People v. Harris

(No. 88468. ILLINOIS, Appel OF THE STATE OF

THE PEOPLE HARRIS, lee, Appellant. v. JAMES Opinion December 2002. filed RARICK, J., part. took no

6 J.,

KILBRIDE, concurring part dissenting part. in and in Carlson, Martin S. of of the Office the State Appel- Defender, Chicago, late of Carlson, and Anne E. of North- brook, for appellant. Ryan,

James E. Attorney General, of Springfield, and (William Devine, A. Richard of Attorney, Chicago State’s Browers, L. Attorney General, Assistant of Chicago, Renee G. Goldfarb and L. Sally Dilgart, Assistant State’s Attorneys, counsel), of for People.

CHIEF JUSTICE McMORROW the opinion delivered of the court:

Defendant James Harris petitioned the circuit court of County pursuant Cook for relief Post-Conviction (725 (West 1996)). et Hearing Act ILCS seq. The 5/122 —1 circuit court petition dismissed defendant’s amended an evidentiary hearing. without appeals 651(a). directly to this court. 134 Ill. 2d R. For the below, set reasons forth we affirm in in part, part, reverse an evidentiary hearing remand for on certain claims raised defendant.

BACKGROUND review, On direct this of court recited the details Harris, v. People defendant’s crimes. See 129 Ill. 2d (Harris (1989) I;, (1994) Harris, v. People 164 Ill. 2d 322 (Harris II). need not details repeat We those here. 1984, following jury trial in the circuit court of Cook County, defendant was convicted of the murder of Jesse Sr., James, of a owner tavern on south side of Woods, and the of Chicago, attempted murder Theresa who also worked as waitress at tavern. Defendant and two aggravated battery of one count was convicted this in connection with attempted robbery counts of 10, Defen- February 1983. incident, occurred on which murder penalty for the convic- the death dant received remaining for the imprisonment and sentences of tion felonies. States the United appeal,

During pendency U.S. Kentucky, decided Batson Supreme Court (1986), and this court L. Ed. 2d 106 S. Ct. 1712 Batson, on hearing, light remanded peremptory discrimination in the exercise claim of hearing, court challenges. Following this circuit I, Harris court On direct appeal denied relief. remanded, proceedings that additional determining again The for the Batson issue. required were resolution hearing, the sentencing during court also found that a evidence of had considered improperly circuit court was never convicted. “murder” for which defendant sentence, and condition vacated defendant’s death We and nondeath vacated his convictions sentences ally I, 129 Ill. 2d at 189. On subject to reinstatement. Harris I, the court resolved the Bat- remand from Harris circuit his adversely to defendant and reinstated son issue to assigned The was then a different convictions. case Following sentencing hearing. for a new this hear judge to death ing, again the circuit court sentenced defendant affirmed for the murder conviction. On this court appeal, in Harris II. filed pro petition

On defendant se June through ap- relief. post-conviction Subsequently, counsel, petition filed an amended and pointed The to amended amended supplement petition. for relief. raised claims We petition eight post-conviction by defendant only forth those claims that are raised set in this appeal. petition alleged

First, post-conviction the amended right that defendant was denied his to assistance effective of counsel under the sixth fourteenth amendments (U.S. to Const., the United States Constitution amends. XIV) during hearing, VI, when, his initial Batson his at- torneys venirepersons failed to establish the race of two by petition who were excused the State. The asserted allegedly performance, that, because defective subsequent appeal Batson was reviewed as only venirepersons to 15 excused rather than the 17 that petition alleges were excused the State. post-conviction petition alleged

Second, the amended right that defendant was denied his to the effective as- sistance of counsel under the sixth fourteenth (U.S. to amendments the United States Constitution XIV) regard Const., VI, amends. with his counsel’s handling pretrial suppress of his motion to evidence. alleged part counsel, errors on the of his trial post-trial appellate regard counsel and counsel with According petition, this issue. to the defendant’s trial impeach counsel failed during one of the State’s witnesses pretrial hearing suppress on the motion to during suppress and failed to ask trial that the motion to ground reopened be on the that this same witness materi- ally changed alleges at trial. Defendant post-trial point alleged that his counsel failed to to these performance deficiencies in trial counsel’s as a basis for granting alleges that, new trial. Defendant in addition arguably “[t]o the extent that this issue could have been appeal, raised Mr. Harris was also denied the effective appellate assistance of counsel.” petition alleging The amended also set a claim forth right that defendant was denied his to the effective as- sistance of counsel under the sixth fourteenth (U.S. amendments the United States Constitution XIV) during eligibility phase Const., VI, of amends. According capital sentencing hearing. his second to the former to call as witness failed defense counsel petition, Garth, testi- Ham whose Phyllis Chicago police officer raised a reasonable have mony claims would defendant state the mental he acted with doubt to whether as eligible. him to render death required al- addition, petition post-conviction In the amended law when due of process defendant was denied leged that evidence aggravation false knowingly presented the State failed to sentencing hearing and at the capital second that would reports medical turn to defense counsel over According to have been false. have shown evidence to in Szumigala, John who testified petition, the amended the extent of the aggravation exaggerated at the hearing, robbery of a 1971 injuries he suffered the victim which defendant was convicted. claim, peti- related the amended post-conviction

In a right defendant was denied his alleged tion capital at his second effective assistance counsel attorneys failed to rebut sentencing hearing when his testimony Szumigala aggravation. John in The counsel failed to focus of this claim is that defense readily defense to the investigate present available in primary aggravation. State’s evidence alleged Finally, petition the amended post-conviction that defendant denied the effective assistance ap- failed to raise a pellate attorney counsel when his use appeal concerning meritorious issue on direct unrelated offense. impact prior victim evidence from question According petition, to the the evidence Szumigala during John impact given victim sentencing hearing. capital defendant’s second allegations in support petition, of the his race attached affidavits of venire members whose two hearing. had been established at first Batson Shealy, venirepersons, Edward one of these stated American, Riley African and Christine affidavit he is Brown, venireperson, the other stated that she is Latino- American. Also of investigators attached were affidavits Lyon, Jr., Jonathan Appolon Beaudouin, and Edward Torres, as well a copy County of a Cook circuit court record, all which appeared indicated that Brown to be African American. also attached an affidavit the Batson Levitin, of Michael one of attorneys his hearing, he stating strategic had made no decision present not to affidavits or documentary other evidence to the race of or Shealy establish Brown. post-conviction petition

Defendant’s amended was separate also a supported attorney affidavit of Michael Levitin, post-trial who also defendant’s counsel. In affidavit, his Levitin stated strategic made no decision to exclude from his post-trial any motions issues trial regarding counsel’s ineffectiveness in handling pretrial motion suppress defendant’s evidence. Also an attorney Chadd, attached was affidavit James first appeal counsel his this court. Chadd stated in that he strategic his affidavit made no decision to exclude from appellate brief the issue of handling trial counsel’s of defendant’s motion to sup- press. addition, post- attached to his amended petition copy police report signed by

conviction of a (now Garth) Chicago Phyllis former Officer Police Ham her recounting following interview with Theresa Woods 10, 1983, James, on February the incident in which Jesse Sr., separate was killed. Defendant also attached af- investigator Lyon recounting fidavit of Jonathan conver- Garth which sations with Officer Garth confirmed accuracy her Woods’ statements Garth’s report. post-conviction petition

Defendant’s amended supported by copy also of the medical records from the hospital Szumigala John was treated after where in these records do injuries reflected robbery. The by Szumi- those described to be as severe as appear attached hearing. Defendant also sentencing at the gala stating that the medi- a physician an letter from opinion of Mr. Szu- allegations do not “bear out cal records stated physician migala’s injury,” which permanent he was the time appeared by have certainly “would addition, at- In defendant hospital.” from the discharged the trial copy Szumigala’s tached a from the differs somewhat robbery charge, on the which hearing in gave sentencing testimony Szumigala attorney Joseph affidavit of 1992. Also attached an at his second represented who defendant McElligott, affidavit, McElligott In his capital sentencing hearing. 1971 medical Szumigala’s that he did not receive averred added that if had McElligott from the State. records records, them to he “would have used received testimony.” Mr. impeach Szumigala’s further post-conviction petition amended Finally, defendant’s Hoffman, an of Charles who supported by affidavit capital from the second represented appeal affidavit, addressed the sentencing hearing. his which Szumigala’s John victim admissibility issue of the that he made no impact testimony, Hoffman stated decision not to raise this issue. strategic 20, 1997, an amended mo- August On the State filed peti- tion post-conviction to dismiss defendant’s amended Following granted the circuit court argument, tion. oral post- to defendant’s amended State’s motion dismiss evidentiary hearing. an petition conviction without The circuit court concluded that the issues raised litigated or “do not petition were either previously constitu- raise of law such the defendant’s questions neglected tional been or sacrificed.” The [rights] have that he was denied the rejected court defendant’s claim hearing. Batson The effective assistance of counsel his court also rejected claim appellate that his counsel was ineffective for failing raise the issue of the improper use of victim impact evidence from a prior unrelated offense. moved reconsider and judgment, vacate

and the motion was denied. Because defendant was sentenced to death for the underlying conviction, murder 651(a). directly lies appeal this court. 134 Ill. 2d R. We will recount additional relevant facts in the context of the on appeal. issues

ANALYSIS The provides Illinois Post-Conviction Hearing Act mechanism which criminal assert defendants can their convictions were sentences the result of a their rights substantial denial of under the United States Constitution, Constitution, the Illinois or both. See 725 (West 1996). ILCS An post-conviction action for 5/122 —1 relief is a proceeding collateral and is not an appeal from the underlying judgment. People Mahaffey, Ill. 2d v. People 154, (2000); 170 Morgan, 500, 187 Ill. 2d 528 (1999). In order post-conviction relief, to be entitled to a defendant must establish a of deprivation substantial or rights federal state constitutional in the proceedings challenged. Morgan, produced judgment being the Tenner, v. People 528; 372, 187 Ill. 2d at 175 Ill. 2d 378 (1997).

The purpose post-conviction is to proceeding permit inquiry into issues in constitutional involved not, original conviction and sentence that were and could been, adjudicated not have on direct previously appeal. v. (2000); People Haynes, People v. 437, 192 Ill. 464 2d Towns, (1998). 491, 182 Ill. 2d 502 Issues were on by raised decided direct are barred appeal Towns, doctrine of res 502; judicata. People 182 Ill. 2d at Whitehead, v. overruled on (1996), Ill. 2d 169 371 (1998). Coleman, other v. grounds, People 183 Ill. 2d 366

13 appeal, presented direct on could have been Issues that Haynes, 465; at 192 Ill. 2d not, are waived. but were of res However, the doctrines Towns, Ill. 2d at 503. 182 situations: judicata in three are relaxed and waiver requires, al where fairness so fundamental where leged incompetence appellate from the stems waiver relating do not to the claim facts counsel, or where original appellate Ma appear record. of the on the face Whitehead, Ill. 2d at 371- haffey, 171; 194 Ill. 2d at 72. petition filing post-conviction is

A defendant right. evidentiary hearing as a matter entitled to an Mahaffey, Whitehead, 2d at 171; 169 Ill. Ill. 2d at post-conviction evidentiary hearing claims An 370-71. allegations post- only where the is warranted appropriate petition, supported where conviction accompanying affidavits, make a substan trial record or rights showing the defendant’s constitutional tial Haynes, Towns, 465; 192 Ill. 2d violated. have been grant determining an whether to 182 Ill. 2d 503. petition hearing, well-pleaded evidentiary facts in the all any accompanying are taken as true. affidavits and in (1995); People Towns, Brisbon, 236, 244-45 164 Ill. 2d v. regard determinations Ill. 2d at 503. A trial court’s sufficiency allegations post-conviction ing of the Morgan, petition 528; 187 Ill. 2d at are reviewed de novo. (1998). People Coleman, Ill. 2d 388-89 principles mind, we consider whether these With dismissing post- erred in the circuit court hearing. evidentiary petition an conviction without for review. court, raises six claims Before this each of them seriatim. address We

I. Batson Claim attorneys argues were ineffective that his hearing they to establish when failed at his first Batson Riley Shealy Brown, Edward and Christine the race of venirepersons the State. who were excused two At the start of the hearing, which took place parties disputed the total number of African Ameri can venirepersons who had been peremptorily challenged by the State. Defense counsel argued that the number while the State maintained total was 15. The two disputed venirepersons were Shealy and Brown. At the court, behest of the trial defense counsel investi gated the matter and informed the court that while he had been speak unable to directly Shealy Brown, he had spoken by telephone with members of their households, who informed him that Shealy and Brown were African Americans. The State presented no evidence assertion, to refute this and the trial judge court concluded that Shealy and Brown were African Ameri Having cans. found that the State used 17 of its 20 pe remptories Americans, to excuse African the judge then a prima determined that defendant had established facie case of Batson Batson, discrimination. Pursuant State was then required to provide race-neutral reasons for its peremptory challenges. At the conclusion of the hearing, the trial court found that “the challenges were reasons[,] used for neutral not for racial reasons.” On I, Harris appeal this court determined that Shealy’s race Brown’s had not been properly established, and therefore had waived his Batson claim as that defendant to these two venire Accordingly, members. in reviewing defendant’s Batson claim, we considered the 15 only venirepersons excused the parties agreed were I, Americans. Harris African 129 Ill. 2d at 172. Before court, initially argues State defendant’s Batson claim is barred by the doctrines of waiver and res judicata. Pointing to our decision in Har- I, ris the State asserts: “this already Court has decided that Petitioner forfeited right challenge the exclu- jurors Riley sion of Shealy [Brown] and when counsel failed to make an adequate record” of their race. The

15 recognition I in Harris of waiver that our State contends judicata in the case at bar claim to defendant’s res as is disagree. Shealy regard and Brown. We to with judicata are and waiver of res noted, the doctrines As ap relating claim do not to the the facts relaxed where original appellate pear Here, as record. the face of on nothing in the I, there was in Harris this court noted establishing members the two venire the race of record question. Indeed, it is the I, Ill. 2d at 172. in Harris 129 Shealy’s establishing Brown’s race and of facts absence which, noted, claim, of defendant’s that is at the heart failing establish ineffective for to his counsel was is that appear relating do not this claim The facts their race. original appellate record, res the face of the apply in judicata do waiver therefore instance. points

Notwithstanding foregoing, the State People 2d 83 Evans, 186 Ill. in v. decision this court’s (1999), post-conviction claim was found a similar where failed the defendant waived because to have been testi race of the witnesses who in the record the include in Evans did not However, the defendant fied at trial. case, that his the instant claim, as does failing the wit to establish was ineffective counsel post-conviction claim was Instead, his race. nesses’ simply Batson . fourteenth amendment a variation appeal. direct that he had raised on claim different, sixth amendment the instant case raises Therefore, we of counsel. assistance claim of ineffective inapposite case at bar. to the find Evans Turning claim, we recall of defendant’s to the merits ineffective as- we review familiar standard which inef- on a claim of claims. To succeed of counsel sistance satisfy counsel, must a defendant fective assistance Washington, two-part forth in Strickland test set (1984). 674, 104 Ct. 2052 668, L. Ed. 2d S. U.S. Under prong test, first of this the defendant must demonstrate that his performance counsel’s was deficient. words, In other “the defendant must show that counsel’s representation fell an objective below standard Strickland, reasonableness.” U.S. 80 L. Ed. 2d at However, 104 S. Ct. at 2064. even if it is established that counsel’s performance profession ally unreasonable, this, by itself, is insufficient to war rant reversal. The defendant must also meet the second prong of the Strickland test: he must demonstrate counsel’s in prejudice. deficiencies resulted In order to prejudice, establish “[t]he defendant must show that, there is a probability reasonable but for counsel’s unprofessional errors, the result of the proceeding would have been A different. reasonable probability prob is a ability sufficient to undermine confidence in the out Strickland, come.” 694, 698, 466 U.S. at Ed. 80 L. 2d at 104 S. Ct. at 2068. A defendant satisfy must both prongs of the Strickland test in order to succeed on a claim of Strickland, ineffective assistance of counsel. 466 U.S. at 697, 699-700, 80 L. Ed. 2d at 104 Morgan, 2069; S. Ct. at 187 Ill. 2d at 530. bar,

In the argues case defendant that his counsel’s failure to venirepersons Shealy establish the race of Batson at the hearing Brown was professionally unrea- sonable. Defendant also contends that he suffered a prejudice allegedly as result of this deficient perfor-« According defendant, manee. to there is reasonable probability that, had these race venirepersons’ been I Harris would have properly established, court this found the excusing Shealy State’s reasons for and Brown to pretextual be and would have reversed defendant’s Alternatively, argues convictions. there is probability reasonable this court would have found judge’s the trial court findings venireper- as these two sons erroneous and would have remanded for further Batson proceedings Shealy Brown.

17 Batson, Court held that it was Supreme the to use a prosecution peremptory unconstitutional for the juror solely exclude a on the challenge prospective three-step The Court in Batson outlined a basis of race. evaluating claims of Batson discrimination. process for First, showing the defendant must make a prima facie challenges exercised prosecutor peremptory made, the of race. Once a case is prima basis facie to articulate a race- prosecutor burden shifts to the explanation excusing venirepersons neutral York, 352, 358-59, question. Hernandez v. New 500 U.S. 395, 405, 1859, (1991); 111 114 L. Ed. 2d S. Ct. 1866 (1994). Williams, 1, At stage 164 Ill. 2d 19 People process, explanation given by prosecutor of the Elem, persuasive, plausible. need not be or even Purkett v. 765, 768, 834, 839, 514 L. Ed. 2d 115 U.S. S. Ct. (1995). 1769, A explanation neutral is one based on II, than reason other race. Harris 164 Ill. 2d at 333. a discriminatory “Unless intent is inherent in the prosecutor’s explanation, the reason offered will be Hernandez, deemed race neutral.” 500 U.S. at L. Ed. 2d at S. Ct. at 1866. Once the prosecutor his striking prospective jurors articulates reasons for in question, process moves to the third trial step: the court must determine whether the defendant has carried of proving purposeful burden discrimination. Her nandez, 359, 405, 500 U.S. at 114 L. Ed. 2d 111 at S. Ct. at 1866. Because the trial court’s decision as to discrimi natory fact, intent represents finding of this determina tion is to great entitled deference and will be disturbed only Hernandez, on if it appeal clearly is erroneous. 500 364-65, 369, 409, 412, at 114 U.S. L. Ed. 2d at 111 Ct. S. 1869, 1871; at People 259, (1995); v. 165 Ill. 2d Wiley, II, Harris 164 Ill. 2d at 333. Where more than one explanation has been offered for the exclusion of a venire member, it is sufficient for our if purposes at least one Andrews, People explanations

these is race neutral. Wiley, 286, (1993); 155 Ill. 2d 165 Ill. 2d 278. defendant’s Batson bar, argument the case at turns given by excusing on whether the reasons the State for Shealy and pretextual, Brown were on whether they trial court’s determination were race neutral If clearly questions was erroneous. these are answered in negative, it follows that defendant suffered no as a failure to prejudice result counsel’s establish Shealy’s Accordingly, and Brown’s race. defendant’s inef Strickland, claim fail. fective assistance of counsel would 2069; 466 U.S. at 80 L. Ed. 2d at 104 S. Ct. at follow, Morgan, Ill. 2d at 530. For the reasons that we conclude that defendant’s Batson claim is without merit.

Christine Brown Riley dire, voir the trial During by which was conducted 24, 1984, judge April Riley court on 23 and Christine (now Brown) from graduated stated that she Richard as a High years Vocational School and had worked for six directory regard for Illinois Bell. operator assistance With residence, judge place agreed to her she with the when Kenwood,” in “Hyde he stated that she lived Park or neighborhoods vicinity which are two the same lawyer. a friend who Chicago’s Riley south side. had was her spoken philoso- She had never to this friend about Riley separated of law or law enforcement. phies husband, bodywork during her had done auto from who Her had been they together. nephew the time that were three of a crime. He was stabbed “about victim on the south side of ago” months front of his house did not Riley fight,” said she Chicago. “[i]t “exactly happened.” know what The Batson judge hearing was conducted same Franks, one hearing, trial. At Daniel presided who case, reasons for explained in the prosecutors of the excusing Brown. One of these reasons was that she “lived Hyde explained that, in the Park area.” Franks based on experience, people it his that in belief who live Hyde University Chicago the Park and area “have a community.” certain attitude about themselves and that According “[t]hey Franks, to are in more interested maybe open scholastic endeavors and would more be to types people new ideas and other of ideas than in the Chicago selecting rest of the area.” Franks stated that in jurors, people going for looks who “are to listen findings evidence and make their of fact based on the they get guess evidence courtroom, that in this and not attempt go beyond rulings or of the court or the jury instructions.” argues given by that the reasons

prosecutor excusing “appear pretextual Brown either unsupported by regard or the record.” With to Brown’s place residence, defendant notes that Brown never Hyde stated that she was a resident of Instead, Park. she simply “yes” judge answered when the stated: “Youlive Hyde you say?” in Park or Kenwood, did In addition, emphasizes graduated that Brown from a high directory vocational school and worked as a as- operator. According sistance defendant, “there is no possessed Hyde evidence she the characteristics of Park- objectionable.” ers which Franks found correctly As defendant notes, Brown did not state Hyde judge’s that she lived in Park. Her answer to the question place about her of residence indicated that she Hyde lived either in However, Park or Kenwood. prosecutor, explaining why in Brown, he excluded did not say Hyde in she lived Park. His statement was that added.) Hyde (Emphasis she in “lived Park area.” apply This statement could to Brown whether she lived Hyde Park or Kenwood. contends, noted, Defendant also did Brown necessarily possess the characteristics objectionable “Hyde prosecutor Parkers.” found argument I in Harris this identical Defendant raised regarding There, defendant a different venire member. explanation challenged prosecutor’s that a venire part in of her residence in because member was excluded Hyde According defendant, not to the State could Park. rely explanation it that unless could show on such an scholarly, actually Hyde did tend to be Park residents findings likely open not to their to new ideas and base question venireperson in evidence, and that the fact on actually possessed I, Harris 129 Ill. 2d these traits. rejected argument. We deter 176-77. We that a failure to show in Harris I that the State’s mined group actually possesses the traits attributed undesirable by member State, an excluded venire it or that possesses be traits, a factor that should these is also evaluating legitimacy the trial court considered explanation. not However, the State is of the State’s process, stage required, of the Batson at the second stage, showing. “it is a At second make such necessary empirical truth of that the State establish juror.” challenge support to a it the reason cites required of the Ill. 2d at 338. All is II, 164 Harris prosecutor’s explana stage that the at the second is State facially 360, Hernandez, U.S. at 500 race-neutral. tion be 406, 111 S. Ct. at 1866. 114 L. Ed. 2d at prosecutor’s bar, that, in the case at conclude We explanation lived excluded because she that Brown was previ- Hyde As noted race-neutral. in the Park area is hearing, ously, the trial Batson of the at the conclusion challenges judge used for “the were court found regard to With reasonst,] not for racial reasons.” neutral explanation judge specificallyfound that the Brown, the Hyde community Park” in “the lived that she judge’s say determina- that the cannot race-neutral. We

21 clearly York, tion erroneous. Hernandez v. New here 352, 369, 395, 409, 2d 111 S. 364-65, L. Ed. U.S. (1991); Wiley, 274; Ct. 165 Ill. 2d at reject defen II, Harris Ill. 2d at 333. We therefore claim member dant’s Batson as to exclusion venire Riley Christine Brown. Shealy

Edward During Shealy dire, voir Edward stated that had a he degree bachelor’s in music and worked as docket Shealy manager Chicago at a law had firm. worked years, prior firm for this had been 3V2 manager years. Shealy docket at a different firm for six judge “plenty” told he had of close friends who attorneys were but did not with their discuss them philosophies about law or law enforcement because “[tjhey Shealy don’t have time.” also indicated that he had a friend close who was a recruit” “new with the Chicagopolice department. if When asked ever talked police department, to this friend about work with the Shealy Shealy answered, “None whatsoever.” also stated police that ing. not talk he did to this train- friend about his hearing, prosecutor At the Batson Daniel Franks of- explanations excusing Shealy. fered several of One Shealy “plenty” that, them was while he indicated had attorneys, of close friends who he were insisted that any philosophies never talked to them of about their response or law law enforcement. stated that Franks this sense,” “did not make and he the commented on Shealy displayed giving that demeanor “I don’t while it: justice way juror [sic] think I do can that question [the judge’s] answered terms his tone of answering ques- voice and his mannerisms while that According Shealy’s tion.” Franks, to “the answer was type response give feeling that did not me a I that jury.” him on wanted that argues explanation pre- “appears that

Defendant this points textual.” He to three white venire members— Gray, Najdowski, Theresa Richard and Michael Dolan— attorneys1 family had who who friends or members were accepted jurors, though they and who even were were they legal at- never asked if torney. discussed matters with the expressed attorney; 1 Najdowski corporate a had a close friend who was attorney; and had a cousin Gray’s corporate Dolan father was attorney. anwas who Najdowski, that,

instance, additional unlike the trait was Gray Shealy “plenty” Dolan, friends who or had close yet attorneys, talked to were that he never insisted philosophies of them their law or law enforcement. about jurors situation, In also had such a the fact that white attorneys family or who does close friends members were excluding Shealy explanation State’s for render the (1989). pretextual. People Young, 1, Ill. v. 2d objects noted, defendant asked As also that no one jurors they legal the if with their white matters discussed attorneys. friends or relatives who were The voir dire by judge. this trial case was conducted the court This pose “[t]he court has held that ad State’s failure to questions ditional does not lead to the that conclusion by given pretext the the reasons State were mere Wiley, citing racial discrimination.” 165 Ill. 2d at People (1994); Kitchen, II, 159 Ill. 2d 20-21 Harris 164 Ill. 2d 334. hearing, judge

At the conclusion of the Batson peremptory found that the State had exercised its chal- lenges for race-neutral reasons and had rebutted defen- prima regard Shealy, judge dant’s specifically case. With facie explanation Shealy

mentioned the “plenty “works at a law firm” and had of friends who lawyers,” adequate were that this concluded was an excluding Shealy. upon elaborating basis for explanation, judge opined Shealy that because worked large Shealy might for a firm, civil law take view important. very that criminal law is not challenges judge’s findings Defendant on the ground they actually given do not reflect the reasons prosecutor. argues Franks’ actual excusing Shealy reasons for not that were he worked lawyers, law firm had friends were or that who Shealy thought unimportant. Rather, criminal law prosecutor Shealy’s stated that he doubted candor attorney to his that he never talked Shealy

when stated philosophies enforcement issues or friends about law the law. no need held that there is repeatedly court has

This findings respect with judge court to enter for a trial by prosecu the of the venire excluded each black member People Mack, (1989); v. People 245-46 Ill. 2d tion. II, 164 Ill. 2d at Fair, Harris v. (1994); 51, 76 159 Ill. 2d Fair, In both Mack judges who and the circuit court 335. conducted the Batson at the conclusion of hearings found by prosecu offered the explanations that the hearings the under Batson. and sufficient tion were race-neutral finding and only general case, judge made each for each black findings factual specific not enter did Fair held in both by the State. We venireperson excluded enough and Mack that such finding specific general no need for there was and purposes for our as to the findings specific to make judge circuit court challenge. peremptory for each such explanations State’s cases, the record we noted “In both of those the separate explanations the prosecutor’s contained venire, of the minority members made to the challenges findings judge’s trial in each case the and, reviewing in intent, explana considered the discriminatory we of no II, 164 Ill. 2d Harris prosecution.” provided by tions Batson claim in may proceed If review of a 335. our court as to by the circuit findings specific the absence no State, we see by the challenged minority person each specific make does judge in a case where why, reason findings to those only limited should be findings, we considering explanations independently from prevented on ruled expressly but not by the State provided judge. Williams, 164 Ill. 2d People in decision

Our Following the to this issue. (1994), point exactly is had made a decision judge’s trial court to the exclusion of Alvin regard case with prima facie African American the State Pettigrew, venireperson, an exercising reasons for provided then its Williams challenge Pettigrew. The first two peremptory against during hat on Pettigrew kept reasons were that these dire, thought was prosecutor voir which the said she short, Pettigrew gave cryptic and that disrespectful, judge asked. The mentioned questions answers to explana that the State’s finding each of these reasons However, judge legitimate tion was race-neutral. the third the State: provided by did not mention reason “Pettigrew’s knowledge concerning employ lack of children, who, 24-year-old ment of one of his four son ” ‘[wjorks said, Williams, he downtown somewhere.’ 164 Nevertheless, proceeded Ill. 2d at 20. this court “appears consider this reason and concluded: to be a [It] legitimate, plain race-neutral one. The record makes that of the finding clearly circuit court is not erroneous.” added.) Williams, 164 Ill. at (Emphasis 2d 21. Just as this court in Williams examined a explicitly reason not upon by judge, ruled the trial so here have we considered the reasons advanced the prosecutor excluding including Shealy, explicitly upon by those not ruled reasons, trial judge. Based our review of these we can say judge’s they that determination that were legitimate and clearly race-neutral is erroneous. Hernan York, 352, 364-65, 369, dez v. 500 114 Ed. New U.S. L. 2d 395, 409, 412, 1859, 1869, (1991); 111 Wiley, S. Ct. 1871 274; II, 165 Ill. 2d at Harris 164 Ill. 2d at 333. We reject therefore defendant’s Batson claim as to the exclu Shealy. sion of venire member Edward Shealy Because defendant’s Batson claims as to and meritless, that Brown are defendant has failed to show prejudice suffered result of counsel’s failure Even if Shealy to establish the race of and Brown. counsel venirepersons, had established the race of these two defendant has not demonstrated that “there is a reason that, probability able but for counsel’s er unprofessional rors, the result of the proceeding would have been differ Strickland, 698, ent.” 466 U.S. at 80 L. Ed. 2d at In words, S. Ct. at 2068. other even if this court had Shealy Brown, considered the State’s exclusion of it reasonably is not probable that the court would have found the pretextual State’s reasons to be or that trial judge’s determination the reasons were race- clearly neutral was erroneous. Defense failure counsel’s Shealy to establish race of and Brown did not See Strick constitute ineffective of counsel. assistance land, 699-700, Ed. U.S. at 80 L. 2d S. Ct 2069; Morgan, 187 Ill. 2d at 530. makes an additional Batson claim regard

Defendant ing defense counsel’s failure establish the race of Riley According defendant, Christine Brown. Brown is a “Black Latina” and is therefore one of three Hispanic (Brown venire, of the two of whom members Eva Morales) peremptorily challenged by were the State. if contends defense counsel had estab heritage, Latina there is a reasonable lished Brown’s II Harris probability this court would have found prima against Hispanic case discrimination facie II Harris venire members. we held that defendant prima case, part failed to establish such a based facie only on “the of one in the apparent presence Hispanic II, venire.” Harris Ill. argues 164 2d at 344. Defendant if might decision have been different we court’s and that Riley Hispanic had known that was also peremptorily challenged State thus had two of three members, disagree. venire or We Hispanic 66%. prima purposeful In order to establish a case of facie Batson, a defendant must show discrimination under an infer- and circumstances “raise the relevant facts [peremptory challenges] ence that used prosecutor 27 jury on account of petit the veniremen from the exclude 88, Batson, 96, L. Ed. 2d at race.” 476 U.S. 90 their words, defendant must Ct. at 1723. In other 106 S. rise to gives of the relevant facts totality show that “the Batson, 476 discriminatory purpose.” an inference of 86, 106 at 1721. 94, L. Ed. 2d at S. Ct. U.S. at of factors that has enumerated a number This court case determining prima in whether are relevant facie has been jury selection purposeful discrimination These include: established. factors [minority] jurors; ‘the ‘pattern’ against “a of strikes prosecutor’s questions during voir dire statements [citation]; exercising challenges’ examination and challenges against disproportionate peremptory use of [citations]; [minority] minority] [members of a the level of compared jury in the to the representation [cita venire as tions]; [minority members] whether the excluded were a only heterogeneous group sharing race as their common [citation]; characteristic the race of the defendant and [citations]; [citation].” victim and the race of the witnesses (1988). Evans, 50, People v. 125 Ill. 2d 63-64 bar, In the case at defendant contends that there were (Brown, three Hispanic members the venire Lucio Morales) Martinez, and Eva and that the State used them, peremptory challenges remove two Brown peremptory challenges and Morales. The State thus used Hispanic remove 66% the members of the venire. However, [minority] veniremen are imply “[s] because not, more, peremptorily challenged does without raise specter Evans, or inference of discrimination.” 64, Batson, 101, citing Ill. 2d at 476 U.S. at 90 L. Ed. 2d (“it (White, J., concurring) 106 S. Ct. at 1725 is unconstitutional, more, without to strike one or more Ill. 2d jury”); People Hooper, blacks from (1987) (the J., (Ryan, specially concurring) court arbitrarily deciding question must avoid this delicate excused “solely peremptorily from number of blacks record”). by the as disclosed

28 prosecutor,

Defendant does not contend here that the exercising peremptory challenges against Hispanics, indicating discriminatory made statements intent. More importantly, victims, neither defendant nor his two one Hispanic. witness, of whom was the State’s chief were All three of them were African Americans. We are aware may bring that a criminal defendant a Batson claim jurors “whether or not the defendant and the excluded Ohio, 400, 402, share the same race.” Powers v. 499 U.S. (1991). 411, L. 419, 1364, 113 Ed. 2d 111 S. Ct. 1366 though identity required However, even racial is bring identity, claim, thereof, order to such or lack determining “remains a relevant factor in whether prima case of discrimination has been established.” facie (1992); People People Pasch, 133, 152 Ill. 2d v.An (1992). drews, 413, 146 Ill. 2d II Harris this court prima held that defendant had failed to establish a facie regard case of discrimination with to an excluded Hispanic reaching decision, venire member. In court stated: “The defendant group, of a different ethnic likely

and there would been no have reason for prosecutor attempted against the Hispanics.” to have to discriminate II,

Harris 164 Ill. 2d at 344. draw the We racial-identity same conclusion here to the as factor. record, on our Based review of the we conclude that totality give of the relevant facts does not to an rise discriminatory purpose part inference' of on the of the Batson, 93, 94, State. See 476 U.S. at 90 L. Ed. 2d at 85- 86, if 106 S. Ct. at 1721. Even counsel had defense Hispanic heritage, prima established Brown’s case facie against Hispanic of discrimination venire members would Accordingly, not have been established. defendant has prejudice failed show he suffered result of his Hispanic heritage. counsel’s failure to establish Brown’s Strickland, 698, 466 U.S. at 80 L. Ed. 2d at 104 S. alleged error here did not Ct. at 2068. Defense counsel’s Strickland, of counsel. ineffective constitute assistance Ct. at 699-700, 2d at 104 S. 80 L. Ed. U.S. at 530. 2069; 187 Ill. 2d Morgan, Accord- is without merit. Defendant’s Batson claim post- correctly court dismissed defendant’s the trial ingly, hearing. evidentiary an Batson claim without conviction Suppress II. to Motion his mishandled next counsel argues evidence, thereby denying his motion to suppress pretrial According to of counsel. him the effective assistance motion, this defendant, effectively if counsel had handled at his the taken from defendant gun allegedly that was case have and the State’s suppressed arrest would been to evidence have been insufficient without this would convict. to trial moved to his arrest quash

Prior defendant evidence, arguing prior and that his conduct suppress the probable suspect arrest did not constitute cause to commit had or a crime. he committed was about A held in three testified. We hearing was which witnesses begin a review their and the trial with of conclusions, testimony given judge’s along with relevant at trial the same witnesses. Johnson, Chicago a worked

Cleveland resident who suburb, at the that on the hearing a western testified on February 10, 1983, driving of he west morning when, a.m., stopped 63rd 4:15 or he Street about 4:25 light at a traffic at the intersection of 63rd and State intersection, he Streets. While was at the Johnson man foot who was north on young noticed on headed man, State The identified as Street. whom Johnson defendant, turned, and looked toward 64th stopped, back east, corner, He then around the headed stepped Street. and a traffic control box. Johnson said stood behind there to watch defendant because he felt that continued light “something guy.” this wrong with When changed, turned right Johnson and headed north on State Street. rearview mirror he saw defendant Street, come step sidewalk, across 63rd onto the and up Defendant, start on running north State. who was to right car, then Johnson’s hooked his left hand right door handle, car’s front and hit the car with his right hand. Johnson car stopped, opened passenger-side window few inches. Defendant asked Johnson if he take him Street, would to 51st and he of- fered pay said, “No, dollars for five the ride. Johnson I so,” do not think reached pulled down and up on the front his pants at the waist. point Chevy

Johnson testified further Blazer from up pulled drove behind and front Johnson’s car. Blazer, Two officers came out one right-hand from the side and the other from the driver’s side. Both guns. had One of the came officers around rear of Johnson’s car and pushed defendant over the hood, him, telling car’s “Don’t move.” The officer then gun took a from defendant’s belt. Johnson did see the gun before the officer took it from defendant. Grady,

Michael who was as a employed police railroad (Con- officer for Corporation the Consolidated Railroad rail), on 10, 1983, testified that morning February Kurzweil, he partner, and his Theodore were patrolling in their Chevy Blazer near the intersection of 63rd and a.m., State prior Chicago police Streets. Sometime to 4:20 gave officers drove and up descrip- Conrail officers a tion of a man said they attempted was wanted armed robbery: Black, “a six approximately male five-ten to foot, twenties, wearing jean jacket his a blue [and] jeans, large, Afro-style a] blue hairdo.” The bushy [with Chicago police officers said the was armed a man with handgun. away. small They caliber then drove Grady later, further short time at testified that a a.m., about 4:20 he and his were at the partner intersec- man they a Streets when saw tion of 63rd and State running alongside Grady as defendant identified whom north on State Street. moving car. The car was Johnson’s handgun “openly a According Grady, defendant had hand, left and his hand was displayed” right his door. The officers turned passenger-side the car’s Conrail pulled and in front Johnson’s north onto State Street a half north stopped had about block car, which now their got and out of Grady partner on State. of 63rd defendant, arrested guns with their drawn and vehicle they gun. from whom recovered February Kurzweil, the Blazer on driving who was He essentially testimony. the same stated gave morning a man at about 4:20 that he saw whom going north on State identified Street car, man, alongside moving 63rd Street. The who was to be a right had in his hand what revolver.” “appeared jean time wearing jacket At that defendant was blue large hair in a jeans, and blue Afro.” “[h]is court hearing, At the conclusion of circuit denied defendant’s motion to arrest and quash suppress probable The there was cause judge evidence. stated that (1) “at a grounds: to arrest defendant on either of two [February 10, closely 1983] time connected with the incident,” description given defendant matched the (2) officers, carry- or the Conrail defendant was observed handgun Chicago.” ing City “within from presented testimony Evidence at trial included and Con- three witnesses —Cleveland Johnson these same All Grady Michael and Theodore Kurzweil. rail officers had gave essentially they the same three regard gun Grady to the given previously. With hand, Grady had in defendant’s stated Kurzweil seen running alongside he trial that defendant observed hand, and his arm extended car, gun right in his with car the level of the right gun to his side. The was below Grady subsequently window. When drop told defendant to gun, “[pjlaced weapon into his Grady gun then waistband.” recovered the from defen- placed gave dant, who was under arrest. Kurzweil similar testimony regarding gun. stated Kurzweil alongside running [Johnson’s] car,” defendant “was with right in his hand “revolver” and his left hand “toward Grady subsequently gun the car.” recovered the from defendant. respect description given by to the

With of defendant Chicago Grady’s police testimony officers, at trial dif- pretrial testimony. fered from somewhat his At the mo- hearing, Grady noted, tion stated that the officers told “they looking approximately him were a male Black, large Afro-style wearing foot, hair, five-ten to six blue jean jacket, jeans, blue and armed with a small caliber handgun, Attempted Robbery.” wanted for Armed At Grady gave description trial, however, black, as “Male wearing jean jacket large a blue with a ‘fro.” Under cross- Grady trial, at examination conceded he that when stated during hearing description the motion that the included height “conjecture” “five, foot,” ten to six this was part. on his noted,

As Johnson’s trial similar to previous testimony. his Johnson testified that was in Streets, his car at the intersection 63rd and State stopped stoplight, a he observed defendant act- when ing suspiciously. right turned off 63rd Johnson State, mirror, north on headed looked his rearview running nothing him, and saw defendant toward but saw subsequently sight in defendant’s hands. Johnson lost mirror, defendant again, his rearview he saw him when alongside car, defendant was Johnson’s on the right-hand passenger side, with hand on his left door. right passenger hit hand, door with stopped and Johnson the car. Johnson could not see

33 He saw hit the door. hand when defendant defendant’s later, one A short time swinging.” “arm defendant’s only from defendant. gun recovered a of the officers court, argues that his counsel’s defendant Before in three was deficient suppress the motion to handling of (1) to hearing on the motion during pretrial ways: Grady regard- impeach failed to defense counsel suppress, given testimony description as to the that ing (2) trial, counsel during the defense by Chicago police; suppress reopened that the motion to be failed to ask light regarding trial Grady’s of different (3) trial, newly ap- after description; to these deficien- pointed post-trial point counsel failed granting as a for performance in trial counsel’s basis cies in addition a new trial. Defendant contends defendant raised the extent the issue could have been “[t]o that denied appeal, allege[s] [defendant] on direct that he was the effective assistance of counsel.” appellate argues

The State that defendant has waived initially by failing post-trial it either motions this issue raise noted, or appeal. purpose post- on direct As of constitu permit inquiry is to into proceeding conviction original involved in the conviction tional issues been, not, and could not have sentence were appeal. Haynes, v. adjudicated previously People on direct 491, 464; Towns, 502 192 Ill. 2d at v. 182 Ill. 2d People (1998). on direct presented that could have been Issues Haynes, Ill. 2d at not, were are waived. 192 appeal, but of 465; Towns, However, Ill. the doctrine 182 2d at 503. from alleged relaxed where the waiver stems waiver is Ma v. incompetence appellate People counsel. Whitehead, (2000); 154, Ill. 2d 171 v. People 194 haffey, (1996). Here, alleges Ill. 2d assistance that he was effective only deprived counsel, appellate but also that his post-trial trial and motion-to- failing to raise the counsel was ineffective suppress appeal. issue direct We therefore address the Simms, merits of defendant’s claim. People v. 192 Ill. 2d (2000). 348, 371-72

Claims ineffective assistance of appellate counsel are evaluated under same two-prong standard set forth in Strickland for assessing claims of ineffective as Haynes, sistance of trial 476; counsel. 192 Ill. 2d at People Richardson, (2000). 189 Ill. 2d “ ‘A defendant who contends that appellate counsel assistance, failing e.g., by argue rendered ineffective an issue, must show that the failure to issue raise objectively and that prejudiced unreasonable the decision Appellate obligated the defendant. counsel is not to brief every appeal, incompe conceivable issue and it is not which, raising tence of counsel to refrain from in issues his merit, judgment, or her are ap without unless counsel’s praisal the patently wrong. Accordingly, merits is unless underlying meritorious, the issues are defendant has suf prejudice fered no to from counsel’s failure raise them on Childress, 168, appeal. People (2000); v. 191 Ill. 2d (and (1999) West, 418, People v. 187 Ill. 2d cases cited ” therein).’ Haynes, Ill. 2d at quoting People (2000). Easley, 192 Ill. 2d 328-29 argues that defendant cannot show Strick- The State land prejudice because, regardless here of the merits of his the insufficient-physical-description claim, trial court judge separate, independent ground denying found motion to suppress: defendant’s defendant was observed hand, handgun City with a “in of Chicago.” his within the State, According argument regard to the with description to the “in no weakens the physical way finding judge] second and alternative made [the quash: when he denied motion Grady [defendant’s] to and officer had probable [Conrail Theodore] Kurzweil cause to arrest as soon as saw him run- they [defendant] ning gun Johnson’s car with a alongside [Cleveland] to hand, appeared attempt in what to be an enter the car and harm the driver.” argument, regard contends

With Grady’s “completely contradicted” Johnson points testimony gun. about Kurzweil’s hearing testimony pretrial trial, and at at the Johnson’s according defendant, stated that which, Johnson carrying gun.” Defendant defendant “had been gun one did until notes that Johnson not see it took from defendant. Conrail officers testimony reading

A of Johnson’s careful hearing pretrial Johnson did not and at trial shows that testimony. “completely Conrail officers’ contradict” the pretrial trial, and at Johnson stated In both his gun it in the officer’s when was first saw clearly gun taken However,he stated that the hands. testimony, following pretrial In his from defendant. exchange place took between defense counsel Johnson. you [Assistant Defender]: KUNZ Public Did see a

“MR. gun? *** got The it [Johnson]: THE officer from WITNESS him. I [saw] That is when it. you

MR. Did the officer take it from him? KUNZ: see looking I THE am at the officer when he WITNESS: jacket. pulled upit from his

* * ^[*] And, gun, you MR. KUNZ: the officer took before had it? not seen

THE WITNESS: No. by jacket? MR. Had KUNZ: Was it hidden his it been jacket? hidden his be, not It I did see it.” THE WITNESS: had because gave testimony trial, but he

Johnson similar following colloquy provided The took additional details. place prosecutor the and Johnson. between Attorney]: [Assistant FRANKS State’s Describe

“MR. gun you the saw taken from the defendant? that caliber, gun. It small dark Looked THE WITNESS: was a to me like it was .32. touching

MR. FRANKS: When officer was the frisking him, defendant or did that officer—

[*] ^[**] gun MR. Did that in FRANKS: officer have a his hands at that moment?

THE No. WITNESS: you Did gun MR. FRANKS: see that then for the first time it when was in officer’s hands?

THE [saw] WITNESS: That’s the first time I it.

* * ^[*] gun MR. FRANKS: Where was the taken from? * * ^[*] gun [took] THE WITNESS: He from under the jacket it pushed man’s where was down the waist his pants. anything [sic]

MR. FRANKS: Did the officers have in put his in hands before he his hands the defendant’s waist area? Yeah, put gun away

THE he his and then he WITNESS: put patting his hands on the man and started him down. down,

MR. At the him patting FRANKS: time gun away? put the officer had right. THE WITNESS: That’s nothing MR. had that FRANKS: He his hands at time? right.”

THE WITNESS: That’s Contrary to contention, Johnson made no assertion that explicit carrying defendant was Rather, noted, testimony Johnson’s indicated gun". gun that he did not see the until one of the officers took Grady it from defendant. This is consistent with what stated, particularly Grady’s light and Kurzweil gun the officers saw in defen- car right dant’s hand was below the level of the window. Grady Kurzweil, were driv- explains why This who car, ing gun able to behind Johnson’s were see addition, not. Johnson was while Johnson stated hand, gun he first when it in the officer’s saw gun wavered from his assertion that Johnson never John- particular note in We taken from defendant. gun his own put he the officer testimony that saw son’s defendant, that the officer away searched before appears that time. This “nothing in his hands” at had placed the officer who that it was any suggestion counter in defendant’s waistband. gun to show he suffered has failed Defendant his trial deficiency part on the of any from prejudice or counsel counsel, appellate counsel post-trial circuit court had a The handling suppress. the motion cause to finding probable that there was valid basis err denying did not defendant, arrest and the court no merit There is thus suppress. defendant’s motion post-trial trial in defendant’s claim that his counsel Further, underly this counsel were ineffective. because merit, incompetence it not on the ing claim lacks raising counsel to refrain from is part appellate appraisal sue on direct The this issue appeal. “ appellate ‘patently counsel was ” wrong.’ Easley, Haynes, quoting 192 Ill. 2d 329; Richardson, Accordingly, Ill. 2d 189 Ill. 2d at 412. correctly post- this specific the trial court dismissed evidentiary hearing. claim an conviction without Capital Sentencing Hearing III. Second to his remainder of defendant’s claims refer The conducted hearing, which was capital sentencing second Harris each of these on remand from I. We consider in turn. claims Testimony

A. Ham Garth Phyllis ineffective for argues that his counsel was Ham Chicago police Phyllis call former officer failing to of his during eligibility phase a witness Garth as hearing. Defendant contends capital second sentencing impeached have the cred- would Garth’s witness, Woods, the State’s chief ibility of Theresa regarding possessed whether defendant the mental state required to render him eligible. death Section 1(b)(6)(b) of the Criminal Code provides 9 — a defendant may be sentenced to death if he “killed intentionally knowledge murdered individual or with the that the acts strong which caused the death created a probability bodily of death or great harm.” (Emphases added.) 1(b)(6)(b). Ill. Rev. ch. par. Stat. 9 — begin

We a portions with review of of the given at trial and at the sentencing hearing, along second with argument relevant of counsel and the findings of trial sentencing trial, court in the hearing. At Woods 10,1983, testified that on she February and her employer, James, Sr., Jesse closed his and tavern about a.m. left premises together the 3:30 between and o’clock morning. they cars, they that As walked to their ap- were proached by defendant, grabbed pointed who Woods and gun instructions, her Following head. got car, James into the seat of his and sat driver’s Woods in the Defendant, backseat on the driver’s side. sat who seat, in passenger’s the front then ordered James to drive and park nearby they short distance Once alley. had defendant parked, demanded from James and $300 Woods, threatening they comply. to kill them if did not explained caught Defendant that if he was he going good,” back to “for it did if he killed jail so not matter them. told money

James that he had some back tavern, they at the and parked so returned to area facing in the mouth an with car alley outward go toward the street. Defendant to to the told Woods her get money, tavern and and he warned would if did return three kill James she within tavern, ran into the grabbed paper minutes. Woods then from currency register, the cash and went back outside. tavern, from she the car had Emerging noticed that alley parked pulled next to curb. and was of the out car, of the and defen- driver’s side walked Woods passenger seat next to the front dant, still in who was objected, get James James, her to into the vehicle. told get asking why Defendant car. had to back Woods running up” and “he was this.” “shut told James to pulled According James toward Woods,defendant then facing they other, and defendant shot each him so were James. attempted away run from the car. As she

Woods tripped gunshot running she heard another her left side and rolled over onto fell. She landed her standing up, she saw defendant When she looked back. gun. said, “You bitch.” her over with protect pleading herself, her hand to with Woodsraised shoot, her stomach. not to and rolled over onto him lay motionless, then another shot and Woods heard pretending A time later she heard to be dead. short up, footsteps running got the saw that from scene. Woods car had alive, still and noticed that the James was nearby She then crashed into the window of storefront. police. It was ran into the tavern and called the then that she noticed she had been The wound was shot. right her shoulder. Chicago testifying police trial detective

Also at was Perry, gave who a somewhat different account Geraldine According Perry, spoke of the incident. who Woods day Billings Hospital incident, the told the Woods emerged Perry she from the tavern with the that when money, moving the down the street and saw she saw car front As in the seat the car.” Woods “some movement the watched, saw the car crash into storefront. Woods she Perry approached driver’s side of did not tell that she the any spoken by or James the car that she heard words or defendant. sentencing hearing,

At second Woods gave essentially testimony gave the same that she at trial. emerged stated She that when she from the with tavern money, the the car James, Sr., in which Jesse and already defendant were seated had moved the out of al- ley parked and was next to the Woods not curb. did see moving, persons car the nor did she see the two in the struggling. go seat front not Woods also did see the car up over the curb and crash into the storefront window.It not was until after she had been shot that she noticed up building.” the car “had moved into the impeach testimony by In order to Woods, Perry, gave essentially defense called Detective who also gave According the same Perry, that she trial. emerged said Woods that when she from the moving slowly along tavern, she observed the car persons street, and she saw movement of the two in the Perry go front seat. also Woods told that she car saw the up over the into curb crash the storefront window.

During argument phase sentencing in the first hearing, testimony by defense counsel referred to this Perry and stated: suggests struggle

“[It] was a on in going there certainly car and that is corroborated fact rolled car forward and crashed into a window. It contradicts any suggestion by the in any State’s witness this was way, shape, killing.” or form a cold-blooded explanation. rebuttal, the State offered a different According State, to the was it reasonable to infer that gear “[t]he the car was in when James was shot and that simply [an] car moved cars will move when automatic gear[,] up [it] transmission is the curb and went *** bumped in the window and cracked the It window. somebody driving wildly does mean that that car after the shot fired.” phase sentencing

At the conclusion of this hearing, judge eligible the found defendant death for the finding penalty. eligibility He stated: “The Court’s will stand.” argues his counsel court, defendant

Before police call former officer failing for was ineffective sentencing hearing. at the second as a witness Garth “would not testimony contends that Garth’s Defendant credibility the Woods’ only impeached have evidence have provided it could substantive but also (under utterance-spontaneous excited declaration shooting hearsay) that against the rule exception to an inten- or act rather than accidental negligent was amended knowing or one.” Attached defendant’s tional police petition February are post-conviction (now Garth) Ham by Phyllis Officer report prepared Defender’s office Appellate a “second affidavit” State to these attach- investigator Lyon. According Jonathan ments, her the first officers on partner Garth and were 10, 1983, incident. February the scene of Garth Woods, “upset,” said interviewed who Garth was came out of the by Garth told Woods that “when she after struggle bar she inside car which observed argues if building.” car crashed into a testimony had it is presented, reasonably Garth’s been probable judge sentencing hearing that the at the “would prove had failed to have found State requisite beyond mental state a reasonable doubt.” initially The contends that defendant made State “ in Harris II [virtually” appeal the same claim on direct claim res and that this court’s decision as to this is II, argued to this issue. In Harris judicata as failing present that his counsel ineffective Perry’s testimony Detective “as substantive evidence exception hearsay to the under the excited utterance (Harris 348), II, merely than rule” Ill. 2d rather testimony. rejected This court impeachment Woods’ concluding argument, ineffective assistance prejudiced that defendant had failed to show that he was testimony as Perry’s his counsel’s failure to offer sentencing hearing. at substantive evidence Harris II, 164 Ill. 2d at 349. purpose post-conviction proceeding

The aof is to al inquiry been, low into constitutional not issues have adjudicated previously been, and could not have on direct appeal. Accordingly, reviewing determinations of a court prior appeal judicata on the direct are res as to issues actually Towns, decided. 2d 502; Whitehead, Ill. at argument 169 Ill. 2d at While 371. in the argument bar case at is similar to the he raised about Perry testimony II, Harris the two contentions are argued II, not the same. In Harris ry’s testimony, defendant that Per already presented had which been as impeachment, should have offered been as substantive Perry’s testimony words, evidence as well. In other would weight have carried more had it been introduced as bar, substantive evidence. the case at defendant argues, similarly previous Perry’s to his contention, that testimony weight, should have carried more but here the weight device which be is to added is different. In complains instance, II, Harris unlike defendant testimony presented been, not at all. If had Garth’s was it Perry’s contends, it would have corroborated testimony thereby greater given and would it have weight. Because of this distinction conten between these argument tions, we conclude that defendant’s in the case “actually II, at bar decided” Harris and res judicata apply. does not We therefore consider merits of defendant’s claim. standard,

Under Strickland a defendant must only performance establish not that his counsel’s prejudice deficient, but also that the defendant suffered Prejudice Morgan, a 187 Ill. result. 2d 529-30. is if the defendant establishes “that there is a shown probability unprofes that, reasonable but counsel’s proceeding errors, the result of sional would have probability probability is a different. A reasonable been in the confidence outcome.” to undermine sufficient 2d at 104 S. Strickland, 80 L. Ed. 466 U.S. 2068. Ct. at agree been defendant that would have with Garth

We Perry, testimony separate from and that Garth’s witness interview with Woods. have recounted different would gist However,the would have been Garth’s Perry’s: upon emerging exactly Woods, the same as struggle inside the car and tavern, from observed Even if the car into the storefront. Garth’s saw crash reasonably likely testimony presented, had it been is sentencing judge hearing would that the at the second theory shooting accepted the was defendant’s that have accidental. considering II,

In claim in Harris similar sentencing prosecutor explained at the stated: “the we hearing [that] more from the the reasonable inference by description provided police of the offenses Woods to gear, was and that James shot while the car was was the lost that the vehicle rolled forward when driver II, addition, Ill. In we control.” Harris 2d at 349. stated: shooting ac

“Other evidence established that the was not kill James initially cidental. The defendant threatened to because, said, ‘nothing he to lose.’ When and Woods he had money, tavern the defendant Woods reentered the to obtain shortly. that he kill if did not return said would James she car, rejected back to the defendant When Woods came the plea go, saying be to that he James’ that Woods allowed shot, ‘running After was the defendant was this.’ James bitch,’ Woods, her at her, to ‘You and straddled said shot II, range.” 349. close Harris Ill. 2d at hearing, sentencing the At the conclusion of second judge stated the murder of James the circuit court that “ ” ‘totally unnecessary,’ suggesting did not that he theory. accept II, Harris 164 Ill. 2d defendant’s accident hearing judge made comment after at 347-48. The this Perry’s testimony theory of support during the phase first if hearing. testimony, presented, Garth’s would been to Perry’s. have the same effect as Given the “other establishing shooting evidence” was not accidental, it is not reasonably probable that Garth’s would have altered the result the proceed- ing.

Notwithstanding foregoing, points defendant to Pugh, (1993). People Pugh, as in the 157 Ill. 2d 1 bar, the case at defendant contended that his shooting of the victim was accidental that his was inef counsel failing fective for to he present evidence that lacked the (intentional culpable knowing) or mental required state him eligible to render the death penalty. for We held in Pugh prejudiced his by defendant was counsel’s errors, and we vacated death his sentence.

Pugh Pugh, is distinguishable from the bar. In case at blind plea guilty felony entered a murder, stipulated for the death eligibility penalty. stipulation This was entered based defense counsel’s incorrect a finding felony belief that murder eligible itself rendered the defendant the death Defense penalty. counsel was unaware that State also prove possessed the defendant required culpable knowledge. mental state of intent or Accord “[njone ingly, presented of defendant’s evidence by was phase sentencing defense counsel at the of first because felony counsel believed such evidence was irrelevant once Pugh, murder at 20. was established.” 157 Ill. 2d Here, by contrast, there was no misapprehension part counsel, any the law on the of defense nor was there that was the stipulation eligible defendant death penalty. allege Defendant in the instant case does not no evidence the presented during eligibility that counsel hearing. Rather, the he phase sentencing complains that was testimony that did not the augment counsel

45 would witness who an additional by calling presented Perry. did the same effect as to precisely have testified the shoot- establishing the “other evidence” Given that defendant accidental, do not believe ing was not we failure to by counsel’s prejudiced that he was has shown Therefore, with Garth’s. Perry’s testimony augment claim correctly post-conviction dismissed this trial court evidentiary hearing. an without Brady

B. Claim testimony of the portions argues false aggravation witnesses in were one of the State’s testimony perjurious. knew this was and that the State that the State failed to disclose Defendant also contends testimony was false showing medical records Supreme violated the United States Court’s thus U.S. 10 L. Ed. 2d Brady Maryland, decision in (1963). on Ct. 1194 Defendant’s claim focuses 83 S. Szumigala, of John the victim of eight- received a four- to robbery for which testified at the sentenc- year prison Szumigala sentence. him severely during that defendant beat ing hearing Szumigala and that a result sustained robbery, Ac- injuries, long-term. both immediate and numerous defendant, records, cording Szumigala’s hospital which State, by demonstrate that Szumi- were disclosed injuries in his testi- gala exaggerated extent of mony. Szumigala’s testimony with a begin

We review hearing, along with other relevant sentencing the 1992 sentencing At the judge’s and the conclusions. evidence he was February stated that hearing, Szumigala the Goodman Theater 17-year-old student 19, 1971, he p.m. February At about 7:45 Chicago. bridge en route to crossing the Jackson Street men, one young six approached theater when Szumigala, defen- According defendant. of whom was dant up walked and punched Szumigala stomach, in the and grabbed two others him dragged and him under the bridge. The group $40, watch, robbed him of rings, two and a coat. Defendant then punched in the Szumigala stomach several more times. At time, about this one of the other young men in the group told defendant they had what they wanted and According should leave. Szumigala, replied: I’m going “No. to kill guy.” then slammed Szumigala’s head wall, into a brick kicked him in the right eye, and kicked him again nose forehead. Another member of rolled group Szumigala said, over and “He’s dead.” Szumigala then “played dead” until he was sure the group gone. He was taken subsequently to the hospital.

Szumigala said his “very badly hands were up,” cut his “pretty shoulders were well scraped,” and he had “absolutely blurred right eye. vision” his According to Szumigala, his right eye had been forced up into its socket, pieces with of stone and gravel lodged in the eye and the canal. A eye surgical procedure performed remove “the rocks and rubble out of eye and out of eye addition, canal.” In Szumigala’s right shoulder was dislocated and put “was back into at the [its] socket hospital night.” Szumigala fingers, added that his right knee, his and his right ankle were dislocated.

Testifying sentencing further at the hearing, Szumi- gala described the long-term effects of the 1971 incident. He colors, said he had difficulty distinguishing certain prevented this had him from pursuing his chosen career as a costume and set designer. Szumigala added that, incident, since the he recurring, has suffered headaches, “almost violent” as well as chronic disloca- tion of right addition, shoulder. “a great lost deal of dental work on the Ac- right [his] side face.” cording Szumigala, his teeth had to wired following be reading difficulty that he has beating. He also stated of pressure an hour at a time because for more than half eyes. on his Szumigala attempted impeach counsel

Defense robbery in case. Szu- testimony at trial the with his 1971 whether, testimony, he had migala during was asked that men attacked him had young stated that one of the who Szumigala he to kill him. answered that going said However, that such stipulated he had said that. the State appear transcript a statement did not in the of the 1971 testimony. introduced into a certified state-

The State evidence robbery, of defendant’s conviction in the Szumigala ment a certified for a well as statement his conviction burglary years’ for which he was sentenced to five probation. Also introduced were certified statements of defendant’s in armed convictions two robberies.

Defendant himself made a statement on his own during sentencing hearing. essentially behalf He having offenses, denied committed the present assuring repeatedly the court that he was not a On person. violent cross-examination, questioned defendant was about the robbery of John Szumigala. Defendant acknowl- edged present that he was at the on the night scene the robbery. According to defendant’s version of the incident, February 19, 1971, defendant was alone on Szumigala approached something when him and said provoked fight. In the of the defendant fight, course Szumigala kicked in the face. asked how many When face, times he kicked in the Szumigala responded: “It couldn’t have been no more than once.” fight, asserted once he had won the left.

At the of the argument, conclusion evidence judge trial court sentenced defendant. The referred to presented mitigation regarding evidence in childhood and family, observing that “there are some rips and tears in the canvas of his life” such as the “violence between his mother and father” that are However, in “certainly negatives Mr. Harris’ life.” judge pointed from defendant’s sister that none of the in family other children were convicted *** The judge “[N]o felonies. stated: one else found *** that based upon family they life must out go and commit crimes and be involved in criminal activity.” to the in

Turning killing judge of James “[D]espite stated: Mr. Harris’ indication stand offense, that he did not commit based upon *** records, upon my opportunity based to observe the surviving testified, Woods, witness who Ms. there is no *** question this court’s mind that Mr. Harris did in fact kill Mr. James that he fact shot Ms. Woods.” judge The called defendant’s “totally murder of James unnecessary.” judge beating The also referred to “the Szumigala that was to” John some administered “20 years ago.” He termed defendant’s of this explanation “just incident unbelievable.” In sentencing defendant, the trial court stated: judge my

“I have searched I this record. have searched mind. [to] I have listened and looked I at Mr. Harris. have looked family, looking, at his art work. I have listened to his searching, hoping in all candor that there be would mitigating preclude imposition some circumstance to search, penalty. Despite diligent the death I have been any mitigating find unable to such circumstance.” the trial Accordingly, court sentenced defendant to death for the murder of James. court,

Before the State that defendant contends claim to file a Brady by failing post-sentencing waived his sentencing hearing. motion the second Defen following Ordinarily, dant motion filed. concedes no such Szabo, 113 Ill. 2d apply. People waiver would (1986). However, noted, as the rules of waiver are relaxed where the facts relating to the claim do not appear original the face of the appellate Mahaffey, record. Here, Ill. 2d at 171. forming the facts the core of records, defendant’s claim are in Szumigala’s medical appeared which first in the record an attachment post-conviction defendant’s amended petition. We there fore address merits of claim.

Szumigala’s medical records from Henrotin Hospital, where he was treated after the robbery, provide little or no support many injury his claims. The records show that Szumigala complained pain right shoulder in the emergency room, only but the reference to dislocation is a notation right that his shoulder had been year dislocated one earlier. There does not appear any be indication that the shoulder was dislocated when he was admitted to the or hospital, that hospital personnel put it back into its socket.

The “Physical Examination” section of the records major lists areas of the body, with notes next to each area that injured. Next to “Head-Eyes,” the records note the “presence of an abrasion at occipital region, right upper and lower eyelids with hematoma, small right lacerations upper eyelid, subconjunctival hemorrhage present, vision not impaired.” (Emphasis added.) Regarding other areas of the body, the notes indicate, alia, inter “tenderness and discoloration at the right nose,” side of the “hematoma upper lip with lacera- tion,” and “slight xiphoid, tenderness” to the or breast bone. There are no injuries notes of “Skin,” next despite Szumigala’s testimony that his hands were cut and his shoulders abraded, were or next to “Bones- Joints-Muscles,” despite Szumigala’s testimony that his right knee, shoulder and ankle were dislocated. In addi- tion, though Szumigala testified at the sentencing hear- ing that him punched defendant in the stomach numer- times, ous the notation next to “Abdomen” states: “non- remarkable.” in any to be indication appear

There also does not eye place, was out of Szumigala’s the medical records that to required repair surgical procedure or that a addition, Szumigala’s testimony In injuries. despite right eye, in his the nota- he suffered “blurred vision” impaired.” “vision not “Head-Eyes” tion next to stated: sec- “Progress in the Notes” A notation appeared similar 20, 1971, day the that, February tion, which stated as or dizzi- had “no headache robbery, Szumigala after the disturbance.” any ness or visual noted, attached to his also previously As letter from opinion an post-conviction petition amended sup- medical records did not stating the physician long-term Szumigala’s allegations regarding port Russman, M.D., letter, stated: by This Burton injuries. [Szumigala] records that “There is no evidence of the eye injury other than a laceration any specific had hemorrhage and some lid, subconjunctival as well as negative eye. X-rays completely about the were contusions that ‘He fractures, in the records any and it was stated any visual disturbance.’ headache or dizziness or has no *** hospital, discharged from When complaints, alert as follows: ‘No discharge note was fine, better, doing go home now.’ oriented, swelling much vision, there is Szumigala’s alleged loss of color As to Mr. loss, evidence to show had such a nor no evidence that he *** short, of vision loss. any field peripheral that he had allegations of the records bear out the I do not find that certainly injury, they would Szumigala’s permanent Mr. discharged time he was appeared have from added.) (Emphasis hospital.” Brady Court held Supreme The United States prosecu in a criminal duty an affirmative has State defendant, to a where favorable to disclose evidence tion punishment. guilt or is material either the evidence 87, 10 L. Coleman, Brady, 391; U.S. at 2d at 183 Ill. There are three situ at 1196-97. 2d at 83 S. Ct. Ed. Brady applies. People rule general ations to which

51 Simms, 348, (2000); Coleman, 192 Ill. 2d 388-89 first, 2d In the evidence Ill. at 391. the undisclosed prosecution’s demonstrates the case includes knew, testimony prosecution and that the or perjured situation, known, of In the perjury. should have the for materiality any test is whether there is reasonable testimony likelihood that the could have affected false Simms, the 2d at second judgment. 192 Ill. 389. The situ by request specific ation is characterized for pretrial by prosecution’s noncompliance evidence followed the situation, with the In the third request. the defense makes discovery request general either no or only request “Brady” material, and exculpatory matter is by withheld the State. “In the second third and situa tions, favorable evidence is material and constitutional error results from its the if suppression government, the evidence reasonably could be taken to the whole put case in light such different toas undermine confidence in the Simms, addition, verdict.” 192 Ill. 2d at In 389. “the cumulative effect of suppressed the evidence also informs the materiality Simms, determination.” 192 Ill. 389; Coleman, 2d at 183 Ill. at 393. 2d In such situations as the case bar that involve both the use of perjured testimony and the failure disclose Brady material, materiality test for the former is of the two tests set forth any above: whether there is reasonable likelihood that the false testimony could have affected the judgment. explained why We Coleman it this standard, is which is defendant, more lenient to the that is to be applied such situations:

“[Wjhere Brady undisclosed material undermines the cred ibility specific testimony of that the State otherwise knew false, been of materiality applicable have standard 97, the first Agurs[, [United v.] States 427 U.S. 49 L. Ed. 2d (1976),] category 96 S. Ct. 2392 applies. such circumstances, ‘part parcel failure to disclose is presentation jury false evidence to the and therefore *** truth-seeking the trial

“corrupt[s] function of process,” more act than a [citation] is a far serious material.’ United generally exculpatory failure to disclose 1997). (2d Vozzella, States v. F.3d Cir. Therefore, materiality in this case is standard any the false whether there is reasonable likelihood that judgment jury.” testimony have affected the of the could Coleman, 183 Ill. 2d 394. case, may In the we affirm circuit court’s instant Brady an claim without decision to dismiss only conclude, if can a matter evidentiary hearing we law, false does Szumigala’s allegedly Simms, materiality. not fall within this strict standard of 391; Coleman, Ill. Ill. 2d at 394. 2d at Szumigala, note considering question, In this we that in aggravation, provided witness2 prominent who was a damaging testimony. presented While the State evidence convictions, Szumi- prior that defendant had numerous only the evidence that defen- gala’s testimony provided shooting to the injured person prior dant had another testimony provided thus Szumigala’s James and Woods. chronically that was a only the defendant evidence violent offender. in testimony, ag- the

Excluding Szumigala’s evidence presented the mitigation that was gravation in hearing closely balanced. The evidence sentencing witnesses, the of seven mitigation testimony included contact correctional officers who had three whom were addition, report prepared In with defendant. evidence, into as were was admitted mitigation specialist defendant, daughter one from a support two letters correctional the from his mother-in-law. The other and “a a “model inmate” officers described very good prisoner.” the regarding decision bearing factor on our

Another Brady claim is sentencing. judge’s during the comments testimony pages. transcript some 30

2SzumigaIa’s consumed explaining impose penalty, the In his decision to death testimony. judge specifically Szumigala’s the mentioned judge The stated: on on bridge

“The conduct Jackson Street some 20 years ago, beating to that administered this individual, Szumigala Mr. had the comments that testified got people saying about other we what we want and let’s go, I to kill position going and the defendant’s that am guy, open the defendant’s indication to me in court or Attorney] Meyer [Assistant indication to State’s Mr. that, response to didn’t do that questions that he this was just encounter[,] fight an was a fair and that it win[,] happened just is unbelievable.” Having transcript, say reviewed entire we cannot alleg that “there no exists reasonable likelihood that edly testimony [c]ould [judge’s false not have affected impose penalty.” decision] Simms, the death 192 Ill. 2d at 392.

Notwithstanding argues foregoing, the State testimony did it false allow stand uncorrected. The Szumigala’s State contends medical records do not addition, establish that his was false. In challenges asserting State affidavit, that it Russman’s probative only “would be that, if Russman could state Szumigala based own examination and his own knowledge, Szumigala possibly medical could not have injuries suffered the that he claimed.” making arguments, contesting these the State is allegations Szumigala gave the truth of defendant’s testimony Szumigala’s false and that medical records difficulty demonstrate that this The false. ignore they with the State’s contentions is that the procedural posture appeal of this As noted, case. is judge’s before us as result of the court circuit dismissal post-conviction petition of defendant’s amended without evidentiary hearing. judge an This action the came in response petition. By to the State’s to motion dismiss the seeking petition, opposed answering to the dismiss as to

54 it, factually the of supported assumed the truth the State in the at least for allegations petition, purposes contained 390; Towns, Coleman, Ill. 2d at of motion. 503; Brisbon, State, Ill. 2d 164 Ill. at 244-45. The at 2d movant, thus eliminated all from the as factual issues remaining is inquiry, question sole whether sufficient, a matter of law. petition’s allegations are Coleman, Ill. 2d It is for State premature at 390. to factual matters at this Such determi juncture. contest evidentiary to at the of the stage nations are be made Coleman, Ill. at proceeding. 2d 390- post-conviction 91. allega-

In determining sufficiency of defendant’s tions, for In this support provided look to the them. we instance, Szumigala’s of provided copy defendant has records, as as a of Russman’s copy opinion medical well Brady allega- letter. defendant’s support These materials tions, may of determined at this the truth which not be stage proceedings. Brady allegations that defendant’s are suf

We hold of a showing ficient to make substantial constitutional evidentiary to hearing an require violation if the did in fact occur. The circuit determine violation an particular claims without dismissal these court’s no evidentiary hearing improper. express opinion We Rather, reverse as to the actual merits of these claims. we the circuit court and remand with instructions Brady stage evidentiary to the proceed Simms, note in passing 192 Ill. 2d We claims. See 392. as to to be some whether appears dispute there medical records Szumigala’s possession State was as to discovery requested the time when defense counsel course, This will be determined question, such records. evidentiary hearing. in the Investigate Alleged Counsel’s Failure

C. Defense that his argument, defendant contends a related

55 defense counsel was failing ineffective for to use Szumi- gala’s medical records to challenge Szumigala’s testimony at the second sentencing hearing. Defendant asserts that these readily records were by subpoena, available and he if argues that had properly investigated, counsel he would have obtained them and could have used them to attack Szumigala’s testimony. According defendant, “failure to investigate and a present readily available defense” professionally unreasonable. He argues addition that if this presented, defense had been there is a probability reasonable that he would not have been sentenced to death. noted,

As a claim of ineffective assistance of counsel is evaluated according to the two-prong test set forth in Strickland, which requires a showing that counsel’s performance was deficient and that defendant suffered prejudice as a result. “Both prongs of the Strickland test must be satisfied before a defendant can prevail on a claim of ineffective assistance of Coleman, counsel.” Ill. 2d at 397.

In order to satisfy the first test, element of this defendant must demonstrate that his perfor- counsel’s mance fell an objective below standard of reasonableness. Strickland, 466 688, U.S. at L. Ed. 2d at 104 S. Ct. at 2064. Regarding the application of this standard to an alleged failure to investigate, the Court in Strickland stated:

“These [for standards determining whether counsel’s performance was require special deficient] no amplification *** in order to define duty counsel’s investigate ***. [Strategic choices thorough made after investigation of law and facts plausible relevant options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that professional reasonable judgments support the limitations on investigation. words, In other counsel has a duty to make investigations reasonable or to make a reasonable particular decision that investigations makes case,

unnecessary. any particular deci ineffectiveness investigate directly sion not to be assessed for must circumstances, heavy in all the applying reasonableness Strickland, judgments.” measure of deference to counsel’s 690-91, 80 L. Ed. 2d at 104 Ct. at 2066. U.S. S. Thus, any by decision counsel to conduct a less-than- complete investigation range would fall within the wide assistance, as the professionally competent long of so supported decision were a reasonable by professional judgment.

At took sentencing hearing, defendant’s first which 1984, Szumigala testify. The evidence place did a Szumigala reference to consisted of presented with for the 1971 rob- copy certified of defendant’s conviction of of detec- bery Szumigala; testimony Chicago police Stahl, investigated robbery who and tive Bernard comprised transcript pages; six testimony whose about to the of the who stipulation physician and in the on the of the rob- Szumigala hospital night treated stipulation, The in this which bery. injuries described prosecutor, correspond read into the record injuries Szumigala’s mentioned in fairly closely to testimony, According stipulated medical records. to nose, up- Szumigala right eye, contusions of the suffered chest, right up- well a laceration to the lip as per addition, he had a cerebral concus- per eyelid. possible Szumigala’s chest, jaw, shoulder, X skull rays sion. of Ac- negative respect to fractures. other areas were with injuries “the were confined cording stipulation, no men- makes stipulation the tissues themselves.” The any or any Szumigala’s shoulder tion dislocation eye place. joint being other or of his out first “[a]t Mr. Harris’ acknowledges relatively ac- sentencing hearing, presented State injuries.” rather minor Szumigala’s curate account of Mr. the State However, argues that because hearing, sentencing evidence at the introduced such first Mr. anticipated defense counsel “should have Szu- or that the State migala would be witness at least would attempt injuries” to introduce evidence of his at the sentencing hearing. According defendant, second counsel’s failure to up Szumigala’s follow and obtain challenge medical records so that he could use them to Szumigala’s testimony performance constituted deficient part. on counsel’s instructs,

As Strickland we evaluate the reasonable- ness of challenged counsel’s conduct “from counsel’s time,” perspective at the all taking of the circumstances Strickland, 689, 690, into consideration. 466 U.S. at 80 L. 694, 695, Ed. 2d at 104 S. Ct. at 2066. Prior to the sentencing second hearing, defense counsel filed two mo- discovery tions for pertaining to this matter. As defendant asserts his amended post-conviction petition, one of “specifically these motions requested discovery regarding the testimony aggravation witnesses,” and the other included a request any reports of made in experts case, connection with the including the of physi- results cal examinations. In response to counsel’s discovery requests, the State turned copy over a of Szumigala’s testimony 1971 in trial, the robbery and defense counsel used testimony this to cross-examine in Szumigala second sentencing However, hearing. as indicated previ- ously, the did State not Szumigala’s disclose medical records. Given that these records disclosed, were not given the “rather minor” nature injuries of the described in the stipulation in the sentencing first it hearing, would be professionally for reasonable counsel to conclude that further investigation regarding Szumigala’s injuries was unnecessary and that counsel’s investigative energies would be more profitably noted, directed elsewhere. As presented counsel mitigation extensive evidence at the second sentencing hearing, including the seven In addition, witnesses. a report by a prepared mitigation specialist was admitted into evidence.

58 to heavy “a measure of deference counsel’s

Applying (Strickland, 691, L. Ed. 2d at judgments” 466 U.S. at 695, 2066), taking all of the circum 104 S. Ct. at (Strickland, 690, at consideration U.S. stances into 695, 2066), conclude that 80 L. Ed. 2d at 104 S. Ct. we that his counsel’s has failed to establish an of reason objective fell below standard performance Szumigala’s medical ableness. The failure to obtain that counsel was records not an error “so serious was guaranteed the ‘counsel’ the defendant functioning as (Strickland, 466 U.S. at by the Sixth Amendment” 2064). Because L. Ed. 2d at 104 S. Ct. performance defendant has not shown that his counsel’s deficient, prong satisfy he has failed to first Therefore, claim ineffective as Strickland test. his Morgan, fail. 187 Ill. 2d at 530. of counsel must sistance correctly post-conviction dismissed this The trial court evidentiary hearing. an claim without Evidence Impact Victim D. that his counsel

Finally, appellate defendant contends direct failing challenge appeal on was ineffective from an impact of victim evidence the State’s use Szumigala’s in question The evidence is unrelated crime. a result of the injuries to the he suffered as testimony as defendant, his 1993 when robbery. According in Harris II filed, strong possibil- there was appeal inadmissible, as it particularly that such evidence was ity Szumigala’s alleged long-term effects such related view, counsel appellate blindness. color and included this possibility recognized have should appeal. issue his brief appellate assistance of noted, a claim of ineffective

As standard two-prong the same evaluated under counsel is ineffective in Strickland claims of assessing set forth 476; Ri Ill. 2d at Haynes, 192 of trial counsel. assistance chardson, a defendant contends Ill. 2d at 412. Where 189

59 failing counsel ineffective for to raise appellate was issue, failure an the defendant must show that this objectively unreasonable and that the defendant suffered prongs as a result. Both of this test must be prejudice in on an prevail satisfied order ineffective assistance satisfy 187 Ill. 2d at 530. In order to Morgan, claim. deficient, i.e., that prong, performance first counsel’s the defendant repre must demonstrate that “counsel’s objective sentation fell an below standard reasonable Strickland, 688, 693, ness.” 466 L. Ed. 2d at U.S. 104 S. Ct. at 2064. Determinations to whether standard has been met are based on “the facts of the case, particular viewed as of the time of counsel’s Strickland, 690, conduct.” 466 U.S. at 80 L. Ed. 2d at 695, addition, 104 S. Ct. at In judicial 2066. scrutiny counsel’s performance “highly is Strick deferential.” land, 689, 694, 466 U.S. at 80 L. Ed. 2d at 104 Ct. at S. 2065. There a strong is presumption counsel’s as sistance was adequate that counsel “made all significant in decisions profes exercise reasonable judgment.” Strickland, sional 690, U.S. 80 L. Ed. 695, 2d at 104 S. Ct. at 2066.

In bar, the case at the determination of ap whether pellate performance counsel’s was deficient turns to a large extent on the state of the in relevant law 1993 when appeal Harris II Tennessee, was filed. v. Payne 808, 720, (1991), U.S. 115 L. Ed. 2d 111 S. Ct. 2597 the United States held Supreme Court that evidence about victim of a murder and the impact about of the murder the victim’s family during is admissible penalty of a phase capital 827, trial. Payne, U.S. at 115 L. Ed. 2d at 111 S. Ct. at 2609. The Court did Payne not address the question whether victim impact evidence from unrelated crimes was admissible. (1998) People Hope, (Miller, J., 184 Ill. 2d 56-57 60

concurring dissenting part).3 in and in The decision part v. Payne Maryland, overruled Booth 496, in 96 482 U.S. and South Carolina 440, (1987), L. Ed. 2d 107 S. Ct. 2527 Gathers, v. 805, 876, 490 U.S. 104 L. Ed. 2d 109 S. Ct. (1989), had held that impact 2207 which victim evidence capital sentencing proceeding. in a was inadmissible A after Court’s decision in Supreme few months Howard, v. Payne, People 147 Ill. 2d this court decided Payne. (1991), in adopted holding 103 which Howard, bar, to the at the defendant similarly case impact about the State’s use of victim complained sentencing hearing. evidence at his This evidence capital of other consisted of from the victims offenses Howard in the defendant. the court committed While admissibility question “left unanswered” of the (Hope, Ill. evidence from other crimes 184 impact victim 49), “no error” in the 2d at it nevertheless found in it of this evidence the case before presentation (Howard, 158). in Howard af Ill. The court 147 2d defendant’s death sentence. firmed the Howard, Payne in and a reason- the decisions Given very in well have attorney might ably competent of whether appeal decided not to raise on direct issue on Payne evidence was admissible. Based other-crimes Howard, appear strong possibil- there did not to be “ ‘Ap- that such evidence would be held inadmissible. ity obligated every to brief conceivable counsel is not pellate of counsel incompetence and it is not appeal, issue on (1998), explicitly this court People Hope, 3In v. 184 Ill. 2d 39 prior upon of a defendant’s crimes held that the unforeseen effects attenuated to be relevant to the of those crimes are too the victims Hope, in 184 Ill. sentencing question. for the murder victim-impact Accordingly, other-crimes evidence at 52-53. such 2d sentencing. that this decision was filed We note is inadmissible II, in filing appeal Harris years after the of the five perfor of counsel’s to an assessment therefore has no relevance in 1993. mance judgment, her which, in his or raising issues from

refrain appraisal merit, counsel’s unless are without ” 2d at 192 Ill. wrong.’ Haynes, patently merits is Ill. 2d at 329. Easley, quoting points foregoing, Notwithstanding which, according court by this 1992 decisions two impact that victim indications defendant, “gave we well be might offense unrelated prior from evidence v. John People disagree. Neither We [sic].” inadmissable Mitchell, Ill. (1992), People nor 2d 118 son, 149 Ill. admissibility of victim (1992), considered 2d 274 In Mitchell from other crimes. evidence impact of during sentencing admission challenged the defendant in The court murder victims. of the two life photographs waived had been that this issue Mitchell found was not photographs that admission concluded decision, the court noted explaining In this error. plain that recently held Payne in “the Court Supreme that sentencing during is admissible impact evidence victim 2d at 338. Mitchell, 152 Ill. cases.” capital in proceedings dealt evidence Mitchell, challenged in Payne, In as victims question, the crime in with victims of with in The court by the defendant. crimes committed other Mitchell also stated: give the caution, however, Payne does not that

“We anything it argue to introduce and free rein prosecution ‘In the event Payne court warned: As the wants. it unduly prejudicial that so is introduced that is evidence unfair, Due Process fundamentally trial renders the provides a mecha Amendment of the Fourteenth Clause ” 338, Payne, Mitchell, quoting 2d at 152 Ill. for relief.’ nism 735, at 2608. 825, 111 S. Ct. 115 L. Ed. 2d 501 U.S. at in the court which upon evidence specific Given the victims i.e., photographs life ruling, Mitchell language do not believe in we question, of the crime contends, “that indicate, could be taken offense unrelated prior from a evidence impact victim might well be inadmissable The key [sic]”. to the import of this language is the sentence that quoted is from Payne. In Payne, the purpose of this sentence was to help explain that not all victim impact evidence from the crime in question is per se admissible. The Court’s precise holding as to this issue was that Eighth “the Amendment erects no per se bar” to such evidence. Payne, 501 827, U.S. at 115 L. Ed. 736, 2d at 111 S. Ct. at 2609. The Court explained:

“We think the wrong Booth Court stating that this kind of evidence leads to arbitrary imposition of the death penalty. cases, In the majority of case, and in this impact victim evidence entirely legitimate serves purposes. In the event that evidence is introduced that is unduly so prejudicial that it renders the trial fundamentally unfair, the Due Process Clause the Fourteenth Amendment provides added.) a mechanism (Emphasis Payne, for relief.” 501 U.S. at L. Ed. 2d at 111 S. Ct. at 2608. The quoting of this italicized sentence in the passage from Mitchell indicates the court in Mitchell was simply stating what the Court had Payne stated: not all victim impact evidence from the crime in question is automatically during admissible sentencing. There is nothing in the passage quoted from Mitchell to indicate the court was referring to victim impact evidence from other crimes. Johnson, the defendant challenged the State’s use sentencing his hearing of testimony from the father of

the murder victim. In this testimony, the father “ex plained the effect of the victim’s death upon him and other family Johnson, members.” 149 Ill. 2d at 152. The in court Johnson rejected the argument, defendant’s not ing that the Supreme Court in Payne had held that such evidence was admissible. The court also cited this court’s decision in Howard and concluded that the “[t]o extent Payne and permit Howard the introduction of victim impact evidence, Johnson, we concur.” 149 Ill. 2d at 153. again, Mitchell,

Here as in the challenged evidence the in not question, of the crime the concerns victims by the defendant. of other crimes committed victims be Mitchell, the in Johnson cannot Similarly decision evidence from impact “that victim taken to indicate [sic].” inadmissable might unrelated offense well be prior in Howard, the Indeed, it mentions decision because admissibility the of as might supporting be seen Johnson evidence. such per- in or Mitchell that nothing

There is Johnson of on the state the law us to alter our view to suades ap- defendant’s at the time when other-crimes evidence legal landscape the Harris filed. on in II was Based peal issue, at- reasonably this regarding competent in 1993 ques- to raise might very well have declined this torney on direct appeal. tion of Hoff-

Defendant to an affidavit Charles points also in II. In man, appellate appeal counsel his Harris affidavit, amended which was attached defendant’s that his failure petition, Hoffman states post-conviction admissibility Szumigala’s of appeal to raise on direct impact testimony “strategic was not a decision.” victim Rather, failed to Hoffman indicates that he read carefully to realize that the is- enough Howard decision of admissibility sue of such other-crimes evidence left Accordingly, had been unanswered Howard. prepared appeal time he in Harris brief II, Szumigala’s testimony Hoffman “assumed Mr. upon him was impact about crime committed and Howard.” reasoning Payne admissible under argue this affidavit appears appellate performance demonstrates counsel’s Sanchez, However, People deficient. as we held in (1996), own “[Counsel’s 2d admission Ill. binding on us or determinative ineffectiveness is instructs, counsel’s the issues raised here.” As Strickland against “objective an standard is assessed performance Strickland, reasonableness.” 688, 466 U.S. at 80 L. Ed. 693, 2d at 2064, S. Ct. at cited in Sanchez, 169 Ill. 2d evaluating at 490. In defendant’s claim of ineffective as appeHate appropriate question sistance of counsel, the is not whether defendant’s counsel himself viewed his performance deficient, but rather whether a reason ably competent attorney, in the same circumstances, admissibility would have decidednot to raise the of other- appeal. crimes evidence on direct As we have indicated, reasonably competent attorney we believe that a in 1993 might Viewing appellate well have made such a decision. performance counsel’s “as of the time of counsel’s (Strickland, conduct” 690, 466 U.S. at 80 L. Ed. 2d at 2066), taking 695, 104 S. Ct. at into consideration all of the relevant circumstances, we conclude that counsel’s performance range professionally fell within the “wide competent (Strickland, assistance” 466 U.S. at 80 L. 2066) Ed. 2d at 104 S. Ct. at and therefore was not satisfy deficient. Because defendant has failed to performance prong of the test, Strickland his claim of appellate ineffective assistance of counsel is without Morgan, merit. 187 Ill. 2d Therefore, at 530. the trial correctly post-conviction court dismissed this claim evidentiary hearing. without an

CONCLUSION foregoing judgment For reasons, of the circuit County dismissing court of Cook defendant’s amended post-conviction petition evidentiary hearing without an part part. is affirmed in and reversed in The circuit court evidentiary hearing respect is instructed to hold an with Brady to claims. As to the dismissal of the remaining claims, the circuit court’s order is affirmed. judgment part

Circuit court affirmed part-, and reversed in cause remanded'. in the consideration part no RARICK took JUSTICE or of this case. decision and dis- KILBRIDE, concurring in part

JUSTICE in senting part: judgment in part reverses majority correctly

The for an cause court and remands of the circuit Never hearing Brady on defendant’s claims. evidentiary my People in in theless, for the set forth dissents reasons (2001) (Kilbride, J., 585, 2d dis v. 204 Ill. 636-40 Hickey, 536, People v. Ill. 2d 581-85 senting), Simpson, (2001) major (Kilbride, J., I that the dissenting), believe constitutionally required ity grant fails to with the new trial accordance relief of a conducted court cases. The governing capital new rules supreme adoption procedures capital prior cases this court’s and did not inherently of the new rules were unreliable rights. protect defendant’s constitutional adequately promulgated since the new rules were Consequently, dimension that the deficiencies of constitutional address system, the old the rules must regularly occurred under capital People all See applied retroactively be cases. (1997). 2d Caballero, 179 Ill. 220-21 (No. 88784. ILLINOIS, OF Appel PEOPLE OF THE STATE

THE CABALLERO, lee, Appellant. v. JUAN Opinion October 2002. filed notes no that State regard jurors. issue concern about this with these consistently prosecu This has held that where a court minority venireperson tor excludes a based on certain reject venireperson characteristic, does not white but characteristic, “it does not follow who shared same explana prosecutor’s this in itself shows that Young, pretextual.” People 1, 23 tions were 128 Ill. 2d (1989); Wiley, 179; Ill. 2d I, Harris 2d at see 165 Ill. Wiley, explained: In at 282. this court “The purposeful State’s discrimination is not automati cally by the mere coincidence that an excluded established juror juror not chal shared a characteristic with who was trait lenged. juror may possess an additional The excluded unacceptable, the State find him while caused may juror challenged possess an additional who was accept to find him prompted characteristic that the State [498,] juror. Ramey, 2d ([People v.] able to as a 151 Ill. serve [(1972)].) challenge on a peremptory ‘[A] is based traits, possessing unfavor juror and a an combination accepted may juror possessing able be while another trait trait, nega negative possessing that same but also other Mitchell, traits, [People v.] 152 Ill. may challenged.’ tive be [(1992)].” [274,] 165 Ill. 282-83. Wiley, 2d at 295 2d at Shealy bar, white In the while three case at they jurors all had close shared the characteristic Shealy attorneys, family or members who were friends possessed the State “an additional trait that caused Wiley, unacceptable.” Ill. 2d find him at 283.

Case Details

Case Name: People v. Harris

Court Name: Illinois Supreme Court

Date Published: Dec 19, 2002

Citation: 794 N.E.2d 314

Docket Number: 88468

Court Abbreviation: Ill.