Appeal from the Circuit Court of St. Clair County, the Hon.
John J. Hoban, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 4, 1986.
The defendant, Charles Walker, pleaded guilty in the circuit court of St. Clair County to two counts of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1) and to one count of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-2). The court entered judgments on the pleas, and a jury was impaneled to decide whether the death sentence should be imposed. The jury found statutory aggravating factors to exist (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(3), (6)) and determined there were no factors in mitigation sufficient to preclude imposition of the death penalty. The court sentenced the defendant to death on the murder counts and imposed a 30-year term of imprisonment on the armed-robbery count. The death sentence was stayed under our Rule 609 (87 Ill.2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill.2d R. 603).
On the morning of June 19, 1983, the bodies of Sharon Winker and Kevin Paule were found on the west bank of Silver Creek one-half mile west of Mascoutah. St. Clair County deputy sheriffs found Winker, slumped forward and with her hands bound behind her with tape, near a path leading into a wooded area. She had been shot once behind the left ear. Paule was found approximately 20 feet from Winker. His hands were taped together and his arms were taped behind him and secured around a tree. He had been shot in the right temple. The deputy sheriffs found a .25-caliber shell casing four feet from Paule's body. They also found two lawn chairs on the bank of the creek.
An autopsy revealed that Winker had been shot in the left occipital portion of the skull and that the bullet lodged in the left frontal lobe of her brain. This caused a laceration and swelling of the brain, resulting in death. Paule died from a single shot which left a bullet lodged in the left parietal lobe of the brain, similarly causing a fatal laceration and swelling. The pathologist recovered spent .25-caliber pellets from the skull of each victim.
On July 15, 1983, Walker was apprehended by authorities in Walden, Colorado. They had been notified by the St. Clair County sheriff's department that he was a suspect in two murders and might be in Colorado. He was returned to St. Clair County, where he was arraigned on July 27. Walker waived preliminary hearing and stated that he wished to plead guilty to two counts of murder and one count of armed robbery. The court read the charges to him, explained the rights that would be waived by a guilty plea, advised him of the range of possible sentences that he might receive on each charge, told him of the prosecution's intention to seek the death penalty, and ascertained that no threats or promises had been made in exchange for his pleas. The court accepted the defendant's plea of guilty on each count; the defendant then requested that a jury be impaneled to determine whether the death penalty should be imposed.
In the first phase of the sentencing hearing, at which the jury was to determine whether Walker was eligible for the death penalty, St. Clair County Sheriff Mearl Justus and Lieutenant James Lay testified that they accompanied the defendant from Colorado to the St. Clair County jail. Walker did not talk to either of them regarding the charges while they were en route. At the jail, Walker waived his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, and confessed to the murders and to an armed robbery that was committed the same night at a nearby tavern. Lieutenant Lay transcribed the confession, and this statement, signed by the defendant, was read into evidence during the first phase of the sentencing hearing.
The defendant told the officers that he left Fayetteville on the morning of June 18, 1983, to fish at the reservoir near Mascoutah. Around noon, he drove his red Pontiac convertible to Mascoutah in order to buy a 12 pack of beer. He returned to the reservoir and after fishing there for half an hour, left to fish the west bank of Silver Creek. Walker said that an hour later Kevin Paule and Sharon Winker, who he did not recognize, came and set up two lawn chairs and fishing equipment along the bank of the creek. Walker conversed with the couple for a short while and then, he said, decided to rob them. He said that he pointed a .25-caliber gun at them and took Paule's wallet, which contained $40. Walker then directed Paule and Winker along a path 30 to 40 feet into a wooded area where he bound their hands behind them and secured them around trees with tape from his car. Walker stated that he was in the process of taping Winker when Paule said that he recalled the defendant and knew his name to be Walker. Walker said he made the decision to kill the couple so that he would not later be identified. He shot Paule and then Winker.
Walker told the officers that he put the couple's fishing equipment in his car, and then drove Winker's car to Mascoutah to buy more beer. He returned to the reservoir, abandoned Winker's car, and walked to his own auto. Walker drove to the home of his girlfriend, Ramona Daugherty, in Fayetteville and, informed by his niece that Ramona was not at home, he went to a tavern in Fayetteville. He was there 30 minutes later when Officer Debra DeWitt of the Fayetteville police department entered and asked him to accompany her because Walker's niece had reported that Walker had been brandishing a gun when he was at Ramona's house. Walker said in his statement that, once outside the tavern, he was able to get to his car and drive away as DeWitt went to the police car for her radio.
Walker also gave Justus and Lay a statement confessing to the armed robbery at the Runway Lounge near Scott Air Force Base in Mascoutah. He said that later on the night of June 18, he drove to the Runway Lounge and began drinking beer while playing the "game machines." Walker told the officers that after he spent all of his money, he decided to rob the owner, Richard Jones, and the barmaid, Emily Gage, who were the only persons in the tavern. Walker said that he told Jones at gunpoint to give him the money from the cash register and then ordered Jones and Gage to lie on the floor. A car drove into the parking lot as he left the tavern, and Walker said that he heard Jones shouting that he had been robbed. Walker walked to his car but, as he tried to drive from the parking lot, his car was rammed by another car. He shot at the driver of the car, but the driver backed up and then rammed Walker's car again. When the defendant's car stalled, he alighted from it, dropped his gun on the ground near the door of his car and then ran across a field abutting Scott Air Force Base.
In the first phase of the sentencing hearing, Douglas Phillips testified that he was fishing at Silver Creek with his two sons about 2 p.m. on June 18, when he saw the defendant walking along the bank of the creek. The defendant stopped and spoke briefly with Phillips and his sons. Walker was holding a can of beer, but he did not appear to be intoxicated. Phillips testified that at 7:30 that evening he was again at the creek to fish with his sons. He heard a gunshot but said that he did not consider this unusual because the area was popular for target practice and squirrel hunting. Thirty minutes later, the witness saw the defendant walking toward his sons and him. Walker stopped to talk with them, and Phillips testified that the defendant showed no signs of intoxication at this time. Phillips saw the defendant place some fishing equipment in a red Pontiac.
Richard Jones also testified at the first phase of the sentencing hearing. He said that he owned the Runway Lounge near Mascoutah and had known the defendant as a patron of the tavern. Around 10 p.m. on June 18, Walker entered and sat at the bar. Jones stated that Walker drank four or five beers but did not appear to be intoxicated. At 1 a.m., after all other patrons had left, Walker announced to Jones and the barmaid, Emily Gage, that he intended to rob them. The witness, who was familiar with weapons, saw a "nickel plated .25 caliber automatic" gun in Walker's right hand. Walker told him to open the cash register and, after taking the money in the drawer and some rolls of quarters which were kept under the bar, the defendant ordered Jones and the barmaid to lie face down on the floor. The witness recounted that he warned Walker that he "can't get away with this" because Jones knew his identity, but Walker replied, "Dick, it don't make any difference * * *. The police are already looking for me."
As Walker left the tavern, Jones saw the headlights of an oncoming automobile through the tavern windows. He later saw that it was his car being driven by his son. He ran outside and shouted to his son that he had been robbed by the defendant, who was walking towards his Pontiac. Jones told his son to go in the tavern and stay there and, as Walker attempted to leave the parking area, Jones rammed his car into the passenger side of Walker's Pontiac. Jones said that he rammed the defendant's car a second time, striking the driver's door. He saw Walker raise his arm and, as the witness dropped down in the front seat of his car, Jones heard a gunshot. The bullet struck the windshield on the passenger side. The witness testified that he got out of his car and saw the defendant running across a field.
Deputy sheriffs called to investigate the armed robbery at the Runway Lounge found a .25-caliber gun on the ground near the passenger door of the Pontiac. The prosecution's evidence showed that the pellets recovered from the bodies of Paule and Winker, the shell casing found near Paule's body, and a shell casing found on the tavern parking lot were from the gun found at Walker's car. The deputies found in Walker's car a styrofoam cooler, portable radio, tackle box, and fishing poles. Relatives of the victims identified these items at the hearing as property of the slain couple.
The defendant's earlier convictions for attempted murder, armed robbery and two convictions for burglary were read into the record by the prosecutor.
Dr. Daniel Cuneo, a clinical psychologist who examined Walker at the request of defense counsel, testified for the defendant in the mitigation and aggravation phase of the hearing. He said that he diagnosed Walker as an alcoholic and, although he did not consider the defendant insane, the witness was of the opinion that Walker's dependence on alcohol amounted to a severe emotional disturbance. He based his diagnosis on, among other factors, a pattern of pathological alcohol use, his inability to hold a job for any period of time, and changes in personality and intelligence. Dr. Cuneo noted that every conviction in Walker's record occurred after alcohol abuse and concluded that there was a correlation between Walker's criminal behavior and alcohol abuse. The witness observed that Walker showed remorse after learning what he had done while intoxicated, which is consistent with the behavior of alcoholics, and which the witness maintained was manifested in Walker's plea of guilty every time he was charged with an offense. Dr. Cuneo testified that often an alcoholic will develop a tolerance to alcohol that allows him to suppress outward signs of intoxication, but the witness said that when this does occur the alcoholic's judgment would nevertheless be impaired.
The defendant's half-sister, Lila Docherty, testified in mitigation that Walker was a gentle person who had established a good rapport with her young son. Docherty said that Walker's personality changed when he drank, and she recalled an incident when Walker threatened his mother with a knife while intoxicated, and then expressed remorse for the incident when sober. Walker's girlfriend, Ramona Daugherty, too said that Walker was a kind person when sober, but became violent when drunk. She stated that the defendant once shot his dog in a drunken rage, but regretted the shooting the next day. Fayetteville police officer Debra DeWitt testified that Walker always seemed to be drinking and that this habit led to violent behavior. She said that she had seen Walker consume large quantities of alcohol and yet not appear intoxicated.
The defendant first argues that his guilty plea was not knowing or voluntary because the court erred, the defendant says, when explaining the possible sentences on each charge. The court told the defendant that the two murder counts would be considered separately in sentencing and that the defendant could be sentenced on each count from 20 years' imprisonment to imposition of the death penalty. The court advised Walker that it had discretion to enhance or double any term of years imposed and that one possible sentence was natural life imprisonment. The defendant says this was erroneous under this court's decision in People v. Taylor (1984), 102 Ill.2d 201, where it was held that section 5-8-1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-1(a)(1)(c)) mandates a sentence not less than natural life imprisonment upon conviction of murdering more than one person. The defendant argues that because he was pleading guilty to two murders, the admonishment that he might receive a term of years was misleading and therefore did not meet the requirements of Supreme Court Rule 402 (87 Ill.2d R. 402). He asserts that he was thus denied due process as guaranteed under Boykin v. Alabama (1969), 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709 (plea of guilty must be affirmatively shown to be voluntary and intelligent before it can be accepted).
The State points out that the defendant's failure to raise this question in either of the two motions he brought to withdraw his guilty pleas and vacate the judgments constitutes a waiver of the issue in this court. (87 Ill.2d R. 604(d).) Our rules do permit a reviewing court, in its discretion, to consider "[p]lain errors or defects affecting substantial rights" even though they were not objected to in the trial court. (87 Ill.2d R. 615(a); People v. Holman (1984), 103 Ill.2d 133, 176.) Though it is not clear there was plain error we will consider the contention.
It should be noted that it cannot be stated certainly that the admonition was erroneous. When Walker was sentenced, this court had not yet decided Taylor, and the appellate court sitting in the first district had held that a trial court had discretion under section 5-8-1(a)(1)(c) to determine whether a term of natural life or for a term of years should be imposed following a conviction for more than one murder. (People v. Taylor (1983), 115 Ill. App.3d 621.) Our holding reversed this decision. It appears that the only other decision on the issue was in People v. Bush (1981), 103 Ill. App.3d 5, where the appellate court in the second district held that the section required the imposition of a sentence of natural life. Too, it can be noted that the trial court here admonished Walker before hearing and before considering the State's recital of the factual basis for the pleas of guilty. It was then not certain that the court would ...