# Petition — Luis Garcia v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 1260

## Text

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).

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

(THIS PAGE INTENTIONALLY LEFT BLANK)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1718%3A1. Public record. Not legal advice.