People v. Davis

JUSTICE SIMON, dissenting:

Although I have no intention of disputing the prosecutor’s observation that the defendant, Girvies L. Davis, is no altar boy, he was still entitled to a fair trial and to the protections the law gives to every person charged with crime. Both the guilt and the sentencing hearings were deficient in these respects. Because of the series of errors outlined below I believe the defendant’s conviction should be reversed and this cause remanded for a new trial.

THE VERDICT OF GUILT

I

I find no justification for the court’s refusal to dismiss juror Lewis after he informed the trial judge of his close friendship with a relative of a person murdered in a robbery in which the defendant might have been involved. As the majority opinion points out, the juror knew that his close friend was bitter about the incident and because of his friendship with the victim’s relative, juror Lewis stated he did not know whether he could keep an open mind. He recognized that he had a conflict of interest and that it was his duty to make the court aware of it. The only thing Mr. Lewis said which could possibly support the majority’s conclusion that leaving him on the jury was not improper was his statement, “I think for this case, since it is a separate case, I think I could look at this case ***.” This was at best an ambiguous response to the problem which confronted Mr. Lewis. It did not justify the conclusion that he could be impartial, especially because the statement quoted above was preceded by his remark, “I don’t think I could ever put it totally out of my mind because it was someone near to me ***.” I am disturbed, as juror Lewis himself apparently was, over whether he could be objective, knowing that if he voted for acquittal his close friend might be displeased. In my judgment, the trial judge did not properly take into account the concern that juror Lewis might have about facing his close friend if he found it necessary to vote to acquit the defendant, a prospect which might have prevented Mr. Lewis from viewing the evidence impartially.

The majority relies on the trial judge being in a superior position to observe the juror’s demeanor and decide what his attitude really was. But I cannot understand how observing the juror’s demeanor would assist the trial judge in knowing how Mr. Lewis would resolve the conflict of interest arising from his friendship with the victim’s relative. The fact that a conflict of interest existed should have been sufficient to disqualify Mr. Lewis. People v. Stoval (1968), 40 Ill. 2d 109 .

A remark made by the trial judge, who had previously presided over an unrelated murder trial of the defendant’s accomplice, is relevant to this issue. After the jury in this case had returned the verdict imposing the death penalty, the trial judge stated, “*** Mr. Davis [the defendant] is a no-good, cold-blooded killer that doesn’t deserve to live.” It is not clear from the record at what point the trial judge formed this impression of the defendant; it is entirely possible that he might have formed that opinion, at least in part, early in the trial before juror Lewis mentioned his concern about continuing to sit in the case. If that is so, the trial judge’s own observation of juror Lewis’ demeanor in deciding whether to retain him on the jury is suspect.

With two alternate jurors having been selected, I see no reason why in the interest of fairness and having a jury which was not only impartial but also had the appearance of impartiality, the trial judge should not have acquiesced in the replacement of Mr. Lewis by one of the alternates. It appears to me that juror Lewis was more sensitive to the conflict of interest that his friendship with the victim’s relative created for him than was either the circuit judge or this court, and that permitting Mr. Lewis to remain on the jury was an abuse of discretion.

II

A second reason for granting a new trial is the prosecutor’s highly improper reference to the other murders in which the State claimed the defendant was inyolved. Evidence of the Mueller and Sepmeyer murders was admitted for the purpose of showing knowledge and modus operandi — preying upon elderly persons by invading their homes when they were alone, stealing their property and shooting them. I find no fault with admitting this evidence for this limited purpose. But that is not the way the prosecutor used the other two murders in his final argument. He told the jury that the State and police officers wanted the defendant convicted because he and his accomplice were out killing and they killed three “defenseless old, decrepit, aged people.” The defendant was charged in this case with only one murder, that of 89-year-old Charles Biebel. He was not on trial for the Mueller and Sepmeyer murders. It was improper to urge the jury to convict the defendant because he also murdered Mueller and Sepmeyer, and the defendant’s objection to the final argument should have been upheld.

Unlike the majority, I am not comforted by the trial judge’s instruction to the jury that the Mueller and Sepmeyer murders were to be considered only for the limited purpose of showing defendant’s design and knowledge. This advice was not given in a single, direct instruction but rather in two separate instructions, one of which simply stated the general rule that any argument made by the attorneys not based on the evidence should be disregarded. There is no realistic way of knowing whether the instruction it received impressed the jury as much as the prosecutor’s colorful and highly prejudicial argument, designed to remind the jury that the defendant was involved in three killings in addition to the two for which he already stood convicted.

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I also disagree with the way the majority disposes of the defendant’s objection that the prosecutor used peremptory challenges to obtain an all-white jury. After concluding, as the majority did, that the record fails to show any pattern of exclusion of prospective jurors on the basis of race, I fail to understand the need for the majority to refer to Swain v. Alabama (1965), 380 U.S. 202 , 13 L. Ed. 2d 759 , 85 S. Ct. 824 , for the proposition that the prosecutor has a right to exclude prospective jurors in exercising peremptory challenges for any reason, including their race.

In the first place, I am not certain that Swain so holds, even as a matter of due process. Although, as pointed out by the appellate court in People v. Payne (1982), 106 Ill. App. 3d 1034, 1041 , the Supreme Court in Swain stated that “[t]he essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control” ( 380 U.S. 202, 220 , 13 L. Ed. 2d 759, 772 , 85 S. Ct. 824, 836 ), the court observed later in the opinion that the peremptory challenge is not designed to facilitate or justify a system which results in denying black persons “the same right and opportunity to participate in the administration of justice enjoyed by the white population.” ( 380 U.S. 202, 224 , 13 L. Ed. 2d 759, 774 , 85 S. Ct. 824, 838 .) Thus, I construe Swain as recognizing that peremptory challenges are not totally outside the control of the trial court.

Second, I believe that the strength of the Swain holding has been diminished by later decisions under the sixth amendment in Duncan v. Louisiana (1968), 391 U.S. 145 , 20 L. Ed. 2d 491 , 88 S. Ct. 1444 , and Taylor v. Louisiana (1975), 419 U.S. 522 , 42 L. Ed. 2d 690 , 95 S. Ct. 692 . These decisions recognized “the fair-cross-section requirement as fundamental” to the sixth amendment right of a defendant to a jury trial in a State criminal prosecution. The rights of an accused in a State trial to the strictures of the sixth amendment in the selection of a jury and their impact on exclusion of persons from a jury by peremptory challenge only on the basis of race, sex or religion were not decided in Swain. In fact they were not even raised, because Swain was decided before the sixth amendment was held to be applicable to State criminal trials. (People v. Payne (1982), 106 Ill. App. 3d 1034, 1042 .) The Swain holding dealt only with whether peremptory challenges aimed at producing an all-white jury comported with due process of law under the fifth and fourteenth amendments, and is not authority for a holding that such challenges do not violate the sixth amendment, particularly in light of Taylor and Duncan.

For these reasons I believe that deciding to what extent the trial court is responsible for controlling the use of peremptory challenges by a prosecutor to exclude persons from a jury on the basis of their race, sex or religion is a mistake in this case, and should be deferred until a case reaches this court with a record which shows more clearly than the one now before us that a number of prospective jurors were excluded on the basis of race with the purpose of obtaining an all-white jury. Until such a factual situation is presented to this court, I believe that resolution of the issue merely in reliance on Swain v. Alabama is obsolete and too simplistic to provide helpful guidance for trial courts. The issue has come to the attention of our appellate court on numerous occasions in the past three years and also during the 1970 to 1980 decade, although on less frequent occasions. I believe that to give proper guidance to our trial courts we should deal with the constitutional issue more fully than the court has been able to on the basis of the facts presented, briefs filed and arguments advanced in this case.

THE DEATH SENTENCE

In my judgment, the defendant is also entitled to a new sentencing hearing.

I

I believe that it was error to allow evidence that the wife of Frank Cash, one of defendant’s victims, gave birth to a baby the day after he was murdered. My reasons for arriving at this conclusion are fully stated in my dissent in People v. Free (1983), 94 Ill. 2d 378 (Simon, J., dissenting). The only purpose this evidence could serve was as an emotional appeal to the jury. The majority relies on Free, where the admission of similar testimony was not held to be a ground for reversal. However, in that case, as the majority acknowledges, the defendant failed to object to the improper testimony and the court emphasized in Free that the defendant had waived the right to have the propriety of the evidence considered on appeal. In this case the majority concedes that the record implies that a timely objection was presented.

While it is true, as the majority points out, that this evidence came in during the second phase of the sentencing procedure, I am not aware that the law is that anything goes at this stage of the trial and that the doors are thrown open to any type of evidence the State desires to put in. The majority agrees “that comments and testimony regarding a deceased’s family are generally improper.” (95 Ill. 2d at 36.) I do not understand how they can be regarded as relevant or as serving any purpose other than to arouse the passions of the jury even when, offered during the phase of the sentencing proceeding in which the court is receiving evidence in mitigation.

The majority’s willingness on the basis of Free to accept irrelevant and improper evidence is inconsistent with this court’s reasoning and decision in People v. Szabo (1983), 94 Ill. 2d 327 . In the latter case we held that there were limits on the types of evidence that were acceptable in the second phase of the sentencing. Thus, for example, a prosecutor’s closing remarks “calculated to play upon the jurors’ emotions” and which we characterized as “clearly improper,” “inflammatory and prejudicial” were held to be grounds for vacating the sentence of death in Szabo. ( 94 Ill. 2d 327, 363-64 .) The limitations placed by Szabo upon the type of evidence which may be offered at the sentencing hearing do not correspond with what the majority of this court had to say on the same subject in Free and is saying in this case; it is my respectful suggestion that there exists a dichotomy between these opinions calling for reconciliation by this court.

The majority appears to be saying that reference to the birth of a child the day following the murder of its father was harmless in view of the three murder convictions, an attempted-murder conviction and convictions of burglary and battery which the jury was aware comprised the defendant’s “significant criminal history.” This is a bootstrap argument. If in view of the defendant’s criminal history it is not reasonable to believe that the jury could have been influenced by hearing about the birth of the Cash baby, why bother to hold any hearing in mitigation? Perhaps the logical procedure would be merely to label the defendant a no-good, cold-blooded killer who doesn’t deserve to live, as the trial judge ultimately did, and dispense entirely with the hearing in mitigation. Yet the mitigation hearing is required by the Constitution (see Lockett v. Ohio (1978), 438 U.S. 586, 604 , 57 L. Ed. 2d 973, 990 , 98 S. Ct. 2954, 2965 ) and the death penalty statute itself p. Rev. Stat. 1979, ch. 38, par. 9-l(c)). I fail to see why a hearing which is provided as an opportunity for the defendant to escape execution should be turned into a forum for the introduction of evidence by the State that is prejudicial to the defendant and is interdicted at other stages of the trial because it is irrelevant to any issue in the case.

II

Next, the prosecutor’s suggestion to the jury in closing argument at the sentencing hearing that its decision would be a recommendation that the defendant receive the death sentence, but that whether he would actually be put to death would not be in their hands, denied the defendant a fair hearing. The majority disposes of this impropriety by first arguing that because no objection was raised by the defendant, the error was waived. But, as I pointed out in dissenting in Free, “few propositions have a longer pedigree in the common law of this State than that any irregularity not expressly waived in the trial of a capital case" must be examined if raised on review. (People v. Free (1983), 94 Ill. 2d 378, 435 (Simon, J., dissenting).) This old rule has recently been buttressed by this court’s decision in People v. Brownell (1980), 79 Ill. 2d 508 , where the defendant received a new sentencing hearing on an issue which was neither raised in the trial court nor on appeal, and by Eddings v. Oklahoma (1982), 455 U.S. 104 , 71 L. Ed. 2d 1 , 102 S. Ct. 869 , where the Supreme Court granted a new sentencing hearing on a ground that was not expressly presented in the defendant’s petition for certiorari. Whether the instruction the jury was given that a verdict by the jury that the defendant receive the death sentence would require the court to impose that sentence was given more attention by the jury than the prosecutor’s misleading remarks is impossible to determine. It is significant, however, that in spite of defendant’s long criminal history, which the State has emphasized before this court, which disclosed the defendant might have been involved in the murder of five persons, and of which the jury was aware, the sentencing jury deliberated for more than eight hours before deciding the defendant should receive the death penalty. In Szabo we held that it was improper for a prosecutor, in arguing for a death sentence, to suggest to a jury that if the death sentence were not imposed the defendant might be released on parole. (See also People v. Walker (1982), 91 Ill. 2d 502, 515-17 .) I believe it is an error of at least equal magnitude to mislead a jury by suggesting to it that its decision would be only advisory, and whether the defendant would actually be put to death was a matter someone else would ultimately decide. This error alone warrants a new sentencing hearing.

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I believe the introduction of the videotape recordings in which the defendant expressed the desire to be put to death quickly was another error. The sentencing jury witnessed and heard out of the defendant’s own mouth that he desired to be executed promptly. This was after the jury had already found the defendant guilty, so one can only wonder what purpose introduction of the videotapes served other than to let the jury know that at one time the defendant said he wanted to die and get it over with.

The defendant argues that his dialogue with the State’s Attorney of St. Clair County actually constituted a plea bargain, a request by the defendant that he be guaranteed quick execution. As I read the transcript of the tapes I would characterize the conversation as a plea bargain, although I concede it was a strange and unusual one. Contrary to the majority, I see no reason why a plea bargain would be less harmful if admitted during the second phase of the sentencing hearing than earlier in the case. Our rules (87 Ill. 2d R. 402(f)) make no such distinction; they prohibit the use of a plea discussion “in any criminal proceeding,” and the second phase of the sentencing hearing is clearly a part of a criminal proceeding.

Another reason the videotapes should not have been admitted even at this stage of the proceedings is that they included the statement by the prosecutor that the defendant’s accomplice, Ricky Holman, had implicated the defendant in several incidents in which Holman claimed the defendant did the shooting. This was the first time that the jury heard that the defendant had himself shot any of the victims. This hearsay evidence of Holman’s charges was obviously prejudicial to the defendant before a jury determining whether he should live or die. The tapes were relevant only to the issue of whether the defendant was the triggerman. The evidence should have been introduced, if at all, at the first, or aggravating, stage of the sentencing hearing. The State’s failure to introduce it then does not entitle it to do so in the mitigation phase of the hearing, by which time all of the State’s evidence in aggravation should be known to the defendant and the jury.

The videotapes were irrelevant to the gravity of the defendant’s conduct and shed no light on his rehabilitative potential, and under the standards set forth in People v. Szabo (1983), 94 Ill. 2d 327 , they should not have been admitted into evidence. The fact that at one time the defendant told the State’s Attorney he wanted to die did not make him more deserving of the death penalty, and even if it did, the videotapes may have been confusing to the jury because at the time of his sentencing the defendant wanted to continue to live.

IV

Two additional reasons, even more fundamental, require the conclusion that the death sentence is impermissible in this case. First, the majority’s decision that the State has carried its burden of proving that defendant’s multiple convictions for murdering Charles Biebel, John Oertel and Frank Cash constitute an aggravating factor under the death penalty statute is not supported by the record. The statute reads in relevant part:

“(b) Aggravating Factors. A defendant who at the time of the commission of the offense *** who has been found guilty of murder may be sentenced to death if:

* * *

3. the defendant has been convicted of murdering two or more individuals under subsection (a) of this Section or under any law of the United States or of any state which is substantially similar to Subsection (a) of this Section 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 ***.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 38, par. 9— 1(b)(3).

Clearly the legislature did not intend for capital punishment to be imposed upon any defendant convicted of two or more murders, even when those convictions were based on subsection (aXl) of the murder statute (Ill. Rev. Stat. 1979, ch. 38, par. 9 — l(aXl)). The italicized phrase requires the State to prove at a minimum that the defendant either intended to kill at least two people or engaged in two distinct, premeditated murderous acts. The record shows only that the Cash murder was intentional. In the case of the Oertel conviction, the jury was instructed that it could convict the defendant of murder if it found that defendant acted with intent to kill, with intent to do great bodily harm, or with knowledge that death or great bodily harm would result. He was convicted of the Biebel murder after the jury was instructed on felony murder and knowledge that death or bodily harm would result, and after a statement was made by the prosecutor in closing argument that intent to kill is irrelevant in cases of felony murder. Nothing in the jury’s verdict in either the Oertel or Biebel cases or in the record indicates which theory of murder it adopted. See People v. Harris (1978), 72 Ill. 2d 16 .

Defendant’s convictions of the Cash, Oertel and Biebel murders could serve as the basis for imposing the death penalty only if the State had been able to demonstrate unambiguously that at least two of them resulted from an actual intent to kill or from distinct premeditated acts. Aggravating factors relied on to support a death sentence must be proved beyond a reasonable doubt. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(f); see People v. Brownell (1980), 79 Ill. 2d 508, 534 .) The evidence in this case shows at most that the defendant might have intended to kill John Oertel and Charles Biebel; the record falls short of showing that the jury actually found that such an intent existed.

Finally, because of Enmund v. Florida (1982), 458 U.S. 782 , 73 L. Ed. 2d 1140 , 102 S. Ct. 3368 , the defendant would not be eligible for the death penalty for the murder of Charles Biebel if the verdict in this case were based on felony murder, a possibility which the evidence and the jury verdict clearly leave open. The majority opinion acknowledges that the evidence indicates that the defendant was not the triggerman in the Biebel murder and that he was engaged in taking stolen items out of the Biebel house to his car when the murder was actually committed. It observes, however, that the Enmund decision permits capital punishment where a defendant convicted of felony murder “contemplated” that life would be taken ( 458 U.S. 782, 801 , 73 L. Ed. 2d 1140, 1154 , 102 S. Ct. 3368, 3379 ), and proceeds on the theory that the defendant must have so contemplated in this case because the Mueller murder had occurred earlier under similar circumstances. That is too artful a use of the word “contemplate” in deciding whether a defendant is excluded from the protection of Enmund, and is a departure from the Enmund holding that the eighth amendment forbids imposition of the death penalty on one “who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” 458 U.S. 782, 797 , 73 L. Ed. 2d 1140, 1151 , 102 S. Ct. 3368, 3376-77 .

Neither a burglary nor the act of carrying stolen items out of a house that is being burglarized is in itself a murderous act. Such conduct by itself does not intimate an intent to kill. That a murder occurred while defendant was carrying items out of a house on a previous occasion may be enough to convey notice to defendant that his accomplice has murderous tendencies, so that a second murder might be said to be foreseeable should defendant engage in similar conduct in a subsequent burglary. He would then be liable for the tort of wrongful death as well as for the crime of felony murder. But foreseeability is not the same as intent, active contemplation, or actual anticipation. To equate the concepts, as the majority does, is to read into negligent or reckless conduct a volitional element that does not exist. Basing an execution on so expansive a definition of the word “contemplate” not only does violence to the clear holding of Enmund that a person convicted of felony murder cannot constitutionally be put to death absent a showing that he intended that life be taken, but ignores the fact that our criminal code specifically 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 states of mind and requires, in order to impose a death sentence, that a defendant convicted of felony murder intend to kill or at least know that as a consequence of his actions a death is likely to occur (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)(6)(b)). I conclude that it is error for the trial court or this court to treat bare foreseeability of the possibility of a death as satisfying the requirements of both Enmund and our capital punishment statute that a defendant actually intend a killing or knowingly acquiesce in one.