The PEOPLE of the State of Illinois, Appellee,
v.
Elton WILLIAMS, Appellant.
Supreme Court of Illinois.
*451 Charles M. Schiedel, Deputy Defender, and Kathryn Saltmarsh, Assistant Defender, Office of the State Appellate Defender, Springfield, for appellant.
James E. Ryan, Attorney General, Springfield, and Jeffrey J. Tomczak, State's Attorney, Joliet (Joel D. Bertocchi, Solicitor General, and William L. Browers and Colleen M. Griffin, Assistant Attorneys General, Chicago, of counsel), for the People.
Justice GARMAN delivered the opinion of the court:
Petitioner, Elton Williams, was convicted following a jury trial of the first degree murder of police officer Timothy Simenson and sentenced to death. This court affirmed his conviction and sentence on direct appeal. People v. Williams,
In this appeal, he argues that the circuit court erred by dismissing three of his postconviction claims: (1) that juror misconduct deprived him of a fair trial; (2) that trial counsel was ineffective for failing to present expert testimony at the aggravation/mitigation stage of the sentencing hearing that would have linked his childhood history of abuse to his adult behavior; and (3) that appellate counsel was ineffective for failing to raise a claim pursuant to Batson v. Kentucky,
Subsequent to the filing of this appeal, but after this court heard oral argument and took the matter under advisement, the Governor commuted petitioner's death sentence to life imprisonment without the possibility of parole or mandatory supervised release. Commutation removes the judicially imposed sentence and replaces it with a lesser, executively imposed sentence. People ex rel. Johnson v. Murphy,
This court has previously described the facts underlying petitioner's conviction in our opinion on his direct appeal. Williams,
ANALYSIS
The Post-Conviction Hearing Act provides a remedy to a criminal defendant whose federal or state constitutional rights were substantially violated in his original trial or sentencing hearing. People v. Towns,
Postconviction proceedings in capital cases are governed by section 122-2.1 of the Act (725 ILCS 5/122-2.1 (West *453 1998)), which requires the circuit court to determine initially "whether the petitioner, if indigent, wants to be represented by counsel. After the petitioner makes that choice, the matter is then docketed for further proceedings." People v. Thomas,
This court acquired jurisdiction over the present case because petitioner was under a sentence of death at the time he filed his notice of appeal from the denial of his postconviction petition. Oral arguments were heard in September 2002, and the matter was taken under advisement. After petitioner's sentence was commuted, this court issued an order retaining jurisdiction. Although petitioner is now serving a life sentence, we continue to have jurisdiction. In the interest of judicial economy, we choose to dispose of this matter, rather than transfer it to the appellate court.
Because the circuit court dismissed petitioner's claims without a hearing on the basis that he failed to make a substantial showing of a constitutional violation, our review of the issues raised in this appeal is de novo. People v. Coleman,
A. Juror Misconduct and Denial of Discovery
The investigator employed by postconviction counsel was able to identify 7 of the 14 jurors (12 jurors and 2 alternates) who were present for petitioner's trial. He spoke to several of them and left his card with others with a request that they contact him for an interview. One juror, John Sinadinos, provided the affidavit that is the basis for the claim of juror misconduct. In his sworn statement, Sinadinos described an exchange that he had with another juror during the trial. The other juror mentioned that she "had a conversation" with her husband about one of the issues in the case. When a third juror commented that they had been instructed not to discuss the case with others, she responded that it was "hard not to."
The circuit court denied petitioner's motion for discovery of the names and addresses of unidentified jurors. In addition, the circuit court ordered defense counsel and his investigator to cease their efforts to contact jurors directly, based in part on an assertion by the State that several jurors had contacted the State's Attorney's office because they were upset by the investigator's request for an interview.
*454 In response to a suggestion by the State, the circuit court ordered the jury commission to send a letter to the jurors explaining that petitioner's attorney wished to speak to them. The letter further stated that the jurors had a right to speak to the attorney as well as "the right to be left alone." The jurors were instructed to call a certain telephone number if they were willing to be interviewed. They were also told to call the chief judge's office "immediately" if they were "contacted by any attorneys involved in the current proceedings." If they were not willing to be interviewed, the jurors did not need to respond to the letter. "The choice is yours," the letter emphasized. The letter was reviewed and approved by the circuit court before mailing.
Petitioner objected to the use of the letter, arguing that the wording sent an implied message that the jurors should not respond. This court denied his petition for leave to file a petition for a writ of prohibition to prevent the mailing of the letters, as well as his motion to issue a supervisory order to vacate the circuit court's order banning any further contact with the jurors. The letters were sent; none of the jurors responded.
Because none of the jurors came forward voluntarily and because counsel and the investigator were prohibited from making any further efforts to contact the jurors directly, petitioner filed a motion to depose the jurors. The circuit court denied this motion.
Neither the discovery rules for civil cases nor the rules for criminal cases apply to proceedings under the Act. People ex rel. Daley v. Fitzgerald,
Petitioner asserts that the Sinadinos affidavit demonstrates that at least one juror failed to follow the trial court's instruction that she not discuss the case with anyone. This information, he claims, is sufficient to demonstrate good cause, specifically, the possibility of an improper outside influence on the juror in question, who has not yet been identified. He argues that a finding of good cause is implicit in the circuit court's order that the jurors be contacted by letter. As such, he argues that it was error to deny his request to discover the names and addresses of the jurors. The error was compounded, he asserts, by the limitation placed on his ability to make any additional efforts to identify and contact the jurors on his own.
The State argues that the circuit court's decision to send the letters was not an indication that it found good cause and that the order prohibiting further contact with jurors was justified. Finally, the State asserts that the Sinadinos affidavit, standing alone, does not demonstrate good cause to allow discovery of the identities of the jurors.
Our review of the record does not reveal either an explicit or an implicit finding of good cause. The circuit court, after denying numerous other discovery motions and agreeing to an in camera inspection of certain records to determine whether they *455 should be made available to petitioner, said:
"Now, that leaves me with the motion for jury records. Before I get to that, I should say with regards to all of the motions that I have denied thus far, there have not been sufficient showings in the Court's mind, to satisfy the Court that discovery sought and denied should be entered into.
Discovery is not meant to be a fishing expedition. Where legitimate issues can be investigated and developed, that's fine. But where no basis is provided to show the existence of legitimate issues we are not going to engage in Monday morning quarterbacking * * *.
That's not the purpose of post-conviction petitions. Mere allegations of abuse or improper conduct are insufficient to constitute a basis for discovery."
The circuit court then announced its intention to order the jury commission to send a certified letter to the jurors, informing them that petitioner's attorney wanted to talk to them. We do not find anything in these comments to suggest a finding of good cause. Indeed, the circuit court explained that its intention in sending the letters was to protect the jurors from unwanted intrusion, not to facilitate discovery of the juror's identities.
Further, our review of the transcript reveals that the reasons offered by counsel for discovery of the identities of the jurors included not only the conversation described in the Sinadinos affidavit, but also the allegation that a witness had seen unnamed jurors reading newspapers during a recess in the trial. In addition, counsel mentioned "outbursts in the courtroom," comments made from the gallery, incidents in which spectators made comments to petitioner, and spectators wearing police uniforms or buttons in memory of the victim. Counsel argued that "[w]ithout talking to each one of the jurors" he would be unable to determine what they noticed: "Did they see it, hear it, things like that?" Further, "We do have information that there was [sic] things going on in the gallery and in the courthouse that could have affected the jurors." "[W]ithout talking to them," he argued, "[w]e have no way of knowing."
Counsel admitted that the identities of the jurors were being sought so that they could be asked what they read, whom they talked to, and what they observed during the trial that might have influenced their deliberations. Thus, petitioner's effort to discover the identity of the jurors was precisely the type of "fishing expedition" that our rule in Fair was designed to avoid. We, therefore, conclude that the circuit court's denial of the request for discovery of juror names and addresses was not an abuse of discretion.
We further conclude that the circuit court did not abuse its discretion by restricting further efforts by counsel and the investigator to contact the jurors directly. The investigator had already identified and contacted seven of the jurors. According to petitioner's brief, a few of these individuals spoke to the investigator. Of those who did not, several called the State's Attorney's office seeking advice and were told that they did not have to talk to the investigator. Their unwillingness to discuss the details of their jury service was made clear by their lack of response to both the investigator's inquiry and the jury commission letter. Further contact with these individuals would have been intrusive and unjustified. The circuit court did not abuse its discretion by acting to protect them from further unwanted contacts.
As to the other jurors, the investigator was unable to identify them by name or to *456 obtain their addresses. Therefore, an order that the investigator and counsel not contact these individuals cannot have affected petitioner's ability to present his claim of juror misconduct.
Discovery issues aside, petitioner argues that the circuit court erred by dismissing his claim of juror misconduct without an evidentiary hearing. He relies on our decision in People v. Hobley,
In Hobley, we acknowledged the long-standing rule that a jury verdict is not subject to impeachment by the testimony of a juror. Hobley,
"`[If it is] established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication [then] all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation—to the destruction of all frankness and freedom of discussion and conference.'" Tanner v. United States,483 U.S. 107 , 119-20,107 S.Ct. 2739 , 2747,97 L.Ed.2d 90 , 105-06 (1987), quoting McDonald v. Pless,238 U.S. 264 , 267-68,35 S.Ct. 783 , 784,59 L.Ed. 1300 , 1302 (1915).
This rule, which prevents admission of juror testimony to impeach the verdict, does not preclude admission of juror testimony offered as proof of improper extraneous influences on the jury. Hobley,
The distinction between "motive, method or process" and an improper extraneous influence was illustrated in Hobley. We determined that Hobley was not entitled to an evidentiary hearing on his claim that he was prejudiced by the conduct of the jury foreperson during deliberations, despite allegations that he intimidated the other jurors. Hobley,
We did, however, determine that Hobley was entitled to an evidentiary hearing on his claim that jurors were affected by an incident that occurred in the dining room of the hotel where the jury was sequestered. Hobley,
Because this incident involved "prejudicial outside influences" on the jury, an evidentiary hearing was warranted. Hobley,
"`"It is well settled in Illinois that any communication with a juror during trial about a matter pending before the jury is deemed presumptively prejudicial to a defendant's right to a fair trial. Although this presumption of prejudice is not conclusive, the burden rests upon the State to establish that such contact with the jurors was harmless to defendant."'" Hobley,182 Ill.2d at 460 ,231 Ill.Dec. 321 ,696 N.E.2d 313 , quoting People v. Mitchell,152 Ill.2d 274 , 341,178 Ill.Dec. 354 ,604 N.E.2d 877 (1992), quoting People v. Harris,123 Ill.2d 113 , 132,122 Ill.Dec. 76 ,526 N.E.2d 335 (1988).
We rejected the State's contention that Hobley was required to submit juror affidavits stating that the incident in the hotel actually prejudiced one or more jurors against defendant. Hobley,
Petitioner likens the conversation recounted in the Sinadinos affidavit to the incident in the dining room involving the Hobley jurors. He argues that the unidentified juror's conversation with her husband about an issue in the case, in violation of the judge's instructions, is a similar improper extraneous contact. He asserts that he is entitled to an evidentiary hearing because, according to Hobley and Mitchell, the contact must be deemed presumptively prejudicial.
We disagree. The lesson of Hobley is that a juror affidavit alleging exposure to "prejudicial outside influences" (emphasis added) (Hobley,
The Sinadinos affidavit contains nothing more than the mere assertion that an improper conversation occurred. The affidavit contains no information about the nature of the conversation. That is, it offers no evidence that the alleged conversation was prejudicial in any respect. Indeed, the juror may have been the one doing the talking while her husband simply listened. The husband may have made remarks that were critical of the judge or of the prosecution. The "issue" discussed *458 may have been the decision not to sequester the jury or how long the proceedings should go on each day. In sum, the Sinadinos affidavit establishes only that a member of the jury was having difficulty overcoming the temptation to discuss the case with her husband. It does not establish that the improper conversation was prejudicial in nature.
In considering this issue, we must also keep in mind that the case is before us on appeal from the dismissal of a postconviction petition. In this proceeding, the petitioner has the initial burden of making a showing of a substantial violation of his constitutional rights. Orange,
Construing the allegations in the petition and the affidavit in favor of petitioner, and taking all well-pleaded facts as true (Ward,
B. Ineffective Assistance of Appellate Counsel—Batson Violation
Of the five African-American venirepersons, four were excused for cause. Petitioner argues that appellate counsel was ineffective for failing to raise a Batson claim as to the State's use of a peremptory challenge to remove the only remaining African-American member of the venire, Warren King. The postconviction petition was accompanied by an affidavit of appellate counsel, in which counsel acknowledged that he was aware petitioner wanted him to raise the Batson issue on direct appeal, but that he had refused to do so. Counsel did not explain the basis for his decision.
The circuit court dismissed this claim, concluding that after a thorough investigation of the law and the facts, appellate counsel made a strategic decision not to raise the Batson claim and that such a decision is virtually unchallengeable on appeal. Strickland v. Washington,
Appellate counsel is not required to argue every conceivable issue on appeal. Rather, counsel must exercise professional judgment to select from the many potential claims of error that might be asserted on appeal. See People v. Tenner,
Batson established a three-step procedure to determine whether the State's use of peremptory challenges resulted in the removal of venirepersons on the basis of race. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. People v. Munson,
In the present case, defense counsel objected to the State's use of a peremptory challenge to excuse King. Without waiving its objection that defense counsel had failed to establish a prima facie case, the State offered six reasons for excluding King from the jury: (1) he did not list his birthdate in the space provided on the juror questionnaire, (2) he did not appear to be paying attention during voir dire, (3) he seemed to avoid eye contact with the court and either attorney, (4) the prosecutor did not like his demeanor or "body language," (5) he had "an exceptionally hard time understanding the Witherspoon questions" (see Witherspoon v. Illinois,
Petitioner argues that only two of these reasons, the confusion regarding the Witherspoon questions and the death of King's father, are objective factors. The rest are subjective assessments that should be given close scrutiny because such perceptions may easily be used as a pretext for discrimination. See People v. Wiley,
In addition, King was not the only member of the venire to suffer the death of a family member during jury selection. A white female venireperson also asked to be excused for half a day to attend the funeral of a family member. She was not questioned by the State about her relationship to the deceased or about any effect the death might have had on her ability to deliberate. The State did not use one of its peremptory challenges to remove her. King, however, was asked about his emotional *460 state following the death of his father, and he stated that his ability to serve as a juror would not be affected.
We have previously held that the State's exclusion of a minority venireperson based on a certain characteristic, while accepting a white venireperson who shares the same characteristic, does not necessarily show that the State's explanation is pretextual. People v. Young,
"The State's purposeful discrimination is not automatically established by the mere coincidence that an excluded juror shared a characteristic with a juror who was not challenged. The excluded juror may possess an additional trait that caused the State to find him unacceptable, while the juror who was not challenged may possess an additional characteristic that prompted the State to find him acceptable to serve as a juror. [Citation.] `[A] peremptory challenge is based on a combination of traits, and a juror possessing an unfavorable trait may be accepted while another juror possessing that same negative trait, but also possessing other negative traits, may be challenged.'" Wiley,165 Ill.2d at 282-83 ,209 Ill.Dec. 261 ,651 N.E.2d 189 , quoting Mitchell,152 Ill.2d at 295 ,178 Ill.Dec. 354 ,604 N.E.2d 877 .
In People v. Easley,
The defendant argued that each of these reasons was a mere pretext for racial discrimination. The individual had explained during voir dire that he did not know of his childrens' convictions because they had not lived with him for 20 years. Easley,
As to the gang activity in the individual's neighborhood, we noted that using this fact as a basis for excluding venirepersons could result in a disproportionate impact on minority jurors. Easley,
With regard to the prosecutor's concern with the individual's demeanor, we noted that although demeanor is a legitimate race-neutral reason for exercising a peremptory challenge, such explanations must *461 be closely scrutinized. Easley,
In the present case, King and one of the accepted jurors shared the single trait that each experienced the death of a family member while jury selection was taking place. Even if we assume, arguendo, that the family relationships were equally close and that both individuals were equally likely to be affected by their loss, King and the female juror were not similarly situated. He required that four of the Witherspoon questions be repeated; she asked for one question to be repeated. Nor was King similarly situated to the other jurors who asked that questions be repeated. None of them had just experienced the death of a parent. In addition, King was distinguished from the accepted jurors by the fact that he did not completely fill out his juror questionnaire.
In sum, we conclude that appellate counsel's decision not to raise the Batson claim on direct appeal was reasonable. This claim was properly dismissed by the circuit court.
CONCLUSION
We affirm the judgment of the circuit court with respect to the issues that were not rendered moot by the commutation of petitioner's death sentence.
Affirmed.