# People v. Whitehead

> Illinois Supreme Court · June 5, 1987 · 116 Ill. 2d 425

URL: https://www.frixlaw.com/law-library/cases/9721633

## Case

- **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOHN E. WHITEHEAD, Appellant
- **Court:** Illinois Supreme Court
- **Decided:** June 5, 1987
- **Citations:** 116 Ill. 2d 425; 508 N.E.2d 687
- **Precedential status:** Published
- **Opinion:** Concurring in part by Simon
- **Judges:** Miller, Simon
- **Cited by:** 127 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9721633

## How later opinions describe it (automated extraction)

- finding prosecutor’s improper, isolated reference that the defendant was a “ ‘sex pervert’ ” was not “ ‘so seriously prejudicial’ ” that it affected the fairness of the trial where it “might have been a fair reflection of the evidence” and was a response to the defendant’s cla…
- holding claimed errors waived for failure to timely object

## Opinion text

JUSTICE SIMON, concurring in part and dissenting in part:
The defendant has been sentenced to death on the basis of unreliable, out-of-court declarations which there is every reason to believe were fabricated by the defendant in an abortive attempt to excuse prior alleged misconduct. Although I concur in my colleagues’ decision affirming the defendant’s convictions for murder and aggravated kidnaping, I cannot agree with their decision to affirm his death sentence. I dissent both because defendant’s death penalty is premised upon untrustworthy evidence and because the Illinois death penalty statute is, in my opinion, unconstitutional. (See People v. Albanese (1984), 104 Ill. 2d 504, 549 (Simon, J., concurring in part and dissenting in part); People v. Silagy (1984), 101 Ill. 2d 147, 184 (Simon, J., concurring in part and dissenting in part); People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting). See also United States ex rel. Lewis v. Lane (C.D. Ill. Jan. 8, 1987), No. 86 — 2086, slip op. at 29 (expressing “grave doubt” over the constitutionality of the Illinois death penalty statute); Note, Stare Decisis and the Illinois Death Penalty, 1986 U. Ill. L. Rev. 177 .) In addition, I would supplement the discussion in Albanese, Silagy and Lewis regarding the role of stare decisis in determining the constitutionality of our death sentence statute by noting the following: the Supreme Court overruled or qualified its prior constitutional decisions at least 28 times by 1932 (Burnet v. Coronado Oil & Gas Co. (1932), 285 U.S. 393 , 406 n.1, 76 L. Ed. 815 , 823 n.1, 52 S. Ct. 443 , 447 n.1 (Brandeis, J., dissenting)), between 1937 and 1949 the court overruled 21 of its earlier opinions on constitutional law (Douglas, Stare Decisis, 49 Colum. L. Rev. 735 , 743 (1949)), and in the 1960s and 1970s the Supreme Court reversed its own constitutional rulings 47 times (Maltz, Some Thoughts on the Death of Stare Decisis in Constitutional Law, 1980 Wis. L. Rev. 467 , 467).
The sentencing judge justified his decision to sentence the defendant' to death in part by giving credence to the defendant’s 1975 statements that he had on very many occasions, commencing when he was 14 years old, sexually assaulted girls of about 12 years of age while armed with a knife. In explaining the sentence he imposed, the judge made it clear, as the majority opinion concedes (116 Ill. 2d at 453), that he was relying on these statements.
“For many years, the defendant — by his own admissions which appear in this record — has sexually abused other young girls, often while assaulting them with a knife. ***
* * *
*** [B]ased upon all the evidence, and based particularly on the cruelty of Vicki[e] Wrobel’s death and based on the many crimes of the defendant, particularly his sex crimes, his knife assaults and his crimes of arson — the Court is impelled toward the conclusion that the proper sentence for John Whitehead is death.” (Emphasis added.)
The statements upon which the judge relied are found in psychiatric records appended to the presentence report.
In 1975, at the age of 25, the defendant was charged with attempted rape and aggravated battery. He voluntarily admitted himself to a psychiatric-care facility with the apparent purpose of fabricating an insanity defense to those charges (for which he was eventually acquitted without raising an insanity defense); notations in the defendant’s records from the Department of Mental Health describe the defendant’s preoccupation with the legal rather than medicinal ramifications of his hospitalization:
“the possibility of discharge with continuing treatment (desensitization) with outpatient services, was described. John’s immediate reaction was negative — John fears that outpatient treatment will be less helpful in court.
* * *
He went along with the idea of discharge and linkage to the Kane-Kendall County Mental Health Center requesting only that we write a letter explaining to the Court why he attempted to commit the rape for which he is accused. It was explained to him that we could not perform such an action, that our purpose was only to evaluate his need of Hospitalization and if needed, provide that treatment. Mr. Whitehead indicated his disappointment, saying that it was for this reason that he had admitted himself.”
Notwithstanding those reasons to discount the credibility of any statements made by the defendant during that 1975 hospital stay, the sentencing judge imposed the death sentence, relying, in part, upon the accuracy of defendant’s 1975 admissions that he had for years attacked girls of about 12 years of age whom he encountered in various secluded areas (along railroad tracks and in parks and abandoned fields), forcing them at knife point to engage in various sex acts with him. The defendant made those admissions in 1975 to substantiate his claim that the conduct for which attempted-rape and aggravated-battery charges were pending had been caused by a “feverish” feeling that developed over a period of days and which was only relieved by a violent sexual assault the defendant could not later remember, and the defendant made the same claim at his sentencing hearing in this case.
During the sentencing hearing, the defendant presented the testimony of a psychiatrist who believed that defendant’s conduct and fever attacks were caused by temporal-lobe epilepsy; but the sentencing judge explicitly rejected both the expert’s opinion and the defendant’s claim that his attack against Vickie Wrobel was preceded by a “feverish” feeling and followed by loss of memory. Thus, the sentencing judge rejected portions of the 1975 statements regarding fevers and amnesia while accepting as true portions of the same statements wherein the defendant had made wholly uncorroborated claims of his many sexual assaults against 12-year-old girls while armed with a knife.
The majority does not believe that the two aspects of defendant’s statements were so connected that the judge could not logically accept one without the other. (116 Ill. 2d at 455.) That observation may be accurate, but it misses the point that not a scintilla of evidence was ever presented to substantiate the 1975 statements regarding knife attacks. Instead, there was reason to believe that they were concocted to support an insanity defense which never materialized. The statements were, therefore, not sufficiently reliable to warrant their consideration as evidence in aggravation. See People v. Devin (1982), 93 Ill. 2d 326 .
Although the defendant seemed to again admit to having committed those sexual assaults when, during cross-examination by the State at the sentencing hearing, the defendant testified that those offenses referred to in his 1975 statements were committed to satisfy his sexual appetite and alleviate the “feverish” feeling, it must be remembered that defense strategy during the sentencing proceedings was to portray defendant’s murder of Vickie Wrobel as the result of an organic brain dysfunction (temporal-lobe epilepsy). To have denied the 1975 statements, originally made to substantiate defendant’s claimed psychopathology, would only have served to undermine this insanity strategy. Thus, defendant’s admissions in 1975 cannot be regarded as corroborated by later testimony, given that identical pressures to fabricate were present, which is to say that earlier uncorroborated admissions are not substantiated by additional uncorroborated admissions.
This case clearly demonstrates the dangers inherent when confessions of previous crimes are considered to support the imposition of capital punishment even though there is no evidence, independent of the defendant’s admissions, which tends to establish that any of those crimes were ever actually perpetrated. The majority opinion concludes that there was “nothing inherently unreliable about the evidence” (116 Ill. 2d at 455), but it seems to me that the majority has gotten the question backwards by failing to inquire whether there was any reason to view the statements as believable. It strains the imagination to believe that the defendant, from the age of 14 until the age of 25, in 1975, committed numerous sexual assaults (the exact number being unspecified) against girls about 12 years old in parks and abandoned fields and alongside railroad tracks in the populous areas where he lived, while armed with a knife, and not a single one of the supposed victims or their parents filed a complaint or otherwise caused an investigation to be initiated by which prosecutors in this case could have established names of victims, dates or places of attacks, or other corroborating evidence to prove that even one of those assaults actually occurred. The deficiency here is that the sentencing judge relied on a record which is entirely devoid of evidence detailing how many girls were assaulted, when and where, or the circumstances surrounding any one of those confessed assaults. In view of his clear explanation as to the matters he relied upon in imposing the death sentence, I do not attribute to the trial judge the “necessary caution” (116 Ill. 2d at 455) the majority does. On the contrary, the fact that the trial judge believed uncorroborated evidence of this type to be “reliable” for the purpose of imposing a death sentence belies the majority’s assumption that he was guided by the “necessary caution” and “care.” 116 Ill. 2d at 455.
It is axiomatic that a conviction may not stand on an accused’s confession alone without evidence of the corpus delicti. (People v. Lambert (1984), 104 Ill. 2d 375 .) “The corroboration requirement stems from an attempt to assure the truthfulness of the confession and recognizes that the reliability of a confession ‘may be suspect’ ” either because of coercion, confusion or reason to fabricate. (People v. Willingham (1982), 89 Ill. 2d 352, 359 , quoting Smith v. United States (1954), 348 U.S. 147, 153 , 99 L. Ed. 192, 199 , 75 S. Ct. 194, 197 .) Since uncorroborated statements cannot support a criminal conviction, a fortiori a decision that the defendant must forfeit his life cannot hang on so slender a strand of evidence. Other jurisdictions have recognized the risks encountered when confessions of other crimes are considered for purposes of sentencing (e.g., United States v. Jones (10th Cir. 1981), 640 F.2d 284 ; People v. Hamilton (1963), 60 Cal. 2d 105 , 383 P.2d 412 , 32 Cal. Rptr. 4 ), and at least one Federal court of appeals has ruled that if “the trial court had relied to a substantial degree on evidence of other crimes the defendant had, during his psychiatric examination, claimed to have committed, *** it would have.been necessary for the evidence regarding those crimes to have been true and accurate.” (United States v. Jones (10th Cir. 1981), 640 F.2d 284, 286 .) A defendant’s statements implicating himself in prior criminal conduct should not be admitted during a sentencing hearing unless those statements are corroborated by some independent evidence.
The majority finds what it considers sufficient corroboration for the 1975 admissions because there was evidence that the defendant had fondled two children, ages five and seven, while baby-sitting for them in 1981. It also says that the statements were corroborated by the testimony of the defendant’s younger sister, who claimed that she had been sexually assaulted and raped by the defendant over a period of several years. None of those incidents corroborate defendant’s 1975 admissions.
There is little similarity to be found between the supposed knife attacks, unspecified in number, against unidentified 12-year-old girls along railroad tracks and in parks and abandoned fields, and the unarmed fondling six years later of two children, five and seven years old. Neither did the defendant’s sister testify that the defendant had threatened her with a knife during any of the many assaults which she claimed the defendant had perpetrated against her. At most the State’s evidence establishes the defendant’s propensity to commit sexual offenses against young women and girls (in fact, the allegations of fondling in 1981 do not even establish propensity for the supposed crimes confessed to in 1975), and the mere propensity is not sufficiently probative to establish independently that the crimes admitted to in 1975 were ever committed in fact. In the absence of any independent evidence that those crimes were actually committed, I believe that the 1975 statements were erroneously relied upon by the sentencing judge in pronouncing sentence.
Citing People v. Free (1983), 94 Ill. 2d 378, 422 , the majority says that this evidence was properly considered because the “rules of evidence are in general suspended [at the second part of a death penalty hearing], and the only remaining restrictions are that the evidence be relevant and reliable.” (Emphasis added.) (116 Ill. 2d at 454.) In Free, however, the court found that the evidence at issue “appeared trustworthy”. ( 94 Ill. 2d 378, 423 ), an epithet hardly descriptive of the statements at issue in this case. While the trial judge may use evidence in the sentencing proceeding which is generally inadmissible during the guilt phase, “he must ‘exercise care to insure the accuracy of information considered.’ ” (People v. La Pointe (1981), 88 Ill. 2d 482, 496 , quoting People v. Adkins (1968), 41 Ill. 2d 297, 300 .) This is not the first case to demonstrate that the court, “while continuing to pay lip service to this principle,' has effectively pulled the teeth from the reliability standard.” People v. Morgan (1986), 112 Ill. 2d 111, 152 (Simon, J., dissenting).
The majority opinion diverts attention from the problem confronting the court by transforming the question of whether the sentencing judge placed too much reliance on unsubstantiated admissions (the issue actually presented) into a question of whether the evidence was admissible in a proceeding where the rules of evidence have been “suspended.” The defendant’s 1975 admissions to mental" health professionals whom, the majority concedes, the defendant was apparently attempting to manipulate for the benefit of his criminal defense in 1975 are incredible on their face, and they were made under circumstances which strongly suggest that they were fabricated. Affirming a death sentence premised on statements as unreliable as these indicates that the court has now modified its rule in Free to suspend more than just the rules of evidence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9721633. Public record. Not legal advice.