Richard Morris - Cook County State's Attorney

OCTOBER 2202 SESSION
PRISON REVIEW BOARD
STATE OF ILLINOIS
____________________________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS, )
vs.
)
) Docket No. \
RICHARD MORRIS,
)
) Inmate No. B-65709
)
)
)
____________________________________________________________________________
SUBMITTED TO THE HONORABLE GEORGE RYAN, GOVERNOR
OF THE STATE OF ILLINOIS
______
PEOPLE’S RESPONSE IN OPPOSITION TO PETITION
FOR EXECUTIVE CLEMENCY
______
HEARING REQUESTED
RICHARD A. DEVINE
STATE’S ATTORNEY OF COOK COUNTY
By: JAMES P. MCKAY,
GABRIEL DEMATTEO,
WILLIAM L. TOFFENETTI,

OCTOBER 2202 SESSION
PRISON REVIEW BOARD
STATE OF ILLINOIS
____________________________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS,
vs.
RICHARD MORRIS,
)
) Docket No. \
)
) Inmate No. B-65709
)
)
)
____________________________________________________________________________
I
HISTORY OF THE CASE
Defendant Richard Morris was charged by indictment number 96 CR 123 with
first degree murder, aggravated vehicular hijacking, and aggravated kidnaping, all based
on the death of Mr. Ervin Shorter. He was tried to a jury in the court of the Honorable
Michael P. Toomin and convicted of all charges. Because the People asked for the
imposition of the death sentence a hearing in eligibility was held, and the jury found
defendant eligible. After a hearing in aggravation and mitigation the jury sentenced
defendant to death. Defendant filed a direct appeal to the Illinois Supreme Court, and the
case was argued before the Court on September 11, 2001. A decision is pending.
1

II
FACTS OF THE CASE
On the morning of Saturday, December 2, 1995, Chicago Police Officer Robert
Hanrahan was dispatched by radio at about 7:50 a.m. to the alley behind 1830 West
Newport, on the north side of the city. (R. 1099-1102) He arrived at 7:53, and there he
found the body of a man bleeding profusely from the head. (R. 1102) It was a cold day,
and the man's head was "steaming" where he had sweated. (R. 1103-1104) After calling
for an ambulance and securing the scene, Officer Hanrahan took the man's wallet from
his right, rear pocket, and learned that the victim was Ervin Shorter. This name was
broadcast over the air to other officers in the area. (R. 1105-1106)
Officer Hanrahan
also spoke to the individual who had called in the original report, who told him that he had
heard two gunshots. (R. 1122)
The victim was 58-year-old Ervin Shorter. Mr. Shorter was a laborer for the
Department of Streets and Sanitation, and worked from 10 in the evening to 6 in the
morning. He owned and drove a 1995 Chevy Impala SS, with a license plate of ETM 734.
(R. 1090-1091, 1094-1995)
Mr. Shorter had been killed by two gunshot wounds to the head. One of these
had entered the corner of his right eye, traveled through the brain, and had lodged in the
rear of the skull. This bullet was recovered by the medical examiner. The other gunshot
was to the right temple area.
At about 7:45 Officer Stephen Lotts and his partner, Officer Michael Lopresti,
2

were driving in their squad car, heading west on School Street. They were on tactical
duty, and were just finishing their 12-to-8 a.m. shift and were returning to the station.
(R.131-132; 1181-1182) They were in uniform. They turned left onto Paulina, headed
south toward Belmont Avenue. Directly in front of them was a 1995 Chevy Impala SS.
(R.131-133; 1182-1183) It was very clean and shiny. It appeared "brand new." (R. 147-
148; 1183) This car pulled to the right and stopped at 3250 North Paulina, to the right of
the officers' car. (R. 133, 1183) Two men got out of the car. (R. 133;1184) At trial Officer
Lotts identified defendant Richard Morris as the driver and codefendant Tywon Knight as
the passenger. (R. 1184-1185)
After getting out of the car the two defendants walked across the street, crossing
in front of the police car "so close that they could have almost touched" it. (R. 133; 1186)
The two men made eye contact with the officers and – in the words of Officer Lotts –
"They made direct eye contact with both my partner and I and they just gave us a look
that I have never seen before. . . to me I characterized it as one of surprise and shock,
and fear when they saw us." (R. 134-135, 147;1186) They continued walking past in front
of the police car until they reached the curb. At that point they were at the mouth of an
alley, and there they began to run, eastbound into the alley. (R. 135; 1186)
Officers Lopresti and Lotts pulled their car into the mouth of the alley, got out
and started running after the two defendants. (R. 138; 1187) Officer Lotts yelled at them
to stop, but they did not. The two men climbed over a six-foot chain-link fence instead,
landing on the other side in a yard of a building facing School Street. (R. 138-139, 1188)
Officer Lopresti ran back to the west, toward their car, and Officer Lotts ran eastward until
he saw the two defendants crouching in a gangway between two buildings. (R. 139-140;
3

1189) When Officer Lotts again yelled at them to stop they both took off running, going
northbound through the gangway and onto School Street. (R. 140; 1189-1190) Lotts then
ran back to the police car, where Officer Lopresti had gone. (R. 143; 1190) They were
going to go after the two defendants, but as they drove north on Paulina they saw them
emerge from the mouth of another alley and onto Paulina. (R. 143; 1190) Defendants
Knight and Morris turned onto Henderson Street, running west, and the two police officers
lost sight of them. (R. 143; 1190-1191) Officer Lotts radioed a report of the chase, and
they continued down Henderson looking for the two men.(R. 146)
As they drove west they saw a male white individual, Mr. Charles Leroux,
pointing south, and Officer Lotts saw defendant Knight in the front yard of 1727 West
Henderson, running into the gangway between two buildings. (R. 144-145; 1192, 1175-
1178) Again the officers got out of their car and chased Knight into the gangway. (R. 149;
1192) When Knight fell and tried to get up Officers Lotts and Lopresti tackled him. (R.
150; 1193)
Officer Lopresti testified that after Tywon Knight had been handcuffed he went
after defendant Morris, who had run into the alley south of Henderson. (R. 186-187;1224)
There he met Officer Conley. (R. 1224) They were in the alley for about 30 seconds
when they saw defendant Morris run out from behind some garbage cans. Lopresti
shouted at him to stop, but Morris kept running. (R. 187; 1225) Defendant ran through
another gangway, toward School Street. (R. 188) Defendant crossed School and entered
a yard, and Lopresti lost sight of him for about 20 or 30 seconds. (R. 189) They
eventually found defendant in a garage, hiding under some debris. (R. 191; 1225-1227)
Officer Lopresti testified at the hearing that they had wanted to detain both defendants for
4

questioning as to why they were running from the police, due to the high number of
garage burglaries, theft from autos, and auto thefts in that area. When they had first seen
the officers the defendants had looked at the officers suspiciously and with a look of fear
in their eyes. Then they had run and had failed to stop when ordered. (R. 194-195)
Other officers arrived and took defendant to the 19th District Station at Belmont
and Western. (R. 1194-1195) Officer Lotts then returned to the car the defendants had
parked on Paulina just before the chase had begun. He ran the license plate number,
ETM 734, and was told that it was registered to Mr. Ervin Shorter. (R. 1195) When the
officers opened the trunk of the car they found a number of tools--screwdrivers and
wrenches and the like– and found also that the inside metal and rubber of the trunk had
been damaged. (R. 1197-1198) Officer Clark Mikes, working in uniform and in a marked
squad car, heard the radio communications regarding the chase begun by Officers Lotts
and Lopresti. He immediately drove to the area around school and Paulina, and there he
saw two people running westbound across Paulina towards Henderson. Officer Mikes
got out of his car and ran down School parallel to the chase occurring on Henderson. As
he did so he saw a male black come out of a gangway on the north side of School and run
across the street to the south side and into another gangway. Officer Mikes pursued him
into the back yard of 1752 West School and into the garage there. He was joined by
Officer Lopresti and other police officers. Inside the garage they found the defendant
Richard Morris hiding under a pile of debris. (R. 1280-1284)
Officer Lotts heard over the radio that his partner, Officer Lopresti found the
other defendant, Richard Morris. (R. 1196) Finally, Officer Lotts heard over the radio that
5

Officer Hanrahan had identified the body he had found in the alley as that of Ervin
Shorter. (R. 1196) In a radio conversation with other officers, Officer Hanrahan informed
them that an automobile they were inquiring about belonged to Mr. Shorter. (R. 1107)
After both suspects had been placed under arrest other police officers and
detectives went to the alley behind the 3300 block of North Paulina Street. Along the
chase route they found a chrome-plated, fully-loaded revolver, a set of keys for Mr.
Shorter’s car, a .357 magnum revolver, that contained two fired shells, and which was
later matched ballistically to the bullet removed from Mr. Shorters body. (1254-1255,
1275, 1409) In the dirt near the gun officers found the imprint from the sole of a gym shoe
with a square-notch pattern, that matched the pattern on the bottom of petitioner’s shoes.
(R. 1322)
On the morning of December 2, 1995, at about 7:40 a.m., Ms. Judith Dean was
in her car, driving west on Roscoe toward the intersection of Roscoe and Ashland. (R.
1161) She stopped at a red light at that intersection.(R. 1162) She was in the righthand
lane, ahead of her, in the left lane, there was a "grayish dirty car" and directly in
front of her "a light green clean shiny car." (R. 1163) There were two people in that
car, both young African-American males. The passenger wore a bulky coat and a knit
hat. The driver also had a bulky coat on, and wore a very short hair cut. (R. 1164) As
she sat waiting for the light to turn, she saw four fingers coming out from under the lid
of the truck of the car ahead of her. The lid of the trunk was closed, but she could see
the fingers, "just above the knuckle sticking out at an angle." They were "kind of
wiggling and moving back and forth." (R. 1164-1165) The skin color was black, and it
appeared to be the hand of a male. She looked at the driver of the car next to hers,
6

and "made the motion of a telephone" with her hands, asking if he had a telephone.
He shrugged his shoulders answering that he did not. Looking to the car ahead of her
again, she saw the driver looking in his rearview mirror. She also saw a ratchet handle
sticking out of the trunk, moving back and forth as the hand had done. (R. 1166) The
car jerked forward a little, and the handle disappeared back inside the trunk. When the
light turned green the green car continued west on Roscoe. Ms. Dean turned onto
Ashland. She stopped at a gas station at Ashland and Addison and dialed 911. (R.
1166-1167) That night she saw the story of the car-jacking and murder of Mr. Shorter
on the television news, and she again called the police. She went to the station at
Belmont and Western and spoke to the detectives. They took her into a garage area,
where she identified the car she had seen with the hand sticking out of the trunk.(R.
1168-1169) The car she identified was that of Mr. Ervin Shorter. (R. 1170-1172)
State's Attorney Stephen DiNolfo of the felony review unit was dispatched to
Area Three Violent Crimes, and he arrived there at about 9:45. (R. 1576). There he met
with Detective Ryan and Detective Aikin, who were investigating the death of Ervin
Shorter.(R. 1545) After speaking with the police officers and other witnesses he met
defendant. (R. 1546) Later that night defendant related to Mr. DiNolfo what had
happened that day, and agreed to have Mr. DiNolfo summarize that statement in
handwritten form. (R. 1555)
In this statement defendant told ASA DiNolfo that he lived in Kenosha,
Wisconsin. He was married to Lyda and was friends with "Taz" and Tywon. (R. 1564)
The four of them drove from Kenosha to University Park, Illinois, on December 2, 1995.
Before they left defendant had asked Tywon if he had a pistol, and Tywon said no but he
7

could get one in University Park. Defendant had a .357 pistol. Morris stated that as they
drove he, Taz, and Tywon talked about robbing a bank. He needed some money so he
could go "hide out" in Atlanta with his uncle. He stated that he had some "problems" in
Kenosha. (R. 1565) They drove in Tywon's car, a grey Park Avenue. (R. 1565) When
they reached University Park they stopped at a house where Tywon got a pistol. Then
they drove to another house, where they slept. (R. 1566)
Tywon woke them all early the next morning, and they got into Tywon's car and
drove towards Chicago. Tyson drove, Taz sat next to him, and defendant and Lyda sat in
the back seat. Since defendant and Tyson had the pistols they would be the ones holding
the people in the bank at bay while Taz got the money. Lyda was going to go in first and
"check out" the cameras. (R. 1566) Everyone agreed. (R. 1567)
They pulled off the Dan Ryan Expressway at Garfield Boulevard. As they drove
along Garfield Boulevard they saw a new Chevy Impala in the parking lot of a Kentucky
Fried Chicken restaurant. (R. 1567) Defendant told the others that he thought the owner
of that car was a drug dealer, and that they should rob him of his money and car. Taz and
Tywon agreed. Tywon pulled into the parking lot, and Taz pulled out the .357 that
defendant had hidden in the car. Tywon also had a pistol, either a .32 or .38. (R. 1567)
Tywon pulled up alongside the Impala, and Taz and Tywon got out to take the car and the
victim's money. Defendant woke up his wife and told her to drive, and he got out to help
the others. (R. 1567-1568)
They sat the victim between Taz and Tyson. Tywon drove. Taz gave the .357
back to defendant, and sat in the back seat of the Impala, to keep the victim "under
control." Lyda drove Tyson's car and followed them. (R. 1568) Defendant told Tywon to
8

drive down the street and into an alley (R. 1568) There they forced the owner of the
Impala into the trunk of his car. Defendant then got back into the Impala, this time to
drive. Taz sat next to him, and Tywon got in the Park Avenue with Lyda. (R. 1569) They
drove back onto the expressway, and headed west on 290 until they got off on Ashland
Avenue. (R. 1569)
Again they pulled over, and defendant told the others that he was looking for a
"place to do" the owner of the Impala, meaning a place to kill him. (R. 1570) Defendant
was now driving the Park Avenue, with Taz and Tywon following in the Impala. They
drove north on Ashland, looking for a bank to rob. When they saw one with a banner
reading, "Open 8 a.m. to noon," he pulled over, and the Impala pulled up along side.
Defendant again told the others that they had to find a place to kill the owner of the
Impala. He also told them that the bank would open in about 20 minutes, and that Lyda
was going to go in and check out the cameras before they robbed it. (R. 1570)
On a side street a few moments later they stopped again, and defendant went
from the Park Avenue to the Impala. Taz and Tywon went back to the Park Avenue.
Defendant had the .357, and he was looking for a place to shoot the victim. He stopped in
one alley, but it was not quiet enough. When he stopped Tywon got back into the Impala
with him. Taz and Lyda followed in the Park Avenue. (R. 1571)
Finally they pulled into another alley and stopped. Defendant determined that
this is where they would shoot the victim. (R. 1571-1572) Defendant got the victim out of
the trunk. Defendant had the .357 pistol out. Tywon stood next to him.(R. 1572) The
summary continued:
Richard Morris states that he orders the owner of the
9

car to his knees. Richard Morris states he owner of the
car starts begging for his life. Richard Morris states that
he had the gun pointed at the owner, and the owner had
his arms shielding his face.
Richard Morris states that the owner of the car
landed on the ground trying to shield his head. Richard
Morris states he aimed at the owner while he laid on the
ground begging for his life and shot him twice. (R. 1572)
Defendant and Tywon got back into the Impala. As they closed the trunk of the
car they noticed damage done to the inside, apparently by the owner trying to escape. As
they pulled out of the alley they saw a police car. They parked the car a short time later,
and as they were doing so, the police pulled up. Defendant and Tywon jumped out of the
car and ran away. As they ran down the alley defendant got rid of the .357 and the keys
to the Impala. (R. 1573)
Defendant told ASA DiNolfo that he killed Ervin Shorter because Mr. Shorter
had seen what he looked like. He told him also that Mr. Shorter had cooperated with
him and did not struggle with him in any way. (R. 1573)
The jury found defendant guilty of first degree murder, aggravated vehicular
hijacking, and aggravated kidnaping. (R. 1869)
Eligibility was premised on the murder
having been committed by defendant himself during the course of a forcible felony. (R.
1917-1918)
At the hearing in aggravation and mitigation the People introduced evidence of
petitioner’ conviction for battery in Kenosha in 1991. Mr. Marcus Cannon had been
beaten by four men, one of whom being defendant Richard Morris. Defendant had struck
Mr. Cannon with his fist and had kicked him. As a result of the beating Mr. Cannon
10

suffered two black eyes, two chipped teeth, swollen forehead, scratches to his body, and
swollen ears. Petitioner was sentenced to probation.
In 1992, petitioner was convicted of resisting a police officer, and was
incarcerated for 90 days
In 1992 petitioner was convictied of possession of a stolen motor vehicle in Lake
County Illinois. Defendant was sentenced to a term of 30 months probation and a term of
180 days in the Lake County Jail. This probation was revoked in April of 1995, and
defendant was resentenced to a term of 5 years in the Department of Corrections. (R.
1970-1972)
Illinois State Trooper Luke Gamalinda testified that on May 7, 1992, he was on
patrol on I-94 in uniform and in a marked car. At about 10:14 that evening he was
dispatched to a report of a car fire north of the Deerfield Plaza. He arrived to find the car
fully engulfed in flames. The driver of the car, defendant, approached the Trooper and
identified himself. Although defendant did not have a driver's license to show Trooper
Gamalinda, the Trooper contacted his radio telecommunicator and asked to check
defendant's name and date of birth. Upon being told that there was a warrant for
defendant's arrest, Trooper Gamalinda took him into custody. (R. 1975-1979)
Trooper Gamalinda cuffed defendant's hands behind his back and placed him
into the front passenger seat of his squad car, belting him in. He then drove defendant to
the Lake County Jail in Waukegan. (R. 1980) At the gate of the jail the trooper got out of
his car and walked to the intercom system. As he was at the door of the sallyport he
heard the door of his car open. Turning, the Trooper saw defendant, with his hands still
cuffed behind him, running away. (R. 1981) Trooper Gamalinda ran after defendant,
11

chasing him about three blocks before tackling him. He held the cuffs with one hand and
grabbed defendant's collar with the other to lift him back to his feet. As he was doing so,
he heard a voice from behind him say, "Fuck you." He tried to turn toward the voice, but
before he could do so he was struck several times in the side of the head and back. (R.
1982-1983) Trooper Gamalinda fell to the ground, still being struck and kicked. He saw
defendant stand up, and he too began to kick the Trooper. They kicked him in the head,
the back, his legs, knees, and ankles. As defendant continued to kick Gamalinda he
continuously cursed the Trooper. He heard one of them say "get his piece." (R. 1983-
1984)
Trooper Gamalinda began to roll over and over along the ground. He was able
to roll far enough so that he could get control of his pistol, sit up, and bring it up in front of
him. He waited for his assailants to touch him again, but defendant and the unknown
attacker ran. (R. 1985)
Trooper Gamalinda was experiencing double vision and vertigo. He was in a lot
of pain. On his way back to the jail he had to sit and rest several times. His knees,
ankles, and legs were in pain, and there was blood running from the side of his head. (R.
1986) An ambulance took the trooper to a hospital. (R. 1987) As a result of his beating,
Trooper Gamalinda missed four weeks of work, and was confined to bed rest for two
weeks.(R. 1988-1989) Defendant eventually plead guilty to the charge of escape resulting
from this incident at the same time he plead guilty to the charge of possession of a stolen
motor vehicle noted above, for a concurrent period of probation of 30 months, the first
180 days of which were to be served in the Lake County Jail. (R. 1998-1999) That
probation was revoked in 1995, and defendant was resentenced to five years in the
1

Department of Corrections. (R. 1999)
In 1993, petitioner was convicted of possession of a sawed-off shot-gun,
possession of a stolen motor vehicle, and escape from custody, all stemming from a
single incident in Racine, Wisconsin. He was sentenced upon conviction to two years'
imprisonment for the weapons charge, two years six months for the escape from custody,
and three years' probation for the charge of operating a vehicle without the consent of the
owner. (R. 2011)
Detective Louis Perri, Lieutenant Thomas Genther, and Detective Robert
Queen, all of the Kenosha, Wisconsin Police Department, testified about the investigation
into the murder of Frederick Jones. Detective Queen testified about conversations he and
Detective Perri had with defendant after defendant had been taken into custody in
Chicago. In a conversation which took place at about 5:28 a.m. on December 3, 1995,
defendant, after acknowledging and waiving his Miranda rights, admitted his complicity in
that killing. After reducing the substance of defendant's statement to writing the officers
offered it to defendant to sign, but he refused, saying that there were some "lies" in it. He
then gave a second statement, but again refused to sign it because it still contained "lies."
Finally, he gave a third statement, which was consistent with his testimony at trial, and
which he signed. (R. 2019-2072)
The parties stipulated that the cause of Jones' death was blunt trauma to the
head with a contributing condition. (R. 2074-2075)
The final witness in aggravation was Linda Shorter, wife of the victim Ervin
Shorter, who read her victim-impact statement into the record from the witness stand. (R.
2075-2079)
2

The jury found that there was no factor in mitigation sufficient to preclude the imposition of
the death sentence. (R. 2426)
3

III
REASONS FOR DENYING THE PETITION
Petitioner asserts that he is entitled to clemency because he did not receive the
benefit of the changes to the Illinois capital sentencing system which have recently been
adopted, proposed or enacted. By relying upon a laundry list of new Supreme Court
Rules, statutes and proposals from the Governor’s Commission on Capital Punishment
which were not available at the time of his trial, petitioner claims that his trial (as well as
that of every other capital defendant in Illinois) was by definition fundamentally unfair.
However, the Illinois Supreme Court has expressly rejected the claim “that every capital
trial has been unreliable and that all appellate review has been haphazard” (People v.
Hickey, ___ Ill. 2d ___, 2001 Ill. LEXIS 1080 at *57 (No. 87286 September 27, 2001)).
Rather, the Court held that the additional safeguards included in its rules governing capital
cases are not retroactively applicable because they “function solely as devices to further
protect those rights given to defendants by the federal and state constitutions” and that
“[a] violation of procedures designed to secure constitutional rights should not be equated
with a denial of those constitutional rights.” Id. at *63, 64.
Thus, the fact that the Court, the General Assembly and the Governor’s
Commission have endeavored to improve the process does not mean that an injustice
would result simply because the recent changes were not applied retroactively to
petitioner’s case. Instead, a true injustice would only result if it were reflexively
determined that petitioner’s trial was fundamentally unfair without any examination of the
proceedings themselves. It is telling, however, that petitioner has not even attempted to
4

demonstrate how the recent changes would have affected the outcome of the
proceedings. Moreover, petitioner ignores the fact that every court which has examined
the proceedings in his case determined that they were fundamentally fair and that he was
not unduly prejudiced in any manner.
Supreme Court Rules
Petitioner asserts that he is entitled to clemency because the new Supreme
Court Rules governing capital cases were not applicable to his proceedings. However, the
Illinois Supreme Court has clearly held that the amendments to its rules are not
retroactively applicable. Hickey, 2001 Ill. LEXIS 1080 at *65.
Adequate Funding
Petitioner asserts that he is entitled to clemency because he was denied
adequate funding to investigate the case and/or to retain the necessary expert witnesses.
However, despite the creation of the Capital Litigation Trust Fund, there is no indication
that any capital defendant in Illinois, particularly those prosecuted in Cook County has
ever been deprived of the necessary funds to investigate or retain appropriate experts.
Rather, courts have denied various requests which are deemed unreasonable or
unnecessary, the same standard which applies for funds under the Capital Litigation Trust
Fund. 725 ILCS 124/15(c). Also, the Cook County Public Defender has significant
resources available for capital litigation. Therefore, the mere fact that the Capital
Litigation Trust Fund was not created until 2000 is irrelevant.
5

Videotaping
Petitioner also seeks clemency because his statement where he inculpated
himself was admitted into evidence even though it was not videotaped, and points out that
under the Governor’s Commission’s proposals both statements and the interrogations
leading up to them should be videotaped. What petitioner fails to recognize is that neither
the Commission nor the governor himself call for the suppression of a statement simply
because it was not videotaped. Rather, even under the Governor’s proposed legislation
(HB3717 & HB2058), such statements will still be admissible if the trial court finds that it
was voluntarily made after considering the totality of the circumstances. Because the trial
judge expressly found that petitioner’s statement was voluntarily made when it denied his
motion to suppress statements, it is clear that the failure to videotape his statement had
absolutely no effect on the fairness of his proceedings. Moreover, because the jury was
instructed pursuant to Illinois Pattern Instruction 3.06-3.07 to consider all the evidence
when determining whether or not petitioner made the statement and how much weight it
should be given, petitioner cannot complain that he was prevented from asserting at trial
that his statement was unreliable and should not be considered.
Eligibility Factors
Petitioner asserts that he is entitled to clemency because he was found eligible
for the death penalty based upon an aggravating factor other than those factors which the
Governor’s Commission has recommended be retained. Specifically, the Commission
6

concluded that the current list of 20 factors is overly expansive and therefore
unconstitutional. Accordingly, it was suggested that the list be reduced to just five factors:
(1) murder of a peace officer or fireman; (2) murder of any person in any correctional
facility; (3) multiple murder; (4) murder accompanied by the intentional infliction of torture;
and (5) murder of a witness, prosecutor, defense attorney, juror, judge or investigator.
However, the Illinois Supreme Court has expressly rejected the Commission’s
logic and held that Illinois’ death penalty statute satisfies the constitutional mandate
because it “genuinely narrows the class of individuals eligible for the death penalty and
reasonably justifies imposition of a more severe sentence on those defendants compared
to others found guilty of first degree murder.” People v. Ballard, ___ Ill. 2d ___, 2002 Ill.
LEXIS 376 at *73 (No. 88885 August 29, 2002) (citing Zant v. Stephens, 462 U.S. 862,
877, 103 S. Ct. 2733, 2742 (1983)). As the Ballard court explained, “there are
innumerable examples of first degree murders that do not fit within any of the statute's
eligibility factors” and A[e]ach provision is narrowly tailored to fit a specific set of facts and
circumstances.” Id., 2002 Ill. LEXIS 376 at *74.
Moreover, each of the aggravating factors represents a determination by the
General Assembly that certain types of murders are so deplorable that the death sentence
may be imposed.
Each one is intended to ensure that the most helpless members of our society (such as
children, the elderly or disabled) are protected against violence or to provide a strong
disincentive for the offender to kill the victim. For example, cold, calculated and
premeditated murders are properly death-eligible because they are limited to situations
where the defendant has carefully planned the murder over an extended period of time,
7

and the availability of the death penalty may be the only thing which prevents these
defendants from deciding to actually kill their victims. As the Illinois Supreme Court stated
“a defendant who contemplates a murder for a substantial period of time, yet still commits
it, is set apart from other murder defendants in a meaningful way.” People v. Williams,
193 Ill. 2d 1, 36, 737 N.E.2d 230 (2000). Similarly, murders in the course of another
felony such as rape or home invasion are properly death eligible to help deter the
defendant from killing the victim. Given these important policy considerations, petitioner’s
request must be rejected.
Decision to Seek Death
Petitioner claims his sentenced should be reduced because the State’s
Attorney’s decision to seek death was made without uniform protocols to guide his
discretion and was not approved by a state-wide review committee. However, [i]t has
long been recognized by th[e Illinois Supreme C]ourt that the State's Attorney is endowed
with the exclusive discretion to decide which of several charges shall be brought, or
whether to prosecute at all. A prosecutor's discretion extends to decisions about whether
or not the death penalty should be sought.” People v. Jamison, 197 Ill. 2d 135, 161-62,
756 N.E.2d 788 (2001). Therefore, any attempt to mandate such a review would
constitute an impermissible restriction on the independence of the various State’s
Attorneys under the Illinois Constitution. Moreover, petitioner does not even allege much
less argue that the decision to seek death in his case was the result of an abuse of
discretion. Accordingly, it must be rejected.
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Statutory Mitigating Factors
Petitioner complains that his jury was not instructed to consider as statutory
mitigating factors the fact that he had a history of extreme emotional or physical abuse
and/or that he suffers from reduced mental capacity. However, although the jury was not
expressly instructed to consider these factors, it was instructed that mitigating factors
include “any reason why the defendant should not be sentenced to death” and that it
should consider all mitigating evidence even if it does not pertain to one of the
enumerated factors. Illinois Pattern Jury Instruction 7C.06.
Allocution
Petitioner also claims that clemency is appropriate because he was denied the
opportunity to make a statement in allocution at his sentencing hearing. However, as the
Illinois Supreme Court stated long ago, “an unsworn statement to the sentencing jury [to
be] consider[ed] along with testimony given under oath and the arguments of counsel
would at the least confuse the jurors, and might also impair their ability to weigh the
aggravating and mitigating factors.” People v. Gaines, 988 Ill. 2d 342, 380, 430 N.E.2d
1046 (1981). Moreover, petitioner was free to testify under oath at his sentencing hearing
to explain why he should not be sentenced to death, but chose instead to rely upon his
witnesses in mitigation and his attorney’s closing argument. Therefore, he was given
every opportunity to present himself to the trier of fact before he was sentenced.
Instruction on Alternative Sentences
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Petitioner believes that his death sentence should be commuted because the
jury was not instructed as to all the possible alternative sentences, including that he could
have been sentenced to as little as 20 years imprisonment. However, except in cases
where the only alternative is mandatory natural life, such a rule would actually serve to
prejudice the defendant. If a jury is told that the defendant could be sentenced to as little
as 20 years (even though such a sentence is highly unlikely), the jury might determine
that the death penalty is necessary to ensure that he is never released into society. It is
for this reason that current Illinois law requires that juries be instructed not to concern
themselves with sentencing issues. Illinois Pattern Jury Instructions 1.01 & 7C.05 The
only exception to this rule is that the jury must be informed where natural life
imprisonment is the only available option. People v. Gacho, 122 Ill. 2d 221, 522 N.E.2d
1146 (1988). Accordingly, despite the Governor’s Commission’s recommendation, the
fairness of petitioner’s sentencing hearing was ensured by not instruction the jury on the
available sentencing options.
Sufficient to Preclude
Petitioner asserts that clemency is warranted because the statutory language
and corresponding jury instruction that after considering all of the evidence that “there is
no mitigating factor sufficient to preclude the imposition of a death sentence” led the jury
to mistakenly believe that the death penalty is mandatory. However, both the Illinois
Supreme Court and the federal courts have consistently rejected any claim that the
statute is confusing and might lead a jury to believe that the death penalty is mandatory.
See People v. Mitchell, 152 Ill. 2d 274, 346, 604 N.E.2d 877 (1992); Silagy v. Peters, 905
10

F.2d 986, 998-99 (7th Cir. 1990). Moreover, because both the prosecution and the
defense argued to the jury about the appropriateness of the death sentence in petitioner’s
case, any confusion in the language of the instruction was negated by the closing
arguments.
Judicial Override
Petitioner asserts that his sentence should be commuted because the judge was
not given the opportunity to override the jury’s decision to impose the death penalty.
Petitioner is wrong, however, because Illinois judges have long had the inherent authority
to grant a new trial or sentencing hearing (or even enter a judgment notwithstanding the
verdict). Because the trial judge at petitioner’s trial denied his post-trial motions, it is
clear that the judge would not have overridden the jury’s verdict.
Supreme Court Review
Petitioner also claims that he is entitled to clemency because the Illinois
Supreme Court failed to consider whether his death sentence was disproportionate,
excessive or otherwise inappropriate. However, because the Illinois Supreme Court has
demonstrated that it will address comparative sentencing arguments whenever they are
raised by defendants in capital cases (see People v. Emerson, 189 Ill. 2d 436, 727 N.E.2d
302 (2000); People v. Palmer, 162 Ill. 2d 465, 491, 643 N.E.2d 797 (1994)) and will
vacate a death sentence if it determines that it is excessive in light of the facts of the case
and the defendant’s background (see People v. Smith, 177 Ill. 2d 53, 685 N.E.2d 880
11

(1997); People v. Blackwell, 171 Ill. 2d 338, 665 N.E.2d 782 (1996)), it is clear that the
only reason the Illinois Supreme Court did not review petitioner’s sentence in such a
manner is because he did not ask the Court to do so.
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CONCLUSION
The evidence of petitioner’s guilt is overwhelming. He was seen driving Ervin
Shorter’s car about five minutes after Mr. Shorter was found murdered and no more than
two or three blocks away. Petitioner and his accomplice panicked when they saw police
and ran, and after capturing and subduing them, the officer found the keys to Mr.
Shorter’s car and the gun that killed him along the chase route. Petitioner confessed his
guilt to an assistant state’s attorney, and signed that confession.
What is equally clear is the evidence of petitioner’s brutality. Less than two days
after he participated in the murder of Frederick Jones, and in an effort to escape
prosecution for that offence, petitioner car-jacked and kidnapped Ervin Shorter. After
placing Mr. Shorter into the trunk of his car, petitioner drove him to an alley. Mr. Shorter,
52-year old working man with a wife and family, and who had done nothing to bring this
upon himself, lay on the ground, begging for his life, covering his face with his arms, when
petitioner coldly and deliberately shot two bullets into this head.
Petitioner is a career
criminal and multiple murderer, and he does not deserve clemency.
For all these reasons, the People of the State of Illinois respectfully request that
this Board and Governor Ryan deny executive clemency to Richard Morris.
Respectfully submitted,
RICHARD A DEVINE
State’s attorney of Cook County
James P. McKay,
Gabriel DeMatteo,
William L. Toffenetti,
Assistant State’s Attorneys
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