People v. Thompson ( 2006 )

Docket No. 97373.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
CURTIS A. THOMPSON, Appellant.
Opinion filed April 10, 2006.
CHIEF JUSTICE THOMAS delivered the judgment of the court,
with opinion.
Justices Freeman, Garman, and Karmeier concurred in the
judgment and opinion.
Justice Fitzgerald specially concurred.
Justice McMorrow dissented with opinion.
Justice Kilbride took no part in the decision.
OPINION
Following a jury trial in the circuit court of Stark County,
defendant, Curtis A. Thompson, was convicted of three counts of first
degree murder (720 ILCS 5/9B1(a) (West 2002)) for killing three
persons. Defendant was also convicted of one count of home invasion
(720 ILCS 5/12B11(a)(5) (West 2002)), two counts of attempted first
degree murder (720 ILCS 5/9B1(a), 8B4(a) (West 2002), three counts
of aggravated discharge of a firearm (720 ILCS 5/24B1.2(a)(3) (West
2002)), one count of disarming a police officer (720 ILCS 5/31B1a
(West 2002)), and one count of criminal damage to property (720
ILCS 5/21B1(1)(a) (West 2002)). Defendant thereafter waived his
right to a jury at sentencing. Following a death penalty hearing, the
trial court found defendant eligible for the death penalty based on
three factors: defendant had murdered a police officer, he had
murdered two or more persons, and two of the murders had occurred
during the course of a home invasion. After hearing evidence in
aggravation and mitigation, the trial court concluded that there were
no mitigating factors sufficient to preclude imposition of the death
penalty. Accordingly, the trial court sentenced defendant to death on
each of the first degree murder convictions. The trial court also
sentenced defendant to terms of imprisonment of 50 years on each of
the attempted murder convictions, 30 years for home invasion, 15
years for aggravated discharge of a firearm, and 3 years for criminal
damage to property, all sentences to run concurrently. The court did
not impose sentence on two of the aggravated discharge of a firearm
counts, finding that it was precluded from doing so by the one-act,
one-crime rule. Defendant=s appeal was brought directly to this court
because he was sentenced to death. Ill. Const. 1970, art. VI, '4(b);
134 Ill. 2d R. 603.
Defendant does not challenge the sufficiency of the evidence to
convict him, and he raises no issues with respect to the
guilt/innocence phase of his trial. Instead, defendant raises three
issues challenging his sentence. The first issue contests his death
sentence as being excessive in light of the aggravation and mitigation
presented at the penalty phase of his sentencing hearing. Defendant=s
two remaining issues pertain to the constitutionality of the death
penalty.
BACKGROUND
We have thoroughly reviewed the record in this case. Because the
resolution of the principal issue raised is largely dependent on the
weight of the evidence in aggravation and mitigation, we will set
forth a comprehensive summary of the evidence adduced at
defendant=s lengthy trial and sentencing proceedings.
At the guilt phase of defendant=s trial, the State presented
testimony showing that defendant armed himself with a sawed-off
shotgun and went on a shooting spree, first killing a police officer
and then two neighbors in the presence of their 10-year-old daughter.
After killing the officer and two neighbors, defendant drove through
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town and engaged other police officers in a low-speed chase before
opening fire on the officers.
Shirley Brown was the first witness called by the State at
defendant=s trial. She testified that on the evening of March 22, 2002,
she was on duty in her employment as a dispatcher for the Stark
County sheriff=s department. Deputy Adam Streicher was also on
duty that evening and in uniform. Streicher came to the station,
checked the active warrant file and ran computer checks on
outstanding warrants. Streicher left the station shortly after 7 p.m. in
his squad car and began running license plate checks. At some point,
he called Brown and asked for the phone number for defendant=s
residence. When records showed that the number was unavailable,
Streicher asked Brown for information on an outstanding warrant
against defendant. Brown informed Streicher that the percentage
applied for the warrant required payment of $100. Streicher signed
off and was never heard from again. Brown grew concerned for the
deputy, but her repeated attempts to radio him for status were
unavailing.
James Batey testified that around 7 p.m. on March 22, 2002, he
stepped outside the front door of his house to watch a Stark County
sheriff=s deputy in a squad car run license-plate checks on vehicles
parked on the street. The officer parked his squad car in front of
defendant=s house, which was one house over from Batey=s house.
Batey observed the officer standing at defendant=s front door with his
hands at his side. As Batey turned and opened the door to his house,
he heard a loud shot that Asounded like an M-80.@ He then saw
defendant look toward the ground and nudge something with his foot.
At that point, Batey moved closer and established eye contact with
defendant. Batey then ran into his house to put his shoes on. When he
came back outside, he saw that the squad car that had been parked in
front of defendant=s house was now speeding toward the property of
James and Janet Giesenhagen. Batey watched the squad car slam into
the Giesenhagens= vehicle. Defendant emerged from the squad car,
ran up to the door of the Giesenhagens= home with a rifle in hand, and
kicked the door in. Batey then heard a woman scream, followed by a
gunshot. As Batey ran to his house, he heard another gunshot. Batey
then loaded his family into their van in order to evacuate the area. As
they drove past defendant=s house, they saw a slain sheriff=s deputy
lying in front of defendant=s house.
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Marilyn Giesenhagen testified that she is the 71-year-old mother
of James Giesenhagen and that she lived across the alley from her
son. Sometime around 7 p.m. on March 22, 2002, she received a
phone call from her granddaughter Ashley Giesenhagen, who is the
daughter of James and Janet. Ashley said, Agrandma, come quick.
Curt Thompson just killed my daddy and hurt my mommy.@ Marilyn
then went to the home. She found Janet on the kitchen floor, with her
hand Ablown off@ and having difficulty breathing. She found her son
at the bottom of the basement stairs in a pool of blood.
Emergency Medical Technician Michael Jezierski testified that he
was dispatched to the Giesenhagen home after receiving a call of a
multiple shooting incident. Upon arrival, Jezierski found that James
Giesenhagen had a large amount of blood around his head, had no
pulse and was not breathing. After determining that James was
beyond medical help, Jezierski turned to Janet and found that her
hand was amputated at the wrist and she had suffered multiple
puncture wounds to her left upper torso.
Jason Rice testified that on the night of the murders he was
driving home after having had dinner with his parents. As Rice drove
through town, a squad car deliberately collided with his truck. When
Rice exited his truck to check the damage, he recognized defendant
sitting in the squad car. Rice was afraid of defendant from his past
experience with him. Rice explained that he used to live next door to
defendant, and defendant had a habit of glaring at and trying to
intimidate people in town. Sometimes defendant would follow Rice
through town in his vehicle. On one occasion in August 2001, some
people were spinning their tires on the road near Rice=s home.
Defendant came over to Rice=s front porch and blamed him for the
incident. Defendant then threatened Rice with a club and told Rice
that he Awould bury [him] in a pine box.@ Thus, on the night of March
22, 2002, Rice fled the scene of the collision with the squad car when
he saw defendant sitting inside it. On cross-examination, Rice
admitted that he had lit off a bottle rocket near defendant=s house
before defendant came to Rice=s porch on the night of their encounter
in August 2001.
Bradford Police Officer Mark James testified that after hearing a
radio report of gunshots at Deputy Streicher=s last-known location,
James went to that neighborhood and immediately encountered
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defendant driving Streicher=s vehicle. James put his vehicle in
reverse, and the Streicher vehicle inched toward him at about five
miles per hour. As this continued, it appeared at one point that
defendant was going to ram James= vehicle. James picked up speed in
reverse until other officers were in position; he then stopped in order
to block the roadway. At that point, defendant rammed James= car.
James exited his vehicle and slowly approached defendant, who
could not be seen because of the now crumpled hood on Streicher=s
squad car. James repeatedly commanded defendant out of the vehicle,
and on the third such command, defendant shot at James through the
passenger side window. James took cover and returned fire. Within
the next several minutes, other officers arrived at the scene to provide
backup. Jimmy Dison, the Stark County chief deputy sheriff,
eventually pulled defendant out of the squad car and handcuffed him.
Toulon Police Chief Robert Taylor testified that he and Officer
Brian Rewerts responded to the scene and observed James= vehicle
proceeding in reverse as it was being pursued by Streicher=s squad
car. Taylor and Rewerts were driving separate vehicles. They
followed defendant as he drove toward James. When Officer James
stopped in front of defendant, Taylor and Rewerts blocked the road
from behind. Taylor exited his vehicle and observed defendant
shooting at James. Taylor stood there for a couple of seconds, felt
something strike him, and realized that he too was under attack.
Taylor eventually placed himself in position for a clear shot at the top
of defendant=s head. Taylor fired one quick shot, and there was no
more gunfire that night. Within a few seconds, Chief Deputy Dison
arrived and pulled defendant from Streicher=s vehicle.
On cross-examination, Chief Taylor noted that he had known
defendant since at least 1993 because of defendant=s prior contacts
with the police department. Taylor explained that on a few occasions
defendant had tailgated police officers or swerved his vehicle at them.
Brian Rewerts, an officer with the police department in
Wyoming, Illinois, testified that he helped block the road from
behind defendant. When Rewerts exited his vehicle, he realized that
shots were being fired by defendant from Streicher=s vehicle. Rewerts
attempted to move his vehicle closer to defendant, but was unable to
do so because his back tires had been shot out. Rewerts watched
Dison remove a wounded defendant from the vehicle, along with a
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sawed-off shotgun and handgun taken from defendant=s lap. Rewerts
noted that in addition to the damage to his tires, his vehicle had two
gunshot holes in the passenger side doors.
Chief Deputy Jimmy Dison testified that after he disarmed
defendant and removed him from the Stark County police vehicle, his
thoughts turned to the plight of Deputy Streicher. Dison and the other
officers ran to defendant=s house and found Streicher=s dead body
lying on the ground in front of defendant=s house outside the closed
front door.
Dison further testified that in December of 2001, he went to
defendant=s home wearing his uniform and driving a marked squad
car. On that occasion, Dison walked up to defendant and said, ACurt,
we have got a warrant for you. It=s a hundred dollars bond. I will give
you a week to get the money and come up and post bond on the
warrant.@ Initially, defendant did not respond, but as Dison turned to
leave, defendant said, Ayou will have to come back and get me.@
On cross-examination, Dison testified that the warrant was issued
for the purpose of revoking probation for defendant=s failure to pay
court costs in a case in which defendant was convicted for assaulting
Joe Tracey.
Lee Ellington, a nurse at St. Francis Hospital in Peoria, Illinois,
testified that defendant was a patient in her care on March 30, 2002,
eight days after the murders. At one point that day, defendant
admitted that he had shot the victims. The next day, defendant told
Ellington that Ahe didn=t mean to shoot the woman, all she had to do
was put a tourniquet on her arm but the bitch died anyway.@
Defendant also said that Aa lot more people were going to get it when
he got out.@ Later on that same day, defendant told Ellington that he
was Asorry the child had to see it, but all she had to do was close her
eyes.@ Defendant was not under any medication when he made these
statements.
The forensic and crime-scene-investigation evidence revealed that
Deputy Streicher died from a shotgun wound, delivered at close range
to the neck and upper chest. Janet Giesenhagen died from a massive
shotgun wound delivered at close range to her arms and chest that
caused major damage to her entire upper torso and resulted in pellet
fragments penetrating her chest and lungs and severing her right
hand. James Giesenhagen died from a gunshot blast inflicted at
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intermediate range to the face, neck and chest.
After concluding its case in chief, the State rested, and defendant
raised an insanity defense. Defendant presented the testimony of a
number of witnesses, along with two mental health expertsBDrs. John
Day and Robert ChapmanBto support his defense. The State
presented the psychiatric testimony of Dr. Andrew Kowalkowski to
rebut the defense.
The defense first called Joseph Tracey, who testified that he
began working for James Giesenhagen in the Giesenhagens= heating
and air conditioning business about five years before the murders.
Tracey=s duties required him to sometimes work in an alley behind
the Giesenhagens= home. Defendant would often drive past and stare
hatefully at Tracey, even though Tracey himself never had any
previous history with defendant. The Giesenhagens, however, did
have a history with defendant, as they had filed a lawsuit against him
some years earlier. On one of these occasions when defendant drove
past, he yelled to Janet Giesenhagen that Athey had better stop
harassing him or he would get even.@
Tracey recalled an incident where he was driving on a highway
about seven miles southwest of Toulon, while looking for a location
where he was to bid on a construction job. Defendant came down the
road in his truck and began following Tracey. Defendant passed
Tracey, blocked the intersection ahead, exited his truck and
proceeded toward Tracey=s vehicle, holding a hammer. Defendant
told Tracey that he was Agoing to beat the shit out of [him].@ Tracey
eventually drove in the ditch around defendant=s truck and continued
on his way. He later called the sheriff=s department to report the
incident. Defendant was eventually brought to trial over the matter,
convicted and ordered not to have any contact with Tracey.
Nonetheless, about two months later, defendant began driving by
Tracey=s house and past him while he worked in the alley behind the
Giesenhagen house.
Tracey also had two other encounters with defendant. In February
of 2000, Tracey was shopping in a grocery store in Toulon.
Defendant began following Tracey through the aisles, trying to
intimidate him. Defendant then said to him, AYou son of a bitch, you
better stay out of my business or I am going to get you.@ In March
2002, defendant briefly blocked Tracey=s van at an intersection in
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downtown Toulon.
On cross-examination, Tracey stated that the Giesenhagens
routinely left scrap metal and other business-related items in the back
of their property. When defendant drove through the alley, he always
stayed on the public way and never left his vehicle. With respect to
the incident where defendant threatened Tracey with a hammer,
Tracey acknowledged that he had had a hard time locating the job site
and that he happened to drive past a piece of farm property defendant
owned along the road. At the time, Tracey was driving a company
van that identified the Giesenhagens= business. Defendant did not
actually try to hit him or the van with the hammer, and defendant
never attempted to run him off the road. Defendant was convicted for
assault over the offense. At sentencing on the charge, the incident at
the grocery store was brought up, and defendant was ordered to stay
away from Tracey and his family and was placed on probation for
two years. Tracey also acknowledged that defendant did not threaten
or even speak to him at the grocery store until after Tracey asked to
use the store phone to call the police.
Lonny Dennison testified that he was the Stark County sheriff for
20 yearsBfrom 1982 to 2002. Dennison noted that during that time, he
had Adealings with defendant that went real well and *** dealings
where we would have words back and forth. If it didn=t go his way,
then [defendant] was upset.@ Dennison further noted that people
would get into confrontations with defendant and then come to the
sheriff=s office to complain. But most people did not want to sign a
complaint. The Giesenhagens, however, did sue defendant over a dog
bite. Defendant went to trial and was found Anot guilty.@
On cross-examination, Dennison acknowledged that the dog-bite
case was a civil suit. He noted that in the years after the case,
defendant held a grudge against the Giesenhagens. Dennison also
stated that defendant never came to him complaining about someone;
it was always other people complaining about defendant=s behavior.
Angela Smith, a nurse at St. Francis Hospital who cared for
defendant following the shootings, testified that defendant told her he
Adidn=t know what the big deal was@ and that he had done Anothing
wrong.@ Defendant also told Smith that he had suffered for 30 years,
but the victims had only suffered for 30 minutes.
Jerry Abbed testified that he has owned a grocery store in Toulon
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for the past 15 years. About six months before the murders, he saw
defendant threatening Tracey at the store. Abbed put his hand on
defendant=s shoulder and told him to Atake it outside.@ Defendant
responded by telling Abbed not to push him. After the incident,
defendant=s behavior toward Abbed completely changed. About a
month later, defendant drove up to Abbed and yelled profanities at
him. Defendant wanted to fight, so Abbed told him to get out of the
truck and go to it. But defendant continued yelling and threatening
until the police came five minutes later. This kind of behavior
continued to the point where every time defendant saw Abbed he
would swear at him and want to fight. About two weeks before the
murders, defendant stopped his truck in front of the store and said to
Abbed, AIf you are man enough, follow me to the farm and I will kill
you and nobody will find you there anyway.@
Donald St. John testified that he was a farmer in Toulon and saw
defendant on a periodic basis in connection with farming-related
matters. On one occasion, the two men compared physical ailments,
and defendant said that he suspected some of his neighbors of
Astealing.@ St. John explained that defendant told him that one farmer
would not sell defendant some heifers, but things were eventually
patched up when the farmer sold them at a low price that pleased
defendant. Furthermore, defendant never said that anyone was out to
get him.
Under cross-examination, St. John admitted that all the incidents
that defendant mentioned were real incidents and that they essentially
amounted to a matter of people taking advantage of defendant in
business transactions. For example, defendant was mad at a
veterinarian that he had to pay for coming to help at the birth of a calf
that died in the birthing process. St. John also acknowledged that
defendant was capable of holding longstanding grudges.
Julian Hickman testified that he worked with defendant from
1969 until 1985. Although defendant was a hard worker, he was bitter
and did not like authority. When Hickman became defendant=s boss,
defendant=s attitude toward him Adid not change much.@ One time,
defendant brought Hickman=s handicapped daughter a present while
he was dressed as Santa Claus. On cross-examination, Hickman
stated that defendant was fired nine different times from his job with
the mining company, but he was able to get it back each time because
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of union rules.
Art Whitaker testified that he was 64 years old and had known
defendant since they were in grade school together. He worked with
defendant for a year in the early 1960s. He lost track of defendant for
a number of years after that, but reestablished a relationship when
defendant started doing work for Whitaker=s father-in-law. Whitaker
noted one incident in which defendant was Ashorted@ on a deal
involving cattle feed. Whitaker said that he knew defendant was right
in this instance because the sellers admitted that they had shorted
defendant.
On cross-examination, Whitaker stated that defendant held a
grudge over being shorted on the cattle feed. Whitaker also recalled
that one time he and defendant were visiting on the front porch of
defendant=s house when the phone rang. Defendant=s wife answered
and told defendant that James Giesenhagen was coming over to work
on the furnace. Defendant then told Whitaker that he had to leave
because Giesenhagen had a restraining order against defendant.
Whitaker described defendant as a Anormal@ person.
The defense called clinical psychologist John Day, who testified
that he conducted a psychological assessment of defendant, using two
testsBthe Minnesota Multiphasic Personality Inventory (MMPI) and
the Millon Clinical Multiaxial Inventory (MCMI). The first addresses
clinical issues, the second personality issues. The MMPI results
indicated that defendant had Ainterpersonal alienation,@ which is
difficulty relating to people Ain the social realm.@ Day explained that
a number of defendant=s scores on this test exceeded the normal range
and therefore became clinically significant. Defendant scored high in
Aparanoia, suspiciousness,@ and this was his highest score of all those
that were elevated above the normal range. Day noted that he would
expect to see a score like that in less than 2% of the population.
Day stated that defendant had elevated scores on the MCMI in
Aparanoid ideation,@ depression, and Aavoidance of social situations.@
Day explained that defendant is not Apsychotic by any means, but just
has a different frame of reference than a typical person.@
Day also testified that defendant discussed the murders with him
during his evaluation. According to Day, defendant claimed that
when the deputy came to serve the warrant, he entered through the
door with a gun in hand and ordered defendant to put his shirt on.
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Defendant told Day that he knew that as part of his probation, he had
been ordered to pay $15 dollars a month for six to eight months, at
which time the court would review his compliance in paying the fine.
He also knew that he had not paid the required monthly payments and
that the court had reviewed his noncompliance. When the officer
came to his door, defendant had a shotgun sitting on a toolbox
nearby. Defendant picked it up, and the deputy went back out the
door. Defendant then went out the door with the shotgun. Defendant
claimed that he shot the deputy because he believed the deputy was
going to shoot him first, as he had pointed a gun at defendant=s chest.
After shooting the deputy, defendant went back inside and put his
shirt on. When he came outside, he took the deputy=s gun and squad
car. He then went to the Giesenhagens= home because he Aalready had
a deputy so why not get them.@ Defendant wanted Janet Giesenhagen
to remember all the pain she had caused him when she sued him in
the dog-bite case. Even though he had prevailed on the merits, it cost
him $20,000 in legal bills, and the Giesenhagens had been Athumbing
their nose at [him] for 15 years.@ Defendant claimed that he did not
intend to kill them, he only Awanted to maim@ them. After shooting
the Giesenhagens, defendant drove through town and the police
eventually caught up with him. He exchanged gun fire and ended up
wounded in the head. Defendant concluded his rendition by telling
Day that AI am supposed to be such a bad ass that people wanted to
try to get me upset,@ but AI never swatted a fly unless it shit on me
first.@
Day believed that defendant was suffering from two disorders:
delusional disorder of a persecutory type and paranoid personality
disorder. ADelusional disorder of a persecutory type@ is characterized
by a false belief system grounded in nonbizarre delusions because it
is based upon things that can happen in everyday life, as opposed to
things that are not possible. The persecutory type of nonbizarre
delusion applies when the theme of the delusion involves the personal
belief that the person is Abeing conspired against, cheated, spied on,
followed, poisoned or drugged, maliciously maligned, harassed, or
obstructed in the pursuit of long-term goals, meaning their own
personal goals.@ Day explained that even though there is no factual
basis for thinking that any of those things are happening, the
delusional person believes that they are. Day concluded that, on the
day of the crimes, defendant suffered from a mental
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diseaseBdelusional disorder of a persecutory typeBthat prevented him
from appreciating the criminality of his conduct.
On cross-examination, Day admitted that he never asked
defendant such specific things as who was conspiring against him,
who was harassing or maligning him, how they were doing it, or what
his long-term goals were. Day explained that he did not ask defendant
to elaborate on these matters because this would have ruined their
rapport and would have made defendant suspicious. Day further
emphasized that he did not ask about the specifics of defendant=s
beliefs because in making his diagnosis, he needed only to focus on
the Athemes of how [defendant] sees the world, not the yes or no
facts.@ He was not concerned with determining if there was a rational
basis for believing that there was a conspiracy against defendant;
instead he was concerned only with Athe behavioral patterns that
would be interpreted back into his personality style.@
Psychiatrist Robert Chapman also testified on behalf of
defendant. Chapman conducted two diagnostic interviews of
defendant and administered the MMPI to defendant. He determined
from a review of defendant=s history that defendant=s mother was a
self-centered and suspicious person, who had abandoned defendant at
eight years old after his father had died. Defendant then lived with a
relative for a number years. Defendant reported that he did not have
any significant history of behavioral problems in school. He quit
school after the tenth grade and married at the age of 17. He had three
grown children, who were all college educated.
Chapman found a consistent thread running through his
interviews: defendant claimed that he was the victim of harassment
and abuse by Athe powers that be,@ which included authority figures
such as the police or anyone with power over him. In defendant=s
mind, there was a conspiracy against him, with the ultimate goal of
driving him away or killing him. Chapman opined that defendant shot
Streicher because defendant Awas in fear of his life, that could be
described as *** mortal fear, that the people, the conspiracy, the 20
years or more of harassment and attempt to do him in had converged
into that moment and there was a situation in which he was in mortal
danger. They were here, they were after me, they have come, they=re
over the wire, they=ve violated the perimeter, there [sic] in my house,
this is it.@ Furthermore, according to Chapman, defendant considered
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the Giesenhagens to be part of the Apowers that be@ because they had
filed a lawsuit against him. It was as though the Giesenhagens
Apsychologically were standing right behind the officer.@
Chapman concluded that defendant suffered from a Adelusional
disorder, persecutory type.@ Defendant=s condition was chronic,
continued after his crimes, and was not lessening. The diagnostic
criteria for this disorder required that the person suffering from it
experience a nonbizarre delusion for a period of at least one month.
Defendant met this criterion because he has believed that there has
been a conspiracy against him for over 20 years. Chapman explained
the difference between a bizarre and nonbizarre delusion. A bizarre
delusion, which defendant did not have, is something that cannot
occur in real life, and would include schizophrenia and thought
disorders, such as Adisorganized thought, hallucinations, and
deteriorating life course function.@ Defendant, in contrast, was able to
raise and support a family, maintain some friends, lead a general law-
abiding life and participate in the fabric of the community as much as
his delusions would allow him. Chapman rejected the diagnosis of
Aantisocial personality disorder@ because he felt that defendant did not
meet the criteria, which required evidence of antisocial behavior in
childhood, as well as criminal acts throughout his life that were
designed to meet his own selfish ends. Chapman concluded that
defendant lacked substantial capacity to appreciate the criminality of
his conduct on the date of the offenses.
Under cross-examination, Dr. Chapman catalogued defendant=s
criminal history and said that it was consistent with his delusional
belief system. In 1967, defendant punched a car dealer after bringing
a car in for service. In 1971, he was convicted of disorderly conduct
for fighting along a road next to the high school. In 1980, defendant
fought with a neighbor, and in 1986, he was sued in two separate
dog-bite casesBone brought by the Giesenhagens and one brought by
Chad Boughan. In 1987, defendant hit his brother with a spade;
defendant then went to the sheriff=s department to tell them of the
incident. In 1998, defendant wanted to fight Richard Hartley, a
neighbor, because defendant had spread oil on the gravel of his
property and he thought that Hartley had reported him over it.
According to Chapman, defendant said that on the day of the
murders, he worked on his farm, returned home, ate dinner and began
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watching television. Defendant told Chapman that he did not Aexpect@
the officer. Defendant never said that he was afraid that he was going
to be shot or that there had been a Abreach of the perimeter.@
Chapman never asked defendant why he shot Officer Streicher.
Conclusions about these things were inferred by Chapman on his
own. Chapman acknowledged that when defendant referred to the
Apowers that be,@ he identified only the police, the sheriff and the
State=s Attorney. Chapman did not record anywhere in his written
report that defendant had told him that the Giesenhagens were part of
the Apowers that be.@ Chapman acknowledged that defendant had told
him that he had been suspended from school Aone or more times@ and
had been in fights as a youth. When asked about the fights, defendant
said that he had been picked on.
Chapman admitted that after his first interview with defendant, he
had no firm diagnosis, but had written down Aparanoid personality@
and not Adelusional disorder.@ He explained that after he discussed the
case with defense lawyers and Dr. Day and reviewed Day=s findings,
he went back to examine defendant again to look for Amissing
information.@ He further explained that he was not convinced at that
point that defendant had an Aorganized delusional system in place@ so
as to rule out the diagnosis of delusional disorder. At the second
examination, defendant was more cooperative. Chapman admitted
that defendant did not specify any incidents close in time to March
22, 2002, when defendant felt that he had been followed, maligned or
harassed. The only incident Chapman recorded involved a time when
a police officer stopped along the road to Aharass@ defendant=s
children and that occurred well over 20 years before. Chapman did
not ask defendant about any of the facts surrounding the murders
themselves during the second interview or why he shot Deputy
Streicher and the Giesenhagens.
Chapman was asked Awhy [defendant] went over to the
Giesenhagens and broke into their home if he was in mortal fear of
his life?@ Chapman responded that defendant Awas in mortal fear
when the officer was there,@ but then added that defendant did not tell
him that, he merely assumed it from the clinical evidence. Chapman
further stated that he was unsure as to whether defendant was actually
in fear of the Giesenhagens. Chapman admitted that he did not ask
defendant why he went over to the Giesenhagen home and initiated
his aggressive action.
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Chapman acknowledged that there were at least two incidents
where defendant either initiated contact with the Apowers that be@ to
elicit their aid or accepted their aid when it was offered. In 1989, the
sheriff brought defendant=s aging mother to defendant=s home
because it was determined that she could no longer live on her own.
The next day, defendant called the sheriff to come to his house to Abe
a witness for him,@ while his mother recited where she wanted to live.
Additionally, between 1986 and 1997, defendant was cordial with
Shane Milroy, the Director of public works for Toulon. Defendant
had some land use violations on his property, and defendant accepted
Milroy=s offer to have a city truck move some items on his land.
Chapman also acknowledged that Milroy was someone who had
power over defendant and could be considered part of the Apowers
that be.@ Chapman also admitted that documents showed that Milroy
had testified on behalf of the Giesenhagens in the dog-bite case.
Chapman opined, however, that defendant could get along with
Milroy because Milroy never confronted defendant with an
authoritative attitude.
Finally, Chapman testified that defendant did not meet the criteria
for antisocial personality disorder. He acknowledged that the criteria
for that disorder required a pervasive pattern of disregarding the
rights of others, occurring from the age of 15, as indicated by three or
more of the following: (1) failure to conform to social norms with
respect to lawful behaviors as indicated by repeatedly performing
acts that are grounds for arrest; (2) deceitfulness as indicated by
repeated lying, using aliases or conning others for personal profit or
pleasure; (3) impulsivity or failure to plan ahead; (4) irritability and
aggressiveness as indicated by repeated physical fights or assaults;
(5) reckless disregard for the safety of self or others; (6) consistent
irresponsibility as indicated by repeated failure to sustain work
behavior or honor financial obligations; (7) lack of remorse as
indicated by being indifferent to or rationalizing having hurt,
mistreated, or stolen from another. Chapman, however, did not
believe that defendant met any of these seven criteria.
The State called psychiatrist Andrew Kowalkowski, who was
appointed by the court to examine defendant as to his sanity at the
time of the murders. Dr. Kowalkowski reviewed the background and
historical information on defendant, the police reports and the
psychological report of Dr. Day. Kowalkowski then conducted an
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interview of defendant, where defendant discussed his personal and
social history. Defendant also related his past criminal history and
contact with law enforcement. Defendant recalled an incident that
occurred when he was in his early twenties and his children were
playing in the front yard. The sheriff pulled his vehicle in front of
defendant=s house and asked why the children were playing in the
yard. Defendant felt that the sheriff was being Aa smart ass.@
Defendant further remembered that he was once charged with
aggravated battery and spent a week in jail. He was also fined for
another incident, which he did not specify. Defendant also recalled a
time when someone did not like the way he had parked his car, so
defendant confronted him with a pick handle. Defendant described an
ongoing problem he had over a large woodpile that he kept on his
property to heat his home with. It had recently been started on fire by
someone, and it was the second time it had happened. He believed
that the first time it had been set on fire by Joseph Tracey, an
employee of the Giesenhagens. Defendant was convicted of assault
and placed on probation as a result of confronting Tracey over the
woodpile situation. Defendant told Kowalkowski that when he
Apissed the wrong way in their mind you came to court.@ Defendant
said that 10 or 15 years earlier he had gone to court over an allegation
that one of his dogs had bitten one of the Giesenhagens= children.
Defendant recounted to Kowalkowski that he had problems with
other neighbors as well. James Rice and his roommate lived in a
rented house next door. According to defendant, they had disturbed
him by spinning donuts in the road and shooting out street lights.
Dr. Kowalkowski asked defendant about the events that occurred
on March 22, 2002. Defendant said that he did not remember
anything that happened on the night in question from the time he sat
down to watch television around 6 p.m. until he was in the hospital
for a gunshot wound inflicted by police. Defendant also said that he
understood the charges that had been brought against him, and when
asked why he was in jail, defendant responded, Ayou tell me, I
suppose it is the powers to be.@ When Kowalkowski asked defendant
to define what he meant by the phrase Athe powers to be,@ defendant
responded that his Aown words were nowhere in the 800 pages of
documents he=s been allowed to review.@ This was the only time that
defendant used the phrase Athe powers to be@ during the interview.
Defendant also acknowledged that he understood that he was on
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probation at the time the murders were committed. When asked if he
knew it was wrong to kill someone, defendant responded, AI never
killed a fly that did not shit on me first.@
Dr. Kowalkowski believed that defendant was exhibiting
Amalingering amnesia@ in claiming not to recall the events that
occurred on the night of the murders. Malingering amnesia is the
intentional production of false or grossly exaggerated physical or
psychological symptoms to avoid prosecution. Kowalkowski noted
that defendant=s long- and short-term memory was intact, pointing out
that defendant had told a hospital nurse that Ahe had shot that bitch in
the hand so she would have a reminder for the next 20 or 30 years
***. She must have bled to death, didn=t know how to make a
tourniquet.@
From his interview of defendant and review of the background
information, Dr. Kowalkowski found no evidence of delusions, fixed
false beliefs, or misinterpretation of external reality. Accordingly,
Kowalkowski did not believe that defendant had any delusional
disorder. Kowalkowski diagnosed defendant as having Aparanoid
personality disorder@ and Aantisocial personality disorder.@ A
personality disorder is demonstrated by a pattern of inner beliefs and
behavior that cause an individual to markedly deviate from the
expectations of society. According to Dr. Kowalkowski, these
disorders are not significant mental disorders or defects; rather, they
are behavior or conduct disorders.
Kowalkowski explained that paranoid personality disorder
requires that a person have a pervasive distrust and suspiciousness of
others, interpreting their motives as malevolent, beginning by early
adulthood and present in a variety of contexts, as indicated by at least
four out of seven listed factors. Defendant satisfied four of the listed
factors. First, he suspects, without sufficient basis, that others are
exploiting, harming or deceiving him. Second, he is reluctant to
confide in others because of unwarranted fear that the information
will be maliciously used against him. Third, he persistently bears
grudges and is unforgiving of insults, injuries and slights. Fourth, he
perceives attacks on his character or reputation that are not apparent
to others and is quick to react angrily or to counterattack.
With respect to the antisocial personality disorder, Kowalkowski
noted the seven criteria used to diagnose it, and that these criteria
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start in late adolescence and continue onward throughout life.
Kowalkowski believed that this personality disorder manifested itself
in defendant=s repeated acts that are grounds for arrests, his
impulsiveness, his irritability and aggressiveness, his repeated failure
to maintain consistent work behavior and his lack of remorse. Thus,
defendant satisfied five of the seven criteria, with only three needed
to make the diagnosis. Kowalkowski further explained that there was
some evidence of this conduct disorder before the age of 15 because
defendant had reported that Aat times he got into the average number
of fights that kids would get into.@ When the doctor asked defendant
to explain what he meant, defendant would not do so.
Dr. Kowalkowski concluded that defendant was not insane at the
time he committed the murders. Defendant did not suffer from a
mental disease or defect that would have caused him to lack
substantial capacity to appreciate the criminality of his conduct.
Paranoid personality disorder and antisocial personality disorder are
major disorders of behavior, not mental disorders. Dr. Kowalkowski
disagreed with the assessments of Drs. Day and Chapman, both of
whom concluded that defendant suffered from a Adelusional disorder,
persecutory type.@ According to Dr. Kowalkowski, the threshold
requirement for that kind of delusional disorder is nonbizarre
delusions. Defendant did not suffer from any nonbizarre delusions,
which entail a false belief. Defendant himself sought out law
enforcement when he need helpBhe called the sheriff for assistance
over the matter of his mother=s guardianship and he asked for aid
from Shane Milroy and was able to work cooperatively with him
even though he was the director of public works for Toulon.
Kowalkowski learned in an interview with defendant=s son that
defendant had mounted a legal defense to the dog-bite case because
of the Aprinciple of the matter@ and no mention was made of a
conspiracy, persecution or a false belief. Kowalkowski noted that in
contrast to relating delusions, defendant consistently related
information about real events that had occurred in the past. These
were not delusions. Instead, defendant had a personality disorderBan
enduring pattern of inner beliefs and behavior that caused him to be
suspicious of others and to interpret their motives as malevolent.
On cross-examination, Dr. Kowalkowski testified that he
premised his finding that defendant had a conduct disorder based on
defendant=s report of getting into fights as a child. Kowalkowski
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acknowledged that defendant had not told him that he had started the
fights. Kowalkowski had assumed that defendant initiated them
because he refused to discuss them further when asked to do so.
When asked about his finding that defendant did not have delusions,
Kowalkowski testified that if defendant thought people were
following him when they were not, this would qualify as paranoia,
not a delusion. When asked if defendant=s belief that the
Giesenhagens had set his woodpile on fire was false, Kowalkowski
replied that he did not know whether the Giesenhagens had set the
woodpile on fire or not and, therefore, did not know if defendant=s
thinking about it was false. Finally, Kowalkowski stated that
defendant likely refused to discuss the crimes because of his paranoid
personality disorder.
In rebuttal, defendant recalled Dr. Chapman, who testified that
defendant does not meet the diagnostic criteria for antisocial
personality disorder because there is not enough information about
defendant=s childhood history to make a retrospective diagnosis of the
disorder. Chapman explained that a reconstruction of defendant=s
childhood cannot be done in this case because both of his parents are
now deceased and therefore cannot be interviewed, school records are
not available, and the only evidence from people who knew him as a
youth indicates that he was reliable, went to school and was a hard
worker. Although defendant told Kowalkowski that he got into the
Ausual boyhood fights,@ it is not known who initiated the fights.
Chapman opined that defendant likely refused to discuss the
particulars of his crimes with Dr. Kowalkowski because of his
delusional disorder.
Under cross-examination, Dr. Chapman admitted that he never
attempted to delve into how many times defendant had gotten into
fights or whether he had initiated them. Chapman also admitted that
defendant had marked Atrue@ to questions about having been
suspended from school and having been sent to the principal=s office
for behavioral problems.
Following closing arguments, the jury was instructed on the
applicable law. It subsequently rejected the insanity defense and the
guilty but mentally ill verdict. Instead, it returned verdicts finding
defendant guilty of three counts of first degree murder, two counts of
attempted first degree murder, one count of disarming a peace officer,
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one count of home invasion, one count of criminal damage to
property and multiple counts of aggravated discharge of a firearm.
The jury acquitted defendant of the armed robbery of Deputy
Streicher, the attempted murder of Officer Rewerts and a count of
aggravated vehicular hijacking.
After admonishments from the court, defendant waived a jury for
both the eligibility and penalty phases of the sentencing hearing. The
defense presented no evidence at the eligibility phase, and the trial
court took judicial notice of the evidence introduced at trial and the
convictions that were entered. The trial court found defendant eligible
for the death penalty because defendant was at least 18 years old and
had murdered a police officer during the course of his official duties,
had murdered two or more persons, and had committed two of the
murders during the course of a home invasion. The matter then
proceeded to the penalty phase of sentencing.
In aggravation, the State first called Larry Bantz, who testified
that he runs a drive-up produce stand located in the front of his house
on Highway 78. On October 21, 2001, defendant drove up to the
stand in a truck, loaded around 500 pounds of potatoes and 100
pounds of onions, and then drove away without paying anything for
the produce. Bantz later learned that defendant was trying to sell the
produce himself. About two weeks later, defendant returned to
Bantz=s produce stand and admitted that he had Awiped [Bantz] out of
potatoes and onions a couple of weeks ago.@ Defendant then gave
Bantz $50. When Bantz explained that the value of the produce was
more than $50, defendant told him that he was not going to pay any
more. Bantz=s father, who was also present, told defendant that Ait
wasn=t right.@ Defendant then told Bantz=s father Ato shut his fucking
mouth or he would shut it for him@ and that he would do what he
wanted, when he wanted. When Bantz informed defendant that he
was going to call the police, defendant responded that it did not make
any difference, they had never done anything to him in the past.
Bantz then told defendant that he did not want defendant coming
back to the stand anymore unless he was going to pay for the
produce. Defendant replied Afuck you,@ and told Bantz that he better
watch his family, which included two children and a pregnant wife. A
couple of days after this confrontation, defendant came by and in
anger yelled at Bantz that he had better watch his family and his
belongings. Sometime later, defendant again drove by Bantz=s home,
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Aglaring@ and Alooking *** like he was checking things out.@
On cross-examination, Bantz testified that he had reported his
confrontation with defendant to the sheriff=s department. Bantz
acknowledged that he told defendant during their encounter that he
owed a total of $64, and that at another point, he told defendant that if
he ever came back he would leave either in Aan ambulance or a body
bag.@
Judy Preston, a dispatcher at the Stark County jail, testified that in
June 2003, she was supervising the facility when defendant was being
held there. In accordance with jail procedures, Preston=s job duties
included opening all inmate mail and scanning it for contraband or
inappropriate remarks. Preston informed defendant of this procedure.
A short time later, Preston opened a letter from defendant to his wife,
with words directed to Preston that stated, Alook inside, bitch@ and
Ayou still have your fat nose in here.@ In another writing, defendant
again referred to Preston as a Abitch@ and stated Ayou still have your
fucking nose in here and your fat ass, too.@ When informed that his
conduct was inappropriate and could result in some of his mail
privileges being revoked, defendant told Preston to Astick it up [her]
ass.@
Robert Winn, a chief deputy with the Stark County sheriff=s
department, testified that his duties included supervising visitation at
the jail. In June 2005, Winn supervised a visit between defendant and
his wife. During the visit, defendant told his wife that the employees
at the jail were all Abastards@ and he Ashould have shot them all.@
Defendant then asked about his dog, as defendant had been allowed
to see the dog on a prior visit. When defendant was informed that no
animals were allowed in the jail, defendant looked at Winn and said
Afuck you.@ Thereafter, defendant repeatedly refused to flush the
toilet in his jail cell, forcing plumbing modifications to be made to
the jail flushing system.
After presenting victim impact testimony, the State rested, and the
defense began its case in mitigation. Defendant introduced the
psychological reports compiled by Day and Chapman. The first
witness called by the defense was Dale King, an Illinois State Police
investigator. King testified that he interviewed Bantz on May 9,
2002, about the theft that occurred at his produce stand. According to
King, Bantz said that he had told defendant that if he ever came back
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he would leave in either Aan ambulance or a body bag.@ Defendant
left, and Bantz never heard from defendant again and did not receive
the remaining $50 that was owed.
The next witness called by the defense was 21-year-old Chaderick
Carlton, who testified that he sometimes helped defendant do his
chores. Carlton described defendant as smart, helpful and a good
friend, who taught him a lot of things, such as how to make repairs.
On cross-examination, Carlton acknowledged that defendant was
handy enough to know how to saw off a 12-gauge shotgun to make it
more deadly.
Mary Hartley testified that she was a neighbor of the defendant
and that she got along fine with him. She attributed this to the fact
that she stayed on Aher side of the road@ and did not let defendant=s
messy property bother her. Sometimes defendant glared at her, but
other times they were able to talk about defendant=s dog-training
activities. Defendant was a hard worker, and when her house was
damaged by fire, defendant was the first person to help her, bringing
her a meal and letting her use a cell phone and a watch. On another
occasion, defendant bought her a dish at an auction.
Walter Bass testified that he worked with defendant from 1988 to
1990 and the two became friends. Bass noted that defendant was
amazingly handy. Defendant helped him on a number of occasions
with personal projects and declined to be paid in return. Bass
believed that defendant was honest because on one occasion
defendant came to his house looking for a way to haul a pony he had
promised to give some child for his birthday. On cross-examination,
Bass testified that defendant had never complained to him that he had
been harassed, conspired against or spied upon.
Michael Keller testified that he has known defendant for about
seven or eight years. They met for coffee on a regular basis, and
defendant helped him with repairs on Keller=s property. Under cross-
examination, Keller admitted that defendant held lengthy grudges and
that a person had to Awalk on egg shells, at times,@ around defendant.
Defendant once became angry at Keller because Keller referred to a
piece of machinery owned by defendant as Aold.@ Keller was aware
that defendant had killed two persons over a grudge, but he still
considered defendant to be a friend.
Eugene Boehle, a building contractor, testified that he hired
-22-
defendant to pour concrete and do odd jobs. Defendant was a good,
dependable worker. Boehle felt that defendant was trustworthy and
noted that on one occasion, in a snowstorm, defendant returned a
tractor he had borrowed because he thought Boehle might need it.
Boehle also noted that a week before the murders he had breakfast
with defendant.
Gregory Knowles testified that he considered defendant a friend,
but not a close friend. Defendant helped Knowles with a number of
projects and did not ask for payment. On cross-examination, Knowles
noted that defendant was easily angered if anyone tried to argue with
him.
Barbara Kraklow and Janine Streitmatter testified that defendant
helped them with projects. Streitmatter said that defendant was good
to her and described him as the Anicest guy you would ever want to
meet.@
David Thompson, defendant=s son, was also called to testify.
David stated that he was 40 years old at the time of trial and that he
had an older brother and sister. He graduated from Bradley
University in 1985, and was currently employed by the Illinois
Department of Transportation as an engineer. Defendant paid for the
college education of each of defendant=s children. David described
his upbringing as normal and said that defendant was a good father,
who taught him to work hard. David also stated that defendant
spoiled David=s daughter Corey with nice gifts. On one occasion,
Corey asked defendant for a pony, and he brought her one on a truck
and delivered it to the backyard.
David testified that 13 years ago he bought defendant a 13-acre
farm because defendant always wanted to be a farmer and he loved
animals. After defendant was fired from his job with the mining
company in the mid-1980s, it was harder for him to make ends meet,
and he became frustrated when the work he did for others was not
fairly compensated.
Under cross-examination, David testified that defendant carried a
weapon on a routine basis, but he never left a weapon lying around
the house, where somebody could grab it and hurt someone
accidentally. Defendant kept three loaded guns in his truck and 10 or
12 guns in his house.
Amy Lewis was the final witness called by defendant. Lewis
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testified that her family owns a farm that is one-half mile from
defendant=s property. She described defendant as a good friend. They
helped each other with making improvements to their respective
properties. Defendant also worked for her husband in her husband=s
building-contractor business, as defendant was a fine carpenter.
Lewis also noted that she and her family went on a number of
camping and fishing trips with defendant, and they always had a good
time with him. Lewis stated that she has regularly visited and written
to defendant while he has been in jail and values defendant=s
friendship. On cross-examination, Lewis testified that there was
never anything bizarre about defendant=s actions and he always
socialized in a normal manner.
After hearing closing arguments, the trial court recessed to
consider its verdict. When it returned, the court recounted the
evidence presented in aggravation and mitigation and then concluded
that there were no mitigating factors sufficient to preclude imposition
of the death penalty. Accordingly, the court sentenced defendant to
death.
ANALYSIS
At the outset, we note that the parties advocate differing standards
of review for assessing a claim that a death sentence is an excessive
punishment in light of the aggravation and mitigation presented at the
sentencing proceeding. The State urges that we review the death
penalty determination for an abuse of discretion, and defendant
contends that we conduct a careful review of the record that is just
short of a de novo review. Consequently, we will briefly discuss the
appropriate standard of review to be employed in this area of our
jurisprudence.
A perusal of our case law shows that we apply neither a pure
abuse of discretion nor a pure de novo standard in deciding the
propriety of a death sentence. Some older decisions of this court
appear to have reviewed capital, excessive-sentencing challenges for
an abuse of discretion. See, e.g., People v. Ward, 154 Ill. 2d 272, 338
(1992); People v. Foster, 119 Ill. 2d 69, 103-04 (1987). 1 More
1
Review of a death penalty sentence for an abuse of discretion is all that
is constitutionally required. The United States Supreme Court has noted that
-24-
recently, however, we have noted that although the abuse of
discretion standard pertains to sentencing determinations in general,
we are less deferential to the trial court in cases involving a sentence
of death (People v. Williams, 192 Ill. 2d 548, 576 (2000)). Yet,
despite the diminished deference when a sentence of death is
imposed, a capital sentencer=s decision will not be lightly overturned
where it is amply supported by the record. See People v. Mertz, 218
Ill. 2d 1, 54 (2005), citing People v. Taylor, 166 Ill. 2d 414, 432
(1995); see also People v. Burton, 184 Ill. 2d 1, 35-36 (1998).
Given the qualitative difference between death and imprisonment
as penalties, we reject the notion that a pure abuse of discretion
standard of review should obtain in capital cases. Instead, we believe
that it is appropriate to give some deference to the trial court or jury
on matters involving factual and credibility determinations (see
People v. Ballard, 206 Ill. 2d 151, 188-89 (2002)), while at the same
time subjecting the record to intense scrutiny to ensure that only
those deserving of the ultimate penalty are so sentenced. In doing so,
we are guided by the following well-settled principles and standards.
The decision made at the second stage of a death penalty hearing
is, and always has been, a process of evidentiary balancing. Mertz,
218 Ill. 2d at 54. It requires the trier of fact to measure the evidence
in aggravation against the evidence in mitigation. See Mertz, 218 Ill.
2d at 54; Ballard, 206 Ill. 2d at 188; Taylor, 166 Ill. 2d at 432. After
a defendant is found death eligible, the trier of fact is then free to
consider a myriad of factors to determine whether death is the
appropriate punishment. Simmons v. South Carolina, 512 U.S. 154,
the Constitution requires Ameaningful appellate review, and that this
standard is satisfied in a Aweighing@ state, such as Illinois, by an appellate
court=s considering Awhether the evidence is such that the sentencer could
have arrived at the death sentence that was imposed.@ Clemons v.
Mississippi, 494 U.S. 738, 748-49, 108 L. Ed. 2d 725, 738, 110 S. Ct. 1441,
1448 (1990).
-25-
163, 129 L. Ed. 2d 133, 142, 114 S. Ct. 2187, 2193 (1994);
California v. Ramos, 463 U.S. 992, 1008, 77 L. Ed. 2d 1171, 1185,
103 S. Ct. 3446, 3457 (1983). A defendant=s character, prior criminal
history, mental capacity, background, age, and future dangerousness
are just a few of the factors that a trier of fact may consider in fixing
the appropriate punishment. Mertz, 218 Ill. 2d at 56, citing Simmons,
512 U.S. at 163, 129 L. Ed. 2d at 142, 114 S. Ct. at 2193-94. Because
it is a weighing process for the trier of fact, which has the superior
opportunity to assess firsthand the credibility and believability of the
witnesses on the stand, we will not lightly overturn the trier of fact=s
decision. See Ballard, 206 Ill. 2d at 188-89. While keeping this in
mind, we will conduct our own thorough and careful review,
considering the circumstances of the crimes and the character of the
defendant to determine whether the death penalty is appropriate.
People v. Chapman, 194 Ill. 2d 186, 253-54 (2000).
As we recently stated in both Mertz and Ballard,
A >In determining whether a sentence of death is proper,
we must consider >the character and record of the individual
offender and the circumstances of the particular offense.=
People v. Pitsonbarger, 142 Ill. 2d 353, 388 (1990), citing
Woodson v. North Carolina, 428 U.S. 280, 304, 49 L. Ed. 2d
944, 961, 96 S. Ct. 2978, 2991 (1976). >[E]ach capital case is
unique and must be evaluated on its own facts, focusing on
whether the circumstances of the crime and the character of
the defendant are such that the deterrent and retributive
functions of the ultimate sanction will be served by imposing
the death penalty.= People v. Johnson, 128 Ill. 2d 253, 280
(1989). >A death sentence is appropriate if the sentence is
commensurate with the seriousness of the offenses and gives
adequate consideration to relevant mitigating circumstances.=
Pitsonbarger, 142 Ill. 2d at 388.@ Mertz, 218 Ill. 2d at 55,
quoting Ballard, 206 Ill. 2d at 179.
When requested to do so, this court reviews the evidence in a
capital sentencing hearing to determine whether death is the
appropriate penalty, even in the absence of trial error. Mertz, 218 Ill.
2d at 54. This is consistent with the legislative directive that this
court may overturn a death sentenceBirrespective of any procedural
grounds or trial errorBif this court finds that the death sentence is
-26-
Afundamentally unjust as applied to the particular case.@ 720 ILCS
5/9B1(i) (West 2004).
I. Excessive-Sentence Argument
With these principles in mind, we turn now to defendant=s
contention that his death sentence is excessive. Defendant claims that
the death penalty is inappropriate because he acted under an extreme
mental disturbance at the time of the murders and he had no
significant prior criminal history.
Section 9B1(c) of the death penalty statute provides that the trier
of fact shall consider any aggravating and mitigating factors which
are relevant to the imposition of the death penalty. 720 ILCS 5/9B1(c)
(West 2004). Aggravating factors may include, but need not be
limited to, those set forth in subsection (b), which include that the
defendant murdered a peace officer engaged in his official duties, that
the defendant murdered two or more persons and that the defendant
murdered someone during the course of a home invasion. 720 ILCS
5/9B1(b), (c) (West 2004). Listed among the statutory mitigating
factors that the court may consider, along with others not listed, are
that (1) the defendant has no significant history of prior criminal
activity and (2) the murder was committed while the defendant was
under the influence of extreme mental or emotional disturbance,
although not such as to constitute a defense to prosecution. 720 ILCS
5/9B1(c)(1), (c)(2) (West 2004). If the trier of fact determines beyond
a reasonable doubt that one or more of the factors set forth in
subsection (b) exists at the first stage of the sentencing proceeding,
the trier of fact shall then consider any aggravating and mitigating
factors as indicated in subsection (c) at the second stage, known as
the penalty phase of the proceeding. 720 ILCS 5/9B1(f), (h) (West
2004). If the trier of fact determines that there are no mitigating
factors sufficient to preclude the imposition of the death sentence, the
court shall sentence the defendant to death. 720 ILCS 5/9B1(h) (West
2004).
The mere existence of mitigating evidence does not preclude
imposition of the death penalty. Burton, 184 Ill. 2d at 34. It is
presumed that the circuit court considered any mitigating evidence
before it, absent some indication to the contrary other than the
sentence itself. Burton, 184 Ill. 2d at 34. Furthermore, a sentencer
-27-
may consider, in aggravation, evidence of a defendant=s prior
misconduct, even though the conduct may not have resulted in
prosecution or conviction. People v. Davis, 205 Ill. 2d 349, 367
(2002). If the aggravation is believed, the trier of fact may find that a
defendant=s mitigation evidence was insufficient to overcome the
aggravating factors. Davis, 205 Ill. 2d at 368-69.
The trial court in the present case considered all of the evidence
and its plausibility, the testimony of the witnesses and their
credibility, and the law that applies to the decision of whether or not
the death penalty should be imposed. Additionally, the court
considered the nature and circumstances of the offenses committed,
the history, character and condition of defendant, as well as whether
or not defendant could be restored to useful citizenship.
Specifically, the trial court cited in aggravation the serious crimes
that were committed by defendant while armed with a sawed-off
shotgun, a weapon that has no legitimate purpose. Additionally, the
court noted that defendant had committed past crimes against others,
both charged and uncharged, and that he was on criminal probation
and in violation of it at the time the offenses were committed on
March 22, 2002. The court further noted that defendant had sought to
demonstrate that he acted out of a paranoid and delusional fear, or
some other mental or psychological ailment. The court found,
however, that defendant=s acts were not the product of insanity or any
kind of mental or psychological malady. Instead, the court found that
defendant had acted out of hatred for those who served in the
community as law enforcement officers and out of hatred and
bitterness for neighbors who crossed his path. Moreover, defendant
had continued to hurt, insult, threaten and intimidate others even
while incarcerated, and therefore continued to pose a threat to
society.
The trial court acknowledged the evidence offered in mitigation
showing defendant=s talents, good deeds, capacity for normal
friendships, his childhood, and his concern for his family. The court
found, however, that the mitigation was outweighed by the
overwhelming evidence in aggravationBspecifically, Aevidence of
defendant=s criminal intent, violent revenge, hatred of people and
authority, threats and intimidation of citizens of [the] community and
the apparent belief that [defendant] with a sawed off shotgun in hand
-28-
has the right to determine that those who sue him or disagree with
him or whose duty it is to arrest him shall die.@ Finally, the court
looked for any evidence of remorse, no matter how remote, but was
unable to find any. Instead, the court found that defendant=s
comments, character and attitude suggested that, if given the
opportunity, defendant would kill again for Awhatever unjustified
purpose he determined.@
After careful review, we conclude that the finding that defendant
did not act under an extreme mental disturbance at the time of the
murders is amply supported by the record. Dr. Kowalkowski testified
that defendant did not suffer from any delusional disorder. Rather,
defendant suffered from two behavioral disordersBparanoid
personality disorder and antisocial personality disorder. These were
not significant mental disorders. Kowalkowski explained that some of
the key ingredients of a paranoid personality disorder included (1)
suspecting others of harming, exploiting or deceiving without a
sufficient basis to do so, (2) reluctance to confide in others because of
unwarranted fear that the information will be maliciously used, (3)
persistently bearing grudges and having an intolerance for insults,
injuries and slights, and (4) perceiving attacks on one=s character that
are not apparent to others and being quick to react angrily or
counterattack. These indicia were well supported by the testimonial
evidence at trial that came from defendant=s neighbors and
acquaintances, which indicated that defendant held long-standing
grudges, did not like to be argued with, and became upset if things
did not go his way. Dr. Day, defendant=s own expert, also believed
that defendant had a paranoid personality disorder. Dr. Kowalkowski
did not find any evidence of delusions, noting that defendant=s
reactions were all based on real events and his reactions were
explained by his personality disorders.
In contrast to Dr. Kowalkowski, the two defense expertsBDrs.
Chapman and DayBdid believe that defendant had a delusional
disorder. Specifically, Chapman testified that defendant shot Deputy
Streicher because defendant was in Amortal fear@ for his own life
based on a A20-year conspiracy,@ and that it was as though the
Giesenhagens Apsychologically were standing right behind the
officer.@ However, Chapman testified on cross-examination that he
merely assumed these things. Moreover, he was not sure that
defendant was actually in fear of the Giesenhagens and he never
-29-
asked defendant why he initiated the aggressive action toward them.
We believe that the suggestion that defendant acted out of a
delusional Amortal fear@ is belied by the overwhelming evidence in
the record to the contrary. Defendant never stated that he was afraid
of the police or the Giesenhagens. Instead, defendant explained that
he murdered the Giesenhagens because he had already killed a deputy
Aso why not get them.@ In other words, defendant was already looking
at a life sentence, at a minimum, for killing a police officer, so he felt
free to kill two of his neighbors against whom he held a grudge.
Defendant himself explained that he killed the Giesenhagens because
he wanted to punish them for having filed a lawsuit against him and
they Ahad been thumbing their nose at [him] for 15 years.@ None of
this, of course, indicates Amortal fear@ even in defendant=s mind.
Rather, it shows that defendant was motivated by revenge and hate
for neighbors that had crossed him. Defendant=s disdain for the police
likely stemmed from an incident that occurred many years before
when a police officer stopped to ask about his children playing in the
front yard and defendant thought the officer was Abeing a smart ass.@
We find nothing particularly significant about defendant=s use of the
phrase Athe powers to be@ to describe the police.
We further note that the evidence showed that defendant knew
that Streicher had come to his door because defendant had not paid
the small amount of court costs that were assessed on his assault
conviction. Defendant=s claim that Streicher pulled a weapon on him
appears to be a self-serving attempt by defendant to lessen his
culpability rather than a product of a delusion. In any event, the claim
was contradicted by the eyewitness testimony of James Batey, who
testified that the deputy stood outside defendant=s door with his hands
at his side just before the shooting.
Defendant=s own actions and words also contradict any notion
that he was afraid of police officers or authority. Instead, defendant=s
actions and comments indicate that he had a disdain for police and
authority. On various occasions, defendant actually sought out police
to harass them, tailgating and swerving at them in his vehicle. When
Chief Deputy Dison came to defendant=s house two months before
the murders and cordially explained that defendant could post bond
on the outstanding warrant against him by simply coming to the
station within the next week, defendant replied, Ayou will have to
-30-
come back and get me.@ Thereafter, defendant did not pay the $100
bond, but instead armed himself with a sawed-off shotgun, which he
kept within easy reach in his living room. After killing the
Giesenhagens, defendant drove slowly through town, seeking out
other police officers to harm.
Defendant=s comments to Larry Bantz at the time of their
confrontation at the produce stand also show that defendant had no
fear of the police department. When Bantz informed defendant that
he was going to call the police, defendant responded that it would not
make any difference because Athey had never done anything to him in
the past.@
The evidence further showed that defendant accepted and sought
out the aid of police and those in authority when it suited him.
Defendant called the Stark County sheriff for assistance with his
mother=s guardianship. Moreover, defendant asked for and accepted
aid from Shane Milroy, working cooperatively with him, even though
Milroy was a public official and had been a witness for the
Giesenhagens in their dog-bite case. Finally, Lonny Dennison, the
Stark County sheriff for 20 years, testified that he had Adealings with
defendant that went real well,@ but if things did not go defendant=s
way, then he would be upset. Dr. Kowalkowski pointed to these
incidents of cooperation with law enforcement as an indication that
defendant did not have nonbizarre delusions as the defense experts
claimed, but was instead tied into reality, always relating real events,
albeit interpreting them through his paranoid and antisocial
personality disorders. Under the circumstances, we see no reason to
disturb the trial court=s finding that defendant did not act under a
significant mental or psychological impairment at the time of the
offenses at issue.
We also note that even if defendant did have a significant
psychological disorder, we would still find that the sentencing court
in this case properly concluded that the mitigation evidence was not
sufficient to preclude the imposition of the death penalty when
weighed against the aggravating evidence. This court has repeatedly
held that evidence of a defendant=s mental or psychological
impairments may not be inherently mitigating, or may not be
mitigating enough to overcome the evidence in aggravation. Ballard,
206 Ill. 2d at 190 (death penalty affirmed despite evidence that the
-31-
defendant suffered from a bipolar disorder that is characterized by
extremes of mood and sometimes Adelusions and hallucinations@);
People v. Macri, 185 Ill. 2d 1, 66 (1998) (prosecutor could properly
argue in aggravation that the defendant=s antisocial personality
disorder showed his violent nature); People v. Madej, 177 Ill. 2d 116,
139 (1997) (the defendant sought to show at a postconviction
proceeding that his substance abuse negatively affected his
psychological and neurological health, but was ultimately
unsuccessful on his petition because mitigation evidence of
defendant=s mental health does not necessarily preclude a death
sentence); People v. Tenner, 175 Ill. 2d 372, 382 (1997) (defense
counsel was not ineffective where he failed to obtain a mental health
evaluation because such evidence is not inherently mitigating); see
also Taylor, 166 Ill. 2d at 432 (death penalty was appropriate despite
defendant=s mental conditionBschizo-typal personality
disorderBwhich resulted in the defendant hearing voices); People v.
Christiansen, 116 Ill. 2d 96, 129 (1987) (death penalty appropriate
despite mitigating evidence of emotional and mental disturbance,
alcoholism, drug addiction, poor health, deprived childhood, and
remorse); People v. Montgomery, 112 Ill. 2d 517, 533 (1986) (death
penalty appropriate despite an extreme mental or emotional
disturbance). A judge or jury considering evidence of this nature at
sentencing might view the information as either mitigating or
aggravating, depending of course, on whether the individual hearing
the evidence finds that it evokes compassion or demonstrates possible
future dangerousness. Ballard, 206 Ill. 2d at 190; Macri, 185 Ill. 2d at
66. Furthermore, even if a defendant=s psychological and neurological
impairments are considered as mitigating factors, such evidence does
not preclude imposition of a death sentence when that evidence is
outweighed by aggravating evidence. Ballard, 206 Ill. 2d at 190;
Madej, 177 Ill. 2d at 139-40; Taylor, 166 Ill. 2d at 432-33.
Here, the trial court specifically found that defendant remained a
threat to society, and that if given the opportunity, he would continue
to be violent. We believe that this conclusion was supported by
defendant=s shocking lack of remorse, his threats to others in the
community and his statements that he regretted not being able to
shoot jailhouse employees and that Amore people were going to get it
when he got out.@ With respect to his lack of remorse, defendant
chided 10-year-old Ashley Giesenhagen for not closing her eyes
-32-
when defendant gunned down her parents in the child=s presence.
Even though defendant had shot Ashley=s mother with a sawed-off
shotgun at close range, causing massive injuries, defendant scolded
the victim for not knowing how to fashion a tourniquet, adding Abut
the bitch died anyway.@ Defendant was also rude and insulting to
jailhouse staff, and indicated that he would have liked to kill them
too. Given that a defendant arrested for a capital crime has every
incentive to behave flawlessly while incarcerated because good
behavior might cause a sentencing authority to spare his life (Mertz,
218 Ill. 2d at 90; Ballard, 206 Ill. 2d at 189), it is truly remarkable
that defendant continued to be abusive and belligerent. It indicates
that the trial court justifiably concluded that defendant remained a
serious danger to others, even in a prison setting, and that executing
him was the only means of eliminating the threat to prison staff or
other inmates. See Mertz, 218 Ill. 2d at 90, citing Simmons, 512 U.S.
at 165 n.5, 129 L. Ed. 2d at 143 n.5, 114 S. Ct. at 2194 n.5.
Defendant contends that his prior criminal history was minor and
should be considered a mitigating factor. We agree that this is an
appropriate mitigating factor to consider. However, it is presumed
that the trial court considered any mitigating evidence before it,
absent some indication to the contrary other than the sentence itself.
Burton, 184 Ill. 2d at 34. Furthermore, the sentencing authority in a
capital case may consider, in aggravation, evidence of a defendant=s
prior misconduct, even though the conduct may not have resulted in
prosecution or conviction. Davis, 205 Ill. 2d at 367, quoting People v.
Smith, 176 Ill. 2d 217, 255 (1997). If the aggravation is believed, the
trier of fact may find that a defendant=s mitigation evidence was
insufficient to overcome the aggravating factors. Davis, 205 Ill. 2d at
368-69, quoting People v. Flores, 153 Ill. 2d 264, 296 (1992). Here,
the trial court considered defendant=s prior misconduct, both charged
and uncharged, and concluded that it, along with all of the other
aggravating evidence, outweighed the mitigating evidence. This was
proper under Davis, 205 Ill. 2d at 365-71.
Specifically, the court had before it evidence that aside from the
violent crimes of March 22, 2002, defendant threatened Jason Rice
with a club, threatened Joseph Tracey with a hammer, later verbally
assaulted Tracey in the grocery store, blocked intersections around
Toulon, tailgated police, threatened to kill Jerry Abbed and leave his
body in place where Ano one would find him,@ and stole produce from
-33-
Bantz=s farm stand and then threatened Bantz=s family. The court also
heard testimony that defendant had a number of physically violent
outbursts from 1967 through 1998, in which he attacked various
neighbors, a car dealer and a sibling.
Defendant further argues that his positive life
accomplishmentsBsome good deeds, hard work, concern for his
family, helping his children through school and normal
friendshipsBshould be considered as some evidence in mitigation to
tip the scale in his favor. The trial court, however, carefully
considered all of this evidence and concluded that it was outweighed
by the aggravating circumstances mentioned above, which included
the nature of the crimes committed on March 22, 2002, taken together
with defendant=s long-standing history of threats and intimidation
against citizens of the community and his unrepentant belief that he
has a right to shoot people with a sawed-off shotgun who disagree
with him or sue him. Under the circumstances, we find that the trial
court=s conclusion that the mitigating evidence was insufficient to
preclude imposition of the death penalty in light of the aggravating
evidence was amply supported by the record.
Defendant cites People v. Carlson, 79 Ill. 2d 564 (1980), People
v. Buggs, 112 Ill. 2d 284 (1986), People v. Johnson, 128 Ill. 2d 253
(1989), and People v. Leger, 149 Ill. 2d 355 (1992), cases in which
the death penalty was vacated as excessive, and argues that there is
no basis on which those cases may be distinguished from the present
one. Defendant quotes People v. Thomas, 178 Ill. 2d 215, 249-50
(1997), as distilling from the foregoing line of cases the factors this
court considers most significant in considering whether a death
sentence is excessive: Athe circumstances surrounding the murder
generally involved the defendant acting under an extreme mental or
emotional disturbance. [Citations.] In addition, the defendants in
those cases generally led blameless lives with little contact with the
criminal justice system.@
The State argues that the cases cited by defendant are
distinguishable. First, in all four cases the murders were accompanied
by sudden, explosive outbursts. Here, defendant=s conduct was an
amplification of a violent, mean and confrontational attitude for
which defendant was well known in the community. Second, Buggs
and Carlson rested on the crucial fact that there were two statutory
mitigating factors in play for defendants: they acted under extreme
-34-
mental or emotional disturbances and they had no significant prior
criminal history. Here, defendant had a behavioral disorder, not a
mental disorder, and had not led a blameless life. Third, in Buggs and
Carlson, defendants found themselves at the center of Aunique and
tragic@ events which were not likely to be repeated in the future: each
defendant was experiencing unique and complicated marital
problems. In contrast, defendant here was not confronted with
Atragic@ events; rather, defendant was confronted with routine, even
mundane events in that he was served with a warrant that he could
have satisfied by paying $100 and he had been a defendant in a dog-
bite case 15 years earlier. Fourth, each case is distinguishable from
the present case on any one of a number of salient pointsBlike
military service, a show of remorse, a relatively blameless life, or
severe marital difficulties.
Defendant urges a comparison of this case with the facts of
Carlson, Buggs, Johnson and Leger, but we note that comparative
proportionality review in death penalty cases is not required by the
United States Constitution, 2 and it is not a feature of the capital
sentencing process under the Illinois Constitution (Williams, 192 Ill.
2d at 576; People v. Cole, 172 Ill. 2d 85, 115 (1996); People v.
Palmer, 162 Ill. 2d 465, 491 (1994)). Nonetheless, on a number of
occasions this court has indicated that the principles enunciated in
these cases may be helpful in determining whether the death penalty
is appropriate, while emphasizing that each case must ultimately be
evaluated on its own facts. See, e.g., People v. Heard, 187 Ill. 2d 36,
2
In Pulley v. Harris, 465 U.S. 37, 44, 79 L. Ed. 2d 29, 36, 104 S. Ct.
871, 875-76 (1984), the United States Supreme Court determined that the
eighth and fourteenth amendments do not mandate proportionality review
by a state supreme court to prevent the death penalty from being Awantonly
and freakishly@ imposed. The Court found that it is enough if the statutory
scheme limits jury discretion by requiring the jury to find at least one of a
list of aggravating circumstances beyond a reasonable doubt before
imposing the penalty, and thoughtful and effective appellate review is
conducted, focusing on the circumstances present in the particular case.
Pulley, 465 U.S. at 53, 79 L. Ed. 2d at 42, 104 S. Ct. at 881. Moreover, as
previously noted, the appellate review requirement is satisfied by a
reviewing court=s consideration of Awhether the evidence is such that the
sentencer could have arrived at the death sentenced that was imposed.@
Clemons, 494 U.S. at 748-49, 108 L. Ed. 2d at 738, 110 S. Ct. at 1448.
-35-
85-86 (1999); Palmer, 162 Ill. 2d at 491; Johnson, 128 Ill. 2d at 280.
Under the circumstances presented here, we do not believe that the
Carlson line of cases requires that the trier of fact=s decision be
overturned and defendant=s death sentence be vacated.
In Carlson, the defendant had led a crime-free life up to the date
that he shot and killed his ex-wife, which was three months after they
divorced. They had planned to remarry, but the ex-wife told the
defendant that she had a new boyfriend. When police tried to arrest
the defendant at a bar several hours after the shooting, the defendant
shot and killed an officer. The defendant later claimed that he had
been attempting suicide when the officer was shot. The defendant had
been suffering from severe mental and emotional problems before the
shootings. He had also had two heart attacks and was undergoing a
slow grieving process related to the loss of affection of his wife.
Shortly after he shot his wife, the defendant sought to make
provisions for his son. This court found that these circumstances Ado
not bespeak a man with a malignant heart who must be permanently
eliminated from society.@ Carlson, 79 Ill. 2d at 590.
In Buggs, the defendant and his wife had been arguing about her
infidelity, when the wife told the defendant that he was not the father
of their two sons. At that point, the defendant poured gasoline on his
wife and lit the house on fire. The defendant=s wife and son were
killed in the blaze. The court noted that the defendant had no prior
criminal history (though there was evidence presented that the
defendant had previously stabbed someone and had fired a shot
between his son=s legs during an argument with his wife), he had
served his country honorably in the military for 21 years, and it was
the marital disharmony that had triggered the tragic sequence of
events. This court vacated the defendant=s death sentence under the
authority of Carlson. Buggs, 112 Ill. 2d at 293-95.
In Johnson, the defendant was unjustly fired from a job and
returned to his former place of employment for a final paycheck only
to be told that there was no paycheck for him. The defendant shot and
killed one former coworker and wounded two others. On the day of
the offenses, the defendant had used alcohol, cocaine, and marijuana
laced with PCP. This court found that the deterrent purposes of the
death penalty would not be served by putting the defendant to death
because he had led a relatively blameless life before the murder, he
was not known to be violent or untruthful, the crime was an
-36-
aberration not likely to be repeated, he had only one misdemeanor
conviction for which he successfully completed supervision, he had
expressed remorse to the victims and their families, and had acted
under a Agood deal of stress, which in his mind may have been equal
to that suffered by the defendants in Buggs and Carlson.@ Johnson,
128 Ill. 2d at 278-81.
In Leger, the defendant shot and killed his estranged wife five
days before their divorce became final. Later that same night, the
defendant shot his former wife and her new husband. The defendant
had suffered from a chronic and painful injury. On the date of the
offenses, the defendant was taking 10 different medications, had a
drinking problem and had a history of blackouts. Moreover, the
defendant had expressed remorse for his crimes, his prior convictions
were related to his marriage problems, he got along well with people
in the community and did not display any violence toward them, and
had honorably served in the armed forces for 32 years. Based on all
the circumstances and the fact that the violent acts were triggered by
the defendant=s emotional disturbance over his marital problems, the
court reduced the sentence to natural life. Leger, 149 Ill. 2d at 412-
14.
The foregoing cases can be easily distinguished from the present
one. The criminal conduct of the defendants in those cases was
triggered by provocative events related to stressful marital or
employment situations that led to sudden, explosive outbursts. In the
present case, defendant erupted over a routine event only because he
was filled with hate and disdain for authority and because he held a
grudge against his neighbors who had sued him some 15 years
earlier. Moreover, although the present murders were uniquely
extreme in terms of defendant=s past conduct, defendant had a history
of violent and threatening behavior towards others in the community,
unlike the defendants in the above-mentioned cases. The instant
crimes are also distinguishable from the ones mentioned above in
terms of severity. Defendant killed three persons, who were wholly
unrelated to him and who had not provoked him in any way near the
date of the offenses. He was also convicted of the attempted murder
of two more persons. The Giesenhagens= only dealings with the
defendant appear to be limited to a dog-bite incident that occurred
some 15 years earlier. Additionally, the fact that defendant kept a
sawed-off shotgun within easy reach in his living room after telling
police they would have to Acome back and get [him]@ indicates some
-37-
level of forethought.
But perhaps of greatest significance in distinguishing the Carlson
line of cases is the shocking lack of remorse and rehabilitative
potential of defendant. As previously mentioned, defendant was only
sorry that he had not killed more peace officers. There is also no
indication that he has ever relented from his belief that he has a right
to shoot people at close range with a sawed-off shotgun if they Ashit
on [him] first.@ In contrast to Carlson and its progeny, where the
murders were the result of tragic, one-time events that were not likely
to be repeated because of the remorse of the offenders and their
general character, defendant had a long history of threats and
violence against others in the community. The trial court specifically
found that if given an opportunity, defendant Awould continue right
where he left off.@ Additionally, defendant cannot be ruled out as a
future threat to society even while incarcerated. Defendant=s lack of
remorse and future dangerousness clearly sets him apart from the
offenders in Carlson and subsequent cases that have followed its
lead.
Instead, we find that the facts of the present case are closer to
those in People v. Heard, 187 Ill. 2d 36 (1999), and People v. Cole,
172 Ill. 2d 85 (1996), where death sentences were affirmed over
excessive-sentencing challenges. In Heard, the defendant shot three
persons to deathBhis ex-girlfriend, her boyfriend and another person
at the scene. The murders were the result of an obsession the
defendant had with his ex-girlfriend that resulted in a pattern of
harassment and stalking. The defendant maintained that he had been
operating under an emotional disturbance at the time of the murders,
and he presented extensive evidence in mitigation showing that he
was a hardworking, caring and nonviolent person, who had helped
others during financial and emotional crises. The defendant also had
no significant criminal history. Heard distinguished the Carlson line
of cases by noting that the murders in the case before it were the
Aculmination of an escalating history of violence by defendant against
the victims, not a spontaneous reaction to information such as the
infidelity of a spouse.@ Heard, 187 Ill. 2d at 88. Heard found
unpersuasive the defendant=s claim that murdering someone because
of an obsession should be considered mitigating. Heard, 187 Ill. 2d at
88-89.
-38-
In Cole, the defendant killed the mother and brother of his ex-
girlfriend with a shotgun. The shootings were triggered by the
defendant=s obsession with his ex-girlfriend after she moved out of
their shared residence and obtained an order of protection against the
defendant. This court concluded that the defendant=s conduct was
more akin to stalking than to the sudden, explosive outbursts found in
Carlson, Buggs, Johnson, and Leger. Cole, 172 Ill. 2d at 111.
Similarly, we find that defendant=s conduct was the culmination
of an escalating pattern of violence against citizens in the community
of Toulon, and not the result of a spontaneous reaction to information
such as the infidelity of a spouse. The trial court=s assessment that
defendant did not suffer from a psychological malady was also well
supported by the record, as was the determination that defendant
posed a continuing threat to society. Additionally, even if defendant
had established the mitigating circumstance that he acted under an
extreme mental disturbance, we would not view it as sufficient to
overcome the aggravating circumstances in this case. Accordingly,
we reject the contention that the cases cited by defendant require that
his death sentence be vacated. After careful review of the
circumstances of the crimes in this case and the character of
defendant, we conclude that the death penalty is the appropriate
penalty in this case and that its imposition was not fundamentally
unjust.
II. Constitutional Issues
Citing Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435,
120 S. Ct. 2348 (2000), and Ring v. Arizona, 536 U.S. 584, 153 L.
Ed. 2d 556, 122 S. Ct. 2428 (2002), defendant next argues that the
Illinois death penalty statute is unconstitutional because the State is
not required to prove beyond a reasonable doubt that there are no
mitigating factors sufficient to preclude the death sentence. We
recently rejected the same argument in Mertz and Ballard, and we
decline to revisit the issue in any great detail.
In Ballard, this court noted that A[t]he second stage of Illinois
capital sentencing proceedings clearly bears a marked resemblance to
the balancing of factors in which trial courts traditionally engage in
determining what sentence to impose within a statutory range, a
practice of which Apprendi explicitly approved. Apprendi, 530 U.S.
-39-
at 481, 147 L. Ed. 2d at 449-50, 120 S. Ct. at 2358.@ Ballard, 206 Ill.
2d at 204. In Mertz, we stated:
AIf the weighing of factors in the second stage of capital
sentencing were to be considered a factual finding, one would
logically have to conclude that standard sentencing
procedures undertaken daily by hundreds of courts across this
state also partake of fact-finding which would fall within the
purview of Apprendi. We reject that notion. See also Davis,
205 Ill. 2d at 375 (Apprendi does not apply to the
consideration of mitigating and nonstatutory aggravating
factors at the second stage of capital sentencing, because
consideration of those factors >cannot increase the penalty for
the crime= beyond the statutory maximum of death established
at the conclusion of the eligibility phase).@ Mertz, 218 Ill. 2d
at 93-94.
In Ring, the constitutional infirmity noted by the Supreme Court
was that the Arizona death penalty statute removed the right to have a
jury make the determination of facts required to establish the
defendant=s eligibility for a death sentenceBspecifically, the finding of
aggravating factors. Ring, 536 U.S. at 597, 153 L. Ed. 2d at 569, 122
S. Ct. at 2437. In contrast, Illinois= death penalty procedure honors a
defendant=s right to have a jury at all stages of the sentencing
proceeding. But with respect to the issue defendant raises here, we
note that Ring only discussed the extension of Apprendi=s reasonable
doubt standard to the finding of an aggravating factor necessary for
the imposition of the death penalty. Ring, 536 U.S. at 597, 153 L. Ed.
2d at 569, 122 S. Ct. at 2437. Ring specifically noted that the
defendant there was not making a claim with respect to mitigating
circumstances and that Apprendi had drawn a distinction between
facts in aggravation and facts in mitigation. See Ballard, 206 Ill. 2d at
204. This suggests that an Apprendi challenge would be unsuccessful
if raised in a mitigating-factor context like the present case. Ballard,
206 Ill. 2d at 204-05. We further note that in the wake of Ring, the
Arizona statutory scheme has been amended to provide for essentially
the same death penalty procedure employed by Illinois. See Ariz.
Rev. Stat. '13B703 (LexisNexis 2005). Consistent with our previous
holdings, we conclude that the rules announced in Apprendi and Ring
are not applicable to the second phase of a death penalty proceeding
in Illinois because the trier of fact has already found beyond a
-40-
reasonable doubt the necessary aggravating factor for imposition of
the death penalty and therefore cannot increase the penalty beyond
the statutory maximum of death.
Defendant=s final argument is that AIllinois= death penalty is
arbitrarily applied, based on race, geography, procedural evolution,
discretion and mistakes of fact.@ We rejected the identical argument
in Mertz. See Mertz, 218 Ill. 2d at 95-98. Thus, we need not consider
it further other than to mention that defendant does not argue that
race, geography, procedural evolution or prosecutorial discretion
actually played a part in the decision to seek the death penalty in his
case, or in the court=s decision to impose it on him. Finally, we are
confident that the discretion exercised in defendant=s case was not
exercised in an arbitrary and capricious manner.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of
Stark County is affirmed. We direct the clerk of this court to enter an
order setting September 12, 2006, as the date on which the sentence
of death, entered by the circuit court of Stark County, shall be carried
out. Defendant shall be executed in the manner provided by law. 725
ILCS 5/119B5 (West 2004). The clerk of this court shall send a
certified copy of the mandate in this case to the Director of
Corrections, the warden of Tamms Correctional Center, and the
warden of the institution where defendant is confined.
Affirmed.
JUSTICE KILBRIDE took no part in the consideration or
decision of this case.
JUSTICE FITZGERALD, specially concurring:
Based on the facts and the evidence presented at the sentencing
hearing, I agree with the majority that the trial court=s imposition of
the death penalty in this case was appropriate and not fundamentally
unjust. I write separately because I believe that, while the majority
reached the correct decision, it did not apply the proper standard of
review.
-41-
The majority advocates a standard of review which is neither
Apure abuse of discretion nor a pure de novo standard.@ Slip op. at 24.
This standard is derived from the principle that, in death penalty
cases, this court should give some deference to the fact and
credibility determinations of the fact finder, while at the same time
subjecting the record to intense scrutiny. I agree that the fact finder=s
assessment of the evidence and credibility of the witnesses is entitled
to some deference. I likewise agree that, because of the seriousness of
death penalty proceedings, the record should certainly be subject to
Aintense scrutiny.@ However, I do not believe that the fashioning of a
standard of review that falls somewhere between abuse of discretion
and de novo is necessary or sufficient to achieve these goals.
The legislature of this state has assigned to this court the duty,
Aindependent of any procedural grounds for relief,@ to Aoverturn the
death sentence, and order the imposition of imprisonment *** if the
court finds that the death sentence is fundamentally unjust as applied
to the particular case.@ 720 ILCS 5/9B1(i) (West 2004). This is a great
responsibility. Indeed, this court must answer the ultimate question of
whether a defendant should receive a death sentence. Because of the
seriousness of the issue, and the fact that the decision, in the end, is
ours alone to make, our review should be de novo.
This court has previously adopted a de novo standard of review
when charged with deciding the Aultimate question@ of whether a
criminal defendant=s confession is voluntary. In re G.O., 191 Ill. 2d
37, 50 (2000). In G.O., we stated that we would Aaccord great
deference to the trial court=s factual findings, and we will reverse
those findings only if they are against the manifest weight of the
evidence. However, we will review de novo the ultimate question of
whether the confession was voluntary.@ G.O., 191 Ill. 2d at 50. In
reaching this conclusion, we relied on the Seventh Circuit=s opinion
in United States v. D.F., 115 F.3d 413 (7th Cir. 1997), which was
rooted in the United States Supreme Court=s opinion in Ornelas v.
United States, 517 U.S. 690, 134 L. Ed. 2d 911, 116 S. Ct. 1657
(1996).
In Ornelas, the Supreme Court recognized the need for de novo,
or Aindependent appellate review,@ of the Aultimate determinations@ of
reasonable suspicion and probable cause. Ornelas, 517 U.S. at 697,
134 L. Ed. 2d at 919, 116 S. Ct. at 1662. In D.F., the Seventh Circuit
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advocated de novo, or independent, review regarding the Aultimate
question@ of the voluntariness of a defendant=s confession. D.F., 115
F.3d at 419. It is significant that the de novo standard has been
deemed appropriate in cases where extremely serious decisions must
be made by reviewing courtsBdecisions involving fundamental rights
that impact a person=s liberty. See also People v. Gonzalez, 204 Ill. 2d
220, 223 (2003) (applying a de novo standard of review to the
ultimate question of whether the defendant=s motion to suppress was
properly granted, where the defendant, a passenger in a vehicle
stopped for a traffic violation, asserted that he was unreasonably
seized in violation of the fourth amendment); People v. Crane, 195
Ill. 2d 42, 51-52 (2001) (applying a de novo standard to the Aultimate
determination@ of whether the defendant=s constitutional right to a
speedy trial was violated). The United States Supreme Court, the
Seventh Circuit, and this court demonstrated a reluctance to apply a
deferential standard of review under these grave circumstances. The
same reluctance is appropriate here.
Yet, the weight of our decision is not the only factor which
supports the application of the de novo standard. Drawing from the
Supreme Court=s reasoning in Ornelas, in D.F., the Seventh Circuit
pointed out that the question of voluntariness involved a
consideration of the facts admitted at trial and assessed by the fact
finder, but ultimately was a question of law. D.F., 115 F.3d at 418. It
likewise recognized that voluntariness is a fluid concept Agiven
content through case-by-case adjudication,@ which required
Auniformity of meaning and consistency of application.@ D.F., 115
F.3d at 417. The court stated that reviewing courts must conduct an
independent review under these circumstances in order to A >maintain
control of, and to clarify= the controlling legal principles.@ D.F., 115
F.3d at 417, quoting Ornelas, 517 U.S. at 697, 134 L. Ed. 2d at 919,
116 S. Ct. at 1662.
The considerations made by the Seventh Circuit in D.F., and
adopted by this court in G.O., are readily applicable to death penalty
cases. As in determining voluntariness of a confession, when
determining whether a sentence of death is appropriate, this court
must consider the facts admitted into evidence and the trial court or
jury=s assessment of those facts. However, while this court should pay
some deference to the fact finder=s assessments, this court, by statute,
is bound to determine the ultimate question of whether the facts
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presented at trial are sufficient to warrant imposition of the death
penalty, such that the death penalty is not fundamentally unjust as
applied to a particular defendant. Like voluntariness, fundamental
injustice is a fluid concept which can only be given content and
meaning through application in case-specific situations. See D.F.,
115 F.3d at 417. This court cannot develop continuity and control
over precedent in this area if we are not permitted to exercise a fully
independent review of the facts and issues before us. Application of
the standard of review fashioned by the majority would create varied
and inconsistent results in death penalty cases. As the Supreme Court
astutely recognized: ASuch varied results would be inconsistent with
the idea of a unitary system of law. This, if a matter-of-course, would
be unacceptable.@ Ornelas, 517 U.S. at 697, 134 L. Ed. 2d at 919, 116
S. Ct. at 1662.
Furthermore, as the Supreme Court likewise recognized: A[o]ur
capital punishment doctrine is rooted in the principle that > A[t]he
Eighth and Fourteenth Amendments cannot tolerate the infliction of a
sentence of death under legal systems that permit this unique penalty
to be ... wantonly and ... freakishly imposed.= @ Lewis v. Jeffers, 497
U.S. 764, 774, 111 L. Ed. 2d 606, 618, 110 S. Ct. 3092, 3099 (1990),
quoting Gregg v. Georgia, 428 U.S. 153, 188, 49 L. Ed. 2d 859, 883,
96 S. Ct. 2909, 2932 (1976), quoting Furman v. Georgia, 408 U.S.
238, 310, 33 L. Ed. 2d 346, 390, 92 S. Ct. 2726, 2763 (Stewart, J.,
concurring) (1972). Our legislature has attempted to guard against
Awanton@ and Afreakish@ imposition of the death penalty in this state
by giving this court the authority to review each penalty of death for
fundamental unfairness. This task is best undertaken by applying a de
novo standard of review in deciding the Aultimate question@ before us.
JUSTICE McMORROW, dissenting:
As part of the death penalty reforms enacted by the General
Assembly in 2003 (see Pub. Act 93B605, eff. November 11, 2003), a
new provision was added to section 9B1(i) of the Criminal Code of
1961 (720 ILCS 5/9B1(i) (West 2004)). This provision, often referred
to as the fundamental justice amendment, places upon this court the
responsibility to set aside a death sentenceBeven in the absence of
any trial errorBif the court determines that the death sentence is
Afundamentally unjust.@ People v. Mertz, 218 Ill. 2d 1, 54 (2005). In
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full, section 9B1(i) provides:
A(i) Appellate Procedure.
The conviction and sentence of death shall be subject to
automatic review by the Supreme Court. Such review shall be
in accordance with rules promulgated by the Supreme Court.
The Illinois Supreme Court may overturn the death sentence,
and order the imposition of imprisonment under Chapter V of
the Unified Code of Corrections if the court finds that the
death sentence is fundamentally unjust as applied to the
particular case. If the Illinois Supreme Court finds that the
death sentence is fundamentally unjust as applied to the
particular case, independent of any procedural grounds for
relief, the Illinois Supreme Court shall issue a written opinion
explaining this finding.@ 720 ILCS 5/9B1(i) (West 2004).
State Senators Cullerton and Dillard, the co-sponsors of the
legislation which introduced the fundamentally unjust standard, have
explained the significance of this provision:
AThe fundamental justice amendment of [Public Act
93B605] is ground breaking in scope and conception. It is a
result of deliberations beginning in the Capital Litigation
Subcommittee of the Illinois Senate Judiciary Committee
during the 92nd General Assembly and continuing through
deliberations in the Senate Judiciary Committee during the
93rd General Assembly. This fundamental justice amendment
authorizes the Supreme Court to engage, in death penalty
cases only, in a new and important kind of appellate review.
This new kind of appellate review is designed to be
substantive, rather than procedural, focusing on the key
substantive question: whether the death sentence is
>fundamentally just= as applied to the particular case.
***
The fundamental justice amendment contemplates that the
new >fundamental justice= appellate reviewBwhich is not the
same as >comparative proportionality review=Bwill be fact-
based and highly discretionary, and will lead to appellate
reversal on substantive grounds in only a very small number
of death penalty cases. *** The >fundamental justice= of a
death sentence, as applied to a particular case, cannot
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generally be determined on the basis of legal rules. It is a
moral issue, not a legal one, and must be based on the facts of
the particular case and the moral compass of the decision
maker.@ (Emphasis in original.) J. Cullerton, K. Dillard & P.
Baroni, Capital Punishment Reform in IllinoisBA Model for
the Nation, DCBA Brief, at 10-12 (April 2004).
See also R. Weisberg, Apology, Legislation and Mercy, 82 N.C. L.
Rev. 1415, 1438 (2004) (the fundamental justice amendment Aenables
appellate [sic] judges to grant mercy to otherwise properly sentenced
capital defendants because, in the view of the appellate [sic] court,
the technical and procedural rules by which they were supposed to
monitor capital sentencing could not capture the moral concerns that
society demands@).
Professor Joseph Hoffmann, the individual who initially proposed
the fundamental justice provision (see 93d Ill. Gen. Assem., Senate
Proceedings, November 5, 2003, at 43), has explained that the
fundamental justice of a death sentence is distinct from whether that
sentence is excessive:
AAfter surveying the history of both guilt-innocence and
>excessiveness= review in Illinois capital cases, *** I believe
that both grants of authority generally have been construed
quite narrowlyBin sharp contrast to the broad, open-ended
authority contemplated by the FJA [fundamental justice
amendment].*** The FJABat a bare minimumBshould serve
as a clear and influential statement, by an overwhelming, bi-
partisan majority of the Illinois Legislature, that such
substantive review is both desirable and wholly consistent
with legislative intent. The FJA thus should eliminate any
concerns that the exercise of substantive appellate review
authority by the Illinois Supreme Court is illegitimate, or
contrary to the will of the people of Illinois, as expressed by
the Illinois Legislature.@ J. Hoffman, Protecting the Innocent:
The Massachusetts Governor=s Council Report, 95 J. Crim. L.
& Criminology 561, 577 n.83 (2005).
See also DCBA Brief, at 12 (distinguishing the fundamental justice
inquiry from the excessiveness inquiry and noting that under the
fundamental justice amendment, all issues that might relate to the
fundamental justice of a death sentence may be considered by this
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court).
The fundamental justice determination differs from the traditional
appellate review conducted in death penalty cases. Section 9B1(i)
directs this court to determine the fundamental justice of the death
sentence in the first instance, when the case is on direct appeal to this
court. The fundamental justice inquiry is not conducted in the circuit
court and the circuit court enters no finding regarding the
fundamental justice of the death sentence. Thus, while this court must
give deference to any findings of fact made by the circuit court
during trial and sentencing, principles of deference and standards of
review do not play a role in the fundamental justice determination
itselfBthey simply are not relevant. Stated otherwise, section 9B1(i)
authorizes this court, in every death penalty case, to conduct an
independent evaluation of the facts of record, as established in the
circuit court, and determine whether the imposition of the death
penalty is Afundamentally unjust,@ even when the defendant has been
Aotherwise properly sentenced@ (82 N.C. L. Rev. at 1437-38).
Applying that standard here, I conclude that the imposition of the
death penalty would be fundamentally unjust in this case.
A principal reason why imposing the death penalty would be
fundamentally unjust in this case is defendant=s mental condition.
There is no dispute that the defendant was suffering from a mental
disorder at the time of the offenses he committed. All three experts
who testified at trial so stated. The only dispute is with regard to the
type of disorder, i.e., whether defendant suffers from a delusional
disorder of the persecutory type, found by defense witnesses, Drs.
Day and Chapman, or a paranoid personality disorder, found by Day
and the State=s witness, Dr. Kowalkowski. Further, as the majority
notes, defendant=s belligerent actions following his arrest and during
trial were completely irrational, given that he was facing a possible
death sentence. See slip op. at 33. This point underscores the fact that
defendant=s mental processes do not function in a normal fashion.
In addition, defendant does not have a significant prior criminal
history. At the time of the murders in this case, defendant was 60
years old. His prior criminal history consisted of only four
misdemeanor convictionsBtwo for disorderly conduct, one for
reckless driving, and one Class C misdemeanor assault. Defendant
had no felony convictions of any type. Defendant was not an
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incorrigible felon with an extensive criminal history. Indeed, as the
majority notes, the murders defendant committed Awere uniquely
extreme in terms of defendant=s past conduct.@ Slip op. at 37.
Moreover, the record contains numerous examples of defendant=s
positive attributes. For most of his adult life, defendant worked and
supported his wife and three children. He provided each child with a
college education and helped raise them to become productive
citizens. Further, throughout his life, defendant often engaged in acts
of generosity toward others. Among other things, defendant rushed to
the aid of neighbors when they lost their home in a fire, returned a
borrowed tractor in the middle of a heavy snowstorm because he
thought the owner might need it to plow snow, installed a wood-
burning stove in the house of another neighbor who had no heat,
asking for nothing in return, and repaired that neighbor=s roof without
being asked. At the death penalty hearing, several persons testified on
defendant=s behalf, describing defendant as Aa good, dependable
worker,@ a Agood father,@ a Agood friend,@ and Athe nicest guy you
would ever want to meet.@ In my view, this evidence demonstrates
that the crimes committed by defendant were aberrant events fueled
by his unstable mental condition.
Finally, as defense counsel has noted, defendant is now 63 years
old, largely deaf, and in poor health. And, while defendant was
verbally abusive when in custody during trial, the only physical
action he took was clogging a toilet. Defendant has never physically
assaulted any prisoner or prison official. Compare, e.g., People v.
Easley, 192 Ill. 2d 307, 333-34 (2000) (defendant=s repeated attacks
on prison officials used as aggravating evidence). Defendant does not
pose so serious a safety risk in prison that execution is the only
means of protecting other inmates and prison officials. Incarceration
in prison for the remainder of his life without the possibility of parole
or mandatory supervised release is an alternative that will both
protect the public and punish defendant.
The seriousness of defendant=s offenses cannot be overstated. The
crimes he committed were unquestionably horrific. However, in the
exercise of discretion afforded this court under section 9B1(i), I must
conclude that the imposition of the death sentence in this case is
fundamentally unjust. I note that in reaching this conclusion, my
decision is informed by familiar principles:
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AIt is this court=s >responsibility in every death penalty
case to carefully consider the character of the defendant and
the circumstances of his crime before we sanction the
termination of his life.= People v. Tye, 141 Ill. 2d 1, 37 (1990)
(Ryan, J., concurring in part and dissenting in part). In
fulfilling this responsibility, we are >guided by the recognition
that Aeach capital case is unique and must be evaluated on its
own facts, focusing on whether the circumstances of the
crime and the character of the defendant are such that the
deterrent and retributive functions of the ultimate sanction
will be served by imposing the death penalty.@ [Citation.]=
People v. Smith, 177 Ill. 2d 53, 98. ***
*** Anytime a human being unjustifiably takes the life of
another, a civilized society should be horrified. >[C]apital
punishment is an expression of society=s moral outrage at
particularly offensive conduct.= Gregg v. Georgia, 428 U.S.
153, 183, 49 L. Ed. 2d 859, 880, 96 S. Ct. 2909, 2930 (1976)
(opinion of Stewart, Powell, and Stevens, JJ.). Nevertheless,
our society and laws do not sanction the death penalty for all
crimes which may shock a civilized society. Instead, we
reserve it for those >crimes [which] are themselves so
grievous an affront to humanity that the only adequate
response may be the penalty of death.= Gregg, 428 U.S. at
184, 49 L. Ed. 2d at 881, 96 S. Ct. at 2930 (opinion of
Stewart, Powell, and Stevens, JJ.).@ People v. Harris, 182 Ill.
2d 114, 165-66 (1998) (McMorrow, J., concurring in part and
dissenting in part).
The appropriate sentence in this case is life imprisonment without
the possibility of parole or mandatory supervised release.
Accordingly, I respectfully dissent.
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