The opinion of the court was delivered by: Justice Thomas
Docket No. 89220-Agenda 6-November 2001.
The defendant, Tyrone Fuller, pled guilty in the circuit court of Cook County to three counts of first degree murder, one count of attempted murder, and one count of armed robbery, in connection with the robbery of a jewelry store and the shooting death of Marc Feldman, the owner of the store. At the conclusion of a sentencing hearing, a jury found that the defendant was eligible for the death penalty based on the statutory aggravating factor that the murder was committed in the course of an armed robbery. 720 ILCS 5/9-1(b)(6) (West 1996). Following a hearing in aggravation and mitigation, the same jury found that there were no mitigating factors sufficient to preclude imposition of the death penalty. Accordingly, the trial court sentenced the defendant to death.
The defendant's death sentence has been stayed pending direct review by the this court. See Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). In this appeal of the defendant's convictions and death sentence, the defendant raises 12 issues, including (1) that the trial court improperly admonished him as to the maximum penalty on two of the murder counts at the guilty plea hearing, (2) that his trial counsel was ineffective because he allowed the defendant to plead guilty to counts of knowing and intentional first degree murder, and (3) that the trial court failed to properly instruct the jury on the requisite mental states to prove death eligibility on a felony-murder count. For the reasons that follow, we affirm the defendant's convictions in part and vacate in part. Furthermore, we vacate the defendant's death sentence and remand the cause for a new death-eligibility hearing.
At a hearing on December 1, 1999, defense counsel informed the trial court that after extensive conversations with his client, the defendant had decided to waive his right to a jury trial and wanted to enter blind pleas of guilty to all pending charges. At that point, the trial court read the various charges of the indictment and asked the defendant if he understood each of those charges. With respect to the murder charges of the indictment, count I alleged that the defendant shot Marc Feldman in the head with a handgun without lawful justification and with the intent to kill him, thereby causing his death. Count II alleged that the defendant shot and killed Feldman knowing that his act created a strong probability of death, and count III alleged that the defendant shot and killed Feldman while committing a forcible felony, armed robbery. The defendant responded that he understood each of the charges. In addition, the trial court admonished the defendant concerning the possible penalties, including the possibility of a death sentence for the felony murder charge described in count III. The court then explained the various phases of sentencing and that the defendant would be entitled to have a jury determine his eligibility for the death penalty.
As part of a factual basis for the pleas, the parties stipulated to the proposed testimony of various State witnesses. The State recited that Aaron Smith would testify that he was an employee of Marc Feldman, at a jewelry store located in Oak Park, Illinois. On December 18, 1997, he and Feldman were working at the store around 10 a.m., when the defendant entered the showroom with co-defendant, Kimberly Britt. Feldman proceeded to show various items of jewelry to the defendant and Britt, while Smith remained in a back room of the store. At some point, Feldman came to the back room to get more jewelry.
As Feldman was returning to the showroom, Smith observed the defendant fire a gunshot, striking Feldman in the center of the forehead and causing him to fall to the ground. At that moment, the defendant jumped over the counter and came into the back room where Smith was located. Smith fell to the ground and the defendant placed his gun to Smith's head. Smith heard two clicks, but the gun did not fire. The defendant then ordered Smith to get underneath a desk. Smith observed the defendant and Britt take various items of jewelry and United States currency. The defendant then came toward Smith a second time, and he attempted twice to shoot Smith in the leg, but the gun again would not fire. The defendant and Britt then fled the scene. The next day, Smith identified the defendant and Britt from a live lineup as the perpetrators of the crimes committed the previous day.
The stipulated testimony of other State witnesses would show that following the crimes, an Oak Park police officer responded to a radio transmission of an armed robbery in progress. The officer observed the getaway car and pursued it at a high rate of speed until it crashed into a railroad pylon. The defendant and Britt were passengers in the vehicle, which had been driven by Eric Hughes. The defendant exited the vehicle after it crashed, holding a handgun. The officer drew his gun and ordered the defendant to stop. At that point, the defendant dropped his gun and fled. Police found the defendant a short time later hiding under a porch and he was arrested. Defendant had jewelry from the store in his possession and was wearing a torn surgical glove on his right hand at the time of the arrest. The torn glove worn by the defendant matched exactly the ripped portions recovered from the cash register at the crime scene of the jewelry store. A ballistics expert determined that the gun dropped by the defendant and recovered by police fired the bullet that killed Feldman.
Additionally, the defendant's 36-page court-reported confession was stipulated to and entered into evidence. In that statement, the defendant admitted that he went to the jewelry store on the morning in question to commit a robbery. The defendant further admitted that when Feldman came out of the backroom, the defendant reached into his pocket for his gun and pulled it out. The defendant raised the gun and it went off. After the bullet hit Feldman, causing him to fall to the floor, the defendant jumped over the counter and went into the back room. He let Britt into the back room through another door and told Smith to sit by a desk. The defendant and Britt then proceeded to place jewelry and cash inside a bag. The defendant acknowledged that he put on latex medical gloves that he brought with him to the store because he did not want to leave any fingerprints. The defendant and Britt took the "loot" from the scene and fled in the getaway car driven by Hughes.
After hearing a factual basis for the defendant's pleas, the trial court accepted the pleas and found the defendant guilty of all charges. Following the empaneling of the jury, the case proceeded to the eligibility phase of the bifurcated capital sentencing hearing. The State sought to have the defendant declared death eligible based on the felony-murder provision contained in section 9-1(b)(6) of the Criminal Code of 1961 (the Criminal Code), which provides:
"(b) Aggravating Factors. A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of first degree murder may be sentenced to death if:
(6) the murdered individual was killed in the course of another felony if:
(a) the murdered individual:
(i) was actually killed by the defendant, ***
(b) *** the defendant acted with the intent to kill the murdered individual or with the knowledge that his acts created a strong probability of death or great bodily harm to the murdered individual or another; and
(c) the other felony was one of the following: armed robbery ***." (Emphasis added.) 720 ILCS 5/9-1(b)(6) (West 1996).
During his opening statement at the eligibility phase, defense counsel told the jurors that their job was "simple" and there was "nothing to dispute" as to what they had to do at the first phase because the defendant had admitted the crimes and pled guilty to the three separate ways that he was charged for this single murder. Defense counsel concluded by asking the jury to keep an open mind at the second phase of the sentencing proceeding.
At the eligibility hearing, several witnesses gave testimony that was substantially similar to the factual basis recitation given by the State at the guilty plea proceeding. Melissa Peterson, the victim's fiance, testified that Feldman left for work around 8 a.m. the day of the murder. Feldman told Peterson that he loved her, and that was the last time they spoke to one another. She noted that she was also scheduled to work that morning but did not do so because of a prior family engagement. Later that day, she learned that the store had been robbed and that Feldman had been murdered.
Aaron Smith, a 76-year-old employee of Feldman, testified that when he arrived at the jewelry store on the morning of the robbery and shooting, Feldman was already at the store waiting on the defendant and a female companion of the defendant. Smith made coffee and waited on a blind lady who had entered the store. After the blind lady left, Feldman came to the back room to retrieve a pair of earrings to show the defendant. Smith told Feldman that he thought that something was wrong because the couple had been in the store for such a long time. Feldman reassured Smith that he knew the defendant and that he was a regular customer.
Smith stated that when Feldman stepped around the corner to go back into the showroom, the defendant shot Feldman in the head. Feldman fell to the ground in a location that made it impossible for Smith to shut the door to the back room. After the defendant shot Feldman, he jumped over the counter and came into the back of the store. Smith ran toward the back of the store, but tripped and fell. When Smith fell, the defendant came over the top of him and placed a gun to Smith's head. As Smith begged for his life, he heard two clicks, but the defendant's gun would not fire. After the second click, the defendant called Smith a "mother f--" and ordered him to get under a desk. After the defendant and his female companion loaded a bag full of jewelry and emptied out the store safe, the defendant told Smith to lie down and that he was going to shoot him in the leg. Because Smith was lying down, he could not see how the defendant was pointing the gun, but Smith did hear it click again.
On cross-examination, Smith testified that store records revealed that the defendant was a customer of the store. Smith acknowledged that he did not actually see the defendant point the gun or pull the trigger, but he did hear the shot that killed Feldman.
Oak Park police Detective Arthur Borchers testified that the murder weapon was a .25-caliber semiautomatic pistol. He noted that in order to fire the weapon, a person would have to put a magazine in and operate the slide by pulling it back to load it. He further noted that if the gun were loaded and it was not chambering a bullet while the trigger was being pulled and clicked, there would have to be some malfunction with the magazine.
On cross-examination, Borchers stated that he found a shotgun about 10 feet from the safe at the jewelry store. He further stated that a semiautomatic weapon is more sensitive in some of its functions and that it is generally easier to fire a round when pulling the trigger than it would be with a revolver.
Assistant State's Attorney Colin Simpson testified on behalf of the State that after the defendant was taken into custody on the day of the offenses, he talked with the defendant about the events that had transpired that day. Simpson's testimony substantially recounted much of the matter covered by the defendant's written statement. According to Simpson, the defendant appeared calm at the time of his statement, and his speech was clear. Simpson noted that the defendant initially blamed Smith, the 76-year-old store employee, for planning the armed robbery. However, after Simpson informed the defendant later in the evening that he had been identified in a live lineup, the defendant admitted that he, Britt and Hughes had planned the crime for about two weeks. The defendant further told Simpson how he shot Feldman:
"A: [Witness] *** So I said, `What happened next?' [The defendant] said, `The owner said he was going to go into the back room and try and figure out how much it was going to cost.' I said, `Did the owner go into the back room?' He said, `Yes.' I said, `Did the owner come out of the back room?' He said, `Yes.' *** [I said,] `What happened at that time?' He said, `I put my hands in the coat and I brought out a gun and the gun went off.'
MR. BAKER [Assistant State's Attorney]: Just indicating for the record he raised his hand and arm straight from his shoulder in a forward fashion.
THE WITNESS: I said, `When the gun went off what happened?' [The defendant] answered, `The man was hit and he dropped straight down.'
On cross-examination, the following colloquy between Simpson and defense counsel took place:
"Q: All right. [The defendant] also told you that he reached into his pocket at the gun? Is that right?
A: He reached into his pocket and pulled out the gun.
Q: Those are his exact words, he reached into his pocket at the gun, and then pulled it out, and he said these words to you in that conversation before you, `I pulled it out and I went to raise it and it went off.' Were those his exact words?
A: Those are the words he said, correct.
Q: Mr. Simpson, he never told you that he intentionally pulled the trigger of that gun, did he?
Q: And you never asked him if he pulled the trigger to that gun, did you?
At the conclusion of the first phase of the sentencing hearing, the jury found the defendant eligible for the death penalty. The cause then proceeded to the hearing in aggravation and mitigation. During his opening statement at this second stage of the sentencing proceedings, defense counsel did not argue that the shooting of Feldman was an accident, but he instead told the jury that the defendant had taken full responsibility for his crimes by pleading guilty, that the defendant's crimes stemmed from his drug addiction, and that the defendant is now sober and can be a lesson to his children.
The State presented evidence in aggravation that the defendant was convicted of unlawful possession of a weapon in 1992, and that in December of that year, the defendant and Britt robbed Sandra Cooper and her eight-year-old daughter at knife point when the victims attempted to leave a shopping mall. The defendant was convicted of armed robbery for that crime and was on parole at the time he committed the instant offenses. The State also presented victim impact evidence. Marc Feldman's fiance, mother and sister each read victim impact statements into the record.
The defendant's case in mitigation consisted of the testimony of six witnesses, including the defendant. The defendant's brother, a Cook County correctional department sheriff, testified that the defendant's behavior began to deteriorate when he became addicted to heroin around the age of 17 or 18. He noted that after being released from prison after serving his sentence for the first armed robbery, the defendant became employed at a legal consulting firm. The defendant was employed there for about two years until a criminal background check resulted in his dismissal. At that point, the defendant became reacquainted with Britt and began to slide into heroin addiction once again.
The defendant's mother testified that she had successfully raised her other three children and that the defendant was her only child to have problems with the law. She noted that the defendant had been a good child and had never been cruel or given her any problems. She too noted that the defendant's problems were tied to his association with Britt and his use of drugs. She stated that the defendant could be a useful citizen even in prison if he was not sentenced to death. Other family members also testified on behalf of the defendant that if he was not on drugs he could be a good father to his five children and encourage other young men not to make the same mistakes that he had.
The defendant was the last witness to testify in mitigation. He acknowledged that taking Feldman's life was wrong and asked the victim's family for forgiveness. He stated that his addiction to heroin had affected him mentally and physically, but that he had been drug free the past two years while in jail. When he was released from prison the first time, he obtained a job at a law firm, but lost that job because of a criminal background check. He then began abusing heroin once again and was using up to one gram per day.
The defendant further testified that before committing the crimes in this case he spent the night snorting heroin and drinking cognac. He stated that about two weeks before the day in question, he had talked to Hughes and Britt about robbing the jewelry store. However, on the morning of the crime he did not discuss robbing the store. When he was asked what led to his taking the gun out of his pocket, the defendant claimed that he drew the gun because he was intoxicated and was angry because Feldman could not find his jewelry that he had on pawn. The defendant claimed that Feldman made a move and the gun went off. The defendant then testified as follows:
"Q: How did the gun go off? You took it from your pocket and it went off?
A: Right. When I brung it out of my pocket, my finger was on the trigger.
Q: So you were strung out, stoned and drunk?
Q: Walking around with a live gun?
Q: You confessed to the crime the next day, is that right?
Q: And then you pled guilty in this courtroom on a previous ...