People v. Ramsey

Docket No. 105942.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v. DANIEL RAMSEY, Appellant.
Opinion filed October 7, 2010.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
After a jury trial in the circuit court of Hancock County,
defendant, Daniel Ramsey, was convicted of two counts of first
degree murder (720 ILCS 5/9–1(a) (West 1996)), three counts of
attempted murder (720 ILCS 5/8–4(a), 9–1(a) (West 1996)), and one
count each of aggravated criminal sexual assault (720 ILCS
5/12–14(a) (West 1996)), home invasion (720 ILCS 5/12–11(a) (West
1996)), and residential burglary (720 ILCS 5/19–3(a) (West 1996)),
and sentenced to death and several terms of imprisonment. His
convictions were reversed by this court. People v. Ramsey, 192 Ill. 2d
154 (2000). He subsequently pleaded guilty to the intentional and
felony murders of two victims, the attempted murders of three victims,
aggravated criminal sexual assault, and home invasion. A jury found
him eligible for the death penalty and determined that he should be
sentenced to death. The trial court sentenced him to death and
imposed prison sentences totaling 60 years on the other convictions.
His appeal lies directly to this court under Supreme Court Rule 603
(134 Ill. 2d R. 603). For the reasons set forth below, we affirm his
conviction and sentence.
BACKGROUND
On July 9, 1996, Daniel Ramsey, then 18 years old, was taken into
custody at the Sloop residence in rural Hancock County. He gave the
police an account of the events of the previous evening, in which he
admitted killing two young women and shooting two children and his
former girlfriend, intending to kill them.
Defendant’s Statement
According to defendant, 17-year-old Rachel Sloop had recently
broken up with him. They had agreed to remain friends and he was
still welcome at the Sloop home. He had called Rachel almost every
day since the breakup. On the afternoon of July 8, defendant was
visiting the Sloop home. Rachel’s mother told Rachel that it was time
for defendant to leave because she did not have enough food to invite
him to stay for dinner. He remained for a while longer and then went
home.
Later that evening, another girl, Michelle Haist, told defendant
that Rachel never truly liked him and that she had been using him
because he gave her presents. Upset by her comments, defendant took
a .22-caliber pistol from the trunk of his car and placed it underneath
the front seat. He drove from his home in Keokuk, Iowa, to the home
of another friend, L.M., in Basco, Illinois.
At about 11 p.m., defendant and L.M. went for a drive. L.M. told
her mother that she would be home in about half an hour. They talked
about Rachel and the breakup and began to argue. He called her a
“bitch” and she slapped him. He struck her with his fist and then
stopped the car near a grain bin. She slapped him again and he pulled
the car closer to the grain bin. She got out of the car and came around
to the driver’s side. Then he got out of the car and they continued to
fight, shoving each other, until L.M. got back into the car on the
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passenger side. Defendant then pinned L.M. down on the front seat of
the car and ripped at her clothing. She told him several times to “stop”
and to “quit it,” but he sexually penetrated her anyway and ejaculated.
When he finished, L.M. told him that he was no longer her friend
and that she would tell what he had done. He took a roll of duct tape
from the trunk of his car and wrapped tape around her head, including
her eyes, and around her arms, her wrists, and her hands. After she
tried to run away, he also taped her lower legs. He lifted her over his
shoulder and walked to a nearby empty grain bin and placed her
inside, where he told her to stay.
Defendant went back to his car, retrieved the pistol, and returned
to the grain bin. He shot her twice. Then he got into his car and left.
He later told police that he shot L.M. because she said she would get
him into trouble. She died as a result of her wounds.
Defendant told police that he decided at this point that he wanted
to commit suicide and that he wanted Rachel to see him do it. He
drove for a while, thinking of a way to get Rachel’s mother, Barbara
Sloop, and a houseguest, Kim Haist, out of the house. At about 11:30
p.m., he called the Sloop residence from a pay telephone at a gas
station in Carthage, Illinois, and told Barbara that she and Kim were
needed at Kim’s apartment in Carthage, because Kim’s ex-fiancé,
Terry Hamelton, had ransacked her apartment there.
He then sped to the Sloop home. He turned the lights off in his car
and waited until he saw the adults leave. Once he was sure that
Barbara and Kim were gone, he parked his car on the side of the road
beyond the Sloop home and walked through a cornfield to the home,
carrying wire cutters, a flashlight, and his pistol. He looked in the
windows and saw that Rachel and her 12-year-old sister, Lonna, were
in the living room watching television. To ensure that Barbara could
not telephone the girls from her cell phone once she discovered the
ruse, he cut the telephone line to the house. He entered the house
through the unlocked back door.
He approached Rachel quietly, startling her by touching her. They
went into the dining room and talked for a while as she sat at the table
with her back to him. According to defendant, he had not planned to
shoot her, but she said something that set him off and he pulled out
the gun and shot her in the back of the neck. He could not recall what
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she said to upset him.
Lonna, who was in the living room lying on the sofa, began
screaming, so he shot her twice. Kim’s two children, Cody Hamelton,
age 3, and Courtnie Hamelton, age 2, were sleeping upstairs. When
defendant heard them crying, he went upstairs and shot both children.
(An autopsy revealed a nonfatal wound to Lonna’s neck and a fatal
wound to the top of her head. The children survived, with serious
permanent injuries.)
Defendant told police that he then tried to shoot himself in the
head with his pistol, but that it misfired. He knew that there was a
shotgun in the house, which he retrieved and again tried to kill
himself. The shotgun slipped as he fired, causing a superficial wound
to the back of his head, but he believed that he was dying.
When he came back downstairs, he found Rachel on the floor,
slipping in and out of consciousness. He lay down on the floor next to
her and fell asleep. He awoke when she got up to go to the bathroom.
She walked out of the house and he followed. The police, who by this
time had been called to the house by Barbara Sloop, were outside and
took him into custody. He led them to L.M.’s body and later waived
his Miranda rights and made the statement summarized above, which
was videotaped.
Procedural History
Following a jury trial in which he raised the defense of insanity,
defendant was convicted of the murders of L.M. and Lonna Sloop and
other felonies. The jury found him eligible for the death penalty based
on the cold, calculated, and premeditated manner in which the crimes
were committed. 720 ILCS 5/9–1(b)(11) (West 1996). After a
hearing, the jury found no mitigating factors sufficient to preclude
imposition of the death penalty. The trial court sentenced defendant
to death for the murders and to terms of imprisonment for the other
crimes. This court reversed defendant’s convictions and remanded for
a new trial. Ramsey, 192 Ill. 2d at 158-59.
Pretrial proceedings concluded in April 2007 with the selection of
a jury. Shortly thereafter, the parties advised the court that a plea
agreement had been reached under which defendant would plead
guilty to the murders of L.M. and Lonna Sloop, the attempted
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murders of Rachel Sloop, Cody Hamelton, and Courtnie Hamelton,
the aggravated criminal sexual assault of L.M., and home invasion.
The State agreed to dismiss four other counts. The trial court
admonished defendant regarding the effect of a guilty plea and of the
rights he was relinquishing. The court also determined that the plea
was voluntary and was not the result of threats or promises.
The matter proceeded to a capital sentencing hearing before the
jury.
Capital Sentencing Hearing–Eligibility Phase
At the eligibility phase, the State introduced a copy of defendant’s
birth certificate, showing his date of birth as March 30, 1978. The
State also offered a certified copy of five judgments of guilt based on
defendant’s guilty pleas.
L.M.’s mother testified that her daughter and defendant had been
“platonic” friends who talked daily on the phone. He often visited the
Marson home to watch movies with L.M. She allowed L.M. to go for
a drive with defendant at approximately 11 p.m. on the evening of July
8, 1996, and expected her daughter to be home in half an hour. When
she was not home by 3 a.m., she called the police.
Crime scene investigator Steve Zuber of the Illinois State Police
described the grain bin where L.M.’s body was found as being in a
field of fairly mature corn, “about a hundred feet” off the road and
“surrounded with fairly dense vegetation.” There was a path leading
from the road to the empty bin, but it was also covered with
vegetation. Some of the vegetation was “crushed-down” as if a vehicle
had recently driven on it. There were tire tracks and shoe prints in the
dirt behind the grain bin, where the vegetation was less dense. He
took photographs of the tire tracks and shoe prints. Zuber identified
several distinctive aspects of the shoe prints that identified the shoes
as Nike brand shoes.
Zuber further testified that he found the body of L.M. inside the
grain bin, with her head “wrapped almost completely in duct tape from
her eyebrows down to her chin with no openings left for her eyes,
ears, nose, or mouth.” Her arms and wrists and lower legs were also
bound with duct tape. Her shorts were torn and there appeared to be
blood on her underwear. Her fingers were also bloody. Zuber
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identified a photograph of the soles of L.M.’s shoes and noted that no
footprints matching her shoes had been seen in the area of the grain
bin.
Barbara Sloop testified regarding the dating relationship between
defendant and Rachel and Rachel’s decision to end it because she felt
defendant was “smothering” her with his constant attention. While the
young couple was dating, defendant visited the Sloop home every day
and spent some weekends there. After the breakup, he continued to
be a regular visitor and to call Rachel almost every day. When she
returned home after work on the evening of July 8, 1996, defendant
was there. Kim Haist, a family friend, was also there. She had been
staying in the Sloop home with her two small children because an ex-
boyfriend had recently set fire to her car. Barbara and Kim discussed
the security of the Sloop home and defendant interjected that “if
anybody wanted in your home, whether your doors were locked or
not, they would get in.” Shortly thereafter, Barbara told defendant
that dinner was almost ready and that he could not stay because she
did not have enough food for everyone. He did not leave right away,
but did eventually leave.
Barbara said that she was asleep on the couch in the living room
when the telephone rang at about 11:30 p.m. She recognized
defendant’s voice. He told her that Kim’s former boyfriend had
ransacked her apartment and was going to pour gasoline on it and set
it on fire. He told her to get Kim and come directly to her apartment
in Carthage and not to go to the police station. She woke Kim and
then Rachel, so that Rachel could listen for the children in case they
woke up. When she and Kim arrived at Kim’s apartment, neither
defendant nor the police were there and nothing was amiss. She called
home and got a busy signal, so she drove to the sheriff’s office.
Thomas Merchie, a crime scene investigator with the Illinois State
Police, testified that he photographed a brown or tan Ford bearing
Iowa license plates that was parked east of the Sloop residence on a
gravel road leading into a field. The car was separated from the house
by a corn field and a bean field. He measured the distance at
approximately 417 feet from the car to the house. Merchie observed
a police radio sitting in the front seat of defendant’s car. The radio
was turned on and he could hear police radio frequency traffic. After
arranging for the car to be towed for later processing, Merchie went
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to the Sloop home to process the scene there.
In the living room, he found the body of a young woman on the
couch. She was partially covered with an afghan and her head was on
a pillow. She had been shot in the right side of the neck, with the
bullet traveling through the pillow. She had a second gunshot wound
to the top of her head.
In an upstairs bedroom, Merchie found a shotgun on the floor near
an empty gun case and a .22-caliber handgun. Outside the residence,
he found three telephone wires that had been cut. He also found a
blue-handled “side cutter,” or wire cutter, in the grass outside the
house. He found no signs of forced entry into the house.
After being accepted as an expert witness without objection by the
defense, Dr. Travis Hindman testified regarding the autopsy he
performed on L.M. He described the duct tape that was wrapped
“very tightly” from her forehead to her chin. Her arms were taped to
her chest and her legs were taped together. She had abrasions on the
fingers of both hands. Her shorts were torn and stained. He found
bruising and tearing in the vaginal area, compatible with a sexual
assault. Hindman recovered bullet fragments from a gunshot wound
to the back of her head. The cause of death was severe brain trauma
due to the gunshot wound, with a possible contributory cause of
asphyxia due to her face having been covered with duct tape. Other
physical findings demonstrated that L.M. was alive when she was
shot. Had she not been shot, she eventually would have suffocated.
Hindman also testified regarding the autopsy of Lonna Sloop. She
had one gunshot wound to the side of her neck and one to the top of
her head. The bullet penetrated a pillow before entering her neck,
pulling some of the pillow filling with it. The wound was about one-
inch deep and when the pillow fabric rebounded, it pulled the filling
and the bullet with it. As a result, the neck wound was survivable. The
second wound was fatal.
The State’s final witness in the eligibility phase was Rachel Sloop
White, now age 28. She testified that she began dating defendant in
March 1996, when she was 17 years old. During the several months
that they dated, he came to her house “every day” and stayed “all
day.” She decided to end the dating relationship in late June 1996
because he was too possessive and she felt that she had no “space” of
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her own. After she ended the dating relationship, he continued to visit
the Sloop home every day and they remained friends.
She explained that Kim’s brother, Terry Haist, was engaged to
Amy Sloop, Rachel’s older sister. Kim and her two children were
staying with the Sloops because she suspected the children’s father,
Terry Hamelton, of setting fire to her car the previous weekend. On
the afternoon of July 8, 1996, defendant was visiting the Sloop home
and the fire was discussed.
At about 11:20 p.m. that night, Rachel’s mother woke her up,
explaining that she and Kim had to leave the house. Rachel was afraid
to be the oldest person in the house with only her 12-year-old sister,
Lonna, and two small children. She woke Lonna and asked her to
accompany her downstairs so she would not be alone. Lonna lay on
the couch and fell asleep while Rachel sat in a recliner, watching
television.
She looked up and saw defendant coming through the dining room
toward her. When she asked what he was doing there, he replied that
her mother knew he was there and that it was “okay” for him to be in
the house. He asked her to come into the dining room to talk to him
and she complied. Toward the end of that discussion, he asked Rachel
if she would resume dating him.
At this point in her testimony, the State rested its case on
eligibility. The defense presented no evidence at this stage of the
proceedings. Closing arguments were made and the jury was
instructed.
The State noted that defendant was 18 years old and that he had
pleaded guilty to first degree murder. In addition, the State argued
that it had proven the existence of three eligibility factors beyond a
reasonable doubt: (1) defendant was convicted of murdering two
individuals and their deaths were the result of his intent to kill (720
ILCS 5/9–1(b)(3) (West 1996)); (2) defendant killed L.M. in the
course of another felony, aggravated criminal sexual assault (720
ILCS 5/9–1(b)(6) (West 1996)); and (3) both murders were
committed in a “cold, calculated and premeditated manner pursuant
to a preconceived plan, scheme or design to take a human life by
unlawful means, and the conduct of the defendant created a reasonable
expectation that the death of a human being would result therefrom”
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(720 ILCS 5/9–1(b)(11) (West 1996)).
In support of the third factor, the State argued that the murder of
L.M. was cold, calculated, and premeditated, as shown by the fact that
the defendant brought a gun and duct tape when he went to Marson’s
house and that he drove only 1.6 miles from the Marson home before
leaving the road to park behind a grain bin that was surrounded by
dense vegetation, where he raped her, bound her with duct tape,
placed her inside the grain bin, and shot her.
Similarly, the State argued, the murder of Lonna Sloop was cold,
calculated, and premeditated. Defendant lied to Barbara Sloop to get
the adults to leave Rachel, Lonna, and two small children alone in the
house, using information about who was in the home that he obtained
in an earlier visit that day. He sped to the Sloop home and parked off
the road with his headlights off, so that he could see the adults leave.
Then he parked his car where it could not be seen from the house, cut
through a cornfield to reach the house, and cut the telephone lines.
After gaining access to the house, he shot Lonna in the top of the head
as she lay on the living room couch.
Defense counsel emphasized that defendant, after receiving
Miranda warnings and knowing that he did not have to speak,
cooperated with the police. He gave a full statement and took
responsibility for his actions at that time and later when he pleaded
guilty. If he had premeditated killing L.M., counsel argued, he would
not have spent half an hour visiting with her in her home before taking
her out that night. Counsel also noted that defendant did not try to
disguise his voice when he called the Sloop home. Thus, counsel
suggested, because he did not try to conceal his identity from his
victims’ mothers, he did not premeditate the murders.
The jury found, unanimously, that each of the three aggravating
factors existed.
Capital Sentencing Hearing–Evidence in Aggravation
After opening statements by both sides, Rachel Sloop White
resumed the stand as the State’s first witness in the second stage of
the capital sentencing hearing. She testified that she was introduced
to defendant by a mutual friend, L.M., at the Keokuk, Iowa, YMCA.
Eventually, they began dating and she attended prom with him in
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March 1996. She broke up with him later that spring by giving him a
letter that she had written. She wanted to continue to be his friend.
On the afternoon of July 8, 1996, defendant was visiting her
house. Rachel, Lonna, Kim, and defendant talked about the incident
in which Kim’s car caught fire. There had also been a fire in
defendant’s car. They all suspected Terry Hamelton of setting the
fires.
At some point in the afternoon, defendant drove Kim into town to
run errands “to do with the fire” and then brought her back to the
house. Rachel’s mother returned from work about 4:30 p.m. and
began cooking dinner. She told Rachel that it was time for defendant
to leave because there was not enough food for him to eat with them
that evening. After Rachel told defendant to leave he “moved at a
slow pace,” and when he did finally leave, called her a “bitch.”
She was asleep later that night in her second-floor bedroom when
her mother woke her, explaining that she had received a telephone call
from defendant telling her that she and Kim were needed in town at
Kim’s apartment because Terry Hamelton was ransacking it.
Rachel and Lonna were in the living room watching television
when she heard someone in the dining room. She saw defendant
coming toward her. Defendant asked to talk to her in the dining room.
They sat at the table, smoking cigarettes and talking. When he
asked her if she would resume dating him, she tried to change the
subject, saying that she needed to bring the dogs inside. She went to
the front door to let the dogs in and defendant accompanied her. Then
they went back to sit at the dining room table. From her seat at the
table, she could see out the window and she saw the headlights of a
car coming down the road toward the house. When she told defendant
that a car was approaching the house, he shot her in the head, just
above and behind her right ear. Before she “fell over,” she heard her
sister, Lonna, say, “Don’t shoot me.”
Rachel remained seated, with her head resting on the table, as she
slipped in and out of consciousness. At some point, defendant
returned to the room. He was bleeding and he let his blood “just go all
over” her. Then he asked her to lie down on the floor next to him. She
used a chair cushion as a pillow and lay down on the floor, covering
herself with a blanket. He kept touching her, asking her if she was still
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alive. She responded, “Stop touching me before I die.” She asked
defendant if he had shot anyone else and he told her that he thought
he had killed her sister, but he denied having shot the two children.
Eventually, she told defendant that she had to go to the bathroom.
He initially refused to let her leave, but she told him that she would
leave the bathroom door open. When she came out of the bathroom,
she did not see defendant, so she opened the front door and walked
outside where the police were waiting. (Later testimony by a state
trooper established that it was approximately 5:52 a.m. on July 9,
1996, when Rachel exited the house, followed shortly thereafter by
defendant, who surrendered to the police.)
Michelle Haist, the younger sister of Kim and Terry Haist, testified
that she knew defendant because he was dating Rachel, whose sister,
Amy, was engaged to Michelle’s brother, Terry. Defendant “was
always around.” In 1996, Michelle was living with Kim in Carthage,
Illinois.
On July 3, 1996, Michelle had been at Kim’s apartment when
Terry Hamelton came by and told her that he wanted to see the
children, Cody and Courtnie. Kim had not been home at the time.
Later that night, Michelle was awakened by flashing lights. Kim’s car
was on fire and the flames were “starting to come in the window.”
On several subsequent evenings, defendant spent the night at
Kim’s apartment, along with Michelle, her boyfriend, and Kim and the
children. Everyone was on edge. The night of July 6, defendant “kept
going in and out,” then he ran into the apartment saying his car was
on fire. When she went out to look, she saw several newspapers in the
backseat that had been set on fire. The flames had gone out on their
own and it was not necessary to call the fire department.
Michelle also testified that she was at the Sloop home on the
afternoon of July 8, 1996. She noted that defendant and Rachel “were
having some kind of argument.” She accepted a ride back to Keokuk
from defendant. Rachel was yelling after him as they pulled out of the
driveway. Defendant said that he felt like pulling “in front of a semi
right now.” She told him that it was “stupid” to kill himself over
“some girl” and that he just needed to move on. He would not accept
that Rachel did not want to be with him.
Defendant dropped Michelle at a friend’s house and then left for
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a bit, saying that he had to go to his house “to do something.” Later,
he returned and offered Michelle a ride to her home. She said she was
not ready to go, so he stayed. Then he left a second time and came
back, again offering to take her home. She told him she intended to
stay there for the night. He “stayed there for a while and then he
eventually left.” Michelle was “annoyed because he just kept repeating
it over and over and kept asking [her] to go ***. He just persistently
kept asking me over and over.”
Terry Haist testified that he was living at the Sloop home with his
fiancée, Amy Sloop, in 1996. He knew defendant as Rachel’s
boyfriend. Terry had a 20-gauge single-shot shotgun that he kept
under the bed in Amy’s upstairs bedroom.
He also testified regarding the relationship at that time between his
sister, Kim, and her former boyfriend, Terry Hamelton. There was
some “squabbling” between Kim and Terry Hamelton over the
children. Terry Hamelton resented Terry Haist because he was “more
or less like a father figure to the kids.” Hamelton had made comments
about coming for Haist and wanting “a piece” of him. Terry Haist was
told by defendant that Hamelton had been taking target practice,
making Haist believe that Hamelton was going to come looking for
him. Every time defendant was at the house, he would make
comments to Haist about “what Terry Hamelton was doing.”
On the afternoon of July 8, 1996, Haist was at the Sloop house
while Barbara Sloop was cooking dinner. Everyone, including
defendant, was talking “about how everybody was scared about all the
events that were going on. And Amy wanted her mom to lock all the
doors.” Defendant said that if someone really wanted to get into the
house, they could just come in through the window, pointing at the
window in the dining room.
On the evening of July 8, 1996, Haist and Amy did not stay at the
Sloop home because Amy was afraid that Hamelton “was going to
show up and try to do something.” They went into town to stay with
his grandmother. He left the shotgun in the bedroom, sticking out
from under the bed so that he could have easy access to it. The
shotgun was not loaded.
Haist further testified that he had shot the shotgun with defendant
on at least five occasions. They shot birds and took target practice.
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Once, defendant brought his own shotgun shells so that he could take
target practice while Haist was gone.
Kim Haist’s previous sworn testimony was read into the record by
another person. She had testified at the first trial that on July 8, 1996,
defendant drove her and her two small children from their apartment
in Carthage to the Sloop home. Her car had been set on fire at her
home several days before and she suspected that Terry Hamelton, the
children’s father, was responsible. She knew defendant through the
Sloop family and he had stayed at her apartment for several nights to
protect her and her children.
After they dropped the children at the Sloop home and arranged
for Lonna to watch them, defendant took Kim to run several errands
in town. They returned to the Sloop home at about 4 p.m. and visited
for a while. When they discussed the recent fire, the discussion turned
to the need to lock the doors when everyone went to bed that night.
Defendant said that it would not matter if the doors were locked,
because someone who wanted inside could come through the
windows.
When it was time for defendant to leave, he offered to drive Kim’s
younger sister, Michelle, to her boyfriend’s house in Keokuk, Iowa.
Michelle and defendant left the Sloop home together. Terry Haist and
Amy Sloop also left for the night because Amy did not feel safe. Then
Kim and Barbara Sloop went back to Carthage to retrieve clothing
and toys for the children, returning at about 10 p.m. After they
watched the television news, everyone went to bed. Barbara woke her
at 11:30 p.m., to tell her that defendant had phoned to say that they
needed to go to her apartment in Carthage because Terry Hamelton
had been arrested while ransacking her apartment and that the police
needed to speak to her. When they arrived, they saw no lights and no
vehicles. They went to the police station and Barbara attempted to call
home. When there was no answer, a county sheriff’s deputy was sent
to the Sloop home. At the request of the police, they remained at the
police station until 6:30 a.m. the following morning. The next time she
saw her children was in the trauma unit of the local hospital, before
they were airlifted to Peoria for treatment.
Police Captain Kevin Church of Keokuk, Iowa, testified that when
he was a patrol officer in 1992, he investigated a report of a young
man who approached the manager of a cemetery, asking alarming
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questions about security there. He had shown her a police badge and
stated that he was doing security work for the police department.
Church identified defendant as that young man. Church and another
officer went to the Ramsey home, spoke to defendant’s father, and
searched defendant’s bedroom, where they found a police badge.
Defendant’s father told Church that he had found some stolen items
in the attic of his garage and had discarded them. He gave the officers
permission to search the garage and they found a 9-millimeter
handgun. Church asked that defendant be brought to the police
station, where he was given Miranda warnings and made a statement,
admitting that he had gone to the cemetery and spoken to the
manager. He also admitted stealing the handgun from a neighbor’s
home. Church also testified that he had arrested defendant on more
than one occasion prior to this incident.
Amy Mitchell Briggs testified that in 1993 she had been the
girlfriend of Shane Mullenburg. She knew defendant from school and
from seeing him around town. On October 11, 1993, she and Shane
left his house to go out for the evening. She had forgotten something,
so they returned to the house where they found defendant and another
young man whom she identified as Dustin Wade. One of them was
holding a VCR. They went out through the front door and she chased
them. She could not recall if Shane owned a gun at that time.
Barbara Sloop returned to the stand to read a victim impact
statement regarding the death of her daughter, Lonna.
Thomas Crew, chief of police for the City of Keokuk, Iowa, was
the next witness for the State. In 1993, when he was a criminal
investigator, he investigated the burglary of Shane Mullenburg’s
home. The police could not locate defendant, but they did speak to
Dustin Wade, who explained that the burglary was defendant’s idea
and that defendant was looking for a gun. He said that when they
were interrupted by Briggs’s return, the gun was left on a bed.
Crew also testified that he was familiar with defendant, who was
a “common figure” in the community and who frequented the fire
department and police department on a regular basis. He was “always
there” and was fascinated with anything having to do with radio
equipment or emergency services.
In 1994, Crew was part of a task force that was conducting
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undercover narcotic operations. The members of the task force used
radios to communicate during surveillance. At one point, Crew was
sent to do a “buy bust” at a local hotel. As he was driving an
unmarked car to the hotel, he saw defendant on the street talking to
a relative of the target of the operation. As Crew drove by, defendant
pointed him out to the person to whom he was speaking.
That individual later complained to the police department that he
and his family were being surveilled by the police. An investigation
revealed that defendant had recorded task force radio transmissions.
Upon learning that the task force’s radio frequencies had been
compromised, Crew obtained a search warrant for defendant’s school
locker and his residence. In his bedroom, police found a Rolodex file
containing information regarding police officers and their families,
including home addresses and names of their children and spouses.
The file contained similar information regarding firefighters and
emergency management personnel. Defendant was charged with
interference with official acts.
Dr. Christopher Hefner testified as an expert witness. He testified
that he treated Rachel Sloop for a gunshot wound to the head. The
bullet struck and entered the first cervical vertebra and both the bullet
and the bone were fragmented. There was no exit wound. The injury
resulted in complete occlusion of the right vertebral artery, which
supplies the back part of the brain. Although Rachel was able to speak
and her vision and facial functions were normal, this injury presented
a risk of a devastating stroke due to formation of a blood clot. Dr.
Hefner elected to use blood thinners to treat the clot, rather than
surgery, because of the risks involved in surgery. Rachel’s injury was
potentially life-threatening.
Retired Illinois State Police officer Stuart Erlenbush testified that
he had been present on the morning of July 9, 1996, when defendant
was taken into custody. He observed what appeared to be a superficial
gunshot wound to the back of his head. There was some blood, but no
sign of a puncture wound. The wound was treated by applying gauze
with tape.
Dan Law of the Illinois State Police testified over a continuing
objection by the defense to any mention of the attempted murders of
Cody and Courtnie Hamelton. Law stated that he responded to the
Sloop home on the night of July 8, 1996, as a member of the tactical
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response team. After donning protective gear, the team approached
the house from the rear. As they did so, two individuals exited
through the front door. The team then entered the house. Law went
to the second floor and entered a bedroom in which he found a small
boy, lying on the floor with a blanket and pillow covering his face.
Law removed the blanket and pillow and then began removing his
equipment so that he would not alarm the boy. He did not initially
observe any injuries, but saw the child’s skin turn an ashy color. His
condition seemed to be deteriorating. When medical personnel arrived
and moved the boy, Law observed a wound in his back. While he was
tending to the boy, Law heard a gasp from the corner of the room. He
looked over to see a small girl lying on the floor. One of her eyes was
“bulged out enormously” and there was dried blood on her face. When
the EMT tried to insert an IV in the girl’s arm, she began screaming.
Once the boy was removed on a backboard, Law carried the girl to
the waiting ambulance. Law returned to the house through the front
door and observed the body of another girl lying on the couch.
Illinois State Police master sergeant Bruce Liebe also testified over
a defense objection regarding the discovery of the injured children in
the upstairs bedroom. Liebe stated that he saw the two children lying
on the floor. The girl was face down and he initially thought she was
dead. The boy was lying on his back, with a pool of blood around his
head. He was obviously frightened. Liebe got down on the floor and
began removing his mask, goggles, and other equipment. The boy
calmed down. He was alert and responded with eye movements, but
he did not speak. At this point Law realized that the girl was still
breathing. He observed what appeared to be a gunshot wound to her
right eye. Initially, he could not tell whether it was an entrance wound
or an exit wound. Later, he discovered an entry wound to the back of
her head. The girl seemed to be unconscious, but reacted when
paramedics attempted to insert an IV. Then the boy became
unresponsive and his color turned ashen. He appeared to be going into
shock. When the boy was being moved to a board, Liebe observed a
bullet wound in his “upper shoulder area alongside of his spine.” Both
children were then removed to waiting emergency responders.
Dr. William Hanigan, a neurosurgeon, testified as an expert
witness regarding his treatment of Cody and Courtnie Hamelton.
When he first saw Courtnie in the emergency room, she was
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semicomatose. A CT scan of her head showed bone and bullet
fragments along the right side of her temporal lobe to the right eye,
along with a blood clot. He performed surgery to remove the
fragments and injured brain tissue. Courtnie’s right eye was
“destroyed.”
Hanigan saw Cody Hamelton for the first time the following day.
The bullet wound through his shoulder damaged his esophagus, which
required surgery to repair. He later developed a bacterial infection at
this site. The bullet also fractured cervical vertebrae and injury to his
right brachial plexus, which supplies nerves to the arm. Cody was not
able to move his right arm and was barely moving his right leg. A
second surgery was required to remove dead tissue in the shoulder.
During this procedure, the doctor performed a spinal tap, which
revealed meningitis.
Captain Tim Becker of the Illinois State Police testified that he had
been a trooper in 1996 and that he was the individual who placed
defendant in handcuffs after he exited the Sloop home. He observed
that defendant had blood on his hair, face, and clothing. Another
trooper read defendant the Miranda warning. Defendant
acknowledged that he understood his rights. He was “shivering;
shaking violently; crying; saying he was sorry.” On cross-examination,
Becker acknowledged that defendant shed tears and that he said he
was sorry more times than Becker could count.
Ron Wood testified that he was a juvenile court officer in Keokuk,
Iowa, and that he had held that position since 1985. He first
encountered defendant in 1992, when he was charged with fourth
degree theft for stealing a gun. He was adjudicated delinquent, placed
on probation, and ordered to comply with certain conditions including
attending school, making restitution, performing community service,
and obtaining counseling.
Wood next encountered defendant in 1993 after he was charged
with fourth degree theft, assault, fifth degree theft, assault doing
bodily injury, and third degree burglary. The charges stemmed from
five separate incidents. Wood recommended that defendant be placed
in detention. After a hearing, he was ordered placed in detention in the
juvenile facility at Montrose, Iowa.
Defendant later admitted the delinquent acts of theft and assault.
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The court placed custody of defendant with his parents and sister for
the purpose of placing him in an “appropriate structured residential
facility,” which Wood described as “group care.” He went to a home
in Davenport, Iowa, where he attended school and obtained family
and individual counseling. He remained there from November 1993 to
August 1994, when he was released by consent of all parties, including
the State’s Attorney. He remained on probation.
In December 1994, while still on probation, defendant was
charged with interference with official acts and harassment of a public
official. After a hearing, his probation was revoked and he was placed
at the State Training School for boys at Eldora, Iowa, which is the
state’s juvenile prison.
On cross-examination, Wood acknowledged that defendant
admitted guilt each time he was accused of a crime. In addition, a
psychiatrist at the State Training School prepared a report, which was
submitted to Wood, in which he diagnosed defendant with Attention
Deficit Hyperactivity Disorder (ADHD) and recommended that he be
referred to a mental health center for treatment with medication.
Wood agreed with his recommendation that defendant be placed in a
highly structured group home upon his release from Eldora. This
recommendation, however, was rejected by the committee responsible
for such decisions and the defendant was instead sent home “with
services.”
Wood was also questioned on cross-examination about the
circumstances of the December 1994 charges. Defendant entered an
electronics store in Davenport, Iowa, and claimed to be a member of
the West Point fire department. He attempted to buy the type of radio
used by the department. The clerk became suspicious and refused to
make the sale. The clerk took down the license plate number of
defendant’s car and reported the incident to the sheriff.
Wood’s cross-examination was also used to admit defendant’s
discharge summary from Eldora, which indicated that he had been a
productive student, taking a vocational course in residential wiring,
that he had completed his GED requirements, and that he was enrolled
in a computer literacy program.
On redirect, Wood testified that defendant served multiple in-
school suspensions during his eighth-grade year, 1991-1992, for
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offenses such as hitting, kicking, and pushing other students and
possession of keys to the school building. Except for a B in physical
education, his final grades were Ds and Fs. In 1992, when Wood first
dealt with defendant, he had not previously been charged with any
crime. However, he told Wood that he had been involved in numerous
thefts in the Keokuk area. The records provided to Wood revealed
that prior to the incident involving the cemetery and the theft of the
gun, defendant was seen by a clinical psychologist who diagnosed him
as having oppositional defiant disorder. In addition, the doctor who
diagnosed the ADHD condition found “no evidence for any serious
mental disorder which would impair [his] ability to be responsible for
his behaviors.” Records from defendant’s stay at the group home in
Davenport showed that he had a “superficial commitment” to the
program there and that he “demonstrate[d] a false commitment to the
program.” He denied and minimized the conduct that resulted in his
placement there and did not accept responsibility for his actions.
Further, he interacted with his peers in a “domineering and superior
manner.” He also had an “unrealistic concept of boundaries between
himself and authority figures.” Wood read and relied on these reports
and records to make his recommendation regarding placement of
defendant.
In 1994, after the incident in which defendant interfered with the
work of the drug task force, a search warrant was executed on his
locker at school. The search disclosed a confidential list with unlisted
telephone numbers at the school. Based on his possession of this list
and his excessive absenteeism, he was suspended from high school.
Defendant’s father thereafter contacted Wood to tell him about the
suspension and to report that defendant was not following his curfew.
His father was concerned with recent outbursts of defendant’s temper
and feared that he might physically hurt his mother. Wood’s testimony
also revealed that defendant’s parents were, in fact, his biological
grandparents who had adopted him as an infant.
Dr. James E. Coeur was unavailable to testify. His testimony from
defendant’s first trial was read into the record. Dr. Coeur testified that
he treated defendant on July 9, 1996, for a superficial wound to the
back of the scalp. An X-ray revealed no damage to the skull. The
wound was a “groove” in the soft tissue of the scalp, about 4½ inches
long and half an inch wide. He used a local anesthetic and sutured the
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wound. Defendant was calm and cooperative.
The videotape of the statement defendant made to the police on
the morning of July 9, 1996, was admitted into evidence via the
testimony of William Pententler of the Illinois State Police, who was
present during the interview. The tape was played for the jury. Its
contents are summarized above.
The State’s case in aggravation closed with the testimony of
Suzanne Marson, who read a victim impact statement regarding the
death of her daughter, L.M.
Capital Sentencing Hearing–Evidence in Mitigation
Mark Cunningham, a clinical and forensic psychologist, testified
as an expert witness that he is familiar with scholarly research
regarding the likelihood that a capital defendant will commit serious
violence while in prison. He authored a number of articles on this
topic, for which he received several awards. Cunningham interviewed
defendant for 1 hour and 40 minutes in August 2006. He also
interviewed two corrections officers from facilities in which defendant
had been confined regarding their observations of him, and he
reviewed defendant’s records from these facilities. In addition,
Cunningham utilized statistical and demographic information
regarding inmates who commit crimes while in prison.
Cunningham opined that there is a “very low likelihood that Dan
Ramsey would commit an act of serious violence or seriously injury
somebody while confined for life.” This conclusion was based on
defendant’s age (29 at the time of his evaluation), the appraisal of
correctional staff, the fact that he holds a GED certificate, and the fact
that he has regular visitation with his family. In addition, “in his
interpersonal style, he is significantly detached from inmate
interactions.” Cunningham also noted that defendant had no
disciplinary tickets for threats, fights, or assaults while in prison.
Cunningham further noted that the data shows that severity of the
offense that sent an individual to prison is not a predictor of violence
while in prison. He also testified regarding the conditions in Illinois
prisons for individuals serving life sentences without the possibility of
parole.
Jana Huele testified that she is defendant’s biological mother and
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his adoptive sister. She was 16 years old when defendant was born.
Her two older sisters and older brother had left home by this time, so
she was the only child living at home with her parents. She concealed
her pregnancy from her parents until a few hours before giving birth.
She received no prenatal care. She originally intended to give the baby
up for adoption, but decided the morning after his birth that she
wanted to see him. The nurse brought her an infant, with whom she
spent several hours. After she went home with her parents, she
realized that their description of the baby’s red hair did not match the
infant she had seen. When the social worker came to the house for her
to sign the consent papers, she insisted that she could not sign the
papers without seeing her baby.
The social worker brought the infant to the Ramsey home. Jana
and her family, including her parents, her grandmother, one sister, and
her brother, spent several hours with the infant. When Jana announced
that she wanted to keep the baby, the family was “very happy.” The
social worker took the child back to the foster parents, over her
objections. He was not returned to her for a week and a half or two
weeks.
Jana went back to school while her mother cared for the baby. The
crib was placed in her parents’ bedroom and her mother got up with
the baby at night. Eventually, her parents suggested that they adopt
the baby and she agreed. The adoption was final just before his first
birthday. When she was 17, Jana married Mark Huele and moved out
of her parents’ house.
Jana did not necessarily agree with her parents’ decision not to tell
defendant the circumstances of his birth and adoption until he was in
his teens, but she and the other family members went along with the
decision. However, when defendant was about nine years old, Jana’s
oldest sister began to drop hints that his parents were really his
grandparents. The sister was then divorced and living at home and
Jana felt that she was jealous of the amount of attention her parents
paid to defendant rather than her own children. After defendant found
out that he was adopted, he began to rebel. He was angry and began
to get into trouble. Over time, it became more difficult for her parents
to discipline defendant. She and her siblings could not tell their parents
about anything defendant said or did, because they would not have
believed it. Her parents thought that their children and grandchildren
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were jealous of defendant and tried to get him into trouble.
At age 11 or 12, defendant became very interested in listening to
the police scanner. He would keep track of calls and would ride his
bicycle to watch what was going on. He equipped his bicycle with a
light and some sort of siren and carried the scanner with him.
Edna Jean Daggs testified that she had been defendant’s
kindergarten teacher. She noticed that defendant was immature and
had a difficult time staying on task. She had a hard time getting and
then holding his attention. She discussed the situation with defendant’s
parents, who declined to give permission to have him tested. At the
beginning of the school year, routine speech, hearing, and vision
testing was done. Defendant’s parents would not give permission for
additional testing or the speech therapy that was recommended as a
result of the screening. During the first semester, defendant did not
learn to write his name and he did not learn to recognize any sounds
associated with letters of the alphabet. Daggs later sent home another
request for special education support services for defendant’s parents
to sign. Instead, they withdrew him from school.
Defendant’s kindergarten grades were admitted via Daggs’s
testimony. In addition to the report card she gave, which stated that
he was not making progress, talked constantly, and had a very short
attention span, the physical education teacher reported that defendant
experienced difficulty with jumping, skipping, hopping, galloping, and
marching. He had difficulty identifying parts of the body and naming
animals.
Phyllis Benner testified that she was defendant’s teacher for the
remainder of kindergarten after he transferred from public school. He
had to repeat kindergarten because he had not yet begun to read. He
attended the same school for first through fourth grades. Defendant
was “a loner.” He did not have any friends at school. On show-and-tell
days, he would bring keys to school. He would take his ring of keys
out on the playground and try to tell the other children what he could
open with them. He was disappointed that they were not interested.
Kathleen Carter testified that she had been defendant’s sixth-grade
teacher at another private school. As a transfer student in fifth grade,
he had a hard time fitting in. He was a C or D student in her class. She
thought he would benefit from speech therapy and she referred him to
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the speech teacher. The principal signed off on her recommendation
and defendant’s mother consented to the initial evaluation. However,
she refused permission for him to attend speech therapy.
She further testified that defendant had difficulty paying attention,
that he was easily distracted by the sound of a truck going by or even
a lawn mower outside. He did not regularly complete his homework.
He got into scuffles on the playground and in the lunch room.
Defendant complained that other students picked on him and teased
him. For example, he would bring a badge that he had made to school
and tell his classmates that he worked for the FBI. He also brought
toy handcuffs to school. He carried a briefcase instead of a backpack
like the other students. She saw defendant carry a key ring with 20 to
25 keys on it, which hung from his belt loop. He liked to show them
off and tell people what he could unlock.
Doris Turner testified that she had been defendant’s seventh- and
eighth-grade mathematics and science teacher at a Catholic junior high
school. She observed that defendant was not “able to interact with the
other junior high students in a way that [she] would expect a seventh
grade student to interact.” Thus, when assigning students to work
together in lab groups, she had to select a partner for defendant who
could communicate and work with him. He was not able to “banter”
with the other students and took things that they said “very literally.”
His feelings were easily hurt and she saw him “tense up,” “become
rigid,” and have tears in his eyes when this happened. He had no close
friends among the other students, but did stay at school after hours,
as if school were a “safe haven” for him. “One-on-one, with an adult,”
he was “fine.” He was very helpful to the teachers and offered to do
chores such as sweeping and moving equipment.
Turner observed defendant regularly carrying a key ring with as
many as 100 keys on it. He was fascinated with law enforcement and
he would “hop on his bike after school” if he heard a siren. He was
“always talking” about one particular police officer and often wanted
to tell her about things that had happened with the police in town.
Jack Turner testified that he had been the principal of the Catholic
school defendant attended. He found defendant to be “personable” in
a one-on-one conversation. He was “very, very, very infatuated” with
what the police and fire department were doing. However, he was
“kind of a loner, had not matured socially, and as a consequence,”
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Turner thought, he “had a tendency to try and get attention,
sometimes negatively.” Defendant was frequently given detention.
Turner observed no close relationships between defendant and other
students. He sometimes saw defendant trying to join a group of
students in conversation and being rebuffed. Defendant would be
“very hurt,” and he “did not accept rejection very well.” He
participated in no extracurricular activities, but readily volunteered to
help the teachers.
The situation with defendant deteriorated during his eighth-grade
year. Money was missing from the locker room, from bingo receipts,
and from the office. Turner suspected defendant. Defendant was
finally caught with “a whole pocket full of keys that belonged to the
school building” as well as keys to multiple pop machines at the
school and elsewhere.
Turner took the matter to the school board, in a meeting that
defendant’s parents attended. Turner’s position was that defendant
should not stay at the school unless he received “professional help.”
He recommended the Newman Center in Quincy, Illinois. At the end
of the meeting, defendant’s parents knew that if they took defendant
to the Newman Center or a similar facility for treatment, he could
come back to the school. Shortly thereafter, Turner received a request
to transfer defendant’s records to a public junior high school.
Nancy Clemonson testified that she had been employed as a school
counselor at the Catholic junior high school defendant attended. She
first met defendant after an “altercation,” in which he wielded his
briefcase against other students. She spoke to him about appropriate
behavior with other students. Later, she recommended to defendant’s
parents that he receive counseling because he was getting into fights
at school.
Linda Burdette testified that she was defendant’s biological aunt
and adoptive sister. She had given birth to her first child, a son, six
months before defendant was born. She had not been aware that her
teenage sister, Jana, was pregnant. Jana had lost some weight earlier
and Linda thought she was just gaining the weight back. Jana had no
prenatal care. She did not take prenatal vitamins. During the
pregnancy, she “smoked like a chimney” and “drank a lot of Pepsi,”
because she did not like milk. Linda urged her sister to give the baby
up for adoption, but encouraged her to see him before making her
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decision. Jana was “very angry” that the hospital initially substituted
another baby for her to see. Linda did not think it was a good idea for
her parents, then 49 and 50 years old, to adopt the infant. She and her
husband considered adopting him, but did not feel that they could
afford to care for another child.
Linda explained that her parents intended to tell defendant that he
was adopted, but that they wanted to choose the right time. The other
family members were aware of her parents’ insistence that they be the
ones to tell defendant the truth, but they “just kept putting it off and
off and off” until it was “too late.” When defendant was about eight
years old, the oldest Ramsey sister, Debbie, told defendant that he was
adopted. He has since refused to reveal what she told him or the
circumstances, but he was very upset. Debbie was very jealous of
defendant and Linda opined that she “didn’t tell him very nicely.”
After learning the circumstance of his birth, defendant tried to
form a closer relationship with Jana, his birth mother, who lived
nearby with her husband and four children. Her husband “didn’t care
for [defendant] at all” and did not want him around. Her children were
jealous of him. In the end, he was not “welcome” at Jana’s home.
In addition, defendant lost trust in his adoptive parents. Linda tried
to talk to him and to tell him that he was loved, but he ignored her.
His behavior changed and he became rebellious.
She then spoke about his fascination with keys, radios, and
electrical equipment. Once she cleaned her parents’ house for them
and she found keys and key rings hidden in the curtain valances and
other places. He had “stuffed keys all over the house.” He was also
fascinated with the police scanner and hand-held radios.
Shortly before the events of July 8, 1996, defendant came to
Linda’s house to talk to her about his breakup with Rachel Sloop. She
spent about an hour talking to him. He wanted advice on how to
reconcile with Rachel and said that he intended to buy her a gift. Linda
advised against it, explaining that he could not “buy” love. Instead,
she recommended that he write her a card or letter explaining his
feelings. He came back to see her on July 3, 1996, and told her that he
bought a ring for Rachel. Linda was busy preparing for the holiday,
and did not give him the time and attention he needed.
Linda stated that she visited defendant in prison once a week and
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that she once asked him how he felt about what he had done. He
became very upset with her questioning him about his remorse and
said that he thinks about what he did “every day.”
Roy Bell testified that he was a paramedic in Keokuk until 2002.
He stated that when he was on ambulance calls, defendant would
“come and see if we needed any help.” Sometimes defendant would
arrive at the scene before the ambulance. Defendant also came to the
garage where the ambulances were housed. Bell would occasionally
allow defendant to get equipment from the truck or to help lift a
patient on a backboard. Bell encouraged defendant to take the test to
become an EMT.
Richard Marlin testified that when he was employed as a juvenile
court specialist in the early 1990s he twice supervised defendant when
he was ordered to perform community service. Groups of young men
would be assigned to pick up trash or set up tents for community
events. Defendant was a hard worker. He followed instructions and
never complained about the work. Unlike some of the other young
men, defendant was always on time. Marlin stated that he could not
turn his back on defendant because the other boys would “knock him
upside the head.” They did not like defendant, who had problems
fitting in. If Marlin had to leave the work site, he had to take
defendant with him because the other boys “would do something to
him.”
Dr. Ruben Gur was accepted as an expert witness in the fields of
psychology and neuropsychology. He provided a lengthy description
of the structure of the brain, the functions of the various portions of
the brain, and how the brain develops.
Dr. Henry Conroe was accepted as an expert in the field of
psychiatry. He testified that he was asked to evaluate defendant to
determine if he had any mental disorders that might have affected his
behavior in July 1996. He reviewed records regarding the crimes
including defendant’s videotaped statement to the police, records of
interviews with people from the community, and defendant’s medical
and school records. He interviewed defendant for a total of 9½ hours
over a period of several years. He also interviewed defendant’s
adoptive parents, his biological mother, and his adoptive uncle.
Conroe observed that defendant had “difficulty explaining his
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emotions” and that when he did talk about his feelings, there was a
“disconnect” between his facial expression and what he was saying.
He assigned four diagnoses to defendant: “Asperger’s Syndrome,”
“Borderline Personality Disorder,” “Attention Deficit Disorder,” and
a history of “Conduct Disorder.”
He described Asperger’s Disorder as a “mild form of autism,”
which consists of two findings. First, these individuals are unable to
“read” other people’s emotions or cues. As children, they have
problems with their peers and, as adults, they have difficulties in
relationships. Second, individuals with Asperger’s Disorder tend to
have an “intense preoccupation with a very narrow idea *** to the
exclusion of other activities.” They will be “very focused” on this one
idea and “spend tremendous amounts of time over a long period of
time” pursuing it. Asperger’s Disorder was first recognized as a
diagnosis in 1994.
As to the second finding, Conroe found that defendant was
fascinated with communication equipment, particularly as related to
police, firefighters, and emergency responders. His family reported
that this interest began when he was only seven or eight years old. His
brother provided a file that defendant kept as a teenager in which he
recorded names and information regarding people in the community.
At that age, he saw himself as “being an officer in some sort of
security company.” He described defendant’s interest as an “intense
preoccupation.”
As to the first finding, Conroe stated that defendant’s family
members described his difficulty reading their feelings. He did not
relate well to other children, but did better with adults because they
were more patient with his difficulties. The school reports that Conroe
reviewed were consistent with this finding. Defendant was described
as easily upset, mumbling to himself, and having social problems. His
teachers also observed that he was “preoccupied with gadgets” and
that he carried an “FBI badge,” which was actually an old calculator
case. One teacher described defendant as “confused” and “sad” and
having a “short fuse.” She said he was “very sensitive to rejection”
and she considered him “a disaster waiting to happen.”
A person with Borderline Personality Disorder, Conroe explained,
feels abandoned and, thus, rejected. Such a person has unstable
moods, is impulsive, and may have a problem managing anger. In
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addition, the person may have “two conflicting aspects of themselves.”
In defendant, Conroe observed five of eight diagnostic criteria for this
disorder, which is sufficient to make a diagnosis. At a young age, he
learned that he was rejected by his birth mother and adopted by his
grandparents, causing his sense of abandonment. At this time in his
life, there was a “significant deterioration in his behavior,” including
increased anger as reported by his family members and his teachers.
His confusion about his family relationships–learning that the people
he believed to be his parents were his grandparents and that his sister
was really his mother–“could, in a vulnerable individual, cause a great
degree of confusion about who and what they are.” His emotions were
“very easily set off.” For example, his reactions to the breakup with
Rachel Sloop included depression, anger, and tears. Defendant himself
described this period as a “roller coaster.” The two letters that
defendant wrote to Rachel prior to the offenses but did not send to her
revealed feelings “of rejection, anger, suicidal thought, and
abandonment.” The letters were admitted into evidence.
Attention Deficit Disorder (ADD) is seen in children who have
difficulty focusing in school. They are easily distracted and have
problems organizing their behavior and completing tasks. ADD leads
to stress, low self-esteem, and compromised problem-solving ability.
Treatment may include medication, counseling, and special education.
The condition may persist into adulthood. Records from several
schools and from the Eldora facility described defendant in these
terms. While in school, he was evaluated for ADD, but he never
received treatment.
Conroe also reviewed defendant’s medical records, including the
record of his birth, which showed that his teenage mother had
received no prenatal care.
An intake assessment from the River Center for Community
Mental Health, dated December 9, 1991, described defendant at age
13. A psychologist noted that defendant had problems with anger and
peer relationships, particularly after learning that he had been adopted
by his grandparents. He got along with older people, but not others his
own age. Conroe described this as “typical of Asperger’s.” His
adoptive parents described him as having few friends and said that
they did not know what would “provoke him.” He was not physically
violent, but would become “very verbally angry.” Defendant told the
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psychologist that he wanted to be a police officer or a firefighter.
A report from a psychologist who treated defendant supported
Conroe’s diagnosis of Borderline Personality Disorder. The
psychologist stated that defendant liked to talk about listening to
police scanners and being around policemen, but that he became
“quite uncomfortable” when asked about his discovery that he was
adopted. According to Conroe, this showed “how emotionally
charged this was” for defendant and that he did not “have the ability
*** to use that therapeutic session to handle the feelings.”
In a later report, the same psychologist reported that therapy was
being terminated because defendant’s adoptive mother was unable to
afford further treatment. Defendant was disappointed and stated that
he had become “really comfortable” with the therapist. He tried to
persuade his mother to change her mind. In the psychologist’s
opinion, the mother felt threatened because the therapy had begun to
focus on defendant’s lack of a relationship with his birth mother. At
the end of the session, defendant was close to tears and “trying hard
to stifle his emotions.” Conroe opined that this record showed
defendant “had some ability to make use of a therapist,” but that
“external circumstances interrupted therapy.”
In 1992, a psychiatrist at the State Training School in Eldora,
Iowa, diagnosed defendant with ADHD and Undifferentiated Conduct
Disorder. He recommended treatment for the ADHD with a stimulant,
such as Ritalin. The report also described defendant as being “very
immature” and as having difficulty “establishing and maintaining
appropriate relationships with peers.” His IQ was within the average
range, but he was “inept socially, attention seeking,” and his behavior
was “a little odd.” One worker at Eldora said that defendant did not
learn from his experiences with his peers. For example, he would
continue telling his stories even after his peers would tell him that they
did not want to hear any more. Conroe said that this behavior is “very
characteristic of someone with Asperger’s. They don’t get the clues
or the cues from other people.” The report from Eldora concluded
that defendant would benefit from a “highly structured program.”
Conroe concluded that on July 8 and 9, 1996, the disorders he
diagnosed had “an extreme affect” on defendant. They affected his
ability “to make judgments, to manage his feelings, to make decisions,
to deal with the feelings that were welling up within him that were
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[described] in these two notes” that he had written to Rachel. “So he
was under extreme duress at that point from these disorders.”
Defense counsel asked Conroe whether these “mental disorders”
could also be characterized as “mental disturbances.” He answered,
“Yes.” The State objected and the court instructed the jury to
disregard the question and answer.
Conroe opined that defendant was remorseful for his actions, as
shown in his videotaped confession and by the fact that he was “visibly
shaken” when speaking to Conroe about the events. He did not try to
“explain it away or rationalize it” or “make excuses.”
On cross-examination, Conroe acknowledged that another
psychiatrist, now deceased, had been hired by the defense to evaluate
defendant prior to his becoming involved in the case. That psychiatrist
did not diagnose defendant with Asperger’s Disorder, Borderline
Personality Disorder, or ADD. Instead, that psychiatrist diagnosed
Antisocial Personality Disorder. Conroe was questioned regarding the
diagnostic criteria for this disorder and whether defendant met these
criteria.
The first criterion is failure to conform to social norms with
respect to lawful behavior as indicated by repeatedly performing acts
that are grounds for arrest. Conroe admitted that defendant meets this
criterion. The second criterion is deceitfulness as indicated by repeated
lying, use of aliases, or conning others for personal profit or pleasure.
Conroe acknowledged that defendant displayed some of this behavior,
but “not in a pervasive manner which is necessary for the diagnosis to
be made.” He also noted that defendant has been incarcerated since
the crimes and has not committed any antisocial acts while in custody.
Conroe agreed that the third criterion, impulsivity or failure to plan
ahead, was present but insisted that the fourth criterion, irritability or
aggressiveness as indicated by repeated physical fights or assaults, had
not been a problem since defendant’s incarceration. He noted that
fights are common in jails and prisons, despite efforts to control
inmates. Again, with respect to the fifth criterion, reckless disregard
for safety of self or others, Conroe’s position was that defendant had
not displayed this trait while incarcerated and that because the second,
fourth, and fifth criteria were not “pervasive” in his conduct, even
while in custody, the diagnosis of Antisocial Personality Disorder did
not apply.
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Conroe also acknowledged that violence against others is unusual
in persons with Asperger’s Disorder and that defendant’s
preoccupation with police communications and police procedure,
while it could be seen as reflective of Asperger’s, could also be seen
as a means of acquiring information that would be useful in
committing crimes.
Dr. Terry Killian testified as an expert in the field of psychiatry. He
explained that he had initially been contacted by the prosecution to
evaluate defendant, but had been called to testify by the defense. Prior
to meeting with the defendant in February 2003, he reviewed police
reports related to the crimes, reports of interviews with witnesses,
school records, and records from the various facilities and programs
that had been involved with defendant. The interview lasted for four
hours. His primary diagnosis was ADHD. He also diagnosed a past
history of Conduct Disorder, explaining that the diagnosis, by
definition, applies only to patients under the age of 18.
Killian explained the difference between ADD and ADHD. Not all
children with ADD are hyperactive. Boys are more likely than girls to
have ADD and are more likely to be hyperactive. In his opinion,
defendant’s records described a child with ADHD, despite no
diagnosis being offered until his teen years. He was never treated for
ADHD.
Several years after performing his initial evaluation of defendant,
Killian was again contacted by the State and asked to review
additional psychological and psychiatric reports regarding defendant.
The files that he obtained at that time included reports of numerous
interviews that he had not seen previously. He then interviewed
defendant for a second time in November 2006. He diagnosed ADHD
and a history of Conduct Disorder, but also diagnosed Asperger’s
Disorder and Depressive Disorder, not otherwise specified, probable
Personality Disorder with dependent features, and Nonverbal Learning
Disorder.
Killian described the diagnostic criteria for Asperger’s Disorder
including “qualitative impairment in social interactions,” which may be
manifested by: the marked impairment in use of nonverbal behaviors
to regulate social interactions, the failure to develop peer relationships
appropriate to the individual’s age, or lack of spontaneous sharing of
one’s interests, activities, or achievements with others, and a lack of
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social or emotional reciprocity. If two of these four manifestations is
present, this criterion is met.
The records he reviewed, in his opinion, revealed that defendant
manifested the second and fourth traits. He did not have age-
appropriate friends because other children and teens saw him as “odd”
and he lacked the ability to reciprocate socially or emotionally with
others because he did not understand his own or other people’s
emotions.
The second criterion described by Killian was “repetitive and
restricted and stereotyped patterns of behavior,” manifested by any
one of four behaviors: “an encompassing preoccupation with one or
more activities that are abnormal in either their intensity or their
focus,” “inflexible adherence to nonfunctional routines or rituals,”
“repetitive motor mannerisms” causing “clinically significant
impairment,” or a “preoccupation with taking things apart.” Killian
opined that defendant had an “encompassing preoccupation” with
“everything that had to do with police work and emergency services.”
A “lot of the trouble he got into during his teen years” was, according
to Killian, related to this preoccupation. He described defendant’s
interest in these matters as “very significant and abnormal.”
A third criterion, “significant impairment in social, occupational,
or other important areas of functioning,” was also met. Defendant was
significantly impaired in his social interactions. Three other criteria
were not applicable to defendant, but Killian stated that the requisite
number of criteria were met to make the diagnosis of Asperger’s
Disorder.
After his 2006 evaluation of defendant, Killian wrote in his report
that defendant had “Probable Antisocial Personality Disorder.” He
explained that “antisocial” means that the individual “violates other
people’s rights frequently and typically without remorse.” He made
the probable diagnosis because he found that defendant “without
question” met the requisite number of criteria for the diagnosis.
Defendant repeatedly disregarded and violated the rights of others
starting by the age of 15; he was irritable and aggressive; he
repeatedly failed to conform his behavior to social norms of lawful
behavior; and he engaged in deceit. However, Killian noted, he did not
see in defendant “what pretty much everyone I’ve ever read says is the
core of the antisocial personality,” that is, “the repeated violation of
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other people’s rights without remorse.” Killian concluded that
although defendant “technically” meets the diagnostic criteria, he has
repeatedly expressed sorrow for the crimes and is “emotionally
distraught” when he describes them. Thus, he stated, the diagnosis
likely does not apply to defendant. He also observed that antisocial
conduct does not cease merely because the individual is incarcerated
and he noted that there were no reports of such conduct by defendant
while in jail.
In conclusion, Killian opined that at the time of the offenses,
defendant had all of these disorders and that his mental illnesses
impaired his judgment. He had a “substantial disorder of thought,
mood, and behavior,” which caused him difficulty in recognizing his
own emotions and those of other people.
On cross-examination, Killian acknowledged that at the time of the
offenses, defendant was “not impaired by a psychiatric condition that
would have made him unable to appreciate the criminality of his
behavior.” Further, he was “clearly able” to plan and make decisions
and that he committed the crimes “out of anger.” His Asperger’s did
not cause his anger or possessiveness of Rachel Sloop, but “played a
role” although his “deficits were certainly not severe.” He also
acknowledged that defendant was not acting under any delusional
beliefs or manic symptoms. He knew what he was doing, even though
he was unable to describe why he did it.
Killian was also questioned regarding the records of defendant’s
psychiatric treatment while at State Training School. The psychiatrist
there found “no evidence for any serious mental disorder which would
impair his ability to be responsible for his behaviors.” Another
counselor described defendant as resisting treatment and seeing
counseling as a “kind of game to see how long he could go without
really telling the counselor anything.”
The records reviewed by Killian also revealed that defendant
described the mental health treatment he had received as a youngster
as a “pain in the ass” and as a “game of cat and mouse.” He did not
feel that he had ever derived any benefit from treatment and said that
he never felt the need for mental health treatment.”
With regard to the Asperger’s diagnosis, Killian agreed that this
condition does not “make people particularly prone to committing
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crimes.” He stated that defendant’s Asperger’s is “relatively mild.” A
reasonable mental health professional could conclude that his
symptoms, while present, are not sufficient to warrant the diagnosis.
He noted that defendant’s symptoms are “sustained,” but are not
“severe.”
With regard to the Antisocial Personality Disorder diagnosis,
Killian acknowledged that lack of remorse is but one of seven
recognized symptoms and that an individual could be diagnosed with
the condition if he manifested three of the other six symptoms. Thus,
Killian explained, he qualified his diagnosis as “probable” and, if
indeed present, the condition is “mild.”
The final witness in mitigation was Joyce Ramsey, defendant’s
biological grandmother and adoptive mother. She testified that she
loves her son, in spite of the “terrible thing” that he did, and that she
visits him in jail once a week and speaks to him on the telephone two
or three times a week. She regrets not having told him “right from the
start” that he was adopted.
Capital Sentencing Hearing–Evidence in Rebuttal
Dr. Vallabhaneni, a psychiatrist, testified as an expert witness. He
first interviewed defendant in August 1997, when he was a staff
psychiatrist at Menard Correctional Center. He found defendant to be
alert and oriented, with no sign of mental illness and no intellectual
impairment. Defendant was coherent and cooperative. His mood,
affect, and thinking were normal and he exhibited good
communication skills. He did not diagnose any mental disorders,
including ADHD.
On cross-examination, Vallabhaneni acknowledged that he had no
independent recollection of his contact with defendant and that he
typically spent 15 to 30 minutes evaluating a new inmate. He had no
further contact with defendant after the initial evaluation.
Patrick Ewing, a clinical psychologist who treated defendant in
1992, testified as an expert witness. Defendant was referred for
treatment after his release from the State Training School in Eldora.
A psychiatrist there suspected that defendant had ADHD. Ewing
testified that he did not diagnose defendant with ADHD because he
did not see symptoms consistent with that diagnosis. He was
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“interactive” and “cooperative.” He was “open in providing
information” and Ewing did not observe any indication of significant
emotional distress or hyperactivity. Defendant told Ewing that he had
been arrested for impersonating an officer. The “two main themes”
they discussed were his anger at his father for allowing the search in
which police found a gun defendant had stolen and the trauma of
being told by a cousin that the people he believed to be his parents
were really his grandparents. Ewing’s diagnostic impression after his
initial evaluation of defendant was Conduct Disorder, which is
basically a descriptive term referring to violating the rights of others
and of society’s norms and rules.
Ewing saw defendant again a week later and again found him to
be “very communicative” and “very interactive.” He enjoyed talking
about his interest in police work. He described his “being assigned
some important position or status by people in the community.” He
had a strong interest in listening to police radio and “immers[ed]
himself in that culture.” During this second visit, defendant had a pair
of handcuffs with him, which he “proudly displayed.” Ewing
attempted to obtain a release from defendant’s parents to speak to a
police officer who knew him because he thought the officer might be
a resource to use in a positive way in defendant’s therapy. Defendant
became very angry at this suggestion and stormed out of the office.
Ewing’s notes from their third session indicated that defendant
was “a keen observer of many behaviors and situations when they
relate to *** being in a position of power or control.” Defendant used
this information to present himself as being in a position of authority.
At a later session, defendant brought a key ring with 35 keys on it.
Ewing noted that defendant was angry that his parents were
imposing limits on his behavior and that Ewing was supporting and
encouraging them in this effort. Defendant stated that he would not
accept such limits.
Eventually, defendant’s mother told Ewing she was going to move
defendant to another therapist, citing financial problems. She also
expressed her opinion that Ewing was being “unfair” to defendant
because of the limits he proposed the parents set on his behavior.
Defendant was upset about this decision. He was fighting back tears
and said that he was going to talk to his mother about changing her
decision.
-35-
Defendant resumed therapy with Ewing in August 1994, after he
had been arrested for a break-in and sent to a residential facility. He
had joined the school football team at the suggestion of his probation
officer and was surprised at how well he got along with the other
members of the team. He still did not want to talk about how he found
out about his adoption and who his natural mother was, but was
willing to discuss his dating relationship at that time. Ewing noted that
social acceptance had been a very positive influence on his self-
esteem.
With regard to Asperger’s Disorder, Ewing testified that although
he was familiar with the disorder, he had not been aware of it when he
was treating defendant in 1992 through 1994. The diagnosis was not
recognized until 1994. In retrospect, however, he did not believe that
the diagnosis applied to defendant. The Asperger’s patient has a
difficult time reading other people, while defendant could “effectively
con” people. Ewing described defendant at that time as being “pretty
fluent in his interaction” with other people.
Mental health counselor Mike Maher testified as an expert
witness. In 1992, Maher treated defendant at the River Center for
Community Mental Health, after he was referred to the Center by the
juvenile court office. Maher observed that defendant, who had
previously been seen at the Center by another counselor, was “not
overly receptive” to being there as a condition of his probation for
theft. Defendant was 14 years old. At the initial interview his behavior
was “grandiose and narcissistic.” He had no difficulty communicating,
but appeared to feel as if he were “above the law.” At the same time
that he was “preoccupied with police matters,” he felt as if he could
do things that were illegal. He was defiant and rebellious, perhaps
related to his “family distress.” Maher opined that defendant liked to
push the limit “to see how far he could go, what he could get away
with.” Maher noted in his written evaluation at that time that while
defendant did not “pose an immediate threat,” “the potential for
aggressive acts seemed possible given his ability to justify or
rationalize the things that he was doing.”
Maher noted “an open hostility towards both biological parents,”
with whom defendant did not want to have any contact. The
information provided to him by the probation officer stated that
defendant’s adoptive parents were “intimidated and fearful of him, and
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that he gets by with a lot of inappropriate behavior.”
Maher had also reviewed the records from Eldora, which indicated
that defendant was “shunned by his peers” there for his “grandiose and
exaggerated stories/behavior” and that he had been caught going
through a social worker’s desk while at that facility.
Maher diagnosed defendant with Conduct Disorder,
undifferentiated, moderate to severe, which he described as “a cluster
of behavioral symptoms representing violations of age appropriate and
legal societal norms.” Except for the psychiatrist at Eldora who
diagnosed defendant with ADHD, Maher was not aware of any other
professional who had made that diagnosis.
The treatment plan that Maher developed for defendant in 1992
was admitted into evidence. This plan noted defendant’s strength as
his willingness to discuss his situation. His weakness was that “he saw
nothing inappropriate or nothing wrong with his inappropriate and
many times illegal behavior.” In 1993, Maher documented defendant’s
progress. Defendant “continued to manifest oppositional behavior”
and was unwilling to engage in treatment. In addition, there was a
“lack of support from his grandparents to enforce behavioral
objectives.”
At the conclusion of one counseling session, Maher wrote: “Client
is extremely manipulative and seeks to avoid responsibility for any of
his behavior.” At a later session, Maher observed that during their
sessions, he and defendant “learned that a significant motivating factor
for his decision making process is that anything providing him a sense
of power or influence or authority over people is very alluring to him.”
With respect to Asperger’s Disorder, Maher testified that he was
familiar with the diagnosis from his continuing education training and
that he has seen children with this diagnosis. He stated that he could
make the diagnosis, but that he saw “no evidence” of Asperger’s in
defendant.
Capital Sentencing Hearing–Sentencing
In its closing statement, the State urged the jury to focus on the
“facts and circumstances of the defendant’s horrible crimes” and the
“many decisions and choices” that he made while carrying out his
crimes. The prosecutor argued that the two mental health counselors
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who best knew defendant, Maher and Ewing, rebutted defendant’s
mental health evidence. He noted that defendant brought a gun with
him on the evening of July 8, 1996, and had it under the seat of his car
when he went for a drive with L.M. That drive lasted only a few
minutes–long enough to travel 1.6 miles–and ended when defendant
pulled off the road near an empty grain bin that was surrounded by
dense vegetation and then drove his car over 100 feet further off the
road to park behind the bin. This, according to the prosecutor, was
not “a haphazard, accidental, random thing.” Similarly, defendant
“very calculatingly and deliberately concealed her body in that grain
bin off the road where she could not easily or quickly be found.”
The prosecutor also questioned the testimony that defendant went
to the Sloop home that night to commit suicide. If his intent was to
kill himself, he would not have needed to scheme to get the adults out
of the house. Rather, the prosecutor suggested, defendant’s motive
was to confront Rachel, to see if what Michelle Haist and L.M. had
said about her feelings for him was true, so that he could decide if she
deserved to die.
The prosecutor noted that defendant drove at a high speed to the
Sloop home, so that he could be sure the adults had left. He turned his
headlights off and waited by the side of the road “like a predator
stalking his prey.” This conduct was not “impulsive, random, crazy”;
it was “calculating,” “cold,” and “methodical.”
Further, if he had intended to commit suicide there, defendant
would have simply pulled his car in the driveway. Instead, he drove
400 feet past the driveway and approached the house on foot, through
a cornfield, bringing wirecutters and a flashlight. His cutting of the
telephone wires was also inconsistent with his professed intention to
commit suicide.
The prosecutor argued that after Rachel failed his test and he shot
her, defendant shot Lonna Sloop because she could have identified
him. Similarly, he shot the two children because they knew him and
could have identified him, even though they had not seen him because
they were in an upstairs bedroom.
Because defendant and Rachel had, by this time, seen the
headlights of an approaching car, escape was not possible. His “half-
hearted, lame attempt to supposedly commit suicide” was belied by all
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of his “acts of planning *** concealment and deception” earlier that
night. Further, his cooperation with the police was the result of his
being caught “red-handed.” There was “no mystery” about whom
L.M. was with that night or about who shot four persons in the Sloop
home. Thus, his cooperation with police was one more instance of
defendant’s manipulative conduct.
The prosecutor then summarized the statutory aggravating factors
for the jury and argued that several of the factors were met. The
prosecutor argued further that the evidence in mitigation should be
given little weight.
Defense counsel began by explaining that mitigation is not
intended to provide an excuse for a defendant’s actions, but that such
evidence should be used to determine whether death is the appropriate
penalty. He urged the jury to focus not just on what defendant did, but
on his life and on “what happened to him in his formative years that
took him to that point.” Defendant’s expert witnesses established that
he was “a mentally ill young man” and that his illnesses “impaired his
judgment.” He argued that the testimony of these board-certified
psychiatrists was more credible than that of the State’s witnesses.
Defense counsel also noted the decisions that affected defendant’s
life over which he had no control: his birth to a teenage mother who
did not receive prenatal care, her reversal of her initial decision to give
him up for adoption, his adoption by his grandparents and their
decision not to tell him of his adoptive status, the manner in which he
learned of his adoption, his parents’ refusal to provide recommended
speech therapy as a child, their refusal to give him recommended
medication or to place him in the recommended treatment facility, and,
finally, his removal from therapy with Patrick Ewing at his mother’s
insistence.
Counsel also emphasized defendant’s acceptance of responsibility,
including his guilty plea. In addition, counsel noted defendant’s youth
and the expert testimony that he was not fully mature when he
committed these crimes.
After brief rebuttal by the State, defendant was allowed to make
a statement. He expressed sorrow for his actions and for the pain he
caused. He stated that although he could not change what he did in
the past, he has since “tried to make the right decisions.”
-39-
The jury was instructed and, after deliberation, rendered a
unanimous verdict that death is the appropriate sentence. The court
found that the record supported the jurors’ finding and imposed the
penalty of death. At a subsequent hearing, defendant was sentenced
on the remaining counts. Defendant’s posttrial motions to withdraw
his guilty plea and to reconsider sentence were denied by the trial
court after a hearing.
ANALYSIS
I. Applicability of Amended Supreme Court Rule 701
On July 11, 1996, the court appointed James Dennis to represent
defendant, and Dennis continuously represented defendant throughout
these proceedings. Defendant was also represented at his retrial by
John Carter, who was appointed by the court in February 2001.
Defendant first argues that he is entitled to a new sentencing hearing
because neither of his trial attorneys were members of the Capital
Litigation Trial Bar (CLTB). He points to Supreme Court Rule
701(b), which states in pertinent part: “However, no person, except
the Attorney General or the duly appointed or elected State’s
Attorney of the county of venue, may appear as lead or co-counsel for
either the State or defense in a capital case unless he or she is a
member of the Capital Litigation Trial Bar provided for in Rule 714.”
188 Ill. 2d R. 701(b). This requirement was added to the rule on
March 1, 2001, by an amendment that also provided: “The amendment
to paragraph (b) shall be effective one year after its adoption, and shall
apply in capital cases filed by information or indictment on or after its
effective date ***.” Thus, the amended rule became effective March
1, 2002, and applies to all capital cases filed on or after that date.
Defendant was charged by indictment on July 9, 1996, and by
amended indictment January 23, 1997. In February 2001, Judge
Stephen G. Evans, who was then presiding and who had presided over
defendant’s first trial, contacted the attorneys for both defendant and
the State. Judge Evans called the parties’ attention to several recent
news articles on the proposed creation of the CLTB. Although Judge
Evans’ letter indicates that he had not yet seen the proposed supreme
court rule changes, he nonetheless expressed concern:
“While the Ramsey case was filed in 1996, I do not know
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whether these rules are retroactive; however, with the strong
policy positions taken in Illinois by the Governor, the Illinois
Supreme Court, and the Task Force recommendations, I
suggest that we take a very close look at the application of
these new rules to this case.
As presiding judge at the first trial, I believe that all
counsel performed very well. Based upon those observations,
and what has occurred since the remand from the Illinois
Supreme Court, I personally believe it would be in Mr.
Ramsey’s best interest to proceed with his present counsel.
However, none of us want to participate in any error in the
upcoming trial.”
The court therefore instructed the attorneys to find out whether
the proposed rule changes would apply to them and to take any
necessary action: “I request that counsel promptly make inquiry as to
how new Supreme Court Rule 714 may apply in People v. Ramsey. I
also request that if applications for admission to the Capital Litigation
Trial Bar are required, that same be pursued.”
On February 23, 2001, at a hearing before Judge Evans, the judge
again raised his concern about the forthcoming rule changes,
indicating that he “would like to make a formal record at this time that
would address the experience of counsel, and have that of record.”
The court then asked each of the attorneys present to recite his or her
experience. After the State’s attorneys had spoken, defense attorney
Dennis told the court, “I have read some of the articles in the
newspaper about the expected qualifications, and I believe I meet
those qualifications.” Dennis went on to explain that he had been
practicing law since 1978, and he believed the new rules would
require five years of practice experience. He also stated that he had
tried “eight or more” felony cases before a jury, including the first trial
in this case and one other murder case. Defense attorney Carter, who
was then the chief public defender for McDonough County, Illinois,
stated that he had been admitted to practice law in Illinois since 1982.
He further stated that he “believed” that he had served as either co-
counsel or lead counsel in more than five felony cases tried before a
jury, although he could not remember precisely how many, and he had
been “second counsel” in one murder case. Judge Evans responded
that he believed Carter could meet the proposed rules’ requirements
-41-
based on the cases Carter had tried before him alone. The court then
found, “With respect to what has been recited by counsel, it appears
that you all qualify under what I believe the terms will be of the
proposed Supreme Court Rule for admission to the capital litigation
trial bar. I do make those findings for the record at this time.”
On November 21, 2002, the issue was raised before Judge William
D. Henderson at a scheduling hearing. The State expressed continuing
concern about the application of the amended rules to this case:
“Judge, there is one issue here that I would like to raise and
that is in regard to capital litigation certification of the
attorneys involved.
***
And as we all know those new Supreme Court Rules are
now in effect which require the certification of all attorneys.
The statute, in my mind, clearly does say that it only applies to
cases filed after the effective date.
However, in the last year and half or so, virtually every
opinion coming out of the Supreme Court on a death penalty
case has had a very strong dissent in which the two dissenting
justices have indicated that if it were up to them they would
reverse every case in which a non-certified defense attorney
participated.
***
Just this week 650 attorneys from throughout the state
submitted a petition or letter to Governor Ryan urging that all
cases be commuted, the 160 or so death penalty defendants,
because of the fact that they were not tried with the present
rules in effect.
***
I think in the present situation with the death penalty I
think it would be a smart move to simply have the attorneys
on this case get certified prior to trial.”
In response, Dennis told the court, “If this is a real issue for the
State, and if the state’s attorney agrees with 650 lawyers, one way to
resolve it is to have the State take death off the table and *** and just
try it as a regular murder case.” The State indicated that it did not
-42-
intend to do so. The court then acknowledged that it had not
considered the new rules in the context of this case, although “this
case was filed well before the new rule.” The court concluded that it
would “take a look at it,” but it instructed the State, “if you are going
to attack the defense counsel on that basis, you should get a motion
on file very quickly.” The State responded that it had no intention of
“attacking” them, but that it wanted to bring the issue to the attention
of the court and the parties.
On January 16, 2003, the question came up again in proceedings
before Judge Steven R. Bordner, who had been recently assigned to
the case. Judge Bordner asked all of the attorneys whether they had
become members of the CLTB, and upon finding that neither defense
attorneys had, he said, “Counsel, I have not been confronted with
circumstances in which we are this close to a capital trial in which
neither counsel have been certified in this matter. Is it your intention,
counsel, to be certified prior to trial?” Dennis responded, “Your
Honor, I hadn’t intended to do that. My understanding was because
I was appointed and we had the case started prior to the new rules
that wasn’t required. No other judge that has been involved in the case
has made it a requirement, and so I have not qualified.” The court
asked the parties to brief the issue, saying,
“I would not want to repeat or replace any of these matters
pending before the Court on a simple technical issue involving
qualification of counsel.
***
I would suggest, counsel, that if there is a significant
question[,] that if you believe you would be certified by the
Capital Litigation Committee[,] that you proceed with an
application in order that that issue is finally resolved.”
Counsel did not apply for membership to the CLTB. Instead, in a
letter submitted to the court and dated January 22, 2003, defense
counsel maintained that the amended supreme court rules did not
apply to this case: “It is our position that the Supreme Court Rules
requiring membership in the Capital Litigation Trial Bar do not apply
to the Daniel Ramsey case, as the amended information in this case
was filed prior to the adoption of the rule.”
In a hearing on February 26, 2003, the court stated,
-43-
“The materials which were forwarded to me suggest that the
rule, the Supreme Court Rule 701, applies to capital cases
filed by information or indictment on or after the effective date
of the rule which is March 1, 2001.
It appears further to the Court that these matters precede
the effective date of Supreme Court Rule 701, and, thus, the
application of the rule 701 is not appropriate to this case.”
However, the State continued to express concern that neither
Dennis nor Carter had applied for membership to the CLTB:
“The problem the People see, Your Honor, is that almost two
years ago Judge Evans, who was the judge in this case at the
time, brought this matter to counsel’s attention. Two years
have passed, and that’s a substantial period of time for counsel
to become members of the capital litigation bar.
They have not done so. And it concerns the People that in
the event there would be a conviction in this case, in the event
there would be a capital sentence in this matter on appeal that
the appellate court would look at us in the year 2000–what we
did in the year 2003, after this matter being around for so
long, and wonder why counsel were not required to submit
application to the bar.
And so we think that this is a matter that is important
enough that it should be addressed before any other action is
taken in this case.
***
And we think the opinion of the defendant is relevant in
this matter. We think that [the amended rules] allow for the
court to inquire of the defendant in this type of thing.”
In response, Dennis explained that Judge Evans’ 2001 letter had
not asked counsel to join the CLTB: “It was obvious to me as a result
of that letter that if we were required to [join the CLTB], then Judge
Evans was directing us to do that. It then became obvious to Mr.
Carter and myself that we were not required to do so.” He also
objected to the State’s request to again document counsel’s
credentials:
“If the State is so worried about this case and our
noncertification as members of the capital litigation bar, the
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way we resolve it is to take that off the table. They have that
in their power and they could do it. If this is a big problem that
they have got an overwhelming concern of theirs unresolved,
take death off the table, and there is no problem.
Now we are getting down to the last hour and all of a
sudden it sounds like–if it’s not directly a motion to remove
attorneys, it’s basically what they’re wanting to do; or they are
wanting the defendant to say, [‘H]ey I want a continuance
because now the State is making me afraid to go to trial with
these attorneys.[’] That’s not fair.
And I don’t think Mr. Ramsey has to be put on the record
either. If he were wanting to represent himself then, obviously,
he would have to put it on the record, but that’s not the case.
And I just think we are wasting the court’s time.”
After both parties had been heard, the court opined that the
amended rules did not apply, saying:
“The Supreme Court, it seems to me and in conjunction with
the legislative mandate has applied these rules prospectively
and not retrospectively.
***
However, the Court will do two things to make a record
in this matter. One, it will at this time make a finding that the
attorneys in this case are experienced and have sufficient
training to represent the Defendant in this matter so that a fair
trial will result in this case.
And further, the Court will take judicial notice of this and
the prior proceeding in which the qualifications of counsel
were addressed either by way of letter, representation on the
record or by way of other materials.
That is the basis for the court’s finding in this matter that
defense counsel are qualified to represent the defendant. The
Court will further require that defense counsel supply an
affidavit for the record in this matter which would generally
outline their experience.”
The court did not question the defendant about his counsel,
noting,
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“The Court will not do so because the defendant is not entitled
to the attorney of his choosing. He is entitled to experienced
and competent counsel. The court will make a finding that he
has experienced and competent counsel; that Supreme Court
Rule 701 does not apply retroactively; and to the extent that
the defendant is not entitled to an attorney of his choosing;
and the court having made that finding, his opinion is not
controlling in this matter.”
The affidavit detailing Carter’s experience, filed March 14, 2003,
indicated that he had been licensed to practice in Illinois since 1982
and in Missouri since 1988. He averred that he had never been
disciplined in either jurisdiction, and that his performance had never
been criticized by a reviewing court. Since his admission to the Illinois
bar, he had spent more than four years as an assistant public defender
in Knox County, Illinois, and he had been the chief public defender in
McDonough County since 1989. In that time, he asserted, he had
handled “hundreds if not thousands of traffic, misdemeanor, and
felony cases,” and that he had “tried numerous cases to jury verdicts,”
although he could not recall the exact number. Dennis’s affidavit does
not appear in the record.
Three years later, defense counsel were still not members of the
CLTB. On June 23, 2006, the State filed a motion entitled “People’s
Motion to Determine Defense Attorneys’ Qualifications to Represent
Defendant in a Capital Case,” in which it asked the court to “ensure
Defendant’s trial counsel possess the ability, knowledge, and
experience to represent Defendant in this matter in a competent and
professional manner.” The State maintained that the amended rules did
not apply, but requested another finding of record that counsel was
competent to represent defendant:
“Since this case was filed by information and amended
information before March 1, 2001, paragraphs (d) and (f)(I)
[of Rule 416] do not apply to this case.
Nonetheless, the interests of fairness require that, in capital
cases such as this case, the People and the Court have a duty
to ensure that the proceedings are fair and that the Defendant
is represented by trial counsel who possess the ability,
knowledge and experience to represent Defendant in this
matter in a competent manner.”
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The State acknowledged the previous discussions of counsel’s
qualifications, but it again requested that the court “put into the record
both defense attorney’s qualifications to represent a defendant in a
capital case consistent with Supreme Court Rule 714,” and “[v]erify
with Defendant his desire to proceed to trial with counsel who are not
members of the Capital Litigation Trial Bar as established pursuant to
Supreme Court Rule 714.”
Defense counsel responded to the State’s motion, listing the prior
proceedings and correspondences in which their qualifications had
been examined. They argued that further proceedings on the issue
were not necessary because there had been no new developments.
They agreed with the State’s assertion that the amended rules were
“not applicable to the present case.” In the attached memorandum,
counsel concluded, “Rule 416 and the cited cases make it clear that
the attorneys in the present case are not required to be certified as
members of the Capital Litigation Trial Bar.”
On August 18, 2006, Judge Stephen C. Mathers held a hearing on
the State’s motion. At that hearing, the State clarified its motion:
“I think it’s possibly helpful to first in discussing this motion
to first state what this motion is not. Number one it is not a
motion to apply the capital litigation supreme court rules to
this case. The People concede in their motion that those rules
don’t apply. ***
And defense counsel has filed its response and has
delivered a memorandum with points and authorities
establishing that. And in none of that do the People contest.
They’re absolutely right. They don’t apply. And so we’re not
contending that.
The second thing to make clear is that the People are not
seeking the removal of these defense counsel. We’re not
alleging that they are unqualified. In fact everything that the
People know about their qualifications leads us to believe that
they’re fully qualified. The concern of the People in this matter
is the constitutional guarantee of effective assistance of
counsel and the need to protect the record in that regard.”
The State also suggested that any potential problems could be
solved by appointing a third attorney to represent defendant, if the
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newly appointed attorney was a member of the CLTB.
Dennis pointed out to the court that this issue had been discussed
several times previously, and he questioned what the State sought to
achieve:
“The State apparently concedes that Mr. Carter and I are
qualified and competent and have been representing Mr.
Ramsey in a qualified and competent manner. *** So it
appears to me that even though they agree that the rules don’t
apply in this case and that Mr. Ramsey has been having
competent counsel, they still want a little bit more. They have
not specifically asked in their motion that someone from the
capital litigation bar be assigned to this case but now they’re
apparently making that request.
There are two other options that I see that would handle
this question satisfactorily with the State. One is to take death
off the table. And I’ve said that before and I’ll say it again.
That will resolve any questions that the State has with respect
to a certified member of the capital litigation bar representing
Mr. Ramsey. That’s in their power. That’s in their control. But
they have not yet done that. So we’re stuck with that situation
with death still on the table.
The other option would be for you to remove [defense
counsel] from representation of Mr. Ramsey and appoint two
new attorneys certified by the capital litigation bar. Although
the State is not seeking that.”
The court expressed its appreciation for the “overabundance of
caution” that led the State to raise this issue again, although it worried
that “an emphasis of form over substance and a continuous rehash of
old business” was distracting the parties from “truly important
matters.” The court addressed defendant directly, and defendant
declined to express any opinion to the court about his counsel.
Ultimately, the court declined to order any change in defendant’s
representation. Neither counsel’s qualifications nor the amended rules
were discussed again.
Clearly, the plain language of Rule 701 does not require that this
defendant’s counsel be members of the CLTB. As explained above,
the amended rule became effective March 1, 2001, and applies only to
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cases filed on or after March 1, 2002. The amended indictment in this
case was filed January 23, 1997. Defendant acknowledges that the
rule does not apply, but he argues that the amendment nonetheless
entitles him to a new sentencing hearing for three reasons. First, he
argues that the exclusion of a case like this one, where a defendant
was charged prior to the 2002 effective date but where substantial
proceedings occurred after the effective date, was a mere oversight
that produces an absurd or unjust result. Second, he argues that
because he is the only defendant currently sentenced to death in
Illinois who was not represented by a member of the CLTB, his equal
protection and due process rights have been violated. Finally, he asks
this court to find that the imposition of the death penalty under these
circumstances would be “fundamentally unjust.”
With respect to defendant’s first argument, we note that Rule 701
requires attorneys to be members of the CLTB not only at the time of
trial, but from the very beginning of their involvement in a case. The
comments to amended Rule 701 (188 Ill. 2d R. 701, Committee
Comments) state that any attorney who is not a member of the CLTB
should decline any representation in a capital case, as well as in any
first degree murder case that could become a capital case. The
comments further suggest that it is incumbent on counsel to
determine, before agreeing to representation, whether a case is likely
to become a capital case. Moreover, the rule does not authorize a trial
court to require that unwilling attorneys apply for CLTB membership.
Thus, if counsel in a capital case refuses to become properly certified
pursuant to Rule 701, the court must require that counsel step down
or work only under the supervision of a CLTB-certified attorney. By
requiring attorneys to be members of the CLTB from the very outset
of a case, the rule avoids the disruption and delay that would be
caused by allowing an attorney who is not a member of the CLTB to
appear in the case, only to later require him or her to withdraw and be
replaced by CLTB counsel unfamiliar with the case.
Defendant suggests that the retrial in his case distinguishes it from
other ongoing capital cases, but that argument is not persuasive. This
court’s mandate granting defendant a new trial was filed on September
11, 2000, well before the effective date of the amendment to Rule
701. Discovery and other pretrial proceedings were long underway
when the amendment took effect. Procedurally, defendant’s case was
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nearly indistinguishable at that point from a capital case filed in 2000.
If the amendment to Rule 701 had been applied at its effective date to
similarly situated capital cases, disruption, delay, and potential for
prejudice could have ensued in every capital case pending at any stage
throughout the state. This is precisely the result we sought to avoid in
applying the new rules only to cases filed after the effective date, and
defendant’s case is a prime example. By the time the amendments
took effect in 2002, defendant’s trial attorneys had been working on
his retrial for over 18 months; lead counsel had been representing
defendant since his first trial in 1997. Counsel were familiar with the
facts and witnesses, had filed over 15 motions, had engaged in
substantial discovery, and had taken an interlocutory appeal on
defendant’s behalf. Although the trial court and the State suggested
on at least three occasions that defense counsel should join the CLTB,
both attorneys steadfastly declined. Requiring that both attorneys
involved in his defense be replaced with CLTB members would have
resulted in delay and disruption to a case that had already been
unresolved for over six years. Rather than incur such delays in this and
any other pending cases, we left ongoing cases outside the scope of
the amendments to Rule 701. One inevitable effect of creating such a
clear line for determining whether the amended rule applies is that
some cases will fall short of that line. Defendant’s is one such case,
and we will not now rewrite the rule to include him. In this light, it is
clear that applying the CLTB requirement prospectively only to cases
filed after the effective date is not absurd, but is wholly consistent with
the intent of the rule.
Defendant also argues that applying Rule 701 as written violates
his equal protection and due process rights. According to defendant,
every other capital defendant in Illinois whose case was filed before
March 1, 2002, but who, like defendant, was sentenced after the
amendment took effect was represented by a CLTB member. Thus,
defendant claims he was “arbitrarily singled out.” We disagree. It is
axiomatic that the constitutional guarantee of equal protection
requires that the government treat similarly situated individuals in a
similar manner. People v. Warren, 173 Ill. 2d 348, 361 (1996). Here,
the rule treated defendant in precisely the same manner as other
defendants whose cases were filed prior to the rule’s effective date; it
did not apply to any of the cases. That the other attorneys to whom
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defendant points chose to become CLTB members during the course
of representation is of little relevance in this case. We have previously
explained that, with respect to cases in which the amended rule does
not apply, we will not presume an attorney rendered incompetent
representation simply because he or she was not a member of the
CLTB. People v. Simpson, 204 Ill. 2d 536, 570-72 (2001). In this
case, defendant’s attorneys were qualified and experienced capital
litigators. Lead counsel had 23 years of criminal defense experience,
with eight or more felony trials and two murder trials. Co-counsel had
15 years’ experience in criminal defense, during which time he handled
“hundreds if not thousands” of criminal cases, including more than five
felony trials and one murder case. On this record, we are unwilling to
conclude that counsel was not competent to represent defendant.
Throughout the eight years that this retrial was pending, three
different trial judges inquired into their qualifications and found them
sufficient, and we agree. Defendant was not denied any equal
protection or due process rights.
Finally, defendant asks us to find that the imposition of the death
penalty in this case is “fundamentally unjust.” Section 9–1(i) of the
Criminal Code of 1961 states that this court “may overturn the death
sentence *** if the court finds that the death sentence is fundamentally
unjust as applied to the particular case.” 720 ILCS 5/9–1(i) (West
2008). We find no basis for such a conclusion in this case. Although
we emphasize the importance of ensuring that appointed counsel in
capital cases have met every qualification we have set forth, in this
case the amended requirements of Rule 701 did not apply. Contrary
to defendant’s claim of injustice, defendant received experienced,
capable, and competent representation. That other ongoing cases
proceeded differently than defendant’s is no injustice when the same
rules were applied to all of them. We therefore reject defendant’s
contention that he is entitled to a new sentencing hearing because his
attorneys were not CLTB members.
II. Constitutionality of State’s Seeking the Death Penalty
Following defendant’s first conviction and direct appeal, this court
reversed and remanded the cause to the trial court for a new trial.
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Prior to trial, the State’s Attorney notified defendant that she would
again seek the death penalty. However, she did inform the court that
if defendant agreed to plead guilty and accept a sentence of life
without parole, she would not seek a death sentence. At the time the
offer was made, defense counsel announced that “at this time I think
we are going to trial.”
Five years later, defendant pleaded guilty to several counts against
him. By that time, the office of State’s Attorney was occupied by a
different individual. Both parties agree the guilty plea was in exchange
for a dismissal of several other counts. However, defendant also
claims that his guilty plea, in accordance with the former State’s
Attorney’s initial plea offer, made him eligible for a sentence of natural
life in prison but did not expose him to the possibility of a death
sentence. The State did not agree and asked for a death penalty
hearing. When defendant entered his guilty plea, he acknowledged that
by pleading guilty he was “possibly subjecting himself to a sentence of
death.” The court specifically admonished defendant that the minimum
sentence he could receive was a term of natural life in prison and that
the maximum sentence was a death sentence.
The court accepted defendant’s plea, a sentencing hearing was
held, and defendant was again sentenced to death. Defendant now
argues that the State’s Attorney’s decision to seek the death penalty
was arbitrary and warrants his sentence being reduced to that of
natural life in prison.
At the outset, we note that the State argues that defendant has
forfeited this issue by failing to object in the trial court or to raise the
issue in a posttrial motion. The State also argues that although
defendant’s claim could be reviewed for plain error, defendant has
failed to argue plain error in his opening brief. Defendant
acknowledges that this issue was not properly preserved, but disagrees
with the State that he has also forfeited plain-error review.
In the absence of a plain-error argument by a defendant, we will
generally honor the defendant’s procedural default. People v. Hillier,
237 Ill. 2d 539, 549 (2010). However, although defendant did not
argue plain error in his opening brief, he has argued plain error in his
reply brief, which is sufficient to allow us to review the issue for plain
error. People v. Williams, 193 Ill. 2d 306, 347-48 (2000).
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The first step in plain-error analysis is to determine whether a clear
or obvious error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565
(2007). Defendant argues it was error for the trial court to allow the
State to seek the death penalty, because a prior State’s Attorney had
already offered to waive the possibility of a death sentence if the
defendant were to plead guilty. Defendant’s claim is a due process
challenge in that he argues the decision of the State’s Attorney to seek
a death sentence was impermissibly arbitrary.
Defendant cites People v. Walker, 84 Ill. 2d 512 (1981), and
People v. Brownell, 96 Ill. 2d 167 (1983). In Walker, the defendant
was charged with murder and entered into plea negotiations with the
State. The parties agreed that the defendant would plead guilty to
several other charges in return for the State’s dropping a conspiracy
charge and recommending a 60-year prison term for the murder.
Walker, 84 Ill. 2d at 514. The court, in accepting the plea, incorrectly
advised the defendant that the maximum penalty for the offense to
which the defendant was pleading was 80 years. In fact, the
indictment, as charged, justified a maximum penalty of death. The
State failed to draw attention to the court’s incorrect admonishments.
Walker, 84 Ill. 2d at 515.
The defendant later moved to withdraw his guilty plea, alleging he
did not fully understand the consequences of his plea and wanted to
plead not guilty because of mental incompetence. Defendant was
allowed to withdraw his plea. When defendant later sought to plead
guilty again, the State sought the death penalty and the defendant was
eventually sentenced to death. Walker, 84 Ill. 2d at 518.
The Walker court noted that “defendants who make knowing,
voluntary, and intelligent choices to risk an increased sanction rather
than plead guilty pursuant to a plea bargain will be held to that
choice.” Walker, 84 Ill. 2d at 522. However, this principle applies
only when the defendant can, in fact, make a knowing, voluntary, and
intelligent evaluation of the risks. Walker, 84 Ill. 2d at 522. In Walker,
the court concluded that the State’s failure to correct the trial court’s
admonishments meant that it adopted the court’s position and
“notified defendant that death was not a possible penalty for his
crimes.” Walker, 84 Ill. 2d at 523. When weighing the decision to
withdraw his plea, defendant was under the mistaken impression that
he was risking only an additional 20 years of imprisonment and not a
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death sentence. Under these circumstances, when the State later
sought the death penalty after the defendant’s withdrawal of his guilty
plea, the State sought to increase the severity of the sanction, without
notice, after defendant’s successful invocation of a right afforded by
law. Walker, 84 Ill. 2d at 523-24. Thus, the defendant’s sentence was
reversed.
The procedural history in Brownell was slightly different. In that
case, the defendant was convicted by the trial court and sentenced to
death. This court vacated the sentence and remanded for resentencing.
On remand, the defendant was again sentenced to death. On appeal,
however, defendant raised a new issue. Defendant argued that prior
to his first sentencing the prosecutor had promised not to seek the
death penalty if the defendant would confess in writing.
This promise occurred at 10 p.m. The defendant, after consulting
counsel, did not accept the offer. Later that night, the defendant spoke
to a pair of police detectives. At 1 a.m., when the meeting ended, the
defendant still declined to make any confession. An hour later,
however, at 2 a.m., the defendant asked to talk to the police and
confessed.
Based on these facts, and relying on Walker, this court vacated the
defendant’s sentence. We concluded that once the State’s Attorney
“made a conscious decision to agree not to seek the death penalty if
the defendant would provide him with a confession,” it was
“incumbent on the State’s Attorney to abide by the agreement absent
a change in circumstances.” Brownell, 96 Ill. 2d at 174-75. In the five
hours between the State’s Attorney’s offer and defendant’s written
confession, nothing had changed, yet the State’s Attorney had chosen
to continue to seek the death penalty. This court concluded that this
type of reversal “creates an appearance of a vindictive motive on the
part of the prosecutor.” Brownell, 96 Ill. 2d at 175.
The State, in turn, relies on People v. Yates, 98 Ill. 2d 502 (1983),
and People v. Davis, 144 Ill. 2d 349 (1991). In Yates, defendant
approached the prosecutor and asked if he would agree not to seek
the death penalty in exchange for a guilty plea and recommended
sentence of natural life imprisonment. The State agreed to make the
offer, but the defendant turned it down and went to trial. Defendant
was convicted and the State successfully sought the death penalty.
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On appeal, this court concluded that the case was unlike Walker,
in that the defendant was not misadvised of the maximum possible
sentence he faced. Brownell was also distinguished because the State
did not renege on its promise after getting what it bargained for.
In Davis, the defendant rejected a plea offer from the State.
Nevertheless, the State filed a motion to waive its right to request a
death penalty hearing. Before the court took any action on that
motion, however, a new State’s Attorney was sworn into office,
withdrew the motion and proceeded to request a death penalty
hearing. The defendant argued that Walker required the State to
demonstrate some factual circumstance that changed between the
filing of the motion and the successor State’s Attorney’s withdrawal
of the motion. This court rejected that argument, concluding that no
misrepresentations were made to the defendant about the seriousness
of the punishment he could receive and the decision to seek the death
penalty was based on the prosecutorial discretion of a new State’s
Attorney. Therefore, defendant had not suffered any deprivation of
rights.
Here, defendant argues that the only distinction between Walker
and Brownell and this case is that, in this case, the occupant of the
State’s Attorney’s office changed between the time the State first
offered a deal and the time the defendant ultimately entered a guilty
plea. We disagree and conclude this case differs in other significant
ways.
The first distinction is with Walker. Unlike Walker, defendant was,
at all times, aware of the potential punishment he faced. The State
sought a death sentence at his first trial. Later, in pleading guilty,
defendant acknowledged that a death sentence was a possible result.
This was true even though defendant knew that the State had made a
previous offer to refrain from seeking a death sentence. As we stated
in Yates, Walker is not implicated when the defendant does not labor
under a misconception that death is not a possible sentence. Yates, 98
Ill. 2d at 534. Here, defendant was not misled by the court or the
prosecutor and, therefore, cannot maintain a claim based on Walker.
A second distinction relates to Brownell, and specifically relates
to the particular timing of the State’s offer and defendant’s eventual
plea. In Brownell, a mere four hours passed between the State’s initial
offer not to seek a death sentence and the defendant’s agreement to
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write a confession. Even though defendant expressly rejected the deal
at the time, it is evident he began rethinking that decision soon after,
ultimately choosing to talk to police mere hours later.
In this case, defendant’s decision to plead guilty came not four
hours after the State’s offer, but rather five years after the offer.
Although the Brownell court concluded that there had not been any
change in circumstances in those four hours, it is far more difficult to
conclude that nothing changed over the five years in which the parties
were preparing for a retrial.
Until April 2007, defendant continued to pursue a trial, risking the
more serious penalty of death. This time line refutes any suggestion by
defendant that the State’s Attorney reneged on the bargain made by
his predecessor. After five years of proceedings, there was no bargain
between defendant and the State. Although we do not construe offers
such as this in strict contractual terms (Brownell, 96 Ill. 2d at 176),
the fact that defendant rejected the State’s offer and prepared for trial
for five years reflects the absence of any bargain. Unlike Brownell,
defendant could not have reasonably believed that the earlier offer was
still open, particularly when he acknowledged, in entering his guilty
plea, that death was a possible sentence.
A contrary holding would allow the defendant to seek a plea offer
from the State, reject it, and pursue a trial, forcing the State to spend
the time and money to prosecute the case. Then, at the last possible
moment, perhaps facing a conviction, the defendant could force the
State to adhere to its side of the “bargain.” Under this scenario, a
prosecutor likely would be hesitant to risk making such a plea offer
for fear of being bound indefinitely, even if the defendant initially
rejected it.
In Brownell, this court concluded that the proper question is
whether circumstances changed between the time the State’s offer was
made and the time that the defendant complied with the State’s
conditions. In this case, we answer that question in the affirmative and
hold that the State’s decision to again seek a death sentence did not
violate defendant’s right to due process.
III. Excusing of Prospective Juror for Cause
During voir dire, prospective juror N.W. was questioned by the
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trial court about his ability to vote for or against a death penalty
verdict. He answered that he did not have strong feelings about the
death penalty that would cause him to vote automatically for or
against imposing a death penalty. Instead, if the evidence showed that
death was an appropriate sentence, N.W. indicated he could sign the
verdict. Likewise, if the evidence did not demonstrate that death is the
appropriate sentence, he would not sign the death penalty verdict
form.
However, upon further questioning by the State, the following
exchange occurred:
“MR. ELWARD [prosecutor]: *** If at the end of this
case, Jim, Mike and I prove to you by the evidence in this case
beyond a reasonable doubt that the Defendant is guilty, he is
eligible for the death penalty, and at the sentencing hearing, in
your opinion, the only appropriate sentence is the death
penalty, can you sign that verdict?
[Prospective Juror N.W.]: No, I don’t think that I could.
MR. ELWARD: And I appreciate your honesty. Can you
tell me why not?
[Prospective Juror N.W.]: I am not for sure why not. I
don’t want to take responsibility for that.
MR. ELWARD: You don’t want to take responsibility for
that.
[Prospective Juror N.W.]: Yeah.
MR. ELWARD: Judge, I don’t have any more questions.”
Later, N.W. was questioned by defense counsel. During this
questioning, the following exchange occurred:
“MR. CARTER: Concerning the issue of the death penalty
that you may have to determine, if you are selected as a juror
in this case, would you listen to the opinions of the other
jurors concerning that process?
[Prospective Juror N.W.]: Yeah.
MR. CARTER: And would you consider their opinion in
making your decision?
[Prospective Juror N.W.]: No.
MR. CARTER: You would not.
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[Prospective Juror N.W.]: It depends–I don’t know.
MR. CARTER: Well, I am asking you if you would
consider having an open mind to the possibility of voting for
the death penalty, if you are asked to serve and follow the law
in the case. And I am asking you, can you do that?
[Prospective Juror N.W.]: Yeah.”
The State challenged N.W. for cause on the ground, among
others, that he stated he could not sign a verdict of death. Defense
counsel objected, arguing that N.W. indicated he had no feelings one
way or the other on the death penalty and that he indicated he would
be fair and impartial.
The trial court allowed the State’s challenge for cause, stating,
“The prospective juror indicated that he could not sign a
verdict form imposing the death penalty, and just as he
understood the other questions, this was not a failure to
communicate, in the court’s opinion. He understood the
question, and he answered it indicating that he could not do
that. This is the first juror who has indicated when a clear and
succinct question has been put to them as to whether they
could or could not sign that form, indicated that he could not,
and that’s troublesome to the Court, and in the exercise of my
discretion I am going to excuse the juror on that basis and on
that basis alone.”
Defendant now contends that the trial court erred in allowing the
State’s challenge, resulting in a violation of his sixth and fourteenth
amendment rights.
A trial court may remove a prospective juror for cause because of
the person’s views toward the death penalty when “the juror’s views
would ‘prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.’ ”
Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52,
105 S. Ct. 844, 852 (1985), quoting Adams v. Texas, 448 U.S. 38, 45,
65 L. Ed. 2d 581, 589, 100 S. Ct. 2521, 2526 (1980); People v.
Banks, 237 Ill. 2d 154, 189-90 (2010). It is not enough, to dismiss a
juror for cause, that the juror “voices only general objections to the
death penalty.” Banks, 237 Ill. 2d at 189. The trial judge is in a
superior position to gauge the meaning of the prospective juror’s
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responses to the examination. People v. Tenner, 157 Ill. 2d 341, 363
(1993). Therefore, a decision of the trial court to excuse a prospective
juror for cause is reviewed for abuse of discretion. People v. Taylor,
166 Ill. 2d 414, 421-22 (1995).
Defendant argues that, in this case, it cannot be concluded that
N.W.’s views are opposed to the death penalty. Defendant supports
this claim by arguing N.W. informed the court that he had no difficulty
with Illinois law providing for a death penalty and that his beliefs
would not prevent him from being fair and impartial to both sides.
Defendant argues that N.W., at no time, expressed any feelings against
the death penalty. We disagree.
It is necessary to consider the prospective juror’s statements as a
whole and not in isolation. Taylor, 166 Ill. 2d at 421. Although N.W.
informed the court that he did not have strong feelings either for or
against the death penalty, in response to a direct question as to
whether he could sign a verdict imposing a death sentence, he replied,
“No, I don’t think I could.” He explained that he did not “want to take
responsibility for that.” Although N.W. went on to agree that he could
have an “open mind to the possibility of voting for the death penalty,”
N.W.’s statements, taken as a whole, demonstrate at least some doubt
as to whether he would be able to sign a death verdict.
Defendant argues that N.W.’s views on the death penalty are not
even known. However, we can infer that whatever his views of the
death penalty in ideological or moral terms, he admitted he did not
think he could sign a death verdict. Thus, whatever his views may be,
his answer demonstrated they could have foreclosed or substantially
impaired the performance of his duties, thereby undermining the
fairness of defendant’s trial. Precise knowledge of the prospective
juror’s views, or the reasons behind them, are not always necessary to
determine whether such views will interfere with the juror’s ability to
perform his duties. It might be helpful to question a prospective juror
as to such matters if the court thinks he is seeking merely to avoid jury
duty. However, where the court determines the prospective juror to
be sincere in his belief he cannot sign a particular verdict, and where
his answers suggest an inability to carry out his duties, the court need
not examine in detail the prospective juror’s moral and political
leanings. Here, the record reflects statements by N.W. that suggest he
would not have been able to carry out his duties. The trial court was
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in the best position to determine whether N.W. was credible as to
those statements. Therefore, we hold that the trial court did not abuse
its discretion in excluding prospective juror N.W. for cause.
IV. Exclusion of Portion of Testimony by Defense Expert Witness
At his first trial, defendant raised an insanity defense. Dr. Conroe
testified as a defense expert that defendant met the second prong of
the insanity statute in that he was unable “to conform his conduct to
the requirements of the law” at the time of the offense. The trial court
applied an amended version of the statute that was in effect at the time
the crimes were committed. The statute, as amended, narrowed the
definition of insanity to eliminate the “inability to conform” prong and
increased a defendant’s burden of proof for an insanity defense to one
of clear and convincing evidence. Ramsey, 192 Ill. 2d 154; 720 ILCS
5/6–2 (West 1996). This court subsequently found that the act
amending the statute in this manner violated the single subject rule of
the state constitution. People v. Reedy, 186 Ill. 2d 1 (1999). Thus,
defendant was entitled to a new trial at which he would be “allowed
to present an insanity defense based on his inability to conform his
conduct to the law” and “required to prove his insanity at the time of
the offense by a preponderance of the evidence.” Ramsey, 192 Ill. 2d
at 159. Instead, defendant elected to enter a plea of guilty in return for
dismissal of certain charges.
Defendant notes in his brief that “[o]ne of the central themes of
mitigation presented by the defense was that death was not an
appropriate penalty” because at the time of the crimes, defendant
suffered from several mental disorders. This “theme” was intended to
provide support for the jury’s consideration of one of the seven
mitigating factors enumerated in the statute: “the murder was
committed while the defendant was under the influence of extreme
mental or emotional disturbance, although not such as to constitute a
defense to prosecution.” 720 ILCS 5/9–1(c)(2) (West 1996).
At the sentencing hearing, Dr. Conroe again testified as an expert
witness for the defense. He testified that defendant had a long history
of several chronic mental disorders, including Asperger’s Disorder,
Borderline Personality Disorder, and ADHD, and that he had a history
of Conduct Disorder as a youth. In combination, these disorders
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affected his ability to make judgments and to manage his feelings.
Conroe opined that as a result of these disorders, defendant was
“under extreme duress” at the time he committed the crimes.
In an effort to clearly bring Conroe’s opinion within the scope of
the statutory mitigating factor, defense counsel asked the witness
whether the diagnosed “disorders” could be characterized as “mental
disturbances.” Conroe replied “yes.” The State objected and,
following a sidebar discussion, the trial court sustained the objection
and informed the jury to disregard the question and the answer.
At a hearing the following day, the parties made a record of the
basis for the objection and the court’s ruling. The State objected to
the witness’s opinion on the basis that it had not been disclosed
previously, either in his written report or his discovery deposition.
Defense counsel argued that there had been no discovery violation,
because it was implicit in Conroe’s opinion and earlier testimony that
defendant suffered from an extreme mental disturbance. That is,
because Conroe opined that defendant’s mental state prevented him
from conforming his conduct to the law, he necessarily opined that
defendant’s condition met the “lesser standard” of extreme mental
disturbance. The trial court rejected this argument, finding that
because Conroe had “opined on other matters,” including “whether
defendant was insane at the time of the offenses,” his disclosure of this
opinion at trial was a discovery violation and would not be allowed.
In closing argument, defense counsel spoke at length about
defendant’s history of mental illness and suggested that the evidence
showed that when he committed these crimes, defendant “wasn’t
completely in his right mind.” He reviewed the diagnoses reached by
Drs. Conroe and Killian, including ADHD, and discussed the bases for
these diagnoses. Counsel emphasized the effect of ADHD on
defendant’s “problem solving, coping, and thinking through
decisions.” He discussed defendant’s “frantic efforts to avoid real or
imagined abandonment” and impulsivity, both related to Borderline
Personality Disorder, an “identity disturbance.” Counsel noted that
Conroe “characterized the mental illnesses as extreme” at the time of
the crimes. He argued that the defense witnesses on the mental health
issues were more credible, based on their professional credentials and
the depth of their evaluations, than the State’s witnesses. The
remainder of closing argument recounted the details of defendant’s
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birth and childhood, including the traumatic discovery of his adoption
and the repeated recommendations that he receive various forms of
therapy that were rejected by his adoptive parents.
The jury was instructed to consider mitigating factors “if
supported by the evidence,” including whether “the murders were
committed while the defendant was under the influence of an extreme
mental or emotional disturbance, although not such as to constitute a
defense to the prosecution.” In addition, the jury was instructed that
“[w]here there is evidence of a mitigating factor, that fact that such
mitigating factor is not a factor specifically listed in these instructions
does not preclude your consideration of the evidence.”
Defendant asserts that excluding Conroe’s answer to this question
is error entitling him to a new sentencing hearing. He argues that: (1)
there was no discovery violation because the answer to the question
was not a matter of Conroe’s opinion, (2) there was no discovery
violation because Conroe’s opinion regarding defendant’s mental
disturbance was adequately disclosed, (3) if there was a discovery
violation, the exclusion of Conroe’s answer was an abuse of
discretion, and (4) if the sanction imposed for the discovery violation
was within the trial court’s discretion, defense counsel was ineffective
for failing to obtain Conroe’s opinion on this question prior to trial
and to make a timely disclosure of this opinion to the State.
Discovery Violation
Before considering the appropriateness of the sanction imposed by
the trial court, a threshold question must be answered–whether there
was a discovery violation by the defense. People v. Hood, 213 Ill. 2d
244, 256 (2004). Where, as here, the facts giving rise to the alleged
discovery violation are not in dispute, the question is one of law that
we review de novo. Hood, 213 Ill. 2d at 256.
Defendant asserts that the question asked of Conroe did not seek
to elicit the witness’s opinion. For this assertion, defendant relies on
the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-
TR), a publication of the American Psychiatric Association, which sets
out the diagnostic criteria for recognized psychiatric disorders. The
text of the DSM-IV-TR uses the word “disturbance” to describe each
of the conditions diagnosed by Conroe. Thus, defendant argues, in
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describing these disorders as disturbances, Conroe was not expressing
an expert opinion, but was merely using the “accepted terminology of
the psychiatric community.” Thus, the question posed to Conroe
sought “clarification of the scientific fact that mental ‘disorders’ can
also be characterized as ‘disturbances.’ ” Therefore, according to
defendant, the lack of an express statement to that effect in either
Conroe’s written report or his deposition testimony cannot constitute
a discovery violation.
The State argues that defendant has forfeited this argument by not
raising it at trial, citing People v. O’Neal, 104 Ill. 2d 399, 407 (1984).
In that case, the State’s brief to this court challenged the jury
instruction on self-defense that was given at trial, basing its objection
“on an entirely different theory” from the one raised in the trial court.
Because the ground on which the instruction was being challenged
had not been brought to the attention of the trial court, this court
concluded that the State forfeited any right to have this court consider
the question on review. O’Neal, 104 Ill. 2d at 407.
In the present case, we need not determine whether defendant has
forfeited this issue or is merely citing new authority in support of a
properly preserved issue because this argument clearly lacks merit.
The State did not object to Conroe’s mere use of the word
“disturbance” in a manner that members of his profession typically use
the word. Rather, the State objected when defense counsel asked
Conroe whether the diagnoses he had made “could” be characterized
as “mental disturbances.” This question clearly called for the witness
to express his expert opinion on the question. If the question and
answer had been allowed, the next question would likely have been
whether, in the doctor’s expert opinion, the effect of these
disturbances upon the defendant was “extreme” at the time he
committed the murders, thus obtaining an expert opinion regarding the
existence of a statutory mitigating factor. If Conroe’s opinion on this
matter was not previously disclosed to the State, the objection was
properly sustained because he was being asked for his opinion.
Defendant also argues that Conroe’s written report and deposition
adequately disclosed his expert opinion regarding the existence of an
extreme mental disturbance at the time defendant committed the
murders. His written report stated that the “intense feelings of
abandonment following the break-up of the relationship with Ms.
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Sloop precipitated significant depression with serious suicidal
ideation.” In addition, Conroe opined that defendant’s various mental
illnesses “all affected his ability to control his anger and despair, to
maintain rational thinking and to come up with a number of options
that would prevent him from harming himself or others.” “He could
not control the intense feelings that overwhelmed him.” In his
discovery deposition, Conroe testified that he had no opinion about
defendant’s mental condition at the time of the crimes that was not
contained in his written report, but reiterated that “there was a
confluence of events that led to his feelings overwhelming him.”
The trial court rejected this argument, stating that “it would be
impossible to sort out those [opinions] which may have been a subset
of a previously-disclosed opinion or not.” Similarly, the court
observed that “it would be difficult if not impossible to try to interpret
such nondisclosed opinions because the Court would then be in the
process of interpreting the disclosures which had been made.”
We note that although the existence or nonexistence of this
mitigating factor may be supported by expert opinion, a jury may find,
based on the facts before it, that a defendant was acting under an
extreme mental or emotional disturbance, even in the absence of an
expert opinion to that effect or in the presence of a contrary expert
opinion. See, e.g., People v. Ramirez, 98 Ill. 2d 439, 467-68 (1983)
(finding it proper for State’s expert witness to give opinion as to
whether defendant was acting under the influence of an extreme
mental or emotional disturbance at the time of the murder, but noting
that the jury was free to reject that opinion based on the facts before
it). We also note that a diagnosis of some form of mental illness does
not necessarily establish the mitigating circumstance of extreme
mental or emotional disturbance at the time the defendant committed
the murders. See People v. Crews, 122 Ill. 2d 266, 283 (1988).
With this in mind, we agree with the trial court. Conroe’s report
and deposition testimony contained some statements that might have
been consistent with an opinion that defendant was extremely
disturbed, mentally or emotionally, at the time of the murders.
However, Conroe made no express statement to this effect in either
his written report or his deposition testimony. The trial court properly
declined to parse the earlier disclosures to see if they might support
such an unexpressed opinion.
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In sum, we conclude that the trial court properly ruled that the
defense failed to disclose the expert’s opinion on this matter and turn
to the question of the proper sanction for the discovery violation.
Sanction
When this court has had occasion to consider allegations of
discovery violations in capital cases, it has most often been in the
context of a defendant’s claim that the State’s violation of the
discovery rules entitles him to a new trial. See, e.g., People v.
Lovejoy, 235 Ill. 2d 97 (2009); People v. Sutherland, 223 Ill. 2d 187(2006). We have not had occasion to consider whether a sanction
imposed on a capital defendant for a discovery violation is excessive.
Thus, the authorities cited by defendant are from our appellate court
in noncapital cases.
Defendant cites People v. Hawkins, 235 Ill. App. 3d 39, 43
(1992), for the proposition that the purpose of sanctions for discovery
violations is to compel the party’s compliance with discovery, not to
punish him. Further, discovery sanctions should be “fashioned to meet
the circumstances of the particular case with the ultimate objective of
compelling compliance, not punishing a party for the oversight or the
errors of his attorney.” People v. Damico, 309 Ill. App. 3d 203, 212
(1999). Defendant further asserts that the sanction of excluding
defense evidence in criminal cases should be applied only in extreme
situations, citing People v. Houser, 305 Ill. App. 3d 384, 390 (1999)
(trial court abused its discretion by barring necessity defense where
defendant timely disclosed intent to raise related defense of
compulsion), and People v. Foster, 145 Ill. App. 3d 477, 481 (1986)
(exclusion of defense witness as discovery sanction was abuse of
discretion where failure to disclose was inadvertent and State had
ample opportunity to interview the witness before trial). Finally,
defendant argues that if a less drastic sanction is available to redress
a discovery violation by the defense, it is an abuse of discretion for the
court to impose “the ultimate sanction of exclusion of evidence,”
citing People v. Brooks, 277 Ill. App. 3d 392, 398 (1996) (exclusion
of defense witness as discovery sanction was abuse of discretion
where sanction deprived defendant of his ability to present a defense),
and People v. Jackson, 48 Ill. App. 3d 769, 771-72 (1977) (exclusion
of defendant’s eyewitnesses, who were fellow inmates in correctional
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facility, was abuse of discretion where State was presumed to know
identity and location of witnesses within its control). Defendant
acknowledges that he has the burden of demonstrating prejudice as a
result of the imposition of an improper sanction. Foster, 145 Ill. App.
3d at 481. In general, we agree with these propositions, noting,
however, that sanctions imposed in the cited cases were more severe
than the mere exclusion of a testifying witness’s answer to a single
question.
On the merits, defendant argues that the opinion testimony need
not have been excluded because the State could have impeached Dr.
Conroe on cross-examination for his failure to testify during his
deposition that mental disorders may be characterized as
“disturbances.” In the alternative, the trial court could have called a
recess, during which the prosecutor could have questioned the witness
regarding this newly disclosed opinion. He also argues that the State
could not have been surprised that he was relying on Conroe’s
testimony to support his assertion of extreme mental or emotional
disturbance as a mitigating factor. He accuses the State of making an
objection that was “nothing more than a disingenuous ‘gotcha’ based
on Conroe’s failure to explicitly equate disorders with disturbances at
his deposition” and insists that the trial court did not consider
alternative sanctions, but “mechanically ruled” that the question and
answer would be excluded.
The State responds that the sanction was appropriate. The witness
testified at length regarding the various diagnoses he made and how,
in his opinion, these conditions affected defendant’s emotions and
judgment at the time of his crimes. Defendant was not prevented from
relying on the mitigating factor of extreme mental or emotional
disturbance and could have argued to the jury that Conroe’s testimony
supported a finding that this factor existed. In addition, the jury was
instructed to consider this specific mitigating factor. In the alternative,
the State argues that even if the trial court abused its discretion by not
ordering a less severe sanction, the error was harmless.
The imposition of sanctions for discovery violations is governed
by Rule 415(g)(i):
“If at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed to
comply with an applicable discovery rule or an order issued
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pursuant thereto, the court may order such party to permit the
discovery of material and information not previously
disclosed, grant a continuance, exclude such evidence, or enter
such other order as it deems just under the circumstances.”
134 Ill. 2d R. 415(g)(i).
A trial court’s decision as to the appropriate sanction for a
discovery violation is subject to review for abuse of discretion. Hood,
213 Ill. 2d at 256. An abuse of discretion exists only where the trial
court’s decision is arbitrary, fanciful, or unreasonable, such that no
reasonable person would take the view adopted by the trial court.
People v. Donoho, 204 Ill. 2d 159, 182 (2003).
Defendant acknowledges that, in general, sanctions imposed for
discovery violations are reviewed under the abuse of discretion
standard, but argues that this standard is too deferential to the trial
court where evidence has been excluded for a discovery violation. He
cites People v. Scott, 339 Ill. App. 3d 565, 573 (2003), for the
proposition that the sanction of exclusion should be “closely
scrutinized on appeal.”
In Scott, defense counsel filed a supplemental answer to discovery
on the day of trial, in which she named an investigator for the public
defender’s office as a potential witness. Counsel had informed the
prosecutor of her intention to call this witness two days earlier and
had informed the prosecutor’s co-counsel the previous week. Scott,
339 Ill. App. 3d at 567. The investigator, if allowed to testify, would
have stated that a key prosecution witness had recanted his previous
statement that he had seen the defendant hand the murder weapon to
the individual who then shot the murder victim. Scott, 339 Ill. App. 3d
at 570. The trial court excluded the investigator’s testimony as a
sanction for the discovery violation. Scott, 339 Ill. App. 3d at 571.
The appellate court noted the abuse of discretion standard, but
observed that “few rights are more fundamental than an accused’s
sixth amendment right to present witnesses in his own defense.” Scott,
339 Ill. App. 3d at 572, citing Taylor v. Illinois, 484 U.S. 400, 408,
98 L. Ed. 2d 798, 810, 108 S. Ct. 646, 652 (1988). The court stated
that exclusion of testimony or evidence is “disfavored” because it does
not contribute to the truth-seeking goal of the trial and, thus, is
appropriate only in “the most extreme situations.” Scott, 339 Ill. App.
3d at 572-73. After considering several factors that a trial court
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“should consider in determining whether the exclusion of a witness is
an appropriate discovery sanction,” including “the effectiveness of a
less severe sanction, the materiality of the witness’s proposed
testimony to the outcome of the case, the prejudice to the other party
caused by the testimony, and evidence of bad faith in the violation of
the discovery rules” (Scott, 339 Ill. App. 3d at 573), the court found
exclusion of the witness to be an abuse of discretion and granted the
defendant a new trial (Scott, 339 Ill. App. 3d at 579).
The present case is readily distinguishable from Scott. First, the
trial court in the present case did not exclude the witness’s testimony
altogether, but only one question and his answer to that question.
Second, the excluded witness in Scott would have testified that the
State’s eyewitness had earlier recanted his account of the shooting
while, in the present case, the witness merely would have expressed
an opinion on a matter that the jury was capable of determining based
on the substance of his earlier testimony and other evidence. Finally,
the State would have been severely prejudiced by the admission of the
previously undisclosed opinion in the present case, because it was not
prepared to rebut the opinion with testimony of its own expert
witnesses. Mere cross-examination of the witness about the fact that
he had not disclosed the opinion in his written report or during his
deposition would hardly have been effective, since the witness could
have explained that he had not been asked previously for his opinion
on this matter. Effective impeachment would have required the State
to be able to present its own witness to rebut Conroe’s opinion. The
trial court was not required to interrupt the sentencing hearing to
allow the State to obtain such a witness.
Rule 415 clearly contemplates that evidence may be excluded as
a sanction for a discovery violation. After consideration of the factors
enumerated by the Scott court, we conclude that exclusion of the
defense counsel’s question and Conroe’s answer was not an abuse of
the court’s discretion, especially considering the court’s knowledge
that the expert’s testimony contained information from which defense
counsel could argue and the jury could find the existence of the
mitigating factor.
Defendant argues, however, that he was prejudiced by the sanction
of exclusion because the trial court instructed the jury to disregard the
question and answer, and the jury members “undoubtedly concluded
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from the court’s admonition that disorders *** could not be
considered ‘disturbances.’ ” (Emphasis in original.) He asserts that it
is “possible, if not likely, that one or more jurors concluded that
Conroe’s testimony regarding defendant’s various mental illnesses was
irrelevant to this statutory mitigating factor” and that the “trial judge
essentially told the jurors that disorders cannot be considered
disturbances.” (Emphasis in original.)
The jury heard testimony from 51 witnesses during 11 days of
hearings over a 15-day period. Dr. Conroe’s testimony took almost an
entire day. We find it highly speculative that the jury would attach
such significance to the admonition to disregard one question and one
answer during his testimony. Further, even if one or more of the jurors
might have drawn this conclusion, it cannot provide a basis for a
finding that the trial court abused its discretion at the time it made the
ruling. At that time, the trial court was aware that Conroe had testified
to facts and opinions that could support an argument that defendant
was extremely disturbed at the time he committed the murders and
that defense counsel would have the opportunity, in closing argument,
to “connect the dots” between the substance of Conroe’s testimony
and the statutory mitigating factor.
We, therefore, conclude that the discovery sanction imposed by
the trial court was not an abuse of discretion.
Ineffective Assistance of Counsel
Defendant argues in the alternative that if there was a discovery
violation and if Conroe’s opinion was properly excluded as a sanction
for that violation, he is entitled to a new sentencing hearing because
defense counsel was ineffective. Specifically, he argues that counsel’s
failure to ensure that Conroe “used the term ‘disturbance’ in his report
or at his deposition” was objectively unreasonable and that counsel’s
failure was the direct cause of the trial court’s decision to exclude the
proffered testimony.
Claims of ineffective assistance of counsel are evaluated under the
standard set forth in Strickland v. Washington, 466 U.S. 668, 687-88,
694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984),
which requires the defendant to demonstrate: (1) that counsel’s
performance fell below an objective standard of reasonableness and
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(2) a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. People
v. Davis, 205 Ill. 2d 349, 364 (2002). We assess counsel’s
performance using an objective standard of competence under
prevailing professional norms. To establish deficient performance, the
defendant must overcome the strong presumption that counsel’s
action or inaction was the result of sound trial strategy. People v.
Evans, 186 Ill. 2d 83, 93 (1999). As a result, counsel’s strategic
choices that are made after investigation of the law and the facts are
virtually unassailable. People v. Richardson, 189 Ill. 2d 401, 413
(2000).
In support of his argument that counsel’s performance was
deficient, defendant relies on this court’s decision in Ramirez, which
held that an expert is not precluded from testifying that a defendant
was under the influence of an extreme mental or emotional
disturbance at the time of the crime. This court rejected the
defendant’s argument that the expert’s opinion was inadmissible
because it embraced an ultimate issue of fact that was for the jury
alone to decide. Ramirez, 98 Ill. 2d at 467.
Subsequent cases, according to defendant, support his assertion
that effective defense counsel seek to elicit expert testimony in
conformity with the precise language of the statutory mitigating
factor. He cites as examples People v. Urdiales, 225 Ill. 2d 354, 402
(2007) (clinical psychologist testified that defendant acted while
“under the influence of an extreme mental or emotional disturbance
but not such to constitute a defense to the prosecution”), People v.
McNeal, 194 Ill. 2d 135, 145 (2000) (noting that licensed clinical
psychologist testified that “defendant was under the influence of an
extreme mental or emotional disturbance at the time of the present
offenses”), People v. Smith, 176 Ill. 2d 217, 255 (1997) (licensed
clinical social worker testified that defendant was suffering “an
extreme mental and emotional disturbance, possibly a ‘transient
psychotic episode,’ at the time he murdered” the victim), People v.
Garcia, 165 Ill. 2d 409, 443 (1995) (Freeman, J., concurring in part
and dissenting in part, joined by McMorrow, J.) (forensic psychiatrist
testified that while defendant was not legally insane at the time of the
murder, she “suffered from a very serious mental disorder and was
under the influence of an extreme mental or emotional disturbance at
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the time of the crime”), and People v. Seuffer, 144 Ill. 2d 482, 498
(1991) (two expert witnesses for the defense stated that, “in their
opinions, the defendant was acting under the influence of an extreme
mental or emotional disturbance at the time of his offenses”).
We note that Seuffer’s death sentence was vacated by this court
on the basis of the improper exclusion of a prospective juror. Seuffer,
144 Ill. 2d at 524. In each of the other cited cases, however, the
defendant’s conviction and death sentence were affirmed or, in the
case of McNeal, his postconviction petition denied, despite the
specificity of the expert testimony.
Thus, these cases offer no authority in support of defendant’s
argument that counsel’s performance fell below an objective standard
of reasonableness. Defendant has cited no case in which this court has
said that defense counsel should or must elicit expert testimony in
conformity with the precise language of the statutory mitigating
factor.
The State does not respond to defendant’s argument regarding
counsel’s performance.
While we acknowledge that it is reasonable for defense counsel to
present expert testimony that uses the language of the statute to
specifically addresses the mitigating factor of a defendant’s extreme
mental or emotional disturbance at the time he committed murder,
such evidence is not a prerequisite to the jury’s consideration of the
factor.
The term “disturbance” is not defined in the statute and, thus, is
to be given its plain and ordinary meaning, both by the court and as it
is used in jury instructions. People v. Cardamone, 232 Ill. 2d 504, 513
(2009) (because the applicable statute did not provide definitions for
“emotional distress” or “mental anguish,” this court assumed that the
legislature intended for the terms to have their plain and ordinary
meanings). Further, the statutory phrase “extreme mental or emotional
disturbance” is neither a standard psychiatric diagnosis nor a legal
term of art.
A disturbance is “an interruption of a state of peace or quiet : an
agitating or agitation esp. of the mind or feelings.” Webster’s Third
New International Dictionary 661 (1993). This term is used in
everyday speech to describe a difficult neighbor, a hostile coworker,
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a bitter ex-spouse, or any number of individuals that one might
encounter. Thus, a jury could, based on its consideration of both lay
and expert witness testimony, conclude that a defendant was in an
extreme emotional state brought on by anger, jealousy, fear, grief, or
other intense feeling, at the time he committed murder. Such an
emotional state could exist with or without the presence of mental
illness.
Therefore, while expert testimony connecting a defendant’s history
of mental illness to his mental state at the time he killed might be
helpful to the defendant who claims mitigation on this basis, it is not
an absolute requirement. For example, in People v. Gacy, 103 Ill. 2d
1, 95 (1984), the defendant argued that trial counsel was ineffective
for failing to present evidence at the sentencing stage on the statutory
mitigating factor of extreme mental or emotional disturbance.
Although counsel presented expert testimony at the guilt stage, he
chose not to recall any of the expert witnesses at the sentencing stage.
Instead, he used their previous testimony, which had been readmitted
by stipulation, to argue to the jury that this mitigating factor was
present. This court concluded that it was not unreasonable for counsel
to choose this approach, perhaps to avoid antagonizing the jurors by
presenting testimony that might appear redundant. Gacy, 103 Ill. 2d
at 95-96.
In the present case, counsel’s failure to obtain and present a
specific expert opinion on the statutory mitigating factor was likely
inadvertent, rather than a matter of trial tactics or strategy. However,
he did present ample evidence, including the remainder of Conroe’s
testimony, that provided a basis for him to argue in closing and for the
jury to find that the mitigating factor existed. Therefore, despite this
misstep, we cannot say that counsel’s performance fell below an
objective standard of reasonableness.
Because we conclude that defendant has not met the first prong of
the Strickland test, we need not consider the second prong.
V. Prosecutor’s Reference to Other Crime
Committed by Defendant
During the State’s case in aggravation, the prosecutor presented
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evidence that defendant and an accomplice committed a burglary in
1993. Amy Briggs identified defendant as one of the two persons she
discovered stealing a VCR when she returned to her boyfriend’s house
to retrieve an item she had forgotten. She also testified that it was
possible her boyfriend, the victim, owned a gun. Defense counsel
objected to this line of questioning regarding the gun and the objection
was sustained. The court also instructed the jury that it was to
disregard the question and any answer that may have followed it. The
court added, “You should not consider it in any way.”
Later, Tom Crew, a police witness for the State, testified that
defendant’s accomplice in that burglary blamed the burglary on
defendant because the crime was defendant’s idea. Crew added that
according to the accomplice, “one of the main focuses was to obtain
a weapon or a firearm of some kind.” Defense counsel did not object
to this testimony.
Lastly, the prosecutor questioned defendant’s juvenile court
officer and made a final reference to the gun by asking the following:
“Prosecutor: The defendant committed the burglary with
a man by the name of Dustin Wade?
Wood: Okay.
Prosecutor: Wade told police the defendant wanted to get
a gun to shoot a police officer.
Defense Counsel: Objection. Leading.
COURT: Sustained.
***
Prosecutor: The defendant was caught in someone’s
home, right? He was caught in someone’s home, right?
Wood: I remember Dustin Wade. I remember there being
a burglary, but I do not remember the circumstances.
Prosecutor: And the defendant was trying to steal a gun,
right?
Defense Counsel: Objection. Leading.
COURT: Sustained.”
Defendant argues that these three references to the burglary
victim’s gun unfairly prejudiced defendant by suggesting that
defendant was a violent person. He argues that the remark that
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suggested defendant wanted to shoot a police officer was particularly
inflammatory and denied defendant a fair trial. We disagree.
We first note that the State does not specifically argue that the
prosecutor’s questions at sentencing were proper. Rather, it assumes
arguendo that the references to defendant’s purported motive for the
burglary were improper. We also make this assumption, which favors
defendant, and conclude that even if the prosecutor’s questions were
improper, they did not deny defendant a fair trial.
Every defendant has the right to a trial free of improper prejudicial
comments or arguments by the prosecutor. People v. Simms, 192 Ill.
348, 396 (2000). This right is of constitutional magnitude. Therefore,
we review de novo the question of whether a prosecutor’s statements
denied the defendant a fair trial. People v. Burns, 209 Ill. 2d 551, 560
(2004). Although a defendant is entitled to a trial free of improper
comments, not every improper question or comment requires reversal.
Instead, “ ‘the act of promptly sustaining the objection and instructing
the jury to disregard such argument has usually been viewed as
sufficient to cure any prejudice.’ ” People v. Childress, 158 Ill. 2d
275, 298 (1994), quoting People v. Baptist, 76 Ill. 2d 19, 30 (1979).
In this case, most of the State’s allegedly improper questions were
met with immediate objections from defense counsel. During the
State’s questioning of the burglary victim’s girlfriend, defense counsel
objected to the question whether the victim owned a gun. The
objection was immediately sustained and the trial court went so far as
to offer a verbal instruction that the jury was not to consider the
question or answer in any way. Later, during the State’s questioning
of defendant’s juvenile court officer, defense counsel again objected
to both references to a gun. Both objections again were immediately
sustained.
The only mention of a gun that went uncured by the trial court
was made during the State’s questioning of police officer Tom Crew,
who indicated that part of the motivation for the burglary was to
obtain a gun. This, too, however, weighs against defendant, as the
failure to object denied the court the opportunity to cure the error.
Counsel cannot gain the advantage of obtaining a reversal through his
own failure to act. People v. Carlson, 79 Ill. 2d 564, 577 (1980).
Even had counsel objected to Crew’s statement, we conclude that
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defense counsel’s objections, and the trial court’s response to those
objections, adequately cured any prejudice to defendant. Any
prejudice to defendant was minor, when the references are viewed in
the context of the sentencing hearing as a whole. These references to
stealing a gun, including the question that went unchallenged by
defense counsel, constituted a small part of the State’s case in
aggravation. During the sentencing phase, the State focused primarily
on the circumstances of the crime itself. Specifically, the State focused
on the number of victims and the cold and calculated manner in which
defendant committed the crime. It emphasized the deceit defendant
used to get the adults out of the Sloop house. The State also focused
on refuting the mitigating factors defendant presented. After the
objections on the issue were sustained, the State did not mention in
argument that the defendant wanted to steal a gun. Overall, the
evidence and circumstances of the crime and the arguments based on
this evidence overshadowed the isolated references to defendant’s
desire to steal a gun. As a result, we cannot say that such references
were so prejudicial that they could not be cured by a sustained
objection and instructions from the court. Therefore, we hold that
defendant was not denied a fair trial on the basis of the State’s
improper questions.
VI. Prosecutor’s Remarks in Closing Argument
Regarding Mitigation Evidence
During the sentencing phase of defendant’s trial, defendant sought
to demonstrate that he would “positively adapt to the structured
environment of incarceration” and would not be a threat to others.
Defendant relied primarily on the testimony of psychologist Mark
Cunningham. Dr. Cunningham concluded, after reviewing defendant’s
records and interviewing several corrections officers, that “there is a
very low likelihood that Dan Ramsey would commit an act of serious
violence or seriously injure someone while confined for life.”
In closing, the State responded to defendant’s mitigation argument
with the following:
“But the instructions say that you must also consider the
evidence in mitigation, and we ask that you do that, that you
do your duty and consider the evidence in mitigation. And I
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want to talk to you about the evidence that you’ve heard in
mitigation in this case. What evidence has the defendant
presented? Well, you heard from Dr. Cunningham. Recall that
Dr. Cunningham testified that in his opinion, the defendant
would not likely commit any acts of violence in prison. And I
ask you: Is that relevant to doing justice in this case? How is
that relevant to what the appropriate sentence of the defendant
should be or to his actions in this case or to any issue that you
have to decide in this case? And isn’t that the purpose of
prison, to prevent violence. Anyway, we know that the
defendant is not the type of out-of-control, impulse-driven
killer who is likely to act out in those types of settings. No,
he’s cold, calculating, cold-blooded, manipulative, kills to
meet his needs. We suggest that Dr. Cunningham’s evidence
is not entitled to much weight here.”
The prosecutor also suggested that the testimony of defendant’s
jail guard and community service supervisor were also “not entitled to
much weight here.” Defendant argues that these comments were
misstatements of the law and prevented jurors from considering Dr.
Cunningham’s testimony as evidence in mitigation.
Defendant acknowledges that he failed to preserve this issue for
review, as he did not object to the prosecutor’s argument at trial.
However, defendant asks this court to review the issue for plain error.
A reviewing court may consider unpreserved error when a clear or
obvious error occurs and (1) the evidence is so closely balanced that
the error alone threatened to tip the scales of justice against the
defendant, regardless of the seriousness of the error, or (2) the error
is so serious that it affected the fairness of the defendant's trial and
challenged the integrity of the judicial process, regardless of the
closeness of the evidence. Piatkowski, 225 Ill. 2d at 565. In this case,
defendant argues a clear and obvious error occurred and both that the
evidence was closely balanced and that the error was of such
magnitude as to deny defendant a fair sentencing hearing.
Our first step is to assess whether a clear or obvious error
occurred. When determining the propriety of a prosecutor’s closing
argument, a reviewing court must evaluate the comments in the
context in which they were made. People v. Burgess, 176 Ill. 2d 289,
319 (1997). Defendant’s argument focuses on the prosecutor’s
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comments as a misstatement of the law. Defendant contends that
because a defendant’s ability to adjust to life in prison is widely
accepted evidence in mitigation, the State improperly suggested that
this evidence was not relevant and should not be considered.
It is well settled that an attorney may not misstate the law in
closing argument. People v. Woolley, 178 Ill. 2d 175, 209-10 (1997).
However, taken in context, the prosecutor’s comments in this case do
not constitute a misstatement of the law. The prosecutor did ask
whether defendant’s ability to adapt to prison life was “relevant” to
whether defendant should receive the death penalty. In referring to
relevance, however, it is clear the prosecutor was not suggesting Dr.
Cunningham’s testimony was legally irrelevant or inadmissible, or that
it should not be considered as evidence in mitigation. Rather, the
prosecutor was suggesting that given the nature of the crime and the
fact that there were multiple victims, defendant’s evidence in
mitigation was not substantial and was insufficient to overcome the
much stronger evidence in aggravation.
In fact, the prosecutor prefaced his remarks regarding Dr.
Cunningham’s testimony by saying “the instructions say that you must
also consider the evidence in mitigation, and we ask that you do that,
that you do your duty and consider the evidence in mitigation.” The
prosecutor later suggested that Dr. Cunningham’s testimony was not
entitled to much weight. He also suggested that evidence from
defendant’s jail guard and community service supervisor were entitled
to little weight. Throughout his closing argument, the prosecutor
emphasized the weight that should be given to defendant’s evidence
in mitigation. Although the State, as would be expected, asked the
jury to give little weight to this evidence, it nonetheless acknowledged
that the evidence must be considered. Contrary to defendant’s
assertion that the State removed defendant’s mitigation evidence from
the sentencing equation, the prosecutor in this case asked only that the
jury put a smaller value on defendant’s evidence in that equation.
Moreover, the jury was instructed that it was to weigh all the
evidence received in both parts of the death penalty hearing. The court
instructed the jury that in considering the evidence it must weigh any
aggravating and mitigating factors. The jury heard Dr. Cunningham’s
testimony and the rest of defendant’s evidence. Counsel for defendant
suggested this evidence should carry great weight with the jury, while
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the prosecutor suggested the jury should give this evidence little
weight.
Had the jury been instructed not to consider evidence of his ability
to adapt to prison life as mitigating evidence, it would constitute error.
However, in this case, the comments, taken in context, did not
undermine the court’s instruction to weigh all of the evidence in
aggravation and mitigation. It was not error for the court to allow the
prosecutor’s comment. Because we find there was no error, we need
not address the remaining parts of plain error review.
VII. Prosecutor’s Remarks in Closing Argument
Regarding Evidence in Aggravation
Next, defendant argues that the State violated the trial court’s
discovery sanction order by arguing that defendant committed the
murders in order to prevent the victims from being witnesses against
him.
In July 2006, defendant requested notice from the State of the
statutory aggravating factors upon which the State would rely. The
State failed to respond by the court-imposed deadline in December of
that year. Defendant sought to have the State sanctioned by not
allowing it to seek the death penalty. The trial court declined to grant
this request. The court did so because it found the State was
nonetheless in substantial compliance with Rule 416. The court
concluded that defendant suffered no prejudice or surprise as a result
of the State’s violation of the rule, as he had been on notice since the
very start of the trial that the State would be seeking the death penalty
and that the State would argue several statutory and nonstatutory
factors.
However, although the court denied defendant’s request, the court
did restrict the State only to those aggravating factors originally
disclosed prior to defendant’s first trial. The statutory aggravating
factors originally disclosed were that the defendant (1) committed
multiple murders, (2) committed a murder in the course of another
felony and (3) committed a murder in a cold and calculated way. The
State had also disclosed several nonstatutory aggravating factors. The
State argued that the young age of the victims, the “execution”
manner of the murders, the unprovoked nature of the offenses, the
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defenselessness of the victims, defendant’s prior criminal history and
defendant’s lack of remorse were all aggravating factors.
Defendant is not challenging this remedy fashioned by the trial
court. Rather, defendant is challenging an alleged violation of the
court’s order restricting the State’s available arguments. Specifically,
defendant alleges that the State argued the following statutory
aggravating factor:
“(b) Aggravating Factors. A defendant who at the time of
the commission of the offense has attained the age of 18 or
more and who has been found guilty of first degree murder
may be sentenced to death if:
***
(8) the defendant committed the murder with intent to
prevent the murdered individual from testifying or
participating in any criminal investigation or prosecution
or giving material assistance to the State in any
investigation or prosecution, either against the defendant
or another; or the defendant committed the murder
because the murdered individual was a witness in any
prosecution or gave material assistance to the State in any
investigation or prosecution, either against the defendant
or another; for purposes of this paragraph (8),
‘participating in any criminal investigation or prosecution’
is intended to include those appearing in the proceedings
in any capacity such as trial judges, prosecutors, defense
attorneys, investigators, witnesses, or jurors[.] 720 ILCS
5/9–1(b)(8) (West 2006).
Throughout the State’s closing statement, the prosecutor
expressly argued that defendant killed L.M. and Lonna to prevent
them from being witnesses against him. Defendant argues that, with
this part of the State’s closing, the State violated the trial court’s
order limiting argument to those aggravating factors originally
disclosed in 1997. Defendant argues he is entitled to a new sentencing
hearing as a result of this violation.
Defendant first acknowledges that he failed to properly preserve
this issue for appeal. No objection was made at trial to the State’s
statements and defendant failed to raise the issue in a posttrial motion.
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Thus, defendant argues the issue should be reviewed for plain error.
As noted above, a reviewing court will only reverse for plain error
when a clear or obvious error occurs and (1) the evidence is so closely
balanced that the error alone threatened to tip the scales of justice
against the defendant, regardless of the seriousness of the error, or (2)
the error is so serious that it affected the fairness of the defendant’s
trial and challenged the integrity of the judicial process, regardless of
the closeness of the evidence. Piatkowski, 225 Ill. 2d at 565.
We first consider whether a clear or obvious error occurred. If the
prosecutor’s comments constitute an argument for the statutory
aggravating factor in section 9–1(b)(8) of the Criminal Code, then the
State violated the trial court’s order. Under that scenario, we would
then consider whether defendant is entitled to a new sentencing
hearing based on the closeness of the evidence or the seriousness of
the error. However, the State’s argument is that it did not improperly
argue a statutory aggravating factor. The State contends that no clear
or obvious error occurred because the trial court’s order imposed
limitations only on the available statutory aggravating factors and did
not limit nonstatutory aggravating evidence. The State also argues
that the statements made during closing argument referred to conduct
that does not qualify for the statutory aggravating factor specified in
subsection (b)(8) and, therefore, did not improperly argue an
additional statutory aggravating factor. Rather, the prosecutor’s
comments provided the basis for a nonstatutory aggravating factor.
Thus, for defendant to prevail, either we must conclude that the
prosecutor improperly argued an undisclosed statutory aggravating
factor or, in the alternative, we must reject the State’s argument that
the trial court’s order limiting the aggravating factors to be argued
during the sentencing phase did not also preclude additional
nonstatutory factors.
The State’s argument on this issue rests on there being a
significant distinction between the argument that defendant was
motivated to kill his victims by a desire to prevent them from later
serving as witness and an argument based on the statutory factor
covering that very motivation. The State argues it can argue the
former without arguing the latter if the motivation and circumstances
of the crime do not meet the technical requirements of the statutory
factor codified in subsection (b)(8).
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The State distinguishes People v. Adams, 109 Ill. 2d 102 (1985).
In that case, the prosecutor made several references which expressly
argued application of subsection (b)(8). In the first phase of the
sentencing trial, the prosecutor stated, “I would ask you to sign the
verdict finding the aggravating factors stating that Adams not only
committed murder and armed robbery but he committed in the fashion
that the Legislature has said if you do it that way with the intent, if
you are the person who did it, if you do it to knock off a witness, then
you qualify for the death penalty.” (Emphasis omitted.) Adams, 109
Ill. 2d at 125-26. In the second phase, the prosecutor was more direct,
stating “there’s another factor and another way that Adams qualified
for falling into the category of the death penalty, and that was that the
murdered individual was a witness in the prosecution or was an
eyewitness or possessed other material evidence against the
Defendant.” Adams, 109 Ill. 2d at 128.
In Adams, this court concluded, based on People v. Brownell, 79
Ill. 2d 508, 525-26 (1980), that subsection (b)(8) could not be used as
an aggravating factor permitting the State to “regard the slain person
not only as the victim of murder but also as a witness to the crime of
his own murder as well.” Adams, 109 Ill. 2d at 127.
In this case, as noted above, the State argued in closing that
defendant executed L.M. “to prevent her from being a witness against
him.” The record does reflect that defendant told police he was afraid
L.M. would “tell on him.” However, the State argues that this
statement should not be construed as a suggestion by the State that
subsection (b)(8) applies. Specifically, the State notes “it is implausible
that defendant killed L.M. with the intent to silence her from talking
to police that is required under subsection (b)(8).” (Emphasis in
original.) We agree with the State that Adams would have prevented
the State from seeking and arguing an instruction based on the
statutory aggravating factor of killing a witness, as L.M. was a witness
only to the crimes being perpetrated by the defendant at that time–her
rape and murder. Likewise, at trial the State suggested that Lonna was
killed because “[t]his defendant can’t have any witnesses. He had just
shot Rachel, and 12-year-old Lonna knows him. She begged for her
life. She could also be a witness, and he can’t have that. So he
executed her, too.” Again, under Adams, the only crimes to which
Lonna was a witness were those crimes being committed by the
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defendant at that time, including her own murder.
The State, therefore, recognizes that section (b)(8) could not have
applied and that arguing this statutory factor would have been
improper. However, as the State suggests, arguing that defendant did
not want to leave any witnesses is not the same as arguing the
statutory factor. Importantly, unlike the prosecutor in Adams, the
State here made no reference to subsection (b)(8) or to the legislature
having decided this factor was important. As far as the jury was
concerned, defendant’s motivation to leave no witnesses had no
imprimatur from the legislature and the jury could choose, or choose
not, to assign aggravating weight to that motivation. Thus, although
the State was not entitled to argue the statutory aggravating factor
codified in subsection (b)(8), both by the factor’s own terms and by
the limits placed upon the State by the trial court, the State was
entitled to argue the facts and circumstances of the case as a
nonstatutory aggravating factor.
By way of analogy, subsection (b)(7) is an aggravating factor
based on the age of the victim and the cruelty leading to the victim’s
death. However, if a victim in a particular case were over 12 years
old, the State is not precluded from arguing, as a nonstatutory factor,
that the victim was young and that his death resulted from cruel,
brutal and heinous behavior. Indeed, in this case, the jury was not
instructed to consider the statutory factor codified at subsection
(b)(7). Nonetheless, the State emphasized that Lonna was 12 years old
and that defendant coldly executed her after she begged for her life.
Although we agree that the State did not improperly argue an
additional statutory factor, we must still ask whether the trial court’s
order also prevented the State from arguing additional nonstatutory
factors. The State argues that the context of the discussion regarding
the discovery violation suggests that the court’s order prohibited the
State only from arguing additional statutory factors. The State also
asserts that a defendant is not entitled to disclosure of nonstatutory
aggravating factors and that, therefore, even if the court intended to
prohibit additional nonstatutory aggravating factors, it was improper
for the court to enter such an order.
Defendant’s original motion for discovery, which the trial court
granted, asked the court to compel discovery of aggravating factors
pursuant to Supreme Court Rule 416. Defendant asked that he be
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informed “which statutory and non-statutory aggravating factors the
State intends to rely upon.” However, although defendant’s motion
asked for disclosure of both types of aggravating factors, Rule 416
requires the State to file a “Notice of Intent to Seek or Decline Death
Penalty,” which “shall also include all of the statutory aggravating
factors enumerated in section 9–1(b) of the Criminal Code of 1961.”
(Emphasis added.) 188 Ill. 2d R. 416(c). Thus, the rule itself does not
expressly require disclosure of nonstatutory aggravating factors.
The discussion of defendant’s motion seeking to bar the State
from seeking the death penalty also fails to support defendant’s
argument and instead suggests that only disclosure of statutory
aggravating factors was required. Counsel for the defendant suggested
to the court that “the issue that the defendant has raised is whether
there is compliance with Rule 416.” Later, after the State had
provided the court with its original notice of intent, filed in 1996,
defense counsel again referenced Rule 416, noting “[Rule] 416 says
‘the State shall’ in two places and puts the burden and requirement on
the State.” Counsel noted defendant “filed a motion *** requesting
that [the State] give us those aggravating factors as they are required
to do by rule.” Counsel’s argument was centered on its claim that the
State had failed to conform to the rule.
The trial court acknowledged this fact, specifically noting “the
issue in this matter is whether the State complied with the
requirements of Supreme Court Rule 416 in disclosing to the
defendant the statutory aggravating factors which it intends to prove
in the sentencing phase of this proceeding.” The State’s argument
acknowledged that there had been a technical violation of Rule 416 in
that it had not complied with the court’s order to again provide
disclosure of the statutory aggravating factors. Still, the State argued
that the “spirit and the letter of 416 were complied with ten years ago”
and that there was no danger of unfair surprise to defendant
After considering the parties’ arguments, the court found that
“there has been a failure to make a written disclosure pursuant to
Supreme Court Rule 416(c).” As noted above, however, the court
concluded that there was substantial compliance with the rule because
the State had, prior to defendant’s first trial, provided written
disclosure of aggravating factors and had, prior to the second trial,
orally indicated it would be seeking the death penalty. In fashioning a
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remedy when there is substantial compliance with the rule, the court
noted that the purpose of the rule is to avoid unfair surprise.
Concluding that there had been no surprise to defendant, the court
declined to grant defendant’s motion in full. Instead, it allowed the
State to seek the death penalty, but required it to comply with Rule
416(c) by the end of the day and prohibited the State from adding
“aggravating factors” that were not originally disclosed.
Although the court’s order did not expressly limit the aggravating
factors to be disclosed, we conclude that given the framing of the
issue by the court and both parties, the court’s order instructed the
State to bring itself into compliance with Rule 416. Rule 416 requires
only disclosure of statutory aggravating factors. Although the State,
prior to the first trial, did opt to inform the defendant of the
nonstatutory aggravating factors it intended to argue, Rule 416 does
not compel the State to do so. Therefore, the fact that the State did
not disclose this additional argument as a nonstatutory aggravating
factor cannot be a ground upon which we can grant defendant relief.
As we conclude that the trial court’s order limiting the State’s use
of additional aggravating factors applied only to statutory factors, we
need not address the State’s second argument that any order limiting
nonstatutory aggravating factors was improper.
Because the State’s arguments were proper, we also conclude that
no clear or obvious error occurred and, therefore, we need not
address the rest of defendant’s plain-error argument.
VIII. Supreme Court’s Duty to Conduct Independent Review of
Death Sentence
We find no basis for reversal of defendant’s sentence in the issues
he has raised before this court. However, “[w]hen requested to do so,
this court reviews the evidence in a capital sentencing hearing to
determine whether death is the appropriate penalty, even in the
absence of trial error.” People v. Thompson, 222 Ill. 2d 1, 36 (2006).
If we find that the sentence of death is fundamentally unjust, given the
facts of the particular case, we may overturn the sentence and order
the imposition of imprisonment. 720 ILCS 5/9–1(i) (West 2008).
After careful consideration of the evidence adduced, we find no
fundamental injustice in this case and concur in the jury’s
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determination that death is the appropriate penalty.
CONCLUSION
For the foregoing reasons, we affirm defendant’s conviction and
death sentence. We direct the clerk of this court to enter an order
setting Tuesday, January 11, 2011, as the date on which the sentence
of death shall be carried out. Defendant shall be executed in the
manner provided by law. 725 ILCS 5/119–5 (West 1996). The clerk
of this court shall send a certified copy of the mandate in this case to
the Director of Corrections, the warden of Tamms Correctional
Center, and the warden of the institution where defendant is confined.
Affirmed.
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