People v. Maxwell

affirmatively prevented instant case the trial court attempts develop defense counsel’s rebuttal evidence. Because the establishment of the prima case facie moot, was rendered the trial court should have allowed attempt prosecution’s explana- defendant an to rebut the pretextual completed analysis. tions as the Batson foregoing reasons, For the I would remand the cause to proceedings pursuant the trial court for further to Bat- respectfully Therefore, I son. dissent. joins

JUSTICE FREEMAN in this dissent. (No. 77419. Appel-

THE PEOPLE THE OF STATE OF ILLINOIS, Appellant. lee, v. MAXWELL, ANDREW 20, Opinion Rehearing June denied filed 1996.— September 1996. McMORROW,J., dissenting.

106 Rothal, Chicago, Keefe,

David T. of and David J. of Waukegan, for appellant. General, E. Ryan, Attorney

James of Springfield, (Arleen O’Malley, Attorney, Chicago Jack State’s of Anderson, Attorney General, Chicago, C. Assistant Gaines, and Renee Goldfarb and Carol L. Assistant counsel), Attorneys, State’s People. for the JUSTICE opinion HARRISON delivered the court: (134 defendant,

The Maxwell, appeals Andrew 111. 651(a)) 2d judgment R. of the circuit court of Cook County dismissing an evidentiary hearing without his relief, amended for petition brought pur (725 Hearing suant to the Post-Conviction Act ILCS (West 1992)). Following seq. jury et a trial 5/122 —1 defendant was convicted of and attempted murder 26, robbery armed committed on He October 1986. right waived his to a for jury purposes capital his sentencing hearing, imposed and the trial court sentence of death on the conviction for murder and years term of 15 on the conviction for attempted armed robbery. Maxwell, In his direct Ill. appeal (People v. 148 (1992)), 2d 116 this court affirmed his convictions sentences. Thereafter the United States Supreme Court (Maxwell petition denied a writ of his certiorari v. Il linois, 377, 506 U.S. L. 113 471 Ed. 2d S. Ct. (1992)). Challenging the dismissal of his amended peti an evidentiary hearing, tion without presents follow, 22 issues for our For the we review. reasons affirm. Because the facts of this case are set forth adequately opinion concerning defendant’s direct only state here appeal, necessary we those facts disposition post-conviction appeal. brought pursuant

A to the Post- proceeding but, Hearing per Conviction Act is not an se appeal v. Ca People judgment. attack on rather, a collateral (1989). The 248, purpose 258 ballero, Ill. 2d 126 issues into constitutional inquiry is to allow proceeding could not or that have conviction original related to Whitehead, 169 Ill. v. People adjudicated. not have been (1996). show burden to 355, It is the defendant’s 370 2d rights of his constitutional deprivation a substantial made 370), and determinations (Whitehead, Ill. 2d at 169 are they unless be disturbed court will not by the circuit 116 Ill. 2d Silagy, v. (People erroneous manifestly (1987)). to an eviden not entitled The defendant petition, sup of his allegations hearing unless tiary or ac trial record by the appropriate ported where showing that affidavits, make a substantial companying Caballero, 2d at 126 Ill. have been so violated. rights his evidentiary determining an whether 259. In in the petition facts granted, well-pleaded all should be as are to be taken affidavits any accompanying and in Caballero, 126 Ill. 2d at 259. true. denied his that he was

Initially defendant contends of counsel right to the effective assistance constitutional sentencing proceeding phase of the the second and avail- investigate present counsel failed "to because as- mitigation.” Specifically, defendant able evidence in investiga- virtually no trial counsel conducted serts that (1) investigate his failing to background, his tion into (2) to the present and history; to discover developmental re- records, have which would only not his school court deficits, but developmental intellectual and his vealed childhood as records of as well also his medical records (3) drug and tests; a professional to obtain psychological of his the extent gauge with which alcohol evaluation (4) abuse; to discover substance with problem fam- pervaded denial that and attendant alcoholism explained revealed would have been ily, which (5) history; social comprehensive counsel obtained any obtain kind of psychological psychiatric current or (6) evaluation; interview the defendant himself sufficiently. The defendant’s post- voluminous amended petition, conviction which includes numerous support- ing reports exhibits, and affidavits attached as sets forth these claims in detail.

In his amended petition alleges because trial records, counsel failed to obtain his school counsel did not know of the determination his school was, words, that he "educably mentally that, handicapped” result, as a counsel could not make an informed decision as to how this information sentencing. would affect same way, defendant al- leges, counsel did know of defendant’s "borderline mentally I.Q.” Similarly, retarded counsel’s failure to drug a obtain and alcohol evaluation of defendant meant his attorneys fully that were not aware of the extent of problems. Counsel’s to failure interview defendant’s sisters, father and his Monalisa Maxwell and Martha Brown, investigate and to drug or evaluate and alcohol usage in his prevented immediate family counsel from understanding drug dependency, his intel- developmental deficiencies, lectual and his family’s of denial those a problems; consequence, as alleges, strategy counsel lacked a mitigation. for Defen- alleges finally dant with respect this first claim of his petition: amended arguendo

"Assuming trial that counsel was inade- quate concluding, investigation, for based on her limited intellectual, significant phys- had not had [defendant] deficits, developmental put ical and trial was counsel on problems by Report notice of these the Presentence which 11, [Ex. had been filed March 1988. Counsel 17] [sic] incompetent failing pursue this evidence.” an support The defendant includes as exhibit in of Hemmerich, Ph.D., this claim the affidavit of a Louis 14, him psychologist clinical who tested on March 1993. psychological of his report includes the The affidavit to have stated reported In it the defendant evaluation. grade in the third because he had been held back that he had been progress a lack of academic of during most of his formal education classes special having psy- reported The defendant also education. words, a counseling, Hemmerich’s "for chiatric Dr. months, time, was in six when he period brief of about the defendant’s grade.” the third or fourth He described Intelligence Full score on the Wechsler Adult Scale mentally being as within the borderline Scale-Revised The of range ability. pattern retarded of intellectual intelligence obtained on this administration of the scores concluded, that defendant suggests, test Dr. Hemnierich learning a processing suffers from verbal information disability. summary In his he assessed the test results indicating functioning as that defendant was "within range the borderline aver- mentally retarded low age range ability.” of intellectual

Dr. stated further Hemmerich that defendant "reported history drug He serious of alcohol and abuse. began smoking age marijuana stated that he at the of time, encourage twelve. At that his sisters would him to joint they enjoyed watching him smoke a with them since 'get silly.’ reportedly began drinking ap- He alcohol 16, proximately age age began of 14. At the of he us- time, ing During period cocaine. this he also took codeine, up pills syrup to three ounces of and three at a By age drinking pint time. he admitted to 1h whiskey bag marijuana smoking a nickel each night. year, Later he stated that he would smoke marijuana laced with cocaine. He stated that he had alcohol, using drugs functioning hard time without and reportedly daily used substances on a basis.” drugs and Dr. Hemmerich concluded that the amount of consumed, alcohol as the reportedly as well withdrawal symptoms suggest that he was reported, physiologically drugs addicted to and alcohol. The psychologist reported further that defendant participated any drug

"stated that he had never or stated, program. alcohol treatment He T I never admitted problem.’ had a He experienced stated that he has numer- legal ous drug difficulties due to and alcohol abuse. He years has been arrested a number of times over the for il- legal activities which he engaged stated that he in [sic] or- support drug der to and alcohol habits.” In ruling upon the State’s motion to dismiss petition amended an without evidentiary hearing, court, having circuit petition exhibits, examined the remarked as follows: opportunity occasions,

"We have had an on several I might add, to review all of the material that has been Obviously, very submitted to us. we are familiar with the case, having case, level, heard the the case at the trial having presided proceedings therein, over all of the only preliminary motions, on the trial but also the obviously and also sentencing proceedings. We have *** post-conviction reviewed the petition. *** ***feel, We and we have thoroughly, reviewed this provisions, Strickland; two-pronged test i.e., performance whether sentencing counsel’s at the proceeding commonly fell below what accepted stan- maybe importantly dard and more at least in the Court’s mind, error, but for that whether the results would be dif- ferent, respectfully and we most come down on the side of have, the State because we feel it would not and the mo- tion to petition dismiss the will be granted.” judge

Available to the trial prior sentencing presentence investigation report, which defen- dant refers in petition. his amended About the physical defendant, and mental health of the who was born in report says, November of "The grade defendant states that when he was in third psychiatrist. his teacher recommended he see a He states he grade years saw some doctor for his third and fourth why seeing once week. He states he has no idea' he was this doctor and doesn’t remember what the doctors [sic] name was.

111 grade he was states that since fifth The defendant any placed classes and does not have idea in slow learner program.” why placed type in that he was use, drug history of alcohol and Of defendant’s indicates, report drinking age began at

"The defendant states he time he has been drink- seventeen and stated since that day every day, depending on the he ing vodka beer and/or pack may anywhere from three beers to a twelve drink pint half one vodka. and/or using marijuana age began states he at

The defendant marijuana He also states he uses and cocaine seventeen. age everyday and has so since around seventeen. bags marijuana

He states he smokes two nickel ev- eryday day and states he uses $20.00 $25.00 supported cocaine. He states he his habits Public Assis- tance, routes, jobs, paper odd and mother. The defen- drug problem age he dant states knew he had a since get help problem.” seventeen but never has tried to for this It is well established that the standard for determin ing whether a defendant has received assis effective tance of counsel at trial or at a death penalty elements, deficiency prejudice. consists of two People Brisbon, 236, (1995); v. 164 Ill. 2d 245-46 Strickland v. 668, 466 U.S. 104 Washington, 80 L. Ed. 2d S. Ct. (1984) Albanese, 2052 (adopted by People this court v. (1984)). test, 104 Ill. 2d 504 Under this two-part defen performance dant must show that counsel’s fell below an objective standard of reasonableness and that there that, is a probability reasonable were it not for counsel’s errors, professional proceeding result of the would Whitehead, have been different. 169 Ill. 2d at 390. A reasonable probability is one sufficient to undermine Whitehead, confidence in proceeding. the outcome of the Ill. 2d 390. To establish ineffective assistance of counsel at a death sentencing hearing, the defendant must prove representation that counsel’s was deficient that, conduct, but for counsel’s deficient the sen- would,

tencer have ag concluded that the balance of gravating mitigating factors did not warrant death. Brisbon, 164 Ill. 2d at 246. need

We not determine whether perfor- counsel’s mance fell below an objective standard of reasonable- ness because defendant fails to show that al- counsel’s leged omissions prejudiced gulf him. The relatively slight judge between what the trial knew from his read- ing presentence investigation of the report at the time sentencing respect with to defendant’s intellectual developmental and deficits drug and his and alcohol alleges abuse and what defendant in regard this in his post-conviction result, amended petition. As a there is that, no reasonable probability had counsel provided this information to the court and focused upon it at the sentencing hearing, the court would have concluded that factors, the aggravating mitigating balance of which are in opinion summarized ap- defendant’s direct peal, did not warrant the imposition of the death Indeed, court, penalty. the circuit which noted that it had all reviewed of the material submitted respect with defendant’s amended petition and that presided it had over all of the proceedings related to sentencing hearing, trial and ruled in favor of the State express feeling because of the court’s that reading outcome would have been no different. Our of the record leads us to the conclusion. This same entirely reasonable determination the circuit court erroneous, hardly manifestly can be said to be and we will not disturb it.

Defendant contends next that he was denied the ef- sentencing fective assistance of counsel at because trial counsel advised him "that the court would not impose death, upon relied that advice when he [defendant] jury.” waived He claims that he was induced to waive through jury sentencing for trial counsel’s assurance sentence he would not signaled judge an ex- as affidavit attached In an to death. defendant "[Bjefore states, petition, amended hibit to his sentencing, a my right jury that I waived the time me that counsel, Hillyard, advised Clare my trial *** would not her that [he] had stated to judge trial jury a at sentenc- if I waived penalty the death impose further, upon reliance "[I]n states ing.” Defendant impose Karnezis would not Judge counsel’s advice at sentenc- jury to waive a agreed I penalty, the death right to a my to waive ing, my initial reluctance despite to defen- as an exhibit jury.” In an affidavit attached one of Hillyard, Clare who was petition, dant’s amended attorneys, follows: defendant’s trial states as any pos- agreed jury a "That to waive [defendant] jury sentencing proceedings prior to the selection sible trial; fully that he guilt-innocence phase of his was disadvantages op- advantages of his informed of the tions; given to this decision that careful consideration long period over a of time. *** jury during strategy after the That a discussion verdict, Judge presence in the made comment Attorneys, and the defendant State’s defense counsel that’; facial penalty, [t]hat 'if it comes to about death expression inspired the belief that the and voice inflection pre- penalty imposed; be that none of the death would not mitigation a com- pared was curtailed as result of said ment.” petition

Also attached to the amended as an exhibit Hoffman, who de- represented is the affidavit of Charles meeting fendant he states that at a appeal; his direct sentencing, Clare following defendant’s conviction and trial, at Mi- attorney and other Hillyard Brennock, chael told him that firmly Judge

"prior sentencing, they believed that They Karnezis impose [the defendant]. would not death on they got they 'signal’ from interpreted said what as sentencing, they he Judge Karnezis that if took a bench impose would not a sentence of death. Brennock said that in his discussions with [defendant] on whether to take a jury bench or sentencing, Brennock told that [defendant] he was Judge '99% sure’ that impose Karnezis would not Hillyard death. they and Brennock told me were 'stunned’ Judge imposed when Karnezis death on [defendant].” Another affidavit attached to defendant’s amended peti- tion as an tipiat exhibit Rothal, of David who is one of the attorneys representing defendant in this appeal. He indicates during that a three-way telephone conference with Hillyard Clare and the other attorney representing defendant in this appeal, "Ms. Hillyard stated that based upon Judge Karnezis’ statement 'if it comes to that’, her determination that case [defendant’s] was not a particularly aggravating one, factors, and other she recommended [defendant] he a jury waive sentencing.”

In defendant’s direct appeal he contended that his waiver of a jury for purposes of the sentencing hearing was invalid because it was based on the erroneous advice of his attorney, given to him because of counsel’s mistaken belief that evidence of defendant’s involve ment in offenses of which he yet had not been convicted could not be introduced the sentencing hearing. Maxwell, 148 Ill. 2d at 143. Defendant maintained counsel was waiver, ineffective jury Maxwell, therefore, invalid. 148 Ill. 2d at 142. Counsel’s error notwithstanding, concluded, this court on the rec it, ord before that counsel had not rendered ineffective assistance in advising jury to waive a the defendant’s jury waiver was not invalid on this ground:

"As an examination of defense counsel’s remarks clear, makes sup- counsel offered three distinct reasons in port of her decision to advise the defendant to waive a jury First, sentencing hearing. for the apparently counsel judge likely believed that the was more to be than lenient jury; preferred counsel stated that she her client

115 sentencing determination. judge make the the death-qualification of Second, preclude wanted to counsel proceedings. guilt phase purposes jury for 75.)Third, (See (1986), counsel did Ill. 2d Daley Hett 113 v. by jury if a sentencing to be made decision not want its members had been words, to, or, in counsel’s exposed had been other by, of the defendant’s 'inflamed’ evidence then, reasons, counsel recommended these offenses. For penalty jury a for the death waive that the defendant hearing. ineffective making a claim of

'A convicted defendant of counsel identify acts or omissions must assistance of reasonable alleged been the result are not to have 690, (Strickland, 80 L. 466 U.S. at judgment.’ professional 2066.) Any the three one of 104 S. Ct. at Ed. 2d at a valid reason by counsel constitutes grounds mentioned Maxwell, sentencing jury.” 148 Ill. choosing for to waive 143-44. 2d at circumstances, said, this court counsel’s

Under of evidence concerning admissibility mistaken belief result in an act or omission of other crimes did not counsel’s judgment; reflecting professional unreasonable jury recommendation waive a the defendant entirely consistent with sentencing phase sentencing submitting the strategy counsel’s to avoid the defen jurors who were aware of determination Maxwell, 2d at 144. record. 148 Ill. dant’s criminal conclusion direct the court’s appeal had acted had failed to show that counsel that defendant dispositive manner was in a unreasonable professionally failure to establish one of the defendant’s claim for However, the Strickland test. necessary parts the two whether, assuming that consider this court went on to in a professionally mistaken belief resulted counsel’s omission, prej- defendant sustained unreasonable act or determined that he consequence. The court udice as have of- not, concluding counsel would that defense known that recommendation had she fered the same crimes would later of the defendant’s other the evidence Maxwell, be the sentencing hearing. admissible at out, Ill. pointed 2d 145. The court stated, "As we have one reason for counsel’srecommenda forgo jury sentencing tion to the defendant that he a for submitting sentencing was to avoid the determination to jurors who were aware of the defendant’s crimi extensive Recognition jurors nal eventually record. that the would acquire sentencing this information at the could only jury have confirmed counsel in her a assessment that necessary Here, strategy. waiver was to her effectuate goal having counsel achieved her avowed of not the sentencing jury if determination submitted to a its history.” members were aware of the defendant’s criminal Maxwell, Ill. 2d 148 at 145-46. effect, post-conviction pe defendant attacks in his grounds

tition one three stated as a by of the counsel choosing reason jury sentencing, for to waive a for namely, belief judge likely counsel’s the was more However, to be a jury. lenient than two valid reasons having remain for defendant’s to jury chosen waive a at wish sentencing: preclude the to death-qualification jury the purposes guilt phase for of the proceed ings and the to sentencing by jurors desire avoid who to exposed been evidence of defendant’s offen other ses. Thus defendant could have suffered no as prejudice a result of counsel’s to a jury advice waive for sentenc ing. require Inasmuch as defendant cannot meet prejudice, ment of that he namely, Strickland show right he would a jury not have waived his to (see Maxwell, absence error alleged of the 148 Ill. 2d at 142), the court properly circuit dismissed this claim post-conviction petition amended without an eviden tiary hearing. review,

In the third issue defendant for our presents rights he contends that he was denied his constitutional as a of the in which consequence proceedings he waived a jury sentencing. for More he maintains specifically, process that he was denied due because the trial court

117 promises employed did ask him any whether were obtained, avers, waiver, to which induce his he as a a misrepresentation result of counsel that such origins promise had been made. the different Despite right a a at jury guilt phase proceedings right a jury capital and his at sentencing hearing, right jury of either to a waiver knowing, intelligent, must v. voluntary. People be (1992). Strickland, 489, 154 Ill. 2d As defendant points out, Albanese, this court held in 104 Ill. People v. (1984), 2d requires the sixth amendment no precise determining formula whether a has waiver knowingly been intelligently made. The court need not deliver a formulaic prior receiving recitation jury defendant’s valid waiver of a capital sentenc Strickland, ing hearing. Instead, 154 Ill. 2d at 517. each Albanese, case turns on its own facts and circumstances. 104 Ill. 2d at 535-36. respect

With to the a jury defendant’s waiver of sentencing, the record includes the following colloquy between the trial court and the defendant: Okay, Maxwell,

"THE your COURT: attorney Mr. indicating event, at this time that in the in the event that jury you guilty murder, charge were to find the further event that the State indicated that (cid:127) they seeking penalty, be your would the death it would be your right intention to jury waive that have determine question. you that saying? Do I understand what am Yes, DEFENDANT MAXWELL: sir. Okay. Now, you

THE right COURT: have a to have jury question decide of whether or not the death a— penalty be imposed. you is to Do understand? head.) (Nodding

DEFENDANT MAXWELL: Now, that, course, only THE COURT: if would arise you guilty in the event were found of the offense of mur- you der. Do understand that?

DEFENDANT MAXWELL: Yes. Now, right away

THE COURT: that cannot be taken 118 give right up that you. knowingly waive or

from You must you Do jury that determination. make have understand that? Yes, sir.

DEFENDANT MAXWELL: right, right to have you If that THE COURT: waive determination, I would jury that will hear the —it a make up me to determine whether be for—it would be for or not event that penalty imposed death would be in the guilty. you you Do understand that? were found Yes, sir. DEFENDANT MAXWELL: *** THE COURT: having a saying, jurors reach What I am instead nothing, me it be for verdict 12 to would unanimous youDo understand that? alone to make that decision. Yes, sir. DEFENDANT MAXWELL: Now, you jury wish a to make THE COURT: do determination, myself, you judge, have a or do wish to you are in the event that decide that —make decision guilty? found You, sir.

DEFENDANT MAXWELL: deci- You me make that THE COURT: wish have sion? Yes, sir.

DEFENDANT MAXWELL: * * * *** THE COURT: Maxwell, people must say, Mr. When we say the decide, people be a where 11 there could situation says imposed and it should penalty should be one death not, imposed. You penalty would not be and the death thát, jurors must the 12 that that decision understand decision, it is not and in the event that be unanimous decision, not be penalty could then the death unanimous imposed. you that? Do understand head.) (Nodding MAXWELL:

DEFENDANT understanding knowing all THE And COURT: stated, choosing you to just I are things these which have penalty is that right jury phase, your for waive correct? Yes, sir. MAXWELL:

DEFENDANT *** you I ask to indicate will THE COURT: your attorney signing prepared. has I the waiver which covering just want are all to make sure we points.

Now, Maxwell, you making You Mr. are this waiver. freely voluntarily? have executed this waiver Yes, DEFENDANT sir. MAXWELL: way? Nobody you any THE COURT: has threatened No, sir. DEFENDANT MAXWELL: you waiver, Nobody forcing sign THE COURT: this is that correct? Yes,

DEFENDANT sir. MAXWELL: you THE COURT: And I assume this have discussed attorneys your prior today, you with matter have not? Yes, DEFENDANT sir. MAXWELL: them, Okay, THE discussing COURT: and after it with you choosing your right are at this time to waive to have jury make the determination toas whether the death penalty imposed be finding should in the event is a there guilty? Yes,

DEFENDANT sir. MAXWELL: your THE COURT: That is wish? Yes,

DEFENDANT sir. MAXWELL: Okay, covered, THE hope, COURT: I I believe have I possible just all give me one more second. — Okay, waiver, we accept jury will our discretion and that will part be made a of the file.” indicates, As the State the inquiry by the trial court was extensive and thorough, exploring fully defendant’s understanding of that which he was We relinquishing. agree with the State that while this does not colloquy an as inquiry any promises include to whether were made, sufficiently it establishes knowing, intelligent, and voluntary nature of of a jury defendant’s waiver for sentencing. We conclude that defendant was not denied process regard due in this and that his waiver was effec- Hence, tive. the circuit court appropriately dismissed the third claim of defendant’s amended post-conviction petition. review, another issue raises he rights "at that his constitutional were violated

contends trial, stage of studies pre-trial motions because establishing prison- that of physical abuse reports, of at Area 2 Violent Crimes ers and coercion confessions systematic which would widespread —evidence grant persuading have instrumental in the court to been suppress motion evidence — were not to at the of available to defense time trial.” Defendant rights argues abuse and denial of physical to to his confession were found be employed were obtain Crimes, regular Area 2 Violent where hé practice gave confessing his involvement in the of- statements peti- fenses in In his amended question. tion, alleges that had this been available to he evidence trial, his it could have served as counsel at the time of other admitting specific evidence from the basis police the mere denials of victims of abuse rebut allow him to call his they beat defendant and refused to "been lawyer. alleges He that had the trial court further 2, occurring at Area of informed of the extent of abuses in sanctioning participation of abuses —and these command, and the officers who evidence that them — were interrogation specifically conducted [defendant’s] 26, 19, 22, 25, 27, among the perpetrators [Ex. named 53, 56], to conclude that defendant’s mo- it reasonable granted.” have been suppress tion to confession would his trial alleges, he the outcome of consequence, As "command,” By defendant been different. would have exhibits, Burge. John Numerous refers to Commander affidavits, are at- reports, transcripts, including support of this claim. petition tached to his amended defendant as well as ruling In on the motion statements, suppress those of his two codefendants were not they found "that expressly the trial court Paladino, any way by Detective struck or threatened Basile, State’s and Assistant Glynn, Detective Detective so trial found ruling, Telander.” In court Attorney "[a]ny and that physical further "no evidence of abuse” these did not occur alleged any individuals injury result, any did as a as a Court finds not occur result police being made.” prior action to these statements signed the oral and support suppress motion to 1986, given de- that he had on November statements taken photographs fendant had introduced into evidence later, 19,1986. a week on The testi- November hearing suppress fied at on his motion the to statements that a the left of his pictures the showed knot on side head, swelling eyebrow, his and a on his above knot right leg.

When a injured it evident that defendant has been while police custody, by the State must clear show convincing and injuries evidence that the were not inflicted producing People as means of the confession. (1987). Wilson, 29, v. 116 Ill. requires 2d 40 To do so by more State’s the witnesses than mere denial the that Wilson, confession Here, was coerced. 116 Ill. 2d at 40. however, was it not evident that the defendant had been injured while in police custody. In view of the trial findings court’s that there was evidence physical no of abuse óf the any alleged defendant and that did injury any occur as result police prior giving of action to the sought defendant, statements to be suppressed, the by tangential allegations, these has failed to make a showing substantial rights that his constitutional were Thus, violated. the of determination the trial court dismissing post-conviction his amended petition without an evidentiary erroneous, manifestly was not and we do not disturb it. another, related issue he defendant asserts that right process denied his to the due when State failed

to the that deprivations rights disclose to defense the complained in his suppress motion to statements were Area 2 Violent Crimes at systematic and widespread petition, In his amended Headquarters. filed, for he a motion prior to trial alleges he that produce "any the State discovery requesting or possession its material or information within all as guilt of the negate to the which tends control accused tend to reduce charged or would to the offense discovery the In its answer to therefor.” punishment In his People.” "None known responded, State the. police superintendent brief defendant states judiciary Attorney notify failed to State’s that Area 2 investigation revealed that an internal While, defen- widespread abuses. the scene of become specific prosecutors it "doubtful dant considers in this the defense discovery misled whose answer which reports existed actually aware that were case police,” credibility undermine gravely would Brady under duty had a that prosecutors he maintains 215, 83 S. Ct. 10 L. 2d 373 U.S. Ed. Maryland, v. defense information (1963), this to tender discovery. to defendant’s pursuant counsel motion beating that of the abuses argues that evidence He Crimés and Area 2 Violent practiced were would have interrogated detectives who deféndant would such evidence guilt his because negate tended to statement his the likelihood coerced have increased assuming sup- Even suppressed. would have been to inculpatory statements defendant’s pression pf the light in acquittal, his have led to would police his hearing on following the court findings of the trial statements, particularly these suppress motion to defendant, abuse” of physical of "no finding court’s showing substantial requisite make the to he has failed violated. rights have been that his constitutional were us to consider asks issues defendant Ten of the here repeats them merely, He appeal. direct raised in his 123 argument, stating argu that he stands on the without appeal, ments forth in brief in the direct which set his is in the as an exhibit attached to the included record post- The post-conviction petition. scope amended of review is limited the doctrines of both res conviction waiver, judicata post-conviction with result are have could proceedings limited issues that not and Stewart, previously adjudicated. People not have been v. (1988). All on actually Ill. 2d issues decided all appeal judicata, direct are res those that could presented have been but were not are deemed waived. Stewart, 123 Ill. 2d in at 372. These ten issues raised appeal judicata, direct are res we do address them further.

We have read the entire record for review and have with regard remaining examined it to the defen- issues presents. dant We are they conclude that without merit. Therefore, above, for the reasons affirm stated we the judgment of the circuit of County court Cook dismissing the petition post- amended hereby conviction relief. We direct the clerk of court this setting enter an order November Wednesday, 1996, as the date on which of the sentence death entered by the circuit court of Cook is to be County carried out. The shall defendant be executed in manner provided (725 (West 1994)). by law ILCS The clerk 5/119 —5 this court shall send a certified in copy the mandate Corrections, this case Director to the warden Center, Stateville Correctional and to the warden of the institution where is now confined.

Affirmed. McMORROW, dissenting: JUSTICE The issue this has appeal whether defendant to an evidentiary established entitlement on allegations his amended petition. The summarily trial court peti- dismissed defendant’s evidentiary hearing on an

tion, defendant and denied petition. post-conviction in amended allegations his follow, the well- I believe that reasons For the petition allegations post-conviction of the pleaded require- satisfy the threshold exhibits accompanying its depriva- a substantial that defendant demonstrate ment ma- I rights. conclude of his constitutional tion affirming summary dismissal of defendant’s in jority errs therefore dissent. petition and right has established I believe that defendant post- petition his amended evidentiary on an First, signifi- there are for two reasons. conviction relief that, his constitutional of allegations violation cant of effective assistance did not receive rights, defendant stages capital of this throughout the various counsel informa- Second, compelling there exists prosecution. the mo- at the time of tion, to trial counsel not available confession, certain suppress tion to Crimes, including three of at Area 2 Violent detectives defendant, interrogated participated the officers who prisoners. from coerce confessions systematic abuse to which petition, amended Defendant’s detailed af- factually by numerous accompanied documents, fidavits, filings, and other court reports, at the time years was 19 old that defendant reveals is borderline charged, crimes the commission physical retarded, long history has a mentally deficits, developmental disabilities, mental serious familial substance history along with problems, remorse for expressed has Defendant abuse and denial. who examined According a psychologist the crimes. exhibits guilty, he was found defendant after for suc- good candidate and is potential rehabilitation environment to the structured adjustment cessful investigate or attorneys did Defendant’s trial prison. matters significant and other of these evidence present sentencing hearing. at the It is that both uncontroverted attorneys of the defense and persuaded defen- advised right dant jury to waive his to have the decide the capital sentencing because the attorneys issue believed the judge signalled to them that he would not impose the if penalty right death defendant waived his determine jury to have a Subsequently, his sentence. de- fendant was sentenced to death for the crime of murder in the course of attempted robbery. armed case,

The victim in this Bracy, walking Adrian with friend when companions, defendant and two Gregory Jerry Howard and Thompson, attempted an armed robbery. According to trial testimony, defendant pointed gun at Bracy and a "stickup.” announced Bracy threw a bottle defendant, of beer toward who then fired Defendant, Howard, the fatal shots. and Thompson subsequently were interrogated as suspects the homi cide. All three made incriminating police statements to detectives. Howard Thompson negotiated entered pleas of guilty and years received 35 in prison. Defen dant was convicted of murder in the course of attempted armed robbery and sentenced to death. This court af firmed Maxwell, on direct appeal. People v. 148 Ill. 2d (1992).

The instant post-conviction petition claims that trial counsel failed to adequately represent defendant at sev- key stages eral of the criminal proceedings. The alleged (1) errors include following: defendant’s trial lawyers induced right defendant to waive his to have a jury determine his sentence by advising defendant they sign had received a judge from the that he would not impose the death if penalty defendant jury; waived the (2) partly reliance on their belief that the court would not death, sentence defendant the defense attorneys investigate failed to significant or present evidence in mitigation at the capital sentencing hearing, despite the (3) evidence; failed

availability attorneys of such defense, choos- theory to offer a consistent or coherent ing virtually participa- instead to concede defendant’s argue, erroneously, tion in the crimes in order to intent because defendant lacked the kill and did victim, therefore was money take from the defendant felony not liable for murder. assertions, claims addition to the above defendant his state- suppress the outcome if defen-

ment and the trial itself would have differed files police reports dant had been able to obtain containing charges physical the numerous abuse of Crimes, suspects by including officers at Area 2 Violent Burge and at least three of the then Commander John interrogated in the individual detectives who defendant reports Had such been disclosed to defense case at bar. counsel, asserts, additional evidence could cor- developed strongly have been that would have roborated defendant’s claim that his statement was the these product of coercion officers.

BACKGROUND 1986, as a On November arrested in that oc- suspect a series of three armed robberies men, other day Thompson curred the before. Two Howard, in participation also were for their arrested those robberies. the codefendants Witnesses identified public An assistant defender was lineups. appointed charges. Approximately on these represent defendant later, codefendants were one week while the three charges, County robbery on the armed homi- jail Cook transferred the three men to Area cide detectives in connection with the headquarters questioning 23, 1986, and fatal robbery armed attempted October After 10 hours shooting Bracy. approximately of Adrian the three men interrogation, during which none of with their at- any calls or consulted telephone made gave torneys, incriminating all three statements to the police.

According testimony to defendant’s at the pretrial hearing on all three defendants’ suppress motions to statements, their permitted defendant was not to call a or lawyer family, despite his his on two occa- request to make sions such calls. Defendant also testified that kicked, threatened, he was punched, and slapped while during interrogation. handcuffed to a wall The other two suspects, Howard and Thompson, gave testimony regarding physical similar abuse and the denial their requests to telephone family members or attorneys. At the suppression hearing, defendant photo- identified graphs depicting injuries alleged that he resulted from during abuse he received interrogation. These photographs were taken aby defense attorney week after the interrogation. police Photographs Thomp- son’s injuries were also introduced at the suppression hearing.

In sharp contrast codefendants’ testimony, interrogated detectives who the codefendants denied they were physically mistreated and further testi- fied that the codefendants had not even asked to use telephone or consult with attorneys.

The trial court ruled that the codefendants had not proved that their statements were the product police coercion and accordingly denied'the motion to suppress their statements. The voluntariness of defendant’s state- ment was not challenged further by defense counsel at trial, argued to jury, challenged or appeal. on Ac- cordingly, this court on direct review did not consider any relating issue alleged beating defendant’s or co- ground ercion as a for suppression of his statement. The sole issue on appeal regarding direct suppression the of defendant’s statement centered upon defendant’s claim that his admission of involvement in the Bracy homi-

cide had been taken in violation of the Miranda protec tions because at the time Area 2 the detectives inter rogated concerning him the Bracy homicide defendant represented by court-appointed was counsel on the sepa robbery charges rate armed and counsel was unaware being questioned that his client was with respect to the Maxwell, homicide. See 148 Ill. 2d at 126-29. attempted Before trial on the armed robbery charges, judge murder denied the defense motion to presenting bar the State from evidence of defendant’s other, pending involvement in the three armed robber- charges. light ies In ruling, this adverse one of attorneys defendant’s informed the court that defen- waiving sentencing. dant would be for jury One the reasons counsel cited for the was her jury waiver belief that the evidence of other crimes would not be aggravation phase sentencing. admissible at Defense counsel apparently jury believed sentencing nonetheless would be influenced the trial regarding testimony pending defendant’s other criminal charges, and therefore be unable to render a fair addition, sentencing both of at- decision. torneys given believed that the trial court had them a signal the court would not the death impose penalty sentencing. if The jury defendant waived the at- torneys accordingly advised defendant of their "cer- tainty” judge impose the trial would not the death penalty, persuaded right to waive his sentencing jury. evidence, jury

At the close of the trial murder, including charge felony instructed on theories alleged in specifically which had not been the indict Maxwell, Defendant See 148 Ill. 2d at 132-40. ments. charged. phase of the crimes At the first was convicted sentencing, found that the State capital judge death-eligibility factor of murder proved statutory

129 felony. in the of a After the on course forcible evidence, mitigation aggravation the and the trial court imposed penalty. the death facts are as needed in the supplied

Additional analysis. context of the issues The appeal materials the record on consist of the included and 82-page post-conviction petition verified amended having four bound volumes of exhibits a combined total of approximately pages.

I. Ineffective Assistance of Counsel Of the several assertions of ineffective assistance of counsel, trial the I particularly two view as serious are the advice to waive the jury sentencing, for based on both attorneys’ defense belief that judge the trial signalled his impose intention not to the death penalty, attorneys’ the adequately investigate failure to present readily mitigation available evidence at capital sentencing hearing. Jury

A. Waiver Sentencing for Defendant’s in support affidavit of his post-conviction petition asserts that he jury waived the sentencing for based on the advice of his lawyers the trial judge would impose the death penalty. As majority reveals, opinion other affidavits attached to the amended post-conviction petition corroborate that defendant’s trial attorneys, Clare Hillyard Brennock, and Michael did in fact inform defendant judge the trial was not likely to impose death aas sentence if defendant waived jury. According affidavit, to one Brennock told de- ” fendant he was "99% certain judge would not impose the death penalty, and he and Hillyard were "stunned” when the court subsequently did Attorney so.

Hillyard stated an affidavit that she understood from comment, the court’s facial expression, and vocal inflec- tion that judge impose would not penalty. death denied, however,

Hillyard that her preparation mitigation strong evidence was curtailed because of her certainty impose the court would not the death penalty. The circuit court denied defendant’s post- requests depose conviction counsel’s Brennock and Hillyard.

Notwithstanding the undisputed factually cor- jury roborated assertion that defendant waived the sentencing attorneys’ express based on his two convic- judge tion that would not impose penalty, the death majority the holds that defendant has not met the of Strickland that he was actually preju- requirement by perceptions. majority diced counsels’ The concludes that Hillyard, because Clare one of at- defendant’s torneys, offered additional reasons for her belief that defendant right jury should waive his to have deter- sentence, mine his reasons that were consistent with le- gitimate strategy, trial no harm resulted to defendant. conclusion, support majority To its the discusses at length portions appeal, of the direct in which a different regarding Hillyard’s issue advice to waive the sentenc- ing against In direct jury was resolved defendant. acknowledged advice appeal, Hillyard’s this court that sentencing jury to her client to waive the was based on i.e., law, her that erroneous view of the evidence of ag- crimes would not be admissible in other gravation sentencing phase Hillyard at the of trial. be inflamed expressed jury concern would against if the that he was ac- jury defendant learned participating cused of in a series of armed robberies charges near in time to the for which defendant was on advised defendant to waive the Accordingly, trial. she sentencing. holding for defendant sustained jury respect- attorney’s no from his erroneous view prejudice other-crimes evidence his ing the admission on direct sentencing hearing, this court concluded main was to de objective prevent review that counsel’s being by jury possessing fendant from sentenced Maxwell, knowledge of defendant’s other crimes. 148 Ill. by recommending 2d at 144. This court observed that sentencing, waive jury Hillyard defendant strategic goal removing sentencing achieved this decision from the jury.

I note jury apprised that the of the other-crimes during guilt-innocence evidence phase of defendant’s trial because the trial court denied the defense motion in limine to bar pending reference to defendant’s armed Therefore, robbery charges. Hillyard’s advice to waive sentencing jury for fear that the jury would be inflamed the other-crimes evidence persua- was not a urging reason for sive jury consent to the Nonetheless, waiver. appeal the instant the majority large relies ato extent on the analysis of the direct ap- peal support its conclusion that defendant has not prejudice established stemming from attorneys’ misleading judge advice that was not inclined to impose the death penalty. The majority implies that if the defense attorneys’ sentencing advice to waive the jury may justified be any grounds on of the various advanced, prejudicial no error exists as a matter of law. not, This view does in my opinion, analysis. withstand In the appeal, unlike the direct de- appeal, instant fendant has offered affidavits outside the trial record showing that his defense attorneys informed him that judge the exhibited a physical sign that he would not impose penalty. affidavit, the death In his defendant states that he relied on Hillyard’s Clare advice that the judge trial told her he would not impose the death penalty. Defendant’s representation reliance on such as primary waiving the reason for sentencing jury the far compelling more than the other reasons offered. facing Would not a defendant capital punishment waive jury sentencing the for if counsel that the trial declared impose court manifested its intent not death? To conclude, here, merely majority as the does that trial may facially counsel have had other valid reasons to jury sentencing waive the for is to evade the essential i.e., point argument; of defendant’s if trial counsel had not assured defendant that the trial court stated it impose penalty, would not the death defendant would circumstances, jury. not have waived the Under the I cannot conclude that defendant and intel- knowingly ligently jury sentencing. waived the for Nor can I join majority’s conclusion defendant was not prejudiced by misguided his counsel’s assurances judge Therefore, I impose would death. would permit defendant an opportunity proceed to evi- hearing on claim dentiary of ineffective assistance of jury with respect counsel waiver. matter,

As a related defendant contends that granted trial court should have his motion for substitu- tion judges, presented part post- which was as proceedings. summarily conviction The court denied the appears motion and no discussion of its merits in the argues In the instant transcript. appeal defendant ruling the court should have recused itself from on the post-conviction petition amended because the impartial- ity question of the court had been called into over the attorneys’ issue of the waiver and trial belief that jury signalled on the issue of the court had how it would rule Moreover, claims, during penalty. the death defendant rights the issue of his the court’s admonishments on trial did not respect jury, with to waiver of the court any promises whether defendant had received inquire sentencing. jury or inducements to waive the Ac- argues, cordingly, post-conviction petition for consideration a dif- should have been transferred judge. ferent

133 ac not address or even majority opinion The does defendant’s motion knowledge by the concerns raised signifi judges, despite apparent for substitution of Hillyard of Clare and cance of the issue. The affidavits indicate that the trial appellate counsel at something which led the defense judge conveyed certainty with 99% that the death torneys to believe penalty seriously being penalty was not considered as a by hearing on the judge. the trial Had petition or a on the motion for substitution of allowed, judge the trial judges likely been it is that might have been a witness on this issue. In view of the involved, any alleged serious stakes "cue” from the judge raises the I possible appearance impropriety. believe, therefore, circuit court should have granted judges. the defense motion for substitution of (1967). See, Ill. 2d e.g., People Washington, 38 v. B. at Representation Sentencing Counsel’s Defense Defendant claims that his trial counsel was ineffec- failing in investigate present significant rtive to readily mitigation in available evidence of the death defendant, According penalty. to defense counsel’s cursory incomplete evaluation of his case for sentencing purposes part resulted because counsel strongly going believed that trial court was not to impose Irrespective the death sentence. of the cause of concludes, failings, counsel’s the result inadequate preparation capital sentencing was highly prejudicial because it left the court with the impression, emphasized by mistaken as the court’s remark, single mitigating there was not "a factor” finding preclude imposition of death. This the court "dutybound it directly holding led to its was the ultimate impose penalty.”

Initially, majority opinion I note that does not fail- attorneys’ address defendant’s contention that his ure investigate and present mitigation at the sentenc ing hearing based, part, least on their errone interpretation ous judge’s "signal” that he would impose penalty. true, the death If the defense at torneys’ alleged shortcomings at sentencing cannot be ascribed to proper strategy. See, trial e.g., People v. (1995) (trial Orange, 168 Ill. 2d 168-71 counsel’s de cision present not to mitigation testimony, based at least in part on counsel’s mitigation belief testimony would not influence sentencing judge, justi could not be as legitimate fied strategy). Adequate preparation aggravation mitigation phase capital of a sentencing a crucial aspect of defense duties, counsel’s prejudice as resulting from ineffective capital assistance at sentencing is likely to be fatal. After examining I record believe that defendant strong has made a preliminary showing of ineffective as- sistance of sentencing counsel at the phase of his capital prosecution granted and should be an evidentiary hear- ing on the merits of his claims. Among the numerous exhibits attached to the petition is the affidavit psychologist of the clinical who tested defen- dant and him found to be within the borderline mentally range retarded of intellectual ability. Other evidence reveals defendant’s history psychological, serious physical, and developmental problems beginning in childhood; the resulting school; he difficulties faced at and an family extensive history drug alcohol coupled abuse wdth family’s extreme denial of such problems. None of this presented material was or considered sentencing fact, defendant’s hearing. the mitigation witnesses who testified denied or down- played the existence of defendant’s impairments and his family’s dysfunctions.

According defendant, his trial counsel failed interview him in depth to elicit material in evidence days him af- meeting with was mitigation. Her first incarceration, jail ap- him and she visited ter his 15 months. Defendant four times within proximately family certain his counsel failed to seek out argues that having knowledge of his back- and others members medical records to failed to obtain school and ground; condition; failed physical his mental and help evaluate examination; and failed psychological to order current evaluation professional to obtain functioning. its effect on his substance abuse and Instead, mother and a few counsel called defendant’s mitiga- family testify other members and friends character, good adequately to his but failed to tion as prepare adequate prepara- the witnesses. This lack of misguided led to the witnesses’ and inaccurate tion life, which portrayal history family of defendant’s prosecutor’s argument in turn invited the the evi- good background family actually aggravat- dence of ing, mitigating, rather than in nature. Defendant fur- charges investigate ther that his counsel failed to and present relating potential evidence to his rehabilitation and for a capacity positive adjustment to the structured if prison. environment of He concludes that the materi- post-conviction als in the petition presented had been sentencing hearing, the likely the outcome would have penalty differed and the death would not have been imposed. majority opinion quotes portions

The describes or mitigation the proffered part post- evidence as of the acknowledges petition expressly conviction “numer- bearing supporting reports ous and affidavits” on the mitigation observation, making issues. After this however, the majority inexplicably pronounces, without analysis, gulf relatively slight judge the trial

"[t]he between what reading presentence investigation knew from his report sentencing respect at the time with to defen- development

dant’s intellectual and deficits and his and family’s drug and alcohol abuse and what defendant alleges regard in post-conviction this in peti his amended result, tion. As a that, there is no probability reasonable provided had counsel this information to the court and upon sentencing hearing, focused it at the the court would have concluded that the aggravating balance of *** mitigating factors did not warrant imposition penalty.” the death 173 Ill. 2d at 112.

I join cannot in comparison such a of the materials presented in petition with the pro presentence investigation report. The former forma contains extensive records, school and medical af- fidavits, and other sources, material from outside while presentence report consists almost entirely of the self-reported defendant, statements of with little or no or elaboration example, corroboration others. For heading under the "Physical Health,” and Mental brief entry presentence investigation report re- lates defendant’s statement that his third-grade teacher psychiatrist, recommended he see a and that he saw "some during doctor” weekly third and grade, fourth but that defendant "has why no idea he seeing this doctor and doesn’t remember what the name doctors[’]s was.” The defendant presentence also stated to the interviewer that he was placed slow learner classes but, grade again, since the fifth had "no why.” idea vague, contrast to these uncorroborated state- ments attributed to defendant in the presentence investigation report, post-conviction peti- amended significant tion factually offers detailed and verified exhibits. These reports school-initiated include relating deficits, referrals to defendant’s physi- mental cal problems, and behavioral disorders detected as early foray as his initial into public system, school in the grade. According first a report Chicago 1972 from the system, Mentally school Bureau of Handicapped Chil- dren, grade below-average entered first with deficit, referred to a and was skills, from vision suffered he because for examination psychologist the school noises, class, fell out funny made to himself talked his atten- chair, help constant to focus and needed referred for matters. He also was tion on classroom eye an condi- and found to have medical examination eyes), or both (inability to aim one tion called strabismus at 86 in IQ tested required surgery. Defendant’s which examination, indicating average rate initial "slow this made growth” psychologist and the school of mental recommendations, concluding that "[w]arm certain help for small efforts will this child.” praise Hospital Michael Reese Defendant was referred to vision, neurologi- physical, and Medical Center for center, an testing. report cal from medical complete interviewer was unable to her evaluation inability because of his developmental the child’s status during testing. report to concentrate The notes that boy’s expressed surprise mother at her son’s inattentive- ness and claimed his behavior home was different. Hospital report boy The Michael Reese noted that great potential provided to have a deal of if ”seem[ed] with direction and successful and recom- experiences” learning mended that defendant receive disabled ser- However, system. vices from the school he did not im- mediately repeat receive such services and had to grade. spent years adjust- third He also five in "social finally being placed ment” classes before in classes for in 1978. mentally handicapped educable examination, January In a 1980 school IQ indicating "a rate mental slipped slow growth.” The report noted that defendant’s vision and further problems had not been corrected appeared very stated that defendant to be "a worried boy readily and insecure who overwhelmed [was] encouragement.” Emotionally, tasks and needed much he was viewed as a "highly dependent youngster with very low self-esteem who requires much support and re- grades assurance.” Defendant’s while in school were poor and he dropped high out of school in his second year.

The post-conviction materials also contain a lengthy affidavit from Hemmerich, Dr. Louis the clinical psy- chologist who examined and tested defendant at the behest of post-conviction counsel. Dr. affi- Hemmerich’s davit large enumerates number of records and af- fidavits he reviewed in addition to testing of and defendant, interviews with which lasted six hours. He found that IQ 77, full score indicating a borderline mentally range retarded of intellectual abil- ity which placed him at percentile sixth when compared to age range. others of the same Defendant also significant demonstrated impairments in his com- monsense judgment and abstract verbal reasoning. Dr. concluded Hemmerich that defendant was dependent others, upon wanting their approval, and had adopted his family’s denial, coping style of which stemmed from substantial use drugs. and abuse of alcohol and Dr. Hem- merich also concluded that rehabilitation was "certainly possible” defendant, who exhibited remorse guilt. The doctor further concluded that defendant adjust would well to the structured environment prison.

As the demonstrates, record the instant case majority errs in implying that the cursory presentenc- ing investigation report provided the trial court with adequate and credible information respecting defen- dant’s mental and health physical and social develop- ment. "relatively slight” gulf To characterize as be- tween what is contained in the presentence report what is revealed in the numerous exhibits attached to the post-conviction petition a comparable equating blurred snapshot full-length documentary with film. the materials basis of conclude on the I would Il and under post-conviction petition in the contained individual did not receive the that “defendant linois law the Constitution sentencing determination ized Perez, 148 Ill. 2d v. People requires. [Citation.]” (1992). Perez, court held an eviden the circuit 195-96 allegations of the defendant’s tiary portion on court appeal, On this post-conviction relief. but denied judgment vacated reversed sentence, holding that a new sentenc defendant’s death because constitutionally required ing hearing was investigate and had failed to defendant’s trial counsel includéd mitigation. Such evidence provide evidence mental defi reflecting records the defendant’s school defendant was abandoned ciency and evidence that the bar, teenager. As in the case by family his as a psychologists school reports Perez there existed from mea indicating aptitude, as history of low scholastic scores, in the by IQ problems and behavioral sured low “a approval cited with classroom. This court Perez line cases in counsels’ failure to of Federal which histories investigate present and defendants’ mental of reasonable objective was found to fall below standards of counsel.” and constitute ineffective assistance ness alia, Perez, Brewer v. Ai (citing, 148 Ill. 2d at 190 inter (7th Zant, 1991), ken, Cunningham Cir. v. 935 F.2d 850 (11th 1991), Stephens Kemp, 1006 Cir. and v. 928 F.2d 1988)). (11th 846 F.2d 642 Cir. bar, Aiken, case at the defendant

In similar to the a series of armed accomplices and his had committed during killed a victim day, robberies in one and then an extensive The defendant had robbery. another armed upon to death his history and was sentenced criminal robbery. of armed of murder in the course conviction However, Appeals reversed the Seventh Circuit Court trial assistance of for a new trial based on ineffective counsel because counsel had failed to obtain pres- ent evidence of retardation, defendant’s borderline fail- school, ure in Aiken, tendency easily to be led. F.2d at 859. light persuasive force of such decisions as

Aiken, Perez, above, the other cases cited the deci sion of the majority in the case at bar is difficult to comprehend. The majority, citing the second prong of Strickland, simplistically seizes upon the circuit court’s statement the result sentencing would not have differed if mitigation even evidence presented. been doing, In so however, majority fails to consider as true the well-pleaded allegations supporting defendant’s constitutional cause of action and thereby fails to apply settled principles post- of our See, e.g., People Caballero, v. conviction law. 126 Ill. 2d (1989). 248, 259 The majority offers no decisional author ity justify its rejection of defendant’s claim that he was denied effective assistance attorneys’ failure investigate and present mitigation evidence. Indeed, majority makes no attempt justify defense attorneys’ failings proper as strategy but instead finds a lack prejudice resulting from counsel’s fail ings. As previously discussed, the majority’s belief the presentence report adequately apprised the court of background is simply unsupportable. Accordingly, the majority’s application mechanical of Ruiz, Strickland rings hollow. See People v. 1, 132 Ill. 2d (1989) ("the 25 sentencing authority *** capital in a case may not refuse to consider mitigating relevant evi dence concerning the offender or the circumstances of offense”). Ruiz, this court held that the defen "unchallenged dant’s allegations” unheard of inef counsel, fective assistance of based on failure to investi gate mitigation evidence, and present required an evidentiary hearing on the post-conviction petition the record before this court the Strickland because on meaningfully applied. standard could not be especially disturbing, I find it under the facts of this case, majority readily that so embraces the circuit mitigation that evidence would supposition court’s penalty. not been sufficient to the death preclude have there is much to My review of the record indicates against penalty. militate of the death The imposition surrounding armed rob attempted circumstances egregious or bery appear unusually and homicide do not testimony The trial cruelty. indicative wanton Bracy swung indicates that shot he or was after threw bottle at Bracy’s companion, defendant. who testified defendant, against It shot. would not have been unreasonable to infer from these facts that defendant might simply panicked unreasonably have or felt at the Al Bracy. threatened sudden movement from though the implied slaying State was an “exe cution,” the mere fact that more than one shot was fired support light does not State’s characterization Moreover, the other facts. precedent case demonstrates that, although the nature the crime may be considered in aggravation, even heinous crimes do not obviate the need for an evidentiary hearing when trial counsel fails investigate mitigation and present evidence at See, sentencing. e.g., v. People Orange, 168 Ill. 2d (1995) (rejecting argument State’s the defen

dant prejudice resulting failed to establish from coun assistance, sel’s ineffective even where the “heinous nature of the murders for multiple which defendant was factor”). aggravating convicted is not an inconsiderable (1994) See also 2d 148 People Thompkins, v. 161 Ill. (remanding for evidentiary post-conviction on where, claim of assistance of counsel even ineffective though counsel had introduced into evidence sentenc defendant, ing 50 letters in support 142 family

affidavits of members and friends were of such significance relating that evidence thereto should have been presented sentencing). at

The comparatively prison shorter sentences defen- dant’s accomplices two received further indicate that prejudice suffered from the performance of sentencing. Howard, his counsel at Thompson and two other participants in the attempted robbery armed Bracy, murder of pleaded guilty and thus were criminally responsible for the same crimes as defen- defendant, dant. Like Thompson and Howard were charged with participants and identified as in the three other armed robberies that occurred on November Thompson 1986. and defendant were further identified sentencing hearing being as involved in a 1, 1986, November shooting incident in which a mail- man was wounded. Notwithstanding this history shared offenses, of a recent spree of similar Thompson and How- (the ard only maximum, each received years prison period unextended of imprisonment for murder was 40 years), as a compared with sentence of death for defen- Moreover, according record, dant. Thompson to the history criminal that included prior felony two convic- tions, while defendant had prior one criminal convic- (in tion, a 1984 robbery which Thompson partici- also pated). Finally, although the three armed robberies of 3, 1986, great harm, November created a risk of none of killings them resulted in any victims. For these reasons, mitigation presented evidence in the instant post-conviction petition attains impor- critical right tance to defendant’s to effective assistance counsel and process due of law. summarize,

To taking well-pleaded allegations true, post-conviction petition specific as circum- simply of the instant case do not justify the stances majority’s ruling that the outcome would not have dif- mitiga- the evidence in fered if the had considered court years was 19 old at the time com- tion. Defendant retarded, homicide, mentally borderline mission of disabilities, history physical and had a documented deficits, developmental problems, profound mental along history of familial substance abuse with fail assemble and only denial. Not did his counsel during this critical to the court present evidence sentencing, mitigation testify but the witnesses who did his- development family characterized defendant’s and contradicting the actual circum- tory starkly terms stances. Defendant’s mother denied that defendant was using drugs or alcohol denied that he had had se- and problems grades Although vere or even bad in school. mitigation the several witnesses testified that defendant displayed any had not help- violent tendencies and was a them, ful trustworthy person around these wit- nesses also denied drugs that defendant abused or As a result of apparent attempt paint alcohol. their more wholesome picture background, of defendant’s witnesses actually contradicted state- defendant’s own regarding ments his substance abuse the presentence report.

Given the substantial in mitigation evidence presented, was solely due to the defense attorneys’ investigate, failure to sentencing hearing was not a proceeding true adversarial type of the required by Therefore, the sixth strongly amendment. I my colleagues’ grant dissent from refusal defendant an evidentiary hearing on defendant’s claim of ineffec- tive assistance of counsel. The result the majority’s of permit decision is to execution of this despite defendant serious constitutional flaws in defendant’s prosecution, particularly sentencing hearing.

II. Motion to Suppress Statement Based on Police

Coercion post-conviction petition, his amended argue relies on material outside the trial record to inculpatory police following his statement to the his interrogation tactics, was the result of coercive includ- ing evidence, physical abuse. The new which was by counsel, obtained includes internal affidavits, lawsuits, police reports, legal filings in other lengthy corroborating additional exhibits charge of widespread physical abuse of suspects under inter- rogation at Area 2 Violent certain Crimes detectives supervisors as a forcing means confessions. Specifically, report record contains of an Office (OPS) of Professional investigation Standards into during headquarters reign claims abuse at Area 2 Burge, of Commander John who has since been termi- Chicago police nated from the force as a result investigator misconduct.1 An OPS ap- who studied proximately police during 50 claims abuse through 1986 concluded: preponderance "[T]he evidence is that abuse did occur and that it system- atic.” He further that "[t]he found number of incidents in which an Area 2 command member as identified an accused can only lead to one conclusion. Particular command members systematic were aware of the abuse perpetuated by actively it either in participating failing any bring same or to take action to it to an end.” petition Defendant’s an affi- contains by attorney claiming experience davit an considerable in police attorney abuse cases. This drew on his own ex- perience years litigating, investigating, of almost 30 or reviewing approximately police brutality claims. He report also evaluated the OPS and other information he discharge Burge disciplinary 1The of John and the related suspensions Chicago police grounds of two other officers on of by improper upheld appellate unpub conduct were the court an Board, 94—0999,1—94— opinion. v. O’Hara Police Nos. lished 1— (December 1995). 2462, 1—94—2475 of the four attorney This concluded that three received. interrogation at who in defendant’s officers participated engaged Area 2 had been identified as officers who had during in a the time defendant and pattern brutality interrogated. his codefendants were record contains filed in federal pleadings The also court, testimony, and orders in which the transcripts City Chicago police brutality. has settled claims of alleged These materials from other cases involve the officers, physical abuse of other Area 2 defendants including police officers procured who inculpatory statements in the instant case. "[njumerous acknowledgment

Despite its exhibits, including affidavits, reports, transcripts, are petition [which] attached to amended [defendant’s] (173 120), of this claim” support major Ill. 2d at ity opinion does not further or consider describe now suggesting systematic available evidence police misconduct at Area. 2 at the time of defendant’s inter rogation. Instead, the majority summarily disposes of defendant’s claim of police by deferring coercion to the original trial court’s finding, at the suppress statements, codefendants’ that defendant was not injured that "any alleged injury did not occur as a any police result of prior giving action the statements sought suppressed.” to be 173 Ill. 2d at 121. view,

In my such a cursory disposition of this serious key issue avoids the inquiry that this court must in considering undertake defendant’s claim: Is there a substantial likelihood that the suppression result hearing would have differed if defense counsel produced evidence that linked testifying officers who denied striking to a widespread practice of abuse at Area 2? Certainly such information could have had a dramatic influence on perceived credibility of all the -witnesses who testified at the suppress to the however,

codefendants’ majority, statements. The disregard chooses to impact might the such evidence credibility have had on witness by merely assuming that the trial finding court would have made the same —that injured by police custody- was not while in even if there a strong showing systematic had been prisoner by interrogated abuse the officers at Area 2 who ignores defendant. The majority also the fact that photographs defendant’s and Thompson’s injuries were suppression hearing. admitted at the

I do not that the majority fairly believe can dispose solely by relying original issue on the trial court’s i.e., finding suppression hearing; at the that defendant physical injury not established caused police of- ficers. The issue of police post-conviction coercion the petition presented ongoing is in the context of sys- tematic at abuse Area an issue which was not present suppression hearing. the To arrive at the conclusion majority ignore the reaches it necessary to either materials post-conviction included in the or petition conclude they probative lack value under specific circumstances of defendant’s claim. true, may brief,

It be as the State insists in its post-conviction regarding materials allegedly widespread abusive at Area 2 are practices irrelevant claim and thus would be deemed inadmis- However, at an evidentiary hearing. sible the require- ments for determining evidentiary hearing whether an application should be held differ from the of the rules of evidentiary hearing. stage evidence at such an At this I proceedings inappropriate believe it is to affirm by merely dismissal of this claim conjecturing proffered some or all of the evidence subject evidentiary challenges hearing. would be at a Moreover, majority expresses opinion no as to evidence, choosing probative value of this instead to finding at the merely repeat suppres- the trial court’s coerced, through was not sion that defendant abuse, relating Bracy give his statement to the police ruling, majority its assumes that the By homicide. tending to cast doubt on the availability of evidence changed not veracity testifying officers would have hearing. suppression the outcome of the my purpose imply It is not in this dissent during allegation physical defendant’s bare abuse interrogation grounds is for new trial or reasons, For if a practical relief. defendant’s assertion physical by abuse is uncorroborated other evi police by dence, records, photographs, such as medical or third- observation, party the defendant’s claim of coerced See, Lamb, may e.g., confession fail. In re 61 Ill. 2d 383 (1970). (1975); Johnson, People v. 44 Ill. 2d 463 Nonethe less, this court has held that the State bears the burden establishing by preponderance of the evidence that a defendant’s voluntary (e.g., confession was People (1987)). Wilson, 29, v. 116 Ill. only 2d 38 If the evidence of coercion is testimony, and that testimony by is contradicted prosecution, witnesses for the trial may court choose to believe the State’s witnesses. (1954). Frana, E.g., People v. La 4 Ill. 2d However, undisputed where it is evident or that defen injuries dant received in police custody while and the only question why injuries how and were sus tained, more by than mere denial of coercion the police (La 267) Frana, is necessary 4 Ill. 2d at and the State higher establishing, by will be held to the standard of convincing evidence, clear and injuries that such were by police not inflicted officers to induce defendant’s 40). (Wilson, confession 116 Ill. 2d at Wilson, witnesses, including the State’s the police officers, Attorney, the assistant State’s and the court statement, reporter who took defendant’s all testified under oath that defendant was not threatened or harmed by police. The trial court denied the motion to suppress. Compelling contradicting evidence court’s conclusion that defendant’s confession was not court, coerced led this in the direct appeal, to reverse conviction remand the case for a new trial. The evidence of record included testimony injuries interrogation did have noticeable before the testimony and the of doctors who examined the defen directly interrogation dant after his sig and discovered burns, cuts, face, chest, nificant and bruises on his (1989) See also People v. legs. Banks, 192 Ill. App. 3d 986 (reversing for new trial where fact of defendant’s injuries while in police custody was corroborated evi including dence medical testimony, police and the offic ers’ explanation that defendant accidentally fell down the stairs was deemed insufficient to sustain the State’s burden establishing voluntary of nature of confession by evidence). clear and convincing In the instant case there is less evidence of actual injury to- defendant than existed in the Wilson Banks cases. Nonetheless, it does not appear accurate to conclude, here, there was no majority as the does that corroborating evidence physical claim of During abuse and coercion. suppression hearing the the court was presented with photographs codefendants’ testimony regarding alleged the physical abuse. While finding the trial court’s of injury po no attributable to lice officers may supported have been the evidence presented and scope thus within the of the trial court’s it, discretion based on the facts precise before the issue revisiting original before this court is not a mere of the Hobley, v. People suppression hearing. Ill. 2d Cf. (1994) (on 272, 294-95 direct no appeal, where evidence existed to link defendant’s chest bruise to abusive tactics interrogating defendant, police of while trial court’s denial to not an of discre suppress of motion was abuse tion). the of reviewing We are voluntariness the Rather, question confession direct upon appeal. suppression hearing whether likely outcome would if have differed the same officers who told the they subject court did not harm defendant had been impeachment revealing pattern based on evidence a interrogation abusive employed by tactics them my of other defendants. I colleagues, Unlike cannot simply findings conclude the trial court’s at the suppression hearing, on the based information then available, compel holding defendant, this court’s "by tangential allegations, these has failed to make a showing rights substantial that his constitutional were violated.” 173 Ill. 2d at 121.

My pertinent examination reveals transcripts that the post-conviction judge apparently foreclosed fur- ther inquiry into the Area 2 issue of abuse before the amended petition During was filed. court session which defendant’s motion for substitu- tion judges presented, was and denied without com- ment, defense counsel sought discovery leave to issue subpoenas in order to fully prepare peti- the amended tion. The transcript Attorney indicates State’s willing satisfy requests involving subpoena mat- State, ters within control including copy of However, the "Burge report.” judge, the circuit court expressing issues, his intent spontane- narrow the ously cryptically and somewhat views announced his on the alleged at abuse Area 2: specifically Burge

"I don’t care John what did Area 2.1 Burge anything don’t think John this to do with case retry going whatsoever. We are not to the case in Wilson courtroom, any this and I wouldn’t turn of that stuff over *** People if going I were I am the of the State Illinois. you going hearing to tell it come out in a here. to gone through That in has been four or five times other Burge through courtroom. John going this courts. It is not Andrew, Maxwell is. a clue who probably doesn’t have out. out.” That’s That’s by post- interjected opinion the was The above discovery during judge discussion of a routine conviction presented its motion State had not matters. The petition and. had not at that time dismiss defendant’s subpoenas objection expressed in issue when to the an above, judge judge denied remarks. The offered the the discovery request certain to obtain defendant’s hearing State’s motion to dismiss on the advance the petition post-conviction and instead “reserved rul- the ing” subpoenas on the after the on the until judge indicated to dismiss. The further motion to parties of the other issues he considered most by petition post-conviction barred waiver to be suggested judicata. that the State then res The court single issue its motion to dismiss on concentrate during the sentenc- of trial counsel ineffective assistance ing proceedings. judge’s in- remarks reflect his

The intent curtail police quiry Area coercion at into claim challenge admissibility Although of some of to the 2. might fouiided,' I do not believe be well the materials sup- petition raised in defendant’s that the issue given by ported a fair exhibits hás been the numerous I or this court. the circuit court evaluation either presented in discount as irrelevant the cannot material? support petition' tend egregious repeated on the abuses inference that police part at Area 2 occurred least certain officers of at contemporaneous headquarters de- to the time in which Bracy interrogated being homi- about fendant hearing evidence, no court can conclu- cide. Without sively extent, whether, what and to determine interrogated may have who officers individual interrogation participated abuse and whose in routine have been suppression hearing might credibility at the result. impeached as a stated, this cause to

For the reasons I would remand evidentiary for an on the the circuit court herein. claims discussed

(No. 77549. ILLINOIS, THE PEOPLE OF THE OF STATE Appel- lee, NITZ, v. RICHARD C. Appellant. 20,

Opinion Rehearing June denied filed 1996— September 1996.

Case Details

Case Name: People v. Maxwell

Court Name: Illinois Supreme Court

Date Published: Jun 20, 1996

Citation: 670 N.E.2d 679

Docket Number: 77419

Court Abbreviation: Ill.