The opinion of the court was delivered by: Justice Garman
Docket No. 88784-Agenda 3-January 2002.
Late on a February night in 1979, three teenaged boys left an all-night diner in Chicago. On their way out of the restaurant, one of them approached a group of four others in an attempt to purchase marijuana. Not knowing that the four were members of the Latin Kings, he falsely claimed membership in a rival gang, the Latin Eagles. Before the night was over, the three were lured into an alley and murdered.
Three of the four killers, defendant, Luis Ruiz, and Placido LaBoy, were apprehended within days, but LaBoy was released after a preliminary hearing for lack of probable cause. Defendant and Ruiz were both tried, convicted, and sentenced to death. The fourth, Nelson Aviles, fled to California, where he was eventually arrested in 1988. He agreed to plead guilty and to testify against LaBoy, in return for a sentence of 40 years' imprisonment. The State unsuccessfully sought the death penalty for LaBoy, who received three consecutive natural life sentences.
This is the fifth occasion we have had to consider whether defendant was properly sentenced to death for his involvement in the brutal slayings of Michael Salcido, Arthur Salcido, and Frank Mussa. On direct appeal, this court affirmed his convictions of murder, armed violence, and unlawful restraint and the imposition of the death sentence. People v. Caballero, 102 Ill. 2d 23 (1984) (Caballero I). Following the circuit court's dismissal of defendant's first post-conviction petition, this court affirmed in part, reversed in part, and remanded for an evidentiary hearing on defendant's claim that trial counsel was ineffective for failing to properly prepare and present evidence in mitigation. People v. Caballero, 126 Ill. 2d 248 (1989) (Caballero II). On remand, the circuit court held the required hearing and again dismissed defendant's claim. We affirmed. People v. Caballero, 152 Ill. 2d 347 (1992) (Caballero III). Defendant's second post-conviction petition claimed that his death sentence is unconstitutionally disproportionate to the sentences imposed on Aviles and LaBoy. The circuit court dismissed the petition without an evidentiary hearing. We rejected his claim as to Aviles, on the basis that Aviles' guilty plea justifies the substantial disparity in their sentences. As to LaBoy, however, we reversed in part and remanded to the circuit court for a hearing. People v. Caballero, 179 Ill. 2d 205 (1997) (Caballero IV). The circuit court held the required hearing and rejected defendant's claim.
Defendant raises two claims in the present appeal: (1) his constitutional right to due process was violated because he did not receive a full and fair hearing before the circuit court on remand, and (2) his death sentence is unconstitutionally disproportionate to LaBoy's life sentences. In addition, we granted leave to the United Mexican States to submit a brief amicus curiae. 155 Ill. 2d R. 345. We affirm.
A. Caballero Trial and Sentencing
At defendant's trial, the State was permitted to introduce evidence of a statement made by defendant on the night of his arrest. Defendant denied making the statement, claiming that he was beaten by two police officers and threatened with more beatings if he did not sign a written statement that they placed in front of him. The State's witnesses testified that when defendant was told by the investigating officer that Ruiz had already made a statement implicating him, he gave his own version of the killings. He was advised of his rights and a court reporter took his statement, which he voluntarily signed.
Defendant's written statement said that he, Ruiz, LaBoy, and Aviles were entering a restaurant called King Castle as three other young men were leaving. One of them, Michael, approached Ruiz and asked if he knew where they could buy some marijuana. After Ruiz said no, Michael asked if he knew Juan Cortez. The four were members of the Latin Kings and they knew that Cortez was a Latin Eagle, but they played along with Michael, letting him think that they were members of the same gang as Cortez. Michael bragged about his connections to the Latin Eagles and claimed to have driven the car during several "hits."
The three got into the front seat of their car, the four others got in the back seat, and they drove into a nearby alley on the pretense of making a drug deal. Arthur and Frank were told to stay in the car while the four walked down the alley with Michael. Once they were out of sight, they began to beat and kick Michael. When he was on the ground, they revealed that they were Latin Kings.
Defendant and Aviles stayed with Michael while Ruiz and LaBoy returned to the car. They came back a few minutes later, with the car. LaBoy was driving, with Arthur and Frank still in the front seat. Ruiz was in the back seat. Defendant, Aviles, and Michael got in the back seat and LaBoy drove to another alley. During this brief drive, the four conversed in Spanish and decided that they had to kill the three young men so that they could not identify them.
After they stopped, Ruiz handed defendant a gun. Defendant and LaBoy walked Michael and Frank down the alley and ordered them to lie face down in a snowbank. Defendant gave the gun to LaBoy and told him to stay there while he went back to the car to see what was happening. When he got there, he saw Aviles repeatedly stabbing Arthur, who was in the right front seat of the car.
Dr. Robert Kirschner, the medical examiner, had testified earlier in the trial that Arthur was found in the front passenger seat of the car, with 18 neck wounds and eight chest wounds. The neck wounds severed both carotid arteries and both jugular veins as well as the trachea. He had no defensive wounds.
Ruiz told defendant to "go get the other guy." Frank was led back to the car and told to close his eyes and get in the left front seat. LaBoy told defendant to stab him, but defendant stated that he had never stabbed anyone and would rather shoot him. LaBoy grabbed the knife from Aviles and began stabbing Frank. Defendant stated, "I told him to slice his throat." Defendant then went back to where Michael was lying in the snow to watch him.
Kirschner testified that Frank was found in the driver's seat and died as a result of 21 stab wounds to the neck, jaw, chest, and back. He also had an incised wound of the face. He had no defensive wounds.
Finally, defendant led Michael back to the car and told him to keep his eyes closed and get in the back seat. Michael opened his eyes and, when he saw the others, began to resist. Defendant took the knife from LaBoy, grabbed Michael by his hair, and slashed his throat. He continued to stab Michael until he got tired. Michael yelled, "I'm dead. I'm dead. Don't stab me." Defendant stabbed him a few more times. LaBoy took the knife and stabbed him several more times, to make sure he was dead.
Kirschner's testimony was that Michael had multiple stab wounds, including 24 to the face and neck, 5 to the chest and abdomen, and 3 to the back. Michael had defensive wounds to the right hand and forearm. He was found in the back seat of the car.
Defendant said that Ruiz, LaBoy, and Aviles then took several pairs of socks from a suitcase they had found in the car, put the socks on their hands, and attempted to wipe off any fingerprints they might have left. The police recovered two bloody socks near the scene, which were admitted into evidence. In addition, one fingerprint matching Ruiz was found on an outside rear window of the car. As they walked away, LaBoy discarded the knife in a snowbank. The four went to LaBoy's house to clean up. Ruiz stated that he had to return the gun he had been carrying to the person from whom he borrowed it. The others got in a cab to go home.
The assistant State's Attorney who questioned defendant testified that he read the transcribed statement, made some corrections, and signed it. The assistant State's Attorney asked defendant whether, if he had it to do over, he would do the same thing again. Defendant replied, "[I]f it was a sure thing." The assistant State's Attorney answered, "[T]here's no such thing as a sure thing. You got caught." Defendant's response was,"[A] lot of Kings kill people without getting caught. *** I'd kill Michael for sure, but I don't know about the other two."
Defendant agreed to return to the scene with the detectives and to point out where the knife had been discarded. They did not recover the knife at that time. A knife was discovered in a snowbank several days later by a passer-by, who turned it over to the police. It had minute bloodstains that were insufficient to type or identify.
The jury returned a verdict of guilty on all charges and the sentencing stage began several days later. As to defendant's history of prior criminal activity, the State introduced evidence of defendant's prior conviction for unlawful use of a weapon in 1978, for which he received a sentence of probation. The jury also heard testimony that while in custody awaiting trial, defendant solicited another prisoner who was about to be released to put out a "hit" on the individual defendant suspected of informing the police of his involvement in the three murders.
B. LaBoy Trial and Sentencing
Over a decade later, Aviles testified that he had been a 17-year-old gang member in 1979 when he and three older members of the Latin Kings-Caballero, Ruiz, and LaBoy-met three young men as they were leaving the King Castle restaurant, which was on Latin Eagle "turf." One of the young men said that he was looking for Juan Cortez because he wanted to buy some marijuana. Aviles and his companions knew that Cortez was the leader of the Latin Eagles. Ruiz told the boys that he knew where they could buy some "weed," but they needed a ride to get there. All seven got into the car, the three eventual victims in the front seat and the four Latin Kings in back. As they drove, Michael Salcido bragged about having done "a couple of hits on Latin Kings." Speaking in Spanish, Ruiz told Aviles and the others that they were going to "rob these guys." The three boys in the front seat did not react. None of them spoke Spanish.
Ruiz directed the driver to an alley. He stayed with Arthur and Frank at the car while Aviles, Caballero, and LaBoy took Michael around a corner, ostensibly to make the marijuana purchase. As soon as they were out of sight of the others, LaBoy "jumped on him" and started to beat him up. Michael fell to the ground and Aviles picked him up. Michael was "hysterical." He screamed that he was not an Eagle, that he had just wanted to be their friend. LaBoy yelled at him to shut up and continued to beat him. Eventually, they walked Michael back to the car. When the others saw Michael crying and beaten and asked what was going on, Ruiz pulled a gun. Aviles and the others began to rob the victims, taking their watches and the contents of their pockets. Michael told them to take whatever they wanted and promised that they would not go to the police. LaBoy struck him in the face and told him to shut up.
At that point, Ruiz said, in Spanish, that they had to kill the three boys. Aviles responded, still in Spanish, that he thought they were only going to rob them. LaBoy said that the three had seen their faces, so they could not let them go, but he had a better way of dealing with it than Ruiz's gun. He pulled a knife, which he handed to Ruiz. Then he grabbed the boy who had been driving (Arthur) and shoved him into the front seat of the car on the passenger side. Caballero and LaBoy walked Michael and Frank down the alley. Ruiz called Aviles around to the other side of the car, handed him the knife, and told him to get in the car and "do the guy." Aviles hesitated, but Ruiz kept telling him to go ahead. Ruiz was pointing the gun at Arthur as Aviles stabbed him in the chest three or four times. When Arthur put his hands up as if to resist, Aviles panicked and dropped the knife. Then the passenger side door burst open and LaBoy grabbed the knife. He began stabbing Arthur, while screaming at Aviles for not "taking care of business." LaBoy grabbed Arthur by the head and slit his throat, telling Aviles, "This is how you do it." He sliced repeatedly at Arthur's throat and stabbed him in the chest several times. When he was done, he licked the blood from his hand as he told Aviles that he had "no heart" and that this was how a "true King takes care of business." Aviles told LaBoy that he "didn't want any part of this," so LaBoy sent him down the alley to act as a lookout.
As he walked down the alley, he saw Caballero, who had the other two boys on the ground in the snow. Aviles threw up in some bushes. Later, he saw LaBoy take "the guy that was doing all the talking" (Michael) back to the car and force him into the back seat. Michael begged him not to kill him, screaming that he was not an Eagle. LaBoy told him to shut up and started stabbing him.
Ruiz, LaBoy, and Caballero eventually motioned for Aviles to come back to the car. When he did, he saw that all three of the boys were dead, two in the front seat of the car and one in the back. LaBoy and Ruiz said that they had to wipe the car down. LaBoy took the keys from the ignition and opened the trunk. He opened a suitcase he found inside and started passing out the socks they used to wipe the car of fingerprints. They threw the bloody socks into backyards along the alley as they walked away. LaBoy shoved the knife into a pile of snow. Ruiz left, and the others went to LaBoy's home.
The jury found LaBoy guilty. At the sentencing phase, the State argued that LaBoy was the most culpable of the four killers, and that he was responsible for all 24 stab wounds inflicted on Michael. Reflecting Aviles' testimony, the State's only mention of defendant was to describe him as aiding, abetting, or attempting to aid LaBoy.
C. The Evidentiary Hearing
In Caballero IV, this court found that defendant had made "a substantial showing that his constitutional rights were violated so as to entitle him to an evidentiary hearing on the disparity between his death sentence and LaBoy's life sentence." Caballero IV, 179 Ill. 2d at 217, citing People v. Gleckler, 82 Ill. 2d 145, 166 (1980) (acknowledging "this court's duty to ensure that the cases in which death is imposed are rationally distinguished from those in which it is not imposed").
The evidence before the circuit court at the evidentiary hearing consisted of the transcripts of the trials and sentencing hearings of defendant and LaBoy. No additional testimony was presented. Defense counsel preceded her argument with a summary of the factors relevant in the analysis of sentencing disparity: the relative culpability of the offenders (Gleckler, 82 Ill. 2d at 166), their rehabilitative prospects (Gleckler, 82 Ill. 2d at 171), and their criminal histories (Gleckler, 82 Ill. 2d at 170-71). Defense counsel argued that defendant's only criminal record, prior to being found guilty of these three murders, was for unlawful possession of a weapon. He received a sentence of probation. In contrast, after the murders at issue here, but before his trial, LaBoy was convicted of three major felonies, all involving armed violence, and one of which was the attempted aggravated sexual assault of a 16-year-old girl. Counsel also noted that defendant has been a model prisoner for 20 years, thus demonstrating his potential for rehabilitation, while LaBoy's subsequent actions show that he is unlikely to ever be rehabilitated. In addition, LaBoy took pleasure in the three murders, smiling and licking the blood from his fingers in a "particularly ghoulish" display that further demonstrated his lack of rehabilitative potential. As to the relative culpability of the two, counsel argued that it was LaBoy who initiated the beating of Michael and then rejected Ruiz's plan to use a gun and produced the knife. Defendant had "no role" in the killings of Arthur and Frank. He did stab Michael, but so did LaBoy. LaBoy also took the lead in the attempt to wipe down the car and dispose of the murder weapon. Counsel also pointed to the State's closing argument at LaBoy's trial that he was the principal in at least two of the killings while defendant was merely aiding and abetting. Defense counsel concluded that LaBoy was the "worst actor" under all three factors of the analysis.
The State responded that defendant was an "active and willing participant" in all three killings. He participated in the beating of Michael, took part in setting up the murder, encouraged LaBoy to use a knife instead of a gun, escorted two of the victims back to the car to their deaths, and actually killed one of them. Thus, he was not simply a follower or bystander.
The State also explained that the evidence presented in the two cases was slightly different. At defendant's trial, his own statement about his role in the events of that night was introduced into evidence. The statement was not admitted in the LaBoy trial. Aviles' testimony was the linchpin of the State's case against LaBoy, but Aviles' perspective was slightly different from defendant's and, as a result, different facts were emphasized. For example, because Aviles walked away from the scene for a while, he did not observe some of the events that defendant described. Aviles portrayed LaBoy as the ringleader, while defendant's version suggested that he, Ruiz, and LaBoy were equals in this regard.
The State argued that defendant is the "most culpable" of the four killers because he took a "more active role" in setting up the murders. He forced two of the victims to lie face down in the snow while they waited to be taken back to the car where they were murdered. He urged LaBoy to slice Frank's throat and "savagely murdered" Michael. Ruiz may have come up with the initial plan or, perhaps, "was the first to speak it aloud," but defendant "kept it going." As to rehabilitative potential, the State acknowledged that LaBoy had been convicted of several violent felonies during the years it took to bring him to trial for these killings and that these convictions demonstrated his lack of potential. However, defendant's own words and actions demonstrated his lack of rehabilitative potential. He showed no remorse and stated that he would kill again if it were a sure thing. He tried to arrange for another murder from his jail cell. In conclusion, the State argued that both defendant and LaBoy should have received the death penalty; however, just because one or more of the LaBoy jurors were not convinced of this, defendant's death sentence is not rendered unconstitutional.
Defense counsel pointed out that, at each trial, the prosecutor argued that the person on trial was the most culpable. Such conduct by the prosecutors, counsel argued, is "scandalous." The State responded that such argument is merely advocacy.
At the conclusion of the evidentiary hearing, the circuit court found that: (1) defendant was "as involved" as LaBoy and was an active and willing participant in the killings; (2) LaBoy had a more significant criminal history "at the time of their respective sentencings" than did defendant; and (3) and at the time he was sentenced, defendant was "a ruthless killer who exhibited absolutely no remorse for his crime and, in fact, indicated that he would do it again if he could get away with it," revealing that his potential for rehabilitation was ...