Petition — Luis Garcia v. Illinois

RECEIVED

ORIGINAL ..es-soos | we

OFFICE OF THE CLERK

IN THE SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES

October Term, 1983

LUIS GARCIA, Petitioner

-VS-

PEOPLE OF THE STATE OF ILLINOIS, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

LUIS GARCIA

Register No. A-62268

P. 0. Box 99

Pontiac, IL 61764

PRO SE

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

LUIS GARCIA, Petitioner

-Vvs =

PEOPLE OF THE STATE OF ILLINOIS, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

QUESTIONS PRESENTED FOR REVIEW

a.

(a)

Does due process permit a reviewing court to

affirm a death sentence on the basis of a

factual determination that was not made by

the sentencing jury?

(b)

Does the Eighth Amendment permit the execu-

tion of a defendant in the absence of a

finding at trial that he took or intended to

take life?

2.

Does a death penalty statute violate the

Eighth and Fourteenth Amendments where, after

a defendant is found eligible for a death

sentence, it places the burden on _ the

en to prove that sentence inappropri-

ate

3.

Did the prosecutor's argument that Mr. Garcia

would "find a way to get a parole” if given

the alternative sentence of life without

parore deny Mr. Garcia a fair sentencing

earing and due process of law?

4.

Is a death penalty scheme which provides no

form of comparative review constitutional?

ii.

TABLE OF CONTENTS

Opinion Below .

Jurisdiction

Constitutional and Statutory Provisions

Involved . ce se ee ee oF

Statement of the Case .

Reasons for Granting Certiorari .

l. THIS COURT SHOULD GRANT CERTIORARI:

(a)

TO RESOLVE A CONFLICT BETWEEN THE

HOLDING OF THE [ILLINOIS SUPREME

COURT AND THE DECISION IN PRESNELL

V. GEORGIA, 429 U.S. 14, 58

“CE. Ze (1978), THAT A

REVIEWING COURT CANNOT AFFIRM A

DEATH SENTENCE ON THE BASIS OF A

FACTUAL DETERMINATION WHICH WAS NOT

MADE BY THE SENTENCING JURY

(b)

TO RESOLVE A QUESTION POSED BY MR.

JUSTICE WHITE'S CONCURRENCE IN

LOCKETT V. OHIO, 438 U.S. 586, 57

L.Ed.2d 973, 98 S.Ct. 2954 (1978),

AND LEFT UNDECIDED BY ENMUND V.

FLORIDA, U.S. 73 L.Ed. 2d

II40, 102 S.tt. 3368 T1982) :

WHETHER THE EIGHTH AMENDMENT

PERMITS THE EXECUTION OF A DEFEN-

DANT FOR MURDER IN THE ABSENCE OF A

FINDING BY THE TRIER OF FACT THAT

THE DEFENDANT INTENDED TO TAKE

THE LIFE OF THE VICTIM.....

Y THIS COURT SHOULD GRANT CERTIORARI

TO DETERMINE WHETHER A_ DEATH

PENALTY STATUTE WHICH PLACES THE

BURDEN ON THE DEFENDANT TO PROVE A

DEATH SENTENCE INAPPROPRIATE IS

CONSISTENT WITH THIS COURT'S PRIOR

DECISIONS. :

iii.

Page

THIS COURT SHOULD GRANT CERTIORARI

TO DETERMINE WHETHER THE

PROSECUTOR'S ARGUMENT THAT LUIS

GARCIA WOULD "FIND A WAY TO GET A

PAROLE," IF SENTENCED TO LIFE

WITHOUT PAROLE, DENIED MR. GARCIA A

FAIR SENTENCING HEARING AND DUE

PROCESS OF LAW . oe ae i

THIS COURT SHOULD GKANT CERTIORARI

TO DETERMINE WHETHER A_ DEATH

PENALTY JURISPRUDENCE THAT DOES NOT

PROVIDE ANY FORM OF COMPARATIVE

REVIEW IS CONSTITUTIONAL .

iv.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

LUIS GARCIA, Petitioner

-Vvs =

PEOPLE OF THE STATE OF ILLINOIS, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

The petitioner, LUIS GARCIA, prays that a writ of certiorari

issue to review the judgment and opinion of the Supreme Court of

Illinois which held, over a dissent, that a sentence uf death was

properly imposed and that the Illinois death penalty statute does

not violate the Eighth Amendment's proscription of cruel and

unusual punishment.

OPTNION BELOW

The opinion of the Supreme Court of Illinois may be found at

454 N.E.2d 274.

JURISDICTION

The judgment of the Supreme Court of Illinois was entered on

June 17, 1983. A petition for rehearing was denied by order of

the court on September 30, 1983. This petition 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, mor 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.

Stat., 1979, Ch. 38, Sec. 9-l(a):

A person who kills an individual without

lawful justification commits murder if, in

performing the acts which cause the death:

(1) He either intends to kill or

do great bodily harm to. that

individual or another, or knows

that such acts will ¢« ise death to

that individual or anocher; or

(2) He knows that such acts create

a strong probability of death or

great bodily harm to that individu-

al or another; or

(3) He is attempting or committing

a forcible felony other’ than

voluntary manslaughter.

Provision for convening a capital sentencing hearing follow-

ing an Illinois defendant's conviction for murder is found in

I11.Rev.Stat., 1979, Ch. 38, Sec. 9-1(d):

(d) Separate sentencing ee

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 I1l.Rev.Stat., 1979, Ch. 38, Sec. 9-1(b)(3):

oe The defendant has been con-

victed of murdering two or more

individuals under 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;

Provisions for consideration of additional aggravating

factors and mitigating factors at the death sentencing proceeding

are found in I1l.Rev.Stat., 1979, Ch. 38, Sec. 9-l(c) and 9-1l(g):

(c) Consideration of factors in

Aggravatior and Mitigation. The

court shall consider or _ shall

instruct the jury to consider any

aggravation and an mitigating

factors which are relevant to the

imposition of the death penalty...

(g) Procedure-Jury. If at the

separate sentencing proceeding the

jury finds that none of the factors

set forth in Subsection (b) exists,

the court shall sentence’ the

defendant to a term of imprisonment

under Chapter V of the Unified Code

of Corrections....If there is a

unanimous finding 7 the jury that

one or more of the factors set

forth in Subsection (b) exists, the

jury shall consider aggravating and

mitigating factors as instructed by

the court and shall determine

whether the sentence of death shall

be imposed. If the jury determines

unanimously that there are no

mitigating factors sufficient to

preclude the imposition of the

death sentence, the court shall

sentence the defendant to death.

IV.

STATEMENT OF THE CASE

In January of 1980, Luis Garcia was charged with four counts

of murder and several other offenses. Mr. Garcia was found

guilty and sentenced to death. (C. 307-309)

Following trial but prior to sentencing, petitioner raised

one of the federal questions involved in this petition by arguing

that he could not be executed as there was no finding that he

acted with intent to kill and where the jury may have found him

guilty upon a theory of felony murder. (R. 1473)

Petitioner also alleged that the Illinois death penalty

statute provided constitutionally inadequate guidance for the

sentencing body. (R. 1494) These contentions were rejected by

the Circuit Court of Cook County.

The evidence at trial indicated that a Roger Llaguna actual-

ly killed three of the murder victims. Petitioner disputed

testimony that he had killed a fourth person. (R. 834) The jury

which convicted petitioner was instructed on all four counts that

it could find him guilty of murder if he, or a person for whom he

was accountable, had caused the deaths while committing the

felony of armed robbery. (R. 897-904)

At sentencing petitioner asked that the jury be instructed

that, for purposes of a death sentence, the murder convictions

had to have resulted from intentional or knowing acts on the part

of petitioner. (R. 1080) This instruction was refused by the

trial court.

Over a dissent, the Illinois Supreme Court affirmed the

sentence of death. The majority distinguished Enmund v. Florida,

__—ULS. __, +73 L.Ed.2d 1140, 102 S.Ct. 3368 (1982), holding

that the evidence showed petitioner "intended that lethal force

would be employed." People v. Garcia, = I11.2d _, 454 N.E.2d

274, 285 (1983).

The majority rejected petitioner's challenges to. the

constitutionality of the sentence of death imposed and the

provisions of the Illinois death penalty statute. 454 N.E.2d at

282-284. The majority also found that petitioner was not denied

due process by the State's argument at trial that if not given a

death sentence, petitioner would get out on parole and kill

again. 454 N.E.2d at 286.

A petition for rehearing was denied on September 30, 1983.

V.

REASONS FOR GRANTING CERTIORARI

THIS COURT SHOULD GRANT CERTIORARI:

(a)

TO RESOLVE A CONFLICT BETWEEN THE HOLDING OF THE

ILLINOIS SUPREME COURT AND THE DECISION IN PRESNELL V.

GEORGIA, 439 U.S. 14, 58 L.Ed.2d 207, 99 S.Ct. 7235

CIS78) THAT A REVIEWING COURT CANNOT AFFIRM A DEATH

SENTENCE ON THE BASIS OF A FACTUAL DETERMINATION WHICH

WAS NOT MADE BY THE SENTENCING JURY.

Luis Garcia was sentenced to death after convictions on four

counts of murder. At no point in his trial or sentencing was a

finding made that he actually killed or intended to kill any of

the murder victims. Moreover, the jury which convicted and

sentenced Mr. Garcia may have found that he had no intent to kill

but was guilty only of felony murder.

A majority of the Illinois Supreme Court affirmed the death

sentence after tinding, on review, that the evidence demonstrated

that Mr. Garcia “intonded that lethal force would be employed."

454 N.E.2d at 285.

Regardless of whether this result accords with Enmund v.

Florida, _—a°U«.S. __s,_-*73:~* L.Ed.2d 1140, 102 S.Ct. 3368 (1982), it

is certainly in violation of this Court's holding in Presnell v.

Georgia, 439 U.S. 14, 58 L.Ed.2d 207, 99 S.Ct. 235 (1978), that a

reviewing court cannot affirm a death sentence on the basis of a

factual determination not made by the sentencing jury. In

Presnell, the Supreme Court of Georgia had affirmed a death

sentence for murder in the course of a kidnaping with bodily

injury. The court found that bodily injury had resulted from the

forcible rape of one of the victims. Because this specific

finding had not been made by the sentencing jury, which may have

found Presnell guilty of only statutory rape, this Court held

that the affirmance of the death sentence violated due process.

Presnell, said this Court, was entitled to have the validity of

his sentence appraised on consideration of the case as it was

tried and as the issues were determined in the trial court. 58

L.Ed.2d at 211.

The issue of whether Luis Garcia actually took or intended

to take a life was never determined by the jury which convicted

him and sentenced him to death. The affirmance of that sentence

violates due process. This Court should grant certiorari and

reverse the judgment of the Illinois Supreme Court.

(b)

TO RESOLVE A QUESTION POSED BY MR. JUSTICE WHITE'S

CONCURRENCE IN LOCKETT V. OHIO, 438 U.S. 586, 57

L.Ed.2d 973, 99 S.Ct. 2954 (1978) AND LEFT UNDECIDED BY

ENMUND V. FLORIDA, __ U.S. , 73 L.Ed.2d. 1140, 102

5.Ct. 3308 (1982): WH THE EIGHTH AMENDMENT

PERMITS THE EXECUTION OF A DEFENDANT FOR MURDER IN THE

ABSENCE OF A FINDING BY THE TRIER OF FACT THAT THE

DEFENDANT INTENDED TO TAKE LIFE.

In affirming the sentence of death in this case, the

Illinois Supreme Court distinguished Edmund v. Florida, U.S.

___,» 73 L.Ed.2d 1140, 102 S.Ct. 3368 (1982), on the basis of

evidence which supposedly demonstrated petitioner's intent that

lethal force would be employed. 454 N.E.2d at 285. Even

assuming that this determination is factually correct, the result

violates the Eighth Amendment.

In his concurrence in Loc':xtt 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 a 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 petitioner's 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.

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 reason-

able 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 od¢s 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 Garcia

possessed an intent to kill. It is respectfully submitted that

this situation will arise in numerous other cases where a con-

viction 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 constitutional question of whether such a

result violates the Eighth Amendment.

THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE WHETHER

A DEATH PENALTY STATUTE WHICH PLACES THE BURDEN ON THE

DEFENDANT TO PROVE A DEATH SENTENCE INAPPROPRIATE IS

CONSISTENT WITH THIS COURT'S PRIOR DECISIONS.

Imposition of the death penalty under the Illinois statute,

as under death penalty statutes in many other states, requires a

preliminary determination of the existence of one or more enumer-

ated aggravating factors and, once a defendant is thereby found

eligible, an evaluation of evidence in aggravation and mitiga-

tion. I11.Rev.Stat., 1979, Ch. 38, Sec. 9-1(b) and (g). The

Illinois statute then provides:

If the jury determines unanimously that

there are no mitigating factors sufficient to

preclude the imposition of the death sen-

tence, the court shall sentence the defendant

to death.

Unless the jury unanimously finds that

there are no mitigating factors sufficient to

preclude the imposition of the death sentence

the court shall sentence the defendant to a

term of imprisonment...

I11.Rev.Stat., 1979, Ch. 38, Sec. 9-1(g)

The Illinois death penalty statute thus creates a rebuttable

presumption at the second phase of the sentencing hearing that

death is the appropriate punishment. The defendant is assigned

the burden of adducing "mitigating factors sufficient to preclude

the imposition" of that punishment. The jury in the case at bar

sentenced Mr. Garcia to death pursuant to instructions replicat-

ing this statutory language.

The [Illinois statute violates the Eighth and Fourteenth

Amendments by requiring "defendants to bear the risk of nonper-

suasion as to the existence of [sufficient] mitigating circun-

stances in capital cases." Lockett v. Ohio, 438 U.S. 586, 609

n.16, 57 L.Ed.2d 973, 992-993 n.16, 98 S.Ct. 2954 (1978).

Justice Marshall recognized this problem in the Illinois statute

in an opinion respecting the denial of certiorari in Jones v.

Illinois, _-*U.S. ___, 34 Cr.L. 4047 (10/19/83):

Given the wording of the Illinois death

penalty statute and the trial court's in-

structions in this case, I am not convinced

that petitioner's sentencing jury balanced

mitigating factors and aggravating circum-

stances in the manner required by this Court

in Lockett v. Ohio and Eddings v. Oklahoma.

Under [the] Illinois statute, once a sentenc-

ing jury finds a statutorily-defined aggra-

pens factor to exist, the jury proceeds to

consider aggravating and mitigating factors.

"If the jury determines unanimously that

there are no mitigating factors sufficient to

preclude the imposition of the death sen-

tence, the court shall sentence the defendant

to death." At the sentencing trial in this

case, the trial judge instructed the jury on

how to evaluate mitigating evidence: "[Y]Jou

go out and determine whether or not. this

evidence has taken away the [aggravating]

factors, mitigated the factors so that you

might say no, we don't want to vote for the

death penalty." Notwithstanding other

portions of the trial court's instructions,

this instruction coupled with the Illinois

statute's ambiguous reference to "pre-

clud{ing] the imposition of the death sen-

tence" may well have led the sentencing jury

to conduct its deliberation under the assump-

tion that petitioner had the burden of

proving that the death penalty was inappro-

priate in his particular case. Since I do

not understand this Court's precedents to

1 In Lockett, the Court eg nar left open the question of

whether the Ohio death penalty statute was unconstitutional for

the same reason.

permit the placing of such burden on a

defendant, I would grant the petition.

34 Cr.L. at 4047 (citations omitted)

The Court's precedents have clearly established that a

capital sentencing procedure which interferes with the deter-

mination of whether death is an “appropriate punishment in a

specific case" is unconstitutional. Lockett, supra, 438 U.S. at

601. Statutes requiring mandatory death sentences are

unconstitutional. Roberts v. Louisiana, 431 U.S. 633, 52 L.Ed.2d

637, 97 S.Ct. 1993 (1977); Woodson v. North Carolina, 428 U.S.

280, 49 L.Ed.2d 944, 96 S.Ct. 2978 (1976). Statutes which

prohibit consideration of relevant mitigating factors are also

unconstitutional. Lockett v. Ohio; See also Eddings v. Oklahoma,

455 U.S. 104, 71 L.Ed.2d 1, 102 S.Ct. 869 (1982). <A death

penalty statute which places the risk of nonpersuasion on the

defendant interferes with the sentencer's role in an equally

improper manner, albeit more subtly, because it also creates an

undue chance that a death sentence will be imposed where it is

not appropriate.

The Court has observed that the allocation of a burden of

proof artificially enhances the liklihood of error against the

party who bears the burden. Speiser v. Randall, 357 U.S. 513,

525-526, 2 L.Ed.2d 1460, 1472-1473, 78 S.Ct. 1332 (1958). See

also McCormick on Evidence, Sec. 341, pp. 798-99 (2d Ed. 1972).

Therefore, "“(where] one party has at stake an interest of tran-

scending value -- as a criminal defendant his liberty -- this

margin of error :s reduced as to him by the process of placing on

the other party the burden...of proof... Speiser, supra. This

reflects society's judgment that it is significantly worse for an

innocent man to be found guilty than for a guilty man to go free.

McCormick on Evidence, supra. Thus in a death penalty

proceeding, there can be no question that the burden of proof, if

"

any, must be placed on the State rather than the defendant.“

Lockett, Eddings, Woodson and Roberts, supra, established

that capital punishment may be imposed only where "appropriate."

This requirement may not be circumvented by means of statutes

which establish a mandatory death penalty, nor by means of laws

which prevent consideration of relevant mitigating evidence.

Similarly, the Court should not allow the need for reliability in

the imposition of capital punishment to be circumvented by a

statute which places the burden of proof and risk of error on the

defendant. "The power to create presumptions is not a means of

escape from constitutional restrictions." Speiser, supra, citing

Bailey v. Alabama, 219 U.S. 219, 239, 55 L.Ed. 191, 200, 31 S.Ct.

145 (1911).

For these reasons, the Court should grant certiorari and

vacate Mr. Garcia's death sentence.

2 Several states in fact require the prosecut.on to prove

beyond a reasonable doubt that death is an appropriate punishment

in order to impose that punishment. State v. Wood, 648 P.2d 71,

83-85 (Utah, 1982)

THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE WHETHER

THE PROSECUTOR'S ARGUMENT THAT LUIS GARCIA WOULD "FIND

A WAY TO GET A PAROLE," IF GIVEN THE ALTERNATIVE

SENTENCE OF LIFE WITHOUT PAROLE, DENIED MR. GARCIA A

FAIR SENTENCING HEARING AND DUE PROCESS OF LAW.

At the final phase of the sentencing hearing, defense

counsel noted in closing argument that under Illinois law Luis

Garcia would be sentenced to life imprisonment without possibil-

ity of parole if the jury chose not to return a death verdict.

The court allowed the prosecutor to respond in rebuttal, over

objection, that Mr. Garcia, if given life imprisonment without

parole, would "find a way to get a parole and...be out on the

street again and he'll kill again." (R. 1150) The objection to

this rebuttal should have been sustained. The prosecutor's claim

that Mr. Garcia could somehow be paroled despite the provisions

of the law was completely groundless. The inflammatory impact of

the argument served only to divert the jury's attention from its

proper focus on the circumstances of the offense and the

character and record of the accused, as stated by this court in

Woodson v. North Carolina, 428 U.S. 280, 304, 49 L.Ed.2d 944,

961, 96 S.Ct. 2978 (1976).

Illinois law provided no possibility that Mr. Garcia would

be paroled from prison, since he had been convicted of more than

one offense of murder. I1l.Rev.Stat., 1979, Ch. 38, Sec.

1005-8-1l(a)(1)(c). The issue of the defendant's suitability for

parole was therefore irrelevant. Because of the prosecutor's

argument, however, this irrelevant consideration may have been a

factor in the jury's decision to impose the death penalty. In

Zant v. Stephens, __—S&wU.S. __s_,_-~*77:«*CLL.Ed.2d 235, 255, 103 S.Ct.

2733 (1983), this Court specifically observed that due process of

law would require a death sentence to be set aside where the

aggravating label had been attached to irrelevant matters.

For these reasons, this Court should grant certiorari and

vacate Mr. Garcia's death sentence.

THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE WHETHER

A DEATH PENALTY JURISPRUDENCE THAT DOES NOT PROVIDE ANY

FORM OF COMPARATIVE REVIEW IS CONSTITUTIONAL.

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

2726 (1972), this Court held that the penalty of death may not be

imposed under sentencing procedures that create a substantiai

risk that the punishment will be inflicted in an arbitrary and

capricious manner. A capital sentencing scheme must provide a

“meaningful basis for distinguishing the few cases in which the

death penalty is imposed from the many cases in which it is not."

Appellate review procedures which serve to insure that the

death penalty is not being imposed arbitrarily and capriciously,

by providing for comparative review, are essential to a

constitutional death penalty scheme. Because such procedures are

not yet provided for in Illinots, there is no guarantee that the

death penalty will not be imposed in an arbitrary and capricious

manner.

In the present case, petitioner's sentence was affirmed in

an opinion which made no attempt at any form of comparative or

proportionality review.

This issue is presently before the Court in Pulley v.

Harris, No. 82-1095. Certiorari should be granted to determine

whether the lack of comparative review in Illinois violates the

Constitution.

VI.

CONCLUSION

For the foregoing reasons, LUIS GARCIA, petitioner, respect-

fully requests that a writ of certiorari be issued to the Supreme

Court of Illinois.

Respectfully submitted,

LUIS GARCIA

Register No. A-62268

P. O. Box 99

Pontiac, IL 61764

PRO SE

ORIGINAL

83-5933

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

LUIS GARCIA, Petitioner

vs.

RECEIVED

DEC 15.1983

PEOPLE OF THE STATE OF ILLINOIS, Respondent

APPENDIX

TO PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT

OF ILLINOIS

LUIS GARCIA, PRO SE

# C-62268 P.O. Box

Orrin vr im utRK

| SUPREMT “7 vv |

99

Pontiac Correctional Center

Pontiac, Illinois

61764

APPENDIX

Opinion of the Illinois Supreme Court in The People

of the State of Illinois vs. Luis Garcia, filed June

i7, 1983, and subsequently reported at 454 N.E.2d

274 (1983).

Denial of Petition for Rehearing, filed September

30, 1983.

Docket No. 54329—Agenda 3—March 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,

v. LUIS GARCIA, Appellant.

JUSTICE UNDERWOOD delivered the opinion of the

court:

Following a jury trial in the circuit court of Cook

County, the defendant, Luis Garcia, was convicted of four

counts of murder, four counts of attempted murder, 10

counts of armed violence, eight counts of armed robbery

and five counts of aggravated battery. Defendant was also

convicted on a single count each of rape, aggravated kid-

naping, deviate sexual assault, taking indecent liberties

with a child, and conspiracy. The State sought the death

penalty and, after a sentencing hearing, the sare jury de-

termined that defendant was eligible for the death sen-

tence and that there were no mitigating factors sufficient

to preclude imposing that penalty. Although the trial court

then sentenced defendant to death on his murder convic-

tion, it did not impose any sentences on defendant’s other

convictions. The death sentence was stayed by the trial

court .s required by our Rule 60%a) (73 Ill. 2d R. 60%a)),

and defendant appealed directly to this court pursuant to

section 4(b) of article VI of our constitution of 1970 as im-

plemented by section 9—1(i) of the Criminal Code of 1961

(ll. Rev. Stat. 1979, ch. 38, par. 9—1(i)) and our Rule 603

(87 Ill. 2d R. 603).

The 36 crimes for which defendant was convicted in

this cause were committed during a period of only several

hours. The testimony introduced at trial indicated that on

January 7, 1980, defendant and an accomplice, Roger Lla-

guna, entered a small grocery store on Wabansia Avenue in

Chicago at approximately 6:30 p.m. William and Aida Pa-

gan, the owners of the store, were in the sales area of the

establishment, as was an employee, Miguel Hernandez.

two handguns, proceeded alone to the rear of the sales

area, where he immediately shot both William Pagan and

Juan Jiminez twice. Autopsies revealed that William Pagar:

had actually received three bullet wounds and that Juan

Jimninez had suffered two bullet wounds. Liaguna then re-

turned to the front of the store and shot Miguel Hernan-

r

~~

FILED

JUN 17 1983

CAERK SUPREME COURT

ILLINOIS

dez in the head, neck and back. As he was falling to the

floor, and just before losing consciousness, Mr. Hernandez

saw defendant, who was armed with one handgun, shoot

Aida Pagan.

Another witness, Melvin Crawford, testified that he

was about to enter the Pagans’ grocery store at approxi-

mately 6:45 that evening when he encountered a man with

two guns leaving the store. That individual, whom Mr.

Crawford later identified as Roger Llaguna, asked as to

what Mr. Crawford was looking at; Mr. Crawford re-

sponded that he had not seen anything anc after backing

away a short distance, ran down the street.

Upon their arrival, Chicago policemen found Miguel

Hernandez, who was bleeding profusely, sitting on a carton

at the front of the store. Aida Pagan was found lying

across William Pagan, her husband, and next to Juan

Jiminez, both of whom appeared to be already dead. Al-

though she was lapsing in and out of consciousness, Mrs.

Pagan was able to indicate that they had been attacked by

two Latinos. Aida Pagan was declared dead on arrival

when transported to a hospital, as were William Pagan

and Juan Jiminez. The police also found that the store’s

cash register, which Mr. Hernandez testified had contained

“folding money,” was devoid of currency. A description of

a car which had pulled away from the store just after the

shootings was obtained by investigators from two neigh-

bors who had heard gunshots. This description was later

included in a city-wide police radio broadcast.

After leaving the store, which was located at 3022 West

Wabansia, defendant and Llaguna apparently went to the

Lincoln Tavern, located at 1858 West Wabansia. They en-

occupants of the bar were Christine Mroz, Walter Lesniak

and Dorothy Oszkandy’s 10-year-old daughter, Denise.

Christine Mroz, who had moved to the United States from

Poland only four years earlier, was related to the owners

of the tavern and lived with her relatives in living quarters

<td: an Goedel te Oh wed Wale eae

improve her command of the English language by talking

with patrons of the tavern. That evening she was convers-

conversation with Mr. Lesniak soon after defendant and

Llaguna arrived and returned to her living quarters, pass-

ing through the rear of the tavern where Denise Oszkandy

was watching television. Shortly thereafter, Clara Satha,

an elderly woman who was also a regular customer, en-

tered the tavern and joined Mr. Lesniak at the bar.

Defendant then approached the fr ont of the tavern and, af-

ter glancing out the window, turned and said, “This is a

stick-up.” Brandishing 2 hancgun, defendant warned

Dorothy Oszkandy not to reach for a gun and ordered her

to give him the money in the cash register. Defendant also

ordered Walter Lesniak and Clara Satha to place all of

their money or the bar. When Mrs. Oszkandy turned

slightly to check on her daughter, defendant shot her in

the side and then shot Walter Lesniak in the side. In re-

sponse to defendant’s repeated demand, Mrs. Oszkandy

staggered to the cash register and managed to place the

money onto the bar before losing consciousness.

Meanwhile, Roger Llaguna had ordered Denise

Oszkandy to join.her mother behind the bar and she had

begun to do so when defendant shot Mrs. Oszkandy. Lla-

guna then pulled Denise back and forced her to accompany

him through the passageway leading to the adjoining living

quarters. Denise Oszkandy testified that they encountered

Christine Mroz in the dining room. After Miss Mroz rose

from her chair, Llaguna fired three shots at her, causing

her to fall to the floor. An autopsy later revealed that Miss

Mroz died of a gunshot wound to the head.

Defendant and Roger Liaguna then left the tavern, tak-

ing Denise Oszkandy with them in their car. After ordering

her to keep her head down, they drove to an unoccupied

basement where both men sexually assaulted her and en-

gaged in a number of deviate sexual acts, including insert-

ing the barrel of a handgun into her vagina. Denise

Oszkandy was then forced back into the car.

broadcast informed them of the abduction of Denise

Oszkandy. They proceeded to join in the search and, upon

arriving in the neighborhood of the crimes, spotted a car

ered was driven by defendant. The plainclothes officers sig-

naled a marked patrol car to follow them, and when those

officers momentarily spotted a little girl's head pop up be

tween the figures of the other two occupants of the suspi-

cious car, they attempted to stop that car. A high-speed

chase ensued during which Roger Llaguna fired several

shots at *he police.

Defendant, after losing control and crashing the car

into a parked vehicle, jumped out and attempted to run

away. Officer Spiegel, who been shot in the leg while

leaving his own car, shot defendant in the hand, causing

to fal] to the ground, where he was placed under ar-

At the time of his arrest, defendant was unarmed,

a fully loaded .38-caliber Rohm revolver was found on

the driver’s side of the front seat in the car which he had

been driving. Roger Llaguna, who had fled into an alley,

was killed while engaging in a gun baitle with the police

At trial, a ballistics expert testified that while some of

the firearm evidence recovered at the grocery store and

the tavern was unsuitable for analysis, the identifiable evi-

dence conclusively demonstrated that Aida Pagan had been

shot both by the .357 Smith & Wesson revolver recovered

from Roger Llaguna and the .38 Rohm revolver recovered

from the driver’s seat in the crashed getaway car. In addi-

tion, the expert was able to state that William Pagan and

Juan Jiminez had both received at least one wound each

from the .88 Rohm revolver, which had also been used, in

his opinion, to shoot Dorothy Oszkandy. The physical evi-

dence also showed that Christine Mroz had been shot with

the Smith & Wesson .357 revolver.

Defendant, attacking both his convictions and the impo-

sition of the death penalty, raises a number of issues per-

taining to his trial and : atencing hearing. We consider

first the challenges to the fairness of defendant’s trial, de-

tailing additional factual matters not set forth above where

necessary. Prior to trial, the defendant unsuccessfully

moved for an order suppressing any reference to pretrial

identification of defendant both by Miguel Hernandez, the

only surviving witness to the grocery store killings, and by

Walter Lesniak, one of the victims at the tavern. Defend-

ant also sought to suppress any in-court identification by

those same witnesses claiming that the identification evi-

dence constituted the product of procedures on the part of

the police which were “unnecessarily conducive to irrepara-

ble mistaken identification.” The testimony at the hearing

on the motion to suppress identification testimony by Wal-

ter Lesniak indicated that while he was receiving treat-

ment in a hospital emergency room, Mr. Lesniak was told

by a police officer that Denise Oszkandy had been safely

recovered and that two suspects had been apprehended.

Mr. Lesniak had also seen a newspaper article concerning

tne shootings, accompanied by a large photograph of

defendant, but because he was not wearing his glasses and

only glanced at the item in a cursory fashion, had not

learned any details of the incident. Either one or two days

after the shootings, Mr. Lesniak was visited in the hospital

by Officer Curtis, who showed Mr. Lesniak a lineup photo-

graph depicting five individuals, including defendant. Both

Officer Curtis and Mr. Lesniak testified that Officer Curtis

left without having discussed the incident immediately af-

ter Mr. Lesniak identified one of the individuals in the

lineup. When asked at the hearing if the person he had

identified in the lineup photo was the same person who

had appeared in the newspaper photograph, Mr. Lesniak

stated, “‘He looked a little bit different. Uh, the picture I

saw in the Tribune, uh, was very—. Well, he was dishev-

eled and, well, dirty, et cetera, et cetera.”

The trial court sustair.ed objections to numerous ques-

tions by defendant’s attorney concerning conversations be-

tween Walter Lesniak and police officers while Mr. Lesniak

was in the hospital emergency room, the length of time

that Mr. Lesniak had been in the tavern prior to the shoot-

ings, the description of the assailants which Mr. Lesniak

had given police at the time of the incident, and the type

of medication which Mr. Lesniak was receiving at the time

of the photographic identification. At the close of the hear-

ing, defense counsel stated for the record that he consid-

ered the questions which he had sought to ask important

because of the fact that Mr. Lesniak had seen the newspa-

per photograph of defendant, but he declined to offer any

argument on behalf of the motion and rested on the testi-

mony »f Officer Curtis and Walter Lesniak.

The hearing held pursuant to the motion to suppress

the identification testimony of Miguel Hernandez was com-

plicated ‘oxy the fact that Mr. Hernandez, who spoke no En-

glish, was forced to testify through an interpreter. It is ap-

parent from the record that the translation process created

confusion at times on the part of Mr. Hernandez and the

examining attorneys both during the suppression hearing

and, despite the substitution of a different interpreter, at

when he first regained consciousness five days after being

shot and that the officer had shown Mr. Hernandez a pho-

tograph of five persons. Mr. Hernandez stated that he had

pointed out one of the individuals when asked if he could

identify the person that had shot him. After a number of

intervening questions concerning the length of the officer's

visit and the nature of their conversation, Mr. Hernandez

stated that he had taken the photograph into his own

hands when viewing it and that while he was holding it,

the officer had pointed to defendant and asked if he was

the person who had come into the grocery store. On cross-

examination, Mr. Hernandez testified that he had pointed

out his selection to the policeman and that the policeman

had not told him which man to pick out.

In his attack on the trial court’s denial of the motiozs

to suppress the identification testimony of Miguel Hernan-

dez and Walter Lesniak, defendant argues that he was de-

nied a fair hearing on the motions and, in any event, that

the trial court erred in their denial. Defendant, referring

us to People v. Robinson (1970), 46 Il. 2d 229, asserts that

the hearings were unfair because the trial judge precluded

eration of such factors as how well the witness was able to

observe une criminal act, the accuracy of any description

furnished by the witness, and whether the. witness had

been previously acquainted with the defendant, is relevant

only to evaluate the independent basis of reliability. (See

People v. Bryant (1983), 94 Il). 2d 514; People v. Hopkins

(1973), 53 I. 2d 452.) The questions which defense counsel

was precluded from asking were simply not relevant to the

issue of whether the identification procedure had been un-

necessarily suggestive, and the trial judge did not deny

defendant a fair hearing by sustaining objections to those

In addition, we cannot agree that the trial judge erred

in denying defendant’s motions to suppress. It is well es-

tablished that a trial court’s ruling on a motion to suppress

will not be disturbed unless it is manifestly erroneous.

(People v. Holloway (1981), 86 Ill. 2d 78; People v. Conner

(1979), 78 Ill. 2d 525; People v. Williams (1974), 57 Ill. 2d

239, cert. denied (1974), 419 U.S. 1026, 42 L. Ed. 2d 302,

95 S. Ct. 506; People v. Clay (1973), 55 Ill. 2d 501.) The

testimony presented at the hearing concerning Walter Les-

niak’s identification contains no indication of any sugges-

tive conduct on the part of the police. Nor can we say

from our review of the testimony of Miguel Hernandez

that the trial court erred in resolving the contradictions in

his testimony by determining that defendant had failed to

sustain his burden of proving suggestive conduct. Although

defense counsel established at both hearings that defendant

was in custody at the time the photographic identifications

were made, he did not argue then or now that the proce

dures employed were unnecessary. Nevertheless, we con-

a defendant is in custody and available for an ir person

lineup identification, a lineup was not feasible here. (See,

06, en 6 ae oer 471-72; People

Williams (1975), 60 Ill. 2d 1, 9.) Walter Lesniak and Mi-

proper for the police to conduct a photographic-

As another basis for arguing that his trial was unfair,

defendant asserts that the trial court failed to conduct a

proper hearing to determine whether Denise Oszkandy,

who was 11 years old at the time of the trial, was compe-

1-

tent to testify. After calling her to the witness stand, the

prosecutor proceeded to ask her to spell her name and give

her age. Defense counsel then requested a conference out-

side the hearing of the jury which the trial judge denied af-

ter asking her a few questions of his own, inquiring as to

her age, the name and location of her school and her grade

level in school. The judge also asked her whether she knew

a lie and if you’re in court, you go to jail.” It is the

of a child’s intelligence, rather than mere chrono

ical age, that determines a child’s competence, and “‘i}f

the witness was sufficiently mature to receive correct im-

pressions by her senses, to recollect and narrate intelli-

gently, and to appreciate the moral duty to tell the truth,

she was competent.” (People v. Davis (1957), 10 Ill. 2d

430, 436, cert. denied (1957), 355 U.S. 820, 2 L. Ed. 2d 35,

78 S. Ct. 25. See also People v. Edwards (1973), 55 Ill. 2d

25, 33, cert. denied (1974), 415 U.S. 928, 39 L. Ed. 2d 486,

94 S. Ct. 1438; People v. Brown (1972), 52 Dll. 2d 94, 104-

05; People v. Ballinger (1967), 36 Ill. 24 620, 622, cert. de-

nied (1967), 388 U.S. 920, 18 L. Ed. 2d 1366, 87 S. Ct

2141.) There is no rigid formula which is applicable to a de-

termination of competency, and the record reflects that the

trial court was satisfied by Denise’s responses to his ques-

tions that she was competent to testify. Decisions as to the

competency of a witness are reviewable, but in light of the

trial courts’ opportunity to take into account the demeanor

of the witness, this court has held that such determinations

‘evidence than we have here (see, ¢.9., People v. Ballinger

: trial jud

into the vagina with a kind of trauma.” He added that

Denise had asked, “Did I commit sin?” Although Dr.

Evangelista stated that there was vaginal tenderness and

swelling, as well as slight bleeding, the State did not

present any evidence as to the presence of semen.

Although defendant was not sentenced on the rape con-

trial are properly before us. (People v. Scott (1977), 69 Il.

2d 85, 88; People v. Lilly (1974), 56 Il. 2d 493, 496.) Un-

der Illinois law, it is clear that one of the elements which

it

must be proved to sustain a rape conviction is penetration

of sex organ by the male sex organ. (Ill. Rev.

Stat. 1979, ch. 38, par. 11—1. See People v. Harper (1972),

50 Ill. 2d 296, 300; People v. Stagg (1963), 29 Ill. 2d 415,

417.) In our judgment, the evidence simply fails to estab-

1

5

g

5

g

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§

harmless error beyond a reasonable doubt. Chapman v.

California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct.

824.

Another ground upon which defendant challenges his

convictions concerns the trial court’s refusal to call Carmen

Hernandez as a court’s witness. Prior to trial, defense

counsel, accompanied by an investigator from the public

defender’s office, visited the Hernandez residence for the

that ‘she had not been at home when defense counsel and

the investigator arrived to interview her husband but that

when she arrived at home to find them there, she had

Carmen Hernandez should be considered a court’s wi

and open to impeachment. The trial judge di but

did allow defendant to make an offer of proof as to Mr.

i

(People v. Pastorino (1982), 91 Il. 2d 178, 191. See also

People v. McKee (1968), 39 Ill. 2d 265; People v. Moriarity

(1966), 33 Il. 2d 606; People v. Siciliano (1954), 4 I. 2d

581, cert. denied (1955), 349 U.S. 931, 99 L. Ed. 1261, 75

issue of her husband’s credibility and not to the innocence

or guilt of defendant. The trial court did not err in denying

defendant’s belated request in chambers to characterize

her as a court’s witness. Furthermore, although we have

since amended our rules to allow a party to impeach his

own witness (see 87 Ill. 2d R. 238), and therefore decline

defendant's invitation to adopt Rule 607 of the Federal

Rules of Evidence (Fed. R. Evid. 607), the trial judge cor-

rectly applied the long-standing prohibition against im-

t of one’s own witness which was still in force at

>

Furthermore, the record lends no support to an argument

that defense counsel was intimidated or that they con-

ducted their defense effort in other than a deliberate and

resolute manner.

We turn now to a consideration of those points on

which defendant challenges his sentence of death. Raised

first is defendant’s contention that the Illinois death pen-

alty statute is unconstitutional because it does not provide

the jury with any guidance as to what weight to assign the

various factors in aggravation and mitigation. (See Ill. Rev.

Stat. 1979, ch. 38, par. 9—1.) Defendant also argues that

the statutory language directing the court to impose the

death penalty if the jury determines unanimously that

“there are no mitigating factors sufficient to preclude the

imposition of the death sentence” (Il. Rev. Stat. 1979, ch.

88, par. 9—1(g)) is unconstitutionally vague. An extended

discussion of these arguments is unnecessary because this

court has already held that neither the language employed

nor the absence of specific weights in connection with the

factors renders the statute unconstitutional. People v.

Brownell (1980), 79 Ill. 2d 508, 534, cert. dismissed (1980),

449 U.S. 811, 66 L. Ed. 2d 14, 101 S. Ct. 59. See also Peo-

ple v. Lewis (1981), 88 Ill. 2d 129, cert. denied (1982) __

U.S. ___, 78 L. Ed. 2d 1308, 102 S. Ct. 2307.

Defendant also urges that the statute’s failure to re-

quire juries to employ a reasonable-doubt standard when

finding that there are no mitigating factors sufficient to

preclude the deail: sentence violates his right to due proc-

ess. We note at the outset that our opinion in People v.

Free (1983), 94 Ill. 2d 378, considered this issue to be re-

solved in People v. Brownell (1980), 79 Ill. 2d 508. (94 Ml.

2d 378, 421.) In any event, defendant’s argument misap-

prehends the nature of the sentencing hearing provided un-

der Illinois law. Due process requires that the State prove

defendant’s guilt beyond a reasonable doubt (see os

Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct.

1068), and our statute also requires the jury to find beyond

a reasonable doubt that one or more of the statutory ag-

Rev. Stat. 1979, ch. 38,

apt tgp peat yt te 153, 196-

97, 49 L. Ed. 2d 859, 887-88, 96 S. Ct. 2909, 2936). During

the sentencing stage of a criminal proceeding, however, 80-

ciety is no longer concerned exclusively with a defendant's

culpability; rather, the focus is legitimately broadened to in-

clude other considerations such as the offender’s character

and propensities. (See Gregg v. Georgia (1976), 428 U.S.

153, 189, 49 L. Ed. 2d 859, 883, 96 S. Ct. 2909, 2932,

quoting Pennsylvania ex rel. Sullivan v. Ashe (1937), 302

U.S. 51, 55, 82 L. Ed. 48, 46, 58 S. Ct. 59, 61.) The differ-

ing purpose of the sentencing phase of criminal proceed-

ings has been held to justify a departure from the tradi-

tional rules governing evidentiary matters. (See, ¢.g.,

People v. La Pointe (1981), 88 Ill. 2d 482; People v. Adkins

(1968), 41 I. 2d 297.) Convicted defendants are not enti-

tled to any particular sentence, and because the only pur-

pose of the aggravation and mitigation phase is to insure

that the sentencing body exercises its discretion in an in-

formed manner (People v. Jones (1982), 94 Ill. 2d 275), we

do not consider it necessary or desirable to inject a reason-

able-doubt standard into the balancing process. The Su-

preme Court has approved sentencing schemes which, like

that established by the Illinois statute, provide for a balanc-

ing of aggravating and mitigating factors without employ-

ing the reasonab!c-doubt standard. (See Gregg v. Georgia

(1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909;

Proffitt v. Florida (1976), 428 U.S. 242, 49 L. Ed. 2d 913,

96 S. Ct. 2960.) We agree with the decisions of our appel-

late court and courts in other jurisdictions which have held

that due process does not require the State to prove be-

yond a reasonable doubt that the aggravating factors out-

weigh the mitigating factors. State v. Bolder (Mo. 1982),

635 S.W.2d 673, State v. Schad (1981), 129 Ariz. 557, 633

P.2d 366; People v. Frierson (1979), 25 Cal. 3d 142, 599

P:2d 587, 158 Cal. Rptr. 281; State v. Pierre (Utah 1977),

572 P.2d 1338, cert. denied (1978), 439 U.S. 882, 58 L. Ed.

2d 194, 99 S. Ct. 219; People v. Perez (1981), 101 I. App.

8d 64; People v. Peddicord (1980), 85 Ill. App. 3d 414; Peo-

ple v. Mays (1980), 80 Ill. App. 3d 340. See also State v.

Pritchett (Tenn. 1981), 621 S.W.2d 127; State v. Watson

(1978), 120 Ariz. 441, 447, 586 P2d 1253, 1259, cert.

nied (1979}, 440 U.S. 924, 59 L. Ed 2d 478, 99 S.

1276.

in

.

ity of the reasonable-doubt stardard at the guilt phase of

criminal proceedings and do not provide support for

defendant’s position. Although Woodson and Gardner in-

volve reversals of death sentences, they, too, are inappo-

site. In Woodson, the Supreme Court held that North Caro-

lina’s mandatory death penalty for first-degree murder

violated the eighth and fourteenth amendments. This hold-

ing rested on the North Carolina statute’s failure to pro-

vide for the individualized consideration necessary to arrive

at a reliable determination that the death sentence was ap-

propriate in each case. Similarly, the question of whether

the reasonable-doubt standard should be applied to jury

findings concerning aggravating and mitigating factors was

not in issue in Gardner, where the Supreme court held

that a Florida court’s imposition of the death penalty based

on confidential information in a presentence report not

made available to the defendant violated due process. No

decision of the Supreme Court requires that Illinois appiy a

reasonable-doubt standard in all phases of a sentencing

hearing, and we are unpersuaded that our statute provid-

ing otherwise is invaiid.

Defendant urges that the Illinois death penalty statute

is constitutionally infirm as applied to the facts in this

cause, arguing that it provides that the death penalty may

be imposed upon defendant despite the fact that his convic-

tions were based on accountability and there was no evi-

dence that defendant actually killed or intended the death

of another person.

The sentencing jury found defendant eligible for the

death penalty under section 9—1(bX3) of the Criminal Code

of 1961 (Il. Rev. Stat. 1979, ch. 38, par. 9—1(bX3)). Section

9—1(b) provides in relevant part:

“Aggravating factors. A defendant who at the time of

the commission of the offense has attained the age of 18

or more and who has been found guilty of murder may be

sentenced to death if: ahaa

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

Because the jurors were instructed that they could return

guilty verdicts on the charges if they found that defendant

had actually committed the crimes or, alternatively, if they

found that he was !egally responsible for the conduct of the

perpetrator under the Illinois accountability statute (see I.

Rev. Stat. 1979, ch. 38, pars. 5—1 through 5—3), defend-

ant claims that’ the general verdicts of guilt returned

agzinst him cannot be regarded as a finding that he per-

sonally committed the murders. Defendant also contends

that the evidence, even when viewed in the light most fa-

vorable to the State, does not support a finding that he ei-

ther committed or intended the murders, but establishes

only that he participated in a series of felonies. Citing En-

mund v. Florida (1982), __. U.S. ___, 78 L. Ed. 2d

1140, 102 S. Ct. 3368, as well as our own recent decisions

in People v. Jones (1982), 94 Dl. 2d 275, and People v.

Tetier (1982), 94 Il. 2d 303, defendant argues that the im-

position of the death penalty in his case is disproportionate

to the offenses for which he was sentenced and thus vio-

lates the eighth amendment.

We note initially that we cannot agree with defendarit’s

unqualified staternent that he was convicted on the basis of

accountability. Rather, the most that can be said is that the

general verdict returned by the jury fails to reveal whether

the jury found him guilty of actually killing anyone or

whether he was convicted on the basis of accountability.

Even if we were to assume that defendant’s murder con-

victions rested in part or completely on a theory of ac-

countability, the imposition of the death sentence under the

circumstances present here was permissible. This court has

already held that the death penalty may be constitutionally

imposed for murder convictions based on accountability

(People v .Ruiz (1982), 94 Ill. 2d 245), and defendant’s cita-

tions to our recent decisions in Jones and Tiller are inap-

ak

:

|

is for us ultimately to judge whether the Eighth

Amendment permits imposition of the death penalty on

one such as Enmund who aids and abets a felony in the

course of which a murder is committed by others but who

does not himself kill, attempt to kill, or intend that a kill-

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

have concluded, along with most legislatures and juries,

that it does not.”’ (Emphasis added.) __. U.S. ___., ___.,

73 L. Ed. 2d 1140, 1151, 102 S. Ct. 3368, 3376-77.

As this court recently reiterated, it is wel] established

that a fact finder may infer the intent to take a life from a

defendant’s acts and the circumstances surrounding the

commission of the offense. (People v Ruiz (1982), 94 Ill. 2d

245, 263. See also Pecrle v. Jones (1979), 81 Il. 1, 9-10;

People v. Koshiol (1970), 45 Ill. 2d 573, cert. denied (1971),

401 U.S. 978, 28 L. Ed. 2d 329, 91 S. Ct. 1209 (partially

overruled in People v. Nunn (1973), 55 Ill. 2d 344, 349);

People v. Coolidge (1963), 26 Ill. 2d 533.) Viewed in the

light most favorable to defendant, the uncontroverted evi-

dence presented at trial concerning defendant’s conduct at

the grocery store, coupled with the physical evidence,

clearly demonstrates that defendant intended that lethal

force would be employed. (Cf, Enmund v. Florida (1982),

—_. U.S. ___, —_, 73 L. Ed. 2d 1140, 1151, 102 S. Ct.

3368, 3376-77.) The methodical execution of the grocery

store shootings and robbery, with Roger Llaguna moving

immediately to kil] any potential witnesses in the rear of

the store while defendant held those persons in the front

at bay before shooting one of them himself, coupled with

the defendant’s lack of hesitation when shooting Dorothy

Oszkandy and Walter Lesniak at the tavern, leads us to

conclude that the circumstances here are completely differ-

ent from those in Jones or Tiller, where the defendants

were not shown tc have planned or participated in the

struction tendered by the State and given

was defective in that it failed to inform

7s

Fy

E

part of the instruction actually given provided:

“Aggravating factors are those facts or circumstances

which provide reasons for imposing the death penalty.

Aggravating factors include, but need not be limited to,

the required statutory aggravating factor in the previous

instruction.

Mitigating factors are those facts or circumstances

which provide reasons for imposing a sentence less than

the death penalty. (Mitigating factors may include:)

6). any other factors or circumstances that pro-

vide for imposing less than the death penalty.”

In our opinion, this instruction clearly informed the jurors

that their consideration need not be limited to the statu-

tory examples of mitigating factors. Defendant’s instruc-

tion contained the same language directing the jury to con-

sider any other mitigating facts and, because it was

substantively identical in that respect, the trial judge’s re-

fusa] to give the instruction did not constitute error.

In addition, we note that although defense counsel ob-

jected to certain aspects of the State’s instruction, the

ground upon which it is now challenged was not brought to

the attention of the trial judge. This court has consistently

held that specific objections waive all grounds not specified

and “one may not raise on appeal a question which was

not properly presented to the trial] court.” (People v. Curry

(1973), 56 Fil. 2d 162, 170. See also People v. Free (1983),

94 Ill. 2d 378, 419; People v. Pastorino (1982), 91 Ill. 2a

178, 192; People v. Lewis (1981), 88 Ill. 2d 129, 149; People

v. Holloway (1981), 86 Ill. 2d 78, 91.) An exception to the

waiver doctrine is provided by our Rule 615{a) (73 Ill. 2d

R. 615(a)), but that exception is expressly limited to cases

in which the plain error affected substantial rights. (Cf

People v. Szabo (1983), 94 Ill. 2d 327, 354-55.) Our deci-

Oe Se ee ee tee ee oe eee OG

come into play when reviewing a sentencing hearing in

volving the death penalty (People v. Szabo (1983), 94 Ill. od

827, 355), issues which were waived will be addressed only

when the evidence is closely balanced. (People v. Carlson

(1980), 79 Il. 2d 564, 576; People v. Howell (1975), 60 IL.

2d 117, 121; People v. Pickett (1973), 54 Il. 2d 280, 282-

83.) A review of the evidence presented in aggravation and

mitigation disposes of any contention that this evidence

was closely balanced.

_ The other two instructions which defendant claims were

improperly refused would have instructed the jury to con-

sider the objective of restoring the offender to useful citi-

-]17-

zenship when determining the approprie - sentence, in ac-

cordance with article I, section 11, of the 1970 Mlinois Con-

stitution. In People v. Gaines (1981), 88 Ill. 2d 342, cert.

denied (1982), ___ U.S. ___, 73 L. Ed. 2d 1295, 102 S.

Ct. 2285, the defendant attacked his death sentence on the

grounds that the death penalty statute violated article I,

section 11, of the 1970 Illinois Constitution by failing to re-

quire the sentencing body to make a determination that

there was no rehabilitative potential and that no such find-

ing was made. As was true in Gaines, defendant failed to

present any evidence which would support a finding of re-

habilitative potential. Accordingly, although the trial

judge’s characterization of defense counsel’s proposed in-

structions on rehabilitative potential was unwarranted, the

judge’s refusal to give the instructions, if improper, was at

most harmless error. Cf. People v. Ellis (1973), 53 Ill. 2d

890, 395-96; People v. Nelson (1968), 41 Ill. 2d 364, 367;

People v. Muniz (1964), 31 Ill. 2d 130, 138.

Defendant claims that his sentencing hearing was also

tainted by inflammatory remarks made by the prosecutor.

During his closing argument, the prosecutor told the jurors

that they should disregard defense counsel’s assertion that

the court would sentence defendant to life imprisonment

without parole if they voted against the death penalty;

rather, argued the prosecutor, defendant would find a way

to get out on parole and kill again. This court has held that

a resulting death sentence must be reversed when a prose-

cutor’s remarks in a death sentence hearing diverted the

jury’s consideration away from a strict consideration of ag-

gravating and mitigating factors. (People v. Szabo (1983),

94 Ml. 2d 327; People v. Walker (1982), 91 Ill. 2d 502.)

Comments concerning the availability of parole, however,

when invited and in the absence of any indication of an ef-

fect on the sentencing jury, do not require reversal. (People

v. Walker (1982), 91 Ill. 2d 502, 515; People v. Myers

(1966), 35 Il. 2d 311, 335, cert. denied (1967), 385 U.S.

1019, 17 L. Ed. 2d 557, 87 S. Ct. 752.) Defense counsel’s

assurances to the jury that the trial judge would sentence

defendant to life imprisonment without the possibility of

parole served to invite the Prosecutor’s comments. Conse-

In its brief, the State draws to our attention the fact

that defendant was sentenced only on his murder convic-

tion and requests that we remand the cause in order to al-

low the trial court to sentence defendant on his other con-

victions. The record offers no explanation as to why sen-

tences on those convictions were not imposed and, as we

noted above when addressing defendant's challenge to his

rape conviction, judgments of criminal conviction are gen-

erally not reviewable until finalized by the imposition of a

sentence. As is true in conjunction with a conviction or

convictions which are properly before us, we may remand

the cause for sentencing. People v. Scott (1977), 69 Ill. 2d

85.

For the reasons stated, we reverse the circuit court’s

judgment of conviction on the rape charge, affirm the judg-

ment on all of the other convictions, as well as the imposi-

tion of the death sentence, and remand the cause with di-

rections to impose sentences on those convictions for which

no sentence was imposed. It is further ordered that the

sentence of death be executed on Wednesday, November

16, 1983.

Affirmed in part and reversed

in part; cause remanded,

with directions.

JUSTICE SIMON, dissenting:

I would vacate the sentence of death rendered against

the defendant and remand for a new sentencing hearing

because the Illinois death penalty statute is unconstitu-

tional and because of prejudicial remarks made by the

prosecutor at the death penalty hearing.

I continue to adhere to the position that I stated in Peo-

ple v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissent-

ing). The Illinois death penalty statute is unconstitutional

because it “contains no directions or guidelines to minimize

the risk of wholly arbitrary and capricious action by the

prosecutor in either requesting a sentencing wearing or in

not requesting a sentencing hearing.” (People ex rel. Carey

v. Cousins (1979), 77 Ill. 2d 531, 559 (Ryan, J., Golden-

hersh, C.J. and Clark, J., dissenting).) A majority of the

justices presently sitting on this court has, at one time or

another, and most recently on November 13, 1981, when

People v. Lewis was filed, recognized that the statute is

unconstitutional. I believe that the importance of the issue

to the public and to the defendant requires that I adhere to

the beliefs I expressed in Lewis and refuse to follow the

doctrine of stare decisis in this matter as my colleagues

did in that case.

For this reason, I would declare the statute unconstitu-

tional, vacate the sentence of desth, and remand for the

imposition of an alternative sentence.

Even if the statute were constitutional, the prosecutor's

prejudicial remarks about the possibility of parole at the

defendant’s death sentencing hearing require that we va-

cate the sentence of death and remand for a new hearing.

This court allowed the prosecutor to argue, over objection,

that the defendant, if given life imprisonment without pa-

role, would “find a way to get a parole and *** be out on

the street again and he’ll kill again.”

We have held that the prosecutor must not interject ex-

traneous issues into the death penalty hearing which,

through prejudice or confusion, divert the jury’s attention

from a careful consideration and weighing of the aggravat-

ing and mitigating factors in the defendant’s case. People

v. Szabo (1983), 94 Ill. 2d 327, 363-67; People v. Walker

(1982), 91 Il. 2d 502, 513; see also People v. Davis (1983),

95 Ill. 2d 1, 62-63 (Simon, J., dissenting).

In Szabo we vacated the sentence of death because the

prosecutor referred to the possibility of parole in his clos-

ing argument. (94 Ill. 2d 327, 365-67.) The prosecutor

made comparable comments in this case, but the majority

holds that the comments were invited by defense counsel's

reference te the option of a life sentence without possibility

of parole. Yet in Szabo we held that precisely the same

type of reference to sentencing options did not warrant

the prosecutor’s prejudicial and inflammatory reference to

the possibility of parole:

“The possible terms of parole should not have been in-

terjected by either counsel in informing the jury of the

sentencing alternatives available to the court However,

the State’s Attorney could not use defense counsel's

statements as a convenient springboard to suggesi to the

jury that a possible decision ‘made by some bureaucrat

with very little standards’ could allow Szabo to be free

again some day in the future. The comments of the

State’s Attorney were not invited by defense counsel's

reference to the court’s sentencing alternatives. Such

highly prejudicial remarks on the pert of the prosecuting

attorney inevitably diverted the jury's attention from con-

sidering the aggravating and/or mitigating factors as

they properly reviewed the character and record of the

defendant and the facts and circumstances surrounding

the offense.’’ (94 Ill. 2d 327, 366.)

The majority offers no explanation for its retreat from

Szabo and the decision we made there to clearly limit prej-

udicia) rhetoric in penalty hearings.

I believe al) judges appreciate the seriousness of a death

sentencing hearing. It “is not intended to provide a soap

box on which counse] can prey upon the fears of the jurors

that the the defendant may soon walk the streets again in

search of another victim.” (People v. Szabo (1983), 94 Il.

°4 327, 367.) I see no reason why this court should not

continue to heed the warning it gave in Szabo concerning

the limits of rhetoric in death penalty hearings.

-21-

September 30, 1983

Ms. Eva Field

Field &€ Blum

180 N. LaSalle, S#1425

Chicago, IL 60601

a

No. 54329 - People State of Illinois, appellee, vs. Luis Garcia,

appellant. Appeal, Circuit Court (Cook).

The Supreme Court today DENIED the petition for rehearing

in the above entitled cause.

Very truly yours,

Clerk of the Supreme Court

RECEIVED

NOV 29 .1983

NO. Orricc or sett CLERK

SUPREME “AT US. |

IN THE 83-5933

SUPREME COURT OF THE UNITED STATES

October Term, 1983

LUIS GARCIA, Petitioner

vs

PEOPLE OF THE STATE OF ILLINOIS, Respondent

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

LUIS GARCIA

#C-62268

Pontiac Correctional Center

Pontiac, Illinois 61764

PRO SE

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

LUIS GARCIA, Petitioner

vs

PEOPLE OF THE STATE OF ILLINOIS, Respondent

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

THE PETITIONER, LUIS GARCIA, respectfully requests this

Court, in accord with his attached affidavit, for leave to file

Petition for Writ of Certiorari to the Supreme Court of the State

of Illinois, without payment of costs, and to proceed in forma

pauperis pursuant to Rule 46.

LUIS GARCIA, Pro Se

RECEIVED

83-5933 eahibus:

Orrive or inte CLERK

IN FORMA PAUPERIS AFFIDAVIT SUPREME CMRT. US

LUIS GARCIA

(Petitioner) AFFIDAVIT IN SUPPORT

Vv. OF REQUEST

TO PROCEED

PEOPLE OF THE STATE OF ILLINOIS IN FORMA PAUPERIS

(Respondent )

I, LUIS GARCIA , being first duly sworn,

depose and say that I am the petiticner in the above-entitled

case; that in support of my motion to proceed without being

required to prepay fees, costs or give security therefore, I

state that because of my poverty I am unable to pay the costs

of said proceeding or to give security therefore; that I

believe I am entitled to relief.

I further swear that the responses which I have made to

questions and instructions below are true.

i. Are you presently employed? XXNMX No

(a) If the answer is "yes," state the amount of your

Salary or wages per month, and give the name and

address of your employer.

(b)

If the answer is “no,” state the date of past

employment and the amount of the salary and wages

per month which you received.

Lad. Hall ‘Poywhwe OME. 2 ag

Yleses Unflvown at Present

you received within the past twelve months any money

any of the following sources?

Business, profession or form of self-employment?

Yes (no)

Rent payments, interest or dividends?

Pensions, annuities or life insurance payments?

Yes ‘eT,

Gifts or inheritances?

Yes No

Any other sources?

If the answer to any of the above is "yes," describe

each source of money and state the amount received from

each during the past twelve months.

Do you Own cash, or do you have money in a checking or

savings account?

Yes (Include any funds in

prison accounts.)

If the answer is "yes," state the total value of

the items owned.

B/Y 35 Dreseutly ev. Driisew accauts

Do you own any real estate, stocks, bonds, notes, automobiles,

or other valuable property (excluding ordinary household

furnishings and clothing)?

Yes No

If the answer is "yes," describe the property and

state its approximate value.

List the persons who are dependent upon you for support,

state your relationship to those persons, and indicate

how much you contribute toward their support.

I understand that a false statement or answer to any

questions in this affidavit will subject me to penalties for

perjury.

(Petitioner's signature)

State of

County (City) of

, being first duly sworn

(Name of Petitioner) under oath, presents that

he has read and subscribed to the above and states that the

information therein is true and correct.

Signature of Petitioner

(Required as to each petitioner)

Subscribed and sworn to before me

on this ©! day of _ J“ _, 198 .

Notary Public or other person

authorized to administer an oath.

State of Illinois

County of Cook

CERTIFICATE OF SERVICE

I hereby certify that I served a true and correct

copy of the foregoing Motion to Proceed in Forma Pauperis

by hand-delivering same to the Office of Illinois Attorney

General Hardigan at 160 North LaSalle Street in Chicago,

Illinois, 69601 and on the office of Richard M. Daley,

State's Attorney of Cook County, Randolph and Dearborn

Streets in Chicago, Illinois 60602, this 23rd day of Novem-

ber, 1983.

F

‘ih Z.

/

/ /

ae

Subscribed and sworn to

before me this 23rd day

of November, 1983.

| » Notary Public

My Commission Expires: August 9, 1987

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