People v. Williams

JUSTICE RATHJE, also specially concurring:

Unlike Justices McMorrow, Miller and Freeman, I would hold that the evidence was sufficient to find defendant eligible for the death penalty under section 9 — l(b)(ll) of the Criminal Code of 1961 (720 ILCS 5/9— l(b)(ll) (West 1994)). Accordingly, I respectfully dissent.

Section 9 — l(b)(ll) provides for death penalty eligibility where the defendant was 18 years or older at the time of the offense and where:

“[T]he murder was committed in a cold, calculated and premeditated manner pursuant to a preconceived plan, scheme or design to take a human life by unlawful means, and the conduct of the defendant created a reasonable expectation that the death of a human being would result therefrom.” 720 ILCS 5/9 — l(b)(ll) (West 1994).

Defendant argues that the evidence produced at trial was insufficient to prove, beyond a reasonable doubt, that he was eligible for the death penalty under section 9 — l(b)(ll). Specifically, defendant argues that the State failed to prove that defendant murdered Bushong according to a “preconceived plan, scheme or design” (720 ILCS 5/9 — l(b)(ll) (West 1994)).

In response, the State argues that two facts establish that the murder was committed pursuant to a preconceived plan. First, the time display on the surveillance videotape shows that just under one minute elapsed from the time the two assailants entered the store until the time they left. According to the State, the fact that the murder occurred quickly indicates that it was planned in advance. Second, Bushong did not physically resist defendant during the robbery. This fact is significant, in the State’s view, because “unless defendant had planned to kill [Bushong] all along, [there was no point in] deliberately shooting her after she had complied with his demands and stood to the side unthreateningly.” Thus, according to the State, both the speed of the murder and Bushong’s cooperation in opening the cash register are sufficient to support the jury’s finding that the murder was committed pursuant to a preconceived plan, scheme or design.

I agree with the State. The standard of review is whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements necessary to establish defendant’s eligibility for the death penalty beyond a reasonable doubt. People v. Pasch, 152 Ill. 2d 133, 213-14 (1992). Here, the speed of the murder and the victim’s cooperation undeniably permit a reasonable trier of fact to conclude, beyond a reasonable doubt, that the murder was committed pursuant to a preconceived plan. The surveillance videotape reveals that defendant shot Bushong in the head at the very instant that the cash register drawer opened. In addition, although the State does not mention it, the reaction of defendant’s accomplice is significant. Defendant’s accomplice, who was standing only feet away from a brutal murder, merely glanced in defendant’s direction when the gun was fired and immediately returned to stealing potato chips. Nothing in the accomplice’s reaction shows any sign of surprise, fear, or panic; he neither ran from the store nor even looked over the counter to find out what defendant had done. The accomplice simply continued stealing potato chips as if nothing unexpected had happened.

To be sure, other circumstances surrounding the murder, such as the fact that it occurred in the front of the store in full view of the security cameras, might allow a reasonable fact finder to conclude that Bushong’s murder was unplanned. Cf. Munson, 171 Ill. 2d at 192 (finding of preconceived plan upheld, in part, because the defendant drove the murder victim to an isolated area so that the killing would not be observed). Nevertheless, the surveillance videotape provides more than sufficient evidence for a reasonable trier of fact to conclude, beyond a reasonable doubt, that the murder was committed pursuant to a preconceived plan, scheme or design.

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Notwithstanding the foregoing analysis, I agree with Justices McMorrow, Miller, Bilandic and Freeman that, under the particular circumstances presented by this case, defendant’s death sentence must be vacated. Although a majority of this court believes that defendant’s death sentence should be affirmed, that majority does not agree on a single basis for doing so. I, along with Justice Bilandic, would hold that defendant was properly found eligible for the death penalty under section 9 — l(b)(ll). In addition, Justices Miller, Bilandic, and Heiple would hold that defendant was properly found eligible for the death penalty under the felony-murder aggravating factor (720 ILCS 5/9 — 1(b)(6) (West 1994)). Whether this court is permitted to affirm the death sentence in this case is uncertain. However, even if permitted, affirming a death sentence where a majority of this court cannot agree on the reason for doing so is not required and certainly imprudent. Accordingly, I agree that defendant’s death sentence must be vacated.