{ "id": 3156833, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. SCOTT KELLICK, Appellant", "name_abbreviation": "People v. Kellick", "decision_date": "1984-05-25", "docket_number": "No. 57737", "first_page": "162", "last_page": "181", "citations": [ { "type": "official", "cite": "102 Ill. 2d 162" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "274 Ill. 380", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2407757 ], "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill/274/0380-01" ] }, { "cite": "25 Ill. 2d 491", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5352232 ], "year": 1916, "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/25/0491-01" ] }, { "cite": "32 Ill. 2d 138", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2841263 ], "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0138-01" ] }, { "cite": "51 Ill. 2d 553", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5391473 ], "year": 1965, "pin_cites": [ { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0553-01" ] }, { "cite": "61 Ill. 2d 112", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2965606 ], "year": 1972, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0112-01" ] }, { "cite": "1982 Ill. Laws 2927", "category": "laws:leg_session", "reporter": "Ill. Laws", "opinion_index": 0 }, { "cite": "1981 Ill. Laws 3549", "category": "laws:leg_session", "reporter": "Ill. Laws", "opinion_index": 0 }, { "cite": "54 Ill. 2d 51", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933119 ], "pin_cites": [ { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0051-01" ] }, { "cite": "79 Ill. 2d 454", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070346 ], "year": 1973, "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0454-01" ] }, { "cite": "16 Ill. 2d 364", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2760556 ], "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/16/0364-01" ] }, { "cite": "101 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3161012 ], "weight": 2, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0128-01" ] } ], "analysis": { "cardinality": 1357, "char_count": 33040, "ocr_confidence": 0.741, "pagerank": { "raw": 9.876635242060328e-08, "percentile": 0.5348416065955969 }, "sha256": "cda1c123b72f04f99a8128e2f69187b71037a584f92dacab1916a92b855a72a8", "simhash": "1:b93758946fd93e52", "word_count": 5664 }, "last_updated": "2023-07-14T21:56:05.233628+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. SCOTT KELLICK, Appellant." ], "opinions": [ { "text": "JUSTICE UNDERWOOD\ndelivered the opinion of the court:\nIn a jury trial in the circuit court of St. Clair County, defendant, Scott Kellick, was found guilty of the murder of his half-sister, Jaynee Kellick. Pursuant to section 9\u2014 1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 \u2014 1(d)), the court conducted a separate sentencing hearing to determine whether a sentence of death should be imposed, and defendant was subsequently sentenced to death. The trial court stayed imposition of the sentence (87 Ill. 2d R 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); Ill. Rev. Stat. 1981, ch. 38, par. 9 \u2014 1(i); 87 Ill. 2d R. 603).\nTestimony from defendant, a St. Clair County deputy sheriff, and various Belleville police officers established that at approximately 4 a.m. on July 17, 1982, defendant went to the St. Clair County sheriff\u2019s office to confess to the murder of Jaynee Kellick. The sheriff\u2019s office contacted the Belleville police, and two officers were dispatched to transfer defendant to the Belleville police station. Defendant was not interrogated until after he had arrived at the Belleville station and had received Miranda warnings. However, one of the officers responsible for transferring him testified that, although there was no attempt to initiate any conversation, defendant volunteered the following incriminating statements: \u201cI hope they give me the electric chair,\u201d and \u201cWill you do me a favor, shoot me.\u201d After arrival at the Belleville police station, defendant met with Officers Rokita and Moore, who had been assigned to investigate Jaynee Kellick\u2019s murder, was given the Miranda warnings, and signed a typewritten form waiving those rights. Then, according to testimony of the two investigating officers, defendant\u2019s responses to their questions were summarized in a written statement, which defendant signed after it was read aloud to him.\nAccording to the statement, defendant was driving his car along North Second Street in Belleville during the early evening hours of July 16, 1982, when he ran out of gas. He had no money to buy gas, so he walked to his maternal grandparents\u2019 home at 400 North Second Street, where his sister lived, to borrow money from them. When no one answered his knock and after he saw that their two cars were gone, defendant assumed that they were away for the evening. After entering through an unlocked front door, he called out to announce his presence and, hearing no response, he decided to steal and then sell some of his grandfather\u2019s guns. He took a butcher knife from a kitchen drawer, placed it in his back pocket, and then removed a hammer and screwdriver from another drawer to pry open the padlocked closet where he knew the guns were kept. He had just finished prying open the closet lock when he heard a noise and turned to find his sister standing in the doorway, wearing only a T-shirt. She did not speak to him but instead turned and ran upstairs. Defendant ran after her and followed her into her bedroom. He asked whether she was going to tell their grandfather that he had broken into the closet to steal the guns and Jaynee replied that, yes, she was going to tell. Defendant then ordered her to say nothing about the incident and Jaynee, while stepping backward, lost her balance and fell to the floor. Defendant then stabbed her in the neck with the butcher knife he had taken earlier. He began to walk away but, thinking he heard a noise from the victim, returned and stabbed her repeatedly. He then picked up a table and threw it.\nDefendant ran back down the stairs to the closet, took three of his grandfather\u2019s handguns, placing them and some bullets in a plastic trash bag, and returned the hammer and screwdriver to the drawer where he had found them. He threw the knife outside the kitchen door and, taking the guns with him, walked to his mother\u2019s home at 707 North Second. Before entering the house, he set the bag of guns on the lawn and washed the blood from his hands with a garden hose. He then explained to his mother that he had run out of gas and asked to borrow her van. He drove around in the van for a couple of hours before returning to his mother\u2019s home, where a group of relatives had gathered after hearing that his sister had been killed. He remained there for an indefinite period of time and then drove to the home of his fiance, Mary Neilson, where he was living. He changed clothes there, and when Mary\u2019s child had fallen asleep the couple returned to defendant\u2019s mother\u2019s house, where relatives were still gathered outside. While Mary was inside the house, defendant told his family that he had murdered Jaynee. When Mary came back outdoors, the two went back to her home and defendant, unable to sleep, told his fiance that he had killed his sister and that he had decided to go to the county jail to confess to the crime.\nThe court denied defendant\u2019s motion to suppress his statement and the case proceeded to trial on October 25, 1982. Testimony from Belleville police officers and photographs admitted into evidence corroborated much of defendant\u2019s statement. Officer Klee testified that he was on patrol the evening of July 16 and responded to a call at about 10:30 p.m. directing him to the grandparents\u2019 address. There he discovered the victim\u2019s body, clad only in a T-shirt and lying in a pool of blood, in a second-floor bedroom. He also observed and photographed an overturned table in the room. Officer Schmulbach testified that he, too, was on patrol in a separate car the evening of July 16 and also went to the grandparents\u2019 address in response to a radio dispatch at approximately 10:30 p.m. While investigating the scene, he found and photographed a butcher knife with its blade stuck in the ground near the kitchen door of the grandparents\u2019 home. Officer Rokita\u2019s testimony also revealed that, after he took defendant\u2019s statement, he directed Officer Gramc to further investigate the crime scene.\nOfficer Gramc stated that he found the hammer and screwdriver in the drawer which defendant had described earlier in the questioning and that he viewed the closet door with the torn hasp. His investigation also revealed a screen missing from a bathroom window, and directly below this window, outside the house, he had found a metal crate, underneath which was a sheet of plastic. He checked both the plastic and the metal crate for footprints and found none. He confirmed that police estimated that the murder occurred between 9:40 p.m. and 10 p.m. on July 16.\nOfficer Rokita also participated in the investigation. He testified that he found and photographed a garden hose outside defendant\u2019s mother\u2019s residence. He further stated that on July 17 he recovered a pair of jeans and a pair of boots from defendant\u2019s fiance\u2019s residence, which were transmitted to the Illinois State Crime Lab, along with samples of defendant\u2019s blood and hair. In searching the grandparents\u2019 house he noticed that part of the bathroom window had been removed.\nSt. Clair County coroner, James Radden, testified that blood and hair samples were removed from the victim\u2019s body and sent to the State Crime Lab, where they were analyzed by Dennis Aubuchon, a forensic serologist, along with the items Officer Rokita transmitted. Mr. Aubuchon testified that he found blood on the knife discovered outside the grandparents\u2019 home and on the boots and jeans recovered from defendant\u2019s fiance\u2019s residence, and that he detected hair on the knife and jeans. He then performed a whole blood typing on the blood samples from the victim and defendant. The victim's blood was found to be type A and defendant\u2019s blood type O. Aubuchon identified the blood found on the knife, jeans and boots as type A blood. He also stated that his testing indicated that the hair found on the knife was similar to the victim\u2019s and dissimilar from defendant\u2019s.\nThe last witness to testify for the State was Dr. Beverly Psai, the pathologist who performed the autopsy on the victim\u2019s body. She stated that there were 32 stab wounds on the victim\u2019s neck, anterior and lateral chest wall and extremities, back and fingers. These wounds varied in length from one-quarter inch to three-and-one-half inches and up to three inches in depth. Dr. Psai further testified that the victim\u2019s death was due to acute massive bleeding from the right jugular vein, which had been severed. She also stated that five of the other 31 wounds were life-threatening. Photographs of the victim\u2019s body, the knife, the pried-open closet, the drawer containing the hammer and screwdriver, and the garden hose at defendant\u2019s mother\u2019s home were admitted into evidence, and the State rested.\nDefendant then took the stand in his own behalf. He testified that after lunch on July 16 he worked on his car at his mother\u2019s home, trying unsuccessfully to fit new rims on his tires, and then drove to his father\u2019s house in East St. Louis to ask him for help with the tires. Defendant also asked his father for some amphetamines, which his father did not have, offering him two 750-mg pills of Placidyl instead, a substance which Blakiston\u2019s Gould Medical Dictionary describes as a sedative-hypnotic drug, with a \u201cshort duration of action\u201d (Blakiston\u2019s Gould Medical Dictionary 1057 (1979)). His father also offered him a couple of cans of beer, which defendant accepted before leaving to go back to his mother\u2019s. En route to Belleville he took one of the Placidyls. He returned around 4 p.m., worked on his car, left to eat dinner at his fiance\u2019s home, and then returned to his mother\u2019s to help her move furniture and do further work on his car. He took the second Placidyl and left his mother\u2019s again, this time with the intention of stealing a set of tires from the person who sold him the ill-fitting rims.\nDefendant was driving his car toward West Main on North Second Street when he ran out of gas. He left his car and began walking toward his grandparents\u2019 home at 400 North Second, when two women who lived near his grandparents spotted him and one asked if something was wrong with his car. Defendant explained the situation and continued on to his grandparents\u2019 address, where he knocked on the front door, but nobody answered. He then noticed that their cars were gone and, concluding that no one was at home, he began walking back to his mother\u2019s. It was then that defendant spotted his father driving a pickup truck. He waved for him to stop and asked to borrow money for gas, but his father told him he had none. Defendant\u2019s father asked him if he knew of anyone who had any guns. Defendant at first responded that he did not, but then, upon seeing his car stalled on the street he became angry at being out of gas and without money, so he told his father that his grandpa had some guns and he offered to break into the house to get them. They parked the pickup near the grandparents\u2019 home and then walked down an alley that bordered on their backyard. Defendant\u2019s father pulled a crate under the bathroom window, which defendant then stood on to remove the screen and jump through the window.\nOnce inside, defendant shut the window so his grandparents would be less likely to notice the missing screen and as he did so, he was startled by a noise behind him. He then heard his father whispering to him from the kitchen and defendant asked him why he had come in the house. His father told him not to worry about it and directed defendant to get some tools to pry the lock off the closet where the guns were stored. As defendant placed on a table the hammer and screwdriver he had found, he turned and saw his father holding a knife. Defendant asked his father why he had a knife and was again told not to worry about it and asked to find something in which to carry the guns. Defendant found a plastic trash bag in the kitchen and began walking to the bedroom where the guns were kept when he noticed his father walking in the opposite direction, so he asked him where he was going. The response again was not to worry about it and that defendant should \u201cget the guns and hurry up.\u201d Defendant then pried open the locked closet door, took three guns, and put them in the plastic bag. He shut the door and attempted to make the lock appear untouched before replacing the hammer and screwdriver in the kitchen drawer.\nDefendant then began looking for his father. When no one answered his whispers, he set the bag of guns down, went upstairs and saw his sister lying on the bedroom floor with blood all over her body. This sight stunned him until his father turned to him, wielding the knife, and defendant then began to cry. He asked his father why he did it and backed away as his father began stabbing at him. Defendant shoved a table in his father\u2019s direction, knocking him to the floor and freeing the knife. Defendant picked it up and his father then ran from the room. Defendant first thought of throwing the knife at him but, thinking his father might come back after him with it, thought better of the idea. He shook his sister\u2019s leg and since she did not move, he assumed that she was dead.\nDefendant went back downstairs in time to see his father driving away in the truck. He threw the knife outside and retrieved the bag of guns. Defendant was mad and wanted to \u201cget\u201d his father, so he sat down for a few minutes to try to decide what to do. He finally picked up the gun bag and ran down the alley, throwing the bag under some bushes. He stopped running at his mother\u2019s house and, while under a streetlight, spotted some blood on his right hand, so he washed it, using his mother\u2019s garden hose. Defendant explained to his mother that he had run out of gas and asked to borrow her van. He drove back to pick up the guns and then parked the van on the Belleville town square, where he loaded the guns. Defendant then drove to his father\u2019s house and waited for him to come home.\nHe did not see his father come in, so he left and returned to his fiance\u2019s home. She informed him that his sister was dead and defendant began to cry again. He changed his clothes and, at his fiance\u2019s suggestion, the two went to his mother\u2019s house, where various relatives were gathered. Once he arrived there, defendant felt nervous, so his fiance gave him several sleeping pills. They left again for the Neilson home shortly after defendant\u2019s uncle, who was searching for something in the van defendant had been driving, discovered the guns.\nAs they prepared to go to sleep, defendant admitted to his fiance that he was in the house when Jaynee was killed but stated that he did not kill her. Defendant could not recall whether he told his grandmother and mother, who subsequently appeared at the Neilson residence, whether he was responsible for Jaynee\u2019s death because he was in a \u201cdoped-up\u201d condition from the sleeping pills at that time. After their arrival, defendant decided to go to the county sheriff\u2019s office to confess to the crime. He did so because he was afraid his father \u201cmight come back and get him\u201d and he went there, as opposed to the Belleville police station, because he was afraid the Belleville police would beat him. He was very sleepy during the time he was questioned by the Belleville police. Defendant concluded his testimony by reaffirming that he did not kill his sister, but that his father, Charles Kellick, did.\nOn cross-examination he acknowledged that his signature appeared on all pages of his confession to the Belleville police, but stated that he was not aware of what he had signed and that he did not tell the police the information it contained. He denied asking a Belleville police officer to \u201cdo me a favor and shoot me\u201d or expressing the hope that he would be electrocuted. Defendant stated that he failed to seek medical care for his sister because he thought she was dead and because he had decided to concentrate on \u201cgetting his dad.\u201d He at one point stated that he did not take a \u201cwhole lot\u201d of drugs the day of the murder, but later when questioned as to whether he was \u201chigh on drugs,\u201d defendant responded positively. He further stated that he was with his father between the hours of 9 a.m. and noon on the day of the murder. Following cross-examination, the defense rested.\nThe State called several witnesses in rebuttal, all of whom contradicted defendant\u2019s testimony in regard to his father\u2019s whereabouts on July 16. Charles Kellick, defendant\u2019s father, acknowledged that he had four prior felony convictions and that he was currently on probation. He testified that he was employed by General Railroad and Equipment Services and that he was at work between the hours of 7 a.m. and 3:30 p.m. on July 16. From approximately 8 to 10:30 p.m., he was at the home of his mother-in-law, Bernice Hudson. On cross-examination, he acknowledged that his brother owned a pickup truck, but noted that he did not have access to it because his brother lived in New Orleans. He also stated that he had not resided at his home in East St. Louis since February of 1982 and that he did not leave his mother-in-law\u2019s residence at any time on the evening of July 16.\nThe vice-president of personnel for General Railroad, Cynthia Thompson, identified Charles Kellick\u2019s time card for July 16, which indicated that he had punched in at 6:24 a.m. and out at 3:30 p.m., as one of the type that was regularly used in the course of business at this company. She also identified the initials \u201cE.M.\u201d on the time card as those of the shift foreman, Ed Mayberry, and stated that his initials served as a verification of the hours that Charles Kellick had worked. Ed Mayberry testified that Charles Kellick was one of 15 persons whom he supervised on July 16 and that he would not have initialed the time card had Kellick not been at work during the time specified on the card.\nCharles Kellick\u2019s mother-in-law, Bernice Hudson, testified that between the hours of 8 and 11 p.m. on July 16, Charles Kellick was at her home. Lois White, a friend of Mrs. Hudson\u2019s and a frequent visitor in her home, testified that she was there the evening of July 16 as was Charles Kellick.\nThe State also called James Wentworth, a forensic scientist for the Illinois Department of Law Enforcement and Officer Moore of the Belleville police. Wentworth testified that he was unable to obtain any usable fingerprints from the knife allegedly used to commit the murder. Moore stated that following the questioning session the morning of July 17, he took two Polaroid photographs of defendant, which depicted defendant as free from any signs of physical injury. He testified that no officer had touched defendant. The trial concluded on October 27 and the jury returned a verdict of guilty after 21k hours of deliberation. Defendant waived his right to a jury at the death penalty hearing, which the court proceeded to conduct the same day.\nPrior to the sentencing hearing, the State informed defendant that it intended to rely exclusively on the section 9 \u2014 1(b)(7) aggravating factor (Ill. Rev. Stat. 1981, ch. 38, par. 9 \u2014 1(b)(7)) to prove beyond a reasonable doubt that defendant was eligible for the death sentence. Section 9 \u2014 1(b)(7) at that time provided that a defendant who had attained the age of 18 years and been found guilty of murder could be sentenced to death if \u201cthe murdered individual was under 16 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty.\u201d (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 9 \u2014 1(b)(7).\nAt the hearing, the State indicated that it would rely on the evidence previously adduced at the trial, which included defendant\u2019s testimony that he was 20 years old and a stipulation that the victim was 15 years and 6 months of age at the time of her death. The State also introduced photographs of the victim\u2019s body that had not been admitted at trial and certified copies of defendant\u2019s two theft convictions. The only prosecution witness at the sentencing hearing was Elizabeth Reichert, the victim\u2019s high school civics teacher. Her testimony was offered to prove that the victim was a very promising child, a fact of which her brother must have been aware, according to the State, and thus, the State contended, demonstrated further the brutal and heinous nature of the crime. The victim\u2019s teacher testified that, academically, Jaynee was among the top 5% of all the students she had taught in her 15-year career and that Jaynee had the potential to go on to college.\nDefendant\u2019s evidence consisted of testimony from his maternal grandparents and his mother that if defendant did, in fact, kill Jaynee they forgave him and did not wish that he receive the death sentence.\nIn his motion in arrest of judgment or, in the alternative, for a new trial, defendant grounded his request, in part, on additional evidence discovered by the Belleville police after trial which, he asserted, tended to corroborate his testimony that his father accompanied him to the grandparents\u2019 home the night of the murder. Attached to the motion were two police reports, which indicated that Robert Wayt, of 320 North Second Street in Belleville, observed defendant, accompanied by a person Wayt described as an older, balding, white male, at the grandparents\u2019 address about 20 minutes before he heard someone yell, \u201cShe\u2019s dead, there\u2019s blood all over.\u201d Wayt, who was out on bond at the time, left the area when he heard police cars in the vicinity, and failed to report this incident earlier because he did not think anyone would believe him. Wayt was unable to identify defendant\u2019s father when police showed him a series of 12 photographs of white males in which Charles Kellick\u2019s photo was included.\nOn December 10, 1982, the trial court denied defendant\u2019s post-trial motion, finding that the newly discovered evidence would not have changed the verdict. The court found that the State had proved beyond a reasonable doubt the existence of the section 9 \u2014 1(b)(7) aggravating factor and that there was no evidence to bring defendant within the provisions of any of the statutory mitigating factors. Sentence was then pronounced.\nDefendant first argues that the trial court erred in failing to conduct an evidentiary hearing based upon the allegation in his post-trial motion that the statement of Robert Wayt substantiated defendant\u2019s testimony, creating a reasonable doubt as to defendant\u2019s guilt. He urges that this court reverse defendant\u2019s conviction and remand the case for a new trial or, in the alternative, remand for a full evidentiary hearing to establish the materiality of Wayt\u2019s statement.\nIn People v. Molstad (1984), 101 Ill. 2d 128, this court noted the standard for determining whether evidence discovered after the conclusion of trial warrants a new trial:\n\u201c \u2018To warrant a new trial, the new evidence must be of sueh conclusive character that it will probably change the result on retrial, that it must be material to the issue but not merely cumulative, and that it must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence.\u2019 \u201d (Emphasis added.) 101 Ill. 2d 128, 134, quoting People v. Baker (1959), 16 Ill. 2d 364, 374.\nAlthough the Wayt statement corroborates defendant\u2019s trial testimony that he was accompanied by an older white male when he was outside his grandparents\u2019 home the evening of the murder, it does not confirm defendant\u2019s testimony that this other man was his father. Wayt\u2019s inability to identify Charles Kellick\u2019s photograph is not surprising since at the time he saw the two figures there would have been very little light available, if any, to discern unfamiliar facial features. But the fact remains that even if he had identified the man as defendant\u2019s father, a substantial amount of other evidence indicated that Charles Kellick did not leave his mother-in-law\u2019s residence the evening of the murder. The trial judge, who heard three witnesses testify to this effect and also observed defendant\u2019s demeanor during his testimony, found that Wayt\u2019s statement would not have changed the verdict. In view of this other evidence, we cannot conclude that the court\u2019s decision constituted an abuse of discretion (see People v. Miller (1980), 79 Ill. 2d 454, 465; People v. Reese (1973), 54 Ill. 2d 51, 59) under the standard discussed in Molstad.\nDefendant next raises several arguments, all of which urge that his death sentence be vacated due to various errors that allegedly occurred during his sentencing hearing or due to certain constitutional infirmities defendant suggests exist in the death penalty statute, but in view of the result we reach, we need not address these issues.\nOur analysis of the propriety of defendant\u2019s sentence requires a rather extensive review of the legislative history of section 9 \u2014 l(bX7), the statutory aggravating factor under which defendant was sentenced to death. In the form originally passed by the General Assembly in 1981 as Public Act 82 \u2014 677 (1981 Ill. Laws 3549), this section made a defendant eligible for a death sentence when he killed a child under 16 years of age in a particularly brutal or heinous fashion. This original version of section 9 \u2014 l(bX7) became law on October 29, 1981, with a prospective effective date of July 1, 1982, when both houses of the General Assembly voted to override the Governor\u2019s amendatory veto. (See 5 H.R.J., 82d Ill. Gen. Assem., 1981 Sess. 6625 (hereinafter House Journal); 3 S.J., 82d Ill. Gen. Assem., 1981 Sess. 4791 (hereinafter Senate Journal).) In his amendatory veto message, the Governor had made two recommendations. He first suggested that the victim\u2019s age be lowered to \u201cunder 12 years\u201d to correspond with a then recently enacted amendment to the \u201cFactors in aggravation\u201d section of the Unified Code of Corrections which permits imposition of a more severe sentence if the defendant has been convicted of a felony committed against a person under 12 years of age. (See Ill. Rev. Stat. 1981, ch. 38, par. 1005\u2014 5 \u2014 3.2(b)(3)(i).) In his second recommendation, the Governor proposed various changes in the section 9 \u2014 l(bX6) and 9 \u2014 l(bX8) aggravating factors, matters not addressed in the legislation submitted to him. See 5 H.R.J., 82d Ill. Gen. Assem., 1981 Sess. 6508 \u2014 09 (letter from Gov. James R. Thompson to the Members of the House of Representatives (Sept. 24,1981)).\nThe legislative history indicates that the General Assembly agreed in substance with the changes the Governor had suggested and voted to override his veto only to avoid setting a dangerous precedent by accepting, recommendations legislators considered to be beyond the scope of the Governor\u2019s veto power under article IV, section 9(e), of the Hlinois Constitution (Ill. Const. 1970, art. IV, sec. 9(e)). Official records from each chamber support this analysis. In the House on October 15, 1981, the day that chamber voted to override, several of the original sponsors introduced a new bill (see 5 H.R.J. 6665) incorporating substantially all of the changes suggested in the Governor\u2019s veto message, including lowering the victim\u2019s age to \u201cunder 12 years\u201d in the section 9 \u2014 l(b)(7) aggravating factor. Section 2 of the bill specified as its effective date July 1, 1982, the same effective date fixed in Public Act 82 \u2014 677, which contained the \u201cunder 16\u201d age limitation. (See 1982 Ill. Laws 2927 \u2014 31.) In the Senate, debate preceding the vote on the motion to override reveals that the motion passed because the members of that chamber believed that the Governor had exceeded the scope of this amendatory veto power in suggesting changes unrelated to the matters addressed in the bill submitted to him. (See 82d Ill. Gen. Assem., Transcript of Senate Proceedings, Oct. 29, 1981, at 46-49.) Thus, on October 29, 1981, the day of the Senate override, the \u201cunder age 16\u201d limitation, which was to take effect prospectively on July 1, 1982, was adopted (see Ill. Const. 1970, art. IV, sec. 9(c)), not because the legislators disagreed with the Governor\u2019s recommendation to lower the age, but because they wished to preserve the procedure they considered mandated by the Constitution\u2019s amendatory veto provisions.\nThe second bill, Public Act 82 \u2014 1025, which incorporated the Governor\u2019s changes, was passed by the General Assembly on June 24, 1982, but was not signed by the Governor until December 15, 1982. The progress of the bill had been slowed by an amendment added in the Senate, which provided that all death sentences be carried out by lethal injection. (1 Legislative Synopsis & Dig., 82d Ill. Gen. Assem., 1982 Sess. 1088.) This additional provision prompted the Governor to once again exercise his amendatory veto power. (See 3 H.R.J., 82d Ill. Gen. Assem., 1982 Sess. 4784 (letter from Gov. James R Thompson to the Members of the House of Representatives (Nov. 5, 1982)).) However, this time both houses voted to accept his suggestion that the death-by-lethal-injection provision be deleted (see 3 H.R.J., 82d Ill. Gen. Assem., 1982 Sess. 4893; 3 S.J., 82d Ill. Gen. Assem., 1982 Sess. 3864-65), and the Governor certified this change on December 15, 1982, pursuant to article TV, section 9(e), of our State constitution. Five days earlier, defendant had been sentenced to death under the version of section 9 \u2014 l(b)(7) contained in Public Act 82-677.\nWe recognize that \u201cAn Act in relation to the effective date of laws\u201d (Ill. Rev. Stat. 1983, ch. 1, pars. 1201 through 1206), enacted in 1971 in response to article IV, section 10, of the 1970 State Constitution, provides the general rules for determining when an act becomes effective. Section 1(b) directs that where a bill is passed, as here, prior to July 1, and\u2018\"the effective date stated in the bill is prior to the date the bill becomes law, that effective date is no longer controlling and the bill takes effect upon becoming a law. (Ill. Rev. Stat. 1983, ch. 1, par. 1201(b).) Thus, under the general rule, since the stated effective date of July 1, 1982, preceded by several months the date on which the Governor certified the change in the bill and it became law (see Ill. Rev. Stat. 1981, ch. 1, par. 1205; Ill. Const. 1970, art. IV, sec. 9(e)), the second version of the section 9 \u2014 l(b)(7) aggravating factor, which made defendants eligible for the death penalty if their victims were under 12 years of age, was not yet in effect during the time defendant Kellick was tried and sentenced.\nHowever, this court\u2019s decisions have recognized that the common law of retroactive construction continues to supply an exception to the policy expressed in the statute. (See People ex rel. American Federation of State Employees v. Walker (1975), 61 Ill. 2d 112, 118; Doran v. Cullerton (1972), 51 Ill. 2d 553, 557.) United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 142, provides a summary of the common law in this area:\n\u201cRetroactive legislation is not favored, and as a general rule statutes are construed to operate prospectively unless the legislative intent that they be given retroactive operation clearly appears from the express language of the acts, or by necessary or unavoidable implication. (Emphasis added.)\nApplying this rule in Knight, we determined that a statute signed into law on July 16, 1963, providing that all credit unions pay an annual supervision fee to the State, should operate retrospectively, encompassing the entire 1963 calendar year. See also People ex rel. Kubala v. Kinney (1962), 25 Ill. 2d 491, 495; People ex rel. Kroner v. Abbott (1916), 274 Ill. 380, 387.\nApplying the common law rule stated in Knight, we find the legislative history of Public Acts 82 \u2014 677 and 82\u2014 1025 replete with evidence that the General Assembly intended the latter version of section 9 \u2014 l(b)(7) to operate retrospectively. We therefore hold that because the legislature intended Public Act 82 \u2014 1025 to be retroactively effective to July 1, 1982, 15 days prior to the offense, this case must be governed by the version of section 9 \u2014 l(b)(7) contained in that act (Ill. Rev. Stat., 1982 Supp., ch. 38, par. 9 \u2014 l(b)(7)). Since defendant\u2019s victim was 15 years of age and this version makes a defendant eligible for the death sentence only where the victim is under 12 years of age, defendant\u2019s death sentence must be vacated.\nFor the reasons stated, the judgment of conviction is affirmed and the sentence of death is vacated. The cause is remanded to the circuit court of St. Clair County for the imposition of a new sentence other than death.\nJudgment of conviction affirmed; sentence vacated; cause remanded, with directions.", "type": "majority", "author": "JUSTICE UNDERWOOD" } ], "attorneys": [ "Charles M. Schiedel, Deputy Defender, and Carroll J. King, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.", "Neil F. Hartigan, Attorney General, of Springfield (Mark L. Rotert and James E. Fitzgerald, Assistant Attorneys General, of Chicago, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 57737.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. SCOTT KELLICK, Appellant.\nOpinion filed May 25, 1984.\nCharles M. Schiedel, Deputy Defender, and Carroll J. King, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.\nNeil F. Hartigan, Attorney General, of Springfield (Mark L. Rotert and James E. Fitzgerald, Assistant Attorneys General, of Chicago, of counsel), for the People." }, "file_name": "0162-01", "first_page_order": 174, "last_page_order": 193 }