Lead Opinion
delivered the opinion of the court:
Following a jury trial in the circuit court of Lake County, defendant, Alton Coleman, was found guilty of aggravated kidnapping (Ill. Rev. Stat. 1983, ch. 38, par. 10—2) and murder (Ill. Rev. Stat. 1983, ch. 38, par. 9—1) in connection with the abduction and death of nine-year-old Vernita Wheat. The jury found defendant eligible for the. death penalty (Ill. Rev. Stat. 1983, ch. 38, pars. 9—1(b)(3), (b)(7)) and found that there were no mitigating circumstances sufficient to preclude imposition of the death, penalty. The trial court sentenced defendant to death and to a 15-year term of imprisonment for aggravated kidnapping. On direct appeal to this court, defendant’s convictions and sentence were affirmed. (People v. Coleman (1989),
BACKGROUND
The factual background of the trial and sentencing is set forth in this court’s opinion in defendant’s direct appeal (People v. Coleman (1989),
The following evidence was presented at trial. On June 19, 1984, the body of the victim, Vernita Wheat, was discovered in a bathroom in an abandoned apartment building in Waukegan. Her hands were bound, and a cable was wrapped around her chest and neck. Dr. Larry Blum performed an autopsy and determined that the cause of death was ligature strangulation and that the victim had died about three weeks before the discovery of the body. A forensic entomologist studied the development of fly larvae on the body and concluded that the body had probably been placed in the building on May 29 or May 30. Two fingerprints were found side by side on the lower portion of the door to the bathroom where the body was found. One of the fingerprints matched defendant’s, and the other was unidentified.
Juanita Wheat, the victim’s mother, testified that at the time of the offense she lived in Kenosha, Wisconsin, with her children, Vernita and seven-year-old Brandon. Juanita met defendant in late April or early May 1984, and knew him by the name Robert Knight. Defendant had told Juanita that he lived in her neighborhood in Kenosha, although in actuality he lived in Waukegan.. He also falsely claimed that he was employed by American Motors. Juanita last saw Vernita alive on May 29, 1984. That evening, defendant stated that he wanted to give Juanita a stereo as a gift. At about 10:15 p.m., with Juanita’s permission, Vernita accompanied defendant to pick up the stereo at defendant’s apartment. Juanita did not give defendant permission to take Vernita to Waukegan. Defendant failed to return with Vernita, and Juanita contacted the police.
Defendant and the victim were observed entering an establishment in Kenosha known as the "400 Club” at about 11:35 p.m. on May 29. Upon arrival at the 400 Club, defendant used the telephone, and a short time later a cab arrived to pick up defendant and Vernita. One of the patrons of the 400 Club testified that the cab driver’s name was Keith. Cab driver Keith Hach testified that at 11:35 p.m. on May 29 he was dispatched to the 400 Club where he picked up a black man and a black girl. Defendant is black, as was Vernita. The man first directed Hach to drive to a location in Zion, Illinois. When they arrived, the man asked Hach to drive to Waukegan. Hach dropped the man and girl off near Slater’s Barbeque in Waukegan. James Adams was working in the area near Slater’s Barbeque in the early morning hours of May 30. At about 1:30 a.m., he observed a black man wearing a large floppy hat walking with a young girl near Slater’s Barbeque. Slater’s Barbeque is located about two blocks from the building where Vernita’s body was discovered.
On May 31,1984, a Waukegan police officer observed defendant near defendant’s sister’s house. When the officer activated his squad car’s lights, defendant fled. The State also presented evidence that subsequent to Vernita Wheat’s disappearance, defendant attempted to obtain false identification cards and defendant left the State.
Anna Ross, an acquaintance of the Wheats, testified on defendant’s behalf that on the afternoon of May 30, 1984, she saw Vernita and defendant walking together in front of her house in Kenosha. Ross waved to Vernita and Vernita waved back.
The jury was instructed on theories of intentional murder (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(a)(1)), murder based on knowledge of a strong probability of death or great bodily harm (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(a)(2)) and felony murder (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(a)(3)) based on aggravated kidnapping. The jury returned general verdicts of guilty of aggravated kidnapping and murder.
Thereafter, a bifurcated death penalty hearing was conducted before the jury that had found defendant guilty. At defendant’s request, attorneys Melius and Pantsios were reappointed to represent him at sentencing. At the first stage of sentencing, the jury found that defendant was at least 18 years of age at the time of the murder and was eligible for the death penalty on the basis that he had been convicted of intentional murder in Indiana and Ohio, under laws substantially similar to the laws of the State of Illinois (Ill. Rev. Stat. 1983, ch. 38, 9—1(b)(3)). The record reveals that the Indiana and Ohio murders occurred after the murder of Vernita Wheat, but defendant was tried for those murders first. The jury also found defendant eligible for the death penalty because the victim was under 12 years of age and death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(b)(7).) The State also sought to impose the death penalty on the basis that defendant personally killed the victim and acted knowingly or intentionally. (Ill. Rev. Stat. 1983, ch. 38, par. 9— l(6)(b).) However, the jury could not reach a verdict finding defendant eligible for the death penalty on this basis.
After the jury found defendant eligible for the death penalty, defendant again requested to act pro se. The trial court granted the request and attorneys Melius and Pantsios were again appointed to act as advisors. At the second stage of the sentencing proceedings, the State introduced evidence that in June and July of 1984, defendant participated in the murders of seven-year-old Tamika Turks and Eugene Scott, whose bodies were discovered in Indiana; 15-year-old Tonnie Storey, Marlene Walters and Virginia Temple and her nine-year-old daughter, Rachelle, whose bodies were discovered in Ohio; and Donna Williams, whose body was discovered in Michigan. At the time of trial in the instant case, defendant had already been found guilty of the murders of Tamika Turks, Marlene Walters and Tonnie Storey. The State also presented evidence of defendant’s involvement in other offenses during this time period, including attempted murder, sexual assault, robbery and kidnapping.
As evidence in mitigation, defendant presented the testimony of Reverend Lloyd R. Davis, pastor of the Christian Fellowship Church in Waukegan, who had counselled defendant. According to Reverend Davis, defendant sought spiritual guidance and indicated his desire to find peace with God.
The jury unanimously found that there were no mitigating circumstances sufficient to preclude imposition of the death penalty, and the trial court sentenced defendant to death. As noted above, this court affirmed the conviction and sentence. On May 31, 1991, defendant filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122—1 et seq.). The circuit court dismissed all of the claims in defendant’s petition, as amended, except a portion of defendant’s claim of ineffective assistance of counsel relating to trial counsel’s performance during the first stage of sentencing (eligibility), and his claim that his waiver of counsel at trial and at the second stage of sentencing (aggravation/mitigation) was invalid. Following an evidentiary hearing, the circuit court denied those claims. This appeal followed.
ANALYSIS
I
At the outset, we note that the circuit court ruled that numerous claims in defendant’s post-conviction petition were waived because they could have been raised in defendant’s direct appeal. A proceeding under the Post-Conviction Hearing Act does not constitute an appeal. Rather, the Act permits a defendant to mount a collateral attack on his conviction and sentence based on violations of his constitutional rights. (People v. Mahaffey (1995),
It is true that numerous claims in defendant’s post-conviction petition involve matters documented in the trial record which could have been raised on direct appeal. Nevertheless, in his post-conviction petition, defendant alleges that appellate counsel’s failure to raise these issues on direct appeal constitutes ineffective assistance of counsel. A defendant is guaranteed the effective assistance of counsel on appeal. (Evitts v. Lucey (1985),
Accordingly, we will examine the merits of the issues which could have been raised on direct appeal as they relate to defendant’s allegations of ineffective assistance of counsel on appeal. We note that unless the underlying issues are meritorious, deféndant obviously suffered no prejudice due to appellate counsel’s failure to raise them on direct appeal. See Winsett,
II
Turning to the merits of defendant’s post-conviction claims, we first address those claims which the circuit court denied following an evidentiary hearing.
A. Competence to Waive Counsel
Defendant contends that the circuit court in the post-conviction proceedings erred in concluding that he was competent to waive counsel during trial and the second stage of sentencing. A criminal defendant may not waive his right to counsel unless he does so " 'competently and intelligently.’ ” (Godinez v. Moran (1993),
At the post-conviction evidentiary hearing, defendant’s trial attorneys and an attorney who represented defendant in a Federal kidnapping prosecution testified that defendant was extremely distrustful, uncooperative and difficult to work with. Defendant also presented the testimony of Dr. Leonard D. Elkun, a physician specializing in forensic psychiatry. Dr. Elkun personally interviewed defendant and reviewed reports from other mental health professionals concerning defendant’s mental and emotional health and various materials relating to legal proceedings and defendant’s personal background. Dr. Elkun formed the opinion that at the time defendant waived counsel, he was suffering from borderline personality disorder, a serious mental illness characterized by a poor capacity to organize one’s life and plan for the future, the elevation of personal motivations above societal values, unstable interpersonal relationships, and instability in mood. According to Dr. Elkun, individuals suffering from borderline personality disorder experience transient psychotic episodes, but may otherwise appear outwardly normal. Dr. Elkun testified that defendant’s grandmother, allegedly a practitioner of voodoo, instilled in defendant the belief that he possessed supernatural powers and was exempt from the laws of society. Dr. Elkun believed defendant’s condition caused him to overestimate his ability to conduct his own defense. According to Dr. Elkun, defendant’s paranoid thinking, characterized by mistrust of his attorneys, Combined with his delusions of grandeur, prevented defendant from being able to make a knowing and intelligent decision whether to waive counsel.
Defendant contends that in view of Dr. Elkun’s testimony, the circuit court erred in denying post-conviction relief. We disagree. Mindful that determinations by the trial court in post-conviction proceedings will not be disturbed on review unless contrary to the manifest weight of the evidence (People v. Eddmonds (1991),
The circuit court indicated that in light of all the evidence presented, it did not find Dr. Elkun’s testimony to be credible. In this regard we note that the circuit court had the opportunity to observe Dr. Elkun’s demeanor on the witness stand, including his demeanor during the State’s sometimes vigorous cross-examination. In addition to Dr. Elkun’s testimony, the trial court heard testimony from mental health professionals who had examined defendant in 1984 and found him fit to stand trial on criminal charges in another jurisdiction. Other evidence before the circuit court included the observations of defendant’s demeanor and behavior by his trial attorneys and others who had frequent contact with him prior to and during his trial. While these witnesses lacked formal training in psychiatry or psychology, nonexperts who have had an opportunity to observe a person may give their opinions of mental condition or capacity based on their observations, and such lay opinions may overcome an expert opinion. (See Bleitner,
Dr. Elkun’s testimony that defendant suffered paranoid thought processes might suggest an inability to assist counsel in his defense. However, there was testimony that while acting pro se defendant was sometimes agreeable to the recommendations of the attorneys acting as his advisors. From this evidence it is possible to infer that defendant’s distrustfulness was not so pervasive as to constitute paranoia. While Dr. Elkun offered the opinion that defendant’s decision to conduct his own defense was symptomatic of paranoid thinking, the trial court could conclude that the decision may have been in part a response to the fact that in three prior capital cases in other jurisdictions, his attorneys had been unable to save him from the death penalty. In view of all the circumstances, the circuit court’s determination that defendant’s waiver of counsel was valid is not against the manifest weight of the evidence.
B. Ineffective Assistance of Counsel During the Eligibility Phase of the Sentencing Proceedings
Defendant contends that he was deprived of effective assistance of counsel during the first stage of the sentencing proceedings. According to defendant, his attorneys should have asserted a defense to imposition of the death penalty based on the eighth amendment proportionality principles set forth in Enmund v. Florida (1982),
Defendant maintains that certain physical and testimonial evidence presented at trial suggests that even to the extent he was involved in the murder of Vernita Wheat, he did not act alone. Defendant asserts that the evidence provides no basis for a rational conclusion as to the respective roles and mental states of the participants, and accordingly it cannot be established that he acted with the degree of personal culpability necessary to permit imposition of the death penalty. At the post-conviction evidentiary hearing, defendant presented the testimony of Robert Isaacson, a defense attorney with extensive experience in capital cases. Isaac-son testified that defendant’s attorneys should have sought a ruling from the trial court that defendant was ineligible for the death penalty as a matter of law. According to Isaacson, if the trial court declined to rule that defendant was ineligible for the death penalty, defendant’s attorneys should have requested that the jury be instructed in accordance with Enmund and should have offered argument on the question. Defendant contends that trial counsel’s failure to take these steps constituted ineffective assistance of counsel. We disagree.
As noted, claims of ineffective assistance of counsel based on deficient representation of a criminal defendant are evaluated in accordance with the two-prong test set forth in Strickland v. Washington (1984),
"A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” (Strickland,466 U.S. at 687 ,80 L. Ed. 2d at 693 ,104 S. Ct. at 2064 .)
Where it is possible to resolve an ineffective-assistance claim on the basis that the defendant suffered no prejudice as a result of counsel’s allegedly defective performance, the claim may be decided against the defendant without consideration of whether counsel’s performance was actually deficient. Strickland,
Having carefully reviewed the trial record, we conclude that the omissions by trial counsel upon which defendant bases his ineffective-assistance claim did not result in prejudice within the meaning of Strickland. Enmund and Tison place limits on when the death penalty may be imposed on a person who aids and abets a felony during the course of which a murder is committed by others. Neither decision limits the imposition of capital punishment upon an offender who personally performs the acts causing death. (See Mann v. Dugger (11th Cir. 1987),
We note that "Enmund does not impose any particular form of procedure upon the States.” (Emphasis in original.) (Cabana v. Bullock (1986),
Defendant maintains, however, that the evidence at trial suggests the involvement of another individual who may have been the actual killer. Defendant notes James Adams’ testimony that he observed a black male wearing a large hat walking with a young girl near the building where the victim’s body was discovered. Defendant points out that there was no testimony that he was wearing a hat during the relevant time frame. Defendant also contends that pubic hairs not belonging to him were present at the victim’s autopsy. Lastly, defendant notes the unidentified fingerprint found next to his own on the door to the bathroom where the victim’s body was discovered.
We are not persuaded that this evidence raises a reasonable doubt as to whether defendant performed the acts causing Vernita Wheat’s death. First, that the individual observed by James Adams wore a hat does not mean that that individual was someone other than defendant. Even if defendant was not seen wearing a hat at other points in time, he might have worn one at the time Adams made his observation. Defendant’s reliance on pubic hairs which he claims were present at the victim’s autopsy is similarly unpersuasive. Defendant’s argument is somewhat misleading inasmuch as he neglects to mention conflicting evidence regarding the origin of the pubic hairs and other testimony casting doubt on whether the hairs belonged to a participant in the crimes. Dr. Larry Blum performed the autopsy with the assistance of James Murray, a deputy coroner for Lake County. Murray testified that he observed Dr. Blum "pull” hairs from the pubic area of the victim. On the other hand, Dr. Blum testified that he did not recall taking any pubic hairs from the victim and did not discover any loose hairs in the pubic area of the victim. Dr. Blum also testified that he found no signs of sexual abuse. Chester Blythe, a special agent With the Federal Bureau of Investigation, compared the pubic hairs to specimens obtained from defendant and concluded they did not match. However, Special Agent Blythe also testified that the hairs appeared to have been forcibly removed. Moreover, he noted the presence of tissue on the hairs, which was consistent with hairs obtained from a decomposing body. Given the somewhat conflicting testimony of Dr. Blum and Murray, and Agent Blythe’s testimony suggesting that the hairs may have been plucked from a decomposing body, the jury need not have viewed the pubic hairs as establishing the involvement of an accomplice.
Finally, although the unidentified fingerprint near defendant’s own fingerprint might theoretically have been left by an accomplice, it might also have been left by someone unconnected to the crime, and its proximity to defendant’s fingerprint could rationally be attributed to coincidence. We are aware that in rebuttal to defendant’s closing argument the State asserted that the unidentified fingerprint belonged to an unknown party to the crime. Nonetheless, the State’s argument was not binding on the jury. As noted above, the jury was not instructed on principles of accountability, and thus to convict defendant of murder under any of the theories presented, it had to conclude beyond a reasonable doubt that defendant was the actual killer. The question before us is whether the evidence supports this determination. We conclude that it does. Where circumstantial evidence relied upon to support the defense that another committed the crime is unsatisfactory, based upon mere surmise or possibility, without evidence to support it, a hypothesis of innocence may be rejected by the trier of fact. (People v. Hendricks (1986),
Even if we were to adopt defendant’s theory that Vernita Wheat may have been killed by an accomplice, we would still conclude that trial counsel’s inaction was not prejudicial. Under Tison, when a murder occurs during the course of another felony, major participation in the felony combined with reckless indifference to human life satisfies the eighth amendment’s standard of personal culpability required for imposition of capital punishment. Although Tison was decided after the sentencing proceedings in the case at bar, defendant must demonstrate prejudice with reference to the Tison standard even though the existing standard under Enmund alone may arguably have been more favorable to defendant. See Lockhart v. Fretwell (1993),
Even assuming, arguendo, that defendant may have had an accomplice who actually killed the victim, defendant was clearly a major participant in the underlying felony of aggravated kidnapping. Additionally, although the State’s case depended upon circumstantial evidence which does not elucidate all the details of the victim’s death, when the evidence is viewed in its entirety, the conclusion that defendant ¡acted at least with reckless indifference to the victim’s life is practically inescapable. The evidence clearly establishes that defendant kidnapped the young victim and that defendant was present at the location where the victim’s body was discovered with her hands and chest bound and a cable wrapped around her neck. Given this evidence, it strains credulity to postulate that defendant might have acted with a mental state less culpable than reckless indifference to human life. We conclude both that the evidence was sufficient to establish beyond a reasonable doubt the requisite culpability under Tison, and that no reasonable probability exists that the jury would have found otherwise if the question had been submitted to it.
Ill
We next consider those post-conviction claims which the circuit court dismissed without an evidentiary hearing.
A. Ineffective Assistance of Counsel Prior to Trial
i. Failure to Investigate Mitigating Evidence
Defendant contends that his attorneys’ performance prior to trial was deficient because they failed to conduct any meaningful investigation into his personal background and mental or emotional condition for purposes of developing mitigating evidence for use during the penalty phase of the proceedings. Defendant claims that an adequate investigation would have yielded evidence of his severe mental or emotional problems and that he experienced an extremely troubled childhood. According to defendant, had this evidence been available at the second stage of sentencing (aggravation /mitigation), there is a reasonable probability that the jury would have spared him from the death penalty. The circuit court dismissed this claim without an evidentiary hearing, concluding that the omitted evidence would not have changed the outcome of sentencing.
Defendant’s post-conviction petition includes affidavits from family members and acquaintances, and affidavits from several mental health professionals discussing defendant’s personal background and offering opinions regarding defendant’s mental or emotional condition. According to . these affidavits, defendant was raised in a highly unstable, abusive and sexually inappropriate environment. The affidavits from mental health professionals variously indicated, inter alia: (1) a probable diagnosis of borderline personality disorder (which sometimes involves psychotic episodes when the sufferer is subjected to extreme stress); (2) that defendant suffered from a severe personality disorder with borderline, paranoid and antisocial elements; (3) that defendant was probably suffering from manic-depressive psychosis at the time of the offenses; and (4) that there were strong indications that defendant’s aberrant behavior and personality disorder were linked, in part, to attentional deficit hyperactivity disorder and associated emotional stress during childhood and adulthood.
Where an adequate investigation has been conducted, the failure to present mitigating evidence does not itself establish that defense counsel was ineffective. (See Burger v. Kemp (1987),
Even where counsel’s performance is deficient due to the failure to investigate mitigating circumstances, the defendant must still demonstrate prejudice to sustain a claim of ineffective assistance of counsel. In evaluating prejudice in a capital sentencing context, "the question is whether there is a reasonable probability that, absent the errors, the factfinder *** would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” (Strickland v. Washington (1984),
This case differs from the typical "failure to investigate” case in that, although defendant was represented by counsel for a period prior to trial, he invoked the right to self-representation at the aggravation/ mitigation stage of sentencing. The State argues that because defendant proceeded without counsel at the aggravation /mitigation stage, he may not pursue an ineffective-assistance claim relating to the outcome of that portion of the proceedings. (But see Hance v. Kemp (1988),
A defendant is entitled to an evidentiary hearing on a post-conviction claim only if he has made a substantial showing, based on the record and supporting affidavits, that his constitutional rights were violated. (People v. Guest (1995),
Moreover, we must assess prejudice in a realistic manner based on the totality of the evidence. Accordingly, it is improper to focus solely on the potential mitigating evidence. As our cases illustrate, the nature and extent of the evidence in aggravation must also be considered. See People v. Thomas (1995),
In light of the overwhelming aggravating circumstances, the introduction of potentially mitigating evidence of defendant’s background and mental and emotional health would not have been sufficient to change the jury’s sentencing decision. The crime in the case at bar was a horrifying and despicable attack on a defenseless child accomplished by deception of the child’s mother. Moreover, the jury heard evidence that in the weeks following the murder of Vernita Wheat, defendant engaged in a brutal interstate crime spree, murdering or terrorizing numerous children and adults. Given the aggravating circumstances in the case at bar and the nature of the proposed mitigating evidence, the only realistic conclusion to be drawn is that there is no reasonable probability that the proposed mitigating evidence would have persuaded the jury that the balance of aggravating and mitigating factors did not warrant the death penalty.
Defendant relies principally on People v. Perez (1992),
In the case at bar, defendant’s conduct in defending himself at trial suggests that he is of at least an average intellectual capacity, while the evidence of his crimes establishes him as a cunning predator. The quantum of aggravating evidence here also clearly distinguishes this case from Perez. In Perez, the defendant, an inmate of the Illinois correctional system, was eligible for the death penalty for murdering a fellow inmate (see Ill. Rev. Stat. 1979, ch. 38, par. 9—1(b)(2)). Other aggravating circumstances consisted of the defendant’s prior convictions for armed robbery and purse snatching, the fact that the defendant had held a scissors blade to the neck of a victim of an armed robbery and defendant’s disciplinary violations in prison. (See People v. Perez (1985),
ii. Failure to Move for Substitution of Judge
Defendant contends that trial counsel’s failure to move for a substitution of judge at trial represents ineffective assistance of counsel. Apparently, at the time of the commission of the offense in the case at bar, defendant was free on bond with sex offense charges pending against him. The trial judge in the case at bar was also the judge who admitted defendant to bail. A local newspaper editorial was critical of the fact that defendant was free on bond at the time of the offense. While defendant cites no authority involving similar facts, he insists that under these circumstances trial counsel’s failure to move for substitution of judges deprived him of an impartial tribunal. We disagree.
This court has noted that outside of situations where a judge’s pecuniary interest in a case requires disqualification, "[ajnother guiding principle on the issue of judicial bias is whether the case involves a possible temptation such that the average person, acting as judge, could not hold the balance nice, clear and true between the State and the accused.” (People v. Del Vecchio (1989),
The additional element of media attention to defendant’s freedom on bail at the time of the offense does not alter our conclusion. The mere fact that a judge has been subjected to press criticism in connection with a case or a party does not necessarily require the judge’s disqualification. In one court’s words, "[b]y training and inclination, judges meet media criticism of their actions with robust insensitivity.” (United States v. Martorano (3d Cir. 1989),
iii. Per se Sixth Amendment Violation
Defendant maintains that the Lake County public defender’s office was deficient in the areas of training, supervision and the use of investigative and mitigation services in capital cases, and that attorney Pantsios personally lacked adequate training in defense of capital cases. Defendant submits that these circumstances constitute "resource deprivation” and give rise to a per se violation of the sixth amendment right to counsel. As has been seen, ineffective-assistance claims are ordinarily evaluated in accordance with the Strickland test which requires a showing of deficient performance and resultant prejudice. However, defendant cites United States v. Cronic (1984),
In Cronic, the defendant was charged with mail fraud in connection with a "check kiting” scheme. An inexperienced lawyer with a real estate practice was appointed substitute counsel for the accused and was afforded 25 days to prepare for trial. The Cronic Court indicated that "[circumstances *** may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” (Cronic,
The per se approach suggested in Cronic is "in all events the exception, not the rule.” (Scarpa v. Dubois (1st Cir. 1994),
While defendant styles his claim as one of "resource deprivation,” the thrust of his allegations goes to a narrow aspect of the overall competence of his attorneys and the Lake County public defender’s office to represent capital defendants. (There appears to be no dispute that the attorneys were experienced and capable in the area of criminal defense generally.) The general allegations in this case of inadequate training and deficient office practices do not demonstrate circumstances of either the character or magnitude that would give rise to a per se ineffective assistance of counsel claim.
B. Waiver of Counsel in a Capital Case
Defendant argues that his constitutional rights were violated when the trial court permitted him to waive counsel in a capital case. In Faretta v. California (1975),
In Faretta, the Court explained:
"Although not stated in the [Sixth] Amendment in so many words, the right to self-representation — to make one’s own defense personally — is *** necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.
The counsel provision supplements this design. It speaks of the 'assistance’ of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant — not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. *** It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas. [Citations.] This allocation can only be justified, however, by the defendant’s consent, at the outset, to accept counsel as his representative. An unwanted counsel 'represents’ the defendant only through a tenuous and unacceptable legal fiction.” Faretta,422 U.S. at 819-21 ,45 L. Ed. 2d at 572-73 ,95 S. Ct. at 2533-34 .
This reasoning applies with no less force in a capital case than in other cases. We are not persuaded by defendant’s argument that the heightened need for reliability in capital cases justifies forcing the accused to accept representation by counsel. Defendant’s argument assumes that, the representation by counsel is invariably beneficial to the accused. However, in Faretta the Court noted that it is conceivable that in rare instances the accused may be able to present his case more effectively by conducting his own defense than entrusting his defense to counsel. Moreover, as the Court observed, "[plersonal liberties are not rooted in the law of averages.” Faretta,
In People v. Silagy (1984),
C. Jury Exposure to Pretrial Publicity
Defendant contends his right to a fair trial was compromised because certain members of the jury were exposed to pretrial publicity about the case. Specifically, defendant contends that several jurors were aware that he had already been convicted in other jurisdictions of offenses occurring during the alleged crime spree following the Vernita Wheat murder.
At the outset, we note that defendant, acting pro se, accepted each of the jurors in question. The failure to challenge a juror for cause or by peremptory challenge waives any objection to that juror. (People v. Collins (1985),
In order to minimize the impact of pretrial publicity, the jury was selected from a pool composed of residents of Rock Island County, rather than Lake County, where the offense occurred. While defendant contends that five jurors were aware of his convictions in other jurisdictions, review of the record reveals that only two of the jurors identified by defendant had such knowledge. Those jurors had only minimal knowledge of the defendant’s other offenses and were apparently unfamiliar with the details of those offenses. Both of the jurors indicated that they believed they could disregard defendant’s prior convictions and decide the issues based solely on the evidence.
A juror’s knowledge of the accused’s prior convictions for other offenses does not create a presumption of prejudice. (Murphy v. Florida (1975),
We note parenthetically that inflammatory pretrial publicity may sometimes rise to a level creating "such a presumption of prejudice in a community that the jurors’ claims that they can be impartial should not be believed.” (Patton v. Yount (1984),
Defendant also contends that some jurors may have been aware that defendant had previously been sentenced to death in other jurisdictions, thus diminishing the jurors’ sense of responsibility for imposing the death penalty in the case at bar. The record provides no support for defendant’s contention that any members of the jury were aware he had previously been sentenced to death.
D. Peremptory Challenges to Jurors Expressing Reservations About the Death Penalty
Defendant argues that the trial court erred in allowing the State to exercise peremptory challenges against certain prospective jurors who expressed some reservations about the death penalty, but whose views did not rise to the level of cause under Witherspoon v. Illinois (1968),
E. Death-Qualified Jury
Defendant contends that it was improper to allow “death qualification” of the jury. Defendant maintains that in a case where the same jury determines guilt and decides whether the death penalty will be imposed, it is impermissible to excuse prospective jurors for cause based on their views about the death penalty even when the standard for exclusion under Witherspoon v. Illinois (1968),
Even prior to McCree, on several occasions this court rejected the argument that qualification of prospective jurors pursuant to Witherspoon results in a conviction-prone jury, denying the accused a fair trial. (See People v. Collins (1985),
F. Death Eligibility Under the Multiple Murders Factor Based on Subsequent Murders
Defendant was found eligible for the death penalty under the multiple-murder eligibility factor (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(b)(3)) on the basis of convictions for other murders which occurred after the murder of Vernita Wheat. Defendant argues that because at the time of the Vernita Wheat murder the other murders had not ;ret been committed, he had no notice of his eligibility for the death penalty, and imposition of the death penalty violates due process. In support of this argument, defendant relies exclusively on Bouie v. City of Columbia (1964),
In a related point, defendant notes that in People v. Albanese (1984),
G. Evidence of the Death Penalty’s Lack of a Deterrent Effect
Defendant contends that the trial court erred in granting the State’s motion in limine barring defendant from introducing evidence that the death penalty has proved ineffective as a deterrent to crime. In People v. Williams (1983),
H. Constitutionally Infirm Jury Instructions at Sentencing
Citing People ex rel. Free v. Peters (N.D. Ill. 1992),
I. Natural Life Instruction
Because of defendant’s multiple murder convictions, the only sentencing alternative to the death penalty was natural life imprisonment. (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8—1(a)(1).) Defendant contends that the trial court erred in refusing his tendered instruction informing the jury that if the death penalty were not imposed, he would receive a mandatory natural life sentence. Instead, the jury was simply instructed that if defendant were not sentenced to death the trial court would sentence him to a term of imprisonment. See Illinois Pattern Jury Instructions, Criminal, No. 7A.01 (2d ed. 1981).
This court addressed the same issue in defendant’s direct appeal. (People v. Coleman (1989),
Defendant also cites the United States Supreme Court’s decision in Simmons v. South Carolina (1994),
This court has yet to decide whether Simmons applies retroactively in post-conviction proceedings where the defendant’s conviction and sentence were affirmed on direct review before Simmons was decided. (See Franklin,
Defendant appears to acknowledge that the prosecution did not raise the issue of future dangerousness. However, defendant maintains that the pre-Gacho instruction given here itself raises the issue of future dangerousness. We disagree. While the instruction may not dispel concerns of future dangerousness as effectively as a Gacho instruction, neither does the instruction raise the issue of future dangerousness in the sense contemplated by Simmons. Defendant also contends that the State in effect misled the jury about sentencing alternatives. During his closing argument at the aggravation/mitigation stage of sentencing, defendant intimated that if the death penalty was not imposed, he would receive a life sentence. The trial court sustained the State’s objection to these remarks. Even if the State’s objection could somehow be viewed as misleading, defendant’s argument would fail. Citing a footnote in the plurality opinion, defendant contends that Simmons embraces a general principle that the prosecutor may not mislead the jury. In context, the comments in the footnote to which defendant refers are clearly limited to cases where the prosecution has placed future dangerousness at issue. (Simmons,
J. Reliability of the Sentencing Phase Verdict
Defendant claims that the trial judge erred in allowing the jury to deliberate on whether the death penalty should be imposed without first hearing mitigating evidence of his background and mental or emotional condition. According to defendant the absence of such evidence undermined the reliability of his sentence in contravention of the guarantees of the eighth amendment.
Courts in other jurisdictions have considered and rejected the argument that the eighth amendment requires that mitigating evidence must somehow be presented on a defendant’s behalf notwithstanding the defendant’s choice to refrain from introducing it. In Wallace v. State (Okla. Crim. App. 1995),
" '[T]he required reliability is attained when the prosecution has discharged its burden of proof at the guilt and penalty phases pursuant to the rules of evidence and within the guidelines of a constitutional death penalty statute, the death verdict has been returned under proper instructions and procedures, and the trier of penalty has duly considered the relevant mitigating evidence, if any, which the defendant has chosen to present. A judgment of death entered in conformity with these rigorous standards does not violate the Eighth Amendment reliability requirements.’ ” (Emphasis added.) (Wallace,893 P.2d at 511 , quoting Bloom,48 Cal. 3d at 1228 ,774 P.2d at 719 ,259 Cal. Rptr. at 690 .)
(Accord Silagy v. Peters (7th Cir. 1991),
K. Racial Discrimination in Sequence of Prosecutions
Defendant alleges in his post-conviction petition that representatives of the State met with prosecutors in other jurisdictions to determine the sequence of prosecutions arising from defendant’s alleged multistate crime spree, and that as a result it was decided that defendant would first be tried for the murder of Marlene Walters, the only white victim among the several alleged murder victims. While defendant contends that this decision violated his constitutional rights, he has failed to cite any pertinent authority or advance any meaningful argument or analysis in support of this contention. Accordingly, the issue is waived. See People v. Patterson (1992),
L. Constitutionality of the Death Penalty
Defendant finally urges us to abolish the death penalty altogether. In Gregg v. Georgia (1976),
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Lake County dismissing or denying each of defendant’s post-conviction claims is affirmed. The clerk of this court is directed to enter an order setting Tuesday, January 23, 1996, as the date on which the sentence of death, entered in the circuit court of Lake County, is to be carried out. Defendant shall be executed in the manner provided by law. (Ill. Rev. Stat. 1991, ch. 38, par. 119—5.) The clerk of this court shall send a certified copy of the mandate to the Director of Corrections, to the warden of Stateville Correctional Center, and to the warden of the institution where defendant is now confined.
Affirmed.
Concurrence Opinion
concurring:
I concur in the judgment of the court, and I join much of the court’s opinion. Unlike the majority, however, I would reject the defendant’s claim of ineffective assistance of counsel at the second stage of the sentencing hearing squarely on the ground that the defendant, acting pro se at that time, can make no claim that counsel was ineffective. See McKaskle v. Wiggins (1984),
Six days before trial, the defendant chose to proceed pro se. The two public defenders who had been representing the defendant were then appointed to act as standby counsel. Following the defendant’s conviction for murder and aggravated kidnapping, the State asked for a death penalty hearing. For the first stage of the sentencing hearing, the defendant requested the assistance of counsel, and the two public defenders represented him during that portion of the case. At the second stage of the hearing, however, the defendant once more waived the assistance of counsel, and the two public defenders again acted only as standby counsel. The only evidence in mitigation presented by the defendant was the testimony of a clergyman. (People v. Coleman (1989),
To avoid the principle that a person proceeding pro se may not later complain that he received the ineffective assistance of counsel, the defendant attempts to couch the present argument in terms of the attorneys’ failure to adequately prepare for the sentencing hearing during the period when they were still representing him. Thus, the defendant states in his reply brief that counsel in this case "neglected to obtain [mitigating] evidence in a manner which would allow it to be introduced at the sentencing hearing and thereby prevented the Petitioner from having any chance of presenting such evidence after the Attorneys’ discharge.” Nowhere, however, does the defendant explain in what way the conduct of his former attorneys actually prevented him from introducing evidence in mitigation. This is not a case in which former counsel’s conduct later precluded a defendant, then pro se, from introducing evidence, presenting a motion, or doing anything else. Here, the defendant seeks merely to ¿void the consequences of his decision to represent himself during the second stage of the sentencing hearing.
To succeed on a claim of this nature, the defendant should be required to establish, at the least, that actions of the defense attorneys prior to their withdrawal from the case actually prevented the defendant from accomplishing something he would otherwise have been able to do while acting pro se. To suggest otherwise means that counsel not only must prepare, on the schedule they determine, the case they believe they will be presenting, but also must anticipate their eventual unemployment and do in advance whatever additional preparation the pro se defendant’s case will require.