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09/19/96 PEOPLE STATE ILLINOIS v. DARRIN W. SHATNER

September 19, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
DARRIN W. SHATNER, APPELLANT.



The Honorable Justice Heiple delivered the opinion of the court:

The opinion of the court was delivered by: Heiple

JUSTICE HEIPLE delivered the opinion of the court:

Following a trial in the circuit court of Cook County, a jury found the defendant, Darrin Shatner, guilty of first degree murder, armed robbery, and arson. The defendant waived the jury for his sentencing hearing. The trial court found defendant eligible for the death penalty based on the aggravating factor that he killed the victim in the course of another felony. 720 ILCS 5/9-1(b)(6) (West 1994). Finding that there were no mitigating factors sufficient to preclude the imposition of the death penalty, the court sentenced defendant to death. The defendant's sentence has been stayed (134 Ill. 2d R. 609(a)) pending direct appeal to this court. Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d R. 603.

On appeal to this court, defendant argues that: (1) his counsel was ineffective for failing to present a sufficient defense to the charge of felony murder; (2) his counsel was ineffective for failing to challenge his eligibility for the death penalty during the eligibility phase of the sentencing hearing; (3) the trial court erroneously limited the cross-examination of a State witness; (4) his waiver of a sentencing jury was not knowing and intelligent; (5) he was denied a fair sentencing hearing by the introduction of gang affiliation evidence; (6) he was denied a fair sentencing hearing by the introduction of religious practices evidence; (7) his counsel was ineffective for failing to object to the State's introduction of evidence concerning defendant's gang affiliation and religious practices; (8) the trial court erred by considering his history of drug abuse solely in aggravation; (9) the sentence of death is excessive and inappropriate given the circumstances of the case; and (10) the Illinois death penalty statute is unconstitutional. For the following reasons, we affirm defendant's convictions and sentence.

BACKGROUND

Evidence at trial revealed the following. In the afternoon of September 1, 1986, defendant went to the home of a neighborhood drug dealer, Joaquin, to purchase some cocaine. When he arrived, he met the victim, Daniel Schneider, and the victim's friend and former coworker, Jean Rogoz. The victim invited everyone to his condominium to eat and to watch a movie. Defendant and Rogoz accepted his invitation.

The three arrived at the victim's residence. As the victim began to prepare chicken for dinner, defendant and Rogoz left to purchase some beer at a liquor store. Rogoz testified that on the way back to the victim's condominium, defendant asked her whether the victim had any valuables or money. After returning to the victim's residence, Rogoz overheard the defendant question the victim about whether he had anything they could sell in order to purchase some cocaine. The victim responded that he did not want to sell any of his belongings.

Rogoz further testified that, after she had taken some chicken and a glass of milk from the kitchen and sat down in the living room, she heard the victim cry out, "Jeannie, help me." Upon turning around she saw that the defendant had grabbed the victim from behind and was holding a six-inch pocket knife to his throat. Defendant began dragging the victim down the hallway towards the bedroom and ordered Rogoz into the bedroom. In the bedroom, defendant began to punch the victim with his fists until the victim was dazed. Defendant then left the room. According to Rogoz, defendant returned with a wooden lamp, a phone cord, and some cloth. Defendant bound the victim's legs with the cord and his hands with the cloth. After next striking the victim in the head with the wooden lamp, defendant began searching through the victim's dresser drawers. When the victim sat up in bed and looked at Rogoz, defendant struck him again with the lamp until he fell off the bed.

Rogoz stated that defendant next cut up the mattress and threw the stuffing around the room. The defendant then lit the bed and stuffing on fire. He grabbed Rogoz and told her that she was going with him. Before they left the apartment, defendant took the victim's VCR.

Thereafter, the defendant and Rogoz returned to Joaquin's by bus. Rogoz claimed that she told Joaquin what had happened, but he told her that there was nothing he could do. Defendant and Joaquin exchanged the VCR for cocaine. After using the cocaine, defendant and Rogoz took another bus ride to the apartment of a friend of the defendant, where they stayed the night.

The following day, defendant noticed a story in the newspaper regarding the victim's death. Rogoz testified that she asked him why he burned the victim, and the defendant replied, "To free his spirit." Defendant told Rogoz that he needed money to get away and Rogoz suggested that they set up a time to meet her brother, from whom she could get some money.

At approximately 7 p.m., Rogoz and the defendant met her brother in a parking lot. Rogoz testified that she was able to get away from the defendant at that time and that her brother took her to a friend's house where she called the police. Although she could not reach a detective that evening, she went to the police the next day.

Detective Ernest Halvorsen, with the Chicago police department, testified that he was assigned to investigate the murder of Daniel Schneider. After questioning Rogoz and the defendant's parents, Detective Halvorsen obtained a warrant for the defendant's arrest. However, he was unable to locate the defendant. Three years later, in December of 1989, the FBI contacted Detective Halvorsen and offered its assistance in the investigation. Eventually, in October of 1990, the FBI located the defendant in Portland, Oregon, where he was arrested.

Special Agent James D. Russell, with the FBI, testified about the circumstances of the defendant's arrest. After he was placed under arrest and transported to the Portland FBI office, defendant gave an oral statement to Russell. In this statement, he admitted that he met Rogozand the victim at Joaquin's apartment. However, defendant claimed that it was Rogoz's idea to rob the victim and that she repeatedly pressured him to commit the crime. Although defendant initially resisted her entreaties, he accompanied Rogoz to the victim's apartment and assisted her in carrying out the robbery scheme because he was physically attracted to her. Defendant admitted initiating the robbery by grabbing the victim around the throat from behind in the kitchen and dragging him towards the back bedroom. However, defendant stated that as he was dragging the victim towards the bedroom, Rogoz struck the victim in the head with a vase or jar and a lamp, despite defendant's requests that she stop doing so. After defendant placed the victim on his bed, he checked his pulse to ascertain that the victim was still alive. Defendant stated that he then took off his bloody shirt and put on a shirt belonging to the victim. Defendant claimed that while he retrieved the VCR from the living room, Rogoz cut up the victim's bed and set it on fire. After they left the victim's apartment, defendant and Rogoz returned to Joaquin's apartment. They traded the VCR for cocaine.

Based on the information defendant provided, Russell prepared a written statement, which he read aloud to the defendant. Defendant made a few changes to the statement and signed it. Shortly thereafter, defendant was extradited to Illinois.

Defendant's trial commenced on May 13, 1993. In addition to the testimony previously outlined, the State also presented the testimony of Dr. Yuksel Konacki, who performed the autopsy on the body of the victim. His examination revealed that the victim's hyoid bone, the bone surrounding the larynx in the front of the neck, was fractured. Based on his findings, Dr. Konacki opined that the primary cause of the victim's death was strangulation while the secondary cause was blunt trauma to the head.

Benjamin Lieu, defendant's former cellmate at the Cook County jail, also testified. He stated that, while they were incarcerated together, defendant told him that women were unreliable and that the woman who was with him when he committed a murder panicked and did not help him at all. Defendant also told Lieu that he hit the murder victim with a lamp, and that he had to hit him many times because he had a very strong spirit.

Defendant testified on his own behalf at trial. His testimony was consistent with his statement to the FBI. He claimed that Rogoz instigated the events leading to the victim's death. Although defendant conceded that he grabbed the victim from behind, he claimed that it was Rogoz, not he, who struck the victim repeatedly and set him on fire. Defendant further stated that following the events at the victim's apartment, Rogoz voluntarily accompanied defendant to Joaquin's, where they ingested more cocaine. Defendant and Rogoz then spent the next few days together.

Mike Marshall, a former employee of the defendant's father, also testified for the defense. He claimed that he witnessed the defendant and Rogoz engaging in sexual relations at his father's office the day after the murder occurred, and that defendant did not appear to be restraining Rogoz.

Following deliberations, the jury returned a general verdict of guilty to the charges of first degree murder, armed robbery, and arson. Since defendant had waived his right to be sentenced by the jury prior to trial, sentencing took place before the same judge who presided over his trial.

After the first stage of the sentencing hearing, the judge found defendant eligible for the death penalty based on the aggravating factor that he killed another during the course of a felony. At the second stage of the sentencing hearing, the State presented evidence of defendant's prior criminal history, including his arrests for theft, criminal damage to property, battery and resisting arrest. The State also presented testimony indicating that defendant practiced rituals in his jail cell in which he would chant and toss a feather about while naked and that he read books about satanic worship. The evidence also revealed that defendant fought in jail and that he was charged for possessing a shank in his cell.

In mitigation, defendant presented evidence indicating that he had felt unloved as a child, had begun using drugs when he was 13, and that, prior to his arrest, had been employed as a carpenter and was in a long-term relationship with his current girlfriend, with whom he had had a child. In allocution, defendant stated that he knew he was part of the murder, but that he did not intend to kill the victim. Defendant also stated that he was not a devil worshipper.

Following the sentencing hearing, the trial court found no mitigating factors sufficient to preclude the imposition of the death penalty and sentenced defendant to death.

ANALYSIS

I. Ineffective Assistance of Counsel

Defendant first contends that he received ineffective assistance of counsel at trial because his attorney failed to provide him any meaningful defense at all. Defendant impugns, among other things, his counsel's closing argument, wherein he stated:

"I submit to you that [defendant's] statement about what happened is the correct version of what happened, and then if he's guilty of anything, he's guilty of robbery. What a tragedy to find this man guilty of murder that was committed by [Rogoz], and she walks out Scotfree."

As this language indicates, defense counsel suggested that if defendant was guilty of anything, it was robbery, and not murder, because defendant never killed the victim, nor had he intended to do so. While acknowledging that this defense theory was appropriate to rebut the counts of intentional murder and knowing murder, defendant argues that his counsel was ineffective because, by conceding that defendant participated in a robbery during which the victim was killed, his counsel admitted felony murder.

A defendant alleging a violation of this sixth amendment right to effective assistance of counsel must generally meet the two-pronged test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and recognized by this court in People v. Albanese, 104 Ill. 2d 504, 85 Ill. Dec. 441, 473 N.E.2d 1246 (1984). Under Strickland, the defendant (1) must show that his counsel's performance fell below the objective standard of reasonableness and (2) must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. A court need not determine whether counsel's performance was deficient before examining the prejudice suffered if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; Albanese, 104 Ill. 2d at 527.

As an initial matter, defendant contends that because his counsel wholly failed to subject the State's case to meaningful adversarial testing, ineffective assistance of counsel can be presumed without application of the Strickland test. See United States v. Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984). In so arguing, defendant places principal reliance on People v. Hattery, 109 Ill. 2d 449, 94 Ill. Dec. 514, 488 N.E.2d 513 (1985).

The Hattery defense counsel, during opening argument, proclaimed:

"Ladies and gentlemen of the jury, he [defendant] did it. He did everything [the prosecution] just told you. ***

We are not asking you to find [the defendant] not guilty. At the end of your deliberations, you will find him guilty of murder. We are asking you to consider the evidence that you hear today and in the next few days to explain why he did the horrible thing that he did. Once you have found him guilty, we will proceed and you will find him eligible for the death penalty. The question, and the only question facing you, will be whether to impose the death penalty on Charles Hattery for trying to save the life of his family. Thank you." Hattery, 109 Ill. 2d at 458-59.

During the guilt-innocence phase of trial, defense counsel advanced no theory of defense, presented no evidence on defendant's behalf, and chose not to make a closing argument to the jury. This court, finding that the defense counsel deprived Hattery of the right to have the issue of his guilt or innocence presented to the jury as an adversarial issue, concluded that defendant was denied the effective assistance of counsel without applying the two-prong Strickland test and ordered a new trial.

Defendant's contention that the defense tactics employed by his counsel are analogous to those employed by the defense counsel in Hattery cannot withstand even the most superficial scrutiny. *fn1 The record reveals that the instant defendant's counsel was his advocate throughout the proceedings. He presented both opening and closing arguments; cross-examined virtually all of the State's witnesses; presented several witnesses, including the defendant, on the defendant's behalf; objected often and strenuously to the admission of adverse evidence; and moved for a mistrial on several occasions. It is untenable to suggest that the proceedings below approached the adversarial breakdown of the Hattery proceedings, where defense counsel acted not as a advocate for the accused but as a proponent for the prosecution. Accordingly, we reject defendant's invitation to discard the two-prong Strickland test in reviewing his ineffective assistance claim.

We turn, then, to an examination of the first prong of the Strickland test-whether defense counsel's performance fell below an objective standard of reasonableness. Defendant, relying on People v. Chandler, 129 Ill. 2d 233, 135 Ill. Dec. 543, 543 N.E.2d 1290 (1989), argues that it did. Chandler was charged with murder, residential burglary, and arson. After his arrest, he made a statement, introduced at trial, in which he admitted to breaking into the victim's home, but stated that it was his codefendant who had stabbed the victim. Chandler's trial counsel presented no witnesses on his behalf and Chandler himself did not testify. During closing argument, defense counsel conceded that Chandler had entered the victim's house, but argued that he did not stab the victim.

This court held that defense counsel's performance in Chandler amounted to ineffective assistance of counsel. The Chandler court reasoned that, even if counsel had succeeded in persuading the jury that defendant did not kill the victim, the jury was still instructed to find defendant guilty of murder under the law of accountability for felony murder. Chandler, 129 Ill. 2d at 246-47. Thus, the Chandler court concluded that the jury, having been instructed on both felony murder and accountability, had no choice but to find defendant guilty of murder, residential burglary and arson.

In the instant case, as in Chandler, defense counsel did not vigorously challenge the prosecution's claim that defendant participated in the robbery of the victim. Defendant argues that his counsel's alleged concession of his guilt in the robbery during closing argument, i.e., counsel's statement that "if he's [defendant's] guilty of anything, he's guilty of robbery," should compel us to conclude that he received ineffective assistance of counsel.

However, Chandler does not mandate a finding of ineffective assistance of counsel in the instant case. Ineffective-assistance-of-counsel claims must be determined on a case-by-case basis. Indeed, the Supreme Court cautioned in Strickland that "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066. We reiterate ...


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