The opinion of the court was delivered by: Justice McBRIDE
Appeal from the Circuit Court of Cook County Honorable Edwin A. Gausselin, Judge Presiding
Defendant, Willie C. Pugh, Jr., pled guilty to murder, armed robbery, forcible detention and unlawful use of a weapon on January 11, 1988. He was thereafter sentenced to death on the murder conviction, and concurrent sentences of 30 years for armed robbery and 7 years for forcible detention. On appeal, defendant's convictions were affirmed, but his death sentence was vacated and the matter was remanded with directions to conduct a new death-penalty-eligibility hearing and a new sentencing hearing because defendant's trial counsel misunderstood the law with respect to the first phase of the death penalty hearing. People v. Pugh, 157 Ill. 2d 1, 26, 623 N.E.2d 255 (1993).
On remand, the trial court again found defendant death eligible but sentenced him to an extended term of 70 years on the murder conviction to be served consecutively with his previously imposed concurrent sentences of 30 and 7 years for armed robbery and forcible detention, respectively. He appeals, contending (1) the trial court on remand did not follow the mandate of the supreme court where it did not resentence him on the armed robbery and forcible detention convictions; (2) the trial court erred in finding him death eligible; (3) the 100-year aggregate total of the sentences was an abuse of discretion; (4) the trial court improperly imposed extended-term and consecutive sentences on the murder conviction; and (5) he was entitled to good-time credit against each sentence imposed. Defendant has also filed a petition for rehearing raising various issues and subsequent motions to file supplemental authority in which he questions the constitutionality of his sentence under the United States Supreme Court's recent opinion in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
The facts at the death-eligibility hearing on remand showed that on December 16, 1986, South Chicago Heights police officer Michael Haskins received a call at 9:30 p.m. reporting that an alarm had been activated at the Clark gas station located at 26th Street and Chicago Road in South Chicago Heights. When Haskins arrived there, he saw Officer Wolfe standing at the end of the counter inside the station. When Wolfe arrived earlier, he had opened the door to the gas station and asked if everything was all right. The victim, who was a teenage gas station attendant named Bryan Douglas, stated, "No, I'm being robbed." Defendant then pointed a gun at Wolfe and said "Don't push me. I want out of here." As Haskins approached the door, three persons ran out of the gas station, one of whom was later identified as a co-defendant. Defendant held a shotgun to the victim's head as Haskins told defendant to let the victim go. Officer Haskins continued to talk to defendant in an attempt to calm him and convince him to release the victim. The officer told defendant, "You don't need this. You are making it worse." Defendant told Haskins to move away from the door and then lowered the shotgun to Haskins' stomach. Haskins moved from the door, and defendant, with the victim still on his left side, backed out of the gas station door.
Defendant then backed away with the victim while Officers Wolfe and Haskins remained inside the station. After Haskins radioed for help, Haskins left the station and took several steps toward defendant and the victim. Haskins had his gun in his holster when he asked defendant to release the victim. Defendant again pointed the shotgun at Haskins and ordered him to go back into the station. There, Haskins spoke to Wolfe, drew his gun, kept it at his side, and walked back outside. Defendant and the victim were still walking backwards and were about 50 feet away and in the well-lighted gas station lot. Defendant still had the gun to the victim's head. Haskins walked slowly toward defendant and the victim, trying to convince defendant to release the victim and telling defendant he would not chase defendant if he did.
Defendant and the victim continued to back away with defendant holding the shotgun to the victim's head. They walked off the station lot and onto the sidewalk that paralleled 26th Street. As they walked, a parked car partially obstructed Haskins' view of the two. However, he could see the men from the chest up and saw that defendant was still holding the gun to the victim's head. Haskins continued to ask defendant to release the victim. Neither defendant nor the victim spoke as defendant stepped away and lowered the shotgun to the victim's side with his right hand by the trigger and his left hand underneath the stock of the gun. At this time the victim had his hands raised. Haskins then heard a shot, saw the victim fall and defendant turn and run away. Officer Wolfe stated that by this time he joined Officer Haskins and found the victim's body. Defendant was apprehended by other officers and directed police to a yard where a shotgun was recovered.
It was stipulated that firearms examiner Karen Vanderwerff would testify that the murder weapon was a 12-gauge sawed-off shotgun, which could only be fired in a single-action mode, meaning that the hammer must be cocked before the trigger can be pulled to fire the gun. She performed a trigger-pull test which showed that 8 to 8 ½ pounds of force were needed to fire the weapon. In her opinion this force was a medium to heavy amount.
It was further stipulated that a pathologist would testify that the victim died from a gunshot to the chest, fired from a distance of three to six feet.
The parties also stipulated to the testimony of Assistant State's Attorney John Murphy, who took a written and signed statement from defendant. Defendant told Murphy that he went to the gas station with Ingram Rush. Rush entered first and defendant followed. It was Rush's job to distract the clerk. Defendant went through the store, picked up soda and snacks, went to the cash register, pulled a gun and told the attendant to give him the money. The attendant, however, pushed the alarm button. When the police arrived, defendant told them to stay right there. After defendant left the store with the attendant, defendant told the police to get back inside the station. As he walked with the attendant, defendant had his gun pointed toward the store. There were two other men with Rush; one was Arnold Lewis. Defendant said that Arnold was the person who shot the victim and that, between the four of them, they were armed with two double-barrel and two single-barrel shotguns.
Defendant then told Murphy that he wanted to change his statement. Defendant said that he was lying when he said that there were two other men with Rush and him when they robbed the gas station. Defendant said that only he and Rush were involved and it was he who shot the victim. He claimed that the gun "went off" while it was in his hand.
For the defense, former Cook County sheriff's police officer Larson testified that he went to the gas station after the shooting and spoke to Sergeant Wolfe. Wolfe was upset and told Larson that the gas station had been robbed and that he and another officer had been held at gunpoint by the suspect. Wolfe also told him that the suspect took the attendant out of the gas station and went north toward 26th Street. Wolfe then heard a shot, but the suspect and the victim were out of his view.
South Chicago Heights police officer Lawrence Dujsik spoke with defendant before defendant gave his written statement. Defendant told Dujsik that while Ingram Rush spoke with the attendant in the gas station, defendant pulled out a gun and told the attendant to trust him and he would not get hurt. Defendant then saw the attendant push the alarm button. After the officers arrived, defendant took the attendant and walked to the end of the building. Defendant heard sirens, and when he and the attendant got around the corner, he let the attendant go and told him to leave. Then a shot was fired, and defendant ran.
Finally, the defense made an offer of proof at the hearing that Officer Larson would testify that when he arrived at the scene, he spoke with Officer Wolfe, who told him that defendant used the victim as a shield, they left the view of the two police officers and Wolfe and Haskins then heard a loud noise.
Following closing arguments, the trial court found that while it had reasonable doubt regarding defendant's intent to kill due to inconsistencies in the testimony of Officers Haskins and Wolfe and their reports, it found defendant had knowledge that his acts created a strong probability of death or great bodily harm to the victim. The court therefore found defendant eligible for the death penalty.
Following evidence in aggravation and mitigation, the court found that there were circumstances sufficient to preclude a death sentence, but held that the offenses were accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. It sentenced defendant to an extended term of 70 years for the murder, directing that the sentence be served consecutively to the previous concurrent sentences of 30 years for armed robbery and 7 years for forcible detention.
Defendant's first argument on appeal is that this court must remand for resentencing because the trial court failed to follow the mandate of the supreme court when it only resentenced him on the murder conviction, and not on the armed robbery and forcible detention convictions. Defendant cites three reasons for finding that the Illinois Supreme Court in People v. Pugh, 157 Ill. 2d 1, 623 N.E.2d 255 (1993), ordered a new sentencing hearing on all charges. Defendant claims (1) the language of the opinion and the mandate when read consistently require a new sentencing hearing on all charges; (2) because the original trial error occurred at the death-eligibility stage and tainted everything that followed, the proceedings must start with a new death-eligibility hearing; and (3) the supreme court found it unnecessary to consider other issues of sentencing error raised, which showed its intent that a new sentencing hearing on all of the charges be held.
In Pugh, the Illinois Supreme Court found defendant's counsel ineffective at the first phase of the death penalty sentencing hearing when counsel stipulated to intent and therefore to eligibility for the death penalty. The court stated, "[t]he ineffectiveness of defense counsel requires that defendant's death sentence be vacated and the cause remanded for a new death qualifying and sentencing hearing." Pugh, 157 Ill. 2d at 23. The Pugh court remanded this matter to the trial court with the following directions:
"For the reasons stated, defendant's convictions are affirmed, but his sentence of death is vacated. The cause is remanded to the circuit court of Cook County for a new hearing to determine defendant's eligibility for the death penalty, as well as a new sentencing hearing. We direct that the ...