The opinion of the court was delivered by: Justice Garman
Docket No. 89704-Agenda 7-November 2001.
Defendant was convicted after a jury trial in Henry County of multiple counts of first degree murder (720 ILCS 5/9-1(a) (West 1994)), and of other crimes in connection with the killing of Laurie Gwinn. After the jury found defendant eligible for the death penalty, he waived his right to a jury for the second phase of the sentencing hearing. The circuit court imposed the death penalty for the murder. In addition, the circuit court imposed prison sentences for some of the convictions and vacated others as lesser-included offenses. Defendant filed a motion for a new trial and sentencing hearing, which the circuit court denied.
On direct appeal, this court affirmed the convictions and the prison terms, but vacated the sentence of death and remanded for a new sentencing hearing only, there being no question that defendant was eligible for the death penalty. People v. Davis, 185 Ill. 2d 317 (1998). The basis for vacating the death sentence was the circuit court's apparent refusal to consider certain evidence in mitigation. We held that although the sentencer may give little weight to evidence properly offered in mitigation, it may not entirely exclude such evidence from consideration. Davis, 185 Ill. 2d at 346. Specifically, defendant offered evidence of his good behavior while incarcerated pending and during trial. The circuit court commented that it did not care "how great a prisoner he is, the real test is ... what's going to happen upon release." We agreed with defendant that this statement expressed the judge's categorical belief that such evidence is never relevant to the capital sentencing decision. Davis, 185 Ill. 2d at 347. Consequently, defendant was deprived "of the individualized consideration required by the eighth and fourteenth amendments," and resentencing was required. Davis, 185 Ill. 2d at 347.
On remand, defendant's request that the original sentencing judge recuse himself was granted and a new judge was assigned. Defendant again waived a jury and the circuit court again imposed the death penalty. Because defendant was sentenced to death, his appeal lies directly to this court. 134 Ill. 2d R. 651(a). As the facts of his crimes are set out in detail in our earlier opinion (Davis, 185 Ill. 2d 317); we will summarize here only the testimony at the second sentencing hearing.
THE SECOND SENTENCING HEARING
The State presented the testimony of four women, all of them admitted former prostitutes. Each woman told of being assaulted between January 1993 and the summer of 1994 by a man who picked her up in the Madison Square area in the north end of Peoria. None of the women reported the attack at the time. Between November 1994 and January 1995, however, each woman gave a statement to the police describing the attack and identifying defendant as her attacker. Laurie Gwinn was killed in August 1995.
Kari B. testified that on a summer afternoon in 1993, she agreed to perform a sex act for money and entered a man's car. He drove into the country and stopped near what she described as "an abandoned farmhouse." She noticed that the door handle and the window crank were torn out from the passenger side door. The man turned to her and said "Bitch, I'm gonna kill you," and he put his hands on her throat. She struggled and was able to climb through the open car window. She fell to the ground, then got up and ran to the road, with him chasing her. A passing driver gave her a ride back into town. Kari admitted that she had been using cocaine at the time of the attack and had been "up for a few days." She also acknowledged a criminal record that included prostitution, possession of a controlled substance, and robbery. At the time she testified, she was on parole. She first told the story of her attack to the police in January 1995, when she was being interviewed after one of her arrests. When asked why she did not report the attack when it occurred, she said she "was on cocaine bad" and "just didn't want to get involved with the police." In addition, she "didn't really think that they would listen" to her because of her "background." Kari identified the defendant from a photo array in January 1995. She also identified him in the courtroom, stating that she had "no doubt whatsoever" that he was the man who attacked her and that she could "never forget his face."
On cross-examination, Kari admitted that in 1993 she had been addicted to crack cocaine. She stated that when she first reported the attack to police, she told Peoria police officer Terry Pyatt that the car's inside door handle was missing. However, she also admitted telling Pyatt that she opened the car door and that both she and her attacker fell out of the car. When asked if her memory had improved in the five years since the incident, she said, "I was on a lot of narcotics back [then]." Kari also acknowledged that she told Pyatt she had been arrested later that same night. However, when defense counsel produced a list of her five arrests in the summer and fall of 1993, she could not pinpoint the date of the attack.
Denise T. testified that she had been employed as a roofer for about a year and a half, but that she had previously worked as a prostitute. In addition to arrests for prostitution, she had also been convicted of obstruction of justice and three counts of retail theft. About 10 p.m. one day in late April 1994, she agreed to pose for nude photographs in exchange for money and entered a man's car. She identified the car as defendant's, based on a photograph of his car that was admitted into evidence. He drove to a remote wooded area. She felt "dazed" and explained that she thought the man struck her in the back of the head. When she came to, she was in the back seat of the car with her hands handcuffed behind her. The man was strangling her with an orange extension cord, which he would loosen until she regained consciousness and then tighten again. This went on for several hours, until morning, with defendant repeatedly masturbating and ejaculating onto her chest. The pressure from the cord being pulled tight around her neck caused one of her eyes to "pop out" of its socket. She has a permanent injury as a result. After she told the attacker that her husband had seen her get into his car, he took her to a Peoria hotel, took her up in an elevator, pushed her out, and fled. Denise did not immediately seek medical attention for her injuries, because she was afraid of going to jail. She explained that there were "a couple" of outstanding warrants for her arrest and she did not want the police to be contacted. When her condition did not improve after a few days, she went to the emergency room for treatment. She eventually spoke to the police in November 1994 and identified defendant from a photo array. She admitted to using drugs in April 1994, but testified that there was "no doubt" in her mind that defendant was the man who attacked her.
On cross-examination, Denise could not explain why she initially told Pyatt that the attack occurred in January. She acknowledged that she arrived at the April date only after her hospital records showed a May 1, 1994, emergency room visit for treatment of her eye injury. Defense counsel also questioned her recollection of the time of day at which the attack occurred. Denise insisted it had happened at night and that she had been picked up "at the Mexican store on Perry." She denied telling Pyatt that she had been picked up at 12:30 in the afternoon or telling Officer Rod Huber that she had been picked up outside a bar called Mulvaney's. Denise said she was not sure what defendant hit her with and was not sure if she had told the police it was something metal. She stated that she told Pyatt about defendant's masturbating on her, but she could not recall if she told him about car's missing door handle.
The State also called a nurse from Methodist Hospital in Peoria who verified Denise's eye injury and explained that it could have been caused by excessive pressure on the blood vessels of the neck.
Michelle U. testified that a man picked her up in a blue car at about 11 a.m. one day in the summer of 1994. She was a cocaine user at the time, but had not used any drugs that morning. He drove her to a secluded area at the end of a dead-end street. The door handle and window crank were missing from the passenger door. She performed the sex act they had agreed upon, but he demanded more. She insisted that he pay her more money. He then grabbed her throat, pushed her down on the seat, and completed the act. He got out of the car, went around to the passenger side, opened her door, and threw her out. He called her "bitch" and "whore." Her pimp, who had followed them, arrived and took her back to town. She did not report the attack because she was "scared" and "embarrassed." She wanted to avoid contact with the police and did not think she would be believed. Michelle's record includes "a drug case" in addition to arrests for prostitution. She told her story to the police in December 1994 and identified defendant from a photo array. In court, she expressed certainty that "[h]e's the one."
On cross-examination, Michelle acknowledged that she previously had been addicted to crack cocaine and had made her initial identification of defendant while undergoing rehabilitation at an inpatient treatment facility.
Maria N. was a prostitute before she began working as a food service worker in a nursing home. Her record includes charges of prostitution, driving under the influence, possession of a controlled substance, and obstruction of justice. She got into a car with a man at 2 a.m. one day in January 1993 and he drove down a back road to a wooded area behind a furniture warehouse. He told her to remove her blouse while he got into the back seat to undress. Then he reached from behind her, put a belt around her neck, and started choking her. She passed out. When she came to, she was on the floor of the back seat and it was daylight. She got her clothing from the front seat, left the car, and walked to the road, where she found a ride. She did not go to the police because she knew that what she was doing "was wrong." She gave a statement to Pyatt in January 1995 and identified the defendant from a photo array. Maria admitted that she told Pyatt she woke up naked on the ground rather than in the car, but insisted that her testimony was accurate.
On cross-examination, Maria described the car as a "brownish colored station wagon with wood on the sides." She again acknowledged telling Pyatt that she regained consciousness on the ground, not in the car.
The State called Officer Pyatt to testify regarding his investigation of these attacks. He stated that he was present in February 1995 when defendant's "older blue Dodge" was searched. Among the items recovered from the car were an orange extension cord and a set of handcuffs. In addition, the inside door handle and the mechanism to roll the window up and down were missing from the passenger-side door.
Without objection by the defense, he also testified regarding the statements made to him by the four women. His testimony generally confirmed that they testified consistently with their earlier statements as recorded in his notes. However, Maria N. did tell him that she had been "dumped nude with her clothing."
On cross-examination, Pyatt acknowledged that during his first interview with Denise, she indicated that the attack had occurred in late January 1994. When police investigation of hospital records revealed her emergency room visit on May 1, 1994, the date was revised to late April 1994. There was no mention in his written report and he did not recall Denise mentioning that the door or window handles were missing from the car. His report says that Denise claimed to have been picked up at 12:30 in the afternoon, not at night. His report did not contain any mention of the attacker's masturbating on her, but he stated that he did recall Denise talking about this. Pyatt acknowledged that defendant was charged with aggravated battery based on this incident, but that the matter was dismissed with leave to refile. Pyatt also stated that Kari described a "big green car" and that neither the missing door handles nor the threat "Bitch, I'm gonna kill you" were mentioned in his report.
The State agreed to defense counsel's request to stipulate that Huber, if called to testify, would say that Denise told him the attack occurred after she was picked up outside Mulvaney's bar at around 10 p.m.
In addition to the testimony summarized above, the State also presented the testimony of the victim's father, who read a short statement; two Henry County deputies, who testified regarding defendant's conduct while confined in the county jail awaiting resentencing; several correctional officers, who testified to his conduct while in state custody; and the records custodian from the Department of Corrections, who testified regarding defendant's disciplinary record. Because the circuit court gave little, if any, weight to this information, we need not detail it here.
Evidence in mitigation included the testimony of defendant's uncle, the transcript of defendant's late mother's testimony at the first sentencing hearing, and a written statement prepared by Dr. George L. Savarese, a mitigation specialist. In addition, defendant's driving abstract, which reveals one conviction for driving under the influence and citations for speeding and driving without a valid license, was admitted as evidence of defendant's minimal prior criminal history.
Because defendant argues that the circuit court failed to properly consider a statutory mitigating factor, specifically the lack of a significant history of criminal activity, we find it necessary to quote at length from the circuit court's remarks upon sentencing. The court first acknowledged its "duty to make a diligent inquiry to find mitigating factors that are sufficient, individually or collectively, to preclude the death penalty, if they indeed exist." The court noted the aggravating factors that the State had proven at the eligibility stage, in accordance with section 9-1(b) of the Criminal Code of 1961: that defendant "actually and personally struck and strangled Laurie Gwinn, intentionally committing murder while in the course of committing three forcible felonies: robbery, aggravated criminal sexual assault, and aggravated kidnapping." 720 ILCS 5/9-1(b) (West 1994). In addition, the court noted:
"[T]he State has supplemented the record during the course of this hearing by presenting the testimony of four women who describe similar savage attacks *** by Arlie Davis, similar to each other and similar to the factual basis of this case.
In this manner the State attempts to demonstrate that the lack of a history of criminal convictions, a clean record except for a driving under the influence charge and ... traffic charges, ... belies Arlie Ray Davis' true character, a character the State contends is sinister, violent, and perverse.
Now I find that I must comment on the testimony of [the four women]. Each is a cocaine addict, plunged deep into a life of prostitution, theft, and prevarication. Each has accumulated a deplorable criminal record. Each took the witness stand and looking directly at the defendant presented testimony in an emotional, blunt, and convincing manner about incidents in their lives that are likely to be indelibly fixed for a lifetime.
Individually their credibility is certainly questionable, suspect, and enigmatic. But, having assessed their emotion, their grim determination, their manner while testifying, and considering how their experiences coincide in many respects with the facts and circumstances surrounding the killing of Laurie Gwinn, the Court finds these women believable and their testimony relevant.
Additional significance is attached to the curious manner in which they are corroborated by evidence in the State's case-in- chief, namely handcuffs in the glove compartment, an orange extension cord in the back seat, manipulation of his victims to lonely, secluded places, and a ...