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06/12/87 the People of the State of v. Glenn Mcewen

June 12, 1987





510 N.E.2d 74, 157 Ill. App. 3d 222, 109 Ill. Dec. 453 1987.IL.805

Appeal from the Circuit Court of Cook County; the Hon. Cornelius J. Houtsma, Jr., Judge, presiding.


JUSTICE MURRAY delivered the opinion of the court. SULLIVAN, P.J., and LORENZ, J., concur.


This is an appeal by defendant Glenn McEwen from a conviction after a jury trial for the offenses of murder and armed robbery. Based on that conviction and jury disagreement on a death penalty recommendation, the trial court imposed a sentence of natural life imprisonment for the murder conviction and a concurrent term of 30 years for the armed robbery conviction.

The facts disclose that on November 19, 1983, at about 1:30 a.m., the victim, Theodore Everett, purchased a package of cigarettes at a gas station on 159th Street in Harvey, Illinois. Defendant, holding a gun under his jacket, approached Everett, pointed the gun at him and said, "Give me your money." Everett gave $50 to defendant, whereupon defendant fatally shot Everett in the back. There were no witnesses to the shooting. The case was tried with the State seeking the death penalty.

On appeal, defendant does not challenge the substantive issues of the crime; rather, he questions the procedures followed resulting in his conviction and the subsequent sentencing. In an original brief filed with this court in December 1985, defendant argues that he was denied a fair trial because of the exclusion for cause of prospective jurors from the guilt phase of the trial based on their expressed death penalty scruples. He also contends that he was deprived of a fair and impartial jury by the trial court's questioning of all prospective jurors as to their views on the death penalty. Defendant additionally asserts in his initial brief that the Illinois sentencing scheme used by the court violates due process and proportionate penalty clauses of the Illinois Constitution.

In a supplemental brief filed in March 1986, defendant contends he was denied effective assistance of counsel because his trial attorneys allegedly implicitly conceded his guilt by advancing no theory of defense. Defendant additionally contends that the trial court erred in sentencing him to natural life imprisonment because there was no proof that the shooting was intentional. Defendant's final claim is that the State's peremptory challenges to exclude the first three black potential jurors requires a Batson hearing. (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) It is not clear whether defendant, during oral argument before this court, abandoned some of his initial contentions. However, in this age of purifying the criminal process by judicially ensuring the fairness of procedures and legislating increasing penalties, this court believes that it must respond to all of defendant's arguments.

The record is clear that during voir dire, 21 prospective jurors were excused for cause because they expressed reservations as to the imposition of the death penalty. Defendant's counsel, counsel for the State's Attorney, and some appellate courts call these jurors "Witherspoon excludables." This nomenclature is a literary misnomer that ought to be corrected. The term "Witherspoon excludables" is derived from the case of Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, wherein the Supreme Court left the legal door ajar on the issue of whether the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the ultimate issue of guilt or innocence. The underlying basis for the case was Witherspoon's conviction for the murder of a police officer. To name prospective jurors who express a conscientious objection to the death penalty after a convicted police killer seems almost to be class slander. Since many people in our democratic society base an anti-death penalty belief on the Mosaic Fifth Commandment, it would probably be more literally correct to call such prospective jurors, "Fifth Commandment excludables."

Regardless of what appellation is given to such citizens, the United States Supreme Court, and our Illinois Supreme Court, have consistently rejected the argument that qualifying a juror in connection with his or her views on the death penalty creates a conviction-prone jury denying a defendant State and Federal constitutional rights to a fair trial. (Lockhart v. McCree (1986), 476 U.S. 162, 90 L. Ed. 2d 137, 106 S. Ct. 1758; People v. Wright (1985), 111 Ill. 2d 128, 490 N.E.2d 640.) Until a case arises that reveals that a defendant, in fact, was denied a fair trial by the exclusion of prospective jurors who have expressed a moral objection to the death penalty, or when an innocent defendant is convicted by such a jury, courts must follow the long-standing and oft-reviewed rule that such exclusion does not ipso facto deny a defendant a fair trial.

With respect to defendant's claim that the Illinois sentencing scheme is constitutionally infirm as it was applied to him, this court initially points out that it appears that defendant has waived this point on appeal by not raising the objection at the sentencing hearing or in a post-trial motion. (People v. Collins (1981), 97 Ill. App. 3d 465, 467, 422 N.E.2d 1061.) Even if no waiver occurred, we must reject such a claim. Defendant contends that the Illinois sentencing law regarding felony murder violates the due process (Ill. Const. 1970, art. I, sec. 2) and proportionate penalties (Ill. Const. 1970, art. I, sec. 11) clauses of the Illinois Constitution. This argument is based on the fact that the statutes relevant to this case precluded the trial court from imposing a sentence ranging from 40 years to life.

In this case, the jury convicted defendant of murder. Accordingly, it also determined that defendant committed the crime with the requisite mental state of intent or knowledge. (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(6)(b).) It then became the trial court's duty to sentence him. The court found that the murder was not accompanied by brutal and heinous conduct. A life sentence is permitted by Illinois law for murder if the court finds that (1) the murder was accompanied by exceptional or heinous behavior, or (2) that one of the statutory aggravating factors is present. (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-1(a)(1)(b).) Felony murder is an aggravating factor. (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6).) Thus, the law provides for a sentence of 20 to 40 years for murder and authorizes a sentence for natural life imprisonment if the murder is a felony murder. Since the jury had found the murder was committed with the required mental state of intent or knowledge, the trial court concluded, and properly so, that this was a felony murder permitting a sentence of natural life imprisonment for the crime.

Defendant claims that since there is no provision for an intermediate sentence between the range of 40 years and life imprisonment for a murder without a finding of brutal and heinous conduct, the statute violates his due process rights and is an illogical limitation on the trial court's discretion by not providing an incremental range of penalties for such a murder. This court cannot conclude that merely because the legislature saw fit to treat heinous and brutal murders in the same manner as a felony murder in sentencing an offender, that arbitrariness and discrimination have occurred. A murder is a murder whether it is done heinously, brutally, or with the requisite intent. Moreover, an argument almost identical to defendant's argument was rejected by this court in People v. Bowen (1985), 133 Ill. App. 3d 994, 479 N.E.2d 997, a case similar in fact to the case at bar. The due process-proportionate rule applies to the disproportionality of sentences to the crimes committed. (133 Ill. App. 3d 994, 996, 479 N.E.2d 997.) There is no constitutional mandate that a sentencing structure must provide consecutive degrees, or increments, of punishment for specific crimes. All that is required is that penalties be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful ...

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