ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Brunner, 2012 IL App (4th) 100708
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DAVID D. BRUNNER, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-10-0708
Filed April 3, 2012
Rehearing denied May 16, 2012
Held Defendant’s sentence to 55 years’ imprisonment for first degree murder
(Note: This syllabus was upheld over his arguments that the evidence did not show that he
constitutes no part of personally killed the victim and that he was abused and unwanted as a
the opinion of the court child and had mental illnesses, since the jury could have concluded
but has been prepared beyond a reasonable doubt that defendant personally killed the victim in
by the Reporter of the course of robbing her and taking her van, defendant’s claim that he
Decisions for the was convicted of first degree murder under a theory of accountability was
convenience of the unpersuasive, and defendant’s mental or psychological impairment was
reader.)
not inherently mitigating.
Decision Under Appeal from the Circuit Court of Sangamon County, No. 06-CF-518; the
Review Hon. Peter C. Cavanagh, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Karen Munoz, and Martin J. Ryan, all of State
Appeal Appellate Defender’s Office, of Springfield, for appellant.
John Milhiser, State’s Attorney, of Springfield (Patrick Delfino, Robert
J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices Pope and Cook concurred in the judgment and opinion.
OPINION
¶1 In May 2010, a jury convicted defendant, David D. Brunner, of four counts of first degree
murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2006)), robbery (720 ILCS 5/18-1(a)
(West 2006)), and possession of a stolen vehicle (625 ILCS 5/4-103(a)(1) (West 2006)).
¶2 Following an August 2010 hearing, the trial court merged defendant’s first degree murder
convictions and sentenced him to the following concurrent prison sentences: 55 years for first
degree murder, 6 years for robbery, and 6 years for possession of a stolen vehicle.
¶3 Defendant appeals, arguing only that the trial court’s imposition of a 55-year prison
sentence was excessive. Specifically, defendant contends that the court abused its discretion
by imposing that sentence because (1) the evidence did not show that defendant personally
killed the victim and (2) defendant “was abused and unwanted as a child and has had
substantial and long-standing mental illnesses.” We disagree and affirm.
¶4 I. BACKGROUND
¶5 A. The State’s Charges
¶6 Shortly after the police discovered Judy Schermerhorn’s strangled body in her home in
April 2006, the State charged defendant as follows: (1) first degree murder in that defendant
intended to kill Schermerhorn (720 ILCS 5/9-1(a)(1) (West 2006)) (count I); (2) first degree
murder in that defendant knew that his acts would cause her death (720 ILCS 5/9-1(a)(1)
(West 2006)) (count II); (3) first degree murder in that defendant knew that his acts created
a strong probability of her death (720 ILCS 5/9-1(a)(2) (West 2006)) (count III); (4) first
degree murder in that while committing a forcible felony (robbery), defendant caused her
death (720 ILCS 5/9-1(a)(3) (West 2006)) (count IV); (5) robbery (720 ILCS 5/18-1(a) (West
2006)) (count V); and (6) possession of a stolen vehicle (625 ILCS 5/4-103(a)(1) (West
2006)) (count VI).
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¶7 B. Defendant’s Trial
¶8 Because defendant is not challenging the sufficiency of the evidence to sustain his
convictions following his May 2010 jury trial, the facts relevant to this appeal are as follows.
¶9 1. The Evidence Presented by the State
¶ 10 Megan Wanless testified that she was introduced to defendant in the early morning hours
of April 29, 2006, by defendant’s cousin, Terry Fairclough. Because defendant had crack
cocaine and cannabis, Wanless decided to “hang out” and “party” with him. Several hours
after driving to a lake to consume drugs, defendant drove to a local pawnshop where he sold
silver flatware that he retrieved from the car’s trunk. Thereafter, defendant drove to a home.
While in the driveway of that home, defendant told Wanless that two days earlier, he had an
argument with the owner of the home that ended when he strangled her to death. (Wanless
later identified an exhibit that depicted Schermerhorn’s home as the home she visited.)
¶ 11 Wanless entered the home with defendant, explaining that she did not believe defendant’s
story. Once inside, defendant searched for money and jewelry. Wanless followed defendant
into a bedroom and noticed a lump on the bed that she believed was a pile of blankets.
Defendant eventually found $30 in a checkbook. Defendant then drove Wanless to a motel
where he rented a room, and they consumed drugs. The next morning, defendant returned to
the home. As she sat in the car, Wanless later observed defendant leave the home, carrying
jewelry and “egg-shaped” ornaments. After selling jewelry to a pawnshop, defendant drove
Wanless to her friend’s home. After a short time there, defendant became upset because
Wanless would not show him the drugs she had received. As defendant left the home without
Wanless, he backed the rear end of the car into a pole, shifted the car into drive, and hit a
stop sign and a fence.
¶ 12 Police responded to a dispatch regarding defendant’s accident, and upon arriving,
observed defendant–who appeared unconscious–in the driver’s seat. A preliminary
investigation revealed that the car defendant had been driving was registered to
Schermerhorn but displayed stolen license plates. As police continued their investigation,
defendant exited the car and fled, but police quickly apprehended him. Paramedics later
transported defendant to a hospital.
¶ 13 Wanless gave the police defendant’s driver’s license, explaining that she had it because
defendant kept losing it during the two days she was with him. Wanless then asked if she
could retrieve her possessions from the car. When an officer opened the car’s trunk to
retrieve Megan’s poncho, he found two bags of jewelry, flatware, figurines, and
Schermerhorn’s driver’s license. Concerned that Schermerhorn may have been burglarized,
officers drove to the address on Schermerhorn’s license. After their knocks at the front door
went unanswered, officers entered the home through an unlocked window and found
Schermerhorn’s decomposing body on a bedroom mattress wrapped tightly in blankets. After
an officer removed a portion of the blankets, he testified that Schermerhorn’s head was
wrapped in a plastic bag as if she was wearing a shower cap and that she had been gagged.
¶ 14 A forensic pathologist testified that (1) Schermerhorn’s hands and feet were separately
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bound by cloth material; (2) an electrical cord and cloth material were wrapped around her
neck; (3) she was gagged by a piece of cloth that wrapped around her face, ending in a knot
located at the back of her head; and (4) her entire body was wrapped in layers of blankets and
bedding secured by electrical cords and a sash. The pathologist opined that Schermerhorn’s
death was caused by “ligature strangulation,” with the possibility that the plastic bag placed
over her head had contributed to her death by depriving her of oxygen.
¶ 15 The State elicited testimony from several witnesses that corroborated Wanless’s
testimony and showed that on April 28, 2006, defendant sold Fairclough a computer in
exchange for drugs. The State’s evidence also revealed that the computer defendant sold
belonged to Schermerhorn, and a deoxyribonucleic acid (DNA) analysis could not exclude
defendant as the contributor of DNA recovered from a sash used to secure a blanket to
Schermerhorn’s torso.
¶ 16 Thereafter, the trial court admitted three digital recordings of interviews police conducted
with defendant. In those interviews, defendant provided the police with differing
explanations regarding Schermerhorn’s death, and he did so in the following order: (1)
Schermerhorn had received threats from a man she hired who eventually stole her
prescription pills; (2) during late April 2006, defendant often stopped by Schermerhorn’s
home and each time that she was not there, he would steal her belongings–including a
computer–to support his drug habit; (3) defendant and his friend, “Lorenzo,” devised a plan
to rob Schermerhorn to cover his drug debts, which resulted in her unintentional death; and
(4) defendant strangled Schermerhorn and tied her up because she threatened to use her
organized-crime connections to harm his former girlfriend. (The digital recordings were
played for the jury.)
¶ 17 2. The Evidence Presented by Defendant
¶ 18 Defendant testified that he met Schermerhorn in February 2006 through his former
girlfriend, who cleaned Schermerhorn’s home. Schermerhorn worked from home, selling
cosmetic products, and planned to sell jewelry over the Internet. Over the next two months,
defendant became friends with Schermerhorn, assisting her by performing landscaping and
home maintenance jobs. On April 27, 2006, Schermerhorn told defendant that a large amount
of her jewelry was missing. Defendant admitted to her that he took the jewelry. To make
amends, defendant stated that he entered into an agreement with Schermerhorn to defraud
her homeowner’s insurance provider by claiming that she had been robbed. Before defendant
left Schermerhorn’s home to return a van he borrowed from his cousin, Joey Brunner, she
insisted that he return that night so that they could finalize their plans.
¶ 19 After smoking crack cocaine with Joey, defendant and Joey returned to Schermerhorn’s
home where they finalized a plan to tie Schermerhorn up, ransack her home, and
anonymously report the burglary to the police. Defendant would then sell the stolen items out
of state and provide Schermerhorn a portion of the proceeds to financially support her until
her insurance check arrived. Defendant stated that after Schermerhorn agreed with the plan,
he started rummaging through her home while Joey tied her up. A short time later, defendant
informed Schermerhorn that they were leaving and she responded with a “muffled” sound.
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¶ 20 Defendant recounted that as he drove away, Joey “flipped out” unexpectedly, and begged
him to forget about reporting the robbery because Joey thought he may have killed
Schermerhorn when he tied her up. Instead of calling 9-1-1, defendant drove Joey back to his
home, returned to check on Schermerhorn, and confirmed that she was dead. Defendant then
wrapped Schermerhorn’s body in blankets to prevent her dog from “feeding” on her body.
¶ 21 Defendant explained that initially, he did not want to implicate Joey because he was
“family” but after “sobering up” and “realizing exactly what just happened,” he decided that
“it’s not fair to [Schermerhorn], to have who really killed her runnin[g] around.” Defendant
also (1) claimed that his videotaped explanations were lies and (2) acknowledged that he
continued stealing from Schermerhorn’s home after her death.
¶ 22 3. The Trial Court’s Instruction to the Jury on Accountability
¶ 23 In addition to the jury instructions the trial court provided regarding the propositions the
State was mandated to prove beyond a reasonable doubt to sustain guilty verdicts on the
counts charged, the court also instructed the jury on Illinois Pattern Jury Instructions,
Criminal, No. 5.03A (4th ed. 2000), entitled, “Accountability–Felony Murder.” Specifically,
the court informed the jury as follows:
“To sustain the charge of first degree murder, it is not necessary for the State to show
that it was or may have been the original intent of the defendant or one for whose
conduct he is legally responsible to kill the deceased, … Schermerhorn.
It is sufficient if the jury believes from the evidence beyond a reasonable doubt that
the defendant or one for whose conduct he is legally responsible, combined to do an
unlawful act, such as to commit Robbery, and that the deceased was killed by one of the
parties committing that unlawful act.”
¶ 24 4. The Jury’s Verdict
¶ 25 On this evidence, the jury returned guilty verdicts on all six counts.
¶ 26 C. Defendant’s Sentencing Hearing
¶ 27 1. The Evidence Presented by the State
¶ 28 At defendant’s August 2010 sentencing hearing, a retired police officer testified that in
January 1992, defendant stabbed Kenneth Logan–a person he had known for about a
year–twice in the stomach. In March 1992, defendant pleaded guilty to aggravated battery
and was later sentenced to 30 months’ probation.
¶ 29 Detective Ryan Simms, the officer who investigated Schermerhorn’s death, testified that
in August 2006, defendant’s cousin, Nicole Meredith, provided him a letter that defendant
wrote to her. In his letter, defendant asked Meredith to contact his lawyer to confirm a story
he heard while in jail that Joey bragged to Meredith how Joey had murdered Schermerhorn.
The letter provided a detailed account of the story Joey purportedly told Meredith regarding
Schermerhorn’s death. (Defendant’s written account of Joey’s admission mirrored his May
2010 trial testimony.) Defendant also requested that Meredith not discuss his letter with
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anyone but his lawyer and to destroy the letter after she finished reading it. Simms also
described the content of a second letter defendant wrote to Meredith in July 2010, in which
defendant expressed his rage upon learning that Meredith provided Simms the August 2006
letter. (Simms had earlier read defendant’s August 2006 and July 2010 letters to the jury, and
the trial court later admitted those letters into evidence.)
¶ 30 Defendant’s August 2010 presentence investigation report (PSI) listed the following
felony convictions, which were in addition to defendant’s 1992 conviction for aggravated
battery: (1) in March 2000, four years in prison for three separate felony theft convictions;
(2) in July 2002, three years in prison for felony theft; and (3) in May 2004, 4 1/2 years in
prison for theft by deception.
¶ 31 Defendant’s PSI also provided the following synopsis of his “mental or emotional”
condition:
“The defendant has had a psychiatric history with conduct disorders, problems as an
adolescent[,] and a continuous issue with depression. His history of depression has
caused sleep disturbances and past suicidal thoughts. He was first admitted to a
psychiatric hospital at approximately age 12 or 13 … for behavioral problems. At
approximately 16 or 17, the defendant was again hospitalized … for overdosing on
[a]spirin due to being very depressed. On February 1, 1998, the defendant … received
a diagnosis for a Major Depressive disorder with substance abuse problems. To date, the
defendant reported that he currently takes Wellbutrin for his depression and has received
approximately 3 months of counseling for depression while in custody.”
¶ 32 2. The Evidence Presented by Defendant
¶ 33 The trial court admitted a forensic psychiatric evaluation conducted by Terry M. Killian,
clinical assistant professor of psychiatry at Southern Illinois University School of Medicine.
Killian’s “principal diagnosis” was that defendant suffered from chronic and severe cocaine
dependency. In his written evaluation, Killian recommended to the court that defendant’s
“life has been significantly disrupted by many things[,] which should be kept in mind in
disposition [sic] of this case.” Killian suggested that the court take into account the following
“mitigation issues”: (1) the abuse and neglect defendant suffered during his childhood, (2)
defendant’s undiagnosed attention deficit hyperactivity disorder, (3) defendant’s lifetime
history of depression, (4) defendant’s mild post-traumatic stress disorder, (5) defendant’s
severe and chronic cocaine dependence, and (6) defendant’s severe impairment at the time
of the crime.
¶ 34 3. The Sentenced Imposed by the Trial Court
¶ 35 At the sentencing hearing, the trial court stated that it had considered (1) the evidence
presented at defendant’s May 2010 trial, (2) the PSI, (3) the victim-impact statements, (4)
the evidence and exhibits presented at the sentencing hearing, and (5) the parties’ arguments.
In addition, the court noted that it had carefully considered Killian’s psychiatric report
regarding defendant’s childhood, abuse, and depression. The court then stated the following:
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“[The court] note[s] that it was argued that the Defendant was very clearly given a
chance, but it is clear from the Defendant’s statement that … Schermerhorn gave the
Defendant … more than one chance, and in fact, … the jury found that it was clear that
… you were driven by an addiction, in that in your time of need, time of desperation,
you went straight over to [Schermerhorn’s] house to seek out help, and she was the one
person, the one friend … you thought might still be there for you, who might potentially
help you. What’s clear is that when you did go to … Schermerhorn’s house, the door
was always open, you’ll recall saying. [Despite] her response …, you did turn on her,
and you took her life. The jury had found that, and you then proceeded to systematically
loot her home and drive around in her car over the next couple of days as if these were
your items and your car, and that absolutely nothing was wrong, as … Schermerhorn
lay dead in her own bed. So that’s what was proved at trial, and [Schermerhorn] was the
one person who admittedly gave you a chance.”
Thereafter, the court imposed the following concurrent prison sentences: 55 years for first
degree murder (count I), 6 years for robbery, and 6 years for possession of a stolen vehicle.
(The court did not sentence defendant on count II, III, or IV, finding that those counts had
merged into his conviction on count I.)
¶ 36 This appeal followed.
¶ 37 II. THE TRIAL COURT’S SENTENCE
¶ 38 Defendant appeals, arguing only that the trial court’s imposition of a 55-year prison
sentence was excessive. Specifically, defendant contends that the court abused its discretion
by imposing that sentence because (1) the evidence did not show that defendant personally
killed Schermerhorn and (2) defendant “was abused and unwanted as a child and has had
substantial and long-standing mental illnesses.” Defendant maintains that the court did not
sufficiently consider these contentions and that they constitute mitigating factors against the
imposition of such a harsh sentence. We address defendant’s contentions in turn.
¶ 39 A. The Standard of Review
¶ 40 The sentence imposed by a trial court is granted great deference because the court is
generally in a better position than a reviewing court to weigh factors such as the defendant’s
credibility, demeanor, general moral character, mentality, social environment, and habits.
People v. Calabrese, 398 Ill. App. 3d 98, 126,
924 N.E.2d 6, 29 (2010). This deference
provides a trial court the latitude to impose a sentence that falls within the statutory range
prescribed for the offense. People v. Perkins, 408 Ill. App. 3d 752, 763,
945 N.E.2d 1228,
1238 (2011). A sentence that is within statutory limits is excessive and, thus, an abuse of the
court’s discretion only when it is greatly at variance with the spirit and purpose of the law,
or manifestly disproportionate to the nature of the offense. See People v. Luna, 409 Ill. App.
3d 45, 52,
946 N.E.2d 1102, 1110 (2011).
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¶ 41 B. The Statutory Aggravating and Mitigating Factors
¶ 42 1. The Statutory Mitigating Factors
¶ 43 Section 5-5-3.1 of the Unified Code of Corrections (Unified Code), entitled, “Factors in
Mitigation,” provides the following sentencing guidance:
“(a) The following grounds shall be accorded weight in favor of withholding or
minimizing a sentence of imprisonment:
(1) The defendant’s criminal conduct neither caused nor threatened serious
physical harm to another.
(2) The defendant did not contemplate that his criminal conduct would cause or
threaten serious physical harm to another.
(3) The defendant acted under a strong provocation.
(4) There were substantial grounds tending to excuse or justify the defendant’s
criminal conduct, though failing to establish a defense.
(5) The defendant’s criminal conduct was induced or facilitated by someone other
than the defendant.
(6) The defendant has compensated or will compensate the victim of his criminal
conduct for the damage or injury that he sustained.
(7) The defendant has no history of prior delinquency or criminal activity or has
led a law-abiding life for a substantial period of time before the commission of the
present crime.
(8) The defendant’s criminal conduct was the result of circumstances unlikely to
recur.
(9) The character and attitudes of the defendant indicate that he is unlikely to
commit another crime.
(10) The defendant is particularly likely to comply with the terms of a period of
probation.
(11) The imprisonment of the defendant would entail excessive hardship to his
dependents.
(12) The imprisonment of the defendant would endanger his or her medical
condition.
(13) The defendant was mentally retarded as defined in Section 5-1-13 of [the
Unified] Code.
(b) If the court, having due regard for the character of the offender, the nature and
circumstances of the offense and the public interest finds that a sentence of imprisonment
is the most appropriate disposition of the offender, or where other provisions of this Code
mandate the imprisonment of the offender, the grounds listed in paragraph (a) of this
subsection shall be considered as factors in mitigation of the term imposed.” 730 ILCS
5/5-5-3.1 (West 2006).
Thus, section 5-5-3.1 of the Unified Code requires a trial court to consider the 13
aforementioned mitigating factors listed, if present, in mitigation.
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¶ 44 2. The Statutory Aggravating Factors
¶ 45 Section 5-5-3.2(a) of the Unified Code, entitled “Factors in Aggravation,” sets forth 22
factors that a trial court is required to consider, if present, in aggravation. In particular,
section 5-5-3.2(a) provides, in part, the following:
“(a) The following factors shall be accorded weight in favor of imposing a term of
imprisonment or may be considered by the court as reasons to impose a more severe
sentence under Section 5-8-1:
(1) the defendant’s conduct caused or threatened serious harm;
(2) the defendant received compensation for committing the offense;
(3) the defendant has a history of prior delinquency or criminal activity;
(4) the defendant, by the duties of his office or by his position, was obliged to
prevent the particular offense committed or to bring the offenders committing it to
justice;
(5) the defendant held public office at the time of the offense, and the offense
related to the conduct of that office;
(6) the defendant utilized his professional reputation or position in the community
to commit the offense, or to afford him an easier means of committing it;
(7) the sentence is necessary to deter others from committing the same crime;
…
(12) the defendant was convicted of a felony committed while he was released
on bail … pending trial for a prior felony and was convicted of such prior felony,
or the defendant was convicted of a felony committed while he was serving a period
of … mandatory supervised release …;
(13) the defendant committed or attempted to commit a felony while he was
wearing a bulletproof vest.” 730 ILCS 5/5-5-3.2(a) (West 2006).
The majority of the remaining 13 statutory aggravating factors listed under section 5-5-3.2(a)
of the Unified Code pertain either to the (1) age, medical condition, race, gender, or
employment status of the victim; (2) the defendant’s personal or professional relationship to
the victim; or (3) where the crime was committed, which includes, in part, churches, nursing
homes, or day-care facilities. 730 ILCS 5/5-5-3.2(a) (West 2006).
¶ 46 C. Defendant’s Excessive-Sentence Claims
¶ 47 1. Defendant’s Claim That the Evidence Did Not Show
That He Personally Killed the Victim
¶ 48 As previously stated, defendant contends that the trial court abused its discretion by
imposing a 55-year sentence because the evidence did not show that defendant personally
killed the victim. Specifically, defendant asserts that the absence of direct evidence that he
planned to kill Schermerhorn or personally kill her was a mitigating factor that the court did
not sufficiently consider and militated against the imposition of such a harsh sentence. We
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reject defendant’s contention.
¶ 49 Although the plain language of sections 5-5-3.1 and 5-5-3.2(a) of the Unified Code
mandates that, if present, the trial court must consider the enumerated 13 mitigating and 22
aggravating factors, respectively, in determining a sentence of imprisonment, those factors
are not an exclusive listing that prohibits a court from considering any other relevant
sentencing factor.
¶ 50 In People v. Ward, 113 Ill. 2d 516, 525,
499 N.E.2d 422, 425 (1986), the supreme court
rejected the defendant’s argument that the trial court erred by considering his claims of
innocence as an aggravating factor. In so doing, it provided the following guidance:
“The imposition of a criminal sentence should not be reduced to a litany of accepted
and approved but meaningless words and phrases. In determining the appropriate
sentence, the trial judge must consider all matters reflecting upon the defendant’s
personality, propensities, purposes, tendencies, and indeed every aspect of his life
relevant to the sentencing proceeding. [Citations.] In some instances and under certain
factual circumstances, a continued protestation of innocence and a lack of remorse may
convey a strong message to the trial judge that the defendant is an unmitigated liar and
at continued war with society. Such impressions garnered by the trial judge from the
entire proceeding are proper factors to consider in imposing sentence. This court has held
that it was not improper for the trial court to consider its perception of the defendant’s
perjury in fixing the penalty to be imposed. [Citation.] We believe that the impact of the
defendant’s testimony and statement upon the trial judge, assessed in light of the other
information revealed during the course of the trial and the sentencing hearing, can hardly
be said to be irrelevant to an appraisal of the defendant’s character and his prospects for
rehabilitation.” (Emphasis added.) Ward, 113 Ill. 2d at 527-28,
499 N.E.2d at 426.
See People v. Dowding, 388 Ill. App. 3d 936, 943,
904 N.E.2d 1022, 1029 (2009) (in
determining the appropriate sentence to impose, a trial court may consider as an aggravating
factor the degree of harm to the victim, the manner in which the victim’s death was brought
about, as well as the seriousness, nature, and circumstances of the offense); Perkins, 408 Ill.
App. 3d at 763,
945 N.E.2d at 1238 (citing Ward approvingly for the proposition that a trial
court should not arbitrarily consider a claim of innocence as an aggravating sentencing factor
but under other circumstances, a defendant’s lack of remorse or denial of guilt may be
properly considered by the court with regard to the defendant’s prospects for rehabilitation).
¶ 51 Defendant concedes that he is accountable for Schermerhorn’s murder, but claims that
“who actually killed [Schermerhorn] has relevance to the sentence imposed.” Defendant
posits further, as follows:
“The harsh 55-year prison sentence imposed … would have been appropriate had
[defendant] personally killed (or planned to kill) … [Schermerhorn]. However, there
is no suggestion in the record that [defendant] personally killed her, despite the court’s
erroneous finding at sentencing that [defendant] took [Schermerhorn’s] life.”
¶ 52 Defendant’s analysis regarding the sentence the trial court imposed is consistent with
Ward. We agree that the court could have considered–as an aggravating sentencing
factor–that defendant, a lifetime drug abuser, had callously murdered Schermerhorn, stolen
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her possessions to support his drug habit, and then continually lied about the circumstances
surrounding her death. Indeed, the legislature had addressed this issue, albeit in the context
of the death penalty statute under section 9-1(b)(6)(a)(i) of the Criminal Code of 1961
(Criminal Code), which stated that a defendant who had been found guilty of first degree
murder may be sentenced to death if the murdered individual was killed in the course of
another felony if the murdered individual “was actually killed by the defendant.” 720 ILCS
5/9-1(b)(6)(a)(i) (West 2006). We note that the list of death-penalty-eligibility factors was
listed in section 9-1(b) of the Criminal Code under the heading “Aggravating Factors.” 720
ILCS 5/9-1(b) (West 2006).
¶ 53 First, we find unpersuasive defendant’s underlying claim that the jury found him guilty
of Schermerhorn’s death solely under the theory of accountability. On this record, the jury
could easily have drawn the inferences necessary to conclude beyond a reasonable doubt that
defendant personally killed Schermerhorn. See People v. Washington, 2012 IL 110283, ¶ 60
(the jury’s function is to assess witness credibility, weigh the evidence, resolve conflicting
evidence, and draw reasonable inferences therefrom).
¶ 54 More significantly, the fatal flaw in defendant’s argument that the trial court erred by
imposing a 55-year sentence is his proposed treatment of the absence of an aggravating
factor. Even if we were to accept defendant’s claim that the jury convicted him of first degree
murder under an accountability theory, which we have already concluded we do not, we
reject defendant’s suggestion that the absence of evidence that he personally killed
Schermerhorn–in other words, the absence of a possible aggravating factor–must be
considered by the court as a mitigating factor, resulting in the downward departure from the
sentence the court would have otherwise imposed.
¶ 55 2. Defendant’s Claim That His Sentence Was Excessive
Given His Personal History
¶ 56 Defendant also contends that the trial court abused its discretion by imposing a 55-year
sentence because he “was abused and unwanted as a child and has had substantial and long-standing mental illnesses.” We disagree, noting that the supreme court has previously
considered and rejected such arguments.
¶ 57 a. The Supreme Court’s Decisions in Shatner and Coleman
¶ 58 In People v. Shatner, 174 Ill. 2d 133, 137,
673 N.E.2d 258, 260 (1996), a jury convicted
the defendant of first degree murder, robbery, and arson. After the defendant waived his right
to a jury at his sentencing hearing, the trial court found (1) the defendant was eligible for the
death penalty based on the aggravating factor that he killed the victim in the course of
committing another felony and (2) that no mitigating factors were present to prevent the
imposition of that ultimate penalty. Shatner, 174 Ill. 2d at 138,
673 N.E.2d at 260. Thereafter
the court sentenced the defendant to death. Shatner, 174 Ill. 2d at 138,
673 N.E.2d at 260.
The defendant appealed, arguing, in pertinent part, that the court erred by considering his
history of drug abuse solely in aggravation. Id.
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¶ 59 In rejecting the defendant’s claim, the supreme court stated the following:
“Defendant does not claim that the sentencing judge refused to hear or believed he was
somehow precluded from viewing the drug abuse history evidence as mitigating. Rather,
defendant essentially asserts that the sentencer should have found that defendant’s drug
abuse history in part explained his criminal behavior. Underlying this premise is that
since drugs are partly to blame for his actions, the defendant is somehow less culpable
and should not suffer the ultimate penalty for his criminal behavior. Simply stated, the
sentencing judge was under no legal obligation to subscribe to this suggestion. To the
contrary, the sentencing judge was free to conclude, under the circumstances, that
defendant’s drug history simply had no mitigating value but was, in fact, aggravating.”
Shatner, 174 Ill. 2d at 160,
673 N.E.2d at 270.
¶ 60 In People v. Coleman,
183 Ill. 2d 366, 401,
701 N.E.2d 1063, 1081 (1998), another
death-penalty case, the defendant claimed ineffective assistance of counsel during his
sentencing hearing because defense counsel failed to investigate potential sources of
mitigation. In support of his postconviction petition, the defendant attached several affidavits
from family members, each essentially claiming that the defendant was “the product of an
impoverished, chaotic household in which he was subjected to chronic abuse and neglect”
that eventually caused the defendant to develop a long-term dependence on drugs. Id. The
defendant also attached a psychological evaluation and social history investigation report that
detailed the impairment of his emotional development as a result of his long-term drug use.
Coleman, 183 Ill. 2d at 401-02,
701 N.E.2d at 1081.
¶ 61 In rejecting the defendant’s ineffective-assistance-of-counsel claim, the supreme court
stated that it, as well as other courts, had noted that a history of substance abuse is a “double-edged sword at the aggravating/mitigating phase of the penalty hearing.” Coleman, 183 Ill.
2d at 404,
701 N.E.2d at 1082. In this regard, the supreme court continued, as follows:
“With respect to the proffered evidence of the impairment of defendant’s emotional
development, this court has repeatedly held that ‘information about a defendant’s mental
or psychological impairment is not inherently mitigating.’ [Citation.] As we explained
in [People v. Tenner, 175 Ill. 2d 372, 382,
677 N.E.2d 859, 864-65 (1997)], ‘[a]t
sentencing, a judge or jury considering evidence of this nature might view the
information as either mitigating or aggravating, depending, of course, on whether the
individual hearing the evidence finds that it evokes compassion or demonstrates possible
future dangerousness.’ ” Coleman, 183 Ill. 2d at 406,
701 N.E.2d at 1083.
¶ 62 b. The Substance of Defendant’s Mitigation Claim
¶ 63 Defendant concedes in his brief to this court that he had “a role in [Schermerhorn’s]
death,” but asserts that because he experienced an abusive childhood that he exacerbated by
continually abusing drugs throughout his life, which adversely impacted his mental health,
the trial court should not have imposed a 55-year sentence. Defendant’s assertion is
unpersuasive.
¶ 64 We first note that defendant’s claimed mitigating factors of an abusive childhood,
mental-health problems, and substance-abuse issues are not set forth in the list of mitigating
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factors in section 5-5-3.1(a) of the Unified Code that “shall be accorded weight in favor of
withholding or minimizing a sentence of imprisonment.” 730 ILCS 5/5-5-3.1(a) (West 2006).
Indeed, our review of the 13 mitigating factors reveals that none would apply under the
circumstances in this case. Given that the General Assembly has twice amended section 5-3-
3.1 since the supreme court’s decisions in Shatner and Coleman and has not seen fit to
include a defendant’s mental-health issues among the listed mitigating factors (see Pub. Act
86-903, § 1, eff. Jan. 1, 1990 (1989 Ill. Laws 5001); Pub. Act 91-357, § 247, eff. July 29,
1999 (1999 Ill. Laws 3647, 4588)), we conclude that this omission is no oversight.
¶ 65 As the supreme court noted in Shatner and reaffirmed in Coleman, defendant’s claims
regarding his dire circumstances present a double-edged sword–that is, although defendant
claims that his specific circumstances are mitigating factors, the trial court could have also
considered all, some, or none as mitigating or aggravating factors.
¶ 66 Defendant’s mitigation claim is essentially a plea to this court to give him another chance
by vacating his sentence and remanding for the imposition of a shorter period of
imprisonment because–as in Shatner–he is less culpable as a result of his dismal life history.
Despite his urging to the contrary, however, the following factors support the trial court’s
imposition of a 55-year prison sentence, especially given that defendant has continually
demonstrated–by his criminal history–that he cannot conform his behavior to societal norms:
defendant’s (1) abusive childhood, which defendant cannot change; (2) mental-health issues,
which Killian documented will continue to exist throughout defendant’s life; and (3) severe
and chronic drug dependence, which defendant has demonstrated his unwillingness to curb.
¶ 67 III. CONCLUSION
¶ 68 For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
award the State its $50 statutory assessment against defendant as costs of this appeal.
¶ 69 Affirmed.
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