Appeal from the Circuit Court of Boone County, the Hon. Robert
C. Gill, Judge, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
On September 13, 1978, Curtis J. Brownell was found guilty, by the circuit court of Boone County, of the murder, aggravated kidnaping and rape of Louise Betts. The State requested a sentencing hearing for the purpose of imposing the death penalty. The defendant waived a jury proceeding and was sentenced by the court to death. Upon appeal to this court, the convictions for murder, aggravated kidnaping and rape were affirmed and we found that the sentences imposed for the offenses of aggravated kidnaping and rape were justified. In sentencing the defendant to death, the trial court found that two aggravating factors existed. While this court upheld the finding of the trial court that a murder was committed in the course of the felonies of aggravated kidnaping and rape, the death sentence was vacated because this court found that one of the aggravating factors — "that the murdered individual was an eyewitness or possessed other material evidence against the defendant" (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)(7)) did not exist. Since this court found that one aggravating factor was erroneously included in the court's sentencing decision, the sentence of death was vacated and the cause remanded to the circuit court of Boone County for resentencing. 79 Ill.2d 508, 544.
On remand, prior to the second sentencing hearing, the defendant filed a number of prehearing motions. Specifically, he filed a motion to declare the death penalty statute unconstitutional, to preclude a capital sentencing hearing based upon a promise of the prosecutor not to ask for the death penalty, and to fund the testimony of expert witnesses. He made a motion for change of venue, a motion challenging voir dire questions, and a motion to excuse for cause any juror who knew of the prior death sentence. He also made a motion for a ruling that the State had the burden of proof beyond a reasonable doubt in all matters that arise at a capital sentence hearing. All of the motions made by the defendant were denied.
The defendant waived a determination by the jury of the existence of a statutory aggravating factor, and stipulated that a statutory aggravating factor had been found beyond a reasonable doubt.
On April 17, 1981, the jury impaneled to hear evidence in mitigation at the second phase of the second sentencing hearing concluded that there were no mitigating factors sufficient to preclude the imposition of the death penalty. On May 18, 1981, the trial court again entered a judgment and sentence order of death on the verdict. The defendant appealed directly to this court (Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill.2d R. 603; Ill. Rev. Stat. 1979, ch. 38, par. 9-1(i)), alleging a number of errors.
We first address the issue of whether the prosecuting attorney was precluded from requesting a capital sentencing hearing based upon a promise of the prosecutor not to ask for the death penalty.
The State contends that the issue is waived because it was not raised in the first direct appeal (79 Ill.2d 508), until a supplemental argument was filed following the filing of a petition for rehearing. On remand, the trial court did consider the issue raised as one of the defendant's prehearing motions. Because the matter was raised and considered in the trial court, we find that it is not waived and is properly before us on appeal.
Since our original opinion was handed down in this case (79 Ill.2d 508), this court has issued an opinion in the death penalty appeal of People v. Walker (1981), 84 Ill.2d 512, which we find controlling in our disposition of the issue we now address.
In People v. Walker (1981), 84 Ill.2d 512, the defendant, Eugene A. Walker, Jr., had initially pleaded guilty to charges of murder, attempted murder, armed robbery and armed violence. Walker had made that plea pursuant to an agreement with the prosecuting attorney that the defendant would receive a 60-year sentence. The defendant made a subsequent motion to vacate the plea, which was granted. However, when the case proceeded to trial, the defendant entered an unnegotiated plea of guilty. Following a sentencing hearing, the circuit court sentenced the defendant to death. This court found it necessary to vacate the death sentence, finding the State's Attorney's request that the death sentence be imposed violated the due process clause of the fourteenth amendment of the United States Constitution. This court found such a holding was required to prevent "a vindictive prosecutor from punishing a defendant for doing something the law allows him to do." 84 Ill.2d 512, 525.
The defendant in the instant case cites to Justice Ryan's concurring opinion in Walker in asserting that the due process clause of the fourteenth amendment and the eighth amendment proscription against cruel and unusual punishment require that the death sentence in the case at hand be vacated. In his concurring opinion, Justice Ryan concluded that imposing the death penalty on Eugene A. Walker, Jr., "would constitute an arbitrary application of the statute, unguided by any standards except the whim of the prosecutor," and therefore would constitute "a violation of the due process clause of both the State and Federal constitutions, as well as cruel and unusual punishment proscribed by the eighth amendment of the Federal Constitution." (84 Ill.2d 512, 529 (Ryan, J., concurring).) Justice Ryan explained:
"Under the facts of this case, when the State's Attorney negotiated a guilty plea from the defendant in exchange for a 60-year sentence on the murder charge, death was not a possible penalty since it could not be imposed without the State's Attorney's request for a penalty hearing. The prosecutor, having exercised the discretion vested in him by statute, informed the court, the defendant and the public that death was not an appropriate penalty in this case and the court, by concurring in the negotiated plea, confirmed this conclusion. However, within three months the prosecutor decided that death was an appropriate penalty and requested the penalty hearing, which activated the statutory machinery ultimately enabling the court to sentence the defendant to death. The defendant was the same; the offense was the same; no new evidence had surfaced; and the conviction was obtained in the same way, by a plea of guilty. Now, just three months later, the appropriate penalty, the price tag, for this offense was no longer 60 years, but death. The prosecutor explained to the court: `[A]nd prosecutors, your Honor, make decisions. Somebody has to. And we make mistakes. Mine was in not seeking the death penalty earlier. I was wrong then. I am right now.'
* * * Death is a drastic penalty. Its finality demands certainty in that the prosecutor's decision to request a penalty hearing must have a rational basis. His explanation that his previous recommendation of a 60-year sentence was a mistake does not satisfy what the Supreme Court in the above cases [Lockett v. Ohio (1978), 438 U.S. 586, 57 L.Ed.2d 973, 98 S.Ct. 2954; Gardner v. Florida (1977), 430 U.S. 349, 51 L.Ed.2d 393, 97 S.Ct. 1197; Woodson v. North Carolina (1976), 428 U.S. 280, 49 L.Ed.2d 944, 96 S.Ct. 2978; Roberts v. Louisiana (1976), 428 U.S. 325, 49 L.Ed.2d 974, 96 S.Ct. 3001] has deemed essential. If death was the appropriate penalty in this case, the State's Attorney should not have vacillated but should have sought it following the first guilty plea. Thus, it does not appear that there is a meaningful basis for distinguishing between the imposition of the death penalty on the second guilty plea and the foreclosing of it on the first, when nothing in the case had changed except that the prosecutor stated he made a mistake.
It is a denial of due process to subject the defendant facing death to the vacillation of the prosecutor's office * * *. When the prosecutor forgoes his right to seek the death penalty, enters into plea negotiations, and reaches an agreement that is acceptable to him and the court, notions of basic fairness and due process prevent him from seeking the death penalty at a later date absent a change in circumstances beyond a mere recognition that he made a mistake." (Emphasis added.) 84 Ill.2d 512, 529-33, Ryan, J., concurring.
In reviewing the record it is uncontested that at approximately 10 p.m. on April 1, 1978, the State's Attorney of Boone County offered to the defendant's counsel an agreement whereby the State's Attorney would not seek the death penalty if the defendant would confess in writing to the murder of Louise Betts. Defense counsel conferred with ...