People v. Perez

JUSTICE SIMON, dissenting:

Due to a number of errors during all phases of the trial and sentencing hearing in this case, I would reverse both the defendant’s death sentence and his conviction of murder.

First, the trial court erred by refusing to give the defendant’s requested instruction for aggravated battery. The majority misreads the record when it states that the evidence “precluded any possibility of the jury finding defendant guilty of aggravated battery” on either a direct-responsibility or accountability theory of murder (108 Ill. 2d at 83).

On a direct-responsibility theory, there is sufficient evidence in the record for the jury to conclude that the defendant did not strike the fatal blow, and therefore that he is not guilty of murder. At the same time, the jury could conclude on the evidence that the defendant stabbed Cook at least once, and that therefore he is guilty of aggravated battery. Under these circumstances, Beck v. Alabama (1980), 447 U.S. 625 , 65 L. Ed. 2d 392 , 100 S. Ct. 2382 , requires that an instruction for the lesser offense of aggravated battery be given, in order to prevent the jury from mistakenly convicting the defendant of murder simply because it realizes that the defendant must have committed some crime for which he should not go unpunished.

None of the witnesses actually saw anyone stab Cook. Anthony Beamon, the only eyewitness to the attack who testified, stated that the defendant swung his arm down toward Cook from overhead. Dr. Edward Shalgos, a prosecution witness, testified that the fatal wound could not have been produced from an upward direction unless the victim was lying down when he was stabbed; Beamon testified that Cook was standing. The majority emphasizes Dr. Shalgos’ statement that the defendant’s homemade knife was “most highly compatible” with the fatal wound, as if this phrase meant that it was most likely that the knife caused the wound. However, the jury could have understood that phrase as I do, to mean that while the knife was not fully compatible with any of the wounds, of the four, it was “most” highly compatible with the fatal wound. Dr. Shalgos could not state with certainly that a particular knife caused a particular wound, and the record indicates that not all the knives used in the attack were recovered.

Considering all the evidence, the jury could have concluded that this defendant did not cause the fatal wound, but that he might have caused one of the other three wounds. Considering only the direct-responsibility theory of murder, there can be no doubt that the defendant was entitled to an aggravated-battery instruction.

Turning next to the accountability theory, the jury still could have found that the defendant committed an aggravated battery, but did not commit murder, in which case the defendant was entitled to the aggravated-battery instruction. It was the jury’s duty to weigh the conflicting evidence and then to determine whether the defendant was legally accountable for the actions of others.

The majority accepts as fact the premises that the defendant stabbed Cook at least once, and that, therefore, because he aided or abetted a murder, the only crime for which he could properly be found guilty was murder. This is incorrect for several reasons.

First, the jury could have chosen to disbelieve Beamon’s testimony insofar as it conflicted with other evidence. Beamon is a convicted felon who had been transferred to another correctional institution, presumably in return for his favorable testimony. Second, the majority relies on investigator William Price’s testimony regarding statements which the defendant made to him. The two statements are contradictory, and based upon one of the statements, the defendant’s participation might be construed as not aiding or abetting murder. The majority does not point out the inconsistencies in the two statements, the dispute over whether the defendant gave a written statement or initialed papers prepared by Price, or the defendant’s considerable difficulty with the English language. At one point in the pretrial proceedings the court appointed an interpreter; even after that arrangement was terminated, the defendant received translation assistance. All of this affects the believability of investigator Price’s testimony and the credibility of the alleged admissions. Finally, the Illinois cases, including those cited by the majority (108 Ill. 2d at 83), hold only that voluntary actions can support conviction of a crime on an accountability theory. No Hlinois case holds that a defendant who acts independently must be found guilty of crimes committed by others. The distinction is critical where, as here, the defendant is entitled to an instruction on a lesser offense so long as the jury could, on the basis of the evidence, find him guilty of the lesser crime and not guilty of the greater.

Hopper v. Evans (1982), 456 U.S. 605 , 72 L. Ed. 2d 367 , 102 S. Ct. 2049 , on which the majority relies to hold that the defendant here is not entitled to an aggravated-battery instruction, is inapposite. In Hopper the defendant pleaded guilty, admitted the crime, said that he would return to a life of crime if released, and asked the jury to return a positive verdict for the State. He had previously made similar statements to the grand jury and also asked the grand jury that he be executed as quickly as possible. Under these circumstances the Supreme Court refused to order a new trial, despite its earlier invalidation of an Alabama law which precluded instructions on lesser offenses in capital cases. Hopper does not control this case where the defendant contested his guilt and where the evidence would support a finding of not guilty of murder on either a direct-responsibility or accountability theory. This case is controlled instead by Beck v. Alabama, which holds that in a capital case where the jury may believe that the defendant is clearly guilty of some crime, the jury must be offered the alternative of conviction of the lesser offense. Neither Beck nor any Illinois case stands for the proposition that to be entitled to an instruction on a lesser charge, the burden is on the defendant to establish that there was insufficient evidence to support the greater charge.

Finally, the Illinois cases cited by the majority (People v. Lockett (1980), 82 Ill. 2d 546 ; People v. Simpson (1978), 74 Ill. 2d 497 ; People v. Pokosa (1930), 342 Ill. 404 ) do not stand for the proposition for which they are cited. These three cases hold more narrowly that the defendant in a murder case is not entitled to a voluntary-manslaughter instruction when there is no evidence to support a manslaughter conviction. In other words, because voluntary manslaughter is technically an included offense of murder, the evidence in every case does not necessarily prove the elements of both crimes. Those cases also differ from this one because the mental states which support murder and voluntary-manslaughter convictions differ.

Assuming, arguendo, that the murder conviction was proper in this case, there were a number of errors in both phases of the sentencing hearing which require that the death sentence be vacated. During the first phase of the sentencing hearing, the State proved the defendant’s age by calling as a witness a police officer who had earlier arrested the defendant on an unrelated armed-robbery charge. The defendant’s age could easily have been proved by documentary evidence, by his own testimony, or even by the testimony of prison officials connected with the events in this case. The technique which was used was unnecessary and prejudicial. It served only to bias the jury against the defendant because of his prior bad acts. During this phase, the State needed only to prove that the defendant was at least 18 years old. The rest was reversible error.

Also during the first phase of the penalty hearing, the circuit judge sustained the State’s objection to the defendant’s argument that he may not have been the one who inflicted the fatal wound. This ruling was prejudicial. Although the jury convicted the defendant of murder during the guilt phase, there was no special verdict indicating whether he was found guilty on a direct-responsibility theory or on accountability. The argument which the circuit judge disallowed was a proper and relevant one in this case.

The majority rejects the defendant’s argument that the death penalty in his case is invalid as disproportionate because other inmates convicted of participation in the crime did not receive death sentences. As already pointed out, the defendant may have been convicted on an accountability theory. The degree of his participation is a proper mitigating factor which may be considered during the second phase of the sentencing hearing. Whether or not the death penalty is disproportionate because it is imposed in some murder cases and not others, the situation here is narrower. It is impossible to determine from the jury verdicts which of the convicted individuals is most culpable. It is unconscionable that one of these men may forfeit his life while the possibility remains that another who inflicted the fatal wound, or who planned the deadly assault, will live. Such administration of “justice” appears truly random. It may result not only in an irremediable error with respect to this defendant, but also in an erosion of public confidence in our ability to ferret out the truth and to tailor the punishment to the crime.

Moreover, the majority fails to consider the defendant’s claim that, as a matter of State law, his death sentence was unjustly disproportionate when compared with one of his codefendants, Hector Rivera. It is a well-settled principle in this State that “[a]n arbitrary and unreasonable disparity between the sentences of codefendants who are similarly situated, of course, cannot be defended.” (People v. Godinez (1982), 91 Ill. 2d 47, 55 ; see also People v. Szabo (1983), 94 Ill. 2d 327, 351-53 .) The defendant and Hector Rivera both stabbed the deceased. Rivera, however, was already serving a sentence for a prior murder in which he killed a 14-year-old boy with a baseball bat. The defendant was serving the minimum sentence for armed robbery. Even if the defendant was a participant in a plan to attack Cook, his conduct was no more culpable than his codefendants who did not receive death sentences, and his sentence, therefore, should be vacated and the cause should be remanded for imposition of an appropriate sentence.

In addition the verdict in this case must be reversed in view of the recent Supreme Court decision in Caldwell v. Mississippi (1985), 472 U.S ___, 86 L. Ed. 2d 231 , 105 S. Ct. 2633 . Like the jury in Caldwell, the jury in this case could have believed that “the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” ( 472 U.S. __ , __, 86. L. Ed. 2d 231, 239, 105 S. Ct. 2633, 2639 .) The defense attorney, the prosecutor, and the judge all used the word “recommend.” The only relevant dictionary meaning of “recommend” which fits this context is “to advise; counsel; suggest.” (Webster’s New World Dictionary of the American Language 1187 (2d College ed. 1976).) We must assume that the jurors understood the word to have its ordinary meaning, since they were not instructed otherwise. If they believed that they were only providing advice, suggestions, or counsel, they could easily have believed that the judge or a. later reviewing court would make the final decision regarding the death penalty.

I do not agree with the majority’s conclusion that the problem was obviated by an instruction which stated that “the court must sentence the defendant to death” and a written verdict form signed by the jurors stating that “the court shall sentence him to death.” In view of the jurors having heard the word “recommend” repeatedly during the voir dire, as well as three times during the sentencing hearing, there is no way of knowing how they reconciled the instruction they received and the verdict they signed with what they had been told earlier in the trial. Jurors in Caldwell also heard accurate instructions covering their sentencing duties ( 472 U.S. __ , __, 86 L. Ed. 2d 231, 249 , 105 S. Ct. 2633, 2647 (Rehnquist, J., dissenting, joined by Burger, C.J., and White, J.)), but those were not sufficient to undo the effects of the prosecutor’s erroneous statements. As in Caldwell, when the jurors deliberated in this case they had inconsistent information.

The majority suggests that since the defense counsel himself used the term “recommend” during voir dire, this issue is waived. The fact that the defense attorney himself used the word “recommend” only serves to exacerbate rather than diminish the problem. Everyone involved — defense counsel, prosecutor, and the judge — said “recommend.” The use of this common English word by both adversaries, as well as by the judge who was supposed to represent the neutral authority vested in the court, could only give the impression that everyone, no matter what his stake in the outcome of the case, believed that all the jury would do is “recommend” the penalty to be imposed. This situation is directly parallel to Caldwell, where the words and actions of both the prosecutor and trial judge helped create the impression that the jury’s sentencing action was not final. All counsel in this case, as well as the trial judge, either overlooked the misleading impression the jury was being given or misunderstood the law which was explained in Caldwell. For that reason, and particularly because this is a death case, I regard it as inappropriate to refuse to apply the plain-error doctrine provided for by our Rule 615(a) (87 Ill. 2d R. 615(a)). See People v. Jones (1982), 94 Ill. 2d 275, 294-95 .

I further believe that the application of the death penalty in this case is unconstitutional because of the possibility that this defendant’s comprehension of the English language was so poor that he could not participate effectively in his defense and could not comprehend the gravity of the penalty imposed. The record reveals that one defense attorney withdrew from the case because he could not communicate with his client. Again, fundamental fairness to the defendant and public confidence in the administration of justice dictate that the ultimate sanction not be imposed in a situation as clouded by doubt as this one.

Finally, for the reasons stated in my separate opinions in People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting), in People v. Silagy (1984), 101 Ill. 2d 147, 184 (Simon, J., concurring in part and dissenting in part), and in People v. Albanese (1984), 104 Ill. 2d 504, 549 (Simon, J., concurring in part and dissenting in part), I believe that the Illinois death penalty statute is unconstitutional, and that therefore the death sentence should be vacated and the cause remanded for a new sentencing hearing. For all these reasons, I dissent.