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People v. Mack





Appeal from the Circuit Court of Cook County, the Hon. John J. Crowley, Judge, presiding.


Rehearing denied February 1, 1985.

Alexander Peterson, Fletcher Turner, and the defendant in this case, Larry Mack, were indicted in the circuit court of Cook County on three counts of murder (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1(a)(1) through (3)) based on the shooting death of a security guard, Joseph Kolar, during a bank robbery. These three were also indicted for armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2) and armed violence (Ill. Rev. Stat. 1977, ch. 38, par. 33A-2) growing out of the same robbery; however, the armed-violence counts were not pursued by the State.

Peterson and Turner entered "blind" guilty pleas and were sentenced to terms in the penitentiary. After last minute plea negotiations proved fruitless, defendant Mack waived a jury trial as to guilt or innocence and was tried by the court. The defendant was convicted of three counts of murder and two counts of armed robbery. Thereafter a bifurcated sentencing hearing was held before a jury to determine if the defendant should receive a sentence of death. Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b) et seq.

After the first phase of the sentencing hearing, the jury found that the defendant was eligible for the death penalty because his conduct, personally murdering an individual during the course of a felony while of the age of 18 or over, satisfied one of the statutory aggravating factors which must be found before the death penalty can be imposed. (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(b)(6)(a) through (c).) During the second phase of the sentencing hearing, the jury heard evidence in aggravation and mitigation. The jury unanimously concluded that there were no mitigating factors sufficient to preclude the imposition of the death penalty. A sentence of death was entered for the murder conviction. The defendant was also sentenced to concurrent terms of 25 years of imprisonment on two counts of armed robbery. The defendant's death sentence was stayed (87 Ill.2d R. 609(a)), pending direct appeal to this court (87 Ill.2d R. 603).

Shortly before noon on November 23, 1979, the defendant entered the West Pullman United Savings Bank in Chicago. John McGinty, a loan officer, was the first bank employee to notice the defendant. McGinty was seated at his desk talking to Joseph Kolar, the bank's security guard, who was standing in front of the desk. According to McGinty's testimony, which was partially corroborated by film from security cameras, the defendant walked up to Kolar and, without conversation, pulled a gun from under his coat and placed it inches from Kolar's collar. Kolar reacted by raising his arm trying to push the gun away. The defendant fired a shot through Kolar's right arm. He then put his hand on the back of Kolar's neck, placed the gun against Kolar's back, and walked or pushed him over to a position in front of a set of windows. While in front of the windows, the defendant forced Kolar to lie on his back on the floor.

The defendant then stood over Kolar, straddling the victim with his legs, fired the fatal shot into Kolar's chest, and took Kolar's gun from its holster. While the defendant was straddling Kolar, his two accomplices, Peterson and Fletcher, entered the bank and jumped over a partition to gain access to the teller's cages. While the accomplices gathered money and placed it into bags, the defendant patrolled the area in front of the teller's cages, carrying his gun as well as the gun he had taken from Kolar. The three robbers then ran out of the bank.

The trio's hasty exit from the bank was observed by Chicago policeman Richard Stake and two other officers who were driving near the bank in an unmarked car. According to Stake's testimony, the police drove their car around a corner in order to follow the robbers. After watching the robbers jump into a parked car, the police stopped their car about 20 feet in front of the robbers' car. The police left their car, drew their guns, ordered the robbers to leave their car, and arrested them. The police recovered the bags of money, Kolar's gun, and the defendant's gun from the car.

On appeal, the defendant raises only issues regarding the sentencing hearing and the sentences which he received. As noted above, the assistant State's Attorneys and the defense counsel had a plea discussion prior to trial. On the morning the trial was to begin and while the jury venire was waiting, the defense counsel requested a plea-bargaining conference. The discussions between the assistant State's Attorneys and the defense counsel in the presence of the court were not on the record. It is not disputed that an initial offer was made by defense counsel to plead guilty in return for an agreed sentence of 50 years. This offer was flatly rejected by the prosecution. The defense counsel then expressed a willingness to plead guilty in exchange for a sentence of 75 years, and the trial court indicated a willingness to accept a plea on that condition. This offer was rejected by the assistant State's Attorneys after a conference with their superiors. Since the plea discussion was not of record, the prosecution and the defense counsel have different versions of the remainder of the plea discussion. It is not disputed, however, that following the rejection of the last offer, the defense counsel offered a guilty plea in exchange for a sentence of natural life imprisonment.

The defense counsel contends that this position was acceptable to the State with the qualification that the deceased's family must be willing to go along with it. The State's version insists that the offer to plead guilty in exchange for a sentence of natural life imprisonment was conveyed to the assistant State's Attorneys' superiors, who neither accepted nor rejected it, but requested the assistants to contact the victim's family concerning the offer. That night the prosecutors spoke to members of the victim's family who stated that they were opposed to anything other than the death penalty for the defendant. Thereafter, the assistant State's Attorneys were told by their superiors to reject the defendant's plea offer and to seek the death penalty. The next morning one of the assistant State's Attorneys reported that the State would not accept the plea offer. Defendant's counsel objected, maintaining that the State had agreed to accept the proposed plea bargain, and inferred that the State's rejection of the bargain was based solely on the wishes of the victim's family. Defense counsel asked the trial court to force the State to abide by the terms of the alleged agreement. The assistant State's Attorneys responded that they had never accepted the proposed bargain and maintained that the family's wishes were a factor in the decision to reject the offer but not the sole basis for the decision. The trial court denied the defendant's request to compel the State to accept the offer. Counsel for both sides and the trial judge then made statements for the record as to their respective understandings of the plea discussions. We will refer to these later.

The defendant argues that it is constitutionally impermissible for the State to give any degree of consideration to the victim's family's wishes in making the decision whether to accept a plea or whether to proceed to trial and to seek a death penalty hearing. Any degree of such consideration, defendant argues, is an abuse of the prosecutorial discretion approved in People v. Lewis (1981), 88 Ill.2d 129, and People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, because the decision to seek the death penalty is not the decision of the prosecutor guided by the factors discussed in Cousins. Instead, the defendant contends, the decision is influenced by the whims of the family members and caprice and emotion are introduced into the sentencing process in violation of the eighth amendment as interpreted in Gardner v. Florida (1977), 430 U.S. 349, 51 L.Ed.2d 393, 97 S.Ct. 1197. The defendant's second argument on this point is somewhat related to the first, in that he also contends that such consultation and consideration make the imposition of the death penalty arbitrary and freakish by tying the defendant's fate to the victim's family's attitudes, which, presumably, will be diverse and not always consistent, depending upon the attitude of the family toward the death penalty. This perceived result is said to violate the constitutional strictures of Gregg v. Georgia (1976), 428 U.S. 153, 49 L.Ed.2d 859, 96 S.Ct. 2909.

The defendant's argument founded on Gardner is based on language of that case which states that "any decision to impose the death sentence [must not appear to be based on] caprice or emotion." (Emphasis added.) (Gardner v. Florida (1977), 430 U.S. 349, 358, 51 L.Ed.2d 393, 402, 97 S.Ct. 1197, 1204.) However, in Gardner the court was concerned with the possibility of caprice and emotion during the sentencing phase of the trial when the sentencing body actually makes the decision to impose the death penalty. Since we are here concerned with the prosecutor's decision whether to seek the death penalty, we do not find Gardner helpful. The defendant's argument must stand or fall under Gregg and its companion cases as interpreted by this court in Cousins and followed in Lewis.

The defendant relies on the language of Justice White in his concurrence in Gregg which states:

"Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts. Unless prosecutors are incompetent in their judgments, the standards by which they decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence." (Gregg v. Georgia (1976), 428 U.S. 153, 225, 49 L.Ed.2d 859, 903, 96 S.Ct. 2909, 2949.)

The defendant argues that the prosecutor's decision to seek the death penalty in this case was not directed by the factors referred to by Justice White in Gregg and by this court in People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, but instead was guided by the insistence of the family of the deceased that the death penalty be sought.

This court's attention has not been directed to any decisions holding that it is unconstitutional for a prosecutor to consider the wishes of the victim's family in deciding whether to plea bargain. Our own research has not disclosed any such cases. In some States there are statutes which specifically allow or require a prosecutor to consider the wishes of the victim's family in conducting plea-bargaining discussions. (See Fla. Stat. Ann. sec. 921.143 (West Supp. 1983); Ind. Code Ann. secs. 35-35-3-1 through 35-35-3-6 (Burns Supp. 1984); Minn. Stat. Ann. sec. 611A.03 (West Supp. 1984).) Additionally, one commentator states that "[m]any, if not most, prosecutors' offices and trial courts take the attitudes of victims into account in plea bargaining and in sentencing." (Gifford, Meaningful Reform of Plea Bargaining: The Control of Prosecutorial Discretion, 1983 U. Ill. L. Rev. 37, 90 n. 279.) American Bar Association Criminal Justice Standard 14-3.1(d) states, "The prosecuting attorney should make every effort to remain advised of the attitudes and sentiments of victims * * * before reaching a plea agreement." That standard is quoted and echoed in the commentary to ABA Guidelines For Fair Treatment Of Victims and Witnesses In The Criminal Justice System (1983), Guideline 10, which states that "[v]ictims or their representatives in serious cases should have the opportunity to consult with the prosecutor prior to dismissal of the case or filing of a proposed plea negotiation with the court * * *."

The defendant relies on the Supreme Court's decision in Linda R.S. v. Richard D. (1973), 410 U.S. 614, 35 L.Ed.2d 536, 93 S.Ct. 1146. There, the court held that a victim has no right to compel prosecution of an individual. We do not find this language controlling because a holding that a citizen lacks a common law right to compel prosecution does not require the conclusion that a victim's wishes are constitutionally required to be ignored by a prosecutor.

We conclude that a prosecutor is not barred from considering the wishes of the victim's family in determining whether to accept an offered plea bargain in a case where capital punishment is a possibility. We do not believe that Justice White's statements in Gregg should be viewed as an exhaustive and exclusive statement of the factors which may permissibly influence the exercise of prosecutorial discretion. A prosecutor's charging and plea-bargaining decisions necessarily involve the consideration of numerous factors which may vary from case to case.

In non-capital cases this court has acknowledged broad discretion as being vested in the prosecutor in determining whether or not to charge an individual with a criminal offense and the nature of the offense to be charged. In People v. Rhodes (1967), 38 Ill.2d 389, 396, this court said:

"The State's Attorney is the representative of the People and has the responsibility of evaluating the evidence and other pertinent factors and determining what offense can properly and should properly be charged."

In Oyler v. Boles (1962), 368 U.S. 448, 7 L.Ed.2d 446, 82 S.Ct. 501, the Supreme Court considered the defendant's argument that he was denied equal protection because he had been prosecuted as an habitual criminal, whereas other men subject to prosecution as habitual offenders were not. The court held that the conscious exercise of some selectivity in enforcement is not in itself a Federal constitutional violation, particularly since there had, in that case, been no showing that the selection was based on an unjustifiable standard such as race, religion, or other arbitrary classification. We find that a similar discretion is vested in the State's Attorney in deciding whether he should accept a plea offer or whether he should seek the death penalty, provided the discretion is not exercised in an arbitrary or capricious manner and is properly channeled by accepted guidelines. We have noted in People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, that the prosecutor's discretion is properly channeled under our statute. As a representative of the People, the prosecutor has the responsibility of evaluating all of the pertinent factors in making his decision whether or not to seek the death penalty. In doing so, he may properly consider the attitude of the victim's family as one of those factors.

Much of the defendant's argument is premised on the assumption that the offer of the defendant to plead guilty in exchange for a sentence of life imprisonment had been accepted by the prosecutors but was vetoed by the victim's family. Thus, defendant argues, the attitude of the victim's family was more than simply one of the many factors considered by the prosecutors. It was, defendant contends, the factor which caused the rejection of an accepted agreement. The record does not support this contention.

As noted above, no part of the plea negotiation was on the record. Following the breakdown in negotiations, the defense counsel, one of the prosecutors, and the judge each stated his recollection of what had transpired. The defense counsel's statement is to the effect that the bargain was unambiguously accepted by the prosecutors subject only to the approval of the victim's family. The prosecutor's statement was that there had been no acceptance of any offer to plead guilty on the part of the defendant. According to the trial court, defense counsel said that his client would be willing to plead guilty "to natural life." The trial court further stated "[a]t that point there were other discussions outside the presence of the court, telephone conversations apparently with the [assistant] State's Attorneys' superiors and the State said that they would have to contact the victim's family before they could go ahead with any kind of negotiation, and the venire was sworn and the court came this morning feeling that the only impediment to the plea agreement was * * * that the qualification that the family had [to] indicate[] a willingness to go along with it. That was made very definitely a condition precedent to any kind of an agreement by the State. The State advised the court first thing this morning that the family did not approve, and furthermore their superiors still were insisting upon looking at it as a death matter * * *." Before proceeding to trial, defense counsel made a motion asking the court to specifically enforce the alleged plea bargain. Defendant's motion was denied. In doing so, the court stated that no plea agreement had been reached.

After trial, defendant, in arguing his motion for a new trial, maintained that the State had unambiguously accepted the defendant's plea-bargain offer. However, the trial court, in ruling on the motion, rejected this claim, stating:

"I do not think, considering all the attendant circumstances, that there was at any time an unconditional acceptance of the offer to plead by the State's Attorney's office, I reject that argument at this time."

Thus the trial court's holdings both in ruling on the motion to enforce the alleged plea bargain prior to trial, and on the defendant's motion for a new trial, were that the State's Attorney's office had never accepted the defendant's offer to plead guilty.

Defense counsel now argues that the language used by the court in setting forth his recollection of what transpired during the plea negotiations supports his position that there had been an acceptance of the offer by the prosecutor. Regardless of the construction which the defense counsel places upon this language, the fact remains that the trial judge who made that statement on two occasions specifically held that the offer to plead guilty had not been accepted. In passing on the defendant's motion to enforce the alleged agreement, the judge stated that he thought that the record "with respect to the pre-trial negotiations is clear and I do not feel that there was any accord reached and no deprivation of rights of anyone." Reviewing the recitation of defense counsel, the prosecutor, and the court as to what had transpired during the plea negotiations, and the discussion between court and counsel at the time these statements were made for the record, as well as the statements made by the court at the time defendant made his motion to enforce the plea agreement, we cannot say that the holdings of the court in denying the motion to enforce the plea agreement and in denying the defendant's motion for a new trial constitute an abuse of judicial discretion. The holding that no accord had been reached is not against the manifest weight of the evidence.

Since there was no unambiguous agreement reached between defendant and the prosecution, we need not discuss defendant's contention that he was entitled to enforce the bargain he contends was agreed upon.

As noted earlier, the guilt of the defendant was decided by the court following a bench trial. The prosecutor then elected to have a penalty hearing to determine whether or not the death penalty should be imposed. The defendant elected to have this determination made by a jury. The defendant now contends that he is entitled to a new sentencing hearing because of errors committed in excusing jurors for cause under Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770. The defendant contends that the five jurors who were excused under Witherspoon did not indicate in their response to questions by the court their total unwillingness to impose the death penalty in any case. Defendant claims that the answers of the excused jurors cannot be taken at face value because the preliminary remarks of the court to the panel of prospective jurors did not properly inform the jurors as to the law governing their role in the sentencing process. They were informed that they would first be called upon to make a determination of whether or not the defendant was eligible for the death penalty, based on his age and finding of an aggravating factor. They were told that there would next be a hearing in aggravation and mitigation where they would be instructed on several statutory mitigating factors which, if found, might be sufficient to preclude the imposition of the death penalty. The defendant argues that when the excused jurors answered the Witherspoon questions, they were suffering from the misapprehension that the scope of the discretion they could exercise would be limited to considerations of only those mitigating circumstances spelled out by statute. We do not view that at this stage of the proceeding it was necessary for the trial court to accurately and completely instruct the jury on the law applicable to the case. A general knowledge of the law and a general knowledge of the nature of the proceedings were sufficient to enable them to answer the questions posed on voir dire. The answers of these jurors to the question by the court clearly indicate that they would not impose the death penalty in any situation regardless of the law applicable to the proceeding.

Considering these prospective jurors, we examine first the voir dire of prospective juror White.

THE COURT: Now, are you making the statement that in — no matter what the case was, no matter what the evidence was, notwithstanding the strongest of proofs, are you telling me that in no case would you render the death penalty?

THE JUROR: In no case."

A similar in-chambers discussion was held with prospective juror Shay. That discussion was as follows:

"THE JUROR: I am against the death penalty. I don't believe in it.

DEFENSE COUNSEL: May I ask — Mrs. Shay, are you saying that you are unequivocally opposed to the death penalty and that under no circumstances — and the reason I am articulating it this way, that's what the law says, that ...

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