People v. Thompson

(No. 97373. ILLINOIS, Appel- THE OF

THE PEOPLE OF STATE THOMPSON, lee, Appellant. CURTIS A. v. Rehearing July 2006. denied Opinion April 2006. filed Schiedel, Deputy Defender, M. and Charles Charles Hoffman, Defender, Assistant of the of the Office State Defender, Appellate Chicago, for appellant. General, Madigan, Attorney

Lisa Springfield, Owens, Attorney, (Gary James D. State’s of Toulon Fein- erman, General, Solicitor Linda D. Woloshin Iskowich, General, Attorneys David H. Assistant counsel), Chicago, People. for the judgment CHIEF JUSTICE THOMAS delivered the court, of the with opinion. Freeman, Garman,

Justices and Karmeier concurred in the judgment opinion. Fitzgerald

Justice concurred. specially dissented, Justice with opinion. McMorrow part Justice Kilbride took no the decision. OPINION Following a in the of Stark jury trial circuit court

5 Thompson, County, of A. was convicted defendant, Curtis 1(a) (720 degree ILCS murder of first three counts 5/9 — 2002)) (West killing persons. was Defendant three for (720 ILCS invasion count of home of one also convicted 11(a)(5) (West attempted 2002)), of two counts 5/12 — (West ( a) (720 5/9—1(a), degree murder ILCS first 2002)), 8—4 discharge aggravated a firearm of

three of counts (West 1.2(a)(3) (720 2002)), one count ILCS 5/24 — (West (720 disarming police ILCS a officer 5/31 — la damage property 2002)), of criminal to and one count (West2002)). l(l)(a) (720 Defendant thereaf ILCS 5/21 — sentencing. Following right jury a ter waived hearing, penalty found the trial court death eligible penalty on three factors: for the death based police officer,he murdered had defendant had murdered persons, oc more of the murders had two two during hear of a home invasion. After curred the course mitigation, ing aggravation trial evidence in mitigating there no factors court concluded that were preclude imposition penalty. Ac of the death sufficient to cordingly, on defendant to death trial court sentenced degree trial of the murder convictions. The each first imprisonment to terms of court also sentenced defendant years attempted convictions, on of the murder of 50 each years years aggravated invasion, for for home damage discharge years criminal firearm, concurrently. property, all to run The court sentences impose aggravated of the did not sentence on two finding discharge counts, it was a firearm doing precluded one-act, so one-crime rule. directly appeal brought court to this Defendant’s Ill. art. Const. because was sentenced death. 4(b); § VI, 2d R 603. 134 Ill. sufficiency challenge

Defendant does him, he raises no issues with to convict evidence respect guilt/innocence phase Instead, of his to the trial. raises three challenging issues his sentence.

The first issue contests his death being sentence as exces- light in sive of the aggravation mitigation presented penalty phase the of his sentencing hearing. Defen- dant’s two issues remaining pertain the constitutional- ity penalty. of the death

BACKGROUND We have thoroughly reviewed the record in this case. Because the resolution the principal issue raised is dependent largely weight on the of the in ag- evidence gravation and mitigation, we set comprehen- will forth a summary sive of the evidence adduced at defendant’s trial and lengthy sentencing proceedings. guilt phase trial,

At the of defendant’s the State presented testimony showing that defendant armed himself a shotgun sawed-off and went on shooting spree, first killing police officer and then neighbors two in the presence 10-year-old daughter. their After kill- officer ing the and two neighbors, drove through engaged town and in other police officers low- chase speed opening before fire on the officers. Shirley Brown the first witness called State at defendant’s trial. She testified that on the 22, evening 2002, duty of March in she was on her employment dispatcher as a County for Stark department. Deputy sheriffs Adam Streicher was also on duty evening uniform. Streicher came to the station, checked the active file and computer warrant ran outstanding checks on Streicher warrants. left sta- shortly tion after p.m. squad began his car and run- ning plate point, license checks. At some he called Brown for asked number for resi- phone defendant’s dence. When records showed that the number was unavailable, Streicher asked for information Brown on an outstanding against warrant defendant. Brown percentage informed Streicher for the applied signed off Streicher payment required $100. warrant Brown concerned again. grew from never heard and was radio him repeated attempts her but deputy, unavailing. for status were on March p.m. Batey that around 7

James testified his house front door of outside the stepped squad in a car deputy sheriffs County a Stark to watch on the street. parked on vehicles run checks license-plate car front of squad The officer his parked Batey’s house. house house, was one over which front standing at defendant’s Batey the officer observed As turned and Batey at his side. door with hands heard loud shot that house, door his he a opened the to look like an M-80.” He then saw “sounded something with his foot. ground nudge toward eye and established Batey At that moved closer point, ran his to Batey defendant. then into house contact with outside, he saw his on. he came back put shoes When in squad parked that car that had been front the property defendant’s house was now toward speeding Batey watched the Giesenhagen. of James and Janet Giesenhagens’ vehicle. Defendant squad car slam into door emerged car, up from the ran to the of the squad hand, a rifle in and kicked the Giesenhagens’ home with scream, a Batey door in. then heard a woman followed house, heard Batey As ran to his he another gunshot. in family loaded into their van gunshot. Batey then his they to As drove past order evacuate the area.

house, deputy lying sheriffs front of they saw slain defendant’s house. 71-year- testified that she is the

Marilyn Giesenhagen Giesenhagen and that she lived old mother of James alley p.m. her son. Sometime around 7 across the from 22, call from her phone she received on March daughter who is the Ashley Giesenhagen, granddaughter “Grandma, Ashley said, quick. come and Janet. James just Curt killed Thompson my daddy and my hurt mommy.” Marilyn then to went the home. She Ja- found net floor, on kitchen her hand “blown off’ having She difficulty breathing. found her son at the bot- tom of the basement stairs a pool of blood. Medical

Emergency Technician Michael Jezierski testified that he was dispatched to the Giesenhagen home after a call receiving of a multiple-shooting incident. Upon arrival, Jezierski found that James Giesenhagen had a large amount of around his head, blood had no pulse breathing. determining was After beyond James was medical help, Jezierski turned to Ja- net and found her amputated hand was at the wrist and she had multiple puncture suffered wounds her upper left torso.

Jason Rice testified on night the murders he driving having home after had dinner with his town, parents. As Rice through drove car squad deliberately collided with his truck. Rice When exited his truck to check damage, sit- recognized defendant in the ting squad car. Rice was afraid of defendant past experience with him. Rice explained that he used defendant, next live door and defendant had a habit glaring at and trying people to intimidate in town. Sometimes defendant through would follow Rice town his vehicle. On one in August people occasion some spinning were their tires near on road Rice’s home. Defendant came over to Rice’s front and blamed porch him for the incident. Defendant then threatened Rice bury with club and told Rice that he in a [him] “would Thus, on pine night box.” of March Rice fled the scene of the car squad collision when he cross-examination, defendant it. On sitting saw inside Rice admitted he lit off had a bottle rocket near before porch house defendant came Rice’s night on the of their encounter in 2001. August Mark testified Officer James Bradford Police Deputy gunshots report hearing radio after location, went to that James last-known Streicher’s immediately neighborhood defendant and encountered put driving his vehicle vehicle. James Streicher’s him at inched toward reverse, and the Streicher vehicle appeared per continued, it this five miles hour. As about going point to ram James’ at one that defendant speed picked up of- until other reverse James vehicle. position; stopped in order to block then he ficers were roadway. point, rammed James’ At that defendant slowly approached exited vehicle car. James of the now- defendant, could be seen because who repeat- squad crumpled car. James on Streicher’s hood edly vehicle, and on the commanded defendant out of the through command, shot at James third such defendant passenger-side cover and re- window. James took minutes, several other offi- turned fire. Within the next Jimmy provide backup. Di- cers at the scene to arrived County eventually deputy sheriff, son, the chief Stark squad pulled and handcuffed defendant out of the car him. Taylor he testified that

Toulon Police Chief Robert responded Brian to the scene and and Officer Rewerts proceeding in reverse as it was observed James’ vehicle squad Taylor being pursued by car. and Rew- Streicher’s driving They separate vehicles. followed erts were James defendant as he drove toward James. When Officer stopped Taylor defendant, in front of Rewerts Taylor exited blocked the road from behind. his vehicle Taylor shooting at James. stood observed something couple seconds, him, there for felt strike Taylor under and realized that too was attack. eventu- top ally placed position himself in for a clear shot at the quick Taylor shot, head. fired one of defendant’s gunfire night. few more Within a there was no pulled Deputy seconds, arrived and Chief Dison from Streicher’s vehicle. cross-examination, Taylor

On Chief noted that he had known defendant since at least 1993 because of defendant’s prior contacts with the police department. Taylor explained that on a few occasions defendant had police tailgated officers or swerved his vehicle them. Rewerts, Brian an police officer with the department Illinois, in Wyoming, testified that he helped block the road from behind defendant. When Rewerts exited his vehicle, he realized shots fired being were defendant from Streicher’s vehicle. Rewerts attempted to move his closer defendant, vehicle to but was unable to do because his back so tires had been shot out. Rewerts watched Dison remove a wounded vehicle, along shotgun handgun sawed-off taken from defendant’s noted in addi- lap. Rewerts damage tires, tion to the to his his vehicle had two gunshot passenger-side holes in the doors. Deputy Jimmy

Chief Dison testified that he after disarmed defendant and removed him from the Stark County vehicle, police his thoughts plight turned to the Streicher. and the ran Deputy Dison other officers to defendant’s house and body lying found Streicher’s dead ground on the in front of defendant’s house outside the closed front door.

Dison further testified that December went to defendant’s home uniform wearing his and driv- ing occasion, a marked car. On that squad Dison walked said, “Curt, to defendant and have up got we a warrant I you. give you for It’s a hundred bond. will dollars to get money up post week and come bond on Initially, respond, defendant did not but as warrant.” leave, said, turned “You have Dison will come me.” get back cross-examination,

On Dison testified that war- revoking rant issued for the for purpose probation pay failure court costs in case which assaulting Tracey. defendant was Joe convicted Hospital Ellington, at St. Francis a nurse Lee patient in Illinois, defendant was a Peoria, testified that eight days murders. 30, 2002, March after the her on care day, point that he had that defendant admitted At one Ellington day, told The next the victims. shot woman, had to the all she didn’t mean to shoot that “he put tourniquet arm the bitch died do a on her but was people anyway.” that “a lot more got Defendant also said get going that he out.” Later on to it when were “sorry Ellington day, that he was same defendant told her it, to see all she had to do was close child had but the any eyes.” he under medication when Defendant was not made these statements. crime-scene-investigation evidence

The and forensic shotgun Deputy died a Streicher from revealed upper range wound, at to neck and delivered close the shotgun Giesenhagen chest. Janet died a massive range at to arms and chest wound delivered close her major damage upper her torso and that caused to entire pellet fragments penetrating chest and her resulted lungs Giesenhagen severing right hand. her James range gunshot died from a blast inflicted at intermediate face, neck and chest. concluding chief, rested, After case in the State its insanity and defendant raised an defense. Defendant presented testimony along witnesses, of a number of Day experts with two mental health John —Drs. Chapman support his defense. The State Robert —to presented psychiatric testimony Kow- of Dr. Andrew rebut alkowski to the defense. Joseph Tracey, testified

The defense first called who began working Giesenhagen that he for James Giesenhagens’ heating air-conditioning business years Tracey’s about five before the murders. duties alley required him to sometimes work an behind the past Giesenhagens’ would drive home. Defendant often hatefully Tracey, stare even though Tracey himself any never had previous history with defendant. The however, did Giesenhagens, history have a with defen- dant, they against had filed years a lawsuit him some earlier. On one of these occasions when defendant drove past, he yelled Giesenhagen “they Janet had bet- ter him stop harassing get or he would even.”

Tracey recalled an incident driving where he was on about highway Toulon, seven miles southwest of while looking for location where he was to bid aon construc- job. tion Defendant came down the road in his truck and began following Tracey. passed Defendant Tracey, blocked ahead, proceeded intersection exited his truck and Tracey’s vehicle, holding toward hammer. Defendant Tracey “going told shit beat out of Tracey drove in eventually [him].” the ditch around way. truck and continued on his He later called the sheriff’s to department report the incident. eventually brought Defendant was to trial the over mat- ter, convicted and ordered not to have contact any with Nonetheless, later, two Tracey. about months defendant driving began by Tracey’s house him while past he the alley worked in behind the house. Giesenhagen Tracey also had two other encounters with defendant. February Tracey In was in a shopping grocery began following Tracey store Toulon. Defendant aisles, through trying the to intimidate him. Defendant him, bitch, of a you stay then said to “You son better out I my get you.” or am to In March going business briefly Tracey’s defendant blocked van at an intersection Toulon. downtown cross-examination, Tracey On stated that the Giesen- routinely left metal and business- hagens scrap other of their property. related items the back When alley, stayed on through always defendant drove the he way respect the his vehicle. to public never left With Tracey awith defendant threatened the incident where Tracey acknowledged had a hard that he had hammer, happened locating jobsite drive he to the and that time past along property piece of farm defendant owned company Tracey driving van time, At the was road. Giesenhagens’ Defendant business. that identified actually try the ham- hit him or van with did not to attempted him off the run mer, and defendant never to of- for Defendant was convicted assault over road. charge, sentencing at the on the the incident fense. At grocery brought up, ordered store was and defendant was Tracey family placed stay away from and his and was to Tracey acknowledged years. probation on for two also speak him at did not threaten even that Tracey grocery the store store until asked to use the phone after police. to call the

Lonny that the Stark Dennison testified he was County years 1982 to 2002. Denni- sheriff 20 —from “dealings during time, that son noted had *** dealings defendant that went real where we well way, go If it would have words back and forth. didn’t upset.” [defendant] then further noted Dennison get people would into confrontations with defendant complain. But and then come the sheriff’s office to sign complaint. people did The most want Giesenhagens, dog however, did sue defendant over a guilty.” Defendant trial and was found “not bite. went to acknowledged cross-examination, Dennison On dog-bite He in the case was a civil suit. noted that years against grudge case, after the held a Giesenhagens. Dennison also stated that defendant never always complaining someone; him came to about it was people complaining other about defendant’s behavior. Angela Hospital Smith, at St. who a nurse Francis following shootings, cared for defendant testified big her know deal defendant told he “didn’t what the was” and that he had done “nothing wrong.” Defendant also told Smith that he had suffered for 30 years, but the only victims had suffered for 30 minutes.

Jerry Abbed testified that he has grocery owned a store in Toulon for the past years. About six months before murders, he saw defendant threatening Tracey at the store. Abbed put his hand on defendant’s shoulder and told him to “take it outside.” Defendant responded by telling Abbed not push him. incident, After the defendant’s behavior toward Abbed completely changed. later, About a month defendant up drove to Abbed and yelled profanities at him. Defendant wanted to fight, so Abbed told him get out of the truck and go to it. But defendant continued yelling and threatening until police came five minutes later. This kind of behavior continued to point every where time defendant saw Abbed he would swear at him and fight. want About two murders, weeks before the stopped defendant truck in front of the Abbed, store and said to “If you are enough, man me follow to the farm and I will kill you and nobody find you will there anyway.”

Donald St. John testified that he was a farmer Toulon and saw defendant on periodic basis connec- tion with farming-related occasion, matters. On one two men compared physical ailments, and defendant said that he suspected neighbors some of his of “stealing.” St. John explained that defendant told him that one farmer would not sell heifers, some but things were eventually patched up when the farmer sold them at a price pleased low Furthermore, defendant. anyone

never said that get was out to him. cross-examination, Under St. John admitted that all the incidents that defendant mentioned were real they incidents and that essentially amounted to a matter people taking advantage of defendant in business transactions. For example, defendant was mad a at the coming help pay had to for that he veterinarian St. John birthing process. died a calf that birth of holding capable that defendant was acknowledged also grudges. long-standing with defen- that he worked testified Hickman

Julian was a Although defendant 1985. dant from 1969 until authority. like did not worker, bitter and hard he was boss, at- defendant’s Hickman became When time, One change much.” him “did titude toward daughter a handicapped brought Hickman’s defendant On cross- as Santa Claus. he was dressed present while fired that defendant was examination, Hickman stated mining job nine different times from it each time because get he was able to back company, but union rules. years old and that he was 64 Art Whitaker testified they grade were school defendant since had known in the year for a He worked with together. a number of He track of defendant early 1960s. lost when that, relationship but reestablished years after father-in- work for Whitaker’s doing defendant started in which defendant noted one incident law. Whitaker feed. Whitaker said involving a deal cattle “shorted” on in this instance right defendant was that he knew they had shorted the sellers admitted that because defendant. that defen- cross-examination, Whitaker stated

On feed. on the cattle grudge being over shorted dant held he and defendant that one time Whitaker also recalled house of defendant’s visiting porch on the front were Defendant’s wife answered phone rang. when coming over Giesenhagen was that James told told Whitaker furnace. Defendant then to work on the had a restrain- Giesenhagen he had to leave because described defen- Whitaker against defendant. ing order person. dant as a “normal”

The defense called clinical psychologist John Day, who testified that he conducted a psychological assess- ment defendant, using two tests —the Minnesota Mul- (MMPI) tiphasic Personality Inventory and the Millón (MCMI). Clinical Multiaxial Inventory The first addresses issues, clinical the second personality issues. The MMPI results indicated that defendant had “interpersonal alienation,” which difficulty is relating to “in people Day social realm.” explained that a number of defen- dant’s scores on this test exceeded the normal range and therefore became clinically significant. Defendant scored high in “paranoia, suspiciousness,” and this was high- his est score of all those that were elevated above the normal range. Day noted that he would expect to see a score like in less than 2% of the population.

Day stated that defendant had elevated scores on the MCMI in “paranoid ideation,” depression, and “avoid- ance of social situations.” Day explained that defendant “psychotic means, is not by any just but has a different frame of reference than a typical person.”

Day also testified that defendant discussed murders with him during his evaluation. According to Day, defendant claimed that when the deputy came to warrant, serve the he entered through the door with a in gun hand and ordered defendant to put his shirt on. Defendant told Day that he knew that as part of his probation, he had been ordered to a pay month for $15 eight months, six to at which time the court would review his compliance paying the fine. He also knew that he had paid not the required monthly payments and that the court had reviewed his noncompliance. When the of- door, ficer came to his defendant had shotgun sitting a on a toolbox nearby. Defendant it picked up, and the deputy went back out the door. Defendant then went out the door with the shotgun. Defendant claimed that he shot the deputy because he believed the deputy go- first, gun had pointed him as he ing to shoot shooting deputy, After defendant’s chest. he came his shirt on. When put back inside

went He then car. outside, deputy’s gun squad he took the “already because he Giesenhagens’ home went to Defendant wanted why get them.” deputy had a so she had pain all the Giesenhagen to remember Janet case. Even dog-bite she sued him in the caused him when merits, him it cost he had on though prevailed bills, had been $20,000 legal Giesenhagens and the Defendant years.” their nose at for 15 “thumbing [him] them, only kill claimed that he did not intend to shooting After the Giesenha- “wanted to maim” them. through police town and the gens, drove gunfire He eventually caught up exchanged with him. head. Defendant concluded up and ended wounded by Day that “I am to be telling supposed rendition try get upset,” a bad ass that wanted to to me people such fly but “I unless it shit on me first.” never swatted Day suffering believed that defendant was from two type disorders: delusional disorder of a persecutory paranoid personality disorder. “Delusional disorder of a system persecutory type” is characterized false belief grounded in nonbizarre delusions because it is based life, upon things happen everyday opposed that can possible. persecutory type that are not The things delusion the theme of the delu- applies nonbizarre when person belief that is “be- personal sion involves cheated, on, followed, against, spied ing conspired harassed, or drugged, maliciously maligned, or poisoned long-term goals, meaning in the pursuit obstructed even personal goals.” Day explained their own thinking any there is no factual though basis person are the delusional things happening, those that, day of they Day believes that are. concluded on the crimes, a mental disease— defendant suffered from delusional disorder of a persecutory type prevented —that him from appreciating the criminality of his conduct.

On cross-examination, Day admitted that he never asked defendant such specific things as who was conspir- him, ing against harassing him, who was or maligning they it, how doing were or what his long-term goals were. Day explained did that he not ask defendant to elaborate on these matters because this would have ruined their rapport would have made defendant suspicious. Day emphasized further that he did specif- not ask about ics of defendant’s in making diagnosis, beliefs because his only he needed to focus on [defen- the “themes of how world, dant] sees the not the no yes or facts.” He was determining concerned with if there awas rational basis for believing that there conspiracy against was a defendant; instead he was only concerned with “the behavioral patterns that would be back into interpreted his personality style.”

Psychiatrist Chapman Robert also testified on behalf of defendant. Chapman conducted two inter- diagnostic views of defendant and administered the MMPI defendant. He determined from a review of defendant’s defendant’s history that mother was a self-centered and suspicious who had person eight abandoned defendant at years old after father had died. Defendant then lived with a relative for a number years. reported Defendant that he did not any significant history have of behavioral problems quit grade school. He school after the tenth age grown married of 17. He had three children, all college who were educated.

Chapman through found a consistent thread running his interviews: defendant claimed that he victim be,” of harassment and abuse “the powers which authority figures included such as the police anyone mind, In power over him. there was a him, conspiracy against goal driving with the ultimate away killing Chapman opined him him. that defendant life, shot Streicher because defendant in “was fear of his *** that people, fear, could be described as mortal conspiracy, years the 20 or more of harass- attempt converged ment and to do him in had into that moment and there was a situation in which in he was danger. They they they mortal here, me, were were after they’re they’ve come, have perimeter, wire, over the violated the [sic] my house, there this is it.” Further- according Chapman, more, defendant considered the Giesenhagens part “powers be of the that be” because they against though had filed a lawsuit him. It was as Giesenhagens “psychologically standing right were behind the officer.”

Chapman concluded that defendant suffered from a persecutory type.” disorder, “delusional Defendant’s chronic, condition was continued after his crimes, and lessening. diagnostic was not The criteria for this required person suffering disorder experience from it period

a nonbizarre delusion of at least one month. Defendant met this criterion because has conspiracy against believed that there has been a him for years. Chapman explained over 20 the differencebetween a bizarre and nonbizarre delusion. A bizarre delusion, something which defendant did have, is that cannot schizophrenia life, occur in real and would include thought “disorganized thought, disorders, such as hal- deteriorating lucinations, life course function.” Defendant, support contrast, was able to raise and family, general law-abiding friends, maintain some lead a participate community life and in the fabric of the Chapman much as his delusions would allow him. rejected diagnosis personality of “antisocial disorder” because he felt that defendant did not criteria, meet the required which evidence of antisocial behavior child- throughout hood, as well as criminal acts his life that Chapman selfish ends. to meet his own designed were to capacity lacked substantial concluded that defendant on the date of criminality of his conduct appreciate the offenses. cross-examination, catalogued Dr. Chapman

Under said that it was consis- history criminal and 1967, In defendant system. delusional belief tent with his a car in for service. bringing dealer after a car punched disorderly fight- conduct for 1971, convicted of In he was 1980, In high next to the school. along a road ing 1986, and in he was neighbor, fought defendant with by the brought dog-bite cases —one separate sued two Boughan. Chad In brought by and one Giesenhagens spade; defendant 1987, hit his brother with defendant tell them of the to department to the sheriffs then went Richard fight to 1998, In defendant wanted incident. oil on spread defendant had because Hartley, neighbor, Hartley thought he that his and gravel property him it. had over reported that on the defendant said Chapman,

According farm, on his returned murders, he worked of the day television. Defen- watching home, began dinner and ate the officer. “expect” he did not that Chapman dant told go- he that that he was afraid never said Defendant of the a “breach there had been shot or that ing to be why he shot defendant never asked Chapman perimeter.” were things these about Streicher. Conclusions Officer acknowledged Chapman on own. by Chapman inferred be,” that “powers to the defendant referred that when State’s and the the sheriff only police, identified he in his writ- anywhere record did not Attorney. Chapman him that the Giesen- had defendant told ten that report Chapman that be.” “powers of the part were hagens that he had him defendant had told acknowledged or more times” school “one suspended been about When asked youth. as a fights had been on. picked that he had been said fights, first Chapman admitted after his interview defendant, firm diagnosis, he had but had no written “paranoid personality” down “delusional He case explained disorder.” that after he discussed the lawyers Day Day’s with defense Dr. reviewed he findings, went back to examine defendant again look “missing information.” He further explained that he was not convinced at that point that defendant “organized had an system place” delusional so rule the diagnosis out At the delusional disorder. examination, second defendant was more cooperative. Chapman any admitted that did not specify close in incidents time to March when defendant felt followed, had been maligned or harassed. The incident only Chapman recorded involved time when a police stopped officer along the road to “harass” defendant’s children and that well years occurred over 20 Chapman before. did not ask defendant about of any the facts surrounding the murders themselves during the second why interview or he Deputy shot Streicher Giesenhagens. the

Chapman was “why asked [defendant] went over to the Giesenhagens and broke into home if their he was in mortal fear of his life?” Chapman responded that “was in mortal fear when the officer was there,” but then that added defendant did him not tell that, merely he assumed it from the clinical evidence. Chapman further stated that was unsure whether defendant actually was in fear of the Giesenha- gens. Chapman admitted that he did not ask defendant why he went over to the home Giesenhagen and initiated his aggressive action.

Chapman acknowledged that were there at least two incidents where defendant either initiated with contact the “powers be” to elicit their aid or their accepted aid it 1989, when was offered. In brought sheriff it mother to defendant’s home because aging she her own. longer determined that could no live on

was next to his day, The defendant called sheriff to come him,” his recited house to “be a witness for while mother Additionally, she to live. 1986 and where wanted between Direc- Milroy, cordial Shane defendant was with land for Toulon. Defendant had some public tor works property, accepted use on his and defendant violations move items on Milroy’s city offer to have truck some acknowledged Milroy land. also Chapman could be power someone who had over that be.” also “powers Chapman considered of the part had testi- Milroy documents showed that admitted that case. Giesenhagens dog-bite fied on behalf of however, get that defendant could Chapman opined, never along Milroy Milroy because confronted an authoritative attitude. defendant with did not Finally, testified that defendant Chapman He for disorder. personality meet the criteria antisocial for that acknowledged required the criteria disorder others, rights disregarding pervasive pattern as indicated three or occurring age by from the (1) following: failure to to social more of the conform by to lawful behaviors as indicated respect norms with arrest; grounds acts that are for repeatedly performing (2) using by repeated lying, deceitfulness as indicated profit pleasure; conning personal aliases or others (3) (4) ahead; irritability or failure to impulsivity plan repeated aggressiveness physical as indicated (5) safety of assaults; disregard for the or reckless fights (6) indicated others; irresponsibility consistent self or honor failure to sustain work behavior by repeated (7) by indicated lack of remorse as obligations; financial hurt, mis- rationalizing having to or being indifferent however, did treated, Chapman, or stolen another. of seven any met these that defendant not believe criteria. Kowalkowski, psychiatrist

The State called Andrew who was the court to examine defendant as appointed Dr. sanity his the time of murders. Kowalkowski background reviewed the information on historical defendant, police and the reports psychological report Day. Dr. Kowalkowski an then conducted interview defendant, where defendant discussed his personal social history. past Defendant also related his criminal history and contact with law enforcement. Defendant recalled an incident that occurred in when he was his early and his twenties children in the front playing were yard. The pulled sheriff his vehicle front why house asked children playing were in the yard. Defendant felt that the sheriff was “a smart being ass.” Defendant further remembered that he was once charged aggravated with battery and spent jail. week He was fined incident, also for another which he did not specify. Defendant also recalled a time when someone did not like way parked car, he had his so defendant confronted him a pick handle. Defendant described an ongoing problem had over large woodpile that he kept on his property to heat his home with. It had recently been someone, started on fire by and it was the second time it had happened. He believed that the first time it had been set on by Joseph fire Tracey, an employee of the Giesenhagens. Defendant was convicted placed assault and on probation as a result of confront- ing Tracey over the woodpile situation. Defendant told Kowalkowski that when he “pissed wrong inway their mind you came to court.” Defendant said that 10 or years earlier he had gone to court over an allegation that one of his had dogs bitten one of Giesenhagens’ children.

Defendant recounted to Kowalkowski that he had problems with other neighbors as well. James Rice and roommate lived a rented house next door. Accord-

24 defendant, they by spinning had him

ing to disturbed streetlights. out shooting donuts in the road Dr. defendant about the events Kowalkowski asked Defendant that he on March 2002. said that occurred anything happened night on the did not remember from the time he down to watch televi- question in sat he for a hospital 6 until was p.m. sion around by police. Defendant also said wound inflicted gunshot charges brought he that had been understood the him, why asked defen- against jail, and when was me, is suppose powers “You I it responded, dant tell defendant to define to he.” Kowalkowski asked When be,” “the to phrase powers he meant what nowhere responded that his “own words were defendant to in the of documents he’s been allowed pages used only This time that defendant review.” was during the interview. Defen- powers “the be” phrase that he acknowledged that he understood was dant also the time the murders were committed. probation on someone, kill if it was wrong asked he knew When did fly killed not responded, “I never defendant on me first.” shit exhibit-

Dr. believed that Kowalkowski not to recall the claiming ing “malingering amnesia” night of the murders. on the events that occurred production the intentional Malingering amnesia is psychological or exaggerated physical or grossly false Kowalkowski noted that prosecution. symptoms avoid intact, memory was and short-term long- nurse hospital had told a that defendant out pointing in the hand so she would had shot that bitch that “he ***. or She years for the next 20 a reminder have death, how to make a didn’t know have bled to must tourniquet.” of the and review of defendant

From his interview no information, Dr. Kowalkowski found background delusions, beliefs, misinterpreta- fixed false evidence of did reality. Accordingly, tion of external Kowalkowski any defendant had delusional disorder. Kow- believe that diagnosed having “paranoid alkowski personality personality disorder” and “antisocial disor- A is personality by pattern der.” disorder demonstrated a of inner and an individual beliefs behavior that cause to markedly society. deviate from the of expectations Ac- Kowalkowski, cording to Dr. these are disorders not defects; significant rather, they mental disorders or are behavior or conduct disorders. explained

Kowalkowski that paranoid personality requires disorder that a have person pervasive distrust others, of suspiciousness interpreting their motives malevolent, by as beginning early present adulthood and variety contexts, of indicated at least four out of seven listed factors. Defendant satisfied four of the First, suspects, basis, listed factors. he without sufficient exploiting, that others are harming deceiving him. Second, he is reluctant to confide others because of unwarranted fear that the information will be maliciously against Third, used him. he persistently bears grudges insults, and is of unforgiving injuries slights. Fourth, perceives he attacks on his reputation character or that are not to apparent quick others is angrily react or to counterattack. respect

With disorder, to the antisocial personality diagnose it, Kowalkowski noted seven criteria used and that these criteria start in late adolescence and continue throughout onward life. Kowalkowski believed personality this disorder manifested itself repeated grounds arrests, acts that are for his impulsiveness, irritability and aggressiveness, his repeated failure to maintain consistent work behavior Thus, and his lack of remorse. defendant satisfied five of criteria, seven only three needed to make the further that there was diagnosis. explained Kowalkowski the age this disorder before some evidence of conduct reported got that “at times he defendant had because fights get that kids would average into the number explain doctor asked defendant what into.” When the meant, not defendant would do so. that defendant was Dr. Kowalkowski concluded Defendant at the he committed the murders. insane time or defect that would did not suffer from mental disease capacity to appreci- him to lack substantial have caused criminality personality ate of his conduct. Paranoid major disorder are personality and antisocial disorder behavior, Dr. Kow- not mental disorders. disorders Day of Drs. disagreed with the assessments alkowski suf- concluded both whom Chapman, Ac- disorder, type.” persecutory fered from a “delusional Kowalkowski, requirement the threshold cording to Dr. disorder is delu- kind of delusional nonbizarre delu- any did nonbizarre Defendant not suffer sions. belief. Defendant himself sions, which entail false help he needed enforcement when sought out law —he matter of his over the the sheriff assistance called he asked for aid Shane guardianship and mother’s him even cooperatively and was able work Milroy for Toulon. he works public director though in an interview with learned Kowalkowski legal defense to the had mounted son that defendant the matter” “principle of the dog-bite case because conspiracy, persecution of a and no mention was made to relat- noted that contrast a false belief. Kowalkowski information consistently related ing delusions, defendant in the These past. had occurred real about events Instead, personality defendant had a were not delusions. beliefs and of inner enduring pattern disorder —an others and be suspicious him to that caused behavior as malevolent. their motives interpret cross-examination, On Dr. testified that Kowalkowski premised finding had a that defendant conduct he getting report fights into disorder based on defendant’s acknowledged a child. that defendant as Kowalkowski fights. he had not told him that had started Kow- initiated alkowski had assumed that defendant them he because refused discuss them further when asked finding to do so. When asked about his that defendant delusions, not did have Kowalkowski testified that if thought following people they him were when qualify paranoia, not, this were would a delusion. Giesenhagens if When asked defendant’s belief woodpile false, had set his on fire was Kowalkowski replied Giesenhagens that he did not know whether woodpile and, therefore, had set the on fire or not did thinking if not know defendant’s Finally, it about was false. likely

Kowalkowskistated that defendant refused paranoid personality to discuss the crimes because of his disorder. Chapman,

In rebuttal, defendant recalled Dr. who diagnostic testified that defendant does not meet the personality criteria for antisocial disorder because there enough is not information about defendant’s childhood history retrospective diagnosis to make a of the disorder. Chapman explained that a reconstruction of defendant’s childhood cannot done in be this case because both of his parents are now deceased and therefore cannot be interviewed, available, school records are not and only people youth evidence from who him as a knew indicates reliable, that he was went to school and was a Although hard worker. defendant told Kowalkowski got boyhood fights,” into the “usual it is not known fights. Chapman opined who initiated the that likely particulars refused to discuss the of his crimes with Dr. Kowalkowskibecause of his delusional disorder. Chapman cross-examination,

Under Dr. admitted that many times to delve into how attempted never he had initi- or whether gotten fights had into defendant defendant had admitted that also Chapman ated them. suspended having been “true” to about questions marked office principal’s sent to the having and been from school problems. for behavioral instructed jury

Following closing arguments, rejected the insan- subsequently It law. applicable on ill mentally verdict. but guilty defense ity of guilty defendant Instead, finding verdicts it returned of at- murder, two counts degree first counts of three murder, disarming one count degree first tempted invasion, one count of officer, home one count of peace ag- counts of multiple property damage criminal jury acquitted The of a firearm. discharge gravated Streicher, robbery Deputy of the armed defendant ag- and a count of Rewerts murder of Officer attempted hijacking. vehicular gravated court, defendant from the admonishments After penalty phases eligibility both the jury waived no presented The defense sentencing hearing. of the trial court took and the phase, eligibility evidence at the at trial and introduced the evidence notice of judicial trial court found The entered. that were convictions because defen- penalty for the death eligible a police had murdered old and years at least 18 dant was duties, had of his official the course during officer two had committed persons, two or more murdered a home invasion. the course of during of the murders phase penalty to the proceeded then The matter sentencing. Bantz, Larry first called the State aggravation,

In stand drive-up produce he runs a who testified 78. On Highway house on of his in the front located in to the stand up drove October and 100 potatoes truck, pounds loaded around pounds away paying onions, and then drove without anything produce. for the Bantz later learned that trying produce defendant was to sell the himself. About produce later, two weeks defendant returned to Bantz’s “wiped [Bantz] stand and admitted that he had out of potatoes couple ago.” and onions a of weeks Defendant gave explained then Bantz $50. When Bantz that the produce value of the $50, was more than defendant told going pay any him that he was not more. Bantz’s present, father, who was also told defendant that “it right.” wasn’t Defendant then told Bantz’s father “to fucking shut his mouth or he would shut it him” that he would do wanted, what he when he wanted. When going Bantz informed defendant that he was to call the police, responded any that it did not make dif- they anything past. ference, had never done to him in the Bantz then told defendant that he did not want defendant coming anymore going back to the stand unless he was pay produce. replied you,” for the Defendant “fuck family, and told Bantz that he better watch his which pregnant couple included two children and a Awife. days by confrontation, after this defendant came and in anger yelled family at Bantz that he had better watch his belongings. again and his later, Sometime *** “glaring” “looking drove home, Bantz’s like checking things he was out.”

On cross-examination, Bantz testified that he had reported his confrontation with defendant to the sheriffs department. acknowledged Bantz that he told defendant during their encounter that he $64, owed a total of point, that at another he told defendant that if he ever came back he would leave either in “an ambulance or a body bag.”

Judy dispatcher County jail, Preston, a at the Stark supervising testified ity June she was the facil- being when defendant was held there. In accordance included open- duties job Preston’s jail procedures, for contraband scanning it all inmate mail ing informed defendant remarks. Preston inappropriate later, a let- opened A time Preston short procedure. this directed to wife, with words from defendant ter “you still stated, inside, bitch” and “look Preston writing, defen- In another fat nose in here.” your have and stated as a “bitch” to Preston again dant referred fat your in here and your fucking nose “you still have inap- his conduct was informed that ass, too.” When privileges his mail result in some of and could propriate up “stick it Preston to revoked, defendant told being [her] ass.” County the Stark Winn, chief deputy

Robert included that his duties testified department, sheriffs In June Winn jail. at the visitation supervising Dur- and his wife. defendant a visit between supervised the employees visit, defendant told his wife ing the shot he “should have and jail were all “bastards” at the as dog, then asked about all.” Defendant them prior on a dog see the been allowed to defendant had no animals were informed that defendant was visit. When said, and at Winn defendant looked jail, in the allowed refused Thereafter, repeatedly defendant you.” “Fuck modifica- cell, forcing plumbing jail in his flush the toilet system. jail flushing to the to be made tions State testimony, impact After victim presenting mitigation. its case rested, began the defense and compiled reports psychological introduced the Defendant by called first witness The Day Chapman. investiga- Police an Illinois State King, Dale defense was 9,May Bantz on he interviewed King testified tor. stand. his produce at theft that occurred about the defendant he had told said that King, Bantz According “an leave in either he came back would if he ever left, Bantz Defendant body bag.” or a ambulance again did not receive heard from defendant never remaining that was owed. $50 21-year- by the defense was called The next witness he sometimes Carlton, testified that Chaderick who old helped described his chores. Carlton defendant do good helpful friend, who and a smart, defendant repairs. things, taught to make such as how him a lot of acknowledged that cross-examination, Carlton On handy enough to saw off a to know how defendant was deadly. 12-gaugeshotgun to make it more Hartley neighbor Mary testified that she was a got along She at- and that she fine with him. defendant stayed on “her side of this to the fact that she tributed messy property the road” and did not let defendant’s glared her, but other bother her. Sometimes defendant dog- they able to talk about defendant’s times training were worker, a hard activities. Defendant was damaged by fire, defendant was the when her house was bringing letting person help her, her a meal and first phone occasion, her use a cell and a watch. On another bought her a at an auction. dish Walter Bass testified that worked with and the became friends. Bass 1988 to 1990 two handy. amazingly Defendant noted that defendant was personal helped him on a number of occasions with projects paid Bass and declined to be return. believed one occasion that defendant was honest because on way looking for a to haul a defendant came to his house birthday. pony promised give some child for his he had cross-examination, that defendant had On Bass testified complained harassed, him that he had been never conspired against spied upon. that he has known defendant Michael Keller testified years. They eight met for coffee on a for about seven or regular repairs helped basis, him on and defendant property. cross-examination, Keller admit- Keller’s Under ted that defendant held lengthy grudges and that a person shells, times,” had to “walk on egg around defendant. Defendant once angry became at Keller because Keller referred to a piece machinery owned by defendant as “old.” Keller was aware that defendant had killed two persons grudge, over a but he still considered defendant to be friend. Boehle,

Eugene contractor, a building testified that he hired defendant to pour concrete and do jobs. odd good, Defendant was a dependable worker. Boehle felt trustworthy defendant was and noted that on one occasion, snowstorm, in a returned a tractor he had borrowed because he thought might Boehle need it. Boehle also noted that a week before the murders he had breakfast with defendant.

Gregory Knowles testified that he considered defen- friend, dant a but not a close friend. Defendant helped Knowles with a number of and did projects not ask for On payment. cross-examination, Knowles noted that easily defendant was if angered anyone tried argue with him.

Barbara Kraklow and Janine Streitmatter testified helped them with projects. Streitmatter said that good defendant was to her and him described guy you as the “nicest would ever want to meet.” Thompson, son, David also called to testify. David stated years was 40 old at the time of trial and that he had an older brother and sister. He graduated Bradley University and was cur- rently employed by the Illinois Department Transpor- tation as an engineer. paid Defendant for the college education of each of defendant’s children. David described his upbringing as normal and said that defendant awas father, him good taught who to work hard. also David stated that defendant spoiled daughter Corey David’s gifts. occasion, with nice one Corey On asked defendant a truck and her one on brought he and pony, for a backyard. delivered it to defendant ago bought he years that 13 testified

David to be a always wanted 13-acre farm because fired After defendant and he loved animals. farmer mid-1980s, in the mining company job from his with meet, and he became him to make ends harder for it was fairly he did for others was the work frustrated when compensated. defen- cross-examination, testified that David

Under basis, but he never on a routine weapon dant carried a house, somebody where lying left a around weapon accidentally. Defendant it and hurt someone grab could in guns and 10 or 12 loaded in his truck kept guns three his house. called defendant.

Amy the final witness Lewis was a farm that is one- family testified that her owns Lewis half mile She described property. They friend. each other with good helped defendant as a respective properties. to their making improvements Defendant also worked for her husband her husband’s business, a fine building-contractor as defendant was family and her went carpenter. Lewis also noted that she defendant, camping fishing trips on a number of and with time him. Lewis stated they always good had has and written to defendant regularly that she visited defendant’s friend- jail while has been values cross-examination, there ship. On Lewis testified that defendant’s actions anything was never bizarre about manner. always and he socialized a normal hearing closing arguments, After the trial court returned, its decision. When it recessed to consider in aggravation court the evidence presented recounted then there were no mitigation concluded of the imposition mitigating preclude factors sufficient Accordingly, death the court sentenced penalty.

to death.

ANALYSIS outset, At the we note that the parties advocate dif- fering standards assessing review for a claim that a death sentence is an excessive in punishment light of the aggravation mitigation presented at the sentencing proceeding. urges The State that we the death review penalty determination for an discretion, abuse of defendant contends that we conduct a careful review of just record that is short of a de novo review. Conse- quently, we will briefly discuss the appropriate standard of review to be employed jurisprudence. this area of our

A perusal of our case law shows that apply we neither pure a abuse of pure discretion nor a de novo standard in deciding the propriety of a death sentence. Some older decisions of this court appear to have capital, reviewed excessive-sentencing challenges for an abuse of discre See, Ward, tion. e.g., 272, v. 154 2d People (1992); Ill. 338 (1987).1 Foster, 69, v. 119 2d People Ill. 103-04 More however, recently, we have noted although the abuse of discretion standard pertains sentencing determina tions in general, we are less deferential to the trial court in cases a involving Williams, sentence of death v. (People (2000)). 548, 2d Yet, 192 Ill. 576 despite the diminished deference imposed, when sentence of death is a capital sentencer’s decision will not be overturned lightly where by it is amply supported Mertz, record. See v. People 1, 218 2d (2005), Ill. 54 v. citing People Taylor, 166 Ill. 2d penalty 1Review of a death sentence for an abuse of discretion constitutionally required. Supreme is all that is The United States requires “meaningful appel- Court has noted that the Constitution review,” “weighing” late and that this standard is satisfied state, Illinois, by appellate considering such as an court’s “whether the evidence is such that the sentencer could at the have arrived imposed.” Mississippi, death sentence that was Clemons v. 494 738, 748-49, 725, 738, 1441, U.S. 108 L. Ed. 2d 110 S. Ct. (1990). (1995); People 2d Burton, Ill. v. see also 414, 432 (1998). 35-36 qualitative death difference between

Given reject penalties, imprisonment that a the notion we pure should obtain of review discretion standard abuse of appropriate capital Instead, that it is we believe cases. jury mat give on trial court or deference to the some (see credibility involving determinations factual and ters (2002)), People while at 2d 188-89 Ballard, 206 Ill. v. scrutiny subjecting to intense the record the same time deserving only the ultimate those ensure that to penalty guided doing so, are In we are so sentenced. principles following and standards. well-settled stage death of a made at the second The decision always process hearing penalty been, is, and has requires balancing. evidentiary It Mertz, 218 Ill. 2d at 54. aggravation fact to measure the evidence the trier of mitigation. against Mertz, Ill. 2d 218 See Taylor, the evidence 2d at 188; 166 Ill. 54; Ballard, 206 Ill. 2d at at eligible, the trier defendant is found death 432. After a myriad of factors to is then free to consider a fact punishment. appropriate determine whether death is the 154, 163, 129 L. Carolina, U.S. v. South 512 Simmons (1994); 2187, 133, 142, 2d 114 S. Ct. 2193 Ed. California 1185, 1171, 2d Ramos, 992, 1008, 77 L. Ed. v. 463 U.S. (1983). character, 3446, A defendant’s S. Ct. 3457 103 age, history, capacity, background, prior mental criminal dangerousness just of the factors future are few may fixing appropriate trier fact consider that a punishment. citing 56, Simmons, Mertz, 2d at 218 Ill. 142, 114 at 2193- 163, 2d at S. Ct. 129 L. Ed. 512 U.S. weighing process fact, for the trier of it is a 94. Because superior opportunity to assess firsthand has the which believability credibility on the of the witnesses lightly of fact’s deci the trier stand, we will not overturn keeping 188-89. Ballard, 206 Ill. 2d at While sion. See 36 mind,

this in we will conduct our thorough own and care review, ful considering the circumstances of the crimes and the character of the defendant to determine whether the death penalty is appropriate. People v. Chapman, 194 (2000). 186, Ill. 2d 253-54

As recently we stated in both Ballard, Mertz “ ‘In determining whether a sentence proper, of death is we must consider “the character and record of the individual offender and the circumstances of the particular People offense.” v. Pitsonbarger, 353, 142 (1990), Ill. 2d citing Carolina, Woodson v. 280, 304, North 428 U.S. 49 L. 944, 961, (1976). Ed. 2d 2978, 96 S. Ct. capital “[E]ach unique case is and must be facts, evaluated on its own 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 by imposing served penalty.” People Johnson, death v. (1989). 128 Ill. 2d “A death appropri sentence is ate if the sentence is commensurate with the seriousness gives the offenses adequate consideration to relevant mitigating Pitsonbarger, circumstances.” 142 Ill. 2d at ” Mertz, 388.’ Ballard, 218 Ill. 2d at quoting 206 Ill. 2d at 179. requested

When so, to do this court reviews evidence in a capital sentencing hearing to determine whether death is the appropriate penalty, even in the Mertz, absence of trial error. 218 Ill. 2d at 54. This is consistent with the legislative directive that this court may overturn a death irrespective any sentence — procedural grounds or trial error —if this court finds that the death sentence is “fundamentally unjust as applied l(i) (West 2004). particular to the case.” 720 ILCS 5/9 — I. Excessive-Sentence Argument With these principles mind, in we turn now to defendant’s contention that his death sentence is exces- sive. Defendant claims that the death penalty inap- is propriate because he acted under an extreme mental disturbance at the time of the murders and he had no significant prior criminal history. 1(c) provides penalty statute the death of

Section 9 — any aggravating and fact shall consider that the trier of imposition mitigating of to the are relevant factors which 1(c) (West 2004). Ag penalty. ILCS death the 5/9 — may gravating need not limited include, be factors but (b), which include that to, forth in subsection those set engaged peace in his of defendant murdered officer the more murdered two or duties, the defendant ficial persons dur defendant murdered someone and that the 1(b), ing ILCS the of a home invasion. 720 course 5/9 — (c) (West 2004). statutory among mitigating Listed the may along consider, with others factors that the court (1) significant listed, the has no are that (2) history prior activity and the murder was of criminal under the influence committed the defendant was while although disturbance, extreme mental or emotional prosecution. not such as constitute a defense to (c)(2) (West 2004). 1(c)(1), If ILCS the trier of fact 5/9 — beyond determines that one or more reasonable doubt (b) in exists of the factors set forth subsection at the first stage sentencing proceeding, the trier of the fact shall mitigating any aggravating then as consider factors (c) stage, indicated second subsection known 1(f), penalty phase proceeding. of the 720 ILCS 5/9 — (h) (West2004). If the trier of fact determines that there preclude mitigating are no factors sufficient imposition sentence, of the death the court shall sentence 1(h) (West2004). to death. 720 ILCS 5/9 — mitigating

The mere existence evidence does not preclude imposition penalty. Burton, of the death 184 Ill. presumed It 2d at 34. any mitigating circuit court is considered it,

evidencebefore absent some indication contrary Burton, to the other than sentence itself. may consider, 2d Furthermore, 184 Ill. at 34. a sentencer aggravation, prior miscon evidence a defendant’s though may duct, not have even the conduct resulted Davis, v. prosecution or conviction. People Ill. 2d (2002). 349, 367 If is aggravation believed, the the trier of may fact find that a mitigation defendant’s evidence was insufficient overcome aggravating to the factors. Davis, 205 Ill. 2d at 368-69.

The trial the present court in case all considered of the plausibility, evidence and its the the testimony of wit- and credibility, nesses their and applies the law that to the decision of or penalty whether not the death should be imposed. Additionally, the court considered the nature committed, and the history, circumstances of offenses the defendant, and character condition of as well as whether or not defendant could be restored to useful citizenship.

Specifically, the trial court in aggravation cited the serious crimes that were committed defendant while shotgun, weapon armed with sawed-off has no the legitimate purpose. Additionally, court noted that others, had past against committed crimes charged uncharged, both and and that he was criminal on probation and in violation of it the time the offenses were March committed on 2002. The court further noted that defendant had sought to demonstrate that he fear, of a and paranoid acted out delusional or other some or psychological found, mental ailment. The court however, that defendant’s acts product were insanity any or kind of mental psychological malady. Instead, the court found that defendant had acted out of for served in community hatred those who law and enforcement officers out of hatred and bitterness for Moreover, neighbors path. who crossed his defendant had insult, hurt, others continued threaten intimidate incarcerated, to pose even while therefore continued society. threat The trial the evidence acknowledged court offered talents, deeds, mitigation showing good defendant’s childhood, his and his capacity friendships, normal family. however, found, The court concern for overwhelming outweighed by mitigation aggravation specifically, “evidence evidence — revenge, intent, hatred violent criminal authority, people of citizens and intimidation threats [defen- community apparent [the] belief right shotgun dant] hand has a sawed off disagree him sue him or determine that those who Finally, duty the it arrest him shall die.” or is to whose any matter remorse, no how evidence of court looked any. Instead, the to court remote, but was unable find comments, and attitude defendant’s character found that suggested given opportunity, that, if the defendant would again unjustified purpose he deter- kill for “whatever mined.” finding review, careful we conclude that

After act an extreme mental that defendant did not under amply sup- time of murders is disturbance ported by the Dr. testified that record. Kowalkowski any did from delusional disorder. not suffer two disor- Rather, defendant suffered from behavioral paranoid personality antisocial disorder and ders — significant personality disorder. These not mental were key explained that some disorders. Kowalkowski ingredients personality paranoid included of a disorder (1) exploiting deceiving suspecting harming, others of (2) so, a sufficient basis do reluctance without fear that the confide others because unwarranted (3) maliciously persistently used, will information be having bearing grudges insults, an intolerance for and (4) injuries slights, perceiving on one’s attacks being apparent quick that are not to others and character angrily These indicia were to react or counterattack. well by supported trial that came the testimonial evidence at neighbors acquaintances, which long-standing grudges, did held indicated with, argued not like to be and became if upset things did not go way. Dr. Day, defendant’s own expert, also believed that defendant had a paranoid personality disorder. Dr. Kowalkowski did any not find evidence delusions, noting that defendant’s reactions were all on based real events and his by reactions were explained his personality disorders.

In Kowalkowski, contrast Dr. the two defense experts Chapman and Day believe — Drs. — did defendant had a delusional disorder. Specifically, Chap- man testified that defendant shot Deputy Streicher because defendant was in “mortal fear” for his own life on a “20-year conspiracy,” based and that it was as though Giesenhagens “psychologically were standing right behind However, the officer.” Chapman testified on cross-examination that he merely assumed these things. Moreover, he actually sure that defendant was fear of the Giesenhagens never asked defendant why he initiated the aggressive action toward them.

We believe that the suggestion that defendant acted out delusional “mortal fear” is belied in the to overwhelming contrary. evidence record the Defendant police never stated that he was afraid the Giesenhagens. Instead, or the explained defendant that Giesenhagens he murdered the he had already because a deputy why killed “so In get words, them.” other sentence, defendant already looking at a life at a minimum, killing officer, for a he police so felt free to kill two of his neighbors against whom he held a grudge. Defendant explained himself that he killed the Giesenha- gens punish having because he wanted to them filed a him against they thumbing lawsuit and “had been their this, course, at years.” [him] nose for 15 None of Rather, indicates “mortal fear” even defendant’s mind. revenge it by shows that defendant was motivated hate for him. neighbors had crossed Defendant’s likely police from incident an for the stemmed disdain police many years a officer before when that occurred playing stopped in the front his children to ask about “being thought yard a officer was and defendant the significant nothing particularly about find smart ass.” We phrase powers to to be” the “the defendant’s use of police. the describe the evidence showed further note

We door had come to his that Streicher defendant knew paid had not the small amount because defendant assessed on his assault conviction. court costs that were pulled weapon on him that Streicher Defendant’s claim appears self-serving by attempt to to be a defendant culpability product rather of delusion. lessen his than by eyewit- any event, In claim was the contradicted Batey, testimony James who testified that ness deputy door with his hands stood outside defendant’s just shooting. his side before actions contradict Defendant’s own and words also any police notion that he was afraid of officersor author- ity. Instead, indicate defendant’s actions and comments police authority. had a vari- that he disdain for On actually sought police occasions, out to ous swerving tailgating them, in his harass at them Deputy When Chief Dison came vehicle. cordially two before the murders and

house months explained post bond the out- that defendant could on simply coming standing against him warrant replied, “You week, next station within the get Thereafter, me.” defen- will have come back pay bond, did not but instead armed $100 dant kept shotgun, which within himself with a sawed-off killing easy living reach room. After Giesenha- slowly seeking gens, through town, out defendant drove police harm. officers to other Larry Bantz at the time Defendant’s comments their confrontation at the stand produce also show that had defendant no fear of the police department. When Bantz informed he defendant that was to call going the police, responded defendant that it would make any not “they difference because had done anything never to him past.” the The evidence further showed accepted that defendant sought out aid of police the and those in authority when it suited him. Defendant the County called Stark sheriff for assistance with his mother’s guardianship. Moreover, defendant asked for aid accepted Milroy, working cooperatively him, Shane even though Milroy public was a official and had been wit- Giesenhagens ness for the dog-bite their Finally, case. Dennison, Lonny County the Stark sheriff 20 years, testified that he had “dealings with defendant that went well,” things real but if did go way, then be upset. would Dr. Kowalkowski pointed these incidents of cooperation with law enforcement as an did indication not have nonbizarre delu- claimed, sions experts defense but was instead events, reality, always relating tied into real albeit interpreting through them paranoid and antisocial circumstances, personality disorders. Under we see finding no reason to disturb the trial court’s did significant not act under mental or psychological impairment at the time the offenses at issue.

alsoWe note that even if defendant did have a disorder, find significant psychological we would still sentencing properly court this case concluded that mitigation preclude evidence not sufficient against of the death when imposition penalty weighed has held aggravating repeatedly evidence. This court psychological that evidence of a defendant’s mental or inherently impairments may mitigating, may not be

43 ag enough mitigating the evidence to overcome be not (death penalty af gravation. 190 Ballard, Ill. 2d at 206 despite suffered the defendant that evidence firmed of bipolar extremes that is characterized disorder hallucinations”); “delusions mood and sometimes (1998) (prosecutor could People 1, 2d 66 Macri, 185 Ill. v. aggravation argue defendant’s properly personality his violent showed disorder antisocial nature); People (the (1997) Madej, 116, 2d 139 177 Ill. v. proceeding postconviction sought at a to show psycho negatively affected abuse that his substance ultimately neurological unsuc logical health, but was mitigation petition evidence because on his cessful necessarily preclude does not mental health defendant’s sentence); People 372, Tenner, Ill. 2d 382 v. 175 a death (defense (1997) where he not ineffective counsel was because such health evaluation obtain a mental failed to Taylor, inherently mitigating); see also is not evidence (death despite penalty appropriate 2d 432 166 Ill. sehizo-typal personality mental defendant’s condition— hearing in the defendant resulted disorder —which (1987) voices);People 2d 129 Christiansen, 116 Ill. v. (death mitigating despite penalty appropriate evidence drug alcoholism, ad disturbance, mental emotional and remorse); deprived poor childhood, and health, diction, (1986) (death People Montgomery, 2d 112 Ill. v. despite appropriate penalty mental or an extreme disturbance). considering judge jury A or emotional sentencing might view the nature at of this evidence depend aggravating, mitigating or as either information ing, hearing individual course, on whether compassion demonstrates finds that it evokes evidence dangerousness. possible Ballard, Ill. 2d at future if a Furthermore, even Macri, 185 Ill. 2d at 66. 190; impairments neurological psychological and defendant’s mitigating factors, does such evidence are considered not preclude imposition a death sentence when that Ballard, outweighed by evidence is aggravating evidence. 190; 206 Ill. 2d at Madej, 2d at Taylor, 139-40; 177 Ill. 166 Ill. 2d at 432-33.

Here, the trial court found specifically that defendant remained a threat if society, given op portunity, he would continue to be violent. We believe this supported by conclusion was shock remorse, ing lack of his threats to others in the com munity regretted and his being statements that he able to shoot jailhouse employees and that “more people were it going get got when he With respect out.” remorse, 10-year-old Ashley lack of defendant chided not Giesenhagen closing for her when eyes defendant gunned parents down her in the child’s presence. Even though Ashley’s had shot a mother with sawed-off at close shotgun range, causing massive injuries, defendant scolded for knowing the victim how to fashion a “but tourniquet, adding the bitch died anyway.” Defendant was also rude and to insulting jailhouse staff, and indicated that he would have to liked kill them too. Given that a defendant arrested a every flawlessly capital crime has incentive to behave while good might incarcerated because behavior cause (Mertz, authority sentencing spare his life 218 Ill. 2d Ballard, 90; at 189), truly 206 Ill. 2d at is it remarkable that defendant continued to be and belligerent. abusive It trial justifiably indicates that the court concluded that others, a serious danger remained even in prison only that him was setting, executing eliminating means of the threat staff or other prison Mertz, Simmons, 90, inmates. 218 2d citing See Ill. at n.5, n.5, 512 129 143 U.S. 165 L. Ed. 2d at 114 S. Ct. at 2194 n.5. history

Defendant contends that his criminal prior was minor and should be considered a factor. mitigating

45 mitigating appropriate factor to agree this is an We presumed the trial court However, it is consider. any mitigating it, absent some before evidence considered contrary itself. the sentence than other indication to sentencing Furthermore, 2d at 34. Burton, 184 Ill. aggravation, may capital authority consider, in case in a though prior misconduct, even of a defendant’s evidence prosecution may resulted not have the conduct quoting People v. 367, Ill. 2d at Davis, 205 conviction. (1997). aggravation is If the 2d 255 Smith, Ill. may find that a defendant’s believed, fact the trier of ag mitigation to overcome evidence was insufficient quoting gravating 368-69, Davis, 205 Ill. 2d at factors. (1992). People Here, Flores, Ill. 2d v. prior misconduct, both trial court considered along charged uncharged, it, and concluded that outweighed aggravating evidence, all of the other mitigating proper Davis, 205 This under evidence. Ill. 2d at 365-71.

Specifically, the court had before it evidence 22, 2002, March defen- from the violent crimes of aside club, threatened threatened Jason Rice with dant verbally Tracey Joseph hammer, assaulted with a later Tracey grocery store, intersections around in the blocked Jerry tailgated police, Toulon, threatened to kill Abbed body place find “no one would and leave his where produce stand and him,” and stole from Bantz’s farm family. heard Bantz’s The court also then threatened physically testimony defendant had a number that through 1998, in which he from 1967 violent outbursts sibling. neighbors, and a a car dealer attacked various argues positive life ac- further that Defendant good complishments work, deeds, hard concern —some through family, helping school and his children for his friendships considered as some be normal —should mitigation tip in his favor. The in the scale evidence court, trial however, carefully considered all of this evidence and concluded that it was outweighed by the aggravating above, circumstances mentioned which included the nature of the crimes committed on March 22, 2002, taken together with defendant’s long-standing history of threats and intimidation against citizens of the community and his unrepentant belief that he has a right to shoot people with sawed-off shotgun disagree who with him or sue him. circumstances, Under the we find the trial court’s conclusion the mitigating evidence was insufficient to preclude imposition of the death in penalty light of the aggravating evidence was amply supported by the record.

Defendant Carlson, cites v. People 79 Ill. 2d 564 (1980), v. People Buggs, (1986), Ill. 2d 284 v. People Johnson, 128 (1989), Ill. 2d 253 and People v. Leger, (1992), Ill. 2d 355 cases in penalty which the death was excessive, vacated as and argues that there is no basis on which those may distinguished cases be present from the one. Defendant quotes Thomas, v. People 178 Ill. 2d (1997), 249-50 from the distilling line foregoing cases the factors this court considers significant most in considering whether a death sentence is excessive: “the surrounding circumstances the murder generally involved acting the defendant under an extreme mental emotional addition, disturbance. In [Citations.] defendants generally those cases led blameless lives with little contact with the justice system.” criminal argues

The State cases cited distinguishable. First, are in all four cases the murders sudden, were accompanied by explosive Here, outbursts. violent, conduct was an amplification of a mean and confrontational attitude for which defendant Second, community. well-known Buggs Carlson rested on the crucial fact that there were two statutory mitigating play factors for defendants: they

47 disturbances mental or emotional extreme acted under Here, history. criminal significant prior no they and had disorder, a mental not a behavioral had Third, Buggs led a blameless life. disorder, and had not at the center Carlson, found themselves and defendants likely to which were not tragic” events “unique was experienc- in the future: each defendant be repeated In con- problems. marital ing unique complicated “tragic” trast, here not confronted with routine, rather, events; defendant was confronted a war- in that he was served with even mundane events and he by paying $100 rant that he could have satisfied years case 15 earlier. dog-bite had been a defendant a Fourth, distinguishable present case is from each points of a number of salient any case on one —like service, remorse, blame- relatively a military show life, marital difficulties. less or severe of this case with the urges comparison

Defendant Carlson, but we note Buggs, Leger, facts of Johnson comparative proportionality penalty review death Constitution,2 required by cases is not the United States sentencing process and it is not a feature of the capital 29, 36, Harris, 37, 44, Pulley 2In v. 465 U.S. 79 L. Ed. 2d 104 871, (1984), Supreme S. 875-76 the United States Court Ct. eighth do determined that and fourteenth amendments proportionality by supreme mandate review a state court freakishly” prevent penalty being “wantonly and the death statutory imposed. enough The it if the scheme Court found that is by jury jury requiring the to find at least one of a limits discretion beyond aggravating list of circumstances a reasonable doubt before appellate imposing penalty, thoughtful and effective review conducted, focusing present in the is on the circumstances 42, 53, particular Pulley, 79 L. Ed. 2d at 104 S. case. 465 U.S. at noted, Moreover, appellate previously 881. review Ct. at reviewing requirement is satisfied court’s consideration the sentencer could have ar- “whether the evidence is such Clemons, imposed.” 494 U.S. rived at the death sentenced that was 748-49, 738, 1448. 108 L. Ed. 2d at 110 S. Ct. at 48

under the Illinois Constitution Williams, 192 Ill. 2d at Cole, v. 576; People v. (1996); Ill. 2d People Palmer, (1994)). 162 Ill. 2d Nonetheless, on a number of occasions this court has indicated that principles enunciated may these cases be helpful determining whether the death penalty is appropriate, while emphasizing each case must ultimately be Heard, evaluated on e.g., People v. See, its own facts. 187 Palmer, (1999); Ill. 2d 85-86 2d 491; Ill. Johnson, 128 Ill. 2d at 280. Under the circumstances here, presented we do not believe that the Carlson line of cases requires the trier of fact’s decision be over turned and defendant’s death sentence be vacated.

In Carlson, the defendant had led a crime-free life up to the date that ex-wife, he shot and killed his which was three months after they divorced. had They planned to remarry, but the ex-wife told the defendant that she had a new boyfriend. police When tried to arrest the defen dant at a bar several hours after the shooting, defendant shot and killed an officer. The defendant later claimed that he had been attempting suicide when the officer was shot. The defendant had been suffering from severe mental and emotional problems before the shoot He had ings. also had two heart undergo attacks was ing a grieving process slow related to the loss of affection of his ex-wife. Shortly ex-wife, after he shot his sought to make for provisions his son. This court found that these circumstances “do not bespeak malignant man with a heart permanently who must be Carlson, eliminated from society.” 79 Ill. 2d at 590. In Buggs, the defendant and argu- his wife had been ing infidelity, about her when the told the wife that he was not the father of their two sons. At that point, the defendant poured gasoline on his wife and lit the house on fire. The defendant’s wife and son were killed in the blaze. The court noted that the defendant history (though prior evidence criminal there was had no previously presented had stabbed the defendant legs dur had fired a shot between his son’s someone and wife), country ing argument his he had served an honorably military years, and it was the in the tragic disharmony triggered that had se marital quence This the defendant’s of events. court vacated authority Buggs, death under the of Carlson. sentence 112 Ill. 2d at 293-95. unjustly Johnson,

In fired the defendant was job place employment and returned to for a his former paycheck only paycheck final that there no be told for him. The defendant shot and killed one former day coworker and wounded two others. On the of the of fenses, alcohol, cocaine, and the defendant had used marijuana laced with PGP This court found that the purposes penalty deterrent of the death would not be by putting served the defendant to death because he had relatively murder, led a blameless life before the he was untruthful, not known to be crime violent the was an likely repeated, only aberration not to be he had one successfully misdemeanor conviction for which he completed supervision, expressed he had remorse the “good families, victims and their and had acted under a may equal stress, deal of which in his mind have been by Buggs that suffered the defendants in and Carlson.” Johnson, 128 Ill. 2d at 278-81. Leger, estranged

In the defendant shot and killed his days five wife before their divorce became final. Later night, that same the defendant shot his former wife and her new husband. The defendant had suffered from a painful injury. offenses, chronic On the date of the taking medications, the defendant was 10 different had a drinking problem history and had a of blackouts. More- expressed over, crimes, the defendant had remorse for his prior marriage his convictions were related to his in problems, got along people community well with them, did display any violence toward and had in honorably years. served the armed forces for Based 3V2 on all the circumstances the fact violent acts were the defendant’s distur triggered emotional bance over his marital the court problems, reduced Leger, 2d sentence to natural life. 149 Ill. at 412-14. easily The can be foregoing distinguished cases the present one. The criminal conduct of the defendants triggered by in those cases was events related provocative employment to stressful marital or situations led to sudden, case, In defen- explosive present outbursts. dant a he was erupted only over routine event because authority filled hate and and because he with disdain held him grudge against neighbors his who had sued Moreover, years although present some 15 earlier. extreme in terms uniquely murders were conduct, had past history of violent in threatening community, behavior toward others unlike the defendants the above-mentioned cases. The distinguishable instant crimes are also from the ones severity. Defendant killed mentioned above terms three wholly unrelated to him and persons, who were him in provoked any way who had not near the date of He attempted the offenses. was also convicted of the Giesenhagens’ only murder of two more The persons. the defendant to be limited to a dealings appear years earlier. Ad- dog-bite incident that occurred some ditionally, kept the fact that defendant sawed-off telling shotgun easy living within reach room after police they get [him]” would have to “come back and forethought. indicates some level of distinguishing perhaps greatest significance But of Carlson shocking fine of cases is the lack of remorse previously defendant. As potential and rehabilitative had not mentioned, only sorry that he peace There no indication killed more officers. is also that he has ever relented from his belief that right has a people range at a sawed-off shoot close shotgun they [him] if “shit on first.” In contrast to Carl- progeny, and its where the murders were the result son tragic, likely one-time events that were not to be repeated because of the remorse of the offenders general long history character, their defendant had a against community. threats and violence others in the specifically given op- The trial court found if an portunity, right defendant “would continue where he left Additionally, off.” defendant cannot be ruled out as a society future threat to even while incarcerated. Defen- dangerousness clearly dant’s lack of remorse and future apart sets him from the offenders in Carlson subsequent cases that have followedits lead. present

Instead, findwe that the facts of the case are (1999), closer to those 187 Ill. 2d 36 Heard, People v. (1996), Ill. 2d 85 where death Cole, People v. excessive-sentencing sentences were affirmed over chal lenges. persons In the defendant shot three Heard, ex-girlfriend, boyfriend death —his her and another person at the scene. The murders result were the of an ex-girlfriend obsession the defendant had with his pattern stalking. resulted in a of harassment and The operating defendant maintained that he had been under an emotional disturbance the time murders, of the presented mitigation and he extensive evidence in show ing hardworking, caring that he was and nonviolent person, helped during had who financial others significant emotional crises. The defendant also had no history. distinguished criminal the Carlson line of Heard by noting cases that the murders the case before it history escalating were the “culmination of an of violence against spontaneous victims, not a reac infidelity spouse.” tion to such information as the 52

Heard, 187 Ill. 2d at 88. Heard found unpersuasive the murdering claim because of an defendant’s that someone Heard, mitigating. obsession should be considered 187 2d 88-89. Ill. Cole, killed the and

In the defendant mother brother ex-girlfriend shotgun. shootings his a The were with by the ex- triggered obsession after moved out of their shared residence girlfriend she obtained an the defen protection against order court that the defendant’s conduct dant. This concluded sudden, explosive to stalking more akin to than the Johnson, Carlson, Leger. Buggs, outbursts found in Cole, Ill. 2d 172 at Ill.

Similarly, we find that defendant’s conduct was the against of an violence escalating pattern culmination Toulon, the result community citizens in the and not to information such the spontaneous of a reaction that infidelity spouse. of a The trial court’s assessment malady did not suffer from psychological defendant by record, as was the supported was also well threat posed continuing determination that defendant if had society. even defendant established Additionally, that under an mitigating circumstance he acted disturbance, it as suf- mental we would not view extreme in this aggravating circumstances ficient overcome the cases Accordingly, reject the contention case. we that his death sentence be require cited of the After review of circumstances vacated. careful defendant, in this the character of we crimes case and appropriate penalty the death is conclude its was not imposition in this case and that penalty fundamentally unjust. Constitutional Issues

II. Jersey, 466, 147 v. New U.S. L. Citing Apprendi 530 Arizona, v. Ring (2000), 435, Ed. 2d S. Ct. (2002), 2d 122 S. Ct. 2428 153 L. Ed. 536 U.S. penalty argues next the Illinois death the State is not statute is unconstitutional because beyond required prove a reasonable doubt that there mitigating preclude the death are no factors sufficient to recently rejected argument sentence. We same Ballard, Mertz and we decline to revisit the issue in any great detail. stage “[t]he Ballard,

In court this noted that second proceedings clearly capital sentencing of Illinois bears balancing to of in marked resemblance the factors which traditionally engage determining trial courts in what impose practice statutory range, sentence to within a a Apprendi explicitly approved. Apprendi, of which 530 481, 449-50, U.S. at 147 L. Ed. 2d at at 120 S. Ct. 2358.” Ballard, Mertz, 206 Ill. 2d at 204. In we stated:

“If weighing the of in the of stage capital factors second sentencing finding, were to be a factual considered one logically would to have conclude that standard sentencing procedures by daily undertaken hundreds of courts across partake fact-finding this also state of which would fall purview reject within Apprendi. the of We that notion. See Davis, also Ill. 2d (Apprendi apply 205 at does 375 not to the mitigating of and nonstatutory aggravat consideration ing stage capital factors at the second sentencing, of because of consideration those factors ‘cannot increase the penalty beyond statutory for the crime’ the maximum of death established at the of eligibility conclusion the Mertz, phase).” 218 Ill. 2d 93-94. at Ring, infirmity In the constitutional noted the Supreme penalty Court was that the death Arizona right jury statute removed the to have make the required determination of facts to establish the defen- eligibility specifically, dant’s for death the sentence— finding aggravating Ring, 597, of factors. 536 U.S. at 153 569, Ed. 2d contrast, L. at 122 S. Ct. at 2437. In Illinois’ penalty procedure right death honors to jury stages sentencing proceeding. have a at all of the respect But here, issue defendant raises we Ring only Appren of note discussed the extension that di’s reasonable doubt standard finding ag to the an necessary imposition of the death gravating factor for Ring, 536 U.S. 153 L. Ed. 2d at penalty. noted Ring specifically S. at 2437. the defendant Ct. making respect mitigating there not a claim with Apprendi had drawn a distinc circumstances in aggravation mitigation. tion facts facts between Ballard, Ap 2d at 204. This that an suggests See 206 Ill. if in a prendi challenge would be unsuccessful raised Ballard, case. mitigating-factor present context like the in the 2d at 204-05. We further note that wake Ill. Ring, the Arizona statutory been amended to scheme has procedure death essentially penalty for same provide (L § See Ariz. Rev. Stat. 13—703 employed by Illinois. exis 2005). previous holdings, we Nexis Consistent with our Ring Apprendi the rules announced conclude a death phase penalty are second applicable already has the trier of fact proceeding Illinois because necessary aggravat a reasonable doubt beyond found ing imposition penalty death factor beyond the statu penalty therefore cannot increase the tory death. maximum of “Illinois’ death argument final is that

Defendant’s race, geography, based on arbitrarily applied, is penalty evolution, and mistakes of fact.” discretion procedural Mertz, in Mertz. See argument the identical rejected We it Thus, not further 2d at 95-98. we need consider Ill. argue does not other than to mention that prosecuto race, evolution geography, procedural actually part in the decision played rial discretion case, deci in or in the court’s penalty death seek the him. Finally, we are confident impose sion to it on case was the exercised discretion manner. arbitrary capricious in an exercised

CONCLUSION of the circuit reasons, judgment foregoing For County We direct the clerk of court of Stark is affirmed. setting September 12, 2006, to enter an this court order death, as the on date which the sentence entered County, be the circuit court of Stark shall carried out. provided by Defendant shall be executed in the manner 2004). (West law. 725 ILCS The clerk of this 5/119—5 copy court shall send a certified of the mandate this Corrections, case to the Director of Tamms the warden of Center, Correctional and the warden of the institution where defendant is confined.

Affirmed. part JUSTICE KILBRIDE took no in the consider- ation or decision of this case. specially concurring: FITZGERALD,

JUSTICE presented Based on the facts and the evidence sentencing hearing, agree majority I that the imposition penalty trial court’s the death in this case appropriate fundamentally unjust. and not I write separately majority because I that, believe while the apply proper reached decision, the correct it did not standard of review. majority

The advocates a standard of review which is “pure pure neither abuse of discretion nor a de novo standard.” Ill. 2d at 34. This standard is derived principle penalty that, cases, death this court give credibility should some deference to the fact and finder, determinations of the fact while at the same time subjecting scrutiny. agree the record to intense I that the credibility fact finder’s assessment the evidence and the witnesses is entitled to some deference. I likewise agree penalty that, because of the seriousness of death proceedings, certainly subject the record should be scrutiny.” “intense I However, do not believe that the fashioning aof standard of review that falls somewhere

56 de or necessary between abuse of discretion and novo is goals. sufficient to achieve these assigned The this has to this court legislature of state any procedural grounds duty, “independent the of relief,” sentence, the the death and order to “overturn *** if the court finds that imprisonment imposition fundamentally unjust applied the death sentence is (West 2004). l(i) 720 ILCS particular the case.” 5/9 — Indeed, this court must great responsibility. This is a question the of whether answer ultimate Because of the serious receive a death sentence. should issue, decision, in the the fact that the ness end, make, is our review should be de novo. ours alone to adopted has a de novo standard previously

This court “ultimate deciding ques charged of review when confession is a criminal defendant’s tion” whether (2000). G.O., 37, In G.O., In re Ill. 2d 50 voluntary. great deference to the stated that we would “accord we will reverse those findings, trial court’s factual and we weight of findings only against if the manifest they are However, we de novo the the evidence. will review volun whether the confession was question ultimate conclusion, reaching G.O., 2d at 50. In this tary.” 191 Ill. in United opinion Circuit’s we relied on the Seventh (7th 1997), which was D.F., 115 F.3d 413 Cir. States v. opinion Court’s Supreme United States rooted L. Ed. 2d States, 517 U.S. Ornelas v. United (1996). 116 S. Ct. 1657 need Ornelas, Supreme recognized

In Court review,” novo, of the “independent appellate for de or suspicion and of reasonable “ultimate determinations” 2d 697, 134 L. Ed. Ornelas, 517 U.S. at probable cause. Circuit D.F., the 919, 116 Ct. at 1662. In Seventh S. regarding novo, independent, de review advocated a defendant’s of the voluntariness of question” “ultimate It that the D.F., significant at 419. is 115 F.3d confession. appropriate in cases de novo standard has been deemed extremely by serious decisions must be made where involving rights reviewing courts—decisions fundamental liberty. impact person’s People a See also v. Gonza (2003) (applying lez, 220, 223 de 204 Ill. 2d a novo question standard of review to ultimate of whether granted, suppress properly to the defendant’s motion passenger stopped defendant, in a where the a vehicle unreasonably violation, a traffic asserted that he was amendment); People in seized of the fourth v. violation (2001) (applying Crane, 42, 2d 195 Ill. 51-52 a de novo standard of to “ultimate determination” whether the right speedy defendant’s constitutional ato trial was violated). Supreme Court, The United States the Seventh ap Circuit, and this court demonstrated a reluctance to ply grave a deferential standard of review under these appropriate circumstances. The same is reluctance here. weight only Yet, the of our decision is not the factor supports application which of the de novo standard. Drawing Supreme reasoning Ornelas, Court’s pointed question D.F., the Seventh Circuit out that the of voluntariness involved a consideration of the facts by admitted at trial and finder, assessed the fact but ultimately question D.F., was a of law. 115 F.3d It at 418. recognized concept likewise voluntariness is fluid “given case-by-case through adjudication,” content which required “uniformity meaning consistency ap- of plication.” D.F., 115 F.3d at 417. The court stated that reviewing independent courts must conduct an review “ under these circumstances in order to ‘maintain control clarify’ controlling legal principles.” of, and to D.F., quoting 417, Ornelas, 115 F.3d at at L. U.S. Ed. 2d at 116 S. Ct. at 1662. by

The considerations made the Seventh Circuit adopted by readily ap- D.F., and in G.O., this court are plicable penalty determining death to cases. As in volun- confession, determining

tariness of a when whether this consider appropriate, sentence of death is court must into evidence and the trial court or the facts admitted However, this facts. while jury’s assessment those as- should deference the fact finder’s pay court some sessments, court, statute, is determine this bound to question presented the ultimate whether the facts imposition trial death are sufficient warrant fundamentally penalty the death is not penalty, such particular Like volun- unjust applied defendant. tariness, concept a fluid which injustice fundamental is through only given meaning applica- can be content D.F., 417. 115 F.3d at case-specific tion in situations. See and control over develop continuity court cannot This if to exercise permitted in this area we are not precedent review of the facts issues before fully independent by us. of the standard of review fashioned Application inconsistent results the would create varied and majority astutely penalty Supreme in cases. As the Court death be “Such varied results would inconsistent recognized: This, if a matter- unitary system of a of law. with the idea Ornelas, at of-course, unacceptable.” 517 U.S. would be 697, 919, 116 Ct. at 1662. 134 L. Ed. 2d S. recog

Furthermore, Supreme likewise as the Court is rooted punishment doctrine capital nized: “[o]ur ‘ Amend Eighth that and Fourteenth “[t]he the principle of death of a sentence cannot tolerate the infliction ments unique to systems permit penalty this legal under ”’ Lewis v. freakishly and ... wantonly imposed.” be ... Jeffers, 497 U.S. 618, 606, 110 S. 764, 774, Ill L. Ed. 2d v. quoting Gregg Georgia, U.S. (1990), 428 3092, Ct. 3099 859, 883, 2909, 2932 188, L. 2d 96 S. Ct. 153, 49 Ed. Georgia, 310, Furman v. 238, 408 U.S. (1976), quoting (1972) (Stewart, 2726, 346, 390, Ct. L. Ed. 2d 92 S. attempted guard J., legislature has concurring). Our the death imposition “freakish” against “wanton” penalty giving authority in this state this court the by penalty review each of death for fundamental unfairness. This is undertaken de by applying task best novo standard “ultimate deciding question” of review the before us. dissenting:

JUSTICE McMORROW penalty by As the death reforms enacted the part (see Assembly General in 2003 Pub. Act eff. 93 — 11, 2003), provision November a new was added to section (i) (720 9— of the Criminal Code of 1961 ILCS 5/9— l l(i) (West 2004)). provision, This often referred to as the justice amendment, fundamental upon this court places the responsibility to set aside a death sentence —even any absence of error —if trial the court determines “fundamentally the death sentence is unjust.” People (2005). l(i) Mertz, full, v. 218 Ill. 2d In section 9 — provides:

“(i) Appellate Procedure. subject The conviction and sentence of death shall be Supreme automatic review the Court. Such review shall be in promulgated by Supreme accordance with rules Supreme may Court. The Illinois Court overturn the death sentence, imposition and order of imprisonment under Chapter V of the Unified Code of Corrections if court unjust finds that fundamentally death sentence is as applied particular to the case. If Supreme the Illinois Court unjust finds fundamentally death sentence is applied particular case, to the independent any proce- of relief, grounds dural the Supreme Illinois shall Court opinion issue a written explaining finding.” this 720 ILCS l(i) (West 2004). 5/9 — Dillard,

State Senators Cullerton cosponsors and the of the legislation which the fundamentally introduced unjust standard, explained significance have the of this provision: justice

“The fundamental [Public amendment of Act ground 605] is breaking in scope conception. It is 93 — beginning Capital Litigation a in the result of deliberations Judiciary Senate Committee Subcommittee of the Illinois continuing through Assembly and during the 92nd General Judiciary during deliberations in the Senate Committee justice Assembly. This fundamental the 93rd General in Supreme engage, amendment the Court to authorizes only, important kind of penalty cases in a new and death of appellate This new kind review is appellate review. substantive, procedural, than focus- designed be rather death ing key question: whether the on substantive ‘fundamentally particular just’ applied is as to the sentence case.

[*] ^[**] justice contemplates The amendment fundamental justice’ appellate review—which is the new ‘fundamental ‘comparative proportionality review’—will not the same as discretionary, ap highly will lead to be fact-based and grounds only very small pellate reversal on substantive *** penalty cases. The ‘fundamental number death case, sentence, justice’ applied particular to a of death legal on rules. generally cannot be determined the basis one, on issue, legal and must be based It is a moral not compass and the moral particular the facts case Cullerton, original.) J. (Emphasis the decision maker.” Baroni, Il Capital K. Dillard & E Punishment Reform Nation, Brief, (April DCBA at 10-12 linois — A Model for 2004). Mercy, Weisberg, Apology, Legislation See also R (the (2004) 1415, justice N.C. Rev. fundamental L. judges grant appellate [sic] amendment “enables defendants mercy capital sentenced properly to otherwise court, because, in the of the appellate [sic] view they sup- were procedural rules which technical sentencing capture could capital to monitor posed demands”). society concerns that moral Hoffmann, individual who Joseph Professor (see justice provision the fundamental initially proposed Assem., Proceedings, November Senate 93d 111.Gen. justice 43), that the fundamental explained has death of a sentence is distinct from whether sentence is excessive: surveying history guilt-innocence “After of the both *** cases, capital review in Illinois I

‘excessiveness’ believe generally grants authority that both of been have construed broad, quite narrowly sharp open-ended contrast to the —in authority contemplated by justice [fundamental the FJA *** amendment], The FJA—at a bare minimum—should statement, by serve as a clear and influential an over whelming, bi-partisan majority Legislature, of the Illinois wholly that such substantive is both review desirable legislative consistent intent. FJA The thus should any ap eliminate concerns the of exercise substantive pellate authority by Supreme review is il the Illinois Court contrary Illinois, legitimate, people to will of the of expressed Legislature.” by Hoffman, Illinois J. Pro tecting the The Innocent: Massachusetts Governor’sCouncil (2005).

Report, Criminology 95 J. Crim. L. & 577 n.83 Brief, See also DCBA at 12 (distinguishing the fundamen- tal justice inquiry from the inquiry excessiveness amendment, noting justice under fundamental all might issues that relate justice to fundamental court). may death sentence be this by considered

The justice fundamental determination differs appellate the traditional review conducted in death l(i) penalty cases. Section directs this court 9— determine the justice fundamental of the death sentence instance, first when the case is on direct appeal this justice inquiry court. The fundamental is not conducted the circuit court and the circuit court enters finding no regarding justice the fundamental of the death Thus, sentence. this court must give while deference any findings of fact trial during made the circuit court sentencing, principles deference and standards do play justice review a role in the fundamental determination they simply are not relevant. itself — l(i) otherwise, court, Stated section authorizes this 9— death every penalty case, independent to conduct an record, in the evaluation of the facts of as established court, and imposition circuit determine whether unjust,” the death is even when “fundamentally penalty has sentenced” properly the defendant been “otherwise (82 1437-38). here, standard Applying N.C. L. Rev. at penalty I of the death would imposition conclude that unjust in fundamentally be this case. why imposing penalty

A reason the death principal in is fundamentally unjust would be this case defendant’s dispute that the defendant mental condition. There is no from a disorder at the time of suffering was mental All three who testified experts offenses he committed. regard to only dispute trial so stated. The is with i.e., disorder, a of defendant suffers from type whether by persecutory type, delusional disorder of the found witnesses, and Day Chapman, paranoid defense Drs. a disorder, by and the State’s wit- personality Day found Further, notes, ness, majority Dr. Kowalkowski. as his arrest and belligerent following defendant’s actions irrational, that he was during given trial were completely 44. 2d at facing a death sentence. See 111. possible mental This the fact that defendant’s point underscores not in a normal fashion. processes do function addition, In does have a significant defendant in this history. the time the murders criminal At of prior criminal his case, prior old. His years defendant convictions— tory only consisted of four misdemeanor conduct, disorderly driving, one for reckless two for had no assault. Defendant one Class C misdemeanor not an any type. Defendant was felony convictions history. incorrigible felon an extensive criminal notes, Indeed, the murders defendant majority in terms of defen extreme uniquely committed “were 2d 222 Ill. at 50. past dant’s conduct.” Moreover, examples numerous the record contains life, For most of his adult attributes. positive supported and three his wife defendant worked college provided education child with a He each children. productive helped citizens. to become raise them engaged throughout life, often Further, Among things, generosity other others. acts of toward neighbors they lost when defendant rushed to the aid in the fire, returned a borrowed tractor their home a thought heavy middle snowstorm because might plow snow, installed a wood- need it to owner neighbor burning had in the house of another who stove repaired asking nothing return, heat, no penalty neighbor’s being asked. At the death roof without hearing, persons behalf, on defendant’s several testified good, dependable describing worker,” defendant as “a guy you “good “good father,” friend,” and “the nicest my view, In this would ever want to meet.” evidence by that the crimes committed demonstrates fueled his unstable mental were aberrant events condition.

Finally, noted, has defendant is as defense counsel years largely poor old, deaf, And, 63 and in health. now verbally custody while defendant was abusive when in during only physical clog trial, the action he took was ging physically a toilet. Defendant has never assaulted any prisoner prison Compare, or official. v. e.g., People (2000) (defendant’s 307, 192 Ill. 2d 333-34 Easley, repeated prison aggravating attacks on officials used as evidence). safety pose Defendant does not so serious a prison only protect risk in ing is the means of execution prison other inmates and officials. Incarceration in prison possibil for the remainder of his life without the parole ity mandatory supervised of release is an public punish protect alternative that both and will defendant.

The seriousness of defendant’s offenses cannot be unquestion- overstated. The crimes he committed were 64 However,

ably horrific. in the exercise of discretion af- l(i), forded this court under section I must conclude 9— imposition of the death sentence in this case is I in fundamentally unjust. reaching note that this conclu- sion, my decision is informed familiar principles: ‘responsibility

“It every penalty is this court’s in death carefully consider case the character of the defendant and the circumstances of his crime before we sanction the (1990) People 1, of life.’ Tye, termination v. 141 Ill. 2d 37 (Ryan, J., concurring part dissenting in in part). In fulfilling responsibility, ‘guided by this we are recogni capital tion that “each unique case is and must be evalu facts, focusing ated on its own on whether the circum stances of the crime and the of character the defendant are such that the deterrent and retributive functions of the by imposing ultimate sanction will be served the death Smith, 53, penalty.” People Ill. [Citation.]’ v. 2d *** (1997). *** Anytime unjustifiably being a human takes the fife another, society ‘[C]apital of a civilized be should horrified. punishment expression society’s is outrage an moral at particularly Gregg Georgia, offensive conduct.’ v. 428 U.S. (1976) 153, 183, 859, 880, 2909, L. 49 Ed. 2d 96 S. Ct. JJ.). Stewart, (opinion Powell, Stevens, Neverthe less, society penalty our and laws do not sanction the death may society. Instead, for all crimes which shock a civilized [which] we reserve it for those ‘crimes are so themselves grievous humanity only adequate an affront to that the response may penalty Gregg, at be death.’ 428 U.S. 881, (opinion 2d 49 L. Ed. 96 S. Ct. at 2930 Stew JJ.).” art, Powell, Stevens, (Emphasis original.) in (1998) Harris, (McMorrow, People v. 182 Ill. 2d 165-66 J., concurring part dissenting part). life appropriate imprison-

The sentence this case is mandatory ment possibility parole without I respectfully release. dissent. supervised Accordingly,

Case Details

Case Name: People v. Thompson

Court Name: Illinois Supreme Court

Date Published: Apr 10, 2006

Citation: 853 N.E.2d 378

Docket Number: 97373

Court Abbreviation: Ill.