People v. Fayne

October 16, 1998          NO. 5-96-0333

                              IN THE

                   APPELLATE COURT OF ILLINOIS

                          FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,)  Appeal from the 
                                    )  Circuit Court of 
     Plaintiff-Appellee,            )  St. Clair County.
                                    )  
v.                                  )  Nos. 93-CF-786, 93-CF-944,
                                    )       93-CF-945, & 94-CF-66
                                    )
LORENZO FAYNE,                      )  Honorable
                                    )  Michael J. O'Malley,
     Defendant-Appellant.           )  Judge, presiding.  
_________________________________________________________________

     JUSTICE GOLDENHERSH delivered the opinion of the court:
     Defendant, Lorenzo Fayne, was charged in the circuit court of
St. Clair County with five separate charges of first-degree murder
(Ill. Rev. Stat. 1991, ch. 38, par. 9-1(a) (now 720 ILCS 5/9-1(a)
(West 1996))).  In cause No. 93-CF-785, defendant was charged with
the murder of Aree Hunt, age six; in cause No. 93-CF-786, defendant
was charged with the murder of Faith Davis, age 17; in cause No. 
93-CF-944, defendant was charged with the murder of Fallon Flood,
age nine; in cause No. 93-CF-945, defendant was charged with the
murder of Glenda Jones, age 17; and in cause No. 94-CF-66,
defendant was charged with the murder of Latonda Dean, age 14.  The
first case that proceeded to trial was No. 93-CF-785.  In that
case, after a jury trial, defendant was convicted of first-degree
murder in the death of Aree Hunt.  At a separate sentencing
hearing, the jury could not agree that there were no mitigating
factors sufficient to preclude the imposition of the death penalty. 
The trial court subsequently sentenced defendant to natural life in
prison.  Defendant's conviction and sentence were affirmed by this
court in People v. Fayne, 283 Ill. App. 3d 382, 669 N.E.2d 1172
(1996).  
     In one of the remaining untried cases, No. 93-CF-786,
defendant filed a motion to dismiss and to bar a death penalty
sentencing hearing on the basis that the decision not to impose the
death penalty after the murder conviction for the death of Aree
Hunt barred any successive capital sentencing hearing.  Defendant
argued he would be subjected to double jeopardy since in the Aree
Hunt sentencing hearing the State had already presented evidence of
all the murders.  Defendant later filed motions to dismiss in the
other remaining cases, No. 93-CF-944, No. 93-CF-945, and No. 94-CF-
66.  The trial court denied the pretrial motions to dismiss, and
the cases were consolidated for appeal.  The issue we are asked to
address is whether the State is barred from seeking the death
penalty in the remaining four cases pending against defendant when 
the question whether defendant should be put to death was already
decided in No. 93-CF-785 and the jury chose to impose a sentence
other than death.  We affirm.
                              FACTS
     We recite only those facts necessary for an understanding of
this appeal.  On July 24, 1993, defendant was arrested in
conjunction with the murder of Faith Davis, after the East St.
Louis fire department was called to the Davis home to extinguish a
fire.  An investigation of the fire determined that Davis had been
murdered.  A trail of blood led from Davis's home to the home of
defendant's grandmother, where defendant was residing.  After the
police talked to witnesses, defendant was arrested and brought to
the East St. Louis police department for questioning.  The East St.
Louis police department contacted the Illinois State Police to
assist in the investigation.  Ultimately, defendant confessed not
only to the murder of Davis, but also to the murders of four other
victims.  
     The first of the five murder cases to be prosecuted was No.
93-CF-785.  For a full recitation of the facts in that case, see
People v. Fayne, 283 Ill. App. 3d 382, 669 N.E.2d 1172 (1996). 
Defendant, who was age 23 at the time of that trial, asserted an
insanity defense, which the jury rejected by returning a guilty
verdict.  The State sought the death penalty.  A sentencing hearing
was conducted from August 16, 1994, through August 18, 1994.  At
the hearing, the State introduced evidence concerning each of the
four remaining murders with which defendant was charged.  For
example, the State introduced People's Exhibit 39, which contained
five- by seven-inch color photographs of each of the five victims
defendant was accused of killing, along with each person's age,
residence, date of death, manner of death, and location where the
body was found.  Graphic pictures of each of the crime scenes and
the victims were introduced into evidence over defendant's
objection.  In addition to Aree Hunt, defendant's victims were
identified as Fallon Flood, Glenda Jones, Faith Davis, and Latonda
Dean.  
     Flood's body was found on the floor of a local high school in
an abandoned locker room with a belt tightened around her neck and
her underwear around her ankles.  Defendant's statement admitting
to the murder of Flood was introduced into evidence.  In that
statement, defendant admitted that he choked Flood and attempted to
rape her.  
     Glenda Jones died as a result of stab wounds.  Her body was
badly decomposed when it was found.  Jones's body was clothed, but
her bra was turned inside out.  Defendant's statement, in which he
admitted that he stabbed Jones and had sex with her, was admitted
into evidence.  In that statement, defendant stated that he first
approached Jones with a knife but that later she consented to sex
with defendant.  According to defendant, Jones even discussed
starting a relationship with him.  However, something "snapped" in
defendant, and he ended up stabbing Jones.  
     Faith Davis's nude body was found face-down bent over a coffee
table with her knees on the floor and her legs spread apart.  She
had several stab wounds in her upper chest and back.  The crime
scene indicated that she died in one area and then was dragged over
to the coffee table.  A large amount of petroleum jelly was spread
on her buttocks, and she had been sexually assaulted.  Defendant's
statement admitting to stabbing Davis and then returning to
sexually assault her was introduced into evidence.  
     Latonda Dean's nude body was found lying in a bathtub.  She
died as a result of 24 stab wounds, mainly in her chest and
abdomen.  Defendant's statement admitting that he raped and stabbed
Dean was admitted into evidence.  
     Defendant presented a number of witnesses in mitigation.  The
evidence showed that defendant's mother drank heavily and took
drugs throughout her pregnancy with defendant.  Defendant's mother
admitted to hitting defendant in the head as a form of punishment. 
She believed that this was the way to punish a child.  It was not
until after a child care agency intervened and specifically told
her that this was an improper means of disciplining that she
realized that anything was wrong with it.  Defendant's mother, a
crack cocaine addict and an alcoholic, beat defendant with anything
within reach, including broom handles and extension cords. 
Defendant's biological father was found in a Veterans
Administration mental hospital and is a diagnosed schizophrenic. 
Defendant has had virtually no contact with him.  Defendant's
stepfather was  an alcoholic, and he often beat defendant.  On one
occasion, he choked defendant until defendant lost consciousness. 
     Defendant's grandmother and sister testified about the abusive
home environment in which defendant was raised.  Defendant's
grandmother explained that defendant was raped by a neighborhood
boy when defendant was seven years old.  The boy who raped
defendant was approximately four years older.  The police were not
called.  Instead, defendant's stepfather beat him after defendant
told him that he had been raped.  There was testimony that
defendant had been raped on other occasions, usually when he was
serving time in a juvenile facility for one of his many brushes
with the law.  Experts testified that defendant has limited
intellectual abilities and a low IQ.  Defendant suffered brain
damage from the beatings to which he was subjected.  At the
conclusion of the sentencing hearing, the jury could not agree that
there were no mitigating factors sufficient to preclude the
imposition of the death penalty.  The trial judge then sentenced
defendant to natural life in prison.  As previously set forth, we
affirmed in People v. Fayne, 283 Ill. App. 3d 382, 669 N.E.2d 1172
(1996).
     On March 15, 1996, defendant filed a motion to dismiss and to
bar a death penalty hearing in No. 93-CF-786, on the basis that
defendant would be subjected to double jeopardy because the State
had already presented evidence of all five murders in the first
sentencing hearing.  Defendant argued he could not again be exposed
to the death penalty.  Defendant later filed the same motion in the
remaining three cases.  On April 24, 1996, the trial court denied
defendant's motion in No. 93-CF-786.  On June 5, 1996, the trial
court denied defendant's pretrial motion to dismiss in No. 93-CF-
944, No. 93-CF-945, and No. 94-CF-66.  The cases were consolidated
on appeal.  The State moved to dismiss defendant's appeal on the
basis that we lacked jurisdiction.  On June 6, 1998, we denied the
State's motion to dismiss.
                             ANALYSIS
                         I. JURISDICTION
     We first address the State's ongoing contention that this
court has no jurisdiction to hear this appeal.  The State maintains
that we have no jurisdiction under Supreme Court Rule 604(f) (145
Ill. 2d R. 604(f)).  However, the State fails to offer any new
reasons for dismissal not previously considered in our January 6,
1998, order rejecting the State's motion to dismiss.  The State
merely urges us to reconsider our order denying its motion to
dismiss.  As defendant points out, whether the State is barred from
seeking the death penalty in the four remaining cases in which
defendant was charged with separate murders will affect each trial
in numerous ways, including whether potential jurors can be asked
whether they support or oppose the death penalty (see People v.
Cloutier, 156 Ill. 2d 483, 622 N.E.2d 774 (1993)) and how many
peremptory challenges are granted.  In a capital case, 14
peremptory challenges are granted, whereas in cases involving
imprisonment, only 7 are granted.  134 Ill. 2d R. 434(d).  We find
that it would not be a prudent use of judicial resources to wait to
determine the double jeopardy issue until sentences are imposed in
the remaining four cases.  To wait to decide the issue would
promote repetitive litigation and waste judicial resources.  In
addition, Supreme Court Rule 604(f) provides:
               "(f) Appeal by Defendant on Grounds of Former Jeopardy. 
     A defendant may appeal to the Appellate Court the denial of a
     motion to dismiss a criminal proceeding on grounds of former
     jeopardy."  145 Ill. 2d R. 604(f).
We conclude that Supreme Court Rule 604(f) specifically allows this
appeal.  Accordingly, we have jurisdiction over this appeal. 
                       II. DOUBLE JEOPARDY
     Defendant maintains that the principles of double jeopardy and
collateral estoppel bar the State from seeking the death penalty in
the remaining four cases pending against defendant because the
question whether defendant should be put to death was already
decided in No. 93-CF-785 and the jury chose to impose a sentence
other than death.  The earlier proceeding on which defendant relies
is the St. Clair County prosecution for the murder of Aree Hunt. 
In that prosecution, during the first phase of the bifurcated
sentencing hearing the jury found defendant eligible for the death
penalty, but following the second phase of the sentencing hearing,
during which evidence was presented in aggravation and mitigation,
the jury could not agree that there were no mitigating factors
sufficient to preclude the imposition of the death penalty.  The
trial judge then sentenced defendant to natural life in prison. 
Defendant points out that all these murders occurred in the same
county, specifically within a one-mile radius of each other, that
"[t]he State referred to defendant as a `serial sexual offender,'"
and that "all of the murders were part of a pattern of behavior
repeated for sexual gratification that defendant achieved in
conjunction with the person's death."  Defendant admits that the
jury in the first case that went to trial did not have his
convictions in the remaining murders to consider in aggravation,
but he insists that because it had his confessions, as well as
testimony concerning the circumstances of all five murders, the
rejection of the death penalty in the first case tried precludes
the imposition of the death sentence in any of the remaining four
cases.  We disagree.
     In general, a death penalty acquittal bars the State from
seeking the death penalty again on that conviction.  Poland v.
Arizona, 476 U.S. 147, 90 L. Ed. 2d 123, 106 S. Ct. 1749 (1986);
Bullington v. Missouri, 451 U.S. 430, 68 L. Ed. 2d 270, 101 S. Ct. 1852 (1981); People v. Davis, 112 Ill. 2d 78, 491 N.E.2d 1163 
(1986).  The rationale for such a ruling is that the protections
afforded by the double jeopardy clause are applicable to defendants
in such proceedings because of the trial-type nature of a capital
sentencing hearing.  Bullington v. Missouri, 451 U.S. 430, 68 L. Ed. 2d 270, 101 S. Ct. 1852 (1981).  However, our own supreme court
has determined that an earlier decision not to impose the death
penalty for a capital murder conviction does not bar the imposition
of the death penalty in a later case involving a different murder
conviction, even though the earlier sentencing hearing involves the
same aggravating and mitigating factors presented at the later
sentencing hearing.  People v. Page, 155 Ill. 2d 232, 614 N.E.2d 1160 (1993) (Page I); People v. Page, 156 Ill. 2d 258, 620 N.E.2d 339 (1993) (Page II).  
     Page I and Page II involved the same defendant, Patrick Page. 
Page was charged with three separate murders.  His victims were
John Goodman, Andrew Devine, and Charles Howell.  In Page I, the
defendant was convicted in the circuit court of Cook County of,
inter alia, the murder of John Goodman.  During the first stage of
the sentencing hearing, the State presented evidence of the
defendant's conviction in 1988 in Will County for the murder of
Andrew Devine.  That murder occurred sometime in 1985.  Page I, 155 Ill. 2d  at 242, 614 N.E.2d  at 1164.  The jury determined that the
defendant was eligible for the death penalty.  155 Ill. 2d  at 243,
614 N.E.2d  at 1164.  During the second stage of the sentencing
hearing, the State introduced additional evidence of the
defendant's criminal history, including the defendant's confession
to the 1985 murder of Charles Howell in Cook County.  Howell was
murdered in an attempt to cover up the Devine murder.  155 Ill. 2d 
at 243, 614 N.E.2d  at 1164.  The defendant argued that the
principles of double jeopardy and collateral estoppel barred the
imposition of the death penalty in the Goodman murder.  The
defendant relied on the 1988 Will County prosecution in which he
was convicted of the murder of Andrew Devine.  155 Ill. 2d  at 270,
614 N.E.2d  at 1177.  In that prosecution, during the first stage of
the sentencing hearing, the same jury that convicted the defendant
of Devine's murder found the defendant eligible for the death
penalty.  The defendant waived the jury for the second stage of the
hearing, and the trial court refused to impose the death penalty,
imposing instead a sentence of 60 years in the Department of
Corrections.  People v. Page, 196 Ill. App. 3d 285, 553 N.E.2d 753
(1990).  
     In Page I, the defendant argued that the decision not to
impose the death penalty in the defendant's first conviction in
Will County for the death of Devine precluded the imposition of the
death penalty.  Our supreme court disagreed:  "[A] sentencer's
rejection of the death penalty in one case *** [does not]
establish[][,] even on virtually the same record of aggravation and
mitigation, the general inappropriateness of that penalty for other
murders committed by the same defendant.  The issue resolved in a
capital sentencing hearing is not whether the defendant, in
general, is deserving of the death penalty, but whether the
defendant may, and should, be sentenced to death for a particular
offense of murder."  Page I, 155 Ill. 2d  at 272-73, 614 N.E.2d  at
1178.  The court in Page I went on to hold:
          "That the same evidence in aggravation and mitigation might be
     admitted at a subsequent sentencing hearing does not alter our
     view of the matter.
               *** We conclude that the favorable decision rendered in
     the earlier case does not collaterally estop the State from
     seeking, and obtaining, the death penalty here."  155 Ill. 2d 
     at 273-74, 614 N.E.2d  at 1178.  
Likewise, in Page II, our supreme court held that even where a
previous court declined to impose the death penalty based on almost
identical evidence in aggravation and mitigation, the principles of
double jeopardy and collateral estoppel did not bar the imposition
of the death penalty in a subsequent murder trial.  Page II, 156 Ill. 2d  at 285-86, 620 N.E.2d  at 1154.  
     Page II involved the prosecution of the defendant for the
murder of Charles Howell.  After finding the defendant guilty, the
jury found that there were insufficient mitigating factors to
preclude the imposition of the death penalty.  The defendant was
sentenced to death, but the death sentence was stayed pending
direct appeal.  156 Ill. 2d  at 262, 620 N.E.2d  at 343.  The court
in Page II pointed out that there was a difference in the first
case, the Will County case, because even though the sentencing body
heard about the other two murders in which the defendant was
involved, it found that the defendant did not have a significant
criminal history because the defendant had not yet been convicted
of the other two murders.  The Page II court stated, "[W]here the
sentencing body in the instant case considered, in addition to
defendant's confessions to the other two murders he had committed,
defendant's convictions for those murders, the aggravating evidence
was substantially greater than that considered by the Will County
court."  156 Ill. 2d  at 286, 620 N.E.2d  at 354.  The same situation
is presented in the instant case. 
     Here, defendant was prosecuted first for the murder of Aree
Hunt.  During sentencing, defendant's confessions to the four other
murders were introduced, and evidence concerning each of the other
four murders was presented, but defendant had not been convicted of
any other murder.  Furthermore, the characteristics of the five
victims--gender, age, and background--varied from victim to victim. 
While it is true that they were all murdered within a one-mile
radius of each other, the set of facts surrounding each murder was
different.  Accordingly, the only question decided in the first
prosecution was whether defendant should be sentenced to death for
the murder of Aree Hunt.  The question whether defendant should be
sentenced to death for any other of the four murders remains to be
decided.
     Defendant attempts to distinguish Page I and Page II on the
basis that the murders there occurred and were prosecuted in
different counties.  The Devine murder occurred in Will County
(Page I, 155 Ill. 2d  at 242, 614 N.E.2d at 1164), and the Goodman
and Howell murders occurred in Cook County (see Page I, 155 Ill. 2d 
at 238, 614 N.E.2d  at 1160; Page II, 156 Ill. 2d  at 262, 620 N.E.2d
at 343).  We are unpersuaded that this fact in any way makes a
difference which would make Page I and Page II inapplicable in the
instant case.  Relying on Page I and Page II, we find that the
earlier proceeding in which defendant was found guilty of the death
of Aree Hunt but was not sentenced to death does not estop the
State from seeking and obtaining the death penalty in the remaining
four cases.
     For the foregoing reasons, the judgment of the circuit court
of St. Clair County is affirmed.

     Affirmed.

     RARICK and MAAG, JJ., concur.