*1 (No. 70615. ILLINOIS, Appel-
THE OF THE STATE OF PEOPLE lee, PUGH, JR., C. Appellant. WILLIE July 22, 1993. on denial Opinion filed Modified 29, 1993. rehearing November *3 J., HARRISON, dissenting. P. of Martin,
John and James F. Buckley, Chicago, of Highland Park, appellant. Burris,
Roland General, W. of Attorney Springfield, and O’Malley, Jack of (Terence State’s Attorney, Chicago Madsen, M. General, Assistant Attorney Chicago, of and Renee and Bom, Goldfarb Kathleen Assistant State’s At- of for the torneys, counsel), People.
JUSTICE NICKELS delivered of opinion court: 20,
On 1987, defendant, Willie January Pugh, Jr., C. was charged by indictment in Cook with two County counts of (Ill. 1985, 38, murder Rev. Stat. pars. ch. 9— two 1(a)(1), counts of (a)(2)), felony (Ill. murder Rev. 1985, 38, Stat. ch. one par. 1(a)(3)), count armed 9— (Ill. 1985, 38, robbery 2(a)), Rev. Stat. ch. par. two 18 — 1985, counts (Ill. 38, forcible detention Rev. Stat. ch. par. one count of 4(a)(1)), unlawful use of weapon 10 — Rev. (Ill. Stat. ch. par. and three 1(a)(7)), 24 — counts of aggravated unlawful restraint Rev. (Ill. Stat. ch. par. 3.1(a)). Defendant en subsequently 10 — téred blind to all trial pleas counts. The court and accepted guilty pleas findings entered on all guilt Finding counts. that certain counts merged others, with the trial judgment court entered (count IV), murder armed forcible robbery (count V), de (counts VII), tention VI and unlawful use weap (count ons Defendant’s for intentional VIII). convictions murder were Defendant vacated. waived right his death Defend jury penalty hearing. *4 ant to his for the death stipulated eligibility (Ill. penalty. Stat. 38, par. Rev. ch. After 1(b)(6).) hearing 9— the sen court mitigation, in aggravation evidence convic on felony-murder to death the tenced defendant con remaining on imprisonment to terms of tion and stayed has been death sentence victions. Defendant’s 1970, art. Const. (Ill. this court direct review pending 603, 609(a)). 2d Rules VI, §4(b); Ill. (1) on issues following appeal:
Defendant raises in- reason of involuntary by his was plea whether guilty counsel; whether his (2) assistance of effective understand; due to his inability plea involuntary was shooting during his claim of accidental (3) whether voluntary; indicated his was not sentencing hearing must finding eligibility whether (4) penalty be vacated because he received ineffective assistance counsel; eligibil- whether the of death (5) finding penalty admonishments; must be vacated due insufficient ity he received ineffective assistance of counsel (6) whether counsel’s at all due defense phases proceedings to conduct a reasonable whether investigation; (7) failure on claim of he entitled to an his evidentiary trial counsel; assistance of whether (8) ineffective in in court erred to consider additional evidence refusing the death sentence is excessive mitigation; (9) whether case; and whether the death statute (10) unconstitutional.
As of the factual the State part pleas, basis for Chicago recited of two South proposed testimony officers. Richard would Heights police Sergeant Wolff 16, 1986, that at 9:30 December he about testify p.m. station located at 2601 Chi- proceeded gas Clark Road in to a ra- cago Chicago response South Heights Upon entering dio an alarm at the station. dispatch station, standing Wolff saw defendant behind as man, and next to a identified 19-year-old counter later shotgun Brian Defendant a sawed-off Douglas. pulled out Defendant Douglas. it at and then at pointed Wolff *5 said, me, I push “Don’t want out.” Douglas indicated he being was robbed. Wolff bolstered own revolver and told defendant not to shoot anyone.
Officer Michael Haskins entered the station and both he and Wolff told defendant to shoot and to let Douglas go. holding While with one Douglas hand and the in the other, shotgun defendant walked out Douglas of the front door 26th toward Street. Defendant ordered Haskins and to inside Wolff the station. called stay Wolff for a backup. yelled officers defendant to let Douglas and the officers would not go follow him. stayed
Wolff the station and Haskins pursued defendant, who was walking around the corner of the service station near a telephone booth. Defendant had turned on westward 26th Street. When stopped, Haskins was feet about 100 from him. Haskins observed defendant move about steps backwards IV2 from Douglas, lower and fire a shotgun shot into chest area. Douglas’ pronounced from Douglas dead at gunshot wound 10:20 Haskins chased p.m. defend- ant about 100 feet him before when defendant losing turned the comer 26th West Street.
In an area of the station, southwest Wolff found a with purple jacket lettering school “Central” white In back. sleeves he found three jacket cartons cigarettes identified as from the station. property gas mother,
The victim’s Loretta would Douglas, testify that to her son. She would purple jacket belonged testify Douglas. also as a life-and-death witness Haskins would station he testify upon entering male, Rush, Ingram observed another later identified as exit a coat to the one Wolff carrying station similar found. Cook depart- sheriff’s
Anthony Sapit County into custody ment that he took testify would Road at Chicago west of three a block about quarters Street. 26th Attor- and Assistant State’s Dujsik
Detective Larry testify regarding would John ney Murphy 17, 1986. a.m. on December made about 4:15 statement his Miranda said rights, After waiving man who was distract Rush was Ingram “setup” Douglas, As talked to defend- the store attendant. Rush Defendant went and soda chips pop. ant some picked up told gun Douglas cash out register, pulled *6 hurt. get the and no one would give money Defend- the alarm button. Douglas Defendant saw push to the arrived he told them ant said that when police Douglas, but there. Defendant left the store with stay to get to tell the inside the station. had back police had the at the gun pointed Defendant said he said as he with Douglas. Initially, store walked and one of two other men were involved the crime this his them shot Defendant of Douglas. changed part statement and said Rush and he were involved. only “The stated, Defendant shooting Douglas admitted hand.” went off while it was in gun my the was directed to Dujsik shotgun, and a hat. The had been disman- casing shotgun spent tled—one had been hidden under some leaves and part another had been in a car trunk. part placed Testimony Werff, from a would indi- expert, forensic Karen Vander shotgun cate the came from the from pellets shell with fired from the Douglas’ being were consistent body was nor- testing pull State showed shotgun. trigger Doug- mal to results would show medium-heavy. Autopsy las died from a his chest about five gunshot wound of the right inches midline.
Before factual the trial presented, basis of guilty admonished defendant of effects his judge to “technical” Defense counsel referred plea. frequently pleas until the trial guilty advised counsel that judge he did not what know a “technical” was. At one point defendant stated with to his re respect right silent, “Yes, main I understand, I but would like to tes own tify my behalf.” Defendant’s then told attorney court, 3.” “Phase The judge later questioned defend ant regarding the voluntariness The pleas. judge noted the charges against defendant, including the fact State would be seeking under section of the 1(b)(6) Criminal Code of 1961 Rev. (Ill. 9— Stat. par. ch. The 1(b)(6)). recited the judge 9— provisions section 1(b)(6) and defendant acknowl 9— edged that he recitation, understood. Following defendant agreed that the asserted facts were true. The trial judge accepted defendant’s and ad guilty pleas judged defendant those offenses enu previously merated.
The trial moved judge to the first immediately phase of the death penalty hearing, assistant eligibility. State’s indicated that this Attorney phase would be by Then, way stipulation. oc- following exchange curred:
“MR. Attorney]: Judge, SIMMONS State’s [Assistant *7 it will be the stipulated judicial that Court take of notice findings the just of blind that was entertained murder, the Court as to the that and felonies court judgment entered on.
And it would also a stipulation par- be between the ties that the defendant of twenty-two years age at this time or twenty-one. Twenty-two.
DEFENDANT: Twenty-two MR. SIMMONS: years age. of THE So stipulated, COURT: Counsel?
MR. So attorney]: stipulated. RAGO [Defense THE what stipulation COURT: You understand that is? Yes,
DEFENDANT: sir.
9 find the right, the Court will All THE COURT: eligible penalty.” for the death was presented evidence Aggravating mitigating a few in the of the death phase second on Haskins elaborated later. In Officer days aggravation guilt phase. stipulated presented testimony Doug- how released he described Particularly, side, the shot- lowered las, took two steps about four and, stock about his other hand under the gun, put later, Dujsik’s testimony shot Officer Douglas. seconds of Assistant State’s Attor- testimony and the stipulated that defendant did indi- Murphy John showed ney cate, it under the influence nor did he was appear, alcohol he his statements drugs gave of or when 1986. The State early morning hours December also Officers Wolff presented testimony stipulated and Karen Werff. Vander Sapit, included Witnesses evidence presenting mitigating friend, counselor, a high defendant’s school family investigation officer who probation prepared pretrial than and defendant. Other report, parents, other defendant, regarding no witnesses testified defend- ant’s Defendant testified that he did not problem. alcohol intend kill discharged but when Douglas, gun turned to run. He said he had been away all on and had smoked drinking day December laced with PGP. Defendant remorse marijuana expressed report over his actions. The pretrial investigation no or adult criminal rec- juvenile showed defendant had ord. and had been em- He school completed years 1986. indi- from until Defendant ployed December he alcohol all day cated in the consumed report He said beer December 1986. he drank quarts an gin and a but alcohol daily, having denied pint defendant’s mother collected over problem. Additionally, *8 and signatures over 20 letters for for asking mercy defendant.
The trial sentenced on judge defendant felony-murder conviction, vacated having defendant’s murder, convictions for and knowing intentional and im- on posed prison sentences the remaining convictions. of judge noted lack corroborating evidence re- garding defendant’s alcohol A for problem. motion re- consideration of sentence was filed on 1988. January Defendant filed motion withdraw the guilty and a for request of counsel other than appointment on 18, 1988, defender public February ineffec- alleging tive assistance counsel. Defendant’s (herein- attorney after defense counsel) filed motion to withdraw which was February and new counsel granted was substituted. 26, 1988, August (hereinafter
On new counsel post- trial filed for a for counsel) motions and deposition pro- duction of gun and access to the crime lab test- These ing. motions were denied. Counsel filed a motion on September 1988, for a examination of physical defendant; an amended motion to the convictions; vacate an amended motion to guilty withdraw the and an pleas; amended motion for reconsideration of the sentences. In it was general, alleged received ineffec- tive entering assistance counsel his plea because his did not attorney understand that in order for eligible to be for the death for felony murder, victim; must have to kill the intended counsel failed to trial failed investigate; court admonish defendant. Defendant properly presented the 23, 1988, affidavit of defense counsel in September sup- motion to port plea. vacate The affida- vit that defendant told defense provided consistently counsel to kill Douglas, defendant did not intend Defense shooting was an accident. counsel ad- *9 indictment because to plead vised defendant murder itself was by of finding that a he believed for the death pen- eligible to render defendant sufficient at into the stipulation also entered Defense counsel alty. based penalty eligibility phase challenge not to He advised defendant on this belief. stipulations or oppose State’s factual presentation III. De- at testify only phase and to phases, the first two to enter not have advised fense counsel would en- not have and further would to the indictment a plea realized that felony if he had into the stipulation tered for the death penalty. insufficient murder itself was 4, 1988, cor- of November Defendant’s affidavit separate court The trial defense counsel’s statements. roborated the motions. denied convictions, counsel
In post-trial to vacate seeking amount of evi- large mitigating that there was a argued It was investigate. counsel failed to dence which defense have existed which would also that evidence argued defendant’s eligibility doubt on raised reasonable ag- as affected the evidence'in the death as well the trial court denied When gravation sentencing. offer of motion, counsel filed an defendant’s post-trial testi- contained the proposed The offer of proof. proof indicated defense counsel which defendant’s mony mechanism him the gun trigger that defendant had told that defendant sensitive or defective and have been may did Defense counsel was drunk at the time of crime. or petition, any not who any person signed contact defendant’s provided by of 26 character witnesses' who mother, persons three of the contacted only He not police photographs letters. did obtain wrote Haskins or Officers scene, the crime nor did he interview atten- difficulty paying defendant had Although Wolff. aby him examined tion, defense counsel did not have doctor. proof
The offer of included the proposed testimony five witnesses defendant’s intoxicated state on regarding December three whom him that saw night. evidence of Mitigating physical problems, deficiencies, defendant’s mental and other circumstances the crime was affecting preceding included in the offer.
A second motion to withdraw filed on 2, 1988, alleged December wherein defendant that his plea was due to deficits in voluntary cognitive areas of memory, attention and concentration. The affi- Michaels, davit of clinical Dr. psychologist Suraleah at- thereto, tached she indicated interviewed *10 occasions, several defendant, tested and reviewed the 11, of the 1988, In transcript plea hearing. her January ability defendant’s to understand and opinion compre- hend the charges and admonitions im- materially was paired. 1, 1989, motions filed on June to vacate
Subsequent the sentence on the death based unconstitutionality the and for statute a sentencing new hear- were ing denied. This followed. appeal
First, defendant he contends received ineffective as entering sistance of counsel in his guilty because de plea fense did in counsel not understand addition to the murder, State had to proving prove also defendant’s intent to kill in order that defendant be eligi ble for the death Based on this misapprehension penalty. law, of the defense to counsel advised defendant enter a blind to the entire which in plea guilty indictment (Ill. cluded intentional and murder counts Rev. 1985, 38, Stat. ch. As 1(a)(1), a result pars. (a)(2)). 9— contends his must be vacated because it plea was not made voluntarily intelligently.
The State to claim initially responds by misapprehend that defense counsel did not arguing
13 death pen- preclude a motion to law, as evidenced motion defense 27, 1987. In that on February filed alty v. Florida Enmund counsel claimed under 3368, involv- 1140, L. 102 S. Ct. Ed. 2d U.S. not sentenced murder, defendant could be ing felony kill intended to death unless State proved the motion and de- Claiming killed. who was person contradiction, in direct fense counsel’s affidavit are counsel is that defense charge State the' serious makes by attempting of unethical behavior intellect error into the plea proceeding, reversible potentially in our later discussion. charge reject we defense counsel did Assuming misapprehend that defense counsel’s advice law, the State then claims based the law strategy upon was reasonable merely of defend State, the evidence According facts. to kill that his conduct created knowledge ant’s intent or or harm great bodily (Ill. of death strong probability so over 1(b)(6)(b)) Stat. ch. was par. Rev. 9— to enter a that defendant’s was whelming only hope himself on the of the mercy and throw guilty plea blind failed, this informed risk court. When calculated and the affidavit. contends, State defense counsel filed Cir. (7th 1992), State cites Stewart Peters F.2d of its that defendant’s support argument an of the mercy blind seek only attempt However, Stewart, was not attorney operat- court. *11 law, a of and the record es- ing under misapprehension and informed tablished that the was a calculated plea risk that failed. a to be withdrawn permit guilty plea
Whether v. (People within the sound discretion of the trial court. 537, 121 Ill. Such discretion (1988), 545.) Hillenbrand 2d cases, in should exercised liberally, particularly capital be 1 Ill. v. (People King (1953), in favor of life and liberty. was 496, it 500.) guilty plea 2d When appears 14 law, or
entered on
of the facts
of the
misapprehension
or in consequence
counsel,
of
or
misrepresentations by
one
case is
where there is doubt of the
of
guilt
where
accused or
the accused has a
of
defense worthy
aby
consideration
or where the ends of
jury,
justice will
be better
submitting
served
the case to the
by
jury,
court
permit
should
withdrawal of
guilty plea. (Peo
v.
Ill.
ple
(1993),
356, 361-62;
Johnson
154
2d
v.
528,
412
(1952),
may
Morreale
Ill.
A defendant
531-32.)
enter a
because
some erroneous advice
plea
counsel,
his
but this fact alone does not
the vol
destroy
untary
(People
nature
v.
plea.
(1985),
Correa
108
541,
Ill. 2d
The resolution
548-49.)
question
whether the defendant’s
made in reliance on
pleas,
coun
advice,
sel’s
were
voluntarily, intelligently,
knowingly
made
whether
defendant had
depends
effective
Correa,
assistance of counsel.
108
549.
Ill. 2d at
standard for
whether
proper
defend
determining
ant was denied effective assistance
in entering
of counsel
is set forth Hill v.
guilty plea
(1985),
Lockhart
474
52, 57,
203,
U.S.
209,
366,
88 L. Ed. 2d
S. Ct.
106
369-
70. In
the United
Hill
States
Court found that
Supreme
test
v.
two-part
Washington
announced
Strickland
668,
2052,
U.S.
L. Ed.
104 S.
(1984),
674,
466
80
2d
Ct.
for ineffective-assistance-of-counsel claims was applicable
v.
process.
Jones
144 Ill. 2d
(People
242,
This court
254.)
has
the standard.
adopted
(Jones,
254;
at
Ill. 2d
2d
People Huante
Ill.
61,
To
67-68.)
establish that a defendant was
deprived
counsel,
effective assistance of
must
estab
lish
that his
attorney’s performance
both
deficient
and that
the defendant
as a result.
prejudice
suffered
Hill,
at
15 in a requirement “prejudice” satisfy In order there is must show that the defendant plea proceeding, errors, that, for counsel’s but reasonable probability and would have guilty not have pleaded defendant would 59, L. 88 474 U.S. at (Hill, on to trial. going insisted The instant defendant S. at 370.) 2d at 106 Ct. Ed. Strickland, standard the second prong that argues counsel’s as defense by met herein evidenced has been defendant would attestations that and defendant’s The error. for counsel’s entered a but guilty plea have Hill, the question out that under State correctly points the defendant caus by the error prejudiced of whether to trial go depends him to rather than to ing plead guilty of whether the defendant on a large part prediction U.S. at (Hill, have succeeded at trial. would likely 370-71; Jones, 144 S. at 88 L. Ed. 2d 106 Ct. Huante, 73.) Ill. 2d at The rec 254-55; Ill. 2d at see that ord should demonstrate a “reasonable probability” error, have rejected but for the the defendant would un Huante, 73.) 143 Ill. 2d at As arrangement. (See coun Strickland, der we need not determine whether deficient examining sel’s was before performance the al suffered the defendant as a result of by prejudice 104 Ill. deficiencies. See v. Albanese leged People 2d 527.
The
was not preju
State contends
counsel’s failure to advise defendant
diced
defense
like
accident
to trial on
because
proceed
theory
acquitted
lihood that defendant would have been
infinitesimal.
murder counts is
intentional and knowing
that post-
dismisses the additional evidence
State
as either irrele
trial counsel found
upon
investigation
accident,
The State also claims
vant or not credible.
if
is not a defense to
murder.
even
proved,
We address whether defendant was preju diced with respect to his to guilty pleas intentional and knowing murder because those convictions were vacated trial court. When murder multiple convictions have been entered for the act, same the less culpable v. (People Pitsonbarger convictions must be vacated. 142 353, Ill. 2d 377.) an intentional kill Although ing involves the more mental state than culpable know (People Mack (1984), 105 Ill. 2d ing murder felony 137), trial court herein vacated the convictions intentional murder. The State has raised no error with to the trial respect court’s ruling. Therefore, stood convicted of only felony murder when the to determine death sentence eligibility began.
Defendant
does not claim that he would have suc
ceeded at
trial on a theory of accident with respect
the felony-murder
count.
In
brief,
his reply
concedes that accident
is not a defense to
murder.
felony
(Allen,
56
Ill. 2d at 544-45.) Thus, even if defense coun-.
sel had presented
of accident
at
theory
murder,
trial
felony
defendant would not have been
of that
acquitted
offense. Defendant
suffered no preju
dice at
guilt
phase
due to
proceedings
defense
counsel’s misapprehension
of law. Defendant’s
plea
guilty
murder stands.
felony
turnWe
now to the
of the
sentencing phase
proceed-
Our first
ing.
is whether
inquiry
defense counsel’s per-
an objective
in that it “fell below
was deficient
formance
(Strickland,
U.S.
of reasonableness.”
standard
2064; Huante,
693,
Defense counsel was incorrect
defendant was
for the death
based
eligible
solely
on a
An essential element
finding
felony murder.
which the State must
murder is
prove
besides
(intentional
(Ill.
or
mental state.
culpable
knowing)
v. Ra
1(b)(6)(b); Rev. Stat.
ch.
par.
9—
*14
mey (1992),
498,
151 Ill.
545.)
aggra
2d
statutory
factor relied on in this case as the
vating
impo
basis
sition of the death
is a narrow form of the
penalty
1985,
38,
rule.
Rev. Stat.
ch.
9—
felony-murder
(Ill.
par.
v.
People King (1986),
1(b)(6)(b);
514,
Ill.
542.)
109
2d
To
factor,
this
establish
the State must
a rea
prove beyond
(Ill.
1985,
38,
sonable doubt
Rev. Stat.
ch.
par.
1(f);
9—
Ramey,
see
Ill. 2d at
that the defendant acted
544)
with the intent
to kill or that he acted
his con
duct created a
that
strong
victim would
probability
die or
great
1985,
suffer
harm
Rev. Stat.
ch.
bodily
(Ill.
1(b)(6)(b); Ramey,
King,
38,
541;
Ill.
par.
2d at
9—
109 Ill. 2d at
Death sentences have
542).
upheld
been
when the evidence has been sufficient to
a find
support
knowledge. King,
ing
state,
of the alternative mental
After examining motion to preclude imposition case, the death filed in the instant we find it penalty does not contradict defense counsel’s affidavit. We note
that the motion was never ruled on the trial court or for a defense counsel. apparently presented hearing by While both sides theorize as to the reasons that counsel motion, abandoned the we need not in such indulge spec- ulation in view of our determination.
In the motion defense counsel did not raise the issue kill, lack of intent which intent was under required the Illinois factor statutory aggravating impose (Ill. 1985, 38, Rev. Stat. ch. 9— par. Rather, 1(b)(6)(b)). defense counsel that argued under Enmund v. Florida 782, 458 U.S. 73 L. Ed. 2d 1140, 3368, 102 S. Ct. could not be sentenced to death for murder unless the State could prove had the intent to kill. Counsel claimed the State had no evidence that defendant intended to kill in this case and thus the State had no basis to good-faith seek the death We also note that defense counsel penalty. did not argue State lacked sufficient evidence to prove acted Ill. knowingly. Rev. Stat. 38, ch. par. 9-1(b)(6)(b). Jones Counsel cited 94 Ill. 2d the motion to as source preclude basic material support Jones, however, ing necessity-of-intent proposition. concerned a defendant sentenced to death under section 1(b)(3) Code, the Criminal murder of or more two 9— (Ill. individuals. Rev. Stat. ch. 1(b)(3).) par. 9— The Jones court Enmund relied on in vacating one of three death sentences.
Defense counsel’s failure to Illinois statu- rely upon law in the motion lack tory shows a or un- knowledge of the law. derstanding This indication later con- *15 firmed, contradicted, his affidavit. Counsel’s by stipulation defendant’s for the death eligibility penalty further corroborates counsel’s mistaken belief that no had defense to death be- penalty eligibility cause of the conviction. felony-murder exer counsel that defense Thus, argument the State’s and the Illinois law strategy upon based cised reasonable record. Defense is. not supported facts of this case coun was attributable advice to defendant counsel’s tactics or not to of the law and misapprehension sel’s 18, 26- 111 Ill. 2d Wright (1986), v. (See People strategy. It 62-63.) Ill. 3d App. 27; Hayes (1992), advice, upon misapprehen based is clear that counsel’s de law, range competence fell outside the sion of the Huante, 143 Ill. criminal cases. attorneys manded 2d at 68-69. defense prejudiced by do find that defendant was
We of the law at the first phase counsel’s misapprehension penalty eligibility. death sentencing proceeding, in addi- not understand Since defense counsel did had to be- murder the State prove tion to proving a reasonable doubt that defendant possessed yond defense knowledge, mental state of intent or culpable the death for eligibility counsel stipulated that the exchange The State between penalty. argues in this opinion set out earlier court and parties First, de- not a to death penalty eligibility. stipulation such a stipula- fense counsel’s affidavit indicates it was Second, and it accepted tion. the trial court understood At the sen- as a to death stipulation penalty eligibility. 14, 1988, stated, judge on tencing hearing January is el- “And the second phase stipulated later said “that judge for the death igible penalty.” the imposi- the factors in which would allow aggravation, to.” Obviously tion of the death were stipulated of the the trial court had not taken notice merely judicial nor had he im- determination facts and made own intentional on the convictions of relied vacated properly eligible murder to find defendant Thus, defendant waived penalty. to his eli- eligibility stipulated issue of death penalty *16 for gibility such based on penalty counsel’s misapprehen- sion of law.
After examining record, entire there ais reason able that but probability error, counsel’s defendant would have rejected to death stipulation eli gibility because defendant’s evidence pointed to an acci (See Huante, dental shooting. Ill. 2d at 73.) None of evidence was presented by defense counsel at the first phase sentencing because counsel believed such evidence was irrelevant once murder was es tablished.
It from apparent post-trial counsel’s investigation that evidence existed to discredit Officer Haskins as the only eyewitness First, shooting. Office Wolff’s po- lice indicates report that Haskins was ordered inside by defendant, but it fails to mention that went Haskins out- side While again. defendant argues con- report tradicts Haskins’ testimony he was outside when shot Douglas, we find it does not corroborate Haskins’ account. This fact is still significant.
Other evidence revealed post-trial counsel likely would have discredited Haskins’ thus eliminat- testimony, ing the only eyewitness to the shooting. Although State contends this evidence is either irrelevant or cor- roborative of Haskins’ First, we testimony, disagree. Haskins said he was about 100 feet away. diagram of the scene shows lights station; around the however, some of the were lights deflected toward the station. aimed at Lights Haskins would have impaired ability to see rather than assist it. also Photographs indicate that Haskins was looking out into an area of darkness where the shooting occurred. Photographs show that without the aid of police lighting, location of the shooting was dark. The report Officer Wolff shows he had to use his flashlight determine that Douglas was shot. There were also obstacles between the station and could Haskins’ view impaired which have shooting further. 100 feet as he chased defendant about
Haskins said and then turned north. Defendant ran west at a hear- The State out that ran south. actually points Haskins Rush’s motion ing Ingram suppress, sight ran north he lost because thought *17 not sufficient defendant. this alone would be point While Haskins, the evidence taken as impeachment discredit on his testi- a whole would have cast sufficient doubt mony. note that the to the gunshot right
We also wound that the Douglas’ story chest corroborates defendant’s claims gun went off as defendant ran The State away. movement; however, this fact could due to Douglas’ be this contradicts Haskins’ statement that argument Doug- las did not move. The State that a sawed-off shot- posits accurate, feet gun is not but defendant was few only from The State that the was Douglas. asserts wound consistent with Haskins’ at that testimony sentencing However, stepped Douglas. side Haskins’ and his at police report testimony stipulated the indicated that defendant back- plea hearing stepped wards from and not Douglas side.
While defendant told his was attorney trigger pull sensitive, gun. defense counsel failed to test Once the State assumes that not again preju- defendant was diced this view of the State’s that the findings trig- was normal to The State ger pull medium-heavy. implies that counsel made an to test informed choice not gun, surrounding when the overall circumstances this case that counsel investigate show did not defense to death to counsel’s mis- due eligibility of the law. apprehension
The failure to this evidence investigate present dismissed, prejudiced and cannot be as im State as a different manner suggests, merely v. Flores People peachment (see 66). 128 Ill. 2d v. Del Vecchio State, The relying Ill. 2d that defendant argues prejudiced because the trial court after rejected defense in Del Vecchio sentencing hearing. opinion merely indicates that after evidence of the defendant’s claim, bar, the court it. In the at insanity rejected case the trial court was with defendant’s tes only presented It did not hear all as to his claim of accident. timony the evidence at the sentencing hearing because defense *18 kill, intent to defendant was death penalty eligible based on murder The knowing own account. fact that defendant admitted off the sawing shotgun goes to his intent to commit armed While defend robbery. ant he said “waved” the he said he did this shotgun, while in the gas station. Defendant denied emphatically the at or it in pointing shotgun his di Douglas holding People v. rection at the time of Unlike shooting. King 514, 109 Ill. (1986), 2d wherein the defendant pushed holding victim while a loaded to his gun head, defendant herein claimed not to have pointed gun at the time of Douglas shooting. Evidence first, did show the to testi shotgun had be cocked but it indicated could remain cocked until mony trigger was pulled. (1984),
Similarly, People the defendants in v. Owens 88, 102 Ill. 2d v. Eddmonds Ill. (1984), 44, 2d were in at the time of vic engaged conduct tim’s death from which a mental state could be inferred. Defendant herein had maintained always that he was went off fleeing accidentally. when gun to In the absence of testimony credible eyewitness we cannot conclude that defendant would contrary, have been for the death a eligible beyond found The on People reasonable doubt. State relies (1987), McEwen 157 Ill. 3d acci App. regarding dent and murder. A close felony reading McEwen shows the case concerned a of felony conviction mur der and did not involve the penalty. And, Peo ple v. Barker 83 Ill. (1980), 2d the defendant fired in the shotgun direction of officers police which was sufficient to find attempted Here, murder.
claimed the firing of the gun was accidental.
The
State
correct
its claim that accident would
not relieve defendant of
for the
guilt
felony-murder
count. (See People v.
Chandler
129 Ill. 2d
248; Allen,
Next, defendant contends that his ability compre- hend the charges and guilt admonishments during of the phase proceeding impaired. materially He relies on the Michaels, of Dr. opinion who tested *19 and interviewed defendant many months after his con- that based Defendant claims sentence.
viction and his have vacated trial court should that evidence hearing. evidentiary or ordered an plea if he is ca A is competent plead defendant and in assisting understanding proceedings pable or emo if he be may mentally his own defense even v. Van Ostram (People (1988), 168 disturbed. tionally a bona has been doubt 517.) Ill. 3d Whether App. fide the discretion within resting largely raised is a decision v. (See People Murphy 72 Ill. (1978), of the trial court. review, court, unlike court of The trial a 421.) 2d his the defendant and evaluate to observe position (Murphy, The mere fact 431.) 72 Ill. 2d at conduct. defend that opinion that a psychologist expressed find did not mandate a similar ant was not competent is for the court, as the ultimate issue the trial ing by v. Bleit court, not to decide. experts, trial ner 199 Ill. 3d 146. App. conduct and
The trial observed judge It is clear at the time of the guilty plea. demeanor to enter that defendant was competent from the record its discre- The trial court did abuse guilty plea. or hearing to conduct an refusing evidentiary tion the guilty plea. .vacate issue, claim-
In the third contends was ac- shooting sentencing ing (See Brady cidental, his was vitiated. guilty plea United States Ed. 2d 397 U.S. 25 L. in- he an He that when denied 1463.) argues 90 S. Ct. shot accidentally he shooting by claiming tentional whether trial had a duty inquire Douglas, judge consequences understood the nature penalty eligibility. and the to death stipulation his plea, inquire, failure to so judge’s Due to the be vacated. must stipulation claims *20 In a from a Illinois, accepting court is not precluded of inno of of a defendant’s claim plea guilty, spite cence, if the record reflects a basis from which factual a could find the defendant of the offenses jury guilty to which the v. Barker plea (People was entered. 83 Ill. 2d 319.) We have noted fact already that defendant’s convictions for intentional and know an ing murder were vacated. Defendant’s claim of acci shooting dental did not vitiate re his with guilty plea conviction, to felony-murder his as is not spect accident a defense that to offense. The court did not its abuse discretion in motion denying defendant’s to withdraw defendant’s of guilty. Defendant’s death sentence plea has been vacated on grounds other this court. by
Defendant attacks the death penalty eligibility phase
proceeding
another
He
ground.
claims that
was tantamount
stipulation
to
thus he should have received
admonishments
trial court. (See People
236;
v. Smith
59 Ill. 2d
People v. Stepheny (1974),
Defendant asserts that he received ineffective as- sistance of counsel at all phases of the due proceedings to defense counsel’s failure to conduct a in- reasonable vestigation. argues that defense Particularly counsel did not defendant’s claim properly investigate of accidental seek shooting or information to discredit Officer Haskins. He contends failed attorney investigate present evidence in at the mitigation second phase defendant’s In sentencing hearing. view our holding that defendant is to receive a new hearing, we sentencing do address this issue. to ad it unnecessary we find holding, on our
Based eviden an concerning other issues defendant’s dress assistance claim of ineffective on his tiary additional evi failure to consider counsel; the court’s is the death sentence or whether dence in mitigation; argues in this case. While defendant excessive unconstitutional, he statute Illinois death penalty his argu authority support no citation of provides this court’s prior he to address ment, nor does attempt re This court has previously on the matter. holdings no reason and we see arguments, jected *21 Ramey, 498. 151 Ill. 2d those decisions. disturb are stated, convictions reasons defendant’s For of death is vacated. affirmed, his sentence but County the circuit court of Cook remanded to cause is eligibility to determine defendant’s for a new sentencing as a new as well for the death penalty, a held before hearings, be direct hearing. We trial judge. different affirmed;
Convictions vacated; death sentence cause remanded directions. with HARRISON, dissenting: JUSTICE advice, guilty pled counsel’s Based-on his and murder. intentional, knowing felony to counts of one count of on judgment only The trial court entered Because all counts This was improper. murder. felony intentional and because the same homicide involved and is a mental state a more culpable murder involves court murder, the trial than felony more serious crime for only of conviction entered a judgment should have convictions murder intentional vacated v. Pitson People See murder. felony Lego v. People 377-78; barger Ill. 142 2d (1990), 323, 344; Ill. 2d Guest Ill. 2d 104. concedes that counsel’s ad
Although majority law, was of the it upon misapprehension vice based prejudice concludes defendant did not sustain result of guilt phase proceedings of the as a coun misguidance sel’s because defendant’s claim accident would not have his conviction for prevented felony and, error, murder based the trial judgment court’s inwas fact entered for murder. Contrary I do not believe that errors committed majority, by court, trial of the regardless may windfall bestow they defendant, upon should be determining considered whether that his counsel’s prejudiced by Here, ineffective trial assistance. but for the court’s er ror, defendant would be based death-qualified upon counsel’s advice to to all counts. Had the plead guilty advised, been he have fully would realized to what extent he was placed Un jeopardy plea. circumstances, der these it is difficult understand it how would have been to his advantage plead intentional, counts of knowing and felony Therefore, murder. I would hold that there was a “rea that, sonable but for defense probability” counsel’s mistaken belief that felony murder alone was sufficient *22 to defendant for the qualify death defendant penalty, would have rejected the Hill v. plea arrangement. Lockhart (1985), 52, 59, 203, 474 U.S. 88 L. Ed. 2d 210, 366, 370; 106 S. Ct. People see also v. Huante 143 Ill. (1991), 61, 2d 73. is
While the correct majority noting accident not would relieve defendant of guilt felony for murder v. Allen 56 Ill. (People (1974), 536, 545), 2d the statu factor to the death tory aggravating necessary impose is not penalty proved by conviction of murder alone (see 133, v. Holman 103 Ill. 2d People (1984),
28 If established. must also be knowledge or Intent
159). on the acquitted trial and been had gone counts, State murder knowing intentional the death seeking from precluded would have been advice, counsel’s Instead, followed penalty. the requi those counts and stipulated pled guilty for necessary factor statutory aggravating site 9— 1985, ch. par. Ill. Rev. Stat. penalty. 1(b)(6). nothing gained therefore clear that defendant
It of evi despite presence entering guilty plea, relieve him of may admits majority dence which Further, it murder. intentional guilt made an informed that defendant concluded cannot be a guilty entry interest required decision that his kill Brian intentionally he did belief plea despite v. Barker (See Ill. 2d 83 Douglas. North Carolina (discussing Alford Defendant’s 160).) L. Ed. 2d 91 S. Ct. U.S. coun on ineffective assistance was based reverse therefore I would sel and should be vacated. I the circuit court. While judgment and remand counsel’s misapprehension realize that defense case, of this aspect to the death law went de infected so counsel’s ineffectiveness better served would be justice fense that the ends his entire guilty to withdraw permitting plea. counsel had not it. The State notes presented correctly credible; the trial court found the officers police however, the court made in the this absence of finding Since impeachment evidence. defense counsel failed all the evidence present sentencing hearing, we do not find court’s of the death imposition pen a reliable indication that defendant was not alty preju diced at the death the hear penalty eligibility phase of ing. The State in the contends even absence of an