THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ANTHONY B. MERTZ, Appellant.
No. 96288
Supreme Court of Illinois
November 17, 2005
Rehearing denied January 23, 2006
Charles M. Schiedel, Deputy Defender, of Springfield, and Steven Clark, Assistant Defender, of Chicago, both of the Office of the State Appellate Defender, for appellant.
Lisa Madigan, Attorney General, of Springfield, and C. Steve Ferguson, State‘s Attorney, of Charleston (Gary Feinerman, Solicitor General, and Linda D. Woloshin and Jay Paul Hoffmann, Assistant Attorneys General, of Chicago, of counsel), for the People.
JUSTICE KARMEIER delivered the opinion of the court:
Following a jury trial in the circuit court of Coles County, defendant, Anthony B. Mertz, was convicted of first degree murder (
At the outset, we note that defendant‘s guilt is not in
Specifically, defendant contends (1) evidence of his “political statements, books, guns, tattoos, photos of girlfriends, internet articles, and sexually explicit sites” was either irrelevant or unreliable aggravation and was admitted in violation of the United States and Illinois constitutions; (2) aggravation testimony by a criminal “profiler” was improper as it was irrelevant and unreliable; (3) the use of “unreliable jailhouse informants and unreliable, uncharged crimes” in aggravation denied defendant a fair sentencing hearing; (4) “the death penalty is ‘fundamentally unjust’ under section 9-1(i) of the Criminal Code of 1961 (
We have thoroughly reviewed the record in this case.
BACKGROUND
On June 12, 2001, Shannon McNamara was found murdered in her apartment near the campus of Eastern Illinois University in Charleston, Illinois. The primary cause of McNamara’s death was subsequently determined to have been “asphyxia due to choking, due to a wash rag virtually stuffed into her mouth.” The washcloth had been so tightly packed into McNamara’s mouth that it had to be removed “forcibly” during the autopsy. The pathologist who performed the autopsy on McNamara described contributing causes of her death as follows: “manual strangulation, smothering by placing of the hand or hands over the mouth; hemoperitoneum, that is the presence of a large quantity of blood in the peritoneum cavity due to lacerations of the liver; and *** stab cutting wound to the abdomen.”
The pathologist noted one incise wound to the left side of the victim’s chin, five incise wounds to her neck, one long incise wound to her abdomen—running from the base of her sternum to the top of her pubis, exposing a portion of her bowel—one incise wound between the thumb and forefinger of her left hand, another to the base of her ear, an incise wound of the vagina, an incise wound extending from the sacral area of the victim’s back to her anus, three parallel incise wounds across the breadth of the victim’s back, and one incise wound running the length of her back.
In addition to incise wounds, the victim had multiple bruises and contusions over various parts of her body. Bruises were so numerous they were not assigned
Crime scene investigation revealed that entry into the victim’s apartment had been accomplished by cutting a window screen and opening an unlocked window. The victim was apparently attacked as she slept. The condition of the victim’s bedroom and bathroom suggested that a struggle had begun in the victim’s bedroom and continued in the bathroom, where the victim was eventually overcome. The dead or dying victim was then moved to the living room of her apartment where, in the opinion of crime scene investigator Richard Caudell, she was posed or “put on display.” The victim was laid out on her back, naked, except for a bra and a T-shirt, which had been pulled up to expose her breasts. Her arms had been extended over her head, and she had been mutilated with
Defendant was subsequently questioned and denied that he knew the victim or anyone living in her apartment. He admitted he knew two females lived in the apartment because he had seen them sunbathing. Defendant said he had never been in the victim’s apartment. Defendant was arrested and charged with McNamara’s murder and related offenses.
At the guilt phase of defendant’s trial, the State adduced compelling evidence of defendant’s guilt. As noted, his credit card was found on the floor of the victim’s apartment in the area where the struggle had taken place. Moreover, scrapings from the victim’s fingernails were analyzed and were found to be consistent with defendant’s DNA profile. Testimony indicated that profile could be expected to occur in “one in 1.8 billion white unrelated individuals.” Furthermore, shortly after the murder, investigating police officers observed marks on defendant’s face, scratches on his neck, abrasions on his knees, and bruises on his arms and elsewhere on his body. In addition, a search of defendant’s apartment revealed latex gloves secreted in a cloth bag. A box cutter was missing from defendant’s place of employment.
Various witnesses testified that defendant frequently entered locked apartments—with and without authority—using credit cards to compromise the locks. One of defendant’s friends testified that he had visited defendant a month before the murder and heard defendant mention the victim’s name. The witness testified: “[H]e was on a website and he was looking at sports teams that I
Defendant presented the testimony of another Coles County inmate who stated that the other inmate witnesses had fabricated their testimony to gain favorable treatment.
Defendant’s former girlfriend, Tara Hofer, also testified on defendant’s behalf. Hofer stated that she and defendant stayed at defendant’s grandmother’s house sometime prior to McNamara’s murder. According to Hofer, she and defendant had sex that evening, and she noticed “rug burns” on defendant’s knees when they got up the next morning. Hofer acknowledged she had been interviewed by police “on multiple occasions” following defendant’s arrest. She could not recall whether she had ever told them about the “rug burns.” Hofer also stated it was a common practice for students to use credit cards to open doors. Hofer further testified that defendant gave people permission to enter his apartment and access his computer equipment and belongings when he was not present.
Hofer stated on direct examination: “The police tried to get me to say that [defendant] had [a] problem with women and that he was violent.” She said that was not true. On cross-examination, Hofer admitted defendant had come home drunk one evening, pulled her hair, and
“Q. And did you tell Master Sergeant Bernardini that Mertz threatened to kill [you], break [your] neck, and threw you on the bed?
A. Yes.
Q. You told him that?
A. Yes.
Q. That was true, wasn’t it?
A. Yes.
Q. And he placed his forearm across your throat and choked you?
A. Yes.
Q. And he doesn’t have a problem with violence with women?
A. No.”
Hofer denied that she had told police officers, three months after the murder, that she would love defendant even if he had murdered McNamara. She said the police tried to get her to say that.
Jack Smith, a licensed private investigator, also testified for the defense. In support of defendant’s contention that he had cut his hand on a broken shot glass, Smith testified that he did in fact recover a broken shot glass from a trash can in defendant’s apartment.
Defendant was advised of his right to testify, and declined the opportunity. Following closing arguments, the jury was instructed on the applicable law, and subsequently returned verdicts finding defendant guilty of first degree murder, home invasion and aggravated criminal sexual assault.
The jury subsequently found defendant eligible for the death penalty in that defendant was at least 18 years old and had committed the murder in the course of another felony, i.e., aggravated criminal sexual assault or home invasion. See
The State first called Cathy Boyer. Boyer testified that she resided in defendant‘s apartment building in September of 2000 and, on one occasion, awoke to find defendant sitting in a chair in her apartment, watching television. She had not invited defendant into her apartment, and he did not have permission to be there. He appeared to be drunk. Boyer stated that defendant had previously opened doors in the building with a credit card and a knife. She knew him to be violent when he drank.
Roger Hudson, a foreman at Eastern Illinois University’s building services department, testified that defendant was a student worker under his supervision. Hudson said that defendant expressed an interest in female athletes. In the summer of 2000, Hudson was present when defendant said something to the basketball coach’s daughter. When she walked on without replying, defendant commented that he “ought to slap the tan off her face.” Hudson said he was aware that another building service worker had sold defendant a 9-millimeter pistol. Finally, Hudson testified that defendant had come to work one day in 2001 and commented that he had gone to Terre Haute, Indiana, “to the McVeigh execution[,] around through there.” Defendant referred to the scene as a circus. After a few minutes, defendant stood up and said—apparently in reference to the McVeigh execution—“We the people, of the people, killing our own people.” Defendant then walked out of the room.
Bobby Livingston, a building service worker with the university, testified that defendant had expressed sympathy for the “folks” in “Waco” and “Weaver Ridge.” According to Livingston, other employees were afraid of defendant. After defendant was arrested for McNamara’s murder, Lacie McDaniel, a student worker, told Livingston she had opened a closet door and had seen defendant “standing on the sink, doing something up high.” Liv-
John Blevins, a Charleston police officer, testified that Lacie McDaniel had advised him that on June 12, 2001, at approximately 5:30 p.m., she observed defendant standing on a sink in a janitor’s closet with his hands above his head. When McDaniel told other building workers, they went to the closet and discovered a weapon. Blevins subsequently removed a .22-caliber revolver from ceiling tiles in the closet.
Blevins also testified that on April 12, 2001, at approximately 3:45 a.m., he was dispatched to 1128 Fourth Street in Charleston to investigate a report of two men fighting. Upon his arrival, Blevins heard a woman scream and observed defendant struggling with a man later identified as Brian Catt. The woman, Amy Joyner, pointed out defendant, and Blevins grabbed defendant, only then noticing that defendant had a knife at his side. Joyner later informed Blevins that she and Catt had been walking by defendant’s building when defendant asked them if they wanted to come up to his apartment and “party.” Joyner and Catt went up to defendant’s apartment and had a few drinks. When defendant started flirting with Joyner, Catt and Joyner started to leave. Defendant then called Joyner a “narc” and pushed her down. Joyner got up and again tried to leave, and defendant again pushed her to the floor. Joyner told Blevins when she looked up she saw that defendant had “a dagger” in his hand. At that point, Catt and defendant started fighting. Catt’s version of events was consistent with Joyner’s. Defendant said he could not remember what had happened. Joyner suffered an abrasion on her forehead and abrasions on her knuckles. As a result of the incident, defendant was charged with aggravated assault, a charge that was still pending when defendant was tried on these charges.
Defendant had previously been convicted of battery in 2000. A certified copy of that conviction was introduced as evidence. The attendant probation order, which was signed in January of 2001, indicated that defendant was on probation at the time of the incident involving Joyner in April of 2001, and at the time of the McNamara murder in June of 2001. Paragraph eight of that order states that defendant “shall not possess a firearm or other dangerous weapon.”
Michael Jordan, the jail inmate who had previously testified against defendant, was called as a witness at the aggravation/mitigation phase of sentencing. According to Jordan, defendant said he had secreted a gun over at the college, where he worked, and had one at his house as well. Jordan said defendant told him he did not intend to spend the rest of his life in prison if things went badly at trial. Jordan stated that defendant had a wire and could pick handcuffs. If convicted, defendant planned to pick his handcuffs in the tunnel between the courthouse and the jail, and go for a guard’s weapon. Defendant also indicated he wanted to “get even” with Mark Stabler for testifying against him. Jordan said that defendant had saved articles about himself while incarcerated and awaiting trial.
Douglas Paul testified that he was one of defendant’s good friends prior to June 12, 2001. When Paul was in defendant’s apartment, prior to that date, he noticed an article pertaining to the June 1999 murder of Amy Warner in Charleston, Illinois. Defendant had the article posted on his wall. Defendant told Paul he had killed Warner. He referred to Warner as “white trash.” Paul testified that, when he broke up with a woman in January of 2000, defendant asked him if he wanted defendant to “get rid of her.” Paul stated he had seen defendant slashing the tires and seats of a Jeep after a party in July of 2000. Paul also remembered defendant yelling a
Brian Beavers, another friend of defendant, testified that he had observed defendant use a credit card to enter other people’s apartments. Defendant also told Beavers, without prompting, that he had burned down the apartment building across the street. On another occasion, defendant told Beavers he had murdered a girl in 1999, though Beavers did not think he was serious at the time.
Kristi Dewitt testified that she was a part-time police officer for Rossville, Illinois, in December of 1997. Her husband was also a Rossville police officer. Defendant came to her residence one evening at 5:30 p.m. in December of that year, asking to speak with her husband. Dewitt told defendant her husband was busy and could speak to defendant when he went on duty at 6 p.m. Dewitt’s husband was in the bathroom getting ready for work. Defendant said he “needed to speak with him now.” After several verbal exchanges, Dewitt asked defendant to leave. Defendant then stepped toward her aggressively, and Dewitt positioned her eight-year-old son (who was present at the door during the exchange) safely behind her. Dewitt stepped forward and told defendant if he did not leave she was going to arrest him for trespassing. Dewitt said she felt threatened by defendant. Dewitt’s husband heard the argument and came out to speak to defendant. Dewitt’s husband had to tell defendant to leave more than once before defendant finally departed. Dewitt said defendant was very loud and demanding with her. When defendant left, he spun his tires and threw gravel.
Lisle Farnum testified that he and defendant were
Jeremy Deck, Tara Hofer’s cousin, testified that he socialized with defendant and Hofer for a time and often observed defendant enter locked apartments using a credit card. Deck saw a “poster” in defendant’s apartment, mentioning Amy Warner.
James Rankin, a Coles County court security officer, testified that he had worked as a jailer in May of 2002 at the Coles County Safety and Detention Center. On May 28, 2002, defendant and another inmate were involved in an altercation. Defendant initially had the other inmate in a “bear hug,” and the incident quickly developed into a “full out fight.” Rankin ordered all the inmates to lock down, and everyone did except those two. By that time, the other inmate had gotten defendant in a headlock and was punching him in the head. Rankin yelled at them to break it up, and the other inmate put his hands back to give up. Defendant then put his arm around the other inmate’s neck and hit him twice. Rankin called for backup and tried to stop the fight. Rankin told defendant to back off several times, to no avail. Defendant, who had the other inmate up against the bars of a door, asked Rankin if he wanted to take the other inmate’s place.
Terry Tillis testified that he was assigned to the Coles County Safety and Detention Center on May 16, 2002, when another officer contacted him about a verbal altercation in one of the cellblocks. Inmates were yelling at correctional officers and throwing trays of food. The inmates were also cursing at the officers and refusing to deadlock. Defendant, who was involved in the incident, was subsequently moved to a high security cellblock and was disciplined as a result. Thereafter, on January 16,
Anthony Lauletta testified that he returned to Charleston in February of 2000, after having been away for the weekend, and he saw that the structure across the street from his apartment building had burned to the ground. Defendant, who broached the subject in a joking manner, stated that he had burned it down. Lauletta noted that none of his other friends joked about burning down the building. Lauletta said defendant had stated he had been in all of the apartments in the building during Christmas break of 1999. Defendant also told Lauletta he had known Amy Warner personally. Lauletta knew defendant owned a handgun.
Christopher Howard was called as a witness and testified that he lived in defendant’s apartment building. Howard said defendant was verbally abusive to defendant’s girlfriend, Tara Hofer, calling her a “bitch” and a “cunt.” Sometimes, after they argued, Hofer would come to Howard’s apartment to cry and complain. On occasion, her neck would be red. Howard also testified that defendant had admitted setting the fire at the apartment building across the street. Finally, Howard stated that defendant owned a 9-millimeter handgun, which he kept in his apartment.
Hillary Spitz, a correctional officer with the Coles
Kris Phipps, the assistant fire chief for the Charleston fire department, testified that, on February 13, 2000, he responded to a fire at an apartment building under construction in the 1100 block of Fourth Street in Charleston. Phipps said the fire was later determined to have been the result of arson. Damage to the structure itself was estimated at $3.1 million. Eleven other structures were damaged as a result of the fire, two of which were damaged so badly they had to be demolished. There were approximately 20 vehicle exposures, and several vehicles were destroyed. A backhoe, two forklifts, and a construction trailer were also destroyed.
Patricia Winborn testified that she lived in Charleston in June of 1999 and worked with Amy Warner. Winborn was also acquainted with Tara Hofer. Hofer worked at the day-care facility where Warner’s children attended. Through Hofer, Winborn met defendant. Warner had two children: a four-year-old girl and a seven-month-old boy. Winborn baby-sat for Warner’s children three weeks prior to the murder. Winborn cared for the children at Warner’s house, and she invited Hofer and defendant over to watch movies. There were photographs of Warner in the house.
Winborn also testified that she had gone to a local tavern with Hofer and defendant one evening and, while Hofer was away in the restroom, defendant grabbed Win-
Adam Rhoads, a correctional officer with the Coles County sheriff’s department, testified that on November 11, 2001, he responded to a fight in one of the cellblocks of the Coles County Safety and Detention Center. An inmate informed Rhoads that he had been in an altercation with defendant. The inmate had a scratch on his neck and a red, swollen left eye. The inmate told Rhoads he had taken exception to defendant ordering him around and defendant responded by punching him in the eye.
Sam Gaines, a correctional officer with the Coles County sheriff’s department, testified that he was on duty on May 16, 2002, when defendant asked him what time it was. Gaines estimated the time because he did not have a watch. Defendant responded, “That figures, you’re all fucking worthless.” After defendant made that remark, another inmate also made an “uncomplimentary” remark. Then defendant and the other inmate used additional obscene language and began rattling the bars of their cells. Gaines turned off their television and said they could have their television privileges back when they calmed down. Defendant, in an “impolite manner,” escalated his tone and things started to get out of control. Gaines had to summon help to quell the disturbance.
Jeff Marlow, an investigator with the Illinois State Police, testified that he met with Darsann Barker on February 4, 2002. Barker told him she had been the victim of a sexual assault that occurred when defendant was in the Marine Corps and stationed in California. Barker, an airline stewardess, had met defendant in 1996, and a relationship developed which continued for several weeks. That relationship eventually resulted in consensual sex on March 16, 1996. Barker stated she had been a virgin prior to that encounter. She described the episode as “rough sex.” Barker said defendant was mean to her
Kimberly Lille testified that she lived in defendant‘s apartment building in May of 2001. Lille stated she woke up one night in May of 2001 and heard sounds coming from defendant‘s apartment. Then she heard “footsteps down the stairs” and “thumping, like chasing.” Lille got up to see what was going on. When she looked out the window, she saw Randi Morris, with whom defendant had a relationship, sitting in a car. Morris was crying and disheveled. Defendant was standing by the car, holding the door open.
Randi Morris testified that she dated defendant in May of 2001. The relationship lasted two weeks. Morris ended the brief relationship on May 26, 2001. Morris had consensual sex with defendant twice. During those encounters, defendant bit her on the neck, which left a “very massive bruise,” and on her leg and under her buttocks, which also left a large bruise. On the evening of May 25, 2001, Morris went to defendant‘s apartment, where a group of people had gathered. At one point in the evening, defendant and a female started wrestling. Defendant threw the woman down on his coffee table, breaking it. Defendant was also pulling the woman‘s hair. Eventually, everyone left and she was alone with defen
She tried to be nice to defendant, making excuses that she had to go to work early, but defendant told her, “You‘re not going anywhere.” Morris told defendant she had to go to the bathroom. While she was inside, defendant stood outside the bathroom door. Morris determined that the bathroom window was too small for
Morris waited until defendant was asleep, then she jumped up and opened the door. Defendant woke up and tried to stop her from leaving, but she eluded him and ran down the steps to the front door, with defendant in pursuit. Morris got in her car and tried to shut the door, but defendant prevented her from doing so. He tried, unsuccessfully, to take her keys, then he reclined her seat and tried to get on top of her. Eventually, Morris succeeded in raising the seat, closing the door, and starting the car. Defendant jumped into the backseat, and then crawled into the front passenger seat. He said he was sorry, that he could not remember what he had done. He refused to get out of the car, so Morris drove to her apartment with defendant in the vehicle. When she arrived at her apartment building, defendant followed Morris to her apartment and forced his way inside. He laid down on her bed and pulled her down beside him. She waited until defendant fell asleep, then she left for work. Defendant was gone when she returned.
Morris stated she was very sore after the incident. Her anus was painful from the sexual assault, and her back and neck hurt as if she had been in a car accident. She did not contact the police because she was afraid they would not believe her and she felt humiliated. After
Morris said defendant told her the Marines taught him to kill without remorse. At the time, Morris thought the comment odd, and she was not sure what defendant meant. Morris noticed that defendant had books about Hitler and Nazism. Defendant possessed books entitled, Pipe and Fire Bomb Designs, The Anarchist‘s Cookbook, SS: Blood Soaked Soil, Hitler‘s Enforcers, Mein Kampf, as well as Marine Corps training manuals. Defendant told Morris he respected Hitler for trying to “purify his race.”
The State next called Keri Guillory. Guillory knew defendant through her boyfriend, Brad Adams. Adams had been in the Marines with defendant. Adams resided with Guillory in Louisiana, and defendant would come to visit during the Christmas holidays. When he did, defendant stayed at Guillory‘s residence. On his second visit, defendant brought his girlfriend, Tara Hofer. Guillory said that defendant treated Hofer badly and would talk down to everyone. When he got drunk, he got mean. She did not want him to come back after his second visit.
When he returned for Christmas of 2000, defendant was drunk every day. Defendant kidney punched her twice in a bar. Circumstances dictated that she take him to a family friend‘s home while Adams was at work. Guillory testified, “[The] next thing you know he is whispering in my sister‘s ear.” Guillory‘s sister was 15 or 16 years old at the time. Guillory testified she had to pull defendant away from her sister. Later, defendant put his hand on the inner thigh of an older woman of the household. When she got up, defendant spilled his drink on the carpet.
The State presented testimony that defendant‘s computer was seized, pursuant to a search warrant, on the day of his arrest for the McNamara murder. Computer data analysis revealed that defendant had logged off his computer at 3:29 a.m. on June 12, 2001, the morning of Shannon McNamara‘s murder. Defendant‘s Yahoo identification name was “Cereal Kilr 2000.”
On defendant‘s computer, an Illinois State Police analyst found images of adult females posing nude or involved in sexual activity. Some images depicted adult females engaged in sexual activity with a dog and a horse. There were also images of nude children and sexually explicit cartoons. On June 11, 2000, someone accessed information on date rape. On June 11, 2001, someone went to a website and read articles about Timothy McVeigh‘s trial and activities, and examined articles pertaining to the manufacture of methamphetamine.
Sergeant Kevin Paddock of the Charleston police department testified that he executed a search warrant
Paddock was also involved in the investigation of the murder of Amy Warner in Charleston on June 29, 1999. Warner was found dead in her apartment, her throat slashed, her children in an adjacent bedroom. At the time of the murder, defendant lived less than a mile from Warner‘s house.
Joe Siefferman, a field supervisor for the Illinois State Police, testified as an expert in crime scene reconstruction. Siefferman was involved in both the McNamara murder investigation and the investigation of the Warner homicide two years earlier. Siefferman described the scene of the Warner murder and identified photographs depicting the crime scene. Siefferman noted that Warner was found lying partially on her couch and partially off. Her feet and torso were on the couch; her head was off the couch on a cushion on the floor. Her arms were outstretched above her head. She was wearing a pink T-shirt, but was otherwise naked. She had what Siefferman described as a “very large cut on her throat” that resulted in a significant loss of blood. Indeed, photographs show that Warner‘s throat had been slashed from one side to the other. Warner had defensive wounds on her left hand. The physical evidence indicated that Warner was positioned facedown when her throat was cut. Her body was turned over after her throat had been cut so that her wounds and the front of her body would be exposed. In Siefferman‘s opinion, Warner‘s injuries were intentionally exposed for effect.
Siefferman noted several similarities between the Warner and McNamara murders. First, both victims ap
On cross-examination, Siefferman acknowledged that McNamara died from strangulation and suffocation, whereas Warner was killed by slashing her throat. He also acknowledged that the washcloth found near Warner‘s body may have gotten there when her four-year-old daughter attempted to wipe the blood off of her mother and wake her up.
Mike Nichols, the coroner of Coles County, testified that Warner died of “massive blood loss” as a result of a “massive incise wound” of the neck. Autopsy results indicated there were recent contusions to the victim‘s vagina, which, the autopsy report concluded, may have been the result of nonconsensual vaginal penetration.
Patrick Callaghan testified that he was previously employed with the Illinois State Police and had been involved in both the McNamara and Warner murder investigations. He noted similarities in the two murders and began looking for connections between defendant and Amy Warner. He first learned that Doug Paul had indicated defendant had admitted murdering Warner. Investigators then learned from Patricia Winborn that defendant had been in Warner‘s house approximately two weeks before the murder. Tara Hofer was interviewed and told investigators she had to go to bed early on the night of the murder and defendant had stayed up late. She said she remembered the date because Warner‘s children went to the day-care facility where she worked and the murder was “all of the talk the next day.” Callaghan testified, when he interviewed Hofer in August of 2001, Hofer told him she would love defendant even if he had murdered McNamara and Warner.
In the instant case, Wright was asked to review autopsy photos, crime scene photos, police reports, and witness statements, pertaining to the murders of Shannon McNamara and Amy Warner. With respect to the apartment building fire, Wright was provided with police reports, photos, and reports of the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Charleston fire department. Wright was asked to make comparisons and look for similarities in the two murders and the arson. Wright was also provided with a criminal history of defendant, a record of his contacts with police, as well as his military and educational records.
Wright said what he does is not a science. Rather, it
Under cross-examination, Wright stated he had been initially asked in this case to compare the crimes and say “whatever [he] could about the individual that committed the three crimes or if they could possibly be connected.” Wright was later requested to evaluate the crimes, evaluate defendant, and render his opinion as to whether defendant was responsible. Wright testified there were approximately 25 or 26 doctors, psychiatrists, and psychologists who work with his company as consultants on their cases.
At the conclusion of defense counsel‘s questioning, counsel objected to Wright being qualified to testify as an expert. The trial court overruled defendant‘s objection, and the State proceeded with direct examination.
Wright testified that crimes can be categorized as “organized” or “disorganized.” In an organized crime there is evidence of preplanning, such as selecting a target and bringing a weapon. In a disorganized crime there is no indication of preplanning, and the crime scene “looks a lot sloppier.” Wright stated that a crime might start out organized and become disorganized if the perpetrator meets unexpected resistance or is interrupted.
Wright characterized the McNamara murder as a “mixed crime scene.” There was evidence of organization and preplanning in that latex gloves were used to keep from leaving fingerprints, and there was reason to believe an effort was initially made to enter the apartment by “slipping” the door lock with a credit card that was found at the scene. When that plan was thwarted by a deadbolt, an alternative plan was utilized, i.e., cutting the window screen with a box cutter to gain entry. Wright
However, when defendant encountered unexpected resistance, the crime became disorganized, and defendant left evidence behind. Wright testified there were “indications of anger” in the commission of the offense, particularly, “the probable stomping [of] the body to lacerate the liver.” Defense counsel objected on the ground that Wright had “no psychological training or background” to make “those kind of assessments.” The court overruled the objection, and Wright continued:
“[A]nger can be *** caused by a lot of different things. But certainly somebody resisting robs somebody of control and tends to make people who like to have control very angry at the person that takes that control from them.”
Wright testified it appeared defendant regained his composure after the struggle was over. He disposed of the murder weapon in a dumpster and was later seen putting a handgun in the ceiling of a janitor‘s closet in the gymnasium where he worked.
Wright noted that the Warner murder appeared to have been much more organized. There was a lesser degree of resistance. Warner was apparently caught totally by surprise and quickly overwhelmed. Wright noted there were wounds to the neck of both victims. Similarly, Wright observed, reports from other young women who had violent encounters with defendant indicated the throat had been a point of attack. Wright pointed out another similarity between the McNamara and Warner murder scenes: in each instance, the victim‘s arms were extended over her head.
Speaking of the attributes of arsonists, Wright noted that studies indicate arsonists experience a “sense of
Wright also commented on the newspaper article on the Warner murder that defendant had posted in his apartment. Wright went on to testify that serial killers and serial rapists tend to keep articles about the crimes they commit.
Wright testified, over objection, that defendant‘s history showed a lot of anger toward women. He stated his belief that past behavior is the best indicator of future behavior.
Wright noted that the consumption of alcohol was often a factor when defendant engaged in inappropriate behavior; however, his violent and aggressive conduct continued even after he was incarcerated. Moreover, Wright noted both the McNamara and Warner murders exhibited preplanning. The preplanning of the McNamara murder in particular shows that defendant was “thinking fairly straightly” when he committed it. He was not in a drunken stupor.
Wright testified that he was familiar with the Anarchist‘s Cookbook, which explains “how to make bombs, how to kill people, how to disrupt government, how to be an anarchist.”
On cross-examination, Wright admitted there were dissimilarities between the two murders. For example, Warner‘s body was not mutilated to the extent that McNamara‘s was. Moreover, there was no evidence of forced entry in the Warner murder. Wright maintained that defendant was likely to repeat his conduct in the future since he was “seemingly unable to learn from his mistakes.”
After the victim‘s mother, Cindy McNamara, presented victim impact testimony, the State rested, and the defense commenced its case in mitigation.
The defense first called Allen Mertz, defendant‘s father. Mertz testified that he separated from defendant‘s mother around the time of defendant‘s birth. He soon got custody of defendant and his siblings, and the children initially went to live at his mother‘s house. After Mertz acquired a suitable house, and he met the woman he would eventually marry, the children moved in with him. Defendant was not quite five years old. Mertz stated that defendant attended Rossville Methodist Church as he grew up. Mertz thought he had a “fantastic relationship” with defendant. The family would go fishing together, and though he worked long hours, Mertz would occasionally make it to defendant‘s football games. Mertz stated, for defendant‘s eighteenth birthday, he got defendant a tattoo.
Defendant‘s paternal grandmother, Dorothy French, testified that defendant came to live with her when he was still in diapers. After that, defendant‘s natural mother essentially had no contact with him aside from sending him an occasional birthday card. French stated that defendant lived with her until he was in the “third or fourth grade.” He stayed with her two or three years
French testified that defendant attended Sunday school regularly, and had a perfect attendance for 12 or 13 years. French took defendant to church, and defendant‘s father would attend church programs in which defendant was involved. French described defendant as a “good boy” in high school. He got good grades and participated in football. He left Rossville after graduation, when he joined the Marines. After that, she saw him when he came home on leave, as he would usually stay at her home. He often wrote her letters and called her. After the Marines, defendant attended college at Eastern Illinois University, and visited her on the weekends. She stated, “To him, I‘m his mom.” French did not believe that defendant was changed by his experience in the Marines.
Brandy Mertz, defendant‘s youngest sister, initially testified that she had “trouble remembering things at times.” Asked why, she stated, “I believe it‘s because of my stepmother hitting my head into the wall.” Defense counsel then asked her: “You don‘t know that but you think that?” Brandy responded affirmatively.
Despite her problems with recall, Brandy testified that she, defendant, and their older sister, Christina, did not get along well with their stepmother when they were children. Brandy testified: “She was mean to us. She abused us.” Brandy said that their sister, Christina, was
On cross-examination, Brandy admitted that, despite the alleged abuse she had suffered, she had never been arrested and had never committed violent crimes against another person.
Michael Mahorney, defendant‘s uncle, was called to testify, and was initially questioned about the details of Mahorney‘s alcohol consumption. Mahorney stated, earlier in his life, he had consumed between one and two cases of beer a day. He claimed, later in life, he drank “three to four fifths a night plus a six-pack or twelve pack of beer and three or four shots of tequila. And that was seven nights a week.” Mahorney said, at the time of trial, he consumed perhaps one beer every two months. Mahorney testified that defendant‘s father usually drank brandy or beer, and Mahorney had only seen defendant‘s father drunk on one occasion. Mahorney acknowledged, despite heavy drinking during a portion of his life, he had only been arrested on one occasion, for illegal consumption of alcohol, and his drinking never resulted in violent behavior.
Speaking of defendant, Mahorney described his nephew as a “typical boy,” who engaged in normal activities. Mahorney saw defendant frequently when he was growing up—every weekend or every other weekend—
Lisa Masengale testified that she attended church with defendant when she was growing up, and they were friends in high school. Defendant was interested in history in high school, and he loved to read. He was protective of underclassmen, and was himself picked on to some extent. He was “not the most popular guy.” After high school, she corresponded with defendant while he was in the Marines, and saw him occasionally when he was in college. In college, he attended Bible classes for awhile. He always had a strong connection to church and family. Though she had seen him drunk, and had seen him use drugs, she had never seen him angry. She had always seen defendant treat his girlfriend, Tara Hofer, with respect.
Darlene Edwards testified that defendant is her step-grandson and she “knew him from his first two or three years” when he was “with his mom.” According to Edwards, when defendant cried, instead of picking him up and feeding him, his mother screamed at him and let him cry. Defendant‘s mother was a “very messy housekeeper” and did not keep her children clean. Edwards testified to occasional and moderate drinking by two members of defendant‘s maternal lineage.
Myron Ward testified that he had been defendant‘s high school history teacher. He remembered defendant as an average to slightly below average student, and one who was, perhaps, indifferent to, or not interested in, history. Ward said defendant was not exceptional as a disciplinary problem, but he did share the details of one incident when defendant shot a rubber band at him and defendant, when confronted by Ward, made an inappropriate remark. Ward said, after defendant got out of the service, he came to visit Ward in the classroom, and defendant said “something to the effect that he was sorry
Ian Tuggle testified that he and defendant were friends as children. They fished and played together. Tuggle visited in defendant‘s home “just about every day” and knew defendant‘s sisters and stepsiblings. On one occasion, when Tuggle stayed overnight at defendant‘s house, Tuggle waited until defendant and his stepbrother, Bruce, were asleep, then went into the bedroom of defendant‘s stepsister, Rose, and had sex with her. Tuggle was 10 or 11 years old at the time, and Rose was five years older. Tuggle testified he did not feel the experience with Rose was “anything negative at all.” He had not experienced any problems later in life because of it. Tuggle stated that he and defendant had always been friends, and defendant had not had any problems with anyone in high school. He was just an “average kid.”
Jennifer Walker tutored defendant in Spanish at Eastern Illinois University. She also saw defendant when he went to church at the Wesley Foundation in Charleston. Defendant told her a little about his life and indicated his parents “weren‘t very involved with him.” He reminded her of someone who had had a difficult life. There was a barrier that made it difficult to get to know defendant. On cross-examination, Walker acknowledged that she had not regularly socialized with defendant; she had only visited with him twice after services.
Kathy and Jerry Douglas testified on defendant‘s behalf. They met defendant when his grandmother first brought him to church. He was one year old. Kathy Douglas described defendant, in his early years, as “cute and
Michael Shirley, defendant‘s undergraduate advisor and history professor at Eastern Illinois University, testified that defendant was a “little above average” in academic ability. Shirley did not notice anything out of the ordinary in defendant‘s interactions with other students. Shirley recalled an occasion, when he had asked defendant about a paper defendant had neglected to turn in, that defendant said he was an alcoholic and was “having some problems.” Shirley asked defendant if he had ever been to Alcoholics Anonymous, and defendant replied that he had. Shirley told defendant he should probably start going again. Defendant, who normally smiled and laughed when he spoke with Shirley, was initially impassive during their discussion, but later started crying.
Tara Hofer testified that she used to live with defendant and, on one occasion, in 1999, he was physically abusive to her. Hofer recalled a shopping trip to Terre Haute, Indiana, when she and defendant passed the federal prison where Timothy McVeigh was housed. Hofer said defendant made no comment about McVeigh.
Hofer said she had visited with defendant‘s family. Defendant got along well with his father, but there was tension between defendant and his stepmother. Defendant called his grandmother “Mom.”
Hofer testified that defendant came to bed at 2 a.m. on the night of the Warner murder, and he was not drinking that night. Hofer said she would have awakened if he had gotten out of bed after that. Hofer stated she did not notice defendant get out of bed on the evening of the fire either. Under cross-examination, Hofer admitted she had not told Agent Callaghan that defendant had been in bed with her all evening the night of the Warner murder. Hofer said the articles concerning date rape on defendant‘s computer were ones she had downloaded for a class presentation. She testified that other people also used defendant‘s computer.
Lisle Farnum, a friend of defendant‘s from the Marine Corps, testified that defendant achieved the rank of lance corporal in the Marines. Farnum generally described their duties and activities while in the Marines. He described defendant as an excellent Marine. He said defendant was disciplined, fair and honest. He had strong leadership skills and “a good mind for organization.”
Under cross-examination, Farnum stated they had last received shots and pills in 1997. Farnum did not experience any lasting problems as a result of the medication given to him in the Marines. Moreover, he acknowledged that his Marine experiences did not cause him to fight with women.
Rosella Ray testified that she had known defendant since he was a little boy. She was his Sunday school teacher and his “faith partner” for confirmation. Ray said defendant treated his grandmother with great love and respect. Under cross-examination, Ray acknowledged that defendant had the support of his church and a loving grandmother as he grew up and throughout his years in high school.
Summer Jacobsen Summers testified that she met defendant in August of 1996 and they dated for several months. They had a sexual relationship, which Summers described as “emotional.” At that time, defendant was not aggressive sexually. Defendant helped her with her young daughter, and she considered the three of them a family unit. Summers had seen defendant drunk, but never violent. She ended the relationship when he went overseas, but she kept in contact with him. She described defendant as “intelligent, hard working, organized, supportive, caring.”
Lisa Hislop met defendant in a bar in 1999. They later dated and the relationship eventually evolved into a sexual one. She described defendant as “affectionate,
Under cross-examination, Hislop admitted she met defendant while he was still dating Summer Jacobsen Summers, but defendant did not tell her about Summers. Hislop e-mailed defendant at “Cereal Kilr 2000.” Defendant told her the e-mail address “was something he read or saw on TV.”
Brad Adams met defendant in the Marines and they remained friends thereafter. Adams was defendant‘s roommate in Camp Pendleton. After their first deployment to Okinawa, they began to drink “excessive amounts.” At one point, defendant would drink a fifth of whiskey and a case of beer during a single session of drinking. Defendant became violent when he drank. Once, defendant got into a fight with a sergeant and Adams had to physically restrain defendant, punching him a couple of times in order to subdue him. The next day, defendant did not remember what had happened. He later spoke with the sergeant, who did not ultimately file charges. Adams said there were many occasions when defendant could not remember what had happened the night before. When drinking, defendant could be obnoxious, irritating, and hard to control. Adams said he knew Darsann Baker. According to defendant, it was Baker who was out of control at Camp Pendleton. Adams said the military police had to subdue her. Adams admitted he and defendant got into trouble for methamphetamine use while in the Marines.
After he got out of the Marines, Adams lived in Louisiana with Keri Guillory. After defendant‘s second visit with them, Guillory complained that defendant was irritating and disrespectful. During defendant‘s third
Adams said defendant had headaches frequently, and he took a lot of prescription drugs. Defendant talked about militia groups in the news. Asked what he said about them, Adams responded, “[I]t wasn‘t anything abnormal.”
Summing up defendant as a Marine, Adams stated: “You could trust [defendant]. You knew he had your back. You knew he could carry his own. He wasn‘t going to drop the ball and you could depend on him.”
Under cross-examination, Adams acknowledged he took the same medication for malaria that defendant took before his overseas deployment, yet Adams had not been charged with violent crimes and had adjusted well to civilian life after his time in the military. Adams admitted defendant had been demoted in rank as a result of his methamphetamine use. Adams further acknowledged that defendant had been ordered into rehabilitation, against his will, and that he continued to drink afterward. Defendant was violent when he drank. Adams conceded that defendant was disrespectful to his girlfriend, Tara Hofer. Adams said he asked Guillory to drop the charges against defendant, which resulted from defendant‘s attack on Guillory. Adams tried, unsuccessfully, to get defendant to apologize to Guillory.
Daniel Cavallini testified that he owned Cyber Data, a business specializing in computer evidence and data recovery. Cavallini noted, under certain circumstances, an Internet user would not need to have a password. If, for example, a computer is already logged on to the Internet, no password would be necessary. Cavallini also testified that a person engaged in data recovery could not tell who was responsible for the temporary Internet files on defendant‘s computer. Although pornography was viewed on the computer, no pornography was saved
Christina Mertz, defendant‘s older sister, testified that she, defendant, and their sister lived with their natural mother prior to moving in with their grandmother. She stated that her mother‘s house was dirty, insect-ridden, and cold. She felt wanted and loved when they lived with her grandmother.
When their father remarried, they moved in with him. He worked long hours and they really only saw him on weekends. Their stepmother was prone to mood swings and rarely came out of her bedroom. The children were not allowed in their parents’ bedroom. The children stayed away from their stepmother as much as possible. Christina described an incident in her youth when her stepmother made her take off an outfit—which her stepmother deemed unacceptable—in front of her stepbrother and his friend. She was wearing only a bra and panties underneath the outfit. Christina testified that their stepmother punished them by spanking them with a “switch from a tree.” Christina said she tried to take the blame whenever possible to protect defendant and Brandy.
When defendant was in the Marines, he told Christina he thought he had a drinking problem, and would try to quit, but he just continued to drink. She tried to get defendant to participate in a residential program with the Veteran‘s Administration before he went to college, but defendant refused. Christina said her uncle Mike also had problems with alcohol, as did two cousins, though she did not provide details.
Under cross-examination, Christina admitted that she—notwithstanding her difficult childhood—has had a successful career in, and associated with, the Air Force. Moreover, she noted that defendant was able to control his drinking, or even abstain, when he visited her.
Barry Hargan, a forensic consultant focusing on substance abuse evaluations, testified that he rendered opinions on “addictive disorders,” and he conducted a study of defendant. As a part of that study, Hargan spoke with defendant and his sister, and reviewed defendant‘s “records.” Hargan determined that defendant satisfied the criteria for alcohol dependence. Moreover, Hargan believed defendant‘s dependence was genetically influenced. He stated there was “a family history on both sides of the family including his father, his uncle, his grandfather, and there was also suspicion that his mother was also involved in alcohol abuse too.” Hargan concluded, “[T]he family history was quite significant from a hereditary or genetic perspective that Mr. Mertz‘s alcoholism was genetically influenced.” Hargan also addressed the phenomenon known as an “alcoholic blackout.” Hargan testified that a “blackout” refers to a state of mind during which the intoxicated person is unable to form memories of what he or she is doing during the period of intoxication.
Under cross-examination, Hargan acknowledged that he had considered information contained in the reports
Jack Smith, a private investigator retained by defendant‘s attorneys, testified that he went to defendant‘s apartment in July of 2001. He noted that some of the books and compact discs removed from defendant‘s apartment bore innocuous titles. It was stipulated that there were no compact discs by a band called Serial Killer. Michael Dennis, a mitigation investigator for the defense, testified that he received a letter from defendant‘s mother in which she stated that she had no contact with defendant because his father would not permit it.
Defendant took the stand to testify in his own behalf. Defendant testified that he could not remember his natural mother. His first memory was living with his grandmother. Speaking of his time with his grandmother, defendant stated, “Everything was perfect.” He considered his grandmother his mother, and his grandfather his father. He went to church and Sunday school with his grandmother every Sunday. He had perfect attendance for 13 years. Defendant said he attended church from the time he started going with his grandmother until the week before he was arrested.
Defendant claimed that his father had struck him several times. However, he also stated he did not see his father much. He said he saw his father strike his stepmother a few times as well. His stepmother usually stayed in her bedroom and kept a sign on the door advising the children to keep out. His sister, Christina, was basically his mother until he graduated from high school.
Recalling his years in high school, defendant identified his favorite class as history. He acknowledged the incident in history class when he shot rubber bands at the teacher and then made an “untoward remark” when confronted by the teacher. Defendant said he went back and spoke to his teacher about that incident six years later. Although defendant‘s father did not attend his football games, his stepmother attended one. His father and stepmother did attend his high school graduation. Defendant stated his goal upon graduation was to get out of his parents’ house. His father got him a tattoo for his eighteenth birthday, and defendant got drunk to celebrate.
Defendant joined the Marines upon graduation, and
Defendant stated there were periods of time in the military when his drinking was somewhat in check. According to defendant, Summer Jacobsen Summers and Lisa Hislop helped him to stay sober. Defendant said he dated Summers after his first overseas deployment, and he was “madly and deeply in love with her.” Defendant stated they “pushed each other apart” shortly before his second deployment, and he was heartbroken at the breakup.
Defendant participated in counseling and an inpatient treatment program during his time in the Marines. He was given Antabuse, and he said he stayed sober for three months thereafter. Defendant supplied exhaustive details of his drinking habits in college. Defendant said he went to the university‘s counseling center for his drinking, and was told to go to the Veteran‘s Administration facility in Danville. A doctor
Defendant acknowledged he had been arrested for drunk driving on four occasions and he had violated a city ordinance when he was found passed out, drunk, and naked in front of his apartment building. Defendant said he could not recall some of his more egregious conduct. He stated he had been in a couple of fights he did not remember; someone told him about them afterward. He claimed he could not recall pushing Joyner to the ground. Defendant also claimed he did not remember the Keri Guillory incident. He testified he did not know if he killed Shannon McNamara, but he admitted the evidence pointed to him.
Defendant denied that he had admitted to fellow inmates that he had killed McNamara, or that he intended to make such an admission in the event he was acquitted. Defendant denied burning down the apartment building across from his residence. He said he slept with Hofer the night the fire was set. He admitted stating that he had burned down the building, but claimed he was just joking. Defendant also denied killing Amy Warner. He stated he was not drinking that night, so he could not have blacked out. He acknowledged he had been to Warner‘s residence three weeks before her murder. He conceded that he had told people he had killed Warner, but he attributed his comments to “a poor sense of humor.”
Defendant stated that other people had access to, and used, his computer; however, he admitted that he had visited some of the pornographic sites recorded in his temporary files. Defendant also admitted his computer password was “Cereal Kilr,” which he claimed came from a song by the band Insane Clown Posse and from columnist Dave Barry. Defendant denied that he had hidden a gun in the janitor‘s supply room where he worked.
In his testimony, defendant implied that certain books in his library might have been on the Marine Corps’ suggested reading list. Defendant said he saved his Marine Corps manuals for the knowledge contained therein. He said he was not an admirer of Timothy McVeigh or David Koresh. He stated he does not support the overthrow of the government.
Under cross-examination, defendant admitted he started out in the Marines as a private, and he ended up as a private. He denied that he had visited all of the pornographic sites on his computer. He did not specify which sites he had visited. He said he did have nude pictures of former girlfriends in sexual poses. Defendant acknowledged he had denied anal intercourse with Randi Morris when he was interviewed by Dr. Park Dietz. Thus, he admitted he remembered the incident. Defendant told Dietz, “It slipped. It poked her and she freaks out and that is it. *** I did put my hand over her mouth, like, shut up man. What are you freaking out about?” When defendant was interviewed by the police after McNamara‘s murder, he told them he recalled he had gotten scratches on his hand from a broken shot glass the night of McNamara‘s murder. In February of 2000, during a visit to the Veterans Administration hospital, defendant reported to Dr. Kahlon that he did not have any problems with his memory. Although defendant maintained, under cross-examination, that the medications he received from the Veterans Administration hospital did not help him, he acknowledged that, during a return visit in January of 2001, he had reported he was feeling a lot better. Contrary to his trial testimony, in his interview with Dr. Boyd, defendant had reported he rarely experienced memory blackouts.
Finally, defendant conceded he may have told a counselor at the university that he had tried to commit suicide, but would not try again; rather, he would “kill others to force the police to kill him.” Defendant acknowledged he had two tattoos of the Grim Reaper and, on his back, a large tattoo of a cross with skulls around it. As a follow-up to defendant‘s extensive testimony regarding his religious beliefs and participation in church activities, the prosecutor asked defendant to explain what he meant when he referred to himself as an “agnostic Methodist.” Dependent responded, “I can‘t honestly tell you.” Defendant admitted that he resented organized religion and had referred to it as a scam and a crutch for the weak.
Defendant‘s final witness was Dr. Mark Cunningham, a clinical and forensic psychologist, who testified regarding defendant‘s “damaging developmental factors and experiences.” Cunningham said his opinions were based upon information obtained from relatives and others who knew defendant, as well as from school records, military records, and offense records.
Cunningham first found that defendant had a genetic predisposition to alcohol dependence and mood disorder. According to Cunningham, there was a significant incidence of alcoholism and depression in defendant‘s family tree. He cited case studies indicating that alcohol
Cunningham also testified regarding the concepts, effects and consequences of “sequential damage,” “modeling,” and “scripting.” In essence, Cunningham espoused a form of behavioral determinism in which a child who is subjected to emotional depravation is forever damaged, the child will invariably adopt the behavioral patterns of parents and perpetuate them in rearing the next generation, and the child will follow a “story line.” Cunningham described “scripting” as “what is supposed to happen in your life.”
Applying those principles to defendant, Cunningham testified that defendant was abandoned physically and emotionally as a child, and, as a result, his “primary attachments” were disrupted. Defendant began his life living with his mother in “a situation that can only be described as pretty much neglect.” Cunningham concluded that defendant‘s mother had not responded to defendant in a “maternal way.” Moreover, when defendant‘s father got custody, he did not make up for the maternal void. Cunningham stated that a good and caring mother in the first year or two of life is critical. Cunningham stated that defendant had also reported childhood sexual abuse at the hands of his stepsister and stepbrother when defendant was 10 or 11 years old. Cunningham cited studies of sexual homicides conducted by the FBI‘s behavioral science unit. He noted, “[A]t the core of those homicides, they found disturbed attachments to the parents or to other members of the family during the childhood of these offenders.”
Cunningham opined that the influence of family environment on a child‘s social development lasts a lifetime, and a child who is neglected during his early years has increased risks for psychological disorders,
Although Cunningham had no expertise in either psychiatry or pharmacology, he testified regarding the possible side effects of the drug Lariam, providing the jury with information he got from a pharmacological flyer. Cunningham assumed Lariam had been given to defendant because it is the antimalarial drug of choice for the United States military. Cunningham testified that Lariam may cause anxiety, paranoia, psychotic behavior, headaches and sleep disorders. Cunningham also testified regarding the possible side effects of Paxil.
Cunningham conceded that most people who have risk factors and histories similar to defendant‘s do not commit an offense like the McNamara murder. He admitted that defendant had a choice in the matter and there was “some moral culpability.” However, Cunningham considered it “a function of degree.”
Cunningham also offered risk assessment testimony. He stated it is incorrect to assume that a defendant sentenced to natural life would be more violent because he has nothing to lose, or that violent offenders are more likely to be violent in prison. Cunningham testified that the security, structure, and consequences of incarceration are significant curbs. He stated that inmates have no access to highly lethal weapons and, though there is
Under cross-examination, Cunningham acknowledged that alcohol and drugs are available in prison. He admitted he knew of no case in which the ingestion of Lariam had been connected to the commission of a murder. Although he conceded that most Marines get out of the service and do not commit murder, he said he believed the use of Lariam, “several years” prior to the murder, might have been “a potential contributor.” He admitted he could not “draw a *** direct certain nexus” between Lariam and murder. Cunningham also suggested that Paxil “could have some contributory role.” Cunningham agreed that he, as a psychologist, is not in a position to sit in judgment of a physician‘s decision to prescribe medication for his patient.
Cunningham acknowledged that he had reviewed the transcript of defendant‘s interview with Dr. Dietz. Cunningham said he had in fact relied on it as a primary source of information in drawing his own conclusions. In a series of questions, the prosecutor then asked Cunningham if he was aware of certain responses defendant had given in his interview with Dietz, and Cunningham responded affirmatively. In that interview, defendant had described his father as “kind,” not “cold,” “generous,” not “miserly,” “peaceful,” not “violent,” “hard working,” not “lazy,” a “teetotaler,” not a “drunk,” “law abiding,” not “criminal.” Defendant was asked if he respected his father, to which he replied, “Yeah.” Defendant was asked if he had looked up to his father, to which he replied, “Still do.” In his interview with Dietz,
Although Cunningham acknowledged the answers defendant had given in his interview with Dietz, Cunningham later testified that defendant, in that interview, “seemed to be trying to protect his family and not blame them for the situation that he was in.” Cunningham suggested that capital defendants typically do not report things that happened to them as they grew up. Cunningham said he was not surprised that “the truth is inconsistent with Anthony‘s answers on that date.”
With respect to the issue of defendant‘s future dangerousness, Cunningham did concede that a pattern of violence while incarcerated “is far more predictive than the group statistical rate.”
At the conclusion of Cunningham‘s testimony, the jury heard closing arguments, was given applicable instruction, and retired to consider its verdict. In just under three hours, the jury unanimously returned a verdict. That verdict read: “We, the jury, unanimously find that there is no mitigating factor sufficient to preclude the imposition of a death sentence. The court shall sentence the Defendant, Anthony B. Mertz, to death.” The jury was polled and each juror affirmed that was his or her verdict. Pursuant to defendant‘s earlier jury waiver, the court subsequently found all three of
ANALYSIS
We begin our analysis by reaffirming certain general principles that apply to our review of capital sentencing proceedings. We do so with a full appreciation of the laudable death penalty reforms recently enacted by the legislature, reforms meant to ensure that only the guilty are convicted, and only those deserving of the ultimate penalty are so sentenced. In reiterating the following, well-established principles, we are cognizant of the responsibility we have been given to override a jury‘s sentencing verdict—absent any trial error—if we believe the imposition of a death penalty is “fundamentally unjust” in a given case. See
With these precepts in mind, we note that the decision made at the second stage of a death penalty hearing is, and always has been, a process of evidentiary balancing. Compare
“The decision made at the second stage of a death penalty hearing[,] when factors in mitigation and in aggravation
are considered[,] is a process of balancing in which evidence in aggravation is measured against that in mitigation. [Citation.] The decision of a capital sentencing jury will not be overturned lightly, particularly where that decision is amply supported by the record.”
However, when requested to do so, this court reviews the evidence adduced in capital sentencing proceedings, irrespective of claims of error, to determine whether death is the appropriate penalty. As we stated in Ballard:
“In determining whether a sentence of death is proper, we must consider ‘the character and record of the individual offender and the circumstances of the particular offense.’ People v. Pitsonbarger, 142 Ill. 2d 353, 388 (1990), citing Woodson v. North Carolina, 428 U.S. 280, 304 (1976). ‘[E]ach capital case is unique and must be evaluated on its own facts, focusing on whether the circumstances of the crime and the character of the defendant are such that the deterrent and retributive functions of the ultimate sanction will be served by imposing the death penalty.’ People v. Johnson, 128 Ill. 2d 253, 280 (1989). ‘A death sentence is appropriate if the sentence is commensurate with the seriousness of the offenses and gives adequate consideration to relevant mitigating circumstances.’ Pitsonbarger, 142 Ill. 2d at 388.” Ballard, 206 Ill. 2d at 179.
Once a jury finds a defendant eligible for the death penalty, the jury is free to consider a myriad of factors to determine whether death is the appropriate punishment. Simmons v. South Carolina, 512 U.S. 154, 163 (1994); California v. Ramos, 463 U.S. 992, 1008 (1983). A defendant‘s character, prior criminal history, mental capacity, background, age, and future dangerousness are just a few of the factors that a jury may consider in fixing the appropriate punishment. Simmons, 512 U.S. at 163. “Both a backward-looking and a forward-looking inquiry are a permissible part of the sentencing process ***.” Tuilaepa v. California, 512 U.S. 967, 977 (1994). In Simmons, the Supreme Court noted, “This Court has approved the jury‘s consideration of future dangerousness during the penalty phase of a capital trial, recognizing that a defendant‘s future dangerousness bears on all sentencing determinations made in our criminal justice system.” Simmons, 512 U.S. at 162. The fact that a defendant is parole-ineligible does not prevent the State from arguing that the defendant poses a future danger, as the State may reasonably argue that defendant will pose a danger to others in prison and that executing him is the only means of eliminating the threat to the safety of other inmates or prison staff. Simmons, 512 U.S. at 165 n.5.
In assessing the weight of the evidence, and the effect of any error in sentencing proceedings, the doctrine of harmless error applies in appropriate cases. Ballard, 206 Ill. 2d at 194; People v. Williams, 193 Ill. 2d 306, 369-71 (2000); People v. Hall, 195 Ill. 2d 1, 19 (2000).
I. Admission of Evidence Pertaining to Uncharged Offenses
We first consider defendant‘s argument that “the aggravation as to both the Warner murder and the suspected arson raise a significant risk the jury imposed the death penalty based on a crime, or crimes, defendant didn‘t commit.” Defendant notes that he was never prosecuted for those crimes. He suggests “the standard of reliability for admission of an uncharged crime should be at least a preponderance of the evidence.”
As this court noted in People v. Caffey, 205 Ill. 2d 52, 125 (2001), the ordinary rules of evidence are relaxed at the second stage of a capital sentencing hearing so that the sentencer may “possess the fullest information possible with respect to the defendant‘s life, character, criminal record, and the circumstances of the particular
Our precedents establish that the only requirement for the admissibility of evidence at this stage of a capital sentencing hearing is that the evidence be relevant and reliable (Caffey, 205 Ill. 2d at 125), and it matters not that the crime in question was never prosecuted. People v. Simms, 168 Ill. 2d 176, 192 (1995). The determination as to relevance and reliability rests within the sound discretion of the trial court. Caffey, 205 Ill. 2d at 125. The trial court—which did a commendable job during the course of defendant‘s trial—did not abuse its discretion in allowing evidence relating to the Warner murder and the burning of the apartment building across the street from defendant‘s residence.
It is, to say the least, unusual for a defendant to tell his friends he committed two heinous crimes, and later acknowledge his own statements, but argue they are unreliable, the result of a “poor sense of humor.” Although we are aware of no similar situation in our
In Kidd, the defendant argued that the trial judge had erred in allowing the State to introduce as evidence—during the guilt/innocence phase of his trial—his testimony from LeRoy Orange‘s trial on the same charges, and his testimony from his own previous sentencing hearing. The defendant contended that both excerpts of his earlier testimony required exclusion because the evidence was false. Defendant submitted that admission of the statements violated the rule forbidding the prosecution from knowingly presenting perjured testimony. In support of that theory, defendant noted, when he had testified at Orange‘s trial, the prosecution had impeached him with statements he made to the police following his arrest. The defendant suggested that the State had thus conceded the falsity of statements made in the course of his prior testimony, in which he had admitted his involvement in the charged offenses. See Kidd, 175 Ill. 2d at 28-29.
This court rejected defendant‘s argument, stating:
“The statements at issue were all made by the defendant and, so long as they were relevant to the case, could be introduced against him as admissions of a party opponent. [Citations.] If the defendant has given various accounts of his activities on the night of the offenses, then, as the trial judge noted in refusing to exclude the prior testimony, ‘that‘s his problem, and he has to live with it.’ We do not believe that the State must now be disabled from presenting the defendant‘s earlier inculpatory statements simply because there are discrepancies in what the defendant has said at different times on different occasions.” Kidd, 175 Ill. 2d at 29.
Like the defendant in Kidd, the defendant in this case clearly made the statements in question, stating that he had murdered Warner and had burned down the apartment building. He acknowledges that he made the statements. However, he now suggests that the state
As Kidd suggests, evidence is not necessarily unreliable simply because defendant chooses to present testimony controverting it, or attempts to explain away the statement by reference to the context in which it is made. We believe it is highly unlikely that anyone would make such comments in jest, and, given the totality of the evidence before the jury, it was certainly reasonable for the jury to doubt defendant‘s explanation. The statements are relevant, and they are reliable in the sense that there is no question that they were made, and made voluntarily and without prompting. Beyond that, defendant‘s motive for making them was a matter for the jury.
Moreover, with respect to the Warner murder, there was substantial evidence to corroborate defendant‘s admissions that he had killed Warner. For instance, when defendant told his friend, Douglas Paul, that he had killed Warner, defendant referred to Warner as “white trash,” the very same term he had used to refer to Darsann Barker after he sexually assaulted her. The use of that disparaging epithet suggests a malice inconsistent with intended “humor.” Moreover, the jury not only heard testimony from defendant‘s friends about his admissions, but also learned that defendant had been in Warner‘s residence only two or three weeks prior to the murder, and he had kept an article about Warner‘s murder pinned up on his wall, indicating that the murder held some special significance for him. In his testimony, defendant denied that he even knew Warner. There were also obvious similarities between the McNamara murder—which defendant does not dispute he committed—and the Warner murder. There were sexual components
In our opinion, there is no question about the reliability and admissibility of defendant‘s statements implicating himself in the Warner murder and the arson. While there was substantial corroboration of defendant‘s statements admitting the murder of Amy Warner, we hold defendant‘s unsolicited and acknowledged admissions to his friends, were admissible, standing alone, even without corroboration. Again, the ordinary rules of evidence are relaxed at the second stage of a capital sentencing hearing. Caffey, 205 Ill. 2d at 125. The statements at issue were voluntary. They were not made to police officers in a custodial setting or to jailhouse informants. They were made to defendant‘s friends, with no prompting whatsoever. Defendant‘s friends testified that he made the statements, and he acknowledges he made them. It was for the jury to ultimately decide whether the statements were the product of a “poor sense of humor,” as defendant suggested, or genuine admissions of responsibility. In either case, the statements qualify for second-stage admission under the standards of relevance and reliability. See generally People v. Milka, 211 Ill. 2d 150, 180 (2004) (where
defendant unquestionably made the statements at issue, the circumstances under which defendant‘s statements were made, and his motive in making them, were held to be matters for the jury to consider, rather than issues of reliability).
II. First and Second Amendment Issues
We turn now to defendant‘s contention that the admission of certain other types of evidence violated his rights under the first and second amendments of the
In support of his argument, defendant relies primarily upon the Supreme Court‘s opinion in Dawson v. Delaware, 503 U.S. 159, 117 L. Ed. 2d 309, 112 S. Ct. 1093 (1992). We believe defendant reads Dawson much too broadly.
The defendant in Dawson was a member of a prison gang called the “Aryan Brotherhood.” During the penalty phase of Dawson‘s trial, the following stipulation was entered into evidence. “The Aryan Brotherhood refers to a white racist prison gang that began in the 1960‘s in California in response to other gangs of racial minorities. Separate gangs calling themselves the Aryan Brotherhood now exist in many state prisons including Delaware.” Dawson, 503 U.S. at 162, 117 L. Ed. 2d at 315, 112 S. Ct. at 1096. The defendant in Dawson later claimed the stipulation violated his constitutional rights. Dawson cited the Supreme Court‘s decision in Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983), wherein the Court had held that an aggravating circumstance is invalid if “it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected.” Zant, 462 U.S. at 885, 77 L. Ed. 2d at 255, 103 S. Ct. at 2747. Relying upon Zant, Dawson argued that “the Constitution forbids the consideration in sentencing of any evidence concerning beliefs or activities that are protected under the
The Supreme Court rejected such a broad reading of Zant, stating, “the Constitution does not erect a per se barrier to the admission of evidence concerning one‘s beliefs and associations at sentencing simply because those beliefs and associations are protected by the
“Before the penalty hearing, the prosecution claimed that its expert witness would show that the Aryan Brotherhood is a white racist prison gang that is associated with drugs and violent escape attempts at prisons, and that advocates the murder of fellow inmates. If credible and otherwise admissible evidence to that effect had been presented, we would have a much different case. But, after reaching an agreement with Dawson, the prosecution limited its proof regarding the Aryan Brotherhood to the stipulation. The brief stipulation proved only that an Aryan Brotherhood prison gang originated in California in the 1960‘s, that it entertains white racist beliefs, and that a separate gang in the Delaware prison system calls itself the Aryan Brotherhood. We conclude that the narrowness of the stipulation left the Aryan Brotherhood evidence totally without relevance to Dawson‘s sentencing proceeding.” Dawson, 503 U.S. at 165, 117 L. Ed. 2d at 317, 112 S. Ct. at 1097.
The Court‘s concluding comments provide guidance as to the kind of evidence that would be admissible:
“Because the prosecution did not prove that the Aryan Brotherhood had committed any unlawful or violent acts, or had even endorsed such acts, the Aryan Brotherhood evidence was also not relevant to help prove any aggravating circumstance. In many cases, for example, associational evidence might serve a legitimate purpose in showing that a defendant represents a future danger to society. A defendant‘s membership in an organization that endorses the killing of any identifiable group, for example, might be relevant to a jury‘s inquiry into whether the defendant will be dangerous in the future. Other evidence concerning a defendant‘s associations might be relevant in proving other aggravating circumstances. But the inference which the jury was invited to draw in this case tended to prove nothing more than the abstract beliefs of the Delaware chapter.” Dawson, 503 U.S. at 166, 117 L. Ed. 2d at 318, 112 S. Ct. at 1098.
We find that most, if not all, of the evidence at issue in this case is admissible under the principles enunciated in Dawson. To the extent that some of this evidence may have been improperly admitted, its admission was harmless beyond a reasonable doubt in view of overwhelming aggravating evidence.
We first find that all evidence of a sexual nature was properly admitted, including Internet images of women engaging in sexual acts with a dog and a horse, women in sexually explicit positions, nude children, sexually explicit cartoons, and the articles on date rape. Although the defense presented testimony that other people had access to defendant‘s computer, and that Tara Hofer was responsible for the date rape articles, defendant admitted that he had visited some pornographic sites, without specifying which ones. The images and the articles were found on defendant‘s computer. They were properly admitted, as were the nude photos of defendant‘s girlfriends. The plausibility of the defense testimony was for the jury to decide, considering it in conjunction with other evidence of defendant‘s sexual conduct. The relevance of this evidence is obvious.
“Here the state put on evidence that Boyle was obsessed with sex, and that his sexual expression had a violent component. Unlike the situation in Dawson, where there was no connection between the evidence presented and the crime committed, Boyle was convicted for a murder which had a sexual component. *** Evidence of Boyle‘s sexual obsession was thus relevant to the issue of Boyle‘s future dangerousness ***.” Boyle, 93 F.3d at 184-85.
In this case, defendant‘s sexual obsession, and its relevance to his future dangerousness, is amply demonstrated by his lewd and morbid sexual overture to a female correctional officer while awaiting trial for Shannon McNamara‘s murder, a comment suggesting that he would have sex with the officer‘s dead body. That statement underscores the relevance and extent of defendant‘s sexual obsession, and shows that defendant is incorrigible and remains a danger to society whether he is drunk or sober, incarcerated or not. We conclude that all evidence bearing upon defendant‘s sexual obsession was relevant aggravating evidence and was properly admitted.
Similarly, we find no error in the admission of evidence regarding defendant‘s tattoos and his e-mail address, “Cereal Kilr 2000.” As previously mentioned, defendant had two tattoos of the Grim Reaper and another of a cross surrounded by skulls. In light of the
Even assuming, arguendo, the admission of brief testimony regarding defendant‘s tattoos and e-mail address was error, we find it was harmless beyond a reasonable doubt in light of the overwhelming aggravating evidence presented in this case. See People v. Shatner, 174 Ill. 2d 133, 156 (1996) (holding that the erroneous introduction of such evidence is subject to harmless error analysis). Given the extensive evidence of defendant‘s
We next consider defendant‘s contention that the trial court erred in allowing testimony regarding the books he possessed. The State presented testimony that defendant had books entitled Pipe and Fire Bomb Designs, The Anarchist‘s Cookbook, SS: Blood Soaked Soil, Hitler‘s Enforcers, Mein Kampf, as well as Marine Corps training manuals. Defendant argues that the books on “Hitler, Nazism, anarchism, and Marine training were irrelevant aggravation protected by the
In Dawson, the Supreme Court made clear that, had the State presented “credible and otherwise admissible evidence” that the Aryan Brotherhood was “associated with drugs and violent escape attempts at prisons,” and advocated “the murder of fellow inmates,” the Court would have been confronted with a “much different case.” Dawson, 503 U.S. at 165, 117 L. Ed. 2d at 317, 112 S. Ct. at 1097. The Court also provided guidelines for admission of evidence that would otherwise be subject to first amendment protection. The court suggested that evidence of defendant‘s membership in the gang might have been proper had the State proven that the Aryan Brotherhood “had committed any unlawful or violent acts, or had even endorsed such acts.” Dawson, 503 U.S. at 166, 117 L. Ed. 2d at 318, 112 S. Ct. at 1098. The Court noted: “A defendant‘s membership in an organization that endorses the killing of any identifiable group, for example, might be relevant to a jury‘s inquiry into whether the defendant will be dangerous in the future.” Dawson, 503 U.S. at 166, 117 L. Ed. 2d at 318, 112 S. Ct. at 1098.
Given the facts of this case, the exclusionary prin-
Defendant notes that he and others testified that he wanted to be a history teacher and implied that the books might have been on a suggested reading list for the
Moreover, we find no reversible error in superfluous evidence of defendant‘s possession of a nine-millimeter handgun and a shotgun. In defendant‘s original brief, defense counsel concedes that “testimony defendant hid a .22-caliber gun at his work may have been aggravating as to that weapon,” but submits “defendant‘s ownership of a nine millimeter Baretta handgun and a shotgun were legal and irrelevant for purposes of aggravation.” In his reply brief, defendant continues with this argument:
“The State lumps together defendant‘s illegal possession of guns with his legal possession of guns. The State argues that a condition of defendant‘s probation was no possession of guns after 2001. The flaw in this is the absence of evidence as to when he bought one of the guns. Supplementing illegal possession of guns with legal possession of guns serves only to exaggerate and unfairly prejudice when none of defendant‘s alleged crimes involved a gun.”
The point of the State‘s evidence was that possession of the guns in 2001 constituted a violation of the terms of defendant‘s probation, a point of which the jury was well aware. Although defendant denied that he had hidden a .22-caliber gun at his place of employment, the State‘s evidence was sufficient to prove that he did. After the McNamara murder, but prior to his arrest, defendant was observed standing on a sink in a closet, “doing something up high.” The .22-caliber gun was later recovered from that location. Although the State‘s evidence was somewhat vague as to whether defendant
Finally, we tend to agree with defendant that testimony regarding defendant‘s alleged sympathies for Timothy McVeigh, and other antigovernment factions, and his opposition to the death penalty was irrelevant and improperly admitted. In our view, those beliefs were not sufficiently related to relevant considerations in this case. Notwithstanding, the admission of this evidence, which proportionally occupies a minuscule part of the trial transcript, was harmless beyond a reasonable doubt in light of the overwhelming aggravating evidence against defendant.
III. “Profiler” Testimony
Defendant next contends that the testimony of James Wright, which the State used to “link defendant to other crimes, was irrelevant and unreliable.” Defendant‘s specific concern is that Wright‘s testimony prejudiced defendant by “linking” him to the Warner murder and the burning of the apartment building. Defendant submits, generally, that “profiler” testimony has not been shown to be reliable, it in effect entails a “subjective” comparison of crimes, and, in this case, the profiler lacked the psychiatric and psychological expertise to render certain opinions as to the state of mind of the person who committed the offenses.
The record indicates that the State tendered Wright as “an expert in the area of criminal investigation, particularly with regard to crime scenes.” Under preliminary cross-examination by defense counsel, however, it became clear that Wright had been asked to render opinions that are commonly and popularly associated with the practice of “profiling.” He had been asked to compare the McNamara murder, the Warner murder, and
Based upon his review of relevant source materials, Wright compared the McNamara murder, the Warner murder, and the suspected arson of the apartment building in terms of the offender‘s organization, preplanning, anger, control, and sense of power. He did not, however, testify that defendant committed the Warner murder or burned down the apartment building.
Wright noted that the McNamara crime scene revealed elements of organization and planning initially, but the crime became disorganized because of unexpected
Wright found the Warner murder much more organized and noted minimal resistance on the part of the victim, a fact he attributed to the element of surprise and the perpetrator‘s employment of overwhelming force or intimidation. He said the two biggest similarities in the murders were attacks to the throat and the way the perpetrator had displayed the victims’ bodies: naked from the waist down; arms outstretched above their heads. Wright observed that both victims had knife wounds to their necks. Wright said in defendant‘s previous, violent encounters with women, the neck was normally the point of attack.
As for the suspected arson, Wright noted that studies indicate arsonists experience a “sense of power and control” in setting a fire, particularly a large fire. Wright observed, in reports of defendant‘s interaction with police, he was commonly uncooperative, belligerent and combative. Wright stated that defendant‘s history of activities with law enforcement officers demonstrated a lack of respect for authority. Wright also commented on the newspaper article on the Warner murder that defendant had posted in his apartment. He then stated that serial killers and serial rapists tend to keep articles about the crimes they commit. Wright testified, over objection, that defendant‘s history showed a lot of anger toward women. He stated that the mutilation of McNamara‘s body was an expression of anger. Wright
Initially, we note that this court has held that an individual will be permitted to testify as an expert if that person‘s experience and qualifications afford him or her knowledge that is not common to laypersons, and where such testimony will aid the fact finder in reaching its conclusion. People v. Novak, 163 Ill. 2d 93, 104 (1994); People v. Jordan, 103 Ill. 2d 192, 208 (1984). As this court stated in Novak:
“The indicia of expertise is not an assigned level of academic qualifications. Rather, the test is whether the expert has knowledge and experience beyond the average citizen that would assist the jury in evaluating the evidence. [Citation.] The expert may gain his or her knowledge through practical experience rather than scientific study, training, or research. There is no precise requirement as to how the expert acquires skill or experience. [Citation.] Regardless of how specialized knowledge is acquired, whether through education, training, experience, or a combination of each, if the witness possesses such knowledge, he or she may testify as an expert.” Novak, 163 Ill. 2d at 104.
An expert‘s testimony will assist the jury when his or her testimony offers knowledge and application of principles beyond the ken of the average juror. Compton v. Ubilluz, 353 Ill. App. 3d 863, 867 (2004). Evidence is beyond the ken of the average juror when the evidence involves knowledge or experience that a juror generally lacks. Compton, 353 Ill. App. 3d at 867.
The question of admissibility of profiler testimony in criminal cases has been a matter of some controversy; however, recent decisions by state supreme courts seem to come down on the side of exclusion, at least where the
It would be helpful to see supporting statistics when profiling testimony is proffered in future cases. In this case, however, we need not decide whether its absence renders Wright‘s testimony inadmissible. We need not determine whether Wright‘s “profiler” testimony was properly before the jury because any error in its admission was harmless beyond a reasonable doubt. See People v. Hart, 214 Ill. 2d 490, 517 (2005) (unnecessary to ad-dress merits of argument where error, if any, is harm-
For example, both Joe Siefferman and Patrick Callaghan also testified to readily observable similarities between the McNamara and Warner murders. Siefferman, for instance, testified that both victims appear to have been posed. He noted, in each instance, photographs reveal a victim lying on her back with her arms extended above her head. In each instance, the victim was naked from the waist down. Both were apparently attacked in their sleep. Both victims sustained injuries from sharp objects. In neither instance were identifiable fingerprints found. Richard Caudell also testified that defendant had posed or displayed McNamara‘s body. Patrick Callaghan testified that he started looking for connections between defendant and Amy Warner after he noted the similarities between the two murders. He then learned that Douglas Paul had indicated that defendant had admitted murdering Warner. Indeed, two people—not counting defendant—eventually testified that defendant had said he killed Warner; four people eventually testified that defendant had admitted burning down the building across the street from his apartment. We note that voluntary statements by a defendant are generally believed to have a “high degree of reliability.” See James v. Illinois, 493 U.S. 307, 327, 107 L. Ed. 2d 676, 693, 110 S. Ct. 648, 659 (1990) (Kennedy, J., dissenting, joined by Rehnquist, C.J., O‘Connor and Scalia, JJ.). We have already discussed the evidence corroborating the Warner admission. Given this evidence, Wright‘s testimony was, in our opinion, cumulative and essentially superfluous on the issue of the defendant‘s commission of the Warner
As far as Wright‘s “psychiatric or psychological” pronouncements are concerned, we view them—with no disrespect intended—as observations that anyone off the street would have made when presented with the same evidence. Defendant complains that Wright was allowed to testify that defendant had “a lot of anger toward women,” and that the mutilation of McNamara‘s body was an expression of anger. In light of the extensive evidence the jurors heard about defendant‘s aggressive and disrespectful behavior toward women, and his vicious attacks on multiple women, the jurors could readily ascertain that defendant had “a lot of anger toward women” without Wright‘s testimony. Moreover, the jurors undoubtedly divined that a killer who takes the time to mutilate his victim‘s body is angry or frustrated. They did not need Wright to tell them that.
Further, we believe the jurors also understood, without any enlightenment from Wright, that the need for power and control was an integral feature of defendant‘s personality. As the evidence indicates, in defendant‘s encounters with women, he became angry, and often violent, if they did not respond to his advances or submit to his will. When the basketball coach‘s daughter did not respond to defendant, he said he “ought to slap the tan off her face.” When Amy Joyner did not respond to defendant‘s flirting, and she tried to leave his apartment, defendant pushed her to the floor twice before her companion intervened. When Randi Morris did not willingly submit to anal penetration, defendant became angry and, in her words, tried to “break my neck.” Thereafter, defendant would not allow her to leave his apartment, and he attempted to control her every movement, to the extent of forcing her to accompany him to the bathroom. The evidence adduced as to the McNamara
Defendant also complains about Wright‘s reference to studies conducted by the Behavioral Science Unit of the FBI, as well as other studies he had read, indicating that arsonists experience a “sense of power and control in setting a fire.” Obviously, that comment might apply to some arsonists, but not others. For example, an arsonist who burns down a building to collect insurance proceeds does not do so for the sense of power or control; he burns the building for the money. It seems that anger might also be a possible motive. Wright‘s testimony related one factor that might motivate an arsonist to burn a building, but there are obviously others as well. In this respect, the State‘s attempt to link defendant to the arson is rather weak. We believe defendant‘s four statements admitting he had set the fire provided far more compelling linkage at trial. We find this testimony harmless beyond a reasonable doubt.
Moreover, it seems to us that defendant is in an awkward position challenging Wright‘s specific reference to studies of the Behavioral Science Unit when his own expert, Mark Cunningham, relied upon that unit‘s studies in his own testimony. Cunningham testified that the Behavioral Science Unit had investigated approximately 31 sexual homicides and “at the core of those homicides,
We next address defendant‘s contention that it was error for Wright to testify that serial killers and serial rapists tend to keep articles about the crimes they commit. We hold that this testimony was also harmless in light of other evidence adduced at trial. As we have indicated, we believe there was substantial evidence linking defendant to the Warner murder. One piece of that evidence was defendant‘s posting of an article about the Warner murder on the wall near his computer. Although defendant now suggests the article may have been posted there because of defendant‘s “interest in local crime,” there was no evidence that other articles about “local crime” were similarly posted. The article about Warner‘s murder obviously had some special significance to defendant, such that he wanted to see it whenever he was at his computer, the same computer that bore the e-mail address “Cereal Kilr 2000.” We find the jury‘s verdict would have been the same irrespective of Wright‘s testimony.
The jurors did not need Wright to draw obvious conclusions for them; yet, for the most part, that is what he did in his testimony. In sum, we hold the admission of Wright‘s testimony was harmless beyond a reasonable doubt in that the testimony was cumulative of testimony given by other witnesses, and any inferences drawn by Wright were commonsense ones that the jurors would have already drawn for themselves.
IV. Testimony of Jailhouse Informants
Defendant next contends the use of “unreliable
Defendant argues that Stabler‘s and Jordan‘s testimony, at the guilt/innocence phase of the trial, “particularly Jordan‘s recounting of defendant‘s alleged description of the crime which, although the likely fabricated product of information obtained from the news and law enforcement authorities, gave the prosecutors and jurors the most detailed and inflammatory account of the murder.” Defendant also submits that Jordan‘s testimony at the death penalty hearing “further prejudiced defendant as the only evidence defendant threatened a journal-
We fail to discern any basis for concluding that these prosecution witnesses were so unreliable that their testimony should have been excluded. The fact that Baugh, another jail inmate, testified that they had fabricated their testimony does not, alone, warrant exclusion. Cross-examination is the best way to ensure reliability (Crawford, 541 U.S. at 61, 158 L. Ed. 2d at 199, 124 S. Ct. at 1371), and defendant was afforded that right. No testimony was developed that either witness received or was promised favorable treatment in exchange for testimony in this case. No other evidence rendered their testimony inherently unbelievable.
In fact, we do not find it all hard to believe that defendant would make the inculpatory statements attributed to him by Stabler and Jordan. After all, prior to murdering Shannon McNamara, defendant had admitted on four occasions that he had committed arson, and on two occasions that he had murdered Amy Warner. While awaiting trial for the sexual homicide of Shannon McNamara, defendant suggested, in a verbal exchange with a female correctional officer, that he would have sex with her dead body, so long as her body was “still warm.” In light of those statements, it is entirely plausible that defendant would make the statements attributed to him by Stabler and Jordan. Furthermore, Stabler‘s testimony, which was adduced at the guilt/innocence phase of trial, related only to the details of the McNamara murder. Defendant raises no issue as to his guilt of that crime. The contention that Stabler‘s testimony supplied the jurors with an inflammatory and prejudicial account of the murder is, for all practical purposes, at most an argu-
The same is true of Jordan‘s second-stage sentencing testimony. Although that testimony was not cumulative of other testimony, the testimony bore upon the issue of defendant‘s future dangerousness, and there was certainly a plethora of evidence on that score, more than enough to inspire confidence that the jury‘s verdict would not have been otherwise, even without Jordan‘s testimony.
V. Excessive Sentence Argument
Defendant contends that his death sentence is excessive given “the influence of prescription drugs on defendant, defendant‘s inherited alcoholism, military service, employment, attending college, minor prior criminal conviction, church attendance, low risk of future dangerousness, and dysfunctional family.” We find that defendant‘s death sentence was not excessive or in any sense “fundamentally unjust.” As we have stated, the aggravating evidence against defendant was overwhelming; the mitigating evidence was, in our opinion, meager by comparison. The fact that the jury returned a death verdict in less than three hours is testament to the state of the evidence. We will address the elements of defendant‘s argument individually.
First, we note that defendant failed to demonstrate a connection between his violent behavior and the ingestion of either prescription drugs or the antimalarial drug Lariam. Defendant‘s contention that his behavior “may
Next, we note that defendant‘s claim of “inherited” alcoholism is highly questionable in terms of credibility and, in our opinion, did little to help defendant at sentencing. Apparently, defendant believed he would be less blameworthy in the eyes of the jurors for his failure to seek help with his drinking problems, and his failure
For example, the incredible amounts of alcohol purportedly imbibed by defendant‘s uncle on a daily basis, quite frankly, taxes credibility. Defendant‘s uncle, Michael Mahorney, testified that he, at one point in his life, consumed “three to four fifths a night plus a six-pack or twelve-pack of beer and three or four shots of tequila. And that was seven nights a week.” Even if someone were to believe this implausible testimony, other aspects of Mahorney‘s testimony actually undercut defendant‘s claim. Mahorney testified that defendant‘s father drank, but Mahorney had only seen him drunk once in his life. Moreover, Mahorney testified that, despite heavy drinking during a portion of his life, he had only been arrested on one occasion for illegal consumption of alcohol, and his drinking never resulted in violent behavior. Mahorney‘s testimony thus points up the fact that violent behavior is not a feature of alcoholism so much as a component of character. Finally, Mahorney testified that, at the time of trial, he consumed perhaps one beer every two months. Thus, Mahorney‘s testimony highlighted the fact that he had eventually faced his problem, he had taken responsibility for it, and he had overcome it.
Other evidence presented to establish an “inherited” aspect to defendant‘s drinking problems was weak at best. In addition to their uncle, Michael Mahorney, defendant‘s sister, Christina, suggested that a cousin, Jonathon, also had problems with alcohol. She provided no further details. Defendant‘s stepgrandmother, Darlene Edwards, testified to only occasional and moderate drinking by two members of defendant‘s maternal
The record suggests, if defendant‘s mother abused alcohol at all, that abuse was restricted to a fairly limited period of time. Obviously, Mahorney‘s testimony, and defendant‘s own statements to Dr. Dietz, contradict any suggestion that defendant‘s father was an alcoholic. In his interview with Dietz, defendant described his father as a “teetotaler,” not a “drunk.” Mahorney‘s testimony actually underscored the fact that defendant‘s violent behavior was a component of his character, not an inherent feature of alcoholism.
This court has recognized that a history of substance abuse is a double-edged sword at the aggravation/mitigation phase of a penalty hearing. Ballard, 206 Ill. 2d at 189, quoting People v. Madej, 177 Ill. 2d 116, 138 (1997). Simply because the defendant views his substance abuse history as mitigating does not require the sentencer to do so. Ballard, 206 Ill. 2d at 190, quoting Madej, 177 Ill. 2d at 138. Indeed, the jury was free to conclude that defendant‘s dependencies were aggravating and simply had no mitigating value. Moreover, any psychological or social maladjustments defendant may have developed are not inherently mitigating either. See Ballard, 206 Ill. 2d at 190; People v. Macri, 185 Ill. 2d 1, 66 (1998); Madej, 177 Ill. 2d at 138. A sentencing jury might well consider such evidence as either aggravating or mitigating, depending on whether the individual jury finds that it evokes compassion or demonstrates possible future
We believe the effort to blame defendant‘s drinking problems upon an alleged genetic or family predisposition was little more than a thinly veiled effort to divert responsibility from defendant for his failure to address his problems and take responsibility for them. To the extent that credible evidence was adduced on this subject, and that evidence might be considered mitigating, we find the weight of that evidence was insignificant.
Defendant also suggests that his military service was a significant mitigating factor. While defendant‘s friend, Brad Adams, did describe him as a good soldier, we also note that defendant was apparently reprimanded three times for drinking and was subsequently court-marshaled for use of methamphetamine. He ended his military career as he had begun it, as a private. Significantly, according to his own testimony, he concluded that career serving 30 days in the brig.
Defendant points to his employment record and his college attendance as mitigating factors. The record indicates that defendant worked a few weeks as a farmhand and was a student worker while he attended college. Defendant‘s employment record is unremarkable. It appears that defendant received benefits to attend college and the most that can be said of his academic career is that he failed to distinguish himself. Defendant‘s professed love of history was not reflected in his grades. If the record before us is an accurate indicator, he spent a great deal of his time in various sexual exploits, drinking or using drugs, entering the apartments of others
We agree with defendant‘s observation that his prior criminal record was minor, and that is an appropriate mitigating factor to consider. See People v. Davis, 205 Ill. 2d 349, 365-69 (2002). However, reliable evidence of serious uncharged offenses is also a proper, nonstatutory aggravating factor that must be taken in account in determining the appropriate sentence. See Davis, 205 Ill. 2d at 369.
Defendant suggests that his “church attendance” should be considered as one mitigating factor militating against a sentence of death. Whether mere “attendance” should be considered mitigating is questionable. To the extent that attendance says something positive about defendant‘s character or values, we would be inclined to agree. However, we see little credible evidence in that regard, and even less in defendant‘s conduct to indicate that he shares those beliefs and values, though he had the advantage of having been exposed to them in his youth. Although, just prior to the jury‘s deliberations on the appropriateness of a death sentence, defendant offered extensive testimony about his religious beliefs and participation in church activities, upon cross-examination he admitted that he resented organized religion and had referred to it as a scam and a crutch for the weak. In light of that testimony, and a dearth of testimony indicating that defendant translated any positive beliefs into actions, any weight properly assigned to defendant‘s church attendance would be de minimis.
Next, we note that a significant portion of defendant‘s evidence and argument at the second stage of capital sentencing was devoted to convincing the jury that defendant was the product of a dysfunctional family. As we have previously acknowledged, a defendant‘s family history, including abuse and exposure to violence during
In assessing the propriety of defendant‘s death sentence, we considered, inter alia, the following questions: How mitigating was the evidence defendant presented? Was that evidence, together with other mitigating evidence, sufficient to outweigh the evidence in aggravation and preclude imposition of the death penalty?
We have concluded that there were likely instances of neglect early in defendant‘s life, and defendant‘s sexual experience with his stepsister qualifies as abuse; however, in many respects, the dynamics of defendant‘s upbringing were not so unusual. Considering defendant‘s childhood and adolescence in its entirety, we could not, for example, conclude that defendant suffered extreme emotional distress or physical abuse over any significant period of time. Many families might be considered “dysfunctional” in one respect or another. “Dysfunctional” is not necessarily synonymous with “abusive.”
Certainly, in describing defendant as a child and adolescent, the testimony of defendant‘s own witnesses was conflicting. Defendant‘s father, Allen Mertz, thought he had a “fantastic relationship” with defendant. Although he spent long hours working to provide for his family, it appears that he engaged in activities with his children to the extent that he could. Defendant‘s grandmother, whom everyone acknowledged was a positive and loving influence throughout defendant‘s life,
While it is true that Cunningham later testified that defendant, in that interview, “seemed to be trying to protect his family and not blame them for the situation that he was in,” defendant had apparently overcome any such inclination by the time he testified at the second stage of capital sentencing proceedings. Defendant then testified that his father struck him several times, that he saw his father strike his stepmother a few times, and that he did not see his father much. At the sentencing hearing, defendant testified that he had been sexually abused by his older stepsister and neglected by his stepmother. Defendant‘s sisters also testified that they
Despite the contradictory nature of some of the evidence defendant presented on this issue, we find that defendant‘s “dysfunctional” upbringing is, to some extent, mitigating. However, that evidence, together with other mitigating evidence, is insufficient to outweigh the evidence in aggravation and preclude the imposition of the death penalty. In this respect, we note a final consideration, and defendant‘s final point in this argument.
Defendant contends that his “low risk of future dangerousness” should be considered as a mitigating factor. The suggestion that defendant poses a “low risk of future dangerousness” is refuted by overwhelming evidence to the contrary. There is no question that defendant brutally murdered and mutilated Shannon McNamara. There is substantial, convincing evidence, including defendant‘s own admissions, that he did the same to Amy Warner two years before. Defendant might well have killed Randi Morris, but for her pleas for mercy and quick thinking. There was evidence indicating that defendant had sexually assaulted at least four women, two of whom (Morris and Darsann Barker) survived to
Defendant would have us believe that his violent and aggressive behavior is inextricably linked to his use of alcohol; yet the evidence indicates otherwise. There is no evidence indicating that defendant was intoxicated when he aggressively confronted Kristi DeWitt and her husband at their home. There is no evidence that defendant was intoxicated when he offered to “get rid of” Douglas Paul‘s ex-girlfriend in January of 2000. There is no evidence indicating that defendant was intoxicated when he caused disturbances and got into fights while in jail awaiting trial on these charges. There is no evidence that defendant was intoxicated when he suggested to Hillary Spitz that he was prepared to have sex with her dead body, so long as her body was “still warm.” In fact, there is no evidence that defendant was intoxicated when he killed Shannon McNamara or on the night that Amy Warner was killed. In short, defendant cannot blame what appears to be a feature of his character on the ingestion of alcohol.
Even if defendant‘s dangerous propensities were solely related to the use of alcohol, as we have previously noted, we need not consider them mitigating. See Ballard, 206 Ill. 2d at 190-91. Defendant had opportunities to address his problems, and he was urged by others to do so; yet there is little in the way of evidence indicating that he took personal responsibility for his problems and earnestly endeavored to confront his abuse of alcohol. So far as the record indicates, the problem has not been addressed. Even defendant‘s expert, Mark Cunningham,
However, whether or not defendant has access to alcohol, he remains a danger to others because violence and aggressive behavior are clearly a part of his character. He is a man who can “kill without remorse.” He is a man who would “kill others to force the [authorities] to kill him.” He is a man who, while awaiting trial after brutally murdering and sexually mutilating Shannon McNamara, suggested to a female correctional officer that he would have sex with her dead body, so long as her body was “still warm.” He is a man who readily hurls racial epithets and is more than willing to fight with other inmates. He is a man who disregards the orders and authority of correctional officers, who challenges even them to fight him, who tells them they are “fucking worthless.”
In Ballard, this court noted that a defendant arrested for a capital crime has every incentive to behave flawlessly while incarcerated since good behavior might cause the sentencing authority to spare his life. Ballard, 206 Ill. 2d at 189. Given that incentive, an inmate, like defendant, who nonetheless violates facility rules and engages in acts of aggression and violence, demonstrates, through his conduct, a unique inability to control his conduct and function acceptably within any setting. It is clear that defendant places a low value on the lives of others. The jury could well have concluded that defendant would remain a serious danger to others, even in a prison setting, and that executing him is the only means of eliminating the threat to the safety of other inmates or prison staff. See Simmons, 512 U.S. at 165 n.5, 129 L. Ed. 2d at 143 n.5, 114 S. Ct. at 2194 n.5.
Given the totality of the evidence presented, defendant‘s death sentence is not excessive. Defendant does not suggest that any mitigating evidence was improperly excluded. Thus, the jury had before it everything which might conceivably have convinced the jury to show defendant mercy. The decision to impose the death penalty was clearly the result of overwhelming aggravating evidence.
VI. Statutory Reforms to Death Penalty Proceedings
Defendant notes that recently enacted statutory reforms in death penalty proceedings were unavailable when his sentencing took place. Defendant points to new statutes providing for discovery and reliability hearings on informant testimony (
Defendant contends the prosecution could not have proved by a preponderance of the evidence—as required by section 115-21(d) of the Code of Criminal Procedure of 1963—that the testimony of the prosecution‘s informant witnesses was reliable. We believe the testimony bore sufficient indicia of reliability to warrant admission and, as we have already determined, the testimony was harmless in any event when considered against overwhelming evidence in aggravation.
With respect to the new statutory mitigating factor set forth in section 9-1(c)(6) of the Code, we note that it is new only in the sense that it is now statutory. Our decisions have long recognized that a defendant‘s family history, including abuse and exposure to violence during childhood, can be a mitigating factor at sentencing. See People v. Morgan, 187 Ill. 2d 500, 543-44 (1999). The jury in this case fully understood that defendant‘s childhood experiences could be mitigating; indeed, the defense devoted much of its case at sentencing to the presentation of such evidence. Moreover, the jury was instructed that it could consider “[a]ny other reason supported by the evidence why the defendant should not be sentenced to death.” Defendant‘s attempt to cast his childhood as one of extreme abuse and neglect was simply not convincing, and certainly did not outweigh, as a mitigating consideration, defendant‘s violent conduct later in life, and his future dangerousness.
As for defendant‘s reliance upon the new language employed in amended section 9-1(g) of the Code (
VII. Apprendi Issue
Defendant also argues that the Illinois death penalty statute violates due process under the principles espoused by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), in that the State is not required to prove beyond a reasonable doubt that there are no mitigating factors sufficient to preclude the death sentence. We rejected this argument in Ballard, 206 Ill. 2d at 202-05, and we see no need to revisit the issue. As this court noted in Ballard:
“[I]n terms of Apprendi analysis, it is not beyond question that the finding at issue in the instant case—‘that there are no mitigating factors sufficient to preclude the imposition of the death sentence’ (
720 ILCS 5/9-1(g), (h) (West 1998) )—is properly characterized as ‘factual.’ The second stage of Illinois capital sentencing proceedings clearly bears a marked resemblance to the balancing of factors in which trial courts traditionally engage in determining what sentence to impose within a statutory range, a practice of which Apprendi explicitly approved. Apprendi, 530 U.S. at 481, 147 L. Ed. 2d at 449-50, 120 S. Ct. at 2358.” Ballard, 206 Ill. 2d at 204.
If the weighing of factors in the second stage of capital sentencing were to be considered a factual finding, one would logically have to conclude that standard sentenc-
VIII. Comparative Proportionality and Related Issues
Citing Recommendations 70 and 84 of the Report of the Governor‘s Commission on Capital Punishment (Report of the Governor‘s Commission on Capital Punishment, Recommendations 70, 84 (April 2002)), defendant further contends that this court should implement proportionality comparisons on direct appeal in capital cases and suggests that a statewide data base should be compiled for this purpose. Defendant notes that some states have instituted intercase proportionality review in capital cases. We note that others, like California, have declined to do so, holding that such review is not constitutionally required. See People v. Blair, 36 Cal. 4th 686, 115 P.3d 1145, 31 Cal. Rptr. 3d 485 (2005); People v. Lewis, 26 Cal. 4th 334, 394-95, 28 P.3d 34, 76, 110 Cal. Rptr. 2d 272, 322 (2001).
We have repeatedly rejected arguments for proportionality comparisons in unrelated cases, capital or otherwise. As we stated in People v. Johnson, 206 Ill. 2d 348, 379 (2002), with respect to capital cases:
“Our constitutional duty is to determine whether the death penalty has been imposed arbitrarily or capriciously, or is unduly severe, considering the circumstances of the offense and the character and rehabilitative potential of the individual defendant. People v. Williams, 192 Ill. 2d 548, 576 (2000). Comparative proportionality review in
capital cases is not required by either the United States Constitution or the Illinois death penalty statute. Thus, we do not compare the sentence received by one individual to sentences received by other individuals convicted of similar crimes. Only when one defendant is sentenced to death while his codefendant or accomplice, convicted of the same crime, receives a lesser sentence will we engage in a comparative review of disparate sentences.”
This court has consistently held that each capital case “‘is unique and must be evaluated on its own facts.‘” Ballard, 206 Ill. 2d at 179, quoting People v. Johnson, 128 Ill. 2d 253, 280 (1989). We see no reason to overturn existing precedent on this point. Further, we note that provisions calling for comparative proportionality review were not among the reforms the legislature chose to enact.
In any event, we note that the facts of the cases cited by defendant for purposes of comparison do not mirror the facts adduced in this case. The facts in those cases are “similar” only in the broadest sense of the word. Given the sheer volume of evidence—aggravating and mitigating—presented in the second stage of most capital cases, we would not expect to see identity of facts such as would allow for meaningful comparison. That is true in this case.
Defendant‘s final argument is that “Illinois’ death penalty is arbitrarily applied, based on race, geography, procedural evolution, discretion, and mistakes of fact.” Defendant contends: “Illinois death sentences result significantly from unguided discretion of prosecutors, racial bias, geographic influences, and inconsistent subjective, or mistaken, conclusions by jurors and judges.”
We must reject defendant‘s argument, as it pertains to race, geography, procedural evolution, and discretion, based on the analysis of the United States Supreme Court in McCleskey v. Kemp, 481 U.S. 279, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1987), and our own decision in People v. Stewart, 121 Ill. 2d 93 (1988).
In McCleskey, the defendant, relying upon a complex statistical study, alleged that the Georgia death penalty statute was administered in a constitutionally impermissible fashion because of the likelihood that racial considerations played a part in determining whether a particular defendant received the death penalty. According to the study, after controlling for nonracial variables, defendants accused of murdering white victims were 4.3 times more likely to receive the death penalty than those accused of murdering African-Americans. The Court, assuming the validity of the study, concluded that it did “not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process.” McCleskey, 481 U.S. at 313, 95 L. Ed. 2d at 292, 107 S. Ct. at 1778. The Court further held that the defendant in that case had to prove that “the decisionmakers in his case acted with discriminatory purpose,” and that “racial considerations played a part in his sentence.” (Emphasis in original.) McCleskey, 481 U.S. at 292-93, 95 L. Ed. 2d at 278, 107 S. Ct. at 1767.
In Stewart, this court applied the McCleskey rationale in a postconviction context. The defendant in Stewart, like the defendant in McCleskey, argued that Illinois’ death penalty statute “is being applied in a racially discriminatory manner in violation of the United States and Illinois Constitutions.” In support of that claim, defendant proffered a statistical study which purportedly showed that a defendant accused of murdering a white victim was four times more likely to receive the death penalty than a defendant accused of murdering a black victim. The study also purportedly showed that a black defendant accused of murdering a white victim was more likely to receive the death penalty than a white defendant accused of murdering a white victim. See Stewart, 121
The Stewart court also rejected another argument based upon a survey offered by defendant. Based on that survey, the defendant claimed that “the death penalty statute is unconstitutional because it leads to arbitrary and capricious application of the death penalty insofar as it *** delegates to prosecutors, without sufficient guidelines, the discretion to determine in which cases the death penalty will be sought.” Stewart, 121 Ill. 2d at 109. This court first noted, as to the survey cited by defendant, there was “virtually no suggestion as to the reasons why the death penalty was or was not sought in any given case.” (Emphasis omitted.) Stewart, 121 Ill. 2d at 111. Moreover, this court observed:
“[D]efendant does not claim that the prosecutors in his cases acted arbitrarily in seeking the death sentence. See McCleskey v. Kemp (1987), 481 U.S. 279, 296 n.17, 95 L. Ed. 2d 262, 281 n.17, 107 S. Ct. 1756, 1768 n.17 (‘Requiring a prosecutor to rebut a study that analyzes the past conduct of scores of prosecutors is quite different from requiring a prosecutor to rebut a contemporaneous challenge to his own acts‘).” (Emphasis added.) Stewart, 121 Ill. 2d at 112.
Finally, in Stewart, this court pointed out that “‘a prosecutor cannot arbitrarily impose the death penalty’ since imposition of that penalty is the province and responsibility of the sentencing body.” Stewart, 121 Ill. 2d at 112, quoting People v. Lewis, 105 Ill. 2d 226, 252 (1984).
Defendant does not argue that race, prosecutorial discretion, procedural evolution, or geography played a part in the decision to seek the death penalty in his case, or in the jury‘s decision to impose it on him. The rationale of McCleskey and Stewart thus applies. We note, in passing, defendant‘s observation that the Governor‘s Commission recommended revision of the death penalty statute to provide for mandatory review of prosecutorial decisions to seek the death penalty, a review to be undertaken by a statewide review committee. Report of the Governor‘s Commission on Capital Punishment, Recommendation 30 (April 2002). That is one of many recommendations the legislature chose to omit from recent statutory reforms. For our part, we believe the reasoning of McCleskey and Stewart demonstrates that judicial review of such decisions is not constitutionally required.
Finally, defendant argues that death penalty proceedings are “unavoidably arbitrary” because they involve “discretionary decision making.” He adds that factual error at the second stage of sentencing proceedings “contributes to arbitrary death penalty sentencing.”
In the latter respect, defendant points to no additional allegations of error. We believe we have adequately addressed those previously raised. We are confident those alleged errors did not contribute to arbitrary death penalty sentencing in defendant‘s case. As for the former contention, this court has repeatedly rejected claims that the Illinois death penalty statute fails to sufficiently minimize the risk of arbitrarily and capriciously imposed death sentences. See People v. Kirchner, 194 Ill. 2d 502, 559 (2000). This court has held that “the requirements of proof beyond a reasonable doubt of any aggravating factor and automatic appellate review direct and limit the discretion of the sentencing body so as to minimize the risk of completely arbitrary and capri-
For the foregoing reasons, we affirm defendant‘s convictions and death sentence. We direct the clerk of this court to enter an order setting Monday, January 9, 2006, as the date on which the sentence of death, entered by the circuit court of Coles County, shall be carried out. Defendant shall be executed in the manner provided by law.
Affirmed.
JUSTICE KILBRIDE, dissenting:
As I expressed in my dissent in People v. Hickey, 204 Ill. 2d 585, 637 (2001) (Kilbride, J., dissenting), the State of Illinois has reached a watershed in its approach to criminal procedure in capital cases. First, this court instituted new rules providing much needed procedural safeguards in capital cases to improve the reliability and accuracy of these trials. See 188 Ill. 2d Rs. 43, 411, 412(c), 416, 417, 701(b), 714. Next, the legislature adopted comprehensive statutory protections designed to improve the capital punishment system and reduce errors. These legislative reforms came too late, however, for the
The statutory measures cited by defendant state that: (1) the jury must receive instructions that the mitigating factors to be considered include evidence that “the defendant‘s background includes a history of extreme emotional or physical abuse” (
In this case, none of these measures were available to defendant. First, the jury was not specifically instructed to consider evidence of defendant‘s allegedly abusive background as a mitigating factor. The jury‘s consideration of this factor was simply relegated to the broad, undefined category of unspecified potential mitigation material. Second, the jury was instructed to apply a different balancing test, whereby the default sentence was death unless the jury determined that the mitigation evidence was sufficiently strong to preclude imposition of the death penalty. Third, defendant did not waive a separate hearing on the reliability of the jailhouse informants’ testimony, and no such hearing was held. Finally, defendant argues that this court is entitled to use its newly acquired statutory authority to overturn
Defendant asserts that here, unlike Hickey, retroactive application of the additional legislative protections would affect fewer than a handful of cases. He maintains that this court should overturn his death sentence as fundamentally unjust because it was imposed in the absence of the new statutory protections. To address this argument, we must consider whether the measures are to be applied retroactively or only prospectively.
Under the most recent analytical approach adopted by this court on the issue of retroactivity, we must look first to the express temporal reach of the amendment. Caveney v. Bower, 207 Ill. 2d 82, 92 (2003). See also People v. Atkins, 217 Ill. 2d 66, 71 (2005) (restating the Caveney test). Here, only one of the four provisions cited by defendant includes an express statement of its intended temporal reach. Section 115-21, requiring a separate hearing on the reliability of jailhouse informant testimony, states: “[t]his Section applies to all death penalty prosecutions initiated on or after the effective date of this amendatory Act of the 93rd General Assembly.”
While the boundary separating “procedure” and “substance” is not always clear, “procedure” generally
Here, the three remaining legislative protections cited by defendant are purely procedural in nature, concerning: (1) the contents of the jury instructions on mitigation (
I also find it telling that in enacting its death penalty reforms, the legislature did, in fact, choose to limit the new requirement of jailhouse informant reliability hearings to future cases. Even though the other provisions at issue in this appeal were enacted as part of the same package of reforms in the same public act, they did not bear the same temporal limitation. Given the immense gravity of capital proceedings, I believe fundamental fairness and the reliability of the capital punishment system require us to apply these other legislative protections
“The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision.” Texas v. Johnson, 491 U.S. 397, 420-21, 105 L. Ed. 2d 342, 364, 109 S. Ct. 2533, 2548 (1989) (Kennedy, J., concurring). Here, despite the despicable nature of the crime committed, this court must apply our retroactivity precedent evenhandedly. The same body of law protects both the innocent and the guilty from manifest injustice. To optimize the overall reliability of the capital punishment system in this state, this court should implement the latest legislative reforms retroactively in all applicable cases, including the one currently before us. Accordingly, I would remand this cause for a new sentencing hearing incorporating these protections. For these reasons, I respectfully dissent from the majority opinion.