*1 be required pay expenses costs, addition to as au- 219(e). thorized Rule
Appellate court judgment affirmed; vacated; circuit court judgment cause remanded with directions. (No. 84566.
THE PEOPLE OF THE ILLINOIS, STATE OF Appel-
lee, v. CHILDRESS, JOHN Appellant. Opinion April Rehearing May denied 2000. filed 2000. *3 HARRISON, C.J., concurring part dissenting part. and Deputy Hartman, Defender, Marshall J. and Sheldon Nagelberg, Appellate B. both of the Office of the State Chicago, appellant. Defender, of Ryan, Attorney Springfield, General, James E. and (William Attorney, Chicago Devine, Richard A. State’s Attorney Chicago, Browers, General, L. Assistant Goldfarb, Renee Carroll, William D. and Eileen M. counsel), Attorneys, O’Neill,Assistant State’s for the People. opinion
JUSTICE HEIPLE delivered the of the court: petitioner, appeals The John Childress, from a Cook County dismissing post-conviction circuit court order petition. Because death, was sentenced to this jurisdiction appeal pursuant court has over the instant 651(a) (134 651(a)). Supreme Court Rule Ill. 2d R. For following reasons, we now affirm.
BACKGROUND
County
A
in the circuit court of Cook
convicted
degree murder,
of first
invasion,
home
bur
glary
attempted aggravated
criminal sexual assault
appeal,
and sentenced
to death. On direct
burglary,
court reversed
conviction for
but
petitioner’s remaining
affirmed
convictions and death
(1994).
People Childress,
sentence.
158 Ill. 2d Supreme
petitioner’s petition
United States
Court denied
for writ of certiorari.
Illinois,
Childress v.
513 U.S.
130 L. Ed. 2d
petitioner guilty degree was first failing to introduce into evidence of photographs wounds petitioner’s on which depicted hands defensive wounds consistent with claim the petitioner’s that victim was the (3) initial aggressor; and investigate pres- ent mitigating evidence medical regarding petitioner’s family background at sentencing.
The trial court dismissed first and third claims without an conducting evidentiary hearing. trial court conducted an evidentiary hearing petition- er’s claim defense remaining regarding counsel’s failure photographs to introduce the hands. At evidentiary hearing, parties the the the stipulated victim to death on night August was stabbed the 1989, and that was arrested the the by police day. Hansen, Deborah an following investigator for the office, Cook County public defender’s testified that on 17, 1989, August photographs she took 10 Polaroid cuts on petitioner’s hands. Shields,
Karen an assistant Cook County public de- fender, testified that she had been assistant de- public years fender for when she was approximately eight ap- time, At that pointed represent petitioner. Shields was a member of the Cook defender’s homicide County public force, task which was of more composed experienced pub- lic exclusively represented defenders who defendants charged with murder. Shields testified that she examined to trial but decided not to introduce photographs prior into evidence trial because she photographs which thought fingernail the wounds were scratches stabbing could have been inflicted while impossible the victim. Shields also testified it was tell from the how old the wounds were. photographs photos Shields was concerned that were a “double- reminder” edged they sword” because were “vivid injuries suffered *5 compared by to numerous wounds suffered the stab (The victim. victim sustained stab wounds and wounds.) incised that she was concerned Shields testified photos against petitioner. the State would the use County public Buchholz, Charles Cook assistant petitioner’s defender who served as co-counselat Shields’ photographs trial, testified that he also examined the petitioner’s prior hands to trial. Buchholz testified that memorializing why he wrote memo he and Shields photographs not to decided introduce the at trial and placed petitioner’s the memo case file. memo photos scrapes states that the “show some minor petitioner’s cuts” which were inconsistent with state- struggled ment away he with the victim and took knife stabbing from her before her. Buchholz testified that Karen Shields added a brief notation at the bottom stating, photos of the memo “The do not look like knife cigarette but wounds more like burns.” Crystal Marchigiani, Kathleen Pantle and two assis- County public tant Cook defenders who with worked on Shields force, homicide task testified that Shields photographs asked them to look at the of the on wounds petitioner’s hands. Pantle that she testified told Shields photographs help that the would not the defense because injuries petitioner’s were minor did and she not think injuries magnitude were of the that would been have during struggle inflicted the course of the with the victim. Marchigiani testified that she also told she Shields that photographs would not use the at trial because she injuries somebody think “didn’t that these lead would alleged act as Mr. Childress was to have acted.” Lewis, cousin, Laverne testified that she played day cards with in the afternoon on the following the murder. Lewis testified that she noticed “[ljittle petitioner’s right small” cuts hand. She asked got responded cuts, how he he got somebody.” “he into it with presented
After the evidence at the hear- considering trial ing, court dismissed claim.
ANALYSIS stage At the motion in post-conviction to dismiss all facts that are not proceedings, well-pleaded positively record are to taken as true. The rebutted trial be into inquiry post-conviction petition whether contains allegations deprivations sufficient of constitutional does engage not the trial court require any fact-finding Coleman, credibility or determinations. result, justification there little As to the trial conclusions giving deference court’s *6 sufficiency allegations post-conviction Coleman, 183 Ill. 2d at 388-89. standard petition. post- review for trial court’s decision to dismiss claims without an conducting evidentiary conviction Coleman, is de novo. Ill. 2d therefore, 183 hearing, contrast, reverse deci By 389. will not a trial court’s we conducting claim an ev to dismiss after sion it is erroneous. identiary manifestly unless hearing Coleman, 183 Ill. at 385. 2d inef- that his trial counsel was argues first voir failing during ask prospective jurors fective to the death dire whether they automatically impose would argues after a conviction of murder. Petitioner penalty is com- question, ask this which that counsel’s failure to “reverse-Witherspoon” question, monly referred as a predisposed of a which was impanelment led to the penalty. death impose argument ap on direct Petitioner did not raise this raised on could have been Normally, issues which peal. but not are considered waived. appeal direct were (1995). Coleman, 168 Ill. 2d 509, Petitioner, 522 v. ineffec however, his counsel was alleges appellate argument appeal. on direct tive for raise
175
Therefore,
not
the doctrine of waiver does
bar consider
Coleman,
ation of his claim.
who contends that counsel rendered appellate ineffective assistance of counsel must show that the failure raise on appeal objectively issue direct unreasonable and prejudiced petitioner. People West, decision v. 418, 2d Unless the issue is underlying meritorious, prejudice suffered no failure West, counsel’s to raise it on direct 187 Ill. appeal. We, therefore, 2d at 435. must determine whether petitioner’s underlying ineffective assistance of trial counsel claim if would have been successful raised direct appeal.
Petitioner’s
ineffective
assistance
trial counsel
In
Illinois,
claim is meritless.
Morgan
719,
504 U.S.
492,
Ed.
(1992),
L.
S.
Ct.
the United
Supreme
States
entitled,
Court held that a defendant
is
upon
request,
to inquire
juror
whether a prospective
automatically
would
impose the death
matter
penalty no
what
presented
evidence was
in aggravation
mitiga
tion. Morgan,
176 Lane, 218, (1990),
138 Ill. 2d 241-42 v. quoting Teague 313, 334, 358, L. Ct. 288, 489 U.S. Ed. 2d 109 S. (1989). 1060, 1077 It bears that is no repeating “[t]here can questions catechism or formula that precise jurors opposi those whose precisely identify prospective tion to the them from fulfill penalty prevent death will Ill. 2d ing jurors.” People Cloutier, their duties as v. (1993). true 483, questions The same holds for among pro intended bias identify pro-death penalty jurors. The mere fact that a “reverse spective have been Witherspoon” question might helpful fail identifying bias does not render trial counsel’s such question objec to ask such a every ure veniremember Terrell, See v. 185 Ill. 2d tively unreasonable. (1998). Moreover, concedes that his trial counsel every ask of the venire whether murder did one member This the death fact demon penalty. conviction deserved defense counsel was aware of defendant’s strates that ask such a and that counsel’s question entitlement failure to other member this every question ask venire than or of trial rather strategy ineptitude was matter circumstances, with the law. Under these unfamiliarity strong failed to presumption has overcome “reverse-Witherspoon” his failure to trial counsel’s of sound product of the venire was every member strategy, incompetence. People Hobley, trial not inef- argues next that his trial counsel was his failing photographs fective for to introduce contends, hands at trial. These photographs, which would have corroborated depict wounds the victim was aggressor defense trial that his argues conduct. Petitioner provoked to raise was ineffective appellate counsel direct argument appeal.
177 to Defense counsel’s decision not introduce the photographs petitioner’s of hands at trial was not objectively experienced Shields, unreasonable. Karen public defender, after consultation with three of her col leagues, strategic photo a to made decision not use the graphs thought photographs because she that the would helpful not be to the defense. Shields feared that the actually photographs against State would use the petitioner highlight slight of nature the wounds on petitioner’s compared devastating hands to the stab by petitioner. agree wounds inflicted victim We with the trial court’s assessment that defense counsel’s photographs decision not gic use the at trial awas strate thorough investigation choice made after of law and plausible options such, facts relevant available. As virtually unchallengeable. trial counsel’s conduct is (1995), citing People Gosier, 16, v. v. (1990), quoting Franklin, 78, 135 Ill. 2d Strickland Washington, 690, 674, 695, U.S. 80 L. Ed. 2d 104 S. Ct. The trial court’s dismissal claim that his trial counsel was ineffective failing photographs to use the at trial was not manifestly erroneous. argument
Petitioner’s final is that his trial counsel investigate present was ineffective for mitigating sentencing regarding evidence at family background. support medical and petitioner claim, In his reports a has attached number and affidavits post-conviction petition to his who witnesses were testify sentencing hearing. not called to at his Dr. Mi- psychological chael Kovar conducted evaluation and neurological petitioner. assessment of Dr. Kovar con- report cluded in has number seri- cognitive suggesting underlying organic deficits, ous damage deteriorating neuropsychological brain functioning long-term caused substance abuse and Ferrell, psychologist, head Dr. Keenan injury. traumatic post-traumatic determined that suffered from age 12 and being raped stress disorder as a result of in a Dr. Ferrell con- up violent environment. growing predisposed violently. cluded that to act out *9 Conte, expert a of social work and professor Dr. John R. abuse, opinion expressed on childhood sexual a the acts of violence are direct result of petitioner’s abandonment, violence, history betrayal experi- and of throughout his lifetime. by petitioner enced from included a number of affidavits also who recounted family members and friends abuse, and family history, drug troubled alcoholism and members, includ- family the deaths of several premature Scott, ap- of Willie ing step-father, the death A report pre- before the murder. two weeks proximately Tatelli, Platt specialist, Caryn pared by mitigation impoverished the environ- depressed documented and raised, educa- petitioner ment his limited in which was tion, abuse he suffered as the sexual and emotional of child, background substance as well his extensive criminality. abuse and sentence,
In to of his death order secure reversal performance must show that his trial counsel’s petitioner and standard reasonableness objective fell below errors, that, absent probability there a reasonable ag concluded that the balance of would have jury did not circumstances warrant gravating mitigating 116, (1997), quot 2d v. 177 Ill. People Madej, death. 698, at Strickland, at 80 L. Ed. 2d 466 U.S. ing if has Ct. 2069. we assume that S. at Even for deficient that his trial counsel was shown additional evidence this investigate present has failed demon we hold that sentencing, deficiency. any prejudice he suffered strate that of the evidence attached we note that most Initially, inherently petitioner’s post-conviction petition is not jury, example, may mitigating. evi A consider the regarding petitioner’s psychological dence mental and impairments mitigating aggravating, depend or as either ing compassion or on whether evidence evokes possible dangerousness. Coleman, demonstrates future Similarly, Ill. 2d at 406. evidence a defendant’s including childhood, troubled that a defendant evidence physically sexually or child, abused as a no inher has ently mitigating may, actually ag fact, value and be gravating. Made], 177 history Likewise, the mere fact that views his drug mitigating require and alcohol abuse as not does (stat jury do same. Ill. 2d at 138-39 Madej, ing drug history may mitigating a defendant’s have no may aggravating). value and even be easily case, In this could have concludedthat regarding petitioner’s psychological much the evidence impairments aggravating. was, fact, Dr. Ferrell’s psychological example, evaluation, for concludes that *10 petitioner “effectively predisposed to overreact and against gestures.” Similarly, out strike others with violent petitioner history Dr. Conte concluded that has a of victimizing “warped others and that he has a and vio- “any lent” of notion “maleness” such that action or word perceived questioning which is as his maleness would be require response.” a serious threat and an excessive Such powerful conclusions are of evidence future dangerousness. many petitioner’s family of
Even the affidavits highly damaging aggravating members contain evidence. example, petitioner’s adoptive Branch, For John brother, petitioner history averred in his affidavit that has a of being sexually aggressive and that he molested his half- years brother Thomas when Thomas or was 10 old. Ivey, petitioner’s daughter Hattie the mother Sadie, of of daughter never took care stated that Ivey was never there to her. remarked that support of and that he constantly jail was and out he money doing illegal told her that could make more by working. Virtually than all these affidavits things drugs attest extensive abuse alcohol. if could the evidence at
Even the have viewed the post-conviction petition mitigating, tached sexually that a defendant was or abused physically fact abilities does not impaired cognitive as a child or has of a death sentence when evi preclude imposition Madej, outweighed by aggravating dence is evidence. Here, the evidence aggravating support Ill. 2d at 139-40. of the death was jury’s imposition penalty ing rec Petitioner has an extensive criminal overwhelming. three decades. Petitioner has convic spanning prior ord murder, for armed robbery, tion for as well as convictions vehicle, arrest, criminal burglary, resisting trespass to conduct, of weapon, attempted unlawful use disorderly assault, and unlaw kidnaping criminal sexual aggravated victimizing has a oth history ful restraint. Petitioner sentencing presented The State evidence ers. having mentally sex with a caught molest his attempted sexually retarded woman and was 8 old. daughter years Sadie McGee when she own (In post-conviction petition, to the her affidavit attached her.) did molest actually now admits that petitioner Sadie murder in this surrounding The circumstances and heinous. Petitioner are brutal particularly case 5 feet victim, approximately stabbed the who was 12 times and pounds, weighed only inches tall and committed more incise wounds. inflicted 10 six-year-old of the victim’s murder presence screams responded to the A who neighbor son. *11 sex having with testified that she saw victim her chest. protruded knife still victim while the In light evidence, of the has not foregoing probability shown reasonable the outcome of his sentencing hearing would have been different if his trial counsel had presented the additional evidence attached We, to the post-conviction petition. therefore, hold that petitioner has failed to make a showing substantial his right effective assistance of counsel at sentenc- ing hearing was violated.
CONCLUSION stated, For the reasons judgment of the circuit court of Cook County dismissing petitioner’s post- conviction petition is affirmed. The clerk of this court is directed to enter an order setting Thursday, September 14, 2000, as the date on which the sentence of death in entered the circuit court is to imposed. be petitioner shall be executed in the manner provided by (West 1996). law. 725 ILCS The clerk of this 5/119 —5 court shall send a certified of the in copy mandate case to the Director of Corrections, the warden of Tamms Correctional Center, and the warden of the institution where petitioner is now confined.
Judgment affirmed. CHIEF JUSTICE HARRISON, in concurring part dissenting part: I agree that Childress’ convictions should not be disturbed. In my view, however, his sentence of death cannot be allowed to stand. For the reasons set forth my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d (1998), the Illinois death penalty law violates eighth and fourteenth amendments to the (U.S. United States Constitution Const., VIII, amends. XIV) I, and article section of the Illinois Constitution (Ill. 2). I, § Const. art. Childress’ sentence of death should therefore vacated, be and the cause should be *12 imprisonment. of a sentence of imposition
remanded (West 1996). l(j) 720 ILCS 5/9 — (No. 85313. ILLINOIS, THE OF Appel-
THE PEOPLE OF STATE LUMZY, lant, A. Appellee. v. GREGORY May Rehearing denied 2000. Opinion March filed 2000. RATHJE, J., part. took no
FREEMAN, J., concurring. specially BILANDIC, J., dissenting.