People v. Free

JUSTICE CLARK, concurring in part and dissenting in part:

I concur in the affirmation of guilt. I would, however, vacate the penalty of death. I feel it was improperly imposed.

The jury at the sentencing hearing found that Bonnie Seipico was killed in the course of a rape and burglary. After the jury determined that no mitigating factors existed that were sufficient to preclude the imposition of death, the defendant was sentenced to die.

I believe that the sentencing jury was under a misapprehension in sentencing the defendant. The defendant was never charged with or convicted of rape or burglary, and yet the jury concluded that the defendant committed the murder in the course of a rape and a burglary.

I disapprove of the prosecuting attorney’s introduction of evidence at the sentencing hearing of the alleged burglary when no such felony was charged or proved at trial. Because of the frequency with which this court has been confronted with questions of possible prosecutorial overreaching at the sentencing hearing, I believe it incumbent on us or perhaps on the legislature to adopt guidelines to be used.

In seeing that the penalty of death is not applied in an arbitrary or capricious manner (Gregg v. Georgia (1976), 428 U.S. 153, 188 , 49 L. Ed. 2d 859, 883 , 96 S. Ct. 2909, 2932 ), the United States Supreme Court has defined the State’s responsibility to provide “ ‘clear and objective standards’ that provide ‘specific and detailed guidance,’ and that ‘make rationally reviewable the process for imposing a sentence of death.’ ” Godfrey v. Georgia (1980), 446 U.S. 420, 428 , 64 L. Ed. 2d 398, 406 , 100 S. Ct. 1759, 1764-65 . See also People v. Gleckler (1980), 82 Ill. 2d 145, 162 .

The rules of evidence that must be adhered to in a criminal trial in this State do not apply at the sentencing hearing. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(e).) In People v. La Pointe (1981), 88 Ill. 2d 482 , this court addressed the difference between the rules of evidence at trial and the rules at a sentencing hearing and recalled the words of the United States Supreme Court in Williams v. New York (1949), 337 U.S. 241 , 93 L. Ed. 1337 , 69 S. Ct. 1079 :

“Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rules rest in part on a necessity to prevent a time-consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue of'guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct. A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.” ( 337 U.S. 241, 246-47 , 93 L. Ed. 1337, 1342 , 69 S. Ct. 1079, 1083 .)

Just the same it is clear that at a death penalty hearing the sentencing jury’s attention should be focused on “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 ; Lockett v. Ohio (1978), 438 U.S. 586 , 57 L. Ed. 2d 973 , 98 S. Ct. 2954 . See People v. Walker (1982), 91 Ill. 2d 502, 515 .

I am concerned that the procedure at a death penalty hearing be such that we can be assured of rational and consistent sentences imposed by different juries. Justice Stewart in Woodson saw the “need for reliability in the determination that death is the appropriate punishment in a specific case,” since there is a “qualitative difference” between the death penalty and all other forms of punishment. Woodson v. North Carolina (1976), 428 U.S. 280, 305 , 49 L. Ed. 2d 944, 961 , 96 S. Ct. 2978, 2991 .

Despite the broad statutory language, there should be limitations as to the evidence that can be considered by a sentencing jury — a group of men and women who are called upon to weigh the deliberate taking of a human life. Setting some definitive guidelines should help to assure equality of treatment at a sentencing hearing. For in the words of Justice Marshall, “Where life itself is what hangs in the balance, a fine precision in the process must be insisted upon.” Lockett v. Ohio (1978), 438 U.S. 586, 620 , 57 L. Ed. 2d 973, 999-1000 , 98 S. Ct. 2954, 2973 (Marshall, J., concurring).

If we allow the sentencing hearing to be completely unrestrained as to what can be admitted into evidence, we will encourage both the prosecution and defense counsel to search for the most colorful attention getter that, while extraneous to what happened or irrelevant to the defendant’s character, could successfully divert the jury’s attention. We should not allow such a result, for to do so is to risk that capital punishment will be imposed in an arbitrary way. And as the United States Supreme Court said in Gardner v. Florida (1977), 430 U.S. 349, 358 , 51 L. Ed. 2d 393, 402 , 97 S. Ct. 1197 , 1204:

“It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.”

See People v. Gleckler (1980), 82 Ill. 2d 145,162 .

I would propose that, as a step towards establishing guidelines for consistent sentencing to guard against jurors’ imposition of the death penalty under the influence of passion or prejudice, the following limitations of evidentiary considerations at a death penalty hearing should be adhered to: If the evidence offered is extraneous to the facts and circumstances of the case or the character of the defendant, it is not admissible; if it would tend to divert the jury’s attention from the aggravating or mitigating factors before them, it should be excluded; and if the evidence impinges upon any fundamental constitutional guarantee, it cannot be admitted at the sentencing hearing.

The United States Supreme Court has clearly indicated that “[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” (Gardner v. Florida (1977), 430 U.S. 349, 358 , 51 L. Ed. 2d 393, 402 , 97 S. Ct. 1197, 1204 .) It does not appear to me that the decision to sentence James P. Free, Jr., to death was based upon reason. I dissent from the affirmation of the death penalty.

JUSTICE SIMON joins in this partial concurrence and partial dissent.