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People v. Burton

October 01, 1998


The opinion of the court was delivered by: Justice Nickels delivered the opinion of the court

Agenda 4-November 1997.

Defendant was indicted in Cook County on six counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(a)(1), (a)(2), (a)(3)), three counts of home invasion (Ill. Rev. Stat. 1991, ch. 38, par. 12-11(a)(1), (a)(2)), two counts of armed robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18-2(a)), one count of solicitation of murder (Ill. Rev. Stat. 1991, ch. 38, par. 8-1.1(a)), and one count of conspiracy (Ill. Rev. Stat. 1991, ch. 38, par. 8-2(a)). Defendant pleaded guilty to all charges and waived sentencing by jury. The circuit court found defendant eligible for the death penalty. After hearing evidence in aggravation and mitigation, the circuit court sentenced defendant to death. Defendant's death sentence was stayed (134 Ill. 2d R. 609(a)) pending direct appeal to this court. Ill. Const. 1970, art. VI, §4(b); 720 ILCS 5/9-1(i) (West 1994); 134 Ill. 2d R. 603. We affirm.


The State provided a factual basis for defendant's guilty plea. In essence, this factual basis revealed that defendant shot and killed Frank Gorzelanny and his wife, Evelyn Gorzelanny, at their home in Calumet City on December 31, 1992. Defendant committed these actions at the solicitation and request of the victims' son, David Gorzelanny. On September 26, 1994, before defendant pleaded guilty, defendant asked for a fitness hearing. This request was based on a report by Dr. Lynn Maskel, a forensic psychiatrist. In the report, Dr. Maskel stated that defendant was suffering from clinical depression and would not be able to assist in his defense. Dr. Maskel noted that defendant was currently being treated with psychotropic medication, recommended that defendant continue to be treated with psychotropic medication, and stated that the treatment would likely enable defendant to assist in his defense within a year.

On May 15, 1995, about eight months later, the parties proceeded by way of stipulation at a fitness hearing. The parties stipulated to the testimony of two psychiatrists. The parties stipulated that Dr. Roni Seltzberg, who was ordered to evaluate defendant by the circuit court, would testify that she had reviewed defendant's records and had examined defendant. She would testify that defendant understood the nature of the proceedings, could assist in his defense, and was fit to stand trial or to enter a plea. Dr. Maskel, who had previously examined defendant, reached a similar Conclusion. The parties stipulated that she would testify defendant understood the nature of the proceedings and could now assist in his defense. After hearing the stipulations, the circuit court found defendant fit to stand trial or to enter a plea.

On July 7, 1995, after admonishment, defendant entered a plea of guilty. The factual basis incorporated a written statement made by defendant to the police. According to this statement, David Gorzelanny initially approached defendant about the killings in early December 1992. David Gorzelanny said that he would pay defendant a large sum of money and mentioned the amount of $25,000. David Gorzelanny also indicated that the money would come from a trust fund.

According to defendant's statement, defendant and another individual, Scott Stodula, went to the home of the victims on December 31, 1992. While traveling to the home, defendant and Stodula considered tying up the victims in the basement and using a knife to cut their throats. When they arrived, defendant and Stodula were invited into the home. They watched television with the victims for about half an hour. The victims' son was not present during this time. At some point, while sitting with the victims in the living room, defendant stood up, pulled a gun from his pocket, and stepped toward Frank Gorzelanny. Defendant fired the gun, hitting Frank Gorzelanny in the head. Defendant then stepped to his left and pointed the gun at Evelyn Gorzelanny. According to defendant's statement, Evelyn Gorzelanny said something like "Oh, no," or "Oh, my God." Defendant fired two more times, hitting Evelyn Gorzelanny twice in the head.

After the shootings, Stodula ripped open the pants pocket of Frank Gorzelanny and took money and identification from the pants pocket. Defendant and Stodula went to the bedrooms and pulled out some drawers. They then drove to the apartment of Stodula's girlfriend, where they split the money between themselves and changed clothes. Defendant and Stodula drove to the Hammond Rescue Mission in Hammond, Indiana, where defendant, Stodula, and David Gorzelanny were living. Defendant put the gun in a boot under his bed. Defendant and Stodula then drove to Gary, Indiana, where defendant threw away the clothes he and Stodula had worn during the killings.

Later that night, defendant and Stodula returned to the victims' home, wearing gloves. Defendant suggested that they take a television to make it look like a burglary. Stodula told defendant that David Gorzelanny would come to the home the next morning to give the home the appearance of a burglary.

In addition to defendant's statement, the State presented other evidence as part of the factual basis. On January 1, 1993, David Gorzelanny called the police to report his parents' deaths. In the course of the investigation, the police interviewed David Gorzelanny, Stodula, and defendant. All three confessed their involvement in the murders. The police later recovered a gun from a shoe at defendant's residence and clothing that had been dumped in Indiana. The police also recovered four boxes of jewelry, taken from the victims' home, among Stodula's possessions. After hearing this factual basis, the circuit court accepted defendant's guilty plea.

The case proceeded to sentencing. On July 25, 1995, defendant waived a jury for sentencing at both the eligibility phase and the aggravation/mitigation phase. The circuit court determined that defendant was eligible for the death penalty. The court found defendant eligible under four separate statutory bases: (1) multiple murder (720 ILCS 5/9-1(b)(3) (West 1994)), (2) contract murder (720 ILCS 5/9-1(b)(5) (West 1994)), (3) murder during the course of another felony (720 ILCS 5/9-1(b)(6) (West 1994)), and (4) cold, calculated, and premeditated murder (720 ILCS 5/9-1(b)(11) (West 1994)).

After defendant was found eligible for the death penalty, defense counsel made a motion to withdraw from the case. Defense counsel stated that defendant wanted to be sentenced to death and had directed defense counsel not to introduce mitigating evidence. Defense counsel stated that he had ethical reservations about representing an individual who wanted to be sentenced to death. When defendant was asked if he wanted defense counsel to withdraw, defendant said that he had no objection. On August 2, 1995, the circuit court heard argument on the motion to withdraw and denied the motion. The court noted that defense counsel had a great deal of experience in death penalty litigation. The circuit court further stated that it would consider, in mitigation, the presentence report and a report prepared by a mitigation specialist. The circuit court also stated that defendant would have the right to allocution. The circuit court emphasized that it would make the ultimate decision concerning the death penalty and would carefully consider the mitigating evidence.

On October 3, 1995, the circuit court conducted a hearing to determine defendant's fitness for sentencing. During the proceedings, defendant had continued taking psychotropic medication. Dr. Seltzberg, who had evaluated defendant before defendant made his guilty plea, examined defendant again. She testified that defendant understood the nature of the proceedings and was able to assist in his defense. She also testified that the psychotropic medication would not interfere with defendant's understanding of the sentencing proceedings and the consequences of sentencing. After hearing this testimony, the circuit court found defendant fit for sentencing.

On October 5, 1995, the court considered aggravation and mitigation evidence to determine if the death penalty should be imposed. In aggravation, the State presented evidence that defendant had received an "other than honorable discharge" from the United States Navy in 1989. Defendant was discharged based on an unauthorized absence from the Navy in excess of 30 days. The State also presented evidence that defendant had stolen money from a pub in Lansing, Illinois, in 1990. Defendant pleaded guilty to theft and was sentenced to 18 months' probation. Finally, the State introduced evidence about defendant's possible involvement in an Indiana murder that occurred in 1992. The victim was an individual who had occasionally hired defendant for remodeling work. The victim died from blunt-force injuries to the head and multiple stab wounds. Defendant and another individual were observed at the crime scene near the time of the killing, had possession of the victim's truck after the killing, had used the victim's credit card after the killing to stay at a motel, and had made several false statements in connection with their use of the credit card. The State did not introduce any evidence to show that defendant was being tried for, or had been convicted of, the crime in Indiana. Pursuant to defendant's wishes, defense counsel did not cross-examine any witnesses.

Defense counsel did not introduce any mitigating evidence, again pursuant to defendant's wishes. The circuit court stated that it would consider the presentence report and a report by a mitigation specialist. The mitigation report extensively detailed defendant's background. The report showed that defendant had a history of alcohol abuse and came from an alcoholic family. Defendant had suffered from clinical depression and had made two possible suicide attempts or gestures. The report also indicated that defendant felt estranged from his father and felt remorse for his conduct. The circuit court also considered mental health records from Cermak Health Services and alcohol treatment records from Tri-City Community Mental Health Center. In closing argument, defense counsel argued that defendant had a severe drinking problem and mental health problems. In allocution, defendant said that he was sorry for the killings but that he deserved no mercy.

On October 11, 1995, after hearing the aggravating and mitigating evidence, the circuit court sentenced defendant to death. The circuit court stated that it had received "volumes of information" on defendant's background. The court noted the cold-blooded and execution-style manner of the killings. The court also stated that two statutory mitigating factors applied: defendant's lack of significant criminal history (720 ILCS 5/9-1(c)(1) (West 1994)) and defendant's extreme mental or emotional disturbance at the time of the murders (720 ILCS 5/9-1(c)(2) (West 1994)). The court found, however, that there were no mitigating factors sufficient to preclude imposition of the death penalty (720 ILCS 5/9-1(h) (West 1994)).

In this appeal, defendant raises 10 issues. Specifically, defendant argues: (1) he did not receive a full fitness hearing to determine the impact of psychotropic medication on his fitness; (2) the circuit court failed to properly admonish defendant of the steps needed to perfect an appeal from his guilty plea; (3) the circuit court violated defendant's right to self-representation; (4) the circuit court erred in failing to order a sanity evaluation for defendant; (5) the circuit court should have ordered defense counsel to investigate and present all available mitigation evidence despite defendant's wishes; (6) improper aggravation evidence was presented at sentencing; (7) the circuit court erred in failing to consider certain non-statutory mitigating factors; (8) the death penalty is excessive in this case; (9) the circuit court considered an unconstitutionally vague statutory aggravating factor at sentencing; and (10) the death penalty statute is unconstitutional. We address each issue in turn.


I. Psychotropic Medication

Defendant first argues that the circuit court erred when it found defendant fit to enter a plea following a stipulated fitness hearing. Defendant argues that the circuit court had a duty to conduct a more complete evidentiary hearing into the effects of the psychotropic medication on defendant's mental condition and failed to do so. Defendant therefore argues that this cause must be remanded for a full evidentiary fitness hearing.

A defendant is unfit to stand trial or to enter a plea if, based on a mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense. 725 ILCS 5/104-10 (West 1994); People v. Haynes, 174 Ill. 2d 204, 226 (1996). Defendant's fitness is presumed by statute. 725 ILCS 5/104-10 (West 1994). If a bona fide doubt of defendant's fitness is raised, however, the circuit court must hold a fitness hearing before proceeding further. 725 ILCS 5/104-11(a) (West 1994); Haynes, 174 Ill. 2d at 226. The circuit court's ruling on the issue of fitness will be reversed only if it is against the manifest weight of the evidence. Haynes, 174 Ill. 2d at 226; People v. Mahaffey, 166 Ill. 2d 1, 18 (1995).

At the time defendant entered his guilty plea, section 104-21(a) of the Criminal Code of 1961 (725 ILCS 5/104-21(a) (West 1994)) provided that a defendant who is receiving psychotropic medication "is entitled to a hearing on the issue of his fitness while under medication." *fn1 Under this statute, a defendant who is taking psychotropic medication is entitled to a fitness hearing. Defendant relies on past cases from this court where a defendant taking psychotropic medication did not receive a fitness hearing before trial or before entering a plea. In certain circumstances, these defendants' convictions were reversed because no fitness hearings had been conducted. See, e.g., People v. Kinkead, 168 Ill. 2d 394 (1995); People v. Gevas, 166 Ill. 2d 461 (1995); People v. Brandon, 162 Ill. 2d 450 (1994); cf., People v. Neal, 179 Ill. 2d 541 (1997); People v. Burgess, 176 Ill. 2d 289 (1997).

The cases cited by defendant are clearly distinguishable. In the instant case, defendant did receive a fitness hearing. In fact, he received two: one before entry of his plea and another before sentencing. Defendant concedes that he received fitness hearings but argues that he was entitled to receive a more searching inquiry into his fitness while under medication. He argues that the circuit court was on notice that psychotropic medication was involved but did not make a specific determination that defendant was fit with medication before entry of his plea. He argues that such a determination is required by the statute. We disagree. The statute provides that the taking of psychotropic medication is sufficient to warrant an evaluation of defendant's fitness at a hearing. The circuit court is not required to make an express finding of fitness with medication. Regardless of whether a defendant is taking psychotropic medication, the statutory requirements for fitness remain the same. The statute does not create a right to a separate fitness hearing solely on the effects of psychotropic medication. In this respect, we agree with the reasoning of the appellate court in People v. Steinmetz, 287 Ill. App. 3d 1, 4-5 (1997). A finding of fitness may, however, be against the manifest weight of the evidence where the circuit court completely disregards evidence regarding the effects of psychotropic medication.

In the instant case, the record shows that the effects of the psychotropic medication were addressed in the circuit court. In seeking a fitness hearing, defendant relied on the report of Dr. Maskel. Dr. Maskel initially stated that defendant suffered from clinical depression. She further stated that defendant understood the nature of the proceedings against him but could not assist in his defense. Dr. Maskel noted that defendant was taking psychotropic medication, Zoloft and Prolixin, and that defendant's mental condition would probably improve with therapy and medication.

Dr. Maskel conducted a follow-up examination on May 11, 1995, four days before the fitness hearing, and filed a report in connection with this examination. In the report, she stated that defendant's mental condition had improved significantly, probably as a result of the medication. She concluded that defendant both understood the nature of the legal proceedings and could assist in his defense. Dr. Seltzberg also examined defendant and reviewed defendant's ...

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