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June 22, 1995


The Honorable Justice Nickels delivered the opinion of the court: Justice Miller, dissenting: Chief Justice Bilandic and Justice Heiple join in this dissent.

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

David Gevas, defendant, pleaded guilty in the circuit court of Cook County to the murder of his two nine-month-old children and, after a hearing, the trial court sentenced him to death. Defense counsel thereafter filed several post-trial motions to vacate defendant's guilty plea, sentence defendant to natural life imprisonment, and conduct a new sentencing hearing. Defense counsel also asked the court to hold a fitness hearing based upon a letter from a psychiatrist which indicated, inter alia, that defendant had been treated with psychotropic drugs during the proceedings. The trial court denied these motions and request. Defendant appeals directly to this court pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603).


On October 6, 1992, Officer Frank Lara of the Village of Riverside responded to a call of possible child abuse. Upon arriving at the hospital, Officer Lara observed bruises on the victims, John and Jessica Gevas, defendant's nine-month-old twins. Defendant denied any abuse of the children.

On October 7, 1992, after being given Miranda warnings, defendant informed Officer Lara that on October 6, 1992, he was baby-sitting John and Jessica. The children began crying and screaming and defendant could not calm them. Defendant picked up the children, one in each arm, and walked towards his bedroom. When defendant reached the bedroom, he threw both of the children at the bed. However, the children did not land on the bed. One of the children hit a desk that was on the opposite side of the bed and the other hit a wall. Defendant had thrown the children approximately 11 1/2 feet. The children later died at the hospital from the injuries sustained.

Defendant was charged by information on October 16, 1992, with six counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)), and the public defender's office was appointed to represent defendant. The State later nol-prossed the two counts under section 9-1(a)(3), murder while committing a forcible felony, aggravated battery.

On December 8, 1992, defense counsel requested a sanity evaluation of defendant and the trial court ordered a fitness and sanity evaluation. On January 5, 1993, Dr. Mathew S. Markos of the Psychiatric Institute of the circuit court of Cook County informed the trial court that he was unable to render an opinion as to defendant's fitness to stand trial, his mental state at the time of the alleged offense, and his ability to understand Miranda warnings. Defendant was not cooperative, provided very little information about the offense, and refused to sign consent forms for release of information from other facilities.

The trial court informed defendant that the case could not proceed until he cooperated with Dr. Markos. Later that month, on January 29, 1993, Dr. Markos again examined defendant. Dr. Markos found defendant fit to stand trial and legally sane at the time of the offenses. Dr. Markos also found that defendant had a satisfactory understanding of the Miranda warnings and the capacity to knowingly and intelligently waive his constitutional rights.

On February 2, 1993, the trial court informed defendant that because of the evidence in the case, namely the two deaths, the court could only sentence defendant to either natural life in prison or death. Defendant informed the court that he did not want to receive natural life and asked for the death penalty. Defendant was anxious to know if the State would seek the death penalty so that he could decide whether to plead guilty.

On February 16, 1993, defendant appeared in open court and stated his desire to plead guilty. The State had decided to seek the death penalty. After the court admonished defendant of his rights, defendant pleaded guilty to the charges. After consulting with his defense counsel, defendant then waived his right to a jury for sentencing. Defendant informed the court of his desire to receive the death penalty and to "get this over with as soon as possible." The court set the sentencing hearing for March 16, 1993.

A presentence investigation report was filed with the court which indicated that defendant had no previous criminal history. Defendant indicated in the report that he had dropped out of high school, earned his GED, and enrolled in college, but did not complete his degree. Defendant refused to provide any other information for the report.

On March 16, 1993, the court again took defendant's guilty plea because there had been no previous stipulation to the facts. The hearing then proceeded to sentencing. The court first noted that defendant was eligible for the death penalty because he had pleaded guilty to two murders and was over the age of 18 at the time of the murders. After this, the State presented evidence in aggravation, which included: (1) portions of defendant's wife's grand jury testimony which indicated that defendant had previously abused the children, (2) evidence that defendant was not concerned with the children, (3) evidence that defendant was unemployed while his wife worked, and (4) evidence that defendant spent his days at home smoking cocaine. The State also argued that defendant showed no remorse throughout the proceedings.

Defense counsel called no witnesses, but introduced in mitigation hospital reports detailing defendant's mental history of chronic depression and a borderline personality disorder. Also included was a March 7, 1993, summary of the hospital reports by Dr. Henry Conroe, a psychiatrist. These reports indicated that defendant, who was 27 at the time of the offenses, had been hospitalized three times as a teenager for these problems. Defense counsel further argued: (1) defendant's mental illness was exaggerated by his use of cocaine; (2) defendant had no history of criminality; and (3) there was no evidence that defendant had misbehaved in prison.

The trial court, in sentencing defendant, noted that Dr. Markos found defendant fit to stand trial. The court also noted that he did not think defendant "[gave] a damn" about the fact that the children were dead. The trial court sentenced defendant to death.

On April 14, 1993, defense counsel filed three motions: (1) a motion to withdraw defendant's guilty plea, (2) a motion to vacate defendant's death sentence and toimpose a life sentence, and (3) a motion for a new death penalty hearing. In these motions, defense counsel noted that in addition to having Dr. Markos examine defendant, defendant had also been examined prior to his guilty plea and sentencing by a private psychiatrist, Dr. Conroe. Dr. Conroe believed that defendant was sane, but was of questionable ability to assist in his defense, thereby rendering him unfit for trial. However, defense counsel noted in these motions that he deferred to Dr. Markos' determination of fitness and had not informed the trial court of Dr. Conroe's findings because he believed the chance of a finding of unfitness was small and because counsel felt that any kind of fitness hearing would make defendant even less cooperative." Defense counsel also deferred to Dr. Markos' opinion because counsel was aware that the trial judge had not previously imposed the death penalty, even in what defense counsel believed to be more egregious cases. Counsel thus did not previously seek a fitness hearing due to his belief that the trial court would not impose the death penalty.

Defendant filed a pro se motion for execution of death sentence. In this motion, defendant asked the court to eliminate all ...

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