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                                    Appellate Court                          Date: 2017.07.26
                                                                             13:28:10 -05'00'




                       People v. McKee, 2017 IL App (3d) 140881



Appellate Court       THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption               BETHANY L. McKEE, Defendant-Appellant.



District & No.        Third District
                      Docket No. 3-14-0881


Filed                 May 9, 2017
Modified upon
denial of rehearing   June 15, 2017



Decision Under        Appeal from the Circuit Court of Will County, No. 13-CF-100; the
Review                Hon. Gerald R. Kinney, Judge, presiding.



Judgment              Affirmed.


Counsel on            Michael J. Pelletier, Peter A. Carusona, and Byron S. Kohut, of State
Appeal                Appellate Defender’s Office, of Ottawa, for appellant.

                      James Glasgow, State’s Attorney, of Joliet (Patrick Delfino and Mark
                      A. Austill, of State’s Attorneys Appellate Prosecutor’s Office, of
                      counsel), for the People.



Panel                 JUSTICE McDADE delivered the judgment of the court, with
                      opinion.
                      Justices Carter and Schmidt concurred in the judgment and opinion.
                                            OPINION

¶1       The defendant, Bethany L. McKee, was convicted of two counts of first degree murder
     (720 ILCS 5/9-1(a)(1) (West 2012)) following a bench trial and was sentenced to natural life
     imprisonment. On appeal, McKee raises an as-applied constitutional challenge to her
     sentence. We affirm.

¶2                                              FACTS
¶3       On April 25, 2013, the State charged McKee, Adam Landerman, Alisa Massaro, and
     Joshua Miner by superseding indictment with six counts of first degree murder in connection
     with the strangulation deaths of Eric Glover and Terrance Rankins.
¶4       The circuit court held a bench trial in August 2014 at which the evidence presented
     tended to establish the following facts.
¶5       On January 10, 2013, shortly before 4 p.m., McKee’s father placed a call to the police to
     report two dead individuals in the residence occupied by Alisa Massaro and her father,
     Phillip. When the police responded, they first had contact with Massaro, who said there were
     two other individuals hiding in the house—Miner was hiding upstairs and Landerman was
     hiding downstairs. One officer found Miner upstairs where the two bodies were located; both
     bodies were facedown and showed signs of rigor mortis. One of the bodies was lying on top
     of black garbage bags that had been separated at the seams with its head wrapped in a plastic
     grocery bag. The head on the other body had been wrapped in a red plastic bag and was
     resting on a pillow. Miner told police that he had killed one of the men and Landerman had
     killed the other. Eventually, the police also discovered Landerman in the house.
¶6       McKee was not at the scene, but she was located driving her vehicle in Kankakee; she
     was stopped and taken into custody in connection with the murders. At the police station,
     when a detective told McKee that he wanted to speak with her, she said she wanted to talk,
     that she wanted to tell the truth, and that she wanted to know how much time she would get
     for being an accessory to murder. McKee was taken into an interview room, read her
     Miranda rights (which she waived), and interrogated. Miranda v. Arizona, 384 U.S. 436
     (1966). A recording of the interrogation was introduced into evidence.
¶7       In January 2013, McKee and her 15-month-old daughter were staying in Massaro’s
     residence in Joliet. Massaro occupied the second floor, while her father lived on the first
     floor.
¶8       On the night of January 9, 2013, Miner, who was Massaro’s boyfriend, and Landerman
     were hanging out with McKee and Massaro at Massaro’s residence. Short on money to buy
     alcohol and cigarettes, the group began discussing how to come up with some money.
     McKee had received a text from Rankins, who asked her if she wanted to drink alcohol with
     him and his friend, Glover. McKee mentioned to the group that Rankins always carried a
     large amount of cash, as he had two days earlier when she and Massaro had contacted him to
     buy them alcohol. Thereafter, the group began discussing a plot to rob Rankins.
¶9       Miner stated that he could beat up and kill Rankins and Glover and then steal their
     money. Landerman volunteered to help him. McKee indicated in her interview that she did
     not think anything was going to happen, but she also admitted that she went along with the
     plan.

                                               -2-
¶ 10        McKee contacted Rankins, luring him and Glover to the residence. The group set up a
       signal to indicate when McKee and Massaro were to leave the room so Miner and
       Landerman could put the plan into action.
¶ 11        Rankins was with Glover when McKee contacted him. She led Rankins to believe that he
       and Glover were coming over to party with her and Massaro. When the two men arrived, the
       group began drinking and playing video games. After some time had passed, Miner gave the
       prearranged signal, so McKee picked up her daughter and left the upstairs apartment.
       Massaro also left.
¶ 12        McKee and Massaro went downstairs, where Massaro’s father was sleeping on a couch.
       He was awakened by a loud noise coming from upstairs and was told that two men were
       moving a broken television. He threatened to call the police if the noise did not cease, and
       Massaro went to the door at the top of the stairs, saying she would tell the two men to be
       quiet. The door was locked, however, and Massaro heard Miner say “die, die.”1 The noise
       stopped shortly thereafter.
¶ 13        McKee and Massaro left to drop McKee’s daughter at another residence. When they
       returned, Miner and Landerman were still there, and Rankins and Glover were lying stacked
       on the floor in one of the rooms. The bodies were later moved to the positions in which they
       were found by police.
¶ 14        McKee denied searching the bodies, but she acknowledged having been given some
       money by Miner, which she used for gas. She also searched Glover’s vehicle and took
       several items, including compact discs, stuffed animals, and a pair of baby boots. The group
       left the residence and bought cigarettes and cocaine with the money taken from the Rankins
       and Glover. When they returned, they used the cocaine. They also kicked the bodies and hit
       them with an empty liquor bottle, although McKee said during her interrogation that she, at
       the insistence of Miner, kicked only one of the bodies one time. Also during that
       interrogation, McKee became upset when it was suggested to her that not all of the roughly
       $120 obtained from the robbery had been shared with her.
¶ 15        The next day, the group discussed what to do with the bodies. They talked of cutting
       them up and disposing of the parts, and Miner even brought over tools for that purpose.
       Miner also talked about cutting the face, with attached scalp, from one body and wearing it
       over his face—a suggestion which McKee admitted made the group laugh. McKee then
       proposed calling her father because he would know how to dispose of the bodies. The group
       agreed on that plan. McKee called her father, who said he would help her, but instead he
       called the police.
¶ 16        The circuit court announced its decision on August 29, 2014. Citing the common-design
       rule and numerous cases, the court analyzed the question of McKee’s guilt on the basis of
       accountability. In part, the court found:
               “A review of [the] facts show a stunning lack of concern for the consequences of
               taking two human lives. The facts established at the trial indicate Ms. McKee played
               a key role in getting the victims over to the Massaro residence, knowing that the
               groups’ intent was to commit the offense of robbery. She left the room when signaled

           Massaro testified at McKee’s trial in exchange for the State dropping the first degree murder
           1

       charges against her and her guilty plea to two counts of robbery and two counts of concealment of a
       homicidal death. Massaro was sentenced to a total of 10 years of imprisonment as a part of the plea deal.

                                                       -3-
               so that the robbery could begin. She went downstairs and, when confronted by Phillip
               Massaro, lied to him regarding what was occurring in the upstairs apartment. She,
               along with Alisa Massaro, convinced Mr. Massaro to stay downstairs and not
               interrupt what was occurring on the second floor. After the victims were subdued, she
               participated in discussions with the other defendants and implicates herself in her
               statement that she felt that it was important that these bodies be removed from the
               premises by saying ‘you got to get them out of here.’ The money, that was the
               proceeds of the robbery, was used by this Defendant to obtain cigarettes and gas for
               her vehicle. She also participated in the drug use that occurred from the proceeds of
               the robbery. She assisted other individuals in helping place a Jewel bag over the head
               of Terrance Rankins and holding a lamp so that the bag could be placed on the
               victim’s head. She clearly indicates in her statement that she knew there was going to
               be at the very least a fight and a robbery if Rankins came over. She also seemed upset
               in her interview when she realizes that there was probably more money stolen from
               these victims than she was told. She volunteered to search the vehicle of Eric Glover
               and removed from that vehicle stuffed animals, CDs, apparently for her use or her
               child’s use.”
       The court also found:
               “This Defendant had numerous opportunities to take steps to withdraw from the
               common criminal plan. She had her own vehicle at the residence, so she could have
               taken her child with her at any time and left. While texting Rankins, she could have
               taken steps to prevent him from even coming over to the house. When she was
               speaking with Phillip Massaro, she could have asked for his intervention to prevent
               the crime from occurring. When she left the residence to take her child away from the
               scene of the crime, she could have summoned the police. When she spoke to her
               father, she shows no discontinuation of her involvement with these individuals, but
               simply seeks his assistance to remove the bodies from the residence.”
       Accordingly, the court found that McKee was guilty by way of accountability of the first
       degree murders of Rankins and Glover.
¶ 17       On November 4, 2014, the circuit court held a sentencing hearing. Testimony at the
       hearing disclosed that McKee had been raped when she was 14 years old. The rapist also cut
       her face and chest with a knife over 200 times. In addition, McKee allegedly suffered from
       depression, bipolar disorder, attention-deficit/hyperactivity disorder, and post-traumatic
       stress disorder, and she had a history of cutting herself. She had been hospitalized nine times
       for her mental health issues—once for 89 days. She also had taken medication for her issues,
       but they were ineffective. In addition, McKee had transferred from a public high school to a
       therapeutic school to help her with her issues. Further, when McKee was still 14 but after the
       rape, she was missing for 14 days. When she was found, it was learned that, during those 14
       days, she had been forced into prostitution, drugged, and beaten.
¶ 18       During arguments, defense counsel acknowledged that the statutory scheme mandated a
       natural life sentence for McKee, but he argued that the imposition of that sentence would
       violate the constitutional prohibition against cruel and unusual punishment.
¶ 19       At the close of the hearing, the court commented that it believed this case exemplified
       why the legislative imposition of mandatory sentencing was problematic. McKee only aided
       and abetted, yet she was subject to the same penalty as the actual murderers. The court noted

                                                  -4-
       that it wished it had discretion to fashion a more appropriate sentence for McKee, but
       because the legislature had removed that discretion, it was compelled to sentence her to
       natural life imprisonment on her two first degree murder convictions.
¶ 20       McKee filed a motion to reconsider sentence in which she argued that her sentence was
       unconstitutional because it was cruel and unusual, in violation of the eighth amendment, and
       because it violated the proportionate penalties clause of the Illinois Constitution. Regarding
       the latter argument, McKee pointed out that one of her codefendants, Massaro, received only
       10 years of prison time on two convictions for robbery and two convictions for concealment
       of a homicidal death. The court denied the motion, and McKee appealed.

¶ 21                                             ANALYSIS
¶ 22       On appeal, McKee argues that her natural life sentence is unconstitutional as applied to
       her particular circumstance. She does not challenge the validity of her two first degree
       murder convictions or the fact that section 5-8-1(a)(1)(c)(ii) mandates a natural life sentence
       for first degree murder involving more than one victim. 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West
       2012). Rather, she claims that her natural life sentence both constitutes cruel and unusual
       punishment under the eighth amendment to the United States Constitution (U.S. Const.,
       amend. VIII) and violates the proportionate penalties clause of the Illinois Constitution (Ill.
       Const. 1970, art. I, § 11).
¶ 23       The Illinois Supreme Court has held that section 5-8-1(a)(1)(c)(ii) can be constitutionally
       applied to adult accomplices. People v. Miller, 202 Ill. 2d 328, 337 (2002). Miller also held
       that, while there is not a blanket dispensation from the mandatory sentence for juveniles, the
       statute is vulnerable to a properly supported, as-applied constitutional challenge by a
       juvenile. Id. at 341. More recently, the First District found an as-applied constitutional
       challenge to the statute valid where, given the particular facts of the case, the mandatory
       natural life sentence of a 19-year-old adult shocked the conscience of the community. People
       v. House, 2015 IL App (1st) 110580, ¶ 101. It is the challenging party’s burden to establish
       the constitutional invalidity of a statute. Miller, 202 Ill. 2d at 335. “[A]n as-applied challenge
       requires a showing that the statute violates the constitution as it applies to the facts and
       circumstances of the challenging party.” People v. Thompson, 2015 IL 118151, ¶ 36. Further,
       the constitutionality of a statute presents a question of law that we review de novo. Miller,
       202 Ill. 2d at 335.
¶ 24       In the instant case, McKee, who was 18 and an adult at the time of the crime, asks that we
       follow the First District’s decision in House and find the statute unconstitutional as applied to
       her and vacate her sentence of mandatory natural life.
¶ 25       The eighth amendment to the United States Constitution prohibits cruel and unusual
       punishments. U.S. Const., amend. VIII.2 Cruel and unusual punishments include those that
       are “disproportionate to the crime.” Graham v. Florida, 560 U.S. 48, 59 (2010). The
       proportionate penalties clause of the Illinois Constitution is coextensive with the federal
       Constitution’s eighth amendment and states that “[a]ll penalties shall be determined both
       according to the seriousness of the offense and with the objective of restoring the offender to
       useful citizenship.” Ill. Const. 1970, art. I, § 11; In re Rodney H., 223 Ill. 2d 510, 518 (2006).

          2
           The eighth amendment is applicable to the states via the fourteenth amendment. U.S. Const.,
       amend. XIV; Kennedy v. Louisiana, 554 U.S. 407, 419 (2008).

                                                   -5-
       One of the forms of proportionality review that exists in Illinois states that “[a] statute may
       be deemed unconstitutionally disproportionate if *** the punishment for the offense is cruel,
       degrading, or so wholly disproportionate to the offense as to shock the moral sense of the
       community.” Miller, 202 Ill. 2d at 338.
¶ 26       McKee cites to Miller and House in support of her argument. In Miller, our supreme
       court held that section 5-8-1(a)(1)(c)(ii) was unconstitutional as applied to the juvenile
       defendant. Miller, 202 Ill. 2d at 341. The court ruled that a natural life sentence in that case
       “grossly distort[ed] the factual realties of the case and [did] not accurately represent
       defendant’s personal culpability such that it shock[ed] the moral sense of the community.”
       Id. at 341. The court described those factual realities as “a 15-year-old with one minute to
       contemplate his decision to participate in the incident and stood as a lookout during the
       shooting, but never handled a gun,” which resulted in the juvenile receiving the same
       sentence as the actual shooter. Id.
¶ 27       The instant case is readily distinguishable from Miller. The Miller court stated that even a
       juvenile accomplice could be sentenced to natural life imprisonment. Id. While McKee was
       only 18 at the time of the murders, she was nonetheless an adult, unlike the juvenile
       defendant in Miller. In addition, McKee did not join in the crime at the last minute or play
       only a peripheral role, such as a lookout like Miller. Rather, she actively participated in the
       planning of the robbery. She made the initial suggestion to rob Rankins; she lured Rankins
       and Glover to Massaro’s residence; she helped conceal what was happening from Massaro’s
       father; she stole items from Glover’s car after he was dead; she accepted proceeds from the
       robbery and later complained because she might not have gotten her fair share; she
       participated in insults, although possibly unwillingly, to the bodies of the victims; and she
       sought the help of her father in disposing of the bodies. Under these circumstances, Miller is
       of no avail to McKee.
¶ 28       In House, the 19-year-old defendant was present and armed at the time the victims were
       forced into a vehicle at gunpoint, and he also served as a lookout at the time the victims were
       shot. House, 2015 IL App (1st) 110580, ¶ 84. The First District found that the defendant’s
       young age was an important factor to consider, and the court cited to scientific research that
       indicated the young adult brain did not fully develop until the mid-20s. Id. ¶¶ 89, 95. The
       court also noted that the defendant did not aid in the planning of the crime (id. ¶ 89), had no
       criminal history of violent crimes, never knew his father (and his mother died when he was
       18), was raised by his maternal grandmother, and did not graduate from high school (id.
       ¶ 101). Thus, the First District concluded that the defendant’s sentence shocked the moral
       sense of the community and was unconstitutional as applied to him. Id.
¶ 29       While some similarities exist between the involvement of McKee and the defendant in
       House, the differences are significant enough that we do not believe the same result is
       warranted in this case. McKee actively participated in the planning of the crimes; she was not
       just complicit, she was an instigator. While it is true that she did not personally participate in
       the murders, it must be noted that she was aware that murder was at least a possibility and an
       intended consequence of their plan. During the planning of the crimes, Miner stated that he
       could kill Rankins and Glover, and Landerman stated that he could help. Then, the group
       decided on a signal that, when given, indicated to McKee and Massaro that they were to
       leave the room so the two men could carry out their part. Further, after the robbery and
       murders were committed, McKee took part in the distribution of the proceeds and the

                                                   -6-
       discussion of options for dismembering and disposing of the bodies, as previously described.
       It was only due to the intervention of McKee’s father that actual disposal of the bodies was
       thwarted. In sum, McKee’s factual culpability for these crimes was much greater than that of
       House.
¶ 30       McKee also claims that we should follow the First District’s decision in People v. Harris,
       2016 IL App (1st) 141744, appeal allowed, No. 121932 (Ill. May 24, 2017), and hold that
       McKee’s sentence is unconstitutional as applied.
¶ 31       In Harris, the 18-year-old defendant shot two individuals at a gas station, and one of the
       individuals died. Id. ¶¶ 5-6, 14. The defendant was convicted of first degree murder and
       attempted first degree murder and was sentenced to an aggregate prison term of 76 years. Id.
       ¶ 1. The defendant raised an as-applied constitutional challenge to his sentence, alleging that
       it was tantamount to a life sentence and therefore violated, inter alia, the proportionate
       penalties clause of the Illinois Constitution. Id. ¶¶ 31-32. The Harris majority agreed and
       held that “we believe that it shocks the moral sense of the community to send this young
       adult to prison for the remainder of his life, with no chance to rehabilitate himself into a
       useful member of society.” Id. ¶ 69. In so ruling, the Harris majority emphasized that the
       defendant was young and had no criminal background, and it speculated that because he
       grew up in a stable home and finished his GED while in pretrial custody, he might be able to
       rehabilitate himself if given the chance. Id. ¶ 64. Furthermore, like the court in House and
       like McKee in our case, the defendant alluded to scientific research on brain development,
       which the Harris majority found persuasive:
                    “The Illinois Supreme Court had recognized that research on juvenile maturity
               and brain development might also apply to young adults. The 19-year-old defendant
               in People v. Thompson argued, for the first time on appeal, that Miller should apply
               with equal force to him. 2015 IL 118151, ¶¶ 18-21. The Illinois Supreme Court noted
               that in as-applied challenges, ‘it is paramount that the record be sufficiently
               developed’ and that Thompson’s record failed to contain any information regarding
               how the ‘ “evolving science” on juvenile maturity and brain development’ should
               apply to the circumstances in the case. Id. ¶ 38. Though the Illinois Supreme Court
               did not extend Miller to young adults in Thompson, it did open the door for that
               argument.
                    Unlike the dissent, we believe that the record contains sufficient facts to consider
               Miller’s applicability. We cannot extend Miller’s holding directly, but find that its
               analysis applies with equal force under the Illinois Constitution to a 19-year-old like
               Harris.” Id. ¶¶ 61-62.
¶ 32       Justice Mary Anne Mason dissented from the Harris majority’s ruling that the
       defendant’s sentence violated the proportionate penalties clause of the Illinois Constitution.
       Id. ¶ 78 (Mason, J., concurring in part and dissenting in part). Justice Mason argued, inter
       alia, that the record was insufficient to decide whether the science on juvenile maturity and
       brain development impacted the defendant’s case because he did not introduce evidence in
       the circuit court that this science applied to him. Id. ¶ 79.
¶ 33       In addressing McKee’s Harris-based argument, we note initially that we are not bound by
       the decisions of other districts of the appellate court. See, e.g., Kovac v. Barron, 2014 IL App
       (2d) 121100, ¶ 85. We also note that another panel of the First District refused to follow
       Harris due to its alleged misinterpretation of Thompson. People v. Thomas, 2017 IL App

                                                   -7-
       (1st) 142557, ¶¶ 38-43. The Thomas majority stated that, contrary to the Harris majority’s
       claim, “[t]he supreme court in Thompson did not ‘open the door’ for defendants to argue that
       the reasoning in Miller should be extended to young adults over the age of 18” because the
       ruling in Thompson was based on forfeiture. Id. ¶ 43 (citing Thompson, 2015 IL 118151,
       ¶ 39, for its ruling that the defendant had forfeited his as-applied constitutional challenge
       because he raised it for the first time on appeal).
¶ 34        Even if Harris was correctly decided, the instant case is factually distinguishable. The
       majority in Harris believed that the record contained sufficient facts to consider Miller’s
       applicability. Harris, 2016 IL App (1st) 141744, ¶ 62. The same cannot be said for this case.
       In this regard, we find the following commentary in Thompson—on the nature of the
       defendant’s as-applied challenge to the extent that it sought support in scientific research on
       juvenile development—to be particularly relevant:
               “To support his as-applied challenge, defendant relies exclusively on the ‘evolving
               science’ on juvenile maturity and brain development that formed the basis of the
               Miller decision to ban mandatory natural life sentences for minors. Defendant
               maintains that this science applies with ‘equal force’ to a criminal defendant who was
               between the ages of 18 and 21 when the underlying crime was committed. The record
               here, however, contains nothing about how that science applies to the circumstances
               of defendant’s case, the key showing for an as-applied constitutional challenge. Nor
               does the record contain any factual development on the issue of whether the rationale
               of Miller should be extended beyond minors under the age of 18. Undoubtedly, the
               trial court is the most appropriate tribunal for the type of factual development
               necessary to adequately address defendant’s as-applied challenge in this case.”
               Thompson, 2015 IL 118151, ¶ 38.
       Here, McKee offered no evidence in the circuit court on the science of juvenile development
       or how it applied to her. Accordingly, Harris is of no avail to McKee, and we reject her
       request to follow it.
¶ 35        We acknowledge that McKee’s personal history includes significant mental health issues
       and at least two extended and extremely tragic and traumatizing experiences as a 14-year-old.
       These experiences may well have arrested her maturation and exacerbated her mental health
       issues. We are also aware, as was the First District when it decided House, that research
       shows the 18-year-old brain, even without trauma, is not fully mature. We appreciate the trial
       court’s frustration at being forced by section 5-8-1(a)(1)(c)(ii) to impose what it believed,
       given all of the circumstances, to be an unjustifiably harsh sentence.
¶ 36        The legislature has, however, evidenced its intent to bar consideration of those factors by
       withholding all discretion from the courts to impose any sentence more lenient than natural
       life upon conviction of more than one first degree murder. The supreme court found in Miller
       that the statutory penalty is too harsh to impose on selected juveniles; that its imposition can,
       in some situations, shock the moral sense of the community. Miller, 202 Ill. 2d at 341.
       Where, as here, the wrongdoer is legally an adult, played a critical role in developing the
       criminal plan, and was actively complicit in the execution of the robbery that resulted in the
       deaths of two men, we do not see that McKee has met her burden of establishing that her
       natural life sentence would shock the moral conscience of the community and was, therefore,
       unconstitutional as applied. Nor, given the facts of this case, do we see ourselves as
       authorized to reduce on appeal a sentence the circuit court was statutorily compelled to

                                                   -8-
       impose.

¶ 37                                        CONCLUSION
¶ 38      For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

¶ 39      Affirmed.




                                                 -9-
