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09/18/97 PEOPLE STATE ILLINOIS v. ROBERT CLOUTIER

September 18, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
ROBERT CLOUTIER, APPELLANT.



The Honorable Justice Nickels delivered the opinion of the court.

The opinion of the court was delivered by: Nickels

The Honorable Justice NICKELS delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Robert Cloutier, was found guilty of the first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(a)) and aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12-14(a)(4)) of Alice Cogler on January 28, 1990. Thereafter, a capital sentencing hearing was held before the jury, and defendant was sentenced to death. On appeal, this court affirmed defendant's convictions, but vacated his death sentence because the trial court improperly failed to "reverse- Witherspoon," or "life-qualify," the jurors in accordance with Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992). People v. Cloutier, 156 Ill. 2d 483, 190 Ill. Dec. 744, 622 N.E.2d 774 (1993). We remanded the cause for a new sentencing hearing. On remand, a bifurcated capital sentencing hearing was held before a jury, which determined that defendant was eligible for the death penalty and that there were no mitigating factors sufficient to preclude imposition of the death sentence. The trial court sentenced defendant to death in accordance with the jury's verdict, and this appeal followed.

BACKGROUND

The factual background of guilt phase in this case is set forth in our earlier opinion ( People v. Cloutier, 156 Ill. 2d 483, 190 Ill. Dec. 744, 622 N.E.2d 774 (1993)) and will not be repeated in detail here. Defendant was arrested on February 1, 1990, after he was identified as the perpetrator of attacks on two women, Susan Bradford and Elizabeth Halili. Also, the victim in this case, Alice Cogler, had last been seen with defendant, and defendant was suspected of involvement in the disappearance of a fourth woman, Cynthia Cooney. Following his arrest, defendant admitted to police that he had killed both Cogler and Cooney, and he disclosed where their bodies could be found. Defendant gave detailed statements about the killings in the presence of a court reporter, and the statements were read to the jury at the eligibility stage of defendant's sentencing hearing.

According to defendant's statement, he visited a tavern called the Huggery on the evening of January 27, 1990. At about 9 p.m. defendant left the tavern, accompanied by Alice Cogler. Defendant related that Cogler performed oral sex on him, and they later returned to the Huggery, where they remained until closing time. They then proceeded in Cogler's car to the vicinity of the Rose Meat Packing Company in Chicago, where they engaged in consensual vaginal and anal sex in the backseat of the car. After having sex, defendant and Cogler held each other for a few minutes. Defendant then began choking Cogler with his hands. After determining that Cogler still had a heartbeat, defendant wrapped a fan belt that he found in the car around Cogler's throat. Defendant squeezed the fan belt until Cogler's lips were blue and he could no longer detect a heartbeat. Defendant then covered the body with some clothing and left it on the backseat. Defendant eventually transferred the body to the trunk of the car, which he then abandoned.

Defendant told the authorities that he met Cynthia Cooney on the evening of January 29, 1990, at a tavern called Panama Sid's. They left together at 12:30 or 1 a.m. and drove in Cooney's car to Summit, Illinois, where they engaged in vaginal and oral sex. Defendant stated that he and Cooney then held each other for a while, and defendant started to choke Cooney with his hands. When defendant believed that Cooney was dead, he drove to Willow Springs, and disposed of Cooney's body in the Des Plaines River.

The State presented evidence that defendant had previously been found guilty by a jury of first degree murder and aggravated criminal sexual assault with respect to Cogler, and that defendant had pleaded guilty to the same charges in connection with Cooney's death. During the eligibility stage, the State also presented the testimony of Chicago police detective William Drish regarding conversations with Susan Bradford and Elizabeth Halili, who reported being attacked by defendant. Defendant objected that the proffered testimony was inadmissible hearsay, but the trial court overruled the objection.

According to Detective Drish's testimony, Susan Bradford recounted that on the morning of January 28, 1990, she met an individual with long blond hair named Bob at a lounge, and they later proceeded to a house where a group of people were gathered. Bob offered Bradford a ride home, and during the drive, he began to struggle with her. Bradford's clothes were torn and Bob grabbed her breasts. At one point, Bob grabbed Bradford by the hair and turned her head toward the backseat of the car, where she saw the body of a white female. Bradford was able to escape from the car, and after she started screaming, Bob drove away. The incident described by Bradford would have occurred about 2 1/2 hours after the time of Alice Cogler's murder.

Elizabeth Halili reported to Detective Drish that on the morning of January 28, she was working as a clerk at a gas station when she encountered a man with long blond hair worn in a ponytail. The man announced a robbery, and forced Halili into a brown Oldsmobile. (According to Detective Drish, Susan Bradford had provided a similar description of the vehicle driven by her assailant.) After forcing Halili into the Oldsmobile, the man ordered her to remove her clothes, and also tore at parts of her clothing. Like Bradford, Halili told Detective Drish that her attacker grabbed her hair and turned her head toward the backseat, where she observed the body of a white female. Halili was able to escape from the vehicle, and her attacker drove off.

Based on this evidence, the jury unanimously determined that defendant was eligible for the death penalty for the murder of Alice Cogler based on two separate statutory aggravating factors: (1) the murder occurred during the course of another felony (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(b)(6)); and (2) defendant had been convicted of murdering two or more individuals (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(b)(3)). Thereafter, the jury heard evidence of aggravating and mitigating factors. Susan Bradford and Elizabeth Halili testified in person regarding the attacks by defendant that Detective Drish had described during the eligibility stage. Another woman, Marie Goodman, testified that defendant attacked her during the same time frame. Goodman testified that she had made defendant's acquaintance in September 1989. About 7 a.m. on January 28, 1990, defendant arrived, uninvited, at Goodman's home, with visible scratch marks on his chin, neck and wrist. Defendant claimed he had been in a fight, and he departed from Goodman's apartment after a few minutes. Defendant returned at around 10:30 a.m. and took Goodman and her young son out for breakfast. After they returned from breakfast, defendant attacked Goodman. He placed his thumb at the base of her throat so that she was barely able to breathe. Defendant physically placed Goodman's hand on his penis and tore her shirt open. When Goodman's son came into the room, defendant left.

A number of witnesses for the State provided accounts of several robberies committed by defendant in 1983. Defendant targeted convenience stores, gas stations and liquor stores. In October 1983, while driving a stolen vehicle, defendant led Chicago police on a high-speed chase that ended when defendant collided with a police vehicle. It was stipulated that defendant entered the Department of Corrections in 1983 to serve four 12-year sentences for armed robbery and a three-year sentence for theft. All sentences were to be served concurrently. It was further stipulated that defendant was "paroled" in September 1989. (In fact, defendant was not paroled, but was released as a result of the accumulation day-for-day good-conduct credits under section 3-6-3(a)(2) of the Unified Code of Corrections (730 ILCS 5/3-6-3(a)(2) (West 1994)).)

Springfield police officer Robert Crouch testified that on the morning of October 28, 1989, he observed defendant striking a woman in the head and face with a large chain. The woman told Officer Crouch that defendant was her boyfriend. He had become angry with her, dragged her down the street with the chain around her neck, and then began beating her with the chain. It was stipulated that defendant thereafter returned to prison because of a violation of the terms of his "parole," and was again released from custody in late December 1989. After his release, defendant engaged in an extensive spree of armed robberies in January 1990 before being arrested for the murders of Alice Cogler and Cynthia Cooney.

It was stipulated that during his incarceration from 1983 to 1989, defendant received a total of 52 disciplinary tickets from Department of Corrections personnel. Defendant also received five disciplinary tickets between August 1991 and January 1995 during his incarceration in the Department of Corrections following his convictions for the murders of Alice Cogler and Cynthia Cooney. Timothy Pruett, a correctional officer, testified that on July 17, 1994, defendant threw a pitcher of scalding water at him at the Pontiac Correctional Center. Officer Pruett suffered minor burns to his neck and back.

As evidence in mitigation, defendant presented the testimony of Lawrence Heinrich, a clinical psychologist. Based on psychological testing, interviews with defendant and review of documents relating to defendant's criminal history and personal background, Dr. Heinrich concluded that defendant suffered from antisocial personality disorder and mixed substance abuse disorder. Defendant also showed some traits of narcissistic personality disorder. Antisocial personality disorder is characterized by defects in interpersonal relationships and a lack of conscience and social sensitivity, and is commonly associated with criminal or delinquent behavior. Mixed substance abuse disorder involves the abuse of a variety drugs and alcohol in such a manner that the toxic effects of the substances tend to aggravate each other. Narcissistic personality disorder is characterized by self-centeredness, grandiosity in pleasure-seeking endeavors and a lack of empathy.

In connection with his evaluation, Dr. Heinrich reviewed a biographical sketch of defendant prepared by defendant's mother. The biography indicated that defendant was raised by his mother along with his four sisters. Defendant never fit in or felt connected with the rest of the family. Defendant's problems became worse when he suffered a serious eye injury as a child. He was abusing drugs and alcohol by the time he was in high school. During his teen years, defendant spent time in a youth home or detention center. At one point while defendant was in the facility, his family moved without telling him where they could be found.

Dr. Heinrich observed that a police bulletin issued in connection with efforts to arrest defendant identified him as a heavy user of cocaine and other drugs. Dr. Heinrich further noted that defendant had been ordered to participate in an alcohol abuse program as a condition of his supervised release from prison. Dr. Heinrich noted that persons suffering personality disorders often use drugs and alcohol for purposes of self-medication to soothe the unpleasant feelings associated with their disorders. Dr. Heinrich believed that drugs and alcohol influenced defendant's behavior and impaired his judgment during the series of fatal and nonfatal attacks on women on January 28 and January 29, 1990.

Alvin Hill, coordinator of the Cook County Public Defender's Sentencing Advocacy Program, also testified on defendant's behalf, elaborating on the biographical information supplied in written form by defendant's mother. Defendant's mother indicated that defendant's life changed drastically when he was 13 years of age: he no longer took pride in himself, started to cruelly tease his sisters, and substantially withdrew from family life. Defendant also experienced problems with truancy and stole money from the family. Defendant's mother noted that when the family moved while defendant was in the youth home, they left no forwarding address and changed their telephone number. According to defendant's mother, they "left no trace."

Hill also testified about conversations with defendant. Defendant expressed his love for and loyalty to his family, but maintained that his family did not understand him. Defendant was adamant that his family not be asked to testify on his behalf. Defendant related that he began using alcohol at about the age of 10 and street drugs at the age of 13. Defendant indicated that he was "drugging" at the time of the murder of Alice Cogler. Defendant expressed remorse for his crimes and the suffering inflicted on the families of the victims and on his own family. Defendant had received a general equivalency degree while incarcerated, and felt that he could help younger inmates.

Having heard the foregoing evidence, the jury returned a verdict finding that there were no mitigating factors sufficient to preclude imposition of the death sentence.

ANALYSIS

I. Eligibility Stage

A. Hearsay Evidence

Defendant contends that the trial court erred at the eligibility stage of sentencing by allowing Detective Drish to testify about conversations with Susan Bradford and Elizabeth Halili in which they described how they were attacked by defendant. Defendant argues that the evidence was both irrelevant and inadmissible under the hearsay rule. In defendant's original appeal, we held that testimony by Bradford, Halili and other victims who survived attacks by defendant was admissible to establish that defendant's sexual conduct with Alice Cogler was achieved by the use of force. Cloutier, 156 Ill. 2d at 505-06. Similarly, Detective Drish's testimony was relevant at the eligibility stage of sentencing to establish the statutory aggravating factor that Cogler was murdered during the course of another felony: aggravated criminal sexual assault. We agree with defendant, however, that notwithstanding the relevance of the subject matter of Detective Drish's testimony, the testimony was inadmissible hearsay.

Hearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted, and is generally inadmissible unless it falls within a recognized exception. People v. Lawler, 142 Ill. 2d 548, 557, 154 Ill. Dec. 674, 568 N.E.2d 895 (1991). Without citation of authority, the State argues that Detective Drish's account of conversations with Bradford and Halili was admissible under the state of mind exception to the hearsay rule. The State argues that the evidence that defendant displayed the victim's body to Bradford and Halili in an effort to force them to "submit to his wishes." This, according to the State, shows that in killing the victim defendant acted with the culpable mental state necessary under Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d ...


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