The opinion of the court was delivered by: Justice Garman
Docket No. 84933-Agenda 2-September 2002.
After a jury trial, defendant, Keith Shum, *fn1 was convicted of murder, feticide, attempted murder, and two counts of rape. Defendant waived a jury for the sentencing phase of trial, and he was sentenced to death for murder and to concurrent sentences of 60 years for feticide, 60 years for attempted murder, and 30 years for each rape. His convictions and sentences were affirmed on direct appeal. People v. Shum, 117 Ill. 2d 317 (1987). Defendant filed a pro se post-conviction petition in 1988; he filed an amended petition through counsel on September 24, 1997. After oral argument, the circuit court granted the State's motion to dismiss the post-conviction petition. While that judgment was pending on appeal, we remanded the matter to the circuit court, while retaining jurisdiction, for a fitness hearing pursuant to People v. Owens, 139 Ill. 2d 351 (1990). The circuit court found defendant fit to participate in post-conviction proceedings.
At the time defendant filed his appeal of the dismissal of his post-conviction petition, his death sentence triggered our exclusive jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, §6) and Supreme Court Rule 651(a) (134 Ill. 2d R. 651(a)). Subsequently, the Governor commuted his death sentence. Although the constitutional basis for our direct appeal is no longer present, we choose in our discretion to retain jurisdiction over this case. See McGill v. Illinois Power Co., 18 Ill. 2d 242, 244 (1959); People ex rel. Farwell v. Kelly, 367 Ill. 616, 618 (1937).
An appellate issue is moot when it is abstract or presents no controversy. People v. Blaylock, 202 Ill. 2d 319, 325 (2002). An issue can become moot if circumstances change during the pendency of an appeal that prevent the reviewing court from being able to render effectual relief. People v. Jackson, 199 Ill. 2d 286, 294 (2002). In this appeal, defendant raises two issues challenging his sentence, including ineffective assistance of counsel at sentencing and improper denial of request to depose trial counsel about the sentencing hearing. Subsequent to the filing of his appeal, the Governor commuted his death sentence to natural life imprisonment without the possibility of parole or mandatory supervised release. Commutation removes the judicially imposed sentence and replaces it with a lesser, executively imposed sentence. People ex rel. Johnson v. Murphy, 257 Ill. 564, 566 (1913); Black's Law Dictionary 274 (7th ed. 1999). Thus, the commutation rendered these sentencing issues moot. See, e.g., Lewis v. Commonwealth, 218 Va. 31, 38, 235 S.E.2d 320, 325 (1977); State v. Mitchell, 239 Or. 87, 88, 396 P.2d 572, 573 (1964). We, therefore, address only the viable, nonsentencing issues.
Defendant now appeals the denial of post-conviction relief, raising three viable issues: (1) whether the circuit court erred in finding defendant fit for trial; (2) whether the circuit court erred in finding defendant fit for post-conviction proceedings; and (3) whether the circuit court improperly refused to order DNA testing, where such testing was not available at the time of trial and may provide new evidence of defendant's innocence. In the wake of the governor's commutation of his sentence, defendant filed a motion for DNA testing before this court. We ordered that this motion be taken with the case.
Gwendolyn Whipple was living with Theresa Conway and Conway's three children in an apartment in Chicago. Conway and Whipple previously had met defendant through Conway's boyfriend, Mark Aytchan; Conway knew defendant only as "Keith." Whipple was nine months pregnant at the time of the crimes. Between 11:15 and 11:30 p.m. on July 6, 1982, the two women heard a knock at their door. The visitor told them it was "Keith." Conway later identified defendant as the person they let into the apartment.
Defendant offered the women some marijuana, and the three of them shared a marijuana cigarette. He told them that Aytchan had asked him to watch over them while Aytchan was in Cook County jail awaiting trial for burglary. Conway accused defendant of lying because she had recently talked to Aytchan, and he did not mention telling this to defendant. Defendant became angry and pushed the sharp tip of his umbrella at Conway's left jaw. Conway pushed the umbrella away and ran across the room to grab a knife. Defendant pulled out a gun. Conway said she thought the gun was only a toy. Defendant showed them the bullets in the gun, so she dropped the knife.
Defendant demanded that the two women lie side by side, face down on a bed. One of Conway's children came to check out the source of the noise that had awakened him. Defendant pointed the gun at the boy's forehead. Conway approached defendant and urged him to shoot her instead of her son. Defendant ordered Conway to tell her son to go back to bed and told her to lie down next to Whipple.
Defendant walked behind Conway and undressed her from the waist down. He had sexual intercourse with her while he pointed the gun at Whipple's head. Defendant undressed Whipple from the waist down and had sexual intercourse with her. Next, defendant threatened to kill them if they both did not perform oral sex on him, so first Conway and then Whipple complied. Afterward, defendant sat on the window ledge next to the bed. He pointed the gun at each of them while saying, "I'm going to kill you." He fired several shots.
Conway received gunshot injuries to her right mandible, the right side of her neck, and her right arm. Whipple received five gunshot wounds, including two to her left shoulder, two to the left side of her forehead, and one to her head. When Conway looked up, defendant had fled. She noticed Whipple's injuries, so she ran to get help. She went to the nearby apartment of Gus and Marquita Wilson. Gus Wilson testified that there was an urgent knock at the door around 1 a.m. Wilson opened the door, and a bloody Conway told him that she and Whipple had been shot. Wilson asked who had shot them, and she answered, "Keith."
Wilson went to Conway's apartment. He discovered that Conway's three children were uninjured. He then checked Whipple, but he was unable to find a pulse. He called for help. The paramedic who arrived at the scene also was unable to find any vital signs for Whipple or for her unborn baby. He testified that in his opinion both Whipple and her fetus were dead when he arrived. Conway was taken to St. Bernard's Hospital.
About an hour later, two detectives from the Chicago police department interviewed Conway. Conway described the perpetrator and told them his name was Keith. She said that her boyfriend, Mark Aytchan, knew more about Keith, and Aytchan was currently in Cook County jail. An hour later, the police questioned Aytchan, and he told them that Conway must be referring to Keith Shum, the defendant. He gave them Shum's address.
The police went to this address, and defendant's aunt, Bernice Shum, answered the door. The detectives found defendant undressed and asleep on a couch. After he was awakened, they identified themselves as policemen, told him why they were there, and gave him Miranda warnings. Defendant denied involvement in the incident. The detectives took defendant to Conway's hospital room, and she immediately identified him as the person who had raped and shot her and Gwendolyn Whipple. Police reports disclosed that a "rape kit" or "Vitullo kit" was obtained from Conway. Throughout questioning by police officers and an assistant State's Attorney, defendant denied his involvement in the crimes.
Defendant was charged by indictment on July 7, 1982, with murder, attempted murder, two counts of rape, two counts of deviate sexual assault, two counts of unlawful restraint, aggravated battery, armed violence, and feticide. The charges of deviate sexual assault, unlawful restraint, aggravated battery, and armed violence were dismissed just before the trial. On July 29, 1982, the public defender requested a fitness and sanity evaluation. On August 17, 1982, psychiatrist Dr. Albert Stipes sent a report to the court stating his opinion that defendant was fit to stand trial and was legally sane. Again upon request of defense counsel, defendant was examined on September 14, 1984, by psychiatrist Dr. Gilbert Bogen, who also concluded he was fit to stand trial. Following a jury trial on September 12 through 18, 1984, the jury, after 20 minutes of deliberation, found defendant guilty of two counts of rape, feticide, attempted murder, and murder.
Defendant waived a jury for the sentencing phase. Defense counsel requested that defendant's fitness for sentencing be evaluated. The judge ordered a psychiatric examination. On October 9, 1984, Dr. R.A. Reifman concluded that defendant was fit for sentencing. The trial court found defendant eligible for the death penalty. The court found insufficient ...