Appeal from the Circuit Court of St. Clair County, the Hon.
John J. Hoban, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 8, 1983.
Defendant, Andre Jones, was indicted with a co-defendant, Freddie C. Tiller, Jr., in the circuit court of St. Clair County for three counts of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)), three counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2) and three counts of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)). The St. Clair County public defender was appointed to represent him, but upon allowance of the public defender's motion to withdraw other counsel was appointed. Defendant entered a plea of not guilty which was subsequently withdrawn, and he pleaded guilty to the three murder charges. Pursuant to section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(d)) the People requested a separate sentencing hearing and defendant elected to have a jury impaneled for those proceedings. The jury found, unanimously, that one or more of the factors set forth in the statute existed and, following the consideration of aggravating and mitigating factors, found unanimously that there were no mitigating factors sufficient to preclude a sentence of death. (See Ill. Rev. Stat. 1979, ch. 38, par. 9-1(g).) The jury returned a verdict directing the court to sentence defendant to death, and defendant was sentenced to death for each of the three murders. The sentences were stayed (73 Ill.2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill.2d R. 603).
The testimony and defendant's confession showed that on the morning of April 30, 1979, defendant left his apartment carrying a .22-caliber Rohm revolver. Defendant and his girlfriend walked until they met with Tiller. The three of them walked until they saw an elderly man, Richard Stoltz, standing in the back of a pickup truck, stacking bricks. Tiller, stating that he was going to rob Stoltz, asked defendant for his gun. Defendant gave his gun to Tiller, who told Stoltz, "This is a stickup." Stoltz raised his hands, and Tiller fired the gun, striking Stoltz in the left eye. Tiller then took a wallet, keys and a wrist watch from Stoltz' body. Defendant and Tiller rejoined the girlfriend, who had crossed the street. They continued their walk until they arrived at the Illinois Cleaners, located across the street from Jones' apartment. The girlfriend left after being told by defendant to go home. Defendant then suggested that he and Tiller rob the cleaners, and Tiller agreed. Defendant and Tiller entered the store and, once inside, defendant shot the proprietor, Samuel Nersesian, in the head. He fell to the floor, and defendant shot him again. Defendant then opened the cash register and took an undetermined amount of money. As they were about to leave, a mail carrier, Debra Brown, who had arrived in a mail truck, entered the store. Defendant hid behind the door, and when Miss Brown entered, defendant grabbed her around the neck from behind. He pushed her back through a kitchen located at the rear of the business and into a storage room. There defendant knocked her down, shot her in the chest, and then shot her in the mouth. Defendant and Tiller then left the store. Tiller left the scene in the mail truck, and defendant walked across the street to his apartment. All three of the shooting victims died.
Following the introduction of the foregoing evidence and the giving of instructions to the jury, the jury returned a verdict finding that defendant had been convicted of murdering two or more individuals and that at the time of the offenses he had attained the age of 18 or more. (See Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)(3).) The cause then proceeded to the aggravation and mitigation phase.
The evidence showed that defendant had a significant history of criminal activity. Included therein was defendant's confession to two murders committed prior to the offenses for which he was being sentenced. No information in mitigation was offered by either defendant or the People. After deliberating for approximately 20 minutes, the jury returned a verdict unanimously finding that there were no sufficiently mitigating factors present to preclude imposition of the death sentence. Pursuant to the verdict and statute (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(g)), the court sentenced defendant to death for the murders of Richard Stoltz, Samuel Nersesian and Debra Brown.
We consider first defendant's contention that the death penalty provisions of the statute are unconstitutional for the reason that they do not contain sufficient guidelines to enable a jury to properly determine when the death penalty may be imposed. Defendant cites first the language of section 9-1(g) which in pertinent part provides:
"If there is a unanimous finding by the jury that one or more of the factors set forth in Subsection (b) exist, the jury shall consider aggravating and mitigating factors as instructed by the court and shall determine whether the sentence of death shall be imposed. If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death." (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(g).)
Citing definitions of "preclude" (Webster's Seventh New Collegiate Dictionary (1963); Random House Dictionary of the English Language (1973)) defendant argues that the statutory provision which requires the jury to impose death if it "unanimously finds that there are no mitigating factors sufficient to preclude the imposition of the death sentence * * * must necessarily impose the capricious and arbitrary sentencing it seeks to avoid." He argues further that under a literal interpretation of the statute a jury "would be required to impose death unless defendant presented a complete defense to the aggravating factors qualifying him for the death penalty." The alternative to the literal interpretation, he contends, is that there are no standards or guidelines, and the weighing procedure mandated by our earlier cases is nullified.
We do not agree. In People v. Brownell (1980), 79 Ill.2d 508, the defendant contended that the trier of fact was not given guidance as to the weight to be given the aggravating versus the mitigating factors and that section 9-1(g) was therefore unconstitutionally vague. In rejecting this contention the court said:
"Without doubt, a balancing process is required; while the precise weight to be given each aggravating and mitigating factor is not made a matter of numerical calculation, that is not a constitutional infirmity. Rather, since the sentencing authority is given specific evidence to weigh, based upon the particularized circumstances of the case, any `"discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application."' Gregg v. Georgia (1976), 428 U.S. 153, 198, 49 L.Ed.2d 859, 888, 96 S.Ct. 2909, 2936, quoting Coley v. State (1974), 231 Ga. 829, 834, 204 S.E.2d 612, 615. As stated in Proffitt: `While the various factors to be considered by the sentencing authorities do not have numerical weights assigned to them, the requirements of Furman [Furman v. Georgia (1972), 408 U.S. 238, 33 L.Ed.2d 346, 92 S.Ct. 2726] are satisfied when the sentencing authority's discretion is guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.' Proffitt v. Florida (1976), 428 U.S. 242, 258, 49 L.Ed.2d 913, 926, 96 S.Ct. 2960, 2969." (79 Ill.2d 508, 534.)
It is clear from the foregoing statement that preclusion of the death penalty does not require, as defendant contends, "a complete defense to the aggravating factors qualifying him for the death penalty." Furthermore, we find that section 9-1(g), as construed, fulfills the constitutional requirement that the sentencing authority be given specific factors to examine in determining whether to impose the death penalty.
We consider next defendant's contention that section 9-1(e) is invalid for failing to set any standard save relevance for the admission of information in the second phase of the sentencing hearing. Section 9-1(e) provides:
"(e) Evidence and Argument. During the proceeding any information relevant to any of the factors set forth in Subsection (b) may be presented by either the State or the defendant under the rules governing the admission of evidence at criminal trials. Any information relevant to any additional aggravating factors or any mitigating factors indicated in Subsection (c) may be presented by the State or defendant regardless of its admissibility under the rules governing the admission of evidence at criminal trials. The State and the defendant shall be given fair opportunity to rebut any information received at the hearing." (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(e).)
It is argued that since the People are permitted to present any "information" relevant to other aggravating and mitigating factors regardless of its admissibility under the rules of evidence, the only restraint placed upon the State's Attorney's discretion is his personal sense of propriety. It is also argued that this provision penalizes a defendant for electing to be sentenced by a jury rather than a judge, who, when considering the information presented, would be possessed of knowledge of the rules of evidence. Finally, specific alleged examples are cited where it is claimed that defendant was prejudiced by reason of the jury's consideration of certain information.
The purpose of the aggravation and mitigation phase of the sentencing hearing is to insure that discretion in the area of sentencing be exercised in an informed manner. In Woodson v. North Carolina (1976), 428 U.S. 280, 49 L.Ed.2d 944, 96 S.Ct. 2978, the Supreme Court said:
"This Court has previously recognized that `[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.' Pennsylvania ex rel. Sullivan v. Ashe [(1937), 302 U.S. 51, 55, 82 L.Ed. 43, 46, 58 S.Ct. 59, 61]. Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. See Williams v. New York [(1949), 337 U.S. 241, 247-49, 93 L.Ed. 1337, 1342-43, 69 S.Ct. 1079, 1083-84]; Furman v. Georgia [(1972), 408 U.S. 238, 402-03, 33 L.Ed.2d 346, 443-44, 92 S.Ct. 2726, 2810-11] (Burger, C.J., dissenting). While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles [(1958), 356 U.S. 86, 100, 2 L.Ed.2d 630, 642, 78 S.Ct. 590, 597] ...