People v. Adkins ( 2010 )

Docket No. 107309.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
RODNEY ADKINS, Appellee.
Opinion filed October 21, 2010.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Karmeier,
and Burke concurred in the judgment and opinion.
Justice Kilbride took no part in the decision.
OPINION
Following a jury trial in the circuit court of Cook County,
defendant Rodney Adkins was found guilty of first degree murder
(720 ILCS 5/9–1(a) (West 2002)), home invasion (720 ILCS
5/12–11(a)(2) (West 2002)), and residential burglary (720 ILCS
5/19–3(a) (West 2002)). He waived a jury trial for the sentencing
phase. In a subsequent bench trial, he was sentenced to death. He filed
a motion for a new trial, which was denied by the trial court. His
appeal lies directly to this court under Supreme Court Rule 603 (134
Ill. 2d R. 603). For the reasons set forth below, we affirm his
conviction and sentence.
BACKGROUND
The Crime Scene
On July 31, 2003, two burglaries and one murder were committed
at 936 Washington Boulevard in Oak Park. When Frank Perino, a
resident of the building, returned from work that afternoon and
entered through the rear entrance, he noticed that the back door of
Catherine McAvinchey’s condominium unit had been forced open. He
called the police and let them inside the building when they arrived.
Officer Michael Kelly and two other officers entered the unit that had
been broken into and found McAvinchey, face down on the floor.
Firefighters who responded detected no vital signs.
The officer who processed the scene observed that the rear door
to the apartment had been kicked in. The footprint on the door was
upside down, with the heel at the top of the print and the toe at the
bottom. On a kitchen counter just inside the door, the officer found a
plastic cap shaped like a cap for a soda bottle but “four or five inches
around” with a slot in it, as if a large bottle had been used as a bank.
In the kitchen sink, he found a large knife with a bloodstain beneath
it. The knife matched a set of knives stored in a wooden block on the
counter. At trial, a State Police DNA analyst testified that she
compared blood samples collected at the crime scene to samples from
defendant, his girlfriend Romanette Norwood, and the victim. Blood
found on the handle and blade of the knife was consistent with the
victim’s.
In the living room, the officer found the victim lying face down on
the floor with a large pool of blood around her head and neck. The
pool of blood had begun to dry at the edges. Clear fluid found when
the body was moved was later determined to be spinal fluid. A
bloodstain on the back of her shirt appeared to have been made by
wiping the knife blade on the shirt.
The apartment had been ransacked. Desk drawers and dresser
drawers were pulled out. Two purses appeared to have been rifled
through. An empty space on the desk, near a printer and power cord,
was the size of a computer. A large plastic bottle with a picture of a
football helmet on it was lying on a chair near the desk. The bottle had
no cap and it appeared to match the bottle cap found in the kitchen.
Christine Callahan was the victim’s neighbor. The two women,
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along with Perino and a fourth resident of the building, used the same
locked entrance in the rear of the building to access their units. The
lock did not always work. The back door to Callahan’s apartment was
approximately 20 feet from the victim’s back door. Callahan’s
apartment was also burglarized on July 31. Several pieces of jewelry
were taken, along with a large plastic bottle with a Cleveland Browns
logo in which she saved coins. She identified the bottle found on the
chair in the victim’s apartment as the one that had been taken from her
apartment. At trial, a State Police fingerprint analyst testified that she
compared latent fingerprints from the crime scenes to exemplars from
defendant, Norwood, and the victim. She found one fingerprint
belonging to the defendant on the plastic bottle.
The same officer who processed the murder scene processed
Callahan’s apartment. He observed that her back door had also been
kicked in and her apartment ransacked. He found a cigarette butt on
the floor at the bottom of a spiral staircase that led to the upper level
of Callahan’s unit. He collected the cigarette butt and sent it to the
crime lab for processing. The State Police DNA analyst testified at
trial that the male DNA profile found on the cigarette butt would be
expected to occur in approximately one in 650 billion black
individuals, one in 2.1 trillion white individuals, and one in 2.5 trillion
Hispanic unrelated individuals. The profile matched defendant’s DNA
profile.
The Investigation
On September 8 and 9, 2003, Norwood was interviewed by the
Oak Park police. She was wearing a Gucci watch and a pair of
prescription eyeglasses, which were taken from her and inventoried as
evidence. Information from this interview led police to a pawn shop
and to the apartment of Fanny Roberts, defendant’s mother. At the
pawn shop, police obtained pawn sheets dated July 31, 2003,
containing defendant’s name. The police recovered a pair of
sunglasses from Roberts’ apartment.
On September 10, 2003, Norwood gave a videotaped statement
to Assistant State’s Attorney Jamie Santini. In this statement, she said
that she had been defendant’s girlfriend for 13 years and that she was
then living with him. She stated that around June 24 or 25, they were
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in Oak Park and “he had me ring somebody’s bell” to see if the person
was at home “[s]o he could burglarize it.” She walked back to the
corner, where defendant was waiting, and told him that no one was
home. He went to the house and kicked the door in as she watched
from the alley. She said that she did not enter the house. She left and
did not see him again until he came to his cousin’s house later with
“some tapes, VCR, DVD, a couple of movies,” which he said he got
from the house he had burglarized.
Norwood described their activities over the next several days. On
July 31, 2003, she slept until noon. Earlier that morning, she briefly
awoke when defendant left. He kissed her on her jaw and said he was
leaving and would be back. He returned at about 12:30 p.m., while
Norwood and defendant’s mother were watching television together.
He was “sweating heavily” and he carried a black duffle bag.
Defendant pulled two pairs of glasses from his pocket and gave them
to Norwood. He took a watch from his other pocket and gave it to
her. Santini showed her photographs of the glasses and the watch that
she had been wearing earlier and of the sunglasses found in Roberts’
apartment. She identified them as the same items defendant had given
her. Defendant also gave a gold chain necklace to his mother. He
opened the bag and “took out a black screen monitor” that was “like
a computer” and put it on the bed. He also took out a laptop
computer in a case and a bag full of coins. She had never seen any of
these items in his possession before that date. She identified the laptop
and the duffle bag from photographs she was shown by Santini.
According to Norwood, defendant left for a “couple of minutes,”
taking the computers to the next-door neighbor’s to try to sell them.
He returned with the computers, which he placed in his mother’s
room.
Norwood and defendant took a bus and a train to a pawn shop in
Forest Park, where he pawned two rings for “about $70.” Then they
went to a liquor store so that he could convert the “[c]oins into
money.” Defendant purchased a “scratch out” lottery ticket and
collected $500 in winnings. They bought some heroin and some
“rocks” (cocaine), ate tacos, and walked to the Grand Hotel, where
they checked into a room and remained for about eight hours.
The next morning, August 1, 2003, they went to Roberts’ house
to sleep. That evening, defendant’s Uncle Kary came over with a
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friend. Defendant brought out one of the computers to show the
friend. Norwood turned it on for him and clicked on the “My
Computer” icon. A name appeared on the screen, “[t]he lady name
that was on the news, Catherine’s McKen–I don’t know.” The
television was on at the time and the victim’s picture was on the
screen with the name “Catherine McKenzie, something like that.” She
was “in a state of shock” and turned the computer off and closed it.
Defendant then brought out the other computer to show the friend,
who ended up buying both computers in a “package deal.”
Later that night, she and defendant were at her mother’s house
when another news story about the murder came on the television.
She “was hearing the whole story about the lady got slashed in the
throat, something like that. And it seems to be that she stumbled up
on the burglar.” Norwood’s mother glanced at defendant and asked
him if he would do “something like that.” He told her that he would
not. A bit later, Norwood asked him again and he said “he didn’t want
to talk about it now,” but he agreed to talk about it later at the hotel.
They purchased more drugs and went to another hotel, The Ritz.
She identified the hotel from a photograph. When they were in the
room, she asked defendant “did he do that to that lady.” He said that
“he didn’t know if he killed her, he said he hit her. And she fell down
cause she walked in on him and saw his face.” He told her “it was a
mistake. She walked in on me.” They took some drugs, which made
him tell her “more about it because he was just saying that he hit her,
he didn’t do all that other stuff to her.” After he started smoking
crack, “he broke out crying and stuff and he admit that he killed the
lady.” He asked Norwood if she would tell on him and she said she
would not.
August 22, 2003, was her birthday. They were at his mother’s
apartment. She and defendant had an argument that day over the way
he was treating her. She told him she wanted to break up and he
“started going off.” She told his mother that she was afraid of the
defendant “[b]ecause he killed that lady. And I thought he would kill
me as well.”
The interview concluded with Norwood stating that she had been
treated well by the police department, that no threats or promises
were made to her, and that she was free from the effects of drugs or
alcohol.
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The victim’s brother identified the watch and eyeglasses that were
taken from Norwood and the sunglasses found in Roberts’ apartment
as his sister’s. The State Police DNA analyst testified at trial that she
found “a mixture” of DNA on the watch. One of the DNA profiles
was female and was consistent with Norwood’s. The other profile was
male, but was insufficient for comparison.
The police also spoke by telephone to defendant’s uncle, Kary
Pugh, who told police that his friend, Earnest Hoskins, had the
victim’s computer. At trial, Hoskins testified that he and Pugh visited
the residence of Pugh’s sister-in-law, Fanny Roberts, on August 1,
2003. The defendant, who is Roberts’ son, was there with his
girlfriend, Romanette Norwood. Defendant showed two computers to
Hoskins. The computers were in a black canvas duffle bag. One was
a Sony Vaio laptop and the other was a “big, black” model that he
was not familiar with. Hoskins offered to buy the computers for $250,
not expecting defendant to accept so low an offer because the
computers were worth much more. Defendant accepted the offer.
When contacted by the police, Hoskins explained to the police that
he no longer had the computers in his possession, but that he could
retrieve them. On September 12, 2003, Hoskins turned over the duffle
bag containing the computers to the police. A service number on the
Sony Vaio computer matched the victim’s missing computer. When
the police turned on the Vaio, a window appeared showing that the
software was registered to the victim. At trial, Hoskins identified the
duffle bag and the Sony Vaio computer and its carrying case.
Defendant’s Statements
On September 17, 2003, Oak Park detectives took defendant from
the Cook County jail to the Oak Park police station. After he was read
his Miranda rights and signed a waiver, he was questioned initially by
detectives William Cotter and Juan Paladines and later by Assistant
State’s Attorney Santini. Defendant made several incriminating
statements.
According to the detectives’ testimony, defendant said that he
kicked in the back door of the victim’s apartment and entered. He
unlocked the front door to give himself a means of escape. He was
inside, looking at a laptop computer, when he heard the front door
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open. He saw a woman standing there, looking at him. Defendant
claimed that Norwood knocked the woman to the floor and then he
jumped on her upper back. He got a knife from the kitchen and began
to cut her neck because he feared that she could identify him. He
sawed on the back of her neck and, according to his statement, he told
Norwood that because they were in this together, she had to do so as
well. He stated that she did so. After he washed the knife in the sink,
he continued to burglarize the apartment, taking several pairs of
glasses, some jewelry, some change, and a laptop. He then went to the
door of the adjacent apartment, kicked in that door, and burglarized
that apartment.
The detectives then called Santini, who also interviewed
defendant. Paladines sat in on that interview, during which defendant
again admitted killing the victim and described the burglary and
murder. Defendant agreed to give a videotaped statement.
The tape and a transcript were admitted into evidence at trial and
the tape was played for the jury. In that statement, defendant said that
he got up early the day of the murder so that he could “go out and
work, you know, do a sting, you know, do a little hustle.” Asked to
explain what he meant, defendant said, “We’ll go out from time to
time and burglarize.” He said that “about 70 percent of the time,” he
and Norwood would commit burglary together. She would go to the
door of the home or apartment while he walked to the corner. She
would ring the bell to make sure no one was at home. Defendant also
explained that he liked to start early in the day, so “you can see people
going to work, you know, you can see them leave the house.” They
did not normally wear gloves, but would put circles of tape on the tips
of their fingers to avoid leaving fingerprints. He claimed that he and
Norwood were wearing tape on their fingers the day of the killing.
When he got to the back doors at 936 Washington Boulevard, he
could hear Norwood “still ringing the bell,” so he knew there was no
one at home. He then “donkey kicked” one of the doors, with his back
to the door so that his heel was higher than his toes. The door gave
way on the second kick. He went through the front door of the
apartment and down the stairs to let Norwood inside. Once back in
the apartment, he left the front door unlocked as a means of quick
escape if it became necessary.
He went directly to the bedroom, because “that’s where the
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jewelry was at.” Defendant stated that he ransacked the bedroom,
taking a Gucci watch and stashing several pairs of eyeglasses in a
duffle bag he found there. Santini showed defendant a photograph of
the black bag recovered from Hoskins and defendant identified it as
the same bag.
In the living room, he found two wallets. He took $185 in cash
from one and several credit cards from the other. Santini showed him
photographs of two wallets found in the victim’s apartment and he
acknowledged that he had opened them and taken cash and credit
cards.
Defendant said that he then noticed a table with a computer on it
and, on the floor next to the table, a laptop in a computer case. He
identified a photograph of the table and pointed out where the laptop
had been sitting on the floor. He said that he “got down on a knee to
unzip” the computer case and was “closing it and zipping it up” when
the victim returned through the front door. She was “about five feet”
away from him and was looking directly at him. Defendant said that
they “stared at each other for almost–it couldn’t have been no more
than like three or four seconds but it seemed like an eternity.”
According to defendant, Norwood hit the victim from behind and
knocked her to the floor. She fell “face first. And that gave me enough
time to react.” Because he knew that the victim would be able to
identify him, he jumped on her several times, slamming his knee on the
back of her neck between her shoulder blades. He believed that she
was unconscious, but knew that she was still alive. Defendant said that
he told Norwood, “she done already recognized me, so you know
what we got to do.”
Defendant went into the kitchen and grabbed a knife from a knife
holder. Santini showed him a photograph of the knife holder, which
he recognized. He explained that he slashed, stabbed, and sawed at the
victim’s throat. Detective Paladines bent over the table, face down, so
that defendant could demonstrate how he used the knife on the victim.
Defendant stated that while the victim was coming out of her
initial unconsciousness, she was making a “gargling” sound. He
claimed that at this point, he told Norwood that they were “in this
together” and that Norwood had to prove her “solidarity.” According
to him, Norwood put her hand on the knife handle and “did like a little
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sawing motion.” Defendant wiped the knife on the back of the
victim’s shirt, then took it back to the kitchen where he rinsed it off,
wiped it off to erase any palm prints, and left it in the kitchen sink.
Santini showed him a photograph of the knife as it was found in the
kitchen sink. Defendant said, “That’s the knife *** in the sink where
I left it.”
Defendant stated that he then collected the duffle bag, some CDs,
some DVDs, and the laptop and went out the back door, where he
kicked in the door to another apartment and burglarized it. He took
a computer and some rings. He found a large glass jar filled with
change, which was too heavy to carry. He could not explain how the
Cleveland Browns bottle got from Callahan’s apartment to the
victim’s apartment. He thought that “maybe Romanette brought it.”
Defendant and Norwood went “straight out the front door.” He
stated that neither he nor Norwood had any blood on them. He carried
the black duffle bag and she was carrying another bag. They returned
to the apartment they shared with his mother to drop off some of the
stolen property.
He had not told Norwood about the nearly $200 in cash that he
had taken and he did not want her to know. Later that day, they sold
two stolen rings at a pawn shop for $50 or $60 and he gave Norwood
some of the money.
At a nearby liquor store, he exchanged the stolen coins for about
$55 in bills and purchased some liquor and a scratch-off lottery ticket.
The ticket was a winner and he collected another $500 in cash. He and
Norwood bought “a couple blows and then we got some rocks and
some weed,” referring to heroin, cocaine, and marijuana. They spent
several hours in a motel, “had sex, got high,” before returning to his
mother’s apartment.
Defendant tried, unsuccessfully, to sell the computers to a
neighbor. A day or two later, his uncle came over to have defendant
cut his hair. The uncle brought a friend with him. Defendant identified
a photograph of Hoskins, whom he knew as “Bishop,” as that friend.
His uncle was not interested in the computers, so defendant offered
the Sony Vaio to Hoskins for $500. Initially Hoskins was not
interested, but then he offered defendant $300, which defendant
accepted. He and Norwood took the money and “left again after that
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and checked into another motel.”
At the conclusion of the taped interview, defendant was asked
how he had been treated while at the Oak Park police station. He
replied, “I been treated just.” He acknowledged that he had been given
food and something to drink and that he was given cigarettes to
smoke. Overall, he said, “I been treated justice. It was almost like a
big burden, you know, being lifted from my soul.”
Trial
With the exception of Norwood’s videotaped statement, which
was admitted only at the sentencing phase, all of the facts summarized
above came into evidence at trial.
In addition, a deputy medical examiner testified that the victim had
been stabbed under the chin and on the right side of her neck. This
wound severed her carotid artery. She also had a gaping incision
wound on the back of her neck, consistent with a sawing motion,
which was so deep that it fractured two cervical vertebrae. Another
cervical vertebra, two thoracic vertebrae, and 13 ribs were also
fractured. The knife from the sink could have caused the wounds to
her neck. The victim also had dozens of injuries to her face, including
a laceration and bruise of her upper right eyelid, petechial
hemorrhages of her right eye, and abrasions on her right cheek. Her
lips were lacerated in several places and she had abrasions on the
bridge of her nose. She also had several hemorrhages to her brain,
consistent with blunt force trauma. The fractures were consistent with
a man of defendant’s size jumping on the victim’s spine. These injuries
would have rendered the victim paraplegic from the chest down.
Other lacerations, bruises, and abrasions were consistent with an
assault. A stab wound on the victim’s hand was consistent with her
trying to ward off the attack. In the medical examiner’s opinion, the
cause of death was multiple injuries from an assault; the manner of
death was homicide.
After the State rested its case, the defense rested without
presenting evidence. Closing arguments were made and jury
instructions were given. The jury found defendant guilty beyond a
reasonable doubt of first degree murder, home invasion, and
residential burglary.
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ANALYSIS
I. Potential Juror Excused for Cause
During voir dire, venire member C.B. told the court that she had
never been an accused, a complainant, or a witness in a criminal case.
The prosecutor moved to excuse her for cause because her “rap sheet”
showed that she had been charged with misdemeanor battery in 1991.
The battery charge was “SOL’d,” or stricken with leave to reinstate.
Defense counsel objected and requested that the court question C.B.
in chambers to determine whether she had simply forgotten about the
incident that occurred 16 years ago, if she thought that the dismissal
meant that she had not been “accused” of a crime, or if she had some
other reason for not mentioning it. The trial court denied the request
and excused C.B. for cause. Defendant argues that the trial court
abused its discretion and that, as a result, he is entitled to a new trial.
Voir dire in criminal cases is governed by Supreme Court Rule
431 (177 Ill. 2d R. 431). Prior to the adoption of this rule, this court
held that the trial court bears primary responsibility for conducting the
voir dire examination and, thus, the manner and scope of that
examination rests within the discretion of that court. People v.
Williams, 164 Ill. 2d 1, 16 (1994). See People v. Garstecki, 234 Ill.
2d 430, 437-38 (2009) (explaining significance of replacement of
Supreme Court Rule 234 with Supreme Court Rule 431). Under this
rule, the trial court’s discretion is guided by a preference for
permitting direct inquiry of prospective jurors by the attorneys if such
an opportunity is sought. Garstecki, 234 Ill. 2d at 444-45.
The present case, however, does not involve a request by an
attorney to submit questions for voir dire or to directly question the
venire. Rather, the present case involves the trial court’s decision to
grant the State’s request to excuse a prospective juror for cause after
voir dire has been concluded. “An abuse of the court’s discretion will
be found only if, after a review of the record, it is determined that the
conduct of the court thwarted the selection of an impartial jury.”
Williams, 164 Ill. 2d at 16. Defendant argues that despite the trial
court’s discretion in this matter, the “proper procedure” calls for an
inquiry if it comes to the attention of the trial court, either while voir
dire is in progress or when it has just been completed, that there are
facts contradicting an answer given during voir dire. He argues further
that when failure to adequately question a venire member is brought
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to the trial court’s attention in a timely manner, the proper remedy is
a new trial. Defendant relies on two decisions of the appellate court
for these propositions.
In People v. Green, 282 Ill. App. 3d 510 (1996), the court found
an abuse of discretion where the trial court refused to reopen voir dire
to reexamine three venire persons whose jury cards indicated that they
had been victims of crimes, but who failed to so state in open court
when the members of the venire were asked the question. Green, 282
Ill. App. 3d at 514. Because the defense had used its nine peremptory
challenges to excuse other venire members, the three individuals in
question were seated on the jury. Green, 282 Ill. App. 3d at 513. As
a result, the defendant, who was charged with attempted murder and
other crimes in connection with a shooting, may have been tried by a
jury that included members who had been victims of one or more of
the same crimes. Green, 282 Ill. App. 3d at 514. The appellate court
noted that a “limited inquiry would have satisfied the purpose of voir
dire to expose potential bias or prejudice, would have resulted in only
a minor delay in jury selection and would have resolved the issue as
to whether [the three individuals] were in fact crime victims, as well
as the effect such involvement would have had on their ability to be
impartial.” Green, 282 Ill. App. 3d at 514, citing People v. Mitchell,
121 Ill. App. 3d 193 (1984).
Defendant also relies on Mitchell, in which the appellate court
reversed the defendant’s conviction for burglary on the basis that the
trial court abused its discretion by denying a defense motion to reopen
voir dire as to one of the jurors. Mitchell, 121 Ill. App. 3d at 196.
During voir dire, the juror said that he had never been the victim of a
crime. He was accepted as a juror and sworn before defense counsel
learned that the prosecutor had background information regarding the
venire members. This document revealed that the juror had been a
victim of a burglary, the same crime for which the defendant was on
trial. Mitchell, 121 Ill. App. 3d at 194. The court relied on this court’s
decision in People v. Kurth, 34 Ill. 2d 387 (1966), overruled on other
grounds in People v. Beardsley, 115 Ill. 2d 47 (1986), for the
proposition that “where information showing prejudice or potential
prejudice of a seated juror is brought to the attention of the court
during or immediately after voir dire, the proper procedure would be
further inquiry by the court.” Mitchell, 121 Ill. App. 3d at 194. The
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court concluded, further, that “issues involving the right to a fair trial
by a panel of impartial jurors cannot be disposed of by the harmless
error rule” and, thus, reversal of the defendant’s conviction was
necessary. Mitchell, 121 Ill. App. 3d at 196.
Neither Green nor Mitchell offer any support for defendant’s
position because both cases involved the seating of a juror or jurors
who were potentially biased against the defendant. In the present case,
no potentially biased juror was seated. Instead, a potential juror was
excused for cause over a defense objection.
Williams is factually similar to the present case. Both on the juror
information card and during vior dire, a prospective juror failed to
disclose that she was then under court supervision “for a marijuana
case.” Williams, 164 Ill. 2d at 15. The State asked that she be excused
for cause and the defendant requested that she be questioned further
about the marijuana case. Williams, 164 Ill. 2d at 16. The trial court
excused her for cause and the defendant was subsequently found
guilty of first degree murder for strangling a 97-year-old woman and
of robbery for stealing the victim’s stereo set. The defendant was
sentenced to death.
On appeal to this court, the defendant argued that the trial court
failed to properly exercise its discretion when it excused the
prospective juror for cause. This court noted that the “purpose of voir
dire is to assure the selection of an impartial panel of jurors free from
either bias or prejudice” and concluded that the record “in no way”
suggested that excusing this individual for cause impeded the selection
of an unbiased and impartial jury. Williams, 164 Ill. 2d at 16-17.
Further, the “veracity of those who testify during voir dire is a matter
lying solely within the sound discretion of the circuit court, and the
decision to excuse a potential juror because of a reasonable belief that
that person has been untruthful under oath is a question best left with
that court.” Williams, 164 Ill. 2d at 17.
Defendant attempts to distinguish the facts of Williams, arguing
that while there was “no chance” that the potential juror in Williams
was mistaken about her criminal record because she was under court
supervision at the time of trial, it is likely that C.B. either forgot or did
not understand that she had an arrest record dating back 16 years.
Thus, he argues, the trial court’s conclusion that she was untruthful
rather than merely mistaken was not “reasonable,” as required by this
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court in Williams.
We do not find the trial court’s assessment of C.B.’s veracity to
be unreasonable. We are reading the record and, thus, are not in a
position to assess the credibility and demeanor of C.B. Instead, we
must rely on the trial court’s superior ability to make these
assessments. See People v. Harris, 225 Ill. 2d 1, 38-39 (2007),
quoting Wainwright v. Witt, 469 U.S. 412, 426, 83 L. Ed. 2d 841,
853, 105 S. Ct. 844, 853 (1985) (“deference must be paid to the trial
judge who sees and hears the juror”).
In addition, we note that when asked during voir dire whether the
recent murder of her nephew would affect her ability to be an
impartial juror, C.B. answered “yes.” This may have been, as
defendant suggests, an inadvertent misstatement, because she later
said that she would be able to follow the law. However, “ ‘[i]t is
precisely in situations such as this, where the cold record suggests an
apparent contradiction, that we defer to the circuit court’s
discretion.’ ” Harris, 225 Ill. 2d at 38, quoting People v. Shaw, 186
Ill. 2d 301, 317 (1998).
II. Other-Crimes Evidence
Prior to trial, the State filed a motion to use proof and evidence of
other crimes, specifically limited to evidence of the burglary of
Callahan’s apartment. Although defendant was not charged with this
burglary, it occurred in the same building on the same day as the
murder. Property taken from Callahan’s apartment was found in the
victim’s apartment and a cigarette butt containing defendant’s DNA
was found in Callahan’s apartment. Thus, the State argued, evidence
of the uncharged burglary was relevant to the murder charge. The
State expressed its intent not to delve into any other residential
burglaries that defendant was charged with or suspected of or any
proceeds thereof. The motion was allowed.
Defendant filed a motion in limine, seeking to have portions of his
videotaped statement redacted, specifically, any mention of other
crimes he may have committed and his general explanation of the
method or procedure he followed when committing burglaries. The
State responded that his statement contained a full recollection of
what he did on the day of the murder and, thus, any redaction would
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lead to gaps in the narrative. The trial court denied the motion, but
directed that no comment or argument be made regarding defendant’s
other crimes. The prosecutor responded that he had “no intention” of
mentioning any of defendant’s other crimes and that the “other
pending residential burglary charges will absolutely not come in in the
State’s case in chief.” Further, the “police officers testifying will be
directed not to talk about the other charges, other cases.”
In his posttrial motion, defendant argued that evidence of his
commission of other crimes was improperly admitted. A hearing was
held on his motion and the motion was denied. Defendant argues to
this court that evidence of his commission of other crimes was
improperly admitted in two instances. Thus, he argues, he is entitled
to a new trial.
Evidence that a defendant has committed crimes other than the
one for which he is on trial may not be admitted for the purpose of
demonstrating his propensity to commit crimes. People v. Illgen, 145
Ill. 2d 353, 364 (1991). Such evidence, however, may be admitted for
a proper purpose such as proving modus operandi, intent, identity,
motive, or absence of mistake. Illgen, 145 Ill. 2d at 364-65. Even if
relevant to a purpose other than showing the mere propensity to
commit crime, evidence of other crimes may be excluded if its
probative value is outweighed by its prejudicial effect. Illgen, 145 Ill.
2d at 365. The admissibility of evidence at trial is a matter within the
sound discretion of the trial court and that court’s decision will not be
overturned absent a clear abuse of that discretion. Illgen, 145 Ill. 2d
at 364. Erroneous admission of other-crimes evidence calls for
reversal only if the evidence was “a material factor in the defendant’s
conviction such that, without the evidence, the verdict likely would
have been different.” People v. Hall, 194 Ill. 2d 305, 339 (2000).
A. Detective’s Testimony
At trial, Detective William Cotter of the Oak Park police
department testified that he and Detective William Ballard brought
defendant to the police station for questioning. After processing,
including the collection of a buccal swab for DNA comparison,
defendant was placed in an interview room, where he was interviewed
by Cotter and Detective Juan Paladines. The following exchange
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occurred:
“Prosecutor: Did either you or Detective Juan Paladines
introduce yourselves to the Defendant?
Cotter: Yes, we both introduced ourselves.
Prosecutor: How did you do that? What did you say?
Cotter: Just that my name, Detective Cotter with the Oak
Park Police Department. Detective Paladines was actually the
lead investigator. He introduced himself also.”
The State’s next witness was Detective Paladines, who testified
that he was the lead detective in the investigation of the murder of
Catherine McAvinchey. Paladines testified that he saw other
detectives bring defendant into the Detective Bureau. He asked his
immediate superior “if we could put Rodney in the back for a little bit
to let him cool down.” Having obtained permission to do so, he placed
defendant in a holding cell. Eventually, Paladines escorted defendant
from the holding cell to an interview room. The following exchange
occurred:
“Prosecutor: All right. Did you introduce yourself at that
time to the Defendant?
Paladines: I introduced myself initially when Rodney first
came in.
Prosecutor: How did you introduce yourself?
Paladines: I said, ‘Hi, Rodney. How you doing. I haven’t
seen you in a long time.’
Prosecutor: Did you tell him who you were?
Paladines: Yes.
Prosecutor: Did you tell him–
Defense Counsel: Objection.
COURT: Sustained.
Prosecutor: Did you tell him who you were?
Paladines: Yes.”
In his posttrial motion, defendant argued that the prosecutor acted
intentionally to elicit information from which the jury would
understand that the detective knew the defendant from past
encounters and infer that he was “a criminal.” At the hearing on the
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motion, the prosecutor explained that she did not intend to elicit
prejudicial information by asking the question. She did not anticipate
that the detective would answer in this manner. Her purpose in asking
the question was to demonstrate to the jury that the defendant knew
to whom he was speaking. The trial court found this explanation
credible.
In this appeal, defendant argues that the question was a deliberate
and successful attempt to introduce prejudicial information to the jury.
He asserts that the question was designed to elicit a response that
revealed defendant was known to the police and, by implication, that
he was a prior offender. Defendant also argues that the only questions
that such an answer might have been relevant to–his motive and intent
to commit burglary–were not in dispute because the defense strategy
was to admit the burglary while denying the murder. Thus, the only
purpose served by the question and answer was to demonstrate
defendant’s propensity to commit crimes. As a result, the prejudicial
nature of the statement necessarily outweighed its relevance.
The State responds that the prosecutor’s question was not a
deliberate attempt to elicit information about other crimes and that the
detective’s answer to the question was unexpected. Further, the State
argues that any error was cured because the trial court sustained
defense counsel’s objection following that answer and later instructed
the jury to “disregard questions and exhibits which are withdrawn or
to which objections were sustained.” Finally, the State argues that any
such error was not a factor in defendant’s convictions, given the
overwhelming evidence of guilt.
Defendant replies that the error was not cured by sustaining his
objection or by the jury instruction because the jury would not have
known which question and answer it was to disregard.
In People v. Bryant, 113 Ill. 2d 497 (1986), this court considered
a similar situation, after having granted the defendant a new trial on
other grounds. The defendant was charged with the attempted
burglary of a service station. Bryant, 113 Ill. 2d at 500. A police
officer testified that he was sent to the location in response to a call
from a neighbor. He saw the defendant running away from the
building and called for him to stop. The defendant continued running
and jumped a fence. The officer shouted at him again and the
defendant then stopped and returned to the station, where he was
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placed under arrest. Bryant, 113 Ill. 2d at 500-01.
On cross-examination, it was revealed that the officer called the
defendant by name when the officer said “I told him to freeze. He kept
on going. I called him by name and I told him I would shoot.” Bryant,
113 Ill. 2d at 514. Although the officer’s use of defendant’s name was
inadvertently elicited on cross-examination, the prosecutor made use
of this fact twice during closing argument. Bryant, 113 Ill. 2d at 514.
The record did not reveal how the officer happened to know the
defendant’s name, but this court noted the implication that might have
been “conveyed by testimony of this nature” and instructed that, on
retrial, such a statement by the officer would be “better avoided,
unless somehow relevant.” Bryant, 113 Ill. 2d at 514.
Similarly, in People v. Stover, 89 Ill. 2d 189 (1982), the defendant
was granted a new trial on other grounds. He was charged with
resisting or obstructing a peace officer. Police officers went to the
defendant’s apartment to arrest him. They announced their purpose
and the defendant ran to the rear of the apartment. An officer pursued
him and attempted to place him in handcuffs. A scuffle ensued and the
officer eventually subdued the defendant. Stover, 89 Ill. 2d at 192.
At trial, the officer testified that on the day of the arrest, he was
wearing his uniform, official hat, and deputy sheriff’s badge. He was
also wearing an equipment belt that contained a holster and weapon,
handcuffs, and nightstick. Stover, 89 Ill. 2d at 192. This portion of the
officer’s testimony was relevant to the knowledge element of the
offense charged. Stover, 89 Ill. 2d at 196. However, after eliciting this
testimony, the prosecutor asked the officer whether he had been
acquainted with the defendant prior to this incident and the officer
answered, “Yes.” Stover, 89 Ill. 2d at 192-93. The opinion does not
indicate whether there was an objection to this question.
On appeal, defendant argued that the question and answer
improperly provided a basis for the jury to infer that he had previously
engaged in criminal conduct. This court noted that the defendant’s
knowledge that the person at his door was a uniformed police officer
seeking to arrest him had already been clearly established before this
question was asked. Stover, 89 Ill. 2d at 196. Because there was “no
apparent reason why the prosecutor would inquire into defendant’s
previous acquaintance with [the officer] unless an implication of prior
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criminal activity was intended, ” this court directed that such inquiry
not recur on retrial. Stover, 89 Ill. 2d at 196.
Defendant argues that these two cases should lead us to conclude
that he is entitled to a new trial on the basis of the prosecutor’s
question and Detective Paladines’s answer. While we acknowledge
that the answer contained information from which a reasonable jury
might infer that defendant had a criminal record, we do not find either
case persuasive. In both cases, the defendants had already been
granted a new trial on unrelated grounds. Our discussion of this issue
was dicta, intended only to guide the trial court and the State on
retrial. We did not suggest that any such error was sufficient to
require a new trial. In addition, the prosecutor’s conduct in each case
was a deliberate attempt to call attention to the defendant’s familiarity
with the police. In the present case, the trial court found the
prosecutor’s explanation credible. We note that she asked essentially
the same question of both Cotter and Paladines for the same
purpose–to demonstrate that the defendant knew that persons to
whom he was speaking, neither of whom were in uniform, were police
detectives.
The defense theory of the case was that defendant committed the
two burglaries at 936 Washington Boulevard on July 31, 2003, but
that he left with the stolen property before Catherine McAvinchey
returned home and was killed by an unknown person. This theory
accounted for all of the physical evidence that implicated defendant.
In effect, the defense theory was that defendant was an experienced
burglar, who was careful to ascertain that no one was present at any
home or apartment he entered and that he had followed his usual
pattern on the day of the murder. In addition, counsel attempted to
portray defendant’s incriminating statements to the police as the
product of fear or manipulation, in an effort to persuade the jury to
disregard them. He suggested, for example, that the lack of a
videotape of defendant’s arrival at the Oak Park police department
might indicate that he was mistreated by the transporting officers.
Defense counsel’s cross-examination of Cotter began with the
question: “That day [September 17, 2003], you went and got Rodney
Adkins from the Cook County Jail where he was staying on another
matter, isn’t that right?” The prosecutor asked for a sidebar to note
that defense counsel was “eliciting from our witness the fact that his
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client was in jail on an unrelated matter.” During this cross-
examination, counsel mentioned the fact that defendant was taken
from the Cook County jail to be questioned regarding the Oak Park
murder at least seven more times. Thus, the jury was already aware
that defendant was familiar to law enforcement before Paladines ever
took the stand and that awareness was produced by the defense
strategy, not by the prosecution.
Given this line of questioning of Cotter and defense counsel’s
concession that defendant burglarized the victim’s apartment on the
day of the murder, the effect of Paladines’s answer to the prosecutor’s
question–if indeed the jury made the inference of prior criminal
conduct–is minuscule. Thus, any error in the admission of the
detective’s answer was not a material factor in defendant’s
convictions. See Hall, 194 Ill. 2d at 339. We, therefore, need not
consider the State’s assertion that the sustained objection and the jury
instruction were sufficient to cure any prejudice resulting from the
question and Paladines’s answer.
B. Defendant’s Videotaped Statement
Defense counsel objected to the admission of the entire videotaped
statement, arguing that portions of the tape were irrelevant and
prejudicial. The trial court overruled the objection, finding that the
evidence of other crimes was admissible because it was “part of the
continuing narrative of the event giving rise to the offense or, in other
words, intertwined with the offense charged.” The trial court noted
that this result was consistent with the appellate court’s decision in
People v. Slater, 393 Ill. App. 3d 977 (2009) (applying a continuing-
narrative exception to the general rule barring admission of other-
crimes evidence).
At trial, before the videotape was played for the jury, the trial
court noted that it had previously denied defendant’s motion in limine
to bar parts of the videotaped statement in which defendant spoke of
other burglaries on the basis that “it was the defendant’s statement
*** and the entire statement should come into the record.” The court
stated that it had watched the objected-to portion of the tape and
found that the “particular testimony is sufficient to show intent and
motive, and therefore balancing it on that issue, between its probative
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value and prejudicial, I believe the probative value would take the
position and therefore for those two reasons, I will allow it in.”
Defendant argues that the portion of his videotaped statement in
which he recounted how he and his girlfriend would commit burglaries
was irrelevant and prejudicial and should not have been shown to the
jury. He acknowledges that such other-crimes evidence may be used
for the purpose of showing intent and motive, but argues that his
intent and motive to burglarize the McAvinchey apartment were not
at issue. The only possible use the jury might have made of this
evidence, he asserts, is to convict him of murder based on his mere
propensity to commit burglaries. He also distinguishes Slater, arguing
that the other crimes referred to in his statement are not sufficiently
connected to the charged crime to be admitted under the “continuing-
narrative exception” to the propensity rule.
The State responds that the trial court’s reliance on Slater was
correct and that defendant’s “brief discussion of the procedures he and
Norwood usually employed when they burglarized homes was part of
defendant’s continuing narrative of how he broke into the victim’s
home and was in the middle of burglarizing it when the victim
returned home and he killed her.” In addition, the State argues that a
defendant’s intent and motive are relevant even when not
controverted. According to the State, defendant’s description of his
usual method of committing burglaries while avoiding getting caught
showed that his continuing motive was to obtain property to sell for
cash so that he could buy drugs. Finally, the State asserts that even if
admission of this small portion of the tape was error, it was harmless
error given the overwhelming evidence of defendant’s guilt.
In Slater, the defendant was charged with the first degree murder
of one victim and domestic battery of a second victim, his girlfriend.
Slater, 393 Ill. App. 3d at 978-79. The evidence showed that on the
day of the killing, the defendant was angry with his girlfriend because
he thought she had been out with someone else the night before. He
punched her in the nose while she was driving her car, causing it to
bleed so much that she could not see to drive. Slater, 393 Ill. App. 3d
at 979. They returned to the duplex they shared so that she could
clean her bloodied face. Shortly thereafter, two men arrived in a car.
The driver exited the car and approached defendant and his girlfriend
on the porch, offering to sell drugs. The driver did not leave the
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premises when ordered to do so by defendant, who retrieved a
shotgun from the trunk of his car. Defendant fired the shotgun in the
air and the driver turned to leave. As he walked back to his car,
defendant fired again, hitting the passenger who had remained in the
car. He died as a result of a shotgun wound to his face. Slater, 393 Ill.
App. 3d at 979-80.
On appeal, the defendant argued that counsel was ineffective for
failing to object to the joinder of the two offenses. The appellate court
resolved this issue by observing that even if the domestic battery
charge had been severed from the murder charge, the State could have
presented evidence of the domestic battery at the murder trial “under
the continuing-narrative exception to the proscription against the
admission of other-crimes evidence.” Slater, 393 Ill. App. 3d at 992.
Thus, even if defense counsel had successfully objected to the two
charges being tried together, the jury would have heard about the
domestic violence incident.
Neither Slater nor the parties offer any authority from this court
regarding the existence or the scope of a continuing-narrative
exception to the propensity rule.
In the case of People v. Pargone, 327 Ill. 463 (1927), the
defendant and two other men forced their way into an apartment
occupied by two women. They demanded money and took a watch
from one of the women and then tied the women’s hands and feet and
laid them on the bed. They also bound a young boy they found hiding
in the bathroom and pushed him under the bed. After ransacking the
apartment, they took clothing and other personal items and packed
them in boxes and suitcases. Eventually, they cut the ropes binding the
women and sexually assaulted them. The defendant “had intercourse”
with one of the women and “committed the crime against nature” with
the other woman. The men then left, carrying away the stolen
property. Pargone, 327 Ill. at 465. The defendant was convicted of
the rape of one of the women.
He argued on appeal that the trial court erred by admitting
evidence that he also assaulted the second woman because this was a
distinct substantive offense other than the offense with which he was
charged. Pargone, 327 Ill. at 468. This court held that the rule
excluding evidence that a defendant has committed other crimes
“applies only to disconnected crimes. If evidence offered has a
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tendency to prove the crime charged it is competent even though it
also proves a separate, distinct offense.” Pargone, 327 Ill. at 468-69.
The key fact was that “[a]ll the acts were part of one transaction.”
Pargone, 327 Ill. at 470.
This court used the phrase “continuing narrative” for the first time
in People v. Marose, 10 Ill. 2d 340, 343 (1957). In that case, this
court ruled that the trial court did not err by admitting evidence that
a defendant who was charged with rape was driving a stolen car when
he abducted the victim or that he forced her to submit to other sexual
acts after the rape. “The facts concerning the stolen car and other
sexual acts are all a part of the continuing narrative which concern the
circumstances attending the entire transaction and they do not concern
separate, distinct and disconnected crimes.” Marose, 10 Ill. 2d at 343.
See also People v. Walls, 33 Ill. 2d 394, 397 (1965) (evidence that
rape defendant and accomplices stole the automobile in which they
drove the victim home was properly admitted as part of continuing
narrative of “ ‘circumstances attending the entire transaction’ ”),
quoting Marose, 10 Ill. 2d at 343; People v. Johnson, 34 Ill. 2d 202,
206 (1966) (in trial of defendant charged with stealing from a sleeping
train passenger, testimony that he stole from another sleeping
passenger on the same train was part of continuing narrative).
In contrast, other-crimes evidence may not be admitted under the
continuing-narrative exception, even when the crimes occur in close
proximity, if the crimes are distinct and “undertaken for different
reasons at a different place at a separate time.” People v. Lindgren, 79
Ill. 2d 129, 139-40 (1980) (granting new trial to defendant charged
with the murder of his girlfriend’s grandfather where State admitted
evidence that he set fire to his ex-wife’s house six blocks away and
one to two hours after the victim was robbed and killed).
Evidence regarding the burglary of the Callahan apartment was
properly admitted in this case because it was part of the continuing
narrative of the charged murder. However, defendant is correct that
his admission that he would “go out from time to time and burglarize”
and his description of the technique he regularly employed to do so do
not fit this exception. His earlier burglaries were not relevant to the
circumstances on the day of the murder.
However, we conclude that even though defendant objected to the
admission of these statements, they were relevant for a purpose other
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than showing his mere propensity to commit crimes. These statements
were consistent with and tended to support the theory of the
defense–that he committed the burglary that day, but left before the
murder occurred. Defendant cannot complain that he was prejudiced
by his own mention of his other crimes when his admission that he
burglarized residences from time to time and had developed means of
avoiding detection tended to show that as a burglar, he successfully
avoided contact with the residents of the homes he entered. We
conclude, therefore, that it was not error for the trial court to admit
the challenged portions of defendant’s videotaped statement over his
objection.
Even if admission of such statements is error, such an error does
not necessarily entitle defendant to a new trial. If improperly admitted
other-crimes evidence was not a material factor in defendant’s
conviction, reversal is not required. Hall, 194 Ill. 2d at 339.
We find it highly unlikely that the jury was improperly influenced
by defendant’s brief account of his typical approach to burglary. If
anything, his explanation of the efforts he would take to ensure that
he would not encounter anyone at home during one of his crimes is
consistent with his claim that he is merely a burglar, not a murderer.
Further, the evidence of defendant’s guilt was overwhelming. Thus,
even if it was error to admit portions of defendant’s statement, he is
not entitled to a new trial on this basis
III. Eligibility for the Death Penalty
A defendant who is convicted of murder is eligible for the death
penalty if he is over the age of 18, the murdered individual was killed
in the course of another felony, and the defendant actually killed the
murdered individual. 720 ILCS 5/9–1(b)(6)(a)(i) (West 2002).
At the eligibility hearing, the State presented a certified copy of
defendant’s birth certificate, showing his date of birth as July 29,
1963, making him 40 years old at the time of the murder. The State
also presented certified copies of the verdict forms from the guilt
phase of the trial, showing that defendant had been convicted of first
degree murder (720 ILCS 5/9–1(a) (West 2002)), home invasion (720
ILCS 5/12–11(a)(2) (West 2002)), and residential burglary (720 ILCS
5/19–3(a) (West 2002)). The prosecutor argued that the evidence at
-24-
trial proved that defendant was the individual who killed the victim
and that after the killing he removed certain items of the victim’s
property from the apartment.
The trial court found that the State met its burden of proof to
show that defendant was 18 years of age or older at the time of the
murder. Further, the evidence adduced at trial showed that defendant
“in fact, committed the murder, and that, while committing the
murder, connected to that murder, were the additional crimes of home
invasion, a felony, and residential burglary, a felony.” The
prerequisites for eligibility for the death penalty “having been proven
beyond a reasonable doubt,” the trial court found defendant eligible
for death penalty sentencing.
Defendant argues in his brief to this court that the conviction for
home invasion must be vacated because it was based on the “same
physical acts” as the murder and that, as a result, the murder was not
committed “in the course of” a separate felony of home invasion. At
oral argument, however, counsel conceded that defendant’s conviction
for home invasion is proper under our decision in People v. McLaurin,
184 Ill. 2d 58 (1998) (home invasion is not a lesser-included offense
of intentional murder). He argued, instead, that the manner in which
the State charged the two crimes in the indictment (alleging that
defendant “beat and stabbed” the victim causing her death and that he
“beat and stabbed” the victim intentionally causing injury) means that
the home invasion conviction based on the same charged conduct may
not be used as an aggravating factor at the eligibility phase of a capital
sentencing hearing.
He argues further that under the standard established by this court
in People v. Hattery, 109 Ill. 2d 449 (1985), counsel was ineffective
for conceding at trial that he committed the felony of residential
burglary.
Defendant’s commission of murder in the course of either felony
provides a sufficient basis for the trial court’s finding that defendant
was eligible for the death penalty. See People v. Williams, 193 Ill. 2d
306, 362-63 (2000). Thus, if either of defendant’s two arguments
fails, the other argument need not be addressed by this court. We
choose to address the issue regarding counsel’s performance.
Generally, a claim of ineffective assistance of counsel is analyzed
-25-
under the two-part test set out by the United States Supreme Court
in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674,
693, 104 S. Ct. 2052, 2064 (1984). However, the Strickland court
noted that some circumstances are so likely to cause prejudice to the
accused that prejudice will be presumed. Strickland, 466 U.S. at 692,
80 L. Ed. 2d at 696, 104 S. Ct. at 2067, citing United States v.
Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984).
Where counsel “entirely fails to subject the prosecution’s case to
meaningful adversarial testing, then there has been a denial of Sixth
Amendment rights that makes the adversary process itself
presumptively unreliable.” Cronic, 466 U.S. at 659, 80 L. Ed. 2d at
668, 104 S. Ct. at 2047.
This court applied the Cronic analysis in Hattery, finding that the
defendant had been denied effective assistance of counsel. Hattery was
convicted of the murders of a woman and her two children. He had
been ordered by Mister, a leader in the street gang to which both men
belonged, to remain with the victims in their apartment while Mister
took their husband and father on an unsuccessful search to buy drugs.
Mister told the defendant that if he did not return in five minutes, he
knew “what to do.” Hattery understood that he was to kill the woman
and her children. He waited longer than five minutes, but he did follow
Mister’s instructions. Hattery, 109 Ill. 2d at 453-55. The evidence
against Hattery was overwhelming, and included a transcribed
statement in which he admitted the murders. Hattery, 109 Ill. 2d at
454-55.
Defense counsel conceded during opening argument that Hattery
had killed the three victims, but argued that he did so because Mister
would kill his mother and sisters if he refused to follow Mister’s
orders. Hattery, 109 Ill. 2d at 458. Counsel told the members of the
jury that he did not expect them to find his client not guilty of murder
and that he did expect them to find him eligible for the death penalty.
Counsel argued that “the only question facing” the jury was whether
to impose the death penalty on a killer who was trying to save the
lives of his own family members. Hattery, 109 Ill. 2d at 459.
During trial, defense counsel attempted to develop, through cross-
examination, evidence that the defendant was compelled by Mister to
kill the victims. Otherwise, counsel presented no theory of the
defense, presented no evidence, and chose not to make a closing
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statement. Hattery, 109 Ill. 2d at 459. The defendant’s attorneys also
conceded that his statement confessing to the murders was truthful
and mentioned at several points during the guilt phase of trial that this
was a “death penalty case.” The prosecutor’s closing argument
emphasized the fact that defense counsel conceded the defendant’s
guilt. Hattery, 109 Ill. 2d at 460.
This court concluded that counsel’s “unequivocal” concession of
his client’s guilt, when Hattery had pleaded not guilty, resulted in the
State’s case not being “subjected to the ‘meaningful adversarial
testing’ required by the sixth amendment.” Hattery, 109 Ill. 2d at 464,
quoting Cronic, 466 U.S. at 656, 80 L. Ed. 2d at 666, 104 S. Ct. at
2045. In addition, certain comments by defense counsel “further
impressed upon the jury the false notion that the guilt or innocence of
the defendant was not at issue but, rather, had already been decided.”
This strategy was not unreasonable, given the facts, but “was totally
at odds with defendant’s earlier plea of not guilty.” Thus, this strategy
should not have been pursued without the defendant’s consent.
Hattery, 109 Ill. 2d at 464-65. This court reversed defendant’s murder
convictions on the basis that the defendant was denied his right to the
effective assistance of counsel. Hattery, 109 Ill. 2d at 465.
Defendant argues that he was similarly denied the effective
assistance of counsel.
At the guilt phase of trial, the attorney presenting defendant’s
opening argument began: “On July 31st, 2003, Rodney Adkins
committed a burglary at the home of Catherine McAvinchey.” She
further stated that after defendant rummaged through her apartment,
taking jewelry and other items, “then what he did was left.” She
acknowledged that the physical evidence, including fingerprints and
DNA, placed him at the scene of the murder, but argued that no
physical evidence, such as hair or fibers, connected him to the murder
weapon or to the body of the victim. She concluded by saying that
“the physical evidence in this case will show you that Rodney Adkins
committed a burglary, but this evidence does not show that he
committed murder.”
Defense counsel thoroughly cross-examined the State’s witnesses.
The proprietor of the pawn shop where defendant sold jewelry the
afternoon of the murder acknowledged that he saw no blood on
defendant’s clothing. Hoskins did not find any blood on the duffle bag
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or the computers he bought from defendant. The officer who
recovered the duffle bag from Hoskins saw no blood on the bag or its
contents. The assistant medical examiner acknowledged on cross-
examination that DNA or other evidence may be transferred from an
attacker to a victim “in close proximity” to each other and that no
such evidence was found on the victim’s body.
Other cross-examinations established that the State Police DNA
analyst did not swab or test the handle of the murder weapon when
she tested the bloodstain on the blade. She did not test fingernail
clippings from the victim for DNA or examine the black duffle bag for
bloodstains. She agreed that she could not determine when a
particular DNA sample was deposited.
Defense counsel questioned Paladines regarding photographs of
defendant taken after he gave the videotaped statement. The
photographs were taken to show that he had no injuries. Paladines
acknowledged that such photographs would not show if any “mental
coercion or anything like that” had happened to the defendant.
Counsel also questioned both Cotter and Paladines regarding the
fact that Norwood was not charged in this case, suggesting that they
believed defendant’s confession was false, at least to the extent that
it implicated Norwood in the burglary and murder. Assistant State’s
Attorney Santini also acknowledged that the only person charged with
this murder was defendant. However, the trial court sustained the
State’s objections to all other questions regarding his decision not to
charge Norwood and his belief or nonbelief in the truth of defendant’s
statement.
The defense rested without calling any witnesses.
In closing argument, defense counsel told the jury that “a
deliberate and dispassionate examination of the evidence” would show
that “Rodney Adkins committed the residential burglary of Cathy
McAvinchey’s home, but he did not see her, he did not come in
contact with her, and he did not murder her.” Counsel repeatedly
emphasized the fact that no physical evidence connected defendant to
the murder weapon or to the victim’s body–there was no evidence of
him on her; no evidence of her blood on him. Counsel described his
client as a drug addict who stole to support his habit, but who was not
a murderer, and called the jury’s attention to unidentified fingerprints
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in victim’s home, pointing out that the police did not attempt to lift
fingerprints from the sink or faucet handles to see who else might have
rinsed blood from the knife.
Counsel argued further that defendant’s videotaped statement was
false, emphasizing the fact that defendant’s statement implicated
Norwood, yet she was not charged. If his statement were true, counsel
argued, Norwood would have been charged. Thus, the “reasonable
inference is that Oak Park and the State’s Attorney do not believe that
Romanette Norwood was there when the murder happened.” The
court sustained the State’s objection to this comment.
Counsel characterized the portions of the statement regarding the
burglary as true and noted their detail. In contrast, counsel argued, the
portions of the statement regarding the alleged murder were lacking
in detail or were inaccurate (for example, defendant said that there
was little blood at the scene). This, he suggested, indicated that the
police “fed” defendant details of the murder so that he would include
them in his statement. According to counsel, it was noteworthy that
defendant’s statement did not mention his smoking a cigarette at the
scene. This omission, he suggested, occurred because the police did
not learn until much later that the cigarette butt found in Callahan’s
apartment contained defendant’s DNA.
In conclusion, counsel reiterated the theme of the defense: “If he
left behind evidence of a residential burglary, why wouldn’t he leave
behind evidence of a murder?” Counsel reminded the jury of the
presumption of innocence and the State’s burden of proving guilt
beyond a reasonable doubt.
In its rebuttal, the State responded to counsel’s argument
regarding the fact that Norwood was not prosecuted by stating that
defendant was trying to deflect some of the blame for his own crimes
onto his girlfriend and that the only evidence that put Norwood at the
scene was defendant’s own statement.
Citing this court’s decision in Hattery, defendant now argues that
this entire strategy was flawed because “[i]f it failed and the jury
convicted [defendant] of the murder, he had no defense to his
eligibility for the death penalty because of counsel’s concession that
[he] had committed residential burglary.” He attempts to distinguish
this court’s decision in People v. Johnson, 128 Ill. 2d 253 (1989), on
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the basis that the defendant in that case attempted to use Hattery to
attack his conviction, not his sentence. Defendant explains that he is
not arguing that the strategy was ineffective at the guilt phase, but that
“counsel needed his consent for that strategy because of [its] effect on
the eligibility phase of the proceedings,” because this concession,
standing alone, was sufficient to make him eligible for the death
penalty once the jury found him guilty of murder.
In Johnson, this court addressed a defendant’s claim that his trial
counsel was presumptively ineffective under Cronic and Hattery. The
defendant had been fired from his job and he returned to the
workplace to confront his former manager over unpaid wages to
which he thought he was entitled. After he was refused, he left and
returned with a gun. He shot the manager and another employee
several times and ordered a second employee to lie on the floor. He
took a wallet from the manager’s body. He took cash and car keys
from the second employee and shot him twice, then took additional
cash from his pocket. When he saw that the second employee was still
moving, he stabbed him with a knife. The first employee died from
two gunshot wounds to the chest. The manager and the second
employee survived their injuries and testified at trial. After his arrest,
the defendant told officers where they could find the murder weapon.
He also gave police a written statement, which was admitted into
evidence at trial. Johnson, 128 Ill. 2d at 259-61.
The theory of the defense was that although the defendant
committed murder and other crimes, he did not commit murder in the
course of an armed robbery. Thus, defense counsel conceded guilt to
murder, but contested the armed robbery and felony-murder charges.
This strategy was based on counsel’s assessment that the evidence on
the intentional-murder charge was overwhelming, but that if the
defendant were found not guilty of felony murder, he would not be
eligible for the death penalty. Johnson, 128 Ill. 2d at 262.
Defense counsel conceded during his opening statement that the
defendant committed the murder, but argued that he did so before he
decided to take property from the victim. The issue, according to
counsel, was not whether the defendant committed murder, but
whether he committed felony murder. During trial, defense counsel
cross-examined the surviving victims, attempting to elicit testimony
that the defendant did not enter the store with the intent to rob them.
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Johnson, 128 Ill. 2d at 264-65. The defense presented no witnesses.
In closing argument, counsel again admitted defendant’s guilt of the
murder, but reiterated the claim that defendant took the money and
other property as “an afterthought” and that, therefore, the State had
not proven beyond a reasonable doubt that he committed the murder
in the course of an armed robbery. Johnson, 128 Ill. 2d at 265. The
defendant was convicted of felony murder and other charges and
sentenced to death.
This court distinguished this trial strategy from the one employed
in Hattery, where counsel “made an unequivocal concession to the
murder charge, the only charge brought against the defendant,” and
where counsel conceded eligibility for the death penalty. Johnson, 128
Ill. 2d at 267-68. In Johnson, there “was asserted a theory of defense
to a number of charges, not just a theory of mitigation, and this theory
was pursued during opening and closing arguments and during cross-
examination.” Johnson, 128 Ill. 2d at 270. Although counsel conceded
his client’s guilt of murder, “going to trial did preserve for the
defendant matters that a guilty plea necessarily would have waived.”
Johnson, 128 Ill. 2d at 270. In addition, counsel did not abandon even
the pretense of defending his client; rather, counsel argued that the
State was required to meet its burden of proof beyond a reasonable
doubt and that it had not done so. Johnson, 128 Ill. 2d at 270.
Because we found Hattery inapplicable, this court then conducted
the two-part Strickland analysis for ineffective assistance of counsel
and, without deciding the first prong, concluded that in light of the
overwhelming evidence, the defendant suffered no prejudice from the
claimed errors. Johnson, 128 Ill. 2d at 271.
In the present case, defendant does not make a claim under
Strickland. Neither party briefed this issue. At oral argument,
defendant admitted that given the strength of the State’s case, it
would be difficult for him to meet the prejudice prong.
He argues instead that counsel’s strategic choice at the guilt phase,
although it might have been a reasonable trial strategy, deprived him
of his right to demand that the State prove his eligibility for the death
penalty beyond a reasonable doubt. Thus, defendant argues, the
question presented is whether under our decisions in Hattery and
Johnson he was deprived of his right to an adversarial hearing at the
eligibility phase because counsel conceded his guilt of residential
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burglary at the guilt phase.
The State responds that counsel did not concede defendant’s guilt
on all charges, as occurred in Hattery; rather, counsel vigorously
contested the murder charge even while acknowledging that the
evidence of defendant’s guilt of residential burglary was
overwhelming. Further, because eligibility for the death penalty did
not become an issue until after defendant was found guilty of murder,
the State argues that counsel’s trial strategy was reasonable.
We find that the present case more closely resembles Johnson than
it does Hattery. Defendant’s attorneys did not concede that he was
guilty of murder; they did subject State’s case to meaningful
adversarial testing; and they did present a theory of the defense.
The evidence convincingly demonstrated that defendant
committed the burglary of McAvinchey’s apartment. Defense counsel
recognized that there were only three possible explanations for what
happened on that July day: either defendant broke into an apartment
in which the resident had just been murdered, or he committed the
murder in the course of the burglary, or he left the apartment with
stolen property and the resident was murdered by someone else almost
immediately thereafter. Counsel likely found the first scenario
unworthy of belief because a person who discovered a murder scene
during a burglary would likely flee rather than remain to complete the
crime and leave behind evidence that could incriminate him in the
murder. Thus, the theory pursued by the defense was that the mere
possibility of the third scenario created reasonable doubt of
defendant’s guilt.
Counsel also had to contend with defendant’s videotaped
statement, which admitted both the burglaries and the murder.
Attempts to exclude the statement were unsuccessful. Thus, the
attorneys representing defendant recognized that to avoid a conviction
for murder, they had to not only explain the physical evidence, they
had to discount defendant’s incriminating statement. The only
reasonable way to address the physical evidence–DNA on the
cigarette butt, fingerprint on the bottle, and the stolen goods either
pawned, sold, or given away by the defendant–was to admit that he
had committed the burglaries. Counsel also argued zealously, but
unsuccessfully, that defendant’s statement was not worthy of belief
because he was either lured or pressed in to making the statement.
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Defendant does not suggest an alternative theory that might have
been pursued at trial and, indeed, he admits that this theory was a
reasonable approach at the guilt phase, given the evidence against him.
He argues that even though he was well represented at trial, the failure
of the defense strategy deprived him of a meaningful hearing on the
question of death eligibility. He cites our decision in People v. Mata,
217 Ill. 2d 535 (2005).
In Mata, a defendant whose death sentence had been commuted
to a sentence of natural life in prison challenged the statutory
aggravating factor that had been used to find her eligible for the death
penalty. Had she not been found death-eligible, she would have been
sentenced to a term of years with the possibility of eventual parole.
Thus, even though her death sentence was commuted, she was still
subject to the effects of the finding of eligibility. Mata, 217 Ill. 2d at
542-43. Her argument on appeal was that the State had not proven the
statutory aggravating factor of commission of murder in “a cold,
calculated and premeditated manner pursuant to a preconceived plan,
scheme or design to take a human life by unlawful means” (720 ILCS
5/9–1(b)(11) (West 1998)) beyond a reasonable doubt. Mata, 217 Ill.
2d at 539.
The issue was governed by the United States Supreme Court’s
decisions in 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). In Apprendi, the Court held
that “[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-
63. In Ring, the Court noted that the aggravating factors that allow
imposition of the death penalty operate as “ ‘the functional equivalent
of an element of a greater offense.’ ” Ring, 536 U.S. at 609, 153 L.
Ed. 2d at 577, 122 S. Ct. at 2443, quoting Apprendi, 536 U.S. at 494
n.19, 147 L. Ed. 2d at 457 n.19, 120 S. Ct. at 2365 n.19. Under these
rules, Mata was entitled to claim that the evidence of the aggravating
factor was insufficient, despite the commutation of her death sentence.
The matter was remanded to the appellate court for consideration of
the merits of her appeal. Mata, 217 Ill. 2d at 550-51.
Defendant offers Mata as support for his argument that because
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a statutory aggravating factor is the “functional equivalent” of an
element of the offense of capital murder, defense counsel’s conceding
existence of any one of the charged aggravating factors amounted to
a guilty plea “to a new offense” without his consent to such a plea. At
oral argument, counsel used the expression that trial counsel had
“pleaded guilty to eligibility.”
Mata does not support this argument. The constitutional right at
stake in Apprendi, Ring, and Mata was the sixth amendment right to
trial by jury–to have each element of each offense proved to an
impartial jury beyond a reasonable doubt. The constitutional right at
stake in Cronic, Hattery, and Johnson was the sixth amendment right
to the effective assistance of counsel. Defendant does not make an
Apprendi-based argument.
Even under the Apprendi line of cases, no error occurred. At the
beginning of the sentencing phase, the State moved to readmit all
evidence presented at trial. The motion was granted. Defendant’s
eligibility for the death penalty was shown to the trial court–an
impartial finder of fact–by overwhelming evidence that he was
interrupted by the victim while in the act of burglarizing her apartment
and that he killed her to avoid being identified. Thus, the finding of
eligibility for the death sentence did not violate Apprendi, Ring, or
Mata.
In sum, defendant has not demonstrated that trial counsel was
presumptively ineffective under Cronic and Hattery and has not
argued prejudice under Strickland. Thus, he was properly found
eligible for the death penalty based on his commission of murder in the
course of a residential burglary.
IV. Right of Confrontation at Second Phase of
Sentencing Hearing
During the second phase of the sentencing hearing, over defense
counsel’s objection, the State was permitted to admit into evidence
the affidavit of Steven Farrell Dozier, former director of the Arkansas
State Police. The affidavit stated that in 1986, Dozier had been an
investigator in the criminal investigation division of the state police.
He assisted a local police department in the investigation into the
origin and cause of a house fire. Property had been stolen from the
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premises. In his opinion, the fire had been set to cover the crimes of
burglary and theft. He subsequently interviewed defendant, who was
in custody in Tennessee awaiting extradition to Arkansas to face other
charges. Defendant confessed to the break-in and the theft of
property, but initially denied setting the fire. He also admitted to
another break-in and theft earlier the same day. Defendant consented
to the search of the room that he occupied in his mother’s home. The
stolen property from the two homes was found in his room. In
addition, other stolen property was recovered from individuals who
stated that they purchased the items from defendant. Defendant
pleaded guilty to burglary, theft, and arson and was sentenced to 20
years’ imprisonment, with 12 years suspended.
The State also called Cook County Assistant State’s Attorney
Jamie Santini, who testified that on September 10, 2003, he
interviewed Romanette Norwood, defendant’s girlfriend, at the Oak
Park police department. Norwood was advised of her rights and
signed a Miranda waiver. After several hours of questioning, she
consented to have her statement videotaped. The tape and a transcript
of her statement, which is summarized above, were admitted into
evidence and the tape was played for the court.
Defendant notes, correctly, that the Dozier affidavit and the
Norwood statement are hearsay. Thus, he argues, his sixth amendment
right to confront the witnesses against him was violated by admission
of these items of evidence because he did not have the opportunity to
cross-examine either declarant.
This court has long held that hearsay evidence is admissible at the
second phase of a capital sentencing hearing so long as the evidence
is relevant and reliable. People v. Free, 94 Ill. 2d 378, 423 (1983).
This standard was called into question by the United States Supreme
Court’s decision in Crawford v. Washington, 541 U.S. 36, 68, 158 L.
Ed. 2d 177, 203, 124 S. Ct. 1354, 1374 (2004), which held that the
hearsay statement of a witness who is unavailable at trial may not be
admitted against a criminal defendant if the statement is testimonial in
nature, unless the defendant has had a prior opportunity to cross-
examine the witness regarding the statement. Crawford did not
consider whether the confrontation clause of the sixth amendment is
applicable at the aggravation/mitigation phase of a capital sentencing
hearing.
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We answered this question in People v. Banks, 237 Ill. 2d 154,
203 (2010), holding that the confrontation clause does not apply at the
second phase of a capital sentencing hearing and reaffirming the
standard of relevance and reliability.
At the second phase of a capital sentencing hearing, the ordinary
rules of evidence are relaxed so that the jury and/or the trial court may
have the fullest information possible with respect to the defendant’s
life, character, criminal record, and the circumstances of the particular
offense. People v. Kliner, 185 Ill. 2d 81, 171 (1998). As noted, the
only requirement for the admissibility of evidence at this phase of a
capital sentencing hearing is that the evidence be relevant and reliable.
This determination rests within the sound discretion of the trial court.
People v. Caffey, 205 Ill. 2d 52, 125 (2001).
In the present case, the contents of the Dozier affidavit were both
relevant and reliable. The affidavit provided the court with accurate
information taken from official records regarding defendant’s long
criminal history, evidence that tends to negate one of the statutory
mitigating factors. See 720 ILCS 5/9–1(c)(1) (West 2002) (the fact
that a defendant has no significant history of prior criminal activity
may be used as a mitigating factor).
Defendant argues that Norwood’s statement was not reliable
because his own statements to the police implicated her in the burglary
and murder and, thus, he argues, she had a “powerful incentive to
place all of the blame” on him. He cites Lee v. Illinois, 476 U.S. 530,
541, 90 L. Ed. 2d 514, 526, 106 S. Ct. 2056, 2062 (1986), for the
proposition that the natural desire to exonerate oneself when talking
to the police makes the statement of a codefendant presumptively
unreliable.
Lee is inapposite. In that case, the defendant challenged the
admission of a codefendant’s confession as substantive evidence
against him at trial in a noncapital case. At that time, a hearsay
statement could be admitted against a criminal defendant without
violating the confrontation clause so long as the statement met an
exception to the hearsay rule and the statement was sufficiently
reliable to warrant its “untested admission.” Lee, 476 U.S. at 539, 90
L. Ed. 2d at 525, 106 S. Ct. at 2061, citing Ohio v. Roberts, 448 U.S.
56, 65, 65 L. Ed. 2d 597, 607, 100 S. Ct. 2531, 2538-39 (1980),
abrogated by Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d
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177, 124 S. Ct. 1354 (2004). The Court held in Lee that the
codefendant’s statement “as the confession of an accomplice, was
presumptively unreliable and that it did not bear sufficient independent
‘indicia of reliability’ to overcome that presumption.” Lee, 476 U.S.
at 539, 90 L. Ed. 2d at 525, 106 S. Ct. at 2061.
In the present case, Norwood is not a codefendant and her
videotaped statement was not a confession. She was not charged with
any crime in connection with the burglary and murder. Other than her
frank admission to illegal drug use and assisting defendant in some
earlier burglaries, the only evidence that might have implicated her in
the crimes of which defendant was accused was her possession of the
stolen watch, sunglasses, and eyeglasses. Her explanation that
defendant gave these items to her is entirely plausible. In addition, no
physical evidence connects her to the crime scene and there is no
evidence at all of more than one intruder. All of the evidence is
consistent with her version of the events, including defendant’s use of
the black duffle bag and the sale of the stolen computers to Hoskins.
The only suggestion that she was involved in any way was made by
defendant. Thus, it is defendant who attempted to shift some of the
blame to Norwood, perhaps in an effort to undermine her credibility
if she should testify as a witness against him. We conclude that the
trial court did not abuse its discretion in admitting her statement,
which was sufficiently reliable, relevant to his conduct in the
immediate aftermath of the brutal murder and his mental state in the
days following, and tended to show his lack of remorse.
V. Death Penalty as Excessive Sentence
Defendant argues that the death penalty is excessive, given his
impoverished and neglected childhood, his nonviolent criminal history,
his drug addiction, his work history, and the fact that he has been a
model prisoner since his arrest for this crime. He asserts that a life
sentence would permanently protect society from his actions in the
future and asks this court to vacate his death sentence and remand for
a new sentencing hearing at which a lesser sentence will be imposed.
The State points to the viciousness of the crime, defendant’s lack
of remorse, and other evidence in aggravation, including the fact that
he was on mandatory supervised release at the time of the murder, and
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argues that this evidence far outweighs the “paucity of evidence in
mitigation.” Thus, the State asserts, the trial court reached the proper
and just conclusion when it sentenced defendant to death and this
court should affirm the sentence.
The applicable statute provides that this court “may overturn” a
death sentence, without respect to any procedural ground for reversal
or trial error, if we find that the death sentence is “fundamentally
unjust as applied to the particular case.” 720 ILCS 5/9–1(i) (West
2008). Thus, “[w]hen 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.” People
v. Thompson, 222 Ill. 2d 1, 36 (2006). Because the second phase of
a death penalty hearing is “a process of evidentiary balancing,” which
requires the trier of fact to assess the credibility of the witnesses, we
will not lightly overturn the trier of fact’s decision. Thompson, 222 Ill.
2d at 35. However, we will conduct a “thorough and careful review,
considering the circumstances of the crimes and the character of the
defendant to determine whether the death penalty is appropriate.”
Thompson, 222 Ill. 2d at 36. Our goal is to “ensure that only those
deserving of the ultimate penalty are so sentenced.” Thompson, 222
Ill. 2d at 35.
Because of the “intense scrutiny” (Thompson, 222 Ill. 2d at 35)
required, we summarize the evidence of aggravating and mitigating
factors in detail.
At the eligibility phase hearing, the State moved to readmit all of
the evidence and exhibits that were utilized at trial. The court noted
that it was allowed to consider all such evidence and exhibits in
sentencing and, without objection by the defendant, allowed the
motion. Thus, the facts and circumstances of the crime, described
above, were properly considered in sentencing.
The State began its case in aggravation with a summary of
defendant’s extensive criminal history. His first conviction for burglary
occurred in Illinois in 1981. He was 18 years old. He was sentenced
to 18 months’ probation, but violated probation less than 4 months
later and was sentenced to 3 years’ imprisonment.
Seven months after he was paroled, he was convicted of attempted
felony burglary in Tennessee and sentenced to one year in prison.
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Later, while on parole for this offense, he was convicted of a carrying
a dangerous weapon and again given probation.
At age 24, he was convicted in Arkansas of burglary, theft, and
arson and given a 21-year sentence, with 12 years suspended. Four
years later, he was out of prison and again convicted of burglary and
sentenced to five years’ probation.
In 1993, he pleaded guilty to theft in Illinois and was sentenced to
four years’ imprisonment. He was released in 1995. Nineteen months
after his release, he pleaded guilty to residential burglary and arson
and was sentenced to 15 years’ imprisonment. His guilty pleas to two
additional residential burglary charges resulted in two additional 15-
year concurrent sentences. He was released from prison on June 12,
2002.
He was still on mandatory supervised release on July 31, 2003,
when he committed the murder of which he now stands convicted. He
was charged with five additional residential burglaries after he was
convicted in the present case. Defendant stated to the probation
officer who prepared the presentence investigative report that he had
been “out in the world” for a total of three years between the time he
was 17 and when, at age 40, he murdered Catherine McAvinchey.
Elizabeth Touhy Masterson testified that on August 28, 2003, she
was a medical student, living alone in an apartment in Forest Park,
Illinois. At approximately 5 p.m. on that date, she returned home,
entering the apartment through the kitchen door. She found plastic
grocery bags strewn about the kitchen. On entering the living room,
she saw that the front door had been kicked in and her stereo, CD
player, suitcases, and other items were spread on the living room
floor. In her bedroom, the dresser drawers had been pulled open. She
left the apartment and called 911. Several pieces of heirloom jewelry
had been taken, along with newer jewelry, her flute, her CDs and
DVDs, some liquor, and some cash. Later, she visited several pawn
shops in an effort to locate some of her belongings. She found a
necklace that had belonged to her great aunt and her flute, which was
identified by a serial number, at a pawn shop in North Riverside,
Illinois. She did not locate any of the other stolen items. Defendant
was eventually arrested and charged with the burglary of Masterson’s
apartment. That case was pending at the time of the sentencing
hearing.
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Detective Juan Paladines of the Oak Park police department
testified regarding a burglary that occurred on June 24, 1993. The
door to the residence had been forced open and jewelry valued at over
$10,000 was taken. That same day, an intruder forced open the door
of another residence, but fled when he saw that the occupants were at
home. Another similar burglary occurred in Oak Park on July 15,
1993. The door was forced open and a coin collection was stolen.
Defendant subsequently pleaded guilty to two counts of theft for these
crimes.
Detective Roger Grivetti of the Oak Park police department
testified that he investigated a burglary that occurred on February 9,
1995. After the victim left for work in the morning, the rear door of
his house was kicked in. The house was ransacked and jewelry,
currency, and other items were stolen. Latent fingerprints were
recovered and one was identified as belonging to defendant.
Grivetti also investigated a residential arson that occurred on
February 15, 1995. The occupant of the house encountered defendant
on her front porch as she was leaving for work. He claimed to be
responding to an advertisement placed by a person named Roberts.
She told him that she had not placed such an ad and continued on to
work. When she returned home, she discovered police and firefighters
on the scene. A fire had extensively damaged the first floor of her
home. A search revealed that the door had been kicked in and the
upstairs ransacked. A gold watch and fur coat were among the items
taken. A latent fingerprint taken from a safe in an upstairs bedroom
matched the defendant. The fire was started by a burning cigarette left
on a couch. One member of the household was a smoker, but he did
not smoke in the home and he used a different brand from the
cigarette butt recovered from the couch.
On February 17, 1995, Grivetti investigated another burglary.
After the resident left for work, the front door of her residence was
kicked in and the house was ransacked. Jewelry and pocket watches
were taken, along with a Sony Walkman and some currency.
Defendant was arrested that afternoon and the stolen items were
found on his person, as well as a watch that had been taken during the
February 15 burglary and arson. Defendant pleaded guilty to the three
crimes investigated by Grivetti and was sentenced to three concurrent
terms of 15 years’ imprisonment.
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The Dozier affidavit was admitted at this point. The contents of
the affidavit are summarized above.
William Ballard, a patrol sergeant with the Oak Park police,
testified that he had been involved with the investigations of the
murder of Catherine McAvinchey and other crimes committed by
defendant, for which charges were then pending. He testified
regarding a residential burglary that occurred 10 days after the
murder. The back door of the apartment was kicked in, the apartment
was ransacked, and items were stolen. In addition, one week after the
murder, another burglary occurred in which the door was kicked in
and computers, DVDs, and jewelry were taken. One of the stolen
computers was recovered from the same individual who purchased the
murder victim’s laptop. Finally, on August 25, 2003, the back door of
another home was kicked open, a DVD player, VCR, and a cable box
were stolen. The cable box was recovered from defendant’s residence.
Michael Keating, a sergeant with the Forest Park police, testified
that he had been trained as an evidence technician and that he
collected evidence at the scene of a residential burglary on August 27,
2003. The front door of the apartment had been kicked in and the
apartment was in disarray. Jewelry, a VCR, a computer, and a
backpack filled with medical textbooks were taken. A shoe print on
the door was upside down, “like somebody had mulekicked” the door.
Defendant was charged with that crime and charges against him were
then pending.
The following day, Keating was called to another crime scene, the
Masterson apartment. He observed and documented the same “upside
down” shoe print on the door. The shoe print was distinct, with criss-
crosses and a shield in the center of the pattern and appeared to be
from a K-Swiss brand shoe.
Some of the stolen items from these two crimes were subsequently
recovered from a pawn shop in North Riverside. Surveillance
photographs showed the defendant and his mother, Fanny Roberts, as
the individuals who pawned the items. The pawn slips that were
obtained from the pawn shop contained the names of defendant and
Roberts. Keating recovered a latent fingerprint from a recovered CD
player that had been taken from Masterson’s apartment. The Illinois
State Police Crime Lab made a positive identification of defendant
from that print.
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Keating contacted the K-Swiss company and spoke to a product
design manager, who provided a picture of a shoe that made the print
Keating described. A pair of white K-Swiss shoes matching the
picture and the shoe prints was recovered from defendant’s bedroom.
When defendant was arrested in connection with these two crimes, he
admitted committing both burglaries.
The court also viewed Norwood’s videotaped statement, which
was introduced via the testimony of Assistant State’s Attorney
Santini. The contents of that statement are summarized above and will
not be repeated here.
The State’s final witness was Patrick McAvinchey, brother of the
victim. He identified several photographs of his sister and a written
victim impact statement that he had prepared, which were admitted
into evidence. He read the statement aloud.
Defendant’s first witness in mitigation was his mother, Fanny
Roberts. She testified that she had a 40-year history of mental illness,
but she did not know her diagnosis. She was raped by defendant’s
father when she was 13. He was her “boyfriend” for several years.
Defendant was born when she was 17. When defendant was two years
old, she married Walter Roberts, who did not like having defendant
around. A year later, she gave birth to a daughter, Felicia, whom she
has not seen in 17 years. Fanny, Walter, and Felicia moved to
California, leaving defendant with her mother. They returned five
years later. Eventually, she and Walter divorced and she moved to
Chicago, bringing defendant with her. She testified that he was polite
and intelligent and that he had taken care of her when she was ill.
However, he had gotten in with the wrong crowd and was a “different
person when he does drugs.”
On cross-examination by the State, she stated that she would
occasionally pawn her own jewelry or items for defendant. He told her
that the flute she pawned had been given to him by the man he worked
for at one time, Omar Karim. She identified herself in the photograph
from the pawn shop, but denied that the man standing behind her was
defendant. She denied having called the police on several occasions
because defendant had been violent towards her, insisting that he took
good care of her. She also denied telling an employee of forensic
clinical services that defendant killed the family cat when he was 10
years old or that he was unable to control his temper.
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Defendant also called Pearl Pugh, Fanny Roberts’ sister. She
testified that her sister had been diagnosed as schizophrenic and that
she had been “in and out” of the hospital as a result of her mental
illness. She described a family history of mental illness, with more
family members being ill than not. As a child, defendant did not know
his biological father, but did eventually meet him in prison. Defendant
began drug use when he was very young, introducing Pugh’s children
to “reefers.” Before he was on drugs, he was “a nice person to know,”
but after he started using drugs he began “robbing and stealing.” After
his 2002 release from prison, he was involved with a church for about
six months. Then he reunited with Romanette Norwood and they
began doing drugs together and “the whole thing started over, the
robbing and stealing.” Pugh visited defendant in jail regularly during
the four years between his arrest and trial. She felt that he had
“changed an awful lot,” and said that he was involved in Bible study
and prayer meetings.
Alvin Hill testified that he was a mitigator in the office of the
Cook County public defender. He prepares mitigation reports for the
purpose of presenting defendants “in their true light *** who they are
beyond the crime they are charged with.” Over the State’s hearsay
objection, Hill was allowed to testify to the contents of the report he
prepared after reviewing defendant’s school and prison records, as
well as numerous sources of information regarding mental health,
recidivism, and criminology in general. He also interviewed
defendant’s cousin, an aunt, an uncle, former coworkers, his mother,
his biological father, his mother’s former husband, a pastor, and an
official with the Arkansas Department of Corrections.
Hill learned that defendant was born when his mother was still a
teenager and that she had been involved with an older man, Clyde
Harris. Harris admitted “messing around” with her, but denied any
sexual abuse. Their relationship continued for several years, until she
became pregnant with defendant. She later married Walter Roberts,
who resented her illegitimate child and insisted on leaving him behind
when the family moved to California. Defendant moved into his
grandmother’s home, where approximately 20 relatives were living,
most of them children whose parents were not present. The home was
“effectively fatherless.” According to defendant and one of his aunts,
two young uncles sexually abused them both. Defendant dropped out
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of school as a 15-year-old seventh grader. The two IQ scores
contained in his grammar school records are 76 and 83.
Hill testified that defendant’s first interaction with his biological
father was when he was about 13 years old and he talked his way into
a dice game being played by several men, including Harris. Later, both
defendant and Harris were in the same jail awaiting trial and spent
several hours together, but did not discuss their relationship. Harris
was convicted in 1987 of conspiracy to commit murder.
According to the information gathered by Hill, defendant’s only
male role model was an older cousin, who introduced him to
marijuana at age 12 and suggested that he make some money by
selling it at school. By age 13 or 14, defendant was using cocaine and
heroin. His drug of choice as an adult has been crack cocaine.
Hill further testified that in addition to his mother’s diagnosed
schizophrenia, several other family members suffered from what they
referred to as “their affliction,” apparently schizophrenia. Defendant’s
half-sister, Felicia, also had substance abuse and mental health
problems. She disappeared at age 19 and has not been heard from
since. The family believes that she is dead because she was a “drug
runner.”
Hill summarized defendant’s criminal history, beginning at age 10
when he was caught stealing a toy from a store and “officially” at age
17 when he was arrested for possession of marijuana. Although
defendant has spent the vast majority of his adult life in prison, he has
never been convicted of armed robbery, battery, or assault.
According to Hill, defendant’s mother also has a criminal record.
She worked as a house cleaner and stole from the homes of her
employers. She spent some time in prison in California as a result. She
also committed fraud by receiving welfare or other assistance from
three states simultaneously.
Hill documented that after his release from prison in 2002,
defendant was employed by the Illinois Department of Human
Services as a caregiver for a paraplegic man, Omar Karim. Karim had
since died, but Hill spoke to defendant’s coworkers, who described his
work with Karim as “absolutely stellar.” Defendant cooked for Karim,
bathed and dressed him, and cleaned his apartment. There were no
allegations that he stole from Karim or abused him in any way.
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Finally, Hill testified regarding defendant’s conduct while
incarcerated. Hill reviewed records from every prison in which
defendant has been held. The records show that defendant has been “a
model detainee.” He has never threatened or injured a corrections
officer or other inmate. As a result of good behavior, he has been
given additional responsibilities, such as being a trustee or serving as
a barber. In the four years defendant spent in the Cook County jail
awaiting trial for the murder, he was not given a single disciplinary
ticket. Hill opined that the likelihood of future violence by defendant
if he is in a locked facility is “remote.”
On cross-examination, the prosecutor questioned Hill regarding
his description of defendant’s grades while in school and caused him
to acknowledge that he had misspoken when he said that a C was the
highest grade defendant had ever earned. The prosecutor also
questioned Hill regarding the reported IQ scores. Hill did not know
which particular IQ test was administered to defendant. In addition,
the prosecutor called into question Hill’s statement that defendant had
been addicted to narcotics since the age of 12 or 14 when he has spent
the majority of his adult life in prison.
Defendant was allowed to make a statement, without cross-
examination. His statement was long and rambling in parts. In sum: he
asked for compassion and mercy; he questioned whether justice would
be served by killing him; he was “saddened” by the “disparities” in
proceedings where “color alone is the sole factor” for seeking the
death penalty; he claimed that the “supervisor of the prosecution
office *** illegally collected evidence and testified unethically” at his
trial; he admitted that he was “flawed,” but insisted that he was not
“evil”; he described the work he did with Karim; he questioned the
constitutionality of the death penalty; he described his transformation
from “a broken man without spirit” to someone who found “God’s
grace” while incarcerated; he asked that those who felt anger toward
him find forgiveness; he accused the State of erasing tapes; and he
asserted that the law has “two standards,” one for the rich and one for
the poor and that he was a victim of this disparity.
His statement minimally acknowledged his responsibility for the
brutal murder of Catherine McAvinchey. At one point, he claimed to
be “remorseful to all parties involved,” although this remark was
addressed as much to his family members as to the victim’s family. He
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offered “a special message for the victim’s family,” in which he talked
about the power of “adversity” to “make us better” and told them that
“grief and sorrow will always pass in time.” Defendant asked the
victim’s mother to “find the strength to forgive me without judging,”
and he claimed to have felt her pain and heartache and to be “living
[her] loss.” He told her that “you will forever be a part of my life in
remembrance of sins committed against you and your family.”
The prosecutor’s closing argument focused on the circumstances
of the crime, contrasted with defendant’s lack of remorse, noting that
his statement to the court revealed that he “thinks this thing is only
about him.” She reviewed the details of the crime, emphasizing the
brutal manner in which defendant beat, stabbed, and sawed at the flesh
of a woman who was totally incapacitated and who was in no way an
obstacle to his escape from the scene of what, until he attacked her,
was a simple burglary. She recounted the last moments of Catherine
McAvinchey’s life from her point of view and noted that defendant
was so unaffected by what he had done that he took some of the
stolen money, bought a lottery ticket, and then partied with the
winnings. Within a matter of days, defendant resumed committing
burglaries, apparently unconcerned that he might encounter another
resident at home.
The prosecutor then examined each of the statutory mitigating
factors, one by one, and concluded by arguing that while the
defendant had offered some evidence of mitigation, the mitigation
evidence should carry “little or no weight” and that it was not
sufficient to preclude imposition of the death penalty.
Defense counsel acknowledged that the crime committed by
defendant was “horrific,” but urged the court not to impose the death
penalty because defendant is not the “worst of the worst.” He is not
a serial killer, or a sexual predator, or a drug kingpin wiping out
witnesses to protect his business. In 2003, defendant was “a pathetic
crack-head thief.” Counsel referred to defendant’s childhood and his
model behavior while in prison. Counsel argued that “[s]ociety does
not have to kill Rodney Adkins to protect itself from him,” and that if
he is imprisoned for life he might eventually “see that it wasn’t about
him, it wasn’t about his skin, but it was about what he did.” Counsel
also argued that the victim’s family would have closure if he were
sentenced to natural life in prison, but not if he were to sit on death
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row for years, filing appeals and obtaining stays of execution.
The State responded that the death penalty is not reserved for the
“worst of the worst,” but is to be imposed on defendants who have
been found eligible for the death penalty if the factors in aggravation
are not outweighed by the mitigating factors. The mitigation in this
case “barely exists.” The brutality defendant inflicted on the victim
belies his claim that he is not violent. His repeated crimes of residential
burglary and arson demonstrate a willingness to do violence to others.
After killing the victim, he committed at least three more residential
burglaries, only the residents “were lucky enough not to be there.”
Defendant has shown no remorse for what he did; he asks for mercy
when he gave no mercy.
Noting that it had reviewed and considered the evidence at trial,
the evidence at the sentencing hearing, the contents of the presentence
investigation, defendant’s statement, and the arguments of counsel,
the trial court found there was not sufficient evidence of mitigation to
preclude the death penalty. The court imposed a sentence of death for
the murder and concurrent sentences of 30 years and 15 years for
home invasion and residential burglary. The court denied defendant’s
subsequent motion to reconsider sentence.
Before this court, defendant argues that although he is guilty of
multiple burglaries, he attempted to burglarize only residences where
he was sure no one was at home. He claims that before he kicked in
the door of Catherine McAvinchey’s apartment on July 31, 2003,
Norwood rang the doorbell repeatedly to ensure that no one was at
home. He points to the evidence of his difficult childhood and to the
lack of evidence that he had ever injured anyone prior to killing the
victim in this case. Finally, he argues that the “most important”
evidence in mitigation was that he functioned extremely well in prison
and would not be a danger to anyone if sentenced to “a substantial
term of imprisonment.” He cites several cases in which this court has
vacated a sentence of death and urges us to do the same in this case.
The State responds by again detailing the viciousness of the crime
and the horror felt by the victim as she lay paralyzed, helpless to
defend herself as defendant beat and stabbed her, sawing at her neck
so viciously that he nearly decapitated her. He has shown “absolutely
no remorse” and his long criminal history includes the forcible felony
of arson (720 ILCS 5/2–8 (West 2002) (defining “forcible felony” to
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include arson)) and the inherently violent crime of residential burglary
(720 ILCS 5/9–1(b)(6)(c) (West 2008) (defining “inherently violent
crime,” for purpose of consideration as an aggravating factor for
capital sentencing, to include residential burglary)). He continued to
commit residential burglaries after the murder, apparently willing to
risk the possibility of encountering another victim at home. Multiple
past imprisonments have not rehabilitated him. Finally, his recent good
behavior while incarcerated should be viewed with skepticism,
especially because the murder was committed when he was on
mandatory supervised release. This brutal crime reveals how the
defendant behaves when he feels that there is no way out. He can
maintain a facade of compliance only so long as he has the possibility
of release. A sentence of natural life in prison without the possibility
of parole would remove the only thing reining in his violent impulses.
In his reply brief, he disputes the State’s description of the
violence of the murder, arguing that the evidence shows only eight
bruises and eight abrasions on the victim, as opposed to the “dozens”
of bruises and abrasions mentioned by the State. He argues that the
evidence does not support the State’s assertion that the victim was
“extensively beaten” and notes that the pathologist testified that these
injuries “could be” consistent with being punched and beaten, not that
they were necessarily caused by being punched and beaten. Similarly,
he disputes the evidence that the knife wound on the victim’s hand
was evidence that she was conscious and desperately trying to defend
herself from the knife attack. He characterizes the pathologist’s
testimony that the wound “could be” a defensive wound and that it
was “a possibility” that the victim’s hand was injured while she tried
to ward off the attack as “equivocal” and “inconclusive.”
The six cases cited by defendant in which this court has vacated a
sentence of death based on the character of the offender and the
circumstances of the offense (Thompson, 222 Ill. 2d at 36) offer no
support for his argument that the death sentence is excessive in this
case.
In People v. Smith, 177 Ill. 2d 53 (1997), the defendant was a
woman who hired another to kill the wife of her married lover.
Although the victim was killed in a brutal manner in front of her minor
children, the defendant had no past criminal record and the record was
replete with evidence of her good character. She had become pregnant
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and her lover broke his promise to leave his wife for her. She acted
out of jealousy and rage, in the belief that if the wife were gone, her
problems would be solved. As abhorrent as her crime was, this court
concluded that her involvement in the murder was “an aberration
brought on by special circumstances, which in all likelihood will not
be repeated.” Smith, 177 Ill. 2d at 101.
In People v. Blackwell, 171 Ill. 2d 338 (1996), the defendant was
visiting friends in Joliet, where he had lived before his older brother
was killed by gang members and he and his family moved to
Mississippi. He had no criminal record, no history of violence, and no
prior gang involvement. He carried a gun, however, because of his
fear of gangs. He and his friends attended a party where they
unexpectedly encountered a group of gang members. A fight broke
out. As they tried to leave, he pulled his gun and fired 14 shots into
the group of gang members, killing four people and wounding two. As
serious as his crimes were, this court concluded that the death penalty
was inappropriate because of his relatively blameless life prior to this
one explosive episode. Blackwell, 171 Ill. 2d at 364.
In People v. Leger, 149 Ill. 2d 355 (1992), the defendant was an
emotionally unstable man who, five days before their divorce was to
be final, murdered his estranged wife. He then drove to a neighboring
county and shot his former wife and her new husband, killing her and
wounding him. He had a history of serious medical problems resulting
from a workplace injury in which he lost both legs. His mental state
was affected by the combination of his prescription medications and
alcohol. He had no history of serious criminal activity, aside from two
battery convictions related to marital discord, and his background,
prior to his injury, included excellent military and work records. Under
these circumstances, this court found the death sentence to be
excessive. Leger, 149 Ill. 2d at 411.
In People v. Johnson, 128 Ill. 2d 253 (1989), the defendant was
fired from his job, for a reason he thought unfair. He was drinking
when he phoned his former employer to inquire about picking up his
final paycheck and was told that there was no check for him. He used
drugs that afternoon and carried a gun. It was in this condition that he
decided to go back to his employer’s to get “his due.” When his
former supervisor said he had no money for him, the defendant pulled
his gun. The supervisor dared him to shoot. He killed one man and
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injured two others. Prior to that time, the defendant had been a good
student and a reliable employee. He had no history of violence and he
expressed remorse for his crimes. This court concluded that he was
not “the type of person who should be permanently eliminated from
society.” Johnson, 128 Ill. 2d at 281. In fact, one of his surviving
victims testified on his behalf, stating that he should not be put to
death and that if he had died, he would have wanted one of the other
men to argue that death was not appropriate. Johnson, 128 Ill. 2d at
282.
In People v. Buggs, 112 Ill. 2d 284 (1986), the defendant and his
wife argued after one of her boyfriends persistently called their home.
During the argument, the wife told defendant that he was not the
father of two of their sons. He became enraged, pouring gasoline on
his wife and the stairway. He lit a match and fled. His wife and one
child died in the resulting fire. The defendant had no prior history of
serious criminal activity. He had served honorably in the military for
21 years. Finally, if not for the marital dispute that triggered “this
tragic sequence of events,” he “would presumably be leading a life
acceptable to our society.” Buggs, 112 Ill. 2d at 295.
People v. Carlson, 79 Ill. 2d 564 (1980), was factually similar to
Buggs, except that the defendant killed not only his ex-wife, but also
a police officer. He was sentenced to a term of 50 to 100 years for the
murder of his ex-wife and to death for the murder of the officer.
Carlson and his ex-wife were planning to reconcile when she informed
him that she had a new boyfriend. Later, he drove by the home they
had previously shared and saw an unfamiliar car in the driveway and
he considered setting fire to the house. When he learned that she had
become engaged to the boyfriend, he shot her multiple times and set
fire to the house. He went to a bar and began to drink. Several hours
later, three police officers and an assistant State’s Attorney came to
arrest him. When confronted, he pulled a gun from his waistband and
began firing. One of the officers later died of bullet wounds to the
chest. Carlson, 79 Ill. 2d at 572-73. In vacating that sentence, this
court noted that the defendant had no significant history of prior
criminal activity and that the murder of his wife, which occurred only
hours before the shooting of the officer, was not prior criminal
activity. Rather, both killings were “part of one unfortunate and tragic
event.” Carlson, 79 Ill. 2d at 588. In addition, the defendant had
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suffered two heart attacks and several serious injuries requiring
surgery in the two years prior to the crimes. He had “deteriorated
physically and emotionally” and he was no longer capable “of leading
a complete and fulfilling life for a man in his early forties” and was
“extremely distraught.” Carlson, 79 Ill. 2d at 589. In addition, after
killing his wife, the defendant was nevertheless concerned about his
family and tried to contact his adult daughter to give her money for
the support of his minor son. Carlson, 79 Ill. 2d at 590. This court
concluded that these “mitigating circumstances do not bespeak a man
with a malignant heart who must be permanently eliminated from
society.” Carlson, 79 Ill. 2d at 590.
In contrast to these cases, defendant has an extensive criminal
record. He cannot claim to have led a relatively blameless life, or to
have been reacting to a perceived threat of physical violence. He killed
a helpless woman, who could not have prevented him from fleeing the
scene. Defendant points to no aspect of his character that in any way
mitigates his responsibility for this brutal murder. He was under no
particular emotional stress and was not reacting to any personal
trauma such as the end of a marriage or the loss of a job. Rather, he
murdered an innocent person who interrupted his crime, rather than
flee and risk the possibility that she might be able to identify him. The
scant evidence of mitigation in the present case does not sufficiently
preclude imposition of the death penalty given defendant’s extensive
criminal history and the brutal and vicious nature of his crime.
In sum, we have carefully reviewed the record in light of the seven
specific mitigating factors listed in the statute. The first factor does
not apply because defendant has a significant history of prior criminal
activity. 720 ILCS 5/9–1(c)(1) (West 2002). The second factor does
not apply because defendant did not commit the murder while under
an extreme mental or emotional disturbance. 720 ILCS 5/9–1(c)(2)
(West 2002). Factors three, four, and five are ruled out by the facts
and circumstances of this case. The victim was not a participant in the
defendant’s crimes and she did not present a threat of death or harm
to him. 720 ILCS 5/9–1(c)(3), (c)(4), (c)(5) (West 2002). Defendant’s
background, while unstable and underprivileged, did not include
extreme emotional or physical abuse. 720 ILCS 5/9–1(c)(6) (West
2008). Defendant, while uneducated, does not suffer from reduced
mental capacity. 720 ILCS 5/9–1(c)(7) (West 2008).
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The statute also instructs us to consider any other facts relevant
to mitigation. Among the authorities cited by defendant to argue that
the death penalty is excessive in this case are Skipper v. South
Carolina, 476 U.S. 1, 5, 90 L. Ed. 2d 1, 7, 106 S. Ct. 1669, 1671
(1986) (eighth amendment violated by exclusion of evidence of
defendant’s good behavior in jail at capital sentencing hearing), and
Jurek v. Texas, 428 U.S. 262, 275, 49 L. Ed. 2d 929, 940, 96 S. Ct.
2950, 2957-58 (1976) (when considering sentence of death,
sentencing authority must consider defendant’s probable future
conduct if imprisoned).
Evidence that a defendant has been a model prisoner does not
preclude imposition of the death penalty. In People v. Ballard, 206 Ill.
2d 151, 189 (2002), the defendant argued that his good behavior
while in prison demonstrated his rehabilitative potential. This court
noted that “good behavior in prison need not offset otherwise
substantial aggravating evidence against the defendant.” Ballard, 206
Ill. 2d at 189. Quoting Skipper, this court observed that “ ‘[O]ne
arrested for a capital crime, and particularly a convicted defendant
awaiting sentencing, has every incentive to behave flawlessly in prison
if good behavior might cause the sentencing authority to spare his life.
Good behavior in those circumstances would rarely be predictive as
to the conduct of the prisoner after sentence has been imposed.’ ”
(Emphasis omitted.) Ballard, 206 Ill. 2d at 189, quoting Skipper, 476
U.S. at 14-15, 90 L. Ed. 2d at 13, 106 S. Ct. at 1676 (Powell, J.,
concurring, joined by Burger, C.J., and Rehnquist, J.).
In the present case, the court received evidence of defendant’s
conduct while incarcerated as required by Jurek. The trial court gave
this evidence little weight compared to the aggravating factors.
Before this court, defendant argues that he would not present a
danger to other inmates or to prison personnel if he were to be given
a life sentence, pointing not only to his four years of good behavior
while jailed awaiting trial for murder, but to the records of his several
previous prison terms that demonstrate his full compliance with the
routine of prison life. However, the State aptly notes that in all past
imprisonments, defendant has had a strong incentive to be on his best
behavior–the possibility of early release and parole. Indeed, defendant
has never been sentenced to the maximum sentence for any crime and
has never served the full term to which he was sentenced. If faced
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with the reality of a sentence of natural life in prison and the certainty
that he will die there, the incentive for good behavior would
evaporate. We, therefore, find that the trial court need not have given
this evidence any greater weight.
After careful review of the record and of the circumstances of the
crime and the character of the defendant, we conclude that the death
penalty is the appropriate penalty in this case. We, therefore, affirm
the sentence imposed by the trial court.
CONCLUSION
For the foregoing reasons, we affirm defendant’s conviction and
death sentence. We direct the clerk of this court to enter an order
setting Tuesday, March 15, 2011, as the date on which the sentence
of death shall be carried out. Defendant shall be executed in the
manner provided by law. 725 ILCS 5/119–5 (West 2002). 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.
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