In 1980, Walter Stewart pleaded guilty in an Illinois state court to two murders committed earlier that year in the course of his robbery of a suburban jewelry store, and was sentenced to death. After exhausting his state remedies,
People v. Stewart,
By pleading guilty а defendant waives a number of federal constitutional rights, such as the right to a jury trial and the right to confront his accusers.
Boykin v. Alabama,
No one doubts that Walter Stewart wanted to plead guilty; nor that he had the intelligence to make an effective plea, for he was 25 years old, had a long criminal record (arguing familiarity with the criminal justice system), and was not retarded, intoxicated, or insane. The question is whether he had adequate knowledge — not knowledge that he might be executed, for the judge told him repeatedly that a guilty plea would not preclude the death penalty; not knowledge that he was, indeed, giving up his right to a jury trial, his right to put on a defense, and his right to cross-examine the state’s witnesses, and so on, for these things were made clear to him too; but knowledge of the
value
that those rights might have in the particular case. A defendant must be allowed to choose with undistorted vision. If he is led to believe that the procedural rights that he will be surrendering by pleading guilty are worthless to him because he has no defense to the state’s charges, when actually they are not worthless because he does have a defense, his plea of guilty will not be based on a realistic assessment of the probable consequences, and thus a vital component of voluntariness will be missing.
Brady v. United States, supra,
The district judge found that Stewart had not made a voluntary waiver of his trial rights, and we should consider first what the scope of our review of such a determination is. While reserving the question, we suggested in
Hanrahan v.
*1382
Greer,
The transcript of the plea hearing takes up 94 double-spaced typed pages. It begins with the calling of the case for trial, followed by a mоtion by the prosecutor to drop 5 of the 18 counts — some of the lesser crimes with which Stewart had been charged, such as armed violence and aggravated battery. This is followed by Stewart’s waiving his right to a jury trial. He does not contend that this waiver was involuntary.
Stewart’s principal lawyer (he had two lawyers) requested a five-minute recess to talk to his client. The request was granted. In judicial parlance a “five-minute recess” is a break of short but indefinite length. According to the lawyer’s uncon-tradicted affidavit he had only one conversation with his client that day and it took half an hour; it сould only have been during the recess.
When court resumed, the lawyer reported that after Stewart had discussed the matter with him and had spoken by phone with his mother and sister, and in recognition of the prosecutor’s having dropped “those five counts for which we felt there was a defense,” Stewart had decided that “no useful purpose would be served by proceeding with an actual denial of guilt in regard to the pending charges” even though the lawyer had made clear to him that a guilty plea would not prevent the state from seeking the death penalty. The lawyer asked Stewart in open court whether this summary of their discussion was accurate, and he said it was. By this time it was noon and the judge said he would take the guilty plea after the lunch recess, but before adjourning he “advise[d] Mr. Stewart of certain possibilities in connection with this case, that he may wish to consider over the lunch hour.” By pleading guilty Stewart would be giving up not only his right to a jury trial but his right to any trial. “I merely hear a statement from the prosecutors as to what the facts are. If you and your lawyers agree there is a finding of guilty and judgment of guilty on those findings. Do you understand that?” Stewart said yes. The judge also told Stewart thаt upon the plea of guilty the state would in all likelihood seek the death penalty, “and the fact that you plead guilty would not necessarily obviate the imposition of such a penalty.” Stewart may not have known what the word “obviate” means because later, at the penalty hearing, when the judge used the word again, Stewart asked him what it meant. But at the guilty-plea hearing the judge repeated in simple language that Stewart’s pleading guilty would not prevent the state from asking for the death penalty.
*1383 The judge added that if the state sought the death penalty it would have to prоve— to a jury if Stewart wanted one — “that there were certain aggravating factors.” Stewart said he understood. He also acknowledged in response to a question by his lawyer that the lawyer had indeed told him that a guilty plea would not prevent (no “obviate” here) the state from seeking the death penalty.
When court reconvened after lunch the judge asked Stewart whether he had “had a chance to think over what we have talked about,” and when Stewart said yes the judge asked, “You so wish to insist [persist?] in your plea of guilty or do you wish to change it?” “No, sir.” “You wish to have me hear the case?” “Yes, sir, I think it would be fair.” Taken in isolation, the words “You wish to have me hear the case?” could mean that the judge was asking Stewart whether he wanted a trial— and Stewart said yes. The alternative interpretation is that the judge was asking whether Stewart wanted the case resolved by the judge in the manner he had sketched before lunch (“I merely hear a statement from the prosecutors as to what the facts are. If you and your lawyers agree there is a finding of guilty and judgment of guilty on those findings”) rather than by a jury in a trial. The alternative interpretation is the only plausible one. Stewart had just said he didn’t wish to change his plea. He had been told before lunch that he should think over whether he really wanted to plead guilty, and the thrust of the questions after lunch was to ascertain whether he wanted to persist in that course of action, as plainly he did. Stewart must have understood that he was being asked whether he adhered to the decision he had made before the lunch recess to plead guilty and did not want a jury trial. And three times after the garbled exchange that we have quoted Stewart was asked in plain language whether he still wanted to plead guilty and each timе he said yes.
So what did Stewart mean when he said that he thought it would be fair for the judge to hear the case? After the state, as expected, requested a death-penalty hearing, Stewart waived his right to have a jury determine whether the penalty should be imposed. The decision to waive that jury may well have been made before the guilty plea was made — this is suggested by the affidavit of Stewart’s trial lawyer in which he said that the decision to plead guilty had been based on a feeling that this judge would not sentence Stewart to death — in which event, in telling the judge that he thought it would be fair to have the judge hear the case, Stewart would have been looking ahead to the death-penalty hearing and hoping that a plea of guilty would help persuade the judge not to sentence him to death. This is conjecture, and in a death case to have to conjecture is disturbing. But the only immediately pertinent fact is not in the realm of conjecture: it is that Stewart wanted to plead guilty.
The judge later asked whether the defendant was pleading guilty to all the remaining counts and Stewart’s lawyer said yes, “whatever counts are still left.” The prosecutor suggested itemizing the counts and asking the defendant how he pleaded to each one, but the defendant’s lawyer insisted that that was unnecessary, that the plea “encompass[es] one event, the armed robbery and the subsequent deaths of two people in the jewelry store.” The judge then announced, “Plea of guilty, jury waived.”
The prosecutor suggested that after the stipulation of facts was read into the record the court make a finding concerning the factual basis for each count to which the defendant was pleading guilty. The judge said to Stewart, “I don’t want you to be misled. I don’t want you to think that by entering a plea of guilty and saving the State and the Court the time involved in a trial that that would mean that it would have a great deal of effect, a bearing on the question of what the penalty would be. Do you understand that?” “Yes, sir.” The prosecutor added that there had been no plea negotiations. Stewart’s lawyer confirmed this and added “we are entering plea of guilty to the charges remaining because of the facts if they were brought to trial that the Defendant would be guilty of those charges.” He then asked the judge to inform Stewart of his rights before the stipulation was read. The judge *1384 еxplained to Stewart that by pleading guilty Stewart was giving up his right to a jury trial and to cross-examination. He then asked Stewart, “And knowing all of that do you still wish to continue, that is, persist in your plea of guilty?” Stewart again said “Yes, sir.”
The prosecutor then stated that he and Stewart’s lawyer had stipulated “that the facts in evidence in this case would show the following,” but later Stewart’s lawyer clarified his understanding of the stipulation to be that it was a stipulation of the state’s evidence. Seventy-four pages of transcript follow summarizing the physical exhibits and the testimony that the state would have presented hаd the case gone to trial:
Linda Manzano was the proprietor of a jewelry store in Berwyn, Illinois. One Sunday in February 1980, she was in the store with her brother, Danilo Rodica, and her boyfriend, Thomas Pavlopoulos, an employee named Laura Landsinger, and Rodica’s nine-year-old daughter. Stewart, posing as a customer, first entered the store at 1:30 p.m., asked to be shown various items of jewelry, and left. He returned between 4:30 and 5:00, drew a revolver, and announced a stickup. After completing the robbery, the defendant gestured with his gun for the two men and Linda Manzano, who were standing in front of him, tо move to the side (Laura Landsinger and the child were in the back room). The men didn’t move, but Linda Manzano took one step backward — whereupon Stewart shot her in the abdomen. The two men, assisted by the wounded woman, jumped Stewart in an attempt to prevent his firing any more shots. The attempt failed. Stewart fired four shots, hitting both men, and shoved the woman to the ground. Rodica’s body was twitching on the floor, and Stewart shot him again. He then raced to the back room, pointed his gun at Linda Landsinger’s face, and pulled the trigger, but there was only a click, because the gun was empty. Meanwhile Lаndsinger (who had hidden the child) had pushed the holdup button, and by the time Stewart left the store the police had arrived, and they arrested him. Stewart told them, “I shot them because they jumped me.” Rodica and Pavlopoulos were dead. Manzano recovered and identified Stewart at a lineup. She said, “You killed my brother.” He replied, “So what. I wish it was your mother.”
After the reading of the stipulation from which the above summary is drawn, the judge, without further colloquy with Stewart, announced a finding of guilty on each of the remaining counts, and the state requested a death-penalty hearing. At the hearing, many оf the witnesses who would have testified at a trial testified about the circumstances of the killings. The penalty hearing occupies some 600 pages of transcript, most of them devoted to the circumstances of the robbery and killings. Stewart’s counsel tried through cross-examination and in his closing argument to suggest that Stewart had killed in self-defense. Although a robber has no
right
of self-defense, Ill.Rev.Stat. ch. 38, ¶¶ 7-1, 7-4(a);
People v. Austin,
Stewart argues that the guilty-plea hearing was rushed, sloppy, аnd confused, but in so arguing he confuses the requirements of the federal and state rules governing guilty-plea proceedings with the constitutional requirement, which is that the record show an effective waiver — one that appears to be deliberate, uncoerced, understanding, and intelligent. As many cases illustrate, such as
United States v. DeForest,
Potentially significant omissions are the following. Stewart did not, after the reading of the stipulation of facts, state that it was accurate; in fact he never directly admitted that he had committed the crimes with which he was charged. The judge did not explain to Stewart the elements of the offenses with which he was charged, nor is it certain from the transcript that his lawyer did. And the judge never told him what the minimum sentence for murder was. There were other omissions but these are the only conceivably material ones, and neither singly nor together do they permit an inference that Stewart’s plea was involuntary.
The first and third are weak. There is no requirement that for a guilty plea to be effective, the defendant must admit his guilt.
North Carolina v. Alford,
As for the judge’s failure to inform Stewart that the minimum sentence for murder was 20 years, we do not understand the materiality of this omission (even less do we understand the materiality of' the judge’s failure to inform Stewart of the minimum and maximum sentences for armed robbery and for attempted murder). Stewart argues that he- thought the minimum sentence for murder was imprisоnment for his natural life, but we don’t see how, if that is indeed what he assumed, it could have persuaded him to plead guilty. On the contrary, the lower the perceived minimum sentence, the more the defendant could be expected to want to curry favor with the judge by pleading guilty. He would have had more to gain from pleading guilty if he had thought he could be sentenced to only 20 years than if he thought that the only concession he could wring from the court would be. a sentence of imprisonment for the rest of his life.
We said earlier that for a plea of guilty to be voluntary the defendant must know the value to him of the rights he is giving up, and in particular he must know what the state would have to prove if he insisted on his right to a trial. Stewart’s strongest argument is that the judge, by failing to advise him of the elements of murder, misled him about the prospects for an acquittal of the charges that would place him in gravest risk of the death penalty. Under Illinois law at the time of the robbery, “a person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death,” he “intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another,” or “knows that such acts create a strong probability of death or great bodily harm to that individual or another,” or “is attempting or committing a forcible felony other than voluntary manslaughter.” Ill.Rev.Stat. ch. 38, ¶¶ 9-1(a)(1), (2), (3). All three offenses are *1386 murder but to be subject to the death penalty the murderer must have been at least 18 years old when he committed the crime and must (so far as relevant to this case) have murdered two or more persons, “provided the deaths occurred as the result of ... either an intent to kill more than one person or of separate premeditated aсts.” 119-1(b)(3). Stewart pleaded guilty to all three versions of first-degree murder, that is, to the offenses in Ml 9-1(a)(1), (2), and (3), and he argues that by pleading guilty to both murders under ¶ (1) he automatically exposed himself to the death penalty by thus acknowledging, in effect, that “the deaths occurred as the result of ... an intent to kill more than one person.” He would not have automatically exposed himself to the death penalty had he pleaded guilty only under 11 (3). You can be guilty of felony murder without intending to kill anybody, so had Stewart pleaded guilty only to that crime the state would have had to prove at the penalty hearing that he -had intended to kill both of his victims (or some other statutory aggravating factor). And likewise if he had pleaded guilty under 11 (1) as to only one of his victims and under 11 (3) as to the other. These subtleties, he claims, were not explained to him, and as a result he unknowingly forfeited a crucial issue at sentencing.
It is true that the judge did not instruct Stewart on the differences among the subsections of the murder statute, but that is not required. It is enough if defense counsel informed Stewart of the differences, and it is presumed that he did.
Henderson v. Morgan,
We see no escape from the inference that Stewart was fully advised of the nature and consequences of his plea. We might hesitate to rest decision in so grave a matter on an inference of this character if we thought it even remotely possible that Stewart might have had a defense to capital murder and forgone it out of ignorancе of the elements of that crime. It is not even remotely possible. Even if he was high on drugs at the time of the crimes,
*1387
there can be no serious contention — we do not understand Stewart to be contending— that he was so high that he could not form an intent to kill or do great bodily harm, which is the only possible relevance of intoxication in the criminal law of Illinois.
Evans v. Meyer, supra,
Against this background the fact that had Stewart pleaded guilty only to felony murder he would have thrust a greater burden of proof on the state at the penalty hearing has only academic significance. If he had pleaded guilty only to armed robbery, there would have been no death-penalty hearing at all. The fact is that he was plainly guilty of all three forms of first-degree murder. He knew it, his lawyer knew it, and the state knew it.
We are not saying that any error in the guilty-plea proceeding was harmless because the outcome of a trial would have been a forgone conclusion. Almost any trial error will be disregarded if harmless,
Arizona v. Fulminante,
— U.S. -,
The most singular feature of the procedures in this case should not go unremarked. Stewart’s main argument, it will be recalled, is that by рleading guilty to a form of murder that requires intent to kill, he placed his head in the noose because, since there were two murders and anyone who murders two people intending to murder both of them can be sentenced to death, the state in order to “qualify” Stewart for death had only to prove, which no one disputed, that he was at least 18 years old when he committed the murders. But then why does the transcript of the penalty hearing take up 600 pages? The answer is that the state shouldered the burden all over again of proving that Stewart really did intend to kill both his victims. Illinois law required the state to prove the existence of an “aggravating” factor, that is, a factor that makes the defendant subject to a death sentence, beyond a reasonable doubt. Ill.Rev.Stat. ch. 38, ¶ 9 — 1(f);
People v. Simms,
Stewart’s counsel reminds us that judicial review in capital cases must be exacting. To condemn to death unjustly is a terrible thing, and few modern Americans will take much comfort in the reassurаnce of William Paley that “He who falls by a mistaken sentence, may be considered as falling for his country.” “Moral and Political Philosophy,” in 3 Works of William Paley 1, 315 (1838 ed.). But the state is entitled to justice too, and perfection is no more to be expected in a capital case than in any other human endeavor. There were irregularities in the proceedings in this case, but the principal one favored the defendant — he got, in effect, a full trial on guilt after pleading guilty and waiving his right to a trial. This court’s authority is limited to the correction of federal constitutional errors. We find none, and therеfore reverse with directions to deny the petition for habeas corpus.
REVERSED.
ORDER
In the last sentence of the panel opinion issued on February 27, the judgment of the district court is “reversed with directions to deny the petition for habeas corpus.” The petition for rehearing points out, and the state’s response confirms, that the petitioner had presented in the district court alternative grounds for habeas corpus which the district judge had not passed on. (Neither of the parties had mentioned the existence of these unresolved grounds in their briefs, or at the oral argument.) The bеtter practice in habeas corpus death cases is for the judge to rule on
all
the grounds presented in the petition, so that the appellate court can decide the entire case in one round, without the interminable delays that characterize postconviction proceedings in such cases.
King v. McCotter,