Lead Opinion
delivered the opinion of the court:
The
The issues for our review are: (1) whether the trial court erred in denying the defendant’s motion to suppress his confession; (2) whether there was sufficient evidence to establish that the defendant had the requisite mental state to sustain a murder conviction; (3) whether the criminal sexual assault and aggravated criminal sexual assault statutes are constitutional; (4) whether the trial court’s consideration of a victim impact statement requires a new sentencing hearing; (5) whether other alleged errors in sentencing require reversal of the defendant’s death sentence; and (6) whether the trial court erred in ordering the defendant’s death sentence and his 60-year extended sentence for aggravated criminal sexual assault to run consecutively. The defendant also asks that we reconsider prior decisions holding our death penalty statute constitutional.
At trial, the mother of the victim, Markeeter Hampton, testified that in August of 1985, she and her 15-month-old daughter, Laura Hampton, lived in an apartment with the defendant and the defendant’s mother, Elizabeth Terrell. On the morning of August 27, 1985, Ms. Hampton went to work, leaving Laura with the defendant’s mother, who was to baby-sit that day. Ms. Hampton testified that later that morning the defendant telephoned her and told her that Laura had pulled a stereo down on herself and was at St. Anthony’s Hospital in a coma. She testified that Laura was subsequently
Officer John Grantz and Detective James Clemmons of the Chicago police department testified that they were called to investigate a possible child abuse case at St. Anthony’s Hospital on August 27, 1985. Both officers testified that, when questioned in the hospital emergency room, the defendant stated that he was alone with the victim and believed that her injuries were caused by a stereo falling on her. Detective Clemmons testified that he spoke with a physician at the hospital concerning the victim’s injuries, and was told the laceration which extended from Laura’s vagina to her anus was not consistent with the defendant’s story about the stereo equipment. Detective Clemmons testified that he observed bruises on the victim’s face, head, back and stomach, and saw blood running from her vagina when the doctor opened her diaper. After learning that the injuries were inconsistent with the defendant’s explanation, Detective Clemmons took the defendant to the police station for questioning.
Detective Ginko testified at the trial that he and Detective Lahm questioned the defendant at 3 p.m. for 10 minutes. Ginko testified that, after waiving his Miranda rights, the defendant stated that he was alone with the victim in the apartment when he heard a noise that sounded like something falling. The defendant said that he walked from the bathroom into the bedroom and discovered Laura lying on her back, with a bruise on her face, and stereo components on her leg and above her head. The defendant also told the officers that his mother, Elizabeth Terrell, came home shortly thereafter and took the baby to the hospital.
Assistant State’s Attorney James Sullivan testified that he interviewed the defendant at 6:45 p.m. for 25 minutes, in the presence of Detectives McManamon and
Prior to giving the statement, the defendant was advised of his Miranda rights, said that he understood those rights and agreed to discuss the victim’s injuries and death. The defendant stated that he was left alone with Laura Hampton at approximately 10 a.m. on August 27, 1985, when his mother went to the currency exchange to cash a check. He stated that he carried Laura into the bedroom and laid her on the bed next to him. When the baby woke up and began to cry, the defendant struck her on the back with his open hand. Laura continued to cry, so the defendant changed her diaper. Laura continued to cry after her diaper was changed, so the defendant struck her again with an open hand on the side of the face. The defendant then picked her up and laid her on her back across a pillow. When she continued to cry, he hit her four or five times in the stomach with a closed fist. The defendant then noticed that Laura had had a bowel movement, so he cleaned her and put on a new diaper, but did not fasten it. The defendant stated that he inserted a Q-tip and then his finger into the baby’s vagina and started “handling her.” The defendant admitted that it was difficult to put his finger in “there.” The defendant stated that he inserted his finger a couple of inches, “up to the bone” and stated that he was “looking for a pain response.” The defendant stated that the baby “hollered for a few minutes, then stopped hollering.” Defendant said that he continued this for about “a minute or two” until he heard his mother knock at the door. When his mother entered the apartment,
Dr. Robert Stein, the medical examiner of Cook County and a forensic pathologist, described the nature and extent of the victim’s injuries at trial. He testified that his postmortem examination revealed blood in the victim’s peritoneal and pleural cavities, collapsed lungs, contusions of the heart, lacerations of the liver and a tearing of the mesentery. His examination also revealed blood on the kidneys and pelvis as well as lacerations of the vagina and rectum. He testified that the victim’s injuries were recent and produced before death. He concluded that the victim’s death had been a homicide. He also testified that the lacerations to the victim’s genital area were consistent with a finger or Q-tip being inserted into the vagina.
At the trial, the defendant testified that he was left alone with Laura at approximately 9:30 a.m. on August 27, 1985, when his mother went to the currency exchange. He stated that he took the baby to the hospital at approximately 11 a.m. and told the police that it appeared as though a stereo had fallen on the victim. On cross-examination, the defendant denied that he watched Laura while his mother went to the currency exchange. He testified that he “stepped out” for approximately 40 minutes while his mother was gone and left Laura alone in the apartment. He stated that he spoke to “associates” while he was gone, but could not remember any of their names. The defendant stated that when he returned to the apartment, it appeared as though a stereo
After hearing the evidence and closing arguments, the trial court found the defendant guilty of murder and aggravated criminal sexual assault. The State then requested a death penalty hearing, and the defendant waived his right to be sentenced by a jury. Based on evidence introduced at the eligibility phase of the proceedings, the trial court found the defendant to be 18 years old at the time of the crimes and that two of the aggravating factors set forth in section 9 — 1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(b)) were present: (1) the defendant had been convicted of murdering a victim under 12 years of age and the death resulted from exceptionally brutal and heinous behavior indicative of wanton cruelty (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(b)(7)), and (2) the defendant murdered the victim in the course of another felony, that of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(b)(6)). Based on these findings, the court found the defendant eligible for the death penalty and then heard evidence in aggravation and mitigation.
In aggravation, the State introduced the testimony of Dr. Demetra Soter, who treated the victim at Cook County Hospital on August 27, 1985. Dr. Soter described the lacerations to Laura’s vagina, rectum, liver and mesentery.
Markeeter Hampton testified at the sentencing hearing regarding the emotional pain she and her family suffered because of Laura’s death, and her victim impact statement was admitted into evidence without objection by defense counsel. The State also introduced certified copies of two separate robbery convictions of defendant and the testimony of two police officers who investigated those robberies. Finally, Detective McManamon testified that he determined, after consulting hospital personnel, that the defendant’s mother had brought Laura to the hospital.
In mitigation, the defendant’s father, stepmother and cousin testified that the defendant’s problems were attributable to his mother’s bad influence. The defendant then told the court that he did not murder Laura Hampton, that he loved children, and asked the court for mercy. The trial court concluded that there were no mitigating factors sufficient to preclude the imposition of death and sentenced the defendant to death. The court also sentenced the defendant to an extended term of 60 years’ imprisonment for aggravated criminal sexual assault, to run consecutively with the defendant’s death sentence. The defendant’s death sentence was stayed (107 Ill. 2d R 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, §4(b); 107 Ill. 2d R. 603).
I
The defendant raises a number of issues relating to his conviction in this appeal. He first argues that his
At the hearing on the motion to suppress, the defendant testified that on August 27, 1985, at approximately 11 a.m., he was at the hospital where Laura Hampton was receiving treatment for her injuries. He testified that an officer asked him to go to the police station for questioning. The officer then escorted him to the station and placed him in an interview room. He testified that 45 minutes later, the officer returned to the interview room and questioned him for five minutes. The officer then left, but returned a short time later with another officer. He testified that the officers questioned him for 30 minutes and then left.
The defendant testified that two different officers interviewed him at approximately 4:30 p.m. He claimed that these officers asked him some questions and then left. The defendant testified that, shortly thereafter, one of the officers returned and advised him of his Miranda rights. The defendant testified that the officer escorted him to and from the bathroom and then left again for an hour and a half. He testified that during this time period several officers came into the interview room and asked him if he wanted water, cigarettes or to usé the bathroom. The defendant testified that the two officers who had questioned him at 4:30 p.m. returned to the interview room at approximately 7:30 p.m. He testified that one of the officers, Detective McManamon, began making accusations and grabbed him by the collar, pushed him in the chest, and demanded more information.
Witnesses for the State testified that the defendant was questioned on three separate occasions after he arrived at the station. Detective Lahm testified that he and his partner, Detective Ginko, interviewed the defendant at 3 p.m. Lahm testified that he advised the defendant of his Miranda rights. The defendant then waived those rights and agreed to talk to the detectives. Lahm testified that he and Ginko then questioned the defendant for approximately 10 minutes. Lahm testified that he did not threaten, harass or physically harm the defendant. Although Lahm testified that he could not tell whether the defendant was under the influence of marijuana laced with PCP, he stated that the defendant appeared normal during their conversation.
Detective McManamon testified that he and his partner, Detective Nuccio, questioned the defendant at 5 p.m. McManamon testified that he read the defendant his Miranda rights before questioning him. He testified that the defendant stated that he understood those rights, and wished to waive them. The detectives then questioned the defendant for approximately 40 minutes.
Assistant State’s Attorney James Sullivan testified at the hearing that he spoke with the defendant at 6:45 p.m., in the presence of Detectives McManamon and Nuccio. Sullivan testified that he advised the defendant of his Miranda rights, and explained that he was an attorney who worked with the police and was not the defendant’s attorney. After the defendant indicated that he understood his rights and wished to waive them, he gave an oral statement to Sullivan. Sullivan testified that the defendant appeared sober and. coherent, was not handcuffed, and had no cuts or bruises. Sullivan denied that he threatened or harassed the defendant. Sullivan testified that, before he left the interview room, he asked the defendant if he had been given anything to eat or drink and the defendant replied that he had been given coffee and cigarettes. At approximately 8:15 p.m., Sullivan reentered the interview room, informed the defendant that a court reporter was on her way, and asked him if there was anything he needed. Sullivan testified that the defendant replied that he did not need anything to eat or drink and that he had been well treated.
At 8:50 p.m., a court reporter transcribed the defendant’s statement in the presence of Sullivan, Nuccio and McManamon. McManamon testified that, while the statement was being typed, he was informed that members of
Several members of the defendant’s family testified at the suppression hearing that they went to the police station on the evening of August 27, but were told by police officers that they could not see the defendant. One witness, Irene Lewis, testified that, when one of the police officers opened the door of the interview room where the defendant was being held, she put her foot in the opening and told the defendant, “God love you, we will pray for you, keep your chin up.” The defendant’s aunt testified that she briefly saw the defendant walking to the bathroom and that he looked tired but not injured. The defendant’s stepmother testified that she told a police officer that the defendant should not be questioned without an attorney, but was told that he did not need an attorney. The defendant’s stepmother also testified that she was allowed to bring the defendant food, and that the defendant’s mother was allowed to see the defendant after he signed the written statement.
At the conclusion of the suppression hearing, the trial court found that the defendant had knowingly and voluntarily waived his Miranda rights. The court concluded that the defendant had not asked for a lawyer, and that the defendant’s family members could not invoke his personal right to an attorney. The court also stated it had considered the defendant’s allegations that he had
The defendant raises two arguments in this appeal to support his contention that his confession should have been suppressed.
A
First, he claims that his statements were involuntary and admitted into evidence in violation of his rights under the fourteenth amendment of the United States Constitution. He maintains that his statements were involuntary because the police held him incommunicado at the police station for approximately nine hours, denied his requests to use the telephone, and refused to allow his family to see him. (Haynes v. Washington (1963),
The State responds that the defendant has waived both the constitutional issue and the statutory issue by failing to raise them in his post-trial motion. This court has recently affirmed that both an objection at trial and a specific objection in a written post-trial motion are necessary to preserve an issue for review. (People v. Enoch
The plain error rule of course permits a court on direct appeal to take notice of plain errors and defects affecting' substantial rights which were not brought to the attention of the trial court. (107 Ill. 2d R. 615(a); People v. Gacho (1988),
As we stated, the trial court concluded, after hearing the evidence presented at the suppression hearing, that the defendant’s statements were not involuntary and denied the defendant’s motion to suppress. A trial court’s determination that a confession is voluntary will not be reversed unless it is contrary to the manifest weight of the evidence. (People v. King (1986), 109 Ill. 2d. 514.) We conclude that the trial court’s conclusion that the defendant’s confession was voluntary was not against the weight of the evidence.
The evidence presented at the suppression hearing showed that the defendant was 18 years old, literate, and at the time had completed three years of high school. He had had previous experience with the criminal justice system and, thus, was aware of the consequences of confessing. Although the defendant claimed that he was under the influence of drugs at the time he confessed,
The defendant was repeatedly advised of his Miranda rights, stated that he understood those rights, and proceeded to give an oral statement without requesting an attorney or indicating that he wished to remain silent. The record supports the conclusion that he understood his constitutional rights and the questions he was asked, as well as his own written statement.
Although the defendant was in custody for eight hours before he confessed, the periods of questioning to which he was subjected were not prolonged and were interspersed with significant rest periods. In view of the nature of the crime and the investigation the police were conducting, the period of detention was not unreasonable. (People v. Taylor (1974),
The defendant testified that he made the inculpatory statements because a police officer threatened and coerced him. There was no evidence to support this claim. The officer whom the defendant implicated specifically denied that he harassed, threatened or physically abused the defendant. The defendant also claimed that he made the inculpatory statements because he was not allowed to see family members. The defendant admitted at the suppression hearing, however, that he did not ask to see
The defendant argues that witnesses for the State never rebutted his testimony that the police and assistant State’s Attorney refused to allow him to use the telephone. As the State points out, however, the defendant’s motion to suppress did not claim that the defendant asked to use the telephone or that his requests were denied. In fact, the defendant did not raise this question until the end of. the suppression hearing, after all of the witnesses for the State had testified.
The facts in Haynes v. Washington (1963),
Even if we assume that the trial judge believed the defendant’s uncorroborated testimony that the police and assistant State’s Attorney ignored his requests to use the telephone, that would not invalidate the confession as a matter of law. The evidence in this case, unlike that in Haynes, does not support the inference that the defendant’s will was overborne. In Haynes, the evidence established that the defendant was held incommunicado
B
The defendant next argues, that his inculpatory statements to the police should have been suppressed because the State failed to produce or explain the absence of three material witnesses at the hearing on his motion to suppress. The defendant claims that the following three material witnesses were absent: Officer Clemmons, who interviewed him at the hospital, Detective Ginko, who interviewed him at the police station, and the court reporter who transcribed his oral statement at the police station. The defendant maintains that these persons were material witnesses on the issue of whether he was under the influence of marijuana and PCP at the time he was questioned by the police. The defendant argues that the State’s failure to produce these witnesses at the suppression hearing constitutes reversible error. The State responds that the defendant has waived this issue by failing to object to the State’s failure to call the witnesses in the trial court and by failing to raise the issue in his motion for a new trial.
The defendant acknowledges his procedural default, but argues that this court should regard the State’s failure to produce a material witness at a suppression hearing as “plain error.” We have reviewed the record and judge that the State’s failure to call certain witnesses at the suppression hearing was not plain error. The evidence at the suppression hearing relating to the defendant’s asserted intoxication was not closely balanced. Witnesses for the State testified that the defendant appeared sober and coherent at all periods of interrogation. That the State did not produce every witness who had any contact with the defendant was not a substantial defect that could have deprived the defendant of a fair trial.
The defendant next contends that his murder conviction must be overturned because the evidence failed to show beyond a reasonable doubt that he acted with the mental state necessary to sustain a murder conviction under section 9 — 1(a)(1) or 9 — 1(a)(2) of the Criminal Code. Citing People v. Mitchell (1984),
The defendant was charged under all three sections of the murder statute (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1(a)(1), (a)(2), (a)(3)). Accordingly, the defendant could be found guilty of murder if the evidence established that (1) he intended to kill or do great bodily harm to the victim or knew that his actions would cause the victim’s death, or (2) he knew that his acts created a strong probability of death or great bodily harm, or (3) he was attempting or committing a forcible felony (other than involuntary manslaughter) from which death resulted. Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1(a)(1), (a)(2), (a)(3).
A & B
The character of the defendant’s acts and the circumstances surrounding the acts were such that the trial
Although what in the ordinary sense is regarded as a deadly weapon was not used here, this court has held that death may be a natural consequence of a blow from a bare fist where there is great disparity in size and strength between the defendant and the victim (People v. Brackett (1987),
Here too, the nature of the infant’s injuries and the deliberate force needed to cause them negate any suggestion that the defendant’s acts were only reckless and not intentional. The evidence established that the defendant struck the 15-month-old victim on the face and back with his open hand because, he said, she would not stop crying. When he saw that he injured the baby, he placed the stereo unit on the floor so that it would look as if the stereo caused her injuries. When the baby continued to cry, the defendant repeatedly beat her with a closed fist in the stomach. After severely beating the infant, the defendant brutally sexually assaulted her, by inserting a Q-tip and his finger into her vagina. The defendant stated that he inserted his finger almost to the bone for a minute or two, “looking for a pain response.” He admitted that he removed his finger from the infant’s vagina only when he heard his mother at the door.
The medical testimony established that the victim sustained injuries on almost every part of her body, including the head, face, back, waist, stomach, rectum and vagina. The defendant beat the victim so severely that both of her lungs collapsed and she began hemorrhaging in the head, stomach, kidneys and pleural cavities. The defendant also sexually assaulted the victim with sufficient force to tear her liver, rectum and vagina. Given the extent of the victim’s injuries and the force that was needed to cause them, it is an absurdity for the defendant to argue that he did not know that his actions would cause great bodily harm to the victim or that they created a strong probability of death or great bodily harm to the infant. The evidence clearly supported a conviction for murder under either section 9 — 1(a)(1) or (a)(2) of the Criminal Code.
C
In addition, the defendant totally ignores that he was charged under section 9 — l(a)(3) of the Criminal Code (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(3)). Under that section, a defendant may be convicted of murder if he commits a forcible felony from which death results. The State proved at trial that the defendant was guilty of aggravated criminal sexual assault by showing that he intentionally inserted his finger and a Q-tip into the baby’s vagina, causing severe bleeding and extensive lacerations. (See Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14.) The evidence proved that the defendant committed a forcible felony against the infant, which resulted in her death and thereby established that the defendant was guilty of felony murder under section 9 — 1(a)(3).
Ill
The defendant next argues that his conviction for aggravated criminal sexual assault must be overturned because
A
He first argues that the aggravated criminal sexual assault statute (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14) is unconstitutional because it requires a less culpable mental state than is required for the lesser offense of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16). Aggravated criminal sexual assault is defined in section 12 — 14 of the Criminal Code, which specifies that an accused commits aggravated criminal sexual assault if he or she commits an act of “sexual penetration” under certain defined circumstances (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14). “Sexual penetration” is defined as:
“[A]ny contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration.” (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(f).)
The lesser offense of aggravated criminal sexual abuse occurs when an offender commits an act of “sexual conduct” under defined circumstances. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16.) “Sexual conduct” is defined as:
“[A]ny intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused.” (Ill. Rev. Stat. 1985, ch. 38, par. 12-12(e).)
The defendant argues that section 12 — 14 is unconstitutional because it punishes “sexual penetration,” which does not require a specific mental state, more severely than “sexual conduct,” which requires that the touching or fondling be either “intentional or knowing” and “for the purpose of sexual gratification or arousal of the victim or the accused.”
As authority, the defendant cites People v. Wick (1985),
The defendant argues that the aggravated criminal sexual assault statute, like the statute struck down in Wick, does not require an unlawful purpose on the part of the person who commits an act of sexual penetration and, therefore, punishes innocent as well as culpable conduct. The defendant maintains that it is unreasonable and arbitrary for the legislature to punish offenses based upon an act of sexual penetration, which requires no mental state, more severely than offenses based upon an act of sexual conduct, which requires a mental state. The defendant contends that the aggravated criminal sexual assault statute therefore violates due process.
In People v. Burmeister (1986),
The legislature may rationally decide to punish “sexual penetration,” required for the sexual assault offenses, more severely than “sexual conduct,” required for the sexual abuse offenses. As stated, “sexual penetration” involves a physical contact between the sex organ of one person and the sex organ, mouth or anus of another, or an actual intrusion into the sexual organ or anus of the victim. “Sexual conduct,” on the other hand,
The defendant argues that his conviction for aggravated criminal sexual assault must be reversed even if this court judges that a mental state requirement is implicit in the statute, because the evidence failed to establish that his contact with the victim was for the purpose of sexual gratification or arousal. The defendant’s argument is based upon the erroneous assumption that the implicit mental state is “intentional or knowing for the purpose of sexual gratification or arousal of the victim or accused.” When a statute fails to prescribe a mental state applicable to an element of an offense, however, a mental state of intent, knowledge or recklessness is implied. (Ill. Rev. Stat. 1985, ch. 38, pars. 4 — 3, 4 — 4, 4 — 5, 4 — 6.) This court will not presume that the legislature intended to limit the definition of “sexual penetration” only to those acts done for the purpose of sexual gratification or arousal of the accused or the victim.
The legislature may have added the sexual gratification language to the definition of “sexual conduct” because it is possible for the touching which is part of that offense to occur accidentally or unintentionally. (People v. Bartay (1986),
B
The defendant next argues that the aggravated criminal sexual assault and the criminal sexual assault statutes, sections 12 — 13 and 12 — 14 of the Criminal Code (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 13, 12 — 14), are constitutionally overbroad. He argues that both statutes are deficient because the legislature failed to limit the definition of “sexual penetration” to those acts done for the purpose of sexual gratification or arousal of the victim or the accused. He maintains that sections 12 — 13 and 12 — 14, under which sexual penetration is required, could therefore be construed to punish innocent behavior such as bathing the vaginal area of an unwilling child.
A similar attack upon section. 12 — 13, the criminal sexual assault statute, was made in People v. Haywood (1987),
The Haywood court reaffirmed the general principle that a person to whom a statute may be constitutionally applied does not have standing to challenge that statute as overbroad on the ground that it might be applied unconstitutionally to others in a different context. (People v. Haywood (1987),
C
The defendant next argues that subsection (b)(1) of the aggravated criminal sexual assault statute violates the due process clauses of the Illinois and United States Constitutions. That section provides:
“(b) The accused commits aggravated criminal sexual assault if:
(1) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed.” Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(b)(1).
The defendant argues that by entitling section 12— 14(b)(1) aggravated criminal sexual assault, the legislature evidenced its intent to define an aggravated form of criminal sexual assault. He notes, however, that criminal sexual assault is not a lesser included offense of aggravated criminal sexual assault as that offense is defined in section 12 — 14(b)(l). He submits that, because criminal sexual assault is not an underlying offense for aggravated criminal sexual assault as defined in section 12— 14(b)(1), the statute is not reasonably related to the public interest which the legislature intended to protect, and violates due process. The defendant cites People v. Johnson (1986),
The State concedes that criminal sexual assault is not a lesser included offense of aggravated criminal sexual assault, as that offense is defined in section 12 — 14(b)(l). It argues, however, that section 12 — 14(b)(1) does not need a lesser underlying offense to be constitutionally valid. The State argues that the defendant’s reliance upon the Johnson decision is misplaced because the statute at issue in Johnson, unlike section 12 — 14(b)(l), was based upon a lesser included offense which required a more culpable mental state.
In Johnson, this court invalidated a section of the aggravated arson statute which made it a Class X felony to knowingly damage by fire a building known to have a person or persons inside (Ill. Rev. Stat. 1983, ch. 38, par. 20 — l.l(a)(1)). This court had previously held another subsection of the aggravated arson statute unconstitutional because it did not require an unlawful purpose on the part of the person setting the fire, and therefore punished innocent as well as culpable conduct. (People v.
The Johnson case did not establish any principle that every aggravated offense must have a lesser included offense to be constitutionally valid. Rather, that court held that it was irrational for the legislature to punish a person who set a fire without a culpable mental state more severely than a person who set a fire with a culpable mental state. (People v. Johnson (1986),
Second, in Johnson this court concluded that the legislature enacted the aggravated arson statute solely to define those factors which would enhance the lesser offense of arson into the greater offense of aggravated arson. (People v. Johnson (1986),
An act of “sexual penetration” is treated as the lesser offense of criminal sexual assault when the offender intentionally or knowingly commits the act (1) by the use or threat of force, or (2) knowing that the victim was unable to understand the nature of the act or give knowing consent, or (3) with a victim who is under 18 years of age and the accused is a member of the victim’s family or responsible for the victim’s welfare. (Ill. Rev. Stat. 1985, ch. 38, pars. 12-13(a)(1), (a)(2), (a)(3).) An act of “sexual penetration” is treated as aggravated criminal sexual assault, and punished more severely, when the offender commits the act and (1) the offender is 17 or older and the victim is younger than 13; or (2) the offender is under 17 and the victim is younger than 9; or (3) the offender is under 17 and the victim is at least 9 but less than 13, and the offender uses or threatens to use force. Ill. Rev. Stat. 1985, ch. 38, pars. 12— 14(b)(1), (b)(2), (b)(3)
It is the province of the legislature to define offenses and determine the penalties required to protect the interest of society. (People v. Steppan (1985),
IV
The defendant raises a number of challenges to his sentencing hearing and the death penalty statute. He first contends that he was deprived of his constitutional right to a fair sentencing hearing because the trial judge improperly considered victim impact evidence at the sentencing hearing contrary to the holding of the Supreme Court in Booth v. Maryland (1987),
In this case, the victim impact evidence was introduced at the defendant’s sentencing hearing without objection by the defense. The evidence was a typewritten statement signed by Markeeter Hampton, the mother of the victim. In the statement, Ms. Hampton told of the pain she and her family suffered after the murder of her baby. She stated that she was unable to return to work as a counselor at a child care center because it was too painful to be around other children. She also stated that her life was destroyed and that she had “prayed to God” that the trial judge would impose the death penalty. Ms. Hampton also testified at the sentencing hearing regarding the impact of the murder of her baby upon her family.
The State concedes that the use of the victim impact evidence at the defendant’s capital sentencing hearing offended the principles of Booth. Relying upon this court’s decision in People v. Crews (1988),
In Crews, the trial court admitted, without objection from the defense, a brief typewritten statement by the wife of a murder victim, which detailed the pain she and her family suffered as a result of the death of the victim, (People v. Crews (1988),
“The sentencing hearing in this case was conducted before the trial judge alone, the defendant having waived his right to a jury. Although the Supreme Court did not indicate in Booth that the rule announced in that case was limited to jury proceedings, we believe .that the distinction is important ***.” (Crews,122 Ill. 2d at 288 .)
The Crews court then observed that the prosecuting attorney did not emphasize the victim impact evidence, and that the trial judge did not refer to the victim impact statement when he set forth reasons for sentencing the defendant to death. The court concluded that the admission of the victim impact evidence at the sentencing hearing was harmless error because the trial judge did not rely on the evidence in imposing sentence. People v. Crews (1988),
Here, like in Crews, the capital sentencing hearing was held before a judge, the defendant having waived his right to have a jury determine his sentence. Although the Booth court presumed that a jury would be adversely affected by the admission of emotional victim impact evidence,
Applying these principles here, we cannot conclude that the erroneous admission of the victim impact evidence was harmless beyond a reasonable doubt. The four-page victim impact statement admitted into evidence in this case was more extensive than the one-paragraph statement at issue in Crews. In the statement, Markeeter Hampton, responding to a series of questions, described the emotional pain she and her family suffered as a result of the victim’s murder, and specifically requested the trial judge to senténce the defendant to death. In addition, Ms. Hampton, unlike the author of the victim impact statement in Crews, testified at the sentencing hearing regarding the suffering she and her family endured as a result of the victim’s death.
More significantly, the trial judge specifically stated at the sentencing hearing that he had considered the victim impact evidence. Prior to announcing his decision to sentence the defendant to death, the trial judge stated:
“The court has reviewed all the evidence, all of the competent evidence, presented both at the trial and the death penalty hearing. I have considered the presentence investigation, the victim impact statement, the arguments of counsel, the statement of the defendant, and the exhibits, which were offered and both [sic] received during the course of the trial and during the course of the hearing.”
The trial judge in Crews, on the other hand, engaged in a lengthy recitation of his reasons for imposing the death sentence, but did not refer to the victim impact evidence.
The State maintains that admission of the victim impact evidence in this case was harmless error. The State relies upon remarks the trial judge made at the post-sentencing hearing, more than three months after he sentenced the defendant to death:
“MR. EPOCH [prosecutor]: Judge Suria, having said those things, would it be your finding of fact at this time if Marquita [sic] Hampton had not testified in aggravation your sentence, in fact, would have been the same?
THE COURT: As I have indicated before, without that testimony and without the testimony of the two prior convictions I would have still sentenced Drew Terrell to the sentence of death.”
The State argues that the trial court’s comments show that the erroneous admission of the victim impact evidence was harmless.
The question, however, is not whether the legally admitted evidence was sufficient to support the death penalty, but whether the State has proved beyond a reasonable doubt that the error complained of did not contribute to the court’s decision to impose the death penalty. (Satterwhite v. Texas (1988),
As we conclude that the defendant’s death sentence must be vacated and the cause remanded for a new sentencing hearing, we address only those issues which may arise again. People v. Fierer (1988),
The defendant contends that his death sentence was the result^ of an impermissible double enhancement. The defendant says that his act of striking the victim with sufficient force to cause her death was used both as the basis for his murder charge, and to enhance the offense of criminal sexual assault to aggravated criminal sexual assault. The defendant contends that the crime of aggravated criminal sexual assault was then used in conjunction with his murder conviction to make him eligible for the death penalty under section 9 — 1(b)(6) of the Criminal Code. That section makes a defendant who murders a victim in the course of another felony subject to the death penalty. (Ill. Rev. Stat. 1987, ch. 38, par. 9— 1(b)(6).) The defendant submits that, under People v. Hobbs (1981),
The defendant’s reliance upon this court’s decision in People v. Hobbs (1981),
In this case, unlike Hobbs, the same facts were not used both to enhance the offense of criminal sexual assault to aggravated criminal sexual assault and to enhance the defendant’s sentence for murder by making him liable for the death penalty under section 9 — 1(b)(6) of the Criminal Code. The defendant claims that his act of striking the victim with sufficient force to cause her death formed the basis for his conviction of murder. These same facts, however, did not necessarily form the basis for the defendant’s aggravated criminal sexual assault conviction. The fact that the defendant, who was more than 17 years of age, committed an act of sexual penetration upon a victim who was younger than 13 years old was sufficient to sustain his conviction for aggravated criminal sexual assault. The defendant’s conviction for aggravated criminal sexual assault would be warranted even if he had not struck or inflicted great bodily harm upon the victim. Unlike the Hobbs case, we are not confronted with a situation in which a single aggravating factor, such as striking the victim, constituted both the sole cause of the victim’s death and the sole factor to support the finding of murder during the commission of an aggravated criminal sexual assault. As stated, the evidence here supported a finding of aggravated
The defendant argues that the State failed to prove beyond a reasonable doubt that he murdered the victim “in the course of” a felony, as required for death sentence eligibility under section 9 — 1(b)(6) of the Criminal Code. The defendant argues that, to prove that a murder occurred “in the course of” a felony, the State must demonstrate beyond a reasonable doubt that the murder was causally connected to the commission of the underlying felony and that the murder was committed to further the commission of that felony. The defendant submits that the evidence demonstrates that he beat the victim because she was crying, and not to permit the sexual assault. He argues that the evidence did not establish that he formed the intent to commit the sexual assault prior to or simultaneously with the beating. Thus, he argues that the evidence does not support the conclusion that he murdered the victim to carry out the sexual assault.
In this case, the forensic pathologist testified that the victim’s death was caused in part by the lacerations in her vagina and rectum. The evidence therefore established that the victim’s death was caused, not only by the injuries she sustained when the defendant beat her, but also by the injuries she sustained at the time the defendant sexually assaulted her. Thus, the State did not have to prove that the defendant formed the intent to commit the sexual assault prior to beating the child. The evidence clearly proved beyond a reasonable doubt that the victim’s death was causally connected to the commission of the underlying sexual assault and that the
The defendant also raises a number of constitutional challenges to the Illinois death penalty (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1). The defendant first argues that the aggravating factor set forth in section 9 — 1(b)(7) of the Criminal Code, which the trial judge used to establish his eligibility for the death penalty here, is unconstitutionally vague. Section 9 — 1(b)(7) provides that a defendant who has been found guilty of murder may be sentenced to death if:
“the murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(b)(7).)
The defendant, citing Maynard v. Cartwright (1988),
Moreover, we observe that the trial judge found that two aggravating factors existed in sentencing the defendant to death. First, the defendant murdered the victim in the course of another felony (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)(6)), and second, the murdered individual was under 12 years of age and her death resulted from exceptionally brutal and heinous behavior indicative of wanton cruelty (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)(7)). Therefore, even if it were to be assumed that section 9 — 1(b)(7) is unconstitutionally vague, the defendant was still eligible for the death penalty under
The defendant argues that the death penalty statute is unconstitutional because it does not require the State to prove beyond a reasonable doubt that there are no mitigating factors sufficient to preclude the imposition of death. This argument was rejected in People v. Kubat (1983),
The defendant also contends that the death penalty statute is unconstitutional because it gives prosecutors unlimited discretion to choose which defendants will be subject to the death penalty and thus lacks adequate safeguards to prevent the arbitrary and capricious imposition of the death sentence. We have addressed these arguments on several occasions and have concluded that the statute satisfies constitutional guarantees. (See, e.g., People v. Orange (1988),
The defendant maintains that the death penalty statute violates the eighth and fourteenth amendments because it bars the sentencer from considering sympathy for the defendant. The defendant cites California v. Brown (1987),
Finally, the defendant asserts that the death penalty statute is unconstitutional because it does not contain adequate safeguards to prevent the arbitrary and capricious imposition of the death sentence. The defendant raises a number of individual factors which he claims renders the statute arbitrary and capricious. We briefly address each of the individual issues presented, This court has rejected the argument that the statute is unconstitutional because it vests unguided discretionary authority in the prosecutor to seek the death penalty. (People
We are aware, of course, that a United States District Court judge in the Central District of Illinois held our death penalty statute (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1) unconstitutional on the grounds that it gives the prosecutor too broad a discretion whether to ask for the death penalty and lacks adequate notice provisions as to when the death penalty would be sought (United States ex rel. Silagy v. Peters (C.D. Ill. 1989),
“We are aware of the opinion of the United States District Court for the Central District of Illinois, filed April 29, 1989, in the case of the United States ex rel. Silagy v. Peters (C.D. Ill. 1989),713 F. Supp. 1246 . Inthat case the court held the Illinois death penalty statute (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1) unconstitutional. In passing on Federal constitutional questions, State courts and lower Federal courts have the same responsibility and occupy the same position. Until the Supreme Court of the United States has spoken, State courts are not precluded from exercising their own judgments on Federal constitutional questions. Because lower Federal courts exercise no appellate jurisdiction over State courts, decisions of lower Federal courts are not conclusive on State courts, except insofar as the decision of the lower Federal court may. become the law of the case. United States ex rel. Lawrence v. Woods (7th Cir. 1970), 432 F.2d 1072 ; see also City of Chicago v. Groffman (1977),68 Ill. 2d 112 ; People v. Stansberry (1971),47 Ill. 2d 541 .” Del Vecchio,129 Ill. 2d at 295-96 .
Finally, the defendant contends that the trial judge erred in ordering that the defendant’s death sentence for murder and 60-year sentence for aggravated criminal sexual assault run consecutively. He argues that only one sentence of imprisonment was imposed and that consecutive sentences are authorized only in the case of multiple terms of imprisonment. Section 5 — 8—4(a) of the Unified Code of Corrections provides:
“When multiple sentences of imprisonment are imposed on a defendant at the same time, or when a term of imprisonment is imposed on a defendant who is already subject to sentence in this State or in another state, or for a sentence imposed by any district court of the United States, the sentences shall run concurrently or consecutively as determined by the court. *** The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the court may enter sen-fencesto run consecutively.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-4(a).
This court addressed a similar question in People v. Neal (1985),
“The statute authorizing extended terms refers to and is bottomed on, in a sense, the maximum sentences ‘authorized by Section 5 — 8—1,’ to which it refers. That section refers to terms of imprisonment and does not include capital sentences. Obviously a provision for an extended term of imprisonment would not be applicable to a sentence of death.” (Emphasis added.) Neal,111 Ill. 2d at 204 .
Although the statute we are discussing authorizes the imposition of consecutive sentences, rather than extended terms of imprisonment, it too concerns a sentence of “imprisonment.” Under Neal, we hold that a death sentence is not to be considered a term of imprisonment within the meaning of the consecutive sentencing statute. Section 5 — 8—4(a) authorizes the imposition of a consecutive sentence only where multiple sentences of imprisonment are imposed, or when a single term of imprisonment is imposed upon a defendant already subject to sentence in this State. Because the defendant was sentenced to death and to a term of imprisonment at the
The State argues that the defendant has waived the issue by failing to object at trial. The trial court’s imposition of a consecutive sentence without statutory authority is the imposition of a void sentence and does not present an issue subject to the defendant’s waiver. (People v. Singleton (1984),
We would observe that our legislature recently amended section 5 — 8—4(b) to enlarge a court’s authority to order consecutive sentences. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4(b) (amended by Pub. Act 85 — 1030, §3, eff. July 1, 1988).) As the defendant was sentenced before the statute was amended, the amendment has no application here.
For the reasons given, the defendant’s convictions for murder and aggravated criminal sexual assault are affirmed. The sentences imposed are vacated and the cause is remanded to the circuit court of Cook County with directions that sentences be imposed for murder and aggravated criminal sexual assault not inconsistent with this opinion and by a judge other than the judge who imposed the sentences that are now vacated.
Convictions affirmed; sentences vacated; cause remanded with directions.
Concurrence Opinion
concurring in part and dissenting in part:
I concur in the court’s judgment affirming the defendant’s convictions for murder and aggravated criminal sexual assault. Unlike the majority, however, I do
The majority believes the trial judge, in a bench proceeding, improperly relied on certain victim impact information in sentencing the defendant to death. The evidence at issue consists of a typewritten victim impact statement prepared by the victim’s mother, Markeeter Hampton, and Hampton’s testimony at the sentencing hearing. In both her written statement and live testimony, Mrs. Hampton described how her child’s murder had affected her, and she asked the judge to sentence the defendant to death for the offense. The State does not dispute that admission of the victim impact evidence would have been barred by the subsequent decision in Booth v. Maryland (1987),
As the majority opinion correctly recognizes, not every instance of Federal constitutional error in a capital sentencing hearing necessitates a new proceeding. (See Satterwhite v. Texas (1988),
Defense counsel did not object at the sentencing hearing to the introduction of the victim impact evidence, but counsel did raise the issue during the hearing on the defendant’s post-sentencing motion. At the latter hearing the following colloquy ensued:
“MR. EPOCH [assistant State’s Attorney]: Judge Suria, having said those things, would it be your finding of fact at this time if Marquita [sic] Hampton had not testified in aggravation your sentence, in fact, would have been the same?
THE COURT: As I have indicated before, without that testimony and without the testimony of the two prior convictions I would have still sentenced Drew Terrell to the sentence of death.”
In my view, the statement made by the trial judge provides unassailable proof that the victim impact evidence did not contribute to his decision to sentence the defendant to death. Contrary to the defendant’s argument, the remarks do not show merely that the judge believed that the remaining evidence was sufficient to sustain the death penalty. Rather, the judge clearly stated that his sentencing decision would have been the same “without *** [the victim impact] testimony.” Although the judge did not expressly disclaim reliance on
The majority refuses to, accept the trial judge’s declaration that the victim impact information played no part in his decision to sentence, the defendant to death, relying instead on comments made by the judge during the sentencing hearing. Before imposing sentence the trial judge stated:
“The court has reviewed all the evidence, all of the competent evidence, presented both at the trial and the death penalty hearing. I have considered the presentence investigation, the victim impact statement, the arguments of counsel, the statement of the defendant, and the exhibits, which were offered and both received during the course of the trial and during the course of the hearing.”
The majority believes that the trial judge’s remarks demonstrate that the victim impact evidence did in fact contribute to the decision to impose the death penalty. I do not agree.
Treating “consider” as a synonym for “rely” the majority concludes that the judge’s consideration of the victim impact information necessarily meant that the evidence affected or contributed to the sentencing decision. The remaining comments made by the judge refute such an interpretation, however. The judge also said that he had considered the arguments of counsel and the defendant’s own statement in allocution. That statement does
The trial judge’s statement at the post-sentencing hearing demonstrates convincingly that the victim impact evidence did not contribute to his decision to impose the death penalty in the present case. I would conclude that any error occurring in the introduction of the victim impact evidence was harmless beyond a reasonable doubt. Accordingly, I do not believe that a new sentencing hearing is required in the present case, and I respectfully dissent from that portion of the majority decision vacating the defendant’s death sentence and remanding the cause for another hearing.
JUSTICE STAMOS joins in this partial concurrence and partial dissent.
Dissenting Opinion
dissenting:
I dissent from the holding of the majority opinion vacating the sentence of death and remanding the cause for a new sentencing hearing. The majority based its holding on the admission into evidence of the victim impact statement. The majority finds that the use of the statement violates the holding of the majority in Booth
We do not know why defense counsel made no objection to the use of the statement. It may well be that he was holding this ace up his sleeve, saving it to be used on appeal to achieve the very result reached by the majority opinion — the vacatur of the death sentence and the remand for another sentencing hearing — thus giving him two opportunities, instead of one, to save his client from the death sentence.