Petition — LUIS RUIZ v ILLINOIS (No. 82-6466)

_—————ee oe

Office-Supreme Court, U.S.

FILED

82-6466 MAR 25 1983

ALEXANDER L. STEVAS,

CLERK

N

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

LUIS RUIZ, Petitioner

PEOPLE OF THE STATE OF ILLINOIS, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

THEODORE A. GOTTFRIED

State Appellate Defender

Office of the State Appellate Defender

300 East Monroe, Suite 100

Springfield, IL 62701

(217) 782-7203

COUNSEL FOR PETITIONER

CHARLES M. SCHIEDEL

Supervising Attorney

Supreme Court Unit

OF COUNSEL

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

LUIS RUIZ, Petitioner

-VS~-

PEOPLE OF THE STATE OF ILLINOIS, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

QUESTIONS PRESENTED FOR REVIEW

1.

Does the Eighth Amendment permit the execution

of a defendant in the absence of a finding that

he took or intended to take life?

2.

Is the Eighth Amendment ban on unguided dis-

cretion in capital cases violated by a sentencing

scheme that places no defined limits on factors

that may be considered as reasons for imposing

death?

3.

Does the standardless, post-charging discretion

given to Illinois prosecutors to convene a death

penalty hearing in murder cases violate the

Eighth and Fourteenth Amendments?

TABLE OF CONTENTS

Involved « :« «eee.

TV. Statement of the Case .. -

LIFE. . . . >. . .

.

WHETHER THE

ING A CONVICTION.

is Conclusion «+ +++ ee *

Appendix A . +++ +s *

Appendix B .- +++ +s *

I. Opinion Below. .- ++ +++ eee 2 2% 8

II. Jurisdiction ..-+-+«-+-s+eee » °

III. Constitutional and Statutory Provisions

Vv. Reasons for Granting Certiorari ... -

WHETHER

l. THIS COURT SHOULD GRANT CERTIORARI

TO RESOLVE A QUESTION POSED BY MR.

JUSTICE WHITE'S CONCURRENCE IN

LOCKETT V. OHIO AND LEFT UNDECIDED

BY ENMUND V. FLORIDA:

EIGHTH AMENDMENT PERMITS THE EXECU-

TION OF A DEFENDANT IN THE ABSENCE

OF A FINDING BY THE TRIER OF FACT

THAT THE DEFENDANT INTENDED TO TAKE

2. THIS COURT SHOULD GRANT CERTIORARI

TO RESOLVE A QUESTION CURRENTLY PEND-

ING IN BARCLAY V. FLORIDA:

THE EIGHTH AMENDMENT BAN ON UNGUIDED

DISCRETION IN CAPITAL CASES IS VIO-

LATED BY A SENTENCING SCHEME WHICH

PLACES NO DEFINED LIMITS ON THE

FACTORS WHICH MAY BE CONSIDERED AS

REASONS FOR IMPOSING DEATH.

3. THE ILLINOIS DEATH PENALTY STATUTE

VIOLATES THE EIGHTH AND FOURTEENTH

AMENDMENTS BY ALLOWING PROSECUTORS

TO EXERCISE STANDARDLESS DISCRETION

IN SEEKING THE DEATH PENALTY FOLLOW-

Page

10

10

14

TABLE OF AUTHORITIES

Cases Page

Barclay v. Florida, No. 1eGOO8 ss 6 w se € 4 eee a5

Clark v. Louisiana State Penitentiary, 697 F.2d 75

Pte ees 66 Ghee) 6 68 ee ee ER eee 12

Enmund v. Florida, U.S. __, 73 L.Ed.2d 1140, 102

7 ee OR Sy) ri er 10, 12, 13

Furman v. Georgia, 408 U.S. 238, 33 L.Ed.2d 346, 92

Bette 2/26, (1972) . o . . . . . . . . . . . . . . 15, 16, 18,

Gregg v. Georgia, 428 U.S. 153, 49 L.Ed.2d 859, 96

Seu 2909, (1976) * * . . . . 7. . . . . . * . . . 18, Zi, 22,

Harris v. Pulley, 692 F.2d 1189, 1194 (9th Cir., 1982),

cert. granted sub nom. Pulley v. Harris, No.

82-1095 March 21, 1983) _ . 7 . - . . . - . . .* 15

Henry v. Wainwright, 661 F.2d 56 (5th Cir., 1981),

vacated on other grounds, U.S. , 73 L.Ed.2d

1326, 102 S.Ct. 2922, (1982), aff'd 686 F.2d 31l

(llth Cites Unit B, 1982) . 7 . . . . . . . + . . . LS

Lockett v. Ohio, 438 U.S. 586, 57 L.Ed.2d 973, 98

BsGee 2954 (1978) . . 7 . 7 . . * * . . . 7 . * 7 7 1l

People v. Wesley Brents, 4th District, No. 16274... - 21

People ex rel. Carey V. Cousins, 77 I11.2d 531, 397

N.E.2d 809 (1979) . . . . . * . . . . * * . . . . . 17s 18, 19, 21

People v. Jerry Gleckler, 82 Il11.2d 145, 411 N.E.2d

ne A. se koe es Sone See eS eee eee 21

People v. Greer, 79 Il1l1.2d 103, 402 N.E.2d 203 (1980) .- 20

People v. Donald Groth, Sangamon County Case, No.

ot cee wie. 6. a 6 O68 Oe ee Oe RO 21

People v. Verion Hicks, 4th District, No. 16674 .. =. >» 21

People v. Glen Hipkins, 57 I11.App.3d 579, 423 N.E.2d

208 (1981) . . : . . _ 7 . . . . 7 . . . . 7 * 7 * 20

People v. Robert Kirkpatrick, 70 I11.App.3d 166, 387

N.E. . . . . . . * . . . . . . . . . 20

iii.

People v. Michael LeCrone, 4th District, No. 15877... 21

People v. James Lee, 4th District, No. 16273 ...... 21

People v. Lewis, 88 I1l1.2d 129, 430 N.E.2d 1346 (1981),

cert. denied, uU.8. , 73 L.Ed.2d 1308,

102 S.Ct. aeeelvck 6 oe + oe « avelerele « «ht, 2 oe

People v. Ozark Nesbit, Sangamon County Case, No.

Tema eet 6 2 4.68. + 6 ee ee et 6 le eS we ee ee 8 21

People v. Phillip Peeples, 4th District, No. 16759... 21

People v. Michael Robinson, 87 I11.App.3d 621, 410

MebsetG San (A980) «+ ce eo te ee ee hehe hl hl el 20

People v. Ruiz, I11.2d » No. 53415 (Dec. 17,

1982) . ~ - _ . - . - . ~ _ - . + . o a 7 _ . . . . 16

People v. Walker, 84 I11.2d 512, 419 N.E.2d 1167 (1981). 20

Profitt v. Wainwright, 685 F.2d 1227 (llth Cir., 1982) . 15

State v. Bartholemew, 654 P.2d 1170, 1183 Wash. (1982) . 15

Statutes

Ill.Rev.Stat., 1977, Ch. 38, Sec. 9-1 (b)1-8 . 7 7 . 7 . 14

Ill .Rev.Stat., 1977, Ch. 38, Sec. 9-1l(b)3 « « « « « @ « 11

I11.Rev.Stat., 1977, Ch. 38, Sec. 9-l1(b) and (c) .... 14, 19

I11.Rev.Stat., L97aie Ch. 38, Sec. 9-1 (da) . . . . . . . . Ave Za

Iii .Rrev.Stat., 1977, Ch. 38, Sec. 9-lL({@) « «© © eo wo vw @ 14

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

LUIS RUIZ, Petitioner

-vs-

PEOPLE OF THE STATE OF ILLINOIS, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

The petitioner, Luis Ruiz, prays that a writ of

certiorari issue to review the judgment and opinion of the

Supreme Court of Illinois holding that a sentence of death

was properly imposed and that the Illinois death penalty

statute does not violate the Eighth Amendment's proscription

of cruel and unusual punishment.

OPINION BELOW

The opinion of the Supreme Court of Illinois was filed

on December 17, 1982, as No. 53415. It has not yet been

reported. A copy of the opinion is attached hereto as

Appendix A.

JURISDICTION

The judgment of the Supreme Court of Illinois was entered

on December 17, 1982. A petition for rehearing was denied

by order of the court on January 28, 1983, a memorandum of

which order is attached hereto as Appendix B. This petition

Cot

a

is being filed within sixty days of the Illinois Supreme

Court's denial of rehearing. The jurisdiction of this

Court is invoked under 28 U.S.C. SeC. 1257(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Eighth Amendment to the Constitution of the United

States provides:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and

unusual punishments inflicted.

The Fourteenth Amendment to the Constitution of the

United States provides in pertinent part:

No State shall...deprive any person of

life, liberty, or property, without due

process Of law...

The offense of murder in Illinois is defined in I11.Rev.

A person who kills an individual without

lawful justificiation commits murder if,

in performing the acts which cause the

death:

(1) He either intends to kill or

do great bodily harm to that in-

dividual or another, or knows that

such acts will cause death to that

jndividual or another; or

(2) He knows that such acts create

a strong probability of death or

great bodily harm to that individual

or another; or

(3) He is attempting or committing a

forcible felony other than voluntary

manslaughter.

The provision for convening a capital sentencing hearing

following an Illinois defendant's conviction for murder is

found in Ill.Rev.Stat., 1977, Ch. 38, Sec. 9-1(d):

mo" COs

—————_E << #-~— |

(ad) Separate sentencing hearing.

Where requested by the State, the court

shall conduct a separate sentencing

proceeding to determine the existence

of factors set forth in Subsection (b)

and to consider any aggravating or

mitigating factors as indicated in

Subsection (c).

The statutory aggravating factor involved in this case

is found in I11.Rev.Stat., 1977, Ch. 38, Sec. 9-1 (b) 3:

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;

The provision for consideration of additional aggravating

factors at the death sentencing proceeding is found in

Ill.Rev.Stat., 1977, Ch. 38, Sec. 9-1(c) and 9-l(e):

(c) Consideration of factors in Aggravation

and Mitigation. The court shall consider,

or shall instruct the jury to consider any

aggravating factors which are relevant to

the imposition of the death penalty. Ag-

gravating factors may include but need not

be limited to those factors set forth in

subsection (b)....

(e) Evidence and Argument. During the

proceeding any information relevant to

any of the factors set forth in Subsection

(b) may be presented by either the State

or the defendant under the rules governing

the admission of evidence at criminal trials.

Any information relevant to any additional

aggravating factors or any mitigating fac-

tors indicated in Subsection (c) may be

presented by the State or defendant regard-

less of its admissibility under the rules

governing the admission of evidence at crim-

inal trials. The State and the defendant

shall be given fair opportunity to rebut

any information received at the hearing.

bry. OOS

EVs

STATEMENT OF THE CASE

Prior to trial Mr. Ruiz raised two of the federal

questions involved in this petition by moving the trial

court to declare the Illinois Death Penalty Statute un-

constitutional. The motion alleged in part that the statute

provided inadequate guidance for the sentencing body and

afforded the prosecution standardless and unreviewable

discretion to seek the death penalty. (Vol. I, R. 746, 751-

771) The motion was summarily denied by the Circuit Court

of Cook County on March 10, 1980. (Vol. I, R. 6) Following

his conviction but prior to sentencing, Mr. Ruiz raised the

third federal question involved in this petition by arguing

that he could not be sentenced to death where his guilt was

premised upon the theory of accountability. (Vol. II,

R. 625-627) This argument was rejected by the trial court

which held that petitioner was liable to the death penalty

under Illinois law because he had been convicted of two or

more murders. (R. 627-628) On appeal, the Illinois Supreme

Court affirmed the sentence of death. The court distinguished

Enmund v. Florida, U.S. , 73 L.Ed.2d 1140, 102 S.Ct.

3368 (1982), holding that although there was no evidence

petitioner killed anyone, petitioner's "conduct was such as

to support an inference that he possessed the intent to take

the lives of the victims." People v. Ruiz, I1l1.2d at

, No. 53415 (Dec. 17, 1982) (Appendix A, pg. 16)

The evidence at trial showed that on February 25, 1979,

the bodies of three men were found in an automobile on the

north side of Chicago. They had been stabbed to death.

(Vol. I, R. 155-172) On March 3, 1979, petitioner told an

Assistant State's Attorney he met three men in a restaurant

in Chicago while in the company of three companions. One of

the men told petitioner that he and his friends were members

of a gang that had recently participated in "hits" on two

Latin Kings. Eventually the group got into a car and drove

to an alley. One of the men was then taken from the car by

petitioner and his three companions who told the man that

they were Latin Kings and that he was a King killer. All

four of them then beat this individual. When they returned

to the car the three men were stabbed to death by petitioner's

companions. Petitioner was offered a knife by one of the

killers but he refused to take it and did not participate in

the stabbings. (Vol. II, R. 399-411) After the stabbings

all of the group wiped the car to eliminate blood and

fingerprints. (R. 411)

In closing argument, the prosecutor told the jury that

petitioner did not have to be "an actual stabber to be

guilty of murder." He went on to argue that what petitioner

had told the State's Attorney was "enough to convict him of

murder." (R. 521)

Following arguments the jury was instructed that to

sustain the charge of murder, the State was required to

prove that petitioner, or one for whose conduct he was

responsible, had performed the acts which caused the death

of the victims and that the petitioner, or one for whose

conduct he was responsible, had intended to kill or do great

bodily harm to the victims or knew that his act would cause

death or great bodily harm to the victims or knew that his

acts created a strong probability of death or great bodily

harm to the victims. (R. 578-581)

The jury returned verdicts finding petitioner guilty of

three counts of murder on March 21, 1980. (R. 817-819)

Petitioner waived a jury for purposes of sentencing.

On April 24, 1980, a sentencing hearing was held before the

Circuit Court. Petitioner argued that he could not be

sentenced to death where his guilt was premised on a theory

of accountability. The trial court responded "basically if

you read that section [of the Illinois Statute] it says that

one who is convicted of, I believe its two or more murders,

whatever the exact language is, which I don't have the

statute before me,...but that's basically what the act

says. That motion is denied." (R. 627-628)

It was then stipulated for purposes of sentencing that

petitioner had been found guilty of three counts of murder

and that he was nineteen years old at the time those offenses

occurred. (R. 629) The State then presented evidence in

1 Ill.Rev.Stat., 1977, Ch. 38, Sec. 9-l1(b)3 provides that

a defendant may be sentenced to death if he "has been convicted

of murdering two or more individuals...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;"

aggravation pursuant to I11.Rev.Stat., 1977, Ch. 38, Sec. 9-l(c).

This provides that a sentencing court "shall consider...any

aggravating and any mitigating factors which are relevant

to the imposition of the death penalty. Aggravating factors

may include, but need not be limited to, those factors set

forth in subsection (b)." (Subsection (b) of the statute

lists those factors which, if proven beyond a reasonable

doubt, will render a defendant liable to the death penalty

in Illinois. Ch. 38, Sec. 9-l(b)1-8.) The statute also

provides that information relevant to “additional aggravating

factors" may be presented “regardless of its admissibility

under the rules governing the admission of evidence at

criminal trials." Ch. 38, Sec. 9-l(e).

The nonstatutory aggravation presented by the State

consisted of information that, at the age of sixteen, petitioner

was approached by another youth who suggested that they "hit

a Royal" because the Royals had shot a friend of petitioner's.

Petitioner later fired a rifle into a crowd of people in a

parking lot. A person in the crowd was fatally wounded.

(R. 654-668) No evidence was presented that any criminal

conviction or adjudication of delinquency resulted from

these acts. After presenting evidence that petitioner had

entered a plea of guilty to a charge of burglary at the age

of seventeen, the State rested its case at sentencing.

(R. 669)

Petitioner presented evidence in mitigation of his

conviction for the three homicides. This consisted of

ws

testimony by an investigator that when shown photographs

of the victims, petitioner began crying and told the investi-

gator that he had not wanted his companions to commit the

murders, had begged them not to do it, and did not want to

be any part of it. (R. 672-673)

At the conclusion of evidence the trial court sentenced

petitioner to death. (R. 691)

The convictions and sentence of death were appealed to

the Illinois Supreme Court. On appeal petitioner, relying

on Mr. Justice White's concurrence in Lockett v. Ohio, 438

U.S. 586, 57 L.Ed.2d 973, 98 S.Ct. 2954 (1978), contended

that the sentence of death was improper as it was based on

a theory of accountability. He also challenged the sentencing

court's consideration of the evidence of petitioner's in-

volvement in the prior shooting as this had not resulted in

a conviction. It was contended on appeal that if the Illinois

statute permitted consideration of such nonstatutory aggra-

vation, it was unconstitutional.

The Illinois Supreme Court held that petitioner was

properly sentenced to death as the evidence showed that he

intended to participate in "premeditated acts resulting in

the death of the three victims." People v. Ruiz, I11.2d

___ at _ _ (1982) (Appendix A, pg. 11) The court stated

that even "without considering the testimony...that Ruiz

said he held a gun on the victims and felt their bodies

to see if they were dead, the evidence is sufficient to

prove Ruiz guilty of three murders beyond a reasonable

doubt, along with the necessary intent required to establish

ayo

the aggravating factor set forth in section 9-1(b) (3)."

I11.2d at . (Appendix A, pg. 12) The court distinguished

Enmund v. Florida, U.S. , 73 L.Ed.2d 1140, 102 S.Ct.

3368 (1982), by holding that petitioner's "conduct was such

as to support an inference that he possessed the intent to

take the lives of the victims." — I1ll.2d at. (Appendix

A, pg. 16)

The court also held that as the prior shooting was

admitted as nonstatutory aggrava‘ ion the rules of evidence

did not apply and this information was properly considered.

___ I1l.2d at __s. (Appendix A, pg. 15)

The federal question regarding standardless prosecutorial

discretion to seek the death penalty was not specifically

raised on appeal. However, this challenge to the validity

of the Illinois statute was pending in several other cases

at the time of petitioner's direct appeal. See People v.

Lewis, 88 I11.2d 129, 430 N.E.2d 1346 (1981), cert. denied,

U.S. , 73 L.Ed.2d 1308, 102 S.Ct. (1982) The

issue of prosecutorial discretion decided in Lewis was one

of the grounds for a dissent from the affirmance of peti-

tioner's sentence. People v. Ruiz, I11.2d at ‘

(Appendix A, pg. 16) (Simon, J., concurring in part and

dissenting in part.)

On January 28, 1983, the Illinois Supreme Court denied

a petition for rehearing.

.*

REASONS FOR GRANTING CERTIORARI

l.

THIS COURT SHOULD GRANT CERTIORARI TO RESOLVE

A QUESTION POSED BY MR. JUSTICE WHITE'S CONCURRENCE

IN LOCKETT V. OHIO AND LEFT UNDECIDED BY ENMUND V.

FLORIDA: WHETHER THE EIGHTH AMENDMENT PERMITS

THE EXECUTION OF A DEFENDANT IN THE ABSENCE OF A

FINDING BY THE TRIER OF FACT THAT THE DEFENDANT

INTENDED TO TAKE LIFE.

Luis Ruiz was convicted of murder and sentenced to death

under Illinois law in the absence of a specific finding that

he intended to take life. The Illinois Supreme Court held

that this result did not violate Enmund v. Florida, um

ee 73 L.Ed.2d 1140, 102 S.Ct. 3368 (1982), as there was

evidence "to support an inference that [Ruiz] possessed the

intent to take the lives of the victims." ___ I11.2d at

es (Appendix A, pg. ___) While it is correct that such

an inference could have been drawn, the fact remains that

neither the jury which convicted Ruiz of murder nor the

trial court which determined that he was liable to the death

penalty was required to make a finding that Ruiz intended to

take life.

There was no evidence that Ruiz himself killed or

attempted to kill anyone. Under Illinois law, as explained

to the jury at trial, Ruiz" guilt of murder could rest on

the mere finding that he engaged in conduct with the knowledge

that his acts created a strong probability of great bodily

harm to the victims. (Vol. II, R- 578-581) While the jurors

ner

may have found that Ruiz possessed the intent to kill,

they were not required to do so nor do the general verdicts

returned indicate on which theory they found him guilty.

(R. 817-819)

The trial judge who eventually sentenced Ruiz to death

found the petitioner liable to the death penalty under Illinois

law because of his conviction for two or more murders. (R. 627-

628) The court found Ruiz liable to the death penalty without

reference to the statutory language regarding an intent to

kill more than one person or participation in "separate

premeditated acts." Ill.Rev.Stat., 1977, Ch. 38, Sec. 9-1(b)3.

Thus, the trial court found that Ruiz could be sentenced to

death without making a finding that petitioner possessed the

specific intent to take life. The Illinois Supreme Court

affirmed the sentence of death after holding that the evidence

showed Ruiz' intent to participate in “premeditated acts

resulting in the death of the three victims," and that this

supplied "the necessary intent required to establish the

aggravating factor set forth in section 9-l(b)3." _ I11.2d

at ands. (Appendix A, pg. ll and 12)

In his concurrence in Lockett v. Ohio, 438 U.S. 586,

57 L.Ed.2d 973, 98 S.Ct. 2954 (1978), Mr. Justice White

noted that the facts of that case "might well permit the

inference that the petitioners did in fact intend the death

of the victims. But there is vast difference between permitting

a factfinder to consider a defendant's willingness to engage

in criminal conduct which poses a substantial risk of death

in deciding whether to infer that he acted with a purpose

to take life, and defining such conduct as an ultimate fact

equivalent to possessing a purpose to kill as Ohio has done."

57 L.Ed.2d at 1004.

It is apparent from the holding in this case that

Illinois has elevated conduct giving rise to an inference

of intent to kill to an "ultimate fact," equivalent to

possessing a purpose to kill. As noted above, the jury

may have convicted petitioner upon a determination that he

acted with knowledge that great bodily harm might result to

the murder victims. Yet the sentencing court determined

that the convictions rendered petitioner liable to the death

penalty and the Illinois Supreme Court affirmed the death

sentence on grounds that petitioner's conduct supported "an

inference that he possessed the intent to take the lives of

the victims."

It is respectfully submitted that these proceedings

violate the Eighth Amendment. Because of the factual situation

in Enmund v. Florida, U.S. , 73 L.Ed.2d 1140, 102 S.Ct.

3368 (1982), this Court was not required to resolve the

question now presented. In Enmund there were no facts to

support an inference that the defendant acted with the

intent to take life. Since the Enmund decision, however,

the United States Court of Appeals for the Fifth Circuit has

held in Clark v. Louisiana State Penitentiary, 694 F.2d 75

(1982), that even where there was evidence that the defendant

did the actual killing, because the jury was not required

to find that the defendant killed or possessed an intent to

kill, the Eighth Amendment, as interpreted in Enmund,

does not permit his execution. The court stated:

Before the Constitution will allow

this conviction and sentence, however,

we must know that the jury found beyond

any reasonable doubt that Clark,

personally, did have that mind to

kill....We are left with "a level of

uncertainty and unreliability [in] the

fact finding process that cannot be

tolerated in a capital case." Beck v.

Alabama (citations omitted)

694 F.2d at 78.

The decision of the Fifth Circuit is obviously at odds

with the holding of the Illinois Supreme Court in this case.

As in Clark it cannot be determined from the jury instructions

and the verdicts returned that a finding was made that Luis

Ruiz possessed an intent to kill. It is respectfully

submitted that this situation will arise in numerous other

cases where a conviction of murder and a sentence of death

do not require a finding of intent to kill. This Court

should grant certiorari to resolve the important constitu-

tional question of whether such a result violates the Eighth

Amendment.

THIS COURT SHOULD GRANT CERTIORARI TO RESOLVE

A QUESTION CURRENTLY PENDING IN BARCLAY V.

FLORIDA: WHETHER THE EIGHTH AMENDMENT BAN ON

UNGUIDED DISCRETION IN CAPITAL CASES IS VIOLATED

BY A SENTENCING SCHEME WHICH PLACES NO DEFINED

LIMITS ON THE FACTORS WHICH MAY BE CONSIDERED

AS REASONS FOR IMPOSING DEATH.

An Illinois defendant convicted of murder is liable to

the death penalty only where the State proves beyond a

reasonable doubt the existence of one or more statutorily

defined factors. I11.Rev.Stat., 1977, Ch. 38, Sec. 9=

l(b)1-8. If one of these factors is found then the sen-

tencing judge or jury is statutorily required to consider

any "additional aggravating factors" relevant to the im-

position of the death penalty. These factors may include

but need not be limited to the statutory factors necessary

to render the defendant liable to the death penalty. Ch. 38,

Sec. 9-l(c). The nature of the additional factors in

aggravation is not defined by statute. The admissibility of

these nonstatutory factors is not limited by the rules of

evidence. Ch. 38, Sec. 9-l(e). Thus, when an Illinois defendant

has been found statutorily liable to the death penalty there

are no restrictions on the factors which may then be considered

as reasons for actually imposing death on that defendant.

It is respectfully submitted that this scheme violates the

Eighth Amendment ban on unguided sentencing discretion in

Capital cases. This conclusion follows from the holding of

the United States Court of Appeals for the Fifth Circuit in

c

i

Henry v. Wainwright, 661 F.2d 56 (5th Cir., 1981), vacated

on other grounds, ___ U.S. __, 73 L.Ed.2d 1326, 102 S.Ct.

2922 (1982), aff'd 686 F.2d 311 (llth Cir., Unit B, 1982).

A sentencing jury in a Florida case was instructed that in

considering aggravating circumstances the jurors were not

limited to statutorily defined factors. 661 F.2d at 57.

The Fifth Circuit held that this unconstitutionally broadened

sentencing discretion and violated this Court's decision in

Furman v. Georgia, 408 U.S. 238, 33 L.Ed.2d 346, 92 S.Ct.

2726 (1972). It can be seen from the statutory language

noted’ above that Illinois judges and juries in capital cases

are always allowed to consider undefined nonstatutory

factors in aggravation.

The Henry decision has recently been followed in Profitt v.

Wainwright, 685 F.2d 1227 (11th Cir., 1982), and State v.

Bartholemew, 654 P.2d 1170, 1183 Wash. (1982). But see,

Harris v. Pulley, 692 F.2d 1189, 1194 (9th Cir., 1982), cert.

granted sub nom. Pulley v. Harris, No. 82-1095 (Mar. 21,

1983) The issue of whether a death sentence can be premised

on the consideration of nonstatutory aggravating factors is

currently before this Court in Barclay v. Florida, No. 81l-

6908, (oral argument scheduled for March 30, 1983.)

In its effort to obtain a death sentence for Luis Ruiz,

the State of Illinois was allowed to introduce nonstatutory

aggravation regarding petitioner's conduct as a juvenile

which did not result in either a criminal conviction or an

adjudication of delinquency. The Illinois Supreme Court

>

.>

Sa |

approved the use of this nonstatutory aggravation, holding

that the evidence was properly admitted for the consideration

of the trial judge in determining the penalty to be imposed.

People v. Ruiz, I1l1.2d . (Appendix A, pg. 15)

Because the unrestricted consideration of undefined

nonstatutory aggravation will inevitably lead to the kind of

arbitrary and capricious imposition of death condemned by

this Court in Furman v. Georgia, this Court should grant

certiorari and reverse the sentence of death affirmed by the

Illinois Supreme Court.

in eee

3. F

THE ILLINOIS DEATH PENALTY STATUTE VIOLATES

THE EIGHTH AND FOURTEENTH AMENDMENTS BY ALLOWING

PROSECUTORS TO EXERCISE STANDARDLESS DISCRETION

IN SEEKING THE DEATH PENALTY FOLLOWING A CONVICTION.

The Illinois Death Penalty Statute is unique. It is the

only death statute that directs the prosecutor to exercise

discretion to decide who shall be spared from the ultimate

penalty during the middle of a death penalty proceeding. In

every other state, a death penalty hearing automatically follows

the conviction.

After a conviction for murder, a death penalty hearing

can be held only "[w]here requested by the State." I11.Rev.Stat.,

1977, Ch. 38 Sec. 9-1(d). The Supreme Court of Illinois

recognized that this statutory language places the decision

on whether to convene a death hearing solely and squarely

in the hands of the Illinois prosecutor. People ex rel. Carey v.

Cousins, 77 I111.2d 531, 397 N.E.2d 809 (1979).

Four of the seven Justices now sitting on the Supreme

Court of Illinois believe that the Illinois Statute violates

the Eighth Amendment. See People v. Lewis, 88 I1l.2d 129,

430 N.E.2d 1346 (1981).

In the Cousins case, three Justices -- Ryan, Clark, and

Goldenhersh -- joined in a dissent. All three opined that

giving the Illinois prosecutor the crucial decision, without

any guiding standards, of who shali be spared from the ultimate

penalty, violated the Eighth Amendment. A fourth, Mr. Justice

Simon, adopted this position in Lewis and has adhered to it

acne es >

in the present case.” Although the three Cousins dissenters

reaffirmed their views in Lewis, each refused to join Justice

Simon for reasons ranging from stare decisis to reliance

that this Court would review the case. People v. Lewis,

430 N.E.2d at 1364. (Chief Justice Goldenhersh and Justices

Ryan and Clark, concurring).

It is apparent from this Court's decisions that four

of the seven Illinois Supreme Court Justices are correct in

their view that the statute is unconstitutional. This Court

in Gregg v. Georgia, 428 U.S. 153, 49 L.Ed.2d 859, 96 S.Ct.

2909 (1976), stated:

While Furman did not hold that the infliction

of the death penalty per se violates the

Constitution's ban on cruel and unusual

punishment, it did recognize that the

penalty of death is different in kind from

any other punishment imposed under our

system of criminal justice. Because of

the uniqueness of the death penalty, Furman

held that it could not be imposed under

sentencing procedures that created a

substantial risk that it would be inflicted

in an arbitrary and capricious manner.

428 U.S. at 188.

Applying Furman v. Georgia to the statutes being reviewed,

this Court in Gregg held:

Furman mandates that where discretion is

afforded a sentencing body on a matter

so grave as the determination of whether

a human life should be taken or spared,

that discretion must be suitably directed

and limited so as to minimize the risk of

wholly arbitrary and capricious action.

(Emphasis added) 428 U.S. at 189.

2 Justice Simon was not sitting on the court in November,

1979, when Cousins was decided.

In Illinois, the prosecutor has the unfettered discretion

to decide whether to convene a death penalty hearing. The

failure to “suitably direct" the prosecutor's post-trial

discretion is the legal equivalent of the failure to "suitably

direct" the sentencing body's discretion. Stated another

way, by requiring the prosecutor to exercise standardless

discretion during a death penalty proceeding, Illinois has

recreated the pre-Furman problem.

In upholding the constitutionality of the Illinois

death penalty statute, the Illinois Supreme Court has relied

on the majority opinion in Cousins. People v. Lewis, 430

N.E.2d at 1354. In Cousins, the court recognized the the

Illinois statute contained no guidelines to govern the

prosecutor's decision whether to convene a death penalty

hearing. However, the court referred to the aggravating and

mitigating factors listed in I11.Rev.Stat., 1977, Ch. 38,

Sec. 9-l(b) and (c). The court then assumed that the pro-

secutor would be guided by these factors. However, as

Justice Ryan pointed out in his dissent in Cousins, there is

no requirement in the statute that the prosecutor be so

guided, and therefore the prosecutor is free to ignore these

factors in making his decision. People ex rel. Carey Vv.

Cousins, 397 N.E.2d at 822. (Justice Ryan, dissenting).

In fact after nearly 6 years of operation of the Illinois

Statute, facts and cases are now available to demonstrate

the arbitrary and capricious exercise of discretion by local

prosecutors which demonstrates the unconstitutionality of

the statute. For example, in People v. Greer, 79 Ill.2d

103, 402 N.E.2d 203 (1980), both the Illinois Attorney

General and the local prosecutor admitted that the local

prosecutor's predecessor had erroneously (and successfully)

sought imposition of the death penalty. In two other cases,

the prosecutors reversed their own decisions to seek imposi-

tion of the death penalty for reasons apparently unrelated

to either the possible existence of an aggravating factor or

the prosecutor's evaluation of the evidence. See People v.

Glen Hipkins, 97 I11.App.3d 579, 423 N.E.2d 208 (1981);

People v. Michael Robinson, 87 Ill.App.3d 621, 410 N.E.2d

121 (1980). In People v. Walker, 84 111.2d 512, 419 N.E.2d

1167 (1981), the local prosecutor initially agreed to allow

the defendant to plead guilty and receive a sixty-year

sentence. The defendant later withdrew the plea. The

prosecutor, citing "mistake" and concern for “conservation

of tax dollars" as affecting his earlier opinion, changed

his mind and requested the death penalty after defendant

pleaded guilty once again.

A good example of the arbitrariness which exists in

practice appears in a comparison of two similar central

Illinois jurisdictions, Champaign and Sangamon Counties.

Since the enactment of the Illinois Death Penalty Statute,

prosecutors in Champaign County have sought the death penalty

in every murder case in which they felt an aggravating

factor was present. See People v. Robert Kirkpatrick, 70

Cn

Ill.App.3d 166, 387 N.E.2d 1284 (1979), (double murder) ;

People v. Jerry Gleckler, 82 111.2d 145, 411 N.E.2d 849

(1980) (double murder); People v. Michael LeCrone, 4th

District, No. 15877 (murder-robbery); People v. Phillip

Peeples, 4th District, Nc. 16759 (murder-attempted rape).

This practice is in sharp contrast to the apparent policy in

nearby Sangamon County, where although five murder defendants

were subject to the death penalty because a statutory aggra~

vating factor existed, the prosecution has never sought the

death penalty. See People v. Ozark Nesbit, Sangamon County

Case No. 78-CF-537 (second murder conviction); People v.

Wesley Brents, 4th District, No. 16274 (murder-robbery) ;

People v. James Lee, 4th District, No. 16273 (murder-robbery) ;

People v. Vernon Hicks, 4th District, No. 16674 (murder-

attempted murder-armed robbery); People v. Donald Groth,

Sangamon County Case No. 80-CF702 (second murder conviction).

The different results in these cases demonstrate that

the fear of guideless prosecutorial discretion under section

9-1(d), to which Justice Ryan's dissent in Cousins referred,

has now been borne out in practice.

It is no answer to the constitutional problem to argue

that Gregg decided the issue. This Court in Gregg recognized

that certain types of pre-trial prosecutorial discretion are

unavoidable. One of the arguments urged by the defendants

in Gregg and its companion cases was that the inherent power

of the prosecutor to undercharge, not charge at all, and plea

bargain, all of which would allow a particular defendant to

escape the death penalty, rendered all death penalty statutes

unconstitutionally arbitrary and capricious. In rejecting

this argument, the Court viewed these prosecutorial decisions

to be unavoidable and an integral part of our system.

Gregg allows the Illinois prosecutor to make the traditional

pre-trial choices. But, the Illinois prosecutor is also given

the power under the Illinois statute to make a post-trial

choice and a vital one at that: whether to convene the penalty

hearing and put the defendant's life in jeopardy. It is this

choice, which was not an issue in Gregg, that we challenge

here on Eighth Amendment grounds.

Thus, one major difference between the prosecutor's inherent

pre-trial discretion attacked in Gregg and the prosecutor's

discretion attacked here is that the former is unavoidable

while the latter is fully avoidable.°

There is another major difference between the discretion

approved in Gregg and that of Illinois prosecutors. In Georgia,

the only way for a prosecutor to avoid a death penalty hearing

is to refuse to charge a capital offense. Such undercharging

would violate his duty as a prosecutor and the public trust.

As three members of this Court found, however, very few pro-

secutors would arbitrarily ignore both their duty and public

trust by failing to charge a capital offense, when warranted

by the evidence, simply to avoid a death penalty. Gregg v.-

3 As this Court recognized in Gregg, to prohibit the

traditional charging discretion in a death penalty case would

in effect “outlaw” capital punishment. (428 U.S. at 199, n. 50).

Our attack on the Illinois statute in no way challenges the

traditional charging power of the prosecutor.

Georgia, 428 U.S. at 224-5 (White, J., Burger, C. J., and

Rehnquist, J.).

In contrast to Georgia, the discretion afforded

prosecutors in Illinois is totally different. As discussed

above, the Illinois statute contains no standards whatever

which govern the prosecutor's decision whether to seek the

death penalty. The Illinois statute does not even require

that the prosecutor request a death penalty hearing if his

evidence establishes one or more of the statutory aggravating

factors. Therefore, in contrast to Georgia, an Illinois

prosecutor is free to not seek the death penalty as he sees

fit, and that decision violates neither his duty nor the

public trust.

In summary, the discretion granted Illinois prosecutors

is unique and totally avoidable. Such discretion has not

yet been reviewed by this Court. As demonstrated, the

discretion afforded Illinois prosecutors is not a component

of the traditional charging power. Also as demonstrated,

that discretion is totally without standards. Therefore, by

interjecting needless complications into the death sentencing

process, the Illinois statute certainly has not “minimize (d)

the risk of arbitrary and capricious" death sentences.

Gregg v. Georgia, 428 U.S. at 189. Finally, although a

majority of the Illinois Supreme Court have found the

Illinois statute does violate the Eighth and Fourteenth

Amendments, three of those justices have deferred to this

Court for a final resolution of the issue.

For these reasons, certiorari should be granted.

VI.

CONCLUSION

For the foregoing reasons, Luis Ruiz, petitioner,

respectfully requests that a writ of certiorari be issued

to the Supreme Court of Illinois.

Respectfully submitted,

THEODORE A. GOTTFRIED

State Appellate Defender

A Office of the State Appellate Defender

300 East Monroe, Suite 100

Springfield, IL 62701

(217) 782-7203

COUNSEL FOR PETITIONER

CHARLES M. SCHIEDEL

Supervising Attorney

Supreme Court Unit

OF COUNSEL

APPENDIX A

Docket No. 53415—Agenda 1—May 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,

v. LUIS RUIZ, Appellant.

CHIEF JUSTICE RYAN delivered the opinion of the

court:

By information filed in the circuit court of Cook County,

Luis Ruiz and Juan Caballero were charged with the mur-

ders of Michael Salcido, Arthur Salcido, and Frank Mussa.

The defendants were also charged with armed violence (Ill.

Rev. Stat., 1978 Supp., ch. 38, par. 33A—2) and unlawtul

restraint (Ill. Rev. Stat. 1979, ch. 28, par. 10—3.2)) as to

each of the victims, Ruiz and Caballero were granted a

severance and were subsecuently tried simultaneously be-

fore a single judge, making use of two separate juries. At

the conelusion of trial, the Ruiz jury returned a verdict of

guilty on al! counts. The prosecutor requested a hearing to

consider whether the death penalty should be imposed. The

defendant waived a jury and, after hearing evidence in ag-

gravation and mitigation, the trial judge sentenced Luis

Ruiz to death. (Il. Rev. Stat., 1978 Supp., ch. 38, pars. 9—

1(d), (h).) The sentence was stayed (73 Il. 2d R. 609(a)),

pending direct appeal to this court pursuant to Rule 603

(73 Ill. 2d R. 603). Caballero was also convicted of three

counts of murder, three counts of armed violence and three

counts of unlawful restraint. After a separate sentencing

hearing he was also sentenced to death. We consider in

this appeal oniy the conviction and sentence of Luis Ruiz.

For the reascns expressed in this opinion, we affirin the

conviction and sentence of death.

On the evening of February 24, 1979, Arthur Salcido,

then 19 years of age, and Frank Mussa, 16 years of age,

both of Princeton. Illinois, together with Arthur’s brother,

Michael Salcido, 17 years of age, drove from Princeton to

Chicago. Michael had been visiting his brother in Prince-

ton, and that night the three buys went to his mother’s

apartment in Chicago. The boys had borrowee a car in

Princeton and arrived in the city about midnight. At ap-

proximately 1 a.m., the three youths left the apartment

and drove to an all-night restaurant in the neighborhocd.

Defendart Luis Ruiz. agec 19, Juan Caballero, Placedo

Laboy, and a fourth youth namec Aviles, encountered Ar-

thur, Michael and Frank in the restaurant. Michael ap

proached Ruiz and irguired whether he knew where some

marijuana could be obtained. Ruiz responded that he did

not have any marijuana and he did rot know where any

could be obtained. Michael then asked Ruiz if he knew a

person named Jose Cortez, a Latin Eagle. Ruiz, who was

himself a member of a riva! gang, the Latin Kings, asked

Michael if he was a Latin Eagle. Michael responded affirm-

atively. Ruiz then told Michael that he and his companions

were also Latin Eagles. At this point, Michael began to

brag to Ruiz that he had ridden on “hits” with the Eagles

and had been the driver on one such “hit” by the Eagles

on two Latin Queens, the female companions and counter-

parts of the Latin Kings. After this exchange, Ruiz told

Michael that he did in fact know where to obtain mari-

juana and that he would show Michael where to get it.

All got into the victims’ automobile with Michael, Ar-

thur and Frank in the front. Ruiz and his companions were

in the back seat. Ruiz directed the driver into an alley

where Ruiz and his companions got out of the car. They

told Michael to acccmpany them down the alley and they

would show him the location of the marijuana. Once they

were out of sight of the automobile, Ruiz and his friends

revealed that they were not Eagles but were instead Latin

Kings, after which they beat Michael Salcido to the

ground. When the beating was over, Labev produced a gun

and Aviles a knife, and they all marched Michael back to

the car.

All seven youths then got into the car at the direction

of Ruiz and his group. Laboy tock over as driver, with

Ruiz occupying the back seat along with Michael. Laboy

drove to a second alley which was T-shaped. He drove

some distance down the “T” where he stopped the car. La-

boy and Caballero then took Michael and Frank around tie

corner of the alley and forced them to lie face down in the

snow. Ruiz remained with the car while Aviles stabbed and

killed Arthur Saicido in the automobile. Laboy then

brought Frank Mussa back to the car, took the same knize,

and stabbed Frank Mussa to death. Finally, Caballero re-

turned with Michael Salcido and stabbed him to death in

the back seat of the car. The members of the group then

took articles of clothing from the trunk of the victims’ au-

tomobile and attempted to wipe the vehicle ciean of finger-

prints. After completing this task, Ruiz and the others all

left the scene. Ruiz ard Caballero were arrested on March

8, 1979, anc charged with the offenses ceseribed above.

A -2-

tn this appeal, defendant argues that because there is

no evidence that he actually did any of the acts which re-

sulted in death, his conviction on the principle of account-

ability cannot form the basis for imposition of the death

penalty under the Mlinois statute (Ill. Rev. Stat., 1978

Supp., ch. 28, par. 9—1). Further, if the statute allows

death to be imposed on a defendant who is merely account-

able for the conduct of another, such provision is unconsti-

tutional. In addition, the defendant argues that the proce-

dure employed at trial denied his right to a severance and

that he has not been proved guilty beyond a reasonable

doubt.

We turn first to a consideration of whether the proof

adduced at trial is sufficient to sustain a conviction for .

murder, armed violence, and unlawful restraint. We agree

with the defendant that there is no direct evidence estab-

lishing that Ruiz ever struck any of the blows that resulted

in the deaths of the victims. However, the case was sub-

mitted to the jury with proper instructions setting forth

the principle of accountability, and the record proves Ruiz’

guilt on each charge beyond 2 reasonable doudt as a will-

ing participant in the criminal enterprise. There is no

doubt that Ruiz was legally accountable for the conduct of

his companions and, as such, shares equally in their guilt.

In People v. Rybka (1959), 16 Ill. 2d 394, this court up-

held the defendants’ murder convictions predicated sclely

upon their being accountable for the actors’ conduct, even

though they were not present during the crime. In Rybka,

13 persons embarked upon a venture to “get a negro.” (16

Ti. 2d 394, 400.) They departed in two groups, employing

separate vehicles, an Oldsmobile and a Chrysler. The two

groups started out together, being led by the Oldsmobile,

but soon became separated. The occupants of the Chrysler

eventually disbanded anc went home without incident. The

other group, however, accomplished their purpose when

one of them struck the victim in the head with a hammer.

Despite the fact that defendants Gorski and Budz were oc-

cupants of the Chrysler and consequently not present when

the crime was committed, this court upheld their convic-

tions for murder and observed:

“Evidence that a defendant voluntarily attached himself

to a group bent on illegal acts with knowledge of its de-

sign supports an inference that he shared the common

purpose and will sustain his conviction as a principal for

a crime committed by another in furtherance of the ven-

A -3-

ture. People v. Tarver, 381 Ill. 411; People ». Rudecki, 309

Ill. 125." (Peopie v. Rybku (1959). 16 Ill, 2d 394, 405.)

Active participation has never been a requirement for

the imposition of criminal guilt upon the theory of account-

ability. People v. Morgan (1977), 67 Ill. 2d 1, 9; People v.

Kessler (1974), 57 Mil. 2d 493, 497-98, cert. denied (1974),

419 U.S. 1054, 42 L. Ed. 2d 650, 95 S. Ct. 635; People v.

Allen (1974), 56 Ill. 2d 536, 541, cert. denied (1974), 419

U.S. 863, 42 L. Ed. 2d 102, 95 S. Ct. 120; People v. Hill

(1968), 39 Ill. 2d 125, 134-35. cert. denied (1968), 392 U.S.

936, 20 L. Ed. 2d 1894, 88 S. Ct. 2305; People v. Johnson

(1966), 35 Ill. 2d 624, 626; People v. Richardson (1965), 32

Ill. 24 472, 476-77, cert. denied (1966), 384 U.S. 1021, 16

L. Ed. 2d 1023, 86 S. Ct. 1935.

Section 5—2(c) of the Criminal Code of 1961 provides

that a person is legally accountable for conduct of another

whens

“Bither before or during the commission of an offense,

and with the intent to promote or facilitate such commis-

sion, he solicits, aids, abets, agrees or attempts to aid,

such other person in the planning or commission of the

offense. ***’’ Ill. Rev. Stat. 1977, ch. 38, par. 5—2(c).

In this case, the testimony of Julio Lopez and the as-

sistant State’s Attorney, to whom Ruiz made incriminating

staternents, establishes that Ruiz was a principal character

in the common enterprise obviously bent on committing

acts of violence upon the victims. Ruiz admitted to the

State's Attorney that he initiated the plan to mislead the

victims into believing that Ruiz and his group were Latin

Eagles. This admission was corroborated by Julio Lopez,

who testified that on March 2, 1979, Ruiz, in the presence

of Placedo Laboy and himself, stated, “Do you know who

‘offed’ those three guys in that car? It was us.” Ruiz then

went on to relate the details of the event, including the

fact that they had misled their victims into believing they

were Latin Eagles instead of Latin Kings. The only con-

ceivable purpose of the deception was to allow Ruiz and his

friends to maneuver the victims into a situation where they

could avenge the “hit” upon the Latin Queens. of which

Michael had bragged earlier. Having aided Caballero and

the others in their plot to do violence to these victims by

‘ deceiving them and getting them into the car, Ruiz became

accountable for the conduct of each member of the group.

In fact, the evidence discloses that it was Ruiz who told

the victims he could procure marijuana for them and who

A -4-

directed them to drive into the alley where Ruiz and his

companions administered a severe beating to Michael. Af-

ter the beating, Ruiz again entered the car, which then

proceeded to the location where the victims were brutally

murdered. The defendant argues that his mere presence at

the scene of the crime does not make him accountable for

the murders. The evidence shows much more than the

defendant’s mere presence. His continued presence during

the commission of all three murders, plus his participation

in the attempt to obliterate fingerprints after the crimes

were committed, are alone sufficient to show “* “a common

design to do an unlawful act to which all assent.’ ” (People

vy. Morgan (1977), 67 Il. 2d 1, 10, cert. denied (1977), 434

U.S. 927, 54 L. Ed. 2d 287, 98 S. Ct. 411; People v. Wash-

ington (1962), 26 Tl. 2d 207, 209.) Later in this opinion we

shall discuss additional evidence concerning the extent of

Ruiz’ involvement.

We also reject the defendant’s assertion that because he

did not take the knife and did nothing to facilitate the ac-

tual killings he had somehow withdrawn from the enter-

prise and ceased to be accountable for the conduct of the

others. Once a person becomes accountable for the conduct

of another, he remains so until he detaches himself from

the criminal enterprise. This court has held that no with-

drawal is possible until the person desiring to withdraw ef-

fectively communicates his intention to the others so as to

give them an opportunity to follow his example and to do

so before the act with which he is charged has commenced,

or has become so inevitable that it could not reasonably be

stayed. (People v. Brown (1962), 26 Ml. 9d 308; People v.

Rybka (1959), 16 Ill. 2d 394, 406.) The defendant in this

case has failed to produce any evidence of his withdrawal.

In point of fact, all inferences to be drawn from the record

are to the contrary. If Ruiz desired to withdraw from the

murders of these three boys, he had ample opportunity

even after Michael had been beaten. The fact that Ruiz got

into the car and rode to the second alley, and remained

during the commission of all three murders, destroys any

notion that he was no longer participating in the criminal

enterprise. Further, as noted earlier, after the crime had

been completed, all of the perpetrators, including Ruiz, re-

mained at the scene to wipe fingerprints off of the vehicle.

Evidence of events occurring after the crime had been

committed is competent to snow participation in the crime

itself. People v. Kolep (1963), 29 Ill. 2d 116, 120.

We turn next to the matter of how this trial was con-

ducted and the issue raised concerning severance. The

defendant’s contention is basically that although his motion

for a severance was granted, the trial court negated its ef-

fect by conducting a simultancous trial before two juries

and nuling that if either defendant took the stand to testify,

both juries would be present. The defendant argues that

this action deprived him of his right to a severance and

amounted to a denial of a fair trial.

An accused does not have a right to be tried separately

from his companions when charged with offenses arising

out of a common occurrence. (People v. Yonder (1969), 44

Il. 2d 376, 286, cert. denied (1970), 397 U.S. 975, 25 L.

Ed. 2d 270, 90 S. Ct. 1094; People v. Watt (1942), 280 Ill.

610, 613.) The question of whether a severance should be

granted in a particular case is a matter largely within the

discretion of the trial judge. (People v. Henderson (1967),

37 Ill. 2d 489, 492, cert. denied (1967), 389 U.S. 943, 19 L.

Ed. 2d 297, 88 S. Ct. 305.) The primary question to be

considered is whether the defenses of the several defend-

ants are so antagonistic that any or all of them could not

receive a fair trial unless a severance is granted. (People v.

Brooks (1972), 51 Ml. 2d 156, 166; People v. Bernette

(1970), 45 Ill. 2d 227, 241, rev'd on other grounds (1971),

403 U.S. 947, 29 L. Ed. 2d 858, 91 S. Ct. 2290-91; People

v. Gendron (1968), 41 Ill. 2d 351, 357, cert. denied (1969),

296 U.S. 889, 24 L. Ed. 2d 164, 90 S. Ct. 179.) Here, nei-

ther Ruiz nor Caballero gave notice that he intended to

proceed by way of any defense which would be inconsistent

with their presence at the crime scene or their mental ca-

pacity to commit these offenses. It would be pure specula-

tion to conclude that either of these defendants was forced

not to testify, or was otherwise prejudiced by the fear that

accusatory testimony might be delivered by the other in re-

taliation. Mere apprehension of a particular result will not

sustain an allegation of prejudice to the accused. People v.

Yonder (1969), 44 Ill. 2d 376, 286, cert. denied (1970), 397

U.S. 975, 25 L. Ed. 2d 270, 90 S. Ct. 1094; People v. Gen-

dron (1968), 41 Ill. 251, 357, cert. denied (1969), 396

U.S. 889, 24 L. Ed. 2d 164, 90S. Ct. 179.

Moreover, the motion for severance was granted in this

case primarily to avoid possible conflict with Bruton v.

United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88

S. Ct. 1620. Caballero had apparently made certain incrimi-

nating statements which implicated Ruiz. To avoid the pos-

A+

sibility that these statements would be admitted into evi-

dence as a confession, regardless of whether Caballero

took the stand, and thereby violate the Bruton mule es to

Ruiz, the trial court employed two juries. Under the proce-

dure used, inciuding the ruling that both juries would hear

the testimony of either defendant, any possible conflict

with Bruton was avoided. The reason is that if Caballero

took the stand and, consistent with his prior statement, im-

plicated Ruiz, he would be in effect a State’s witness

against him, subject to cross-examination the same as any

other witness. In this situation the Bruton problem. is

avoided because the out-of-court statement would not be

put into evidence. On the other hand, if Caballero did not

take the stand and the State attempted to introduce the

statement as proof of Czballero’s guilt, any potential con-

flict’ with Bruton could be avoided by removing the Ruiz

jury. In addition, even if the trial judge had ruled that noth

juries would be present during cross-examination, Nelson

v. O’Neil (1971), 492 U.S. 622, 29 L. Ed. 2d 222, 91 S. Ct.

1723, would compel us to hold that such ruling would be

correct. In Nelson, the Supreme Court held that in 2 joint

trial before a single jury a defendant’s sixth amendment

rights were not violated when his codefendant took the

stand and was subsequently impeached with a prior state-

ment implicating the defendant.

We hold therefore that since both juries would have

been entitled to hear the testimony of these defendants,

the trial court’s granting of the motion upon these condi-

tions was not an abuse of discretion, nor did it prejudice

defendant Ruiz so as to deny him a fair trial. There re-

mains, however, the question of whether the procedure of

employing two juries in this fashion arnounts to a per se

denial of some constitutional protection.

This identical issue has been presented and resolved in

favor of the multiple-jury procedure as a device to avoid

the Bruton confrontation problem. In United States v. Sid-

man (9th Cir. 1972), 470 F.2d 1158, cert. denied (1973), 409

U.S. 1127, 35 L. Ed. 2d 260, 93 S. Ct. 948, the court, rec-

ognizing the potential for error of constitutional propor-

tions, nonetheless found that multiple juries did not deny

an accused any of his rights provided by the Constitution

or the Federal Rules of Criminal Procedure. The same con-

clusion has been reached in other cases. (See United States

v. Rowan (6th Cir. 1975), 518 F.2d G85, cert. denied (1975),

423 U.S. 949, 46 L. Ed. 2d 284, 96 S. Ct. 368; Unzted

A-T-

States v. Rimar (6th Cir. 1977), 558 F.2d 1271, cert. denied

(1978), 435 U.S. 922, 55 L. Ed. 9d 515, 98 S. Ct. 1484.)

While we, too, recognize the possibility for prejudicial error

resulting from confusion at trial inherent in this procedure,

we conclude that in this case no such error exists.

From the onset the trial judge exercised extreme cau-

tion in instructing each member of the two jurics as to

what exactly was going on. The record is replete with re-

minders and admonishments to the effect that neither jury

is to discuss any aspect of the case with the other. Each

side was well aware of the presence of the other jury, and

counsel, along with the court, took great care in insuring

that each jury heard only that evidence which was relevant

to each respective case. Due to the nature of the testimony,

most of the evidence offered at trial was admissible against

both defendants. The record fails to disclose a single inci-

dent of confusion or impropriety. The Supreme Court has

observed that a defendant in a criminal case is entitled to a

fair trial, not a perfect one. (Lutwak v. United States

(1952), 344 U.S. 604, 619, 97 L. Ed. 593, 605, 73 S. Ct.

481, 490.) Based upon the record now before us, we be-

lieve that mandate has been fulfilled in this case.

The defendant next argues that the Illinois statute pro-

viding for imposition of the death sentence was not in-

tended to be applied to those persons found guilty of mur-

der under the theory of accountability. We do not agree.

The statute does not specifically preclude the imposition of

the death penalty if the defendant's conviction is based on

accountability. Section 9—1(cX5), however, lists, as a miti-

gating factor, “the defendant was not personally present

during the commission of the act or acts causing death.”

(Ill. Rev. Stat., 1978 Supp., ch. 38, par. 9—1(cX5).) Thus, if

a defendant were convicted of murder under the account-

ability theory, and was not personally present when the

acts causing death were committed, as was the case with

some of the defendants in People v. Rybka (1959), 16 Ill.

2d 394, mentioned above, this fact may be considered in

mitigation. By contrast, there is no provision in the statute

for special consideration of a defendant convicted on the

theory of accountability when he is personally present

when the acts causing death are committed. It would ap-

pear that the typical case in which a defendant would not

be present during the act or acts causing death would be a

case in which the defendant would be found guilty of mur-

der on the basis of accountability. If the legislature had in-

A-8-

tended that under the accountability theory, and was not

personally present when the acts causing death were com-

mitted, as was the case with some of the defendants in

People v. Rybka (1959), 16 I. 2d 394, mentioned above,

this fact may be considered in mitigation. By contrast,

there is no provision in the statute for special consideration

of a defendant convicted on the theory of accountability

when he is personally present when the acts causing death

are committed. It would appear that the typical case in

which a defendant would not be present during the act or

acts causing death would be a case in which the defendant

would be found guilty of murder on the basis of account

ability. If the legislature had intended that the death pen-

alty would not be applicable where the defendant is found

guilty of murder on the basis of accountability, there would

have been no reason to provide for his absence as a miti-

gating factor.

The defendant notes that the legislature, in cases of fel:

ony murder, precludes the imposition of the death penalty

if the defendant did not actually kill the individual. (Ill.

Rev. Stat., 1978 Supp., ch. 38, par. 9—1(b\6Xa).) The

defendant argues that this establishes the legislature's in-

tent that any defendant who does not strike the fatal blow

should not be sentenced to death. This conclusion does not

follow. Since the only intent necessary to support a felony-

murder conviction is that to commit the underlying felony

(People v. Hickman (1974), 59 Ill, 2d 89, cert. denied

(1975), 421 U.S. 913, 43 L. Ed. 2d 779, 95 S. Ct. 1571;

People v. Auilar (1974), 59 tii, 2d 95, 101; People v. Miller

(1980), 89 Ill. App. 3d 978, 979; People v. Nelson (1979), 73

Ill. App. 3d 593, 595; Ill. Rev. Stat. 1979, ch. 38, par. 9-

1(aX3)), the legislature provided that the death penalty can

only be imposed upon the one actually doing the killing, to

avoid the possibility of a person being put to death without

having possessed even the general intent for the crime of .

murder. Also, as noted above, it provided that a mitigating

factor in other murders, obviously based on accountability,

is the lack of personal presence. If the legislature intended

that the death penalty not be imposed on those who were

personally present but did not actually kill in every case, it

could have so provided. The trial court properly noted that

accountability is not incompatible with the death penalty in

cases other then felony murders.

In addition to the evidence as to Ruiz’ involvement pre-

viously noted, some other evidence not previously recited is

extemely significant. Julio Lopez, a former member of the

Latin Kings gang. testified that Ruiz, in telling him of the

murders, said that he, Ruiz, held a gun on the victims

while the others did the stabbing and that he checked the

bodies afterwards to see if the victims were dead. The

defendant ccntends that since Lopez did not include these

comments in his prior statement to the assistant State's

Attorney, they are not worthy of belief. The degree to

which Lopez’ testimony may have been discredited must be

determined by the trier of fact at the trial, or by the trial

judge at the sentencing hearing, if the hearing is before

the judge and not a jury. We cannot say, as a matter of

law, that Lopez’ testimony had no probative value. On the

contrary, it strongly supports the verdicts of guilty and the

judge’s decision as to the penalty. Although the statements

concerning the gun and checking of the bodies do not show

that Ruiz struck the actual blow that killed the victims,

they do show a substantial involvement by Ruiz in the ac-

tual killings.

Also, the assistant State’s Attorney who questioned

Ruiz testified that, in relating his story, Ruiz told him that

after they had beaten Michael and before arriving at the

alley where the victims were murdered, Placedo Laboy

stated that they would have to kill these people because

they had seen their faces. The assistant State’s Attorney

also testified that Ruiz told him that when the boys were

being stabbed, he stayed outside the car and that, after

Frank had been stabbed, Laboy handed him the knife, but

he refused to take it. Michael was then brought to the car,

pushed into the back seat, and stabbed by Juan Cabailero.

Although Ruiz consented to be interviewed by the assistant

State’s Attorney, he refused to give a statement in the

presence of a court reporter. The assistant State’s Attor-

ney’s testimony was based on a memorandum he had pre-

pared following his interview with Ruiz and also based on

his memory. In any event, all of the evidence, both favor-

able and unfavorable to the accused, was properly pre-

sented to the jury at trial, and the judge during sentenc-

ing, for their consideration as to its persuasiveness. The

defendant has failed to establish that any of the incriminat-

ing evidence was not worthy of belief as a matter of law.

The defendant relies heavily on Justice White's concur-

ring opinion in Lockett v. Ohio (1978), 488 U.S. 586, 621-

28, 57 L. Ed. 2d 973, 1000-04, 98 S. Ct. 2954, 2981-85 in

support of his contention that the death penalty cannot be

A -10-

constitutionally imposed upon a defendant guilty of murder

on the basis of accountability. We find this reliance to be

misplaced. Justice White’s opinion does not state that a

per. v who does not do the actual killing may not constitu:

tionaily be sentenced to death. The opinion, instead, is con-

cerned with the question of intent. In that case the defend-

ant was participating in a planned robbery and was seated

in a car while her companions, in the course of the robbery,

killed a person, Justice White expressed the concern that

although proved guilty beyond a reasonable doubt, it was

not established that Lockett possessed any intent to kill in-

dependent of the person who actually performed the acts

resulting in death. As noted earlier, under our statute, the

death penalty will not be imposed where a defendant is

convicted of felony murder unless he performed the acts

which resulted in death. This limitation insures that an in-

ference of at least the general intent sufficient to support a

murder conviction will be present before someone is put to

death for felony murder. Where guilt is premised on the

accountability theory the intent of the actor is imputed to

the defendant but his absence from the crime scene will be

a mitigating factor that would prevent imposition of the ul-

timate penalty in cases like Rybka. Moreover, the concur-

ring opinion of Justice White recognizes that the facts of a

particular case might well permit an inference that the

defendant had the requisite intent independent of any im-

puted to him by way of accountability. This conforms to the

settled Jaw of this State holding that the intent to take a

life may be inferred from defendant's acts and the circum:

stances surrounding the commission of the offense. People

v. Jones (1979), 81 Ill. 2d 1, 9-10; People v. Muir (1977), 67

Ill. 2d 86, cert. denied (1977), 434 U.S. 986, 54 L. Ed. 2d

481, 98 S. Ct. 615 (partially overruled in People v. Harris

(1978), 72 Ill. 2d 16, 27); People v. Koshiol (1970), 45 Ill. 2d

573, cert. denied (1971), 401 U.S. 978, 28 L. Ed. 2d 829,

91 S. Ct. 1209; People v. Coolidge (1963), 26 Ill. 2d 533.

In this case Ruiz’ intent to participate in the premedi-

tated acts resulting in the death of the three victims is es-

tablished beyond a reasonable doubt, whether considered

under the accountability statute (Ill. Rev. Stat. 1977, ch.

38, par. 5—1 et seq.), or whether his intent is judged solely

from his own acts and conduct. In support of this conclu-

sion it is again appropriate to reiterate Ruiz’ participation

in this series of tragic events.

It was Ruiz who first deceived the three victims by tell-

ing them that he was a Latin Eagle when they bragged to

him that they had participated in a “hit” on some Latin

Queens. It was Ruiz who directed that they all get irto the

victims’ car and drive to the first alley. Ruiz took Michael

down the alley and participated in beating him to the

ground. Ruiz told the assistant State’s Attorney that his

companions said that they would have to kill the three

boys. After learning this, when they stopped in the second

alley, Ruiz did not depart but stayed while each of the

three wus systematically and ruthlessly executed. Arthur

Salcido was stabbed a total of eight times in the chest, and

his throat was cut completely across, severing his wind-

pipe, as well as the major arteries on either side of his

neck. Frank Mussa was stabbed a total of 21 times: three

times in the neck, three times in the chest and 15 times in

the back. Michae] Salcido was stabbed a total of 18 times:

10 times in the face and neck, five times in the abdomen

and three times in the back. Ruiz never told either Lopez

or the assistant State’s Attorney that he protested while

all of these blows were being struck. In fact, nothing in the

record shows what he was doing during the considerable

time that it took to perform these acts, which must have

been accomplished in the face of extreme effort on the

part of the victims to preserve themselves and through

greater efforts on the parts of the participants to over-

come the victims’ defenses. In any event, when all was fin-

ished, Ruiz assisted the others in wiping the car free of fin-

gerprints and then walked away from the scene with his

companions. Even without considering the testimony of

Lopez that Ruiz said he held a gun on the victims and felt

their bodies to see if they were dead, the evidence. is suffic-

ient to prove Ruiz guilty of three murders beyond a rea-

sonable doubt, along with the necessary intent required to

establish the aggravating factor set forth in section 9—

1(bX8).

The defendant also contends that the indictment did not

sufficiently inform him that the death penalty would be

sought. In People v. Brownell (1980), 79 Ill. 2d 508, appeal

dismissed (1980), 449 U.S. 811, 66 L. Ed. 2d 14, 101 S.

Ct. 59, this court held that the charge in the indictment

constitutes sufficient notice that the death penalty would

be sought. Although Ruiz acknowledges that he was

charged with killing three peopie, which, under the statute,

would make him eligible for the death penalty. he contends

that the statute removes accountxbility convictions from

the death penalty. Therefore he argues that the charge

failed to inforrn him that the death penalty would be

sought. Since our statute provides that a person convicted

of felony murder is not subject to the death penalty unless

he actually did the killing, Ruiz argues that this provision

of the statute, by implication, prohibits the imposition of

the death penalty where one is convicted of murder on the

basis of accountanility. This argumert has been disposed of

by our holding above that section 9—1(oX6) does not re

move accountability convictions as @ foundation for the

death penalty. Consequently, based upon Brownell, the

defendant was suificiently informed that the death penalty

would be sought.

It is appropriate to distinguish the result here reached

frora another recent decision of this court. In People v.

Gleckler (1980), 82 fil. 2d 145, we veeated the death sen-

tence imposed by a jury partly because of the mitigating

factors presented and the extent of the defendant's partici-

pation relative to his codefendants’. In Gleckler. although

the accused did in fact fire shotgur blasts into the heads of

two young boys, his overal! involvement in the episode was

shown to be that of a follower. A great deal of evidence

was produced in mitigation to show the accused's limited

mental capacity, his docile personality, and his “definite

propensity to go along with whatever events were happen-

ing at the time.” (82 Ill. 2d 145, 164.) It was also estab-

lished that the defendant was an alcoholic and that ne had

been drinking on the night of the murders. We also consid-

ered that Gleckler did not have a criminal record. These

factors in mitigation, coupled with the fact that Theodore

Parsons, charged with the same murders and far more cul-

pable than Glecler, received cnly a prison term, led a ma-

jority of this court to conclude that “Gleckler, with no

criminal history, the personality of a doormat, and a prob-

lem with alcohol, was not the ringleader in this sordid af-

fair; nor are his rehabilitative prospects demonstrably

poorer than those who received imprisonment terms. Our

revulsion toward this crime and our lack of sympathy for

Gleckler cannot justify executing only him.” People v.

Gleckler (1980), 82 Ill. 2d 145, 171.

By contrast, the trial judge in this case was presented

with no mitigating factors other than the testimony of one

police officer to whom the defendant had expressed re-

morse and the argunent of counse! that Ruiz did not take

an active part in the crime because he feared for his own

A -13-

life. However, although Ruiz did not stab the victims, he

was not a “follower” or a “doormat.” We believe the infer:

ence that he actively participated in and dirceted the com-

mission of crime could easily have been drawn by both the

jury and the judge during the sentencing hearing. It is in-

conceivzble that these three victims weald calmly submit to

their own systematic slaughter without res‘stance. It would

likewise be absurd to preclude the inference that all of the

perpetrators actively participated in overcoming such re-

sistance by restraint and other acts of vielence untl each

victim was finally killed. We cannot, therefore, reverse the

trial court’s ruling that no mitigating factors sufficient to

preclude the death penalty had been proved. We helieve

that imposing the ultimate penalty of death bared upon the

evidence presented against Ruiz and the inferences prop-

erly drawn therefrom docs not amount to cruel and unu-

sual punishment. Nor is this case like Gleciler, where sul-

ficient mitigating factors precluded imposition of the

ultimate ponalty.

Finally, the defendant asserts that the court inproperly

considered evidence in aggravation. At the sentencing

hearing, both sides stipulated that if the State called all of

its witnesses previously produced at trial, they would tes-

tify similarly. Thereafter, the State introduced testimony

estublishing that Thomas Gricbell, age 16, died as a result

of a gunshot wound to the head which he received on July

13, 1976. The State next culled an assistant State's Attor-

ney who laid the foundation for introduction of a state-

ment, signed by Luis Ruiz, that admitted in great detail

the events of July 13, 1976. The document related in es-

sence that Luis Ruiz fired a rifle from a gangway into a

crowded parking lot across a street and thereafter saw a

person in the parking lot grab his head and fall to the

ground. This act was done in furtherance of plans made

earlier that day by Ruiz and others to “hit a Royal.” The

parking lot into which Ruiz fired was adjacent to a restau-

rant uscd as a meeting place for members of that gang.

The defendant objected to the introduction ofthis document

and now contends that, since no conviction resulted from

the alleged event, it was error for the cowrt to consider it.

In People v. La Pointe (1981), $8 Il. 2d 482, we discussed

this question in detail and held that a judge conducting a

sentencing hearing is not limited to considering evidence

that would only be admissible during a trial but could exer-

cise wide discretion in the types of evidence used to assist

A -14-

him in determining the punishment to be imposed. The

defendant’s argument in our case is clearly answered by

the statute. Section 9—1(e) provides that during the sen-

tencing hearing any evidence relative to the aggravating

factors sct out in subsection (b) (Ill. Rev. Stat. 1977, ch. 38,

par. 9—1(b)) may be presented “under the rules governing,

the admission of evidence at criminal trials.” This section

further provides that any additiona! aggravating factor

may be presented “regardless of its admissibility under the

rules governing the admission of evidence at criminal tri-

als.” (Ill. Rev. Stat. 1977, ch. 38, par. 9—1(e).) The evi-

dence objected to did not pertain to an aggravating factor

set out in subsection (b). The rules governing the admissi-

bility of evidence at criminal trials therefore would not ap-

ply to this statement of the defendant. The statement was

properly admitted for the consideration of the tria) judge in

determining the penalty to be imposed.

This case has been held under advisement pending the

filing of an opinion by the United States Supreme Court in

Enmund ». Florida (1982), _ U.S. __, 78 L. Ed. 2d

1140, 102 S. Ct. 3368. The holding of the majority in that

case is stated as follows:

“(I]t is for us uitimately to judge whether the Eighth

Amendment permits imposition of the death penalty on

one such aS Ennvand who eids 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 kill-

ing take place or that lethal force will be employed. We

have concluded, along with most legislatures and juries,

that it does not.” Us. a ee

1140, 1151, 102 S. Ct. 3368, 3576-77.

In Enmund v. Florida the court emphasized that the

focus must be on the culpability of the defendant Enmund,

not on that of those who, during the course of the robbery,

shot the victims. Enmund was a robber and aided and

abetted a rodbery, in the course of which murder was com-

mitted by others. Enmund’s criminal culpability was thus

limited to his participation in the robbery and his punish-

ment was tailored to his personal respensibility and moral

ll Ces UB cece mee 10 L. Ed. 2d 1140, 1152, 102

S. Ct. 3368, 3377.) The evidence showed that Enmund, al-

though intending to participate in the robbery of the vic-

tims, stayed in an automobile while his two accomplices ap-

proached the victims’ home, robbed them and then killed

both victims after one of them had shot and wounded one

A-15-

of the accomplices.

“Enmund himself did not kill or attempt to kill; and as

construed by the Florida Supreme Court, the record be-

fore us does not warrant a finding that Enmund had any

intention of participating in or facilitating a murder.”

a L. Ed. 2d 1140, 1152, 102 S. Ct.

3368, 3377.

We have detailed above the participation of Luis Ruiz in

the three murders involved in this case. In Enmund v.

Florida the defendant was found guilty of yelony murder

solely on the basis of his participation in the commission of

the felony, robbery. In our case Ruiz was not tried or con-

victed on the theory of felony murder. We noted above in

this opinion that, under our statute, the death penalty can-

not be imposed for felony murder unless the defendant ac-

tually kills the victim. (Ill. Rev. Stat., 1978 Supp., ch. 38,

par. 9—1(bX6Xa).) In our case Ruiz was present throughout

the violent episode, actively participated, except for strik-

ing a fatal blow, and his conduct was such as to support an

inference that he possessed the intent to take the lives of

the victims.

Nothing in the holding or the language of the majority

opinion in Enmund v. Florida requires a conclusion in this

case contrary to that reached above.

For the reasons stated, the judgments of conviction and

sentence of death of the circuit court of Cook County are

affirmed. The clerk of this court is directed to enter an or-

der fixing Wednesday, March 16, 1983, as the date on

which the sentence of death entered in the circuit court

shall be executed. A certified copy of this order shall be

furnished by the clerk of this court to the Director of Cor-

rections and the wardens of the Illinois State Penitentiary

at Menard and Joliet.

Judgment affirmed.

JUSTICE SIMON, concurring in part and dissenting in

part:

I dissent from the imposition of the death sentence for

the reasons set forth in my dissent in People v. Lewis

(1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting). I also dis-

sent from the majority’s holding that the death penalty

statute (Ill. Rev. Stat. 1979, ch. 38, par. 9—1) covers

defendants such as Luis Ruiz who are convicted of murder

under the theory of accountability. My juagment is that the

intent of the legislature and the plain language of the stat-

ute restrict the scope of the death penalty to defendants

ENG ES

a MAR 8 1983

OFFICE OF THE

STATE APPELLATE DEFENDE

SUPREME COURT UNIT

is ent 3-4-8 3

who kill or who actually possess the intent required for

murder, and exclude from its coverage those individuals

who are convicted of murder under a theory which does

not require that they do the killing and under which “in-

tent” to kill may be imputed.

The death penalty provisions appear in subsections (b)

and (c) of the murder statute, which is section 9—1 of the

Criminal Code of 1961 (II. Rev. Stat. 1979, ch. 38, par. 9—

1(b), (c).) Subsection (a) of the statute, to which the next

two subsections refer, does not mention accountability or

imputed intent other than through felony murder, and in

fact states clearly that “{a] person who kills an individual

without lawful justification commits murder if, in perform.

ing the acts which cause the death ***.” (Emphasis added.)

(Ii. Rev. Stat. 1979, ch. 38, par. 9—1(a).) The crime of

murder by accountability is not defined in section 9—1, or

anywhere specifically in the Criminal Code of 1961; in-

- stead, it derives from sections 5—1, 5--2 and 5—2 of the

Code (Ill. Rev. Stat. 1979, ch. 38, pars. 5—1, 5—2, 5-3) by

applying those sections in conjunction with the murder

statute. The placement of the death penalty provisions

within the murder statute rather than as a separate sec-

tion, combined with the introductory language of the mur-

der statute which I have quoted, suggests that the death

penalty was never meant to be imposed on a person who

committed none of the acts which caused the victim's

death and who can be convicted of murder only by means

of accountability.

This conclusion is bolstered by the wording of the statu-

tory sections involved. Subsection (b) of our murder statute

sets forth eiht aggravating factors the presence of which

will permit the death penalty to be imposed. Except for

the fifth factor, which involves the hiring of another to per-

form a murder, only one of the factors enumerated allows

death for a murder in which the defendant did not person-

ally do the killing. The sixth aggravating factor, which per-

tains to felony murder, is the only one which could even re-

motely involve a defendant who, like Ruiz, neither

“perform[ed] the acts which cause[d] the death” nor was

convicted on a theory of murder which requires the actual,

as opposed to the imputed, intent to kill. Yet that factor is

specifically limited in its application to cases where “‘the

murdered individual was actually killed by the defendant

and not by another party to the crime or simply as a con-

sequence of the crime” (emphasis added) (Ill. Rev. Stat.

1979, ch. SS, par, 9--1>K6,a). regardless of the nature of

the underlying felony, or even the extent of the defendant's

involvement in that felony or the intensity of his intention

that the victim should die. It -s significant that the third

aggravating factor, which pericins to murders of two or

more individuals, requires that the defendant have the “dre

fent to kill more than one person” or that the deaths result

from “separate p) meditated acts” (emphasis added) (iil.

Rev. Stat. 1979, ch. 58, par. O—1043)). neither of which

conditions is met where the theory under which defendant

was convicted permits his intent to he imputed. Not one

agyravating factor pertains to defendants like Ruiz who do

not do the actual killing and who must he prosecuted for

murder under a theory such as accountability which allows

the clement of murderous intent to be supplied vicariously.

The fact that the legislature spc cifically rejected or modi-

fied more inclusive forms of factors (6) and (3) in enacting

the limiting provisos I have mentioned is strong evidence

that it intended not to countenance £0 broad an application

of the death penalty. See } H.RJ., Soth Ml. Gen. Ass’y, at

916-18 (1977) (factor (6)); 1 Legislative Synopsis & Dig.,

goth Jil. Gen. Ass’y, at 955 (1977) (factor (2).

The majority attempts to demonst rate a contrary intent

by pointing to one of the mitigating factors set forth in

subsection (c) of the murder statute. Its reasoning is that

there would be no iced to provide that absence during the

commission of the acts causing death may be considered in

initigation (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(¢K9)) if ac-

countability were not a basis for the imposition of the

death penalty. This argument assumes that a defendant

who is absent during the commission of the fatal acts can-

not be charged with murder directly under the provision of

the murder statute without resorting to accountability the-

ories. J question the soundness of this assumption. As I

have noted, one who solicits the killing of a victim does not

do the actual killing; he need not be at the scene of the

crime. Yet I see no reason why he cannot be prosecuted di-

rectly for murder. His intent to kill is real and need not be

imputed; the act of soliciting another to perform the mur-

der may well qualify as an “fact] which cause[s) the death”

(Ill. Rev. Stat. 1979, ch. 88, par. 9—1(a)). In fact, as I have

also noted above, the murder statute specifically ullows the

death penalty to be imposed on one who solicits the mur-

der of another. (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(b5).)

I fail to see why the mitigating factor relied on by the ma-

A-18-

jority cannot apply to such a person, or why the factor

must be construed as applying to persons merely account-

able for the murderous acts of others in order to have

meaning.

This cowt should not permit a person to be sentenced

to death when all that it can determine is that there is a

strong possibility, or even a probability, that the death pen-

alty statute applies to his conduct. Our practice has been to

interpret criminal statutes and punishment-enhancing pro-

visions with lenity, and to resolve each and every ambiguity

in the reach of such provisions in favor of the derendant.

(See, ¢.g., People v. Hobbs (1981), 86 Ill. 2d 242: People v.

Haron (1981), 85 Il!. 2d 261, 277-78; People v. Lund

(1943), 382 Ill. 213, 215-16.) This practice showd be fol-

lowed with particular rigor in interpreting the death pen-

alty statute, not only because of its severity but also be-

cause of its irrevocability. In this case the statute does not

extend on its face to the grounds on which the defendant

was convicted of murder, and fwther inauiry into the vari-

ous aggravating and mitigating factors icaves room for

considerable doubt as to whether the statute was ever in-

tended to extend to those grounds. My interpretation is

that such an intent did not exist. To the extent that this

interpretation is disputable all doubts should be resolved in

favor of the defendant. An inasmuch as the majority’s at-

tempt to make the death provision cover accountability

cases depends on a labored construction of a mitigating

factor which is probably not obvious to most laymen, the

court should at the very least have given carefw consider-

ation to Ruiz’ claim that the indictment did not sufficiently

inform him that he death penalty would be sought, rather

than dismissing it in :wo brief sentences as it did.

Traditionally, the courts of this State have adhered to

the maxim that “(t]he degree of activity or participation in

a crime should receive attention in fixing the sentence”

(People v. Colone (1978), 56 Ill. App. 3d 1018, 1022; see

People v. Viser (1975), 62 Ill. 2d 568, 586-87; People »v.

Morris (1969), 43 Ill. 2d 124, 181; People v. Parish (1980),

82 Ill. App. 3d 1028, 1033-34; People v. Mikel (1979), 73 Ul.

App. Sd 21, 32). Accountable accomplices have generaily

been given lesser sentences than principal perpetrators in

accordance with this maxim, even though both are guilty

of the crime. (See. e¢.g., People v. Parish (1980), 82 IIl.

App. 3d 1028 (affirming disparate sentences because appel-

lant was the principal perpetrator); People v. Mikel (1979),

73 Ill. App. 3d 21 (same), People v. Coleone (1978), 56 Ill.

App. 3d 1018 (reducing appellant's sentence because he

was merely an accountable accomplice).) While Ruiz may

not have been a “doormat” (Peovle v. Gleckler (1980), 82

Il. 2d 145, 164), neither was he a principal in the three

murders for which the death penalty is being sought. I re-

spectfully suggest that the majority should have considered

this at greater length, both in exercising review of the sen-

tence impesed in this case and in deciding whether the leg-

islature, in enacting a capitai punishment statute silent on

its face regarding accountability, really intended to allow

infliction of the ultimate penalty upor. anyone but ultimate

murderers. I would reverse the death sentence and remand

for resentencing.

A .20.

APPENDIX B

e ILLINOIS SUPREME COURT

.° JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

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MAR 15 1983

OFFICE OF THE

STATE APPELLATE DEFENDER

SUPREME COURT UNIT