People v. Mahaffey

154 concurring part HARRISON, JUSTICE

CHIEF dissenting part: agree not murder convictions should I that McNeal’s my however, of death view, his sentence disturbed. be For the reasons set forth cannot be allowed to stand. my partial partial concurrence and dissent People (1998), penalty death law Bull, Ill. 2d 179 the Illinois eighth and fourteenth amendments violates the (U.S. Const., VIII, amends. United States Constitution XIV) I, 2, of the Illinois Constitution and article section 2). (Ill. §I, sentence of death 1970, art. McNeal’s Const. and he should be sentenced therefore be vacated should (West l(j) imprisonment. ILCS a term of 5/9 — 1994). murdering guilty found Because McNeal was imprisonment term of his must victim, more than one 8—l(a)(l)(c)(ii) (West natural life. 730 ILCS be 5/5 — 1994). (No. 85215. Appel- ILLINOIS, THE STATE OF

THE PEOPLE OF Appellant. MAHAFFEY, lee, v. REGINALD Rehearing denied Opinion October 2000. filed January 2001. HARRISON, C.J., concurring in part dissenting part. John E. Horn and Kelley, Tinley Park, H. Elizabeth of and the Defender, Office of the State of Appellate Chicago, for appellant. Ryan, General,

James Attorney E. of Springfield, (William Devine, Richard A. of Attorney, State’s Chicago Browers, General, L. Attorney Assistant of Chicago, and Goldfarb, Renee Judy William Carroll and DeAngelis, L. counsel), Assistant State’s Attorneys, for the People. Stone, Jed The Chicago, amicus curiae Cam- to End paign Penalty. the Death

JUSTICE McMORROW delivered the opinion court: (725

Pursuant to the Post-Conviction Act Hearing (West 1994)), defendant, ILCS et seq. Reginald 5/122—1 Mahaffey, petitioned County circuit court Cook defen The trial court dismissed relief.

post-conviction conduct without petition amended post-conviction dant’s also filed a motion Defendant evidentiary hearing. an ing to sec pursuant and sentences convictions to vacate his (735 ILCS of Civil Procedure 2—1401 of the Code tion (West 1996)) evidence, that new alleging 5/2 —1401 asser record, previous defendant’s supported outside a result of torture at the tions that his confession 2 police to Area assigned officers Chicago police hands of this mo The circuit court also dismissed headquarters. Because defendant evidentiary hearing. an tion without murder convic underlying to death for the was sentenced Ill. 2d R. court. 134 tions, directly to this appeals he 651(a). follow, judg affirm the we For the reasons the circuit court. ment of

BACKGROUND evidence pre detailed the previously court has This ap on direct opinion trial our at defendant’s sented (1995). Therefore, 2d 1 People Mahaffey, 166 Ill. peal. necessary are to the facts which only we state here those 2, 1983, defen On September of this appeal. disposition arrested brother, Mahaffey, were Jerry and his dant 1983, 29, murders August officers for the Chicago police mur attempted and the and Jo Ellen Pueschel of Dean On December son, Richard. 11-year-old der of their state suppress a “motion to counsel filed defense statements ments,” post-arrest that defendant’s claiming result of either were “the direct admissions to police coercion.” or mental physical the time of that at alleged the motion Specifically, to Area assigned arrest, officers several John and Detective Byrne John 2, including Sergeant making into statement Yucaitis, induced him, on already flipped had him that “his brother telling he would police, to the a statement give and if he didn’t for le- any chance alone” and lose electric chair to the go addition, niency. the motion stated that the arresting defendant, officers “did beat the to the causing injuries ribs, defendant’s and this done to beating was induce a statement.”

A on hearing suppression motion was in conducted February 1984. The sole witness called the State in its case chief was Miller. Miller Irving that, testified in his then a capacity felony review supervisor with the Cook County Attorney’s State’s of- fice, he met with defendant at Area 2 police headquarters on the 2, morning September 1983. According to Miller, he to spoke an room at interview ap- 9:30 proximately a.m. and advised defendant of his Mi- randa rights. After defendant indicated that he under- stood his rights, defendant a gave statement implicating himself in the crimes which occurred at the Pueschels’ Miller apartment. testified that this statement ap- lasted proximately minutes, and that Detective Yucaitis was also present the room during the time gave this statement. Miller room, then left the returned one- half later, hour and again spoke with defendant a short time. According Miller, Detective Yucaitis was present this during conversation as well. Miller testified that he next saw defendant at approximately 11:30 a.m. in a different, larger interview room at Area at which time defendant agreed to give court-reported statement respect with his involvement in the crimes at the Pueschel home. Miller stated he initially alone spoke with defendant for 15 minutes concerning procedures for making statement, a court-reported and also informed defendant of the questions which Miller would ask defen- dant interview. Miller testified that he also inquired of defendant concerning his treatment by po- lice, and that defendant made no statement himto he was beaten or threatened. Miller testified at the Yucaitis, conclusion this brief meeting, Detective As- Velich, sistant State’s Attorney George and a court reporter room, arrived at the interview and defendant gave his confession. Defendant signed court-reported statement between 3 and 4 p.m. day. same Miller testified that no one struck defendant his presence, coercion, used mental or threatened defendant with the electric chair.

Defendant testified on his own He behalf. stated that he was arrested at his apartment approximately 4:15 a.m. on the morning September 1983. Defendant arrived, stated that when the police he was on the lying floor of his bedroom. The officers him instructed to get and he taken up kitchen, into the where he was asked his name. Defendant testified that when he one of the him responded, officers kicked in his groin. Defendant then fell to the floor and was kicked in his and in the ribs side of his head. Defendant stated that he was struck three times the by his apartment defendant, before he was taken outside. According to the was administered beating by plainclothes officers, two one whom defendant curly described as dark- having hair, brown who in weight defendant, was heavier than and who was between 5 feet 11 inches and 6 feet inches Defendant height. clearly testified that he did not see the second officer because he when was struck the officer, However, first he fell facedown. defendant stated the officer second was shorter than the officer with curly hair, brown and weighed somewhat over 200 pounds.

Defendant further testified that the tried to officers him as he was the trip going up stairs from his basement sidewalk, to the and that apartment officers decided among themselves that defendant would transported be to Area 2 by curly the detective with brown hair who had him in beaten Defendant testified that he apartment. car, in the back seat of the placed two detectives seats, sat the front with the brown-haired detec- curly sitting defendant, tive on the side. to passenger According during the ride to Area this detective turned around and struck him once in the forehead. his

Upon arrival Area police headquarters, testified, he was in a small interview placed room, he where was handcuffed to a in the ring wall. Defendant room, stated while he was in that he was repeatedly hit the same detective with curly brown hair who had beaten him at apartment his and struck him in the car. According defendant, to when the detec- tive did not like defendant’s to reply his he questions, would strike his midsection with a flashlight, and hit defendant in his back and across his shoulder blades. Defendant stated that a plastic bag was also placed over his head and that the same detective “started bumping the back of [defendant’s] head against concrete wall.” defendant, According the detective with the curly brown hair was the only officer who actu- ally hit him at Area although there were other officers in the interview room at various times.

Defendant testified that the only reason he made statements to the police was because he was in fear his safety. Defendant stated that he was told by police that unless he murders, confessed to the he would die. According defendant, the him officers also told what to say confession. Defendant stated that he informed Assistant State’s Attorney Miller about beatings during their first meeting, but that Miller left the room after telling defendant that he only was there to take defendant’s statement. According defendant, to after exited, Miller the beatings began once again.

Defendant testified that he stated during his court- reported confession that he was not beaten by police because he wanted to any avoid further abuse. addi- tion, defendant testified that he inwas fear for his safety

because the curly same detective with dark-brown hair who had him previously beaten was also in the present room, and that this same had previously detective told Miller, defendant that in his role as a State’s Attorney, could not safety. assure defendant’s According to defen- dant, after he gave court-reported statement, his Miller it, requested defendant read and defendant replied that he was unable to read. Defendant testified that Miller read him portions of the statement and instructed on how to correct in misspellings the text. Thereafter, according defendant, Miller told defendant to initial and sign statement. Defendant testified that beatings ceased once he gave state- court-reported ment.

Defendant further testified that after he gave his statement, a court-reported was called paramedic because he began vomiting. Defendant stated that he told the that he paramedic ribs, had a headache and pain but admitted that he did not tell the that he paramedic had been kicked the head or in the ribs.

The testify next witness on behalf of defendant was Morriell Redmond. He that he stated had rented de- fendant a room his basement apartment and that he had opened the door to the on September 1983. He testified he did not see the defen- police hitting dant away area, because he was from the kitchen facing but he heard defendant “hollering” “screaming.” He stated that said, “Don’t hit me repeatedly However, no more.” Redmond admitted that he never informed anyone about what he overheard.

The State called several witnesses rebuttal. Detec- tive Charles Grunhard testified that he one of sev- eral apartment officers who went to defendant’s on the morning 2. remained September Although Grunhard in area with Morriell Red- apartment’s living-room mond, Byrne he testified that he observed Sergeant towards the rear immediately proceed Detective Yucaitis area of the then observed apartment. bedroom Grunhard Byrne Yucaitis and defendant out of the bedroom bring and into the kitchen area. Grunhard testi- apartment’s fied that he never heard defendant or scream while yell in the apartment.

Detective John Yucaitis testified that he and Sergeant Byrne were the first of to enter many police officers on the 2. apartment morning September stated that he and Sergeant Byrne Yucaitis were also the first two officers to enter defendant’s bedroom. Defen- lying floor, dant was on the and a loaded Magnum .357 revolver was on a stand night near where defendant was lying. According Yucaitis, to he defendant a gave quick search, him pat-down picked and took defendant into up, area, kitchen apartment’s where defendant was ad- vised of his Miranda rights. Yucaitis testified that defen- statement, dant then to began give implicating himself in the crimes at the However, Pueschel residence. Yucai- tis admitted that he filed in report connection with this did case not reflect that defendant made such a state- ment at the apartment. Yucaitis testified that he re- mained with defendant from the time defendant was kitchen, into the brought and denied that he struck or kicked defendant in the apartment.

According Yucaitis, Detective after exiting the he apartment, in the placed back seat of a po- lice vehicle and alone in the car with defendant until he picked up partner, Leracz, Detective Edmond another Thereafter, location. all they proceeded to Area 2. Yucaitis testified car, that defendant confessed but Yucaitis stated that he did not record this confession in his report. Detective Yucaitis denied defen- striking dant while he inwas the vehicle.

Detective Yucaitis further testified that they when arrived at Area he took defendant into room interview 1,No. and shackled defendant’s left wrist the wall. Yu- caitis testified that when he was alone with defendant room, defendant again confessed to the crimes. Yu- caitis stated that Assistant State’s Attorney Miller then arrived. struck, Yucaitis denied that he kicked or hit de- fendant at any time while defendant was at Area 2. Yu- caitis also denied placing a plastic bag over defendant’s head, or instructing defendant say what his confes- sion. Yucaitis testified that he was “baby- defendant’s sitter” from the time defendant arrived at Area 2 until gave his court-reported statement. Yucaitis stated that majority “[t]he of the time I If was with him. him, I wasn’t with he was alone.” Detective Edmond Le- racz also testified on behalf of the State. Leracz initially observed defendant in the back seat of a vehicle police when Leracz’s partner, Yucaitis, Detective him picked up from a location on west Chicago’s side. Leracz testified time, that at that defendant’s hands were cuffed behind him, and that Leracz changed the handcuffs to the front. Leracz seat, then sat the vehicle’s passenger and Stated that at no time did he strike defendant. Leracz testified that he had no knowledge whether defendant was struck to the time prior he entered the vehicle. Leracz also testified the ride to Area confessed to the murders, Pueschel although Leracz admitted that he did not record this confession in any of his reports.

The State Miller, recalled who a Irving testified that Polaroid photograph was taken of defendant on Septem- 2, 1983, ber at 6:35 approximately to 6:40 p.m. Chicago police department evidence technician. Miller described the photograph showing defendant seated table, dressed, behind a fully injury and that no to defen- dant was Also apparent. testifying respect with Muralles, lack of injuries was Robert an emergency medical technician A County jail. Cook history prepared medical and examination sheet physical 3, 1982, on indicated that defen- September Muralles bruises, cuts, or swelling dant exhibited no abrasions.

The Sergeant Byrne, State next called John Kurschner, Benkowski, William Raymond Detectives Grunhard, Charles who all testified that defendant was physically not abused on the apartment morning 2. September testimony, At the conclusion of the the circuit court denied defendant’s motion. suppression Specifically, judge circuit stated that his decision down to a “boil[ed] The court found question credibility.” circuit testimony of the officers and former Assistant State’s Miller far Attorney more credible than that of defendant and Morriell Redmond. The court noted that all of the in the apartment officers testified that at they observe, of, no time did any or become aware beat- ings of defendant. The court also noted that Detectives Yucaitis and Leracz they testified that did not strike de- fendant in the way car on the to the police station.

As to the alleged beatings at Area the circuit court observed that defendant testified that the officer who hit him in the kitchen of apartment his and in the car police was the same officer who hit him with a a flashlight, put head, bag over his and beat his head the wall in against an interview room at Area 2 police headquarters. The circuit court concluded that the evidence showed that only officer who had custody of defendant at Area 2 Yucaitis, and, therefore, was Detective the only person who could struck have defendant was Yucaitis. Noting vehemently Yucaitis denied defendant’s allegations, the circuit court concluded that judge “Detective Yucai- testimony tis’ is far more than the self-serving credible of statements the defendant this and found regard,” that “Detective Yucaitis did not beat the defendant at any station, time while he in the police did not hit

him with a flashlight, did not put bag over his head and did not hit his head against wall.” of support conclusion, the circuit court also found it significant that former Assistant State’s Attorney Miller asked de- fendant outside the presence officers, as well as during statement, defendant’s court-reported whether he had been abused police defendant replied that he had Finally, not. the circuit court also noted in the course of its ruling that defendant had never complained to anyone at the station torture, about the and that there was no physical evidence injury. The circuit court then ruled that the post-arrest statements made by de- fendant were admissible trial.

Defendant was tried aby jury in 1985 and was convicted of the murders of Jo Ellen Pueschel, and Dean and of the attempted son, murder of their Richard. De fendant was guilty also found of several other felonies re lating to the break-in at the Pueschel’s apartment. At a separate sentencing hearing, jury determined that defendant was for the eligible death penalty, and found that no factors mitigation were sufficient to preclude imposition of the death sentence. Defendant was sen tenced offenses, to death on the capital and received terms imprisonment his noncapital convictions. On direct this court appeal, reversed defendant’s convictions sentences, and remanded the cause to the circuit court for a new trial and sentencing hearing. People v. (1989). 128 Ill. Mahaffey, 2d 409-12 This court determined the circuit court’s failure sever defendant’s trial from that of his brother, codefendant Jerry Mahaffey, constituted reversible error. remand,

On defendant expressed his desire to repre- sent himself during all subsequent The proceedings. circuit court conducted a hearing, fitness and found that Thereafter, was fit to stand trial. formally right waived his to the assistance of counsel for sentencing the trial and the capital of both purposes court, however, public two appointed The circuit hearing. during advisors” “legal to act as defendant’s defenders legal questions. to answer proceedings 1991, and, Defendant’s second trial occurred found defen jury again proceedings, conclusion of the Pueschel, Dean of the murders of Jo Ellen and guilty dant Pueschel. The and of the murder of Richard attempted invasion, home rape, also convicted defendant of jury child, to a residential robbery, battery armed aggravated (over $300). After a sentenc separate and theft burglary, eligible that defendant was jury found ing hearing, no mitigating for the death and that there were penalty, of the circumstances sufficient to preclude imposition to death for death sentence. Defendant was sentenced convictions, the murder and received an extended term murder years’ imprisonment attempted of 60 for the of Richard The also judge imposed conviction Pueschel. 30-year invasion, consecutive for home armed sentences and sentences robbery, rape. Defendant’s convictions People were affirmed on direct this court. v. appeal (1995). Thereafter, 166 Ill. 2d 1 the United Mahaffey, States Court denied defendant’s for a Supreme petition Illinois, 1002, of certiorari. Mahaffey writ 516 U.S. (1995). L. Ed. 2d 116 Ct. 547 S. 30, 1995,

On pe- June counsel filed a post-conviction relief, tition for that defendant’s post-conviction alleging rights constitutional were violated his trial on direct different appeal. post-conviction first, second, counsel filed a and third supplemental peti- 17, 1997, On post-conviction September tion for relief. court conducted a to determine hearing circuit post-conviction proceed- whether defendant was fit for At the conclusion of the the court ings. proceedings, date, found defendant fit. On that leave was granted be to allow to file an amended post-conviction post- counsel conviction petition.

An petition amended post-conviction relief 27, filed on October 1997. In amended de petition fendant, first for the time during post-conviction proceed ings, raised the claim that new his al supported evidence legations he had brutality by been to subjected officers, Chicago police and that his confession been had 9, coerced. The stated that docu petition May 1997, “[o]n ments were made available for the first time that are critically to this important they nearly case because show abuse, identical acts of brutality, and falsification of evi by dence the officers investigated same who [defendant’s] 9, case.” The petition May 1997, references order entered by the United in States district court the federal civil rights Wiggins Burge, action of 173 226 v. F.R.D. (N.D. 1997), Ill. struck wherein the court the confidential designation City of several of produced by documents the Chicago during discovery. the documents released Among from a order protective report was a prepared by of Chicago police department’s Office Professional Stan (OPS), dards surveyed systematic which of alleged abuse in suspects custody Area and police headquarters which named in several officers involved cases of abuse, in some of whom participated defendant’s arrest and interrogation. claims,

Among other defendant’s amended post- conviction petition alleged that the State violated rights by to due and a fair process trial concealing evidence favorable to him and material to motion to violation suppress, Brady of Maryland, (1963). Ed 83, 215, U.S. 10 L. 2d 83 Ct. 1194 Ac- S. cording to the amended with- petition, prosecution held information about prior police torture allegations at Area 2 other by made 1982 and 1983. suspects between The petition alleged “newly also discovered evidence 1997, made for the first criti- May, available time is cally this case it important nearly because documents and falsification of evi- abuse, brutality, identical acts of investigated [defendant’s] the same officers who by dence allegedly the evidence Defendant contends that case.” newly as as the the State well withheld evidence, been admissible “would have discovered to Area assigned of officers showing operandi” the modus outcome of the changed have probably and would hearing and trial. suppression claim that

The also raised a related petition amended of trial counsel defendant was denied effective assistance hearing at the 1984 because trial counsel suppression investigate present complaints “failed to evidence other filed with the Office of Professional Standards arrest, Officers involved Chicago victims of Police search, According [defendant].” interrogation defendant, the such by investigation, evidence revealed above, newly as well as the discovered evidence described a would admissible to establish pattern have been credibility 2 and to the of the impeach abuse at Area officers, changed and would have the outcome testifying the the trial. suppression motion and also contended in his amended petition Defendant to right repre- that the circuit court violated defendant’s by sent himself at the of his second trial sentencing stage serve as an assistant defender to appointing public addition, defendant claimed that a standby counsel. sentencing examination prior court-ordered fitness him silent. right of his to remain deprived filed a to vacate petition Post-conviction counsel also convictions and death sentence pursuant defendant’s (735 of the of Civil ILCS procedure section 2—1401 Code (West 1996)). exhibits at- Relying totally upon 5/2 —1401 to, in, reference incorporated by tached or relief, the motion post-conviction amended petition evidence, newly discovered made available alleged nearly May 9, for the first time on “documents brutality, abuse, identical acts and falsification of evi- investigated [defendant’s] dence the same officerswho *** [and] showing case would have been admissible as operandi.” modus Defendant contends had this evi- proceedings available, dence been the outcome of the would have been different. February granted

On 27, 1998, the circuit court post- State’s motion to dismiss defendant’s amended petition evidentiary hearing, conviction an without find ing that defendant’s claims had been The waived. circuit court also dismissed defendant’s section 2—1401 motion evidentiary hearing an without on the basis that it was untimely. appeals Defendant now from the circuit court’s judgment. part appeal, Campaign As of this to End Penalty granted the Death brief, leave to file a support curiae, amicus of defendant. 155 Ill. 2d R. 345.

ANALYSIS Hearing provides The Illinois Post-Conviction Act mechanism which criminal defendants can assert that their convictions were the result of a substantial denial rights of their Constitution, under the United States Constitution, Illinois or both. See 725 ILCS 5/122—1 (West 1994). post-conviction An action for relief a col is proceeding appeal underlying lateral and not an from the (1999). judgment. People Morgan, 2d Ill. post-conviction In order to relief, be entitled to a defen establishing dep dant bears the burden of a substantial rights rivation of federal or state constitutional proceedings produced judgment being chal (1995). lenged. People Franklin, v. 167 Ill. 2d 1 proceeding brought Because a under the Act is a col judgment conviction, lateral attack on a all issues actu ally appeal judicata, decided on direct are res and all is original sues which could have been raised proceeding, People not, but were are waived. v. White- (1996). head, 355, 2d 169 Ill. The doctrines of res judicata waiver, however, will be relaxed in three requires; situations: where fundamental fairness so alleged incompetence where the waiver stems from the appellate relating counsel; or where the facts to the claim appear original appellate do not on the face of the record. Whitehead, 169 Ill. 2d at 371-72. evidentiary hearing

A defendant is not entitled to an right post-conviction petition. as of on a Whitehead, 169 evidentiary hearing Ill. 2d at 370-71. An is warranted only allegations post-convictionpetition, where the of the supported appropriate by where the trial record or ac companying showing affidavits, make a substantial rights a defendant’s constitutional have been violated. Morgan, purpose 187 Ill. 2d at 528. For the of determin ing grant evidentiary hearing, whether to an all well- pleaded petition any accompanying facts in the af People fidavits are taken as Brisbon, true. v. 164 Ill. 2d (1995). 236, 244-45 A circuit court’s determination regarding sufficiency allegations of the contained in a post-conviction petition Morgan, are reviewed de novo. People 528; 187 Ill. 2d at Coleman, v. 366, 183 Ill. 2d (1998). 388-89 right

Defendant first contends that his constitutional process right to due of law and to a fair trial were hearing when, violated the on his motion to suppress, the State failed to disclose to the defense all exculpatory required by Brady Maryland, evidence as v. (1963). 83,

373 U.S. 10 L. 215, Ed. 2d 83 S. Ct. 1194 Brady, Supreme the United States Court held that the prosecution must discloseevidence that is both favorable guilt punish to the accused and “material either to or to Brady, ment.” 218, 373 U.S. at 10 L. Ed. 2d 83 S. People 1197; Ct. at Sanchez, 169 Ill. 2d 485-86 (1996). Evidence is considered if “material” there is “a probability that, reasonable had the evidence been 172 defense,

disclosed to the the result of the proceeding would have been different.” United States v. Bagley, 473 667, 682, U.S. 481, 494, 87 L. Ed. 2d 3375, 105 S. Ct. Sanchez, 169 Ill. 2d at 486. (1985); 3383 According to defendant’s amended post-conviction petition, in February 1984 the “State knew that several of the Police Chicago intimately Officers in involved “being FBI, case” were investigated by the Amnesty International, and the Police Chicago Office Department of Professional Standards for their use of abusive police In addition, tactics.” that, defendant claims at the time of his suppression hearing, the State withheld evidence concerning a series of other prior instances in alleged which officers 2 assigned Area torture employed as a means of eliciting confessions from other suspects. Brady claim, support defendant specifically relies upon three documents attached to his amended post-conviction First, petition. defendant cites a docu ment in filed the federal rights civil action of Wilson v. City document, Chicago. This entitled “plaintiffs prof fer of other acts of beating torture and by electroshock detectives,” and Burge other filed in mid- 1989 and chronicles alleged acts of and torture beatings of suspects by 2, officers at Area of the including some officers involved in the arrest and of defen interrogation Second, dant. relies upon February action of Wig complaint filed the federal rights civil gins v. Burge. Similar to the information contained the “plaintiff’s above, cited proffer” this complaint details allegations brutality and torture by suspects against officers at Area both before after defen dant’s arrest and interrogation. Finally, defendant relies 28, 1989, upon December court appellate opinion Banks, People (1989), App. Ill. 3d 986 wherein the court detailed allegations made several suspects they had been tortured Area 2 officers. Defendant contends had the State disclosed the information contained within documents, the above it would have been admissible in establishing torture as the modus operandi of officers assigned to Area also undermining credibility of the testifying officers. Defendant concludes that the result of the proceedings would have been different had this evidence been admit- ted. response, State accurately contends that this

argument is procedurally defaulted because defendant failed to raise this issue on Whitehead, direct See appeal. 169 Ill. 2d at However, 371. may this court review a post- conviction claim which has not been properly preserved where fundamental fairness so requires. Whitehead, 169 Ill. 2d 371-72; People Franklin, v. 1, 167 Ill. 2d 20 (1995). Although “[t]he of concept fundamental fairness escapes precise definition” (People Porter, v. 164 2d Ill. (1995)), 408 it is “generally in defined terms of a ‘cause and prejudice’ test.” Franklin, 167 Ill. 2d at 15. “Cause” has been defined as “an objective factor that impeded defense counsel’s efforts to raise the claim on direct Franklin, review.” 167 Ill. 2d at 20. “Prejudice” has been defined as “an error which so infected the entire trial that the defendant’s conviction violates due pro cess.” Franklin, 167 Ill. 2d at 20. Because we determine that no occurred, error is unable to satisfy the prejudice prong test, and, therefore cannot invoke the fundamental fairness exception.

A review of the exhibits relied upon by defendant in his amended claim post-conviction petition to support that the State violated the rule Brady reveals that these documents were in not existence at the time of the 1984 suppression proceedings, and therefore could not have been disclosed to defendant. In addition, defendant has made no showing that the information contained within the documents was available to the State at the time of the suppression hearing. Defendant has failed to present

174 an any evidence his claim that there was support 2 agen of Area officers OPS or outside “investigation” cies to the 1984 Ac prior February suppression hearing. cordingly, defendant’s is that argument unavailing early State “knew” 1984 that Area officers were be and failed to this informa ing “investigated” disclose Further, tion. defendant has no provided sup evidence to port February his claim that 1984 the State was aware alleged there was a series of instances which prior officers to Area 2 assigned employed torture as means confessions from other To the con eliciting suspects. the evidence trary, presented support any his claims indicates al apparent nexus between incidents of abuse of other Area 2 offic leged suspects by ers and claims did not arise until several motion, after defendant’s and it years suppression at that later time that initiated only investigations were Therefore, into at Area 2. defen interrogation practices dant cannot claim that the State violated the properly Brady by failing rule to disclose information that was unavailable at the time of the suppression proceedings. People Haynes, People (2000); 2d See Ill. Hinton, (1998). v. 614, Ill. 3d 623 Under the App. 302 Brady we find that no violation occurred presented, facts and, defendant no The prejudice. suffered consequently, dismissed claim. properly circuit court In his amended defendant also makes petition, the that he denied effective assistance argument related To suppression hearing. of trial counsel the 1984 that trial counsel was not ef asserting on a claim prevail fective, a defendant must first establish that “counsel’s of objective fell below an standard representation v. Washington, Strickland 668, 466 U.S. reasonableness.” 2052, (1984); 688, 674, 693, 2d 104 S. Ct. 2064 80 L. Ed. Morgan, If 187 Ill. 2d at 529. a establishes objec- fell an representation that defense counsel’s below 175 reasonableness, of then tive standard a defendant must probability that is a demonstrate “there reasonable errors, the of the unprofessional but for counsel’s result A prob would have been different. reasonable proceeding ability is a sufficient to undermine confidence probability Strickland, 694, in the L. Ed. outcome.” 466 U.S. 80 2068; 2d at S. 529- Morgan, 104 Ct. at Ill. 2d at satisfy 30. A of Strick prongs defendant must both the land test before he or can on a claim inef prevail she of However, fective of if the assistance counsel. ineffective assistance claim can of on the that disposed ground be the defendant did not not prejudice, suffer court need determine whether counsel’s was constitu performance tionally deficient. People Griffin, 178 Ill. 2d (1997).

In his amended post-conviction petition, his alleges that trial counsel and “failed investigate evidence of with present complaints filed the Office of Professional Standards other Chicago victims of Po- lice involved arrest, search, Officers in the interroga- tion of [defendant].” Defendant also contends amended petition gather defense counsel “failed to and present readily systemic available evidence of abuse in other widely reported cases of- involving the ficers who handled the investigation.” instant In support of his of claim of counsel, ineffective assistance defen- dant relies same three upon sup- documents cited in port his claims that the State violated the rule. Brady defendant, had According defense counsel discovered and presented this evidence of “systemic police torture abuse,” it not would only have been admissible in establishing torture was routinely employed Area confessions, officers to elicit but also would have served to impeach credibility testifying De- officers. fendant concludes that the introduction this evidence would changed have the outcome of the mo- suppression tion and trial. this claim is the State argues

In response, pres defendant failed to defaulted because procedurally However, noted, ap strict ent it on direct appeal. be relaxed where may of the waiver doctrine plication fairness, analyzed which is fundamental by required Franklin, 2d at 167 Ill. prejudice.” terms of “cause and evidence that present defendant has failed to 20. Because ineffective, satisfy he is unable to his trial counsel was excep of the fundamental fairness prong the prejudice tion. defendant stated, upon by the documents relied

As ineffective his claim that his trial counsel was support are proceedings February suppression of his support cited the same documents Brady rule. As we held the State violated the claim claim, the docu- Brady with to defendant’s respect above in existence at defendant were not by ments relied upon and, therefore, could suppression hearing the time of the by nor defense presented been neither discovered have no addition, provided support defendant has counsel. investigate pres- failed to for his claim that counsel OPS the of- against filed with complaints ent evidence evi- defendant. No interrogated who arrested and ficers that, prior presented dence has been filed OPS had been with February complaints other suspects in his case the officers involved against by defendant. alleged similar to that alleging abuse any support failed to provide defendant has Finally, “readily there was February his assertion in other abuse systemic police available evidence officers who some of the involving cases” widely reported sup- Rather than defendant. interrogated arrested and exhibits defendant’s own position, porting “readily not avail- information was that such establish hearing, suppression after defendant’s years able” until abuse “systemic” time that only it at that 2 under the “widely Accordingly, Area became reported.” no we find that defendant has presented, presented facts his evidence to his claim that trial counsel support Consequently, ineffective. suffered no preju- dice, he cannot the fairness and invoke fundamental exception. The circuit court dismissed this properly claim. petition

Defendant’s also the presents amended supports broader claim that new evidence his assertion that his involuntary, making confession was coerced and its introduction at trial a violation of his constitutional (2000). rights. v. 192 2d People King, See Ill. 189 In his post-conviction amended on relies petition, that, material outside the trial record to had this argue now-available been information before the circuit court at the time of suppression hearing, the circuit court would have suppressed his confession. Defendant further asserts had his trial, confession been suppressed at he probably “would have been acquitted.” Defendant contends that the circuit court erred in him an denying evidentiary on hearing post-conviction this claim.

According to defendant’s post-conviction amended petition, “newly evidence discovered made available May, the first time in is 1997, critically important case it nearly abuse, because documents identical of acts and brutality, falsification of evidence by the same offic ers who investigated case.” The [defendant’s] amended a petition makes reference to May order entered the United by States district Wiggins Purge, court (N.D. 1997). 173 F.R.D. 226 Wiggins Ill. The order fol lowed a the settlement of rights federal civil action against the Chicago police department of alleging torture suspects by police officers at Area 2. The order also struck the designation confidential of pro several documents City discovery. duced Chicago Citing interest in the these public documents, disclosure of order from protective court removed OPS

district files, reviews, recommenda- administrative investigative findings alleged police in 11 Area torture tions and OPS, report prepared cases. The court also disclosed a surveyed systematic suspects which abuse of alleged Area which named custody police headquarters abuse, allegedly several officers involved cases police arrest some of whom in defendant’s participated interrogation.

Included the documents attached as exhibits among petition are the post-conviction amended as well and decision of the findings OPS report, City of the with to Area Chicago respect board Jon 2. Commander Specifically, discharged the board finding after him Burge Chicago police from the force abusing paren- Andrew Wilson. We guilty physically of is record that thetically note that there no evidence of an,d any of the arrest Burge was involved aspect that Detec- of defendant at bar. We also note questioning Yucaitis, only implicated by the officer specifically tive him, suspen- a 15-month abusing given by to or the abuse of Wilson failing stop report sion for partici- have Burge, by was not found the board but the peti- abuse. Also attached to amended pated any opinion tion state court unpublished appellate is an findings the board’s police which the court affirmed Board, Nos. O’Hara v. Police 94—0999, decision. 1— (1995) or- 94—2462, 1—94—2475 (unpublished cons. 1— 23). Rule Supreme der under Court that defendant’s claim is barred The State counters on direct waiver, failed to raise issue as defendant post- claim disagree. upon Defendant’s rests appeal. We the of the City Chicago disclosures conviction defen- after which occurred Department Police Chicago which defen- such, upon dant’s As the information trial.

179 trial which clearly upon dant relies is outside the record ruling this court’s on direct was based. Because appeal the are rules of default relaxed where the procedural facts to defendant’s claim do not on the relating appear record, face of the of defendant’s merits claim are at properly Haynes, 466; People considered. 192 Ill. 2d v. (1998); 2d 404, People Ill. 437-38 Hobley, Orange, v. (1995). 168 Ill. 2d find that the trial

We court dismissed properly defendant’s claim an evidentiary without or hearing. der for newly trial, discovered evidence warrant a new the evidence must be “of such conclusive character that it will on probably change People result retrial.” Patterson, (2000); 192 Ill. 2d Hobley, 182 Ill. 2d disagree 449. We with defendant’s assertion that of now-available evidence other alleged incidents abuse and torture at Area 2 would alter the result on retrial it because would corroborate his claim that confes sion was the result of contrary, abuse. To the our review the record in this matter reveals in light of the overwhelming evidence of guilt, defendant’s there is no reasonable probability that the outcome of defen dant’s trial would been had have different confession not been into Therefore, admitted evidence. we conclude that defendant suffered no prejudice as a result the claimed error. confession,

Apart from defendant’s pre- State sented evidence at trial to prove beyond defendant guilty Pueschel, reasonable doubt. Richard years who was 11 old the of at time the offenses and was at the time of trial, an of provided in-court identification defendant one of two men he in saw the the of apartment night the crimes, testifying that he was “99% sure” that defendant was there. may “99% sure” not be sufficient identifica- tion defendant crime, of as the of perpetrator the particularly in a However, case. capital Richard by corroborated identification of defendant is

Pueschel’s arrest, shortly at the time of his after the evidence that committed, in possession murders defendant was of were home taken from the Pueschel at jewelry weapons the Specifically, the time the commission of the crimes. of of jury personal heard evidence that numerous items the residence which were stolen from Pueschel’s property including in two apartment, were found defendant’s jewelry belonging dozen of identified as either pieces Ellen, The also heard jury Jo Dean or Richard Pueschel. that, the defendant’s police following evidence station arrest, from his removed a man’s hand ring from his that these pocket, stating and watch back pieces items with the other of that belonged property from The and watch ring had been seized his apartment. to Dean belonging were identified at trial as also addition, In the loaded .357 revolver Magnum Pueschel. stand, as a night recovered from defendant’s as well closet, from were identi- shotgun recovered defendant’s totality the fied as Pueschels. Under the of belonging us evidence, review this record convinces the our of establishing the evidence light overwhelming of in the of defen- confidence outcome guilt, undermined, assuming dant’s trial is not even the claimed error.

We instant factually distinguishable find the cause Patterson, 192 Ill. People from our recent decision in a similar (2000), presented 2d 93 wherein the defendant the newly supported discovered evidence argument by of coercion theory product that his confession was Patterson, to Area 2. new assigned officers many defendant consisted evidence relied upon are to the which attached same documents filed amended post-conviction petition We concluded Patterson the instant cause. evidence, evidentiary an hear now-available light

181 police warranted on Patterson’s of ing allegations However, Patterson, misconduct. in we noted that the ev idence the defendant the of a identifying perpetrator (1) oft-changing double murder “consisted of the testi a mony teenager suspect whose cousin had been a (2) crime; testimony and from the officers Attorneys concerning assistant State’s defendant’s Patterson, confession.” 192 Ill. 2d at 122. Unlike in Patter son, where the defendant’s confession was the principal convictions, of evidence his piece supporting the mat ter at is bar there sufficient evidence of guilt, apart from his confession. reject

We also defendant’s related argument his petition to vacate defendant’s convictions and death pursuant sentence to section 2—1401 of the Code Civil (735 (West 1996)) Procedure ILCS was improp- 5/2 —1401 erly dismissed the circuit court without an eviden- tiary hearing. Defendant’s section 2—1401 motion relies totally upon to, exhibits attached or incorporated by ref- in, erence defendant’s amended post-conviction petition, virtually raises the identical “new evidence” claim as presented in petition. defendant’s amended

A section petition 2—1401 for relief a from final judg ment criminal is the forum in a case which to correct all errors of fact occurring cause, in the prosecution to petitioner unknown and the court at the time judg entered, which, known, ment was if then would have 460; its rendition. prevented Haynes, 192 Ill. 2d People (1978). Berland, Ill. However, 74 2d 313-14 where 2—1401 petition years a section is filed more than two entered, after the judgment was it cannot be considered. (West 1401(c) 1996); 735 Caballero, ILCS People v. 5/2 — (1997). 2d It Ill. is well established that the two- year period hmitation mandated section 2—1401 must be adhered to of a clear showing absence that the disability relief is under or person seeking legal duress or fraudulently grounds concealed. Cabal for relief are lero, 179 Ill. 2d at 210-11. petition 2—1401 was filed in

Defendant’s section years after he was tried and October more than six court, in 1991. In brief to this convicted merely passing motion, and does makes reference to any grounds tolling specificallyargue of the not period Therefore, 2—1401 section is the limitations exist. remedy. Caballero, as 179 Ill. 2d at 211. not available addition, even if defendant’s 2—1401 motion section respect timely presented, as with had been stated above post- in amended to the identical claim made defendant’s petition, defendant has failed to establish that conviction changed outcome of the the new evidence would have the appropriately proceedings. court dismissed The circuit this motion. respect post- argument to

Defendant’s final in his petition the is that circuit court erred conviction dismissing, evidentiary hearing, an

without rights during were violated claims that his constitutional sentencing phase of his After defendant was the trial. sentencing phase of convicted, before the start of the but proceedings, defen- the the circuit court readmonished concerning right represented counsel. his to be dant attorneys court reminded defendant that The circuit appointed public had defendant’s officer been from option “legal his advisors,” and that defendant had the sentencing. during allowing represent them to him initially that he continue Defendant indicated wished proceedings. during sentencing represent himself inquired open court, of one However, defendant, then up “legal could “come whether counsel advisors” up I with.” Counsel some evidence can’t come with ques- “[b]ecause replied: has me a asked having my feeling, open a conversation court, it is tion lockup approximately [defendant] 20 minutes in the with ago, comprehend going that he does not what is on at sentencing.” this time. He’s not fit for The circuit court then ordered that defendant be examined for A fitness. psychiatric performed by examination of defendant was Reifman, Dr. Robert who concluded that defendant was sentencing. fit for Thereafter, the circuit court allowed right represent defendant to waive his to counsel and to sentencing proceedings. himself The State presented stage then Dr. Reifman at the second of the sentencing hearing aggravation. as a witness Dr. Reif- personal- man testified that defendant had an antisocial ity suffering disorder, but that defendant was not from a mental disease. appeal argued

On direct court, to this that, pursuant to Estelle Smith, U.S. 68 L. Ed. 2d (1981), 359, 101 S. Ct. 1866 he was entitled to receive warnings psychiatric Miranda at the outset of the exam warnings ination. Defendant contended because no given, improperly were the State introduced evidence from Dr. Reifman’s examination of defendant. We held that defendant had issue, waivedthis and also determined plain that the issue did not rise to the level of error. Ma haffey, 166 stage Ill. 2d at 27. The evidence at the second sentencing hearing of the closely was not balanced, mitiga as defendant introduced no evidence presented tion State, while the in contrast, extensive evi aggravation. Mahaffey, dence in 166 Ill. 2d at 27. We also alleged determined that the error was not substantial. only application We noted that Estelle had limited to the presented jury here, facts and that the could have as likely testimony considered the content of Dr. Reifman’s mitigation aggravation. Mahaffey, as in 166 Ill. 2d at 27-28. urging

Defendant, issue,” us to “revisit now argument post-conviction petition raises the same in his appeal that he raised on direct that the court-ordered fit- prior sentencing deprived to him of his ness examination right by remain he examined Dr. to silent because was being given warnings. Reifman without first Miranda by The State contends that this issue is barred the doc judicata on trine of res as a result of this court’s decision appeal. agree. post-conviction proceeding, In a direct We reviewing prior determinations of the court on the direct appeal judicata actually are res to all decided. as issues Whitehead, contends, 169 Ill. 2d at 371. Defendant however, that considerations of fundamental fairness require judicata disagree. relax the We that we res bar. usually analyzed stated, As fundamental fairness is prejudice.” Franklin, terms of “cause and See 167 Ill. 2d argument provide at 20-21. Defendant has failed to or support prejudice facts sufficient requirements to the cause and exception. of the fundamental fairness De simply fendant offers the assertion that fundamental bald judicata Accordingly, the res doctrine. fairness overrides we determine that defendant’s claim is barred. See Franklin, 167 Ill. 2d at 15. post-conviction petition,

In his amended argument also raises the related that he was denied his sentencing stage right represent himself at the of his guaranteed trial, Faretta v. 422 U.S. California, as 806, 807, 562, 566, 2525, 45 L. Ed. 2d 95 S. Ct. (1975). According pub- brief, to defendant’s assistant acting “legal advisor” and lic defendant who was requested fitness, who that defendant be evaluated actually [defen- representing court, not “the trial argues representing dant], who was himself.” Defendant [sic] allowing standby that “in counsel to initiated an ex- boomeranged [defendant], trial amination that on right represent [defendant’s] himself.” court violated responds of this claim is The State that consideration judicata agree. We That barred both res waiver. portion the ex- claim asserts that of defendant’s which amination on defendant is “boomeranged” simply rejected of the on direct recasting argument appeal the of concerning testimony introduction Dr. Reifman’s A sentencing. defendant cannot circumvent the doc trine of judicata res and obtain relief post-conviction simply by rephrasing issues addressed on previously Emerson, direct appeal. People 153 Ill. 2d 107-08 (1992). The correctly State also contends that the remainder of the claim is waived because defendant never argued on direct to self- appeal right representation was violated sentencing Whitehead, See proceedings. 169 Ill. 2d at 371. Defen dant also urges we should ignore procedural bar as to this portion his claim on the basis of fundamental Franklin, fairness. See Defendant, 167 Ill. 2d at 20-21. however, simply asserts that fundamental fairness over rides waiver. We conclude that defendant has failed to satisfy cause and prejudice requirements fundamental Therefore, fairness exception. we determine that defendant’s claim Franklin, is barred. 167 Ill. 2d at 15.

CONCLUSION For the reasons, foregoing we affirm the judgment the circuit court of Cook County dismissing defendant’s petition amended for post-conviction relief. hereby We direct the clerk of this court to enter an order setting Thursday, January 2001, as the date on which the sentence of death entered the circuit court of Cook County is to be carried out. The defendant shall be exe- (725 cuted in the manner provided by law ILCS 5/119—5 (West 1994)). The clerk of this court shall send a certified of the copy mandate in this case to the Director of Cor- rections, to the warden of Center, Tamms Correctional and to the warden of the institution where defendant is now confined.

Affirmed. HARRISON, CHIEF JUSTICE concurring part dissenting part: I agree that Mahaffey’s convictions should not be view, however, disturbed. In my his sentence of death cannot be allowed to stand. For the reasons set forth in my concurrence and partial partial dissent People Bull, (1998), 185 Ill. 2d 179 the Illinois death penalty law violates the eighth and fourteenth amendments to the (U.S. United Const., States Constitution VIII, amends. XTV) and I, 2, article section of the Illinois Constitution (Ill. 2). 1970, I, § Const. art. Mahaffey’s sentence of death should therefore be vacated and he should be sentenced to a term 1981, 38, Ill. imprisonment. Rev. Stat. ch. par. 1(j). Mahaffey Because guilty was found 9— victim, murdering more than one the term of his impris onment 1981, 38, must be natural life. Ill. Rev. Stat. ch. 8—1(a)(1)(c). par. 1005 —

(No. 85332. ILLINOIS, THE PEOPLE OF THE STATE OF Appel- lee, CHAPMAN, v. REGINALD Appellant.

Opinion Rehearing December denied filed 2000. January 2001.

Case Details

Case Name: People v. Mahaffey

Court Name: Illinois Supreme Court

Date Published: Oct 13, 2000

Citation: 742 N.E.2d 251

Docket Number: 85215

Court Abbreviation: Ill.