Opinion filed May 9, 2017 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2017

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-14-0881 v. ) Circuit No. 13-CF-100

)

BETHANY L. McKEE, ) The Honorable

) Gerald R. Kinney, Defendant-Appellant. ) Judge, presiding. ____________________________________________________________________________

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, at shortly before 4:00 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 face down 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. 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.

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¶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.

¶ 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

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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.

1 Massaro testified at McKee’s trial in exchange for the State dropping the first degree murder 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. 4

¶ 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 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

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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.

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¶ 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 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

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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. 1,

§ 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,

(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.

.

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,

. It is the challenging party’s burden to establish the constitutional invalidity of a statute.

Miller,

. “[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,

. Further, the constitutionality of a statute presents a question of

law that we review de novo. Miller,

.

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¶ 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,

(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.,

(2006). 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,

.

¶ 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,

. 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.”

. 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

2 The eighth amendment is applicable to the states via the fourteenth amendment. U.S. Const., amend. XIV; Kennedy v. Louisiana,

(2008). 9

handled a gun,” which resulted in the juvenile receiving the same sentence as the actual shooter.

¶ 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.

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,

. 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.

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¶ 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 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 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.

¶ 31 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

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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,

. 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 impose.

¶ 32 CONCLUSION

¶ 33 For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

¶ 34 Affirmed.

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