People v. Williams

JUSTICE HEIPLE, also concurring in part and dissenting in part:

I concur in the majority’s affirmance of defendant’s conviction for first degree murder. However, because I would also affirm defendant’s sentence of death, I dissent in part.

On November 3, 1994, Sharon Bushong was murdered during the course of a robbery at the convenience store where she worked. Following investigation by police, defendant was arrested and charged with the crime. After hearing the evidence and arguments, the jury returned a general verdict finding defendant guilty of first degree murder.

During the sentencing phase of defendant’s trial, the same jury found the defendant eligible for the death penalty based upon two statutory aggravating factors: (1) murder committed in a cold, calculated manner pursuant to a preconceived plan, scheme or design to take a human life (720 ILCS 5/9 — l(b)(ll) (West 1994)); and (2) murder committed in the course of another felony (720 ILCS 5/9 — 1(b)(6) (West 1994)). With respect to the first factor, defendant argues, inter alia, that his sentence of death must be vacated because the statute in question is unconstitutionally vague. With respect to the second factor, defendant argues that the verdict form signed by the jury was defective in that it failed to list the mental state required by the statute, namely, that defendant intended to kill the victim. Although I agree with defendant that the “preconceived plan” aggravating factor is insufficiently precise to genuinely narrow the class of persons eligible for the death penalty, I would hold that defendant was properly sentenced to death under the “felony-murder” factor.

Defendant argues that section 9 — l(b)(ll), which makes a defendant eligible for the death penalty upon a finding that “the murder was committed in a cold, calculated and premeditated manner pursuant to a preconceived plan, scheme or design to take a human life,” does little more than describe the mens rea of any intentional murder. 720 ILCS 5/9 — l(b)(ll) (West 1994). In support of this contention, defendant cites this court’s opinion in People v. Stewart, 105 Ill. 2d 22 (1984). In Stewart, this court approved a definition of premeditation as “ ‘[a] prior determination to do an act,’ ” but noted that “ ‘such determination need not exist for any particular period before it is carried into effect.’ ” Stewart, 105 Ill. 2d at 73 . According to defendant, therefore, the statutory term “premeditated” as used in section 9 — l(b)(ll) is triggered in any case in which a defendant is convicted of first degree intentional murder. Likewise, the terms “cold” and “calculated” fail to meaningfully differentiate among first degree intentional murders. Accordingly, defendant argues that section 9 — l(b)(ll) fails to satisfy the constitutional requirement that a death-eligibility factor must “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877 , 77 L. Ed. 2d 235, 249-50 , 103 S. Ct. 2733, 2742 (1983). I agree.

In the past, this court has rejected constitutional challenges to section 9 — l(b)(ll), holding that the statutory language “pursuant to a preconceived plan, scheme or design to take a human life” provided sufficient guidelines for the sentencer in determining eligibility. See, e.g., People v. Johnson, 154 Ill. 2d 356, 372-73 (1993); People v. Munson, 171 Ill. 2d 158, 191 (1996); People v. Macri, 185 Ill. 2d 1, 52-53 (1998); People v. Haynes, 174 Ill. 2d 204, 254-55 (1996); People v. Williams, 173 Ill. 2d 48, 89-90 (1996). In those cases, this court held that the requirement that the sentencer find that defendant acted pursuant to a preconceived plan required a finding of more than the simple intent to commit a murder. As such, we held that this factor was not present in every murder, and that section 9 — 1(b) (11) placed the necessary restraint on the sentencer’s discretion to impose death. Nevertheless, despite this court’s holdings in those cases, I do not believe that section 9 — l(b)(ll) provides a constitutionally adequate means of identifying those individuals deserving of the death penalty.

The instant case aptly illustrates the degree of imprecision inherent in section 9 — l(b)(ll). Today, three justices of this court, including myself, find the evidence in this case sufficient to permit a jury to find, beyond a reasonable doubt, that defendant killed the victim pursuant to a preconceived plan to take a human life. In so finding, we base our conclusion upon the fact that defendant killed the victim almost immediately after she had cooperated by opening the cash register. However, while I believe that this evidence was indeed sufficient for a jury to find the existence of a preconceived plan to take a human life, it is difficult to imagine a case of intentional murder in which the evidence would not be sufficient for such a finding. As this court held in Stewart, premeditation does not require that a defendant’s intent exist for any particular period of time before he acts. Stewart, 105 Ill. 2d at 73 . Accordingly, there is nothing in section 9 — l(b)(ll) which would prevent a sentencer from finding that premeditation existed in the instant before defendant pulled the trigger. Indeed, if premeditation did not in fact exist to some extent, it might be argued that the killing was accidental or inadvertent. I fail to see how the phrase “preconceived plan, scheme or design” provides any greater limitation upon a sentencer’s discretion. As Justice McMorrow points out in her plurality opinion, this court has never explicitly stated what is meant by that phrase. 193 Ill. 2d at 31. That we have failed to do so should not be surprising, however, as the phrase defies explicit definition. It is unclear from the language of the statute whether a defendant must have harbored the plan to kill for a second, a minute, an hour, or some other undefined period. Where the language of the statute is so vague that this court is incapable of formulating a standard for its application, such a statute necessarily provides insufficient guidance to a sentencer charged with determining whether a defendant is eligible to be put to death. Accordingly, I would hold that section 9 — l(b)(ll) is unconstitutional.

Despite my belief that defendant was improperly sentenced to death under section 9 — 1(b) (11), I nevertheless believe that defendant’s sentence should be affirmed based upon the jury’s finding that defendant was eligible for the death penalty by virtue of having committed the murder during the course of another felony. Section 9 — 1(b)(6) of the Criminal Code makes a defendant eligible for the death penalty where:

“[T]he murdered individual was killed in the course of another felony if:

(a) the murdered individual:

(i) was actually killed by the defendant ***

[and]

(b) in performing the acts which caused the death of the murdered individual *** the defendant acted with the intent to kill the murdered individual or with the knowledge that his acts created a strong probability of death or great bodily harm to the murdered individual or another[J” 720 ILCS 5/9 — 1(b)(6) (West 1994).

When returning its verdict, however, the jury signed a verdict form which stated:

“We, the jury, unanimously find beyond a reasonable doubt that the defendant, Bobby Williams, is eligible for a death sentence under the law. We unanimously find beyond a reasonable doubt that:

the defendant was 18 years old or older at the time of the murder for which he was convicted in this case; and the following statutory aggravating factor exists: the murder was committed during the course of an armed robbery.”

Defendant points out that, although the verdict signed by the jury listed some of the elements which the jury was required to find in order to find the defendant eligible for death under section 9 — 1(b)(6), the form failed to list the requirement that the jury find that the defendant acted with an intent to kill or with knowledge that his acts created a strong probability of death or great bodily harm. Citing this court’s opinion in People v. Mack, 167 Ill. 2d 525 (1995), defendant argues that the verdict form’s omission of the requisite mental state rendered the jury’s verdict legally insufficient to find him eligible for the death penalty.

For the reasons which led me to dissent in Mack, I disagree with defendant in this case. Mack, 167 Ill. 2d at 539-41 (Bilandic, J., dissenting, joined by Miller and Heiple, JJ.). When the complete record of the defendant’s sentencing hearing is reviewed, it is clear that the jury’s eligibility verdict was proper. The record clearly demonstrates that the jury was instructed that eligibility premised upon murder in the course of a felony required a finding that “[t]he murdered person was actually killed by the defendant and in performing the acts which caused the death of the murdered person, the defendant acted with the intent to kill the murdered person or with knowledge that his acts created a strong probability of death or great bodily harm to the murdered person.” This instruction was clear and precise. Moreover, the evidence that defendant intended to kill the victim when he raised his gun to the victim’s head and shot her is overwhelming. Under the facts of this case, I would hold that the error, if any, stemming from the verdict form’s failure to list the requisite mental state with which defendant acted was harmless beyond a reasonable doubt. Accordingly, I would affirm the jury’s verdict sentencing defendant to death based upon his commission of a murder in the course of another felony.

I therefore concur in part and dissent in part.