People Ex Rel. Carey v. Cousins

397 N.E.2d 809, 77 Ill. 2d 531, 34 Ill. Dec. 137, 1979 Ill. LEXIS 408

• Court: Illinois Supreme Court
• Decided: November 21, 1979
• Docket: 51659
• Status: Published

Opinions

MR. JUSTICE WARD

delivered the opinion of the court:

An information was filed in the circuit court of Cook County charging Ronald E. Brown with the murder, aggravated kidnapping, and armed robbery of Charles H. McGee. After a bench trial before William Cousins, Jr., a judge of that court, the defendant was found guiltv on all charges. The People requested that a jury be convened to conduct a proceeding to determine whether the death penalty should be imposed on the conviction for murder, as provided by section 9 — 1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(d)). In response to a motion by the defendant, the trial court, on January 29, 1979, denied the request and entered an order holding section 9 — 1(d) unconstitutional.

The State filed a motion before us for leave to file a petition for a writ of mandamus directing the respondent Cousins to expunge his order and to conduct a sentencing proceeding, and the motion was allowed.

The public defender of Cook County and the Cook County Bar Association were each granted leave to file briefs amicus curiae. Their briefs support the respondents.

The record of the trial court proceedings filed in the present action is not complete. It includes the criminal information and the order holding section 9 — 1(d) invalid, but does not contain any pretrial or post-trial motions or the rulings made, the testimony given at the trial, the judgments of conviction, or the petitioner’s request for a sentencing hearing.

The basis for the trial court’s holding section 9 — 1(d) invalid, as stated in its opinion, was that the section “vests the prosecution with unlimited discretion to trigger death sentence proceedings,” and thereby permits the death penalty to be “wantonly and freakishly imposed.” For this reason the section was viewed as contravening the due process clause, the prohibition of cruel and unusual punishments found in the eighth amendment to the Constitution of the United States and the separation of powers provision of article II, section 1, of the Constitution of Illinois.

Section 9 — 1(d) provides:

“Where requested by the State, the court shall conduct a separate sentencing proceeding to determine the existence of factors set forth in Subsection (b) and to consider any aggravating or mitigating factors as indicated in Subsection (c). The proceeding shall be conducted:

1. before the jury that determined the defendant’s guilt; or

2. before a jury impanelled for the purpose of the proceeding if:

A. the defendant was convicted upon a plea of guilty; or

B. the defendant was convicted after a trial before the court sitting without a jury; or

C. the court for good cause shown discharges the jury that determined the defendant’s guilt; or

3. before the court alone if the defendant waives a jury for the separate proceeding.”

Since there was a bench trial in this case, we are concerned here only with section 9 — 1 (d)(2)(B) and section 9 — 1(d)(3), the latter being applicable if the defendant should waive a jury.

Section 9 — 1(d) is part of an amendatory act which became effective in 1977 (1977 Ill. Laws 70, sec. 1), following this court’s holding in People ex rel. Rice v. Cunningham (1975), 61 Ill. 2d 353, which invalidated earlier provisions relating to the imposition of the death penalty (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1A).

Section 9 — 1 establishes a separate sentencing proceeding which must be employed before a death sentence may be imposed. For present purposes it is not necessary to set out its provisions in detail. In general, section 9 — 1(d) provides that the judge or jury, as the case may be, shall consider evidence of aggravating factors, which are enumerated in section 9 — 1(b), and mitigating factors, five of which are enumerated in section 9 — 1(c). Subsections (g) and (h) provide that the death penalty may be imposed only if the jury or the judge, as the case may be, finds that there were one or more aggravating factors and no mitigating factors sufficient to preclude imposition of a sentence of death.

We turn first to the claim that section 9 — 1(d) violates the separation of powers provision of the Constitution of Illinois in that the prosecutor is given power to exercise a part of the sentencing process, which should properly be a judicial function. It is this theory which appears to form the basis of the trial court’s ruling, and it is advanced here by one of the amici, although not by the respondents, and although it was not included in the defendant’s motion before the respondent Cousins.

The prosecutor of course does not himself impose the death sentence, nor can he require that it be imposed, for the judge or sentencing jury may conclude that the statutory conditions specified for the imposition of the death penalty have not been met. The present argument focuses rather on the fact that no death sentence may be imposed at all without a sentencing proceeding, and that such a proceeding cannot take place unless it is requested by the prosecutor, in which case it becomes mandatory. If the prosecutor fails to request a sentencing hearing, he thus has precluded the imposition of a death sentence, and in that sense, it is argued, he has participated in the sentencing process.

We find no authority in the decisions of this court to support that theory, and we view it as ignoring the role of the State’s Attorney as counsel for one of the litigants, the People. There are countless occasions in the trial of a criminal proceeding where a judicial ruling that is adverse to the defendant and may affect the ultimate outcome of the prosecution will not, and ordinarily cannot, be made unless a request for the ruling has been made by the prosecution. Examples range from the challenge of jurors to the tendering of instructions. Judicial rulings sua sponte are the exception, and it has never been supposed that in failing to make the challenge or tender the instruction the prosecutor was usurping a judicial function.

People v. Bombacino (1972), 51 Ill. 2d 17, People v. Handley (1972), 51 Ill. 2d 229, and People v. Sprinkle (1974), 56 Ill. 2d 257, cert. denied (1974), 417 U.S. 935, 41 L. Ed. 2d 239, 94 S. Ct. 2650, embody a view of the separation of powers provision of the Constitution opposed to that urged here. Bombacino involved a provision of the Juvenile Court Act (Ill. Rev. Stat. 1967, ch. 37, par. 702 — 7(3)) which authorized the State’s Attorney to transfer a delinquency proceeding against a juvenile to a criminal court and thus permit the juvenile to be proceeded against as an adult under the provisions of the Criminal Code of 1961, in this case on a charge of homicide. By giving the State’s Attorney the power to determine in which court the juvenile should be prosecuted, it gave him by the same token the power to increase the severity of the sanction which might be visited upon the defendant for the offense with which he was charged.

The State’s Attorney’s decision was subject to being overruled by the chief judge of the circuit, but only in the event that the juvenile court judge objected to the removal. In Bombacino no such objection had been made. The defendant contended that due process required the juvenile court judge to hold a hearing on the removal petition. This court, contrasting the Illinois act with a District of Columbia statute dealing with the same subject matter, rejected that claim in the following language:

“The statute involved in Kent, however, vested the discretion to waive jurisdiction over the minor in the juvenile court. The Illinois statute does not give the same discretion to the court. Rather the State’s Attorney in Illinois is vested with the discretion to determine whether or not to proceed criminally against a juvenile offender, subject only to the right of the judge presiding in the juvenile division to object, in which event the matter is referred to the chief judge of the circuit court for his decision.” (51 Ill. 2d 17, 20.)

While the constitutional provision immediately involved in Bombacino was due process rather than separation of powers, the decision necessarily presupposes that the determination made by the prosecutor is not to be regarded as a judicial act.

The removal of a juvenile from juvenile court for trial in criminal court, in this case on a charge of murder, was also the subject of People v. Handley. Among other arguments made against the constitutionality of the section of the Juvenile Court Act authorizing this procedure, one contention of the defendant, as described by the court, was that “vesting discretion in the State’s Attorney to decide whether or not to remove a juvenile from the jurisdiction of the juvenile court without providing any standards to limit his discretion deprives juvenile defendants of due process and equal protection under the law.” (51 Ill. 2d 229, 232.) Following Bombacino, the court in Handley commented on this claim as follows:

“Historically, the office of the State’s Attorney has involved the exercise of a large measure of discretion in the many areas in which State’s Attorneys must act in the performance of their duties in the administration of justice. We do not find it constitutionally objectionable that the legislature has seen fit to grant discretion to the State’s Attorney in removal matters under the Juvenile Court Act, particularly in view of the fact that the purposes of the Act as set forth in section 1 — 2 of the Act (Ill. Rev. Stat. 1969, ch. 37, par. 701 — 2) ***. We further conclude, as we did in Bombacino, that the due process hearing prescribed in Kent is not required at this stage of the proceedings in the juvenile court.” 51 Ill. 2d 229, 233.

Bombacino and Handley were each cited in People v. Sprinkle, where the conviction of two juveniles indicted for murder and deviate sexual assault was sustained against the same constitutional objection. This court stated:

“We hold, therefore, that the Illinois legislature may reasonably vest in the State’s Attorney the discretion of deciding whether the juvenile shall be prosecuted as an adult or juvenile offender. The guaranty of hearing found in the due-process clause of the fifth amendment to the United States Constitution had traditionally been limited to judicial and quasi-judicial proceedings. It has never been held applicable to the process of prosecutorial decision making. If it were so held, the prosecutorial function would be vitally impaired.” (56 Ill. 2d 257, 261.) The Juvenile Court Act has subsequently been amended so as to reduce the degree of prosecutorial discretion. (See People v. Taylor (1979), 76 Ill. 2d 289, 298-99.) That development does not, of course, disturb the conclusion reached in Sprinkle and its precursors with respect to the separation of powers issue.

People v. Montana (1942), 380 Ill. 596, cited by amicus, is not inconsistent with the decisions referred to above. As was pointed out in People ex rel. Scott v. Israel (1977), 66 Ill. 2d 190, 194, the distinctive aspect of Montana was that an administrative agency was given the power to disregard a judgment already pronounced by a court as to the minimum and maximum term of imprisonment. That is not the situation presented here. At most the role of the State’s Attorney under section 9 — 1 could be characterized as requiring his consent before the court may proceed with the procedure for death sentencing. In this sense the situation resembles that in People v. Phillips (1977), 66 Ill. 2d 412. In that case we sustained a provision of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1973, ch. 91½, par. 120.8) which required the consent of a defendant’s probation officer before the defendant could be allowed to avoid a pending criminal proceeding charging the unlawful possession of a controlled substance. See 66 Ill. 2d 412, 416.

The cases just referred to largely dispose of the respondents’ further claim that the power of the State’s Attorney to determine whether or not a sentencing hearing shall be held is left to his “unbridled discretion,” and that section 9 — 1(d) thus violates due process. As the decisions of this court show, the State’s Attorney has always enjoyed a wide discretion in both the initiation and the management of criminal litigation. That discretion includes the decision whether to initiate any prosecution at all, as well as to choose which of several charges shall be brought. See People v. Rhodes (1967), 38 Ill. 2d 389, 396;People v. McCollough (1974), 57 Ill. 2d 440, appeal dismissed (1974), 419 U.S. 1043, 42 L. Ed. 2d 637, 95 S. Ct. 614; People v. Brooks (1976), 65 Ill. 2d 343, 349; People v. Golz (1977), 53 Ill. App. 3d 654, 658, 659, cert. denied (1978), 437 U.S. 905, 57 L. Ed. 2d 1134, 98 S. Ct. 3091; see also Woodard v. Wainwright (5th Cir. 1977), 556 F.2d 781, 784, cert. denied (1978), 434 U.S. 1088, 55 L. Ed. 2d 794, 98 S. Ct. 1285.

The respondents also urge that section 9 — 1(d) must be considered to violate the eighth amendment to the United States Constitution under the decision in Furman v. Georgia (1972), 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726. Their position is that the same element of potential arbitrariness and capriciousness in the sentencing process which led the Supreme Court to hold unconstitutional the Georgia statute before the court in that case infects the prosecutor’s power to determine whether to set the sentencing procedure in motion.

A similar argument was made and rejected in Gregg v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909, in which a conviction under the amended Georgia statute was upheld. Both the opinion of Mr. Justice Stewart, joined by Mr. Justice Powell and Mr. Justice Stevens, and the separate opinion of Mr. Justice White, in which the Chief Justice and Mr. Justice Rehnquist joined, express the view that the requirements imposed upon a sentencing body are not applicable to decisions by the prosecutor. Mr. Jústice Stewart addressed the issue as follows:

“First, the petitioner focuses on the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law. He notes that the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them. Further, at the trial the jury may choose to convict a defendant of a lesser included offense rather than find him guilty of a crime punishable by death, even if the evidence would support a capital verdict. And finally, a defendant who is convicted and sentenced to die may have his sentence commuted by the Governor of the State and the Georgia Board of Pardons and Paroles.

The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Fur-man held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.” (428 U.S. 153, 199, 49 L. Ed. 2d 859, 889, 96 S. Ct. 2909, 2937.)

Mr. Justice White reached the same conclusion, as shown by the following excerpt from his opinion:

“Petitioner’s argument that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies is unsupported by any facts. Petitioner simply asserts that since prosecutors have the power not to charge capital felonies they will exercise that power in a standardless fashion. This is untenable. Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts. Unless prosecutors are incompetent in their judgments, the standards by which they decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence. Thus defendants will escape the death penalty through prosecutorial charging decisions only because the offense is not sufficiently serious; or because the proof is insufficiently strong. This does not cause the system to be standardless any more than the jury’s decision to impose life imprisonment on a defendant whose crime is deemed insufficiently serious or its decision to acquit someone who is probably guilty but whose guilt is not established beyond a reasonable doubt. Thus the prosecutor’s charging decisions are unlikely to have removed from the sample of cases considered by the Georgia Supreme Court any which are truly ‘similar.’ If the cases really were ‘similar’ in relevant respects, it is unlikely that prosecutors would fail to prosecute them as capital cases; and I am unwilling to assume the contrary.” 428 U.S. 153, 225, 49 L. Ed. 2d 859, 903, 96 S. Ct. 2909, 2949.

The respondents point out correctly that a prosecutor’s discretion in deciding whether to request a sentencing hearing was not involved in Gregg, since under the Georgia statute a hearing is mandatory whenever a capital offense has been charged, and thus the only discretion given to the prosecutor is whether to charge such an offense. The respondents assert that the opinions in Gregg must be read as limited to that stage of proceedings. At that stage, moreover, according to the respondents, discretion is not unguided, since it is limited by the statutory definition of a capital offense. In contrast, the argument runs, the only standard contained in section 9 — 1 is the enumeration of aggravating and mitigating factors, a standard which is directed solely to the sentencing body.

The distinction drawn by the respondents strikes us as unsound. Under the Georgia procedure the prosecutor’s power to charge a capital offense is, of course, confined by the statutory definition of that offense. His decision whether to exercise that power remains discretionary, however, and that decision will depend upon his estimate of what testimony and other evidence will be available and its persuasive effect.

The same situation arises under section 9 — 1(d). Unless the State’s Attorney believes that there will be testimony which will persuade the jury that the requisite elements for a death sentence exist, he is unlikely to request a hearing. His judgment, moreover, will be better informed than it can be under the Georgia procedure, for he need not make his final decision until after conclusion of the trial, when he will have evaluated the testimony and other evidence which was in fact presented.

The respondents also challenge section 9 — 1 on the following additional grounds: the information does not allege any of the aggravating factors enumerated in section 9 — 1(b); the sentencing body is not told what weight it is to give the various factors; the sentencing body is not required to make findings as to which factors were relied on; the judge is required to accept the recommendation of the sentencing jury; the State is not required to notify the defendant in advance of trial of its intention to seek the death penalty or of the particular aggravating factors on which it will rely.

These contentions are not appropriate for decision in the present proceeding. Subject to one qualification regarding the final contention, these claims are all premature, since the sentencing hearing has not yet been held and the defendant has not yet been, and may never be, given a death sentence. People v. Wills (1975), 61 Ill. 2d 105, cert. denied (1975), 423 U.S. 999, 46 L. Ed. 2d 374, 96 S. Ct. 430.

As to the last contention it is claimed that unless the defendant knows in advance of trial whether the State will seek the death penalty he will be unable to make an intelligent decision as to whether he should enter into a negotiated plea of guilty, whether he should waive his right to a jury trial, and whether he should take the stand. On oral argument it was brought out that the State and the defendant disagree as to what representations were made by the State as to the death penalty. An original action of mandamus in this court is not appropriate for the determination of questions of fact. (Cf. Touhy v. State Board of Elections (1975), 62 Ill. 2d 303, 312.) Moreover, as noted earlier, the record before us does not contain either the pretrial proceedings or the trial itself. Since the respondents’ contention cannot be resolved without the determination of factual matters on which the record is silent, that contention provides no basis for denying the writ.

For the reasons stated herein, a writ of mandamus shall issue directing the respondent Cousins to expunge the order entered January 29, 1979, and to hold a hearing to determine whether a death sentence should be imposed on the respondent Brown.

Writ awarded.