People v. Simpson

Eckert, that, 2d at We conclude under the Ill. 328. determination presented, facts the circuit court’s against Tyler removal was in the best interests of was not weight Accordingly, ap the manifest the evidence. pellate court erred in reversing judgment circuit court.

CONCLUSION reasons, foregoing judgment appel- For the judgment court reversed and of the circuit late is affirmed. court reversed; judgment court

Appellate judgment circuit court affirmed. (Nos. 85084, 86926 cons. ILLINOIS, PEOPLE THE STATE OF Appel-

THE OF SIMPSON, lee, v. Appellant. ROBERT Opinion September 2001. filed J., McMORROW,J., FREEMAN, joined by specially concur- ring. KILBRIDE, J.,

HARRISON, C.J., dissenting. Eberhardt, Park, for Tinley appellant. of Stephen E. General, Ryan, Attorney Springfield, E. James (William Devine, Attorney, Chicago Richard A. State’s General, Chicago, Browers, Attorney L. Assistant Assistant Fitzgerald, Renee and James E. Goldfarb counsel), for the Attorneys, People. State’s opinion delivered JUSTICE FITZGERALD court:

Defendant, the orders of the Simpson, appeals Robert dismissing his amended County, circuit court of Cook for petition post- and his post-conviction petition to death for relief. Defendant was sentenced judgment conviction; therefore, his appeal murder underlying 651(a). Ill. 2d R. We court. See 134 directly lies with this orders. affirm the circuit court’s

BACKGROUND Defendant’s convictions arose from the armed rob bery and murder of Barbara Lindich at the Food Fairway Glenwood, store in Illinois. This court has previously set forth the presented evidence at defendant’s trial in our on opinion defendant’s direct appeal. People v. Simpson, 172 Ill. 2d reason, For this we will discuss only the necessary facts that are to the disposition of the issues raised in appeal. 22,1992,

On May approximately a.m., and Carolyn entered Fairway LaGrone Food store and robbed it Young while Lurlarn waited in the car. As defendant emptied register, Lindich, the cash Barbara customer, store walked behind up peered LaGrone and over her shoulder. Lindich, Defendant turned and shot who later died as a of the gunshot result wound. Defen- safe, dant then checked the left the store with LaGrone and to the Young went car where awaited. days

LaGrone was arrested three later and gave statement police to the that detailed the offense as well Young as and defendant’s involvement. Defendant was thereafter placed arrested and in a He lineup. was identi- by eyewitnesses, fied including employees Fairway at the store, Food they as the man saw the store and rob shoot Lindich. trial,

At three store employees identified defendant as the man who was the behind service desk with the gun. testing experts Forensic stated that the cartridge case recovered from the scene was fired from one of the from pistols storage recovered locker after defendant was arrested. all

During phases pretrial proceed- of the and trial ings, defendant himself the aid of a represented with public acting standby defender as counsel. Defendant called present several witnesses who were the store at the time of the on behalf. robbery testify No defense ac- witnesses contradicted State’s witnesses’ also Defendant occurred in store. counts of what her testify but she invoked Young codefendant called At defendant’s testify. and did not right fifth amendment advice, custodial trial court’s against and request, to the Young published and were statements LaGrone jury. evidence, jury returned

At the close and robbery armed guilty defendant finding verdict defendant jury Lindich. The found degree first murder of on the murder-in-the- eligible for death basis (720 ILCS factor course-of-felony aggravating 5/9— 1992)) 1(b)(6) (West to the the matter proceeded Defendant continued sentencing. stage second sentencing during phase. himself represent defendant intended inquired court whether The trial mitigation on his behalf any to call witnesses Judges to call James defendant that he wanted responded as Fitzgerald Lloyd Van Duzen Bailey, Richard court instructed defen- character witnesses. The trial investigate the matter and find standby dant’s counsel to they and if judges currently out were located where knowing recollect defendant. could date, provided court the trial court At the next previ- defendant had transcripts defendant with three judge further informed ously requested. The trial Judges Fitzgerald and that he had contacted defendant. Bailey judge and that neither remembered informed defendant However, the trial court also to come to court. judges willing both would be that informed the trial court since Defendant him, go he to to could not remember wanted judges The trial court motions. library prepare law certain be more concerned defendant that he should admonished as made a final determination jury had not because defendant coun- response, to sentence. defendant’s he occurred and that if the worst-case scenario tered death, sentenced to that sentence would allow him to “bypass the Appellate Illinois Court” go “directly to the Illinois Supreme Court.” The stated, trial court your “[Y]ou have strategy own and I you have told before, I but still wouldn’t give up on the jury.” Defendant acknowledged the statement again but affirmed his deci- sion: “I understand, Honor, your but the law indicates if occur, that goes does the matter directly to the Supreme Court.”

As a attempt last to convince defendant to reconsider strategy, his judge the trial informed defendant if he were in position he vigorously present would mitigation evidence to jury so it would be inclined not to sentence defendant to death. Defendant if asked he could have some time to contact judges resumed, himself. When court defendant informed the trial court that after to speaking Judge Bailey, judge could not recall judge defendant. The again admonished defendant that he should not hinge strategy on post- trial or on an appeal. motions He explained also to defendant if one on the person jury panel disagreed death, with the imposition of defendant would not be Despite sentenced death. the trial court’s admonish- ments, however, present any decided not mitigation evidence.

At the conclusion of the second stage the sentenc- ing hearing, the jury found no mitigating factors preclude imposition of the death penalty. The trial court appointed counsel represent defendant on his post- trial In preparation motion. for the post-trial hearing, requested counsel defendant’s medical file from Pon- Center, tiac Correctional which showed that defendant headaches, dizziness, suffered from fainting spells, and eyesight bad and had survived a to the gunshot wound prior post-trial head from a incident. At the hearing, counsel argued competent defendant was not

545 during represent trial or the sentenc- either himself post-trial ing phase. motion The trial court denied and 30 for the murder to death and sentenced defendant robbery. years’ imprisonment for the armed appeal, defendant’s this court affirmed direct On People Simpson, Ill. 2d v. and sentence. conviction (1996). Supreme denied Court United States The Simpson Ed. 982, 136 L. Illinois, 519 U.S. v. certiorari. (1996). filed Thereafter, defendant Ct. 436 2d 117 S. petition post-conviction pro and a motion relief for se produce appoint a motion to filed counsel. Counsel police the Glenwood from handwritten statements police department. trial ordered the Glenwood The court requested department produce documents. After compel produced, filed a motion records were counsel production complete the documents and motion depositions. motions. The trial court denied the take post- the initial court date on defendant’s Prior to petition, filed a motion for clarifica the State conviction pursuant competence tion of defendant’s requested that Owens, 2d 351 The State 139 Ill. a bona if defendant had raised the trial court determine competence. deter The trial court issue as to his fide condition had not deteriorated mined that defendant’s coherent and able to understand and that he was proceedings. post-

Thereafter, the trial court dismissed hearing. evidentiary petition an without conviction post-judgment petition pro for Defendant then filed a se (West 1998). trial court 735 ILCS relief. 5/2—1401 petition post-judgment relief and for dismissed the directly appealed consolidated to this court. We appeal. purposes affirm the We matters for both peti- post-conviction dismissal of defendant’s trial court’s petition post- for of defendant’s tion and the dismissal following judgment reasons. relief for the

ANALYSIS In a post-conviction proceeding, the trial court does not redetermine a defendant’s innocence guilt, or but instead examines constitutional issues which escaped earlier Evans, review. See People v. 186 Ill. 2d (1999). To be entitled to post-conviction relief under the (Act) (725 Hearing Act ILCS Post-Conviction 5/122 —1 (West through 122—7 1998)), a defendant must demon strate a substantial deprivation of federal or state rights constitutional in the proceedings produced the challenged conviction or sentence. People v. Morgan, (1999). 500, 187 Ill. 2d 528

A basic tenet of the Act is that the scope of post- conviction relief is limited considerations of waiver and res judicata “to constitutional matters which have been, been, could not have previously adjudi Winsett, (1992). cated.” v. People 335, 153 Ill. 2d 346 Is sues that could have been raised on appeal, direct but not, were any issues that were decided by a review ing court generally will not be considered in a post- conviction proceeding. West, v. People 418, 187 Ill. 2d 425 (1999).

At the stage second of a post-conviction proceeding, as in the present case, the circuit court appoints counsel represent an indigent defendant and may counsel file an post-conviction amended petition. See 725 ILCS (West 1998); People 410, v. Ill. Gaultney, 174 2d 5/122—4 (1996). 418 may State then file a motion to dismiss or answer the post-conviction defendant’s petition. 725 (West 1998). ILCS A defendant is not entitled 5/122 —5 to an evidentiary on hearing post-conviction petition as a matter right. v. People Whitehead, 169 Ill. 2d (1996). 370-71

An evidentiary on a hearing post-conviction petition is warranted only allegations where the petition, supported by trial record or accompanying affidavits appropriate, where make a showing substantial that a rights Mor have been violated. defendant’s constitutional gan, Towns, 182 2d 528; Ill. Ill. 2d at v. (1998). petition well-pleaded ac in the All facts any, companying as affidavits, if are taken true for grant evidentiary determining purpose an whether to (1995). hearing. People Brisbon, 164 Ill. 2d 244-45 v. determination a trial court’s This court reviews sufficiency allegations post- regarding petition People Coleman, Ill. 2d novo. de conviction principles mind, 366, 388-89 With these basic turn to defendant’s first contention. we Proceeding

I. Errors at Post-Conviction considering allegations raised in defen- Before petition, post-conviction first defen- dant’s we consider during court erred dant’s contention that trial post-conviction proceeding grant it when failed to discovery request, improperly made certain credibility determinations, factual and and ruled that competent proceed post- with the process. conviction post-conviction

Defendant maintains that the court discovery denying request depositions erred in his for the from four the witnesses who wrote out information after request police officers, incident at the one of the Sergeant alleges DiMare. that there exists a Defendant testimony conflict DiMare’s trial as to what he between incident, after told the four witnesses to write down the prepared post-conviction an affidavit that DiMare for testimony. proceeding, and the witnesses’ own gave trial, At all four witnesses testified DiMare pencil paper requested they and out them and write gave notes about the incident. DiMare testified that he pencils they paper all of the witnesses so could In an affidavit Di- write out notes about incident. prepared post-conviction proceeding, he Mare for the general that the statements he received contained stated 548 crime,

information incorporated about which he into the police He further report. stated that notes were destroyed police once the report completed. Defen- argues dant court the trial should ordered discovery have depositions from the four in order to witnesses ascertain what their statements actually contained. neither

Although civil nor the criminal discovery rules apply post-conviction proceedings, a circuit court nonetheless inherent discretionary authority has to order People ex rel. discovery post-conviction proceedings. Daley v. Fitzgerald, People v. (1988); 123 Ill. 2d 183 (2000). Fair, 256, 264 193 Ill. 2d A circuit court should only if discovery party allow has demon moving Fair, “good strated for the discovery request. cause” Ill. 2d at discovery request 264-65. A will be denied where Enis, it expedition.” “fishing amounts to a Ill. 2d A circuit court’s denial of a request discovery for in a post-conviction proceeding will Fair, not be an reversed absent abuse of discretion. Ill. 2d at 265.

Upon review, we find that the trial court did not abuse its in denying discovery discretion defendant’s requests. to the Despite contrary, contention testimony the conflict between DiMare’s his affidavit apparent is not from the record. The witnesses testified that DiMare them to information asked write down about he provided paper incident and that for pencils them Similarly, to do so. DiMare that he testified told the down their witnesses write names and addresses “and if had they anything they keep want note of they affidavit, stated, “I could.” DiMare asked the names, addresses, their telephone witnesses to write number, they at the where were the store time of the information, shooting, and other such on a piece no paper.” inconsistency There is between these two statements, nor defendant demonstrated that there has discovery good order for trial court to cause existed depositions such, As the trial court the four witnesses. of request. denying the its discretion in did not abuse that the circuit court next maintains Defendant incorrectly findings determinations of fact and made testimony credibility regarding Brady material and argument as to both find defendant’s LaGrone. We unpersuasive. contentions argued petition, post-conviction that his given deliberately that were statements

DiMare withheld argues by that in reach- him Defendant four witnesses. petition, ing its determination dismiss credibility improper find- factual and trial court made ings. however, the trial court shows, record simply the contents of DiMare’s affidavit. restated restating affidavit, that in the contents

Wenote judicata incorrectly trial used the term res court It error, however, This is de minimis. instead waiver. clear the trial order that dismissal from court’s Brady on fact that the could have rested violation brought up appeal was, therefore, on been direct reaching conclusion, the trial did waived. In court credibility any make factual or determinations. further that the trial court made Defendant contends allegation findings factual as to that LaGrone was drug usage instructed the State to lie about her on day although of the arrest. The trial court noted investigator an defendant attached ing affidavit from an stat- lie, him she instructed to LaGrone told from defendant did not an affidavit LaGrone submit during trial court also noted that the trial herself. The drug extensively cross-examined about her LaGrone was drugs day that she on the her ar- use. She denied used drug user and was rest but admitted she was receiving drug Thus, for addition. the trial treatment her allegations properly court concluded that defendant’s legal sufficiency. lacked

550 argument

Defendant’s competency final concerns his to proceed post-conviction with the proceedings. The upon record shows the State’s the request, trial court made an initial determination bona a whether doubt existed as to defendant’s See competency. fide (1990). Owens, v. People Ill. 2d 139 351 The trial judge decided the issue after hearing arguments from the defendant, defendant’s post-conviction and counsel prosecutor. concluded, The trial court court petitioner

“This listened to the length and heard legal arguments the various why he advanced as to a psychiatric examination be should not ordered. This court also listened petitioner’s appointed argu- to and counsel attorney. ments advanced the assistant state’s It is clear petitioner’s to this court that condition not deterio- had rated that he is coherent and able to understand the proceedings.” trial,

A defendant be presumed is to fit to stand to (West plead, and to be sentenced. 725 ILCS 5/104 —10 1998). A defendant also to at the presumed is be fit time of post-conviction proceedings. Owens, Ill. 2d at 362. bona When a doubt of a defendant’s fitness to fide proceed with post-conviction raised, is proceedings may court psychological order evaluation defendant and consider the matter at an evidentiary Owens, hearing. 139 Ill. 2d at 365.

Because trial court is in the to position best bona conduct, observe a whether doubt fide proceed exists a matter lies fitness is within Johnson, the discretion of court. Ill. 2d A is considered unfit when, with proceed post-conviction process because condition, of a mental he cannot communicate his allega counsel, tions of constitutional deprivations thus entitlement, frustrating Act, his under to a reason Johnson, able level assistance. 191 Ill. 2d at citing Owens, competent 139 Ill. 2d at 359-65. If a defendant is allegations of constitutional violations to communicate competent participate counsel, that defendant proceedings. post-conviction Here, bona doubt circuit court found that no fide fact, trial fitness court

of defendant’s existed. between defendant and noted that the differences post-conviction legal matters counsel centered around legal strategy procedures. about does This conflict incompetency on of mental defen- not rise to the level part. trial further found defen- dant’s court not deteriorated since the dant’s mental condition had post-conviction last court date that defendant’s pro incorporate counsel able to some of defendant’s arguments petition. the All of fac- se into amended these together the demonstrate that trial court did not tors ruling compe- its that defendant was abuse discretion proceed post-conviction proceedings. tent to with the Perjured Testimony

II. Use of allegations post- We now consider the of defendant’s petition. Sergeant first conviction Defendant claims DiMare, defendant, “in a calculated effort to convict” grand jury, hearing presented testimony at false to the suppress on reaching motion and at trial. Before perjury claims, the merits of defendant’s however, we must address the State’s contention that of review these claims was forfeited when defendant appeal. post-conviction

failed to them A raise on direct petition upon prior is a collateral a attack conviction sentence, not a for or an addendum a direct substitute (1999). appeal. People West, 2d v. 187 Ill. 418 Conse quently, any issues which could have been raised on appeal West, direct are 187 Ill. 2d at 425. forfeited. agree the We with that defendant’s claim as State jury testimony, testimony sup- grand at DiMare’s his the pression hearing testimony trial were all at appeal. such, of contained in the record on direct As each 552 claims have and

these could should have been raised on West, appeal. Thus, direct See 187 Ill. 2d at 425. these claims are waived. of application not, however, the rule is waiver a

jurisdictional or absolute bar to review of procedurally claims, defaulted but rather a rule of administrative Whitehead, v. People 355, convenience. 169 Ill. 2d 371 Owens, (1996); People v. see 303, also 129 Ill. 2d 317 (1989). Thus, application strict of waiver will be “ ” relaxed ‘where fundamental fairness so requires.’ Whitehead, Gaines, 2d quoting People v. 371, 169 Ill. (1984). 79, 105 Ill. 2d 91 In order to satisfy require ments invoking exception, fundamental fairness satisfy the defendant a and prejudice” must “cause test showing objectively that defense counsel’s efforts and raise claim on direct impeded review were the error so infected entire trial that the defendant’s Franklin, v. due process. People conviction violates 167 v. People (1995); Ill. 2d see also 194 Mahaffey, Ill. (2000). 2d We find that defendant has failed to either satisfy prong this “cause and prejudice” test failed, thus, has to show fundamental fair exception ness should be invoked.

It is well knowing established the State’s use of perjured testimony in order to convic obtain criminal tion process constitutes violation of due law. Olinger, 2d Ill. A conviction through knowing perjured testimony obtained use Olinger, United 345, citing must be set aside. 176 Ill. 2d at v. Bagley, States 667, 678-80, 473 U.S. 87 L. Ed. 2d (1985). 492, 105 S. Ct. 3381-82 al Where the State go uncorrected, lows false to the testimony prin same apply. However, Ill. at Olinger, ciples 2d 345. the obligation testimony State’s to correct false does not to an obligation impeach amount its with witnesses credibility. all their any bearing upon evidence Pecoraro, 175 Ill. 2d 312-14 in claim, we find no evidence to defendant’s Contrary Defendant perjury. that DiMare committed the record testimony when false presented that DiMare argues first gun that defendant used grand jury he to the stated he stated report Koszut his strike Katherine but hit her with his other that he was told that defendant record, however, this claim. support fails hand. The states, report DiMare’s help man him Koszut asked the black if she could

“Mrs. paper thought time he what she to be up held which out, is a stick gun sticking of a and said ‘this a barrel with *** by grabbed Koszut the suspect [T]he then Mrs. up.’ hand struck her collar of her shirt and with other back driving the her to floorof the service the rear of head the booth.” his other defendant hit Koszut “with

The statement not the hand distinguish hand” does whether that was gun Thus, or not. this statement does not that held DiMare’s that defendant hit testimony contradict Koszut out, Moreover, even if gun. points with the as the State incorrectly DiMare that defendant hit Koszut testified battery with the and armed violence gun, aggravated stemming from action dismissed counts were Thus, jury jury State never prior selection. because know allegedly testimony heard the and did not false counts, aggravated battery the armed violence and its verdict would not have affected. been gave

Defendant also claims that DiMare false testi- mony hearing suppress at the on the motion when he witnesses, Gair, that one of Helen identified testified at a that defendant lineup. State counters DiMare’s at the falsity fails to show statement affidavit, attached to the However, Gair’s suppression. identify not petition, positively states that she could at the and that informed anyone police lineup she police of this fact.

Nonetheless, defendant that his convic- does show tion through knowing was obtained use of perjured testimony. The record shows that at trial Gair did not testify. Instead, agreed defendant and the upon State two stipulations concerning testimony. Notably, Gair’s there no any pretrial mention of identification or lack of identification in either of stipulations, these two nor is there any indication that at regard- DiMare testified trial ing the pretrial jury identification. The was never made aware of any pretrial identification as far as Gair was Thus, assuming falsity concerned. of DiMare’s testimony at the motion to suppress hearing, this testimony impact did not the jury’s verdict at trial.

Defendant DiMare falsely further claims that testi- fied as to asked the what he four witnesses to write down the time argues incident. Defendant that testimony DiMare’s varies with his statement in the af- however, fidavit. As stated earlier in opinion, there is no significant variance between DiMare’s testimony and gist affidavit. The to the DiMare’s statement four witnesses same at trial and was the both the in his af- fidavit.

Finally, defendant claims DiMare committed perjury when “implied jury” Kimberly he to the Knight, witness, an occurrence had described defendant as the The record offender. shows that defendant called DiMare during his case chief and asked DiMare if he wrote down Knight’s description of offender in the answered, supplemental any or in DiMare report report. Upon questioning by “None I recall.” further defendant, stated, police] come up “[W]e [the DiMare talking with a to all of physical description after the wit- nesses.” argument improperly

Defendant’s that DiMare “implied” Knight’s description offender supported matched defendant’s is not description by fact, questions record. In nature of defendant’s did not a full and implied complete that DiMare conduct investigation the informa- down all of not write and did including Knight, had witnesses, that the various tion given him. allegations know- that the state sum, defendant’s testimony supported

ingly perjured are not used process fails. violation claim of a due and his record Brady III. Violation that the State commit- contends Defendant further Maryland, Brady prosecutorial under misconduct ted (1963). 1194 We 215, 83 S. Ct. 83, 10 L. Ed. 2d 373 U.S. perjury incorporates claims the same that defendant note raising previously new claims. in addition to discussed Brady Specifically, existed claims violations (1) grand testimony presented to the false DiMare where (2) jury; had that Gair been not advised defendant was memory hypnotized the her an effort to enhance (3) alleged affidavit; DiMare’s affidavit in her she events testimony the to what he asked differ as and his trial (4) incident; of the at the time to write down witnesses testimony implied Knight had described DiMare’s (5) failed defendant; and the State that was an offender tape and a of a witness state- to tender interview notes regarding investigator occurrence. the ment made to an Brady, provides general rule, forth in as set by prosecution suppression favor- of evidence the “the process upon request violates due accused able to an guilt the or to either to is material where evidence good irrespective punishment, faith of faith or bad Brady, prosecution.” 87, Ed. 2d at at 10 L. 373 U.S. is not entitled A defendant 218, 83 S. Ct. at 1196-97. Brady, however, he can establish unless relief under improperly favorable was both withheld the evidence and material. defense only if “there is a reasonable “material” Evidence is probability to the been disclosed that, had the evidence proceeding have been would defense, the result 556

different.” United States v. Bagley, 667, 682, U.S. 481, (1985). L. Ed. 2d 494, 105 S. Ct. A reasonable probability that the result of the proceeding would have been different a “probability sufficient undermine confidence in the outcome.” Bagley, 473 U.S. L. Ed. 2d at People v. 3383; 105 S. Ct. at Page, 193 Ill. 2d 120 present case, claims, defendant’s together or

separately, do not establish constitutional violation. We briefly review each of the claims raised. regard With defendant’s first claim that DiMare committed perjury grand before the jury regarding statement, Koszut’s as previously noted, we find no evidence in the record to indicate that DiMare committed perjury. Nonetheless, if even allegations supported by were record, the record clear makes the armed violence and aggravated battery stemming counts from defen dant’s act of striking Koszut with a gun were dismissed Thus, State. there is no reasonable likelihood that the allegedly false testimony could have affected the jury’s verdict. See Olinger, Ill. 2d 326.

Next, defendant claims that he not informed that hypnotized Gair was to assist her memory of the events. fails, however, Defendant explain how this informa- tion would have been material to the defense. Aside from simply stating that evidence of hypnosis was with- him, held from defendant fails to any articulate reason as to how these factors establish Brady violations. Gair did personally testify at the trial nor did identify she defendant. only evidence concerning Gair came in through two stipulations, neither of which involves identification by her, defendant with hypnosis or without hypnosis. Defendant does not show how this information, had it been disclosed to the prior defense trial, yielded would have a different proceed- result ing. assignments of error concern

Defendant’s next two request four to write down DiMare’s witnesses the incident. will not revisit this information about We argument, already that the record does not as we found discrepancy DiMare’s there exists a between show testimony and the contained in his affidavit. information argues next that DiMare committed

Defendant jury Kimberly perjury he intimated to the when Knight described an offender that was the defendant. Contrary claim, however, find no to defendant’s we perjury evidence in the record that DiMare committed according “implied” because, defendant, he Knight described an offender that was the defendant. again, legitimate Once defendant has failed articulate Brady “implica- violation has failed to show how this jury’s tion,” true, if even affected the verdict.

Finally, argues that the State committed a Brady violation when it failed to tender interview notes tape Kimberly Knight and a of a witness statement from investigator. made to an insurance reference to the With appears again notes, interview it that defendant is rais- ing the issue of the notes from four witnesses written request. at DiMare’s DiMare stated that he combinedthe police report contents of the four witnesses’ notes in the generated destroying he before the notes. DiMare was extensively further notes, cross-examined about the their they destroyed. content and the fact that were later Defendant has failed to show that there is a reasonable' probability that a different outcome would have resulted had defendant had the notes from the four witnesses. argues

Defendant also that the State committed a Brady failing tape to tender to defendant a violation Knight’s investigator made to an statement insurance regarding the incident.

Defendant that with the statement he maintains in would have been able to show the inconsistencies the that, result, testimony of other witnesses and as a the argu- would have been different. Defendant’s proceedings ment, however, unpersuasive. trial, defendant, during by

At cross-examination questioned Knight money defendant as to the amount of missing robbery. after the “I Knight replied, figure. don’t know the exact dollar You would have to adjuster.” meet with the insurance She further stated adjuster that an insurance to her and spoke taped of what in the store happened day conversation on robbery purposes. hearing for insurance At the on motion, post-trial argued defendant the issue adjuster along of the insurance interview missing tape Brady requested with various other claims. Defendant be located and The trial court tape subpoenaed. directed the to locate the if it existed. On tape State still an February 15, transcript the State tendered a 8, 1992, Kimberly Knight conducted on June interview by investigator. an insurance

Initially, note that it is clear that the issue of the we during trial taped interview is one that was raised both such, in the motion. As this should post-trial issue on direct and is therefore waived. appeal have been raised objective finality yield must circum- Although (White- requires stances where fundamental fairness so head, 369), case, 111.2d defendant has failed prejudice” the “cause and test that will excuse satisfy Flores, default. See procedural a defendant’s 153 111.2d taped

Defendant has failed to establish how the conversation, agent who was not an person material. State, to the defense and was both favorable the State’s failure Although defendant characterizes fails egregious, completely tape tender as have taped helped interview would to articulate how witnesses, any, if would case. He does not state which impeached taped or this interview how the have been any proceedings different would have been result had and made available to this information been known tape during Once the defendant trial. existence it and disclosed, the State made efforts to locate was no evidence in the record tender it to defendant. There is suggest of, that the State knew or should have known tape Knight of, the existence of the until testified. laundry essence, In list of defendant creates perceived alleged but fails to show how these er- errors in rors would have undermined confidence the outcome such, of the trial. As failed to defendant has establish Brady regard any violation with of the above evidence. Right

IV Waiver of to Counsel knowingly Defendant next that he did not maintains voluntarily right and waive his to counsel at trial and sentencing argues competent and that he was not proceed pro during during post-conviction se trial or proceedings. support arguments, of these post-conviction petition attaches affidavits in his from mitigation specialists psychologists three and three who, essence, state that defendant’s demeanor and conduct type is consistent with some of mental defect—most likely, attention deficit disorder or attention deficit hyperactivity. disorder with review,

On direct this court addressed defendant’s competency represent post- himself at trial. A petitioner may judicata conviction not avoid the bar of res simply by rephrasing, case, as defendant has done in this previously appeal. People issues addressed on direct v. (1999); Williams, 186 Ill. 2d Franklin, v. (1995); People Emerson, 167 Ill. 2d 153 Ill. 2d 100, 106-07

Defendant concludes that the affidavits show that simply adequately “the trial court did not trial address competency competency right to waive the issue, however, raised precise

counsel.” This was before stated, court on direct This court appeal. literate, respon “The record indicates the defendant was Defendant, understanding. age had an sive history. familiar criminal He had demonstrated a extensive and, according to the trial ity judicial process with on a judge, represented had counsel and himself waived Further, defendant filed numerous motions prior occasion. demonstrated, actively presented his defense. He he judge, ‘[he] of the trial knew what the words right to counsel and chose to doing’ when he waived his Simpson, 172 Ill. 2d at 134. represent himself.” each of carefully rejected court considered and This concluded lengthy analysis. defendant’s claims after a We at represent himself competent that defendant was the his decision to waive sentencing trial and and that voluntarily made. knowingly to counsel was right Therefore, at we hold that Simpson, 172 Ill. 2d 134. competent he to waive defendant’s claim that judicata. res by right the to counsel barred that the affidavits Nonetheless, defendant maintains that there was a are new evidence show experts from the capacity defendant’s mental legitimate doubt as to defendant, such, argues in the As participate proceedings. judicata the limitation of res apply. does not fairness, a court by of fundamental principles Guided judicata doctrine of res when customary relax the will (2000); 189, King, v. 192 Ill. 2d 193 appropriate. People (1990). However, Neal, 142 Ill. 2d 140, the v. 146 People where applied will not be exception fundamental fairness of the requirements meet the the defendant has failed to case, In defendant has test. prejudice” “cause and alleged prejudiced error so that the failed to establish See Frank process. due him that his conviction violates Mahaffey, 194 Ill. 2d at 173. lin, 167 Ill. 2d at 15; see also a new sufficient warrant For new evidence be that it will character trial, it must be of such conclusive v. Patter- People result retrial. change upon the probably

561 son, (2000); Hobley, 192 Ill. 2d v. 182 Ill. People (1998). Furthermore, 2d evidence must be mate Molstad, merely rial and not cumulative. Ill. 2d It discovered since must also be it trial and be of such character that could not have been exercise of discovered to trial due prior diligence. Molstad, 101 Ill. 2d at 134. experts the evidence

Assuming from is new evidence, conclude, nonetheless, we affidavits are not of they such conclusive character would change upon Hobley, the result retrial. 182 Ill. See 2d most, experts 449. At agree may that defendant suf fer from an Notably, attention deficit only disorder. one experts stated defendant’s decision to “waive” his right compulsion to counsel resulted from a rather than an intelligent decision and ability that his to defend himself was The other impaired. stated that experts defendant’s mannerisms and speech were consistent with disorder, attention deficit impulsive decisionmaking “poor judgment.”

All of the experts agreed also that defendant was uncooperative during interviews, thus inhibiting full addition, evaluation. none of experts reviewed the transcripts in this case in a decision reaching as to competence. As we stated the direct ap- actively peal, defendant participated in his defense from the time of all jury way through selection to the sentencing phase. These are that factors were not considered by experts their reaching determina- tion. findWe that the fundamental exception fairness to res judicata need not be applied, as defendant cannot establish that he prejudice. suffered

Defendant claims that competent also he was not to proceed during post-conviction proceeding. Despite assertion, however, defendant’s the record shows that upon the request, State’s the trial court carefully there was a bona

determined doubt of whether fide competency proceed post- to with the defendant’s a proceedings hearing. conviction For the reasons discussion, the trial did judge articulated earlier in this in finding competent not abuse his discretion defendant proceed to the post-conviction proceedings. with Assistance of Counsel

V. Ineffective ques- itself a Defendant’s next contention reduces to aiding tion of counsel ineffective in standby whether during the trial. defendant Specifically, defendant investigate failed to adequately contends counsel mitigation and that possible ap- the existence of evidence an on pellate counsel failed to raise ineffectiveness claim appeal. outset,

At we note the crux argument attorney acting standby that an as counsel duty a a higher for defendant has to aid capital Defen- during sentencing phase. defendant the trial and standby dant this court to extend the duties of urges encompass legal of a defense and preparation counsel to to mitigation opts even when the defendant assert to right self-representation. We decline constitutional adopt position. such a it carry with right self-representation does assistance; right legal choosing one corresponding just to do that.

represent prepared himself must be (1990). Gibson, v. Standby 136 Ill. 2d counsel pro se “in routine may overcoming assist procedural evidentiary completion or obstacles to introducing or tasks, some such as evidence specific clearly testimony, the defendant has objecting to also “ensure complete” may help shown he wishes with rules courtroom compliance the defendant’s basic Wiggins, McKaskle 465 U.S. protocol procedure.” The trial L. Ed. 2d 104 S. Ct. 944 these counsel for appoint court has broad discretion 563 advisory purposes or other limited and to determine standby and of counsel’s involvement. extent nature (1996). People Redd, 1, v. Ill. 2d 173 38 appeal case, In the direct of this we discussed standby of role in case in extent counsel’s this as one during counsel aid defendant trial and as which would investigating in matters sist him defendant believed necessary Standby be defense. would his counsel’s participation role, however, one active preparing presenting legal or nor defendant’s defense Simpson, was defendant under this 172 at belief. Ill. 2d 136. standby

The trial court described role of counsel repeatedly he admonished defendant that could not proceed pro represented by se and also be counsel. The standby proceed trial court further directed at counsel perform investigative defendant’s direction certain standby tasks. Defendant understood that counsel’s role carry investigatory towas out an function as well as regular standby duties. standby

Defendant claims that his counsel was inef failing investigate mitigation fective for certain evidence. Claims ineffective are assistance counsel analyzed two-prong under the test established Strick Washington, land 668, v. Ed. U.S. 80 L. 2d (1984). S. Ct. 2052 Under Strickland a defendant must prove performance that defense counsel’s fell an below objective standard of reasonableness performance prob substandard created a reasonable ability that, errors, but for counsel’s the trial result People Alvine, would have been different. v. 173 Ill. 2d (1996). regard mitigating 273, 293 evidence, With duty defense counsel has a make a reasonable investi gation mitigating present into he evidence will capital hearing, sentencing or he have must failing particular investiga- a sound reason for to make a Morgan, People v. 187 Ill. 2d tion.

Nonetheless, reviewing courts trial counsel’s decisions are regarding presentation mitigating evidence Towns, 182 Ill. 2d 513-14 highly deferential. counsel, however, by An informed decision defense be present mitigating not to certain evidence can a valid deference, choice, judicial to where the strategic entitled Towns, potentially is to the defendant. damaging evidence mitigating 182 Ill. 2d 514. the lack of evidence at Where not to presented at a defendant’s trial attributable to strategy, properly but instead to counsel’s failure defense, to a investigate mitigating prepare evidence and Towns, Ill. 2d at deference is not such warranted. 514. in

Here, as direct counsel pointed appeal, we out in duty a to actively participate preparing under for a Rather, counsel was there legal defendant’s defense. in investigatory to aid defendant an purpose: limited responsibil 2d capacity. Simpson, 172 Ill. at 136-37. The legal remained ity preparing mitigation defense sentencing. throughout on the trial and defendant he the trial court that by Defendant was informed evidence proceed mitigation be to with prepared should if sentencing hearing guilty. at he was found WTien presented, came for evidence to be mitigation the time testify to on his sought judges call three However, were unable to remember judges behalf. judge, request, The trial at defendant’s defendant. a few judges, on occasions. contacted each two that least trial court informed defendant willing come court but judges three would be Defendant could remember defendant. judge neither himself, help an effort to judges contacted one of requested vari- remember him. Defendant also judge witnesses, all of which were from transcripts ous for him. provided

During judge repeatedly time, this the trial advised present mitigation defendant that he other should some sway jury impose an evidence in effort to not to Ultimately, strategic death. defendant made a choice not any present mitigation according because, evidence directly defendant, he wanted the to be case reviewed penalty. court he should receive the death The trial judge questioned prudence choosing defendant’s such strategy, but the record shows defendant was Thus, adamant in his decision. defendant chose not to present any mitigation evidence. argues standby

Defendant counsel had received preparing post-trial a medical file while mo- frequent tion disclosedthat defendant suffered from fainting spells, headaches, dizziness, severe bad eyesight gunshot an old wound to the head. Defen- suggests presented dant that this information, had it been during mitigation, yielded a would have different result. principle cannot, Defendant however, avoid the that a person proceedingpro may complain se not later that he duty received ineffective of assistance counsel. The to present mitigation evidence remained with defendant throughout sentencing phase. the

The record that familiar shows defendant was with judicial process actively sought the and that he informa- transcripts, subpoenas tion, such as and documents from prepare aggravation/ the trial court in an effort to for mitigation phase sentencing. of Defendant himself made present any mitigation the final determination not to despite evidence, trial court’s admonishment to the contrary. Nothing in either the record or defendant’s suggests requested standby brief that defendant that investigate mitigation counsel evidence, additional such as defendant’s Further, medical file. nowhere does explain way standby defendant in what the conduct of his prevented introducing counsel mitigation. him from evidence in nature, To of this defendant succeed on claim the actions of required should be to establish standby accomplishing defendant from prevented counsel to or would something accomplish he otherwise intended had not accomplish standby have been able to if counsel so, doing through him from either unreason- prevented words, to on prevail able advice or direct action. other claim, defendant should show how an ineffectiveness objective fell an standard standby counsel’s actions below of respect guidance with to level of reasonableness suggest required to To standby counsel offer. have standby would mean that counsel would otherwise pro se from do, direction advance without in order to defendant, preparation additional of the case defendant, then evidence to the who would present this it. level whether or not he use This of determine would standby counsel’s beyond scope preparation duty. to avoid

Here, consequences defendant seeks during stage himself the second represent his decision such, to find As we decline sentencing hearing. objec- an standby fell below performance counsel’s respect providing with tive standard reasonableness mitigation evidence defendant. appellate counsel was argues further

Defendant failing for to raise ineffectiveness ineffective on the argument standby Again, reject counsel. we counsel acted as own basis prepare have an obligation did not standby counsel for him. defendant’s case to claims of Strickland test two-prong applies Caballero, 126 Ill. counsel. appellate

ineffective (1989). ap who 248, A defendant claims 2d 269-70 an failing to raise is ineffective for counsel was pellate a demonstrating such allege on must facts appeal sue counsel’s objectively and that unreasonable failure was

567 prejudiced Enis, If decision defendant. 194 Ill. 2d at 377. underlying nonmeritorious, the is the issue defendant People prejudice. Enis, 377; has suffered no 194 Ill. 2d at (2000). Normally,appel Childress, v. Ill. 2d concerning pursue late choices which issues to counsel’s are Mack, entitled to substantial deference. v. (1995). Ill. 2d 532-33 duty present underlying case,

In the of issue standby prepare mitigation of counsel evidence has no by prejudice Therefore, merit. defendant suffered no appellate failure his to raise this issue on direct counsel appeal. Penalty Constitutionality Death

VI. Statute assignment argues In his last of error defendant sentencing system unconstitutionally ap- the Illinois is plied. statutory Defendant maintains the Illinois impermissibly places scheme a burden on defendant by legislature. unauthorized appeal In his direct a raised similar claim. argued penalty

Defendant the death statute violates eighth by providing penalty amendment for the death mitigation preclude where evidence in sufficient to according precludes such, it. defendant, As the statute meaningful mitigating a consideration of evidence.

Although post- in defendant’s claim the amended petition slightly differently, conviction is framed judicata applies. doctrine of res still As this has court emphasized, the Act was not intended to be used as gain upon hearing tool to access to another claim rights already denial of constitutional when had there People Cox, been a full review this issue raised. Ill. 2d 67-68 Defendant this case cannot purpose by framing circumvent the of the Act the issue Therefore, different terms. claim is barred judicata. res Supreme

VII. New Court Rules highest degree legal an to In effort ensure cases, in have formulated a competency capital we govern to death cases. comprehensive penalty set rules 43, 411, 412, 416, 417, 701, 3.8, Ill. 2d Rs. 714. See 188 1999, In court a 17-member April appointed way capital committee on cases to assess special in Illinois. This penalty system death is administered a forum for debate and dis- committee was created as regard- and comment semination of constructive critical In re justice Special Supreme criminal ing process. our Cases, (April on M.R. 15833 Capital Court Committee 1999). identify and

The committee’s was to research goal the administration procedures enhancing the best for the commit- justice capital in cases. October our on It further report findings. tee issued its first its Chicago. in hearings Springfield conducted public a hearings, the committee issued Following public findings its supplemental report containing new a findings Central to its recom- recommendations. Trial Bar. Capital Litigation a mendation to establish Litiga to the Capital The recommendation establish on committee members’ Trial Bar was based tion “reasonable, finding minimum standards unanimous experience, consistently applied as training for admission, only way are the of trial bar condition in the systemwide qual significant, improvement ensure Ill. 2d Com capital in trials.” 188 R. ity advocacy Comments, Trial Capital Litigation at cxiii. mittee defendants receive capital was created ensure Bar hearings, and sentencing trials impartial fair and error the maximum extent occurrence of minimize the feasible, promptness and correct with due identify and to 2d R. 416 & Committee may occur. 188 Ill. any error Comments, Ixxii. and as- rules, all defense counsel the new

Under or prosecutors appearing as lead co-counsel sistant Capital members of the capital Litigation cases must be Trial Bar. fail to Attorneys specific require who meet the may ments without capital receiving cases appear 714(d). waiver from our Ill. 2d directly court. 188 R. Further, defendants are indigent repre entitled be attorneys with requisite qualifications. sented two 416(d). mandatory 188 Ill. 2d R. Finally, educational for programs may are trial who be called required judges preside to over cases. 188 Ill. R. 43. capital 2d

Additionally, the new rules extend criminal discovery (188 capital sentencing 411); rules to Ill. hearings 2d R. impose on the the duty good-faith State to make a effort identify to material or information which tends to negate (188 guilt of the accused or reduce punishment Ill. 2d R. 412(c)); require give the State to notice of its (188 intention to death penalty 416(c)); seek the Ill. 2d R. (188 authorize discovery depositions Ill. 2d 416(e)); R. (188 management mandate case conferences Ill. 2d R. 416(f)); and new impose pretrial disclosure rules with (188 417). respect to DNA evidence R. Ill. 2d The new rules also clarify duty prosecuting attorneys. Specifically, they state that “the a duty public prosecu tor or other government seek lawyer justice, is to 3.8(a). merely to 188 Ill. convict.” 2d R.

Although the court unanimously adopted the new rules, the majority disagree dissents and as to their effect capital on cases which were pending before this court at Harrison, the time of adoption. Chief Justice in his dis sent, maintains this court automatically should all capital vacate convictions that obtained were without the benefit position, of the new rules. To support First, Chief Justice two arguments. makes he contends rules, that without new capital “no conviction or (Har sentence can Ill. 2d at be deemed reliable.” 204 rison, C.J., dissenting); Ill. 2d Hickey, (2001) C.J., (Harrison, dissenting). Further, because attorneys impose stringent

the new rules standards on judges their regarding qualification participate trials, the Chief finds it that a capital Justice untenable defendant, case, as the in this al- such one should be Thus, sug- lowed to himself. the Chief Justice represent (as dissent) in his gests does Justice Kilbride cases, rules, capital pursuant the new this court should right a a reject self-representation because rigid se never set defendant can meet the standards pro disagree in the points. out rules. We as to both bright-line rule to Chief Justice would create all vacate convictions sentences decided without (Harrison, of the new rules. 204 Ill. 2d at 581 benefit (Harrison, C.J., dissenting); Hickey, 204 Ill. 2d at 636 C.J., ignore Such a rule would the multitude dissenting). by adjudi cases tried competent attorneys, that were on by judges carefully cated reviewed experienced the merits this court.

Further, the Chief conclusion that death Justice’s per tried our rules are adoption cases new prior rules were presupposes se unreliable new than intended set a constitutional standard rather justice in future quality to enhance the procedure maximize The new rules were established to capital cases. ethical defendant, compliance fairness with justice. of responsibilities and the administration proper To ac 701, Comments, Ill. 2d at cvi. R. Committee conclusion, we would have as cept Chief Justice’s of the previous performance in all cases sume regard attorneys constitutionally inadequate trial was assumption reveal. might less of what the record This these Prior to the of inappropriate. adoption would be rules, frequently cases recognized capital it were Findings attorneys. and by professional tried competent of Court Special Supreme and Recommendations (October Capital 7, 9, 14, 20, 28, Committee on Cases 1999). adopting

In the new rules we never intimated that prior lacking all cases tried to the new rules were in reli ability. emerged The new rules because we became cognizant some, all, of the fact that the outcome of assigned experience cases was flawed. We lack of training of as cause those flaws. Fair and accurate capital quality advocacy results in a trial are the result of prosecution both the and the 2d defense. 188 Ill. R. 714, Comments, Thus, Committee at cxiii. the new rules designed possibility inaccuracy were minimize occurring capital or unfairness cases. recognized capital

Nevertheless, the committee cases tried without the benefit of the new rules were frequently by competent prosecuting tried defense and attorneys. Specifically, formulating rules, the new agreed committee members that assistant State’s At- torneys perform professional in Illinois in a fair and man- “overwhelming majority” capital ner in the cases. Findings Special Supreme and Recommendations of the (October 1999). Capital Court Committee on Cases 7 The committee that, members further noted on the prosecutors try capital “fairly compe- whole, cases tently.” Findings Special and Recommendations of the (October Supreme Capital Court Committee on Cases 9 1999). addition, In the committee members found that the majority private attorneys obligation “vast meet their provide competent Findings assistance of counsel.” Special Supreme Recommendations Court (October 1999). Capital Committee on Also, Cases quality the consensus of the committee was that the representation provided by public capital defenders in “generally very good.” cases is fact, committee agreed capital representation provided members case “excellent,” with defender offices is larger public jurisdictions having persons other County and some Cook Findings defense. assigned capital to specifically or units Court Special Supreme of the and Recommendations 1999). (October 28, Ap- Capital on Cases Committee Trial Bar Litigation requirements plying Capital help to assure attorneys and defense will prosecutors in all cases. capital are met these standards capital always carefully has evaluated This court overriding goal an basis with case-by-case cases on a law, accuracy. Our to the fairness towards adherence in this manner is un to review cases responsibility intent of this rules. It was never the changed by the new retroactively. Follow applied be court that the new rules findings, recommendations ing the committee’s governing new rules that most of the court announced 1, on March take immediate effect trials would capital 3.8, 43, 714. These rules were 188 Ill. 2d Rs. 2001. See *** of the application “except into effect when go *** at the time pending case particular rules in a new an injustice.” or work not be feasible would would 411, 412, 417. 416; also 188 Ill. 2d Rs. Ill. 2d R. see those take effect were immediately that did not only rules cases be attorneys penalty death required all Trial Bar Capital Litigation certified as a members Capital to have attended required judges those 1, March date of set an effective Litigation Seminar. We We note Ill. 2d Rs. 701. those rules. 188 for effective rules, respective and their of the new that all quality improve in an effort to dates, created were (188 Ill. 2d R. Committee cases advocacy capital to vacate all cases Comments, cxiii), not as a basis date. to their effective prior decided to the that, argue pursuant further The dissents to repre- allowed not have been rules, should did “[Defendant] writes: The Chief Justice sent himself. him. He represent lawyers competent not have two attorney represent competent one did not have even (Harrison, C.J., dissenting). 204 Ill. 2d at 580 him.” reject the this court “must concludes Chief Justice represent to competent defendant was fiction that C.J., dissenting). (Harrison, 204 Ill. 2d at 580 himself.” Justice, a rules, according to the Chief the new Under to competent represent capital defendant “never will be” (Harrison C.J., dissenting). Ill. 2d at 580 himself. 204 the issue of whether important raises the This assertion a defendant’s rules create a standard overrules new v. Cali Faretta right self-representation. constitutional 562, Ct. 2525 806, 45 L. Ed. 2d 95 S. fornia, U.S. (Kilbride, J., dissenting). 204 Ill. 2d Faretta, held that the sixth Supreme Court VI) (U.S. Const., amend. right amendment counsel for the in implicitly provides right self-representation defendant has a proceedings criminal and that a criminal right state-provided constitutional to refuse counsel voluntarily if he proceed representation without Faretta, 820-21, intelligently elects to do so. 422 U.S. at 573-74, 45 L. Ed. 2d at 95 S. Ct. at 2533-34.

The Court further explained: language spirit “The of the Sixth Amendment contem- counsel, plate guaranteed like the other defense tools by Amendment, willing shall be an aid to a defendant— unwilling an organ interposed not an of the State between right personally. defendant and his to defend himself To accused, against upon thrust counsel his considered wish, Faretta, logic thus violates the of the Amendment.” 422 U.S. at 45 L. Ed. 2d at 95 S. Ct. at 2533. provision The Illinois Constitution has similar an in guarantees right self-representation accused I, § criminal Ill. art. 8. In proceedings. Const. (1995), decided Coleman, 168 Ill. 2d 509 this court in reliability capital the demands of increased whether represented by that the accused counsel required trials be se. pro notwithstanding proceed his own desire to Citing to Faretta with approval, expressly rejected we argument and held that the heightened need for reliability capital justify forcing cases does Coleman, accept representation accused to counsel. 168 Ill. 2d at 545.

The dissents would us from depart have this estab- precedent lished light new rules. We decline to do so. The rules are new not intended to overrule well- Instead, established constitutional guarantees. the new rules are intended provide a mechanism to achieve fair and accurate results in capital They trials. are rules procedure. They do not set new constitutional standard.

Despite degree judge to which a trial may ques- tion the wisdom of a defendant who exercises right represent during constitutional to himself a capital trial, the new do not eradicate that right rules once defendant makes a and voluntary intelligent decision to case, proceed without assistance of counsel. In this defendant to represent stages chose himself at all of the trial proceedings. voluntarily He made that decision intelligently. ignore We cannot defendant’s established Therefore, right represent constitutional to himself. we decline to hold that this the creation right by is overruled of the new rules. concern that people

We share dissents’ innocent accuracy on death may placed be row when fairness yields training and lack of The new poor experience. improve reliability rules were established to the overall of capital possibility of trials and lessen the the occur of the important safeguard rence errors. most accuracy capital competence, fairness and trials is the integrity attorneys try who professionalism, Comments, those cases. 188 Ill. 2d R. Committee however, the new create emphasize, cxiii. We rules that overrules estab- standard neither a constitutional decisions rights prior nor invalidate lished constitutional rights. those upholding conviction, have found affirming defendant’s we of federal or deprivation did not suffer a

that defendant the fact that he rights despite state constitutional the trial. Other during phases all represented himself that defendant exerted his constitutional noting than himself, point the dissents do right represent or state constitutional any of either federal deprivation trial, conviction or sentence rights defendant’s Thus, relief. defendant is post-conviction would mandate post-conviction not entitled to relief.

CONCLUSION stated, of the circuit judgment For the reasons County dismissing post- court of Cook defendant’s hearing an af- petition evidentiary conviction without Additionally, firmed. affirm the of defen- we dismissal (735 dant’s for relief ILCS pro petition post-judgment se (West 1998)), it raises the same as as issues 5/2 —1401 post-conviction petition. hereby direct the clerk an We of this court to enter setting Wednesday, January 16, 2002, order as the date on by which the sentence of death entered the circuit court Cook County is to be carried out. The defendant (725 shall be executed in a manner provided law ILCS (West 2000)). The clerk of this court shall send 5/119—5 a certified of the mandate in copy this case the Direc- Corrections, tor of to the warden of Tamms Correctional Center, and warden of the institution where is now confined.

Affirmed. FREEMAN, concurring: specially JUSTICE join I in all agree respects fully with court opinion affirming the orders of the circuit court. I write separately only express my to on portion views a Chief Justice Harrison’s dissent to today which court not respond. does

I note that the Chief Justice position takes same Hickey, here he did in that 204 Ill. 2d 585 (2001), i.e., the new supreme addressing court rules capital litigation provide serve to relief a defendant even if no other basis Having exists reverse the case. legal reasoning set forth the for position, his the Chief Justice states: experience

“If our capital past with cases over the few years taught has anything, us it is that must we view everything capital heightened occurs trials with skepticism. we skepticism, When surrender that disaster Jones, follows. Just Ronald Joseph Anthony ask Burrows or ways Porter. found uphold We each of their convictions us, only sentences when their cases first came before they actually to discover later that were innocent.” 204 Ill. (Harrison, C.J., dissenting). 2d at 580 view, In my these remarks need to be addressed because they unfortunately call into question integrity of the court. some, all,

The names listed in the are dissent but of the men released from death row in Illinois when new evidence later was uncovered which cast doubt on the guilty verdicts rendered in each of their I capital trials. take specifically issue with Chief Justice’s comment ways” “we found the convictions in these uphold justice court, cases. When a fellow states that his as a body, convictions, “found ways” uphold has justice saying colleagues these cases intention- around, ally overlooked, got side, ignored, to one or put hand, something important dismissed out of otherwise reversal, that some- that should have caused whether thing legal argument or evidence. The exculpatory remark, nothing Chief even if more than Justice’s flourish, beyond disagree- rhetorical reaches well mere ment of the other members of legal reasoning with charge of Rather, a serious it constitutes the court. conduct. Because judicial and unethical unprofessional the impugns is untrue the Chief Justice’s statement on the facts court, I wish to comment integrity noted in the dissent. the cases of the men underlying Jones’ convic- court affirmed Ronald Although this in review, occurred on direct what and sentence tions mention. deserves appeal after that initial this court proceedings, of the direct review After the completion evidence was discovered. containing DNA vaginal swab initial at defendant’s presented This evidence was not the record on direct part therefore not a trial and was During ensuing proceedings, the post-conviction review. argued in the circuit attorneys unsuccessfully Jones’ County vaginal containing swab court of Cook should be tested. newly discovered DNA evidence however, in lawyers, victory Jones’ won a this court when circuit to release the evidence to we directed the court conducting DNA test- attorney purpose Jones’ for testing it was revealed that ing. completed, After the court perpetrator. could not have been the This Jones following then order: issued County denying “The order of the Circuit Court Cook petition post-conviction for relief is vacated. This cause remanded to the circuit court with directions to allow relief, petition post-conviction for vacate defendant’s grant defendant a new trial.” defendant’s conviction remand, At the on the State subsequent proceedings light Jones in of the DNA charges against dismissed facts, it seems incredible to me evidence. view these any member of this court could state that this court case. ways” uphold “found the convictions Burrows, this court affirmed respect Joseph With and death sentence on direct review convictions (1992). After the Burrows, 148 Ill. 2d 196 1992. Burrows completion proceedings, of the direct review relief in he al- post-conviction filed a for which petition leged that, subsequent triad, to his evidence had come to light that principal State’s two him against witnesses had committed and that one of perjury, those witnesses had later admitted being the killer. The circuit court granted post-conviction petition by vacating the convictions and ordering new trial. The State ap pealed directly court, to this asking we reverse the order of the circuit court reinstate the convictions and death rejected argument sentence. We the State’s upheld the trial grant court’s of a new trial. See (1996) (Burrows II). Burrows, People v. 172 Ill. 2d 169 I note that the trial court’s decision to vacate the prior largely convictions was based on this in opinion court’s (1996), v. 2d People Washington, 171 Ill. in which we recognized newly that a claim of discovered evidence actual innocence a presents question constitutional cognizable under the Post-Conviction Act. in Hearing As case, the Jones the evidence that exonerated Burrows during original Nevertheless, available the trial. this court did not hesitate to affirm the circuit court’s vacating order the convictions when that evidence was brought to light.

Finally, respect Anthony Porter, with to the case of I acknowledge upheld this court Porter’s convictions and death sentence both on direct and collateral review. Indeed, the Chief Justice in joined fully the court’s opinion the denial of affirming post-conviction relief. See Porter, did, 164 111.2d 400 This court however, later stayed order Porter’s execution in order to mentally review claims that Porter was retarded that, result, as a he lacked the capacity mental to. be executed. the of the During period stay, new evidence light came to which was later used to exonerate him. the Nothing opinions of the court or in the court’s of the the handling supports by case the assertion raised court, included, Chief Justice he somehow ways” uphold “found the Porter convictions. against position deeply the held The Chief Justice’s ignore give penalty the him the license does not death highly charged, penalty emotional The death facts. very public in the conscious- much area of the law that is disagree people over whether can and do ness. Honorable penalty. However, have a death the state should misrepresenting past court, the Chief of this actions fan the flames of sensation- little more than Justice does eyes public. denigrate this court in alism and joins special concur- in this McMORROW JUSTICE rence. dissenting: HARRISON,

CHIEF JUSTICE Simpson’s appeal, During pendency our court governing comprehensive adopted of new rules set seeking the death the State is conduct of cases which significant penalty. of the new One of the most features rigorous governing their standards rules is inclusion eligible try capital qualifications of individuals cases. competent

Recognizing indispensable trial role of seeking penalty, our the death counsel where State is only may be determined that such cases court has attorneys possess experi by extensive handled those who specialized training in the field. With limited ence and only attorneys exceptions, members of who have become Litigation may appear Capital as lead or Trial Bar applies capital restriction to co-counsel in cases. That counsel for the defense. counsel for the State and both 701(b). 416(d), 188 Ill. 2d Rs. membership eligibility in the standards for Litigation

Capital Lead Trial Bar are substantial. years example, counsel, at leave five for must have prior experience litigation experience; as have criminal eight felonyjury tri- than lead or co-counsel no fewer completion, at least two of which als which were tried to prosecutions; were murder complete have certain specified training requirements. The qualifications for 714(b). are comparable. co-counsel 188 Ill. 2d R At torneys who fail to specified meet the requirements may not appear capital cases without receiving a waiver (188 from directly our court Ill. 714(d)), 2d R indigent defendants are entitled representation by to one but two attorneys with the requisite qualifications (188 416(d). Ill. 2d R

Now that our court has adopted stringent these new rules, I fail to see it can how continue to sanction proceedings such as one before us today. This certainly did not competent have two lawyers represent to him. He did not have even one competent attorney represent him. The permitted trial court him proceeded se, pro despite questions serious as to soundness of judgment and his ability reason.

Promulgation equivalent new rules is to a by determination this court a lawyer even is not competent to handle a death case special unless he has training and experience. To be consistent with that determination, reject the court must the fiction that this defendant was competent represent himself. He was not. Under the imposed, standards we have now he never will legitimate purpose be. No will be pretend- served ing otherwise. If our experience capital with cases over past years few taught anything, has us it is that we must view everything capital occurs at trials with heightened skepticism. When we surrender that skepti- cism, Jones, disaster follows. ask Ronald Joseph Just or Anthony Burrows Porter. We found ways uphold each of their convictions sentences when their cases us, only first came before to discover later that they were actually innocent.

The procedures contained in the new rules we have adopted may perfect. They may not be not eliminate all

581 penalty death present defects in the of the constitutional rules, however, no conviction capital law. those Without Hickey, v. People can deemed reliable. or sentence be (2001) (Harrison, C.J., dissenting). Ill. 2d sentenced tried, convicted and Simpson Because was rules, conviction and of the new without benefit vacated, and the cause therefore sentence should be court for a new trial. remanded to the circuit should be himself of Simpson if were not entitled avail Even could not stand. For rules, of death new his sentence set forth in concurrence my partial reasons (1998), Bull, v. 185 Ill. 2d 179 partial People dissent and unenforceable penalty Illinois death law is void amend eighth it and fourteenth because violates (U.S. Const., ments to United States Constitution XIV) VIII, I, 2, of the Illinois amends. and article section 2). (Ill. § I, art. the new Constitution Const. Absent rules, altering there is for that conclusion. At a no basis minimum, Simpson’s sentence of death should therefore vacated, and the cause be to the be should remanded imposition imprison circuit court for of a sentence of (West 1992). l(j) ment. 720 ILCS 5/9 — KILBRIDE, dissenting: JUSTICE also my For the reasons set forth in dissent (2001), I 204 Ill. 2d with Chief Hickey, agree that the court supreme Justice Harrison’s conclusion new be retroac governing capital applied rules cases should minimum, I again At a state that issue tively. retroactivity fully have been more addressed should following supplemental the submission of court briefs. in this that Faretta majority concludes case self-representation in all

conclusively settles the issue of cases, capital cases. 204 Ill. 2d at 574. including criminal an open I that Faretta remains disagree contend only cases. Not question respect capital with Faretta decided aat time when the United States Supreme Court the penalty considered death unconstitu tional, but the Court has that recognized right the not self-representation is absolute. See Martinez Court Appeal California, District, Fourth Appellate 528 of U.S. of 152, 161, 607, 597, 684, 145 L. Ed. 2d 120 S. Ct. 691 (2000); Farhad, see also United 1097, States v. 190 F.3d (9th 1999) (Reinhardt, J., 1101-09 Cir. specially concur Faretta). ring) (criticizing Martinez,

In the Court characterized the Faretta rationale as a balance the of right between self- representation competing governmental and interests. Martinez, 162, 528 Ed. 2d 607, U.S. at 145 L. at 120 S. considering interests, Ct. at 691. In those stated Martinez *** level, government’s at the trial “[e]ven the inter- in ensuring integrity efficiency est the and of trial the at outweighs times the interest in acting as his added.) lawyer.” Martinez, own (Emphasis U.S. at 528 162, 607, L. 145 Ed. 2d at 120 at S. Ct. 691.

Equally important, Faretta does trump the mandatory requirements minimum of our rules capital the defendant, because “status of the accused who a presumption retains trial throughout innocence the process, changes dramatically a jury when returns Martinez, guilty 162, verdict.” at Ed. 528 U.S. 145 L. 2d 607, at 120 capital case, S. Ct. at 691. In a death penalty phase only sought guilty after return of a Thus, recognizes verdict. Martinez that the right Faretta self-representation may to other yield governmen well verdict, tal interests after a guilty including the same our espoused by reliability interests rules to ensure 3.8, fundamental capital fairness cases. Ill. 2d Rs. 412, 416, 417, 701, Accordingly, 714. in view of Martinez, carefully right we should examine to self- representation during aggravation-mitigation phase. Rieder, Note, E. See also The Right Self-Representation Capital Case, in the 85 Colum. L. 152-54 Rev. Martinez, Breyer Justice concurring opinion In his right judge’s Circuit observation cites Ninth squarely conflicts with frequently self-representation Martinez, 528 fair trial. U.S. right to a constitutional J., 608-09, (Breyer, at 692 164, 145 Ed. 2d at S. Ct. L. (Rein- Farhad, at 1101-09 citing 190 F.3d concurring), Justice hardt, concurring). Specifically, J., specially “the Breyer Judge 149, 1692, (1988), 108 140, Ed. 2d Ct. 1697-98 the S. that, certain Supreme Court clarified under circum- stances, rights yield individual sixth amendment must in society’s assuring interests fair trials. The Supreme a rejected attempt Court to waive a sixth “the institutional in right amendment because interest the of cases just may rendition verdicts criminal be Wheat, 160, L. at jeopardized.” 486 U.S. 100 Ed. 2d 149, Ct. at 108 S. 1698. the

Hence, open the of extent question Wheat raises right nature of the of conditional self- overriding For has an representation. example, this court obliga- That obligation protect rights. a defendant’s when, certainly tion as often goes almost unfulfilled is case, lacking and presents inept se defendant pro See, Alabama, 45, 69, 287 U.S. 77 e.g., defense. Powell v. (1932) 158, 170-01, 55, (discussing L. Ed. 53 64 S. Ct. Fundamental fair- typical self-representation). quality the ultimate prevents imposing ness a court from ability death the court lacks the sentence of when mitigating inadequate discern or facts due to exculpatory 584 Without an

self-representation. expressing opinion on that, I propriety penalty, of the death at a believe minimum, justice requires bare we ensure capital punishment imposed only under appropriate circumstances. case represents

This the exact kind of defen- capital dant we to represent whom should allow himself. and headaches, Defendant suffered from severe frequent dizziness, fainting spells. conviction, it After came has a light lodged defendant bullet in his head. It similarly long-term learned suffered psychological conditions deficits. need not

We conclude that defendant’s state mind knowing, for a voluntary, intelligent allowed waiver right of his constitutional to the effective assistance failure present existing mitigat- counsel. Defendant’s ing sentencing phase evidence demon- during amply self- potential strates destructiveness representation. Despite strong admonitions from trial court, defendant effected his own inevitable capriciously death sentence.

Faretta allowed waiver of counsel conditioned trial upon a court’s determination that a defendant’s ” “ ‘eyes California, Faretta v. made open.’ waiver is with 806, 835, 562, 2545, L. U.S. Ed. 2d Ct. S. Adams v. United States ex rel. Mc (1975), quoting Cann, 268, 274, 63 317 U.S. 87 L. Ed. S. Ct. end, 236, 242 Toward that must not allow we capital self-representation defendants to undertake conflict with to assure a this court’s constitutional duties Farhad, fair trial for F.3d at every defendant. See (Reinhardt, J., concurring). short, I specially mandatory again urge that our new rules eliminate in a case. right self-representation capital I reasons, respectfully express For dissent. I no these the death nor opinion regarding propriety penalty, other issues to the in relation any opinion I express do dissent Harrison’s Justice raised Chief 2d 179 Bull, 185 Ill.

(No. 87286. ILLINOIS, OF Appel- THE OF STATE THE PEOPLE HICKEY, Appellant. ARTHUR DALE lee, v. Rehearing denied September Opinion 2001. filed December 2001. notes Reinhardt’s observation argument addressed directly Court has never Blackmun, by Chief joined [Justice Faretta dissenters the Sixth Rehnquist] Justice Burger Justice would lead right self-representation Amendment Farhad, 190 F.3d at unjust unfair convictions.” trials J., concurring). 1101 (Breyer, 153, 160, States, v. United 100 L. Wheat U.S.

Case Details

Case Name: People v. Simpson

Court Name: Illinois Supreme Court

Date Published: Sep 27, 2001

Citation: 792 N.E.2d 265

Docket Number: 85084, 86926 cons.

Court Abbreviation: Ill.