of persons eligible Zant, class for the death penalty.” at U.S. 77 L. Ed. 2d at S. Ct. 2742. argument Defendant’s is an attack on the death scheme as a whole and essentially argument is the same addressed Supreme Court Furman. Defendant argues all, all, nearly degree or of the first murders in Illinois are rendered death eligible by large number aggravating factors contained within our death penalty
statute. Because
each statutory
aggravating
factor
*47
i.e.,
potentially subjects
a defendant
to the same penalty,
death,
it follows that
the circumstances
of the murders
by
covered
the various
aggravating
factors must be
Yet,
considered
equally reprehensible.
only a small
percentage
degree
first
murder defendants
actually
Thus,
root,
receive the death
at
penalty.
argu
defendant’s
ment
is that Illinois’
penalty
current death
scheme is no
Fur-
different
from the
in
schemes held unconstitutional
man. essence,
contending
is
that his death
sentence is “cruel and
in
way
unusual
the same
that be
(Furman,
ing
struck
cruel and
lightning is
unusual”
(1) firefighter police The murder victim was a officer or duties, performing killed in the course of his official duties, prevent performance of official or in retaliation performing for official duties.
(2) emрloyee The an of an institu- murder victim was facility any Department tion or of the of Corrections or agency similar local correctional and was killed duties, performing prevent course of official duties, performance perform- of official or retaliation for ing official duties. Or the victim was an inmate at such an facility. institution or
(3) degree The defendant has been convicted of the first individuals, regardless murder of two or more of whether or the deaths were the result of the same several acts. (4) The murder victim was killed as result train, or hijacking airplane, ship, public of an bus other conveyance.
(5) The pursuant defendant committed the murder to a contract, agreement understanding by or he which money anything receive or of value in return for commit- murder, ting the or procured the defendant another to com- mit the money anything murder for or of value. (6) The defendant murdered the victim in the course of predicate felony one or more offenses. The defendant must actually victim, injured have killed or and the defendant must have acted with the intent kill or with the knowledge strong that his acts created a probability of great bodily death or harm to the murdered individual or predicate another. The felonies this factor are: armed violence, robbeiy, armed robbery, predatory criminal sexual child, aggravated assault, assault of a ag- criminal sexual gravated kidnapping, aggravated hijacking, vehicular forc- detention, arson, arson, ible aggravated aggravated stalk- *48 ing, burglary, invasion, burglary, residential home calculated drug conspiracy, streetgang criminal criminal drug conspiracy, or the attempt any to commit foregoing felonies.
(7) The murder years age victim was under 12 the death exceptionally resulted from brutal or heinous cruelty. behavior indicative of wanton (8) The defendant committed prevent the murder to testifying victim from in prosecution giving a criminal or material assistance to the Or State. the defendant commit- ted the murder because the a victim was witness a prosecution gave or material assistance to the State. (9) defendant, The committing drug while one of several offenses, or while engaged conspiracy in a or solicitation to offense, commit such an murdered the victim or com- manded the murder.
(10) defendant, incarcerated, The while and while com- mitting felony a or engaged conspiracy offense while in a or offense, solicitation to felony commit a murdered the victim or commanded the murder.
(11) cold, The murder was committed in a calculated premeditated pursuant manner preconceived plan, to a design. scheme or
(12) emergency an The murder victim was medical technician, driver, paramedic, ambulance or another medi- official, by employed municipality cal assistance a or other killed in the governmental perform- unit and was course of ing official duties.
(13) drug a The defendant was the leader of criminal or the victim’s murder. conspiracy and caused commanded (14) intentional and involved the use of The murder was torture.
(15) The defendant shot the murder victim with a firearm fired from a motor vehicle.
(16) years age older and The murder victim was 60 or exceptionally brutal or heinous the death resulted from cruelty. behavior indicative of wanton (17) mentally a physically The murder victim was or person and the defendant knew or should have disabled that the victim was disabled. known (18) by any murder committed reason of The activity community policing volunteer or to person’s as engaging activity community prevent any person as policing volunteer.
(19) protection murder had an order of The victim against the defendant.
(20) The murder victim was known the defendant employed any school and person be a teacher or other grounds. the victim was on or near school 2000). 1(b)(1) (West See 720 ILCS 5/9 — shows, the Illinois death foregoing As the list Indeed, quite on its face to be extensive. appears statute three aggravating factors is almost the current number enacted and it was when the statute was first times what the Death Fixing country. in the See highest is one of the Trib., (noting Penalty, Chi. December *49 in Delaware that, 2000, only penalty in the death statutes each, had California, 22 factors aggravating with Illinois); A. than see also factors aggravating more Issues, Chambers, Political Aggravation, Ill. October ag of is the total number only at 32-33. Not but, addition, ag- in some of the high gravating factors
213
individually
felony-
gravating
The
factors are
broad.
(720
1(b)(6)(West 2000)),
factor
for
murder
ILCS 5/9 —
example,
predicate
Thus,
contains
15
felonies.
while
some
narrowly
requires
that factor is
in the
that it
drawn
sense
participation
killing
both
the defendant
actual
long
large
intent,
list
a
of felonies makes
number
degree
eligible.
“cold,
first
murders death
The
calcu
(720
l(b)(ll)
premeditated”
lated and
factor
ILCS 5/9 —
(West 2000))
also has broad reach.
death
To establish
eligibility
prove
factor,
under this
the State must
upon
the murder was
or
an
“deliberated
reflected
for
period
People Williams,
extended
of time.”
v.
193 Ill. 2d
(2000) (plurality op.).
1, 37
This court has held that the
period
may
of deliberation
little
be as
as three hours. See
People
(1996);
Brown,
Williams,
169 Ill. 2d
166-67
(plurality op.), citing Brown,
Furman and its can be read as guidelines determining narrowly for how death satisfy statute must be drawn constitutional concerns. Penalty See S. & Rivkind, Shatz N. The Death California Requiem Furman?, Scheme: L. N.Y. Rev. (1997).Regardless ultimately drawn, of where the fine is question however, the of whether the constitutional *50 a factual one. narrowing of has occurred is requirement words, to determine L. Rev. at 1318. other N.Y. is nar penalty actually whether the Illinois death statute defendants, pool death-eligible the we must rowing of scope respect of the statute is with know what the idea, example, must have some what actual cases. We degree poten of murder defendants are percentage first percentage of those tially eligible death what Defendant, the death actually penalty. defendants receive however, supplied has not us with this information. relatively few first Although might suspect one eligible, suspicion in Illinois are not death degree murders is for evidence. cannot answer not substitute We empirical without argument pertinent defendant’s defendant’s contention the death Accordingly, data. case, in this not pеnalty statute is unconstitutional fails notes, law, rather, majority as as matter but of has [his] because defendant failed “substantiate 2d at way.” in 206 Ill. 200. any contention constitutional rejection The of defendant’s court’s not as diminish this case should be viewed argument he of issue which importance general policy ing which Among organizations raised. numerous has the Illinois death scope penalty examined the of have that, unanimous as a matter statute, agreement there is death statute is penalty the Illinois legislative policy, is among organizations these overbroad. Foremost on Punishment. Ryan’s Capital Commission Governor Ryan commission,2 created Governor 14-member This Illinois, system study capital punishment governor making “recommendations charged with former or current included both 2The commission members For a list the com prosecutors and members of the defense bar. on members, Report the Governor’s Commission see mission 2002). Punishment, Preamble, (April See through at v vii Capital Issues, Vock, 18. Deadly Equation, Ill. June also D. application ensure the and adminis ‘designed to further just, fair and ac penalty tration of the death in Illinois is ” recently curate.’ Ill. B.J. at 304. The commission has principal, issued its One of the commission’s report. unanimous, ag is that the number of recommendations statute gravating penalty factors the Illinois death should be reduced: appeared
“It to the members of the Commission that to an effec- the extent that the death was to remain *51 in achieving objec- tive of its statute terms constitutional narrowing penalty tive of the the class of cases to which of applied, eligibility should be the number factors should *** unanimously be reduced. The members Commission expressed proliferation eligibil- the view that the current ity factors, statute, as found in Illinois death penalty was unwise.
[***] Reducing eligibility number of lead to factors should uniformity in way more in which the penalty death is Illinois, applied greater in provide clarity in the statute, retaining punishment capital while for the most scope heinous of homicides. The of the statute should be Report narrowed.” of the Governor’s Commission on 2002). Capital Punishment, (April ch. 67at Attorneys The Association, Illinois General in response to the report of the commission, expressed Governor’s has agreement our death penalty ovеrly statute is broad and has recommended that the number of aggravating factors in half. Crimmins, be cut See J. Object Prosecutors Quarter Reforms, Daily Death Penalty Chi. L. Bul- letin, 17, 2002, May at The assembly 24. of the Illinois State Bar recently Association has in also voted favor of reducing the number of aggravating factors. See J. Brunts, Hold, Supports Review, ISBA Execution Case Chi. Daily Bulletin, L. June at 1. Even before report, opponents commission’s both and advocates of the death penalty community the academic had recognized the need to scope reconsider and reduce the See, Blecker, R. penalty e.g.,
of current death statutes. Killers, Worst, the Worst Among Searching for (“Execution B1 Post, December is Wash. society’s sanction, rarely be threatened ultimate death more must rethink the applied rarely. even We *** If rethink and refine our we penalty, revise statutes. converting end right, up it I am convinced we will death presently thousands of murderers on sentences of remaining The few hundred monsters we should row. McCord, George An execute”); D. Letter Governor Open System, How to Death Ryan Concerning Penalty Fix the (2001) factors Loy. (“Aggravating L.J. U. Chi. jurisdiction they are While render every over-inclusive. death-eligible, murderers almost all the absolute worst not as they also render defendants whose crimes are death-eligible”). egregious factor is added aggravating
Each time an additional statute, arbitrary to our the risk of penalty death sentencing Ryan is increased. As capricious Governor vetoing twenty-first fac aggravating noted year last to almost passed legislature,3 tor “as we continue to our death annually eligibility add factors statute, and discretion introduce more arbitrariness we *52 edge capital punishment closer to previous and ever our by held unconstitutional system effectively that was George in 1972.” Governor Supreme United States Court The federal at 3. Ryan’s Message, August Veto penalty that death statutes be constitution mandates proposed narrowly legislature drawn. As considers (see A. penalty the Illinois death statute reforms to Penalty System Future Illinois’ Death Chambers, The of Hands, 2002, at Issues, Ill. June is Now in Lawmakers’ have a defendant aggravating 3The factor would made new the murder committed eligible for death where organized gang. See 92d Ill. Gen. the activities оf an furtherance of Assem., 1812, 2001 Bill Sess. House 6) a matter that reducing the breadth of the statute is given should be serious consideration. HARRISON, dissenting:
CHIEF JUSTICE The culminated in Ballard’s proceedings which fatally of death flawed convictions sentence were enacted they comport because did not with the new rules governing our court the conduct of cases which the seeking penalty. State is the death For the reasons set my Hickey, forth in v. dissenting opinion People (2001) (Harrison, C.J., dissenting), Ill. 2d 631-36 procedures contained in rules are indispensable those an accurate achieving guilt determination of innocence or and are applicable capital coming to all cases now before tried, us. Because Ballard was convicted and sentenced rules, without the benefit of the new his convictions and vacated, death sentence should be and the cause should be remanded to the circuit court for new trial. if
Even Ballard not were entitled to the benefit of the rules, new his sentence of death could not stand. For the in my reasons set forth concurrence and partial partial Bull, in People (1998), dissent v. 185 Ill. 2d the Il death penalty linois law is void and unenforceable because it violates the eighth fourteenth amend (U.S. Const., ments to the United States Constitution XIV) VIII, amends. I, and article section of the Illinois (111. 2). I, Constitution § Const. art. Absent new rules, there is no for altering basis that conclusion. At a minimum, Ballard’s sentence of death should therefore vacated, be and he should be sentenced to a term of (West 1996). imprisonment. l(j) ILCS 5/9 — KILBRIDE, JUSTICE dissenting: also For the in my reasons set forth dissents in People (2001) Hickey, (Kilbride, J., 204 Ill. 2d 636-39 dis senting), People v. 204 Ill. 2d 581-85 Simpson, (2001) (Kilbride, J., dissenting), defendant’s convictions *53 the trial
and sentence should be set aside because in accordance with the proceedings were not conducted cases. The supreme governing capital new court rules court’s procedures capital prior adoption cases this adequately of the new rules were unreliable and did not rights. Consequently, a defendant’s constitutional protect to address promulgated since the new rules were regularly oc deficiencies of constitutional dimension applied the rules must be system, curred under the old currently pending on retroactively capital to all cases Hudson, v. 117, 126 People 195 Ill. 2d appeal. direct See v. 314, 328, Kentucky, (2001), 479 U.S. citing Griffith (1987). For L. Ed. 2d 107 S. Ct. those reasons, I respectfully dissent.
(No. 89141. ILLINOIS, Appel THE STATE OF THE PEOPLE OF lee, PULLIAM, LATASHA Appellant.
Opinion October 2002. filed