People v. Johnson

JUSTICE CLARK, concurring:

Although I agree with the ultimate decision reached by my colleagues to vacate the death sentence and remand for imposition of a sentence other than death, I disagree with the majority’s reasoning in reaching that conclusion and therefore write separately. The defendant raised eight challenges to the imposition of the death sentence. Two of the defendant’s arguments are of paramount concern here: (1) that the sentence was excessive given the significant mitigation presented during the hearing, and (2) that the sentence was partially based upon a prior charge which had been dismissed after a successful term of supervision.

I would vacate the defendant’s sentence based on the erroneous introduction of the prior charge at the sentencing hearing and not because of what I find to be an unprecedented and wholly unwarranted extension of this court’s prior decisions in People v. Carlson (1980), 79 Ill. 2d 564 , and People v. Buggs (1986), 112 Ill. 2d 284 . 128 Ill. 2d at 277-88.

I first address the defendant’s claim of error concerning the admission of a misdemeanor unlawful use of weapons charge, which the majority concluded was admissible as relevant and reliable. (128 Ill. 2d at 282-83.) This charge had originally been dismissed after the defendant successfully completed a term of supervision. Under the pertinent section of the Criminal Code of 1961:

“The Court may, upon a plea of guilty or a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings and the imposition of a sentence, and enter an order for supervision of the defendant if the defendant is not charged with a felony and having regard for the circumstances of the offense, and the history, character and condition of the offender, the court is of the opinion that:

(1) the offender is not likely to commit further crimes;

(2) the defendant and the public would be best served if the defendant were not to receive a criminal record; and

(3) in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted under this Code.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—1(c).)

The Code goes on to provide that the court is to enter an order of supervision for a specified period, and shall “defer proceedings in the case until the conclusion of the period.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005-6-3.1(a).) Likewise the court is to defer “entering any judgment on the charges” until supervision has been concluded. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—3.1(d).) At the conclusion of the period of supervision, if the court determines that the defendant has successfully complied with all of the conditions of supervision, “the court shall discharge the defendant and enter a judgment dismissing the charges.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6— 3.1(e).) Finally, the Code provides that:

“Discharge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt and shall not be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime. Two years after the discharge and dismissal under this Section a person may have his record of arrest expunged as may be provided by law.” Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—3.1(f).

Our decision as to whether the supervision statute precludes the use in aggravation of a charge dismissed under its provisions must be strongly influenced, if not controlled, by our decision in People v. Wunnenberg (1981), 85 Ill. 2d 188 .

In Wunnenberg, the defendant pled guilty to the charge of unlawful delivery of a controlled substance. At the sentencing hearing the court considered as aggravating evidence a Federal conviction which had been “set aside” under the Federal Youth Corrections Act ( 18 U.S.C. §5021 (b) (1964)). In Wunnenberg our court held that this was error. Because of a widespread consensus that the Federal set-aside provision was intended to give “ ‘the rehabilitated youthful offender a meaningful fresh start’ ” (Wunnenberg, 85 Ill. 2d at 191-92 , quoting Doe v. Webster (D.C. Cir. 1979), 606 F.2d 1226, 1238 ), we concluded that the set-aside conviction “should not have subsequent repercussions, either of a criminal or noncriminal nature. Accordingly, defendant’s set-aside conviction should not have been considered, however remotely, as an aggravating factor in sentencing for the instant offense.” 85 Ill. 2d at 195 .

The State and the majority opinion attempt to distinguish Wunnenberg on the ground that our statute, unlike the Federal set-aside provision, does not provide for “automatic” expungement of the defendant’s record, but only allows the defendant to apply for expungement when two years have passed since discharge and dismissal. (See Ill. Rev. Stat. 1981, ch. 38, par. 1005-6-3.1(f).) This is wrong on two counts. First, it is by no means clear that the Federal set-aside provision “automatically” expunges the defendant’s record. The provision itself states that the court’s discharge of the offender “shall automatically set aside the conviction.” (Emphasis added.) ( 18 U.S.C. §5021 (b) (1964).) The Federal courts are divided as to whether the words “set aside” mean expungement, i.e., physical obliteration, of the defendant’s record. Compare Mines v. National Transportation Safety Board (6th Cir. 1988), 862 F.2d 617, 619 , with United States v. Gardner (7th Cir. 1988), 860 F.2d 1391, 1399 .

Second, and more importantly, the Wunnenberg court specifically disclaimed any reliance, upon an interpretation of the Federal statute that would provide for “automatic” expungement. (Wunnenberg, 85 Ill. 2d at 191 .) The crucial issue is not whether the record of the defendant’s conviction is physically destroyed, but whether the conviction will have a subsequent penal consequence. Both statutes provide for- discharge of the defendant and dismissal of the charges against him. Indeed, our statute goes further in providing that the disposition “shall be deemed without adjudication of guilt and shall not be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—3.1(f).) The obvious intent of the statute is to reward a defendant who successfully completes a term of supervision by freeing him from future criminal consequences for the acts charged. In that limited sense, discharge under our statute is “akin to a judgment of acquittal.” (People v. Tarkowski (1981), 100 Ill. App. 3d 153, 161 .) No subsequent criminal consequence could be more serious than the use of the prior charge in aggravation at a capital hearing. It would surely be an anomaly if we held that the “legal disabilities” which the statute removes do not include a disability which may contribute to a defendant’s receipt of the ultimate criminal sanction.

While the State and the majority attempt to distinguish between the prior charge and the facts underlying that charge, this distinction is without substance. If the supervision statute allowed the State to prove directly, by testimony, what it is now forbidden to prove indirectly, by court record, the statute would be meaningless. This court should not, by the mere use of rhetoric, so blithely obliterate the policy established by the legislature which permits a youthful offender to establish a clean slate.

Though not controlling, I note that this reasoning is consistent with the decision of the appellate court in People v. Calvert (1981), 100 Ill. App. 3d 510 . (Cf. People v. Chumbley (1982), 106 Ill. App. 3d 72 (construing analogous provision in the Juvenile Court Act).) And while it may appear that some of the language in People v. Talach (1983), 114 Ill. App. 3d 813 , may conflict with this reasoning, the facts of that case are distinguishable. Talach involved a defendant who had two valid convictions prior to being placed on five successive supervisions. Moreover, Wunnenberg itself does not purport to apply to “a continuing pattern of criminal behavior that resulted in a series of criminal convictions which were subsequently set aside.” (Wunnenberg, 85 Ill. 2d at 194 .) Since we are dealing here with a single episode of supervision rather than a “pattern,” this question need not be reached.

Nor do I agree with the State’s contention that the admission of the charge was harmless because the evidence in aggravation was overwhelming. As should be clear from the discussion of the defendant’s argument that his penalty was excessive (see 128 Ill. 2d at 277-78), the evidence in aggravation, while substantial, was somewhat less than overwhelming. Apart from the prior charge for which the defendant received supervision, he had no prior criminal record. Had the court granted the motion in limine, the defendant would clearly have been able to establish at least one statutory mitigating factor, lack of a significant history of prior criminal activity. I therefore cannot conclude that the erroneous admission of this evidence was harmless beyond a reasonable doubt.

While I would vacate the defendant’s death sentence based solely on the erroneous admission of the prior charge, my disagreement with the majority does not end here. I must also address what I conclude to be the majority’s erroneous analysis under this court’s prior decisions in Carlson and Buggs. As the majority noted, the defendant argues that his case compares favorably to others where this court has found that death is not appropriate. (See People v. Buggs (1986), 112 Ill. 2d 284 ; People v. Carlson (1980), 79 Ill. 2d 564 ; People v. Gleckler (1980), 82 Ill. 2d 145 ; People v. Crews (1969), 42 Ill. 2d 60 ; People v. Walcher (1969), 42 Ill. 2d 159 .) While the defendant cites all of these cases, he relies mainly upon Carlson and Buggs. 128 HI. 2d at 278.

Also, as the majority noted, this court’s analysis must be guided by the principle that the eighth amendment requires “consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” (Woodson v. North Carolina (1976), 428 U.S. 280, 304 , 49 L. Ed. 2d 944, 961 , 96 S. Ct. 2978, 2991 .) This court has previously concluded that, where the sum total of aggravating and mitigating circumstances “do not bespeak a man with a malignant heart who must be permanently eliminated from society” (Carlson, 79 Ill. 2d at 590 ), a sentence of death cannot stand. Neither the deterrent nor retributive functions of the death penalty are served where the commission of a murder seems to be an aberration brought on by special circumstances, circumstances which in all likelihood will not be repeated. This court found such special circumstances that were not likely to be repeated in Carlson and Buggs. However, for reasons which are clearly set out in my dissent in Carlson (see People v. Carlson (1980), 79 Ill. 2d 564, 593 (Clark, J., dissenting)), I cannot agree with the expanding erosion of this court’s long held position that “we should not lightly overturn the findings of the trial court, particularly when they are amply supported by the record.” (People v. Brownell (1980), 79 Ill. 2d 508, 540 .) As I noted in Carlson, this court has often addressed the question of the weight to be afforded the decision of the trier of fact; we have held that, absent a clear abuse of discretion, this court will not disturb a sentence imposed by the trial court. See People v. Lykins (1979), 77 Ill. 2d 35, 40 ; People v. Perruquet (1977), 68 Ill. 2d 149, 153 ; People v. Bonner (1967), 37 Ill. 2d 553, 563 .

People v. Lykins (1979), 77 Ill. 2d 35 , succinctly addressed this issue when this court stated that:

“[tjhough Supreme Court Rule 615(bX4) (58 Ill. 2d R. 615(bX4)) allows the reduction of sentences by a reviewing court, ‘It is not our function to serve as a sentencing court, and we will not substitute our judgment for that of the trial court merely because we might have imposed a different sentence had that function been delegated to us.’ (People v. Waud (1977), 69 Ill. 2d 588, 596 .) ***

*** The trial judge is authorized to consider not only the defendant’s character but also the ‘nature and circumstances of the offense’ in imposing a sentence. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1(c)(1).)” (People v. Lykins (1979), 77 Ill. 2d 35, 40 .)

Precisely because no two people will ever view or review the same set of facts from exactly the same perspective, “it is inappropriate to disregard the lower court’s carefully considered and well-supported decision.” Carlson, 79 Ill. 2d at 603 (Clark, J., dissenting).

While the majority discusses both Carlson and Buggs, in the interests of a coherent and complete argument here, I will reiterate the analysis.

In Carlson, the defendant, who was in his early forties, had no criminal record. For a year or two prior to the murders with which he was charged, the defendant had “deteriorated physically and emotionally.” He had suffered two heart attacks, a cerebral concussion, and other injuries. Shortly before the murders, the defendant’s wife of 19 years obtained a divorce from him. The defendant testified that he had agreed not to contest the divorce on the condition that his wife would not entertain men at the house. According to the defendant, after the divorce he and his wife continued to see each other and even had plans to remarry. The defendant’s wife postponed the wedding, however, and later told the defendant that she would not be seeing him as frequently as before because she had a “boyfriend.” Several days later, after having dinner with his wife, and having been told other details about her boyfriend, the defendant shot his wife 10 times with a gun he had purportedly bought for “protection.” The defendant then poured gasoline throughout three rooms and set fire to the house. After kiUing his wife, the defendant gave several envelopes filled with cash to a friend to convey to his children, and sat down to drink in a bar. As a number of police officers approached him in the bar, the defendant fired two shots, killing one of the officers. The defendant presented psychiatric testimony that at the time of the offense the defendant was undergoing a slow grieving process related to the loss of the affection of his wife and that he was extremely distraught when he killed the officer. (79 Ill. 2d at 570-73, 588-90.) The defendant had been sentenced to a term of years for the murder of his wife and had been sentenced to death for the murder of the police officer. It was the death sentence which this court vacated. 79 Ill. 2d at 591.

In Buggs, the defendant was a man in his forties with no prior criminal record. He had a severe drinking problem which had previously caused him to suffer blackouts. He had been drinking particularly heavily during the period just before he committed the offense. His wife had continually asked him for a divorce, which he refused to grant; he instead attempted to persuade her to work out their problems. She had begun entertaining various boyfriends at their home when the children were present. On the day in question, one of his wife’s boyfriends persistently telephoned, leading to a final argument between the defendant and his wife. During that argument, the defendant's wife told the defendant that he was not the father of their two sons. It was at that point that the defendant became outraged, poured gasoline on his wife and the stairs and lit a match. In the ensuing blaze the defendant’s wife and two of his children died. At trial, the defendant’s expert witness testified that the defendant suffered from “Isolated Explosive Disorder,” a single discrete episode in which the defendant’s failure to resist an impulse led to an externally directed act that had a catastrophic impact on others. ( 112 Ill. 2d at 294-95 .) The trial court sentenced Buggs to death and this court vacated that sentence. 112 Ill. 2d at 295-96 .

The many factual similarities between Carlson and Buggs (including some, such as the accompanying arson, which are purely coincidental) may obscure the underlying principles. The crucial facts about Carlson and Buggs are these: (1) the presence of two statutory mitigating factors: (a) no significant history of prior criminal activity (111. Rev. Stat. 1983, ch. 38, par. 9 — l(cXl)), and (b) action under extreme mental or emotional disturbance (HI. Rev. Stat. 1983, ch. 38, par. 9 — l(cX2)), and (2) unique and tragic circumstances impacting upon individuals who up until then had led. relatively blameless lives, circumstances which were not likely to be repeated in the future. While in Carlson the death penalty was imposed for the murder of the police officer, the fact that the original or principal victims of the crimes were members of the defendants’ families rather than strangers strongly suggested that the defendants’ crimes were of the kind that were unlikely to be repeated in the future, or to be deterred by the threat of capital punishment.

Beyond this, however, Carlson and Buggs do not create a black letter law of capital sentencing. Each case is unique and must be evaluated upon its own facts. At both the trial and the appeUate level, the inquiry must focus 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 are served.

The defendant argues that, based on this court's analysis in Carlson and Buggs, his death sentence should be vacated and notes these mitigating circumstances: his youth, family background, employment history, lack of prior convictions, emotional problems, and drug and alcohol dependency. This evidence of mitigation, while not inconsiderable, is also not quite so strong as the defendant makes out. Evidence of the defendant’s drug habit, for example, comes only from the defendant’s un-cross-examined and, apparently, uncontroverted statements in the sentencing report. In Carlson and Buggs, in contrast, evidence of drug and alcohol dependency was far more substantial.

The more important distinction between this case and the others, however, lies in the very circumstances of the crime itself. In Carlson and Buggs, uncontroverted evidence established that the murders committed were the product of prior tragic circumstances and a precipitating provocative event. In this case, while the majority in one breath declines “to equate the loss of a job with marital difficulties” (128 Ill. 2d at 281), they finish that same breath with the conclusion that in losing his job, the stress suffered by the defendant in his own mind “may have been equal to that suffered by the defendants in Buggs and Carlson” (128 Ill. 2d at 281).

Statistics may seem to disparage the institution of marriage by verifying that more and more marriages end in divorce, yet it is inconceivable that in today’s mobile, and changing society a person’s reactions to the loss of a spouse may be in any way equated to the loss of a job. While certainly not a legal tool nor a response determiner, even the somewhat popular Holmes-Rahe Stress Scale, a scale which ranks life’s “stressful” events on a particular point system ranging from 11 to 100, ranks the death of a spouse over two times more stressful than being fired from a job while divorce is one-third more stressful than being fired (death of a spouse ranked at 100 points, divorce at 73 points, and being fired at 47 points). I am not suggesting by mentioning this psychological tool that this court should in any way rely on such mechanisms in reaching a decision; however, such information is not beyond notice. I recognize that each individual’s reactions to stress are unique and may be determined only by the amount of control the individual may feel he has over a particular situation.

In this case it seems clear that there is considerable evidence of rational calculation and planning in the defendant’s actions rather than an uncontrolled response to an overwhelming stress. Additionally, even assuming that the defendant acted in part out of a desire to revenge himself upon Arthur Hinshaw, a “father figure,” there is considerable evidence that robbery was a secondary, and by no means unimportant, motive. According to the testimony of both the surviving victims, the defendant opened fire almost immediately upon Hinshaw and Frederick Foss. The defendant’s story that Hinshaw taunted him is not supported by the testimony of either Hinshaw or Worley. According to Hinshaw’s testimony, the defendant fired the second shots at Hinshaw and Worley while they were lying on the ground. It is undisputed that he rifled their pockets. The fact that the defendant kept Worley alive only long enough to assist him in attempting to open the safe, and then shot him, obviously intending to kill, is further evidence of rational planning. According to both Hinshaw’s testimony and the defendant’s own confession, the defendant stated during the course of the incident that he shot Worley because of fear that Worley would “tell on him” — an obvious attempt to eliminate any witness to the crime. The defendant also attempted to conceal the murder weapon. And while the defendant argues that no rational criminal would attempt to rob a store where he had recently worked, this argument is undercut by the defendant’s obvious efforts to make sure that no one who could identify him would survive.

This evidence of rational calculation, of a not inconsiderable degree of planning and preparation, constitutes nonstatutory aggravation which is not outweighed by the somewhat questionable mitigating evidence introduced by the defendant. It also belies the defendant’s claim that he, like the defendants in . prior cases, established as a mitigating factor that he acted under extreme mental or emotional disturbance.

For these reasons, I cannot agree with my colleagues’ extension of the Carlson rationale in this case. Moreover, I find such an extension not only unwarranted but illogical when I note that the majority discusses a “blameless life except for this one explosive episode” (emphasis added) (128 111. 2d at 282), while, at the same time, allowing in evidence of a prior charge which would seem to contradict that finding. However, because I agree with the decision in that I would, as stated earlier, vacate the defendant’s death sentence for different reasons, I concur.