People v. Thompson

Docket No. 97373.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

CURTIS A. THOMPSON, Appellant.

Opinion filed April 10, 2006.

CHIEF JUSTICE THOMAS delivered the judgment of the court,

with opinion.

Justices Freeman, Garman, and Karmeier concurred in the

judgment and opinion.

Justice Fitzgerald specially concurred.

Justice McMorrow dissented with opinion.

Justice Kilbride took no part in the decision.

OPINION

Following a jury trial in the circuit court of Stark County,

defendant, Curtis A. Thompson, was convicted of three counts of first

degree murder (720 ILCS 5/9B1(a) (West 2002)) for killing three

persons. Defendant was also convicted of one count of home invasion

(720 ILCS 5/12B11(a)(5) (West 2002)), two counts of attempted first

degree murder (720 ILCS 5/9B1(a), 8B4(a) (West 2002), three counts

of aggravated discharge of a firearm (720 ILCS 5/24B1.2(a)(3) (West

2002)), one count of disarming a police officer (720 ILCS 5/31B1a

(West 2002)), and one count of criminal damage to property (720

ILCS 5/21B1(1)(a) (West 2002)). Defendant thereafter waived his

right to a jury at sentencing. Following a death penalty hearing, the

trial court found defendant eligible for the death penalty based on

three factors: defendant had murdered a police officer, he had

murdered two or more persons, and two of the murders had occurred

during the course of a home invasion. After hearing evidence in

aggravation and mitigation, the trial court concluded that there were

no mitigating factors sufficient to preclude imposition of the death

penalty. Accordingly, the trial court sentenced defendant to death on

each of the first degree murder convictions. The trial court also

sentenced defendant to terms of imprisonment of 50 years on each of

the attempted murder convictions, 30 years for home invasion, 15

years for aggravated discharge of a firearm, and 3 years for criminal

damage to property, all sentences to run concurrently. The court did

not impose sentence on two of the aggravated discharge of a firearm

counts, finding that it was precluded from doing so by the one-act,

one-crime rule. Defendant=s appeal was brought directly to this court

because he was sentenced to death. Ill. Const. 1970, art. VI, '4(b);

134 Ill. 2d R. 603.

Defendant does not challenge the sufficiency of the evidence to

convict him, and he raises no issues with respect to the

guilt/innocence phase of his trial. Instead, defendant raises three

issues challenging his sentence. The first issue contests his death

sentence as being excessive in light of the aggravation and mitigation

presented at the penalty phase of his sentencing hearing. Defendant=s

two remaining issues pertain to the constitutionality of the death

penalty.

BACKGROUND

We have thoroughly reviewed the record in this case. Because the

resolution of the principal issue raised is largely dependent on the

weight of the evidence in aggravation and mitigation, we will set

forth a comprehensive summary of the evidence adduced at

defendant=s lengthy trial and sentencing proceedings.

At the guilt phase of defendant=s trial, the State presented

testimony showing that defendant armed himself with a sawed-off

shotgun and went on a shooting spree, first killing a police officer

and then two neighbors in the presence of their 10-year-old daughter.

After killing the officer and two neighbors, defendant drove through

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town and engaged other police officers in a low-speed chase before

opening fire on the officers.

Shirley Brown was the first witness called by the State at

defendant=s trial. She testified that on the evening of March 22, 2002,

she was on duty in her employment as a dispatcher for the Stark

County sheriff=s department. Deputy Adam Streicher was also on

duty that evening and in uniform. Streicher came to the station,

checked the active warrant file and ran computer checks on

outstanding warrants. Streicher left the station shortly after 7 p.m. in

his squad car and began running license plate checks. At some point,

he called Brown and asked for the phone number for defendant=s

residence. When records showed that the number was unavailable,

Streicher asked Brown for information on an outstanding warrant

against defendant. Brown informed Streicher that the percentage

applied for the warrant required payment of $100. Streicher signed

off and was never heard from again. Brown grew concerned for the

deputy, but her repeated attempts to radio him for status were

unavailing.

James Batey testified that around 7 p.m. on March 22, 2002, he

stepped outside the front door of his house to watch a Stark County

sheriff=s deputy in a squad car run license-plate checks on vehicles

parked on the street. The officer parked his squad car in front of

defendant=s house, which was one house over from Batey=s house.

Batey observed the officer standing at defendant=s front door with his

hands at his side. As Batey turned and opened the door to his house,

he heard a loud shot that Asounded like an M-80.@ He then saw

defendant look toward the ground and nudge something with his foot.

At that point, Batey moved closer and established eye contact with

defendant. Batey then ran into his house to put his shoes on. When he

came back outside, he saw that the squad car that had been parked in

front of defendant=s house was now speeding toward the property of

James and Janet Giesenhagen. Batey watched the squad car slam into

the Giesenhagens= vehicle. Defendant emerged from the squad car,

ran up to the door of the Giesenhagens= home with a rifle in hand, and

kicked the door in. Batey then heard a woman scream, followed by a

gunshot. As Batey ran to his house, he heard another gunshot. Batey

then loaded his family into their van in order to evacuate the area. As

they drove past defendant=s house, they saw a slain sheriff=s deputy

lying in front of defendant=s house.

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Marilyn Giesenhagen testified that she is the 71-year-old mother

of James Giesenhagen and that she lived across the alley from her

son. Sometime around 7 p.m. on March 22, 2002, she received a

phone call from her granddaughter Ashley Giesenhagen, who is the

daughter of James and Janet. Ashley said, Agrandma, come quick.

Curt Thompson just killed my daddy and hurt my mommy.@ Marilyn

then went to the home. She found Janet on the kitchen floor, with her

hand Ablown off@ and having difficulty breathing. She found her son

at the bottom of the basement stairs in a pool of blood.

Emergency Medical Technician Michael Jezierski testified that he

was dispatched to the Giesenhagen home after receiving a call of a

multiple shooting incident. Upon arrival, Jezierski found that James

Giesenhagen had a large amount of blood around his head, had no

pulse and was not breathing. After determining that James was

beyond medical help, Jezierski turned to Janet and found that her

hand was amputated at the wrist and she had suffered multiple

puncture wounds to her left upper torso.

Jason Rice testified that on the night of the murders he was

driving home after having had dinner with his parents. As Rice drove

through town, a squad car deliberately collided with his truck. When

Rice exited his truck to check the damage, he recognized defendant

sitting in the squad car. Rice was afraid of defendant from his past

experience with him. Rice explained that he used to live next door to

defendant, and defendant had a habit of glaring at and trying to

intimidate people in town. Sometimes defendant would follow Rice

through town in his vehicle. On one occasion in August 2001, some

people were spinning their tires on the road near Rice=s home.

Defendant came over to Rice=s front porch and blamed him for the

incident. Defendant then threatened Rice with a club and told Rice

that he Awould bury [him] in a pine box.@ Thus, on the night of March

22, 2002, Rice fled the scene of the collision with the squad car when

he saw defendant sitting inside it. On cross-examination, Rice

admitted that he had lit off a bottle rocket near defendant=s house

before defendant came to Rice=s porch on the night of their encounter

in August 2001.

Bradford Police Officer Mark James testified that after hearing a

radio report of gunshots at Deputy Streicher=s last-known location,

James went to that neighborhood and immediately encountered

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defendant driving Streicher=s vehicle. James put his vehicle in

reverse, and the Streicher vehicle inched toward him at about five

miles per hour. As this continued, it appeared at one point that

defendant was going to ram James= vehicle. James picked up speed in

reverse until other officers were in position; he then stopped in order

to block the roadway. At that point, defendant rammed James= car.

James exited his vehicle and slowly approached defendant, who

could not be seen because of the now crumpled hood on Streicher=s

squad car. James repeatedly commanded defendant out of the vehicle,

and on the third such command, defendant shot at James through the

passenger side window. James took cover and returned fire. Within

the next several minutes, other officers arrived at the scene to provide

backup. Jimmy Dison, the Stark County chief deputy sheriff,

eventually pulled defendant out of the squad car and handcuffed him.

Toulon Police Chief Robert Taylor testified that he and Officer

Brian Rewerts responded to the scene and observed James= vehicle

proceeding in reverse as it was being pursued by Streicher=s squad

car. Taylor and Rewerts were driving separate vehicles. They

followed defendant as he drove toward James. When Officer James

stopped in front of defendant, Taylor and Rewerts blocked the road

from behind. Taylor exited his vehicle and observed defendant

shooting at James. Taylor stood there for a couple of seconds, felt

something strike him, and realized that he too was under attack.

Taylor eventually placed himself in position for a clear shot at the top

of defendant=s head. Taylor fired one quick shot, and there was no

more gunfire that night. Within a few seconds, Chief Deputy Dison

arrived and pulled defendant from Streicher=s vehicle.

On cross-examination, Chief Taylor noted that he had known

defendant since at least 1993 because of defendant=s prior contacts

with the police department. Taylor explained that on a few occasions

defendant had tailgated police officers or swerved his vehicle at them.

Brian Rewerts, an officer with the police department in

Wyoming, Illinois, testified that he helped block the road from

behind defendant. When Rewerts exited his vehicle, he realized that

shots were being fired by defendant from Streicher=s vehicle. Rewerts

attempted to move his vehicle closer to defendant, but was unable to

do so because his back tires had been shot out. Rewerts watched

Dison remove a wounded defendant from the vehicle, along with a

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sawed-off shotgun and handgun taken from defendant=s lap. Rewerts

noted that in addition to the damage to his tires, his vehicle had two

gunshot holes in the passenger side doors.

Chief Deputy Jimmy Dison testified that after he disarmed

defendant and removed him from the Stark County police vehicle, his

thoughts turned to the plight of Deputy Streicher. Dison and the other

officers ran to defendant=s house and found Streicher=s dead body

lying on the ground in front of defendant=s house outside the closed

front door.

Dison further testified that in December of 2001, he went to

defendant=s home wearing his uniform and driving a marked squad

car. On that occasion, Dison walked up to defendant and said, ACurt,

we have got a warrant for you. It=s a hundred dollars bond. I will give

you a week to get the money and come up and post bond on the

warrant.@ Initially, defendant did not respond, but as Dison turned to

leave, defendant said, Ayou will have to come back and get me.@

On cross-examination, Dison testified that the warrant was issued

for the purpose of revoking probation for defendant=s failure to pay

court costs in a case in which defendant was convicted for assaulting

Joe Tracey.

Lee Ellington, a nurse at St. Francis Hospital in Peoria, Illinois,

testified that defendant was a patient in her care on March 30, 2002,

eight days after the murders. At one point that day, defendant

admitted that he had shot the victims. The next day, defendant told

Ellington that Ahe didn=t mean to shoot the woman, all she had to do

was put a tourniquet on her arm but the bitch died anyway.@

Defendant also said that Aa lot more people were going to get it when

he got out.@ Later on that same day, defendant told Ellington that he

was Asorry the child had to see it, but all she had to do was close her

eyes.@ Defendant was not under any medication when he made these

statements.

The forensic and crime-scene-investigation evidence revealed that

Deputy Streicher died from a shotgun wound, delivered at close range

to the neck and upper chest. Janet Giesenhagen died from a massive

shotgun wound delivered at close range to her arms and chest that

caused major damage to her entire upper torso and resulted in pellet

fragments penetrating her chest and lungs and severing her right

hand. James Giesenhagen died from a gunshot blast inflicted at

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intermediate range to the face, neck and chest.

After concluding its case in chief, the State rested, and defendant

raised an insanity defense. Defendant presented the testimony of a

number of witnesses, along with two mental health expertsBDrs. John

Day and Robert ChapmanBto support his defense. The State

presented the psychiatric testimony of Dr. Andrew Kowalkowski to

rebut the defense.

The defense first called Joseph Tracey, who testified that he

began working for James Giesenhagen in the Giesenhagens= heating

and air conditioning business about five years before the murders.

Tracey=s duties required him to sometimes work in an alley behind

the Giesenhagens= home. Defendant would often drive past and stare

hatefully at Tracey, even though Tracey himself never had any

previous history with defendant. The Giesenhagens, however, did

have a history with defendant, as they had filed a lawsuit against him

some years earlier. On one of these occasions when defendant drove

past, he yelled to Janet Giesenhagen that Athey had better stop

harassing him or he would get even.@

Tracey recalled an incident where he was driving on a highway

about seven miles southwest of Toulon, while looking for a location

where he was to bid on a construction job. Defendant came down the

road in his truck and began following Tracey. Defendant passed

Tracey, blocked the intersection ahead, exited his truck and

proceeded toward Tracey=s vehicle, holding a hammer. Defendant

told Tracey that he was Agoing to beat the shit out of [him].@ Tracey

eventually drove in the ditch around defendant=s truck and continued

on his way. He later called the sheriff=s department to report the

incident. Defendant was eventually brought to trial over the matter,

convicted and ordered not to have any contact with Tracey.

Nonetheless, about two months later, defendant began driving by

Tracey=s house and past him while he worked in the alley behind the

Giesenhagen house.

Tracey also had two other encounters with defendant. In February

of 2000, Tracey was shopping in a grocery store in Toulon.

Defendant began following Tracey through the aisles, trying to

intimidate him. Defendant then said to him, AYou son of a bitch, you

better stay out of my business or I am going to get you.@ In March

2002, defendant briefly blocked Tracey=s van at an intersection in

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downtown Toulon.

On cross-examination, Tracey stated that the Giesenhagens

routinely left scrap metal and other business-related items in the back

of their property. When defendant drove through the alley, he always

stayed on the public way and never left his vehicle. With respect to

the incident where defendant threatened Tracey with a hammer,

Tracey acknowledged that he had had a hard time locating the job site

and that he happened to drive past a piece of farm property defendant

owned along the road. At the time, Tracey was driving a company

van that identified the Giesenhagens= business. Defendant did not

actually try to hit him or the van with the hammer, and defendant

never attempted to run him off the road. Defendant was convicted for

assault over the offense. At sentencing on the charge, the incident at

the grocery store was brought up, and defendant was ordered to stay

away from Tracey and his family and was placed on probation for

two years. Tracey also acknowledged that defendant did not threaten

or even speak to him at the grocery store until after Tracey asked to

use the store phone to call the police.

Lonny Dennison testified that he was the Stark County sheriff for

20 yearsBfrom 1982 to 2002. Dennison noted that during that time, he

had Adealings with defendant that went real well and *** dealings

where we would have words back and forth. If it didn=t go his way,

then [defendant] was upset.@ Dennison further noted that people

would get into confrontations with defendant and then come to the

sheriff=s office to complain. But most people did not want to sign a

complaint. The Giesenhagens, however, did sue defendant over a dog

bite. Defendant went to trial and was found Anot guilty.@

On cross-examination, Dennison acknowledged that the dog-bite

case was a civil suit. He noted that in the years after the case,

defendant held a grudge against the Giesenhagens. Dennison also

stated that defendant never came to him complaining about someone;

it was always other people complaining about defendant=s behavior.

Angela Smith, a nurse at St. Francis Hospital who cared for

defendant following the shootings, testified that defendant told her he

Adidn=t know what the big deal was@ and that he had done Anothing

wrong.@ Defendant also told Smith that he had suffered for 30 years,

but the victims had only suffered for 30 minutes.

Jerry Abbed testified that he has owned a grocery store in Toulon

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for the past 15 years. About six months before the murders, he saw

defendant threatening Tracey at the store. Abbed put his hand on

defendant=s shoulder and told him to Atake it outside.@ Defendant

responded by telling Abbed not to push him. After the incident,

defendant=s behavior toward Abbed completely changed. About a

month later, defendant drove up to Abbed and yelled profanities at

him. Defendant wanted to fight, so Abbed told him to get out of the

truck and go to it. But defendant continued yelling and threatening

until the police came five minutes later. This kind of behavior

continued to the point where every time defendant saw Abbed he

would swear at him and want to fight. About two weeks before the

murders, defendant stopped his truck in front of the store and said to

Abbed, AIf you are man enough, follow me to the farm and I will kill

you and nobody will find you there anyway.@

Donald St. John testified that he was a farmer in Toulon and saw

defendant on a periodic basis in connection with farming-related

matters. On one occasion, the two men compared physical ailments,

and defendant said that he suspected some of his neighbors of

Astealing.@ St. John explained that defendant told him that one farmer

would not sell defendant some heifers, but things were eventually

patched up when the farmer sold them at a low price that pleased

defendant. Furthermore, defendant never said that anyone was out to

get him.

Under cross-examination, St. John admitted that all the incidents

that defendant mentioned were real incidents and that they essentially

amounted to a matter of people taking advantage of defendant in

business transactions. For example, defendant was mad at a

veterinarian that he had to pay for coming to help at the birth of a calf

that died in the birthing process. St. John also acknowledged that

defendant was capable of holding longstanding grudges.

Julian Hickman testified that he worked with defendant from

1969 until 1985. Although defendant was a hard worker, he was bitter

and did not like authority. When Hickman became defendant=s boss,

defendant=s attitude toward him Adid not change much.@ One time,

defendant brought Hickman=s handicapped daughter a present while

he was dressed as Santa Claus. On cross-examination, Hickman

stated that defendant was fired nine different times from his job with

the mining company, but he was able to get it back each time because

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of union rules.

Art Whitaker testified that he was 64 years old and had known

defendant since they were in grade school together. He worked with

defendant for a year in the early 1960s. He lost track of defendant for

a number of years after that, but reestablished a relationship when

defendant started doing work for Whitaker=s father-in-law. Whitaker

noted one incident in which defendant was Ashorted@ on a deal

involving cattle feed. Whitaker said that he knew defendant was right

in this instance because the sellers admitted that they had shorted

defendant.

On cross-examination, Whitaker stated that defendant held a

grudge over being shorted on the cattle feed. Whitaker also recalled

that one time he and defendant were visiting on the front porch of

defendant=s house when the phone rang. Defendant=s wife answered

and told defendant that James Giesenhagen was coming over to work

on the furnace. Defendant then told Whitaker that he had to leave

because Giesenhagen had a restraining order against defendant.

Whitaker described defendant as a Anormal@ person.

The defense called clinical psychologist John Day, who testified

that he conducted a psychological assessment of defendant, using two

testsBthe Minnesota Multiphasic Personality Inventory (MMPI) and

the Millon Clinical Multiaxial Inventory (MCMI). The first addresses

clinical issues, the second personality issues. The MMPI results

indicated that defendant had Ainterpersonal alienation,@ which is

difficulty relating to people Ain the social realm.@ Day explained that

a number of defendant=s scores on this test exceeded the normal range

and therefore became clinically significant. Defendant scored high in

Aparanoia, suspiciousness,@ and this was his highest score of all those

that were elevated above the normal range. Day noted that he would

expect to see a score like that in less than 2% of the population.

Day stated that defendant had elevated scores on the MCMI in

Aparanoid ideation,@ depression, and Aavoidance of social situations.@

Day explained that defendant is not Apsychotic by any means, but just

has a different frame of reference than a typical person.@

Day also testified that defendant discussed the murders with him

during his evaluation. According to Day, defendant claimed that

when the deputy came to serve the warrant, he entered through the

door with a gun in hand and ordered defendant to put his shirt on.

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Defendant told Day that he knew that as part of his probation, he had

been ordered to pay $15 dollars a month for six to eight months, at

which time the court would review his compliance in paying the fine.

He also knew that he had not paid the required monthly payments and

that the court had reviewed his noncompliance. When the officer

came to his door, defendant had a shotgun sitting on a toolbox

nearby. Defendant picked it up, and the deputy went back out the

door. Defendant then went out the door with the shotgun. Defendant

claimed that he shot the deputy because he believed the deputy was

going to shoot him first, as he had pointed a gun at defendant=s chest.

After shooting the deputy, defendant went back inside and put his

shirt on. When he came outside, he took the deputy=s gun and squad

car. He then went to the Giesenhagens= home because he Aalready had

a deputy so why not get them.@ Defendant wanted Janet Giesenhagen

to remember all the pain she had caused him when she sued him in

the dog-bite case. Even though he had prevailed on the merits, it cost

him $20,000 in legal bills, and the Giesenhagens had been Athumbing

their nose at [him] for 15 years.@ Defendant claimed that he did not

intend to kill them, he only Awanted to maim@ them. After shooting

the Giesenhagens, defendant drove through town and the police

eventually caught up with him. He exchanged gun fire and ended up

wounded in the head. Defendant concluded his rendition by telling

Day that AI am supposed to be such a bad ass that people wanted to

try to get me upset,@ but AI never swatted a fly unless it shit on me

first.@

Day believed that defendant was suffering from two disorders:

delusional disorder of a persecutory type and paranoid personality

disorder. ADelusional disorder of a persecutory type@ is characterized

by a false belief system grounded in nonbizarre delusions because it

is based upon things that can happen in everyday life, as opposed to

things that are not possible. The persecutory type of nonbizarre

delusion applies when the theme of the delusion involves the personal

belief that the person is Abeing conspired against, cheated, spied on,

followed, poisoned or drugged, maliciously maligned, harassed, or

obstructed in the pursuit of long-term goals, meaning their own

personal goals.@ Day explained that even though there is no factual

basis for thinking that any of those things are happening, the

delusional person believes that they are. Day concluded that, on the

day of the crimes, defendant suffered from a mental

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diseaseBdelusional disorder of a persecutory typeBthat prevented him

from appreciating the criminality of his conduct.

On cross-examination, Day admitted that he never asked

defendant such specific things as who was conspiring against him,

who was harassing or maligning him, how they were doing it, or what

his long-term goals were. Day explained that he did not ask defendant

to elaborate on these matters because this would have ruined their

rapport and would have made defendant suspicious. Day further

emphasized that he did not ask about the specifics of defendant=s

beliefs because in making his diagnosis, he needed only to focus on

the Athemes of how [defendant] sees the world, not the yes or no

facts.@ He was not concerned with determining if there was a rational

basis for believing that there was a conspiracy against defendant;

instead he was concerned only with Athe behavioral patterns that

would be interpreted back into his personality style.@

Psychiatrist Robert Chapman also testified on behalf of

defendant. Chapman conducted two diagnostic interviews of

defendant and administered the MMPI to defendant. He determined

from a review of defendant=s history that defendant=s mother was a

self-centered and suspicious person, who had abandoned defendant at

eight years old after his father had died. Defendant then lived with a

relative for a number years. Defendant reported that he did not have

any significant history of behavioral problems in school. He quit

school after the tenth grade and married at the age of 17. He had three

grown children, who were all college educated.

Chapman found a consistent thread running through his

interviews: defendant claimed that he was the victim of harassment

and abuse by Athe powers that be,@ which included authority figures

such as the police or anyone with power over him. In defendant=s

mind, there was a conspiracy against him, with the ultimate goal of

driving him away or killing him. Chapman opined that defendant shot

Streicher because defendant Awas in fear of his life, that could be

described as *** mortal fear, that the people, the conspiracy, the 20

years or more of harassment and attempt to do him in had converged

into that moment and there was a situation in which he was in mortal

danger. They were here, they were after me, they have come, they=re

over the wire, they=ve violated the perimeter, there [sic] in my house,

this is it.@ Furthermore, according to Chapman, defendant considered

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the Giesenhagens to be part of the Apowers that be@ because they had

filed a lawsuit against him. It was as though the Giesenhagens

Apsychologically were standing right behind the officer.@

Chapman concluded that defendant suffered from a Adelusional

disorder, persecutory type.@ Defendant=s condition was chronic,

continued after his crimes, and was not lessening. The diagnostic

criteria for this disorder required that the person suffering from it

experience a nonbizarre delusion for a period of at least one month.

Defendant met this criterion because he has believed that there has

been a conspiracy against him for over 20 years. Chapman explained

the difference between a bizarre and nonbizarre delusion. A bizarre

delusion, which defendant did not have, is something that cannot

occur in real life, and would include schizophrenia and thought

disorders, such as Adisorganized thought, hallucinations, and

deteriorating life course function.@ Defendant, in contrast, was able to

raise and support a family, maintain some friends, lead a general law-

abiding life and participate in the fabric of the community as much as

his delusions would allow him. Chapman rejected the diagnosis of

Aantisocial personality disorder@ because he felt that defendant did not

meet the criteria, which required evidence of antisocial behavior in

childhood, as well as criminal acts throughout his life that were

designed to meet his own selfish ends. Chapman concluded that

defendant lacked substantial capacity to appreciate the criminality of

his conduct on the date of the offenses.

Under cross-examination, Dr. Chapman catalogued defendant=s

criminal history and said that it was consistent with his delusional

belief system. In 1967, defendant punched a car dealer after bringing

a car in for service. In 1971, he was convicted of disorderly conduct

for fighting along a road next to the high school. In 1980, defendant

fought with a neighbor, and in 1986, he was sued in two separate

dog-bite casesBone brought by the Giesenhagens and one brought by

Chad Boughan. In 1987, defendant hit his brother with a spade;

defendant then went to the sheriff=s department to tell them of the

incident. In 1998, defendant wanted to fight Richard Hartley, a

neighbor, because defendant had spread oil on the gravel of his

property and he thought that Hartley had reported him over it.

According to Chapman, defendant said that on the day of the

murders, he worked on his farm, returned home, ate dinner and began

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watching television. Defendant told Chapman that he did not Aexpect@

the officer. Defendant never said that he was afraid that he was going

to be shot or that there had been a Abreach of the perimeter.@

Chapman never asked defendant why he shot Officer Streicher.

Conclusions about these things were inferred by Chapman on his

own. Chapman acknowledged that when defendant referred to the

Apowers that be,@ he identified only the police, the sheriff and the

State=s Attorney. Chapman did not record anywhere in his written

report that defendant had told him that the Giesenhagens were part of

the Apowers that be.@ Chapman acknowledged that defendant had told

him that he had been suspended from school Aone or more times@ and

had been in fights as a youth. When asked about the fights, defendant

said that he had been picked on.

Chapman admitted that after his first interview with defendant, he

had no firm diagnosis, but had written down Aparanoid personality@

and not Adelusional disorder.@ He explained that after he discussed the

case with defense lawyers and Dr. Day and reviewed Day=s findings,

he went back to examine defendant again to look for Amissing

information.@ He further explained that he was not convinced at that

point that defendant had an Aorganized delusional system in place@ so

as to rule out the diagnosis of delusional disorder. At the second

examination, defendant was more cooperative. Chapman admitted

that defendant did not specify any incidents close in time to March

22, 2002, when defendant felt that he had been followed, maligned or

harassed. The only incident Chapman recorded involved a time when

a police officer stopped along the road to Aharass@ defendant=s

children and that occurred well over 20 years before. Chapman did

not ask defendant about any of the facts surrounding the murders

themselves during the second interview or why he shot Deputy

Streicher and the Giesenhagens.

Chapman was asked Awhy [defendant] went over to the

Giesenhagens and broke into their home if he was in mortal fear of

his life?@ Chapman responded that defendant Awas in mortal fear

when the officer was there,@ but then added that defendant did not tell

him that, he merely assumed it from the clinical evidence. Chapman

further stated that he was unsure as to whether defendant was actually

in fear of the Giesenhagens. Chapman admitted that he did not ask

defendant why he went over to the Giesenhagen home and initiated

his aggressive action.

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Chapman acknowledged that there were at least two incidents

where defendant either initiated contact with the Apowers that be@ to

elicit their aid or accepted their aid when it was offered. In 1989, the

sheriff brought defendant=s aging mother to defendant=s home

because it was determined that she could no longer live on her own.

The next day, defendant called the sheriff to come to his house to Abe

a witness for him,@ while his mother recited where she wanted to live.

Additionally, between 1986 and 1997, defendant was cordial with

Shane Milroy, the Director of public works for Toulon. Defendant

had some land use violations on his property, and defendant accepted

Milroy=s offer to have a city truck move some items on his land.

Chapman also acknowledged that Milroy was someone who had

power over defendant and could be considered part of the Apowers

that be.@ Chapman also admitted that documents showed that Milroy

had testified on behalf of the Giesenhagens in the dog-bite case.

Chapman opined, however, that defendant could get along with

Milroy because Milroy never confronted defendant with an

authoritative attitude.

Finally, Chapman testified that defendant did not meet the criteria

for antisocial personality disorder. He acknowledged that the criteria

for that disorder required a pervasive pattern of disregarding the

rights of others, occurring from the age of 15, as indicated by three or

more of the following: (1) failure to conform to social norms with

respect to lawful behaviors as indicated by repeatedly performing

acts that are grounds for arrest; (2) deceitfulness as indicated by

repeated lying, using aliases or conning others for personal profit or

pleasure; (3) impulsivity or failure to plan ahead; (4) irritability and

aggressiveness as indicated by repeated physical fights or assaults;

(5) reckless disregard for the safety of self or others; (6) consistent

irresponsibility as indicated by repeated failure to sustain work

behavior or honor financial obligations; (7) lack of remorse as

indicated by being indifferent to or rationalizing having hurt,

mistreated, or stolen from another. Chapman, however, did not

believe that defendant met any of these seven criteria.

The State called psychiatrist Andrew Kowalkowski, who was

appointed by the court to examine defendant as to his sanity at the

time of the murders. Dr. Kowalkowski reviewed the background and

historical information on defendant, the police reports and the

psychological report of Dr. Day. Kowalkowski then conducted an

-15-

interview of defendant, where defendant discussed his personal and

social history. Defendant also related his past criminal history and

contact with law enforcement. Defendant recalled an incident that

occurred when he was in his early twenties and his children were

playing in the front yard. The sheriff pulled his vehicle in front of

defendant=s house and asked why the children were playing in the

yard. Defendant felt that the sheriff was being Aa smart ass.@

Defendant further remembered that he was once charged with

aggravated battery and spent a week in jail. He was also fined for

another incident, which he did not specify. Defendant also recalled a

time when someone did not like the way he had parked his car, so

defendant confronted him with a pick handle. Defendant described an

ongoing problem he had over a large woodpile that he kept on his

property to heat his home with. It had recently been started on fire by

someone, and it was the second time it had happened. He believed

that the first time it had been set on fire by Joseph Tracey, an

employee of the Giesenhagens. Defendant was convicted of assault

and placed on probation as a result of confronting Tracey over the

woodpile situation. Defendant told Kowalkowski that when he

Apissed the wrong way in their mind you came to court.@ Defendant

said that 10 or 15 years earlier he had gone to court over an allegation

that one of his dogs had bitten one of the Giesenhagens= children.

Defendant recounted to Kowalkowski that he had problems with

other neighbors as well. James Rice and his roommate lived in a

rented house next door. According to defendant, they had disturbed

him by spinning donuts in the road and shooting out street lights.

Dr. Kowalkowski asked defendant about the events that occurred

on March 22, 2002. Defendant said that he did not remember

anything that happened on the night in question from the time he sat

down to watch television around 6 p.m. until he was in the hospital

for a gunshot wound inflicted by police. Defendant also said that he

understood the charges that had been brought against him, and when

asked why he was in jail, defendant responded, Ayou tell me, I

suppose it is the powers to be.@ When Kowalkowski asked defendant

to define what he meant by the phrase Athe powers to be,@ defendant

responded that his Aown words were nowhere in the 800 pages of

documents he=s been allowed to review.@ This was the only time that

defendant used the phrase Athe powers to be@ during the interview.

Defendant also acknowledged that he understood that he was on

-16-

probation at the time the murders were committed. When asked if he

knew it was wrong to kill someone, defendant responded, AI never

killed a fly that did not shit on me first.@

Dr. Kowalkowski believed that defendant was exhibiting

Amalingering amnesia@ in claiming not to recall the events that

occurred on the night of the murders. Malingering amnesia is the

intentional production of false or grossly exaggerated physical or

psychological symptoms to avoid prosecution. Kowalkowski noted

that defendant=s long- and short-term memory was intact, pointing out

that defendant had told a hospital nurse that Ahe had shot that bitch in

the hand so she would have a reminder for the next 20 or 30 years

***. She must have bled to death, didn=t know how to make a

tourniquet.@

From his interview of defendant and review of the background

information, Dr. Kowalkowski found no evidence of delusions, fixed

false beliefs, or misinterpretation of external reality. Accordingly,

Kowalkowski did not believe that defendant had any delusional

disorder. Kowalkowski diagnosed defendant as having Aparanoid

personality disorder@ and Aantisocial personality disorder.@ A

personality disorder is demonstrated by a pattern of inner beliefs and

behavior that cause an individual to markedly deviate from the

expectations of society. According to Dr. Kowalkowski, these

disorders are not significant mental disorders or defects; rather, they

are behavior or conduct disorders.

Kowalkowski explained that paranoid personality disorder

requires that a person have a pervasive distrust and suspiciousness of

others, interpreting their motives as malevolent, beginning by early

adulthood and present in a variety of contexts, as indicated by at least

four out of seven listed factors. Defendant satisfied four of the listed

factors. First, he suspects, without sufficient basis, that others are

exploiting, harming or deceiving him. Second, he is reluctant to

confide in others because of unwarranted fear that the information

will be maliciously used against him. Third, he persistently bears

grudges and is unforgiving of insults, injuries and slights. Fourth, he

perceives attacks on his character or reputation that are not apparent

to others and is quick to react angrily or to counterattack.

With respect to the antisocial personality disorder, Kowalkowski

noted the seven criteria used to diagnose it, and that these criteria

-17-

start in late adolescence and continue onward throughout life.

Kowalkowski believed that this personality disorder manifested itself

in defendant=s repeated acts that are grounds for arrests, his

impulsiveness, his irritability and aggressiveness, his repeated failure

to maintain consistent work behavior and his lack of remorse. Thus,

defendant satisfied five of the seven criteria, with only three needed

to make the diagnosis. Kowalkowski further explained that there was

some evidence of this conduct disorder before the age of 15 because

defendant had reported that Aat times he got into the average number

of fights that kids would get into.@ When the doctor asked defendant

to explain what he meant, defendant would not do so.

Dr. Kowalkowski concluded that defendant was not insane at the

time he committed the murders. Defendant did not suffer from a

mental disease or defect that would have caused him to lack

substantial capacity to appreciate the criminality of his conduct.

Paranoid personality disorder and antisocial personality disorder are

major disorders of behavior, not mental disorders. Dr. Kowalkowski

disagreed with the assessments of Drs. Day and Chapman, both of

whom concluded that defendant suffered from a Adelusional disorder,

persecutory type.@ According to Dr. Kowalkowski, the threshold

requirement for that kind of delusional disorder is nonbizarre

delusions. Defendant did not suffer from any nonbizarre delusions,

which entail a false belief. Defendant himself sought out law

enforcement when he need helpBhe called the sheriff for assistance

over the matter of his mother=s guardianship and he asked for aid

from Shane Milroy and was able to work cooperatively with him

even though he was the director of public works for Toulon.

Kowalkowski learned in an interview with defendant=s son that

defendant had mounted a legal defense to the dog-bite case because

of the Aprinciple of the matter@ and no mention was made of a

conspiracy, persecution or a false belief. Kowalkowski noted that in

contrast to relating delusions, defendant consistently related

information about real events that had occurred in the past. These

were not delusions. Instead, defendant had a personality disorderBan

enduring pattern of inner beliefs and behavior that caused him to be

suspicious of others and to interpret their motives as malevolent.

On cross-examination, Dr. Kowalkowski testified that he

premised his finding that defendant had a conduct disorder based on

defendant=s report of getting into fights as a child. Kowalkowski

-18-

acknowledged that defendant had not told him that he had started the

fights. Kowalkowski had assumed that defendant initiated them

because he refused to discuss them further when asked to do so.

When asked about his finding that defendant did not have delusions,

Kowalkowski testified that if defendant thought people were

following him when they were not, this would qualify as paranoia,

not a delusion. When asked if defendant=s belief that the

Giesenhagens had set his woodpile on fire was false, Kowalkowski

replied that he did not know whether the Giesenhagens had set the

woodpile on fire or not and, therefore, did not know if defendant=s

thinking about it was false. Finally, Kowalkowski stated that

defendant likely refused to discuss the crimes because of his paranoid

personality disorder.

In rebuttal, defendant recalled Dr. Chapman, who testified that

defendant does not meet the diagnostic criteria for antisocial

personality disorder because there is not enough information about

defendant=s childhood history to make a retrospective diagnosis of the

disorder. Chapman explained that a reconstruction of defendant=s

childhood cannot be done in this case because both of his parents are

now deceased and therefore cannot be interviewed, school records are

not available, and the only evidence from people who knew him as a

youth indicates that he was reliable, went to school and was a hard

worker. Although defendant told Kowalkowski that he got into the

Ausual boyhood fights,@ it is not known who initiated the fights.

Chapman opined that defendant likely refused to discuss the

particulars of his crimes with Dr. Kowalkowski because of his

delusional disorder.

Under cross-examination, Dr. Chapman admitted that he never

attempted to delve into how many times defendant had gotten into

fights or whether he had initiated them. Chapman also admitted that

defendant had marked Atrue@ to questions about having been

suspended from school and having been sent to the principal=s office

for behavioral problems.

Following closing arguments, the jury was instructed on the

applicable law. It subsequently rejected the insanity defense and the

guilty but mentally ill verdict. Instead, it returned verdicts finding

defendant guilty of three counts of first degree murder, two counts of

attempted first degree murder, one count of disarming a peace officer,

-19-

one count of home invasion, one count of criminal damage to

property and multiple counts of aggravated discharge of a firearm.

The jury acquitted defendant of the armed robbery of Deputy

Streicher, the attempted murder of Officer Rewerts and a count of

aggravated vehicular hijacking.

After admonishments from the court, defendant waived a jury for

both the eligibility and penalty phases of the sentencing hearing. The

defense presented no evidence at the eligibility phase, and the trial

court took judicial notice of the evidence introduced at trial and the

convictions that were entered. The trial court found defendant eligible

for the death penalty because defendant was at least 18 years old and

had murdered a police officer during the course of his official duties,

had murdered two or more persons, and had committed two of the

murders during the course of a home invasion. The matter then

proceeded to the penalty phase of sentencing.

In aggravation, the State first called Larry Bantz, who testified

that he runs a drive-up produce stand located in the front of his house

on Highway 78. On October 21, 2001, defendant drove up to the

stand in a truck, loaded around 500 pounds of potatoes and 100

pounds of onions, and then drove away without paying anything for

the produce. Bantz later learned that defendant was trying to sell the

produce himself. About two weeks later, defendant returned to

Bantz=s produce stand and admitted that he had Awiped [Bantz] out of

potatoes and onions a couple of weeks ago.@ Defendant then gave

Bantz $50. When Bantz explained that the value of the produce was

more than $50, defendant told him that he was not going to pay any

more. Bantz=s father, who was also present, told defendant that Ait

wasn=t right.@ Defendant then told Bantz=s father Ato shut his fucking

mouth or he would shut it for him@ and that he would do what he

wanted, when he wanted. When Bantz informed defendant that he

was going to call the police, defendant responded that it did not make

any difference, they had never done anything to him in the past.

Bantz then told defendant that he did not want defendant coming

back to the stand anymore unless he was going to pay for the

produce. Defendant replied Afuck you,@ and told Bantz that he better

watch his family, which included two children and a pregnant wife. A

couple of days after this confrontation, defendant came by and in

anger yelled at Bantz that he had better watch his family and his

belongings. Sometime later, defendant again drove by Bantz=s home,

-20-

Aglaring@ and Alooking *** like he was checking things out.@

On cross-examination, Bantz testified that he had reported his

confrontation with defendant to the sheriff=s department. Bantz

acknowledged that he told defendant during their encounter that he

owed a total of $64, and that at another point, he told defendant that if

he ever came back he would leave either in Aan ambulance or a body

bag.@

Judy Preston, a dispatcher at the Stark County jail, testified that in

June 2003, she was supervising the facility when defendant was being

held there. In accordance with jail procedures, Preston=s job duties

included opening all inmate mail and scanning it for contraband or

inappropriate remarks. Preston informed defendant of this procedure.

A short time later, Preston opened a letter from defendant to his wife,

with words directed to Preston that stated, Alook inside, bitch@ and

Ayou still have your fat nose in here.@ In another writing, defendant

again referred to Preston as a Abitch@ and stated Ayou still have your

fucking nose in here and your fat ass, too.@ When informed that his

conduct was inappropriate and could result in some of his mail

privileges being revoked, defendant told Preston to Astick it up [her]

ass.@

Robert Winn, a chief deputy with the Stark County sheriff=s

department, testified that his duties included supervising visitation at

the jail. In June 2005, Winn supervised a visit between defendant and

his wife. During the visit, defendant told his wife that the employees

at the jail were all Abastards@ and he Ashould have shot them all.@

Defendant then asked about his dog, as defendant had been allowed

to see the dog on a prior visit. When defendant was informed that no

animals were allowed in the jail, defendant looked at Winn and said

Afuck you.@ Thereafter, defendant repeatedly refused to flush the

toilet in his jail cell, forcing plumbing modifications to be made to

the jail flushing system.

After presenting victim impact testimony, the State rested, and the

defense began its case in mitigation. Defendant introduced the

psychological reports compiled by Day and Chapman. The first

witness called by the defense was Dale King, an Illinois State Police

investigator. King testified that he interviewed Bantz on May 9,

2002, about the theft that occurred at his produce stand. According to

King, Bantz said that he had told defendant that if he ever came back

-21-

he would leave in either Aan ambulance or a body bag.@ Defendant

left, and Bantz never heard from defendant again and did not receive

the remaining $50 that was owed.

The next witness called by the defense was 21-year-old Chaderick

Carlton, who testified that he sometimes helped defendant do his

chores. Carlton described defendant as smart, helpful and a good

friend, who taught him a lot of things, such as how to make repairs.

On cross-examination, Carlton acknowledged that defendant was

handy enough to know how to saw off a 12-gauge shotgun to make it

more deadly.

Mary Hartley testified that she was a neighbor of the defendant

and that she got along fine with him. She attributed this to the fact

that she stayed on Aher side of the road@ and did not let defendant=s

messy property bother her. Sometimes defendant glared at her, but

other times they were able to talk about defendant=s dog-training

activities. Defendant was a hard worker, and when her house was

damaged by fire, defendant was the first person to help her, bringing

her a meal and letting her use a cell phone and a watch. On another

occasion, defendant bought her a dish at an auction.

Walter Bass testified that he worked with defendant from 1988 to

1990 and the two became friends. Bass noted that defendant was

amazingly handy. Defendant helped him on a number of occasions

with personal projects and declined to be paid in return. Bass

believed that defendant was honest because on one occasion

defendant came to his house looking for a way to haul a pony he had

promised to give some child for his birthday. On cross-examination,

Bass testified that defendant had never complained to him that he had

been harassed, conspired against or spied upon.

Michael Keller testified that he has known defendant for about

seven or eight years. They met for coffee on a regular basis, and

defendant helped him with repairs on Keller=s property. Under cross-

examination, Keller admitted that defendant held lengthy grudges and

that a person had to Awalk on egg shells, at times,@ around defendant.

Defendant once became angry at Keller because Keller referred to a

piece of machinery owned by defendant as Aold.@ Keller was aware

that defendant had killed two persons over a grudge, but he still

considered defendant to be a friend.

Eugene Boehle, a building contractor, testified that he hired

-22-

defendant to pour concrete and do odd jobs. Defendant was a good,

dependable worker. Boehle felt that defendant was trustworthy and

noted that on one occasion, in a snowstorm, defendant returned a

tractor he had borrowed because he thought Boehle might need it.

Boehle also noted that a week before the murders he had breakfast

with defendant.

Gregory Knowles testified that he considered defendant a friend,

but not a close friend. Defendant helped Knowles with a number of

projects and did not ask for payment. On cross-examination, Knowles

noted that defendant was easily angered if anyone tried to argue with

him.

Barbara Kraklow and Janine Streitmatter testified that defendant

helped them with projects. Streitmatter said that defendant was good

to her and described him as the Anicest guy you would ever want to

meet.@

David Thompson, defendant=s son, was also called to testify.

David stated that he was 40 years old at the time of trial and that he

had an older brother and sister. He graduated from Bradley

University in 1985, and was currently employed by the Illinois

Department of Transportation as an engineer. Defendant paid for the

college education of each of defendant=s children. David described

his upbringing as normal and said that defendant was a good father,

who taught him to work hard. David also stated that defendant

spoiled David=s daughter Corey with nice gifts. On one occasion,

Corey asked defendant for a pony, and he brought her one on a truck

and delivered it to the backyard.

David testified that 13 years ago he bought defendant a 13-acre

farm because defendant always wanted to be a farmer and he loved

animals. After defendant was fired from his job with the mining

company in the mid-1980s, it was harder for him to make ends meet,

and he became frustrated when the work he did for others was not

fairly compensated.

Under cross-examination, David testified that defendant carried a

weapon on a routine basis, but he never left a weapon lying around

the house, where somebody could grab it and hurt someone

accidentally. Defendant kept three loaded guns in his truck and 10 or

12 guns in his house.

Amy Lewis was the final witness called by defendant. Lewis

-23-

testified that her family owns a farm that is one-half mile from

defendant=s property. She described defendant as a good friend. They

helped each other with making improvements to their respective

properties. Defendant also worked for her husband in her husband=s

building-contractor business, as defendant was a fine carpenter.

Lewis also noted that she and her family went on a number of

camping and fishing trips with defendant, and they always had a good

time with him. Lewis stated that she has regularly visited and written

to defendant while he has been in jail and values defendant=s

friendship. On cross-examination, Lewis testified that there was

never anything bizarre about defendant=s actions and he always

socialized in a normal manner.

After hearing closing arguments, the trial court recessed to

consider its verdict. When it returned, the court recounted the

evidence presented in aggravation and mitigation and then concluded

that there were no mitigating factors sufficient to preclude imposition

of the death penalty. Accordingly, the court sentenced defendant to

death.

ANALYSIS

At the outset, we note that the parties advocate differing standards

of review for assessing a claim that a death sentence is an excessive

punishment in light of the aggravation and mitigation presented at the

sentencing proceeding. The State urges that we review the death

penalty determination for an abuse of discretion, and defendant

contends that we conduct a careful review of the record that is just

short of a de novo review. Consequently, we will briefly discuss the

appropriate standard of review to be employed in this area of our

jurisprudence.

A perusal of our case law shows that we apply neither a pure

abuse of discretion nor a pure de novo standard in deciding the

propriety of a death sentence. Some older decisions of this court

appear to have reviewed capital, excessive-sentencing challenges for

an abuse of discretion. See, e.g., People v. Ward, 154 Ill. 2d 272, 338

(1992); People v. Foster, 119 Ill. 2d 69, 103-04 (1987). 1 More

1

Review of a death penalty sentence for an abuse of discretion is all that

is constitutionally required. The United States Supreme Court has noted that

-24-

recently, however, we have noted that although the abuse of

discretion standard pertains to sentencing determinations in general,

we are less deferential to the trial court in cases involving a sentence

of death (People v. Williams, 192 Ill. 2d 548, 576 (2000)). Yet,

despite the diminished deference when a sentence of death is

imposed, a capital sentencer=s decision will not be lightly overturned

where it is amply supported by the record. See People v. Mertz, 218

Ill. 2d 1, 54 (2005), citing People v. Taylor, 166 Ill. 2d 414, 432

(1995); see also People v. Burton, 184 Ill. 2d 1, 35-36 (1998).

Given the qualitative difference between death and imprisonment

as penalties, we reject the notion that a pure abuse of discretion

standard of review should obtain in capital cases. Instead, we believe

that it is appropriate to give some deference to the trial court or jury

on matters involving factual and credibility determinations (see

People v. Ballard, 206 Ill. 2d 151, 188-89 (2002)), while at the same

time subjecting the record to intense scrutiny to ensure that only

those deserving of the ultimate penalty are so sentenced. In doing so,

we are guided by the following well-settled principles and standards.

The decision made at the second stage of a death penalty hearing

is, and always has been, a process of evidentiary balancing. Mertz,

218 Ill. 2d at 54. It requires the trier of fact to measure the evidence

in aggravation against the evidence in mitigation. See Mertz, 218 Ill.

2d at 54; Ballard, 206 Ill. 2d at 188; Taylor, 166 Ill. 2d at 432. After

a defendant is found death eligible, the trier of fact is then free to

consider a myriad of factors to determine whether death is the

appropriate punishment. Simmons v. South Carolina, 512 U.S. 154,

the Constitution requires Ameaningful appellate review, and that this

standard is satisfied in a Aweighing@ state, such as Illinois, by an appellate

court=s considering Awhether the evidence is such that the sentencer could

have arrived at the death sentence that was imposed.@ Clemons v.

Mississippi, 494 U.S. 738, 748-49, 108 L. Ed. 2d 725, 738, 110 S. Ct. 1441,

1448 (1990).

-25-

163, 129 L. Ed. 2d 133, 142, 114 S. Ct. 2187, 2193 (1994);

California v. Ramos, 463 U.S. 992, 1008, 77 L. Ed. 2d 1171, 1185,

103 S. Ct. 3446, 3457 (1983). A defendant=s character, prior criminal

history, mental capacity, background, age, and future dangerousness

are just a few of the factors that a trier of fact may consider in fixing

the appropriate punishment. Mertz, 218 Ill. 2d at 56, citing Simmons,

512 U.S. at 163, 129 L. Ed. 2d at 142, 114 S. Ct. at 2193-94. Because

it is a weighing process for the trier of fact, which has the superior

opportunity to assess firsthand the credibility and believability of the

witnesses on the stand, we will not lightly overturn the trier of fact=s

decision. See Ballard, 206 Ill. 2d at 188-89. While keeping this in

mind, we will conduct our own thorough and careful review,

considering the circumstances of the crimes and the character of the

defendant to determine whether the death penalty is appropriate.

People v. Chapman, 194 Ill. 2d 186, 253-54 (2000).

As we recently stated in both Mertz and Ballard,

A >In determining whether a sentence of death is proper,

we must consider >the character and record of the individual

offender and the circumstances of the particular offense.=

People v. Pitsonbarger, 142 Ill. 2d 353, 388 (1990), citing

Woodson v. North Carolina, 428 U.S. 280, 304, 49 L. Ed. 2d

944, 961, 96 S. Ct. 2978, 2991 (1976). >[E]ach capital case is

unique and must be evaluated on its own facts, focusing on

whether the circumstances of the crime and the character of

the defendant are such that the deterrent and retributive

functions of the ultimate sanction will be served by imposing

the death penalty.= People v. Johnson, 128 Ill. 2d 253, 280

(1989). >A death sentence is appropriate if the sentence is

commensurate with the seriousness of the offenses and gives

adequate consideration to relevant mitigating circumstances.=

Pitsonbarger, 142 Ill. 2d at 388.@ Mertz, 218 Ill. 2d at 55,

quoting Ballard, 206 Ill. 2d at 179.

When 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. Mertz, 218 Ill.

2d at 54. This is consistent with the legislative directive that this

court may overturn a death sentenceBirrespective of any procedural

grounds or trial errorBif this court finds that the death sentence is

-26-

Afundamentally unjust as applied to the particular case.@ 720 ILCS

5/9B1(i) (West 2004).

I. Excessive-Sentence Argument

With these principles in mind, we turn now to defendant=s

contention that his death sentence is excessive. Defendant claims that

the death penalty is inappropriate because he acted under an extreme

mental disturbance at the time of the murders and he had no

significant prior criminal history.

Section 9B1(c) of the death penalty statute provides that the trier

of fact shall consider any aggravating and mitigating factors which

are relevant to the imposition of the death penalty. 720 ILCS 5/9B1(c)

(West 2004). Aggravating factors may include, but need not be

limited to, those set forth in subsection (b), which include that the

defendant murdered a peace officer engaged in his official duties, that

the defendant murdered two or more persons and that the defendant

murdered someone during the course of a home invasion. 720 ILCS

5/9B1(b), (c) (West 2004). Listed among the statutory mitigating

factors that the court may consider, along with others not listed, are

that (1) the defendant has no significant history of prior criminal

activity and (2) 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

5/9B1(c)(1), (c)(2) (West 2004). If the trier of fact determines beyond

a reasonable doubt that one or more of the factors set forth in

subsection (b) exists at the first stage of the sentencing proceeding,

the trier of fact shall then consider any aggravating and mitigating

factors as indicated in subsection (c) at the second stage, known as

the penalty phase of the proceeding. 720 ILCS 5/9B1(f), (h) (West

2004). If the trier of fact determines that there are no mitigating

factors sufficient to preclude the imposition of the death sentence, the

court shall sentence the defendant to death. 720 ILCS 5/9B1(h) (West

2004).

The mere existence of mitigating evidence does not preclude

imposition of the death penalty. Burton, 184 Ill. 2d at 34. It is

presumed that the circuit court considered any mitigating evidence

before it, absent some indication to the contrary other than the

sentence itself. Burton, 184 Ill. 2d at 34. Furthermore, a sentencer

-27-

may consider, in aggravation, evidence of a defendant=s prior

misconduct, even though the conduct may not have resulted in

prosecution or conviction. People v. Davis, 205 Ill. 2d 349, 367

(2002). If the aggravation is believed, the trier of fact may find that a

defendant=s mitigation evidence was insufficient to overcome the

aggravating factors. Davis, 205 Ill. 2d at 368-69.

The trial court in the present case considered all of the evidence

and its plausibility, the testimony of the witnesses and their

credibility, and the law that applies to the decision of whether or not

the death penalty should be imposed. Additionally, the court

considered the nature and circumstances of the offenses committed,

the history, character and condition of defendant, as well as whether

or not defendant could be restored to useful citizenship.

Specifically, the trial court cited in aggravation the serious crimes

that were committed by defendant while armed with a sawed-off

shotgun, a weapon that has no legitimate purpose. Additionally, the

court noted that defendant had committed past crimes against others,

both charged and uncharged, and that he was on criminal probation

and in violation of it at the time the offenses were committed on

March 22, 2002. The court further noted that defendant had sought to

demonstrate that he acted out of a paranoid and delusional fear, or

some other mental or psychological ailment. The court found,

however, that defendant=s acts were not the product of insanity or any

kind of mental or psychological malady. Instead, the court found that

defendant had acted out of hatred for those who served in the

community as law enforcement officers and out of hatred and

bitterness for neighbors who crossed his path. Moreover, defendant

had continued to hurt, insult, threaten and intimidate others even

while incarcerated, and therefore continued to pose a threat to

society.

The trial court acknowledged the evidence offered in mitigation

showing defendant=s talents, good deeds, capacity for normal

friendships, his childhood, and his concern for his family. The court

found, however, that the mitigation was outweighed by the

overwhelming evidence in aggravationBspecifically, Aevidence of

defendant=s criminal intent, violent revenge, hatred of people and

authority, threats and intimidation of citizens of [the] community and

the apparent belief that [defendant] with a sawed off shotgun in hand

-28-

has the right to determine that those who sue him or disagree with

him or whose duty it is to arrest him shall die.@ Finally, the court

looked for any evidence of remorse, no matter how remote, but was

unable to find any. Instead, the court found that defendant=s

comments, character and attitude suggested that, if given the

opportunity, defendant would kill again for Awhatever unjustified

purpose he determined.@

After careful review, we conclude that the finding that defendant

did not act under an extreme mental disturbance at the time of the

murders is amply supported by the record. Dr. Kowalkowski testified

that defendant did not suffer from any delusional disorder. Rather,

defendant suffered from two behavioral disordersBparanoid

personality disorder and antisocial personality disorder. These were

not significant mental disorders. Kowalkowski explained that some of

the key ingredients of a paranoid personality disorder included (1)

suspecting others of harming, exploiting or deceiving without a

sufficient basis to do so, (2) reluctance to confide in others because of

unwarranted fear that the information will be maliciously used, (3)

persistently bearing grudges and having an intolerance for insults,

injuries and slights, and (4) perceiving attacks on one=s character that

are not apparent to others and being quick to react angrily or

counterattack. These indicia were well supported by the testimonial

evidence at trial that came from defendant=s neighbors and

acquaintances, which indicated that defendant held long-standing

grudges, did not like to be argued with, and became upset if things

did not go his way. Dr. Day, defendant=s own expert, also believed

that defendant had a paranoid personality disorder. Dr. Kowalkowski

did not find any evidence of delusions, noting that defendant=s

reactions were all based on real events and his reactions were

explained by his personality disorders.

In contrast to Dr. Kowalkowski, the two defense expertsBDrs.

Chapman and DayBdid believe that defendant had a delusional

disorder. Specifically, Chapman testified that defendant shot Deputy

Streicher because defendant was in Amortal fear@ for his own life

based on a A20-year conspiracy,@ and that it was as though the

Giesenhagens Apsychologically were standing right behind the

officer.@ However, Chapman testified on cross-examination that he

merely assumed these things. Moreover, he was not sure that

defendant was actually in fear of the Giesenhagens and he never

-29-

asked defendant why he initiated the aggressive action toward them.

We believe that the suggestion that defendant acted out of a

delusional Amortal fear@ is belied by the overwhelming evidence in

the record to the contrary. Defendant never stated that he was afraid

of the police or the Giesenhagens. Instead, defendant explained that

he murdered the Giesenhagens because he had already killed a deputy

Aso why not get them.@ In other words, defendant was already looking

at a life sentence, at a minimum, for killing a police officer, so he felt

free to kill two of his neighbors against whom he held a grudge.

Defendant himself explained that he killed the Giesenhagens because

he wanted to punish them for having filed a lawsuit against him and

they Ahad been thumbing their nose at [him] for 15 years.@ None of

this, of course, indicates Amortal fear@ even in defendant=s mind.

Rather, it shows that defendant was motivated by revenge and hate

for neighbors that had crossed him. Defendant=s disdain for the police

likely stemmed from an incident that occurred many years before

when a police officer stopped to ask about his children playing in the

front yard and defendant thought the officer was Abeing a smart ass.@

We find nothing particularly significant about defendant=s use of the

phrase Athe powers to be@ to describe the police.

We further note that the evidence showed that defendant knew

that Streicher had come to his door because defendant had not paid

the small amount of court costs that were assessed on his assault

conviction. Defendant=s claim that Streicher pulled a weapon on him

appears to be a self-serving attempt by defendant to lessen his

culpability rather than a product of a delusion. In any event, the claim

was contradicted by the eyewitness testimony of James Batey, who

testified that the deputy stood outside defendant=s door with his hands

at his side just before the shooting.

Defendant=s own actions and words also contradict any notion

that he was afraid of police officers or authority. Instead, defendant=s

actions and comments indicate that he had a disdain for police and

authority. On various occasions, defendant actually sought out police

to harass them, tailgating and swerving at them in his vehicle. When

Chief Deputy Dison came to defendant=s house two months before

the murders and cordially explained that defendant could post bond

on the outstanding warrant against him by simply coming to the

station within the next week, defendant replied, Ayou will have to

-30-

come back and get me.@ Thereafter, defendant did not pay the $100

bond, but instead armed himself with a sawed-off shotgun, which he

kept within easy reach in his living room. After killing the

Giesenhagens, defendant drove slowly through town, seeking out

other police officers to harm.

Defendant=s comments to Larry Bantz at the time of their

confrontation at the produce stand also show that defendant had no

fear of the police department. When Bantz informed defendant that

he was going to call the police, defendant responded that it would not

make any difference because Athey had never done anything to him in

the past.@

The evidence further showed that defendant accepted and sought

out the aid of police and those in authority when it suited him.

Defendant called the Stark County sheriff for assistance with his

mother=s guardianship. Moreover, defendant asked for and accepted

aid from Shane Milroy, working cooperatively with him, even though

Milroy was a public official and had been a witness for the

Giesenhagens in their dog-bite case. Finally, Lonny Dennison, the

Stark County sheriff for 20 years, testified that he had Adealings with

defendant that went real well,@ but if things did not go defendant=s

way, then he would be upset. Dr. Kowalkowski pointed to these

incidents of cooperation with law enforcement as an indication that

defendant did not have nonbizarre delusions as the defense experts

claimed, but was instead tied into reality, always relating real events,

albeit interpreting them through his paranoid and antisocial

personality disorders. Under the circumstances, we see no reason to

disturb the trial court=s finding that defendant did not act under a

significant mental or psychological impairment at the time of the

offenses at issue.

We also note that even if defendant did have a significant

psychological disorder, we would still find that the sentencing court

in this case properly concluded that the mitigation evidence was not

sufficient to preclude the imposition of the death penalty when

weighed against the aggravating evidence. This court has repeatedly

held that evidence of a defendant=s mental or psychological

impairments may not be inherently mitigating, or may not be

mitigating enough to overcome the evidence in aggravation. Ballard,

206 Ill. 2d at 190 (death penalty affirmed despite evidence that the

-31-

defendant suffered from a bipolar disorder that is characterized by

extremes of mood and sometimes Adelusions and hallucinations@);

People v. Macri, 185 Ill. 2d 1, 66 (1998) (prosecutor could properly

argue in aggravation that the defendant=s antisocial personality

disorder showed his violent nature); People v. Madej, 177 Ill. 2d 116,

139 (1997) (the defendant sought to show at a postconviction

proceeding that his substance abuse negatively affected his

psychological and neurological health, but was ultimately

unsuccessful on his petition because mitigation evidence of

defendant=s mental health does not necessarily preclude a death

sentence); People v. Tenner, 175 Ill. 2d 372, 382 (1997) (defense

counsel was not ineffective where he failed to obtain a mental health

evaluation because such evidence is not inherently mitigating); see

also Taylor, 166 Ill. 2d at 432 (death penalty was appropriate despite

defendant=s mental conditionBschizo-typal personality

disorderBwhich resulted in the defendant hearing voices); People v.

Christiansen, 116 Ill. 2d 96, 129 (1987) (death penalty appropriate

despite mitigating evidence of emotional and mental disturbance,

alcoholism, drug addiction, poor health, deprived childhood, and

remorse); People v. Montgomery, 112 Ill. 2d 517, 533 (1986) (death

penalty appropriate despite an extreme mental or emotional

disturbance). A judge or jury considering evidence of this nature at

sentencing might view the information as either mitigating or

aggravating, depending of course, on whether the individual hearing

the evidence finds that it evokes compassion or demonstrates possible

future dangerousness. Ballard, 206 Ill. 2d at 190; Macri, 185 Ill. 2d at

66. Furthermore, even if a defendant=s psychological and neurological

impairments are considered as mitigating factors, such evidence does

not preclude imposition of a death sentence when that evidence is

outweighed by aggravating evidence. Ballard, 206 Ill. 2d at 190;

Madej, 177 Ill. 2d at 139-40; Taylor, 166 Ill. 2d at 432-33.

Here, the trial court specifically found that defendant remained a

threat to society, and that if given the opportunity, he would continue

to be violent. We believe that this conclusion was supported by

defendant=s shocking lack of remorse, his threats to others in the

community and his statements that he regretted not being able to

shoot jailhouse employees and that Amore people were going to get it

when he got out.@ With respect to his lack of remorse, defendant

chided 10-year-old Ashley Giesenhagen for not closing her eyes

-32-

when defendant gunned down her parents in the child=s presence.

Even though defendant had shot Ashley=s mother with a sawed-off

shotgun at close range, causing massive injuries, defendant scolded

the victim for not knowing how to fashion a tourniquet, adding Abut

the bitch died anyway.@ Defendant was also rude and insulting to

jailhouse staff, and indicated that he would have liked to kill them

too. Given that a defendant arrested for a capital crime has every

incentive to behave flawlessly while incarcerated because good

behavior might cause a sentencing authority to spare his life (Mertz,

218 Ill. 2d at 90; Ballard, 206 Ill. 2d at 189), it is truly remarkable

that defendant continued to be abusive and belligerent. It indicates

that the trial court justifiably concluded that defendant remained a

serious danger to others, even in a prison setting, and that executing

him was the only means of eliminating the threat to prison staff or

other inmates. See Mertz, 218 Ill. 2d at 90, citing Simmons, 512 U.S.

at 165 n.5, 129 L. Ed. 2d at 143 n.5, 114 S. Ct. at 2194 n.5.

Defendant contends that his prior criminal history was minor and

should be considered a mitigating factor. We agree that this is an

appropriate mitigating factor to consider. However, it is presumed

that the trial court considered any mitigating evidence before it,

absent some indication to the contrary other than the sentence itself.

Burton, 184 Ill. 2d at 34. Furthermore, the sentencing authority in a

capital case may consider, in aggravation, evidence of a defendant=s

prior misconduct, even though the conduct may not have resulted in

prosecution or conviction. Davis, 205 Ill. 2d at 367, quoting People v.

Smith, 176 Ill. 2d 217, 255 (1997). If the aggravation is believed, the

trier of fact may find that a defendant=s mitigation evidence was

insufficient to overcome the aggravating factors. Davis, 205 Ill. 2d at

368-69, quoting People v. Flores, 153 Ill. 2d 264, 296 (1992). Here,

the trial court considered defendant=s prior misconduct, both charged

and uncharged, and concluded that it, along with all of the other

aggravating evidence, outweighed the mitigating evidence. This was

proper under Davis, 205 Ill. 2d at 365-71.

Specifically, the court had before it evidence that aside from the

violent crimes of March 22, 2002, defendant threatened Jason Rice

with a club, threatened Joseph Tracey with a hammer, later verbally

assaulted Tracey in the grocery store, blocked intersections around

Toulon, tailgated police, threatened to kill Jerry Abbed and leave his

body in place where Ano one would find him,@ and stole produce from

-33-

Bantz=s farm stand and then threatened Bantz=s family. The court also

heard testimony that defendant had a number of physically violent

outbursts from 1967 through 1998, in which he attacked various

neighbors, a car dealer and a sibling.

Defendant further argues that his positive life

accomplishmentsBsome good deeds, hard work, concern for his

family, helping his children through school and normal

friendshipsBshould be considered as some evidence in mitigation to

tip the scale in his favor. The trial court, however, carefully

considered all of this evidence and concluded that it was outweighed

by the aggravating circumstances mentioned above, which included

the nature of the crimes committed on March 22, 2002, taken together

with defendant=s long-standing history of threats and intimidation

against citizens of the community and his unrepentant belief that he

has a right to shoot people with a sawed-off shotgun who disagree

with him or sue him. Under the circumstances, we find that the trial

court=s conclusion that the mitigating evidence was insufficient to

preclude imposition of the death penalty in light of the aggravating

evidence was amply supported by the record.

Defendant cites People v. Carlson, 79 Ill. 2d 564 (1980), People

v. Buggs, 112 Ill. 2d 284 (1986), People v. Johnson, 128 Ill. 2d 253

(1989), and People v. Leger, 149 Ill. 2d 355 (1992), cases in which

the death penalty was vacated as excessive, and argues that there is

no basis on which those cases may be distinguished from the present

one. Defendant quotes People v. Thomas, 178 Ill. 2d 215, 249-50

(1997), as distilling from the foregoing line of cases the factors this

court considers most significant in considering whether a death

sentence is excessive: Athe circumstances surrounding the murder

generally involved the defendant acting under an extreme mental or

emotional disturbance. [Citations.] In addition, the defendants in

those cases generally led blameless lives with little contact with the

criminal justice system.@

The State argues that the cases cited by defendant are

distinguishable. First, in all four cases the murders were accompanied

by sudden, explosive outbursts. Here, defendant=s conduct was an

amplification of a violent, mean and confrontational attitude for

which defendant was well known in the community. Second, Buggs

and Carlson rested on the crucial fact that there were two statutory

mitigating factors in play for defendants: they acted under extreme

-34-

mental or emotional disturbances and they had no significant prior

criminal history. Here, defendant had a behavioral disorder, not a

mental disorder, and had not led a blameless life. Third, in Buggs and

Carlson, defendants found themselves at the center of Aunique and

tragic@ events which were not likely to be repeated in the future: each

defendant was experiencing unique and complicated marital

problems. In contrast, defendant here was not confronted with

Atragic@ events; rather, defendant was confronted with routine, even

mundane events in that he was served with a warrant that he could

have satisfied by paying $100 and he had been a defendant in a dog-

bite case 15 years earlier. Fourth, each case is distinguishable from

the present case on any one of a number of salient pointsBlike

military service, a show of remorse, a relatively blameless life, or

severe marital difficulties.

Defendant urges a comparison of this case with the facts of

Carlson, Buggs, Johnson and Leger, but we note that comparative

proportionality review in death penalty cases is not required by the

United States Constitution, 2 and it is not a feature of the capital

sentencing process under the Illinois Constitution (Williams, 192 Ill.

2d at 576; People v. Cole, 172 Ill. 2d 85, 115 (1996); People v.

Palmer, 162 Ill. 2d 465, 491 (1994)). Nonetheless, on a number of

occasions this court has indicated that the principles enunciated in

these cases may be helpful in determining whether the death penalty

is appropriate, while emphasizing that each case must ultimately be

evaluated on its own facts. See, e.g., People v. Heard, 187 Ill. 2d 36,

2

In Pulley v. Harris, 465 U.S. 37, 44, 79 L. Ed. 2d 29, 36, 104 S. Ct.

871, 875-76 (1984), the United States Supreme Court determined that the

eighth and fourteenth amendments do not mandate proportionality review

by a state supreme court to prevent the death penalty from being Awantonly

and freakishly@ imposed. The Court found that it is enough if the statutory

scheme limits jury discretion by requiring the jury to find at least one of a

list of aggravating circumstances beyond a reasonable doubt before

imposing the penalty, and thoughtful and effective appellate review is

conducted, focusing on the circumstances present in the particular case.

Pulley, 465 U.S. at 53, 79 L. Ed. 2d at 42, 104 S. Ct. at 881. Moreover, as

previously noted, the appellate review requirement is satisfied by a

reviewing court=s consideration of Awhether the evidence is such that the

sentencer could have arrived at the death sentenced that was imposed.@

Clemons, 494 U.S. at 748-49, 108 L. Ed. 2d at 738, 110 S. Ct. at 1448.

-35-

85-86 (1999); Palmer, 162 Ill. 2d at 491; Johnson, 128 Ill. 2d at 280.

Under the circumstances presented here, we do not believe that the

Carlson line of cases requires that the trier of fact=s decision be

overturned and defendant=s death sentence be vacated.

In Carlson, the defendant had led a crime-free life up to the date

that he shot and killed his ex-wife, which was three months after they

divorced. They had planned to remarry, but the ex-wife told the

defendant that she had a new boyfriend. When police tried to arrest

the defendant at a bar several hours after the shooting, the defendant

shot and killed an officer. The defendant later claimed that he had

been attempting suicide when the officer was shot. The defendant had

been suffering from severe mental and emotional problems before the

shootings. He had also had two heart attacks and was undergoing a

slow grieving process related to the loss of affection of his wife.

Shortly after he shot his wife, the defendant sought to make

provisions for his son. This court found that these circumstances Ado

not bespeak a man with a malignant heart who must be permanently

eliminated from society.@ Carlson, 79 Ill. 2d at 590.

In Buggs, the defendant and his wife had been arguing about her

infidelity, when the wife told the defendant that he was not the father

of their two sons. At that point, the defendant poured gasoline on his

wife and lit the house on fire. The defendant=s wife and son were

killed in the blaze. The court noted that the defendant had no prior

criminal history (though there was evidence presented that the

defendant had previously stabbed someone and had fired a shot

between his son=s legs during an argument with his wife), he had

served his country honorably in the military for 21 years, and it was

the marital disharmony that had triggered the tragic sequence of

events. This court vacated the defendant=s death sentence under the

authority of Carlson. Buggs, 112 Ill. 2d at 293-95.

In Johnson, the defendant was unjustly fired from a job and

returned to his former place of employment for a final paycheck only

to be told that there was no paycheck for him. The defendant shot and

killed one former coworker and wounded two others. On the day of

the offenses, the defendant had used alcohol, cocaine, and marijuana

laced with PCP. This court found that the deterrent purposes of the

death penalty would not be served by putting the defendant to death

because he had led a relatively blameless life before the murder, he

was not known to be violent or untruthful, the crime was an

-36-

aberration not likely to be repeated, he had only one misdemeanor

conviction for which he successfully completed supervision, he had

expressed remorse to the victims and their families, and had acted

under a Agood deal of stress, which in his mind may have been equal

to that suffered by the defendants in Buggs and Carlson.@ Johnson,

128 Ill. 2d at 278-81.

In Leger, the defendant shot and killed his estranged wife five

days before their divorce became final. Later that same night, the

defendant shot his former wife and her new husband. The defendant

had suffered from a chronic and painful injury. On the date of the

offenses, the defendant was taking 10 different medications, had a

drinking problem and had a history of blackouts. Moreover, the

defendant had expressed remorse for his crimes, his prior convictions

were related to his marriage problems, he got along well with people

in the community and did not display any violence toward them, and

had honorably served in the armed forces for 32 years. Based on all

the circumstances and the fact that the violent acts were triggered by

the defendant=s emotional disturbance over his marital problems, the

court reduced the sentence to natural life. Leger, 149 Ill. 2d at 412-

14.

The foregoing cases can be easily distinguished from the present

one. The criminal conduct of the defendants in those cases was

triggered by provocative events related to stressful marital or

employment situations that led to sudden, explosive outbursts. In the

present case, defendant erupted over a routine event only because he

was filled with hate and disdain for authority and because he held a

grudge against his neighbors who had sued him some 15 years

earlier. Moreover, although the present murders were uniquely

extreme in terms of defendant=s past conduct, defendant had a history

of violent and threatening behavior towards others in the community,

unlike the defendants in the above-mentioned cases. The instant

crimes are also distinguishable from the ones mentioned above in

terms of severity. Defendant killed three persons, who were wholly

unrelated to him and who had not provoked him in any way near the

date of the offenses. He was also convicted of the attempted murder

of two more persons. The Giesenhagens= only dealings with the

defendant appear to be limited to a dog-bite incident that occurred

some 15 years earlier. Additionally, the fact that defendant kept a

sawed-off shotgun within easy reach in his living room after telling

police they would have to Acome back and get [him]@ indicates some

-37-

level of forethought.

But perhaps of greatest significance in distinguishing the Carlson

line of cases is the shocking lack of remorse and rehabilitative

potential of defendant. As previously mentioned, defendant was only

sorry that he had not killed more peace officers. There is also no

indication that he has ever relented from his belief that he has a right

to shoot people at close range with a sawed-off shotgun if they Ashit

on [him] first.@ In contrast to Carlson and its progeny, where the

murders were the result of tragic, one-time events that were not likely

to be repeated because of the remorse of the offenders and their

general character, defendant had a long history of threats and

violence against others in the community. The trial court specifically

found that if given an opportunity, defendant Awould continue right

where he left off.@ Additionally, defendant cannot be ruled out as a

future threat to society even while incarcerated. Defendant=s lack of

remorse and future dangerousness clearly sets him apart from the

offenders in Carlson and subsequent cases that have followed its

lead.

Instead, we find that the facts of the present case are closer to

those in People v. Heard, 187 Ill. 2d 36 (1999), and People v. Cole,

172 Ill. 2d 85 (1996), where death sentences were affirmed over

excessive-sentencing challenges. In Heard, the defendant shot three

persons to deathBhis ex-girlfriend, her boyfriend and another person

at the scene. The murders were the result of an obsession the

defendant had with his ex-girlfriend that resulted in a pattern of

harassment and stalking. The defendant maintained that he had been

operating under an emotional disturbance at the time of the murders,

and he presented extensive evidence in mitigation showing that he

was a hardworking, caring and nonviolent person, who had helped

others during financial and emotional crises. The defendant also had

no significant criminal history. Heard distinguished the Carlson line

of cases by noting that the murders in the case before it were the

Aculmination of an escalating history of violence by defendant against

the victims, not a spontaneous reaction to information such as the

infidelity of a spouse.@ Heard, 187 Ill. 2d at 88. Heard found

unpersuasive the defendant=s claim that murdering someone because

of an obsession should be considered mitigating. Heard, 187 Ill. 2d at

88-89.

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In Cole, the defendant killed the mother and brother of his ex-

girlfriend with a shotgun. The shootings were triggered by the

defendant=s obsession with his ex-girlfriend after she moved out of

their shared residence and obtained an order of protection against the

defendant. This court concluded that the defendant=s conduct was

more akin to stalking than to the sudden, explosive outbursts found in

Carlson, Buggs, Johnson, and Leger. Cole, 172 Ill. 2d at 111.

Similarly, we find that defendant=s conduct was the culmination

of an escalating pattern of violence against citizens in the community

of Toulon, and not the result of a spontaneous reaction to information

such as the infidelity of a spouse. The trial court=s assessment that

defendant did not suffer from a psychological malady was also well

supported by the record, as was the determination that defendant

posed a continuing threat to society. Additionally, even if defendant

had established the mitigating circumstance that he acted under an

extreme mental disturbance, we would not view it as sufficient to

overcome the aggravating circumstances in this case. Accordingly,

we reject the contention that the cases cited by defendant require that

his death sentence be vacated. After careful review of the

circumstances of the crimes in this case and the character of

defendant, we conclude that the death penalty is the appropriate

penalty in this case and that its imposition was not fundamentally

unjust.

II. Constitutional Issues

Citing Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435,

120 S. Ct. 2348 (2000), and Ring v. Arizona, 536 U.S. 584, 153 L.

Ed. 2d 556, 122 S. Ct. 2428 (2002), defendant next argues that the

Illinois death penalty statute is unconstitutional because the State is

not required to prove beyond a reasonable doubt that there are no

mitigating factors sufficient to preclude the death sentence. We

recently rejected the same argument in Mertz and Ballard, and we

decline to revisit the issue in any great detail.

In Ballard, this court noted that A[t]he second stage of Illinois

capital sentencing proceedings clearly bears a marked resemblance to

the balancing of factors in which trial courts traditionally engage in

determining what sentence to impose within a statutory range, a

practice of which Apprendi explicitly approved. Apprendi, 530 U.S.

-39-

at 481, 147 L. Ed. 2d at 449-50, 120 S. Ct. at 2358.@ Ballard, 206 Ill.

2d at 204. In Mertz, we stated:

AIf the weighing of factors in the second stage of capital

sentencing were to be considered a factual finding, one would

logically have to conclude that standard sentencing

procedures undertaken daily by hundreds of courts across this

state also partake of fact-finding which would fall within the

purview of Apprendi. We reject that notion. See also Davis,

205 Ill. 2d at 375 (Apprendi does not apply to the

consideration of mitigating and nonstatutory aggravating

factors at the second stage of capital sentencing, because

consideration of those factors >cannot increase the penalty for

the crime= beyond the statutory maximum of death established

at the conclusion of the eligibility phase).@ Mertz, 218 Ill. 2d

at 93-94.

In Ring, the constitutional infirmity noted by the Supreme Court

was that the Arizona death penalty statute removed the right to have a

jury make the determination of facts required to establish the

defendant=s eligibility for a death sentenceBspecifically, the finding of

aggravating factors. Ring, 536 U.S. at 597, 153 L. Ed. 2d at 569, 122

S. Ct. at 2437. In contrast, Illinois= death penalty procedure honors a

defendant=s right to have a jury at all stages of the sentencing

proceeding. But with respect to the issue defendant raises here, we

note that Ring only discussed the extension of Apprendi=s reasonable

doubt standard to the finding of an aggravating factor necessary for

the imposition of the death penalty. Ring, 536 U.S. at 597, 153 L. Ed.

2d at 569, 122 S. Ct. at 2437. Ring specifically noted that the

defendant there was not making a claim with respect to mitigating

circumstances and that Apprendi had drawn a distinction between

facts in aggravation and facts in mitigation. See Ballard, 206 Ill. 2d at

204. This suggests that an Apprendi challenge would be unsuccessful

if raised in a mitigating-factor context like the present case. Ballard,

206 Ill. 2d at 204-05. We further note that in the wake of Ring, the

Arizona statutory scheme has been amended to provide for essentially

the same death penalty procedure employed by Illinois. See Ariz.

Rev. Stat. '13B703 (LexisNexis 2005). Consistent with our previous

holdings, we conclude that the rules announced in Apprendi and Ring

are not applicable to the second phase of a death penalty proceeding

in Illinois because the trier of fact has already found beyond a

-40-

reasonable doubt the necessary aggravating factor for imposition of

the death penalty and therefore cannot increase the penalty beyond

the statutory maximum of death.

Defendant=s final argument is that AIllinois= death penalty is

arbitrarily applied, based on race, geography, procedural evolution,

discretion and mistakes of fact.@ We rejected the identical argument

in Mertz. See Mertz, 218 Ill. 2d at 95-98. Thus, we need not consider

it further other than to mention that defendant does not argue that

race, geography, procedural evolution or prosecutorial discretion

actually played a part in the decision to seek the death penalty in his

case, or in the court=s decision to impose it on him. Finally, we are

confident that the discretion exercised in defendant=s case was not

exercised in an arbitrary and capricious manner.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court of

Stark County is affirmed. We direct the clerk of this court to enter an

order setting September 12, 2006, as the date on which the sentence

of death, entered by the circuit court of Stark County, shall be carried

out. Defendant shall be executed in the manner provided by law. 725

ILCS 5/119B5 (West 2004). 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.

JUSTICE KILBRIDE took no part in the consideration or

decision of this case.

JUSTICE FITZGERALD, specially concurring:

Based on the facts and the evidence presented at the sentencing

hearing, I agree with the majority that the trial court=s imposition of

the death penalty in this case was appropriate and not fundamentally

unjust. I write separately because I believe that, while the majority

reached the correct decision, it did not apply the proper standard of

review.

-41-

The majority advocates a standard of review which is neither

Apure abuse of discretion nor a pure de novo standard.@ Slip op. at 24.

This standard is derived from the principle that, in death penalty

cases, this court should give some deference to the fact and

credibility determinations of the fact finder, while at the same time

subjecting the record to intense scrutiny. I agree that the fact finder=s

assessment of the evidence and credibility of the witnesses is entitled

to some deference. I likewise agree that, because of the seriousness of

death penalty proceedings, the record should certainly be subject to

Aintense scrutiny.@ However, I do not believe that the fashioning of a

standard of review that falls somewhere between abuse of discretion

and de novo is necessary or sufficient to achieve these goals.

The legislature of this state has assigned to this court the duty,

Aindependent of any procedural grounds for relief,@ to Aoverturn the

death sentence, and order the imposition of imprisonment *** if the

court finds that the death sentence is fundamentally unjust as applied

to the particular case.@ 720 ILCS 5/9B1(i) (West 2004). This is a great

responsibility. Indeed, this court must answer the ultimate question of

whether a defendant should receive a death sentence. Because of the

seriousness of the issue, and the fact that the decision, in the end, is

ours alone to make, our review should be de novo.

This court has previously adopted a de novo standard of review

when charged with deciding the Aultimate question@ of whether a

criminal defendant=s confession is voluntary. In re G.O., 191 Ill. 2d

37, 50 (2000). In G.O., we stated that we would Aaccord great

deference to the trial court=s factual findings, and we will reverse

those findings only if they are against the manifest weight of the

evidence. However, we will review de novo the ultimate question of

whether the confession was voluntary.@ G.O., 191 Ill. 2d at 50. In

reaching this conclusion, we relied on the Seventh Circuit=s opinion

in United States v. D.F., 115 F.3d 413 (7th Cir. 1997), which was

rooted in the United States Supreme Court=s opinion in Ornelas v.

United States, 517 U.S. 690, 134 L. Ed. 2d 911, 116 S. Ct. 1657

(1996).

In Ornelas, the Supreme Court recognized the need for de novo,

or Aindependent appellate review,@ of the Aultimate determinations@ of

reasonable suspicion and probable cause. Ornelas, 517 U.S. at 697,

134 L. Ed. 2d at 919, 116 S. Ct. at 1662. In D.F., the Seventh Circuit

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advocated de novo, or independent, review regarding the Aultimate

question@ of the voluntariness of a defendant=s confession. D.F., 115

F.3d at 419. It is significant that the de novo standard has been

deemed appropriate in cases where extremely serious decisions must

be made by reviewing courtsBdecisions involving fundamental rights

that impact a person=s liberty. See also People v. Gonzalez, 204 Ill. 2d

220, 223 (2003) (applying a de novo standard of review to the

ultimate question of whether the defendant=s motion to suppress was

properly granted, where the defendant, a passenger in a vehicle

stopped for a traffic violation, asserted that he was unreasonably

seized in violation of the fourth amendment); People v. Crane, 195

Ill. 2d 42, 51-52 (2001) (applying a de novo standard to the Aultimate

determination@ of whether the defendant=s constitutional right to a

speedy trial was violated). The United States Supreme Court, the

Seventh Circuit, and this court demonstrated a reluctance to apply a

deferential standard of review under these grave circumstances. The

same reluctance is appropriate here.

Yet, the weight of our decision is not the only factor which

supports the application of the de novo standard. Drawing from the

Supreme Court=s reasoning in Ornelas, in D.F., the Seventh Circuit

pointed out that the question of voluntariness involved a

consideration of the facts admitted at trial and assessed by the fact

finder, but ultimately was a question of law. D.F., 115 F.3d at 418. It

likewise recognized that voluntariness is a fluid concept Agiven

content through case-by-case adjudication,@ which required

Auniformity of meaning and consistency of application.@ D.F., 115

F.3d at 417. The court stated that reviewing courts must conduct an

independent review under these circumstances in order to A >maintain

control of, and to clarify= the controlling legal principles.@ D.F., 115

F.3d at 417, quoting Ornelas, 517 U.S. at 697, 134 L. Ed. 2d at 919,

116 S. Ct. at 1662.

The considerations made by the Seventh Circuit in D.F., and

adopted by this court in G.O., are readily applicable to death penalty

cases. As in determining voluntariness of a confession, when

determining whether a sentence of death is appropriate, this court

must consider the facts admitted into evidence and the trial court or

jury=s assessment of those facts. However, while this court should pay

some deference to the fact finder=s assessments, this court, by statute,

is bound to determine the ultimate question of whether the facts

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presented at trial are sufficient to warrant imposition of the death

penalty, such that the death penalty is not fundamentally unjust as

applied to a particular defendant. Like voluntariness, fundamental

injustice is a fluid concept which can only be given content and

meaning through application in case-specific situations. See D.F.,

115 F.3d at 417. This court cannot develop continuity and control

over precedent in this area if we are not permitted to exercise a fully

independent review of the facts and issues before us. Application of

the standard of review fashioned by the majority would create varied

and inconsistent results in death penalty cases. As the Supreme Court

astutely recognized: ASuch varied results would be inconsistent with

the idea of a unitary system of law. This, if a matter-of-course, would

be unacceptable.@ Ornelas, 517 U.S. at 697, 134 L. Ed. 2d at 919, 116

S. Ct. at 1662.

Furthermore, as the Supreme Court likewise recognized: A[o]ur

capital punishment doctrine is rooted in the principle that > A[t]he

Eighth and Fourteenth Amendments cannot tolerate the infliction of a

sentence of death under legal systems that permit this unique penalty

to be ... wantonly and ... freakishly imposed.= @ Lewis v. Jeffers, 497

U.S. 764, 774, 111 L. Ed. 2d 606, 618, 110 S. Ct. 3092, 3099 (1990),

quoting Gregg v. Georgia, 428 U.S. 153, 188, 49 L. Ed. 2d 859, 883,

96 S. Ct. 2909, 2932 (1976), quoting Furman v. Georgia, 408 U.S.

238, 310, 33 L. Ed. 2d 346, 390, 92 S. Ct. 2726, 2763 (Stewart, J.,

concurring) (1972). Our legislature has attempted to guard against

Awanton@ and Afreakish@ imposition of the death penalty in this state

by giving this court the authority to review each penalty of death for

fundamental unfairness. This task is best undertaken by applying a de

novo standard of review in deciding the Aultimate question@ before us.

JUSTICE McMORROW, dissenting:

As part of the death penalty reforms enacted by the General

Assembly in 2003 (see Pub. Act 93B605, eff. November 11, 2003), a

new provision was added to section 9B1(i) of the Criminal Code of

1961 (720 ILCS 5/9B1(i) (West 2004)). This provision, often referred

to as the fundamental justice amendment, places upon this court the

responsibility to set aside a death sentenceBeven in the absence of

any trial errorBif the court determines that the death sentence is

Afundamentally unjust.@ People v. Mertz, 218 Ill. 2d 1, 54 (2005). In

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full, section 9B1(i) provides:

A(i) Appellate Procedure.

The conviction and sentence of death shall be subject to

automatic review by the Supreme Court. Such review shall be

in accordance with rules promulgated by the Supreme Court.

The Illinois Supreme Court may overturn the death sentence,

and order the imposition of imprisonment under Chapter V of

the Unified Code of Corrections if the court finds that the

death sentence is fundamentally unjust as applied to the

particular case. If the Illinois Supreme Court finds that the

death sentence is fundamentally unjust as applied to the

particular case, independent of any procedural grounds for

relief, the Illinois Supreme Court shall issue a written opinion

explaining this finding.@ 720 ILCS 5/9B1(i) (West 2004).

State Senators Cullerton and Dillard, the co-sponsors of the

legislation which introduced the fundamentally unjust standard, have

explained the significance of this provision:

AThe fundamental justice amendment of [Public Act

93B605] is ground breaking in scope and conception. It is a

result of deliberations beginning in the Capital Litigation

Subcommittee of the Illinois Senate Judiciary Committee

during the 92nd General Assembly and continuing through

deliberations in the Senate Judiciary Committee during the

93rd General Assembly. This fundamental justice amendment

authorizes the Supreme Court to engage, in death penalty

cases only, in a new and important kind of appellate review.

This new kind of appellate review is designed to be

substantive, rather than procedural, focusing on the key

substantive question: whether the death sentence is

>fundamentally just= as applied to the particular case.

***

The fundamental justice amendment contemplates that the

new >fundamental justice= appellate reviewBwhich is not the

same as >comparative proportionality review=Bwill be fact-

based and highly discretionary, and will lead to appellate

reversal on substantive grounds in only a very small number

of death penalty cases. *** The >fundamental justice= of a

death sentence, as applied to a particular case, cannot

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generally be determined on the basis of legal rules. It is a

moral issue, not a legal one, and must be based on the facts of

the particular case and the moral compass of the decision

maker.@ (Emphasis in original.) J. Cullerton, K. Dillard & P.

Baroni, Capital Punishment Reform in IllinoisBA Model for

the Nation, DCBA Brief, at 10-12 (April 2004).

See also R. Weisberg, Apology, Legislation and Mercy, 82 N.C. L.

Rev. 1415, 1438 (2004) (the fundamental justice amendment Aenables

appellate [sic] judges to grant mercy to otherwise properly sentenced

capital defendants because, in the view of the appellate [sic] court,

the technical and procedural rules by which they were supposed to

monitor capital sentencing could not capture the moral concerns that

society demands@).

Professor Joseph Hoffmann, the individual who initially proposed

the fundamental justice provision (see 93d Ill. Gen. Assem., Senate

Proceedings, November 5, 2003, at 43), has explained that the

fundamental justice of a death sentence is distinct from whether that

sentence is excessive:

AAfter surveying the history of both guilt-innocence and

>excessiveness= review in Illinois capital cases, *** I believe

that both grants of authority generally have been construed

quite narrowlyBin sharp contrast to the broad, open-ended

authority contemplated by the FJA [fundamental justice

amendment].*** The FJABat a bare minimumBshould serve

as a clear and influential statement, by an overwhelming, bi-

partisan majority of the Illinois Legislature, that such

substantive review is both desirable and wholly consistent

with legislative intent. The FJA thus should eliminate any

concerns that the exercise of substantive appellate review

authority by the Illinois Supreme Court is illegitimate, or

contrary to the will of the people of Illinois, as expressed by

the Illinois Legislature.@ J. Hoffman, Protecting the Innocent:

The Massachusetts Governor=s Council Report, 95 J. Crim. L.

& Criminology 561, 577 n.83 (2005).

See also DCBA Brief, at 12 (distinguishing the fundamental justice

inquiry from the excessiveness inquiry and noting that under the

fundamental justice amendment, all issues that might relate to the

fundamental justice of a death sentence may be considered by this

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court).

The fundamental justice determination differs from the traditional

appellate review conducted in death penalty cases. Section 9B1(i)

directs this court to determine the fundamental justice of the death

sentence in the first instance, when the case is on direct appeal to this

court. The fundamental justice inquiry is not conducted in the circuit

court and the circuit court enters no finding regarding the

fundamental justice of the death sentence. Thus, while this court must

give deference to any findings of fact made by the circuit court

during trial and sentencing, principles of deference and standards of

review do not play a role in the fundamental justice determination

itselfBthey simply are not relevant. Stated otherwise, section 9B1(i)

authorizes this court, in every death penalty case, to conduct an

independent evaluation of the facts of record, as established in the

circuit court, and determine whether the imposition of the death

penalty is Afundamentally unjust,@ even when the defendant has been

Aotherwise properly sentenced@ (82 N.C. L. Rev. at 1437-38).

Applying that standard here, I conclude that the imposition of the

death penalty would be fundamentally unjust in this case.

A principal reason why imposing the death penalty would be

fundamentally unjust in this case is defendant=s mental condition.

There is no dispute that the defendant was suffering from a mental

disorder at the time of the offenses he committed. All three experts

who testified at trial so stated. The only dispute is with regard to the

type of disorder, i.e., whether defendant suffers from a delusional

disorder of the persecutory type, found by defense witnesses, Drs.

Day and Chapman, or a paranoid personality disorder, found by Day

and the State=s witness, Dr. Kowalkowski. Further, as the majority

notes, defendant=s belligerent actions following his arrest and during

trial were completely irrational, given that he was facing a possible

death sentence. See slip op. at 33. This point underscores the fact that

defendant=s mental processes do not function in a normal fashion.

In addition, defendant does not have a significant prior criminal

history. At the time of the murders in this case, defendant was 60

years old. His prior criminal history consisted of only four

misdemeanor convictionsBtwo for disorderly conduct, one for

reckless driving, and one Class C misdemeanor assault. Defendant

had no felony convictions of any type. Defendant was not an

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incorrigible felon with an extensive criminal history. Indeed, as the

majority notes, the murders defendant committed Awere uniquely

extreme in terms of defendant=s past conduct.@ Slip op. at 37.

Moreover, the record contains numerous examples of defendant=s

positive attributes. For most of his adult life, defendant worked and

supported his wife and three children. He provided each child with a

college education and helped raise them to become productive

citizens. Further, throughout his life, defendant often engaged in acts

of generosity toward others. Among other things, defendant rushed to

the aid of neighbors when they lost their home in a fire, returned a

borrowed tractor in the middle of a heavy snowstorm because he

thought the owner might need it to plow snow, installed a wood-

burning stove in the house of another neighbor who had no heat,

asking for nothing in return, and repaired that neighbor=s roof without

being asked. At the death penalty hearing, several persons testified on

defendant=s behalf, describing defendant as Aa good, dependable

worker,@ a Agood father,@ a Agood friend,@ and Athe nicest guy you

would ever want to meet.@ In my view, this evidence demonstrates

that the crimes committed by defendant were aberrant events fueled

by his unstable mental condition.

Finally, as defense counsel has noted, defendant is now 63 years

old, largely deaf, and in poor health. And, while defendant was

verbally abusive when in custody during trial, the only physical

action he took was clogging a toilet. Defendant has never physically

assaulted any prisoner or prison official. Compare, e.g., People v.

Easley, 192 Ill. 2d 307, 333-34 (2000) (defendant=s repeated attacks

on prison officials used as aggravating evidence). Defendant does not

pose so serious a safety risk in prison that execution is the only

means of protecting other inmates and prison officials. Incarceration

in prison for the remainder of his life without the possibility of parole

or mandatory supervised release is an alternative that will both

protect the public and punish defendant.

The seriousness of defendant=s offenses cannot be overstated. The

crimes he committed were unquestionably horrific. However, in the

exercise of discretion afforded this court under section 9B1(i), I must

conclude that the imposition of the death sentence in this case is

fundamentally unjust. I note that in reaching this conclusion, my

decision is informed by familiar principles:

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AIt is this court=s >responsibility in every death penalty

case to carefully consider the character of the defendant and

the circumstances of his crime before we sanction the

termination of his life.= People v. Tye, 141 Ill. 2d 1, 37 (1990)

(Ryan, J., concurring in part and dissenting in part). In

fulfilling this responsibility, we are >guided by the recognition

that Aeach capital case is unique and must be evaluated on its

own facts, focusing on whether the circumstances of the

crime and the character of the defendant are such that the

deterrent and retributive functions of the ultimate sanction

will be served by imposing the death penalty.@ [Citation.]=

People v. Smith, 177 Ill. 2d 53, 98. ***

*** Anytime a human being unjustifiably takes the life of

another, a civilized society should be horrified. >[C]apital

punishment is an expression of society=s moral outrage at

particularly offensive conduct.= Gregg v. Georgia, 428 U.S.

153, 183, 49 L. Ed. 2d 859, 880, 96 S. Ct. 2909, 2930 (1976)

(opinion of Stewart, Powell, and Stevens, JJ.). Nevertheless,

our society and laws do not sanction the death penalty for all

crimes which may shock a civilized society. Instead, we

reserve it for those >crimes [which] are themselves so

grievous an affront to humanity that the only adequate

response may be the penalty of death.= Gregg, 428 U.S. at

184, 49 L. Ed. 2d at 881, 96 S. Ct. at 2930 (opinion of

Stewart, Powell, and Stevens, JJ.).@ People v. Harris, 182 Ill.

2d 114, 165-66 (1998) (McMorrow, J., concurring in part and

dissenting in part).

The appropriate sentence in this case is life imprisonment without

the possibility of parole or mandatory supervised release.

Accordingly, I respectfully dissent.

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