People v. Peeples

(No. 83783. ILLINOIS,

THE OF THE STATE OF Appel- PEOPLE lee, PEEPLES, v. WILLIAM Appellant.

Opinion Rehearing August June denied 2002. filed 2002 . HARRISON, C.J., KILBRIDE, J., dissenting. and Carlson, Marshall J. Hartman and Martin of the S. Defender, Chicago, Office of the State of Appellate Carlson, Northbrook, Anne E. of appellant. for Ryan, Attorney General, James E. Springfield, (William Devine, Richard A. State’s Attorney, Chicago Browers, L. Attorney General, Chicago, Assistant Goldfarb, Fitzgerald Renee G. James E. and William D. Carroll, Attorneys, counsel), Assistant for the State’s People. opinion delivered the

JUSTICE McMORROW court: (725 Hearing to the Act ILCS

Pursuant Post-Conviction (West 1994)), defendant, seq. Peeples, et William 5/122—1 County post- court of Cook for petitioned circuit relief. The circuit court dismissed defendant’s conviction conducting an post-conviction petition amended without evidentiary hearing. Because defendant was sentenced conviction, appeals murder he underlying death for 651(a). For the reasons directly to this court. 134 Ill. 2d R. follow, judgment affirm the of the circuit court. we

BACKGROUND detailed the evidence previously This court has opinion presented on direct trial in our at defendant’s (1993). Peeples, appeal. People Therefore, 2d 422 155Ill. v. necessary only to the facts which are state here those we disposition appeal. of this May 1988, arrested for the 18, defendant was

On Dudovic,who was discovered stabbed murder of Dawn day. Schaumburg apartment earlier that death in her Allen, lived in an fiancée, and Defendant Vanessa apartment. apartment next door to the victim’s evening May During early 18, Pamela the hours of and roommate, returned home Killeen, the victim’s parking Upon in the lot. arriv- the victim’s car observed apartment ing 102, the she at the front door of unit a red-stained victim, the Killeen discovered shared with prevented piece paper wedged in the door which towel locking. paper Killeen removed the towel the door from apartment. and the then noticed red stains entered She leading carpeting kitchen, on the and to the and walls lying discovered the victim on her back on the kitchen attempt help, floor. In an immediate to seek Killeen pounded apart- on the front door of unit to knock and ment. Killeen testified she continued the door unit 101 for a minute because scream at about apartment. However, had heard inside that she sounds sought response, no she and received when there was help neighbor, from another Kenneth Evenson. Evenson apartment, accompanied the Killeen to her observed lying pool floor, the kitchen in a of blood on victim Shortly apartment paramedics. the returned to his to call paramedics pronounced thereafter, the the arrived victim dead. approximately p.m., members of the Schaum-

At began arriving apartment burg police department the building. complex and initiated a canvas of When they received no officersknocked on the door of unit ap- response. However, noticed that shadows the officers peared disappeared through apartment’s peep- indicating present hole, that an individual was inside. building’s manager The officers contacted the and were told that Vanessa Allen tenant of record for unit telephoned work, 101. When the officers Allen at she police apartment informed she lived alone. information, Based on this the officers concluded that no apartment. one should have been approximately p.m., police yet At 7:40 had not gained entry time, into unit 101. At that the officers coming observed smoke from underneath unit 101’sfront apartment door. anWhen officer went to the rear of the through separation and tried to look into the bedroom suddenly up in the curtains, window the curtains went officer, flames. The who then had an unobstructed view burning bedroom, observed two fires in that room. appeared addition, In it that at least three other fires burning living Shortly were in the thereafter, room. Schaumburg firefighters arrived at the scene and broke firefighters out the bedroom window of unit 101. The apartment then extended fire hose into the and at- tempted extinguish point, the blaze. At that appeared apartment through inside the and exited shattered bedroom window.Defendant was arrested and by police transported hospital, to a local where medical personnel deep tended to a laceration on his left hand through fingers that had cut the tendons of three bleeding profusely. which was Defendant also had a part second cut at the web of his left hand. police warrant,

Pursuant to a search officerssearched apartment defendant’s separate and discovered evidence of six living separate in the fires room and six fires in by igniting the bedroom. Each fire had been started small piles piles of items. Recovered from one of these was a license, wallet that contained defendant’s as well driver’s large as a kitchen knife with a bloodstained wooden in the liv- a satchel Investigators also discovered handle. cup. a coffee Examination room, contained ing which spat- and was sugar it contained revealed cup this tered blood. their time, also continued

During police this An evidence apartment. at the victim’s investigation from the kitchen and samples collected blood technician trial, expert At apartment. the victim’s other areas of samples taken from testified that the blood serology type were of apartment locations in the victim’s several serologist The A, type. was defendant’s blood which discovered on defen- further at trial blood testified knife recovered from his dant’s and on the wristwatch AB, type type determined to be the blood apartment was piles adduced that two Testimony of the victim. was also of a white substance were discovered on the floor of one door and near apartment, victim’s near front one later confirmed doorway. the kitchen This substance was sugar. An on the victim revealed that autopsy performed had suffered and 16 incised she 23 stab wounds wounds. The victim also exhibited defense wounds to her several examiner, hands and arms. to the medical According wounds, as a three of multiple victim died result stab lung, which her liver and heart. The medical pierced inflicted upon examiner further testified that the wounds the knife the victim could have been made recovered apartment, although they from defendant’s could not be certainty any weapon. tied to particular with According Defendant testified on his own behalf. to defendant, 18, 1988, he did not morning May on the ill, took go to work because he was over-the-counter medication, the Defendant stated slept day. most of package that at he removed a approximately p.m. pry frozen from the freezer and pork chops attempted kitchen knife. Defen- pork chops apart sharp the dant, handed, who is left held the package pork chops in his left hand and held the knife in his right hand as he tried to pry the meat apart. Defendant stated that the knife slipped, and he suffered a minor cut to his left hand. Defendant testified that when he made a second attempt separate pork chops, the knife slipped again and a deep bloody caused wound to his left hand. According defendant, he wrapped his hand to control the bleed- ing, relievers, down, took pain lay and fell asleep.

Defendant testified that he was awakened from his sleep by his telephone ringing on pounding his front door. Defendant stated that he looked through the peephole, police, saw and did not respond because he did not want the building management to discover that he had been living apartment, registered which was only in Allen’s name. Defendant denied that he had set the fires in apartment, his and asserted that police into apartment broke and set the fires an effort to force him out. Defendant also denied placing knife piles clothes, one of the of burning and contended that police placed the knife and pile wallet in the he because most convenient suspect and also because of “the prejudice in the northwest suburbs.”

During cross-examination, the State confronted defendant with a of an photograph unopened package of on pork chops lying the kitchen counter in defendant’s apartment. The unopened State then introduced the package addition, into evidence. In defendant had no explanation for the fact that the kitchen knife handle ap- when, peared according be covered with blood to his testimony, only the of the knife had blade cut his hand. 7, 1990,

On March at the close of and after evidence argument, returned verdicts jury finding defendant murder, guilty degree aggravated arson, of first home pursuant invasion and armed violence. On April jury, to defendant’s waiver of a pre-trial sentencing sentencing hearing phase was of defendant’s first judge that defendant was conducted. The trial found eligible penalty death under section 9—1 of for the 1(b)(6) (West (720 Criminal Code of 1961 ILCS 5/9 — 1994)) age years in he at the time of that was over degree and that had first the offenses he committed in the course of a home murder invasion.

Immediately following finding the circuit court’s eligibility, prepared the State indicated that it was proceed phase penalty to the second of the death hear- ing. stating requested continuance, counsel Defense aspects mitigation are certain “there we were working mitiga- [sic] on,” still and that there were some “investigator trying tion witnesses that their request continuance, locate.” Defense counsel’s for a principally upon discovery however, was based their spinal meningitis youth, defendant had suffered from as a “may shortly brain,” which have affected his and that before the offenses defendant was a car accident where requested he lost consciousness. Counsel therefore ad- complete neurological workup ditional time to “do a on just [defendant] for if, the brain to see how his brain is.” they engaged Counsel stated that had in discussions with psychologist, Rosenwald, Dr. who believed that “it might appropriate testing.” to do the

When the court commented that defense counsel had four weeks since the time of defendant’s conviction to prepare mitigation responded they case, counsel diligent they any sugges- “resist[ed] had been and that preparing tion that we have not been for this.” Counsel they engaged stated that had in conversations with they mitiga- defendant, and that had interviewed several provided witnesses, tion and that these interviews had potential they additional names of witnesses with whom they had been contact. Counsel stated that had “already talked to and interviewed” several witnesses However,

who were in court. present although they had “working very this,” been hard at counsel stated that “there are some matters that inevitably arise the last days hearing, you few before such a are those what hearing are about now.” The court denied defense continuance, counsel’s motion for a and the second phase sentencing hearing began. of defendant’s In aggravation, presented the State evidence of three First, prior convictions of defendant. the State introduced a certified statement of conviction that on showing July 12, 1983, had at- guilty plea defendant entered had tempted rape burglary residential been years’ sentenced to four In connection imprisonment. conviction, presented testimony with this the State victim, Mowery, years Lisa who was 13 old and baby-sitting three-year-old had been for her sister at the Mowery time of the offenses. testified that defendant had Schaumburg, knocked at the front door their home in down, and if he stated that his car had broken asked help. Mowery could use the to summon let telephone house, telephone defendant into the defendant made a call, if he could in the house Mowery and asked wait defendant Mowery until his ride arrived. testified that neck, grabbed then her around the held a knife to her ribs, bedroom, forced her to the and instructed upstairs refused, clothing. Mowery her to remove her When began threatened to kill her and to cut off Defendant clothing articles of her with his knife. became fists, and her angry, hitting started her with his broke nose. Defendant then ran out of house.

Second, copy a certified the State introduced 1985, defendant showing February conviction battery of misdemeanor pled guilty charge to the Plaines days’ to 90 incarceration. Des was sentenced officer testified that on November police Daugherty Carol 13, 1984, running she observed defendant down an unarmed man was chas- carrying street a knife while man Daugherty him. Officer stated that the unarmed ing had sustained a laceration to his back. The State deep that, incident, also evidence at the time of this presented on As a mandatory supervised was release. incident, revoked, release result this was and he returned to the penitentiary. was

Finally, the State introduced a certified copy showing conviction that defendant had been convicted of misdemeanor theft in March 1988.

Counsel for defendant presented opening state- ment in which counsel requested that the court “exercise mercy,” and that family, caring “defendant’s love of family” for his and his “good character” would be presented in mitigation. explained Counsel mitigation evidence in would show that while defendant growing up, he “had no father figure, no role model to, fact, to look up despite but the fact despite model, he had no role he had the and inner strength goodness to become son, what we consider a a good good brother, a good uncle, and a father figure to his sister.” mitigation

Defendant’s case in consisted of the testimony of six witnesses on In addition, his behalf. two letters in support of defendant were admitted into evidence. The testify first witness to for defendant was Frestoe, Rev. church, William of a pastor Chicago officer, police former and chaplain at the Cook County Department of Corrections. Rev. Frestoe testified that defendant and family had longtime been members of his church and that he had known defendant since very defendant was a child. According small to Rev. Frestoe, defendant regularly attended church services Sunday and school and in youth was active work of the church. Rev. that, view, Frestoe stated in his defen- dant was a man that “young very seem[ed] to be concerned about his education.” Rev. Frestoe also related provided great help sup-

that defendant amount of mother, ill port to defendant’s with whom defendant was Defendant cooked and cleaned for very close. his mother and cared for her needs. Rev. Frestoe testified very defendant was concerned about his mother’s well- being. Shannon, Helen was the grandmother,

Defendant’s testify next witness to on defendant’s behalf. Shannon worked, defendant’s mother defen- stated because dant had lived with Shannon on and off from 1964 until Shannon, According very 1978. defendant “was child,” any and he “never in in got obedient trouble *** neighborhood.” school around the When Shan- [or] ill, her her helped by preparing non became defendant meals, medicine, her going cleaning to the store for her house, well-being. her staying overnight assure complained testified that defendant never about Shannon on doing things these for her. When asked cross- examination whether she was aware that defendant had trouble, high being from school for she expelled been in the replied negative. testify mitigation

The next for defendant witness McMath. McMath stated that she met defen- was Robin Center for dant in 1984 at the National Education good and that she and defendant had become Paramedics parents McMath that when both of her friends. testified prob- health diagnosed disabling were with severe lems, and counseled her gave support defendant her her handle the stress. McMath also help effort that she missed stated that when she informed Force, away in the Air her brother who was act her defendant would worry told her not to because would talk with McMath stated that she “big brother.” they and that every day “everything” about McMath, conferred According to very were close. she married, and after she was got defendant before she with always baby-sat child and married for her was help. her needed there for when she Wayne cousin, Greer, was the next wit- Defendant’s testify behalf. stated ness called on defendant’s Greer him, that defendant was like “brother” and described good person.” defendant as “all-around When asked responded him, what meant Greer defendant’s life everything.” “pretty much recounted incidents Greer from his childhood when he and defendant would do together things up and when defendant would break fights. also stated that defendant him on Greer counseled handling though brother, a situation with Greer’s even jail defendant was in time. Greer testified he did not want defendant to die and that defendant was worthy of “not death.” testify next

The witness to on defendant’s was behalf Charlyne mother, McCallister. She testified years she was old at the time of defendant’s birth “very father, husband, that defendant’s her first was ready husband, immature” “wasn’t let alone that, time, father.” McCallister stated over her relation- ship changed worse, with defendant’s father for the marijuana, smoking drinking, “he became involved with *** just running the streets he was in all kinds trouble.” She left defendant’s father when defendant go old, was six months and she was forced to to work. difficultyremaining employed However, she had because problems. she had severe asthma and other health When years old, defendant was three she married Thomas Mc- recovering Callister, However, who awas alcoholic. when pregnant she became Kim- defendant’s half-sister berly, problems her health husband worsened her began drinking.

McCallister testified that when defendant four years age, spinal meningitis he contracted and was hospitalized every for six about months. She visited him

day in the and when he was released from hospital, they child, “much As a defendant hospital became closer.” “very was small for his and he on age,” “picked was because he small.” McCallister recalled one was so incident when she was defendant’s school telephoned around” in class. “clowning because defendant was his Her husband to the school and beat went defendant for punishment front of his classmates his misbehavior. old, years six defen- When defendant was or seven life, dant’s father came back into his and defendant break, weekends, during him and stayed spring with on that for a few in the summer. McCallister testified weeks her, during stays crying, these defendant call stat- would lady had him ing that his father left with whichever seeing friend his father was time and not know where his father was. McCallis- defendant did physically father abused ter stated that defendant’s presence, that defendant’s women also that on heavily. father drank McCallister testified in a hit-and-run accident one occasion defendant was the car’s and defendant hit his head on father dashboard. she

McCallister stated when was husband, According her Green. married third James sexually McCallister, her and physically Green abused four. Kimberly Kimberly her when was daughter abused had been Kimberly confided she molested, Kimberly in his sleep and defendant made gain no room, the door so that one could barricading marriage her to Green was entry. McCallister stated that previous he was still married to his annulled because wife. family Chicago

In her into McCallister moved “horren- the conditions were housing project, where and violence explained “gang dous.” McCallister family The lived there about horrible.” just situation was Schaumburg. moving eight At time months before family moved, was confined to a wheel- McCallister prob- from serious health chair and suffered numerous including multiple Defendant, lems, sclerosis. who years took fam- old, then 17 ily by cleaning care McCallister washing preparing clothes, house, taking hospital meals, and her to the she was ill. when part-time job McCallister stated that defendant went to every day, paycheck contributed his to the household expenses, spent family. all of his time with the Ac- cording McCallister, defendant also acted as a father figure Kimberly, her, to his sister in that he watched over places, spent helping took her to different and her time cleaning with her and her homework room. McCallister stated further that December defendant was hit by a of her car front and was knocked the house into leg result, air. As defendant suffered broken and was rendered unconscious. McCallister concluded her testi- mony relating though jail, that even defendant inwas every day, argu- helped he called her and has to mediate Kimberly. between ments herself and Kimberly sister, McCallister, Defendant’s the was testify Kimberly final witness to on defendant’s behalf. family Schaumburg, that stated when the moved to she difficulty great had schoolwork, with her that and spent every day help defendant several with her hours to inspire her understand her studies and to her she when Kimberly became frustrated. taught stated defendant they swim, her to how listened to music together, and that he often her her took and friends to Kimberly the movies. testified that defendant took care severely ill, of their mother she when became and “basically raising defendant me.” finished Defendant family by going grocery shopping, paying took care of the doing laundry, cooking bills, and Ac- meals. cording Kimberly, taught to defendant her to “love everybody everything.” and

Kimberly further testified that when she was tell teenager, frightened became and was to pregnant she defendant, gave her mother. confided in who Kimberly Kimberly her and Defendant advised support. comfort against giving an abortion and the child obtaining both away for and told her that he would take the adoption, if baby Kimberly’s daughter did not it. When she want her born, baby bought defendant loved clothes, grew older, defen- toys, candy. As child places and for baby-sat dant took the child to different Kimberly college. her to while went even after defendant moved According Kimberly, home, he and her mother family out of the visited her Kimberly’s every spent daughter. time with day her recounted that on one occasion when Kimberly sick, drove daughter very immediately became Kimberly stated that defendant is hospital. them everything her and that daughter’s “[h]e’s “world” Kimberly “everything her.” testified that defendant is there, him, I he was always “[w]hen me” and that needed no matter what.” mitigation during por-

Also received evidence fi- written hearing tion of the was a letter known ancée, Allen stated that she had Vanessa Allen. “kind, loving, 20 months and he was for A help people.” of his to go way and would out generous, in evidence was submitted second letter received mother, Allen, that defen- Bernice who stated Vanessa’s man. respectable young dant was a mitigation was aggravation in and After the evidence In their closing arguments. presented, gave both sides asked that again counsel closing argument, defense suggested that mercy to defendant. Counsel court show significant” and history was “not criminal that evidence argued at best.” Counsel “borderline helped shape are forces that “[t]here that showed [defendant], slow, powerful continuous persistent, forces.” Counsel noted that that the evidence established figure” “had no in father and that the men argued although his life “were alcoholics.” Counsel everyone “[e]very child, model,” role needs a felt “abandoned” and that this “sense of abandonment” creating controlling [defendant].” was a “force argued forming Counsel force” “another defen- Kimberly. dant was the sexual abuse suffered his sister noted Counsel that defendant still a was child himself protect sister, when he tried to his and that he resorted “building up a barricade.” also Counsel noted that young, due to defendant’s small stature when he he was constantly picked on, was and this was “another force working on him.” also noted Counsel that defendant was stepfather demeaned school and that his had once beat him in front the whole class. Counsel described powerful persistent “slow, these incidents more forces forming that are him.” argued they brought counsel

Defense these “forces” attention of the court show that “there Peeples,” Peeples are two William the “William that fam- ily Peeples and friends knew William jury “maybe of,” convicted him these forces had *** something explain it, to do can the differences.” you Defense counsel then stated: “Because what heard mitigation, person this is not the who would do something your jury this, like The Honor. found him guilty, question that, but there’s no but that’s not the person you testify same about, heard his mother that’s person not the same his sister testified or about person. friends. It’s a different He was convictedof a ter- person deserving crime, rible but he is not evil die.” Counsel then asked the court “to considerthe total- ity Peeples, just of William not the crime that he recounting testimony mitiga- convicted of.” After tion, asked, counsel “Are these the actions anof evil honor, I No, sug- needing your to be to death? put

man factors, reasons to him gest put these are not mitigating to death.” in Defendant spoke

Defendant then allocution. you mercy “I not for for beg informed the court that will “I commit,” I and that have a crime that did not stated also stated nothing to feel remorseful about.” Defendant I “I and tried to love my family my that love and friends beings.” human my fellow the trial argument,

At the conclusion evidence to defendant’s respect sentenced defendant. With court the convictions, two of which involved use prior three knife, “[c]ontrary to what the court concluded crimes are significant, I believe these says, defense activity.” criminal history prior it significant is presented then noted the evidence judge The trial court did in good that defendant mitigation, including in “the he lifetime,” performed,” acts that “charitable him and his exhibited between and the “love that was judge The trial court to each other.” family members had no doubt that defendant had although he stated convicted, he “the of which the crimes committed is whether my right mind now doubt that exists testimony about from the Peeples William that we heard I The doubt today ever existed. of the witnesses Peeples is whether William today mind not my have *** but what while he attended church good boy awas meantime, because the William of him became testimony I heard committed crime that Peeples who trial not the William throughout three weeks of is The trial court today.” that was testified about Peeples mitigating factors were no judge concluded that there penalty. the death preclude imposition sufficient to the circuit court sentenced Accordingly, The court degree murder conviction. on the first death 30-year prison to concurrent also sentenced aggravated arson and home invasion convic terms on were af tions. Defendant’s convictions sentences People Peeples, firmed on direct this court. v. appeal by (1993). 2d 422 Ill. 18, 1994, defendant, through July post-conviction On relief, a counsel, petition post-conviction alleging filed for dur- rights that defendant’s constitutional were violated 24, 1994, ing August his trial and on direct On appeal. post- the a motion to defendant’s State filed dismiss Thereafter, post-conviction petition. conviction counsel granted petition post- was leave to file amended for conviction relief. The post-conviction petition, amended eight which was filed on October raised claims post-conviction only for relief. We set forth those claims appeal. which are raised defendant in this First, post-conviction petition alleged the amended right that defendant’s due process present to be at all critical of stages trial under fourteenth the amendment (U.S. to the Const., United States Constitution amend. XIV) when, was violated of during jury, selection his defendant was excluded from the in-chambers voir dire 15 prospective jurors, of three of whom ultimately served jury on the which convicted him. Within context of claim, this petition the amended alleged further subclaim that right to effective defendant’s assistance of appellate counsel under the sixth and fourteenth amend- (U.S. ments of the Const., United States Constitution XIV) VI, amends. was violated appellate when his counsel failed to on appeal raise direct issue defendant’s from the absence questioning prospective in-chambers jurors.

Second, the amended post-conviction petition alleged right defendant’s to fair trial fundamentally guaranteed by the sixth and fourteenth amendments to (U.S. Const., United States VI, Constitution amends. XIV) was violated as a result of the “extraordinary portions of

security employed during measures” those present. According the jury defendant’s trial when trial, throughout petition, amended deputy sheriffs stationed behind two uniformed were addition, alleged that when petition him. In amended uniformed behalf, defendant in his own another testified stand, to the witness deputy sheriff escorted testified, as he and then escorted stood behind defendant jury. him table in the presence back the defense trial The further counsel’s petition alleged amended “prejudicial security measures” object failure to to these amend- deprived sixth fourteenth Const., U.S. rights ment effective assistance of counsel. VI, amends. XIV addition, post-conviction petition

In the amended set right defendant was “denied his ef- forth claim that the and of trial counsel” under sixth fective assistance to the United Constitu- fourteenth amendments States XIV) (U.S. Const., VI, specific listed amends. and tion subpara- alleged of these violations several instances amended subparagraph, petition In first the graphs. the trial were ineffective alleged that counsel timely a motion for the they failed to make because testing samples of blood and preservation independent had the State, testing that such possession of the and the Another completely.” to [defendant] exonerate “potential had alleged that trial counsel of this claim subparagraph latent ineffectively present failed to evidence could not be the murder scene fingerprints found at individual, includ- to belonging any known identified had According petition, to the amended defendant. ing information, jurors this the jury with presented the been the unidentified reasonably concluded “could have left there the crime scene were fingerprints found not the was therefore and that offender the offender [defendant].”

Finally, subparagraph another of the ineffective as- incorporated sistance of claim reference the counsel allegations petition previously in the made amended jury security employed during portion the measures right fundamentally defendant’s trial violated his fair trial under the sixth and fourteenth amendments (U.S. XIV). petition Const., VI, amends. The amended al- leged failing object that trial counsel was ineffective having deputy sheriff defendant to and from escort jury presence witness stand in the of the stand According during testimony. behind defendant his petition, prejudice amended defendant suffered because conveyed security “[t]his unwarranted measure to the jury posed danger, [defendant] court believed thereby undermining credibility he his before testified denying presumption him of innocence.” post-conviction petition

The amended also raised the right claim that defendant was denied his constitutional during aggravation- to effective assistance of counsel mitigation phase sentencing hearing. petition The alleged that trial counsel was ineffective because counsel investigate present readily mitigat- failed to ing available respect family evidence to defendant’s turbulent background, long-standing cognitive impairments, his possibility neurological and the disturbances. support allegations petition, In of in his affidavits, attached own his in which he recounted the security during trial, measures taken his absence from the in sessions, camera voir dire and that he had fingerprinted been on three after occasions his arrest. respect security employed With to the measures at his during jury trial, that, defendant stated selection and throughout trial, the I “whenever the was seated at always deputy defense table there were two uniformed *** sheriffs behind me seated in chairs about an arm’s length away they me, from and sometimes stood behind when he called

me.” Defendant further stated that was behalf, own another sheriff deputy a witness on his as to table and behind me “came over the defense walked According to defen- I went over to the witness box.” left dant, then stood behind and of deputy “this during testimony, and at the conclu- my the witness box me as I returned my testimony he walked behind sion *** was in my jury at the defense table while seat from the in- respect the courtroom.” With to his absence dire, voir in defendant recounted his affidavit chambers jury, on occa- “[djuring the selection several of, judge attorneys I was and all the sions that aware judge’s and into the chambers left courtroom went defendant, all of these juror.” According “[o]n talk to a I courtroom, I in and was never occasions remained that I could by judge my attorneys present or told being chambers.” juror questioned when petition was post-conviction Defendant’s amended by submitted his rela- by several affidavits supported also by defendant’s and friends. Affidavits submitted tives aunts, sister, uncle, and former two grandmother, back- family girlfriend related defendant’s unstable pattern hallmarked abuse ground, which was during defendant’s violence. The affiants stated of abusive engaged mother a series youth, defendant’s mental- physical and was beset various relationships, on disorders, punishment and had inflicted harsh health The affiants revealed that bordering on abuse. relationships defendant’s personal to the unstable due often, and that family moved mother, school, “missing at routinely trouble defendant was verbally, physically “fighting, frequently” classes in trouble at teachers.” Defendant was also with the furniture with a home, up fires and cut where he set had further stated that knife. The affiants hospital- four age and was spinal meningitis contracted time, for shortly ized an extended of and that period by before offenses the case at he had been hit bar injury. a car and suffered a head The also affiants averred temper that defendant had a and quick violent and that he was violent his relationships family his friends.

Those affiants testified who on behalf during his sentencing hearing stated that at- torneys offered no them preparation they before took stand, the witness other than instructing them to tell the judge “something that had done that [defendant] meant a lot” to The them. remainder of the affiants stated that they were and, not contacted they defense counsel if contacted, had been would testified have on defendant’s during behalf phase second of the sentencing hear- ing.

Defendant’s post-conviction amended petition was also supported by reports affidavits and submitted professionals. Dr. Gelbort, Michael a clinical psychologist, submitted to the circuit court a “neuropsychological evaluation” of upon July 11, 1994, defendant based In examination. report, his Dr. Gelbort stated that defendant had a full IQ 88, scale with his reading and spelling testing level, skills at the high school and his math skills testing at the sixth-grade level.

According to Dr. report, Gelbort’s defendant suffers “cognitive from dysfunction most affecting non-dominant cerebral hemisphere functions and frontal lobe abilities.” Dr. Gelbort explained report in the the frontal lobe part is “the of the brain which initiates and inhibits behavior, allowing thus to have people control over their actions.” Dr. Gelbort also stated that the frontal lobe is portion “the complex brain where decisions are believed to be made.” According Gelbort, to Dr. individu- impairment als with an in the frontal “will lobe often poor decisions, make will fail to ‘think ahead’ or antici- behavior, inability of their will have an pate outcome consistently expectations have their behavior meet the may or odd in society, unpredictable of others their behavior.” examination defendant, Dr. upon

Based Gelbort “minimal concluded that defendant suffers from brain dysfunction” an effect on abil- [defendant’s] which “has Due to ity logical, goal to think in a directed manner.” impairment, opined, Dr. Gelbort defendant’s this reasoning af- solving, and are “[¡judgement, problem “everyday and and defendant’s activi- impaired” fected Dr. adversely ahead” affected. ability plan ties and is impairment that this “would almost Gelbort stated time the offense.” certainly present have been of note, Dr. found defendant’s As a final Gelbort also his past events tends ‘normalize’ “recollection “minimized or the extent that defendant experience” to problems experienced during he his many denied” lifetime. mitigation prepared by

An affidavit and report sup- Platt in specialist Tatelli was also attached Caryn Ac- post-conviction petition. port of defendant’s amended Tatelli, within her the information contained cording speaking with defen- gathered by was mitigation report 1994, by interviewing ap- in dant on five occasions friends, and and 20 of defendant’s relatives proximately school, hospital employ- and by reviewing defendant’s pertaining records records, public ment as well as family. defendant’s immediate family In her Tatelli stated that defendant’s report, child and maltreatment history of abuse pervasive “has a through generational at least three which can be traced family, defendant’s Tatelli wrote that within cycles.” of, acceptance and pattern, “generational there exists a aggression.” in violence, rage, temper expressed family has “utilized determined that defendant’s Tatelli force of solving reconciling violence and as a means their differences with others.” report large part

Tatelli’s focused in on defendant’s mother, mother,” and, who “was abused her own as a abuse, turn, “she, taught victim of this acceptable through abusive behavior was an method discipline which to Tatelli children.” stated as a relationships result of a series transient and abusive mother, defendant, entered into during defendant’s had “a life in he early years, turbulent which lived setting.” family unstable, abusive Defendant’s life was family often. In mitigation moved her report, Tatelli concluded that defendant was raised “dysfunctional system” he exposed wherein “was to a great through deal violence his mother and her relationships,” discipline he at home received was “extreme” and abuse,” “could considered child and that defendant any “did not have man who could serve as a positive role model.” report

Tatelli’s age four, further related that at spinal contracted meningitis hospital- and was ized for days. illness, After family this members change noticed a in behavior, defendant’s cognitive abili- ties, result, and social skills. As a defendant received therapy. behavioral years When defendant was of eight age, he a fire in family started the basement of the home. Tatelli reported that members family believed this was an example doing of “constantly defendant what he do, had not been told as if he did almost not understand the behavioral boundaries which had been for him.” set he grew older, began “running away,

As defendant fires, and setting having difficulties.” school Tatelli stated that defendant’s school records indicated that defendant attended and sporadically, school that he had been a student at different before dropping schools out tenth grade. During years, his school defendant was

diagnosed having learning disability, as a as well hav- problems. ing behavioral, motor visual and report, during In her Tatelli stated that defendant’s fought teenage years, Kimberly “pas- he and his sister give sionately” “[v]arious other, with each sources during examples [their] of clear indiscriminate violence fights.” during physical addition, it In was defendant’s years family teenage into that defendant’s moved a housing Chicago project, and defendant became involved experimenting drugs. gangs and with started Shortly family thereafter, moved defendant’s from Chicago However, even after suburbs. defendant’s family family suburbs, moved to the remained according report, unstable, and, to Tatelli’s lived four years. during residences six different reports, move, Tatelli defendant became After relationships, “all in a romantic of involved series of underpinnings [had] of Tatelli violence.” stated which “reports inter-relationship violence cor- temper” [defendant’s] reports other made roborate “[m]any, if all of the indicated that and that not sources extremely temper.” [defendant] has an hot and volatile According “rapidly Tatelli, reached boil- explosiveness ing point, not or a which could be level family Tatelli related controlled.” “freely they family which are a has members admit dealing temper.” with its trouble age for 18, defendant was arrested at- At the charges. Although rape pled guilty tempted to the plead agreed innocence, he defendant maintained eligible parole. guilty he Defendant for because would age Shortly riding paroled thereafter, 20. while argument, man had an which bus, defendant and another running the man down the resulted police stopped men, defendant When officer street. parole possession knife, was of a and his found was one Tatelli year revoked. Defendant was released later. indicated stated that defendant’s records employment had a of different worked at jobs, that defendant number time, had only period each for a brief and often been dismissed due to or tardiness.” “excessive absenteeism

In suffered by was struck car and injuries Tatelli, his knee According to and head. to indicated that was temper, sources “which always strong, seemed more than easily ignited even before, little things with intense When triggering anger.” he breakup defendant had difficult with a woman had attempted taking been suicide dating, number of over-the-counter According medications. Tatelli, attempt defendant’s suicide was consistent with his history driving, drug usage, of “reckless and other potentially self-harming activities.” Even defendant’s relationship fiancée, Allen, his Vanessa marked was fights, verbal, which frequent “usually were but degree they sometimes accelerated to the became physical.” her mitigation report, In Tatelli concluded [defendant], “[a]s a result of the acting upon forces he turn began naturally-occurring anger, frustra- tion inward, and hatred for life upon his situation himself, allowing it to into a temper, build horrible family. was the method of In turning anger inward, rather than it in expressing positive, natural ways, he began deep-seated rage.” harbor a Attached report were medical Tatelli’s defendant’s school and records. 8, 1994,

On December State filed an amended motion to dismiss defendant’s amended post-conviction petition. argument Oral State’s motion on the dismissal April 15, held on 1995; January 30, on same court judge presided circuit who at defendant’s trial granted State’s motion to dismiss defendant’s post-conviction evidentiary amended without an petition hearing. the in rejected allegation

The circuit court defen- post-conviction petition dant’s amended that his due the process rights were violated in-chambers voir dire jurors, the prospective finding issue waived because it Similarly, have been on direct the appeal. could raised any circuit court found that defendant waived claim had failing trial for that his counsel were ineffective and present fingerprint blood evidence at trial. rejected The circuit court also defendant’s contention security employed that the in the courtroom measures jury portion the trial violated during defendant’s his to a fair trial. The court found that “no extraordi- right at court,” measures were that all nary adopted this the “the in during appeared times trial street *** garb,” and the security clothes civilian and under measures were “reasonable the circumstances.” that, under presented, The court concluded the facts his defendant “would not able to claim substantiate that a result prejudiced might that he was and different obtain.” the

Finally, rejected circuit court also defendant’s ineffective contention counsel were defense investigate for ad- sentencing failing present agreed The circuit court mitigating ditional evidence. the State’s additional proffered assertion family regarding evidence back- mitigation condition “would tend show ground psychological is, fact, dangerous,” [defendant] the court that well conduct.” The circuit court capacity as “his for future is of itself not argument concluded “the inherently mitigating.” February 27,1996, defendant filed with circuit

On its The circuit court ruling. court a motion reconsider 25, Defendant then this motion on June 1997. denied 23, July to this court on 1997. his notice appeal filed pend- 1998, appeal the instant In while September ing court, this defendant filed the circuit court before motion, to section 116—3 of Code pursuant (West (725 Criminal Procedure of 1963 ILCS 5/116 —3 1998)), testing on blood evidence requesting forensic DNA apartment regarding recovered from the victim’s claim of actual innocence. On October both and defendant into an order for agreed State entered subjected analysis. blood evidence to be to DNA On 3, 1998, granted parties’ agreed November this court stay briefing motion to schedule in this matter until 18, 2000, Il- completion testing. July DNA On linois State Forensic Science Center issued a stat- report that a the the ing bloodstain found in kitchen sink of apartment profile victim’s matched defendant’s DNA could not have come from the victim. At defendant’s request, the blood evidence was then sent to an indepen- dent laboratory, Diagnostics, Cellmark for further review. 2, 2001, On May Cellmark issued a letter concluding that neither processing the the by case Forensic Sci- Center ence nor the results conclusions reached the Center were in error.

ANALYSIS (the Act) (725 The Hearing Post-Conviction Act ILCS (West 1996)) et seq. provides a mechanism 5/122 —1 which criminal can defendants assert that their convic tions and sentences of a were result substantial denial of their rights under the United States Constitu tion, Constitution, the Illinois or both. See 725 ILCS (West 1996). An action for relief post-conviction 5/122—1 is a collateral proceeding, appeal and is not an from the underlying conviction and sentence. v. People Mahaffey, 154, (2000); 194 2d Ill. 170 v. 192 Ill. 2d People Haynes, (2000). 437, 464 In order to post-conviction be entitled to relief, establishing a defendant bears the burden of deprivation substantial of federal or state constitutional rights in the proceedings produced judgment be-

510 Morgan, v. 500, People ing challenged. 187 Ill. 2d 528 (1997). Tenner, People v. (1999); 372, 175 Ill. 2d 378 The purpose post-conviction proceeding is permit inquiry into constitutional issues involved in the original not, conviction and sentence that were nor could been, adjudicated have direct previously upon appeal. Haynes, Morgan, 464; 2d at Ill. 2d 192 Ill. 187 at 528. proceeding brought Because a under the Act is a col sentence, lateral attack on defendant’s conviction and/or judicata doctrine of res bars consideration of issues v. appeal. People that were raised and decided on direct Towns, Whitehead, v. People (1998); Ill. 2d 182 502 (1996). Further, 169 Ill. 2d issues that could not, are presented appeal, have been on direct but were Haynes, purposes post-conviction waived for review. 465; Towns, However, Ill. 2d Ill. 2d at 503. of res judicata and waiver will be relaxed in doctrines requires; three where fundamental fairness so situations: to the alleged incompe where waiver is attributable counsel; appellate relating tence of or where facts do not on the face of the post-conviction appear claim 171; Whitehead, Mahaffey, original record. 194 Ill. 2d at 169 Ill. 2d at 371-72. evidentiary hearing

A defendant is not entitled to an Mahaffey, 194 Ill. right post-conviction as of on claims. 171; Whitehead, An evidentiary 2d at 169 Ill. 2d at 370-71. hearing post-conviction only is warranted on a claim allegations post-conviction petition, sup in the where the trial record or ac appropriate by where ported affidavits, showing make a substantial companying been rights of the defendant have constitutional Morgan, 465; 187 Ill. 2d Haynes, 192 Ill. 2d at violated. grant determining For the whether purpose at 528. post- all facts evidentiary hearing, well-pleaded an are affidavits petition any accompanying conviction Bris- Towns, v. People 503; Ill. 2d at taken as true. 182

511 (1995). rul A circuit court’s bon, 236, 164 Ill. 2d 244-45 in a allegations contained sufficiency on the ing a determination. petition legal People is post-conviction (1998). Therefore, 366, Ill. 2d 388 we Coleman, v. 183 petition a that has been post-conviction review de novo evidentiary hearing. Morgan, dismissed without an 528; Coleman, Ill. 2d at 183 Ill. 2d at 389. mind, whether principles these we consider

With in dismissing post- the circuit court erred evidentiary hearing. petition conviction without court, four claims for Before this defendant raises review. address each of these claims seriatim. We

I. Jury Selection Defendant contends that on direct appeal, appellate counsel was deficient because counsel failed to argue defendant’s exclusion from the in camera of the portion voir dire violated right present to be under the due process clause of the fourteenth amendment Const., United States Constitution. amend. U.S. XIV determining When whether a defendant has made showing substantial rights his constitutional have been violated incompetence appellate counsel, we the familiar employ alleging standards for claims inef fective assistance of counsel set forth the United Supreme States Court in Strickland v. Washington, (1984). 674, U.S. 80 L. Ed. 2d 104 S. Ct. 2052 Coleman, 183 Ill. 2d at 397. Strickland,

In the Court held that the “benchmark judging any for claim of must ineffectiveness be whether proper functioning counsel’s conduct so undermined the of the adversarial the trial process cannot be relied Strickland, having produced just on as result.” 692-93, U.S. at 80 L. Ed. 2d at 104 Ct. at 2064. S. Strickland, Pursuant in order to succeed on a claim asserting that defective assistance counsel was so sentence, as to require reversal of a conviction or death 512 First, satisfy components.

defendant must two a defen perfor dant must establish that his defense counsel’s requires showing mance was deficient. This that made that “counsel errors so serious counsel was not functioning guaranteed as the ‘counsel’ the defendant Strickland, 687, Amendment.” at Sixth 466 U.S. 80 693, L. Ed. 2d at 104 S. Ct. at 2064. A defendant meets by establishing representa burden that “counsel’s this objective tion fell below an standard of reasonableness.” Strickland, 688, 693, 466 U.S. at 80 L. Ed. 2d at 104 S. ruling Ct. at 2064. In on a claim that inef counsel was fective, “Qjudicial scrutiny of performance counsel’s must Strickland, 689, deferential.” highly 466 U.S. 80 L. 694, 2d at 104 Ct. at “a Accordingly, Ed. S. 2065. court indulge strong presumption must that counsel’s range profes conduct falls within the wide of reasonable is, assistance; sional the defendant must overcome that, circumstances, under the the chal presumption ” strategy.’ action sound trial lenged ‘might be considered Strickland, 466 U.S. at 689, 694-95, 80 L. Ed. 2d at 104 Louisiana, Michel v. 2065, 91, S. Ct. at 350 U.S. quoting (1955). Coleman, 101, 100 83, 93, 158,164 Ed. L. 76 S. Ct. Ill. 2d at 183 397.

In on an prevail order ineffective assistance claim, Strickland in addition to requires counsel deficient, counsel a defendant must establishing that also that counsel’s deficiencies resulted establish The Strickland Court “any prejudice. explained prejudicial must be performance deficiencies counsel’s to the in order to constitute ineffective assistance defense (Strickland, 466 U.S. at 692, under the Constitution” 2067), and error “[a]n L. Ed. 2d at 104 S. Ct. at counsel, unreasonable, if does not professionally even judgment proceed- warrant aside the criminal setting Strick- judgment.” if the error had no effect on the ing land, 466 U.S. at 696, Ct. at 80 L. Ed. 2d at S. Strickland, prejudice establishes Under a defendant 2066. that, probability that “there is a reasonable by showing errors, the result of the unprofessional but for counsel’s prob different. A reasonable would have been proceeding confidence a sufficient to undermine ability probability is L. Ed. Strickland, 694, 466 at 80 in the outcome.” U.S. 698, a defendant chal 2d at 104 S. Ct. at 2068. When sentence, is “whether lenges specific question a death the errors, that, absent the probability there is a reasonable *** the sentencer would have concluded that the balance did not aggravating mitigating of circumstances war Strickland, 695, rant death.” 466 U.S. at 80 L. Ed. 2d at 698, determination, a making 104 S. Ct. at 2069. “In this hearing court an claim must consider the ineffectiveness *** totality judge of the evidence or jury [and] before if the defendant met the of showing must ask has burden reasonably likely decision reached would have Strickland, been different absent errors.” 466 U.S. at 695-96, 698-99, L. Ed. 80 2d at 104 S. Ct. at 2069. The to satisfy deficiency failure either or the prong prejudice prong precludes finding the Strickland test Strickland, of ineffective assistance of counsel. 466 U.S. 697, 699, 2069; at 80 L. Ed. 2d at 104 S. Ct. at Morgan, 187 Ill. 2d at 530. stated,

As claims of ineffective assistance of appellate are counsel evaluated under the standard set two-prong forth in Haynes, 476; Strickland. 192 Ill. 2d at v. People (2000). Childress, However, 191 Ill. 2d 175 to suc ceed on a claim that appellate counsel rendered ineffec by failing argue appeal, tive assistance issue on specifically defendant must establish that appellate failure objectively counsel’s to raise that issue was appellate unreasonable counsel’s decision not to raise the 2d prejudiced Haynes, issue defendant. 192 Ill. 476; Childress, at Ill. 2d at counsel “Appellate 175. obligated every is not to brief issue on and it is appeal, incompetence not raising counsel refrain from is which, judgment, merit, sues in his or her are without appraisal unless counsel’s of the merits is patently (2000). v. wrong.” People Easley, 192 Ill. 2d Thus, meritorious, if the underlying issue is not defen dant prejudice has suffered no from counsel’s failure to Easley, appeal. 329; raise that issue on 192 Ill. 2d at Childress, 191 Ill. 2d 175.

The initially argues State defendant has failed allege cognizable claim for ineffective assistance appellate counsel because defendant’s underlying due claim process grounded is facts which are outside the court, appeal. record on direct In its brief to this nothing State contends that “there is in the report from proceedings appeal [defendant’s] direct would during indicate that [defendant] was absent out-of- hearings during court that occurred the selection of the jury, including questioning potential of the three jurors ultimately jury.” Therefore, who on the the served concludes, State “this matter concerns the total lack of a factual basis in the record the claim upon which could have court on direct presented appeal.” been this Our of the record disagree. thorough

We examination the in that present during reveals defendant was not camera questioning prospective jurors. This conclusion is taken the State supported position before in the post-conviction proceedings circuit court below. bar, In that argued the matter at the State below because failed on direct his exclusion appeal defendant to raise dire, from the in camera voir thereby waived that from the in- post-conviction his claim his absence violated questioning chambers of several venire members addition, argued to due In the State right process. his that appellate below that defendant failed show raising not this issue on direct counsel was ineffective for amended motion to appeal. According to the State its petition, post-conviction amended dismiss defendant’s showing [counsel’s] assessment made “no “there is a reasonable deficient” or that of the issues was Supreme probability have Court would that the Illinois position Thus, the State’s his conviction.” reversed during post-conviction the circuit court before presented appellate proceedings record was that process appellate have issue, that counsel could due appeal if counsel believed it this issue on direct raised appellate meritorious, failure to do so counsel’s was waiver, and that defendant failed to show constituted appellate Indeed, actions were ineffective. counsel’s of this issue on it on the basis of defendant’s waiver granted appeal that the circuit court State’s direct post-conviction specific dismiss claim. motion this Because defendant’s absence from the in camera voir any apparent record, from the constitutional is dire is flowing sues from this absence could have been raised on inap appeal. doctrine, however, direct The waiver is plicable where, here, a defendant asserts that the al leged ap waiver stems from the ineffective assistance of pellate Haynes, counsel. 192 Ill. 2d at 476. therefore We argument. turn to the merits of defendant’s appellate bar, In the matter at counsel defendant’s appeal filed defendant’s brief on direct on December years opinion after over this court issued its V-h (1990). People Bean, v. 137 Ill. 2d Defendant contends performance appellate of his counsel was objectively argue counsel failed to unreasonable because appeal ruling that, Bean, on direct under this court’s pretrial questioning absence from in camera ultimately including members, of 15 venire 3 who sat on jury, process his violated his fourteenth amendment due right ap present. to be Defendant further contends that pellate counsel’s decision not to this on direct raise issue appeal prejudiced defendant, there as is reasonable

probability that had this issue been raised on direct ap- peal, defendant would have prevailed. disagree. We Bean,

In the defendant was convicted of murder and sentenced to death. On appeal, argued the trial court had committed reversible error voir dire of six conducting an individual jury venire judge’s chambers, members in the outside the presence of the defendant. The discussions were initiated trial judge when three of they the venire members said had been exposed publicity murder, about when two had difficulty expressing their on the views death penalty, when one stated that previous his services a juror in a murder trial might impair his fairness impartiality in the occasion, defendant’s trial. On each the trial judge, open court and in presence of the defendant, instructed the venire members to come back to his chambers. These in-chambers discussions were at tended by attorneys, defendant’s prosecutors, Bean, court reporter. 137 Ill. 2d at 79. in Bean argued that his absence from

The defendant the in camera voir dire sessions deprived him of his right present during constitutional to be the entire jury selection process, under both the Illinois and United States Constitutions. As defendant in the at case bar this premises specific post-conviction claim solely upon violation of alleged right process to due under the fourteenth amendment of the United States Constitu- tion, confine portion we our discussion to that Bean analyzed decision which Bean’s federal claims. Bean,

In analysis proceeded this court’s from the principle basic under the United States Constitu- tion, given general right criminal defendants are trial, every stage including jury selec- present However, tion. the situations the denial of a which right presence actually violates the United limited, States Constitution are as “this Federal right

517 right express arises presence but constitutional not an is process amend the fourteenth clause of the due from Accordingly,“the Federal 2d at 82. Bean, 137 Ill. ment.” right; presence right absolute, inviolable not an is of scope scope of due the within instead, is contained its long a process.” Therefore, “as at 82. Bean, 137 Ill. 2d portion does not of his trial from a absence defendant’s process, of a deprive no violation there is him of due presence right process of due derivative 2d Bean, 137 Ill. the United States Constitution.” under at 83. process the due held that under

The Bean court amendment, a criminal defen of the fourteenth clause only right presence when of “is violated dant’s being denied a fair results in his defendant’s absence Snyder quoting just v. Bean, 83, Ill. 2d at trial.” 137 674, 679, 107-08, L. Ed. Massachusetts, 291 U.S. (1934) (“So the Fourteenth far as 54 S. Ct. presence a defendant is concerned, the Amendment is process fair and to the extent that a a condition of due just hearing absence, would be thwarted only”); Kentucky Stincer, v. 482 U.S. that extent see also 2658, 2667 730, (1987) (“a 631, 647, L. 2d 107 S. Ct. 745, 96 Ed. guaranteed right to be is stage proceeding present any that is of the criminal presence contribute to outcome if his would critical to its Although jury procedure”). selection of the the fairness rejected stage trial,” the Bean court “a critical is right argument to be that his advanced the defendant every stage “encompasses present moment at this jury process.” The Bean Bean, 137 Ill. 2d at 84. selection emphasized from that, alone, a defendant’s absence court jury Rather, the Constitution. does not violate selection jury portion selec from a where a defendant is absent proper inquiry the defendant’s tion, is whether being which, in trial, a fair in his denied absence results turn, rests upon determination “concerning] Bean, impartiality of defendant’s jury.” 137 Ill. 2d at 84. the Bean court framed the issue as follows: Accordingly, “Did defendant’s absence from the in camera voir dire tried, cause him to convicted, be and sentenced by jury Bean, prejudiced against him?” 137 Ill. 2d at 85. The Bean court question answered this nega tive. The court noted that the defendant did not dispute impartiality jury; rather, the defendant claimed that he had an right absolute present at all times that, but for absence, his the defendant might not have allowed his attorney to use a peremptory challenge against a certain venire member. This court held that defendant’s claim “falls short of establishing due process violation, for defendant does not assert juror who served in place [the] venire member [peremptorily challenged by preju defense was counsel] Bean, diced.” 137 Ill. 2d at 85. The Bean court then stated that “while we hold that defendant’s due process right of presence was not violated in case, this we note in camera voir dire without procedure presence defendant’s and without express waiver of right and, this is in improper cases, some will inevitably result in the denial of a defendant’s fundamen rights tal to Bean, a fair trial an impartial jury.” Ill. 2d at 88.

Relying solely upon Bean, defendant at bar contends that his appellate counsel was ineffective for failing argue on direct appeal that defendant’s exclusion from the in camera voir dire of several venire members violated right his to due process under the fourteenth amendment and entitled him to a agree new trial. We with defendant there are several similarities the facts set forth in Bean. In both between his case cases, in camera voir dire venire several members took place outside of the defendants’ presence after these in initially questioned had been members venire cases, in both in court. Also open presence defendants’ presence in the place dire took voir camera at notes these bar Although defense counsel. in Bean the court acknowledges that similarities, and amend- relief on his fourteenth denied the defendant that there ex- argues claim, defendant process ment due his case factual difference between significant ists result. an opposite in favor of Bean that militates Bean, three venire that, contends unlike Defendant pres- outside defendant’s questioned were members who by [defendant] removed could have been ence “and who jury. ultimately sat on his challenges” peremptory his case defendant, between this distinction According court, this had it been have caused and Bean would on direct counsel by appellate with this issue presented forth in Bean and conclude apply the rules set appeal, Bean, bar, the defendant that defendant unlike impartial to a fair trial right denied a fundamental disagree. jury. We court, argues

In his before this arguments in camera subject prospective jurors that of the 15 on the ultimately three sat presence, voir dire outside three him. Defendant names these jury which convicted Jansen, Crowley, Bernard Marybeth venire members as that, each of these Serrano, argues as to and Richard during the in camera presence three persons, to the fairness of have “contributed proceedings would that, defendant contends Specifically, the proceedings.” questioning, the in-chambers present during had he been attorneys peremptory to use he “could have advised he considered any to remove venire members challenges” “potentially biased.” respect claim with first address defendant’s

We 520

juror Marybeth Jansen.1 Our close examination of the record reveals that on February 21, 1990, Jansen was called as one of the group first of 12 prospective jurors to be examined both the defense and prosecution open court and in presence Jansen, defendant. addition to the other members of 12-person this panel, questioned by the trial court judge in detail concern- ing her background and ability to impartial. The that, record reveals at the close of questioning prospective jurors for that day, an unidentified venire member informed the trial judge court in open court that service on the jury would be a “hardship on my busi- ness.” According defendant, based upon context of statements, it appears that this comment was made by Jansen. When court resumed the day, next Jansen was accepted by the State and tendered to the defense. After exercising peremptory challenges to excuse two of the four prospective jurors on panel, the defense ac- cepted Thereupon, Jansen. Jansen was sworn as a juror in defendant’s case. long

It has recognized been that once juror has been accepted sworn, party neither has the right peremptorily challenge that juror. People Curran, v. 286 302, (1918); Ill. 307-08 Brooks, see also v. People 185 Ill. 935, 3d App. (1989); 939 People v. 154 Ill. Jarnagan, App. 187, (1987); 3d Castro, 197 v. 146 People 629, Ill. 3d App. (1986); 630 v. People Scheidt, 632, 113 Ill. 3d App. 636-37 (1983); People Watson, 992, v. 103 App. (1982); Ill. 3d 997 People Gamboa, v. 30 Ill. App. (1975); 3d People (1971). Manns, v. Ill. 3d App. Although circuit court right retains the dismiss selected and

1Defendant, court, inaccurately his brief to this states that Marybeth “ultimately [defen Jansen served as the foreman of jury.” repeated by dant’s] This statement was defense counsel dur ing argument juror oral before this court. The record reveals that member, foreperson, jury. Jansen was a thé not of defendant’s (see App. Jarnagan, juror 154 Ill. 3d at cause for sworn 997), App. parties no 197; Watson, 103 Ill. 3d right peremptory longer possess chal a to exercise present lenge. failed to a hold that defendant has We juror respect post-conviction cognizable claim with questioning that the entire Jansen. The record reveals being accepted process prior and sworn to her Jansen open juror and case occurred in court as a in defendant’s presence time, At that in the of defendant. questioning opportunity Jansen, had to witness the full import demeanor, answers, her her assess the observe attorney peremp and advise his to exercise available tory challenge against her. Defendant chose not to challenge against despite peremptory Jansen, a exercise an in-court comment the fact that defendant attributes jury duty “hardship” on to Jansen that would serve as despite business, fact that defendant her and challenges against peremptory two other exercised panel. cannot now claim members of Jansen’s Defendant right peremptory that he was denied his to exercise challenge against an in Jansen as a result of camera judge she had with the trial court conversation parties’ concerning counsel her business concerns after Accordingly, accepted juror. she was sworn as properly post-conviction court claim circuit dismissed this evidentiary hearing. without an arguments respect now address defendant’s with We jurors Crowley The Bernard and Richard Serrano. prior that, dire, record reveals to their in camera voir Crowley extensively questioned both and Serrano were respect backgrounds ability to their and their impartial by judge open court and in the trial court presence of defendant. juror Crowley,prior question- to the in camera

As to ing, Crowleyfully open disclosedin court the nature large employment extent of as a docket clerk with a firm law and the fact that employed his son-in-law was as an Attorney. Crowley assistant State’s stated that he had retired from his employment as docket clerk after 12 years firm, with the he maintained the firm’s dockets, daily and that while the firm did some criminal work, feelings defense he had no one way or the other about criminal practice. With to respect his son-in-law who was employed Attorney, as assistant State’s Crow- ley although they stated that occasionally visited on a basis, they and, social legal never discussed cases if he was selected a juror, Crowley as would not discuss defendant’s case with Crowley his son-in-law. affirmed if he juror, was selected as a he could fair and impartial, he would follow the law and given instructions him, to and he had predisposition no to either the defense or the prosecution. recessing

Prior court for evening, the trial judge court admonished the prospective jurors to avoid looking newspapers. In in response, Crowley stated “[tjhere open night” court that was an article last relat- ing to trial newspaper and that he had judge “started” to look at it. The trial court stated that he Crowley would examine further on issue this when day, court reconvened. The next the trial judge court questioned Crowley, in and in the presence chambers counsel for both to the parties, respect newspaper with Crowley “glance[dj” article. stated that he had at the first few sentences of the article and then Crow- stopped. ley glancing stated that as a result of at the newspaper article, decisions, he did any open not form still had an case, respect mind with to defendant’s and still could be parties. prosecution briefly fair to both The then asked Crowley to again responsibilities discuss his as docket any Crowley may clerk for the law firm and contact have had criminal at the attorneys Crowley with defense firm. replied that he had limited contact with the firm’s attorneys spoke them concern- and never with criminal ing Crowley counsel then asked criminal cases. Defense employed son-in-law, an as- contact whether with Attorney, Crowley respect influenced with sistant State’s system.” justice “any presumptions of the criminal Crowleyreplied negative. in the respect juror initially Serrano, he

With presence questioned open court and in the of defendant background. During questioning, respect to his this that he was active in his church and Serrano stated participated groups. church functions social Although strong religious beliefs, stated, he had Serrano provided he would followthe law and instructions by to him religious the court and his beliefs would not conflict duty. According Serrano, with impartial he this couldbe fair and judgment [his]

and he would “make on evi- dence.”

During prosecution sidebar, a counsel for both the requested judge inquire and defense that the further of religious Serrano’s beliefs and the effect these beliefs might ability juror. impartial on have his to be a fair and judge agreed, The and Serrano further examined respect religious judge’s with to his in the beliefs presence chambers in the of counsel for both sides. Ser- open rano reiterated his statements made in court that religious beliefs not conflict would with the rules of required juror. apply law he would be to as a court, In his to submission this defendant contends present during question- that had he been the in camera ing jurors Crowley Serrano, “he could have attorneys challenges peremptory advised his to use to potentially jurors ultimately remove biased sat on who Specifically, Crowley, respect his case.” to argues present, that, had he he not have been “would required accept Crowley’s been to Mr. denials at face perceived Crowley value, could have that Mr. was not be- candid, ing entirely a peremptory challenge used respect Serrano, remove him.” With asserts that Serrano confused “appeared applicable about proof burden and standard of in a manner detrimental [defendant],” and that if he were present, defendant “could have concluded that Mr. Serrano’s confusion legal principles religious about or his beliefs or both made him predisposed against defendant.” argument. cannot The accept

We defendant’s record any way Crowley does not indicate in was “not entirely contrary, candid.” To the the record reveals Crowley voluntarily disclosed, court, that he had open Further, seen a article newspaper about trial. record not support does contentions “appeared applicable legal Serrano confused” about or principles religious that his beliefs interfered with his Indeed, a juror. jurors repeatedly duties as both stated in court, as the in camera open during questioning, well they impartial they would be fair and and that would provided follow the and instructions to them law court. Bean, right

As we stated in a defendant’s to be absolute; therefore, that a present is not the fact portion of his trial does during defendant was absent that the defendant suffered automatically not mean has right process. a violation of his constitutional due Rather, process right presence a defendant’s due under amendment in the limited only fourteenth is violated circumstance when his absence results in the denial of Bean, 83; trial. 137 Ill. 2d at see also just People fair and (2000); Bull, Ill. v. 194 Ill. 2d 67 v. 185 Lofton, People (1998). here, a Where, alleges 2d 201 violates portion jury that his absence from a selection “fair right process, to due his fourteenth amendment impartiality issue “concerns defendant’s ness” 84; Bull, Ill. 2d at Bean, Ill. 2d at see also 185 jury.” Therefore, 201. a defendant must show that his absence “ [d] tried, from the in camera voir dire cause him to be by jury prejudiced against convicted, and sentenced Bean, 85; Bull, him.” 2d at 137 Ill. see also 185 Ill. 2d at alleged bar, 202. In the matter at defendant has neither Crowley jury Serrano, nor shown that or the as a prejudiced against whole, Indeed, were him. defendant at bar, Bean, like the does not claim that the jury impartial. Bean, which convicted him was not As in speculative arguments respect defendant raises presence might the effect his had on the have ultimate jury-selection process, asserting outcome of the without jurors actually jury prejudiced. who sat on his were “[t]he Bean, As this court concluded in United States *** guarantees impartial Constitution a defendant an jury, jury not a Bean, his choice.” Ill. 2d at 85. previously stated,

As a defendant has suffered no prejudice appellate from counsel’s failure to raise an is appeal sue on direct unless that issue is meritorious. Childress, 191 Ill. 2d at 175. Because we find that underlying claim constitutional based on Bean would not have been successful if raised on direct appeal, we conclude that defendant’s ineffective as appellate sistance of counsel claim lacks merit. Therefore, appropriately specific the circuit court post-conviction dismissed this conducting evidentiary claim without hearing. Security

II. Measures Defendant next that the contends circuit court erred dismissing, evidentiary hearing, without an defen- right guaranteed by dant’s claim that his to a fair trial the sixth and fourteenth amendments to the United (U.S. XIV) States Constitution Const., VI, amends. security violated the “unwarranted” measures used throughout jury trial. Defendant also asserts that the denying circuit court him committed error in an eviden- hearing on the related claim that his trial counsel’s tiary object security deprived to certain measures failure to of right him of his to the effective assistance counsel under the and fourteenth amendments guaranteed sixth XIV). (U.S. Const., VI, amends. whether stated, purpose determining

As for the of hearing, well-pleaded all facts grant evidentiary any accompanying affidavits post-conviction petition 466; Coleman, Haynes, 2d at are taken as true. 192 Ill. post-conviction amended 183 Ill. 2d at 381. Defendant’s by defendant in an relies statements made petition upon petition. to the amended The amended affidavit attached throughout alleges during jury selection petition seated, sheriffs were trial, deputy “two uniformed stood, [defen within arms’ reach behind sometimes The amended peti as he sat at the defense table.” dant] [defendant] alleges “[w]hen tion further presence in the called as witness subsequently lock-up escorted jury, deputy charge sheriff him he testi stand, stood behind while him to the witness to the defense table.” fied, and then escorted him back “extraordinary these petition, to the amended According to defen “highly prejudicial” were security measures” dant. post-conviction that defendant’s responds

The State security employed to the measures respect claims with According trial are waived. of his during jury portion deputy there were State, “the fact that to the because record,” during the trial was [defendant] sheriffs near proximity [defen- deputy the “issue of the sheriffs’ appeal. on direct We could have been raised dant]” defendant’s contained within specific The facts disagree. constitute and affidavit post-conviction petition amended on the face appear which does not new information examination record. Our careful original appellate the State is correct although the record reveals maintaining deputy that the record reflects that sheriffs during proceedings, “near” were the trial record not does reveal the nature and extent of the security actually employed during courtroom measures proceedings. petition, supported by The amended proximity affidavit, number, establishes the deputy guarding and attire of the sheriffs involved in defendant, information which is not discernable from the petition addition, record. In the amended and defendant’s affidavit constitute the sole evidence that defendant was by deputy escorted to and from the witness stand presence jury. sheriff in the of the Because the rules of procedural relating default are relaxed where the facts post-conviction appear a defendant’s claim do not on the original (Whitehead, face of the record 169 Ill. 2d 372; at People (1991)), Eddmonds, v. 501, 143 Ill. 2d 528 we ad dress the merits of defendant’s claims. evidentiary stated,

As a defendant is not entitled to an hearing post-conviction petition on his aas matter of right. evidentiary hearing only An is warranted where allegations post-conviction petition, supported of the appropriate by where accompanying the trial record or showing affidavits, make a substantial that a defendant’s rights Haynes, constitutional have been violated. 192 Ill. Morgan, 472; 2d at carefully Ill. 187 2d at 528. After reviewing petition the defendant’s amended and his af taking well-pleaded fidavit, and all true, facts as we can say not showing that defendant has made a substantial probability that there is a reasonable that he would not degree have been convicted of first murder if the chal lenged security employed. measures had not been right

A to a fair trial is a fundamental liberty interest secured the sixth and fourteenth amendments to the United States Constitution. Holbrook Flynn, v. 560, 567, 475 U.S. 89 525, 533, L. Ed. 2d 106 S. (1986). presumption 1340, Ct. 1345 “The innocence, 528 Constitution, is a basic in the not articulated

although of criminal system fair trial under our of a component Williams, 425 U.S. 501, 503, 48 L. Ed. Estelle v. justice.” (1976). To 1691, safeguard 1692 126, 130, S. Ct. 2d 96 innocence, must be alert “courts presumption fact- the fairness of the undermine may factors against dilu- “carefully guard and must finding process” guilt is to be established principle tion doubt.” Wil- beyond reasonable evidence probative 130, Ct. at liams, 503, L. Ed. 2d at 96 S. at 48 425 U.S. Holbrook, 567, L. Ed. 2d at at 1693; 475 U.S. see also (central fair trial right to the to a 533, at 1345 106 S. Ct. “ crime entitled accused of a is ‘one principle is the solely on innocence determined guilt to have his or trial, not on at introduced of the evidence basis indictment, continued suspicion, official grounds at proof adduced as not custody, or other circumstances Kentucky, 436 U.S. 478, 485- Taylor v. ”), quoting trial’ (1978). 1930, 1935 468, 475, 98 S. Ct. L. Ed. 2d threat to the such a Indeed, may pose practices certain subjected to “close they must be of a trial fairness L. Ed. 2d Williams, 425 U.S. scrutiny.” judicial of vari- assessing the use 130, at 1693. When at 96 S. Ct. “[cjourts courtroom, in the procedures or practices ous effects of likely they can to evaluate must do the best reason, and principle, on procedure, based particular Williams, 425 U.S. at 504, experience.” common human 130, at 1693. 2d at 96 S. Ct. 48 L. Ed. courtroom however, every that say, is not to

This from a defendant out single tends which practice of a violation constitutes in the courtroom everyone else Holbrook, U.S. at 475 rights. constitutional a defendant’s The United 533, Ct. at 1345. 2d at 106 S. 567, L. Ed. 89 are “jurors that recognized has Court Supreme States them before appearing the defendant aware quite happenstance” or by choice not arrive there did

529 “every marshal reminder that State has chosen to its him against punish allegedly resources defendant for criminal eliminated from conduct” cannot be court Holbrook, 567, 475 at 89 L. Ed. 2d at proceedings. U.S. 533-34, 106 S. Ct. at 1345. Holbrook,

In Supreme Court held that the notice- deployment personnel able security courtroom during type trial is not a of inherently prejudicial practice only be permitted justified by that should where an es- specific sential state interest to each trial. The Holbrook Court refused find that the defendant’s to a right fair trial presence, was violated his trial with at five codefendants, of four uniformed state troopers sitting the first spectator row the section the courtroom. explained The Court that the “chief feature that distin- guishes security the use of identifiable officers from practices might courtroom we find inherently prejudicial” jurors is that reasonably could range draw a “wide[ ] *** from the presence” inferences officers’ such presence “need be interpreted not as a sign that [a is particularly dangerous defendant] or culpable.” Hol- brook, 569, 534, 475 U.S. at Ed. L. 2d at S. 106 Ct. at 1346. The Court further stated that it could “entirely jurors possible that will infer anything not at all from presence guards,” society “[o]ur because has become presence inured to the of armed guards most public places,” they are taken granted “doubtless for long so their numbers or do weaponry suggest not particular official Holbrook, concern or alarm.” 475 U.S. 569, L. 535, 89 Ed. 2d at 106 S. Ct. at 1346. The Court therefore presence concluded of the uniformed officers in the pose courtroom did not “unacceptable of prejudice” and, risk to the accordingly, inherently not prejudicial. Holbrook, U.S. at L. Ed. 2d at S. 106 Ct. at 1347.

In court, brief this first contends 530 during jury por- the security employed measures “inherently places prejudicial”

tion of his trial were that a escorted upon deputy the fact sheriffs emphasis stand and remained stand- him to and from the witness during argu- Defendant’s ing testimony. him his behind above, the Supreme ment lacks As Court merit. discussed Holbrook “any in rejected presumption use security guards the courtroom is inher- identifiable variety and held view of ently prejudicial” “[i]n *** can deployed, which such ways guards a.case- Holbrook, 475 by-case approach appropriate.” is more 535, 569, Ed. at S. Ct. at 1346. U.S. at 89 L. 2d 106 security if the next contends that even Defendant during prejudicial his trial were not employed measures se, per prejudiced these measures nevertheless than they no inference other because “could raise disagree. dangerous guilty.” [defendant] was We found that defendants who were Previous have decisions security similar those in-court measures subjected prejudice trial not during defendant’s did suffer employed example, courts have of those measures. For a result trial, when, during no occurred prejudice determined that rather near the defendant than positioned an officer was Glaseo, (People v. App. 66 Ill. 2d section spectator (1966)), 445, when two uniformed officers 448-49 were seated behind of Corrections Department Johnson, v. 54 Ill. (People trial throughout uniformed (1977)), guard or when one 3d App. table, guard one behind the defense was stationed courtroom, group entrance to the stationed each spectators’ the front row the were seated in guards Fields, Ill. 3d (People v. App. 1034-35 seats (2001)). prospec no occurred when Similarly, prejudice into escorted being a defendant jury panel tive observed and later deputy a uniformed sheriffs courtroom behind of another deputy place one take saw (People App. Shorter, 468, defendant v. 59 Ill. 3d 478 (1978)), a uniformed United stood when States marshall (United near latter a defendant testified v. States (8th 1990)), Williams, 1430, 897 F.2d 1434 Cir. when or by defendant was escorted from witness stand deputy a uniformed sheriff who stood behind the defen (People Hughes, App. dant as he testified v. Ill. 79, 205 3d (1990)). 83 juror may Holbrook,

As the Court stated reason ably range presence a wide draw of inferences from the security personnel “[i]t of in the courtroom. Because is practice’ guards ‘a common courtroom to have uniformed present” during proceedings (People Fields, court v. 322 App. (2001), quoting People 1029, Ill. 3d 1034 v. Fries- (1985)), App. “presence land, 595, 130 Ill. 3d 598 guards interpreted aat defendant’s trial not need be aas (Hol sign particularly dangerous culpable” that he is or brook, 569, U.S. 534, 475 at 89 L. 2d at Ed. 106 Ct. at S. 1346). agree Our examination the record leads us to judge extraordinary with trial court that “no adopted” respect measures were to courtroom security during Further, defendant’s trial. there is no guards evidence record that the number of their or weaponry “suggested] particular official concern or (Holbrook, 569, alarm” 475 at 535, U.S. 89 L. Ed. 2d at 1346). any 106 S. Therefore, Ct. inferences unfavor able defendant under the circumstances at bar would highly speculative. regarding security safety Decisions in the squarely are courtroom within the discretion of the trial App. People Fields, court. 1035; 322 Ill. 3d at see also v. (1999). Buss, Ill. Further, 187 2d 216 once chal lenged security inherently are measures found not to be prejudicial, the defendant bears burden af firmatively demonstrating prejudice actual as a result of security. the in-court Holbrook, 572, L. 475 U.S. at 89 Ed. Williams, 1347-48; F.2d at 2d at S. Ct. at presented by 1434. conclude evidence We inadequate showing is to make substantial that, security employed as a result of the measures case, denied a prejudice this suffered and was therefore, The right judge, ap- to a fair trial. circuit court claim without post-conviction dismissed this propriately hearing. evidentiary Accordingly, reject post- defendant’s related we also that he denied effective assistance conviction claim preserve a result of counsel’s failure to of trial counsel as rights claim that his constitutional were deputy escorted a uniformed violated when he was objecting from the witness stand either this post- in a including specific at trial this claim practice or Strickland, stated, trial motion. As under defense counsel if of counsel falls only performance ineffective the is reasonableness, objective an standard of below in to the prejudice counsel’s error results defendant. Strickland, 693, 104 687, at 80 L. Ed. 2d at S. 466 U.S. However, Ill. at if Morgan, 2064; at 2d 529-30. Ct. on the disposed claim can be of the ineffective-assistance prejudice, did not suffer that the defendant ground performance need not determine whether counsel’s court Ill. at Morgan, deficient. 2d 530. constitutionally was the issue underlying held above that Because we have due to merit, prejudice has suffered no no has issue for this meritless preserve counsel’s failure to trial Therefore, correctly dismissed the circuit court appeal. evidentiary an hear claim without post-conviction this ing. “Exculpatory” Evidence

III. Failure to Present court, defendant con- In brief to this opening his him failing in to grant erred the circuit court tended claim that hearing his evidentiary post-conviction on failing “exculpa- for present was ineffective his counsel during blood and evidence his trial. tory” fingerprint argued trial counsel inef- Specifically, his fectively timely preserve failed to make motion blood and, apartment evidence obtained from the victim’s had testing might the evidence been so DNA have preserved, he Atype established that was not the source the blood at crime further alleged found scene. Defendant his trial by failing present counsel was ineffective evidence at trial the Illinois State Police crime lab had determined that certain latent fingerprints discov- ered not apartment belong any victim’s did individual, including known defendant. Defendant al- leged post-conviction petition that had counsel presented fingerprints evidence that the left at the crime defendant, not scene were those result the trial different, would have jury “[t]he been could have reasonably concluded that fingerprints unidentified at found the crime scene were left there the offender and that the offender was therefore not [defendant].” opening

Defendant filed his brief this court on 27, April Subsequent filing, 1998. to this both the State and defendant entered into an agreed order that blood subjected evidence be testing to DNA Illinois State Police Forensic Science Center. Accordingly, the briefing in this stayed, pending case was the outcome July report these tests. On issued Illinois concluding State Police Forensic Science Center sink that a bloodstain found the kitchen of the victim’s apartment “matches” defendant’s DNA “and profile could not originated have from [the vieitm].”2 Defendant thereafter forwarded the Forensic Science Center’s laboratory file and operating procedures case standard report profile

2 The stated that the DNA of in the blood found apartment ap the expected victim’s “would be in occur proximately Black, quadrillion quadrillion 1 in 18 1 in or White quadrillion 1 in 26 Hispanic unrelated individuals.” independent laboratory, Diagnostics, Cellmark for 2, 2001, a conclud- May review. On Cellmark issued letter identify any process- that it could “not errors the ing results, case, in the or in the conclusions ing of the the Illinois Police Forensic Science reached” State Center. a filed brief with this

Subsequently, reply court, in he that unable to prevail” which “concedes he is “in of of light on the blood-evidence issue the results the testing.” recent Because the result of DNA DNA post- analysis contradicts basis defendant’s evidence, we respect conviction claim with the blood specific of this affirm the court’s dismissal post-conviction evidentiary hearing. without an claim claim that trial next turn to defendant’s counsel We failing to the present jury ineffective evidence Lab concluded that 10 that Illinois State Crime had did not latent found at the murder scene fingerprints belong victim, roommate, neighbor to the her their Ken- Evenson, or defendant. Our review the record neth following. of defendant’s trial discloses proceedings from the prints After the latent recovered comparing taken from apartment fingerprints victim’s with known for unrelated of- prior, he was arrested defendant when concluded that investigator fense crime lab jury, presence no match. there was Outside allowed to they should be argued defense counsel match present fingerprint evidence that there was no jury fingerprint to the disclosing without obtained using fingerprints was conducted comparison of a arrest. Defense prior the result from prior of defendant’s counsel maintained disclosure The unduly State jury prejudicial. arrest to the would foundation for contending proper objected, required to estab- fingerprints counsel The fingerprints were obtained. lish when and where 535 the the judge expressed trial court concern that use of fingerprints jury could the on the basis mislead years prints that defendant’s could have over the changed fingers, as a result trauma his such as cuts or scars. At request, fingerprint the court’s the examiner who upon the 1982 prints excluded based was into brought any scarring chambers and or stated cuts on defendant’s hands after the fingerprinting would not have affected latent comparison his the at fingerprints found the crime scene. After considering arguments parties, of the trial court ruled judge although not lay the defense did have to a founda- tion for the 1982 fingerprints defendant used in the comparison, the prosecution on cross-examination would to inquire origin allowed as to the of defendant’s fingerprints. Defense counsel then decided not to present the fingerprint evidence at trial. post-conviction

In his petition, defendant asserts light by court, adverse ruling trial defense counsel could have “safely presented expert testimony that the fingerprints unknown found at the scene not did belong [defendant] based on fingerprints taken after [defendant’s arrest] for the murder.” In support of this contention, the post-conviction petition relies af- upon fidavit submitted which defendant avers that following bar, his arrest for the at offense he was “fingerprinted on three separate According occasions.” affidavit, to defendant’s he “im- fingerprinted was first *** mediately after my right arrest my only [when] hand was fingerprinted injury my because of the left hand.” Defendant avers in his affidavit he was fingerprinted a second time “six or following my seven months arrest” when a set “complete left fingerprints, right both hands, at taken County jail.” Cook Defendant further states that a third finger- affidavit set of on prints 22, 1989, was taken November when “palm prints fingerprints which included were taken at request my attorneys.” stated, stage in post-

As motion dismiss all are proceedings, well-pleaded facts taken conviction record. v. positively People as true unless rebutted 256, (2000); Childress, Ill. 2d 191 Ill. 2d at Fair, 193 174; Coleman, carefully 2d 183 Ill. at 385. After examin case, ing record in we find that the state by made in his affidavit that the first ment at oc in connection with offense bar fingerprinting *** “immediately my right after arrest my [when] curred injury only my because of the fingerprinted hand During trial, Of by left hand” is contradicted the record. Schaumburg police depart ficer Herman of the James Her by called as a witness the defense. Officer ment was investigation of the part man testified that as murder, fingerprints he took from victim’s palm roommate, Killeen, well the victim’s Pamela as following colloquy The then neighbor, Kenneth Evenson. occurred:

“Q. you fingerprints And have occasion take the did defendant, prints from the William fingertip and the Peeples? No, I

A. did not. Q. prints you any [defendant]? Did take time, A. Not at that no. subsequent you take

Q. any [defen- At did time fingerprints? dant’s] time, no.” subsequent to that

A. Not testimony, prosecu- counsel for both Shortly after this evidence out fingerprint tion discussed the and defense The jury judge’s in the chambers. presence of the stated that prosecutors that one of the transcript reveals arrest, injured hand was “defendant’s at the time his This was cor- fingerprinted.” not statement and could that defendant’s counsel, stated by defense who roborated “presumably at some hand” and “injury was one station morning police when he was in the the next point they they fingerprinted hand, could the other but have judge “evidently didn’t.” The trial court then stated fingerprint [sic] taken was not a current card there injuries.” to the time of the incident because The close by judge’s disputed party. either statement was not specific Therefore, in defen- we find that statement fingerprinted “immediately” he dant’s affidavit that was after his arrest is rebutted the record. respect

With to the statement made fingerprinted affidavit that he was “six or seven months” after his arrest for the at bar at offenses Cook Countyjail, we find that there in the is no mention record respect of this occurrence. to defendant’s With assertion fingerprinted request attorneys he that was at the of his “palm prints on November when which fingerprints” although included were taken, we find “palm prints” reference in the record were obtained from defendant trial, at some time between his arrest and respect fingerprints the record is silent with to whether were also taken on occasion. Because the facts set respect specific with forth appear to these two statements do not original they record, on the face of the could have appeal. been not raised on defendant’s direct Wetherefore specific post-conviction address the merits of this claim. Whitehead, 372; Eddmonds, 2d at 169 Ill. 143 Ill. 2d at 528. evidentiary hearing

A defendant is not entitled to an post-conviction right. on his claim as a matter of An evidentiary hearing only allega is warranted where the post-conviction petition tions the make a substantial showing rights that a defendant’s constitutional have carefully Towns, been violated. 182 Ill. 2d at After 503. reviewing post-conviction claims and his af taking well-pleaded fidavit, true, all facts as we find showing that defendant has failed to make a substantial probability that there is a that he reasonable would not degree fingerprint have been of first murder if convicted comparison using post-arrest fingerprints evidence, his assuming comparison again the exclude would defendant, had been introduced. fingerprint comparison contends that the

Defendant “exculpatory” and, is had this evidence been evidence jury, “they have concluded that disclosed the would by prints left the unidentified found at the scene were disagree. and not We The the murderer” defendant. fingerprints absence of defendant’s from the victim’s necessarily apartment not, contends, as does “exculpatory” constitute evidence which “exonerates” argument Contrary him the advanced from the crimes. by fingerprints the defendant, the lack of crime not in the does not establish that defendant scene was may apartment; instead, it indicate that he either was fingerprints any fingerprints or that careful not to leave comparison. In for addi- that were left were unsuitable apart- recovery prints the tion, the of latent from victim’s victim, Killeen, Evenson ment which did not match the or defendant does not lead to the conclusion advocated prints the those of “actual of- defendant that were contrary, jury attributed fender.” To the could have explanations recovery many innocent including they fingerprints, left who were visitors apartment. had invited into been presented Considering totality of circumstances jury, make that defendant has failed to to the we conclude prob- showing there is a reasonable a substantial alleged ability that, error, result of but for counsel’s jury proceeding different. The was would have been type presented blood, A the same evidence that type defendant’s, recovered from the crime blood type presence than that The of a blood other scene. during the commission the victim indicated perpetrator an offenses, the crime had suffered injury. jury presented The also with evidence defendant, left-handed, severe lacera- who is sustained bleeding. hand, to his left which caused extensive tions jury informed that a knife recovered from The was also type blood, the defendant’s home had traces of AB blood type type In AB addition, of the victim. blood was We conclude that discovered on defendant’s wristwatch. showing defendant has make a substantial failed jury, presented evidence, would ar- above have rived at a different result had counsel introduced defense fingerprint comparisons Therefore, trial. prejudiced by attorneys’ he cannot that was his establish present fingerprint comparison failure to evidence. The correctly specific post- circuit court this dismissed evidentiary hearing. claim conviction without During IV Ineffective Assistance of Counsel Aggravation-Mitigation Sentencing Phase at Defendant is next contends that he entitled to an evidentiary hearing post-conviction on his claim that he during was denied the effective assistance of counsel aggravation-mitigation phase capital sentencing of his hearing. premises allegation Defendant his claim on the post-conviction petition made in his amended that trial ineffectively investigate present counsel failed to and readily mitigating available evidence “which would allow [defendant] the sentencer to understand how came to point capital where he stood convicted of a offense.” alleges petition end, To this in his amended thorough trial that investigation counsel’s “failure to conduct a background present their client’s regarding development, childhood, evidence social neuropsychological impairment sentencing left judge incomplete misleading with an view of how [defendant] came to be before him.” Defendant further alleges mitigation, that counsel’scase in “which consisted performed by [defendant] kind idealized, acts and an

540 life, family childhood unrealistic view of his he had the crime of which irreconcilable with completely defendant, for the al- According to but convicted.” been during the performance in counsel’s leged deficiencies prob- there is a reasonable sentencing, stage second sentenced to not have been ability that defendant would death. a determining whether stated, the for

As standard repre deficient constitutionally received defendant has is sentencing hearing governed capital at a sentation The first in Strickland. test enunciated the two-tier that a defendant to show requires prong of Strickland in that counsel’s deficient of counsel was performance of reason an standard objective fell below performance 688, L. Ed. 2d at Strickland, U.S. at 80 466 ableness. at 473. In as 192 Ill. 2d 693, 2064; Haynes, at 104 S. Ct. deficient, of counsel was sessing performance whether is performance counsel’s scrutiny a defense judicial indulge “must deferential; therefore, a defendant highly falls within that counsel’s conduct strong presumption assistance; that professional range of reasonable the wide that, presumption is, must overcome the defendant ‘might action circumstances, challenged under the ” Strickland, at 466 U.S. strategy.’ trial considered sound 2065, 694-95, quoting 104 S. Ct. at 689, 2d at 80 L. Ed. 93, Ct. at 101, L. Ed. at 76 S. 100 Michel, 350 U.S. at Coleman, Ill. 2d at 397. 164; see also defendant prong requires Strickland The' second performance alleged-deficient that counsel’s show showing requires “This the defense. prejudiced deprive as to so serious errors were counsel’s reliable.” result is trial, a trial whose fair defendant of a 693, 104 S. 2d at 687, 80 L. Ed. Strickland, at 466 U.S. deficiency both A must show at 2064. defendant Ct. to conclude reviewing court in order for a prejudice from resulted death sentence or “the conviction renders adversary process in the breakdown at L. Ed. Strickland, 466 U.S. result unreliable.” 104 Ct. at 2064. 2d S. petition,

In amended post-conviction his trial counsel was alleges performance counsel had failed to sentencing deficient at because thorough investigation respect potential conduct allegation, In of this mitigation support evidence. places upon exchange substantial reliance and defense which occurred between the trial court immediately sentencing the start of the counsel before hearing. Our review of the trial record reveals that on date to sentencing hearing begin, was scheduled the trial a requested grant defense counsel that court continuance. Counsel there “are certain explained on.” aspects mitigation working Although we were still they counsel trying stated were still to locate ad- witnesses, potential mitigation ditional counsel reassured that they “preparing court had been for this [sentenc- ing] hearing diligently” they “already had mitigation talked to and interviewed [our] witnesses.” Indeed, they counsel informed the court that had “four or five at the ready witnesses” courthouse who were to testify on behalf of defendant in mitigation.

It is from the context of apparent defense counsel’s that the chief for a requesting comments reason continu- counsel, ance because interviewing was as result of potential mitigation witnesses, had discovered informa- years tion that was in a car accident a few “[defendant] ago, spinal meningitis and he also had when he was *** younger may which have affected his Counsel brain.” explained asking to court that “what we are for is complete neurological time to do a on workup [defendant] is, if, just for the brain to see how his because there brain spinal meningitis, and there was the car accident in, that he was involved where I he lost some believe consciousness, and we with a Dr. spoke psychologist, Rosenwald, thought who that because of those factors that might appropriate testing.” it be to do the Counsel examined stated that defendant had been Dr. Rosen- suggested wald and that the doctor had that an electroen- (EEC) on defendant. cephalogram performed Counsel although they diligently stated that had preparing been for the of the aggravation-mitigation portion sentencing “there hearing, inevitably are some matters that arise in days hearing, last few before such and those are you hearing what are about now.” The trial court judge denied motion defense counsel’s for continuance proceeded aggravation-mitigation stage sentencing proceedings. Strickland,

In the United States held Supreme Court claims, bar, respect that with such as that at ineffective of a counsel was result failure to investi- gate, duty investiga- “counsel has a to make reasonable tions or to make a reasonable decision that makes unnecessary.” Strickland, particular investigations U.S. 80 L. Ed. 2d at 104 S. Ct. at 2066. made after “[Strategic thorough investigation choices options virtually law and facts relevant are plausible made after less unchallengeable; strategic choices complete investigation precisely than are reasonable professional judgments sup- extent reasonable Strickland, investigation.” on port limitations 690-91, 2066. U.S. at 80 L. Ed. 2d at 104 S. Ct. at record, the trial the materi- Our review of as well as post- in of his support als submitted leads us to conclude that defendant petition, conviction of showing support has failed to make a substantial in fail- that his trial counsel was deficient allegation his family ing reasonably investigate defendant’s post-conviction peti- In his amended background. social tion, his trial counsel although asserts family regarding members testimony “did offer never- redeeming counsel was qualities,” [defendant’s] evidence concern- “failing any deficient in to offer theless on background light any which shed ing [defendant’s] he been accused and the criminal conduct which has amended alleges petition convicted.” Defendant only deficient in that “the witness counsel was anything counsel asked to describe about [defendant’s] mother,” and that development [defendant’s] was and, in provided “incomplete, many information she inaccurate.” Defendant that had respects, asserts counsel family interviewed additional members and examined records, they have learned that would defendant’s mother “had mental problems, lived lifestyle, chaotic frequently [defendant] left to the care of others, and, consequently, was not the best historian of defendant, life.” According [defendant’s] counsel’s a thorough investigation failure conduct of defendant’s background sentencing “left the with an judge incomplete misleading [defendant] view how came to be before him.”

The trial record reveals that defense counsel had contacted the two closest family, members of defendant’s sister, residence, his mother and had traveled to their them, and had face, interviewed face to for several hours. As a investigation, result of this counsel were provided with information respect family to defendant’s history, including social information that defendant had child spinal meningitis as and was involved a car ac- Further, cident him causing to lose consciousness. investigation provided counsel with several additional witnesses, names of potential mitigation and counsel to the trial judge stated court that “we have been in witnesses,” contact with these had counsel issued subpoenas, and that had hired an they investigator up potential follow on leads.

544 during that,

The trial record further reveals mitigation portion sentencing proceedings, of the counsel testify defendant, called on six witnesses behalf four family. of whom defendant’s In were members of addi support submitted tion, counsel two letters written defendant. The information elicited from the witnesses during mitigation portion hearing by defense very despite experiencing counsel showed that troubled facing adversity despite growing up, childhood, and while possessed strength goodness “the and inner good good son, brother, become what we consider good figure uncle, and a father to his sister.” The record strategic shows that defense counsel made a choice to argue Peeples. that there were “two William The William Peeples family and friends knew and the William Peeples jury pursuing that the convicted of murder.” In mitigation strategy, this defense counsel focused on the redeeming qualities possessed by defendant and asked judge person to view defendant as a life was whose saving worthy mercy. worth and who was Counsel family, taking upon focused defendant’s “love of his his family,” being care of his and stated this defendant’s prison, supports if alive “even it is sustains and his sister, addition, mother and niece.” In we note repeated that defendant in allocution this theme to the denying that, extent after he committed the crimes he and that he therefore had no which was convicted my family my remorse, that “I love friends stated my beings.” Indeed, and I tried to love fellow human may “[t]he reasonableness of counsel’s actions substantially determined or influenced Strickland, 691, 466 U.S. at own statements or actions.” People 2066; v. 695, 80 L. Ed. 2d at 104 S. Ct. at see also (2000); People Evans, Enis, 361, Ill. 2d 409-10 v. 186 194 (1999). Further, the fact that the sentencer Ill. 2d position accept does not mean did not defense counsel’s People Franklin, v. ineffective. counsel was that defense (1990). 135 Ill. 2d affording appropriate deference sum,

In performance, choice we conclude that counsel’s counsel’s range professionally strategy “well within was (Strickland, judgments” 699, at 80 466 U.S. reasonable 2070), 701, and that the deci- L. Ed. 2d at 104 S. Ct. at family background not to and social sion of counsel seek already in hand evidence in addition to that which was reasonable. was also post-conviction petition, defendant

In amended during trial deficient contends that his counsel were sentencing hearing aggravation-mitigation portion of the alleges respect. Defendant that counsel failed a second reasonably investigate present any and evidence “longstanding mitigation respect to defendant’s with portions cognitive particularly deficits in those of the reasoning, judgment initiating with brain associated inhibiting highly stated, behavior.” As courts are reviewing strategic deferential counsel’s decisions regarding presentation mitigation evidence.Strick land, 694-95, at Ed. 2d at 104 S. Ct. 466 U.S. 80 L. However, 2065; Towns, 182 Ill. 2d at 513-14. such mitigating deference is not warranted the lack of where strategy, presented rather evidence is not a result of but investigate properly failure to is attributable mitigation counsel’s prepare Towns, a 182 Ill. 2d at defense. (1997). People Flowery, 514; v. Ill. 2d Accord mitigation ingly, presentation is not deemed counsel’s legitimate strategy investi to be a without reasonable gation mitigating Towns, 182 Ill. 2d into circumstances. at 514. conclude that defendant has made substantial

We present showing failure to evidence defense counsel’s cognitive respect alleged deficits dur- sentencing hearing ing mitigation portion of the not the result of a strategic preceded by decision investigation. reasonable The record before this court immediately prior indicates to the start of the aggravation-mitigation stage sentencing hearing, counsel requested grant the trial court a continu- because, ance as a result of the mitiga- interviews with witnesses, tion counsel had discovered information that spinal had suffered from meningitis as a child accident, and had been in a car “may two events which have affected his brain.” Counsel asked the court for “time to do a complete neurological on defen- workup” dant, including EEG, which was recommended Dr. Rosenwald. trial judge The court denied defense counsel’s continuance, motion for and counsel did not introduce concerning evidence defendant’s alleged cognitive deficits their during mitigation case. “ It is well ‘[mjitigating established evidence is extremely important under the capital sentencing Illinois ” “ scheme,’ aggravating ‘[o]nce because an factor is impose penalty, found sufficient the death there must mitigating evidence sufficient to preclude imposi ” tion of the penalty.’ Morgan, 541, death 187 Ill. 2d at (1992). quoting People Perez, 168, v. 148 Ill. 2d 194 Given the critical importance mitigation evidence, of defense a duty investigation counsel has to make a reasonable for evidence, of potential sources such or must have a legitimate failing reason for to make a particular Strickland, investigation. 690-91, 466 U.S. at 80 L. Ed. 695, 2066; Enis, 2d at 104 Ct. at 2d People S. v. 194 Ill. 361, (2000); 402 187 Ill. 2d at 541. Morgan, Given us, record before we conclude that counsel’s failure to introduce this evidence is attributable to their failure to investigate properly potential mitigation this evidence prepare Accordingly, and a defense. we find that defense investigate present counsel’s failure to and evidence of alleged deficits was deficient. cognitive counsel, if profession even However, error “[a]n setting aside the unreasonable, not warrant does ally error had no ef if the proceeding of a criminal judgment Strickland, 691, at 80 L. 466 U.S. the judgment.” fect on 696, 104 prong at 2066. Under second 2d at S. Ct. Ed. there demonstrate that Strickland, a defendant must that, for counsel’s but probability is a reasonable would errors, proceeding the result unprofessional 694, at 80 L. Strickland, 466 U.S. have different. been 698, specific at In the context Ed. 2d at 104 S. Ct. 2068. ineffective for fail allegation that trial counsel was evidence, mitigation ing investigate present prob a reasonable defendant must show that there is counsel, that, committed ability absent the errors “ that the balance of finder fact ‘would have concluded circumstances did not war aggravating mitigating ” 124, 145 Henderson, v. 171 Ill. 2d People rant death.’ Strickland, 695, at 80 L. Ed. 2d (1996), U.S. quoting at 104 S. Ct. at 2069. the record leads us to

Our careful examination of satisfy prejudice that defendant has failed to conclude Strickland, enough it “not Under is prong of Strickland. the errors had some for the defendant to show that proceeding.” on the outcome of the conceivable effect 697, 104 Strickland, 80 L. Ed. 2d at S. U.S. Defendant has failed to make a substantial Ct. at 2067. trial counsel that the evidence that he contends showing creates a sentencing hearing offered at the should have have the sentencer would probability reasonable aggravating mitigating that the concluded balance did not warrant death. circumstances prejudiced by first that he was argues Defendant cogni- of defendant’s present counsel’s failure to evidence mitigation stage of the during tive impairments contends that evi- sentencing proceedings. Defendant assisted of these would have impairments dence 548

explaining the aggravating evidence presented by the that, State and under this court’s decision in People v. Morgan, Ill. 2d (1999), the prejudice is apparent. Defendant concludes that because the facts at bar are “remarkably similar” to those in Morgan, this court find must the circuit court erred in dismissing defendant’s claim without an evidentiary hearing. We disagree and find that defendant’s reliance upon Morgan is misplaced.

In Morgan, the circuit court conducted an evidentiary hearing on the post-conviction defendant’s claim that his trial counsel was ineffective at the sentencing phase of his trial because counsel failed to investigate present mitigating evidence of the defendant’s lifelong organic damage. brain During the hearing, neurologist testified that the defendant suffered from dysfunc severe bilateral tion of the brain, frontal lobes of the as well as from more diffused damage portions to other of the brain. This damage frontal lobe caused the defendant to be “short tempered” and “unable impulses.” to check his In addi tion, the expert defendant’s stated that there was a direct connection between organic damage to the defen brain dant’s and the conduct part described as State’s case in aggravation during the death penalty hearing. According to the expert, defendant’s the violent manner in which the defendant carried out the two murders with which he charged “was characteristic damage, frontal lobe revealing ‘stimulus- ” bound’ paranoia,’ behavior and ‘excessive and that “defendant way would not have conducted himself he did at the time of the offenses had the frontal lobes of Morgan, 187 Ill. 2d at 553- damaged.” his brain not been 54. Significantly, expert the defendant’s concluded that “ damage the defendant’s brain was the ‘determining ” in factor’ his behavior at the time of the murders. Morgan, addition, Ill. 2d at 553. In a clinical

549 hearing evidentiary during psychologist the testified damage to severity him caused brain of defendant’s the ” “ ‘paranoid time of which, at the ideation’ from suffer ” “ the to ‘misconstrue’ offenses, led the ” “an ‘irrational’ react in and to the victims actions of Morgan, 554. Ill. 2d at manner. light Morgan in held

This court by presented defendant’s amount of evidence minimal mitigation portion during theof sentenc counsel trial (which transcript), comprised pages hearing ing present evidence defense counsel failure of damage organic which brain severe defendant’s experts at brutal actions to the defendant’s linked two Morgan, prejudiced defendant. the time of the murders Accordingly, this court vacated 187 Ill. 2d at 556-57. remanded his cause and defendant’s death sentence sentencing hearing. for a new the circuit court pre- of the evidence bar, at the nature In the case petition support amended with of defendant’s sented in sharp “cognitive respect deficits” stands to his respect to the adduced with to the evidence contrast damage lifelong organic in Mor- brain defendant’s severe prepared neuropsychological gan. Dr. evaluation The petition support amended of defendant’s Gelbort dysfunction” defendant’s “brain characterized dysfunc- explained of this “minimal,” that as a result and logical, goal “ability think in a tion, defendant’s opined impacted. that, Dr. manner” is Gelbort directed dysfunction, defendant’s defendant’s brain due to reasoning solving, “^judgement, problem are af- “everyday impaired,” activi- that defendant’s fected adversely ability plan affected, are ahead” ties and impairment almost “would defendant’s brain and that present certainly the offense.” at the time of have been presented by The nature of the evidence equate dysfunction respect not does to his brain bar with the nature evidence adduced in Morgan, experts where two medical “testified there was link physical damage definite between the to defendant’s conduct,” brain defendant’s criminal to the extent “ brain damage defendant’s was the ‘determin ” ing factor’ in his behavior at the time of the murders. Morgan, Therefore, 187 Ill. 2d at 553-55. upon Morgan inapposite.

reliance is Strickland, Under in evaluating whether a defendant prejudiced by has been present failure of counsel it sentencer, certain evidence to the is appropriate consider the of the strength proffered mitigating evidence and whether the “admission of the evidence [defendant] might now offers even have been harmful to his case.” Strickland, 700, at 2d 701, 466 U.S. 80 L. Ed. at 104 S. Indeed, atCt. 2071. this court repeatedly explained has sentencing, jury considering “[a]t that a judge or of might [mental deficits] evidence this nature view the mitigating aggravating, information as either or depend ing, course, of whether hearing on the individual it evokes or compassion evidence finds demonstrates Tenner, v. dangerousness.” Ill. People possible future 175 Evans, 372, People v. (1997); 382 see 2d 2d also 186 Ill. (1999) (“Proof 83, 102 of mental handicaps defendant’s only could compassion judge, not evoke from trial also but could have demonstrated defendant’s continued Franklin, People v. dangerousness”); 1, 167 Ill. 2d (“the (1995) may evidence of mental defendant’s illness have defendant or also shown that was less deterrable v. him”); People society protected needed from (“ (1995) Mahaffey, 165 Ill. 2d 467-68 ‘On the one hand, impairment] [evidence of mental shows other, culpable; defendant to be less on the it shows the *** Jurors who to be less deterrable. see capital punishment just as the of the wicked [dessert] lenience; jurors favor of with more swayed will be as the execution incline toward will views instrumental ”), quoting person’ such way incapacitate only 1991) (East (7th Cir. Aiken, 935 F.2d v. Brewer 2d Henderson, 142 Ill. v. erbrook, J., concurring); People (1990). of the evidence Indeed, admission 258, 340 Dr. Gelbort’s contained within now offers In his case. harmful to defendant’s may have been report achievement that academic stated Dr. Gelbort report, to be at spelling reading found defendant’s testing addition, upon based In school level. high found that defendant, Dr. Gelbort of examination ‘normal tends to past events defendant’s “recollection “mini extent that defendant to the experience” ize’ his experienced he many problems mized or denied” bar, that, in the matter lifetime. We find during his evidence proffered heard the had the sentencer in addition to his his cognitive impairments, reasonably could have violence, the sentencer tory demonstrated defendant’s this evidence concluded with the Accordingly, agree we dangerousness. future court and conclude ruling post-conviction showing that failed to make a substantial defendant has that, had the sentencer probability there is reasonable cogni defendant’s evidence of now-proffered heard have proceeding of the would impairments, tive result different. been by prejudiced that he was

Defendant also asserts of defendant’s present failure to evidence counsel’s during mitiga family background and social troubled However, we sentencing proceedings. stage tion respect performance that counsel’s have found fam of defendant’s presenting evidence investigating deficient under Strick background was not ily and social to defeat finding alone is sufficient Although land. on of counsel claim ineffective assistance defendant’s 687, 80 L. Ed. (Strickland, 466 U.S. at specific this issue 552 693,

2d at 104 2064), S. Ct. at additionally we find that counsel’s failure to introduce the evidence now cited defendant with respect to his difficult upbringing did not result in prejudice. This court has repeatedly explained that although evidence with respect to a defendant’s chaotic childhood or family history of violence “could have evoked compassion in the jurors, it could have also demonstrated potential defendant’s for future dangerous ness and the basis for past defendant’s criminal acts.” Franklin, Enis, 27; 167 Ill. 2d at see also 2d Ill. at 412; Childress, Evans, 179; 191 Ill. 2d People v. at 186 Ill. v. 101; 2d at People Sanchez, Ill. 2d 491-92 (1996). This is also true with respect to evidence of educational disabilities. Easley, 192 Ill. 2d People 341; v. Johnson, (1998). Ill. 2d 203-04 bar,

In the matter at the sentencer could have reason- ably concluded that much of the evidence defendant now is, fact, seeks to introduce harmful to defendant’s case. Many of the documents submitted in sup- port of his amended petition contain highly damaging evidence. For example, that, evidence reveals throughout life, defendant had a quick and violent temper, and that this violence animated his relationships family, friends, and, with his most especially, with women. In her mitigation report, mitigation specialist Caryn Platt Tatelli stated that within family defendant’s there exists a “generational pattern, of, and acceptance violence, temper expressed in rage, aggression,” and that family “utilized violence and force as a solving means of and reconciling their differences with others.” According to Tatelli’s report, defendant and his fought sister “passionately” other, with each and such fights included “indiscriminate violence.” Defendant also fought fiancée, Allen, with his Vanessa and sometimes fights those also became physical. Tatelli further stated in her report family suburbs, after the moved to the relationships, in a series of romantic engaged defendant violence,” that of underpinnings [had] “all of which other corroborate inter-relationship violence “reports “[m]any, that and temper,” [defendant’s] made of reports an has that [defendant] indicated if of the sources not all Tatelli described temper.” extremely hot and volatile or a boiling point, reaching] “rapidly defendant as not be controlled.” which could explosiveness level of a result stating “[a]s report by her Tatelli concluded to turn [defendant], began he acting upon of the forces hatred for naturally-occurring anger, frustration himself, it to inward, allowing upon life situation of his the method temper, into a horrible as was build *** rage.” We deep-seated to harbor family began judge’s conclusion agree post-conviction dangerous- future of defendant’s powerful this is evidence ness. defendant addition, the evidence submitted

In reveals post-conviction petition his amended support of using fires and history setting has a angry outbursts. in the course of his violent knives up cut According report, to Tatelli’s fires. On a knife and often set furniture his home with occasion, a fire in the basement one defendant started family that defendant’s family home. Tatelli stated in starting conduct members believed defendant’s “constantly doing of defendant example the fire was could not to do.” The sentencer what he had been told harmful reasonably viewed this evidence as have that defendant’s defendant, to the extent that it shows in the matter with his conduct past conduct is consistent inflict stab wounds using multiple at bar: a knife to dispose fires to of evidence. setting the victim and the documents evidence contained within Other post- amended support submitted to the duplicative or is cumulative petition conviction evidence which was already presented by defense counsel during the mitigation phase of sentencing. For example, a substantial amount of the proffered evidence describes upbringing, chaotic the fact that defendant’s mother engaged in a series of relationships, and that defendant had in difficulties school. During mitiga- portion tion of the sentencing hearing, defense counsel called alia, inter testified, six witness who that defen- family dant’s very unstable, life was that he was shuttled caregiver from to caregiver, that defendant’s mother had series unsuccessful relationships and suffered from debilitating health problems, that he did not have a posi- life, tive male role model in his that he had exposed been drugs alcohol and at an early age, and that defendant had experienced trouble at school and had lived not environments conducive to peaceful living. In addi- tion, presented defense counsel evidence during mitiga- tion that defendant had subjected been to physical and psychological abuse as a child and that defendant had observed psychological, physical and sexual abuse within family. Although defendant alleges now that counsel’s case in mitigation “consisted of performed by kind acts idealized, and an [defendant] unrealistic view of his child- life,” hood and family our review of the record shows the nature of the evidence presented during mitiga- by tion defense counsel belies defendant’s contention and reveals that evidence of the same nature proffered now by defendant already was before sentencer.

Defendant nevertheless contends the evidence submitted in his post-conviction petition is least as mitigating as the evidence in our prior decisions found to satisfy the prejudice prong of Strickland. Defendant’s cases, however, reliance on these misplaced. is The deci- sions cited by factually distinguishable are bar, for, cases, from the matter at in those defense counsel presented very little or no during mitigation evidence

555 Towns, 182 hearing. E.g., sentencing of the death phase (defense four witnesses presented counsel at 507 Ill. 2d only 10 testimony accounted for whose mitigation 2d 168 Ill. Orange, v. transcript); People trial pages of (1995) (no presented were 138, mitigation witnesses 148, 161 Ill. 2d counsel); Thompkins, v. People trial by (1994) (defendant’s wit mitigation the sole wife was (1992) (the Perez, 148 Ill. 2d 176-77 ness); v. People mitigation psychological presented sole evidence during of Corrections Department report prepared offense); prior People for a the defendant’s incarceration (1989) (the Ruiz, only mitigation Ill. 2d 21-22 v. officer who police called defense counsel was witness during expressed that defendant remorse testified contrast, at bar pre In defense counsel questioning). testimony the of six witnesses on defendant’s sented into evidence two mitigation, in and submitted behalf addition, In on defendant’s behalf. letters written in allocution. The sent gave his own statement encer, therefore, argu and presented was with evidence from the deci mitigation ment in several areas of absent by defendant. upon sions relied sum, failed to make a substantial In defendant has that, probability a had showing there is reasonable in presented proffered his trial counsel the evidence now petition, the sen support post-conviction of his amended ag tencer have concluded that the balance would circumstances did not warrant gravating mitigating and court must “as penalty. the of the death This imposition totality on the sess in a realistic manner based prejudice evidence,” improper and therefore “it is focus *** the mitigating [as] evidence solely potential on aggravation must nature and extent of evidence Coleman, 2d at 538. be considered.” 168 Ill. also case, is aggravation plentiful In evidence this criminal prior Defendant’s convictions significant. include offenses which he against wielded a knife his victims. Defendant pled guilty to the charge of misde- meanor battery when he was apprehended during altercation in which he was possession found of a knife and the other had party been stabbed in the back. At the arrest, time of his defendant was on mandatory supervised and, release because he in posses- was found knife, sion of a he was returned to the penitentiary for violating parole. Defendant on mandatory was supervised release after serving period of incarceration as a result of his conviction of burglary residential attempted rape 13-year-old girl, he where used a ruse to gain entry into the victim’s home threatened to kill the victim with a knife if she did not acquiesce his demands. Defendant’s conduct in that case is strik- ingly bar, similar to his conduct in the case at where apparently gained entry apartment into the by asking Dawn Dudovic her for a cup sugar and then stabbing Moreover, her to death with a knife. surrounding circumstances murder of Dawn Dudovic particularly are violent. Defendant stabbed the victim 23 times and inflicted 16 incised wounds. The victim exhibited numerous defense wounds to her arms and hands, indicating that there a prolonged struggle. The victim died wounds, result of these stab multiple three of which completely pierced lung, her liver and heart. that, given

We conclude all of the evidence before the sentencer, defendant failed to make a has substantial showing probability there is reasonable the additional evidence now offered would have the changed aggravating conclusion that the circum- and, outweighed mitigating stances circumstances therefore, imposed. Accordingly, sentence we hold failed to showing defendant has make substantial right that his to effective assistance of counsel at his cor- hearing was violated. The circuit court sentencing claim post-conviction dismissed this without rectly evidentiary hearing.

CONCLUSION stated, judgment For the reasons of the circuit County dismissing court of Cook defendant’s amended is affirmed. The clerk of this post-conviction petition setting Tuesday, court directed to enter an order is 19, 2002, as date on the sentence of November which in County death entered the circuit court of Cook is to be in carried out. Defendant shall be executed the manner (West 2000). by law. The provided 725 ILCS 5/119 —5 clerk of this court send a certified copy shall Corrections, mandate to the Director of to the warden Center, Tamms Correctional and to the warden of the institution where defendant is now confined.

Affirmed. HARRISON, CHIEF JUSTICE dissenting: proceedings The which culminated in Peeples’ convic tions and sentence of death were fatally flawed because they did not with the rules enacted comport new our governing court in conduct cases which the State seeking is the death penalty. For the reasons set forth my dissenting opinion Hickey, v. 204 Ill. 2d People (2001) (Harrison, C.J., 631-36 dissenting), procedures contained those are indispensable achieving rules for an accurate guilt determination of innocence or and are applicable capital coming to all now cases before us. tried, Peeples Because convicted and sentenced rules, without the benefit of the new his convictions and vacated, death sentence should be and the cause should be remanded to the circuit court for a trial. new if Peeples

Even were not entitled to the benefit rules, new his sentence of death could not stand. For the in my reasons set forth concurrence and partial partial Bull, v. (1998), People 185 Ill. 2d 179 the Il dissent death law is and unenforceable penalty linois void it the eighth because violates and fourteenth amend (U.S. Const., ments to the United States Constitution XIV) I, 2, VIII, amends. and article section of the Illinois (Ill. 2). 1970, I, § art. the new Constitution Const. Absent rules, altering there is no basis for that conclusion. At a minimum, Peeples’ sentence of death should therefore be vacated, and he should be sentenced to a term of 1987, 38, imprisonment. par. l(j). Ill. Rev. Stat. ch. 9— KILBRIDE, dissenting: also JUSTICE v. People forth in my For the reasons set dissents (2001) (Kilbride, J., Hickey, 585, 204 Ill. 2d 636-40 dis v. Ill. People Simpson, senting), and 2d 581-85 (2001) (Kilbride, J., I this cause dissenting), believe compli remanded for a new trial conducted in should be I capital ance with the new rules cases. As governing dissents, cases my procedures capital stated in of the new rules were inher prior adoption to this court’s sufficiently protect and did not ently unreliable I reason, rights. constitutional For this applied retroactively. believe that new rules should (1997). Caballero, People v. Ill. 2d 220-21 See Therefore, I dissent. respectfully

Case Details

Case Name: People v. Peeples

Court Name: Illinois Supreme Court

Date Published: Jun 20, 2002

Citation: 793 N.E.2d 641

Docket Number: 83783

Court Abbreviation: Ill.