Texas-born drifter, killer is executed
By Cornelia Grumman -
Wednesday, January 21, 1998
Lloyd Wayne Hampton, who five years ago forced his
execution to be called off at the last minute by filing an appeal, was
put to death by lethal injection early Wednesday at Stateville
Correctional Center outside Joliet.
Hampton, the 11th person executed under Illinois'
1977 death penalty law, went to his death accepting full responsibility
for his criminal acts.
"I offer no excuses for the things I have done or
have not done," he said Tuesday."The reasons are irrelevant.
"I've been running from myself since I was a small
boy in Texas, and my 44 years have been filled with intense anger and
rage. I blame no one but myself, and I hope my loved ones will forgive
me for the sorrow I have caused them. If God feels I am worthy of his
forgiveness, I'll soon be with my grandparents, brother and
The Texas-born drifter confessed in 1990 to torturing,
robbing and murdering a 69-year-old widower in a Downstate motel room.
Hampton told a judge he wanted to be executed and waived his right to
all but one appeal.
He wrote letters to Madison County prosecutors
promising to kill a jail guard if he were not executed, and he told
court officials that he enjoyed killing Roy E. "Jasper" Pendleton and
felt no remorse.
But after visiting with his sister and several
friends hours before his first scheduled execution on Nov. 11, 1992,
Hampton expressed a change of heart and had his court-appointed attorney
file an appeal. That put the execution on hold.
Two attorneys, one of whom is a board member of the
Illinois Coalition Against the Death Penalty, visited with Hampton on
Tuesday. No members of Hampton's family had asked to witness the 12:01
a.m. execution, according to Department of Corrections spokesman Nic
Condemned prisoners traditionally are allowed to
choose a last meal, but Hampton wanted only Coca-Cola and unfiltered
Camel cigarettes. In 1992, he requested coffee and cigarettes.
On Feb. 8, 1990, Hampton gained access to Pendleton's
motel room by asking to use the bathroom. Pendleton had been preparing
to make a trip to Las Vegas to visit his dying brother.
Hampton tied the retired janitor with ropes and a
nylon dog leash. He taped his mouth shut and tried to suffocate him. He
burned his eyelids with a cigarette. He stabbed him in the forehead and
left the butcher knife protruding from Pendleton's neck.
After leaving with the victim's suitcase, microwave
and a $500 check that he forced Pendleton to make out to him, Hampton
drove to a bar, where he tried to cash the check and bought everyone a
round of drinks.
He was arrested the next day at a truck stop in Troy,
driving Pendleton's car.
Lloyd Wayne Hampton, 44, coughed as the lethal
chemicals flowed into his body and raised his head once. He was
pronounced dead at about 12:30 a.m.
"I offer no excuses for things I have or haven't
done, and the reasons are irrelevant," he said in a statement
released after his death. "I've been running from myself since I
was a small boy in Texas, and my 44 years have been filled with intense
Hampton was sentenced to die in June 1990. Officers
arrested him as he drove the car of Roy Pendleton, whose body was found
at a hotel that became his home after the death of his wife.
Hampton had tied and gagged Pendleton, then burned his
eyelids with a cigarette and tormented him with a butycher knife before
slashing his forehead and finally plunging the knife into his neck.
Police Chief William Brown said that "he was cool
as a cucumber. No remorse."
A 7th grade dropout, Hampton had spent most of his
life in prison, free for only 4 years since 1973. He was convicted of
torturing a Bakersfield, Calif., woman in 1987.
Lloyd Wayne Hampton
In 1990 Lloyd
Hampton was arrested as he drove the car of Roy Pendleton,
whose body was found at a hotel that had become his home after the death
of his wife.
Lloyd Hampton knocked
on Roy Pendleton's door at the Troy hotel that had been his home since
he was widowed. Hampton asked if he could use the bathroom, then robbed
Roy at knifepoint.
Roy was tortured by Hampton before he was murdered;
his mouth, hands and feet were taped, he was hog-tied with a dog leash,
teased with a chef's knife and his eyelid burned with a cigarette and
forehead slashed before being stabbed to death in the neck. Police said
that "he was cool as a cucumber. No remorse."
A 7th grade dropout,
Hampton had spent most of his life in prison, free for only 4 years
since 1973. Hampton had prior convictions for robbery and assault with
a deadly weapon, after torturing a woman in Bakersfield, California in
1987. He said he murdered Roy because he didn't want to be caught. He
said, "My problem is, always has been, I don't give a damn."
103 F.3d 1338
Lloyd Wayne HAMPTON, Petitioner-Appellant,
Thomas PAGE, Warden, Menard Correctional Center, Respondent-Appellee.
United States Court of Appeals,
Argued Oct. 22, 1996.
Decided Jan. 6, 1997.
Rehearing and Suggestion for Rehearing En Banc Denied March 6, 1997.
Before FLAUM, RIPPLE, and EVANS,
TERENCE T. EVANS, Circuit Judge.
Lloyd Wayne Hampton pled guilty to
three counts of first degree murder in 1990. He waived his right to
a jury at the sentencing hearing and, under the two-phase procedure
of Illinois' death penalty statute, the judge first found that
Hampton was eligible for the death penalty and next that there were
no mitigating factors sufficient to preclude a sentence of death.
Section 9-1 of the Criminal Code of 1961 (Ill.Rev.Stat.1989, ch. 38,
par. 9-1(b)(6) and (c)). A death sentence was imposed.
The three counts of murder to
which Hampton pled guilty arose out of the death by asphyxiation of
69-year-old Roy (Jasper) Pendleton in the motel room in which he
lived in Troy, Illinois.
In a confession, Hampton said he
encountered Pendleton at the motel--either in a hallway or the
parking lot--and asked him for a ride to St. Louis, offering to pay
for the gas if Pendleton obliged. Pendleton said no. He drove off
alone but returned to the motel 10 minutes later and went into his
room. A few minutes later Hampton knocked on Pendleton's door and
asked if he could use his bathroom.
Pendleton, unfortunately, let him in.
Once inside, Hampton told the
elderly Pendleton he was "very foolish" to allow him into the room.
Pendleton must have soon realized just how foolish he was, for
Hampton ordered him to lie down on his bed. Hampton then began going
through Pendleton's belongings. He decided to steal a suitcase and a
microwave oven. Hampton tied Pendleton's wrists and ankles and put
tape over his mouth. Afraid he would get loose, Hampton also put
tape over Pendleton's nose; then Hampton placed his hand over
Pendleton's nose and mouth in an effort to suffocate him.
Under the impression that a dead
body does not bleed (Hampton had done time in a Texas penitentiary,
and the record suggests he picked up this tidbit of information
while a guest of the Lone Star state), Hampton cut Pendleton's
forehead in several places to see if he was dead. The wound bled, so
Hampton placed his hand over Pendleton's mouth and nose for a few
minutes longer. To check again to see whether Pendleton was dead,
Hampton stabbed him in the throat. This time the wound did not bleed.
The butcher knife was stuck in Pendleton's throat when the body was
After the murder, Hampton loaded
the suitcase and the microwave oven into Pendleton's 1978 Pontiac
and drove to Bugg's Lounge, a bar in nearby Livingston, Illinois,
where he tried to cash a $500 check payable to Pendleton. He was not
able to cash the check, but he did buy a round of beer for the
customers in the bar.
He then got back into the car and
drove to a Texaco truck stop in Troy, where he was arrested on an
unrelated charge. The arresting officers recognized the Pontiac as
belonging to Pendleton. Hampton also had a $500 check made out to
Pendleton and keys to two safe deposit boxes registered to Pendleton
at the Troy Security Bank. After the officers confirmed the
ownership to the car, one of them went to the motel and discovered
Pendleton's body in the ransacked room.
Meanwhile, Hampton was questioned
by Troy police officers. He admitted killing Pendleton and gave a
videotaped statement detailing his commission of the crime. During
the subsequent investigation, Hampton's fingerprints were lifted
from the scene, saliva samples consistent with his were taken from
cigarette butts found at the scene, and a spot of blood found on
Hampton's pants was consistent with Pendleton's and inconsistent
Hampton pled guilty to:
intentional murder; murder in the course of a forcible felony, i.e.,
burglary; and murder in the course of a second forcible felony,
armed robbery. He waived a jury trial at his capital sentencing
hearing and was ultimately sentenced to death. At the hearing,
I would say that should I be
sentenced to death I am aware of the Supreme Court ruling in April
concerning appeals filed in behalf of a condemned man, if he doesn't
want those appeals and I would like to state for the record,
although it has been pointed out to me that I have State appeals I
have to go through, once those are over, I don't wish to have my
case appealed by anyone.
Nevertheless, under the automatic
review procedure of the statute, § 9-1(I), an appeal was filed on
his behalf to the Illinois Supreme Court, which affirmed the death
sentence in 1992. People v. Hampton, 149 Ill.2d 71, 171 Ill.Dec.
439, 594 N.E.2d 291 (1992); reh'g denied, June 25, 1992. He then
filed a petition for postconviction relief seeking to set aside his
guilty plea and sentence. The denial of that request was affirmed by
the Illinois Supreme Court in 1995. People v. Hampton, 165 Ill.2d
472, 209 Ill.Dec. 189, 651 N.E.2d 117 (1995); reh'g denied May 30,
His federal habeas corpus petition
pursuant to 28 U.S.C. § 2254 followed. Judge Paul E. Riley of the
Southern District of Illinois denied the petition and Hampton
appeals, raising what boils down to one issue: Did the Illinois
Supreme Court find error in the trial court's reliance on an invalid
aggravating factor but then affirm the death sentence without
reweighing the aggravating and mitigating factors or conducting
federal constitutional harmless error analysis?
The alleged invalid aggravating
factor is that the murder was committed during the commission of a
burglary. Because the motel room was Pendleton's residence, the
charge should have been that the murder was committed during a "residential
burglary." In 1990, Illinois' death penalty statute listed "burglary"
as a factor making one eligible for the death penalty, but omitted "residential
burglary," an omission since corrected. The resolution of this issue
involves our role in evaluating a petition under § 2254, the scheme
set out in the Illinois death penalty statutes, and the
interpretation of that scheme consistent with guidance from the
United States Supreme Court.
Our role in evaluating petitions
pursuant to § 2254 has recently changed. The Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat.
1214, among other things amends § 2254(d) to specify the appropriate
treatment of legal determinations made by a state court:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the
adjudication of the claim--
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.
Because we have found that federal
habeas petitioners do not have legitimate expectations about the
scope of collateral review and that the amendment does not regulate
primary conduct--i.e., it does not change the rules defining or
penalizing crime itself--it is applicable to a petition such as
Hampton's. Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996). We therefore
look to the decision of the state court to see whether it is
contrary to clearly established federal law "as determined by the
Supreme Court of the United States" or whether it is based on an
unreasonable determination of the facts.
The Illinois death penalty statute
provides for a two-phase sentencing determination. Ill.Rev.Stat.1989,
ch. 38, par. 9-1. The first phase is the eligibility phase. During
this phase, the finder of fact, in this case the judge, determines
whether a person is one whom the state may put to death. To be
eligible for the death penalty, a person must have committed first
degree murder and have been at least 18 years old at the time of the
crime. Hampton was 36 years old when he killed Pendleton, and the
crime was, in fact, first degree murder.
In addition to these elements, one
of eight statutory aggravating factors must exist. The aggravating
factor at issue in this case is § 9-1(b)(6), which in pertinent part
provides for eligibility if the victim was killed in the course of
another felony from among those specifically listed, which include
armed robbery and burglary, but not, in 1990, residential burglary.
If a person is found to be
eligible for the death penalty, the proceeding enters the second
phase. At this phase the trier of fact must consider factors in
aggravation and mitigation. The statute lists examples of mitigating
factors and provides that aggravating factors "may include but need
not be limited to those factors set forth in subsection (b)"--that
is, factors establishing eligibility in the first phase of the
Hampton argues that because the
judge characterized burglary as an aggravating factor--when in fact
he was not guilty of burglary, but rather of residential burglary--he
was sentenced on the basis of an invalid aggravating factor. He then
argues that Illinois is what is known in death penalty parlance as a
"weighing state," one in which aggravating factors are weighed
against mitigating factors. If this is true, he argues, then the
scales were improperly balanced against him by the judge's reliance
on an invalid aggravating factor.
The respondent argues that it has
never been decided that Illinois is a weighing state, but even if it
were, the state appellate courts can either reweigh the aggravating
and mitigating circumstances or apply a harmless error analysis.
Hampton does not disagree with the latter proposition but says that
the Illinois Supreme Court failed to do either.
The differences between a weighing
and a non-weighing state are exemplified by the different sentencing
schemes in Georgia and Mississippi. In Georgia, the fact finder is "not
instructed to give any special weight to any aggravating
circumstance, to consider multiple aggravating circumstances any
more significant than a single such circumstance, or to balance
aggravating against mitigating circumstances pursuant to any special
standard." Zant v. Stephens, 462 U.S. 862, 873-74, 103 S.Ct. 2733,
2741, 77 L.Ed.2d 235 (1983).
The finding that an aggravating
circumstance exists does not play any special role "apart from its
function of narrowing the class of persons convicted of murder who
are eligible for the death penalty." Id. In contrast, in Mississippi,
after the fact finder has found a defendant guilty of capital murder
and has found that at least one statutory aggravating factor exists,
it must weigh the statutory aggravating factor or factors against
the mitigating evidence. Stringer v. Black, 503 U.S. 222, 112 S.Ct.
1130, 117 L.Ed.2d 367 (1992).
Illinois courts are the ones which
will ultimately provide the definitive answer as to whether Illinois
is a weighing state. The federal courts will not then be free to
ignore the view of the highest court of the state as to the meaning
of its own law: "It would be a strange rule of federalism that
ignores the view of the highest court of a State as to the meaning
of its own law." Stringer, at 235, 112 S.Ct. at 1139.
As it is, Illinois law is not
quite silent on this issue. Even though it has not attached a label--in
bold letters--to its capital sentencing scheme, neither has the
Illinois Supreme Court remained entirely quiet. See People v.
Brownell, 79 Ill.2d 508, 38 Ill.Dec. 757, 404 N.E.2d 181 (1980),
cert. dismissed, 449 U.S. 811, 101 S.Ct. 59, 66 L.Ed.2d 14 (1980);
People v. Stewart, 105 Ill.2d 22, 85 Ill.Dec. 241, 473 N.E.2d 840
(1984); People v. Johnson, 146 Ill.2d 109, 165 Ill.Dec. 682, 585 N.E.2d
78 (1991), cert. denied, 506 U.S. 834, 113 S.Ct. 106, 121 L.Ed.2d
65; and People v. Todd, 154 Ill.2d 57, 180 Ill.Dec. 676, 607 N.E.2d
1189 (1992), cert. denied, 510 U.S. 944, 114 S.Ct. 381, 126 L.Ed.2d
In Todd, one of the defendant's
claims was that his death sentence was invalid because the court
relied on an invalid aggravating factor in finding him eligible for
the death penalty. The court stated that such reliance was not
material because "the defendant was independently eligible for the
death penalty on the basis that the murder was committed in the
course of a robbery and while attempting to commit aggravated
criminal sexual assault." At 74-75, 180 Ill.Dec. 676, 607 N.E.2d
1189. Or in other words, as the court stated fairly clearly,
"Illinois has a non-weighing statutory scheme to determine if
someone is eligible for the death penalty." At 75, 180 Ill.Dec. 676,
607 N.E.2d 1189.
The second phase of the proceeding
is the point at which there is weighing and balancing: "The weighing
and balancing of aggravating and mitigating factors takes place only
during the second stage, after a defendant is found eligible for the
death penalty and is done to determine whether the death sentence
should in fact be imposed." At 75, 180 Ill.Dec. 676, 607 N.E.2d
1189. This stage, however, is different from the Mississippi scheme.
In Mississippi and other weighing states such as Florida and
Arizona, the fact finder is limited to the consideration of
statutory aggravating factors.
In Illinois, during the second
phase of the sentencing hearing, the court is free to consider "any
relevant and reliable evidence in aggravation and mitigation"
including a factor, as in Todd, which may not be valid at the first
stage. The use of nonstatutory factors does not violate the United
States Constitution and may in fact not necessarily invalidate a
death sentence even in a state in which the statute requires
reliance on only those statutory factors enumerated. Barclay v.
Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983).
The label--weighing or non-weighing--is
not, as the Supreme Court reminds us, simply a matter of semantics.
Stringer. It is arguable that, if Illinois is a weighing state and
if in its analysis the Illinois Supreme Court found error but
nevertheless affirmed without either reweighing the remaining
factors or finding the error to be harmless, the Illinois Supreme
Court could run afoul of Clemons v. Mississippi, 494 U.S. 738, 110
S.Ct. 1441, 108 L.Ed.2d 725 (1990).
Clemons determined that even in a
weighing state, if an invalid aggravating factor has been relied on
in the trial court, it is constitutionally permissible for the state
supreme court to reweigh the aggravating and mitigating evidence and
uphold a death sentence. Alternatively, it would be permissible for
a state supreme court to find the error harmless beyond a reasonable
doubt. If neither were done in this case, we could be compelled to
find that Hampton's sentence violates clearly established federal
law from the Supreme Court, i.e., Clemons.
Our task is to determine whether
the decision of the Illinois Supreme Court is contrary to, or an
unreasonable application of, Supreme Court precedent, or whether it
is based on an "unreasonable determination of the facts in light of
the evidence" from the trial court. Given the nature of our inquiry
and the State of Illinois' prerogative to choose the death penalty
as a sentencing option, our answer must be "no."
We note at the outset that the
United States Supreme Court has not mandated any particular
statutory approach to capital punishment. Spaziano v. Florida, 468
U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). Statutory
aggravating circumstances are a constitutionally necessary part of
the determination as to who is eligible for the death penalty. After
that is accomplished, in selecting who, from among those eligible,
will actually be put to death, "[w]hat is important ... is an
individualized determination on the basis of the character of the
individual and the circumstances of the crime." Zant, at 879, 103
S.Ct. at 2743-44.
To evaluate the issue before us we
need to examine with some care exactly what the Illinois Supreme
Court was saying in Hampton's direct appeal, People v. Hampton, 149
Ill.2d 71, 171 Ill.Dec. 439, 594 N.E.2d 291 (from here on, we refer
only to the decision on Hampton's direct appeal, not the other
postconviction proceedings in Illinois).
As to the eligibility phase, the
Illinois Supreme Court declined to make the specific finding that
Hampton's eligibility was improperly premised on murder in the
course of a burglary. It said, however, that even if it made that
finding, "the validity of defendant's eligibility would not be
impaired because a separate, valid aggravating factor supported his
eligibility." At 90, 171 Ill.Dec. 439, 594 N.E.2d 291.
The court explained that Illinois'
death penalty statute does not place special emphasis on any one
aggravating factor nor does it "accord any special significance to
multiple aggravating factors as opposed to a single aggravating
factor." At 90, 171 Ill.Dec. 439, 594 N.E.2d 291. The purpose of the
eligibility phase, the court said, is to narrow the class of persons
who are eligible for death. Hampton was eligible based on murder in
the course of an armed robbery. The court concluded, "Thus, the
possible impropriety in finding defendant eligible based upon murder
in the course of a burglary would not affect his eligibility." At
91, 171 Ill.Dec. 439, 594 N.E.2d 291.
The upshot, it seems to us, is
that the court found no error at the eligibility phase which could
have affected the outcome of the proceeding. The trial court could
not reasonably have found Hampton ineligible for the death penalty;
he did, after all, meet one of the statutory conditions. Even if it
could be said that error were found, a possible error which cannot
affect the outcome of the proceeding is certainly harmless beyond a
Hampton does not contend that he
was not involved in a murder in the course of an armed robbery.
Therefore, he meets one of the statutory aggravating factors, i.e.,
§ 9-1(b)(6). That section applies to a murder "in the course of"
another felony if certain conditions--not contested here--are met
the other felony was one of the following: armed
robbery, robbery, aggravated criminal sexual assault, aggravated
kidnapping, forcible detention, arson, aggravated arson, burglary,
home invasion, ... or the attempt to commit any of the felonies
listed in this subsection....
Hampton falls under this
subsection of the statute, whether one or five or more of the listed
crimes are applicable. Other factors include such things as that the
victim was a peace officer, a fireman or correctional officer killed
in the line of duty (sec. 9-1(b)(1)); that the victim was under 12
years of age and the crime was heinous (sec.9-1(b)(7)); and that
there were two victims (sec.9-1(b)(3)).
The trial judge stated in a
written order, in regard to the aggravating factor, that "the
following statutory aggravating fact exists...." That fact was that
the individual was killed in the "course of another felony (Burglary
and Armed Robbery)...." He stated on the record at the hearing that
he "finds beyond a reasonable doubt that the following Statutory
aggravating factor exists in relation to this offense. That
aggravating factor being No. 6, the murdered individual was killed
in the course of another felony, that being Burglary and Armed
Robbery." [Emphasis added.] The trial judge referred in the singular
to one statutory aggravating factor. Furthermore, the close
relationship under the facts of this case between armed robbery and
any species of burglary make the judge's reference to one felony a
logical and reasonable one.
We can see no error--and, in truth,
it appears that Hampton really urges none--in the finding that
Hampton was eligible for the death penalty under these circumstances.
Had burglary been the only felony cited, and assuming that what we
have here is residential burglary, a separate crime which at the
relevant time did not make one eligible for death, then, of course,
the result of this case could be different.
That Hampton is properly eligible
for the death penalty is not the important part of the inquiry. What
of the second phase? Did the reference to burglary taint the
weighing and balancing process? We find that it did not.
As to the second phase, the
Illinois court emphasized that Hampton's conduct during the course
of the crime could be considered in assessing whether aggravating
[E]ven if the burglary-based aggravating factor
were not sufficient to render defendant eligible for the death
penalty, the evidence did establish that defendant had engaged in
conduct which constituted either burglary or residential burglary.
The trial judge was therefore still fully entitled to consider the
evidence underlying that factor in making his sentencing
At 92, 171 Ill.Dec. 439, 594 N.E.2d
291. The fact of the commission of the crime "could properly be
considered at the second phase of the sentencing hearing." At 92,
171 Ill.Dec. 439, 594 N.E.2d 291. Because burglary was not
technically the crime committed, there is error at this phase of the
proceeding. What the Illinois Supreme Court said, however, was that
the error made no difference because the judge was fully entitled to
consider the evidence underlying the label.
An error which makes "no
difference" can be nothing but harmless beyond a reasonable doubt.
It is undisputed that the Illinois court in Hampton's case did not
use the magic words "harmless beyond a reasonable doubt." That,
standing alone, however is not dispositive. To find harmless error,
a court must explain its reasoning, but the standard can be met
without the court's "uttering the magic words 'harmless error.' "
Sochor v. Florida, 504 U.S. 527, 541, 112 S.Ct. 2114, 2123, 119 L.Ed.2d
326 (1992) (O'Connor, J., concurring). What the Illinois court did
is similar to what the Florida Supreme Court did in Barclay v.
Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983).
There, the death sentence was
affirmed "only because it was clear that the Florida Supreme Court
had determined that the sentence would have been the same had the
sentencing judge given no weight to the invalid factor." Stringer,
at 231, 112 S.Ct. at 1137. Here, the Illinois Supreme Court found
that the sentence was not affected by the labeling error. "Residential
burglary" was not a statutory factor, and "burglary" was not
technically the crime committed. Nevertheless the underlying conduct
could be properly considered and weighed by the court during the
second phase of the hearing.
It is clear, as well, from the way
the Illinois Supreme Court discussed other issues in the case, that
the error was considered harmless. The court discussed other
aggravating factors in addition to the statutory one: Hampton's lack
of remorse and the brutality of the conduct, which included stab
holes in the body and cigarette ashes and burn marks on the body.
The court described the aggravating evidence in more than one
instance as "overwhelming." See p. 102, 171 Ill.Dec. 439, 594 N.E.2d
At this stage, as we have
explained, an Illinois court can consider all factors in aggravation
and in mitigation. And as we have also stated, the judge is free to
consider the defendant's conduct during the course of the crime;
therefore, even though the crime was residential burglary and
mislabeled as burglary and therefore not an eligibility factor at
phase one, the sentencing judge was free during the second phase to
consider the conduct, regardless of how it was labeled. The use of
nonstatutory sentencing factors is not unconstitutional. See Zant.
In other words, there would be no
impediment under either Illinois law or relevant federal law as set
out by the Supreme Court to the judge having considered a
residential burglary--labeled as such--at the second phase of the
death penalty hearing. Contrasting the second phase with the first
phase, we note again that if the judge, in 1990, had relied on
conduct labeled "residential burglary" as an eligibility factor and
that were the only felony committed in connection with the murder,
there would be error and Hampton would not be eligible for the death
If the judge had relied on conduct
labeled "residential burglary" and conduct labeled armed robbery,
Hampton would be eligible because one felony would have occurred in
connection with the murder. At the second phase, if the judge had
relied on an aggravating factor labeled "residential burglary,"
which in 1990 would have been a nonstatutory aggravating factor,
there would be no error.
The judge here was free to rely on
a nonstatutory factor. This is an important difference between
Illinois' statute and Mississippi's. In Mississippi, at the second
phase, the aggravating factors must be statutory ones. Even if only
statutory factors can be considered, however, if a court relies on
an invalid factor the error can, nevertheless, be found to be
harmless. See Barclay.
Of course, if the underlying
conduct did not constitute residential burglary, i.e., if the
evidence was not sufficient, for instance, then use of the factor
would be error. Zant. The Illinois Supreme Court is well aware of
this distinction and routinely applies the principle. See People v.
Hayes, 139 Ill.2d 89, 151 Ill.Dec. 348, 564 N.E.2d 803 (1990), cert.
denied, 449 U.S. 967, 111 S.Ct. 1601, 113 L.Ed.2d 664; People v.
Brownell, 79 Ill.2d 508, 38 Ill.Dec. 757, 404 N.E.2d 181 (1980),
cert. dismissed, 449 U.S. 811, 101 S.Ct. 59, 66 L.Ed.2d 14; People
v. Pitsonbarger, 142 Ill.2d 353, 154 Ill.Dec. 562, 568 N.E.2d 783
(1990), cert. denied, 502 U.S. 871, 112 S.Ct. 204, 116 L.Ed.2d 163.
Viewed from this perspective,
Hampton's position cannot be that the conduct properly characterized
as residential burglary was an invalid factor at the second phase of
the proceeding. Rather, he can state that residential burglary is
not a statutory factor and that his conduct did not constitute
burglary, but these are facts with which everyone agrees. His
argument has to be that somehow the judge was overly impressed
because he thought the factor was statutory rather than nonstatutory,
and then that the Illinois Supreme Court did not do its job under
However, it is not appropriate
under Illinois law to place more emphasis on a statutory factor over
a nonstatutory one merely because one is statutory and the other is
not. See People v. Terrell, 132 Ill.2d 178, 138 Ill.Dec. 176, 547
N.E.2d 145 (1989), cert. denied, 495 U.S. 959, 110 S.Ct. 2567, 109
L.Ed.2d 749. And here there is absolutely no indication that the
sentencing judge placed an improper emphasis on the statutory
factors when evaluating the evidence. In fact, just the opposite
occurred as the statutory factor is hardly mentioned.
The State presented, and relied on,
evidence of nonstatutory factors. There was compelling evidence of
another violent act Hampton committed. Deanna Schaefermayer
testified that Hampton attacked her in California, an attack for
which he was convicted of assault with a deadly weapon. She
described Hampton striking her across the face; wrapping a leather
strap around her neck; waving a butcher knife in front of her face;
drawing the point of the knife down her body; holding the point or
the blade of the knife against her throat; placing the tip of the
knife in her vagina; plunging the knife into the mattress beside
her, missing her by two inches. In short, she described Hampton
terrifying her for seven or eight hours.
The State also presented certified
copies of Hampton's substantial criminal record and asked the judge
to take judicial notice of information in the presentence report,
detailing a history of delinquency and criminality as well as
statements Hampton made after the killing that he smoked a cigarette
and looked at the body, enjoying the feeling of having killed the
old man. The State submitted a letter Hampton wrote to the police
chief describing Pendleton as a "rotten bastard" and a "worthless
piece of shit," and stating that his only regret was that he had not
cut Pendleton's head off.
The State referred in its argument
to signs of torture at the crime scene. Evidence indicated that
Hampton had plunged the knife numerous times into the bed around
Pendleton's head, acts, of course, similar to those Deanna
Schaefermayer described. In addition, the State relied on testimony
regarding ashes on the body and cigarette burns on the victim's eyes.
In contrast, at this phase of the
proceeding the statutory factor was presented to the court as
Your honor, also pursuant to the procedure
referred to by the Supreme Court we would ask at this time that the
Court take Judicial Notice of the matters that we provided to the
Court at the time of the plea, and also the matters in evidence
presented to the Court in ... the first phase of the sentencing
hearing and consider it.
The statutory factor received far
less emphasis than the other, far more graphic and compelling
nonstatutory factors. The perfunctory manner in which the factor was
mentioned contrasts to the situation in Clemons, in which "the State
repeatedly emphasized and argued the 'especially heinous' factor [the
invalid factor in that case] during the sentencing hearing." 494
U.S. at 753, 110 S.Ct. at 1451.
Furthermore, as is implicit in our
discussion, the judge--not a jury--was the decision-maker in
Hampton's case. In a proceeding tried to the court there is a
presumption that the judge considers only proper evidence. Todd. It
seems to us that we can trust the judge as well not to be overly
influenced if he thought Hampton's conduct amounted in part to
burglary and thus a statutory factor as opposed to being conduct
which constitutes residential burglary, which is not a statutory
Also, as we have said, had the
judge relied on a residential burglary in a situation in which there
was insufficient evidence of residential burglary, then a more
serious problem would have been presented. We are instructed that
the reason a factor is invalid is an important consideration. Zant.
But here, Hampton clearly committed a residential burglary.
Therefore we find that the
Illinois Supreme Court, in evaluating Hampton's sentencing
proceeding, did not put an unreasonable spin on the facts or
unreasonably misapply clearly established federal law as determined
by the Supreme Court of the United States. Lastly, although we have
reviewed this case under the new law as construed in Lindh, the
result of this appeal--affirmance of the district court's decision
to deny Hampton's petition for habeas relief--would be the same
under the old law. Therefore, we AFFIRM the district court's denial
of the petition for a writ of habeas corpus.