*1 CONCLUSION аbove, For reasons stated we the judg- reverse the appellate ments of and circuit courts. therefore We reverse conviction and remand for a new trial expressed consistent the views in this opinion. reversed;
Appellate court judgment reversed; circuit court judgment cause remanded with directions. (No. 78292. ILLINOIS,
THE PEOPLE OF THE STATE OF Appel- lee, v. LEAR, Appellant. TUHRAN A. 6, February
Opinion Rehearing denied filed 1997. March 1997. *4 J., McMORROW, concurring part dissenting part. FREEMAN, J., dissenting. Schiedel, Defender, Deputy Spring-
Charles M. field, Fawcett, Defender, and Kim Assistant Robert
267 all Director, Chicago, Hartman, of Deputy Marshall J. Defender, appel- for Appellate of the State of the Office lant. General, Springfield, of Attorney Ryan, E.
James Hillsboro Dobrinic, Attorney, of State’s Kathryn and (Barbara General, Arleen C. Preiner, and A. Solicitor Attorneys Gen- Zick, Assistant and Steven J. Anderson counsel), People. for the eral, Chicago, of of opinion HEIPLE delivered CHIEF JUSTICE the court: of Mont- in the circuit court
Following jury trial Lear, defendant, was convicted Tuhran County, gomery murder, murder, dеgree first attempted degree of first jury found defen- robbery. The counts of armed and two mitigat- no and found eligible penalty for the death dant preclude imposition to sufficient ing circumstances death was sentenced to Defendant penalty. the death terms for 60-year prison to two concurrent and also robbery attempted and murder. armed affirmed the convictions appeal, this court On direct (1991). Lear, 138 De v. 143 Ill. 2d People and sentences. petition post-conviction filed a subsequently fendant Of the supplemented. and he later amended relief which petition, post-conviction raised in defendant’s claims evidentiary an court without dismissed nine were remaining hearing on the evidentiary an hearing. After claims, defendant’s the court denied two petition. (1) court, defense argues
Before this dire request a voir failing in was ineffective counsel (2) bias; defense counsel racial question regarding the defense the- present failing properly ineffective (3) shooter; defense ory defendant was sentencing hear- capital ineffective at the counsel was (4) his constitutional defendant was denied ing; and rights when evidence of other crimes was admitted as aggravating evidence during the sentencing hearing. We affirm.
The that, evidence at trial disclosed on September 1988, defendant, accompanied Thomas, by Randy a gas Farmersville, entered station Illinois, emptied the cash register. During robbery, defen- dant shot the store manager, Gregory McAnarney, an employee, Robert Bishop. McAnarney died as result of the gunshot wound Bishop but survived and later against testified defendant.
Further regarding details presented the evidence at trial are set forth in opinion disposing *6 138) (Lear, of defendant’s appeal direct 143 Ill. 2d will be only referred to below as necessary to dispose of instant appeal.
ANALYSIS
A proceeding under the
Hearing
Post-Conviction
Act
is a collateral
judgment
attack on the
of conviction
which
not,
is limited to сonstitutional
issues which were
been,
and could not have
presented
on direct
review.
Gosier,
(1995).
v.
People
16,
165 Ill. 2d
20
Issues decided
by a reviewing
direct appeal are res
prior
court on a
judicata
actually decided;
as to issues
issues that could
presented
review,
have been
during
not,
direct
but were
are deemed
purposes
waived for
of post-conviction
(1995).
Franklin,
review. People
v.
1,
167
2d
Ill.
On
review,
the trial court’s
regarding
determinations
post-conviction petition will
they
not be disturbed unless
Franklin,
manifestly
are
erroneous.
A. Voir Dire Defendant, African-American, argues an that his in failing jury trial counsel was ineffective to inform the failing the victim was white and in to draft and racial question regarding tender voir dire bias. Initially, argues State this issue is waived plainly because it was discernible from the record and thus have been appeal. could raised on direct We find argument that this is not waived since it is based on ev- presented during idence first hear- ing, during which defendant testified that to voir question prospec- dire he had asked defense counsel to jurors tive about racial bias. requires judge question Constitution a trial
"[T]he *7 specifically regarding racial if venirepersons prejudice 'special suggest circumstances’ exist that a constitution ally significant prejudice might likelihood that racial Ill. People Peeples, infect a defendant’s trial.” v. 155 2d (1993). 422, special Such circumstances exist where 459 " 'inextricably up racial issues are bound ” 459-60, Ill. 2d at Peeples, conduct of the trial.’ 155 589, 596-97, Ross, 47 L. Ed. quoting Ristaino v. 424 U.S. (1976). 258, 264, 1017, general, 96 S. 1021 2d Ct. 270
the defendant and victim are of different races does not
special
Peeples,
in itself create a
circumstance.
Ill.
155
capital
However,
2d at 460.
when a
defendant is on trial
crime,
an
interracial
the defendant is entitled to
prospective jurors
have
informed of the race
questioned
only
bias,
victim and
about racial
but
as to
sentencing phase,
only
specifi
if
the defendant
cally requests
inquiry.
Murray,
such an
Turner v.
476
28, 37,
27, 37,
1683,
U.S.
(1986).
90 L. Ed. 2d
106 S. Ct.
reviewing
record,
After
we find that the circuit
post-
court’s decision to dismiss this claim in the
petition
manifestly
conviction
was not
errоneous. Dur-
ing
hearing,
defendant testified that
question prospective jurors
he asked defense counsel to
However,
about racial bias.
defense counsel testified
request.
that defendant made no such
The issue was
gave
credibility
thus one of
since counsel and defendant
transpired prior
during
different views of what
to and
voir dire. The trial
court did
find
credible
point
this
thus
on
dismissed
claim.
according
defendant,
court,
Since
to the trial
did not
inquiry
bias,
an
ask for
into racial
counsel was not
required
inquiry. Turner,
to make such an
B. 1. Shooter Defense theory Thomas, at trial was that rather The defense
271
robbery.
defendant,
shooting during than
did the
fail
was ineffective for
argues
Defendant
that counsel
victim,
by ing
to
statement made
admit
theory
Bishop,
supported
which defendant contends
claim, finding
the case. The trial court dismissed this
of
satisfy
prejudice prong
that defendant
failed to
Erickson,
Strickland. See
We first note that this issue is not barred doc trine of as the State contends. On direct judicata, res this court addressed whether the trial court appeal, Bishop using in refusing impeachment erred to allow Lear, Ill. 2d at 145. reporter’s testimony. However, the court never addressed whether counsel in failing Bishop’s prior was ineffective to have state argues ment admitted. The State that further the issue waived, is as it could have appeal, been raised on direct to which defendant responds preserved the issue is due to the appellate failing ineffectiveness of counsel to raise the issue. inef alleged We thus consider appellate fectiveness of counsel.
Bishop, during who was shot in the neck the rob- bery, testified at trial that defendant came into the store and asked for the rest room. Bishop pointed to rest it, room and defendant leaving Bishop’s walked toward Thomas, sight. accomplice, line of Defendant’s who was defendant, taller than then asked how far it was Bishop later, to A Chicago. Bishop few moments heard a noise him, upon behind which he was shot the neck. trial, Prior to Bishop allegedly newspaper told a reporter the first man who entered the store was two, which, correct, suggest the taller of the if would trial, man, Thomas, the taller fired the shots. At his state- Bishop defense counsel cross-examined about reporter Bishop replied ment to the that he did not However, reporter. recall what he said to the counsel failed to ask whether the man entered the Bishop taller attempted impeach
store first. When counsel later Bishop reporter’s testimony, with the the trial court nothing impeach Bishop ruled that there was since heights never testified about the relative of the two as- sailants.
Defendant argues now counsel was ineffective Bishop’s prior when he failed to have statement admit- ted, specifically contends that counsel erred when (1) Bishop, he: an from which failed to obtain affidavit substantively could have been used or to refresh (2) recollection; failed to cross-examine Bishop’s Bishop (3) first; about who came into the failed to properly store preserve by making proof an of the this issue offer (4) testimony; jury a reporter’s request failed to allowing Bishop’s prior instruction substantive use of statement.
However, Bishop’s reporter had statement to the evidence, been it would not have admitted as substantive impacted During the outcome of the trial. direct exami- nation, Bishop, using photograph, unequivocally stayed identified Thomas as the man who in front of Chicago. him and asked the distance to Another witness gun testified that she saw defendant with the gas robbery. as he left the station aftеr waistband Also, picked up by police when he had defendant pocket the murdered victim’s wallet in his and dried Moreover, redirect, Bishop on ex- blood on his shoe. making the state- plained that he was distracted while work and reporter because his wife was at ment young fixing supervising while his four supper he was children. evidence, preju defendant was not light
In
of this
to introduce
into evidence
diced when counsel
failed
we
prejudice,
statement. Since we find no
Bishop’s prior
claim of ineffec
affirm the trial court’s dismissal of this
Erickson,
Defendant raises arising sentencing hearing. out of the counsel claims Therein, evidence of presented aggravating the State First, murders committed defendant. two juvenile evidence of a 1974 murder presented State years which occurred when defendant was 15 conviction Second, presented old. the State evidence that defen- at'a robbery/murder gas dant committed a station Collinsville, Illinois, days nine before the instant crime. presented mitiga-.
Defense counsel three witnesses in girlfriend good tian. Defendant’s that she had a testified relationship "always with defendant and that he was help. there” for her when she needed She also stated good relationship young that defendant had a with his addition, daughter. defendant’s mother testified that an average had been obedient child and an Finally, student. defendant’s sister testified that he was good child got along who well with his brothers and good par- sisters. She also stated that defendant was a *10 ent who his supported daughter regularly. Inexperience
1. Counsel’s and Limited Resources argues Defendant trial inexperience counsel’s and lack of resources a per constituted se violation of his right to effective assistance of counsel. Defendant first argues that trial counsel was per se ineffective because no appointed. co-counsel was Defendant cites to the guidelines capital provided by for cases the American Bar Association and the Legal National Aid and De- Association, fender which recommend two at- torneys appointed be to represent capital each defen- Second, argues dant. trial was counsel per young, inexperienced, se ineffective because he was and had Testimony by insufficient resources. defense the post-conviction hearing counsel at showed that: graduated counsel years prior from law school two 274 defendant; counsel for this was both appointment as case; capital
counsel’s first homicide and first counsel any training defending had never received formal case; capital employed attorneys counsel’s office no other investigator; only by no assistance received legal help was 60 hours of research from an- counsel and, attorney; during other the time counsel was defendant, responsible he was for numer- representing pending ous other cases. and limited
Having a counsel with limited resources
experience
is
a circumstance which this court has
se ineffective
per
constitute
of counsel.
held to
assistance
(1985)
See,
e.g., People Hattery,
v.
Ill. 2d
(counsel
Brandon,
v.
defense);
People
present
failed to
(1994) (counsel
request
Applying Strickland to the instant
reject
we
ineffective-assistance
claim because these
defendant’s
prejudice
did not result
to defen
alleged deficiencies
Erickson,
Defendant was convicted
dant.
' unsuccess- sentencing hearing, counsel During to further a continuance order *11 fully requested that argues Defendant now proceedings. prepare for failing a continu- request counsel was ineffective further sentencing hearing ance to the order to juvenile crime and the investigate the Collinsville conviction.
The State contends
that
these issues are waived
they
appeal.
since
could
been raised on direct
With
have
crime, we
since no new
regard
agree
to the Collinsville
presented
during
evidence was
about
that crime
However,
post-conviction proceedings.
a claim based on
investigate
juvenile
failure to
crime was not waived
presented during
because it was based on evidence first
post-conviction proceedings.
During
proceedings, defendant
that,
presented
juvenile,
evidence
aas
he committed
murder because he
"provoked
period
over a
of time
probably
was fed up
being picked
on.” Such
evidence, however,
justification
is no
killing
another
being
human
and would have been insufficient
counteract
the aggravating
juvenile
nature of the
mur
Thus,
der conviction.
prejudiced
defendant was not
counsel’s failure to request a continuance to allow fur
investigation
ther
may
have
discovery
led to the
this evidence. Accordingly,
the trial
properly
court
dismissed this claim of ineffective assistance of counsel.
Erickson,
3. Next argues trial counsel was inef- in preparing fective and presenting mitigating evidence. (1) argues He that counsel was ineffective in he failed to renew a previously denied request for funds to (2) hire a mitigation expert; used available funds to acquire legal research mitigation assistance rather than (3) investigation assistance; adequately ques- failed to (4) tion members; family friends and argue jury failed to to the past that defendant’s sub- stance impaired abuse judgment. responds The State
276 a of defen-
that none of these instances were violation right effective of counsel because de- dant’s to assistance prejudiced how these omissions fendant failed to show doing the State contends Specifically, defendant. mitigating the not uncovered evidence above would have of this case. change sufficient to the outcome hearing, pre- During post-conviction pre- evidence that was not mitigating sented additional correctional of- during sentencing. sented Three former while he good testified as to defendant’s conduct ficers Cranberry, who lived juvenile Angela was in detention. years and who was the with defendant for several a daughter, testified that he was mother of defendant’s man, daughter their good family provided well for attending col- helped around the house while she was kids, good that he was includ- lege. She also stated son, he was ing daughter Angela’s and that his own father, sister and aunt also good Angela’s worker. mitigation specialist to these facts. A from testified social his- Capital prepared Resource Center disadvantaged childhood and lack of tory, outlining his Risolo, psychiatrist, Dr. testi- supervision. childhood history and his substance abuse fied as to defendant’s Finally, a friend of de- failure to teach values. mother’s drug and alcohol use fendant testified about defendant’s years to the instant crime. during through presented The additional evidence family at the testimony of defendant’s presented cumulative of evidence hearing largely The remainder of the ad during sentencing hearing. light sufficiently mitigating, ditional evidence was not evidence, change the outcome aggravating of the find that defendant hearing. We thus sentencing disadvan present failure to his prejudiced was not (see People history abuse tаged childhood and substance (1987) (death Christiansen, 96, penalty v. 116 Ill. 2d 129
277 appropriate despite mitigating evidence that included drug childhood); deprived addiction and a People v. (1991) (death Johnson, 109, 146 Ill. 2d penalty ap propriate despite mitigating drug evidence that included abuse, child)), and alcohol well as as abuse as a or his (see good behavior while juvenile incarcerated as a (1995) (defendant’s Garcia, v. People 165 Ill. 2d good prison behavior sufficiently mitigating sentence)). preclude a death Accordingly, we affirm the trial court’s dismissal of this claim. Psychological
4. Physiological Evidence / Defendant argues that counsel was ineffective for failing to seek mitigating evidence concerning pos- *13 psychological sible physiological and defects. Specifi- cally, defendant argues that counsel was ineffective (1) because he failed to obtain the court file of defen- juvenile conviction, dant’s which contained a fitness (2) report a psychiatric and report; failed to obtain a psychological evaluation response in to the information (3) juvenile file; contained in the court failed to obtain a neurological evaluation to determine if defen- dant had brain damage as a result past substance abuse. post-conviction
At the hearing, a psychiatrist, Dr. Risolo, regarding testified psychological her evaluation post-conviction to the hearing. Dr. Risolo testified that defendant personal- had antisocial ity disorder and mild neurotic depression. She further testified that defendant’s substance abuse might have contributed to some neurological disfunction but stated that no disfunction had ever conclusively been proven.
We find that defendant prejudiced was not by counsel’s failure to present this evidence during the sentencing hearing. Given the overwhelming aggravat- ing evidence and the relatively mitigating weak evi- dence, evidence of personality defendant’s dis- antisocial
278 in a have resulted would not depression
ordеr and v. People Montgomery, than death. See sentence other (1986) (death de 517, penalty appropriate 112 Ill. 2d 533 personality disorder antisocial spite disturbances). Further and emotional mental extreme unproven possible, more, testimony about Dr. Risolo’s insuf would have been also neurological disfunction hearing. sentencing of the change the outcome ficient to Ill. 2d at 533. Since defendant Montgomery, 112 See evidence, this present failure to prejudiced the claim of ineffective assis of this we affirm dismissal Erickson, at 90. 161 Ill. 2d tance. Lesser Sentence
5. Codefendant’s (Fla. State, v. citing Messer Defendant, 330 So. 2d failing to 1976), was ineffective that counsel argues circumstance, nonstatutory mitigating as a argue, Thomas, codefendant. As given lesser sentence rejected observes, argument was precise this the State Ill. 2d 270-72 People Page, v. by this court (1993). of this claim the dismissal Accordingly, we affirm petition. of the Argument Closing 6. Prosecutor’s was ineffec- that defense cоunsel argues Defendant request object prosecutor’s failed to tive when he Defendant sentence. "recommend” death jury jury misled improperly statement argues *14 the death imposing for responsibility regarding its observes, is this issue correctly the State As penalty. and is appeal raised on direct it was not waived because during the presented any new evidence based on not However, as defen- insofar proceedings. for review preserved the issue is argues dant to the due appeal direct raised on it was not because counsel, will review the we appellate ineffectiveness claim.
279 not, may closing argument, The State mislead the jury to believe that the ultimate responsibility for defendant’s death penalty rests elsewhere. Caldwell v. 320, 231, 472 Mississippi, U.S. 86 L. Ed. 2d 105 S. Ct. (1985). allegation made, When such an is rel "[t]he *** inquiry evant is whether in all consideration of facts circumstances, jury regard State has misled the ing sentencing single its role. No necessarily factor is (1992). Flores, dispositive.” v. People 153 Ill. 2d Therefore, in order to determine whether the argument improper, was we must look at the closing argu State’s ment as a whole. during two instances her closing argument,
prosecutor jury asked the "impose and recommend the death sentence.” We find that those statements did improperly jury mislead the because use of the word "impose” adequately any counteracted improper effect resulting from use of the word "recommend.” As her final jury, stated, words to the prosecutor "We ask you to recommend that the death sentence be imposed. you.” Thank jury The not misled this statement because, either only earlier, a few moments the prosecu- expressly tor had acknowledged weight jury’s of the responsibility for the death penalty, recognizing "that responsible for people [imposing and recommending the death penalty] easy is not an thing.” Furthermore, jury clearly instructions apprised jury respon- of its sibility for imposing the penalty. death cirсumstances,
Under these we find that the State did not improperly jury’s diminish the sense of responsibility. Since the State’s closing argument misleading, was not appellate counsel was not ineffective failing to raise the issue on appeal direct and the issue is therefore waived. Accordingly, we affirm the trial court’s dismissal of this claim of the post-conviction petition.
7. Closing Argument Defense’s Defendant argues that counsel was ineffective *15 280 phase
closing argument during the second of the sentencing hearing merely upon the because he focused arguing mitigating penalty generally cir without death appeal, this court stated: "Defen cumstances. On direct complains at that he received ineffective assistance dant hearing stage penalty in that of the death second *** jury argument to the defense counsel confined justification plea to take a human life. that there is no Lear, Ill. 2d at are meritless.” Defendant’s claims appeal direct this issue was addressed on 151-52. Sinсe may relitigated during judicata not be it is now res appeal. affirm the. circuit this We thus this claim. court’s dismissal of Aggravating Evidence II. argues a crime he commit- that evidence of
Defendant aggra- improperly Collinsville, Illinois, used as ted vating argues First, that he was de- defendant evidence. process, counsel, and his effective assistance of nied due right punishment when cruel and unusual to be free from was admitted in the ab- crime evidence of the Collinsville requested for the Collinsville crime. Sec- counsel sence of argues effective assis- ond, that he was denied object to counsel failed to tance of counsel when defense process grounds. the evidence’sintroduction on due any challenge responds to the intro- The State is res the Collinsville crime duction of evidence of during appeal, judicata af- because, this court direct this evidence when it stated: firmed the use of in allow trial court erred asserts that "Defendant unadjudicated crimi jury еvidence of ing the to consider sentencing stage during of the the second nal conduct previously held that hearing. disagree. court has This We of other showing commission the defendant’s evidence though admissible even acts of misconduct is crimes or such prosecuted or convicted for was not the defendant (1983), 98 Ill. 2d 460-61.” People v. Ramirez conduct. Lear, at 152-53. 143 Ill. 2d again issue cannot be raised here agree We that this and thus affirm the trial court’s decision to dismiss this claim.
CONCLUSION above, affirm judg- For the reasons stated we *16 ment of the circuit court. We direct the clerk of this 21, Wednesday, May court enter an order setting 1997, as the date on which defendant’s sentence of death is to be carried out. The defendant shall be executed in (West provided by manner law. 725 ILCS 5/119 —5 1994). The clerk of copy this court shall send certified of the mandate in this case to the Director of Correc- tions, Center, the warden at Stateville Correctional the warden institution where the defendant is now confined.
Affirmed. MсMORROW, JUSTICE concurring in part and dis- senting part: in
I concur in majority opinion to the extent that it murder, affirms defendant’s attempted convictions for murder, robbery. However, and armed I join in the dis- sent only of Justice Freeman with respect analy- to his sis and conclusions on strategy during the issue of trial voir dire. FREEMAN,
JUSTICE dissenting: appeal this from the denial post-conviction relief, defendant, petitioner, argues as that he was denied effective assistance of counsel for several reasons. I take issue with majority’s analysis and resolution of at least two of defendant’s claims. Because there is an unreasonable risk that unfairly this defendant was death, sentenced to I dissent.
Voir Dire
Defendant
claims ineffectiveness
in that his trial
dire,
during voir
counsel,
failed to raise the issue of
accordance with Turner v.
in
racial bias to the venire
Murray, 476 U.S.
27,
90 L. Ed. 2d
In his asserted he had make a Turner however, inquiry; requested counsel majority, finding counsel refused. The that defendant’s testimony to that effect was contradicted testimony, holds that issue was thus "[t]he counsel’s credibility,” and the trial court did not find de one of at The point. fendant credible on this 175 Ill. 2d 270. *17 court majority then holds that because the found counsel, request defendant himself made no such of inquiry. make 175 Ill. required counsel was not to the 2d at 270. concerning the law how the majority
The misstates invoked. Turner does not to a Turner right inquiry is defendant, represented who is contemplate counsel, will, such an place, in the first be aware of will, entitlement, in the second or that the defendant make attorney that his such place, specifically request the request That a himself fails to inquiry. an defendant Turner voir dire does him or her of his deprive not an Many rights of the of inquiry. entitlement to such an accused, rights, are such including constitutional signifi- comprehend their full only experts trained can cance. onto majority effectively grafts
By analysis, the its 283 the requirement a new the Turner entitlement —that However, inquiry. request as client must "a defendant accused merely capital Turner holds that prospective entitled to have an interracial crime is questioned jurors informed of the race of victim *** Also, a defendant cannot on the issue of racial bias. the venire on complain judge’s question of a failure to specifically has prejudice racial unless the defendant requested inquiry.” such an Illinois,
Significantly,
the Court
in
v.
504
Morgan
(1992),
492,
in
719,
The
next reasons that since defendant
such
request
inquiry,
the Turner
whether to conduct
*18
strategy,
subject
an
became a matter of trial
not
inquiry
(see
analysis
to the Strickland
Strick-
ineffectiveness
Washington,
668,
land v.
466 U.S.
80 L. Ed. 2d
(1984)).
S. Ct. 2052
Certainly, questions posed what will on be voir dire may properly strategy. fall of within bounds trial inquire However, counsel’s failure to on Turner racial strategic merely bias was not converted to a decision request inquiry. because defendant failed to such an Strategic decisions are those decisions which flow from particular knowledge expertise. Thus, counsel’s and particular while a decision on whether to voir dire on is- may strategy, sues be a matter of trial the absence of might just voir dire on such issues well be a as matter of ineptitude, inexperience, preparation lack of unfamil- or iarity legal principles. case, basic such the fail- ure to voir dire amounts to ineffective assistance of § counsel. 1 ABA Standards for Criminal Justice 4—5.2 (2d 1986). Supp. ed. significant
Here, it is that counsel had been admit- only two-year being period ted to the bar a assigned very capital this, first, his case. While the legal experience extent and nature of counsel’s alone do necessarily support of ineffective conclusion assis- particular significance tance, those facts take on in the evaluation of a Turner claim. This is so because voir pursuant capital dire to Turner is available to defen- only. support dants Unless there is evidence here to finding request that counsel’s failure to a Turner in- knowledge exper- quiry particular flowed from his concerning purpose of the Turner in- tise nature quiry, upon which to conclude there can be no basis failing strategy. that such a was the result of trial Proper requires than resolution of the issue more cursory necessarily thorough consideration; it involves and consideration counsel’s af- review testimony in the conduct of fidavit and context upon my review, voir dire. Based I believe that the rec- *19 was unfamiliar that counsel the conclusion supports ord failure to voir dire and his Turner entitlement with the therefore, strategy. was, not a matter that, during voir affidavit, first states counsel there was dire, juror whether potential he asked each cause him or her defendant that would anything about asking that purpose His in prejudiced. or to be biased prejudice racial to address the issue of question was that black. Counsel next states because defendant was question a of the ve- asking reason for not he "had no would race of the victim dire whether nire on voir prejudiced or causing a in them to be biased be factor might states that he Finally, Mr. Lear.” counsel against asking question with defendant have discussed race, and racial because of the victims’ concerning bias get the question that such a would may he have said they and that would be there three jurors "pissed off” on the preferred harp have not to may weeks and he thought race because he have might victims’ harmful, he did not recall. although was more concerning voir dire only The definitive statements (1) are that: he was concerned in counsel’s affidavit (2) failing racial he had no reason about bias The remainder of counsel’s request inquiry. the Turner might thought what he have concerning statements only characterized as regarding inquiry a Turner can be equivocal tentative and at best. testimony subsequent direct examination
Counsel’s with the hearing is consistent at the being shown his affida- in his affidavit. After statements in vit, concerning inquiry the Turner counsel testified in manner as his statements equivocal much the same prosecutor’s Particularly telling are his affidavit. counsel’s answers questions cross-examination thereto. Now, Attorney]: did State’s [Assistant Dobrinic
"Ms. well, relationship your you in the course of ever have— did express [defendant] ever might concern that he be an being African-American predomi- tried in a nantly county? Caucasian Grigsby Attorney]:
Mr. [Defense I am sure that there would regarding have been some Usually discussions that. subject up represented came whenever I African- county. Americans in this Grigsby, Ms. Dobrinic: Mr. as a trial attorney and under the being Effing- circumstances that we were ham, Illinois, defendant, you did think it was proper jurors to find out attitudes toward race —or let me you this. Did think it importаnt to find say out their attitudes towards race? *20 Well, Grigsby: yes, thought
Mr. I important. that was you Ms. you by your Dobrinic: Do feel like did that voir jurors? dire of these Yes, Grigsby:
Mr. I brought felt that the race issue was during by out questions. voir dire you necessary Ms. Dobrinic: Did find specifically it to jurors you prejudiced ask against are African-Americans? Grigsby: No, no, jurors Mr. because the understood the question any prejudice and would they volunteer had.” things Four are apparent from counsel’s affidavits and testimony and none of them suggest strategy with (1) respect to Turner: counsel was concerned about racial (2) prejudice in predominantly Effingham County; white counsel had no reason failing request to in- Turner (3) quiry; "might counsel have” inquire chosen not to regarding "might Turner racial bias it because have” (4) been more harmful and counsel believed inquiry concerning prejudice toward the defendant was suf- prompt ficient to a volunteer concerning any admission type of racial bias.
Based on testimony, counsel’s statements and I request would find that his failurе to a Turner in- quiry was in fact trial strategy. Counsel stated that he was concerned about prejudice predominantly white Effingham County. So concerned about racial bias was those and excused questioned he specifically counsel on based judge partially jurors who would particular ferret- actively inquiring Though race. of to the commencement any juror prior biased ing out chosen not might he have trial, offers that counsel now crime bias concerning interracial additionally inquire to harmfully focused might have inquiry such an because that fact. jury’s attention on the tentativeness disregard if I could Even reason, counsel’s concern given counsel’s stated rea- racial bias the respect dire with conduct at voir on juror each validity. questioned Counsel son lacks an African-American toward defendant as racial bias inability an based any juror expressed who and excused unlikely therefore impartial. to be It is upon race dire, that a Turner voir would believe this same counsel dire, be harmful racial bias voir would general like his similarly ef- not have had the desired or that it would any to also excuse affording opportunity fect of him the the defendant juror judge partially who would because white. was black and the victims were is, me, harmful effect reason Defense counsel’s First, juror each for additional reasons. questionable presence any individually, dired out of the was voir Secondly, jurors individual were potential jurors. other on the issue of race already during focused voir dire *21 Third, the record does not prejudice inquiry. the race of the proposed withholding reveal that counsel jury the once trial commenced. victims from cross-examination Finally, concerning counsel’s suggests, as counsel testimony, plausible, it is not concerning dired jurors, they because had been voir defendant, would have volunteered prejudice toward would nothing which any prejudice. Turner There dur- any to offer such information promрted juror have and in in both his affidavit ing voir dire. Counsel stated his testimony that jury did not learn of the victims’ race until after trial By then, had course, commenced. it was guard too late to against the risk of the kind of partiality contemplated by Turner. view, my if in fact counsel was concerned that
racial bias might hinder jury’s ability judge to impartially, Ias believe defense counsel in this case was, genuinely concern would have logically prompted an informed counsel to utilize every known legal tool to eliminate that bias. Given counsel’s concern and conduct on the issue of defendant, bias toward coupled with equivocation why as to he “might” not have additionally conducted a Turner inquiry, I believe that counsel’s inquire failure is more reasonably explained aas lack of unfamiliarity awareness or with Turner and defendant’s inquiry entitlement to an regarding interracial crime bias.
Further, majority of this court can place little reliance on disposition court’s of this The post-conviсtion claim. judge, in rejecting defendant’s voir dire claim, made the following findings: jurors voir dired and were asked questions were individually indirectly which would detect against bias the defen- (2) dant for otherwise; race or defendant was consulted (3) personally juror; as to each jurors several were (4) bias; excused because of racial the evidence does not support the fact that specifically requested any and, particular question did, even if he there is no reason to jurors’ believe the responses any would be dif- ferent than those reached the questions they were asked. appears
It the post-conviction judge, like the majority, misperceives both the import require- and the Turner. ments under Inquiry respect prejudice against a defendant as an African-American is not the by Turner inquiry important is, therefore, deemed *22 point In of requirements. satisfy Turner’s to insufficient in a capital not fact, required racial bias is voir dire on to be of happens because the defendant simply case to address that Turner seeks African-American descent. cloud which would prejudice of racial particular brand Thus, crime interracial. when the is jurors’ objectivity toward defen- inquiry concerning bias while counsel’s racial preju- who harbored jurors those dant eliminated descent, same in- the defendant’s upon dice based that bias which to detect quiry was ineffective is African- the defendant exists when potentially American the victim is Caucasian. made case, race known
In the victims’ was this jury impaneled had been jurors to the until after the dire re- and trial had commenced. Counsel’s voir with an African- as spect prejudice against to under nothing satisfy requirements American to did safeguard against Turner interracial crime bias. or conclude, Further, as simply impossible it is did court, jurors’ responses pursu- had in- ant to Turner would not been different have made. quiry been sum, request I would that counsel’s failure to find on any particular
Turner voir dire not based strat- еgy, capital rather on with cases and inexperience but familiarity his lack with the Turner entitlement. Fur- of ther, own concern and light expressed of counsel’s Effing- bias in potential conduct racial regarding any degree with County, ham this court cannot conclude that, of the inter- certainty jurors once the learned offenses, ability to be racial their nature these I would therefore find impartial was unaffected. claim particular has been on this Strickland satisfied sentencing hearing. and remand for new The Defense Shooter theory was that his defense at trial Defendant’s codefendant, separately Randy Thomas, tried and not defendant, shot both victims. Defense counsel failed to present this at defense trial.
Defendant and Thomas were both charged *23 commission of these offenses. Defendant is shorter in than codefendant, stature is his trial, Thomas. to Prior Bishop, surviving Bob the victim a and material witness case, in this a reporter, made statement to newspaper (Thom- Price, Jacqueline that the taller the two men as) entered the store first and while the shorter man (defendant) Bishop question regarding distracted with directions, the man Bishop. taller shot did Bishop McAnarney, nonsurviving see who shot the victim in involved these offenses. trial, Bishop
At testified that defendant entered the Thomas, station asked for the rest who room. was defendant, taller than then Bishop asked far it how was Chicago. to A few Bishop moments later was shot the neck.
Defense counsel did not impeach Bishop with his Further, reporter. inconsistent statements to the counsel did not present testimony either or an offer of proof concerning reporter. the made statements to the Defendant failings, deprived asserts these which trial, presentation him of the of his defense at consti- tute ineffective assistance of counsel. majority, recalling Bishop’s testimony,
The trial impeach that even had been concludes counsel able to no Bishop’s testimony, different result have would In yielded. majority the support, Bishoр *24 station taller the second one Bishop in he his affidavit that does not know who states shot him. by Bishop, one
We have two accounts of the event given through testimony post- in trial and another suggests the conviction affidavit: one which that taller sug- man, Thomas, which was the shooter another gests man, defendant, the that the shorter was shooter. Bishop’s unequivocal So of much identification sought Further, that Thomas as the man who directions. gun” in his waistband defendant was seen "the necessarily support that he was does not conclusion Additionally, had the fact that defendant the shooter. supports a conclusion that the murdered victim’s wallet victim, not that he also shot the victim. he robbed the although Finally significantly, there was testi- mony blood, human there that defendant’s shoe bore testimony that the blood matched was no to the effect the of blood either of the two victims in this crime. Importantly, guilty defendant was found of a fatal shoot- ing had only prior which occurred weeks to this offense. is, therefore, It conceivable that the blood on defendant’s shoe was from incident. noting,
Also worth during deliberation, jurors the asked to have Bishop’s testimony reread to them. That request denied, was and the jury instead tendered the following question, "Bob question Bishop’s concerning of identity man Chicago.” who asked distance to Fur- ther, although had impeachment there been no testi- mony concerning heights the relative of each defendant and where each in stood relation to Bishop at time of shooting, closing argument, both the defense State, rebuttal, and the in its argued points those to the jury.
Counsel his affidavit states he aware of statements; Bishop’s inconsistent however, he did not interview to Bishop prior trial. At trial he did call (see as a Bishop 238), witness he, Ill. 2d R. nor did cross-examination, on question Bishop on the issue of height relative of the assailants. light concerning defense, all of the facts this I conclude, am hard-pressed to the majority, as does presentation shоoter defense difference, would have made no with re- particularly spect sentencing. There was no direct evidence that shooter; defendant was the not even who was Bishop, present offense, during the course of the knows who McAnarney. shot him or jury, by question The its concerning Bishop’s testimony hearing and after con- flicting arguments defense, on shooter appears have placed particular significance on that during issue *25 its deliberation.
Incidentally, appeal, on direct we held that the of reporter’s potential impeachment exclusion inconsistency in was no as there testimony proper, was for the justify the need testimony that would Bishop’s in any error the exclusion Further, we held that same. failure to was for counsel’s testimony waived of such People v. in motion. See post-trial the claim his include (1991). it Significantly, was Lear, 143 2d Ill. who, failed elicit the place, in first trial counsel Bishop which would have from inconsistent statements Secondly, reporter’s testimony. a provided basis post-trial mo who then filed it defense counsel light particular issue. tion which omitted this offenses, major in these as the participation defendant’s concludes, even had the shooter defense ity assuredly so no have been dif there would presented, perhaps been However, guilt. given that ferent result on issue was the question a as to whether the defendant there is shooter, the issue jury considered apparently further, deliberations, significant in mindful its death, I only juror against it one to vote cannot takes any of the presentation conclude with assurance that might have altered the result at shooter defense sentencing. Notably, presented by two in affidavits jurors, paper each one states that an initial ballot yielded an 11-1 vote on the issue of death. performance,
As a result of counsel’s defendant was presentation Although, no at trial. left with of defense jury, can never conclude with the case of we might result certainty that anоther have absolute that, resulted, here but for probability there is sufficient defense, present shooter counsel’s failure I might not have death. would received therefore find that Strickland has been satisfied re- claim. spect to defendant’s shooter defense
Conclusion apparently court satisfied majority The this is and the present the failure to the shooter defense *26 failure to voir dire on the issue of interracial crime Effingham racial bias "in County” prejudicial had no ef- fect. juror absence of affidavits from each to that effect, I am a can, at loss as how the majority assurance, such reach this conclusion. A new sentencing hearing only is the available means which this court can assure this fairly defendant was sentenced to death. In the absence of a a judgment, such I dissent.
(No. 78457. THE OF ILLINOIS, PEOPLE THE Appel- STATE OF
lee, PECORARO, v. JOHN Appellant.
Opinion 6, February Rehearing denied filed 1997. March 1997. notes unequivocally as the man stayed identified Thomas who Chicago. in front of him asked the distance to Fur- ther, gun witnesses tеstified defendant had the gas his waistband as he left the station the rob- after bery; picked up by when defendant was he had police the pocket murdered victim’s wallet in his and there major Finally, the shoe. dried blood on defendant’s was ity Bishop explained redirect, that he was on notes that reporter. making the statement to while distracted Ill. at 272. 2d majority is that the same I as assured as am not op- given yield been had defendant result would Bishop’s post- present portunity his defense. shooter state- affidavit, which is consistent conviction testimony. reporter, his trial contradicts ments to the although Bishop that, he has dif- affidavit, states his ficulty remembering shooting, it is his details of person station, and who entered the that the first belief was, is the one who shot bathroom who asked where the sought person, directions, him, who while second reporter] Bishop’s [the "I told attention. distracted something one, me tall it seemed to at the about the pretty one in was tall.” It was time that Bishop’s the first recollection that the first defendant enter than who entered.