*1 (No. 90865.
THE PEOPLE ILLINOIS, OF THE OF STATE Appel-
lant and v. HENRY Cross-Appellee, KACZMAREK, Appellee Cross-Appellant.
Opinion October 2003. filed *2 KILBRIDE, J., specially concurring. Attorneys General, Ryan Madigan, E. and Lisa
James Devine, Attorney, and State’s Springfield, of Richard A. (William Hoffman, Browers and Lisa As- Chicago of L. Attorneys General, Chicago, of and Renee G. sistant Carroll, Spellberg D. Alan J. Goldfarb, William counsel), Cook, Attorneys, of Christine Assistant State’s the People. for Defender, and R. Pelletier, Debra Deputy
Michael J. Defender, the Office of Salinger, of Appellate Assistant Defender, Chicago, appellee. Appellate the State opinion of the court: RARICK delivered the JUSTICE circuit court Cook Following jury Kaczmarek, defendant, convicted of County, Henry was murder, invasion, and armed burglary, home residential to a of natural sentenced term robbery. Defendant was life imprisonment conviction, on the murder no but imposed sentences were on the other convictions. Defendant appealed. On March the appellate court filed an declined opinion in which it to review convictions for residential burglary, home invasion, and armed robbery, due to lack finality, but reversed the murder conviction and remanded for a new Kaczmarek, (1993). trial. App. Ill. 3d 1067 Kaczmarek, We denied leave appeal. 2d 571
Prior to the commencement of his second trial November of unsuccessfully defendant moved to charges dismiss the State’s grounds on the that his statutory constitutional to a rights speedy trial had been violated. Following by jury, a retrial defendant was again guilty murder, and, found upon based a trial finding victim’s exceptionally murder was heinous, again brutal received an en hanced prison pursuant term natural life in to section 8—1(a)(1)(b) (Uni Unified Code of Corrections 5— Code) (Ill. fied Rev. Stat. ch. 1005—8— par. *3 1(a)(1)(b)). alia, inter
Defendant appealed, arguing,
that he had
been denied
right
his constitutional
to a speedy trial, and
the
challenging
validity of his life sentence,
the
claiming
penalty enhancement
scheme provided by section 5—8—
1(a)(1)(b) of the Unified Code is constitutionally
infirm
light
in
of the United
Supreme
States
Court’s
in
decision
Apprendi
v.
Jersey,
New
530 U.S.
L.
Ed. 2d
Defendant was The evidence indicated that defendant Millie Nielsen. apartment stabbed, beat, broke into Nielsen’s where he strangled appar- and ently her in the of an attack that course in her in Nielsen’s kitchen and concluded
started from bedroom. Defendant took items minimal value apprehended posses- residence and was later Nielsen’s personal belongings. sion of some of her bloodstained on arrested, he officers observed bloodstains When was wearing, quilted shirt defendant was bloodstained jeans car. A recovered from the trunk of his witness were backyard had defendant in the testified seen building apartment night of the murder. Nielsen’s carry bag through back- witness saw *4 away. yard, place car, it in the trunk of his and drive performed Dr. Michael Chambliss the medical exami- body nation of Nielsen’s to her testified extensive injuries. Dr. Chambliss concluded that Nielsen died as strangulation contributing result of manual with the fac- injuries tors blunt force and stab wounds. Dr. Cham- bliss stated could have from Nielsen died the blunt injuries force alone. expert electrophoresis, serology, Fish,
Pamela an analysis, and DNA testified to the results of her 1987 physical examination of the time, evidence. At that she jacket determined the blood found on defendant’s jeans type was consistent with Nielsen’s blood and could have not come from defendant. Fish determined that the evidentiary substance blood, on other items was human quantity provided, but due small she was unable particular identify type. blood Prior defendant’s attempted perform testing trial, second Fish DNA on samples case; however, blood collected in this their small degraded testing size and condition made ineffective. Englert, expert Rod in crime scene reconstruction splatter, physical examined and blood evidence and photographs Englert in the case. stated that the blood on appeared smeared, kitchen Nielsen’s floor indicative of a struggle Englert in which someone bled. noted immediately blood on the kitchen wall outside the represented velocity splatter, bedroom classic medium suggestive being upon blunt force inflicted the victim. angle projection, Englert Given low believed that Nielsen had received numerous blows while on the Englert kitchen floor. concluded that the on the blood jeans, knees of back of his shirt- represented swiped sleeves, transfer stains —blood against something or someone. The blood the front of represented velocity defendant’s shirtsleeves medium splatter. jeans The blood at the bottom of defendant’s velocity splatter. Eng- also was consistent medium *5 with not consistent stains were these lert testified that bag up having picked on it or a with blood defendant clothing. top placed bag having on a been such with not consistent Englert the stains were stated further person having the nose. another kneed defendant with explanation offering the an testified, Defendant possession of Nielsen’s his clothes and on his blood belongings. involved he had been Defendant claimed night fights prior murder, and of Nielsen’s to three clothing his had been that the blood intimated during deposited altercations. more of those there one or fights with his were claimed two Defendant a third Henderson, while friends, Tom and Bill Szeszol attempting fight an unidentified man who was involved fight, In latter defen- defendant’s car. to into break in the four times stated, he hit the man three or dant According defendant, him in the nose. face and kneed fights everyone in the bled. involved possession bloodstained of Nielsen’s As for his bag property, on the defendant stated he had noticed building. apartment looked inside He side Nielsen’s bag He therein a box silverware. and discovered placed picked up bag, car, it in to his carried it morning, decidedto look Later that trunk. bag’s bag contents, or some and removed the into the bloody. kept some items Defendant which were bloody including pillowcase, disposed in a others, Dumpster. of the items for $60. Defendant sold some jury evidence, found that defendant
Given
turn our
the murder of Millie Nielsen. We
had committed
governing
of the law
to a discussion
attention
right
by
speedy trial,
a recita-
followed
constitutional
preceding defendant’s retrial
of the circumstances
tion
speedy-trial
pertinent
issue.
to defendant’s
facts
SPEEDY TRIAL
and the Consti-
Both the United States Constitution
guarantee
tution of Illinois
right
accused the
to a
Const.,
trial.
speedy
VI;
U.S.
amend.
Ill. Const.
art.
I, § 8. In Barker v. Wingo,
407 U.S.
33 L. Ed. 2d
(1972),
As we observed in Crane-. right speedy
“[T]he
to a
‘a
vague
trial is more
concept
rules,’
procedural
than other
‘impossible
which makes it
to
precision
determine
right
when the
has been denied.’
Barker,
521,
112,
In order to
a proper analytical
strike
balance between
society’s
accused,
interests and
of an
the Supreme
those
Court
Barker identified four factors to be considered:
length
delay;
the
delay;
the reasons
for the
right;
prejudice,
defendant’s assertion of his
and the
if
Barker,
any,
530,
to the defendant.
295 disposi is one factor Ct. at 2192. No 116-17, 92 S. 2d at 116-19, L. Ed. 2d at 530-33, 33 407 U.S. at Barker, tive. ultimate Crane, 2d at 52. The 2192-93; 195 Ill. at 92 S. Ct. defendant’s constitutional of whether determination de novo subject has violated right been speedy-trial fac Barker 52. Crane, Applying Ill. 2d at review. that defendant’s case, it is clear to the facts of this tors not trial has been speedy to a constitutional violated. filed an appellate
On March murder the defendant’s it reversed opinion which appellate for a new trial. conviction and remanded July court on filed in the circuit court’s mandate was on November Defendant’s retrial commenced 1993. 1996. claim, assessing speedy-trial a constitutional
When In length delay. is the consideration first one recognized delay approaching general, courts have Barker, U.S. year prejudicial.” “presumptively be 2192; Crane, 530-31, L. 2d at 92 S. Ct. at at Ed. delay in this case Obviously, 2d at 52-53. finding A prejudicial. qualifies presumptively as however, imply does not prejudice,” “presumptive actually prejudiced to have delay will be found Rather, point it marks the which simply defendant. enough trigger unreasonable delay courts deem the States, U.S. v. United inquiry. Doggett the full Barker *7 520, 531, 112 S. Ct. 2693 647, 656, L. Ed. 2d 120 Therefore, ad Crane, 2d we next (1992); 195 Ill. at 53. factor, delay. reason for the Barker dress the second 28, 1993, May beginning During period law record the common November ending parties, 3 by agreement evinces 39 continuances court, on motion granted and 3 by order because four times The case was continued defendant. period this appear. During counsel failed defense 296
time, represented defendant was six by different at torneys with the Cook County public defender’s —three office and private attorneys three required whom —all time to familiarize with, themselves what one described as, “two to three feet” discovery and the voluminous record they after assumed responsibility for defendant’s representation. Although the common law record is not it, clarity, model of we have together considered with the transcripts contained in the appeal, record on so that we may justice do to both the State and the defendant. See (2002). Mayo, v. 198 Ill. People 2d It need would , lessly lengthen opinion if specifically we were to ad case; dress the circumstances of each continuance in this however, we have reviewed individually the circumstances delay, of each and we conclude that no more than three of delay months can be independent attributed causes of the actions of defendant’s attorneys.
A delay is
by
considered
have been occasioned
when
defendant’s acts caused or contrib
delay.
uted to the
Mayo,
Defendant’s be- delay tween remand and retrial was the result the State’s timely discovery failure to disclose material is belied *8 part transcripts by of the made a have been those objections pertinent appeal or reveal no on which record attorneys respect by complaints to the defendant’s ap- This observation also disclosure of materials. State’s protracted delay plies contention that to defendant’s solely obtain ad- efforts to from the State’s resulted evidentiary testing Until items. of bloodstained ditional discharge attorney on filed a motion final defendant’s preced- just grounds speedy-trial trial, defendant’s before perfectly ing attorneys to continue the content seemed by agreement motion, either because or on defense case they they unprepared proceed, or because wanted were testing if would corroborate to see testimony blood suggested trial, that the from his first which clothing other than had come from a source blood on his period is true that the State used the Nielsen. itWhile testing, pursue and retrial to further remand between consequences escape his at- defendant cannot torneys’ to most of which caused or contributed conduct delay. respect factor, defen to the third Barker
With
speedy-trial right,
note that a
assertion of his
we
dant’s
attorney,
by of his
unless
defendant is bound
actions
clearly
convincingly
right
asserts his
the defendant
attorney.
discharge
Mayo,
537;Kliner,
his
198 Ill. 2d at
at
court observed
185 Ill. 2d
118. As this
(1990): “In
Bowman,
131, criminal
attorney
proceedings,
his cli
authorized
act for
procedural
and deci
him
matters
ent and determine for
[Citations.]
involving
strategy and tactics.
trial
sions
a defendant’s counsel can
Thus, the affirmative acts of
separated
own acts.”
from the defendant’s
not be
pertinent
all
times
in this case
Defendant
represented
was
counsel.
attempted to
his
at various times
assert
Defendant
shortly
speedy trial; however,
before
until
to a
retrial, against
attorneys,
did so
the wishes of his
who
prepared
were not
inclined
proceed. Generally,
or
decision to demand
speedy to seek dismissal
charges
grounds
State’s
such
are
left to
matters
strategic
sound
decision of counsel. See
*9
Ramey,
523-24
As this court
Bowman,
observed in
“[defendant
cannot contend that
it was unfair
speedy
to force him to choose between a
trial and effective
may
assistance
counsel. Defendant
right,
have a
dimensions,
even of constitutional
to pursue
chooses,
whichever
course
but the Constitution does
forbid requiring
not
him to choose nonetheless.” Bow
man,
Defendant first a right “asserted” his to speedy on July appointed when counsel informed the defendant, court that motion,” “on his own was demand- a ing speedy court, certainly trial. Counsel told the “I would not ready point be at this professionally.” The court warned the the dangers defendant of of proceeding attorney an prepared. with who was not Defendant a responded, agreed “I’ll wait.” He to continu- explicitly ance. 12, 1994, oral,
On October
defendant made
se
pro
motion for discharge
statutory speedy-trial grounds.
The circuit
put
court advised defendant
to
his motion in
written,
Defendant
a
writing.
subsequently filed
se
pro
18, 1994, claiming
motion on November
a violation of
Defendant,
speedy
acting
“the
trial act.”
in a
se
pro
capacity,
ready
announced he was
for trial on that date.
motion,
given
argue
He was
opportunity
his
se
pro
ready
a
requested
but admitted he was not
to do so and
continuance. The court denied
for a
request
did not
lawyer.”
“bar association
Defendant
ask to
counsel and
discharge appointed
proceed pro se.
Hearing
pro
on defendant’s
se motion was later
prepared
again
was not
continued
because
nothing
proceed.
record which would
find
in the
We
argued or that
ever
that defendant’s motion was
indicate
ruling
The
is true
thereon.
same
the court rendered
pro
appointment
respect
to second
se motion
attorney.”
never at
association
Defendant
“bar
attorney
tempted
right
discharge
his
his
to assert
unequivocally
proceed
The record
to an immediate trial.
the assistance of counsel
that defendant wanted
shows
preparing
Thus,
trial.
defendant is bound
his defense for
attorneys. Mayo,
198 Ill. 2d at
actions of his
See
in the Barker
and final consideration
fourth
Prejudice
analysis prejudice
must be
to the defendant.
light
which
in the
interests of defendants
assessed
designed
protect.
speedy-trial
Barker,
was
Ed. 2d
92 Ct. at 2193.
Those interests are
(2)
pretrial incarceration,
the minimization of defendant’s
*10
(3)
anxiety
charge,
pending
and concern about the
possibility
of the
that the defense will be
the limitation
impaired by
delay.
532,
Barker,
the
at
L. Ed.
407 U.S.
33
118,
2193; Crane,
The
2d at
92 S. Ct. at
at 59.
recognized by
Supreme
third
the
Court
factor has been
“
inability
the
of a defendant
as the most serious
adequately
‘because
prepare
the
of the
to
his case skews
fairness
”
system.’ Doggett,
654,
2d
Defendant also claims that he experienced anxiety while awaiting retrial. note that this present We factor is to some extent in every case and absent some unusual showing, slight inconvenience alone import. People v. Wills, App. (1987); 153 Ill. 2 W. 18.2, Israel, LaFave & J. Criminal § Procedure at 410 (1984). No doubt much of the anxiety experi defendant enced was the result of having already been once tried jury, having guilty murder, been found of Nielsen’s having been sentenced to a term of natural fife imprison ment. opinion We are that weight to be ac of the fourth Barker fac corded the first components two tor is minimal under the circumstances this case. balancing that are must required perform we take into rights defendant, account of the but does public justice. Crane, preclude not rights Although 2d at 62. delay between remand and retrial lengthy, admittedly was indeed and the State used that advantage, time to its escape cannot responsibility contributing or causing to most of the delay. Considering fact, together any with lack of showing delay impaired of a presentation defense, we conclude that defendant’s constitutional speedy not violated. We af was therefore judgment firm the appellate court in this respect.
APPRENDI ISSUE Apprendi argument The in State’s this case has Apprendi changed evolving jurisprudence. with our The
301 prior in original decisions to our was filed brief State’s (2002), People Thurow, v. 378 v. Swift, (2003), People Crespo, Ill. 2d v. 203 and 2d Ill. 352 203 335 People Ford,
Relying upon in our decisions (2001), Hopkins, and 2d 68 (“when (2002) enhancing aggravating any statutory fac *** beyond proved doubt, a reasonable tor is exist according sentencing range original increases scheme”), initially argues statutory that the the State burglary, charges findings guilt jury’s residential robbery first invasion, and armed home sentencing range expand in trial were sufficient satisfy Apprendi requirements of this case thus Hopkins. interpreted in Ford and this court as findings jury’s that the first were State reasons equivalent finding that defendant committed the felony, aggravating in the course another murder eligible for factor that would have made the par. penalty. ch. See Ill. Rev. the death Stat. 1(b)(6). in Ford and Pursuant to this court’s decisions 9— Hopkins, life would thus have been a sentence natural sentencing range, finding within allowable engaged in and heinous defendant had brutal behavior cruelty could have been used to set indicative of wanton range. specific within the allowable Alterna sentence original citing, tively, alia, brief, inter Neder v. its Ed. States, U.S. 144 L. 119 S. Ct. United (1999), any argued Apprendi error the State “the harmless because case could be considered 86-year- clearly defendant murdered record reflects that ‘in a or heinous fashion indica old Millie Nielsen brutal repeatedly cruelty’ beat, stabbed of wanton when tive breaking apartment.” strangled her her after into acknowledged reply this court’s brief, In its the State 80-year holding sentence violated in Swift—defendant’s *12 Apprendi judge’s because it was based factual finding exceptionally that the behavior was brutal or position by heinous—but bolstered its reference to this Thurow, court, court’s decision wherein this for the Apprendi time, first held that an error could be deemed Thurow, harmless. See at 369-71. The State Crespo later obtained leave to cite this court’s decision in authority. Crespo, as additional In this court held that virtually Apprendi error, identical that had warranted plain reversal in not Swift, was error that would warrant reversal. The court reasoned:
“On overwhelming of this basis evidence that the crime heinous, was brutal concluding and there is no basis for Apprendi fairness, that ‘seriously violation affected integrity public reputation judicial or proceedings.’ of We jury, facts, have no presented doubt that a with these would have found that the crime was committed in a brutal and manner, heinous of cruelty. Accordingly, indicative wanton defendant has failed to show that the error was prejudi Crespo, cial.” 348-49. Clearly, after no there can be doubt that the Swift sentencing judge principles Ap- in this case violated of prendi when sentenced to an defendant enhanced upon finding term of natural life based his murder was committed in a brutal and heinous manner cruelty. equally However, clear, indicative wanton it is Crespo, Apprendi after Thurow and violation of resentencing kind will not warrant there where overwhelming evidence that the crime was committed in a brutal and heinous manner indicative wanton cruelty. The conduct of the this instance qualifies exceptionally as brutal heinous behavior cruelty any Thus, indicative wanton under definition. object defendant—who failed to at trial —cannot demon- analysis. prejudice purposes plain strate error body The medical examination of Nielsen’s Dr. external Chambliss revealed extensive and internal injuries. examination, In the course of external his Cham- about incises abrasions, bruises multiple found bliss arms. head, chest and her body, including upper Nielsen’s her left thigh, left found on were also Stab wounds Two additional forearm. her groin, part internal leg. left An on her were noted incise wounds strangula- of manual injuries indicative exam revealed tongue and tion, hemorrhages larynx, including injuries, trauma numerous blunt as well as esophagus, of the brain hemorrhaging of the membrane including Chambliss concluded larynx. Although and a fractured strangulation, manual as a result of that Nielsen died *13 and stab injuries force contributing factors of blunt injuries force were so the blunt wounds, believed from them alone. From could have died that she severe body was testimony, it is clear that Nielsen’s Chambliss’ in Physical evidence this with bruises. literally covered that prolonged struggle and suggests case an intense ended in her bedroom. in kitchen and began Nielsen’s behavior as behavior This court defines “heinous” evil; bad; enor grossly or hatefully shockingly that is Nielson, v. 187 Ill. flagrantly People and criminal. mously Lucas, Ill. (1999); v. 132 2d 445 People 2d 299 (1981). Pointe, La Ill. 2d 501 (1989); People v. 88 ruthless, grossly is that is “Brutal” behavior behavior or cruel and cold-blooded. mercy compassion; devoid of 445; Lucas, 2d La Nielson, 299; 132 Ill. at Finally, cruelty” 2d “wanton Pointe, 88 Ill. at 501. consciously sought to requires that the defendant proof of the offense. suffering inflict and the victim pain Pastewski, Nielson, 299; 187 2d at v. 164 People Ill. (1995). 189, 194 woman, senseless, elderly vicious murder this in beating, strangling, and stabbing
effected means robbery easily have order that could been perpetrate her, killing undoubtedly qualifies without accomplished The man- and behavior. exceptionally as brutal heinous ner of clearly the murder indicates the defendant consciously inflicted unnecessary mental and physical suffering victim, cruelty. on his indicative of wanton We no doubt jury, presented facts, have that a with these would have found that the crime in was committed manner, brutal and heinous indicative wantom cruelty. Accordingly, we find to comply the failure with the dictates of Apprendi require resentencing. does not In respect, judgment appellate is reversed, the remainder of the appellate court’s judg- affirmed, ment and the judgment of the circuit court is affirmed.
Appellate court judgment affirmed pari: and reversed in part; circuit court judgment affirmed. KILBRIDE, concurring: JUSTICE specially v. Today’s Swift, decision follows 202 Ill. 2d Thurow, (2002), (2003), 2d 203 Ill. People Crespo, I from dissented Thurow Crespo majority I believed, because continue believe, that an Apprendi violation can subject be never Nonetheless, harmless error review. having voiced I my disagreement previously, reluctantly in today’s concur opinion only because the doctrine of *14 stare decisis requires adhere we established precedent, even if certain disagree. members of Mitchell,