*1 history in mitigation established a mental health outweighed There- aggravating would have factors. fore, dismissing I affirm the order would trial court’s an eviden- post-conviction petition without tiary hearing. joins
JUSTICE dissent. McMORROW (No. 88474.
THE ILLINOIS, PEOPLE OF THE STATE OF Appel-
lee, JACKSON, v. LAWRENCE Appellant.
Opinion Rehearing December denied filed 2001 . April 2002. *6 HARRISON, C.J., KILBRIDE, J., dissenting.
Stephen Eberhardt, E. Crestwood, and Eric Bell, J. of Chicago, for appellant. Ryan,
James E. Attorney General, of Springfield, and (William Devine, Richard A. State’s Attorney, of Chicago Browers, L. Assistant General, Attorney of Chicago, and Woloshin, Linda State’s Renee Goldfarb and Assistant Attorneys, counsel), People. for the of the opinion
JUSTICE McMORROW delivered the court:
Defendant, Jackson, from an Lawrence order appeals dismissing circuit of Cook his County of the court relief petition post-conviction amended without an evidentiary sentenced to hearing. Because defendant was convictions, appeal for his his lies underlying death 651(a). Ill. For directly with this court. 134 2d R. follow, affirm the dismissal of defendant’s reasons we post-conviction petition.
BACKGROUND jury County, At a trial in the circuit of Cook court Urica testified that defendant and eight-year-old Winder family’s apart- came her codefendant Bobbie Driskel evening Washington at 1850 West late in the ment men death 1986. The two stabbed to her September sister, Dana, mother, Winder, four-year-old her Vernita Brown, Mark and her mother’s boyfriend, her mother’s friend, Martin, and then a television set and Shirley stole too, Urica, brutally stabbed, but survived the VCR. to be dead.1 pretending attack evidence, testimony on Urica’s and other Based inculpatory defendant’s own statements including *7 23, 1988, on police, defendant convicted June was murder, one count at- degree counts of first four murder, aggravated battery of a one count tempted invasion, counts armed child, five counts of home five burglary. Following one of residential robbery, and count hearing convictions, penalty death in the can be found 1A detailed account of murders appeals. direct See court opinions issued Jackson, Jackson, (1991); Ill. 2d 43 People v. 145 Ill. (1998). 2d 30 held. jury eligible The found defendant for the death and, after penalty hearing evidence in and aggravation mitigation, found that the mitigation evidence did not preclude imposition of the death penalty. September On 7, 1988, the death, circuit court sentenced defendant imposed imprisonment terms of for the nonmurder convictions. This court affirmed the convictions sentences on direct appeal. Jackson, 2d 145 Ill. (1991).
After our decision issued, defendant petitioned for a
writ of certiorari with the United States Supreme Court.
In response, the Supreme Court remanded the matter to
this court for further consideration in light of
Morgan
Illinois, 504
719,
492,
U.S.
119 L. Ed. 2d
A new sentencing hearing was held and defendant again was eligible found for the death penalty based on three aggravating (Ill. factors: multiple murder Rev. Stat. 1987, 38, (Ill. ch. par. 1(b)(3)); felony murder Rev. 9— 1987, Stat. 38, ch. par. 1(b)(6)), and murder of a child 9— under the age of 12 when “the death resulted from exceptionally brutal or heinous behavior indicative of (Ill. wanton cruelty” 1987, Rev. Stat. 38, ch. par. 1(b)(7)). The resentencing jury also determined that 9— the mitigating evidence was insufficient preclude imposition of the death penalty. 1987, Ill. Rev. Stat. ch. 38, par. 1(g). Therefore, 24, 1995, on April defendant 9— was resentenced to death. May On filed a notice of appeal directly to this court. August 29,
On
1996, while the direct appeal was still
*8
se
petition,
pro
post-conviction
filed a
pending,
appellate
of his trial and
effectiveness
challenging the
sentencing
penalty
of his death
and the fairness
counsel
court
the circuit
petition,
of the
hearing. Upon receipt
Defender
to
Appellate
the office of the State
appointed
however,
filed,
further was
Nothing
defendant.
represent
direct
defendant’s
an
on
opinion
this court
issued
until
death penalty
of the
affirming
imposition
the
appeal,
Jackson,
The evidence at defendant’s second death penalty hearing presented opinion is in detail in our on appeal direct not will be recounted here. only necessary disposi- We will discuss those facts to the appeal. tion of this ANALYSIS (the Act) (725 Hearing The Post-Conviction Act ILCS (West2000)) seq. statutory et is a vehicle
5/122—1
which
provides
opportunity
criminal defendants with an
obtain relief from substantial violations of their federal
rights
or state constitutional
that occurred at trial or
sentencing.
(1998).
People Towns,
v.
491,
182 Ill. 2d
502
petition
appeal,
A
filed under the Act is not an
but a col
judgment
lateral attack on the
of conviction or sentence.
People
(2001); People
v. Edwards,
259 8),§ applies appellate 1970, I, art.
proceedings, proceedings, as well as trial and violations right cognizable of this are under the Post-Conviction (2000). Hearing People Simms, 348, Act. v. 192 Ill. 2d 361 gov Claims of ineffective assistance counsel are standard, erned composed the familiar Strickland which is prongs: deficiency prejudice.
of two
Strick
Washington,
land v.
668, 687,
674,
466 U.S.
L. Ed. 2d
(1984).
693,
2052,
104 S. Ct.
To establish the
deficiencyprong, defendant must show that his counsel’s
performance, objectively
against prevailing
measured
professional norms, was so deficient that counsel was not
functioning
guaranteed by
as the “counsel”
the sixth
(2000);
Easley,
amendment.
To establish the defendant must probability show reasonable that, but for counsel’s unprofessional proceeding errors, the result of the would have been different. Evans, 93; Ill. 2d at Griffin, 178 prejudice prong Ill. 2d at However, 74. of Strickland simply is not an but, “outcome-determinative” test may rather, be satisfied if defendant can show that performance counsel’s deficient rendered the result of proceeding fundamentally the trial unreliable or Simms, unfair. 192 Ill. 2d at 362.
In the bar, case at defendant first claims that he capital received ineffective assistance of counsel at his *11 resentencing hearing. Defendant contends that his at- torneys “superficial” investigation conducted a and, aas present sentencing result, failed to discover and to the jury family evidence that defendant’s has an extensive claim, In of this
history support of mental illness. peti- amended post-conviction defendant attached to his mitigation report by amended forensic 39-page tion a Washington. Washington’s report, social worker Alice defendant’s fam- by the affidavits of several of supported illness has affected members, reveals that mental ily family. sides of defendant’s generations several both including one family, At 13 members of defendant’s least cousins, uncles, and have been sibling, aunts and several illness, predomi- from mental diagnosed suffering as has in some schizophrenia, which nantly paranoid of extreme accompanied by episodes been instances claim, also of his defendant support violence. In further five-page neuropsychological to his petition attached Dr. by developmental psychologist prepared assessment psychiatrist letter from one-page and a James Garbarino the al- that Henry position Dr. Conroe. It is defendant’s which claim, by the documents legations supported in his showing make a substantial petition, he attached to his failure to evidence resentencing present counsel’s that his ineffec- of mental illness constitutes family history of his evidentiary hear- and that an assistance of counsel tive constitutional determine whether his ing necessary disagree. rights were violated. We sentencing capital second-stage of a In context ineffective proving standard hearing, the Strickland “(1) to show requires a of counsel assistance hear at the attorney’s performance that his assistance, effective reasonably ing did not constitute (Strickland, 466 norms by prevailing professional judged 2065), and 694, 104 S. Ct. at L. Ed. 2d at at U.S. (2) that, the er absent probability there is reasonable the bal have concluded would rors, the sentencer not factors did war mitigating aggravating ance of Ed. 2d at 695, 80 L. (Strickland, 466 U.S. at rant death 2069).” Johnson, Ill. 2d at 698, 104 S. Ct.
261
Mitchell,
(1998);
189 Ill.
195-96
see also
a
obligation to conduct
Counsel has an
mitigat
into
sources of
investigation
potential
reasonable
sentencing hearing,
at the
ing
present
capital
evidence to
failing
a
to make a
legitimate
or must have
reason
Towns,
investigation.
particular
(1998);
However,
Ill. 2d at
if an
Griffin, 178
86.
conducted,
investigation was
counsel will not
adequate
of
merely
particular
be deemed ineffective
because a
item
Towns,
510;
Ill. 2d at
evidence was not introduced.
In the
defendant cannot
either
present
the
prong
prong—
of
Strickland test. As to the first
deficiency
support
record does not
defendant’s claim
—the
investigation
that the
into
of
potential
mitigating
sources
evidence was
nor
it
inadequate,
does
show that counsel
having
was deficient for
failed to
evidence
a
uncover
family history of mental illness. Defendant’s
to
attempts
a comparison
Towns,
draw
between this case and People v.
(1998),
Moreover, good why there is reason defense counsel present failed to uncover and evidence of defendant’s family history of mental illness. In an affidavit dated 10, 1999, March support submitted defense of defendant’s post-conviction petition, mitigation stated, specialist Washington Alice “That at the time of sentencing hearing, the initial and those subsequent thereof, no knowledge family history [sic] one had of the family’s mental illness because it was the dark secret.” According Washington, family, apparently embarrassment, due to had been disinclined to reveal information regarding family’s widespread affliction with mental illness. In a previous January affidavit dated 21, 1999, stated, “It Washington very has been a difficult task trying to convince that family [defendant’s] the fam- ily history of mental illness needs to explored be presented court.” conclude
We the failure to family discover the history of mental illness cannot be attributed to any *14 deficiency of counsel. family Defendant’s withheld this information due to a desire to keep “family this secret” private. Consequently, defendant has failed to satisfy the deficiency of prong the Strickland test. In of light the case, record in this defendant has not made a substantial showing that his counsel was deficient because evidence of a family history of mental illness was not discovered or presented resentencing at his hearing.
Having determination, made it necessary this is not the prejudice prong consider of the Strickland test. Nevertheless, it is clear to this court that defendant can- and, not make a substantial of showing prejudice the lack of is an additional reason consequently, prejudice that defendant’s ineffective assistance of finding claim dismissed without an eviden- properly counsel hearing. tiary able to show a prejudice,
To show defendant must be that, family had evidence of his probability reasonable the history presented, of mental illness been aggravat- of jury have concluded that balance would death. and factors would not warrant ing mitigating standard, however, cannot meet because Defendant history has no correlation been shown between mental family mental illness in defendant’s his own condition. defendant in 1987 and
Experts who examined found that sentencing, to defendant’s first trial and prior from a mental illness. Dr. defendant did not suffer defense, by diagnosed called Ziporyn, psychiatrist having passive-aggressive personality defendant as the time I examined and testified that “at disorder major or mental is- there were no marked [defendant] by Dr. Reif- findings were confirmed Ziporyn’s sues.” Dr. Institute man, Psychiatric the director of the by was called State County, circuit court of Cook who testing of psychological at trial. Based on the results defendant, diagnosed Dr. Reifman his own observations disorder with having personality a mixed as tendencies, influenced passive-aggressive antisocial “oriented, to be found defendant drug abuse. Dr. Reifman that defendant relevant, coherent, logical” and concluded defect, disease, or mental from a mental suffering was not condition. by anything not contradicted have been experts
These documents petition or the post-conviction in defendant’s by mitiga- report prepared The petition. attached to the high suggests Washington Alice specialist tion fam- in defendant’s schizophrenia paranoid incidence of *15 ily “a reasonable to question raises as whether or not suffers from the mental [defendant] same illness which has afflicted his But Washington only relatives.” is speculating speculation and her is not evidence which can defeat expert testimony the earlier that defendant does not suffer from mental illness or defect.
Furthermore, this court is unable to discern from of the any documents attached post- to defendant’s petition conviction how defendant’s family history of mental mitigates illness his criminal behavior Dr. case. James five-page report: Garbarino states in his “The mental illness evident in family [defendant’s] and the cognitive limitations noted in the reports various would tend to contribute to the problems [defendant] would face in drawing appropriate conclusions from social Thus, realities.” according Garbarino, to Dr. defendant’s family history of mental illness may tangential have some relevance to ability defendant’s “appropriate draw conclusions from social realities.” To the extent that this true, however, it is cumulative of the already evidence by heard the resentencing jury from Gelbort, Dr. who testified that organic defendant’s brain dysfunction impaired his ability to make appropriate behavior choices. We are unpersuaded that there is a reasonable probability that defendant’s jury, after Dr. considering report Garbarino’s and other evidence of defendant’s family history illness, of mental would conclude the aggravating balance of and mitigating fac- tors would not warrant a death sentence.
Nor is this conclusion altered the letter from Dr. Henry Conroe, Conroe. Dr. appears, it examined defen- dant on February 1988, prior to initial trial and sentencing. letter, In May 15, 1999, dated attached to post-conviction petition, Dr. Conroe writes: 2/17/88,
“At the time I [defendant] examined I did not have family, grow- access information about his his abuse, his- history physical and mental his
ing up, the testing. After injuries, neuropsychological tory of head *16 information, I that if this being provided this conclude initially, my me made available to assess- evidence were Beyond different. the ment of him would have been Personality Abuse and a Mixed diagnoses of Substance features, Aggressive Anti-social and Passive Disorder with family history, on the effects of his I have focused would neurocognitive early and the ‘diffuse his environment report in Dr. Michael Gelbort’s dysfunction’ described of the crime.” defendant’s behavior at the time the modify opinion his Dr. Conroe does not Significantly, rather disorder personality from that defendant suffers does not Moreover, Dr. Conroe than a mental illness. the family of defendant’s as the mental illness focus on Rather, of defendant. changing for his assessment basis have been that of defendant would opinion he states his his of “information about by spectrum influenced and mental up, history physical family, growing his abuse, history injuries, neuropsychologi- of head his to Dr. Conroe was Of interest testing.” particular cal neurocognitive dysfunc- “diffuse of defendant’s evidence which All of the evidence by Dr. Gelhort. tion” described to and presented meaningful had been Dr. Conroe found resentencing jury. considered because prejudice cannot show Finally, inher mental illness is not family history of defendant’s aggravating. as interpreted and could mitigating be ently 642, (2000); Ill. 2d 673 Montgomery, v. 192 People See (1999). Washington’s Evans, 186 Ill. 83, 2d 101 People family defendant’s indicates that some of 39-page report have schizophrenia paranoid from members who suffer were in Two relatives criminal acts. committed serious reason guilty by not being after found mental institutions and the other degree murder insanity, one for first reputed was family member robbery. Another armed Lake body into and thrown killed a child have sug- could history evidence Thus, family Michigan. gest future dangerousness factor which —a may aggravation. Evans, be considered in Ill. 2d at 101; Kidd, 1, (1996); People 175 Ill. 2d v. Ma (1995); Ward, haffey, 154 Ill. 335-37 sum, In we conclude that defendant has failed to make a showing resentencing substantial that his counsel was deficient or that he prejudiced by any perceived was deficiencies of counsel. the claim he Consequently, received ineffective assistance of counsel at resentencing properly dismissed without an evidentiary hearing.
Defendant next claims he received ineffective as
sistance
appellate
counsel when he appealed to this
court after his resentencing hearing. When determining
whether defendant has made a substantial showing that
his
rights
constitutional
have been violated by appellate
*17
incompetence,
counsel’s
again
we
employ the Strickland
(1999).
test. People West,
v.
418,
To suc
ceed on a claim of ineffective assistance of appellate
counsel, defendant must show that
the failure to
raise
particular
issue
objectively
unreasonable
and that
the decision prejudiced the defendant. People
Smith,
(2000).
In the
bar,
case at
defendant contends that his appel
late counsel was incompetent
he
because
failed to raise
on appeal
the improper admission of victim impact
evidence for
offenses,
unrelated
which was found to be
error in People v. Hope,
ILCS 120/1
condone,
impact
of victim
state
expansion
an
we will not
than the
from
other
include evidence
victims
ments to
“In case where adjudicated a delin- juvenile violent crime or a has been both except par- a those in which quent for violent crime sentence, agreed specific of a imposition ties have to the present of the crime is in the courtroom and a victim violent hearing, disposition at the time of the or the right upon request the his or her shall have the to victim regarding impact the court the which the defen- address juvenile’s delinquent criminal or the dant’s conduct has had the victim chooses to upon conduct victim. If right, impact exercise this statement must have been in in with prepared writing conjunction Office Attorney prior hearing sentencing, to State’s the initial or presented orally writing it can be sentenc- or at the before ing hearing. In conjunction the Office of the State’s with Attorney, a impact presented orally victim statement may by representative.” be done so the victim or or her his added.) (West 120/6(a) 2000). (Emphasis ILCS present case, In the Officer of- Byrne, correctional ficer County with Cook sheriffs department, was testify called to the State in aggravation. She testified that, between 1985 and she worked the midnight shift at Division 2 the county jail, where defendant was incarcerated being after convicted on a burglary charge. 21, 1986, On January Officer Byrne filed a disciplinary report and, against result, defendant aas defendant was confined to to segregation two three days. When defendant returned to Division began he campaign against and, intimidation Byrne Officer as his release date approached, began making verbal threats occasion, her. On one Byrne, defendant told “I Officer I get you. will find I you, get will and will On you.” occasion, another up came behind Officer Byrne in the hallway asked, tone, in a threatening her girl doing. how little At time Byrne was Officer had daughter, an 18-month-old she did not but know how defendant had obtained this information. Byrne’s
Defendant admits that testimony, up point, properly admitted. The “victim offending *19 testimony of he of a
impact” complains which consists State, single question to a the the posed by answer which objection: court allowed over defendant’s “Q. Byrne, Ladies [prosecutor] Ms. tell the and Gentle- jury changed the you your upon men of the how conduct County from Cook Jail? [defendant] release of [defendant], Byrne] my [Officer A. Prior to incident with release, off-duty I After very weapon. seldom carried an his my consistently. changed I one I also home carried route get I I every day. morning, from off in the [szc] work When took a different route home. I working midnight, I I was and had retired
As said my during stay night at house to woman that would babysit, my off-duty I her to instructed know where if it and make sure she how to it weapon was knew use necessary.” would be stated,
As Officer was not a formal Byrne’s testimony presented pursuant victim statement impact Act. do we Rights of Crime Victims Witnesses Nor Byrne’s impact as victim testimony construe Officer by Byrne made contain evidence. The remarks Officer impact typical none of the elements victim evidence. or any physical, psychological, She not does describe by her as a family financial difficulties her or experienced by on her the defendant. perpetrated result of a crime Rather, testimony her altered Byrne’s regarding Officer that she had taken jury conduct informed simply seriously. threats argument that find no merit to defendant’s We also in violation impact Dr. Soter victim evidence presented treating physician. Hope. Dr. Soter was Urica Winder’s regarding Urica’s testify He was called the State endured, she wounds, subsequent surgical procedures injuries on Uri- effects of possible long-term and the In vain attempt well-being. ca’s and emotional physical an “unrelated of- on Urica as to characterize attack indicated fense,” out that the evidence points defendant defendant, Driskel, and not Bobbie codefendant inflicted Urica’s wounds. fact that defendant did not wield the knife which
The injuries an caused Urica’s does not make her attack part The attack on Urica was of the unrelated offense. entire incident which resulted the murders for which only being Thus, defendant was sentenced. not legally injuries, her accountable for Urica’s *20 injuries reflect on defendant’s moral character. While may injuries, defendant not have inflicted Urica’s neither prevent steps Rather, did he take to the attack. his suggests at the time of he behavior tacitly approved the incident that Thus, attack her. the concern Hope, impact that the too victim evidence wouldbe at- sentencing jurors’ inquiry tenuated to be relevant to present into record, the defendant’s character and is not here.
Because defendant has unsuccessful in his been at- tempt testimony Byrne to show that the of Officer impact Dr. Soter was unrelated victim evidence admitted Hope, appellate in violation of it follows that counsel failing could not have been deficient for to raise this is- appeal. sue on direct Furthermore, because defendant showing has made not a substantial that he inef- received properly of counsel, fective assistance the claim was evidentiary hearing. an dismissed without Witherspoon II. Violation Defendant contends that he was denied his constitu- right impartial jury process tional right to an and his “due jury jurors systemati- a to from which no have been cally removed.” The basis for this claim the State’s use peremptory challenges to from remove the venire expressed imposing who individuals reservations about penalty. particular, the death In defendant claims that Larsen, the State Efkman, excused Dale Albert Lofgren perception they James based on a that were and, thus, as penalty” “weak far as the death State men who hanging jury” by removing “seated a these to qualified” jury. were “otherwise well sit on Illinois, Witherspoon v. 510, L. Ed. Under 391 U.S. 776, (1968), it is progeny, 2d S. Ct. 1770 and its cause a prospective juror to unconstitutional remove for expresses general objection penalty to the death who has religious grounds. repeatedly on moral or This court held, however, limit Witherspoon does not the State’s Coleman, 168 Ill. peremptory challenges. People use of Williams, 1, (1995); 161 Ill. 2d 55-56 Howard, (1994); 136-38 decisions, urges he acknowledges these While Yet, he court provided them. has us reconsider departing from our earlier persuasive with no reasons holdings. if this is
But this court were inclined revisit even sue, unnecessary it in this case. Defendant would be its unconstitutionally the State exercised contends Larsen, Dale Albert challenges to exclude peremptory Efkman, However, these men were Lofgren. and James *21 sentencing first of the venire at defendant’s members imposed follow hearing. The death sentence which was hearing Defendant the was vacated. ing sentencing first where the evidence sentencing hearing, received newa Thus, sentencing new by entirely jury. an was heard venireper excluded these State improperly whether the issue, See we need not consider. is moot which sons Henderson, any venire members Defendant does not contend that sentencing hearing improperly were at his second has conclude that defendant Accordingly, we excluded. that his constitu- showing to make a substantial failed sentencing were jury an impartial to rights tional an dismissed without properly This claim was violated. hearing. evidentiary Hearing
III. Fairness of the Sentencing process equal next that his due and Defendant claims protection rights because were violated his In hearing fundamentally particular, was unfair. he (a) judge contends that who over his presided (b) biased, was sentencing hearing “hypnoti- inadmissible (c) cally testimony presented, enhanced” under claims,” of heading eight “other additional errors him fair sentencing hearing. denied
(a) Judicial Bias Defendant attached to post-conviction petition his in support two judge affidavits of his claim that the who presided sentencing hearing over his was biased against him. The first Fitzsimmons, affiant was Martha an at- torney employed by County public the Cook defender’s office, represented who defendant at his second sentenc- ing hearing. Fitzsimmons attested fact that she judge’s had visited the chambers and saw “prominently wall, displayed on the a framed and matted souvenir.” Fitzsimmons said she learned later this “souvenir” had been given judge to the assistant At- State’s torneys originally who had tried defendant’s case. The framed “souvenir” a picture held of two girls —Urica Winder and her sister —and a from handwritten letter Fitzsimmons, According Urica. the letter said “some- thing to the effect of... you Judge thank Urso for helping me during the trial and putting those bad men away good.” Fitzsimmons stated that she appellate informed of this counsel “evidence of but prejudice,” that the issue judicial bias was not raised appeal. The second affiant Clark, was Steven an attorney employed by office Appellate State Defender and defendant’s counsel for both defendant’s direct appeals to this court and for his to the appeal United Supreme States Court. Clark averred that he had been present in the courtroom on during several occasions hearing defendant’s second death penalty *22 274 in pres- during proceedings,
“on 5 to 10 occasions objections to and jury, Judge reacted ence of the Urso by by at requests for side bars defense counsel various voice, his raising rolling of his frowning, times the volume ceiling, moving his or eyes, looking abruptly at or arms Judge was body. Each of these reactions indicated that the with counsel.” angry defense an stated, petition appeal, a is not post-conviction As have and that could proceeding, but collateral issues not, be may but were presented appeal, been direct (1995); Ill. 472 v. 165 2d People Hampton, deemed waived. (1988). 368, Stewart, Ill. Waiver will People v. 123 2d 372 require of fundamental fairness apply principles unless 303, Owens, 129 2d 317 of the issue. v. Ill. review ‘“ (1989). requires courts to “Fundamental fairness” in collateral defaulted claims procedurally review cognizable only when shows proceedings timely objection, to make “cause” his failure now flowing from the error prejudice” “actual shows ” 117, 123 Hudson, v. complained of.’ People Owens, 317, Ill. (2001), citing 129 2d at Wain quoting 594, Ct. L. Ed. 2d 97 S. 72, 433 U.S. 53 wright Sykes, Ill. 2d 154 194 People Mahaffey, 2497 See also (2000). As detailed in Hudson: ‘ “ “ to objective factor external ‘[Clause’ denotes ‘some to raise impeded counsel’s efforts’ [that]
the defense Flores, 153 Ill. proceeding.’ claim” an earlier Zant, 264, U.S. (1992), quoting McCleskey v. 499 2d 1454, 493, 517, 544, 111 S. 467, L. Ed. 2d Ct. Carrier, 478, 488, 91 L. (1991), Murray v. 477 U.S. quoting (1986). Moreover, 2639, 106 S. Ct. Ed. objective Supreme Court has identified the United States ‘ “ ‘interference constitute cause include factors that ” proce compliance with the State’s officials’ that makes showing “a the factual impracticable, rule dural reasonably not available claim legal or basis for a addition, constitutionally “[i]nef In [Citation.] counsel.” At [Citation.] ... is cause.” fective assistance of counsel counsel, assistance torney error short of ineffective
275
however,
McCleskey,
***.’
499
does not constitute cause
493-94,
544, 111
U.S. at
113 L. Ed. 2d at
S. Ct. at 1470. To
“not
prejudice,
petitioner
establish actual
‘must show
the
of
merely
possibility
that
errors at ... trial created
prejudice,
they
but that
worked to his actual and substan
disadvantage,
infecting
tial
his entire
with
of
trial
error
’
494,
dimensions.”
91
Murray,
constitutional
Although defendant it, fails to mention a substitution judge prior of ing hearing. motion was filed to defendant’s resentenc- allegations Judge motion,
In this Urso’s impartiality premised, primarily, lack of were on the photograph Judge framed and letter from Urica which kept Urso in his chambers. The motion was heard Judge Gaughan, evidentiary hearing who held an on the hearing, testimony matter. At this the court heard which simply, “Judge established that the framed letter stated you. Urso, Thank Furthermore, Urica.” other witnesses keepsake only many testified that this framed was one pictures, pieces sketches, artists’ of memorabilia judge’s hearing argu- which cluttered the chambers. After Judge Gaughan motion, ment on the denied the substitu- tion motion. represented ap- Clark
When defendant in his direct peal following resentencing, challenge the he did not ruling. judicial correctness of this did Nor Clark raise appeal, though as an bias issue even Clark now claims judge exhibiting body language to have witnessed the during sentencing hearing suggested which judge being impartial. was not circumstances, judicial the claim of bias
Under being post-conviction in the petition which is raised appellate not on “new evidence” unknown based counsel, efforts to nor can defendant show that raise judicial timely impeded. in a were issue of bias fashion Thus, cognizable he cause. cannot show
Moreover, pos- cannot show a reasonable judicial as bias. prejudiced he was a result sibility that court, evidentiary hearing, after an decided The trial keepsake disqualify- not a basis that the framed hear- ing Judge presiding Urso from over *24 ing. agree. We be made of a is not a decision to
Disqualification
judge
(1997);
v.
Steidl,
Ill. 2d 239
People
v.
177
lightly. People
(1979). A
to be
Vance,
judge
presumed
Ill.
171
is
76
Hall,
v.
provocation. People
extreme
impartial even after
(1986).
judges,
It
assumed that
376,
114 Ill. 2d
407
is
backgrounds
experiences
regardless
personal
of their
or predisposi
to
life,
any
in
will
set aside
biases
be able
in
light
and consider each case
they might have
tions
(1990).
Clark’s
277
judicial
strating
Allegations
judicial
bias.
bias must be
viewed in context
in
and should be evaluated
terms of
specific
taking
trial
to the
judge’s
reaction
events
(when
(1971)
place.
People Hannon,
See
v.
(b) Hypnotically Testimony Enhanced Defendant next contends that he is entitled an evidentiary to determine hearing whether he was denied a fair resentencing hearing because “hypnotically enhanced” testimony was introduced through Urica *25 Winder. An evidentiary hearing warranted, however, is when the only allegations petition, in the supported where appropriate by the trial record or accompanying affidavits, make a substantial showing that the defen dant’s constitutional rights have been People violated. v. Smith, 195 (2000); Ill. Hobley, 404, 427-28 In the case at bar and sup the record porting do a support documents not finding that Urica testimony Winder’s was “hypnotically enhanced.” July 10, 1988, Tribune Chicago Defendant relies on a may have been analysis” article evidence that “dream as Dr. However, only article contains on Urica. used a Urica once told him recollection of dream that Soter’s he treating physician Urica’s Dr. Soter was about. The therapy. counseling no or provided psychological analysis” or “dream hypnosis article is not evidence that any might in Urica techniques employed therapy were received. have
Furthermore, support record does not and became testimony Urica’s “evolved that assertion time.” Our review of detailed over the course of more her testi- indicates that Urica was consistent record of the We conclude mony throughout proceedings. all Urica’s employed the State that defendant’s claim that sentencing hear- testimony at his “artificially enhanced” the level of and does not rise to speculative ing of a constitutional violation. showing substantial
(c) Other Claims . form, additional eight in list presents, Defendant to only is directed However, argument his claims of error. claim, he that his constitu- eighth in which contends his he was denied violated because rights tional were resentencing. of allocution at his right occasions, has held On several court al right or statutory no constitutional defendant has Hall, hearing. People in a capital locution Simms, Ill. 2d 348 (2000); 2d 1 195 Ill. (1996). As (2000); Gilliam, 172 Ill. 2d People v. rules claims, them. Our decline to address remaining we “[a]rgu must contain brief appellant’s that an provide of the appel contentions ment, contain the which shall of the therefor, with citation the reasons lant and on” and of the record relied the pages authorities 341(e)(7). Ill. 2d R. waived.” 177 argued not are “[p]oints waived. of error are remaining claims Consequently,
279 Because defendant has failed to make a substantial a fair showing right that his constitutional violated, hearing was we find that the trial court properly these evidentiary hearing. dismissed claims without an Appropriateness Penalty IV of the Death It is defendant’s not ap- contention death is an that, propriate penalty argues in this case. He “when proper given consideration circumstances of the case, crime as well as life history, to [defendant’s] it is evident that he is not the who type person should permanently be society.” Noting eliminated from that his codefendant a sentence, received natural life defendant asks this court to vacate his death sentence and remand for a sentence other than death.
Clearly,
legislature
every
never intended that
eligible
defendant who is
penalty
the death
receive
death sentence
v.
(People
Blackwell,
The horrific facts of this case have been detailed in
two direct appeals.
Jackson,
See
(1991);
for more Before Brown’s and, entering the gave upon Driskel a knife Brown, apartment, they began stabbing Mark without lay asleep warning, or as Brown on the provocation *27 fiancée, Winder, couch. When Brown’s Vernita saw what her happening, escape four-year-old was she tried to with six-year-old daughters a back bedroom. and Vernita friend, Shirley Martin, desperately to and her tried hold and against the bedroom door closed defendant Driskel. Defendant, however, began down the door and broke women, while the children. stabbing the Driskel stabbed child, individuals, a died including four-year-old Four as they multiple Collectively, a stab wounds. result Urica, only 115 incised wounds. who was received over years old, and left for repeatedly six also was stabbed dead. in that aggravation
Additional showed evidence prison a criminal and an extensive history defendant had that, There evidence while disciplinary record. incarcerated, threatened correctional officers defendant guards both and inmates several occa- and assaulted officer, years One who had 27 sions. correctional he rank defendant fourth experience, testified that would a thousand dangerousness in terms of out of more than had he contact with. prisoners murders, Defendant, the time of the who was at legitimate supported held He had himself job. never a evidence that defendant There was also selling drugs. inside and outside of gangs had been involved with both prison. that had the defense defendant mitigation,
In showed from and as a child that he suffered severely been abused aas result of functioning, probably brain most abnormal GED, a he defendant had obtained injury. Although head in IQ had never done well school. had a borderline of nine. age drugs He and alcohol since used balance, On say mitigation we cannot that outweighs of the crimes and the evidence the seriousness Furthermore, aggravating presented. additional evidence considered, already rejected, argument we have in direct his death sentence appeal made that unreasonably from his codefendant’s life disparate reasons, sentence. For we do not that these find death or inappropriately ap- sentence of was excessive case. plied this Questions Improper
V Posed to the Venire In claim, argues this he that was denied fair death penalty sentencing hearing because trial court, questioning venire, when “suggested jury would have to unanimous to any findings be as mitigating factors.”
The correctly State argues procedur that this issue is ally defaulted because defendant failed to raise issue on direct appeal. Whitehead, *28 People Ill. 371 (1996). necessary, however, It is to consider whether principles of fundamental require fairness that we review the issue. stated,
As fundamental essentially fairness is a cause (see prejudice and test v. 194 2d People Mahaffey, Ill. 154, (2000)), 173 with objective “cause” defined as “an impeded factor that defense counsel’s efforts to raise the claim on direct “prejudice” review” and defined as “an error which so infected the entire trial that the defen dant’s process.” conviction violates due v. Frank People (1995). lin, 1, 167 2d Upon Ill. 20 review of the record in case, we have determined that defendant is unable satisfy prejudice to prong the of the “cause and prejudice” test. Even if some of the questions posed to members of the venire misleading, contends, were as defendant the likelihood that this had an effect on sentencing the jury’s verdict is too to require remote reversal.
The purpose of voir is jury, dire not to instruct “ purpose of voir dire is to ascertain sufficient ‘[t]he jurors’ information beliefs and prospective opinions about so as to allow removal of those members of venire so that prejudice whose minds are closed bias and they cannot law as in accordance apply the instructed ” Strain, 467, 2d People with their oath.’ 194 Ill. Cloutier, quoting (2000), 495-96 Ill. (1993). Defendant not contend that the trial court does venirepersons for adequately failed to screen the bias. The on members of the venire who were selected to sit du fully properly were and instructed their jury Thus, regard ties with of the death imposition penalty. any that have due to the court’s might confusion arisen preliminary inquiries to members the venire would when, aggravation/ at the close of the have been cured phase hearing, defense mitigation 11of have argued you to the that don’t jury “[a] counsel factor, one,” is and mitigating just to decide that there say “it that there are sufficient only just takes one from which will mitigating prevent [defendant] factors the trial court instructed receiving death” when accurately it with verdict forms which jury provided of the death imposition the requirements stated Towns, Ill. 2d 471-72 See penalty. that no probability There is reasonable voir dire questioning, as a result of the prejudiced any long jury ever heard which occurred before eligible defendant was or determined whether evidence error Defendant’s claim of penalty. for the death waived. Errors Effect of the Above
VI. Cumulative error of the claims of raised Recognizing each *29 standing in petition appeal, and this his post-conviction relief, to defendant alone, may insufficient warrant be his trial and the fairness of this court assess asks totality of the looking at the sentencing hearing after
283 circumstances. He asks this court to decidewhether these individually may harmless, errors, which be deemed cumulatively process. amount to denial of due recognized may court that errors
This has individual denying a fair have the cumulative effect of hearing (People a defendant (2000);People Hall, 305, 2d v. 194Ill. 350 (1992)) Speight, 365, v. 153 Ill. 376 has reversed convictions and it was clear sentences when deprived cumulative effect of errors the defendant of (see process People Walker, due 502, v. 91 Ill. 2d 516-17 (1982); (1982); People Whitlow, 322, v. 89 Ill. 2d 341-42 (1967)). People Romero, 315, However, v. 36 Ill. 2d 319-20 present this case does not such a situation. of the
None claims of error raised here defendant any were individually Thus, found be of merit. whether considered aggregate, or in the defendant’s claims do not demonstrate a substantial violation of his constitu- rights. granting tional There is no an basis evidentiary hearing any requested. or alternate relief Constitutionality Penalty
VII. of Death Statute Defendant next contends that the Illinois death penalty statute is unconstitutional because it lacks a persuasion, making penalty burden thus the death mandatory proven beyond where the State has a reason- aggravating able doubt at least one circumstance and no mitigating evidence offered. occasion,
On more than one this court has considered rejected argument presented ap the identical in this peal. People (2000); Simms, 348, See v. 192 Ill. 2d 429 (1996); People Brown, 1, v. 172 Ill. 2d 62-63 v. Simpson, (1996); 117, 172 Ill. 2d Terrell, (1989); People 178, 132 Ill. 2d Christiansen, (1987);People Williams, Ill. 2d prior 265-66 We adhere to our decisions. argument Furthermore, we note that when a similar presented appeal, second direct *30 284 constitutionality upheld the death
court Illinois places penalty finding statute, that the a burden statute persuasion defendant, with on both the State and the “ being persuade primary ‘the burden on State to mitigating jury states, no that, there are as statute impos preclude from factors sufficient ing sentencer of death for which the defendant is the sentence ” eligible.’ quoting People Jackson, 94-95, at Ill. 2d v. 182 (1990). Bean, 65, 2d claim here 137 Ill. 139 Defendant’s must fail. Penalty Exemption Death Persons Who
VIII. From Require Special Forms of Communicative Assistance 104—22 of the Code of Criminal Procedure
Section 2000)) (725 (West recognizes that 1963 ILCS 5/104—22 may disabilities, with who otherwise defendants certain special may provi- fit if trial, be unfit to stand become provided. However, the or sions are assistance made any legislature defendant has also determined that following 104—22 trial under shall “convicted Section subject penalty.” not 26(b) (West 2000). to the death 725 ILCS be 5/104— exemp- contends that this
Defendant
unconstitutionally
penalty
tion renders the death
statute
discriminatory, arbitratry
capricious
it
because
requires
exempts
penalty who
from the death
special
unfit-
because of
“a
or needs
assistance
translator
disability.”
physical
ness due to a
by
rejected
argument posited
defendant has been
The
previous
This
has held
occasions.
court
this court
penalty
unconstitutional
statute is not
that the death
exempts
special
persons in need of
assistance.
because it
(1989); People
People
v.
Ill.
123
Harris,
v.
129
2d
See
(1988); People Perez, 108 Ill.
55,
2d
v.
Ashford, 121 Ill.
90
(1985).
court,
Furthermore,
in constru
70,
94-95
statutory
ing
scheme
10,
held that the
section
has
104—
merely
who are
intend that those defendants
does not
English
exempted
speak
from
or understand
be
unable to
(1988).
penalty.
Britz,
death
v.
People
Because defendant’s premise is there is no merit *31 argument to his the death penalty statute unconstitutional.
CONCLUSION For reasons, the foregoing we affirm judgment the circuit court of Cook County dismissing defendant’s petition amended for post-conviction relief. We direct the clerk of this court to enter an order setting Tuesday, March 2002, as the date on which the sentence of death entered by the circuit court of County Cook is to be carried out. The defendant shall be executed in the (725 (West manner provided by law ILCS 5/119 —5 1994)). The clerk of this court shall send a certified copy of the mandate in this case to the Director of Correc- tions, to the warden of Center, Tamms Correctional and to the warden of the institution where defendant is now confined.
Affirmed. CHIEF JUSTICE HARRISON, dissenting: The proceedings which culminated in Jackson’s sentence of death fatally were flawed because they did not comport with the new rules enacted by our court governing the conduct of cases in which the State is seek ing the penalty. death For the reasons set forth in my dissenting opinion in People v. Hickey, (2001) (Harrison, 631-36 C.J., dissenting), the procedures contained in those rules are indispensable for achieving and are guilt innocence or determination
an accurate coming before us. to all cases now capital applicable and sentenced tried, convicted Because Jackson was rules, convictions and the new his the benefit of without vacated, the cause should and death sentence should be trial. court for a new remanded to the circuit be the benefit of not entitled to if Jackson were Even For could not stand. rules, of death the new his sentence and my in concurrence partial set forth the reasons (1998), Bull, Ill. 2d 179 dissent partial law is void and unenforceable penalty Illinois death amend and fourteenth eighth it violates because (U.S. Const., Constitution to the United States ments XIV) 2, of the Illinois VIII, I, article section amends. 2). (Ill. I, § the new 1970, art. Absent Const. Constitution At a altering that conclusion. rules, is no basis for there death should therefore minimum, sentence of Jackson’s to a term vacated, he should sentenced be be 1994). (West Because l(j) ILCS imprisonment. 5/9 — victim, the than one murdering more he convicted of life. 730 ILCS must be natural of imprisonment term (West 1994). 5/5_8 l(a)(l)(c)(ii) — *32 KILBRIDE, dissenting: also JUSTICE in in dissents my set forth For the reasons (2001) (Kilbride, J., dis 585, 636-40 Hickey, Ill. 2d 581-85 Simpson, senting), (2001) I this cause (Kilbride, J., dissenting), believe compli in trial conducted for a new remanded should be As I cases. capital governing the new rules ance with in cases capital dissents, procedures my stated inher rules were of the new adoption court’s to this prior sufficiently protect did not ently unreliable reason, I For this rights. constitutional retroactively. applied should be that the new rules believe dissent. Therefore, respectfully I