People v. Mack

• Decision Date: 30 November 1984
• Docket Number: No. 55370,55370
• Citation: 473 N.E.2d 880,85 Ill.Dec. 281,105 Ill.2d 103
• Parties: , 85 Ill.Dec. 281 The PEOPLE of the State of Illinois, Appellee, v. Larry MACK, Appellant.
• Court: Illinois Supreme Court

Page 880

473 N.E.2d 880

105 Ill.2d 103, 85 Ill.Dec. 281

The PEOPLE of the State of Illinois, Appellee, v. Larry MACK, Appellant.

No. 55370.

Supreme Court of Illinois.

Nov. 30, 1984.

Rehearing Denied Feb. 1, 1985.

Neil F. Hartigan, Atty. Gen., State of Ill., Michael B. Weinstein, Asst. Atty. Gen., Chicago, for plaintiff-appellee.

Steven Clark, Deputy State Appellate Defender, Patricia Unsinn, Martin S. Carlson, Asst. State Appellate Defenders, Chicago, for defendant-appellant; Richard M. Daley, State's Atty., County of Cook, Chicago, Michael E. Shabat, Joan S. Cherry, LuAnn Rodi, Asst. State's Attys., Chicago, of counsel.

RYAN, Chief Justice:

Alexander Peterson, Fletcher Turner, and the defendant in this case, Larry Mack, were indicted in the circuit court of Cook County on three counts of murder (Ill.Rev.Stat.1977, ch. 38, pars. 9-1(a)(1) through (3)) based on the shooting death of a security guard, Joseph Kolar, during a bank robbery. These three were also indicted for armed robbery (Ill.Rev.Stat.1977, ch. 38, par. 18-2) and armed violence (Ill.Rev.Stat.1977, ch. 38, par. 33A-2) growing out of the same robbery; however, the armed-violence counts were not pursued by the State.

Peterson and Turner entered "blind" guilty pleas and were sentenced to terms in the penitentiary. After last minute plea negotiations proved fruitless, defendant Mack waived a jury trial as to guilt or innocence and was tried by the court. The defendant was convicted of three counts of murder and two counts of armed robbery. Thereafter a bifurcated sentencing hearing was held before a jury to determine if the defendant should receive a sentence of death. Ill.Rev.Stat.1979, ch. 38, par. 9-1(b) et seq.

After the first phase of the sentencing hearing, the jury found that the defendant was eligible for the death penalty because his conduct, personally murdering an individual during the course of a felony while of the age of 18 or over, satisfied one of the statutory aggravating factors which must be found before the death penalty can be imposed. (Ill.Rev.Stat.1979, ch. 38, pars. 9-1(b)(6)(a) through (c).) During the second phase of the sentencing hearing, the jury heard evidence in aggravation and mitigation. The jury unanimously concluded that there were no mitigating factors sufficient to preclude the imposition of the death penalty. A sentence of death was entered for the murder conviction. The defendant was also sentenced to concurrent terms of 25 years of imprisonment on two counts of armed robbery. The defendant's death sentence was stayed (87 Ill.2d R. 609(a)), pending direct appeal to this court (87 Ill.2d R. 603).

Shortly before noon on November 23, 1979, the defendant entered the West Pullman United Savings Bank in Chicago. John McGinty, a loan officer, was the first bank employee to notice the defendant. McGinty was seated at his desk talking to Joseph Kolar, the bank's security guard, who was standing in front of the desk. According to McGinty's testimony, which was partially corroborated by film from security cameras, the defendant walked up to Kolar and, without conversation, pulled a gun from under his coat and placed it inches from Kolar's collar. Kolar reacted by raising his arm trying to push the gun away. The defendant fired a shot through Kolar's right arm. He then put his hand on the back of Kolar's neck, placed the gun against Kolar's back, and walked or pushed him over to a position in front of a set of windows. While in front of the windows, the defendant forced Kolar to lie on his back on the floor.

The defendant then stood over Kolar, straddling the victim with his legs, fired the fatal shot into Kolar's chest, and took Kolar's gun from its holster. While the defendant was straddling Kolar, his two accomplices, Peterson and Fletcher, entered the bank and jumped over a partition to gain access to the teller's cages. While the accomplices gathered money and placed it into bags, the defendant patrolled the area in front of the teller's cages, carrying his gun as well as the gun he had taken from Kolar. The three robbers then ran out of the bank.

The trio's hasty exit from the bank was observed by Chicago policeman Richard Stake and two other officers who were driving near the bank in an unmarked car. According to Stake's testimony, the police drove their car around a corner in order to follow the robbers. After watching the robbers jump into a parked car, the police stopped their car about 20 feet in front of the robbers' car. The police left their car, drew their guns, ordered the robbers to leave their car, and arrested them. The police recovered the bags of money, Kolar's gun, and the defendant's gun from the car.

On appeal, the defendant raises only issues regarding the sentencing hearing and the sentences which he received. As noted above, the assistant State's Attorneys and the defense counsel had a plea discussion prior to trial. On the morning the trial was to begin and while the jury venire was waiting, the defense counsel requested a plea-bargaining conference. The discussions between the assistant State's Attorneys and the defense counsel in the presence of the court were not on the record. It is not disputed that an initial offer was made by defense counsel to plead guilty in return for an agreed sentence of 50 years. This offer was flatly rejected by the prosecution. The defense counsel then expressed a willingness to plead guilty in exchange for a sentence of 75 years, and the trial court indicated a willingness to accept a plea on that condition. This offer was rejected by the assistant State's Attorneys after a conference with their superiors. Since the plea discussion was not of record, the prosecution and the defense counsel have different versions of the remainder of the plea discussion. It is not disputed, however, that following the rejection of the last offer, the defense counsel offered a guilty plea in exchange for a sentence of natural life imprisonment. The defense counsel contends that this position was acceptable to the State with the qualification that the deceased's family must be willing to go along with it. The State's version insists that the offer to plead guilty in exchange for a sentence of natural life imprisonment was conveyed to the assistant State's Attorneys' superiors, who neither accepted nor rejected it, but requested the assistants to contact the victim's family concerning the offer. That night the prosecutors spoke to members of the victim's family who stated that they were opposed to anything other than the death penalty for the defendant. Thereafter, the assistant State's Attorneys were told by their superiors to reject the defendant's plea offer and to seek the death penalty. The next morning one of the assistant State's Attorneys reported that the State would not accept the plea offer. Defendant's counsel objected, maintaining that the State had agreed to accept the proposed plea bargain, and inferred that the State's rejection of the bargain was based solely on the wishes of the victim's family. Defense counsel asked the trial court to force the State to abide by the terms of the alleged agreement. The assistant State's Attorneys responded that they had never accepted the proposed bargain and maintained that the family's wishes were a factor in the decision to reject the offer but not the sole basis for the decision. The trial court denied the defendant's request to compel the State to accept the offer. Counsel for both sides and the trial judge then made statements for the record as to their respective understandings of the plea discussions. We will refer to these later.

The defendant argues that it is constitutionally impermissible for the State to give any degree of consideration to the victim's family's wishes in making the decision whether to accept a plea or whether to proceed to trial and to seek a death penalty hearing. Any degree of such consideration, defendant argues, is an abuse of the prosecutorial discretion approved in People v. Lewis (1981), 88 Ill.2d 129, 58 Ill.Dec. 895, 430 N.E.2d 1346, and People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, 34 Ill.Dec. 137, 397 N.E.2d 809, because the decision to seek the death penalty is not the decision of the prosecutor guided by the factors discussed in Cousins. Instead, the defendant contends, the decision is influenced by the whims of the family members and caprice and emotion are introduced into the sentencing process in violation of the eighth amendment as interpreted in Gardner v. Florida (1977), 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393. The defendant's second argument on this point is somewhat related to the first, in that he also contends that such consultation and consideration make the imposition of the death penalty arbitrary and freakish by tying the defendant's fate to the victim's family's attitudes, which, presumably, will be diverse and not always consistent, depending upon the attitude of the family toward the death penalty. This perceived result is said to violate the constitutional strictures of Gregg v. Georgia (1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859.

The defendant's argument founded on Gardner is based on language of that case which states that "any decision to impose the death sentence [must not appear to be based on] caprice or emotion." (Emphasis added.) (Gardner v. Florida (1977), 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393, 402.) However, in Gardner the court was concerned with the possibility of caprice and emotion during the sentencing phase of the trial when the sentencing body actually makes the decision to impose the death penalty. Since we are here concerned with the prosecutor's decision whether to seek the death penalty, we do not find Gardner helpful. The defendant's argument must stand or fall under Gregg and its companion cases as interpreted by this court in Cousins and followed in Lewis.

The defendant relies on the...