People v. Smith

(West 1998). provided by ner law. 725 ILCS The 5/119—5 clerk of this court shall send a certified copy Corrections, mandate in this case to the Director of Center, warden of Tamms Correctional and to the warden of the institution where the defendant is now confined.

Judgment affirmed. CHIEF HARRISON, JUSTICE concurring part dissenting part: I agree that Edwards’ convictions should not be In my view, disturbed. however, his sentence of death cannot be allowed to stand. For the reasons set forth in my partial concurrence and partial dissent in People v. Bull, 185 (1998), Ill. 2d 179 the Illinois death penalty law violates the eighth and fourteenth amendments to the (U.S. United States Const., Constitution VIII, amends. XIV) I, 2, article section of the Illinois Constitution (Ill. 2). 1970, I, Const. art. § Edwards’ sentence of death should therefore vacated, be and the cause should be remanded to the circuit court for imposition of a sentence of imprisonment. Ill. 38, Rev. Stat. 1985, ch. par. 1(j). 9—

(No. 86775. THE PEOPLE OF THE STATE ILLINOIS, OF Appel-

lee, SMITH, v. DAVID Appellant. Opinion 1, 2, Rehearing December April denied 2001. filed 2000.—

HARRISON, C.J., concurring part dissenting part. Bloom, Steven F. Molo and Lin llene of Winston & Strawn, Hartman, and Marshall J. of the Office of the Appellate Chicago, appellant. Defender, State all of for Ryan, Attorney Springfield, General, James E. (William Attorney, Chicago Devine, Richard A. State’s Attorney Chicago, Browers, L. Assistant General, of and Jones, Renee Goldfarb and Barbara L. Assistant State’s Attorneys, counsel), People. for the opinion

JUSTICE McMORROWdelivered the court: appeals

Defendant, Smith, David from an order of County dismissing the circuit court of Cook his amended petition post-conviction evidentiary for relief without an hearing. Because defendant was sentenced to death for underlying appeal directly convictions, lies to this 651(a). court. 134 Ill. 2d R. For the follow, reasons that judgment we affirm the of the circuit court.

BACKGROUND previously pre This court has set forth the evidence opinion sented at defendant’s trial our on defendant’s appeal. People first direct Smith, See v. 152 Ill. 2d 229 (1992). only Therefore, we discuss those facts and evi necessary disposition appeal. dence to the of this Defen Fergu dant’s convictions arise from the murder of Lisa evening son. On the 17, 1987, of March defendant staying, entered the home where the beat, victim was and times, while her four- strangled multiple and stabbed her addition, defendant cousin hid in a bedroom. year-old anus. Defendant was the victim’s sexually penetrated a provided arrested and statement which subsequently admitted A defendant jury the victim. found killing murder, criminal sexual degree aggravated of first guilty sentencing At a assault, separate and home invasion. eligible for the jury the same found hearing, no further found that there were penalty, death preclude imposition sufficient to mitigating factors sentenced to death. penalty. death Defendant was affirmed defendant’s direct this court appeal, On sentence convictions, but vacated defendant’s sentencing hearing, due to the cause for a new remanded “life-qualify” jury, pur failure to the circuit court’s 719, Ed. 2d Illinois, 504 U.S. 119 L. Morgan suant v. (1992). Smith, 152 Ill. 2d at 274. On 492, 112 S. Ct. 2222 and the remand, sentencing for jury defendant waived trial again over defendant’s judge presided same murder convic death for defendant’s imposed penalty death sentence. affirmed defendant’s tion. This court (1997). On December Smith, 217, Ill. 2d People petition post- se for 21, 1995, pro filed a Hear the Post-Conviction pursuant relief conviction 1998)). (West (725 Thereaf et seq. Act ILCS ing 5/122 —1 filed an amended 6, 1997, defendant ter, on December hearing argu relief. After post-conviction for petition petition ments, the circuit court denied hearing. evidentiary without an

ANALYSIS remedy a provides Act Hearing Post-Conviction The viola claim that substantial defendants who to criminal oc rights constitutional their federal or state tions of People sentencing hearing. in trial or original curred their (1998). post- An action for 491, Towns, 182 Ill. 2d v. underlying from the appeal not an relief is conviction proceeding. judgment, Towns, 182 a but rather collateral proceeding post-conviction allows in A Ill. 2d at 502. quiry in the conviction constitutional issues involved into been, and could not have and sentence that have not adjudicated previously appeal. Towns, on direct been, 182 Ill. 2d at 502. evidentiary hearing

A not to an defendant is entitled right. People post-conviction petition a as a matter of on (1998). Hobley, 404, Rather, 2d 427-28 an evi v. dentiary hearing 182 Ill. allegations only is warranted where post-convictionpetition, supported appropri where accompanying affidavits, make ate the trial record or showing a that the defendant’s constitutional substantial rights Hobley, 182 Ill. 2d at 428. In have been violated. evidentiary hearing, determining grant whether to all well-pled petition any accompanying in the af facts Towns, fidavits are taken as true. 182 Ill. 2d at 503. A post-conviction petition trial court’s dismissal of a evidentiary hearing without an is de novo. reviewed (1998). People Coleman, 366, 183 Ill. 2d I. Timeliness of Petition Post-Conviction The did not State contends its brief petition prescribed by file his within the time limitations (725 Hearing the Post-Conviction Act ILCS et 5/122—1 (West 1998)). seq. arguments, however, At oral the State petition did, fact, concededthat defendant file his in a timely Therefore, manner. do not address this issue. we

II. Ineffective Assistance of Counsel challenges Defendant raises a series to his trial performance. guaranteed counsel’s A defendant is ef- fective assistance of at trial and at a death counsel sentencing hearing. Washington, Strickland v. 466 U.S. 668, 686-87, 674, 692-93, 2052, 80 L. Ed. 2d 104 S. Ct. (1984). claim 2063-64 To a of ineffective assis- establish prove counsel, tance deficient defendant must both 188

performance prejudice. Strickland, 466 687, U.S. at 693, 80 L. Ed. 2d at 104 S. Ct. at 2064.

In order to satisfy deficient-performance prong Strickland, a defendant must show that his counsel’s performance was so inadequate that counsel was not functioning as the “counsel” guaranteed by the sixth amendment. performance Counsel’s is measured objective competence standard of under prevailing profes Further, sional norms. in order to establish deficient per formance, the defendant strong must overcome the presumption that the challenged action or inaction may the product have been of sound trial strategy. People v. Evans, 83, (1999); 186 Ill. 2d 93 People v. 178 Ill. Griffin, (1997). 65, 2d 73-74 Matters of trial strategy gener are ally immune from claims of ineffective assistance of (1999). People West, 418, counsel. v. 187 Ill. 2d 432 In order to prejudice, establish a defendant must prove that there is a reasonable probability but for counsel’s deficient performance, the outcome of the proceeding Strickland, would have been different. 694, 698, U.S. at 80 L. Ed. 2d at 104 S. Ct. at 2068. A probability probability reasonable is defined as a is Thus, sufficient to undermine confidence in the outcome. the defendant must show that counsel’s deficient perfor mance rendered the result of the trial unreliable or the proceeding fundamentally Evans, unfair. 186 Ill. 2d at 93; Ill. 2d A Griffin, satisfy at 74. defendant must both prongs People Mahaffey, Strickland test. (2000). 154, 194 Ill. 2d If 174-75 a defendant cannot es that he prejudice, tablish suffered a court need not performance determine whether counsel’s was constitu tionally Griffin, deficient. 178 Ill. 2d at 74. Pretrial

A. Errors Defendant maintains that his counsel was ineffective a statement presenting suppress his motion to on the gave police headquarters night to the murder 17, 1987, in he confessed March which Ferguson. Lisa failed to intro- that his counsel

Defendant contends the claim that relating to corroborating testimony duce trial, defense counsel coerced. Prior to his confession was it statement, arguing that suppress moved motion, counsel In this defense support was coerced. of Palomino, defendant’s from testimony Josephine offered She stated: girlfriend. yell- police station]. the He was [at

“I heard David Smith swearing, telling police offic- ing, screaming. He was well, police of- granted I would take it for it was the ers — him, alone, get away ficers —to leave him not to touch him, calling me. I to talk to from and he was for want I to talk to Josie. I want to see Josie.” Josie. want motion, judge the trial stated: denying absolutely indicating that there was “There is no evidence case, I any physical abuse this think that out, there no pictures [of defendant] bear this that was *** photographs. Assuming physical abuse seen those *** arguendo that there were loud voices raised testimony type Petitioner does not this meet *** indicating freely the statement was not burden voluntarily given. Where a defendant has made a statement and later has consult opportunity had an to reflect on that statement and advisors, they attorneys people or other he with his be with, shortly contact realizes that his mere comes into something going enough. denial is not to be He must show else.

Well, any I in this don’t think that there is evidence case that the statement was other than free and volun- tary.” judge’s

Defendant now the trial decision argues offered would have been different had defense counsel Palomino, Josephine evidence from Rose additional trial, “I Palomino’s mother. At Rose Palomino testified: name, Josie, her let yelling calling [defendant] heard for said, Josie, Josie, get your ‘F’ing me let me see and he see hands off of me.” argument

This is waived. Rose Palomino’s testimony part record on direct appeal. Accordingly, this claim could have been Towns, raised at that time. See (issues 182 Ill. 2d at 502-03 that could have pre been waived). not, sented on direct appeal but were are However, defendant contends that his appellate counsel was ineffective for failing raise this issue on direct ap peal.

Claims of ineffective assistance appellate counsel are measured against the same standard as dealing those West, ineffective assistance of trial counsel. 187 Ill. 2d at 435. “A defendant who contends that appellate counsel assistance, rendered ineffective e.g., by failing to issue, argue must show that the failure to raise that objectively issue was unreasonable and that the decision prejudiced the defendant. Appellate counsel is not obli gated every to brief appeal, conceivable issue on and it is incompetence not of counsel to refrain raising from is which, judgment, merit, sues in his or her are without unless appraisal counsel’s of the merits is patently wrong. Accordingly, underlying unless the issues are meritori ous, defendant has suffered no prejudice from counsel’s failure to raise them on appeal. People Childress, v. 191 168, (2000); West, 418, Ill. 2d v. 187 Ill. 2d 435 People (1999) (and therein).” cases cited People Easley, (2000). 307, Ill. 2d 328-29 merits, however,

In examining the claim on the we find argument judge that defendant’s fails. The trial was clear in his that there finding assuming even were raised,” satisfy “loud voices such evidence did not of that proof defendant’s burden to show his statement not Rose Palomino’s freely voluntarily given. was and Josephine does not differ from testimony significantly Thus, testimony merely Palomino’s and is cumulative. statements, based on the trial we do not believe judge’s testimony by this additional Rose Palomino would judge his met that defendant trial the have convinced voluntary. showing was not his statement burden probability of that the outcome reasonable There was no suppress differ- have been would motion to defendant’s that he establish failed to has therefore ent. Defendant required prejudice Strickland, his inef- and as suffered claim fails. of counsel fective assistance hearing, suppression regard defen- to the same With argues for ineffective counsel was that his trial next dant testimony failing present under that defendant (PCP) gave phencyclidine at the time influence of expert failed statement, and that counsel support relating testimony To effects of PCE to the argument fact, the influence was, in under that he police station, at the he made his statement PCP when were of two friends who attaches the affidavits day murder, Efren Ramirez defendant on the attaches an addition, Ramirez. and Manuel discussing Perry of PCP how use from Dr. Bruce affidavit ability to make a free defendant’s could have affected voluntary statement. support relies to affidavits on which defendant The argument influence of PCP that he was under the showing that his to make a substantial are insufficient right has been violated. assistance of counsel to effective that, on friends stated affidavits, defendant’s In these they day murder, alcohol and smoked drank the marijuana stated that Manuel Ramirez with defendant. present in the PCP was had mentioned” that “Eddie marijuana. PCP that “there was Ramirez stated Edward pot, you the difference I can tell in the could taste it. alleged PCP Thus, evidence blindfolded.” contention Edward Ramirez’s inhalation boils down to “can tell Edward inhaled PCP because that defendant PCP] marijuana [between blind- difference reject affidavits claim that these defendant’s folded.” We “clearly prove” that defendant ingested had PCP at the time of the murder. To the contrary, we find that statement that Edward Ramirez “can tell the difference blindfolded” speculative is and insufficient to establish that defendant was under the influence of Thus, PCP if even defendant’s counsel would have presented the testimony these two defendant, friends of we do not believe the result of the suppression hearing would have differed. Defendant has not established that he suffered prejudice from his counsel’s failure to present testimony of Efren Ramirez and Manuel Ramirez. Therefore, did not receive ineffective assis- tance of counsel.

Defendant next claims that his counsel was ineffec- tive for failing any in support evidence of a motion counsel filed to suppress additional statements made defendant at his apartment. At the suppression hearing motion, on this Officer Daniel Simon and Detec- tives John McCann and John Koclanis testified af- ter leaving the crime scene 17, 1987, on March they proceeded to apartment defendant’s as part of their ho- micide investigation. they When arrived building, Officer Simon and his partner walked through a gangway argument heard an woman, between a later Palomino, identified as Josephine man, and a later identified as They defendant. went through a door at the rear of the building which led into a vestibule area. At time, the officers heard following conversation: you tonight?’

“Female: ‘Where have been Male: T have been out.’ you

Female: ‘Where tonight?’ have been Male: ‘I killed get tonight.’ saw someone Female: blood, ‘Your clothes are all full of are all full of blood. You something had to do with it.’ ” ‘I Male: did it.’ On defendant’s first direct appeal, argued that these statements should have suppressed been because the of- amendment to the United fourth ficers violated I, 6, the Illinois article section of States Constitution and they to when listened this conversation Constitution apartment no held that of defendant’s door. We outside occurred defendant fourth amendment “search” because expectation privacy in his have a reasonable of did not 2d at found that: Smith, 152 Ill. 245. We conversation. (1) conversation area where the officersoverhead the (2) were area; the area where the officers was common standing they the conversation was when overhead (4) (3) unlocked; raised; voice was and ability to their officers used no artificial means enhance they they no hear, nor did enter an area had to where legal right Smith, to be. 152 Ill. 2d at 245-46. have

Defendant now claims that his counsel should Josephine testimony at the introduced from Palomino suppression hearing. support claim, In defendant this Josephine attached an from Palomino to has affidavit post-conviction petition, in she that defen- which states “I dant said Palomino that the never did it.” also states “always apartment door locked.” Defendant now was testimony argues that had been introduced at the this suppression hearing, apart- at the the statement made suppressed. have ment would been it” find even if defendant’s statement “I did We suppressed, probability was there is no reasonable differ the outcome defendant’s trial would have been police sta ent. Defendant made another statement at confessing Ferguson which tion the murder Lisa “I it.” more detail than the mere statement did included At That statement was written assistant State’s torney, signed by at trial. As introduced opinion appeal, in our we noted on defendant’s direct overwhelming. against was See evidence light Smith, Ill. 2d that this at 269. of the fact closely case, not a balanced we concludethat there is probability no reasonable that the outcome of defendant’s challenged trial would have been different had the state ment never been admitted. Therefore, we find that de prejudice fendant suffered no as a result of the claimed Mahaffey, error. 194 Ill. 2d at 179.

B. Trial Errors a. Intoxication Defense Defendant next contends that his trial counsel failed adequately investigate evidence that supported would have an intoxication defense at trial. presented Defendant claims that had trial counsel testimony drugged as to defendant’s and intoxicated night condition on the murder, of the he would have had voluntary a basis for an affirmative defense of intoxica- jury involuntary manslaughter. tion or a instruction on According “testimony regarding [defen- defendant, to drug dant’s] ingestion and alcohol would have established voluntary the defense of intoxication and would have legal [defendant’s] culpability alleged reduced for the crime.” support argument,

In of this defendant offers the af- fidavits of Efren Ramirez and Ramirez, Manuel as well as an affidavit from Edward Ramirez. As we have previously opinion, discussed in this the affidavits of Edward and Manuel Ramirez are insufficient to establish that defendant was under the influence of POP at the time of the Moreover, murder. while Edward Ramirez’s marijuana affidavit states that he and defendant smoked day anything murder, on the of the it does not mention agree Thus, about POP we do not claim with defendant’s that the evidence contained in these three affidavits ” “establishes] that defendant was under the influence marijuana Rather, and PCP we find that the evidence specula- that defendant was under the influence of PCP is and tive inconclusive. conclusively had estab

Moreover, even if defendant day murder, the of the he had taken PCP on that lished support to insufficient would have been the evidence voluntary intoxication. People affirmative defense of (1991), Ill. 2d 43 grounds, vacated other Jackson, on (1992), the 5, 113 802, 121 Ed. 2d S. Ct. 32 506 U.S. L. heroin on he used cocaine and defendant claimed that night murders, that he several the committed day. following marijuana heroin the he used PCF expert A testified Jackson, 145 Ill. defense 2d 71. drugs. appeal, the held that it the effects of On this court jury any rational would have found did not believe that attempt defense to raise an intoxication the defendant’s 86. We the de 145 Ill. 2d at found that Jackson, credible. prob presumed to intend natural and fendant was consequence presumption acts and that such a able his supported oral state was the defendant’s written and he intent kill the ments in which stated his victim. also the detail Jackson, 145 Ill. 2d at 87. We noted that police of defendant’s recall in his statements to surroundings. acutely aware of showed that Finally, on we found that those who observed defendant night appeared of the that he to have crimes stated difficulty speaking walking. Thus, held that the no or we jury not defendant was not would have believed acting intentionally. capable Ill. 2d at 87. Jackson, jury Similarly, if case, even believed that this day murder, had used on the we PCP jury that de- cannot conclude that the would have found the the victim. fendant did not intend to cause death of police, stated that he In his statement to the initially defendant apartment to the victim was went the where staying victim a he learned that the to steal VCR.When home, he left. that he then “walked Defendant stated was *** go to the then decided to back around for while why apartment,” he went back and that “he didn’t know to up apartment the that he except must have intended to kill [the victim].” Defendant was to recall able the events of the murder giving when his statement.

Further, those who were defendant on the night of the murder stated he did that not appear overly Max brother, intoxicated. Ferguson, victim’s testified that he saw defendant at Bucko’s tavern on the evening of the murder and he did see him slurring not his speech, or swaggering stumbling, but that he noticed only that defendant “being was loud.” Carlos testified Moya evening murder, on the of the although ap- defendant peared to “under be the influence” of alcohol because his clear, words not completely appear were he did not to be intoxicated. Juanita Soto testified that defendant was at a bar before murder and that was “feeling defendant good,” intoxicated,” “somewhat “you and that could say” words, that he was slurring but that was not stumbling swaying. Simon, or Officer patrol one officers who assisted in the homicide investigation, testi- fied p.m. murder, that around 10 the night on de- not appear intoxicated, fendant did but rather “seemed in every respect. normal There was no speech, slurred no *** bloodshot eyes staggering stumbling” no or and no smell Simon of alcohol. Officer stated that defendant did not be appear drugs. to under the influence of any Finally, Attorney assistant State’s who took drafted night defendant’s statement on the of the murder wrote appeared be free to from the effects of drugs alcohol and and testified he did while not defendant, ask specifically “there was no overt notice” that defendant was under the influence.

Defendant relies on Ill. People Wright, 111 2d 18 (1986). however, inapposite is to the case at bar. Wright, Wright, evidence existed show that murder, convicted, was not which she guilty but involuntary manslaughter rather of due her intoxica- daughter. killed her at the time that she shot and tion evidentiary hearing Wright, At on 2d at 29. the Il. petition post-convictionrelief, for defendant’s defendant’s attorney of raise the defense testified that he did not thought “the of that intoxication because defense *** you to the is that have to be drunk drunkenness you facts.” found that no recall of the We extent have misapprehension not that this was a of law and was Wright, strategy. 2d 111 Ill. the result of trial tactics or evidentiary hearing on Moreover, at 27. at the “ judge post-conviction petition, the ‘the trial stated that say I a different, and can outcome would have been certainty case, because I heard the the outcome would had I the evidencethat I heard have been different today. heard judgment guilty in I rendered a would have ” voluntary manslaughter.’ Wright, 111 Ill. 2d at 31. We that, a determined that this was “classic demonstration” performance, the but for counsel’s deficient result of Wright, 111 trial would have Ill. 2d at 31. been different. nothing suggests Wright, case at Unlike in the bar regard- that defendant’s counsel misunderstood law voluntary ing simply enough intoxication. There was not voluntary support to a evidence defense of intoxication. Any regard is evidence with to defendant’s intoxication speculative majority fact, inconclusive. In of the that intoxi- evidence tends to show defendant not Therefore, cated he committed the murder. we do when Wright pertinent find not to be to the case bar. light evidence, that, In believe as in all of the we apparent. Jackson, is De- evidence of defendant’s intent prejudice fendant has that he suffered not established present support in from his counsel’s failure evidence voluntary required by defense, as Strick- of a intoxication had offered the evi- land. Even if defendant’s counsel that seeks, cannot conclude dence we probability is a result there proceeding reasonable have been different. would Insanity b. Defense argument, In a related defendant claims that counsel failing insanity was ineffective for defense. support contention, of this af- attaches an Perry, degree psychiatrist fidavit from Dr. Bruce with a neuropharmacology, opinion, which states PCP); drugs (especially intoxicated “was with responding processes adequate he was to internal without reality. operating ties to In essence was under a condi- judg- disturbance,” of tion extreme mental and that his “severely impaired” ment was at the time of the murder. argues affidavit, Defendant that this with combination presented the evidence that defense counsel at resentencing hearing, supports the contention his requested counsel should have a bifurcated and trial presented insanity along an with defense the defense theory presented trial. hearing, resentencing George

At Dr. Sa- completed varese, a licensed clinical a social worker who comprehensive psycho-social developmental history of defendant, testified based on two interviews with family defendant and review interviews friends, he concluded that defendant had a “borderline personality disorder.” Savarese further testified it “very [defendant] slipped was feasible that could have [a] during psychotic into In transient state” the murder. describing psychotic is, what a “transient state” Savar- ese stated: *** decompensate psychotic

“an into a individual can state they’re obviously actually on a continuum from normal to insane, and most individuals fall somewhere the middle *** probably although psychotic, borderline not particu- is itself, larly in [an and of individual with borderline personality slip psychotic disorder] can into a state where they’re detached at for a completed least limited amount reality.” time from insanity This evidence not constitute substantial does a “[a] states that Code of 1961 The Criminal defense. if at the for conduct criminally responsible is not person disease or conduct, a result of mental such as time of appreciate to defect, capacity he lacks substantial mental 2(a) (West ILCS of his conduct.” 720 criminality 5/6 — 1998). reasonable prove beyond must a Though State charged, “the burden element of the offense doubt each and convinc- by clear prove is on proof is not reason of guilty that the defendant ing evidence 2(e) (West 1998). insanity.” 720 ILCS 5/6 — (2000), the defen Wilson, 191 Ill. 2d 363 People failing dant claimed that his counsel was ineffective for insanity defense. Evidence investigate epilepsy, that defendant suffered from suggested mildly may suffering retarded and have been probably at the from an extreme mental or emotional disturbance evi time of the murder. We held that sum of this attorney dence have on placed would not reasonable “noth insanity notice that an defense was viable because any in defendant’s records indication that ing provides problems legal his mental would meet the definition of Wilson, insanity.” 191 Ill. 2d at 372. Wilson,

As in we find that defendant’s “borderline not rise to the level of insan- personality disorder” does to enter the the victim ity. apartment order where was to be the victim’s brother. staying, pretended committing murder, After the defendant went to his his clothes. apartment and tried to wash the blood out of criminality Clearly, person appreciated this is a who Therefore, we find that defendant’s of his conduct. failing not ineffective for an insan- counsel was ity defense. Closing Argument

c. Prosecution his trial counsel was Next, defendant contends that for to a of the State’s failing object portion ineffective Though defendant’s trial. this closing argument during argument is waived due to defendant’s failure to raise it on direct appeal, avoids the waiver rule arguing appellate counsel was ineffective for raising the issue on appeal. Whitehead, See v. People (1996). 355, Ill. 2d 371-72 murder,

After the the victim was found lying face- on down the kitchen floor of the apartment where she staying. was Her shirt pulled was above her waist and her pants and underwear were pulled away body from her and caught right around her ankle. The victim’s naked buttocks were on a lying curling iron.

During closing argument, prosecution stated: biga why curling [sic] “Counsel makes tado about iron Well, was not gentlemen, uncovered. ladies and I submit to you in their years wildest dreams after all their of experi- ence, thought curling [sic] would never have this iron could have been used such a horrible fashion as this Defen- perhaps using hindsight, dant used it. So that curling important then, iron has become you more than it was but [sic], gentleman, can insure ladies and this is not an situation, ordinary ordinary way this is not an to use a curling iron.”

Defendant argues that because the State no presented “conclusively evidence that established” that defendant forcibly penetrated iron, the victim’s anus a curling argument improper.

A prosecutor given great is latitude in making closing (2000). arguments. Blue, 99, 189 Ill. 2d People 127-28 A comment prosecutor may on the evidence and all rea Blue, sonable inferences from the stemming evidence. Ill. An argument purpose 2d at 127. that serves no however, Blue, other than to inflame the jury, is error. 189 Ill. 2d at 128. trial, Jones, Nancy pathologist

At Dr. a forensic who body examined the victim’s after her death testified: “A tear by separation laceration is a of the skin caused pulling. These were located around the circumference of anus, the I checking [the victim’s] anus. While noticed bloody that there was some fluid gaping; it was lac- and also that there was a tear or opening within the lining mucosa or the eration inside the anus the the of the rectum.” Jones also testified surface entry a injuries victim’s would be consistent with forced iron, object an by object curling of the anus such as iron, or size as a or a shape curling penis. of the same addition, pictures In the State introduced several In the facedown pictures, lying the victim. those victim is floor, waist, her her her pulled on the shirt above jeans pulled away body and underwear from her and ankle, her caught right around her lower torso and on a lying curling Gaynor, buttocks iron. Officer Sharon scene, one the police first officers to arrive testi- victim fied that she found the in that manner. record,

From the statements made the prosecu- tor during closing argument were a reasonable inference from the evidence. Jones testified that the victim’s injuries entry were consistent with forced of the victim’s Further, anus aby curling photographs published iron. jury to the the victim’s showed lower torso and buttocks lying on a curling iron. Linscott,

Defendant’s reliance on v. People Ill. 2d (1991), McCollum, 239 Ill. People App. 3d 593 (1992), Linscott, is In misplaced. the State introduced ev idence that the defendant’s hairs were consistent with hairs found at the scene of the crime. The State’s wit ness stated that one could not determine from whose came, head found only the hair at the crime scene but that the In hair was consistent with the defendant’s hair. total, they three witnesses testified that could not the defen conclusively identify coming the hairs as from however, closing argument, prosecutor dant. argued repeatedly that the defendant’s hair was found and on her This court held apartment body. victim’s there to support because was no evidence these statements, prosecution’s argument improper. McCollum, People (1992), App. 239 Ill. 3d 593 clearly

the misstated the evidence adduced at prosecutor argument The in that prosecutor closing trial. stated match” tire found there was a “definite between marks crime and tires to the belonging near the scene of the the testimony defendant’s car. The at trial did not establish “matched,” that the tire that prints only they but McCollum, each other. 239 Ill. 3d at App. resembled 599. Moreover, stated that found on a prosecutor the blood glove belonged the defendant’s car to the victim. The however, testimony trial, at did not establish that victim, blood came from the but rather that the blood general could have come from the victim or 40% of the to population. prosecutor improperly appealed The also argued of the and the defendant’s passions jurors propensity, convictions to show when those convictions purpose were introduced trial for the limited McCollum, 239 Ill. 3d at 600. The impeachment. App. separately, court noted when viewed the comments McCollum, Ill. would not constitute reversible error. However, 3d at 597. the court found that the total App. of the comments did constitute reversible ity improper McCollum, error. 239 Ill. 3d at 597. App. McCollum, Linscott and

Unlike the situations in the case at bar did not misstate the evi- prosecutor argued dence. The reasonable inferences that prosecutor the evidence adduced at trial. There- supported by were fore, defendant’s counsel not ineffective for appellate argument to raise this on failing appeal.

C. Errors Sentencing sentencing, With to defendant first contends regard failing his trial counsel was ineffective for at his investigate present mitigation testimony contends that resentencing hearing. Initially, evidence investigate his counsel failed to under the influence of PCP on that defendant was day relating of the murder and evidence to the effects support argument PCE In that he was under the murder, influence of PCP at the time of the again offers the affidavits of the three friends who were day murder, with defendant on the Manuel Ramirez, Efren Ramirez and Edward Ramirez. initially

We note that defendant’s claim that trial speak any counsel “did not even of the individuals [defendant] day” entirely was with that is not cor- spoke rect. Manuel Ramirez states in his affidavit that he investigators working for defense counsel. Efren they and Edward Ramirez do not state whether or not spoke with defense Therefore, counsel or his team. we cannot assume that defense counsel failed to interview these witnesses.

Further, concluded, as we have the affidavits from regarding alleged defendant’s friends his use of PCP is speculative and insufficient to establish that defendant George was under the influence of PCE Savarese testi resentencing hearing fied at defendant’s that defendant’s friend Efren Ramirez mentioned that defendant had marijuana day smoked that was laced with PCP on the of being speculative, Thus, murder. in addition to lacking evidence that defendant claims was is cumula Accordingly, judge tive. we find even if the had heard the additional evidence from friends, defendant’s probability there is no reasonable the result of sentencing defendant’s would have See, been different. (2000); 312, 189 Ill. 2d e.g., Mitchell, v. 354-55 People (1996). 472, 169 Ill. 2d People Sanchez, 490-91 Defen prejudice dant cannot establish that he suffered as a present result of counsel’s failure to additional evidence day of defendant’s PCP murder, and, use on the as result, a his ineffective assistance of counsel claim fails. Thus, defendant has failed to establish that his defense failing present counsel was ineffective for evidence as to the effects of PCE his trial counsel was inef-

Defendant also claims that complete picture “to a of David failing present fective for at defendant’s resen- upbringing” tumultuous Smith’s claims that tencing hearing. Specifically, (1) evidence that: defen- presented counsel should have (2) him; him defen- disciplined by whipping father dant’s his verbally step- abused physically dant (3) in a mother; 10, engaged age at (4) baby-sitter; relationship 18-year-old with his sexual siblings with his as defendant was forced to take baths (5) a adolescent; when defendant was sent to deten- (6) home; center, did not want to return tion drugs, including him to defendant’s brother introduced Defendant PCP, years age. was 15 when defendant sister, father and the affidavits from his points to new facts. his son that establish these mother of trial contention that his with defendant’s disagree We defendant’s a complete picture counsel failed to hearing, his resentencing At defendant’s upbringing. testimony of State to the stipulated counsel and the Smith, given which was brother, James testi- hearing. James Smith sentencing defendant’s first did love them like she their not stepmother fied that a children, “the were punishments her own loved children, all the includ- different,” that she struck little defendant, she hit them with broom and that ing liked the Moreover, that defendant he testified handle. than he was sent more detention center where juvenile use, James drug to defendant’s regard home. With drank, marijuana smoked testified that defendant Smith school or junior high in late beginning “acid” and took aware personally and that he was early high school on. Defen- years age from 17 defendant’s use of PCP and acid marijuana also testified to his dant’s mother use. hearing, Savarese resentencing

During defendant’s comprehensive psychosocial developmental testified to a history completed. complete of the defendant which he To evaluation, Savarese reviewed interviews with mother, father, defendant’s half-brother and sister. He according siblings, testified to defendant’s defen- “very dant’s father was abusive” that “there was physical abuse.”

Savarese also testified that defendant’s father admit- ted that he beat defendant with a belt on his back and legs, and that defendant’s sister stated that their stepmother would hit defendant board, with a one time breaking even it on him. He also testified that defendant’s pairs up sister stated that “we had to take baths until years Finally, the time I that was 15 old.” Savarese testi- drug stating fied about use, that defendant experimenting early drugs “had been on with in the beginning years around 11 old, or 12 and that he had variety anything used a of substance, LSD, PCP, from marijuana, hallucinogenic cocaine, alcohol, heroin, acid, mushrooms.”

The resentencing evidence offered at defendant’s hearing presented establishes that defense counsel complete picture upbringing. of defendant’s The informa lacking tion presented that defendant claims was through testimony Any of his brother and Savarese. testimony regarding additional defendant’s childhood would have been cumulative. There is no reasonable probability that introduction of this cumulative evidence would have altered the result of defendant’s resentenc ing hearing. e.g., See, Mitchell, 189 Ill. 2d 354-55; Sanchez, 169 Ill. 2d at Thus, 490-91. defendant’s claim that he received ineffective assistance of counsel fails.

Defendant next claims ineffective assistance of investigate counsel for his trial counsel’s failure to aggravating witnesses to rebut evidence of defendant’s conduct while incarcerated. Defendant of employees Department that two Illinois

argues Corrections, Margherio Ellinger, Charles and Robert to testify positive should have been called to defendant’s in af- prison. Specifically, presents behavior defendant (1) from state that: employees fidavits those two which behavior, good polite, exhibited was did not (2) authority; respect cause and showed for problems, a ticket; never Margherio disciplinary wrote (3) Margherio adjust that defendant could and believed not danger well to incarceration and would be a to other inmates. resentencing hearing, his counsel and

At defendant’s testimony Timothy Martin, stipulated the State to the who testified defendant’s first sentenc- jail supervisor volun- hearing. Martin testified that defendant was a ing satisfactory, worker that his work was prison, teer workers, along the other volunteer that got that with courteous, and polite, helpful, cooperative, he was and gang, that he was not in a but rather associated involved out Martin stayed other inmates who of trouble. disciplinary that wrote defendant a also stated he never ticket, prison, that a Christian while defendant became and his faith he attended Bible studies “witnessed” that inmates, kept that he himself and area to other that, defen- Finally, opinion, testified in his neat. Martin in an set- would be to succeed institutionalized dant able ting. claims we find that the evidence defendant

Again, everything is cumulative. Martin testified to lacking stated in Ellinger Charles and Robert Margherio fact, much more Martin testified to their affidavits. pre- He good behavior. cooperation than defendant’s commitment sented evidence on defendant’s new activ- gang and his lack of Christianity while incarcerated ev- nature of this find to the cumulative ity. We due idence, probability there is reasonable no proceeding dif- outcome would have been Therefore, ferent had his counsel introduced it. defen- failing dant’s not counsel was ineffective for this additional evidence. People Orange,

Defendant relies on 168 Ill. 2d 138 (1995), (1994), People Thompkins, v. 161 2d 148 Ill. support to his claim that he should have received an evi dentiary hearing to due his counsel’s failure to introduce Orange, mitigating pre In evidence. defense counsel mitigation. Orange, sented no in at witnesses 168 Ill. 2d 166. Such is not the case here. Defendant’s counsel here significant mitigation offered a amount in on of evidence defendant’s behalf. People Thompkins,

Moreover, in 161 v. Ill. 2d 148 (1994), presented only defense counsel one witness at the sentencing hearing defendant’s defendant’s wife. —the sup in that Counsel case submitted letters in numerous port people defendant, of the but those letters came from appear Signifi who not to did know the defendant well. cantly, case, in that the defendant a submitted number of family they of his affidavits and friends who stated that prior were not contacted defense counsel to sentencing hearing. Thompkins, Here, 161 Ill. 2d at 166. presented noted, as defendant’s counsel several witnesses resentencing hearing. on defendant’s behalf at the Sava spoke rese, behalf, on who testified defendant’s with potential all almost witnesses that defendant provided mitigating claims could have evidence and of testimony fered about those The interviews. evidence provide any that defendant claims was to absent fails mitigation Rather, substantial additional evidence. as indicated, much of the information the affidavits is cumulative. agree

We cannot that defendant’s contention but for his counsel’s failure to evidence of other mitigating factors, defendant would not have been heard, aggravation, In the trial court

sentenced to death. alia, inter “glad” stated that he was that her had he “didn’t want to live victim died because Moreover, the remembering how bad he had beaten her.” heard evidence that the victim suffered least 29 court wounds, two incised blunt trauma three stab injuries, bruises, wounds, hemorrhages, numerous abrasions which consistent with forcible injuries and anal were sentencing anus. penetration her he this death, trial stated that believed case judge not be brutal” and could remember “exceptionally aggravated. We find that where the facts were more case have lacking would complains evidence defendant minimal sentencing hearing. impact had true, we Thus, all of the affidavits as believe taking even denied defendant eviden properly the trial court to make a substantial hearing. Defendant has failed tiary were rights that his constitutional violated. showing (1998). 404, Ill. People Hobley, 2d the Constitutionality III. of Illinois Penalty Death Statute arguments challenging the Defendant makes several penalty of the Illinois death statute. constitutionality waived; these claims were circuit court held that The was however, that his counsel argues appellate for failure raise issues on direct ineffective to these rejected arguments the previously This court has appeal. statute is unconstitutional penalty the Illinois death aggravating nonstatutory it to limit the because: fails sentencing may by be considered factors which Williams, 193 Ill. 2d 306, People v. (see, e.g., authority (2000); findings to written require 374-75 it fails (see, e.g., nonstatutory factors regard aggravating to (1997)); Cloutier, 141, it v. places Ill. 173-74 People 2d Williams, e.g., (see, in the judicial prosecutor a function 375); to 2d at and it shifts 193 Ill. proving ap

burden a than is of sentence other death 376). (see, propriate e.g., Williams, 193 2d at Defen Ill. compelling or dant offers no new reasons for reconsidera Therefore, tion of these decisions. defendant’s counsel failing for to not ineffective raise these issues.

CONCLUSION judgment stated, For the reasons we affirm the dismissing post- circuit court defendant’s amended petition evidentiary hearing. conviction without an We setting direct the clerk this to of court enter order Wednesday, 28, 2001, March as the on date which the sentence death entered the circuit court Cook County shall be carried out. Defendant shall be executed (West provided by in the manner law. 725 ILCS 5/119—5 1996). copy The clerk of this shall court send certified of the mandate in this case to the Director of Correc- tions, Center, warden of Tamms Correctional and to the warden of the institution where defendant is now confined.

Affirmed. part concurring HARRISON, CHIEF JUSTICE in dissenting part: agree I that Smith’s convictions should not be my view, however, disturbed. his sentence of death cannot be allowed stand. For the reasons set forth my partial People partial concurrence dissent in (1998), penalty Bull, Ill. 2d 179 the Illinois death law eighth violates and fourteenth amendments to the (U.S. United Const., VIII, States Constitution amends. XIV) I, and article 2, of the Illinois section Constitution (Ill. 2).§ 1970, I, Const. art. Smith’s sentence death should therefore be vacated and he should be sentenced (West imprisonment. l(j) to a term 720 ILCS 5/9 — 1998).

Case Details

Case Name: People v. Smith

Court Name: Illinois Supreme Court

Date Published: Dec 1, 2000

Citation: 745 N.E.2d 1194

Docket Number: 86775

Court Abbreviation: Ill.