*1 (No. 75570. ILLINOIS, Appel- OF
THE PEOPLE OF THE STATE FRANKLIN, lee, Appellant. v. WILLIAM Rehearing October 1995. Opinion denied June 1995. filed *5 J., McMORROW, dissenting. Fawcett, Defender,
Kim Robert Appellate Assistant Defender, the Office of the State Appellate Larry Hartman, Chicago, Carlson and Marshall J. all of appellant. Ryan,
Roland W. Burris and Attorneys James E. *6 General, of Springfield, Jack O’Malley, and State’s At- (Arleen torney, Anderson, of Chicago C. Assistant At- General, Goldfarb, torney Chicago, of and G. Renee Wil- liam Sally Dilgart, D. Carroll and L. Assistant State’s counsel), Attorneys, for the People. HEIPLE
JUSTICE opinion delivered the court: defendant,
The Franklin, William by was convicted a jury in the County circuit court of Cook mur Evans, Elgin der of Jr. jury The same found defendant eligible for penalty the death on the basis of having previously been convicted a of murder addition to the (Ill. 1991, 38, murder of Evans. Rev. Stat. par. ch. 1(b)(3).) hearing After aggravation evidence in and
9— mitigation, jury determined that there were no mitigating preclude circumstances imposi sufficient to tion of the death penalty.
Defendant’s conviction and death sentence were af firmed this on court direct appeal People v. Frank (1990), lin 135 Ill. 2d The Supreme 78. United States (Franklin Court subsequently denied certiorari. v. Il (1990), linois U.S. 112 L. 111 Ed. S. Ct. 28, 1991, On February the defendant filed a peti The filed post-conviction
tion for relief. defendant then a petition supplemental petition an amended The State filed motions to all petition. amended dismiss holding petitions. of the defendant’s After an eviden hearing prosecuto tiary on the defendant’s claim that the prosecutor rial misconduct occurred when entered room, found jury County the circuit court Cook not enter room and the prosecutor did subsequently post- court denied all jurisdiction This court has conviction claims for relief. pursuant instant Court Rule appeal Supreme over the 651(a). 651(a). Ill. 2d R. in the adequately
The of this case are set forth facts Frank appeal (People opinion on the defendant’s direct 78) only lin repeated and will be here Evans, Jr., on body Elgin as was found necessary. right had shot once February 1980. He been At in the left side of his chest. side of his head and once was at "Buddy” trial Ulric Williams testified he up. Holmes when defendant drove the home of Marion car, in the Williams that Evans was Defendant told After speak inside to with Holmes. then defendant went outside, Wil coming defendant and Holmes told back they going take ride the car liams that were where to drive. Holmes told Williams location, they drive. When reached desired *7 and Holmes, got out of car Evans and defendant auto to of stolen supposedly dispose went to the trunk in stay the car. was told to Williams parts. Williams mirror, in he saw defendant the rearview stated that shoot Evans jacket pocket a from his and pull gun and bend over He then saw defendant Evans the head. his truthful exchange shot. In for gun he heard another of Marion the trial testimony instant case a stated, guilty to Holmes, agreed plead to he a sentence robbery charge, armed receive separate years robbery, six this to be relocated armed family with his after his release from prison. PROCEEDINGS
POST-CONVICTION A proceeding brought under the Post-Conviction (Ill. 38, par. et Hearing Act Rev. Stat. ch. 122—1 is direct a a seq.) appeal, not a but collateral attack on judgment is proceeding of conviction. limited been, constitutional issues which have not not could been, (People have on direct v. presented review. Winsett 346.) (1992), Ill. 2d A defendant bears the establishing burden of a rights substantial denial of his under the (Peo United States Constitution or Illinois Constitution. (1992),
ple v. Odle A not evidentiary defendant is entitled to an on hearing petition allegations his unless the the petition are supported by the trial af by accompanying record and fidavits and show a substantial violation of constitu tional rights. by reviewing Determinations made a court on the prior appeal direct are judicata res as to issues decided; actually presented issues that could been have review, on not, direct but were which are deemed waived for purposes post-conviction review, On review.
trial court’s will determinations not be disturbed unless manifestly erroneous. People Silagy 116 Ill.
357, 365.
On appeal, argues the defendant the circuit court erred in dismissing post-conviction petition granting hearing without full evidentiary or relief. (1)
Specifically, defendant contends that he was denied trial, fair prosecution as the jury by failing misled the Buddy against disclose that Williams testified him with an expectation leniency and that Williams was (2) murder; an accomplice defense counsel was he investigation ineffective as was under criminal at the (3) trial; time of rights his Federal due process were violated and defense counsel was ineffective since *8 counsel to an request
defense failed instruction the in prison alternative sentence to death was natural life (4) ineffective parole; without defense counsel was for failing investigate, prepare present mitigation (5) sentencing; post-conviction at the evidence court finding prison Federal records irrele- past erred (6) post-conviction vant counsel was proceedings; failing a plea mercy ineffective to make for (7) sentencing; sentencing jury the instructions used at (8) unconstitutional; prosecutor improperly were during deliberations, causing him jury entered the room We find that the trial court’s prejudice. substantial post-conviction petition, denial of the defendant’s after hearing on the conducting evidentiary only claim room, amply is prosecutor jury sup- the entered the ported by by Accordingly, the record Illinois law. we affirm.
DENIAL OF A FAIR TRIAL trial, a fair Defendant claims that he was denied the jury Buddy the State misled about Williams’ because by stating the that Williams true involvement crime accomplice than an bystander was an innocent rather tell jury and because the State failed to Wil leniency in not be testifying hope under a liams was ing Defendant contends that for the murder. prosecuted governed by circuit court was post-conviction Holmes 3d 480. People App. case 238 Ill. case, Holmes, a in the instant was found codefendant by theory on a of ac jury of Evans’ murder guilty On years prison. ap to 40 countability and sentenced conviction. court Holmes’ peal, appellate reversed an accom found that Williams was appellate court that Williams Since the State knew plice murder. murder, the court bystander an innocent not informing jury misled the not ruled that State Thus, Holmes true of Williams’ involvement. a new appellate was entitled to trial. The court also operating expecta found that Williams was under an charged not leniency being tion with Evans’ mur *9 Thus, at the der time of Holmes’ trial. the State was required to to the jury hopes disclose that Williams had and of expectations leniency being charged in not with Holmes, the murder. 238 3d at App. Ill. 489-91. supports
Defendant also claim with state- his the ment gave which County Williams to Will authorities.
Defendant contends that the provided statement the knowledge State with of true in Williams’ involvement statement, the crime. In he, the Williams discusses how Holmes, and Franklin had for days looked Evans several before the murder because Evans had robbed supposedly lounge by owned an of associate Holmes. The man lounge paid who owned the to have Evans killed and Holmes had killed other people for this man. Williams stated that he knew "supposed Holmes was whoop to his break something.” [Evans’] ass or his nose or Defen- dant contends that since the State knew from this state- ment that bystander, Williams not an innocent the State had a to tell duty the was an accomplice.
Although phrasing argument not his in the exact terms, attempts defendant apply Holmes decision post-conviction through proceedings the doctrine of collateral The estoppel. estoppel doctrine of collateral " applies party 'when a or privity someone in with a party in participates separate two cases consecutive arising on causes of action and some control different ling fact or question material determination against both adjudicated causes has been in party ” the former aby competent jurisdiction.’ suit court (Emphasis original.) (1990), Moore 138 (People v. Ill. 162, 166,
2d quoting Authority v. Men’s Housing Young 252.) (1984), Christian Association Ill. 101 estoppel are that requirements threshold collateral (1) prior adjudication decided in is identi issue (2) question; suit presented cal with the one judgment prior was a final on the merits in the there (3) against is adjudication; party estoppel whom party privity party asserted was a or in with (In re Owens (1988), adjudication. 125 Ill. 2d 399- 400.) is the requirements Absent from this list doctrine, mutuality mutuality requirement. Under finding as party prior estoppel neither could use a against were bound opponent parties their unless both (Owens, This prior judgment. requirement from the doc mutuality court removed the case of Illinois estoppel trine of collateral the civil Board State Chamber Commerce Pollution Control Owens, 7. Ill. 2d at 398. Ill. 2d See appellate of our Our own criminal cases those *10 involving estoppel have not mentioned court collateral However, estoppel in these mutuality requirement. was, fact, a asserting party cases doctrine That is not the scenario prior proceeding. party pre in the case. are are confronted with instant We we one unique with a set of circumstances which sented of another attempts to use reversal defendant has his own This court defendant’s conviction to benefit. collat against the unlimited use of offensive cautioned cases, longer as is no in civil there estoppel eral Owens, Ill. 2d parties. of 125 requirement mutuality of cases the discre (giving at 398-99 circuit courts civil estop the use of offensive collateral tion to ensure party). to a fundamentally is not unfair pel has neighboring jurisdictions A of the law of review scenario with any cases with the same not revealed however, courts, have Many presented. we are which whether a defen- question with the of been confronted in his own acquittal can of codefendant dant use the
13 favor. Most of these courts have held that a defendant acquittal cannot use the to his own benefit and have seeking required the defendant to assert collateral estoppel actually litiga been a party prior have (See, (1980), v. e.g., tion. United States 447 Standefer 10, 689, 1999; Ed. U.S. 64 L. 2d 100 S. Ct. State v. Jime (1981), 950; 138, nez 130 Ariz. 634 People P.2d Allee (Colo. (Alaska 1987), 1; 1984), 740 P.2d Kott v. State 678 (Fla. 386; 1982), 900; P.2d Potts v. State 430 So. Com (1982), 280, Cerveny monwealth v. 387 439 Mass. N.E.2d 754; (1974), People but see v. Taylor 12 Cal. 3d 527 (lack P.2d 117 Cal. Rptr. identity 70 of parties preclude does not application of doctrine of collateral estoppel when guilt is predicated on his liability vicarious for the acts of previously acquitted codefendants); State v. Gonzalez 75 N.J. (facts
A.2d
required
case
that defendant be af
forded benefit
earlier
hearing
suppression
ruling that
codefendant).)
against
evidence was inadmissible
majority of
provided
courts have
justifica
numerous
imposing
tions for
a mutuality requirement,
including
the State often lacks the full and fair opportunity
litigate
an issue that
party
is accorded a
in a civil
case,
statutory
because of the
and constitutional privi
leges granted a criminal defendant.
Standefer,
See
21-25,
698-701,
U.S.
We adopt reasoning of these courts which mandate mutuality requirement and also apply this reasoning to the instant set of facts. We note that in the civil case of Commerce, Illinois State Chamber this *11 court did not or analyze discuss of a necessity mutuality in requirement criminal The require- cases.
ment of mutuality cases, should be retained in criminal because the State often lacks the fair op- full and litigate instance, to portunity an issue. For prosecu- by in discovery rights a criminal case are limited
tion’s privileges. constitutional Evi rules of the court and from prevent presenting rules often the State dentiary defendant; against one evidence which all of its evidence against may not be admis is admissible one defendant suppression The or against another defendant. sible or may acquittal in the limited use of evidence result addition, In of of one defendant. reversal conviction and the manner presented separate at trials evidence significantly may is be presented that evidence which ever, The rarely, if be State and will different identical. persua effectively case or may present also not its as (See it does another. sively appeal in one trial or as 2006-08, 100 21-25, 64 Ed. 2d at Standefer, U.S. at L. 7.) 698-701; Allee, of a acquittal The Ct. at 740 P.2d S. of convic or the reversal a codefendant’s codefendant a of innocence should tion does not establish status against the State favor given be conclusive effect not addition, In criminal cases stranger a to that trial. of from wholly absent consideration important involve in the of the crim interest enforcement civil cases —the (See Allee, strong has public 740 P.2d inal law. every criminal accuracy the results of interest in the public and this interest appeal and criminal prosecution of consistent any appearance need for the outweighs Thus, the fundamental differences between verdicts. support appeals of two codefendants separate trials in criminal cases. mutuality requirement the Holmes opinion to use Allowing the defendant him, defendant, others like encourages the his favor bringing than rather attitude adopt to wait-and-see a party not was himself. Since defendant the claims Holmes’ convic- or the appeal of Holmes trial the Holmes opinion tion, cannot now use the defendant exist, not does mutuality parties As benefit. required apply not circuit court post-conviction claims. to defendant’s the Holmes opinion *12 process requires Defendant also contends that due that a new trial errors. he receive because the State’s analy- Defendant on the partially appellate relies court opinion in sis the Holmes for this contention. The State argues failing that defendant has waived this issue for bring by to it appeal. responds on direct Defendant first waived, stating that this issue is not because its resolu- depends appellate tion on materials not in the court rec- (the statement, County ord Holmes opinion, the Will a transcript and testimony of Williams’ from Holmes preliminary hearing), by stating second found, if waiver is requires fundamental fairness doctrine, relaxation arguing waiver and third by waived, if the issue is then appellate counsel was failing ineffective for bring appeal. issue on direct Defendant has waived bring this issue failure to on it direct review. Defendant had access to the Will County statement and the transcript preliminary hearing during trial, as by evidenced defense counsel’s attempt question impeach Williams with both of during these documents cross-examination.
Defendant brought could have this claim on direct review, brought much like Holmes these claims on the appeal of his case. addition,
In the doctrine of fundamental fairness does not support relaxation of the waiver rule. Funda mental generally fairness is defined terms of "cause and prejudice” test. (People Flores Defendant argument has failed to provide suf
ficient to support "cause and prejudice” test. Defen dant has made simply a blatant statement that funda mental fairness requires relaxation of the waiver rule and has not provided argument. addition, additional In our review of the record reveals that the defendant not denied a First, fair trial State’s actions.
State did not mislead the jury about Williams’ involve- crime. did not characterize Wil-
ment The State bystander” as an "innocent to the commission liams fact, crime; phrase. not even the State did use closing arguments simply the State During opening give and testimony which Williams was to recited gave at trial. The evidence of defendant’s involvement jury, in the murder was also front as looking days had for Evans several before testified *13 driving and the car to the murder scene. the murder The free to decide whether or not Williams jury was and, thus, extent of defendant’s was involved Second, the State did tell about involvement. in had made with Williams —that the deal which been testimony, would exchange for his truthful Williams rob- a in an unrelated armed six-year receive sentence hopes expectations or bery charge. other Any being charged just for the murder were had about not agreement be- any is evidence of other that. There no was not the State. State tween Williams and thinking required speculate to about what Williams charged for the mur- believing regard being in to his or jury. speculations to relate these der and then ap prove failed to defendant has also Finally, bring failing for these was ineffective pellate counsel In light analysis, of the above claims on direct review. alleged for has that but counsel’s defendant not shown See have been reversed. errors that his conviction would (1990), 119. People v. Stewart OF COUNSEL INVESTIGATION CRIMINAL a new granted be claims that he should Defendant Polikoff, subject was the lawyer, Cary because his trial investigation involving "Opera- a criminal Federal County in Cook fixing of cases Greylord” and the tion as- during trial. Defendant his prior court and circuit be reversed should conviction serts investigation of Po- because the justice interests of likoff caused Polikoff to render assistance of ineffective support position, counsel. In of the latter post-conviction petition listed minimum of 13 reasons finding that counsel was ineffective. support justice
To
his contention that the interests of
require
trial,
relies on the
new
defendant
case
(1982),
People v. Williams
2d
Later, 525, 529, in Szabo Ill. 2d this court held "that the Williams decision was aber peculiar ration to the facts of that case.” This court also noted the factual differences between the two cases. The post-conviction petition defendant’s in Szabo contained only paragraphs alleging two brief counsel’s deficient representation compare favorably and did not with alleged of addition, list counsel errors in Williams. In before the ARDC until appear Szabo’s counsel did not trial, while 10 months after Williams’ at subject proceedings of disbarment counsel was the per a to apply the time of his trial. This court declined se proceedings is in that whenever counsel involved rule require of the de justice with the ARDC interests Rather, granted a new trial. this court fendant be the Strickland claims reviewed the defendant’s under Szabo, of counsel test. Ill. ineffective assistance at 530-31. and Szabo involved at-
Although both facing in front of the torneys proceedings were who ARDC, applicable to an at- in those cases is analysis being infrac- investigated is for criminal torney who of "unique sequence circumstances tions. The Williams, however, in present are not events” in surrounding case. The circumstances instant of are different from the disbar- investigation Polikoff Williams. attorney Knowledge ment of the "Operation Greylord” public of became investigation newspaper through of 1986 series November surround- publicity Defendant claims that articles. subsequent and Polikoff’s indict- ing investigation Polikoff scheme caused for his in the ment involvement automatically require deficiently and perform justice. the interests granted trial be new however, burden Defendant, failed to meet his has evi- only provided Defendant has on this issue. proof surrounding Joseph McDermott’s of publicity dence has not Defendant investigation. in the involvement surrounding Polikoff’s publicity provided proof scheme, provided defendant nor has involvement involve- indicted for his Polikoff had been proof actuality, as In time of his trial. or at the ment before on Polikoff’s prefix "87” by the number evidenced most, indictment, was, only under Polikoff Federal *15 investigation "Operation Grey- for his involvement lord” at the time of defendant’s trial. He was not trial indicted until after the conclusion of defendant’s guilty charges plead any he until some did not Being investigation is not time later. under criminal degree appearing of the same as front of ARDC (See current, Szabo, on pending complaints.
525.) addition, In Polikoff did not in front appear ARDC of at the time defendant’s trial. Polikoff was 15, 1988, on disbarred December years two after the trial.
The circumstances of defendant’s trial are also dif- ferent from the of circumstances Williams’ trial. Al- though cases, both were trials of capital defendant was only person whom Polikoff was representing and the Thus, only person on trial. the instant circumstances are more similar to the Szabo case than the Williams case. surrounding investigation The circumstances of Polikoff and the nature trial do not meet the unique set circumstances found exist in Thus, Williams. right defendant does not have a to a new trial in the justice. interests of Szabo, however,
As in defendant’s claims of ineffec tive assistance analyzed counsel must be in terms of Strickland. Strickland two-prong established a test for judging attorney performance, of which the defendant prove (Strickland, must prongs. both at U.S. 2068.) at
L. Ed. 2d 104 Ct. at S. The defendant must performance first show that "counsel’s was deficient” in objective it "fell standard reasonable below ness,” and performance second that the "deficient prejudiced the defense” such that the defendant was (Strick of a deprived fair trial whose result was reliable.
land,
687-88,
20 (People Gacy a different Ill. ity” of result. 125 129-30.) 117, 2d A defendant’s claims of ineffectiveness showing disposed upon defen can often be errors, no from the claimed prejudice dant suffered con reaching on whether the errors a decision without assistance of counsel. constitutionally stituted ineffective Strickland, at 104 S. 466 U.S. L. Ed. at Ct. at 2069. defendant makes in
Several of claims which petition regarding the ineffectiveness post-conviction his counsel were raised and discussed on direct appeal. later this analyzed Several of the other claims are and, others, opinion for still defendant has failed to raise argument and for them in his brief. A provide point argued but not or citation supported raised brief requirements authority satisfy fails to to relevant (134 341(e)(7)) 341(e)(7) 2d R. Rule Ill. Supreme Court (1992), 154 (People v. Patterson therefore waived. and is 455.) remaining claims of ineffective The two Ill. 2d ineffec counsel whether counsel was assistance of are with impeach Buddy he failed to Williams tive when he County made to Will authorities the statement an failing request whether counsel was ineffective witness instruction. accomplice the issue of whether defense Defendant has waived failing to impeach ineffective for counsel was by failing bring this County with the Will statement application on direct review. The strict issue fundamental fair may doctrine be relaxed where waiver mentioned, is fundamental fairness requires. ness As so (Flores, analyzed prejudice.” in terms of "cause objective as an defined "Cause” has been Ill. 2d efforts to raise defense counsel’s impeded factor that as er is defined "Prejudice” on direct review. claim the defendant’s trial that infected entire ror which so Satisfaction process. due conviction violates excuse the defendant’s test will prejudice” "cause Flores, 279. 153 Ill. 2d at default. procedural case, not established the defendant has In the instant resulting from "prejudice” "cause” for or either of his in the waiver default resulted procedural any persuasive offered The defendant has not claim. claim why he failed to raise this supporting
reasons Defendant has proceedings. post-conviction until in terms of the criminal couched this contention however, investigation investigation, of Polikoff. This bring- a different counsel from prevent appellate did not analysis regarding the Wil- ing the claim. The above post- also that defendant’s liams and Szabo cases shows *17 raising is conviction method of this claim frivolous. by counsel’s failure to prejudiced
Nor was defendant with the statement. Defendant lists impeach Williams ways the statement could have been used to which in impeach Many specific Williams. of these involve stances of the bad conduct of both and Holmes. Williams by attacking character, A witness can be impeached only but criminal convictions can be used for this arrests, indictments, purpose: proof charges or the actual commission of a crime are not admissible. (People 491.) (1992), v. Lucas The bad acts to admitted which County Williams the Will statement could not Counsel impeachment purposes. be used failing attempt was not ineffective for to use the state matters, ment to on these and defen impeach Williams prejudice dant did not suffer as a result of counsel’s inactions.
Defendant also contends that the statement could be going that Evans was used to show that Williams knew or killed and that lied severely injured be Williams surprise. when he testified that the murder a De- portion County fendant to that state- refers Will ment where stated that he knew Holmes was
"supposed to whoop his [Evans’] ass or break his nose or something.” Defendant, however, has not suffered preju dice defense counsel’s failure to portion use this Generally, statement. the decision of whether or not to cross-examine impeach or a witness is a matter of trial strategy, which cannot support claim of ineffec (See tive assistance of counsel. People v. Anderson 956.) 266 Ill. App. 3d Defense counsel could have reasonably believed that it was not necessary to impeach Williams with this portion of statement, as Wil liams had already answered affirmatively on cross- examination when asked whether the murder of Evans (See Franklin, 101.) was a "hit.” Thus, 135 Ill. 2d at counsel’s actions in using not the statement were a mat ter of trial strategy and did not amount to an error so egregious as to affect the outcome of defendant’s trial. Therefore, defendant has not shown "cause and preju dice” sufficient to overcome the waiver doctrine.
The second ineffective-assistance-of-counsel claim is that defense counsel was ineffective for failing to request an accomplice witness instruction. On direct review this court found that the fact that charges against murder Williams were dismissed after a finding of no probable cause at Williams’ preliminary hearing suggests to rea sonably competent counsel that Williams did not act as (Franklin, accomplice. Thus, 135 Ill. 2d at defense counsel’s reliance no-probable-cause on the finding in deciding whether or not to tender the accomplice wit *18 ness instruction could not be deemed ineffective assistance. (Fr anklin, 104.) 135 Ill. 2d at Defendant now contends that judicata res this determination is not to post-conviction proceeding because the Holmes court found that Williams was an accomplice and the Holmes opinion constitutes new evidence which could not have presented been on direct Due review. resolution the Holmes opinion, of defendant’s regarding claims by res judicata are precluded assertions in this cause. appeal previous TO ALTERNATIVE SENTENCE ON
INSTRUCTION DEATH a fair that he was denied argues
The defendant
not instructed
jury
sentencing hearing because
of death is
to a sentence
that
the alternative
sentence
v. Gacho
People
In
parole.
life in
without
prison
natural
221,
court held that
must
(1988), 122 Ill. 2d
this
sufficient
mitigating
if it finds
factors
be told that
then the
penalty,
of the death
imposition
preclude
imprison
life
sentenced to natural
defendant will be
Gacho,
adopted
The rule
parole.
ment without
(Gacho,
2d
122 Ill.
however,
only prospectively.
applies
262-63.)
hearing
place
took
sentencing
at
As defendant’s
Gacho,
occurred
no error
court’s decision
before this
a natural
life
give
failed to
when the circuit court
Franklin,
Defendant
an
retroactivity
his case under
doctrine
rule to
314,
(1987),
U.S.
Kentucky
v.
nounced
Griffith
649,
708,
announced
L. Ed. 2d
107 S. Ct.
or the doctrine
18 L. Ed. 2d
in Stovall v. Denno
388 U.S.
argues the Ga
cho rule should be clause of the process under the due procedure criminal claims were Illinois Constitution. Defendant’s Griffith and are thus on direct review rejected considered and (See Franklin, 135 Ill. principles. judicata barred res 114.) addition, cannot obtain relief In a defendant Hearing by rephrasing Act the Post-Conviction under in constitutional terms. addressed issues previously Defendant (1987), 116 Ill. 2d (People Silagy for retroac any has other constitutional bases waived raise these bases by failing application tive Gacho has this court passing note in on direct review. We *19 24
consistently
held that a jury instruction
on the alterna
tive mandatory
sentence
of natural
life in prison is a
e.g., People
statutory
and not a
right.
(See,
constitutional
v. Steidl
245.)
(1991),
204,
Thus,
the due pro
cess clause of the Illinois Constitution
has no applica
to Gacho.
tion to claims made with respect
Defendant
also contends
that
give
the failure to
alternative
instruction
rights
violated
his
under
eighth and fourteenth
amendments
of the Federal Con-
Supreme
stitution.
Court
recently
held that
defendant’s
due process rights
require that
the sentenc-
ing jury
informed,
be
argument
instruction,
via
or
the alternative
sentence to death is natural
life in prison
without
if
parole,
places
the State
the defendant’s
future
(Simmons
v. South Carolina
dangerousness
at
issue.
154,
512
133,
U.S.
129 L. Ed. 2d
114 S. Ct.
Simmons,
In
prosecution
raised the issue of the
dangerousness
defendant’s
future
during closing argu-
by asking
ment
the jury "what
[petitioner]
to do with
now that he is in our
midst” and
urging
further
a death sentence would
response
be "a
society
someone who is a threat. Your verdict will be an act of
Simmons,
self-defense.”
INEFFECTIVE ASSISTANCE SENTENCING regarding the ef-
Defendant raises several claims stage of his trial counsel the second fectiveness hearing. sentencing First, defendant claims that counsel failing investigation was for to an ineffective conduct only mitigation presenting for and for evidence testimony mitigation. conjunction his In children claim, with defendant claims that trial court this ruling past prison re- Federal erred that defendant’s and could be discovered dur- cords were irrelevant not ing proceedings. hoped post-conviction Defendant mitigation use records obtain more evidence these proven counsel’s ineffectiveness. which could have argues Finally, that was ineffec- defendant trial counsel failing argue mercy and his life tive for that spared. should be applies also
The test established in Strickland sentencing phase In the context of of a defendant’s trial. hearing, specifi- sentencing must death defendant
cally prove that, that there probability is a reasonable but performance, for counsel’s deficient the sentencer weighing would have concluded after aggravating mitigating and factors sentence of death not People Hampton warranted. 109. Defendant asserts that had counsel conducted investigation, present counsel would have been able to (1) mitigation evidence of comments other members family of his as a good-hearted, who characterized him (2) loving, caring illness, and person; his mental which hallucinations, disorientation, included delusions diagnosed which had been as schizophrenia re- (3) paranoid disorder; mission and family’s character his violence, of mental history including illness and the fact previously someone; father had his murdered (4) completion degree of an associates and near degree of a completion bachelor’s while in prison. We that, probability conclude there is no reasonable allegedly performance absent trial counsel’s deficient presenting above post-conviction evidence or the *21 allegedly ruling court’s incorrect on the release of the records, prison the sentencer would have found the mitigating circumstances the of precluded imposition the death penalty. phase sentencing hearing,
At the second the State detailed the past defendant’s criminal behavior. 1965, In of pled guilty June defendant to the offense of drug possession years’ of a narcotic and received three 1965, In probation. pled guilty October of defendant robbery bank years and was sentenced to 15 in Federal prison. paroled 1970, He subsequently was but In parole. violated defendant was convicted of In burglary jumping. and bail defendant was convicted of the murder of Roland and sentenced James period years penitentiary. to a of 100 to 300 The during guilt State also offered evidence adduced trial phase by way stipulation. of defendant’s of through mitigation evidence defense The offered The children of defendant’s children. testimony of seven had on defendant about the influence positive testified played in their that their father the role their lives importance of stressing lives, in terms especially an education. al trial counsel’s
A record reveals that review the failing to offer comments other leged deficiency in as to family testify would members of defendant’s who merely good nature would have been defendant’s testimony of children. cumulative of the defendant’s regarding psychologi proffered The evidence defendant’s family’s psychological problems cal and his violent (See inherently mitigating. People was not history 340-41.) Although this Henderson jurors, in the it compassion evidence could have evoked potential also for could have demonstrated defendant’s dangerousness past and the for defendant’s future basis ill acts. The evidence of mental criminal defendant’s may also shown that was less de ness have defendant society protected terrable or that needed to be from him. degree
Defendant did earn associate’s while prison charge. Although Federal the bank robbery on degree had earned this and had almost earned defendant degree, subsequently a bachelor’s he committed several prison. crimes while on from While the parole Federal bettering his jurors applauded could defendant have education, could this evi- jurors have discounted acts after dence because of the defendant’s criminal obtaining children testified degrees. mitigation how their father stressed the about he forced believed that importance education he was well educated. Yet to commit crimes since not *22 being obtaining associates and released degree after crimes, several committed parole, on defendant thought have that including jury may two murders. The schooling defendant’s contradictory was his subse- quent Thus, criminal acts. the evidence of defendant’s prison education while in necessarily was not mitigat- ing.
Likewise, post-conviction court did not err failing to release defendant’s Federal past prison re- cords. if good Even these records had shown defendant’s adjustment to prison, they could have been discounted by the jury similarly to the evidence of defendant’s Therefore, educational achievements. we conclude that alleged of absence deficiencies trial counsel regarding mitigation alleged evidence or the evidentiary errors post-conviction court would not have cre- probability ated reasonable of a different sentence. The post-conviction correctly court acted in dismissing defendant’s claims ineffective assistance of counsel on this basis and in dismissing request for the Federal prison records. regarding
Defendant’s other contention ineffective sentencing assistance counsel at is counsel failed a plea mercy. make for This court on direct review found that was at sentencing counsel not ineffective and that counsel as loving characterized defendant and kind. 118-19.) (Franklin, post-conviction 135 Ill. 2d at finding court noted this and also found that counsel did humanize defendant ask jury did to view defen person dant as a A saving. whose life worth review of the post-conviction record reveals court did dismissing not err contention. Counsel "nothing by sending stated that would be served Wil-. liam Franklin to his death” and that "there is some good in spite things this he individual did.” Counsel also asked the to resolve the matter "in a way bespeak vengeance cruelty that does not Thus, premeditation.” post-conviction court’s deter mercy did make a is not plea mination counsel manifestly erroneous and will not be overturned.
29 SENTENCING OF CONSTITUTIONALITY INSTRUCTIONS given jury that the instructions
Defendant asserts rights his constitutional sentencing hearing violated the inform adequately failed to in that the instructions the statement his claim with supports jury. Defendant as to the need he was confused juror one who said ex case of United States and the a unanimous verdict (N.D. 1992), Supp. F. 705. Ill. 806 rel. Free v. Peters has been reversed in the Free case The decision (7th (Free 1993), Cir. v. Peters reasoning rejected. its analysis employed court has found the F.3d This to be sound. Appeals Circuit Court of by the Seventh 333-34.) As Ill. 2d v. Kokoraleis (People reasoning to persuasive has no provided the defendant analysis an holding, we decline to revisit reject addition, on time. In this court found the issue at this correctly on jury the was instructed direct review regarding a unani given the correct verdict form 115-16.) (Franklin, Thus, the 135 Ill. 2d at mous verdict. dismissing defen court did not err in post-conviction or his dant’s claim of unconstitutional instructions who would request appointment expert for the juror survey conduct a new on the instructions.
PROSECUTORIAL MISCONDUCT jury when the was deliberat- Defendant claims that eligible for the ing the defendant was over whether sentencing hearing, a phase death one of the penalty room, jury the inter- prosecuting attorney came into congratulated jury deliberations and the rupted jury the then al- rendering guilty prosecutor on the verdict. The jurors photos the of the two men whom legedly handed position, of his defen- support defendant had killed. In who stated that juror dant offered the affidavit of one entered the room. prosecutor actually evidentiary post-conviction The trial court held a hearing on this claim. At the conclusion of hearing, judge circuit rejected claim, finding that there was no credible factual basis for allegations. trial court accepted juror’s contention that he had been harassed into signing the by affidavit a defense investigator. reviewing After the testimony from the ev- identiary hearing, we find that judge’s the trial determi- against nation is not weight manifest of the evi- dence. The testimony plainly establishes juror signing hounded into affidavit a defense *24 investigator and that a prosecutor did not enter jury Thus, room. the trial court properly dismissed defendant’s request for the release of the juror cards and the opportunity to examine other jurors at a subsequent hearing.
Finally, we note that the last 22 counts of defen dant’s petition amended post-conviction for relief are claims that this court addressed on direct review. These claims reargued cannot be here (People v. Albanese 105) and defendant preserved has only them for purposes of Federal review.
CONCLUSION above, For the reasons set out we affirm the decision of the circuit court to dismiss post-conviction defendant’s petition. The clerk of this court is directed to enter an setting order Tuesday, 21, 1995, November as the date death, on which the sentence of entered the circuit court of County, Cook is to be carried out. Defendant (Ill. shall be executed in the manner provided by law. 5.) Rev. Stat. ch. par. The clerk of this 119— court shall send a copy certified of the mandate this case to the Corrections, Director of to the warden of Center, Stateville Correctional and to the warden of the institution where the defendant is now confined.
Affirmed. McMORROW, dissenting: JUSTICE post- for petition the defendant’s gravamen
The Buddy statements pretrial lies in two conviction relief against who testified Williams, key State’s witness statements reading of these two A careful the defendant. the murder accomplice was an that Williams
reveals testifying bias for had a motive or Elgin Evans and expecta- motive was Williams’ against the defendant. his testi- exchange treatment
tion of favorable prosecution in the the defendant mony against Wil- The failure to disclose Evans murder. funda- testify falsely violated and motive to
liams’ bias process. of due principles mental bar is whether the issue in the case at primary
The appel The rights violated. process due were of the codefen court, in of the conviction appeal late Holmes, that Holmes was entitled dant, Marion held to disclose Williams’ trial because the failure new case, the facts of this leniency, under expectation (1992), 238 trial. v. Holmes (People denied Holmes fair upon of this court relies App. majority Ill. the defendant a estoppel deny
principles of collateral trial, received from the same relief that Holmes new However, facts. reli court under the same appellate does not consider estoppel principles ance on collateral *25 estop rights. The collateral process the defendant’s due to whether secondary only issue relevant pel issue is contesting issues decided estopped the State is from primary is in Holmes. Because appellate court process due whether the defendant’s sue before us is violated, analysis estoppel majority’s rights were in this the central issue dispose fails to principles ap case and an of the facts of this case. An examination Jimerson holdings People plication of the reveals v. Holmes People rights violated. process due were defendant’s that on trial, testified At the defendant’s Williams day murder, he was at the home of Marion Holmes, and that the defendant drove there with Evans in his car. The defendant allegedly went into the house and then came out with Holmes. Williams testified that Holmes and the him, defendant Williams, then told going four were to "take a ride” in the defendant’s car, and that Holmes directed Williams where to drive. When the four arrived at a Chicago location in Heights, Holmes told Williams that "we you don’t need for this.” Then defendant, Evans and Holmes went trunk of the car. Williams testified that in the rearview mirror he saw the pull defendant out a small pistol and shoot Evans in the head and that he heard a second gunshot as he saw the defendant bend over Evans.
Williams also testified that he was not aware beforehand that Evans’ life was in danger, and that he believed the purpose of the drive was to find a place to dispose of stolen auto parts. Williams stated that exchange for his testimony in the trials of the defen- dant Holmes, agreed the State to recommend a six- year prison sentence for his part in an unrelated armed robbery charge and relocate Williams’ family. Williams testified that the State promise made no leniency him with respect to his testimony in the prosecution of the Evans murder.
In separate trials, defendant and Holmes were convicted by juries of the murder of Evans. The convic- tions were based primarily Williams, on the testimony of the State’s eyewitness sole to the murder. fur- ther mitigating found no factors preclude sufficient imposition of the penalty, death and sentenced the de- fendant to death.
Williams testified at trial and at the addition, Holmes In gave trial. a statement authorities in Will County which reveals that Williams falsely testified at trial as to his role in the Evans mur- *26 at trial as inaccurately portrayed der, that he was murder, no fear with innocent bystander an 1982, prelim- Additionally, the March at prosecution. charges against both de- hearing the murder
inary on codefendant, reveals testimony Williams’ fendant in the murder expected leniency Evans that Williams against the defendant exchange testimony for his to His never revealed either expectation Holmes. was jury. following during to March
Williams testified hearing when counsel Holmes preliminary promised expected if he or asked Williams had been testimony against the defen- anything return for dant and Holmes: I don’t how to answer that. When [Williams:]
"A. know hope, say you talking I you expectation, are about what or promised? Iwhat have been
Q. you hope? [Defense counsel:] What A. Yes.I Do. Q. you And that with law enforcement have discussed are,
agencies, your expectations to at least as what have you not?
A. Yes.
Q. expecta- you tell his those Would honor what some of tions are? be, my part particular I I in this hope
A. that would part that it was. crime would be considered for the Q. say you bystander And an that is were innocent an uncertain event? added.) (Emphasis A. Yes.” hearing preliminary testified
Williams also charge him with mur- police had threatened der of Evans. preliminary at the hear-
Subsequent testifying to his ing, gave a statement to authorities Will he indicated that was County September 1992 which but, rather, was accom- bystander not an innocent statement, In that in the Wil- plice murder Evans.
liams related: lounge They "Eddie’s had been out robbed. found who had [Evans], up, Elgin
set it his name [Holmes] was known *27 to hit just anyway. be a man for Eddie and killer He had, lounge time, he was the bouncer the at one he and, uh, lounge, just shot someone in the it’s known in Heights dangerous. that Holmes was So when we asking [Evans], 'Marion, people say, started for would we got don’t know where But prob- [Evans] [Evans has] is.’ lems, got a on Eddie hit him knew [Eddie] 'cuz [Evans] *** place. robbed his took [Holmes] the hit from Eddie. *** So, couple places, we went in a and no one knew me Heights from I people and would ask for [Evans] plague that; they had happen- about knew what was *** So, ing. maybe days passed by three or four when pulls up Franklin in his car with someone in there. He us, got I tells in the car. [Evans]
* * * I, stipulated supposed And Holmes had that he was to whoop something. got his ass or his or break nose So we drove; car I Chicago [the defendant’s] we went to Heights.
* * * Yes, actually supposed it was to have been Holmes’ *** paid contract because Eddie x number of [Holmes] dol- gave [the defendant] lars and cocaine [Holmes] some ***.” conviction, In the appeal appellate the Holmes court concluded that "the evidence overwhelmingly (in concedes) shows fact the State per Williams before, during formed acts and after the commission of support accountability” murder Evans his 489.) (Holmes, for the App. murder. 238 Ill. 3d at possessed probable State evidence to cause to support reindict for the murder on an ac Williams Evans statements, countability theory yet based on his declined Holmes, do App. so. See 238 Ill. 3d at 489. It from apparent testimony is also Williams’ at the preliminary exchange hearing testimony, expected forgo his Williams the State
35 in the Evans murder. accomplice as an charging him his he had discussed Indeed, admitted that However, authorities. with State expectations regarding expectations apprised never of Williams’ prosecution or murder testimony the defendant’s expectations with he had discussed his the fact that fact, not reindicted In Williams was State authorities. murder.
in the Evans testimony pre to be false permits the State When resulting cannot stand conviction jury, sented to v. Jimerson (People amendment. the fourteenth under 225; (1959), 211, Illinois Napue v. 1217, 1221, S. Ct. U.S. L. Ed. good faith bad regardless This is or true government, testimony rele applies
faith of the credibility (Giglio of a witness. United vant *28 104, 150, 154, 108, (1972), 405 31 Ed. 2d 92 States U.S. L. 565, 763, 766; Ill. v. Martin People
S. Ct. 567-68.) testimony "A if false required new trial is 'the the any could ... in reasonable likelihood have affected ” 154, at L. judgement Giglio, 405 U.S. jury.’ 108, 766, Napue, 2d at 92 Ct. at 360 U.S. quoting Ed. S.
at
At the State elicited Williams February to killed on expect that he did not Evans be surprised by that 1980. Williams testified he was killing. testimony This cannot be harmonized with Wil- detail, describing, his awareness liams’ statements *** Holmes, anyway, took "just that who was killer with and that when he went Holmes the hit from Eddie” for and asked where Evans could people to look Evans that; found, "people plague [because] had the about be statements happening.” knew what was Williams’ they actually sup- "I ask and "it was [Evans]” that would for that have Holmes’ contract” demonstrate posed to been happening.” "knew what was he also
Williams’ statement to in Will County authorities testimony belies his trial he by- that was an innocent going stander who had no idea happen what was to day Holmes, he drove Franklin and to Evans the mur- Furthermore, der argued scene. the State jury that nothing gain Williams had by cooperating more the prosecution.1 with
The majority’s assertion "the not State did as an bystander’ characterize Williams 'innocent of a is commission crime” unfounded. The State concedes in its prosecution brief that trial presented argu- ments and evidence to establish that Williams’ role "unknowing unwitting the murder was of an I fail spectator.” to see the difference an "in- between bystander” "unknowing unwitting nocent and an spectator.” testimony Williams’ and the State’s por- trayal arguments in its jury misled the as and, to Williams’ role in Evans consequently, murder against concealed his motives for testifying defen- testifying dant. Williams’ bias and motive for should have exposed presented been jury. concealment such bias and motive denied the defen- dant due process.
The majority adopts the State’s contention explicitly because Williams stated that he was not promised leniency prosecution only in the Evans but expected leniency testimony, in return for his there was nothing However, of which to inform the rea- jury. that a in a son criminal trial should be informed any self-serving testify- witness may motive have *29 County in
1Williams’ statement to authorities in Will September given preliminary hearing on 1982 was his after 19, 1982, charge judge March at which the murder dismissed the against probable Septem Williams based a lack of The on cause. prosecu new the ber statement constituted evidence which used, use, prosecution against could not a tor have but did in Wil for the Evans liams murder. can the
ing jury testimony at trial is so that the evaluate it in of all circumstances. Consider- weigh view the the ing this it should not matter whether wit- purpose, exchange in explicitly promised leniency ness for or the testifying expressed whether the witness to State exchange testifying. in expectation leniency Franklin, preliminary hearing At the Holmes he unequivocally expected stated that to be bystander treated as an in the innocent Evans murder (i.e., charged) testimony, not to be his exchange for he and that had discussed his with State expectations However, authorities. at trial Williams informed the jury only leniency that he was to receive in the unre robbery charge lated armed with to be relocated I family prison. after his release from "do not believe the safeguard constitutional of due process of law can be hinge made upon gossamer the indulged distinctions [majority].” McKinney (People 31 Ill. jury The "should have been informed of all affecting circumstances credibility and reliability of (Emphasis original.) McKinney, the witness ***.” Ill. 2d at 250. conclude,
In light foregoing, I appellate as the court codefendant, concluded in the appeal of Holmes, that Williams jury by consciously misled the relating only portion of circumstances cooperation behind his Attorney. with State’s omission of a material fact under these circumstances implicitly fact, denies existence of such and is equally damaging truth-seeking as process as if expressly having Williams had denied any expectations regarding his testimony at the defendant’s trial. This recently court People stated v. Jimerson that convic- tion cannot stand under the fourteenth amendment " State, 'although soliciting evidence, when the not false ” go allows it Jimerson, uncorrected it appears.’ when
38 quoting Ill. 2d U.S. at 3 L. Napue, at
Ed. 2d at
whether the State from (that in lenging Holmes appellate court’s conclusions in accomplice an the Evans murder Williams was leniency) post- of this expectation entertained However, procedural this issue proceeding. conviction fails to of the substantive issue whether dispose has been right process to due law violated. defendant’s in. this case. Notwith- I believe this is the central issue bound to follow standing the trial court was whether post- Holmes decision this the conclusions whether Wil- we must determine petition, conviction at not revealed trial liams’ statements which were leniency pre- never expectation Williams’ uncovering a new establish evidence sented process violation As due trial. above, I agree
discussed cannot with the as majority’s sertion that the defendant received a fair trial. Codefen dant Holmes received a new trial on the re based facts post-conviction proceeding, vealed this and I believe the defendant should also receive new trial jury may which the consider the facts which establish *31 testifying against Williams’ motives for the defendant. (1995), People
See
v. Jimerson
People 211; v. Jimerson 166 Ill. 2d v. People (1970), 565; Martin 46 (1964), Ill. 2d People v. McKinney 246.) 31 Ill. 2d I Accordingly, find majority’s discus sion of collateral estoppel mutuality and the require ment inapposite the constitutional issue that raised is in this case.
Finally, I do not believe waiver should be applied to the constitutional by issues raised the defendant in the case at bar. implicates "[T]his issue principles of fairness,” fundamental and we will relax a ap strict plication of the waiver doctrine where fundamental fair requires. (Jimerson, 230, ness 166 citing Ill. 2d at People (1986), 212, v. Cihlar 218, 111 Ill. 2d and People v. Burns 290.) (1979), 282, stated, 75 Ill. 2d As previously this is a case, capital eyewitness the sole who testified at the two trials. The of convictions the defen dant and dependant Holmes were on testi Williams’ mony. In interest fairness, of fundamental fair trial issues raised the defendant should be addressed in the case at bar. Williams’ hope leniency and his
40 in the of were that would
true role
murder
Evans
facts
may
not
have
to Williams’
but
only
credibility,
related
contention
trial
supported
have
the defendant’s
at
(See
Alcorta
Williams was the
who shot Evans.
person
v.
9, 12,
Texas
(1957),
28, 31-32,
U.S.
2 L. Ed. 2d
105.)
this,
103,
convic
S.
In cases such as
where the
Ct.
single
of a
wit
largely
testimony
tion is
based on
ness,
truthfulness
and reli
jury’s estimate
"[t]he
given
be
may
witness
well
determinative
ability
guilt
innocence,
and it is
such subtle factors as
upon
or
falsely
in testifying
of the witness
possible interest
(Napue,
may depend.”
life or liberty
that a defendant’s
269,
1221,
1177;
at
Ed. 2d
quoting People Young 1, 47-48; v. (1989), Ill. see People Wilson I am also *32 by kindled say spark hope prepared "not an influenc expectation] leniency was not [Williams’ testimony ing appearance [Williams] factor on *** 251; Jimerson, McKinney, Ill. 2d at at trial.” See 31 226; 166 Ill. 2d discussion, foregoing precedent of this light
In People v. (People 211; v. Jimerson (1995), 2d 166 Ill. court McKinney v. People 565; (1964), Martin (1970), Ill. 2d 46 554; v. Lueck People (1962), 246; see 31 2d Ill. v. Harris Holmes, People 480; (1973), Ill. 3d App. 238 cf. 15) established principles 55 2d and the Ill. v. States (Giglio United Court Supreme
United States 104, 763; Ct. (1972), 150, 31 L. 2d 92 S. 405 U.S. Ed. 264, 1217, v. Illinois Napue (1959), 3 L. Ed. U.S. 28, 2 79 Ct. Alcorta Texas 1173; U.S. L. S. 103), Ed. 2d Ct. I would hold that 78 S. rights violated and reverse process
due were remand for a new trial.
(No. 76467. POOLE, CITY Appellee, STEVEN v. THE OF ROLL al., ING MEADOWS et Appellants.
Opinion August Rehearing denied October filed 1995.
1995. NICKELS, J., joined HARRISON, JJ., by HEIPLE and dis- senting.