*1 253 In of that argu in this case. original proceedings support cited, ment the has as authority, supplemental 496, 440, Booth 482 96 L. Ed. 2d Maryland (1987), v. U.S. 121 Ill. 2d 2529, 107 S. Ct. v. Simms People issue, however, 259. We decline to consider the additional the limited given purpose proceedings. present stated, For reasons of the circuit court judgment of Cook is of this court is di- County affirmed. clerk 19, rected to enter an order setting Tuesday, September 1989, death, as the date on which sentence previ- entered in the ously circuit court of Cook is to be County, carried out. The defendant shall be executed lethal injec- tion in the manner section 119—5 of the Code provided by of Criminal Procedure of (HI. Rev. Stat. ch. The clerk of this court shall send a certified par. 5). 119— of the mandate in this case to the Director of copy Correc- tions, Center, to the warden of Stateville Correctional to the warden of the institution where defendant is cur- rently confined.
Judgment affirmed. CALVO, JJ., WARD took no the consider- part ation or decision of this case.
(No. 63438. ILLINOIS, THE PEOPLE THE OF STATE OF Appel- lee, JOHNSON, v. Appellant. BRIAN 20, 1989.
Opinion April filed *4 De- Biebel, Jr., Stone, N. Public Randolph Paul P. Assistant fenders, Cunningham, E. Chicago (Richard Defender, counsel), for appellant. Public General, of Springfield, Hartigan, Attorney Neil E of Chicago M. State’s Daley, Attorney, and Richard General, of Chi- Madsen, Attorney M. Assistant (Terence Kevin Sweeney Kenneth T. McCurry, cago, of coun- Peters, Attorneys, Assistant State’s A. Lynda People. for the sel), of the court: the opinion RYAN delivered
JUSTICE indict- Johnson, charged by Defendant, Brian one count of Cook County in the circuit court ment *5 258
of 1983, 38, intentional murder Rev. Stat. ch. (Ill. par. l(aXl)), two counts of knowing (Ill. murder Rev. Stat. 9— 1983, 38, ch. three of par. counts murder 1(a)(2)), felony 9— ( 1983, 38, Rev. Stat. ch. par. 1(a)(3)), two Ill. 9— counts of attempted (Ill. 1983, murder Rev. 38, Stat. ch. par. seven counts of armed 4)), violence (Ill. Rev. 8— 38, Stat. ch. 1983, par. 2), four counts of aggra 33A — vated battery (Ill. 1983, 38, Rev. Stat. ch. par. 4(a)), 12 — three of counts armed robbery (Ill. 1983, Rev. Stat. ch. 38, par. 2(a)), one of (111. count theft Rev. Stat. 1983, 18 — 38, ch. 1), and par. one count of unlawful restraint 16— (Ill. 1983, 38, Rev. Stat. ch. par. These 3(a)). charges 10 — stemmed from an in which incident one man was killed, two others were wounded personal property was taken from them. The defendant entered a of plea and, trial, after a guilty bench was found of all of guilty The trial charges. court rendered a factual finding had committed the murder in the course of an armed A death robbery. sentence hearing was held and the again waived a jury. The court found there one or of existed more the factors set forth in section 1(b) Criminal Code of 1961 9— 38, (Ill. 1983, Rev. Stat. par. ch. 1(b)(6)(c)) there 9— existed no sufficient mitigating factors a sen preclude tence death, of death. Defendant was sentenced was sentence Ill. 2d R. stayed (107 609(a)) pending appeal 1970, VI, to this court (Ill. Const. art. 107 §4(b); Ill. 2d R. The 603). defendant was also sentenced serve for each of 30 of two counts years attempted murder, for each of two counts armed vi years olence, 15 for each three counts armed years theft, for years four and three for robbery, unlaw years ful The restraint. counts merged. were all remaining trial,
At the State presented following evidence. victims, Foss, and the three Frederick Hinshaw, Arthur all Worley, together Ellis worked The defendant was in Chicago. Tire store at a Goodyear manager mechanic. Hinshaw as a employed taken had previously or five years the store and four 1984, In October early the defendant. hiring part training pro- Goodyear late in attending defendant was fired 10, 1984, Hinshaw and on October gram Elgin, him. weekly payday regular
October had at At the time the defendant employees. Goodyear According accumulated. pay least one week’s vacation *6 monies owed to Hinshaw, Goodyear policy provided at the not be disbursed would discharged employees em- from Akron to the instead sent store, but would be the on At 5:30 October p.m. residence. ployee’s store of the Goodyear entered the service area defendant and mechanics, Johnson to other Robert and two spoke at this also in the service area Ellis. was Harvey Worley not. The defend- and Foss were time, Hinshaw although there. if his tools were still ant asked and Ellis Johnson he were, the defendant said that they When they replied them, left the next to and then get would return the day store. 10 minutes later. Worley,
The defendant returned Ac- there, all about to leave. and Foss were Hinshaw trial, the was defendant cording testimony to Worley’s men: said to the three The defendant holding gun. Hin- He then said to not going anywhere.” “You are “Art, or: me, you “You fired didn’t shaw, you,” either: Both victims Hinshaw and Foss. fired me.” He then shot and Foss testified that Hinshaw fell to the floor. Worley to Worley The then ordered shot twice. defendant were floor, complied. on the and get Worley down and to Hinshaw the defendant walk over saw Worley approach He also saw the defendant take his wallet. from his body. him take Foss, anything did not see but him and asked Worley then approached The defendant what had been done the money. Worley replied with bank, had not taken it the left it in they to but had the safe. The defendant come Worley get told to up him the store, into office area of the the safe where was locked, located. The safe however, was the two re- turned to service area.
The defendant ordered him his Worley give money. Worley emptied his nine dollars pocket, placing on a change table. The defendant then asked him whether all he had. When affirmed that Worley it was, the defendant him told to hand keys over car, his then Worley complied. defendant told get on the floor. When he Worley complied, had defendant shot the first Worley time, through the hand which Worley clasping his head. top The bullet also grazed scalp. rolled over and Worley him again. shot The defendant went and took from through Worley’s pockets him. As $120 the defendant was saw leaving, apparently Worley “Oh, move. are still you Saying, moving,” side Worley stabbed the left with a knife. testi- Worley fied that took the knife from inside of the green army jacket the defendant was wearing. Wor- seen ley had never the knife at work before. Defendant then door, left store through returning back *7 turn out briefly to the lights.
Hinshaw’s differed in some from testimony respects Hinshaw, Worley’s. According the defendant said once, one word, before “stop,” shooting hitting Hinshaw him in the stomach. heard Hinshaw Foss pleading defendant, him to and telling stop “You don’t saying, have to these extremes.” heard a go Hinshaw shot and fell to the him. Foss floor beside He could hear Foss He heard the defendant breathing. say Worley, “He’s to tell.” The walked going over Foss and shot him a second time, searching his after he pockets Hinshaw a second The then shot had done so. contained wallet, ap- his which time, taking afterwards proximately $100. Foss died of two evidence, to the medical
According for a to the chest. was treated Worley wounds gunshot abdomen, gunshot in his and wounds severe stab wound re- chest, hand. A bullet was right to his left scalp, gunshot from his left arm. Hinshaw had two moved to his left wounds, upper one to his stomach and one remains arm. The his stomach pierced bullet which in his lodged backbone. Danzl and after the Officer
Shortly shootings, Joseph for the defendant and his to look partner assigned were for car. the officers night, responded Later Worley’s seen on South to a call them the car had been telling from the store. ar- Avenue, three blocks Michigan They arrested the defendant and a companion rived there and in the car. sitting arrest,
After a green army jacket the defendant’s his given were taken from him. After being $68 Miranda, the defendant told the officers warnings, the rear he had under a on gun green carpet placed on re- gun of a house South Coles Avenue. patio covered there on October 20. writ- gave police
On October statement, evidence. Ac- ten which was admitted into statement, the defendant was owed two cording He when he was fired Hinshaw. waited weeks’ pay his until the next October payday, for money he if Hinshaw at about 3 When asked p.m. then called in, Hinshaw “What replied, paychecks, his paycheck and hung up. I don’t no paycheck you,” have left at 5:45 but p.m. The defendant to the store went returned, he pointed getting without When money. Hin- him for the money. at Hinshaw asked gun You here, out of you young punk. “Get replied, shaw *8 shoot, don’t heart one now.” enough drop right have The defendant then shot Hinshaw and Foss twice. twice He to the office found that the safe locked. went but was After he returned he asked if “tell Worley would Worley him,” on said He then shot Worley Worley yes. He took from all three men and twice. wallets Worley’s car After he returned to the at keys. leaving, store about 9 and took car. p.m. Worley’s
The defendant no evidence in his own presented be- half. The raises one to the challenge of his trial. He claims that he guilt-innocence phase was denied effective assistance of counsel because his attor- the mur- guilt of defense was to concede ney’s theory Foss, der of not to the armed robbery Frederick but This on the felony charges. theory murder based view that the evidence of for the guilt charge murder but that the defendant would not be overwhelming, eligible for the death if it was established penalty the murder did not occur in the course of a felony. trial,
At the defendant was two represented pri- retained of defense vately attorneys. theory became clear during opening statement when counsel stated “the issue this case is not whether or not Brian murder, Johnson committed a it Anthony is whether or in the course of a did he commit murder.” felony in his proceeded opening by setting Counsel statement This forth his view of what the evidence would show. confession version was consistent with defendant’s num- and his at the On a testimony sentencing hearing. ber of occasions counsel stated that the defendant would however, guilt at the testify he was not called testify; sentencing at the trial, though testify he did stage hearing. had worked
Counsel explained ini- He was killings. for four Goodyear years prior victims, including friends with all of the good tially Hinshaw, whom he Arthur enjoyed relationship Sometime which was “almost father-son-like.” during *9 1983, began Christmas of to sour when relationship a over disagreement the two had the of a purchase transmission for the The defendant’s car. defendant was entitled to an for the transmission employee discount but it after a dispute Hinshaw, received with which was in resolved defendant’s favor after he to complained Hin- shaw’s superiors.
The defendant on several occasions attended Good- in training Elgin, sessions Illinois. year to According statement, counsel’s opening October defend- ant one late for arrived a session day training because of his car. problems with When the defendant attempted to enroll at the he session, was told he training that could only be admitted with Hinshaw’s permission. Hinshaw, however, told the operators school to send the defendant to work. he to work, back When returned Hinshaw fired him. After his the defendant firing, con- tacted the zone manager and inquired about the that pay him was due to he and whether could be transferred to another store.
Counsel on proceeded by stating that October Friday payday Goodyear, awoke at 10:30 began a.m. and to drink alcohol. The zone manager had told him that he to a was entitled paycheck that day, but when he called the store Hinshaw told him he had no him for hung However, and he still paycheck up. planned to to store to see go the about his the check. On toway friend, the store he met a “L.C.,” a dealer. drug house,” two went to “dope they spent where after- alcohol, noon and using cocaine, marijuana laced with afternoon, “PCP.” drug Late realizing he Goodyear close, was about proceeded store. a gun He carried him he kept which for protection on traveling while no public transportation, but knife. counsel the defendant would testify Defense claimed *** Goodyear his intention that was to “only day go due, his that was the checks that were due get and and to him the zone told him were owing manager Tire.” to him at owing Goodyear stated first went Counsel that when defendant victims, he the three other people store saw but in the he left. He across were store so then went when reached the check- beer, street some he buy yet no He told he had money. out counter realized to “hold across cashier his beer” while he went street, his it at intending to collect check and to cash store, Hinshaw, At the Foss nearby currency exchange. for were alone asked Worley him, had no check. Hinshaw said he money that he out his Hinshaw remarked pulled gun. *10 the a and did not have nerve to shoot. The punk was then the three men. upon defendant fired saying: Counsel concluded his statement opening by Mr. did no act “The evidence will show that Johnson of theft, no from robbery, taking no act of act of the armed of of until he had fired and person any people these after *** killed Frederick Foss. not Judge, the in this case is or a issue not whether not a murder was committed. The issue is whether or fel- murder ony was committed. that, evidence,
And I feel at the of the confident close a court will that Mr. Johnson not commit fel- the find did guilty things, he is other but he ony murder. And that of felony not commit murder. did I the to enter such a respectfully request And Court finding.” no on his own defendant evidence
Though presented trial, the dur- phase the of during guilt-innocence behalf did each of trial, course of counsel cross-examine ing elicit that witnesses, to attempting the State’s intent to store with the rob did not enter defendant of Counsel Ellis the victims. cross-examined any Worley the defendant and also regard to his with relationship as on of the He day shooting. to what happened able to elicit that saw the defendant take never Worley items of from Foss. While cross- any property personal officer, him counsel examining arresting questioned he had with the concerning conversations introduced defendant’s confession. Much of the confession corroborated the he did not theory go the store the intent harm or anyone, rob but get paycheck. During his crossrexamination Hinshaw, he elicited Foss had on him the re- daily in cash and ceipts a number of checks —at $900— time of the but shooting defendant did not take any that money.
Defense counsel began closing stat- argument by Honor, ing, “Your we did in our admit state- opening ment that Brian Johnson committed murder.” He then argued that had intended rob any until after victims he had shot Foss, Frederick out that he pointing never asked of the victims for any any and did not take money cash $900 found in Foss’ He concluded pockets. stating: any part state,
“Nowhere in they the State’s case did prove or beyond reasonable doubt that Brian Johnson attempted to commit an armed robbery in the commission shooting upon the three That was individuals. an *** afterthought. felony State cannot show a mur- [T]he der here.” application contends, that this appeal, on defense
denied him effective of counsel. In People v. assistance Albanese 504, (1984), 526, 104 Ill. we adopted 2d the Strickland standard for of counsel set out in competence v. Washington 668, 80 674, 466 U.S. L. Ed. 2d S. In of test, 104 Ct. 2052. the first part two-part the must prove that counsel made errors
266 deficient, so that he
so serious, performance and his the guaranteed as the “counsel” functioning sixth States the amendment United these so Second, he must deficiencies prove Constitution. trial, him as to of a fair prejudiced deprive 687, 80 L. (466 a trial result is U.S. at whose reliable. 693, 2064.) empha- Ed. 2d at 104 S. Ct. at Court of must be performance sized that counsel’s scrutiny inher- “[bjecause of the difficulties deferential highly evaluation, a court must indulge ent making that counsel’s conduct falls within strong presumption of professional wide reasonable assistance.” range 694, at 689, 80 L. 2d at 104 S. Ct. (466 U.S. at Ed. It re- 2065.) scrutiny rigid warned that intensive “and could dampen assistance quirements acceptable counsel, discour- ardor and impair independence cases, and undermine age assigned acceptance 690, 80 client.” 466 U.S. at attorney trust between 695,104 Ed. 2d S. Ct. at 2066. L. at There where the two- exceptional are circumstances v. United States Cronic In test need not be part applied. 2039, 657, 80 648, L. Ed. 2d 104 S. Ct. (1984), 466 U.S. entirely fails to the Court stated that where “counsel case to adversarial subject meaningful the prosecution’s Amend- there has a denial Sixth testing, then been ment makes itself rights adversary process pre- at added.) U.S. (466 unreliable.” sumptively (Emphasis at In 80 2d at S. Ct. some 2047.) L. Ed. instances, will be ineffectiveness of counsel established Strickland without test. As examples, application has com- Court there remarked where been then stage or at a critical denial of counsel denial plete established, instead will be need not be but prejudice 667-68, at L. Ed. 2d at 658-59, U.S. (466 presumed. Strickland also 2046-47.) 104 S. The Court Ct. to such circumstances. It stated made reference *12 267 or where the State interferes with counsel’s assistance of where counsel is burdened an actual conflict inter Strickland, est then need not 466 prejudice be shown. U.S. at L. Ed. 2d 696, 104 S. Ct. at 2067. case,
In a recent this court has forsaken two-part Cronic test Strickland and found that presump v. (People Hattery tion standard was met. 109 Ill. 2d The 449.) defendant’s ineffective-assistance-of-counsel argument relies Hattery. Hattery on was a mainly jury trial in which the defendant the death penalty received for the of murder a mother and her two children. The evidence over, showed the defendant stood guard murdered, eventually the victims while a codefendant at tempted to from drugs obtain the woman’s The husband. to murders, defendant confessed that the explaining had codefendant instructed him to kill the victims and that the codefendant had threatened harm the defend ant and his if he family disobeyed. Hattery on
Counsel in of occasions number con- ceded defendant’s guilt and that he was for the eligible death statement, In his penalty. opening counsel stated:
“ ‘We asking you are not to find Charles Hattery not deliberations, At guilty. your the end of you will find him of guilty asking you murder. We are to consider the evi you today dence that hear and in the days next few to ex plain why he did the thing horrible did. you Once him guilty, proceed you have found we will will find him for eligible the death penalty. question, and the only question facing you, will be to impose whether on penalty death Charles for Hattery trying save the ” life of his Ill. family.’ 109 2d at 458-59. Counsel an thus made concession to the unequivocal murder charge, charge brought against Moreover, defendant. counsel stated that should found be the death eligible penalty, relieving from that decision as jury Throughout guilt- well. trial, no theory counsel advanced
innocence phase own, made no defense, no evidence of their presented to hold the State attempt and made no closing argument Rather, counsel proof. attempted its burden cross-examination, that the defendant’s actions show, is compulsion Because product compulsion. were murder, is a charge mitigating a defense to a but *13 to of the death preclude imposition pen- factor sufficient to dur- attempting develop counsel was apparently alty, a which would guilt-innocence phase theory the ing sen- in the death the preventing penalty prove helpful tencing phase. that the defense counsel’s repre Hattery,
In
we held
case “to the
not
the
subject
sentation did
prosecution’s
the sixth
required by
adversarial
‘meaningful
testing’
a
trial
of
amendment,”
granted
regardless
new
Ill.
464,
of
2d at
overwhelming proof
guilt. (109
quoting
L.
United States v. Cronic
648, 656,
466 U.S.
80
(1984),
2039,
In
this
657, 666,
2d
104 S. Ct.
2045.)
reaching
Ed.
Hattery
conclusion,
relied on a number of
cases where
it
clear that the
ineffectiveness was
when was
presumed
to
contradictory
po
the defendant’s
theory
counsel’s
Francis v.
720
Spraggins
(See
(11th
1983),
sition.
Cir.
murder,
defendant,
1190
took
(the
charged
F.2d
crimes,
coun
knowledge
but his
stand
denied
People
v. Fis
guilt
jury);
conceded defendant’s
sel
537
cher
119 Mich.
326 N.W.2d
(1982),
App.
defense,
an insanity
in
of
(defendant
support
testified
ill);
for
of
finding
guilty
mentally
counsel asked
a
but
but
v.
State Uplinger
(Minn.
(during
doWe believe to the subject prosecution’s that counsel failed entirely that such testing to adversarial meaningful case Cronic standard that or, argues, is met as the defendant Hattery. ad- facts of It was fall within the squarely they shot the Foss, the defendant killed Frederick mitted However, with took personal other victims and property. and a testify of the victims to confession living two to acts over- defendant, the evidence as these was In is ev- overwhelming there whelming. situations where defense, no if counsel all guilt of contests idence of he is to lose with the trier credibility liable charges de- legitimate it where a charges fact when comes was Though exists. concession of murder fense mat- made, to trial did for going preserve would waived. necessarily that a have guilty plea ters mur- concede each element of attempted Counsel did not murder, violence, aggravated battery, armed der, felony restraint. Instead armed theft and unlawful robbery, meet its of State must burden argued counsel it doubt and that was unable a reasonable proof beyond Un- so, charge. as murder especially felony do Hattery, “even the pre- counsel not abandon like did the- There asserted a defending client. tense” not just theory charges, defense to a number ory of during open- this mitigation, theory pursued cross-examination. during ing arguments and closing for contested Also, vigorously attorneys the death eligible penalty, the defendant was Hattery conceded this issue. attorney whereas on the defendant’s consent obtaining as Lastly, those record, holding does not fall within case *15 Hattery neces- a reversal was relied on in where cases
271 of after it clear that the defense was sary became theory contradicted the of the actions defendant.
Because
not
must
prejudice may
be
we
presumed,
ap
Strickland test
to
if
has
determine
there
been in
ply
effective
of
assistance. Claims
ineffective assistance of
counsel
be
of on the
that
may
disposed
ground
defendant suffered no prejudice
errors,
from the claimed
without
the first
deciding
prong, whether
errors
to
than
were serious
constitute less
enough
reasonably
(Strickland,
976,
effective assistance.
at
U.S.
L.
699,
2d at
Ct. at
Ed.
104 S.
Under
the second
2069.)
of Strickland the defendant must show that there
prong
that,
errors,
is a
probability
“reasonable
absent
factfinder would have had a reasonable doubt respecting
guilt.” (466
U.S. at
272 confession, trial via his was admitted at
tencing hearing witnesses’ testi- the other and it corroborated essentially conclude to a reasonable cannot therefore We mony. the have acquitted the court would probability defendant had it heard his testimony.
(cid:127) of challenges The defendant next raises a number hearing. his sentencing moved for conviction, the State
After the defendant’s a The defendant waived hearing. jury a death penalty At the for the and death eligibility penalty phases. both to the testimony the hearing, parties stipulated eligibility The trial court found that be trial. presented during old at the time of years the was over cause the murder in and had committed shooting he was eligible armed felony, robbery, course of a forcible Stat. ch. (Ill. par. for the Rev. penalty death 1(b)(6)). 9— hearing,
Before the of the death phase penalty second re- to a The State right jury. waived his again trial, adduced upon lied for evidence aggravation evidence and also introduced by stipulation use of in 1982 for unlawful defendant had arrested been and a completed he had received which weapons, in The defendant’s motion term of court supervision. limine to bar using the State from evidence overruled. in following evidence
The defendant presented mother testified The defendant’s mitigation. children. She had of four youngest defendant was the defend- father when from defendant’s separated her children She age. supported ant was four years computer opera- and was a variety jobs at a working mother The defendant’s hearing. tor at the time of the a “good boy” had been also testified that in- never that he had been when he was growing up, in that he had not been gangs, volved in fights high or after school. juvenile trouble with the as police He school above-average grades high received school, he graduated high after four While years. school for Good- Goldblatt’s, high worked for and after year. from his mother’s defendant had moved away
house a of months and his couple shooting, before mother had not seen him for two or three weeks prior the shooting. fired, She was not aware that he had been alleged no of his alcohol and expressed knowledge She stated her that he would learn drug problems. belief from his mistakes. Thomas,
Russell family, friend defendant’s *17 stated that he had known the defendant for 20 He years. obedient, nonviolent, testified that the defendant was and truthful. from Addy Similar was received testimony Peterson, mother, the best friend of the defendant’s Nelson, Dianne a friend and of the defendant. neighbor Watson, Gala who had the defendant’s girlfriend been from 1981 until also testified. She stated that friends, defendant drank his in but never her pres- ence. He never into carried a or got fights, gun, lied “nice,” “sensitive,” cheated. She him described as “very energetic,” “outgoing.” She testified she and, thought would learn from his mistakes if ever released from would be a useful of soci- prison, member sisters, Gala Watson’s ety. Jacqueline Thompson Smith, Sharlon testified to much the same effect. They understanding,” described the defendant as “lovable and “a sweet and someone who wanted to person,” “always someone else.” help from the friends and neighbors, defendant’s
Apart victims, one of the defendant’s Ellis also testified Worley, on his testified that he had worked with behalf. Worley for the shooting. During two before years into time, get he had never the defendant known or
fights arguments. The defendant was a peaceful per- son. He also considered the defendant friend, his as were Frederick Foss and Arthur Hinshaw. testi- Worley fied that “serve the should time that’s But I given. go wouldn’t for the death penalty” cross-examination, crime. On he stated that if he had survived, died and Foss had he would have wanted Foss request defendant not be the death given penalty.
The defendant testified in his He own behalf. stated that his father left the in 1977 or 1978. In family addi- tion to the facts mother, attested to his by he stated the After following. business, Goldblatt’s went out of he was hired Arthur Hinshaw to work for He and Goodyear. Hinshaw well and he got along very considered him a “father figure.” After Ellis Worley began work at the store, him, the defendant became close to and also con- him sidered a father He figure. as close to Fred- Foss, erick nice, but found him to abe man. friendly During career at Goodyear, twice at- tended and successfully completed two-week training programs Elgin.
According defendant, an incident December 1983 changed his with Hinshaw. relationship On that date, Hinshaw sold the defendant a transmission for his car. He him the charged customer regular price. defendant afterwards learned from his co-workers that *18 he had overcharged been because he was entitled to an employee discount as well as for time pay it took him to the transmission. The change defendant received these benefits after only calling the auditor and company his union representative. Hinshaw refused to to speak the defendant after this incident. The defendant began to receive from for reprimands Hinshaw absent or being On one occasion tardy. Hinshaw accused the defendant tires and tried to have him stealing fired. The defend-
275 com- after Hinshaw days, ant was two but suspended in that no tires were an and learned inventory pleted and Hinshaw the defendant was reinstated missing, fact him. to apologized to a third train- begin
The defendant was scheduled 1984. He arrived Elgin course October ing early Hinshaw, one late. The instructor called training day told him not to admit the defendant the program who him and to send back to When defendant Goodyear. him returned to Hinshaw told he was fired. Goodyear, The defendant contacted the district and his manager union and assured the defendant representative, they would look into the matter. they 19, 1984,
On October awoke about noon. He drank a considerable amount of beer and smoked a He felt from this marijuana cigarette. high on for the rest of the He then called point day. Goodyear him Frederick Foss. Foss told the checks spoke in, were and the defendant told him that he come would to the store to his check. get bus, While for a waiting the defendant was dealer picked up by drug he knew as “L.C.” The defendant was his .32 re- carrying volver “for he protection,” because sometimes encoun- tered late at problems taking public transportation night. took the to a in the
“L.C.” house” “dope Roseland close to Tire. The neighborhood, Goodyear remained at the from dope using drugs house cocaine, 5:15 about The defendant used p.m. p.m. and PCP. He also marijuana whiskey drank beer. and alcohol made him feel drugs high, lazy, realized that it The defendant was after blurry. suddenly and he hurried to p.m., Goodyear try get check. area, in the
When arrived service two fellow me- chanics, Ellis, Robert Johnson and told him that Harvey the front that it part store was locked and already *19 him
was too late for to his check. The defendant get then store, went across the street to a but when liquor he beer, went in to he he had no buy discovered money left. He then returned to the store and saw Goodyear Hinshaw, Foss, and Worley to leave. just getting ready said, When Hinshaw he saw defendant “What *** are here?” The defendant “I you doing replied: have to got have I need check.” Hinshaw then my money. my *** check, said: “You don’t have hell get out any here.” The defendant said he was not until he leaving got his check. He drew his gun, the drawn hoping gun would Hinshaw to him the Hin- compel give check. *** shaw said: “You enough don’t have guts, young punk. Let me see one. Get you heck out of drop here.” to
According defendant, he shoot at that began point. Up after, until the time he shooting, started he not did intend to He any rob the victims. testified that he check, intended to and that he get for it in looked the front of the store. When he could there, find his check he went through pockets men to if see of them had it. He then took their any wal- lets. He had no recollection of other details once he any started He shooting. testified that he had no knife when he store, entered the and stated that the knife used knife he Worley stab was a had seen in the shop.
After he left he drove with Aron shop, Younger in his car to his house back on South Cornell Avenue. They continued to smoke and drink. The marijuana then discovered that he had car He real- keys. ized that car. He returned they belonged Worley’s and he Goodyear took car. Younger Worley’s They were discovered later police night sleeping the car from The defendant several blocks Goodyear. his statement gave following police day. in court to Hinshaw and apologized and to the of Frederick Foss. He said that Worley family he his life if it Foss back. The give bring would would have defendant stated he understood that would *20 for he he did not want to what had done but that pay A into evi- die. was also admitted presentence report dence. The report contained statements by that he a serious drug problem. had alcohol
The defendant first that his death argues penalty harsh and excessive as a matter of law. He contends of his light youth, family background, employ- ment convictions, lack of emotional history, prior prob- lems, and and alcohol his death sen- drug dependency tence should be vacated. State that his argues actions showed acted He plan. with coherently and knife him brought gun and used them to ob- tain the victims’ personal The defendant belongings. de- twice, shot each man liberately relation- despite past with them and their ship He pleading. attempted conceal the act by to turn returning out the lights, when he returned to take Worley’s car he did not render aid to any victims. The defendant also acknowl- edged absent, that he was often or and this tardy may have contributed to his firing. The State also contests his assertions that he was addicted to and alcohol. drugs
In the death enacting statute, our penalty legislature did not intend that defendant who every should qualifies sanction; receive the there is a certain amount of discre- tion in sentence, imposing and this court has auto- matic authority review death any penalty imposed. (111. Rev. Stat. ch. 38, In par. l(i).) reviewing 9— sentence, of a death propriety our is analysis guided that “in principle cases capital fundamental for respect humanity underlying eighth amendment consideration of the ‘requires character and record of the individual offender and the circumstances of the par-
ticular offense as a constitutionally indispensable part of
”
the process (People
inflicting
penalty
death.’
v. Carlson (1980), 79 Ill.
Woodson v.
564, 590,
2d
quoting
North Carolina (1976),
428 U.S.
304, 49 L. Ed. 2d
944, 961,
The defendant argues his case compares favorably with others in which we found the death penalty be (People v. Buggs (1986), inappropriate 284; 112 Ill. 2d v. People Carlson (1980), v. 564; 79 Ill. 2d People Gleek ler (1980), v. 145; 82 Ill. 2d People Crews Ill. 60; 2d People v. Waleher (1969), 42 Ill. 159), 2d though he relies on Buggs Carlson. In Buggs, mainly defendant was a man in his forties with no criminal prior record. He had a drinking problem, and during per iod before just offense, he had been drinking particu *21 larly His heavily. wife had asked him for a di continually vorce, which he refused to grant; he instead attempted to persuade her to work out their She problems. had be gun entertaining various boyfriends at their home when the children were On the present. one of day question, his wife’s boyfriends persistently telephoned, which led to their final argument. the During argument, defendant’s wife told him that he was not the father of their two sons. It was at the defendant point be came outraged, on poured gasoline his wife and the stairs and lit a match. the In blaze the defend ensuing ant’s wife and trial, two his children died. At the defendant’s expert testified that defendant suffered from Disorder,” “Isolated Explosive a discrete single episode in which the defendant’s failure to resist an led impulse to an directed act im externally that had a catastrophic pact on others. Carlson,
In the in his forties and defendant was also had In the two to years prior no criminal record. prior murders, the he “deteriorated committing physically two attacks, and He had heart a suffered two emotionally.” concussion, cerebral and other before injuries. Shortly murders, divorce; the wife a defendant’s obtained for they had been married The defendant testi- years. fied he had not to on con- agreed contest divorce dition his Af- wife not entertain men at the house. ter divorce, the defendant and his wife continued see and, defendant, each other according planned The defendant’s wife remarry. postponed wedding, however, later she told defendant that would not be him as as before a seeing frequently she had because Several after boyfriend. days later, having dinner with wife, his other been told details her having about boyfriend, shot his wife 10 times awith gun he had purportedly bought protection. then poured gasoline three throughout rooms
and set fire to the house. After his wife, the killing defendant gave several thousand dollars to a friend children, his convey to and sat down to drink in a bar. As four officers him in the police approached bar, the shots, fired a number of killing one officer. The defendant presented psychiatric testimony that the time the offense he undergoing slow griev- ing related process loss the affection of his wife, that he extremely distraught when killed the officer. The defendant received term prison for the murder of wife death for the penalty officer, murder of the which we reversed. and Carlson out a
Buggs pointed number impor tant factors court should if determining consider in *22 the death sentence is In each case there appropriate. was the of two factors: no presence statutory mitigating significant history prior activity (Ill. criminal Rev. 1983, 38, ch. action under ex- 1(c)(1))
Stat. and par. 9— Rev. (111. mental emotional Stat. treme or disturbance impor- ch. The court also .found par. 1(c)(2)). 9— had the defendants led blameless relatively tant circumstances which in- lives and prompted which tragic cidents were and and ones were not unique Though in the future. both in- be likely repeated of a wife, agree stances murders we do involved holdings the State that are confined necessarily fact, In Carlson against to crimes members. was family officer, for the killing sentenced death police not his wife. our deter-
Though helpful making these cases are mination, each case is and must be evalu- unique capital facts, on its own on whether the circum- focusing ated of the crime and the character of the defendant stances functions of are such the deterrent retributive will be served by imposing the ultimate sanction death do not believe that the circumstances penalty. We speak of this crime the character this defendant A a man to be sentenced to death. num- who deserves to the good of witnesses testified defendant’s charac- ber or untruthful. He ter. He was not known be violent he involvement, never had was any gang caring, knew him. The people who friendly helpful He schools in com- public Chicago. attended in four high years, receiving grades school pleted had no rec- juvenile B’s and C’s. mostly and had one misdemeanor unlawful ord received of a for he charge, successfully which possession weapon he worked While school supervision. high completed out of busi- When went they at Goldblatt’s tire center. Tire, where ness, he mechanic’s got job Goodyear record four His work years. he worked over late, or which he often though good, tardy He claims have on his and alcohol use. drug blames *23 had until relationship Hinshaw, a his good superior, he im- was accused of tires and was wrongly stealing an in the of properly employee purchase denied discount a transmission. The defendant the expressed remorse to victims and to the of He of family Foss. attributes much his behavior to his chemical and the loss of dependency his job.
There is no the of the disputing seriousness crimes committed, this but record does not show that is the of who should be type person perma v. Carlson society. (People eliminated from nently 79 Ill. 2d The defendant no 590.) significant had criminal The prior record. fact he received com pleted for the one supervision criminal offense in life his attests his to rehabilitative Another attestation potential. to this came from victims, one Ellis who Worley, stated that he did not believe should be fact, to In he he, death. stated that if put instead of Foss, died, had he would want Foss to argue that death is not appropriate.
Besides the defendant’s criminal another im- history, mitigating factor is whether the crime portant occurred under extreme emotional Though disturbance. we decline to the loss a equate job with marital difficulties, event nonetheless to have caused the defendant appears stress, good deal which in his mind have may been equal to that suffered in Buggs defendants Carlson. defendant was a man took who young in the fact he was pride steadily employed during high school and for the 4V2 me- afterwards as a years chanic. His work began well but relationship Goodyear in deteriorated the last as a result of two year, mainly instances, both resolved his favor and after being fired, And still significant being ordeal. after concerned enough job complain super- about incident, visors and seek a transfer. On day had told that and the defendant been it was payday appears for him. His outburst there was a paycheck him, Hinshaw, man fired after who have occurred shooting after no check. Even said that there was check and not each man for his searching his actions checks from Foss indi- in cash and the taking $900 for him and a check there cate he there was believed for. looking Contrary what he was more these actions are no planned State’s argument, or Carlson. Buggs acted out than coherently *24 and alcohol drug prob- The defendant that his argues whose death sen- lem those of other defendants parallels his on the vacated, and he blames behavior tences were is an fac- important that agree addiction. We do The weight. considerable tor, given one should be which on that and intoxicated condition drugged defendant’s ex- actions it does not his but explain day may partially Furthermore, evidence in of support the only cuse them. state- un-cross-examined is the defendant’s this claim charac- none of his own sentencing in the report; ments of his drink- knowledge to having ter witnesses testified or abuse. drug ing has led
Nonetheless, we do this defendant agree a life for this one except explosive blameless relatively deterrent the retributive agree We also episode. by put- will not served functions of the death be penalty to serve death; required him rather he should be ting to to an then given opportunity a sentence be prison life, a productive peaceful and lead society return to Therefore, remand he we he demonstrated can. as has sentence other than death. this matter for a new issues re- of other The raises a number however, need we hearing; garding sentencing hearing. at the new the one which arise may to address hearing, sentencing of the the second During phase in 1982 as evidence that State introduced received one after supervision court year pleading to the offense of use of Ac guilty weapon. unlawful counsel, cording supervision successfully defense earlier, This evidence as noted be completed. may, ways. viewed two Successful completion supervi sion may be viewed as a factor nonstatutory mitigating which attests to defendant’s rehabilitative potential. defendant, however, that introduction of this argues weighed unfavorably the determination his sen Furthermore, tence. our contends that supervision statute the use precludes charge of a dismissed its under provisions as an aggravating factor and that it was therefore trial court improper consider People v. Ill. 2d charge. Wunnenberg (1981), 85 188. The Illinois statute that, death dur- penalty provides ing second phase sentencing hearing, “[t]he consider, shall court or instruct shall to consider jury any aggravating mitigating factors which are any relevant imposition (111. death penalty.” Stat. ch. Rev. Section par. 1(c).) 1(e) 9— 9— states “[a]ny information relevant additional any or factors aggravating mitigating factors indicated any in subsection or (c) may be State presented by defendant regardless of its under rules admissibility *25 governing the admission of evidence at criminal trials.” 1983, 38, 111.Rev. Stat. ch. 1(e). par. 9— have interpreted We these repeatedly provisions that in provide determining finding admissibility is necessary evidence be relevant reliable. 378, 422; v. (People (1983), Free 94 Ill. 2d v. La People Ill. (1981), 482, Pointe 88 2d The rules of 498.) evidence do restrict what the court consider in its deter may of the mination sentence to appropriate impose. (People 81 524, v. Meeks Ill. 2d rules (1980), 535.) Evidentiary relaxed at it stage are because is vital that the sen have it tencing before the fullest information authority 284 character, life, the defendant’s crimi
possible regarding nal record and the circumstances of the of particular fense. Woodson v. North Carolina 280, 428 U.S. (1976), New Williams v. York 2978; 944, 49 L. Ed. 2d 96 S. Ct. 241, 247, 1337, 1342, 337 U.S. 93 L. Ed. 69 S. (1949), v. People Owens 1079, 1083; 88, Ill. 2d (1984), Ct. 102 v. People La Pointe 111; 482, Ill. (1981), 88 2d 496. the State and defend Adhering principle ant in the of rele have considerable leeway presentation reliable, vant evidence as as it is also we have al long lowed the introduction of a of evidence relating variety v. People Richardson to criminal 123 Ill. (1988), conduct. 322, 2d 362 offenses (evidence seven which v. convicted); People defendant was arrested but not Owens 88, 102 Ill. 2d 112-13 concern (1984), (testimony officer, attack on a correction ing post-trial defendant’s details of crimes and evidence of ad prior juvenile prior v. Owens People 145, judications); (1984), 102 Ill. 2d 160 Peo of defendant’s misconduct as a (evidence juvenile); v. ple Free 378, 94 Ill. 2d concern (1983), (testimony in defendant’s conduct one before the ing suspicious day cident); People v. Bey (1972), 51 Ill. 2d (proof pending indictment).
At this the admissibil stage sentencing hearing, pro of evidence to the defendant’s criminal ity relating In La Pointe is not limited to convictions. pensity clearly miscon we allowed the State evidence present prior duct for the defendant was not or con prosecuted which held that the conduct “was relevant to a deter victed. We it upon mination of a sentence bore proper likelihood or unlikelihood that defendant would commit offenses; had other it appeared trustworthy; witness; cross-examine face and opportunity not challenged.” of the information was accuracy v. La Pointe People 88 Ill. 2d 498-99.
285 in test, presented the LaPointe the evidence Under The defend admissible. Johnson was aggravation against of a to the unlawful use 1982 guilty ant pleaded received, successfully completed, he weapon, found of which The crimes one-year supervision. firearm, and the the use of a in 1986 also involved guilty on the defendant’s is relevant as a reflection charge It should be noted character and criminal propensity. where, un at the sentencing hearing, was presented trial, the evidentiary like the guilt-innocence phase rule of one’s criminal does propensity evidence prohibiting 104 Ill. 2d (See People not v. Albanese apply. to, and neither its 517.) The evidence was stipulated nor It was challenged. pre trustworthiness accuracy through Eberly, sented Officer testimony defendant had the to face and cross-examine opportunity him. however,
The defendant that our argues, supervision in a statute consideration of the offense later precludes forum. He that the statute is identical to the Fed argues eral Youth Act v. People Wunnenberg Corrections set Ill. 2d we held that a conviction aside (1981), 85 ag to that act should not be considered as an pursuant factor for a defendant convicted of unlawful de gravating livery of a controlled substance. We do believe is in this situation. The statute in Wunnenberg controlling Youth Corrections Act. It Wunnenberg was Federal the court to or execution allowed “suspend imposition on of sentence and offender place youth probation.” Further, it that: (18 §5010(a) (1964).) provided U.S.C. youth placed probation “Where a offender has been on court, thereafter, discretion, by may the court in its from unconditionally discharge youth proba- such offender pro- of the maximum prior expiration period tion court, discharge shall bation theretofore fixed which conviction, and the court shall automatically set aside the that effect.” 18 youth issue to the offender a certificate to (1964). §5021(b) U.S.C.
In the Act found a clear consensus of we interpreting that convictions set aside under the Act should opinion In holding not burden the offender later life. youth the conviction should not subsequent have repercussions, nature, either of a criminal or noncriminal we quoted 1226, in (D.C. 1979), from Doe v. Webster Cir. 606 F.2d of Court of Appeals Which District Columbia Circuit stated:
“It is
if
of the Act are to
purposes
clear that
be
[the]
effectuated, the
must
accorded a lib-
provision
set-aside
be
youthful
eral
allows the
construction which
rehabilitated
meaningful
by protecting
offender a
fresh start
him from
‘stigma’ consequences
impede
those
of his conviction which
in-
reintegration
society,
distinguished
his
into
as
from an
grudgingly
which
focuses
on the removal
terpretation
which are of more limited
‘legal’
of
disabilities
value
useful,
seeking
pro-
ex-offender
to
a
youthful
reestablish
ductive,
law-abiding life.”
In supervi our case the defendant was under placed of sion to section of the Unified Code pursuant 6—1(c) 5— 1981, 38, Stat. ch. 1005—6— (Ill. par. Corrections Rev. court, a 1(c)), upon plea guilty, which allows trial enter for of the defendant if he has supervision an order a after consideration of not been charged felony of the supervision number of factors. conclusion Upon “if the court determines the defendant has period, with all of the conditions of supervi successfully complied sion, the court shall the defendant and enter discharge 1981, Rev. Stat. judgment dismissing charges.” (Ill. Further, it that: ch. par. 6—3.1(e).) provides 1005— and dismissal a successful conclusion
“Discharge upon without ad- of a be deemed disposition supervision shall termed a conviction for judication guilt and shall not be imposed by law disqualification or disabilities purposes discharge years Two after the upon conviction of a crime. may have person this Section a under and dismissal 111. by law.” may provided as be expunged record of arrest 6—3.1(f). 38, par. ch. Rev. Stat. 1005 — distinguish in our case and facts the statutes findWe statute Our Wunnenberg. supervision those in from able considerations the unique not enacted with mind, attempts Act in which Federal Youth Corrections acts done as a youth. being one from penalized protect drawn. Pursuant narrowly more Also, our statute is removing act directed 6—3.1(f), appears section 5— (Peo a conviction. associated with “legal disabilities” 813, 826-27.) What 114 Ill. 3d App. Talach (1983), v. ple an it not create effect, exception does ever have interpreted of factors which we consideration broad or sentencing judge jury. considered to be properly of the statute precludes nor language history Neither *28 of criminal rel evidence behavior aggravation later use as act merely The charge. supervision evant to a criminal the term shall be of completion that successful provides in our anal of As seen adjudication guilt. deemed without considering ag is not limited ysis, admissibility of guilt. resulted in adjudications crimes which gravation is the evidence reliable The is whether guiding principle 138 Ill. Hightower (1985), See v. People and relevant. 100 Ill. 5, 10; (1981), contra v. Calvert People 3d App. 510, 511. 3d App. of this court opinions of the language
Given the broad informa- should have all or sentencing jury that the judge see no we penally, to the imposition tion relevant of offenses for the proof prior to hold inadmissible reason Such received behavior supervision. the defendant which criminal toward continuing disposition a demonstrates conduct. to the challenges of raises a number
The defendant In view statute. of our death penalty constitutionality other for a sentence this matter to remand our decision death, is than it for us to chal- unnecessary consider these lenges.
The final im- defendant’s contention is that convicted of armed properly both violence attempted murder because both from charges arose the act of shoot- Arthur Hinshaw. The ing argues State the convic- tions arose acts, out two separate the two physical sep- arate shots which the defendant fired at Hinshaw.
Under v. People the doctrine 66 Ill. 2d King (1977), 551, 566:
“Prejudice only results in those in- stances than where more one offense is carved from same physical Prejudice, regard acts, act. with multiple exists when is convicted of than more offense, are, one definition, some of which by lesser in- Multiple cluded offenses. convictions and sen- concurrent tences he permitted should in all other cases a where acts, has despite committed several the interrela- defendant tionship ‘Act,’ sense, those acts. in- when used in is tended to mean any overt or outward manifestation which will hold, therefore, support different offense. We when than more one offense arises from a inci- series of not, dental closely or related acts and the are offenses offenses, definition, lesser included convictions con- current sentences can be entered.” (Emphasis added.) In v. People Myers 85 Ill. 2d we also held the defendant’s actions supported convictions armed violence and attempted murder.
Myers moved knife twice from one while victim’s neck victim, a second ini threatening thereby interrupting tial attack on the first victim. This court found that al *29 though the first separate two invasions victim’s were closely related in time and in the same body area neck, the acts were not one act. physical agree We with the State that in case facts the two convictions. to Hin- support separate According once, shaw’s shot him then shot testimony, Wor ordered Foss’ twice, through pockets, Foss searched time. second Hinshaw a and then shot the floor ley acts sufficient Thus, physical two separate there were along with conviction, gunshots, the two each support acts. The the two intervening of events between number In People distinguishable. the defendant are cases cited by shots 164, three separate 91 Ill. 2d v. Donaldson (1982), charged was victim, and the defendant fired at the were and one count aggravated battery counts of with three the armed violence This court reversed armed violence. four convictions had been ground on conviction Here, acts. three distinct physical carved out murder convictions, one for contrast, attempted two of two dis carved out violence, for armed have been one 92 Ill. 2d acts. In v. Mormon People tinct physical the use of a on armed violence conviction based an a dis upon not based accomplish rape weapon of the act; weapon part the use tinct physical the crime of rape. “force” element of convictions reasons the defendant’s foregoing For the is set aside and affirmed; however, the death penalty are County circuit court of Cook remanded to the the cause a sentence on to impose with directions other than death. sentence affirmed;
Convictions vacated; cause remanded with directions. JJ., no in the consider- CALVO, part took WARD and of this case. ation or decision CLARK, concurring:
JUSTICE reached by the ultimate decision I with Although agree and remand the death sentence to vacate colleagues my death, I disagree than other of a sentence imposition that conclusion reasoning reaching the majority’s *30 290
and therefore write The defendant raised separately. eight challenges of of imposition the death sentence. Two the arguments paramount defendant’s are of concern here: (1) that the sentence given was excessive the signifi- cant mitigation presented during hearing, (2) and the sentence was based a partially upon prior charge which had been dismissed after a successful term of su- pervision.
I would vacate defendant’s sentence based on the erroneous of introduction prior charge the sentenc ing and not because of I hearing what find to be an un precedented wholly unwarranted extension of this court’s prior People decisions v. Ill. (1980), Carlson 79 564, 2d v. 112 People Buggs Ill. 2d 284. Ill. 2d at 277-88.
I first address the defendant’s of error claim concern ing admission of a of misdemeanor unlawful use weapons charge, which concluded was admis majority sible as relevant and reliable. Ill. 2d at This (128 282-83.) charge had been after the originally dismissed a term of successfully completed Under the supervision. section of Criminal pertinent Code 1961: may, upon plea guilty “The Court or a stipulation by the defendant of the facts charge supporting or finding guilt, defer further proceedings and the imposi- sentence, tion of a supervision and enter an order charged felony if the defendant is not with a offense, and having regard for the circumstances of the offender, and the character history, and condition of the opinion court is of the that: (1) crimes; the offender is not likely to commit further (2) public the defendant and the would be best served if record; the defendant were not to receive a criminal
(3) in the interests of an justice best order of supervi sion is appropriate more than a sentence otherwise permit ted (Ill. 1981, 38, under this Code.” Stat. ch. Rev. par. 6—1(c).) 1005— an is to enter that the court to provide on goes
The Code shall “de period, for a specified of supervision order of the period.” conclusion case until the in the fer proceedings (I 1005-6-3.1(a).) 38, 1981, par. ch. Rev. Stat. ll. on “entering judgment any is to defer Likewise the court (Ill. concluded. has been until supervision the charges” the con At 6—3.1(d).) ch. par. Rev. Stat. 1005— *31 deter if the court supervision, of period clusion successfully complied has the defendant mines that shall dis “the court of supervision, of the conditions all dismissing a judgment and enter the defendant charge 1981, 38, ch. 1005—6— par. Stat. Rev. charges.” (Ill. that: the Code Finally, provides 3.1(e).) a successful conclusion upon dismissal “Discharge and ad without shall be deemed supervision disposition of a for termed a conviction guilt and shall not be judication of law imposed by or disqualification disabilities purposes of discharge after the years of a crime. Two upon conviction may have his person Section a under and dismissal by Ill. provided law.” expunged may as be record of arrest 6—3.1(f). 1981, 38, par. Stat. ch. Rev. 1005— statute pre the supervision decision as to whether Our under dismissed charge in aggravation cludes the use con influenced, if not strongly must be its provisions Wunnenberg v. People decision trolled, our by Ill. 2d 188. 85 guilty pled Wunnenberg,
In
At
of a controlled substance.
unlawful delivery
charge
aggravat
court considered as
sentencing hearing
been “set
which had
a Federal conviction
evidence
ing
(18
Act
Youth Corrections
the Federal
aside” under
court held
our
Wunnenberg
In
§5021(b) (1964)).
U.S.C.
consensus
of a widespread
error. Because
this was
give
intended to
Federal set-aside provision
that the
“
fresh
meaningful
offender
‘the rehabilitated youthful
”
v.
191-92,
Doe
quoting
Ill. 2d at
(Wunnenberg,
start’
Webster (D.C.
1979),
1226,
Cir.
606 F.2d
1238), we con
cluded that
the set-aside conviction “should not have sub
sequent
repercussions,
either of a criminal or noncriminal
nature. Accordingly,
defendant’s
set-aside
conviction
should
considered,
not have been
however
as an
remotely,
factor
aggravating
for the
sentencing
instant offense.”
The State and the majority opinion distin attempt guish Wunnenberg on the ground that our statute, unlike the Federal provision, set-aside does not for “au provide tomatic” expungement of the defendant’s record, but only allows the defendant apply when expungement two have years since passed discharge and (See dismissal. Ill. Rev. Stat. ch. par. 1005-6-3.1(f).) This is wrong First, on two counts. it is no means clear that the Federal set-aside provision “automatically” expunges the defendant’s record. The itself provision states that court’s discharge the offender “shall set automatically aside the conviction.” (Emphasis added.) (18 U.S.C. §5021(b) (1964).) Federal courts are divided as to whether the words “set aside” mean i.e., expungement, *32 physical obliteration, of the defendant’s record. Compare Mines v. National Transportation Board Safety (6th Cir. 1988), 862 617, 619, F.2d with United States v. Gardner (7th Cir. 1988), 1391, 1399. F.2d
Second, and more Wunnenberg court importantly, reliance, specifically disclaimed any an upon interpretation of the Federal statute that would for provide “automatic” expungement. (Wunnenberg, 85 Ill. 2d at The crucial 191.) issue is not whether record the defendant’s convic tion is physically destroyed, but whether the conviction will have a subsequent penal Both consequence. statutes provide for- discharge of the defendant and dismissal of the charges against Indeed, him. our statute further goes in providing that the disposition “shall be deemed without adjudication of guilt and shall not be termed a conviction imposed by or disabilities purposes disqualification 1981, ch. Stat. (Ill. of a crime.” Rev. conviction upon law of the statute intent 38, 6—3.1(f).) obvious par. 1005— a completes who successfully is to reward a defendant criminal him from future freeing term of by supervision sense, limited In that charged. for the acts consequences ac “akin to a judgment under our statute is discharge 100 Ill. 3d (1981), App. v. Tarkowski (People quittal.” could be consequence criminal 161.) subsequent No charge aggrava more serious than the use of the prior if an surely anomaly tion at a It would be hearing. capital the statute re that the disabilities” which “legal we held which contribute disability may moves do not include of the ultimate criminal sanction. a defendant’s receipt to distin- attempt the State and the majority While and the facts charge underlying guish prior between If substance. this distinction is without charge, the State to prove directly, by statute allowed supervision indirectly, by it is to prove what now forbidden testimony, This record, meaningless. court the statute would be rhetoric, so not, blithely court should the mere use of by which legislature obliterate the established policy a clean slate. offender to establish permits youthful is reasoning I note that Though controlling, court in Peo the decision of the appellate consistent with v. People 3d 510. (Cf. 100 Ill. (1981), App. v. Calvert ple analo (construing 3d 72 106 Ill. Chumbley (1982), App. And while it Act).) in the Court Juvenile gous provision v. Talach language People that some of the appear may this reason conflict with may 114 Ill. 3d App. in Talach distinguishable. facts of that case are ing, prior had two valid convictions a defendant who volved Moreover, successive supervisions. on five being placed to “a contin not purport apply itself does Wunnenberg in a series that resulted of criminal behavior uing pattern set were subsequently convictions which of criminal *33 294
aside.” (Wunnenberg, 85 Ill. 2d at Since are 194.) we deal ing here with a single episode supervision rather than a “pattern,” this need not question be reached. I
Nor do
agree with
State’s contention that the ad
mission of the charge was harmless because the evidence
in aggravation was overwhelming. As should
clear
be
from the discussion of the defendant’s argument
that his
was excessive
penalty
(see
IWhile would vacate the defendant’s death sentence based on solely the erroneous admission of the prior charge, my disagreement with the majority does not end here. I must also I address what conclude to the ma be erroneous jority’s under this court’s deci analysis prior sions in Carlson and As the Buggs. noted, the majority that his case argues to oth compares favorably ers where this court has found that death is not appropri ate. (See v. People Buggs (1986), 284; Ill. 2d v. People (1980), 564; Carlson 79 Ill. 2d v. People (1980), Gleckler 145; 82 Ill. 2d v. People (1969), 60; Crews 42 Ill. 2d People v. Walcher 42 Ill. 2d While the defendant 159.) cases, cites all of these he relies Carlson and mainly upon HI. Buggs. 128 2d at 278.
Also, noted, as the majority this court’s must analysis be guided that the amendment re- principle eighth “consideration of the character and quires record individual offender and the of the particu- circumstances lar offense as a constitutionally indispensable part *34 v. process of (Woodson inflicting death.” penalty North Carolina 428 (1976), 280, 304, U.S. 49 L. Ed. 2d 944, 961, 2978, 96 This 2991.) S. Ct. court has previously that, concluded where the sum total of aggravating circumstances “do man mitigating not a with a bespeak malignant heart who must be eliminated permanently (Carlson, 79 Ill. 2d at from society” 590), a sentence death cannot stand. Neither the deterrent nor retributive functions of the death are com penalty served where the mission of a murder seems to be an aberration on brought circumstances, by special which in circumstances all likeli hood be will not This court repeated. found such special circumstances that were not Carl in likely repeated be son Buggs. However, for reasons which are clearly set in (see People Carlson v. Carlson out my dissent 564, 79 Ill. 2d (1980), J., 593 I (Clark, cannot dissenting)), agree with the expanding erosion this court’s held long that “we should not position overturn lightly findings court, the trial when particularly they are sup amply ported by the record.” (People v. Brownell (1980), 79 Ill. 508, 2d Carlson, As I 540.) noted in this court has often addressed question of the weight to be afforded the decision of the of fact; that, trier we have held absent a clear discretion, abuse of not this court will sen disturb a tence imposed v. Lykins trial court. See People 77 People v. Perruquet (1979), 35, 40; Ill. 2d (1977), 68 Ill. 2d 149, 153; People v. Bonner 37 Ill. (1967), 553, 2d 563. Lykins v.
People 35, 77 Ill. 2d (1979), ad succinctly dressed this issue when this court stated that:
“[tjhough Supreme Court Rule 615(bX4) (58 Ill. 2d R. 615(bX4)) reviewing allows reduction of aby sentences court, is ‘It not our function to sentencing serve as a court, and we will not judgment substitute our for that of merely court because we might imposed trial have different sentence had that delegated function been to us.’ *** (People v. Waud 588, (1977), 596.) 69 Ill. 2d 296
*** The trial is authorized to consider judge also the ‘nature and circum the defendant’s character but (Ill. sentence. Rev. imposing stances of the offense’ Ly v. 8—1(c)(1).)” (People 1977, ch. par. Stat. 1005 — kins 40.) Ill. 2d will view or review because no two ever Precisely people set of facts from the same exactly perspective, the same court’s care disregard “it is lower inappropriate Carlson, decision.” well-supported considered and fully (Clark, J., dissenting). Ill. 2d at 603 Buggs, Carlson both discusses majority While argument in the interests of a coherent complete I here, will reiterate the analysis. *35 Carlson, for- defendant,
In who in his early the was ties, had no record. For a or two to year prior criminal he was the defendant charged, the murders which He had had “deteriorated physically emotionally.” concussion, attacks, two heart a cerebral suffered murders, the the defend- other injuries. Shortly before a him. years wife of divorce from The ant’s obtained agreed testified that he had not to contest the defendant his wife not entertain divorce on the condition that would defendant, the after the men at the house. to According other and he and his continued see each divorce wife The wife post- had defendant’s plans remarry. even however, later the the told defendant poned wedding, him as as before seeing that she would not be frequently later, after had Several days because she a “boyfriend.” told wife, and other having dinner with his been having her shot his wife details about boyfriend, bought “pro- a he had gun purportedly 10 times with throughout The then poured gasoline tection.” defendant kiUing After rooms and fire to the house. three set filled with wife, envelopes the several gave down to children, to his and sat to a friend convey cash approached in a As a number officers police drink bar. bar, him in shots, the the defendant fired two one killing of the officers. The defendant testi presented psychiatric at time mony that the of the offense the was a grieving slow related to the loss of undergoing process the affection of his wife and that he was dis extremely he the traught (79 570-73, when killed officer. Ill. 2d at 588-90.) defendant had been sentenced to a term of for the murder of his wife had been years sentenced to death for the murder officer. It police was the death sentence which this court Ill. vacated. 79 2d at 591.
In Buggs, defendant was a man in his forties with no prior criminal record. He drinking had severe prob lem which had caused him to previously suffer blackouts. He had been drinking particularly heavily during per iod just before committed the offense. His wife had him divorce, asked for a continually which he refused to he instead grant; her to attempted persuade out work their She had problems. begun entertaining various boy friends their at home when the children were On present. day question, one his wife’s persist boyfriends ently to a telephoned, leading final argument between the defendant and his During wife. argument, defendant's wife told the defendant that he father of their two sons. It point defendant became outraged, gasoline on his poured wife and the and lit stairs In the match. ensuing blaze defendant’s wife and trial, two his children died. At *36 expert defendant’s witness testified that suffered from “Isolated Disorder,” Explosive single dis crete in episode which the defendant’s failure to resist an
impulse led to an
externally directed act
had
cata
strophic
on
impact
(112
others.
2d at
The
294-95.)
Ill.
trial
court sentenced Buggs to death and this court vacated
The many factual similarities between Carlson and Buggs some, (including such as the arson, accompanying the underlying obscure purely coincidental) may
which are Carlson and Buggs are facts about crucial principles. fac- of mitigating two (1) presence statutory these: of criminal activity tors: no significant history prior (a) 38, (b) ch. and action 1983, l(cXl)), Rev. Stat. (111. par. 9— (HI. Rev. mental or emotional disturbance under extreme and (2) and l(cX2)), unique ch. par. Stat. 9— up individuals who tragic impacting upon circumstances circumstances lives, relatively until then had led. blameless not to be in the future. While which were likely repeated Carlson for the murder imposed in the death penalty or officer, principal of the fact that original the police the defendants’ victims of the crimes were members of strangers strongly suggested families rather than of the kind that were unlikely defendants’ crimes were future, or threat be to be deterred repeated of punishment. capital Buggs Carlson this, however, and do not cre-
Beyond is ate Each case sentencing. a black letter law capital its facts. At and must be evaluated own both unique upon must focus on level, and the the inquiry trial appeUate crime the character whether the circumstances and and of the defendant are such that deterrent retribu- are served. tive functions the ultimate sanction that, analy- on this court's argues The defendant based Buggs, Carlson sentence should va- sis in his death be mitigating youth, and notes these circumstances: cated con- prior lack background, employment history, family alcohol victions, drug depen- emotional problems, not This evidence of while inconsidera- mitigation, dency. ble, as the defendant makes strong also so quite is habit, drug example, out. of the defendant’s Evidence and, un-cross-examined from the defendant’s comes sentencing in the statements uncontroverted apparently, and Buggs, Carlson contrast, evidence In report. far substantial. alcohol more drug dependency
299 The more distinction between this case and important the others, however, lies in the circumstances of the very crime itself. In Carlson and uncontroverted evi Buggs, dence that were the established the murders committed product of circumstances and a prior tragic precipitating case, event. In this while the in one provocative majority breath declines “to the loss a equate with marital job (128 difficulties” Ill. 2d at finish 281), they that same breath with the conclusion that in losing job, stress suffered in his mind by own “may have been to that equal suffered the defendants in by and Carlson” Ill. 2d Buggs (128 281). may
Statistics seem to institution of disparage the marriage by verifying marriages that more and more end mobile, in it divorce, yet is inconceivable today’s a changing society person’s reactions to the loss aof be in spouse may any way equated loss a job. While certainly a tool nor a legal response deter- miner, even the somewhat Holmes-Rahe popular Stress Scale, a scale which ranks life’s “stressful” events on a particular from point system ranging 11 to ranks death of spouse a over two times more stressful than be- ing fired from a while divorce is job one-third more stressful than being (death fired a spouse ranked at divorce at 73 points, points, being fired at 47 I points). am not suggesting by mentioning psycho- logical tool that this court in any should on way rely such in reaching decision; however, mechanisms a such infor- mation is not I beyond recognize notice. that each individ- ual’s reactions to stress unique are and may be deter- mined the amount of control individual may feel he has over particular situation.
In this case it seems clear that there is considerable evidence of rational calculation in the planning defendant’s actions rather than an uncontrolled response to an overwhelming stress. even Additionally, assuming to re- out of desire part acted Hinshaw, a “father figure,” himself Arthur
venge upon was a second- robbery there is considerable evidence According no means motive. unimportant, and by ary, *38 victims, the defendant surviving the testimony both Fred- fire Hinshaw and immediately upon almost opened taunted Foss. defendant’s that Hinshaw story erick of either not Hinshaw by testimony him is supported the defend- or to Hinshaw’s According testimony, Worley. while Worley ant fired the second shots at Hinshaw It that he undisputed on the is ground. were they lying kept that the defendant rifled their The fact pockets. to him long enough attempting alive assist Worley only safe, him, obviously intending to and then shot open kill, According to is further evidence of rational planning. and the defendant’s own both Hinshaw’s testimony confession, during the defendant stated course fear Worley that shot because of that Worley incident he to eliminate attempt any would “tell on him” —an obvious crime. The defendant also attempted witness And ar- conceal the murder while weapon. no to rob a gues attempt that rational criminal would worked, is un- argument store where he had recently efforts make sure dercut the defendant’s obvious by him no one who could would survive. identify calculation, not inconsid- This evidence rational constitutes degree planning preparation, erable is outweighed not by which nonstatutory aggravation evidence introduced questionable mitigating somewhat he, claim that defendant. It also belies defendant’s miti- cases, as a like the established prior defendants . or emo- factor under extreme mental acted gating disturbance. tional I reasons, agree my colleagues’ these cannot
For of the Carlson rationale Moreover, in this case. extension illogi- but I unwarranted find such an extension cal when I note that discusses majority “blameless this one life except explosive (emphasis episode” added) while, 2d (128 282), time, 111. at the same al- in evidence of a lowing prior charge which would seem to contradict finding. However, I agree because would, earlier, with the in that I decision as stated va- cate the defendant’s death sentence for different rea- sons, I concur.
(No. 66248. CORPORATION, UNITED CABLE TELEVISION Ap- pellee, v. NORTHWEST ILLINOIS CABLE COR- *39 PORATION, Appellant. 20, 1989.
Opinion April filed