several places on her body and a four inch long piece of wood was found in her vagina, it had perforated the vagina and entered the abdominal cavity. Kokoraleis' confession to the crime was proved as well. He said that he and Spreitzer seized the woman who was walking on the street, forced her into the van where he put handcuffs on her while Spreitzer gagged her. At the gangway, Gecht hit her in the face while he pulled her slacks down. Gecht raped her and later struck her in the face with a hatchet and forced the handle of the hatchet into her vagina. Acting at Gecht's direction, Kokoraleis took a knife and "poked at her midsection three or four times." He dropped the knife and fell against a wall of a building. Eventually they went back to the van and drove off.
The mitigation witnesses were a chaplain at the Cook County jail who knew Kokoraleis during the two years petitioner was in that jail. He found petitioner to be helpful and unthreatening and rehabilitable. A religious counselor at the DuPage County jail knew petitioner for a year and found him unthreatening and believed he was not a danger to society. The mother of someone who Kokoraleis dated said that her daughter had run away from home and petitioner had persuaded her to return home. She visited Kokoraleis at both jails. He had corresponded with her daughter while he was in jail. Kokoraleis testified that he had become involved in religion while he was in jail, he denied his guilt and said he was framed.
The jury found no mitigating circumstances sufficient to preclude a sentence of death, and the trial judge imposed a death sentence.
On direct appeal, petitioner challenged the admission of the other murders but the Illinois Supreme Court found them admissible both as modus operandi evidence and as supporting the reliability of the confession and its voluntariness; the Court also rejected various challenges to admission of the details of some of those murders. He also appealed the unobjected to evidence that Spreitzer, who did not testify, had implicated him. The Court found this point waived and found counsel was competent despite failing to object because the evidence was consistent with the defense theory that the police put words (perhaps Spreitzer's words) in his client's mouth. Indeed, defense counsel had brought this fact out as well so the confrontation claim was waived. The claim of improper cross examination questions to Kokoraleis, e.g., is officer x lying when he says something different from what you say?, left the Court unpersuaded. While the questions were generally impermissible, they were not necessarily inappropriate when Kokoraleis was indeed claiming that he was framed by lying police officers. In any event, defense counsel (now Judge) Eugene Wojcik had not objected, and this waiver was not incompetent where credibility was the issue. So too for arguments of the prosecutor who told the jury the issue was who was lying. The petitioner argued that the jury was improperly left with the impression that he had been convicted of four murders in Cook County, instead of four counts of murder involving only a single victim. In light of the undisputed statements of counsel and the record, the Court concluded the jury could have only thought that it was the murder of Rose Beck Davis of which Kokoraleis had been convicted. There was a challenge to an erroneous instruction on felony murder given without objection. The jury returned a disjunctive verdict finding beyond a reasonable doubt that either the statutory aggravating factor of multiple murder or the factor of felony murder existed. The instruction told the jury that if felony murder is to be applicable, the defendant himself must have inflicted the fatal injury or inflicted injuries contemporaneously with those causing death. (Emphasis added.) As it turned out, the underlined portion was not the applicable law at the time this murder occurred. To fail to object to such an instruction was incompetence of counsel, argued Kokoraleis. The Court found that no possible prejudice could have resulted from this act because the other aggravating circumstance, multiple murder, was undeniably true. It also thought there was evidence beyond a reasonable doubt that Kokoraleis inflicted fatal injury because Kokoraleis said he killed the woman and said that he, as well as Spreitzer, beat and stabbed her. The Court rejected the double enhancement claim under state law because it found that there were separate acts of physical harm (apart from fatal ones) which could establish that a kidnaping was aggravated. The Court did not find that Kokoraleis had the right to unsworn allocution to the jury or that the prosecutor gave an improper closing argument or that he was entitled to an instruction that told the jury the alternative to the death sentence was life in prison without parole or that the court should have told the jury the admission of many other murders was without corroboration. Finally the Court rejected, as it had in other cases, a constitutional challenge to the Illinois death penalty law. People v. Kokoraleis, 132 Ill. 2d 235, 547 N.E.2d 202, 138 Ill. Dec. 233 (1989).
After denial of his post-conviction petition, Kokoraleis appealed again. The Court rejected his challenges to the competency of counsel on grounds of procedural default insofar as the incompetency claim might have been raised on appeal as might a claim of poor closing argument been raised. It rejected on the merits the claim of incompetency based on the failure to mount a psychiatrically based defense in mitigation. It found counsel's judgment and investigation to be within reasonable bounds. It refused to reconsider two grounds it had already rejected on appeal. It rejected other challenges to instructions of the sort decided against petitioners in Gacy v. Welborn, 994 F.2d 305 (7th Cir. 1993) and Free v. Peters, 12 F.3d 700 (7th Cir. 1993). Finally, it rejected a claim that this death sentence was barred by double jeopardy and collateral estoppel because of the failure to secure the death sentence in the earlier Rose Beck Davis murder trial. Here the Court said it was a matter that could have been raised on direct appeal and was not.
The petition for habeas corpus narrows somewhat the range of claims that were made in state court.
1. Telling the Jury that the Alternative to the Death Penalty is Life in Prison Without Parole.
In People v. Gacho, 122 Ill. 2d 221, 522 N.E.2d 1146, 119 Ill. Dec. 287 (1988), the Court reiterated its longstanding rule that a prosecutor could not argue for the death penalty on the grounds that the murderer might be paroled. Then it found, for the first time, the standard instruction telling the jury that the alternative to death is imprisonment was inadequate. It then decided to abandon its prior holdings regarding the standard instruction and said:
Under the supervisory authority inherent in this court, as well as that conferred by ... the Illinois Constitution ... we direct that after the date of this opinion the trial courts of this State, when conducting a sentencing hearing involving a defendant convicted of multiple murders use [an instruction which states that where no death penalty is imposed, life imprisonment will be imposed and no one serving that sentence can be paroled or released except through executive clemency].
This rule was applied to anyone whose case was tried after the date of the opinion and to no one whose case was tried before it except Robert Gacho. At least eight multiple murderers whose cases were on direct appeal, including Kokoraleis, were not entitled to invoke this rule. In Stewart v. Lane, 60 F.3d 296 (7th Cir. 1995), this was held not to be error. There is no reason why it should be. A State is perfectly free to apply its own judge made law in a fully prospective fashion. A prospective only construction of an existing statute may be constitutionally problematic ( Fetterly v. Paskett, 997 F.2d 1295, 1298-1301 (9th Cir. 1993)) but this should not be true of the rules made by judges, at least those designed to be prophylactic in nature. It is clear that the rule in Gacho was prophylactic. The Court did not hold that death penalty judgments imposed without the instruction were inherently flawed even when parole was argued to the jury, it simply set forth a rule which would save it and trial judges from having to make nice calculations in particular cases about how prejudicial an argument had been.
Simmons v. South Carolina, 512 U.S. 154, 129 L. Ed. 2d 133, 114 S. Ct. 2187 (1994), did not go as far as Gacho did. It did not require an instruction in all cases, but it said that instructions about life without parole should be given when the prosecutor argues that parole is possible. Simmons is a new rule and not applicable to this case on habeas corpus. I am persuaded here by O'Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996).
Yet if Simmons were to apply here it would not affect the result. It was not parole that was the subject of the prosecutor's argument; it was the opinion of a mitigation witness, a former college science professor and then religious counselor who stated, on cross examination, that Kokoraleis would not be a danger to society if he were free. The defense counsel had urged the jury to consider the rehabilitative potential of his client. His argument was that Kokoraleis had no prior criminal history, had been confined in jail since he was nineteen and had made the best of his situation becoming sincerely religious, helping people and impressing two religious counselors, one of whom had a doctorate in science. The prosecutor was entitled to use what the witness had said in an attempt to discredit the witness. The defense did not object. The prosecution also said Kokoraleis had no rehabilitative potential. It was never argued that Kokoraleis could or would be paroled, and the one thing that was clear to everyone in the courtroom was that Kokoraleis was either going to be executed or imprisoned. And by asking one of the counselors if it was okay just to let Kokoraleis "go right now," it was understood as an attack on the religious counselor witnesses, both of whom felt unthreatened by petitioner and endorsed his character. The prosecutor was entitled to argue that the religious counselors' opinions were too extreme to be given any credit. This is not the argument that troubled the Court in Simmons. Read as a whole the argument was not about future dangerousness or parole, it was about the defendant's character and the worth of the mitigation witness' opinions of that character.
Finally, there is the related claim that the jury ought to have been told not only about the conviction in the Rose Beck Davis murder but also that the sentence there was life imprisonment without parole, because it would incline a juror less toward the death penalty since there was an assurance of life in prison. The argument is made without citation to authority and was not made on direct appeal. On post-conviction the Illinois Supreme Court found it to be procedurally defaulted. People v. Kokoraleis, 159 Ill. 2d 325, 334, 637 N.E.2d 1015, 1020, 202 Ill. Dec. 279 (1994). It is defaulted here.
2. The Life Sentence in the Davis Murder Case as Estoppel of the Death Penalty
In the Cook County prosecution of Kokoraleis, the prosecution put in much of the same evidence that was used in the trial in this case. But there were apparent differences between the Borowski and the Davis murder prosecutions. In the murder of Rose Beck Davis, Robin Gecht inflicted most of the injuries on the victim including the revolting mistreatment of her body. Robin Gecht was not shown to be present at the murder of Lori Borowski. Kokoraleis said he and Spreitzer both killed her. Moreover, in DuPage the prosecution had the fact of the conviction of the Davis murder.
There is really no precedent for the argument petitioner tries to make now. Bullington v. Missouri, 451 U.S. 430, 68 L. Ed. 2d 270, 101 S. Ct. 1852 (1981) involved a second sentence hearing for the same murder. Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970), involved a trial of a second victim of a single incident of robbery at a poker game, after the defendant was acquitted in the trial involving the first victim. The closest decided case is Ciucci v. Illinois, 356 U.S. 571, 2 L. Ed. 2d 983, 78 S. Ct. 839 (1958), which involved a man who murdered his wife and four children in the same incident and was tried seriatim for each of the murders. The evidence of all murders was introduced in each trial. In the third trial, Ciucci received the death penalty and the fourth case was never tried. The Supreme Court held that Illinois was constitutionally entitled to prosecute these cases singly. Today Illinois law would preclude such proceedings (Sec. 3-3 of the Criminal Code of 1961) and Ashe would preclude a second trial if the first had resulted in acquittal. But Ashe has not been applied to sentence hearings, and Kokoraleis' case is very different from Ciucci's and Ashe's. Kokoraleis' murders each occurred separately, a different time and a different place as well as a different victim. Charges of murder allegedly occurring in different counties were probably not capable of joinder. An argument could be made (but is not) that the prosecution should be precluded from introducing evidence of other murders unless it represents that defendant will not be prosecuted for those other murders. This was not a ground for any objection at trial and the argument, which seems weak, would be waived if it had been made here. The double jeopardy/collateral estoppel claim is without constitutional merit.
All arguments on this point, moreover, are procedurally defaulted. The Illinois Supreme Court said of these claims that they "could have been, but were not, raised on direct appeal and ... finding no recognized exception applicable, we decline to consider their merits." People v. Kokoraleis, 159 Ill. 2d at 334, 637 N.E.2d at 1020. Petitioner criticizes the ruling as inconsistent with the Illinois Supreme Court's basic doctrine that such claims could only be made by going outside the record. Kokoraleis argues he could only argue this on appeal by adding the facts of the earlier trial to this record. This criticism seems baseless. The Supreme Court was quite capable of considering the Davis trial without adding to the record before it. There was a reported opinion in that case. Indeed, the affirmance of that conviction over challenges to evidence of the other murders was specifically cited in the court's opinion. See People v. Kokoraleis, 132 Ill. 2d 235, 257, 547 N.E.2d 202, 213, 138 Ill. Dec. 233 (1989) (citing People v. Kokoraleis, 154 Ill. App. 3d 519, 507 N.E.2d 146, 107 Ill. Dec. 482 (1st Dist. 1987)). This procedural default, like the one with respect to informing the jury of the life sentence in the Davis case, precludes review on habeas corpus. See Willis v. Aiken, 8 F.3d 556, 560-561 (7th Cir. 1993); Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988).
A variation of this argument, which the Illinois court found to be waived, is that the jury should have been told of the life sentence in the Davis case, told what aggravating factors that jury found and then instructed that they would need an "independent" aggravating factor to return a death sentence. There is also a claim that this would be necessary to make sure that a jury imposed similar sentences in similar circumstances. This defaulted argument is made without precedent. There is law which would require a State to evaluate the consistency of the imposition of its death sentences but none of it says that it is the jury that decides this question. See, e.g., People v. Towns, 174 Ill. 2d 453, 479, 675 N.E.2d 614, 626, 221 Ill. Dec. 419 (1996) (noting that the federal Constitution does not require a proportionality review but that it, the Illinois Supreme Court, may in its discretion conduct this review); State v. Moody, 345 N.C. 563, 481 S.E.2d 629, 639 (N.C. 1997) (characterizing proportionality review as an exclusive duty of the North Carolina Supreme Court); Echols v. State, 326 Ark. 917, 988, 936 S.W.2d 509, 546 (Ark. 1996), cert. filed, No. 96-8385 (Mar. 22, 1997) (noting that Arkansas courts had conducted proportionality review in the past although the federal constitution did not require one). This claim, as it is stated here, is meritless.
3. The References to Spreitzer Implicating Kokoraleis
On appeal the Illinois Supreme Court addressed this issue and said all that needs to be said on the point:
Defendant cite three instances. . . . In describing the events leading to the defendant's arrest, a police detective testified that . . . he was informed by a second officer that Spreitzer 'was now implicating another party by the name of Andy Kokoraleis'; the detective also testified that at the outset of his initial interrogation of defendant, he told the defendant that he 'was being implicated in murders with Spreitzer and by Spreitzer.' The second officer [testified] the decision to arrest [was based on the fact] that Spreitzer had 'implicated' the defendant. Edward Spreitzer did not testify at trial, and the defendant contends that the officers' statements denied him his constitutional right to confront his accuser, Spreitzer.
Any error in this regard was, we believe, harmless. The same information was introduced into evidence by defense counsel, who elicited similar testimony from a number of witnesses, including the defendant himself. For example, the defendant testified on direct examination that he was told by one of the arresting officers that Robin Gecht and Edward Spreitzer had said that he had committed a number of murders with them. Defense counsel asked similar questions of law enforcement officers on cross-examination.