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02/11/88 the People of the State of v. William Crews

February 11, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

WILLIAM CREWS, APPELLANT



SUPREME COURT OF ILLINOIS

522 N.E.2d 1167, 122 Ill. 2d 266, 119 Ill. Dec. 308 1988.IL.171

Appeal from the Circuit Court of Randolph County, the Hon. Carl H. Becker, Judge, presiding.

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court. JUSTICE CLARK, Concurring. JUSTICE WARD joins in this concurrence. JUSTICE SIMON, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

The defendant, William Crews, pleaded guilty but mentally ill to one count each of murder and attempted murder in the circuit court of Randolph County. The trial Judge sentenced the defendant to death for the murder conviction and imposed a 30-year prison term for the conviction for attempted murder. The defendant's execution was stayed pending direct review by this court. Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d Rules 603, 609(a).

The defendant's convictions stem from his attack on two correctional officers at Menard Correctional Center on November 30, 1984. The defendant was an inmate of Menard at the time of the offenses and was serving a 20-to-60-year term for an earlier murder conviction. The attack occurred on the gallery outside the defendant's cell. The defendant stabbed correctional officer Cecil Harbison to death with a shank and wounded another guard, Lamont Gilbert. The defendant then fled from the gallery, and he was captured moments later on the ground floor of the cellhouse.

The defendant initially pleaded not guilty to the charges here, but he later asked to change his plea to guilty but mentally ill . As required by statute (see Ill. Rev. Stat. 1983, ch. 38, pars. 113-4(d), 115-2(b)), the trial Judge ordered the defendant to undergo a psychological examination, and a hearing was held in August 1985 on the defendant's mental condition. At the hearing, defense counsel presented the testimony of three psychiatrists-Drs. Pichardo, Vallabhaneni, and Parwatikar-who had treated the defendant at Menard Correctional Center or Menard Psychiatric Center. Dr. Pichardo first saw the defendant in February 1980 and last saw him in the middle of September 1984, a little more than two months before the defendant's attack on the two guards. Dr. Pichardo believed that the defendant was suffering from a mental illness during that period, but he could not say whether the defendant had a judgment-impairing, substantial disorder of thought, mood, or behavior. According to Dr. Pichardo, the defendant had attempted to commit suicide in April 1980.

Dr. Vallabhaneni saw the defendant several days after his attack on the guards and believed that at the time of the offenses the defendant was suffering from a mental illness and that his judgment was impaired, but he did not have a specific diagnosis for the defendant's condition.

Dr. Parwatikar believed that at the time of the offenses the defendant was mentally ill, in that he had a substantial disorder of mood, thought, or behavior. Dr. Parwatikar saw the defendant on December 2, 1984, two days after the offenses here, and his diagnosis then was of an intermittent explosive disorder.

The State disputed the defendant's contention that he was mentally ill at the time of the offenses. Dr. Daniel Cuneo, a clinical psychologist, testified in the State's behalf at the hearing. Dr. Cuneo had interviewed the defendant on two occasions -- in March 1985 and in August 1985 -- and, based on those examinations, as well as on his review of the defendant's records, Dr. Cuneo concluded that the defendant was malingering and that he had an antisocial personality disorder. Dr. Cuneo believed that the defendant was only feigning mental illness.

The State also introduced into evidence statements the defendant made to authorities concerning the offenses here. In an initial statement given on the night of his attack on the two guards, the defendant said simply that he had gone berserk, and he did not provide a motive for his acts. In a statement given the next day, however, the defendant explained that he attacked the officers because he resented an order Harbison had given him shortly before that. The State also presented testimony from two inmates who spoke with the defendant in the period following his attack on the two guards. They testified that the defendant told them that he was trying to convince psychiatrists that he was crazy. Also, one of the inmates recalled that on the day of the occurrence here the defendant mentioned the name of a friend who had been killed earlier that year and made a comment suggesting that the friend's death should be avenged. Finally, the State presented evidence of the defendant's extensive history of disciplinary violations since 1974, when he began serving the prison sentence for his earlier murder conviction. These disciplinary tickets included 16 violations of rules, 10 assaults, 5 instances of damaging property, 19 instances of disobeying orders, and 11 instances of possession of contraband or dangerous weapons.

The trial Judge accepted the defendant's GBMI plea, finding that there was a factual basis that the defendant was mentally ill when he committed the offenses here. The State then requested a death penalty hearing, and the defendant waived his right to a jury for that purpose. The defendant, who was born in 1952 and therefore 18 or older at the time of the offenses, was eligible for the death penalty because the murder victim was a correctional officer. See Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)(2).

Dr. Cuneo testified in the State's behalf at the sentencing hearing, and he repeated his earlier diagnosis that the defendant had an antisocial personality disorder. Dr. Cuneo did not believe that the defendant was functioning under an extreme menta or emotional disturbance at the time of the offenses. Dr. Cuneo also said that he was familiar with capital sentencing in Illinois and that he did not know of any case in which a defendant received the death sentence after being found guilty but mentally ill. A victim impact statement by Debra Harbison, widow of the slain guard, was read into the record by a Department of Corrections investigator. Finally, the State presented testimony concerning the defendant's conviction for murder in Logan County in 1973, for which he was serving a 20-to-60-year sentence at the time of the offenses here. On that occasion, the defendant shot his stepfather in the head with a rifle; the apparent motive for the crime was the filing of a battery charge by the murder victim against the defendant.

The defendant did not present any testimony at the sentencing hearing. Included in a presentence investigation report, however, was a report dated August 5, 1985, by a psychiatrist, Dr. Moisy Shopper, who had examined the defendant and reviewed his prison file. Dr. Shopper described the defendant's suicide attempt in April 1980 and noted parallels between that event and the defendant's later attack on the two guards. Also, Dr. Shopper described the defendant's condition at the time of the offense as "an acute paranoid psychotic state with marked depressive features."

The trial Judge sentenced the defendant to death for the murder conviction. The trial Judge did not believe that imposition of the death penalty was precluded by the defendant's GBMI plea. The trial Judge found that the defendant had a significant history of criminal conduct, and he did not believe that the defendant was acting under the influence of an extreme mental or emotional disturbance sufficient to preclude imposition of the death penalty. Also, the trial Judge sentenced the defendant to a 30-year prison term for the conviction for attempted murder, to be served consecutively to any other sentence of imprisonment. I

The defendant first argues that the legislature did not intend the death penalty to be available as a possible punishment for GBMI offenders. The defendant also argues that sentencing a GBMI offender to death would be excessive punishment and therefore is forbidden by the eighth amendment. Finally, the defendant contends that the trial Judge, in imposing the death penalty, ignored certain factual findings that he had made earlier in accepting the GBMI plea.

We note at the outset the State's argument that all the defendant's contentions in this appeal may be deemed waived because defense counsel failed to file a post-trial motion after the Conclusion of the death penalty hearing. This court has previously held that a post-trial motion should be filed to preserve issues in a capital case. (See People v. Szabo (1986), 113 Ill. 2d 83, 93-94; People v. Caballero (1984), 102 Ill. 2d 23, 31-33.) "The waiver rule is one of administrative convenience rather than jurisdiction, however" (People v. Smith (1985), 106 Ill. 2d 327, 333), and is not a complete bar to review; "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court" (107 Ill. 2d R. 615(a)). Moreover, our constitutional obligation to review cases in which the death penalty has been imposed (see Ill. Const. 1970, art. VI, § 4(b)) would be "meaningless" (People v. Caballero (1984), 102 Ill. 2d 23, 32) if the failure to file a post-trial motion necessarily meant that every issue must be considered waived. In this case, the defendant's convictions are based on a guilty plea, and his capital sentencing hearing was conducted without a jury. During those proceedings, the trial Judge was made aware of a number of the defendant's contentions of error, and the trial Judge ruled on the questions. With respect to the few allegations of error that are raised here but that were not brought to the trial Judge's attention, the defendant makes the additional argument that the failure to register a contemporaneous objection constituted ineffective assistance of counsel. In those instances, we may properly inquire whether there was in fact an error to which an objection should have been made. Our concern here is to "promote judicial economy and finality of judgments" while "protecting the integrity of the judicial system and the rights of criminal defendants." (People v. Enoch (1988), 122 Ill. 2d 176, 190.) Our review of the defendant's contentions of error in this case will be guided by those principles.

The defendant argues that the legislature did not intend for the death penalty to be available as a possible punishment for GBMI offenders. In support of this argument, the defendant relies on section 5-2-6 of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-2-6). Section 5-2-6 bears the heading "Sentencing and Treatment of Defendant Found Guilty but Mentally Ill," and the defendant contends that certain provisions in the statute signify the legislature's intent to preclude the death penalty as a possible punishment for GBMI offenders.

The defendant argues that section 5-2-6 lists the possible sentences that may be imposed on one who has been found guilty but mentally ill and that the death penalty is not included in that list. The defendant also contends that several requirements of section 5-2-6 are inconsistent with the procedures followed in death penalty hearings. For example, section 5-2-6(a) provides that the trial Judge is to order the preparation of a presentence investigation report following a GBMI finding, but one is not required in a death penalty proceeding (People v. Gaines (1981), 88 Ill. 2d 342, 372-73). Also, section 5-2- 6(a) provides that " [t]he court may impose any sentence upon the defendant which could be imposed pursuant to law upon a defendant who had been convicted of the same offense without a finding of mental illness." (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 38, par. 1005-2-6.) Although the language allowing the imposition of "any sentence" is seemingly contrary to the defendant's position here, the defendant believes that the provision reserves the sentencing function to the trial Judge and that it therefore cannot be squared with the role that a jury may play at a capital sentencing hearing. The defendant also argues that the death sentence would be incompatible with the treatment alternatives that are prescribed for GBMI offenders. Section 5-2-6(b) (Ill. Rev. Stat. 1983, ch. 38, par. 5-2-6(b)) directs the Department of Corrections to provide psychological help to GBMI offenders who are sentenced to terms of imprisonment. Under that provision, the Department is to "cause periodic inquiry and examination to be made concerning the nature, extent, continuance, and treatment of the defendant's mental illness. The Department of Corrections shall provide such psychiatric, psychological, or other counseling and treatment for the defendant as it determines necessary." Similarly, section 5-2-6(e)(1) requires that GBMI offenders who are placed on probation or who are sentenced for a term of periodic imprisonment or a period of conditional discharge "submit to a course of mental treatment prescribed by the sentencing court." (Ill. Rev. Stat. 1983, ch. 38, par. 1005-2-6(e)(1).) The defendant concludes that sentencing a GBMI offender to death would be contrary to the statutory scheme. See Note, Disposition of the Mentally Ill Offender in Illinois-"Guilty but Mentally Ill," 31 DePaul L. Rev. 869, 889-90 (1982).

Although we agree with the defendant that section 5-2-6 of the Unified Code of Corrections is applicable to GBMI offenders, we do not believe that the statute may be understood as precluding the imposition of the death penalty. To the contrary, the plain language of the statute indicates otherwise. Section 5-2-6(a) provides, "The court may impose any sentence upon the defendant which could be imposed pursuant to law upon a defendant who had been convicted of the same offense without a finding of mental illness." Clearly, that language leaves available for GBMI offenders the full range of sentences-including the death penalty-that may be imposed on persons who are guilty of offenses and who are not mentally ill. This is entirely consistent with the legislature's definition of the term "mental illness" as a condition distinct from insanity. Section 6-2(c) of the Criminal Code of 1961 provides, "A person who, at the time of the commission of a criminal offense, was not insane but was suffering from a mental illness, is not relieved of criminal responsibility for his conduct and may be found guilty but mentally ill." (Ill. Rev. Stat. 1983, ch. 38, par. 6-2(c).) Section 6-2(d) of the Criminal Code of 1961 provides, "For purposes of this Section, 'mental illness' or 'mentally ill' means a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person's judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior or is unable to conform his conduct to the requirements of law." (Ill. Rev. Stat. 1983, ch. 38, par. 6-2(d).) A GBMI offender is no less guilty than one who is guilty and not mentally ill; unlike insanity, a GBMI finding or plea does not relieve an offender of criminal responsibility for his conduct. By its plain terms, section 5-2-6(a) authorizes imposition on a GBMI offender of any sentence that could be imposed on one convicted of the same offense without the additional finding of mental illness; the death penalty therefore is available as a sentence for GBMI offenders who have been convicted of murder (see Ill. Rev. Stat. 1983, ch. 38, par. 1005-5-3(c)(1)). We shall discuss later the relationship between mental illness and the statutory mitigating circumstance of extreme mental or emotional disturbance.

Opposing that interpretation of section 5-2-6 of the Unified Code of Corrections, the defendant argues that several provisions in that statute are inconsistent with imposition of the death penalty. The defendant first contends that the statement in section 5-2-6(a) authorizing the imposition of any sentence by "the court" should be understood as limiting the available sentences to those in which the jury has no role in the proceedings. Because the decision whether to impose the death penalty may be made by a jury, the defendant concludes that GBMI offenders, who are sentenced by "the court," may not be sentenced to death. We disagree and find no inconsistency with the capital sentencing provisions. With respect to the procedure to be used when a capital defendant requests a jury for his sentencing hearing, section 9-1(g) of the Criminal Code of 1961 provides, "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. 1983, ch. 38, par. 9-1(g).) By the terms of the statute, the court and not the jury is the entity that imposes sentence; thus, there is no inconsistency between the death penalty provisions and the reference in section 5-2-6(a) to imposition of sentence by the court.

The defendant also contends that the provision in section 5 -- 2 -- 6(a) for the preparation of a presentence report for GBMI offenders -- "After a plea or verdict of guilty but mentally ill . . ., the court shall order a presentence investigation and report pursuant to Section 5 -- 3 -- 1 and 5 -- 3 -- 2 of this Act" -- cannot be reconciled with this court's decision in People v. Gaines (1981), 88 Ill. 2d 342, 372-73, that a presentence investigation and report are not required for defendants in death penalty hearings. Gaines did not involve the GBMI provisions, however. The defendant in that case was convicted and sentenced to death before those provisions took effect, and thus there was no question presented in that case concerning the separate requirement of a presentence report for GBMI offenders. The requirement in section 5 -- 2 -- 6(a) may be construed as an additional protection afforded to GBMI offenders.

Finally, the defendant argues that sentencing a GBMI offender to death would be inconsistent with the treatment alternatives prescribed for GBMI offenders in section 5-2-6 of the Unified Code Corrections. The provisions concerning treatment do not pertain to defendants sentenced to death, however. Rather, they apply to persons sentenced to terms of imprisonment (see Ill. Rev. Stat. 1983, ch. 38, pars. 1005-2-6(b), (c), (d)) and to those placed on probation or sentenced to a term of periodic imprisonment or a period of conditional discharge (see Ill. Rev. Stat. 1983, ch. 38, par. 1005-2-6(e)). The statute thus does not mandate what is referred to in the Dissent as the "meaningless" requirement of treatment for one awaiting execution. Having rejected the defendant's interpretation of section 5-2-6, we conclude that the statute does not preclude imposition of the death penalty on GBMI offenders.

The defendant also argues that imposing the death penalty on one who is guilty but mentally ill would be excessive punishment in violation of the eighth and fourteenth amendments to the Federal Constitution (U.S. Const., amends. VIII, XIV). The defendant would apply here the following standard:

"he Eighth Amendment bars not only those punishments that are 'barbaric' but also those that are 'excessive' in relation to the crime committed. Under Gregg [v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909], a punishment is 'excessive' and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A ...


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