Appeal from the Circuit Court of Williamson County. No. 88-CF-162 Honorable John Speroni, Judge, presiding.
Justices: Honorable Clyde L. Kuehn, J.
Honorable Thomas M. Welch, J., and
Honorable Richard P. Goldenhersh, J.,
The opinion of the court was delivered by: Justice Kuehn
At one time, Richard Nitz knew when he was to rendevous with death, for the State of Illinois had set the appointed hour. Death was to be Nitz's punishment for killing Michael Miley and mutilating his body. However, his last meal was never served.
After losing his direct appeal, Nitz sought collateral relief from his conviction and death sentence, based upon his fitness to stand trial. Nitz had ingested a psychotropic drug called Tranxene during the trial. The drug was administered to quell anxiety. The trial was conducted without a prior fitness hearing to determine the effect of the psychotropic medication on Nitz's mental well-being. In the absence of a hearing, our high court presumed Nitz to be unfit because of the medication's use and found that the process to the verdict and death sentence was constitutionally infirm. People v. Nitz, 173 Ill. 2d 151, 670 N.E.2d 672 (1996). It reversed the conviction, vacated the sentence, and ordered a new trial.
The State prosecuted Nitz again for the same crime, but it did not charge Nitz in the same manner, and it did not seek capital punishment. It charged three counts of first-degree murder. Each count alleged that Nitz shot Miley with a gun and thereby caused Miley's death. The counts differed only in alleging different mind-sets under which Nitz performed that act. A Jackson County jury engaged in lengthy deliberations before arriving at its verdict. It found that Nitz had not intended to kill Miley and that Nitz had no knowledge that shooting Miley would in fact cause Miley's death. It acquitted Nitz on the two charges that called for those findings. The jury returned a guilty verdict on a third count, finding that Nitz was aware of the fact that shooting Miley created a strong probability of death or great bodily harm. Based upon the jury's finding of guilt and the trial judge's finding that this particular first-degree murder was accompanied by brutal and heinous behavior indicative of wanton cruelty, the trial judge sentenced Nitz to imprisonment for the rest of his life. Nitz appeals the verdict and sentence.
The particular facts surrounding the offense for which Nitz was again convicted are recounted in detail by the supreme court in People v. Nitz, 143 Ill. 2d 82, 572 N.E.2d 895 (1991). We address only those limited facts necessary to an understanding of the legal issues raised on this appeal.
Nitz challenges the validity of the verdict based upon the following arguments: (1) that he was deprived of the constitutional right to testify in his own defense when the trial judge ruled that his testimony, if given, could be impeached with prior sworn testimony given during the first trial, (2) that jurors lied during voir dire and convicted him based upon knowledge of his earlier conviction and his failure to testify and that the jury foreman lied about his impartiality during voir dire and concealed his preconceived belief in Nitz's guilt, (3) that he was improperly prevented from presenting evidence of other possible suspects who might have murdered Miley, (4) that the jury should have been instructed on the offense of second-degree murder, and (5) that he was improperly prevented from impeaching certain State witnesses with evidence of their prior convictions.
Nitz also challenges the validity of his sentence based upon the following arguments: (1) that his conduct was not brutal and heinous behavior suggestive of wanton cruelty and therefore cannot support the judge's factual finding, (2) that the trial judge should have eased the sentence based upon certain evidence offered in mitigation, and finally, (3) that the receipt of a natural-life sentence based upon a factual finding not determined by a jury under a reasonable doubt standard violated his constitutional rights to due process, notice, and a trial by jury.
For the following reasons, we affirm the conviction and modify the sentence to a 60-year prison term.
The first argument is premised upon Nitz's absolute right to testify in his own defense. He maintains that this right was taken from him when the trial judge ruled that the State could use his testimony at the first trial, provided that it proved to be inconsistent with testimony tendered here. Nitz tried to bar the testimony's use, based upon his presumptive incompetence during the first trial. He maintains that if an involuntary confession cannot be used for impeachment purposes, prior testimony from an incompetent defendant should not be used as well.
We note that the foundation for this argument, Nitz's presumptive incompetence and his prior testimony's unreliability because of that fact, has fallen prey to a supreme court that has come full circle in its understanding of our fitness statute. The same court that reversed Nitz's conviction, vacated his death sentence, and granted him a new trial because a fitness hearing was not held no longer believes that the legislature intended to require one. We now know what only three members of the supreme court knew in 1996 when Nitz was granted post-conviction relief. We cannot presume Nitz unfit simply because he was treated with Tranxene to manage anxiety disorders during the trial.
The supreme court has entirely abandoned the legal basis for Nitz's earlier reprieve. People v. Mitchell, 189 Ill. 2d 312, 328-31, 727 N.E.2d 254, 265-67 (2000). Had the supreme court read our fitness statute in the same manner a few years ago, in all likelihood Nitz would be appealing in that undiscovered forum from whose bourn no traveler returns.
Nitz counters this legal turnabout with several arguments that pertain to the question of his actual fitness, and his prior testimony's arguable unreliability, given the ingestion of mood-altering medication. We need not address them.
Nitz was not deprived of the right to give testimony at his trial. He was simply not afforded the luxury of doing so without challenge from earlier sworn testimony that might have proven to be inconsistent. We have no way of knowing what prejudice, if any, resulted from the trial court's ruling. Nitz did not testify at the trial. We suspect that the choice was thrust upon him by virtue of the State's power to use prior testimony sharply at odds with what he wanted to say. Notwithstanding, his choice to forego testifying, standing alone, cannot support the conclusion that he was prejudiced. See People v. Benson, 266 Ill. App. 3d 994, 1001-02, 641 N.E.2d 617, 623-24 (1994). Without his testimony, we have no basis to review the question of trial court error. As our supreme court has noted in an analogous context:
"[D]efense counsel may not have it both ways by altering their trial strategy to make the best of the trial court's order, depriving the reviewing court of a reviewable record, and still maintain that the order was erroneously entered." People v. Whitehead, 116 Ill. 2d 425, 443-44, 508 N.E.2d 687, 693 (1987).
Nothing in this record tells us what Nitz hoped to establish with his testimony or how the trial court's ruling erroneously impacted what he hoped to say. Without a record, we can find no error in the trial court's ruling.
Nitz's second argument raises a specter of juror dishonesty and misconduct. It touches directly upon the sanctity of the jury deliberation process. It rests upon a juror's disavowal of her vote to convict, coupled with her assessment of the mental processes by which other jurors arrived at a guilty verdict, based upon comments they made during jury deliberation.
Having lost his bid to prevent the State from using his prior testimony, Nitz's strategy to defend without testifying prompted painstaking inquiry of prospective jurors about a defendant's right not to testify. Apart from questions posed by defense counsel, questions designed to condition the jury to Nitz's forthcoming silence, the trial judge spoke to each juror about the right not to testify and determined that its exercise would not affect their outlook on the case. In essence, the trial judge engaged in the same colloquy with each prospective juror, and each one answered in identical fashion. Here is a typical example.
"Q: You understand that Mr. Nitz does not have to testify or present any evidence?
Q: That is a fundamental concept of our law. Will you hold it against him if he chooses not to testify or to present any evidence?
Not one of the 12 jurors selected to serve was spared the inquiry. Moreover, all of the jurors selected assured the court, counsel, and Nitz that the absence of his testimony would not be considered in arriving at a verdict.
Another topic of intense inquiry during voir dire was the extent to which each juror already possessed knowledge about the facts of the case. Despite a venue change to minimize juror awareness of prior events, the earlier convictions of Nitz and his wife, Rita, were generally known to the prospective jurors. Each member of the jury said that he or she would decide the case only on the facts and evidence presented at the trial and not on prior knowledge of the case. [The following text is nonpublishable under Supreme Court Rule 23 (166 Ill. 2d R. 23).]
One member of the jury, ultimately its foreman, was the brother of one of the witnesses who first discovered Miley's headless corpse. The juror assured the trial judge and Nitz that he was not in Illinois at that time and that he did not know anything about the case. Given his voir dire answers and the fact that his brother's testimony was introduced by way of stipulation, he was selected as a juror. [The preceding text is nonpublishable under Supreme Court Rule 23.]
Joan Davis was one of the jurors selected. She voted to return a guilty verdict and affirmed that vote in Nitz's presence when the jury was polled in open court. Before the hearing on posttrial motions, she provided Nitz with a sworn affidavit that impeached her verdict and assailed the deliberation process. The affidavit explained that Davis was one of four "hold out" jurors, a status she held by virtue of her belief that the State failed to prove its case against Nitz. According to Davis, she abandoned her sworn duty to Nitz because she felt pressured and believed what other jurors told her about the sentence that would be imposed. She threw her own beliefs to the wind, voted to convict someone who, in her mind, was not proven guilty, and affirmed that misconduct in open court, because she believed that Nitz would be sentenced to time served.
The affidavit also addressed misconduct on the part of other jurors. Davis set forth that jurors commented about Nitz's failure to testify and that the jurors further commented that therefore Nitz must be guilty. The affidavit also set forth that at least one juror commented that the jury had no choice but to convict, given the fact that Nitz had already been convicted. The affidavit concluded with a statement that Davis was upset that "other jurors would consider the other trials, including Nitz's wife's trial results[,] and that they would consider the fact that Mr. Nitz didn't testify."
Based upon the affidavit, the trial judge was asked to award a new trial or, in the alternative, to conduct a hearing to determine if jurors had been dishonest in answering voir dire questions. The trial judge expressed his belief that jurors had been forthright and honest in their responses to his questions, and the judge refused the request. He found that the affidavit was an attempt to impeach the verdict by raising matters that involved the nature and process of jury deliberation.
Nitz now asks us for a new trial or, in the alternative, a remand to conduct a hearing on the possibility of juror perjury.
We adhere to the longstanding rule of law that the testimony of jurors will not be received to establish their own mistake or misconduct, to prove that of their fellows while in the jury room, or to otherwise impeach their own verdict. See Phillips v. Town of Scales Mound, 195 Ill. 353, 363-64, 63 N.E. 180, 184 (1902). This certainly applies to juror Davis's revelation about her own misconduct, as well as to any misconduct engaged in by the other jurors. Juror Davis may not testify as to what transpired in the jury room as a means by which to impeach her, or the other jurors', verdict. See Sanitary District of Chicago v. Cullerton, 147 Ill. 385, 390-92, 35 N.E. 723, 724-25 (1893).
Nitz claims that this well-established rule of law, designed to protect the sanctity of jury verdicts, is not at issue. He claims to invoke an exception to the rule. He points to our acceptance of a verdict's challenge where it can be shown that a prospective juror testified falsely on voir dire and the testimony involved a matter of potential bias and prejudice. See Hockett v. Dawdy, 180 Ill. App. 3d 491, 497, 536 N.E.2d 84, 87 (1989). Based upon this principle, he contends that the verdict was reached by jurors who committed perjury when they said that a failure to testify would not be considered. He also maintains that jurors committed perjury when they said that the verdict would be decided solely upon facts and evidence presented at the trial. It follows from this position that the affidavit was not really offered to impeach the verdict by way of a showing that jurors engaged in misconduct during deliberations. Rather, the affidavit was offered to impeach the verdict by showing how jurors lied in answer to inquiries made during voir dire.
Although juror Davis believes that jurors used Nitz's earlier conviction and failure to testify as a basis to convict, we are not willing to accept her conclusion. Juror Davis may well have heard improper comments during deliberations, but other than herself, she does not know and cannot say why any particular juror voted to convict. While certain jurors may have expressed thoughts inconsistent with their charge, we would like to think that all of the jurors, save juror Davis, voted their conscience based solely upon the facts and evidence submitted. In any event, the content of the affidavit does not prove otherwise.
More importantly, the exception carved out by Hockett v. Dawdy was designed to deal with circumstances where jurors consciously conceal facts about themselves that would expose a predisposition, bias, or prejudice detrimental to fair and open-minded thinking. It was not designed to police the jury deliberation room for comments inconsistent with the instructions given and to later use those comments in order to maintain that jurors failed to deliver on voir dire commitments to follow the law. There is good reason why jurors are asked about potential silence in the face of accusation and are specifically instructed not to consider a defendant's silence. We know that a mute defense is going to bother and trouble people, regardless of legal guarantees that allow for it. We suspect that the comments juror Davis heard are not all that uncommon in the process of deliberation, despite all efforts to keep jurors from such thoughts. Hopefully, when a juror points out that the defendant failed to testify, the comment upsets another juror who promptly points out the judge's instruction not to consider that fact. In any event, we will not invite a ...