People v. Pasch, 68977

Citation604 N.E.2d 294,178 Ill.Dec. 38,152 Ill.2d 133
Decision Date01 October 1992
Docket NumberNo. 68977,68977
Parties, 178 Ill.Dec. 38 The PEOPLE of the State of Illinois, Appellee, v. John PASCH, Appellant.
CourtSupreme Court of Illinois

Charles M. Schiedel, Deputy Defender and Allen H. Andrews, Asst. Defender of the Office of the State Appellate Defender, Springfield, and Susan Frisk, law student, for appellant.

Roland W. Burris, Atty. Gen., Springfield, Jack O'Malley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Renee Goldfarb and Judy L. DeAngelis, Asst. State's Attys., of counsel) for the People.

Justice THOMAS J. MORAN delivered the opinion of the court:

Defendant, John Pasch, was charged with two counts of murder and one count of aggravated kidnapping in Cook County. Following a jury trial, defendant was found guilty of the murders of Leslie Shearer and Officer Richard Clark, as well as the aggravated kidnapping of Jean Wiwatowski. After finding defendant eligible for the death penalty based on three statutory aggravating factors, the jury found there were insufficient mitigating factors to preclude imposition of the death sentence. Therefore, defendant was sentenced to death, as well as to a 15-year term of imprisonment for the aggravated kidnapping conviction. The death sentence was stayed (134 Ill.2d R. 609(a)), pending direct appeal to this court (Ill. Const.1970, art. VI, § 4(b); 134 Ill.2d R. 603).

Concerning pretrial procedures, defendant raises as issues whether: (1) the trial court erred in not granting a hearing to determine if promises to defendant, made during the negotiations leading up to his surrender, should be specifically enforced; (2) a Batson hearing is required, as the State peremptorily challenged the only Hispanic venireperson; and (3) defendant's right to an impartial jury had been violated when the trial court refused to excuse for cause three jurors.

Pertaining to the guilt phase of the trial, defendant raises as issues whether: (1) the insanity and the guilty but mentally ill (GBMI) instructions violated due process with their conflicting burdens of proof which might have resulted in the jury's rejecting a GBMI verdict; (2) the GBMI instructions violated due process by failing to place the burden of proof upon the State; (3) defendant's right of confrontation was violated when the State referred to nontestifying experts' opinions during the direct examination of its expert and the cross-examination of defendant's experts; (4) the impeachment of defendant's expert with the conclusions of other experts upon which he did not rely was proper; (5) due process was violated when defendant was forced to give tape recordings of his interview with his expert to the State when he was not allowed to tape-record his interview with the State's expert; (6) the opening and closing statements were inflammatory and denied defendant his right to a fair trial; (7) the cross-examination of a defense witness, Brian Kelly, violated defendant's right of confrontation; (8) defendant was proven guilty beyond a reasonable doubt of aggravated kidnapping; (9) the stricken testimony of Officer Walsh concerning his telephone conversation with defendant upon arrival requires reversal; and (10) the trial court erred in sustaining the State's objection to the question asked of Officer Biebel about what defendant said had caused him to shoot the two people.

Concerning his sentencing hearing, defendant raises as issues whether: (1) the introduction of victim impact evidence denied defendant his eighth amendment right to a fair trial and sentencing; (2) the mitigating Concerning the constitutionality of the Illinois death penalty statute, the defendant raises as issues whether: (1) the statute unconstitutionally places the burden upon a defendant to prove mitigating circumstances; and (2) the death penalty statute results in the arbitrary imposition of the death penalty.

[178 Ill.Dec. 45] evidence [152 Ill.2d 155] precluded the death sentence; (3) the State's argument at sentencing denied defendant due process and the right to a fair sentencing hearing under the eighth and fourteenth amendments; (4) it was proven beyond a reasonable doubt that defendant knew or should have known that Officer Clark had been a peace officer; (5) due process was abridged by Officer Walsh's testimony in the first phase that defendant told him over the phone that he "had material to make gasoline bombs, he had armor-piercing ammunition, and he wanted to kill more policemen"; and (6) the GBMI instruction was reasonably likely to cause the sentencer to disregard defendant's mitigating evidence of his mental state.

The facts of this case are as follows. Defendant was visited by his landlord, Leslie Shearer. During the visit, defendant had a heated conversation with Shearer, then chased him into the yard and shot him several times, killing him. Immediately thereafter, defendant ran next door and struggled with an older woman, Mary Wagner, on the porch of an apartment building that she shared with her sister, Jean Wiwatowski. Wagner was able to escape, but then defendant ran into her apartment carrying weapons. After fleeing, Wagner proceeded to tell a neighbor what had transpired, and that her sister was still in the house with defendant.

Shortly thereafter, police arrived in response to a call indicating that shots had been fired and that a man had been shot. Three officers walked down the street, taking shelter behind parked cars. Defendant shouted that no one should come into the house and then shortly thereafter shot and killed a plainclothes officer, Richard Clark, after which a long standoff ensued.

During the standoff, a full hostage program was put into effect, with the immediate area sealed off, while negotiators talked to defendant. A hostage negotiator recalled making promises to defendant, but does not remember any promises made about the death penalty. Another negotiator stated that defendant brought up the death penalty, but that the negotiator had changed the subject. Both negotiators opined that defendant knew what he was doing. The entire standoff lasted approximately 36 hours, at the conclusion of which defendant and the police agreed on how defendant would surrender. He was then arrested.

At trial, the insanity defense was raised. Defendant presented several photos of his apartment which showed it to be in complete disarray. Several neighbors stated that defendant had been a recluse. Defendant's friend, Al Fleck, stated that, since 1981, the defendant had been "hanging out" with transvestites. The defendant's expert, Dr. Gaspero, a clinical psychologist, stated that, in his opinion, defendant suffered from moderate to severe depression, obsessive compulsive thoughts, and an avoidant personality disorder; that defendant took refuge in his apartment due to his delusions that the world was a threat, delusions which arose from a beating he suffered at the hands of a gang of Hispanic youths a year earlier; that his estranged son's 30th birthday, which occurred on the same day as the shootings, was not a mere coincidence, but was a contributing factor; and that defendant was insane at the time of the shootings. Another neighbor, who lived in the same apartment building as defendant, stated that in the weeks prior, he had heard defendant arguing with himself, repeatedly turning the water on and off, and breathing in an amplified and unusual manner.

The State's expert, Dr. Cavanaugh, a psychiatrist, stated that defendant suffered from mild to moderate depression; that defendant had schizoid personality traits; that defendant had been suffering from a mental illness, dysthymia; that defendant was mildly paranoid; that defendant's condition did not rise to the level of a personality After the jury found defendant guilty of the murders of Shearer and Clark, as well as the aggravated kidnapping of Wiwatowski, the trial proceeded to the sentencing hearing. In the first phase of sentencing, the jury found defendant eligible for death since (1) he had killed two people; (2) one of the persons he had killed was a police officer; and (3) one of the victims had been killed in the course of a felony (i.e., aggravated kidnapping).

[178 Ill.Dec. 46] disorder; that defendant's mental condition did not meet the legal definitions of insanity or guilty but mentally ill; that the other State experts who examined defendant did not agree with Dr. Gaspero's opinions; and that neither defendant's choice of friends, his divorce, his obesity, his filthy apartment, nor the attack by the Hispanic street gang affected his sanity.

In the second phase of the hearing, all of the evidence and testimony from trial was allowed to be used. Defendant's estranged son testified that he had not seen his father in nearly 20 years; that it was significant that the shootings took place on his birthday; and that his father needs help and should not be executed.

Additional relevant facts will be forthcoming as each individual issue is discussed in depth.

PRETRIAL ISSUES

Before trial, the defense filed a motion requesting the specific performance of promises made to defendant during the hostage standoff. According to defendant, the negotiators promised him that if he surrendered, he would not have the death penalty imposed against him, that he would be taken to a mental hospital, and that he would be afforded a lawyer. The State filed a motion to strike, dismiss and deny defendant's motion for specific performance. Subsequently, the defense requested an evidentiary hearing to establish the factual allegations in the motion for specific performance. This request was denied. The court also dismissed the original motion as untimely, even though it had apparently been filed prior to the cut-off date established by the court. Notwithstanding the timeliness problem, the court ruled that the promises given were made under duress, and were...

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