SUPREME COURT OF ILLINOIS
521 N.E.2d 864, 121 Ill. 2d 470, 118 Ill. Dec. 387 1988.IL.413
Original petition for writ of mandamus.
JUSTICE MILLER delivered the opinion of the court. JUSTICE CLARK, specially Concurring.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER
The respondent, Earl Strayhorn, a Judge in the circuit court of Cook County, sentenced the defendant, Manuel Zarco, also a respondent in this proceeding, to 40 years' imprisonment for murder. Although the defendant had previously been convicted of second degree murder in Rhode Island for a different slaying, the respondent trial Judge refused the prosecutor's request to hold a death penalty hearing on the current offense under section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9-1). The trial Judge also refused to sentence the defendant to natural-life imprisonment pursuant to section 5-8-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-1). This court granted the State's motion for leave to file a writ of mandamus and prohibition pursuant to our Rule 381 (107 Ill. 2d R. 381).
On August 31, 1980, the defendant, Manuel Zarco, stabbed and killed Ernesto Cabrera in Chicago. The defendant then went to Rhode Island where, on January 2, 1982, he murdered Clarence Robertson. After turning himself in to the police, the defendant was found guilty of second degree murder by a Rhode Island trial court for the January 2, 1982, slaying. The Rhode Island court sentenced the defendant to 40 years' imprisonment, but suspended 13 years of the term. The defendant was then extradited to Illinois.
Following a bench trial in the circuit court of Cook County on February 25, 1986, respondent Judge Strayhorn found the defendant guilty of the 1980 murder under section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9-1). The statute was subsequently amended by Public Act 84-1450, effective July 1, 1987. At the beginning of the sentencing hearing on March 20, 1986, the public defender tendered to the court a motion to preclude the imposition of the death penalty. The prosecutor explained to the court that he was seeking the death penalty because the defendant had also been convicted of murder in Rhode Island for a separate offense. The public defender responded that the Rhode Island statutory definition of murder significantly differed from that in Illinois' statutes and that the defendant was, therefore, not eligible for the death penalty. Without either side having an opportunity to address the significance of the sequence of the murder convictions, the trial Judge denied the State's request for a death penalty hearing, stating that because of the order of the defendants' murder convictions, he believed the defendant was ineligible to be sentenced to death under Illinois' death penalty statute (Ill. Rev. Stat. 1985, ch. 38, par. 9-1). The trial Judge explained that the Illinois murder preceded the Rhode Island murder and conviction, and had the defendant been tried first for the Illinois murder, the defendant would not have been eligible for the death penalty. (See Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(3).) Without considering whether other statutory aggravating factors (see Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)) existed to render the defendant eligible for the death penalty, and without calling the matter for a hearing on the death penalty at the State's request (see People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531), or distinguishing the stages of the sentencing proceeding (see Ill. Rev. Stat. 1985, ch. 38, par. 9-1(d)), the trial Judge ordered the prosecution and defense to proceed to a hearing in aggravation and mitigation for a sentence other than the death penalty. The State did not object to the court's ruling on its request for a death penalty hearing, but proceeded with the sentencing hearing.
After permitting a Rhode Island detective to discuss certain facts of the Rhode Island murder, the trial Judge sustained the defendant's attorney's objections, effectively curtailing any further testimony. The prosecution then offered into evidence a certified copy of the defendant's Rhode Island murder conviction, which the Judge admitted. At the close of the hearing, the prosecution argued that section 5-8-1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-1(a)(1)(c)) required the court to sentence the defendant to life imprisonment, because the Illinois conviction was the defendant's second murder conviction. Following the public defender's remarks concerning mitigating factors, the trial Judge sentenced the defendant to 40 years' imprisonment.
On March 21, 1986, the day after the sentencing hearing, the parties again appeared before Judge Strayhorn, pursuant to the State's motion to reconsider the sentence imposed. The State argued that both Illinois case law and statutes provide that a person convicted of two murders must receive a sentence of either natural-life imprisonment or death. The trial Judge found the statutes and cases cited by the State inapplicable, because the defendant could not have been subjected to mandatory life imprisonment in Illinois had he been tried for the Illinois murder before he went to Rhode Island. The Judge stated that under the circumstances presented, Illinois law did not require mandatory life imprisonment; if it did, the Judge found, the statute was an unconstitutional trampling by the legislature on the prerogative of the judiciary. The Judge then opined that regardless of whether section 5 -- 8 -- 1(a)(1)(c) mandated life imprisonment, he found mitigating that the Rhode Island murder conviction occurred after the Illinois murder, but before the murder conviction in Illinois. The trial Judge declared that he would not sentence the defendant either to death or life imprisonment, and denied the State's motion to reconsider the original sentence. Subsequently, the State filed the present action for mandamus and prohibition, or for a supervisory order to compel Judge Strayhorn to vacate his orders of March 20 and 21, 1986, sentencing the defendant to 40 years' imprisonment and denying the State's motion to reconsider. In the alternative, the State seeks an order requiring Judge Strayhorn to clarify whether the Illinois sentence is to be served concurrent with, or consecutive to, the Rhode Island sentence.
The State first submits that section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(d)) imposes a nondiscretionary duty upon trial Judges, following a murder conviction, to hold a death penalty hearing once the prosecution has requested the death penalty. The State contends that although the assistant State's Attorney informed the trial Judge in the present cause that the State sought the death penalty, the Judge failed to hold a death penalty hearing as required by section 9-1(d).
The defendant contends that the trial Judge held a death penalty hearing and that remanding for a death penalty hearing would violate the Federal double jeopardy clause. Relying on Arizona v. Rumsey (1984), 467 U.S. 203, 81 L. Ed. 2d 164, 104 S. Ct. 2305, and Bullington v. Missouri (1981), 451 U.S. 430, 68 L. Ed. 2d 270, 101 S. Ct. 1852, the defendant argues that he was acquitted of the death penalty by the trial Judge and that any further death penalty proceedings are barred by the double jeopardy clause.
In Bullington, a jury determined in a separate sentencing hearing that the defendant should receive life imprisonment rather than the death sentence, the only other sentence the defendant could have received under Missouri law. The Supreme Court held that the double jeopardy clause bars a death penalty hearing once a jury has acquitted the defendant of the death penalty in a trial-type sentencing hearing. In Rumsey, the trial Judge conducted a capital sentencing proceeding similar to a trial in accord with Arizona law. The trial Judge specifically found, after the completed hearing, that no aggravating or mitigating factors applied to the defendant, and therefore held the defendant ineligible for the death penalty. The Court held that a second death penalty sentencing hearing is barred once a defendant is acquitted of the death penalty after a completed trial-type sentencing hearing even though the sentencing Judge found the defendant ineligible for the death penalty due to an erroneous interpretation of the death penalty statute.
The Court viewed the defendants' verdicts in Rumsey and Bullington as "acquittals" because the sentencing hearings in both of those cases "resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence." (Bullington, 451 U.S. at 438, 68 L. Ed. 2d at 279, 101 S. Ct. at 1858.) Both Bullington and Rumsey rest on the principle that once a State, with all its resources and power, has received "one fair opportunity to offer whatever proof it could assemble," at a trial-type death penalty hearing, the double jeopardy clause prohibits it from placing a death-acquitted defendant in jeopardy of death again. Bullington , 451 U.S. at 446, 68 L. Ed. 2d at 283, 101 S. Ct. at 1862.
This court has previously recognized that the Illinois capital sentencing procedures share "many of the characteristics that the Supreme Court has found significant in applying principles of double jeopardy to those sentencing determinations." (People v. Davis (1986), 112 Ill. 2d 78, 81-82.) The facts of the present cause, however, differ substantially from those present in Bullington and Rumsey. In both of those cases, the sentencer rejected the death penalty after full hearings at which evidence and testimony was presented, and no statutory aggravating factors were found. The Supreme Court ruled, therefore, that the double jeopardy clause prohibits States from sentencing defendants to death at new sentencing proceedings following retrial after reversals of the original convictions. Rumsey, 467 U.S. at 209-10, 81 L. Ed. 2d at 170-71, 104 S. Ct. at 2309.
The interests which the double jeopardy clause seeks to protect are not implicated unless a defendant is put in jeopardy. (Serfass v. United States (1975), 420 U.S. 377, 43 L. Ed. 2d 265, 95 S. Ct. 1055; People v. Shields (1979), 76 Ill. 2d 543.) In non-jury trials, jeopardy attaches when the first witness is sworn and the court begins to hear evidence. (People v. Shields (1979), 76 Ill. 2d 543, 546-47; Serfass v. United States (1975), 420 U.S. 377, 43 L. Ed. 2d 265, 95 S. Ct. 1055.) The defendant must be "'put to trial before the trier of facts, whether the trier be a jury or a Judge.'" Serfass (1975), 420 U.S. at 388, 43 L. Ed. 2d at 274, 95 S. Ct. at 1062, quoting United States v. Jorn (1971), 400 U.S. 470, 479, 27 L. Ed. 2d 543, 553, 91 S. Ct. 547, 554.
Bullington and Rumsey are inapplicable to the present cause because the defendant was never placed in jeopardy. In the present action, the trial Judge did not hold a capital sentencing proceeding in accord with the requirements of section 9-1(d). Our State's death penalty statute provides for a bifurcated sentencing hearing. The statute provides that when the State seeks the death penalty, "the court shall conduct a separate sentencing proceeding" to determine whether any of the aggravating factors set out in section 9-1(b) exist. (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(d).) At this phase of the hearing, the State has the burden of proving the existence of any of the factors listed in subsection (b) beyond a reasonable doubt (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(f)) and "any information relevant to any of the factors set forth in subsection (b) may be presented by either the State or the defendant under the rules governing the admission of evidence at criminal trials" (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(e)). If the court or jury finds that one or more of the factors in subsection (b) exist, the court or jury moves to the second stage of the bifurcated hearing and considers any aggravating and mitigating factors which are relevant to the imposition of the death ...