People v. Davis

JUSTICE SIMON, concurring in part and dissenting in part:

I concur in the reversal of the sentence of death and in the remand of the cause to the trial court. However, a serious error occurred at the guilt phase of the trial which compels me to dissent from the majority’s denial of defendant’s request for a new trial. I would also hold that, on the basis of the evidence offered in this case, the death penalty may not be considered in the new sentencing hearing which the majority has ordered. In addition, I believe, as I have previously stated, that our death penalty statute is unconstitutional and cannot for that reason be imposed.

I. THE GUILT PHASE

Bill Kinder, Girvies Davis’ appointed attorney through the guilt phase of the instant proceedings, was a “close personal friend” of James Perdue, for whose murder the State eventually claimed Mr. Davis was responsible. Mr. Kinder was aware from the outset that the State might sooner or later attempt to link the defendant to the Perdue murder, as he made clear to the defendant when he first saw him and later to the trial judge. More significantly, however, Mr. Kinder seems to have entertained no doubt that his client had been responsible for that murder; as he himself stated, he told Girvies Davis when he first met him “if that case comes up, I would not defend him on it. I would rather see him convicted. ” (Emphasis added.)

It is unclear from the record what caused Mr. Kinder to be so certain that defendant was the murderer in the Per-due case, or when he arrived at that conclusion. As of the time the sentencing hearing in the case at bar began, no prosecution for the Perdue murder had been commenced; in fact, the State had indicated to Mr. Kinder at one point that it did not intend to press charges against defendant in the Perdue case. Nonetheless, Mr. Kinder’s belief that his client was responsible for the murder of his friend was apparently so strong that he wished to see him convicted of that murder without further inquiry into the truth. This strikes me as an attitude not compatible with a court’s selection of an attorney to provide representation to a defendant, and it is, in my opinion, an indication of a conflict of interest so fundamental as to warrant a reversal without a showing of actual prejudice.

The majority attempts to avoid the impact of cases which hold that dual representation of a criminal defendant and a party with potentially adverse interest is a per se conflict of interest in violation of the sixth and fourteenth amendments (e.g., Wood v. Georgia (1981), 450 U.S. 261 , 67 L. Ed. 2d 220 , 101 S. Ct. 1097 ; Glasser v. United States (1942), 315 U.S. 60 , 86 L. Ed. 680 , 62 S. Ct. 457 ; Porter v. United States (5th Cir. 1962), 298 F.2d 461 ; People v. Fife (1979), 76 Ill. 2d 418 ; People v. Coslet (1977), 67 Ill. 2d 127 ; People v. Kester (1977), 66 Ill. 2d 162 ; People v. Stoval (1968), 40 Ill. 2d 109 ) by asserting that the rule prevails only where there exists a dual representation. It does not serve the ends of justice to limit the rule in that fashion. People v. Lewis (1981), 88 Ill. 2d 429 , the only case pointed to by the majority in this regard, offers little support for applying this sweeping proposition to this case. The attorney in Lewis expressed confidence in his ability to represent the defendant throughout her trial, unlike Mr. Kinder, whose most explicit statement on the subject was that he preferred to see the defendant convicted of a murder although not the one for which he was being tried; and, as I noted in my concurrence in Lewis, the victim in that case was at most an arm’s length acquaintance of the attorney as a result of professional contacts and was clearly not a “close personal friend.”

Lawyers are not supermen possessed of a supreme ability to overcome all the obstacles their personal life may create for them. Human nature tells us that someone who is convinced that another person has killed a close friend will not feel kindly toward that person, and that while he may wish earnestly and in the best of faith to overcome that feeling he may be unable to do so subconsciously even though he succeeds in doing it in every visible respect. We as judges should be aware, however, that a trial consists of more than filing motions, presenting evidence, and raising objections. Subconscious feelings may surface at trial despite the best efforts of an attorney to suppress them, and even without his knowledge; they may manifest themselves in a number of ways that influence the fact finder yet are invisible to a reviewing court perusing a record. For that reason, courts see it as a futile exercise to pore through records in cases where a potential conflict of interest is apparent. Rather than searching for what probably cannot be found, and rather than allowing a criminal conviction to stand under these circumstances, they remand the cause and permit the parties to begin afresh. See Wood v. Georgia (1981), 450 U.S. 261 , 67 L. Ed. 2d 220 , 101 S. Ct. 1097 .

I believe that the situation here was “too fraught with the dangers of prejudice, prejudice which the cold record might not indicate, that the mere existence of the conflict is sufficient to constitute a violation of [defendant’s] rights whether or not it in fact influences the attorney or the outcome of the case.” (People v. Stoval (1968), 40 Ill. 2d 109, 113 ; see United States ex rel. Miller v. Myers (E.D. Pa. 1966), 253 F. Supp. 55, 57 .) In any event I regard the appearance of impropriety as overwhelming, and that alone should prevent us from letting this conviction stand.

II. THE SENTENCING HEARING

I adhere to the belief, which I stated in my dissent in People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting), that the Illinois death penalty statute which is the basis for imposing capital punishment in this State is invalid. In addition I adhere to that belief because a majority of the current members of this court have viewed it as unconstitutional. However, even if the statute were constitutional, I do not believe that, on the basis of the evidence so far presented in this case, Girvies Davis is a candidate for the death penally under its terms.

Our death penalty statute nowhere provides that accountability alone may be the basis for capital punishment. At most, in the context of this case, it permits a sentence of death if “the defendant has been convicted of murdering two or more individuals *** regardless of whether the deaths occurred as the result of the same act or of several related or unrelated acts so long as the deaths were the result of either an intent to kill more than one person or of separate premeditated acts” (Ill. Rev. Stat. 1979, ch. 38, par. 9 — l(bX3)) or if the victim was killed in the course of another felony “if *** the murdered individual was actually killed by the defendant and not by another party to the crime or simply as a consequence of the crime” (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(b)(6)(a))- It allows the jury to consider as a mitigating factor the defendant’s absence from the scene of the murder during the “commission of the act or acts causing death” (Ill. Rev. Stat. 1979, ch. 38, par. 9 — l(cX5)). In this case, there is no finding that Girvies Davis was on the scene while Esther Sepmeyer was killed. His testimony was that he was carrying items out of her house when his accomplice fired the fatal shots; the verdict of guilt, reached by a circuit judge in a bench trial, contains no indication that it was based on anything but a vicarious theory of murder and was in no respect at odds with the defendant’s version of events. The mitigating factor I mentioned above would therefore have applied, and the aggravating factor concerning murders committed in the course of a felony would not have.

The majority notes that the defendant was convicted of four murders and finds him potentially eligible for the death penalty based on the aggravating factor concerning two or more murders (Ill. Rev. Stat. 1979, ch. 38, par. 9— l(bX3)). However, that factor requires either an “intent to kill more than one person” or “separate premeditated,” murderous acts. Only one of the defendant’s murder convictions, that for the killing of Frank Cash, involved a finding of intent to kill. The convictions for the murders of Charles Biebel and John Oertel were both premised at least in part on accountability or felony-murder instructions, which do not require an intent to kill (a fact made clear to the jury in the prosecutor’s closing argument in the Biebel case), and provide no basis for finding that defendant intended to kill in either of these cases. Under the terms of the statute, aggravating factors must be proved beyond a reasonable doubt (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(f)), and the record falls far short of showing that the defendant intended to kill more than one person.

Moreover, I disagree with the idea that the act of removing stolen items from a house, as the defendant testified he was doing when each murder took place, is a separate, “premeditated” act within the meaning of the aggravating factor at issue here, or that either it or the act of loading a gun found in the house and handing it to a burglary accomplice constitutes a “*** ‘contemplation] that a life would be taken, or that lethal force would be employed’ ” (97 Ill. 2d at 24) sufficient to call that aggravating factor into play. Defendant’s statement to the police, which was not contradicted by the finding of guilt in this case in view of the evidence of guilt by accountability that was present, was that he warned his comrade not to kill Esther Sepmeyer. In addition, even if we were to assume that it was foreseeable to the defendant that his companion might commit a murder while he was out of the house, or even that he “contemplate[d]” that such a killing would occur, to use the majority’s language, that alone is not murderous conduct on the part of the defendant, and it would not constitute an aggravating factor under the death pen-ally statute or any other provision of the criminal code. The death penalty statute makes no mention of foreseeability or contemplation of a death; it does not equate contemplation that a life would be taken with intent to take a life. The only section of the death penalty statute which could apply to such conduct speaks of “intent” and “premeditat[ion]” (Ill. Rev. Stat. 1979, ch. 38, par. 9 — l(bX3)), both of which imply an element of volition, while the criminal code explicitly distinguishes “intent” (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 4) from “knowledge” (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 5), “recklessness” (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 6), “negligence” (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 7), and other nonvolitional states of mind for the purpose of virtually every crime defined by that code.

So long as the evidence establishes nothing more than that, in the words of the majority of this court, the defendant “had reason to contemplate that a life would be taken, or that lethal force would be employed,” the record does not reveal, in my opinion, any aggravating factor sufficient for imposition of a death sentence in this case, and I believe the court should prevent that penalty from being considered on the remand unless additional evidence of intent to kill is offered.