People v. EnochPeople v. Enoch
Following a jury trial in the circuit court of Peoria County, defendant, Willie E. Enoch, was convicted of murder, aggravated kidnapping and attempted rape. Defendant waived a jury at the death penalty hearing, and the circuit judge found defendant eligible for the death penalty based on two felony murder convictions: murder in the course of aggravated kidnapping and murder in the course of attempted rape (
Thereafter, on April 13, 1989, defendant filed a pro se petition for post-conviction relief under the Post-Conviction Hearing Act (
In his amended petition for post-conviction relief, defendant raised three issues. First, defendant claimed that he was denied his right to effective assistance of counsel because his trial attorney, Mark Rose, had a per se conflict of interest, and because his actual performance fell below the constitutional standard necessary to constitute effective assistance of counsel. Second, defendant argued that his due process rights were violated when this court retroactively applied a “new waiver rule” in his case. Third, defendant argued that the Illinois death penalty statute was unconstitutional.
Subsequently, the State filed a motion to dismiss defendant‘s pro se and amended petition for post-conviction relief. On April 19, 1990, the circuit court, without having held an evidentiary hearing on this matter, granted the State‘s motion to dismiss the pro se petition and the amended petition. On appeal directly to this court (
The facts in this case are adequately set forth in this court‘s opinion on defendant‘s direct appeal (People v. Enoch (1988), 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124), and will be repeated here only when necessary.
Initially we note that an action for post-conviction relief represents a collateral attack on a prior judgment; it is not an appeal from an underlying conviction and sentence. (People v. Ruiz (1989), 132 Ill.2d 1, 9, 138 Ill.Dec. 201, 547 N.E.2d 170; People v. Free (1988), 122 Ill.2d 367, 377, 119 Ill.Dec. 325, 522 N.E.2d 1184; People v. James (1986), 111 Ill.2d 283, 290, 95 Ill.Dec. 486, 489 N.E.2d 1350.) To be entitled to post-conviction relief, a defendant must establish a substantial deprivation of Federal or State constitutional rights in the proceedings that produced the judgment under attack. (
Defendant argues that he was denied his sixth amendment right to effective assistance of counsel because his trial counsel, Mark Rose, had previously represented one of the State‘s main witnesses, Derek Proctor. On November 14, 1983, immediately prior to jury selection, the trial judge stated on the record that it had come to the court‘s attention that Rose had previously represented Proctor on a felony matter in 1979. The following colloquy ensued between the trial judge and Rose:
“Q. [Trial Judge]: Mr. Rose, do you feel that the existence of your prior relationship with this proposed witness would cause you any difficulty insofar as your representation of the defendant, Willie Earl Enoch?
A. [Mark Rose]: I don‘t believe so your honor.
Q. Has there been an on-going relationship of attorney-client between you and Mr. Proctor?
A. Only that I believe Mr. Proctor has been in the office, and I believe it is since the date of this, although I can‘t be sure, concerning possibly hiring me to represent him in matters. But so far as I recall, never represented him privately, and, I believe, this may be the only occasion that, in fact, I represented him.
Q. There is no attorney-client relationship, is that right?
A. That‘s correct.
Q. To the best of your recollection—I don‘t mean to put words in your mouth—but my understanding is, to the best of your recollection, your attorney client relationship with Mr. Proctor ended with the conclusion of this 1979 case, is that right?
A. I believe so. I don‘t recall representing—in fact, to be truthful, I didn‘t remember representing him in that
case until I procured the Certified Copy of Conviction this morning. Q. Do you have any specific recollection of your representation of Mr. Proctor?
A. Now I do.
Q. Are they recollection, or do you just know it from the fact?
A. No, I recall the incident, and I recall the codefendant in the case.
Q. Just to be clear, that relationship ended in 1979, is that right?
* * * * * *
A. Yes.
Q. You don‘t feel your effectiveness is impaired in any way, is that right?
A. No.” (Emphasis added.)
Following this exchange, the trial judge stated “that this state of affairs * * * does not constitute a conflict of interest nor, in fact, does any conflict of interest exist based on the representation by Mr. Rose, which are amply supported by the record.” We agree.
The right to effective assistance of counsel under the
In this case, we agree with the State that Rose‘s previous representation of Proctor in 1979, four years prior to defendant‘s trial, does not establish that a per se conflict of interest existed between Rose and defendant. As stated above, “[w]here defense counsel has represented a State‘s witness, a per se conflict of interests exists if the professional relationship between the attorney and the witness is contemporaneous with counsel‘s representation of defendant.” (Emphasis added.) (Thomas, 131 Ill.2d at 111, 137 Ill. Dec. 1, 545 N.E.2d 654; Flores, 128 Ill.2d at 83, 131 Ill.Dec. 106, 538 N.E.2d 481; Free, 112 Ill.2d at 168, 97 Ill.Dec. 396, 492 N.E.2d 1269; Washington, 101 Ill.2d at 110-13, 77 Ill.Dec. 770, 461 N.E.2d 393; see also Robinson, 79 Ill.2d at 161, 37 Ill.Dec. 267, 402 N.E.2d 157; Strohl, 118 Ill.App.3d at 1092, 74 Ill.Dec. 774, 456 N.E.2d 276.) Based on Rose‘s unequivocal responses to
Defendant also argues that his appellate counsel, Robert Seeder, was ineffective for failing to raise the per se conflict of interest claim on direct appeal. The State argues that defendant has waived the issue of ineffective assistance of appellate counsel because he failed to include it in either his pro se petition for post-conviction relief or his amended petition for post-conviction relief. Regardless, based on our discussion above that there was no per se conflict of interest between defendant and Rose, we find that appellate counsel was not ineffective for failing to raise a meritless issue.
Defendant maintains that if we determine that Rose‘s prior representation of Proctor does not constitute a per se conflict of interest, defendant was nonetheless denied effective assistance of counsel as set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Specifically, defendant argues that Rose was ineffective for failing to investigate fully the facts suggesting that Proctor murdered the victim, Kay Burns; failed to investigate the contradictions in Proctor‘s version of events; failed to introduce evidence supporting defendant‘s defense that Proctor murdered the victim; failed to adequately cross-examine Proctor at trial; failed to question Proctor about the similarities between Proctor‘s prior sexual deviate assault conviction and the victim‘s murder; failed to call witnesses who would have testified to Proctor‘s prior history of violence; failed to question the police witnesses about why they considered Proctor a suspect in the victim‘s murder; and failed to even articulate to the jury defendant‘s defense that Proctor murdered the victim.
The State argues that defendant failed to raise a claim of ineffective assistance of counsel pertaining to Rose‘s prior representation of Proctor on direct appeal, and thus the issue is waived. (See People v. Neal (1990), 142 Ill.2d 140, 154 Ill.Dec. 587, 568 N.E.2d 808 (rulings on issues that were previously raised at trial and on direct appeal are res judicata, and issues that could have been raised in the original proceedings, but were not, will be deemed waived).) In addition, the State maintains that a review of the record indicates that defendant‘s claims are meritless. We agree.
Although the question of whether defendant received ineffective assistance of counsel for the reasons he lists above may be deemed waived by reason of failure to raise them on direct appeal (People v. Gaines (1984), 105 Ill.2d 79, 88, 85 Ill.Dec. 269, 473 N.E.2d 868), we note that the record clearly does not support defendant‘s contentions. Under Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, a defendant claiming ineffective assistance of counsel must show: (1) counsel‘s performance fell below an objective standard of reasonableness and (2) defendant was prejudiced. In this instance, defendant has failed to meet either prong of the Strickland standard—namely that Rose‘s performance fell below an objective standard of reasonableness, or that defendant was prejudiced.
First, after reviewing the record from defendant‘s trial, it is clear that Rose made every effort to discredit the prosecution‘s case, impeach the State‘s witnesses, including Proctor, and shift the blame for the murder from defendant to Proctor. Second, defendant claims that Rose failed to question Proctor about the similarities between Proctor‘s 1980 deviate sexual assault conviction and the victim‘s murder. Specifically, defendant argues that Rose should have “cross-examined Proctor regarding the similarities between the way Proctor had bound the victim in his deviate sexual assault case and the way [the victim‘s] hands had been bound.” We disagree
Further, even if we were to assume that Rose‘s performance fell below an objective standard of reasonableness, we nonetheless conclude, as this court did on direct appeal, that defendant has failed to establish actual prejudice. On direct appeal, this court noted the rule in Strickland that a court need not consider the performance component of an ineffective assistance of counsel claim before analyzing the prejudice component. (Enoch, 122 Ill.2d at 201-02, 119 Ill.Dec. 265, 522 N.E.2d 1124.) Consequently, this court held that, given the overwhelming evidence of defendant‘s guilt, defendant has failed to establish that but for counsel‘s alleged unprofessional errors, the result of the proceeding would have been different. Specifically, this court stated:
“In view of the overwhelming evidence of the defendant‘s guilt, and of the aggravating circumstances, it cannot be reasonably contended that the results would possibly have been different but for the alleged substandard representation by counsel.” (Enoch, 122 Ill.2d at 202, 119 Ill.Dec. 265, 522 N.E.2d 1124.)
As noted on direct appeal, the evidence of defendant‘s guilt was overwhelming, and thus there is no reasonable possibility that but for Rose‘s alleged errors the result would have been different. Defendant has failed to establish actual prejudice under the second prong of the standard set forth in Strickland, and we deny his claim.
Defendant next argues that he was denied his constitutional right to due process when this court retroactively applied a “new waiver rule” in his direct appeal. Defendant claims that at the time of his trial in November 1983, the law in Illinois was unclear as to whether defendant was required to file a post-trial motion for a new trial to preserve various issues for appeal. Accordingly, defendant failed to file a post-trial motion. On direct appeal, this court stated “the failure to raise an issue in a written motion for a new trial results in a waiver of that issue on appeal.” (Enoch, 122 Ill.2d at 185-86, 119 Ill.Dec. 265, 522 N.E.2d 1124.) Defendant argues that the retroactive application of this “new waiver rule” violates his right to due process.
We disagree. On direct appeal, this court did not apply a new waiver rule, but rather reaffirmed the law in this State that ”[b]oth a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” (Emphasis in original.) (Enoch, 122 Ill.2d at 186, 119 Ill.Dec. 265, 522 N.E.2d 1124.) Although we cited four cases as support which were decided after defendant‘s trial, but before defendant‘s direct appeal (see Enoch, 122 Ill.2d at 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (citing People v. Shum (1987), 117 Ill.2d 317, 111 Ill.Dec. 546, 512 N.E.2d 1183, People v. Szabo (1986), 113 Ill.2d 83, 93, 100 Ill.Dec. 726, 497 N.E.2d 995, People v. Porter (1986), 111 Ill.2d 386, 399, 95 Ill. Dec. 465, 489 N.E.2d 1329, and People v. Caballero (1984), 102 Ill.2d 23, 31, 79 Ill. Dec. 625, 464 N.E.2d 223)), we also explained that “[t]he requirement for a written post-trial motion is statutory, and the statute requires that a written motion for a new trial shall be filed by the defendant and that the motion for a new trial shall specify the grounds therefor. (
In addition, even assuming that we did in fact retroactively apply a new waiver rule in defendant‘s case on direct appeal, defendant was not prejudiced. On direct appeal, appellate counsel argued that trial counsel was ineffective for failing to file a post-trial motion and preserve numerous alleged trial errors for review. (See Enoch, 122 Ill.2d at 201, 119 Ill.Dec. 265, 522 N.E.2d 1124.) As previously stated, this court held that trial counsel‘s failure to file a post-trial motion did not prejudice defendant. Because defendant was not prejudiced by trial counsel‘s failure to file a post-trial motion, defendant obviously could not have been prejudiced by an alleged retroactive application of a “new waiver rule” which required the filing of the written motion.
Lastly, defendant argues that the Illinois death penalty statute is unconstitutional. Defendant argues that the Illinois death penalty statute violates
The State, on the other hand, maintains that because these arguments could have been presented on direct appeal, defendant has waived them. (See People v. Neal (1990), 142 Ill.2d 140, 146, 154 Ill.Dec. 587, 568 N.E.2d 808.) Further, the State argues that there is no “lingering identity question” as to the murderer, for on direct appeal this court held that the evidence of defendant‘s guilt is “overwhelming.” (Enoch, 122 Ill.2d at 202, 119 Ill.Dec. 265, 522 N.E.2d 1124.) The State does not specifically address defendant‘s assertion that the death penalty statute removes all discretion from the sentencer if the defendant is found eligible for the death penalty and there are no mitigating factors sufficient to preclude the imposition of the death penalty.
We agree with the State that defendant has waived his claims regarding the constitutionality of the Illinois death penalty statute. “The purpose of the post-conviction proceeding is to permit inquiry into constitutional issues involved in the original conviction that have not already been adjudicated or could have been.” (Emphasis added.) (People v. Silagy (1987), 116 Ill.2d 357, 365, 107 Ill.Dec. 677, 507 N.E.2d 830; People v. Gaines (1984), 105 Ill.2d 79, 87, 85 Ill.Dec. 269, 473 N.E.2d 868; People v. Williams (1970), 47 Ill.2d 1,
For the foregoing reasons, we affirm the decision of the circuit court dismissing the defendant‘s petition for post-conviction relief. We direct the clerk of this court to enter an order setting Wednesday, March 11, 1992, as the date on which the sentence of death entered by the circuit court of Peoria County shall be carried out in the manner provided by law. (
Judgment affirmed.