People v. Todd
Annotate this Case
People v. Todd, No. 80124 (9/25/97)
NOTICE: Under Supreme Court Rule 367 a party has 21
days after the filing of the opinion to request a
rehearing. Also, opinions are subject to modification,
correction or withdrawal at anytime prior to issuance
of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made
available prior to the Court's final action in this
matter, it cannot be considered the final decision of
the Court. The official copy of the following opinion
will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets
following final action by the Court.
Docket No. 80124--Agenda 3--May 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
ROBERT TODD, Appellant.
Opinion filed September 25, 1997.
JUSTICE MILLER delivered the opinion of the
court:
The defendant, Robert Todd, brings this appeal
from an order of the circuit court of Clinton County
denying his amended petition for post-conviction relief.
Because the defendant received the death sentence for the
underlying first degree murder conviction, the present
appeal lies directly to this court. 134 Ill. 2d R.
651(a).
Following a bench trial in the circuit court of
Clinton County, the defendant was convicted of the first
degree murder and attempted aggravated criminal sexual
assault of Sandy Shelton. The trial judge, in a bench
proceeding, sentenced the defendant to death for the
first degree murder conviction. On appeal, this court
affirmed the defendant's convictions and death sentence.
People v. Todd, 154 Ill. 2d 57 (1992). The United States
Supreme Court denied the defendant's petition for a writ
of certiorari. Todd v. Illinois, 510 U.S. 944, 126 L. Ed. 2d 331, 114 S. Ct. 381 (1993).
The defendant instituted the present action on
May 2, 1994, by filing a pro se petition for post-
conviction relief in the circuit court of Clinton County.
Counsel was later appointed to assist the defendant, and
the defendant subsequently filed an amended post-
conviction petition, raising a number of allegations of
constitutional error in the original proceedings. The
State moved to dismiss the petition without an
evidentiary hearing. The circuit judge granted the
defendant an evidentiary hearing on two of the issues
raised in the amended post-conviction petition; the judge
believed that the remaining claims either were waived or
had been determined by this court on direct appeal.
Following the evidentiary hearing, the circuit judge
denied the defendant's amended petition. For the reasons
set forth below, we affirm the judgment of the circuit
court.
The evidence of the defendant's offenses was
described in our opinion on direct appeal, and only a
brief summary of the trial testimony is necessary here.
The defendant and the victim were seen together at two
bars, one in Carlyle and one in Beckemeyer, late on July
11, 1989, and early the following morning. At the second
bar, in Beckemeyer, a bartender provided the defendant
with a marker so that he could write on the wall, a
practice customers were encouraged to take part in.
There, the victim purchased a six-pack of beer, and she
and the defendant then left together.
Scott Nielson, who had been a cellmate with the
defendant in the Clinton County jail, testified to a
statement made to him by the defendant about the present
offenses. According to Nielson, the defendant said that
he met a woman in a bar, where they had a beer, and that
they then went to another bar, where they danced and had
a couple of drinks. The defendant signed his name under
the woman's name on the wall of one of the bars. They
later bought some beer and went to the woman's house, in
Beckemeyer. The defendant told Nielson that the woman put
a Bob Seger tape in a tape player. After the two drank
for awhile, the defendant made advances toward the woman,
and she rebuffed him. The defendant then got up, used the
bathroom, and got another can of beer from the kitchen.
The defendant returned and made more overtures, which the
woman again declined, pushing him away. According to
Nielson, the defendant said that he then slapped the
woman and blacked out. His next memory was of being at a
convenience store later that morning.
Two persons saw the defendant's car between
2:30 and 3 a.m. on July 12 at the building in Carlyle
where the defendant was renting an apartment. The car
drove up to the building quickly, went over the curb, and
stopped on the grass. The driver, whom the witnesses were
unable to identify, made several trips inside the
building, returning to his car with armloads of things,
and then drove off.
Other testimony showed that the Pana police
department received a telephone call at 8:25 a.m. on July
12 reporting that a woman who drove a Cordoba automobile
had been murdered in Beckemeyer. An employee at a
convenience store in Pana testified that the defendant
came into the store around 8:15 and asked for change so
that he could make a telephone call. A pay phone was
located outside the store, and the police station was
across the street.
The victim's daughter discovered her mother's
body around 11 a.m. on July 12. The victim was lying on
the floor and was naked. A shirt was wrapped tightly
around her neck. The victim's daughter noticed a strong
odor of natural gas, and found that the burners on the
gas stove were turned on. Candles were burning in several
rooms of the house. The cause of the victim's death was
later determined to be strangulation; she had also been
stabbed five times in the side. Vegetable oil had been
spread on the victim, and drops of wax had been placed
over that. One hundred dollars in cash was found in the
pocket of the victim's jeans, which were lying near her
body. Tests for the presence of semen and sperm were
negative. In addition, a number of hairs were found on
the victim, but none of them could be linked to the
defendant; most of the hairs were from the victim
herself. Other forensic testimony, however, established
that the defendant's fingerprint and bare footprint and
several shoeprints were found in the victim's house.
Also, wax consistent with that found on the victim's body
was discovered in the defendant's shower. In addition, a
Bob Seger tape was later found in the victim's tape
player, corroborating Nielson's account of the
defendant's statement to him. The defendant's name was
found under the victim's name on the wall of the bar
where the defendant had requested a marker and where the
defendant and the victim had been seen together. Also,
the victim drove a Cordoba, as the caller to the Pana
police department had stated. At the conclusion of the
trial, the judge found the defendant guilty of first
degree murder and attempted aggravated criminal sexual
assault.
A capital sentencing hearing was subsequently
conducted. At the hearing, the State established the
defendant's eligibility for the death penalty on the
basis of two aggravating circumstances: first degree
murder in the course of robbery, and first degree murder
in the course of attempted aggravated criminal sexual
assault. At the second stage of the sentencing hearing,
the State presented aggravating evidence from several
witnesses. The defendant's former wife testified that the
defendant had a bad temper and was occasionally violent.
A former employer testified that the defendant was fired
from his job at a facility for mentally retarded persons
because he had used excessive force with two patients. A
young woman described her encounter with the defendant a
day before the offenses, when the defendant, whom she had
not previously met, stopped to help her with her car and
then attempted to touch and kiss her. The woman also
testified that she declined the defendant's invitation to
go to his apartment. The defense presented mitigating
testimony from a number of the defendant's family members
and friends. We will discuss the evidence introduced at
the sentencing hearing in greater detail later in this
opinion.
I
The Post-Conviction Hearing Act (725 ILCS
5/122--1 through 122--7 (West 1994)) permits an offender
to challenge a conviction or sentence for violations of
federal or state constitutional rights. People v.
Sanchez, 169 Ill. 2d 472, 480 (1996); People v.
Thompkins, 161 Ill. 2d 148, 157 (1994). An action for
post-conviction relief is a collateral proceeding, not an
appeal from the underlying criminal judgment. People v.
Brisbon, 164 Ill. 2d 236, 242 (1995); People v. Free, 122 Ill. 2d 367, 377 (1988). "The function of a
post-conviction proceeding is not to relitigate the
defendant's guilt or innocence but to determine whether
he was denied constitutional rights. [Citation.]" People
v. Shaw, 49 Ill. 2d 309, 311 (1971). To obtain post-
conviction relief, a defendant must establish a
substantial deprivation of federal or state
constitutional rights in the proceedings that produced
the judgment being challenged. 725 ILCS 5/122--1 (West
1994); People v. Guest, 166 Ill. 2d 381, 389 (1995).
Considerations of res judicata and waiver limit the scope
of post-conviction review "to constitutional matters
which have not been, and could not have been, previously
adjudicated." People v. Winsett, 153 Ill. 2d 335, 346
(1992). Accordingly, rulings on issues that were
previously raised at trial or on direct appeal are res
judicata, and issues that could have been raised in the
earlier proceedings, but were not, will normally be
deemed waived. People v. Coleman, 168 Ill. 2d 509, 522
(1995); People v. Ruiz, 132 Ill. 2d 1, 9 (1989).
Principles of fundamental fairness, however, will support
relaxation of the res judicata and waiver doctrines when
appropriate. People v. Neal, 142 Ill. 2d 140, 146 (1990).
With these considerations in mind, we now turn to the
issues raised by the defendant in this appeal from the
circuit court's denial of post-conviction relief.
The defendant first argues that trial counsel
was ineffective for giving him incorrect advice about
waiving a jury for trial and sentencing. In the
proceedings below, the circuit judge rejected these
claims after an evidentiary hearing. At the hearing, the
parties presented conflicting evidence on this portion of
the defendant's post-conviction petition. The defendant
testified that on May 9, 1990, he was summoned to the
Clinton County jail from the Washington County jail, in
Nashville, where he had been staying. Early that
afternoon, he met with his attorney, Maurice Killion, in
a judge's chambers in the Clinton County courthouse. The
defendant said that the meeting was brief, lasting only
a minute to a minute and a half. According to the
defendant, Killion said that the defendant would have to
testify if he chose a jury trial, and that he should
waive a jury because counsel had not been allowed
sufficient time to prepare for a jury trial and because
a jury would not believe Killion, for he was black. In
addition, Killion said that the defendant would receive
a sentence of 35 years' imprisonment if he agreed to
waive a jury but that he would be executed within 30 days
if a jury found him guilty.
The defense presented other witnesses at the
evidentiary hearing who described the defendant's
preparations for a jury trial. A minister who had
regularly visited the defendant in jail said that he gave
the defendant a haircut on the morning of May 9, 1990,
the day when the waivers were accepted, and that the
defendant did not say then that he would not have a jury
trial. The defendant's mother, Sally Todd, who visited
the defendant frequently while he was jail awaiting
trial, testified that he never said, prior to May 9, that
he was going to waive a jury.
The defendant's trial attorney, Maurice
Killion, testified at the evidentiary hearing that he and
the defendant discussed the jury waivers a number of
times prior to May 9, 1990, the day when the waivers were
executed. According to Killion, he met with the defendant
in a judge's chambers in the courthouse for an hour to an
hour and a half early in the afternoon of May 9. Killion
testified that he recommended that the defendant waive a
jury because a jury would want to hear the defendant
testify, yet the defendant was reluctant to do so;
because photographs from the crime scene were gruesome
and would be upsetting to jurors; and because the trial
judge might be lenient in the wake of a jury waiver.
Killion denied telling the defendant to waive a jury for
any of the reasons mentioned by the defendant in his
testimony at the evidentiary hearing. Killion was
impeached at the hearing with his testimony from a
deposition, in which he said repeatedly that he was
unable to remember what he and the defendant had
discussed regarding the jury waiver. At the post-
conviction hearing, Killion explained that he was deposed
after only several hours' sleep the night before and that
he had not known in advance what particular aspects of
the case would be the focus of the deposition.
Assistant State's Attorney Robert Matoush
testified at the evidentiary hearing that on May 9, 1990,
Killion and the defendant met together in a room in the
courthouse for one or two hours and that the defendant
entered his jury waivers later that afternoon. Matoush
denied that the defendant was ever offered a 35-year
prison term in exchange for the jury waivers. According
to Matoush, the prosecution offered only to forgo seeking
the death penalty if the defendant pleaded guilty to
first degree murder.
At the conclusion of the evidentiary hearing,
the judge rejected the defendant's challenge to the jury
waivers. The judge concluded that the defendant and trial
counsel were together for a period of time considerably
longer than the brief period alleged by the defendant.
The judge believed that the oral admonitions given to the
defendant at the time of the jury waivers were thorough,
and the judge found nothing in the record to show a lack
of knowledge or an absence of voluntariness on the part
of the defendant in making the waivers. The judge also
noted that the defendant did not voice any complaints at
the sentencing hearing, notwithstanding his assertion
that he had been promised a 35-year sentence. The judge
also believed that trial counsel's reasons for preferring
a bench trial were not unreasonable, and the judge found
that it was not surprising that Killion's recollection
would have improved with the passage of time, and through
subsequent efforts at recalling these events.
A defendant's right to a jury at trial is
guaranteed by both the federal and state constitutions
(U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I,
sec. 8, 13); the right to a jury at a capital sentencing
hearing is statutory in origin (Ill. Rev. Stat. 1989, ch.
38, par. 9--1(d); People v. Maxwell, 148 Ill. 2d 116, 142
(1992); People v. Erickson, 117 Ill. 2d 271, 289 (1987)).
Waiver of either right must be knowing, intelligent, and
voluntary. People v. Strickland, 154 Ill. 2d 489, 517
(1992); People v. Buggs, 112 Ill. 2d 284, 292-93 (1986);
People v. Albanese, 104 Ill. 2d 504, 534-36 (1984). There
is no prescribed formula that must be used by a judge
before accepting a defendant's jury waiver, whether for
trial (People v. Smith, 106 Ill. 2d 327, 334 (1985);
People v. Frey, 103 Ill. 2d 327, 332 (1984)) or for a
death penalty hearing (Buggs, 112 Ill. 2d at 292;
Albanese, 104 Ill. 2d at 535-36).
The judge hearing the defendant's post-
conviction petition rejected the defendant's allegations
that he was improperly induced to waive juries for both
trial and sentencing. This finding is not against the
manifest weight of the evidence. The post-conviction
judge found that the meeting between the defendant and
trial counsel on May 9, prior to the jury waivers, lasted
considerably longer than the brief period claimed by the
defendant. In addition, the judge found that trial
counsel's reasons for recommending the jury waivers were
not unreasonable.
Any doubt whether the defendant's jury waivers
were knowing and voluntary is dispelled by a
consideration of the admonitions given to the defendant
by the judge who accepted the waivers. On direct appeal,
this court rejected two challenges to the
comprehensiveness of the admonitions used to advise the
defendant of his right to a jury for the capital
sentencing hearing. People v. Todd, 154 Ill. 2d 57, 72
(1992). The lengthy series of admonitions is reproduced
below:
"THE COURT: Mr. Todd, I have been
handed a document entitled Waiver of Jury
and where you waive your right to trial
by jury in each of the 5 Bills of
Indictment and consent to then a trial by
the Court. Appears to be signed by Robert
B. Todd. Did you sign this here today?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: Any threats or use of
force used against you to get you to sign
this?
ROBERT TODD, DEFENDANT: No, sir.
THE COURT: Any promises made to you
to get you to sign this?
ROBERT TODD, DEFENDANT: No, sir.
THE COURT: You understand what this
is doing?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: What you were doing
before with the jury trial, the State had
to convince 12 people beyond a reasonable
doubt that you were guilty of the
charges, and now all they have got to do
is convince the Judge. Do you understand
that?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: That's what you want to
do?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: Let the record show the
Defendant knowingly and voluntarily
waives trial by jury. Need to contact
Judge Huber as to date for Bench Trial?
MR. MIDDENDORF [State's Attorney]:
Your honor, we are assuming, at this
point, that the trial would remain set
for the 14th of May. I will contact Judge
Huber today with Mr. Killion [defense
counsel] and see whether or not Judge
Huber elects to make any changes.
THE COURT: I will just set it for
Bench Trial then at this time for May
14th. So your case will be set for trial
before the Court on May 14th at 9 o'clock
a.m. Mr. Todd, I have been provided with
a document entitled Waiver of Trial by
Jury for Sentencing Hearing. This appears
to bear the signature of Robert Todd. Did
you sign this document?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: Any threats or use of
force used against you to get you to sign
this?
ROBERT TODD, DEFENDANT: No, sir.
THE COURT: Any promises made to you?
ROBERT TODD, DEFENDANT: No, sir.
THE COURT: I am going to ask you
again back on the waiver of the trial,
the jury trial and as far as this waiver,
did you execute these after fully
consulting with your lawyer?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: You understand, that the-
-I indicated the State is requesting the
death penalty be imposed in this case?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: And so you are entitled
to a jury on that, and there would have
to be unanimous finding. All 12 would
have to find that one of the factors
existed is the factor [sic]. Basically
the State's proceeding on that. There was
another felony involved?
MR. MIDDENDORF: Yes, sir. There have
been 2 separate theories proposed. One is
that the crime of Attempt Criminal Sexual
Assault and the other being--excuse me,
of Robbery. Charged in separate counts of
the Indictment.
THE COURT: So they would have to
present that and have a unanimous finding
of those 12 jurors of one of--one or more
of those factors existed. Now then,
without a jury it will just be up to a
judge to decide that. You understand
that?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: And then if that jury
unanimously found that some of those
factors existed, then they would consider
matters in aggravation and mitigation
which would be prior history, significant
history of prior criminal activity. This
is in mitigation, in your favor. Murder
was committed when you were under the
influence of extreme mental or emotional
disturbance. Murdered individual was
participant in homicidal conduct,
consented to it. That you acted on
compulsion or threat of menace or
imminent infliction of death or great
bodily harm. That you were not personally
present during commission of the act or
acts that caused the death. So now, in
connection with those factors, they would
have to again unanimously decide to
impose the death penalty. So here you'd
have 12 people that they have all got to
agree on, and you are giving up that. Do
you understand that?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: So basically, then it's
your desire that just one person, a
judge, decides your guilt or innocence.
One person, just one judge decides
whether or not the factors, aggravating
factors, exist such that the death
penalty could be imposed? If that's so
found, then only one person, just one
judge, would decide whether or not there
were any mitigating factors or whether
the death sentence could be imposed. So
just one person is going to decide your
entire facts. Do you understand?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: As opposed to 12. Do you
understand that?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: You have no questions at
all?
ROBERT TODD, DEFENDANT: No, sir.
THE COURT: No qualms or hesitations?
ROBERT TODD, DEFENDANT: No, sir.
THE COURT: You are telling the Court
today this is what you freely and
voluntarily--this is what you want to do?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: You don't need any more
time to talk with your lawyer?
ROBERT TODD, DEFENDANT: No, sir.
THE COURT: Very well. Let the record
further show that the Defendant, after
being interrogated, knowingly and
voluntarily executes a Waiver of Trial by
Jury for the Sentencing Hearing. Such a
waiver will be so entered. Do you have
any questions at all?
ROBERT TODD, DEFENDANT: No, sir."
We believe that the preceding admonitions were
sufficient to insure that the defendant's jury waivers
were knowing, intelligent, and voluntary. Notably, in
responding to the judge's questions, the defendant at no
time referred to the promise of a 35-year sentence, the
threat that he would have to testify if he elected to be
tried and sentenced by a jury, or the other comments
allegedly made by trial counsel to induce him to waive
juries for trial and sentencing. The judge below rejected
the defendant's allegations, and we conclude that defense
counsel was not ineffective in his representation of the
defendant regarding this aspect of the proceedings.
The defendant next challenges a provision in
the form he used to waive a jury for sentencing.
Paragraph nine of the waiver form stated:
"My attorney has explained to me,
and I fully understand, that if the court
accepts my waiver of jury trial for
sentencing, that I cannot thereafter at
any time, change my mind, and I will be
forever barred from requesting that a
jury determine sentencing in this case if
I am convicted of the offense of first
degree murder."
The defendant argues that the preceding paragraph
incorrectly suggested that his decision to waive a jury
would be irrevocable. We note that a defendant entering
a jury waiver may later file a motion seeking to withdraw
the waiver; the decision whether to grant or deny the
motion is generally reserved to the trial court's
discretion. People v. Hall, 114 Ill. 2d 376, 414 (1986).
Trial counsel had prepared the waiver form used in this
case, and the defendant contends that trial counsel
rendered ineffective assistance by including the
provision in the form.
The State responds that this particular attack
on the jury waiver comes too late because the issue is
apparent from the record and could have been raised by
the defendant on appeal from his convictions and
sentence. On direct appeal, the defendant did raise two
challenges to the comprehensiveness of the admonitions
given to him prior to his waiver of a sentencing jury. As
we have stated, this court rejected the defendant's
arguments, finding no error in the court's admonitions to
the defendant. People v. Todd, 154 Ill. 2d 57, 72 (1992).
Clearly, the defendant at that time could have also
challenged the presence of paragraph nine in the waiver
form, which was a part of the record in the case. The
defendant makes the additional argument, however, that
appellate counsel was ineffective for failing to
challenge on direct appeal the competency of trial
counsel. Because this is the defendant's first
opportunity to challenge appellate counsel's performance,
we find it necessary to address the merits of this issue.
See People v. Tenner, 175 Ill. 2d 372, 386 (1997).
We do not believe that the infirmity alleged in
paragraph nine denied the defendant his right to
competent counsel. The constitutional guarantee to the
assistance of counsel (U.S. Const., amends. VI, XIV)
encompasses the right to the effective assistance of
counsel (Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 343-44, 100 S. Ct. 1708, 1716 (1980)), both at
trial and on a first appeal as of right (Evitts v. Lucey,
469 U.S. 387, 396-97, 83 L. Ed. 2d 821, 830-31, 105 S. Ct. 830, 836-37 (1985). In Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1986), the
Supreme Court articulated a two-part test for resolving
claims of ineffective assistance of counsel. To prevail
on a claim of ineffective assistance, a defendant must
establish both that counsel's performance was deficient
and that the deficiency was prejudicial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. To
demonstrate prejudice resulting from an asserted
deficiency in counsel's performance, "[t]he defendant
must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694,
80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
Assuming that trial counsel was deficient for
including this provision in the jury waiver, the relevant
question under the prejudice component of the Strickland
standard is "whether there exists a reasonable likelihood
that the defendant would not have waived his jury right
in the absence of the alleged error." People v. Maxwell,
148 Ill. 2d 116, 142 (1992). We conclude that inclusion
of the challenged paragraph could not have affected the
defendant's election to waive a sentencing jury in this
case. It must be recognized that the provision in
paragraph nine would have advised the reader that the
consequences of a jury waiver were more onerous than they
actually are. By suggesting that withdrawal of the waiver
was always and forever barred, paragraph nine of the form
imposed a disincentive to the decision to surrender the
right to a jury. Thus, if the provision had had any
effect on the reader, it would have been to make waiver
of the right less likely, not more likely. The defendant,
however, persisted in his desire to waive a jury for
sentencing, even in the face of the statement that his
decision would be irrevocable. Given these circumstances,
we must therefore conclude that paragraph nine of the
waiver form did not affect the defendant's decision to
give up the right to a jury, and this claim of
ineffective assistance must therefore fail.
The defendant also briefly argues that the
written waiver was defective because it did not
specifically refer to the eligibility stage of the
sentencing hearing. The defendant notes that trial
counsel in his deposition and at the hearing was somewhat
vague about when that stage occurred, at one point saying
that it was when the grand jury indicted the defendant
for a capital offense; counsel also correctly stated that
it occurred after a finding of guilt in a capital case.
Although this issue could have been raised on direct
appeal, we will consider the claim on its merits, for the
defendant makes the additional assertion that appellate
counsel was ineffective for failing to challenge trial
counsel's representation. We do not believe that the
written waiver was required to mention specifically the
eligibility stage of the sentencing hearing. We note that
the death penalty statute refers to the waiver of a jury
for the separate sentencing proceeding, without speaking
of separate waivers for the two stages of the hearing.
See Ill. Rev. Stat. 1989, ch. 38, par. 9--1(d). The
admonitions provided by the judge who accepted the
defendant's waivers sufficiently explained the process of
capital sentencing, and we find no infirmity in the
waiver on this ground.
The defendant, in his final argument pertaining
to the jury waiver, contends that he later informed
counsel that he wanted to withdraw the waivers but that
his attorney refused to do so, telling him that the
waivers were irrevocable. The defendant contends that
counsel was ineffective for giving him that advice. The
sole reason assigned by the defendant for his desire to
withdraw the waivers is that he did not trust the trial
judge in this case. The defendant's statement was
contradicted by trial counsel, who, at the hearing on the
post-conviction petition, denied that the defendant
sought to withdraw the jury waivers. Killion further
testified that if the defendant had asked him to withdraw
the jury waivers, he would have filed a motion to do so.
In denying the defendant's post-conviction petition, the
judge below did not specifically address this contention,
though apparently he rejected the defendant's testimony
on this point.
Assuming that the defendant wished to withdraw
the jury waivers, we do not consider it likely that the
trial judge would have granted the motion. "The question
of whether a jury waiver may be withdrawn rests within
the discretion of the trial court unless the
circumstances indicate the defendant was unaware of the
consequences of the waiver." People v. Hall, 114 Ill. 2d 376, 414 (1986). The only reason assigned for the
defendant's change of heart is his assertion that he did
not trust the trial judge. We agree with the State that
it is unlikely that the trial judge would have allowed a
motion to withdraw the waiver on that ground. Counsel's
failure to file the requisite motion therefore could not
have been prejudicial to the defendant, and we must
therefore reject the defendant's contention that trial
counsel was ineffective for not moving to withdraw the
jury waivers.
II
The defendant next argues that trial counsel
was ineffective for not investigating and presenting
additional mitigating evidence that was available at the
time of the sentencing hearing. In support of this
contention the defendant submitted, as part of his
amended post-conviction petition, a report from a
psychologist who had examined the defendant, a report
from a mitigation specialist who had conducted an
investigation into the defendant's personal history, and
affidavits from some 28 family members, neighbors, and
friends offering mitigating evidence. Both the
psychologist and the mitigation specialist testified at
the post-conviction hearing below. Before addressing the
merits of this contention, we will review the evidence
presented by defense counsel at the capital sentencing
hearing and the evidence now offered by the defendant in
support of his ineffective-assistance claim.
At the defendant's capital sentencing hearing,
defense counsel introduced mitigating testimony from a
variety of witnesses. A mitigation specialist, Arlene
Messner Peters, had conducted an investigation of the
defendant's personal history, and she testified at the
sentencing hearing, summarizing her findings. Also, her
report on the defendant was admitted into evidence. At
the sentencing hearing, Peters testified that the
defendant's mother was a strict disciplinarian and would
often strike the defendant. On one occasion, she threw a
knife at the defendant but missed him, hitting an
aquarium instead. On several occasions, the mother would
become angry if the defendant and his two younger sisters
had not cleaned up dirty dishes by the time she returned
home; their mother would then throw the food and dishes
on the floor and order the children to clean up the mess.
The defendant stuttered as a young child and was often
picked on by other children as a result. He also did
poorly in school. The family's house was small and
cramped, and the defendant's sleeping area was in the
kitchen. The defendant was particularly close to his
sister Laurie, who is several years younger than the
defendant.
Messner further related that, after graduating
from high school, the defendant attended a Bible college
for a year and worked in a variety of jobs. Later, he
joined the army, serving for 1« years. Around this time,
the defendant was using drugs heavily. He later stopped
using drugs. The defendant had no prior criminal record,
and he was not a problem while incarcerated for the
offenses here.
The defendant's mother also testified at the
sentencing hearing. She described, among other incidents
in the defendant's life, three suicide attempts by the
defendant, beginning when he was a teenager. The defense
also introduced favorable testimony from the defendant's
two sisters and his father, and from a clergyman and the
parents of his fiancée.
At the conclusion of the hearing, defense
counsel argued that the defendant's background
demonstrated a number of mitigating circumstances,
including the commission of the offenses while the
defendant was under the influence of extreme mental or
emotional disturbance, the defendant's history of drug
and alcohol abuse, his religious upbringing and beliefs,
and his learning disability.
The defendant now argues that trial counsel
should have conducted a more extensive investigation and
could have presented additional testimony that was
available at the time of the original sentencing
proceeding. At the evidentiary hearing on the defendant's
post-conviction petition, the defendant presented
testimony from several witnesses in support of this
contention. Dr. Keenan Ferrell, a clinical psychologist,
testified that he had examined and tested the defendant
over a two-day period. Personality tests showed the
defendant to be impulsive, deviant, and paranoid. Dr.
Ferrell found that the defendant had an IQ of 86, but Dr.
Ferrell said that the defendant's grade school records
credited the defendant with above-average intelligence.
Dr. Ferrell believed that the decline in the defendant's
abilities was indicative of a head injury, and the
defendant had sustained a serious one when he was 12 or
13 years old. The defendant reported a number of
incidents of abuse committed by his mother, including
having liquid detergent poured down his throat. The
defendant began to stutter when he was seven years old,
and Dr. Ferrell stated that this was a sign of emotional
torment. Dr. Ferrell concluded that the defendant was
emotionally and psychologically damaged. Although the
defendant had no recollection of being sexually abused,
Dr. Ferrell believed that many of the defendant's
characteristics were consistent with sexual abuse.
Caryn Platt Tatelli, a mitigation specialist,
investigated the defendant's background, interviewing
more than 25 persons and reviewing a number of records.
Tatelli prepared a report summarizing her findings; the
report and its voluminous attachments were made a part of
the defendant's post-conviction petition. Tatelli learned
of a number of acts of abuse committed against the
defendant by his mother. For example, while the defendant
was being toilet trained, his mother would make him run
outside naked if he had an accident. Also, the defendant
sustained a number of head injuries when he was a child.
The first one occurred when the defendant was four years
old, when he fell off a bed. Later, around the age of 12,
the defendant suffered an injury to his scalp that
required between 20 and 30 stitches to close; shortly
after that injury, the defendant's mother became angry
with him and ripped the stitches open. Tatelli reported
that the defendant had raped his sister Laurie when he
was 12 years old and she was 9. Tatelli believed that the
defendant was also sexually abused as a child.
In support of the amended post-conviction
petition, the defendant also submitted affidavits from a
number of relatives, neighbors, and friends who stated
that they would have testified at the defendant's
sentencing hearing if they had been called as witnesses.
These persons described the defendant's childhood home
environment as well as various incidents in the
defendant's life. The defendant's parents and sisters
also submitted affidavits, stating that they were not
adequately prepared by trial counsel before the
sentencing hearing and describing other items of
information that had not been elicited from them at the
earlier proceeding.
As we have stated, in Strickland v. Washington,
466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1986),
the Supreme Court formulated a two-part test for
resolving claims of ineffective assistance of counsel. To
prevail on a claim of ineffective assistance, a defendant
must establish both that counsel's performance was
deficient and that the deficiency was prejudicial.
Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Judicial scrutiny of counsel's performance
is highly deferential, and a court considering an
allegation of ineffective assistance "must indulge a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance."
Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.
Even if counsel's performance is objectively
unreasonable, however, relief is not automatically
warranted, for a defendant must also show that he was
prejudiced as a result of counsel's deficient
performance. "An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment
of a criminal proceeding if the error had no effect on
the judgment." Strickland, 466 U.S. at 691, 80 L. Ed. 2d
at 696, 104 S. Ct. at 2066. To establish prejudice,
"[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Because a defendant must establish both a
deficiency in counsel's performance and prejudice
resulting from the alleged deficiency, failure to
establish either proposition will prove fatal to the
claim. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699,
104 S. Ct. at 2069; People v. Harris, 164 Ill. 2d 322,
349 (1994).
The defendant complains that trial counsel did
not present, as mitigating evidence at the sentencing
hearing, more detailed testimony regarding a series of
head injuries the defendant suffered as a child, or
testimony concerning the reasons for his three separate
suicide attempts, among other things. The defendant
maintains that the information provided by the defense
witnesses at the hearing gave only a superficial analysis
of his background and personality.
We are unpersuaded by the defendant's challenge
to the conduct of his attorney at the sentencing hearing.
Unlike defense counsel in People v. Perez, 148 Ill. 2d 168 (1992), cited by the defendant, defense counsel in
this case presented a substantial amount of mitigating
testimony. Moreover, defense counsel's strategic decision
not to present other types of evidence was made after
investigation and should be accorded substantial
deference. Counsel explained at his deposition that the
defendant had undergone a fitness evaluation by a
psychiatrist before trial, and that counsel then learned
of the defendant's propensity for violence from the
psychiatric report. Trial counsel and the mitigation
specialist thus decided not to use the information at the
sentencing hearing because they believed that it would be
more harmful than helpful to the defendant's case.
Counsel's determination not to pursue this line of
inquiry further was a strategic decision, made after
investigation, and is entitled to substantial deference.
In Strickland the Supreme Court stated:
"[S]trategic choices made after thorough
investigation of law and facts relevant
to plausible options are virtually
unchallengeable; and strategic choices
made after less than complete
investigation are reasonable precisely to
the extent that reasonable professional
judgments support the limitations on
investigation. In other words, counsel
has a duty to make reasonable
investigations or to make a reasonable
decision that makes particular
investigations unnecessary. In any
ineffectiveness case, a particular
decision not to investigate must be
directly assessed for reasonableness in
all the circumstances, applying a heavy
measure of deference to counsel's
judgments." Strickland, 466 U.S. at 690-
91, 80 L. Ed. 2d at 695, 104 S. Ct. at
2066.
The record in this case shows that trial
counsel considered the possibility of introducing expert
testimony about the defendant's mental condition and
functioning but chose not to pursue that inquiry because
counsel feared that information about the defendant's
violent nature would also be revealed. Counsel's concerns
were borne out at the post-conviction hearing, when Dr.
Ferrell stated that his testing of the defendant showed
a person who was impulsive, deviant, and paranoid.
Trial counsel's strategic decision to forgo
evidence of this nature is entitled to deference. In
People v. Tenner, 175 Ill. 2d 372, 382 (1997), this court
noted "the potentially ambiguous nature of evidence of
mental problems," for "information about a defendant's
mental or psychological impairment is not inherently
mitigating." Tenner stated, "At sentencing, a judge or
jury considering evidence of this nature might view the
information as either mitigating or aggravating,
depending, of course, on whether the individual hearing
the evidence finds that it evokes compassion or
demonstrates possible future dangerousness." Tenner, 175 Ill. 2d at 382.
We believe that other evidence now offered by
the defendant in support of his request for a new
sentencing hearing is essentially cumulative of
information presented at the sentencing hearing by trial
counsel or does not give rise to a reasonable probability
that its introduction at the sentencing hearing would
have produced a sentence other than the sentence of death
imposed on the defendant. The defendant has prepared a
table listing the items of information included in the
mitigation report prepared by the post-conviction
mitigation specialist, Caryn Tatelli, and omitted from
the report done by Arlene Peters, who testified at the
sentencing hearing. Some of this information was
presented at the sentencing hearing through the testimony
of other witnesses. We have examined the other items of
information that the defendant contends should have been
presented at this sentencing hearing, and we are not
persuaded that introduction of this additional testimony
would have had any effect on the judge's decision to
impose the death penalty in this case. For example,
testimony about the defendant's parents' own substance
abuse problems would have added little to the mitigating
case counsel was attempting to build. Evidence of the
family's shaky finances would have been unnecessary, for
the sentencer in this case, the trial judge, was aware
that the defendant was required to sleep in the kitchen
of the family's small house. Evidence of steady
employment is mitigating (see People v. Johnson, 128 Ill. 2d 253, 281-82 (1989); evidence of the defendant's spotty
work history would have been construed as aggravating.
In determining whether the defendant incurred
prejudice as a result of trial counsel's asserted
deficiencies at the sentencing hearing, we must ask
"whether there is a reasonable probability that, absent
the errors, the sentencer--including an appellate court,
to the extent that it independently reweighs the
evidence--would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death." Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698,
104 S. Ct. at 2069. We do not believe that there is a
reasonable probability that presentation of the
additional evidence cited by the defendant would have
resulted in a sentence other than death, given the nature
of the offenses in this case, and the circumstances and
character of the defendant.
III
The defendant raises a number other claims of
ineffective assistance of counsel; the judge hearing the
post-conviction petition denied them without an
evidentiary hearing, concluding that all of these
contentions had been waived or resolved on direct appeal.
Because the defendant also argues that counsel on direct
appeal was ineffective for failing to challenge trial
counsel's alleged deficiencies, we will consider these
issues on their merits.
The defendant first argues that trial counsel
was ineffective for not requesting a continuance when, on
May 3, 1990, less than two weeks before trial was
scheduled to begin, the grand jury indicted the defendant
on a fifth count, alleging the defendant's commission of
murder during the course of a robbery. The genesis for
this additional count was the discovery of the victim's
purse in a farmer's field near Beckemeyer on March 22,
1990. The defendant suggests that trial counsel needed
additional time to investigate the circumstances
surrounding the discovery of the purse. On April 26,
1990, counsel learned of the purse and of the
prosecutor's intent to seek an additional charge against
the defendant. The purse was sent to a laboratory for
analysis, and no fingerprints were found on it or on the
wallet that was inside. Moreover, hairs in the purse
could not be traced to the defendant. We agree with the
State that the discovery of the purse did not represent
new evidence that defense counsel needed time to
challenge, and that the additional charge could not have
affected the defense theory at trial, which was to deny
the defendant's participation in the offenses.
The defendant also argues that trial counsel
was ineffective for failing to object to the
prosecution's amendment of count II of the indictment.
Count II originally alleged that the defendant committed
the offense of first degree murder by stabbing, choking,
and beating the victim about the head, "knowing such act
committed [sic] a strong probability of death or great
bodily harm." By amendment, the word "committed" was
replaced with the "created." Prior counsel had agreed to
this change on July 26, 1989, shortly after the
indictment was returned; the defendant argues that trial
counsel, Maurice Killion, who was later appointed to
represent the defendant in this case, should have moved
for a directed finding on this count at the close of the
State's evidence. Amendments to an indictment are
permitted to correct formal defects, including "[a]ny
miswriting, misspelling, or grammatical error." Ill. Rev.
Stat. 1989, ch. 38, par. 111--5(a). Here, the amendment
corrected what was merely a formal defect in the charge
and therefore was permissible. See People v. Griggs, 152 Ill. 2d 1, 32-33 (1992). We do not believe that
substitution of the word "created" for the word
"committed" worked a material change in the count.
The defendant next contends that trial counsel
was ineffective for failing to obtain a hair
identification expert to testify to the significance of
evidence showing that no hairs consistent with the
defendant's hair standards were found on the victim or at
the crime scene. The defendant notes that the State's
forensic experts were unable to link the defendant to any
of the hairs discovered after the offenses, and the
defendant believes that an additional expert would have
undermined the prosecution theory that the defendant
removed the victim's clothing and strangled the victim
without depositing any of his own hairs.
The defense did call as a witness one expert,
Eleanor Gillespie, a forensic scientist for the Illinois
State Police. Gillespie had compared hairs found at the
crime scene and on the victim's body with hair standards
taken from the victim and the defendant, and she
concluded that there was no transfer of hair between the
defendant and the victim. Most of the hair samples were
consistent with the victim's own hair, and none of the
hairs found on the victim's body or at the scene could be
linked to the defendant; at least two hairs could not be
identified at all. The defendant maintains that counsel
should have called another expert to testify that it
would have been unlikely for the defendant to have
committed the offenses without leaving behind strands of
his own hair. We note that defense counsel made this
argument at trial, and the defendant has not shown
whether any expert was available who would have been able
to couch the argument in scientific terms. The
defendant's complaint is merely speculative.
The defendant next raises a series of brief
challenges to the competency of trial counsel, and we
will consider these in summary fashion. Contrary to the
defendant's argument, we do not believe that trial
counsel was ineffective for his supposed acquiescence in
the trial court's decision to consider a motion under
Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), during trial rather than before trial.
The defendant believes that the tardy consideration of
the motion meant that the trier of fact could hear
evidence that would later be deemed inadmissible. We note
that the judge denied the motion, so the defendant's
present concerns are unfounded. In addition, the
defendant's trial was a bench proceeding, and there is a
strong presumption that judges base their findings only
on competent evidence. People v. Tye, 141 Ill. 2d 1, 26
(1990).
We find no deficiency in counsel's failure to
make an opening statement at trial; again, this was a
bench proceeding, and we do not believe that counsel's
failure to address the court at the point in the
proceedings could have had any effect on the judge's
resolution of the case. We note, too, that the
prosecutor, in his opening statement, merely read the
indictments against the defendant. Nor do we find any
deficiency in trial counsel's failure to challenge the
victim's daughter's identification of her mother's purse.
The purse contained the victim's driver's license, which
certainly was sufficient to establish the victim's
ownership.
The defendant next complains that trial counsel
failed to cross-examine prosecution witness Linda Berry,
the bartender at the Main Street Tavern in Beckemeyer,
who testified at trial that she saw the defendant and the
victim together shortly before the victim's death. Rather
than cross-examine the witness, trial counsel simply
noted to the court that he believed Berry's testimony was
irrelevant. The defendant has not shown what greater
advantage defense could have gained in this case from
cross-examining the witness. Nor do we believe that
counsel was ineffective for failing to ask the
defendant's cellmate, Scott Nielson, what consideration,
if any, the State had promised him in exchange for his
testimony at trial. In discovery prior to trial the State
disclosed that no promises or rewards were made to any
witnesses. The defendant has neither alleged nor shown
here that the prosecutor's response was untruthful in
relation to Nielson.
The defendant also complains that counsel
failed to argue at trial that the defendant did not have
the intent to rob the victim prior to her death. The
defendant believes that an argument like that could have
forestalled a conviction on a felony murder theory. The
defendant apparently believes that the absence of a
finding on that charge would have precluded the trial
judge's later determination that the defendant was
eligible for the death penalty for his commission of
murder in the course of a robbery. The defense theory at
trial was that the defendant did not have any role in the
offenses committed here and, further, that no robbery or
theft occurred. An argument like the one now proposed by
the defendant would have directly contradicted that
theory by placing the defendant at the crime scene and
attributing to him the acts that caused the victim's
death. Moreover, we note that this court, in the
defendant's direct appeal, held that the defendant could
be found eligible for the death penalty even if the State
did not prove that the defendant had formed the intent to
rob the victim before committing the murder. People v.
Todd, 154 Ill. 2d 57, 73 (1992).
As a final matter, the defendant argues that
the trial judge improperly imposed sentence only on count
I of the indictment, which, the defendant asserts without
explanation, is not an offense for which he may receive
the death penalty. We note that the defendant was charged
with four counts of first degree murder, based on
sections 9--1(a)(1), 9--1(a)(2), and 9--1(a)(3) of the
Criminal Code of 1961. Ill. Rev. Stat. 1989, ch. 38,
pars. 9--1(a)(1), (a)(2), (a)(3). Count I, charging first
degree murder under section 9--1(a)(1), represented the
most serious form of the offense and therefore is
properly the one on which the sentence of death is
imposed. See People v. Pitsonbarger, 142 Ill. 2d 353,
377-78 (1990); People v. Lego, 116 Ill. 2d 323, 344
(1987); People v. Guest, 115 Ill. 2d 72, 103-04 (1986).
* * *
For the reasons stated, the judgment of the
circuit court of Clinton County is affirmed. The clerk of
this court is directed to enter an order setting
Thursday, January 22, 1998, as the date on which the
sentence of death entered in the circuit court of Clinton
County is to be carried out. The defendant shall be
executed in the manner provided by law (725 ILCS 5/119--5
(West 1996)). The clerk of this court shall send a
certified copy of the mandate in this case to the
Director of Corrections, to the warden of Stateville
Correctional Center, and to the warden of the institution
where the defendant is now confined.
Judgment affirmed.
NOTICE: Under Supreme Court Rule 367 a party has 21
days after the filing of the opinion to request a
rehearing. Also, opinions are subject to modification,
correction or withdrawal at anytime prior to issuance
of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made
available prior to the Court's final action in this
matter, it cannot be considered the final decision of
the Court. The official copy of the following opinion
will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets
following final action by the Court.
Docket No. 80124--Agenda 3--May 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
ROBERT TODD, Appellant.
Opinion filed September 25, 1997.
JUSTICE MILLER delivered the opinion of the
court:
The defendant, Robert Todd, brings this appeal
from an order of the circuit court of Clinton County
denying his amended petition for post-conviction relief.
Because the defendant received the death sentence for the
underlying first degree murder conviction, the present
appeal lies directly to this court. 134 Ill. 2d R.
651(a).
Following a bench trial in the circuit court of
Clinton County, the defendant was convicted of the first
degree murder and attempted aggravated criminal sexual
assault of Sandy Shelton. The trial judge, in a bench
proceeding, sentenced the defendant to death for the
first degree murder conviction. On appeal, this court
affirmed the defendant's convictions and death sentence.
People v. Todd, 154 Ill. 2d 57 (1992). The United States
Supreme Court denied the defendant's petition for a writ
of certiorari. Todd v. Illinois, 510 U.S. 944, 126 L. Ed. 2d 331, 114 S. Ct. 381 (1993).
The defendant instituted the present action on
May 2, 1994, by filing a pro se petition for post-
conviction relief in the circuit court of Clinton County.
Counsel was later appointed to assist the defendant, and
the defendant subsequently filed an amended post-
conviction petition, raising a number of allegations of
constitutional error in the original proceedings. The
State moved to dismiss the petition without an
evidentiary hearing. The circuit judge granted the
defendant an evidentiary hearing on two of the issues
raised in the amended post-conviction petition; the judge
believed that the remaining claims either were waived or
had been determined by this court on direct appeal.
Following the evidentiary hearing, the circuit judge
denied the defendant's amended petition. For the reasons
set forth below, we affirm the judgment of the circuit
court.
The evidence of the defendant's offenses was
described in our opinion on direct appeal, and only a
brief summary of the trial testimony is necessary here.
The defendant and the victim were seen together at two
bars, one in Carlyle and one in Beckemeyer, late on July
11, 1989, and early the following morning. At the second
bar, in Beckemeyer, a bartender provided the defendant
with a marker so that he could write on the wall, a
practice customers were encouraged to take part in.
There, the victim purchased a six-pack of beer, and she
and the defendant then left together.
Scott Nielson, who had been a cellmate with the
defendant in the Clinton County jail, testified to a
statement made to him by the defendant about the present
offenses. According to Nielson, the defendant said that
he met a woman in a bar, where they had a beer, and that
they then went to another bar, where they danced and had
a couple of drinks. The defendant signed his name under
the woman's name on the wall of one of the bars. They
later bought some beer and went to the woman's house, in
Beckemeyer. The defendant told Nielson that the woman put
a Bob Seger tape in a tape player. After the two drank
for awhile, the defendant made advances toward the woman,
and she rebuffed him. The defendant then got up, used the
bathroom, and got another can of beer from the kitchen.
The defendant returned and made more overtures, which the
woman again declined, pushing him away. According to
Nielson, the defendant said that he then slapped the
woman and blacked out. His next memory was of being at a
convenience store later that morning.
Two persons saw the defendant's car between
2:30 and 3 a.m. on July 12 at the building in Carlyle
where the defendant was renting an apartment. The car
drove up to the building quickly, went over the curb, and
stopped on the grass. The driver, whom the witnesses were
unable to identify, made several trips inside the
building, returning to his car with armloads of things,
and then drove off.
Other testimony showed that the Pana police
department received a telephone call at 8:25 a.m. on July
12 reporting that a woman who drove a Cordoba automobile
had been murdered in Beckemeyer. An employee at a
convenience store in Pana testified that the defendant
came into the store around 8:15 and asked for change so
that he could make a telephone call. A pay phone was
located outside the store, and the police station was
across the street.
The victim's daughter discovered her mother's
body around 11 a.m. on July 12. The victim was lying on
the floor and was naked. A shirt was wrapped tightly
around her neck. The victim's daughter noticed a strong
odor of natural gas, and found that the burners on the
gas stove were turned on. Candles were burning in several
rooms of the house. The cause of the victim's death was
later determined to be strangulation; she had also been
stabbed five times in the side. Vegetable oil had been
spread on the victim, and drops of wax had been placed
over that. One hundred dollars in cash was found in the
pocket of the victim's jeans, which were lying near her
body. Tests for the presence of semen and sperm were
negative. In addition, a number of hairs were found on
the victim, but none of them could be linked to the
defendant; most of the hairs were from the victim
herself. Other forensic testimony, however, established
that the defendant's fingerprint and bare footprint and
several shoeprints were found in the victim's house.
Also, wax consistent with that found on the victim's body
was discovered in the defendant's shower. In addition, a
Bob Seger tape was later found in the victim's tape
player, corroborating Nielson's account of the
defendant's statement to him. The defendant's name was
found under the victim's name on the wall of the bar
where the defendant had requested a marker and where the
defendant and the victim had been seen together. Also,
the victim drove a Cordoba, as the caller to the Pana
police department had stated. At the conclusion of the
trial, the judge found the defendant guilty of first
degree murder and attempted aggravated criminal sexual
assault.
A capital sentencing hearing was subsequently
conducted. At the hearing, the State established the
defendant's eligibility for the death penalty on the
basis of two aggravating circumstances: first degree
murder in the course of robbery, and first degree murder
in the course of attempted aggravated criminal sexual
assault. At the second stage of the sentencing hearing,
the State presented aggravating evidence from several
witnesses. The defendant's former wife testified that the
defendant had a bad temper and was occasionally violent.
A former employer testified that the defendant was fired
from his job at a facility for mentally retarded persons
because he had used excessive force with two patients. A
young woman described her encounter with the defendant a
day before the offenses, when the defendant, whom she had
not previously met, stopped to help her with her car and
then attempted to touch and kiss her. The woman also
testified that she declined the defendant's invitation to
go to his apartment. The defense presented mitigating
testimony from a number of the defendant's family members
and friends. We will discuss the evidence introduced at
the sentencing hearing in greater detail later in this
opinion.
I
The Post-Conviction Hearing Act (725 ILCS
5/122--1 through 122--7 (West 1994)) permits an offender
to challenge a conviction or sentence for violations of
federal or state constitutional rights. People v.
Sanchez, 169 Ill. 2d 472, 480 (1996); People v.
Thompkins, 161 Ill. 2d 148, 157 (1994). An action for
post-conviction relief is a collateral proceeding, not an
appeal from the underlying criminal judgment. People v.
Brisbon, 164 Ill. 2d 236, 242 (1995); People v. Free, 122 Ill. 2d 367, 377 (1988). "The function of a
post-conviction proceeding is not to relitigate the
defendant's guilt or innocence but to determine whether
he was denied constitutional rights. [Citation.]" People
v. Shaw, 49 Ill. 2d 309, 311 (1971). To obtain post-
conviction relief, a defendant must establish a
substantial deprivation of federal or state
constitutional rights in the proceedings that produced
the judgment being challenged. 725 ILCS 5/122--1 (West
1994); People v. Guest, 166 Ill. 2d 381, 389 (1995).
Considerations of res judicata and waiver limit the scope
of post-conviction review "to constitutional matters
which have not been, and could not have been, previously
adjudicated." People v. Winsett, 153 Ill. 2d 335, 346
(1992). Accordingly, rulings on issues that were
previously raised at trial or on direct appeal are res
judicata, and issues that could have been raised in the
earlier proceedings, but were not, will normally be
deemed waived. People v. Coleman, 168 Ill. 2d 509, 522
(1995); People v. Ruiz, 132 Ill. 2d 1, 9 (1989).
Principles of fundamental fairness, however, will support
relaxation of the res judicata and waiver doctrines when
appropriate. People v. Neal, 142 Ill. 2d 140, 146 (1990).
With these considerations in mind, we now turn to the
issues raised by the defendant in this appeal from the
circuit court's denial of post-conviction relief.
The defendant first argues that trial counsel
was ineffective for giving him incorrect advice about
waiving a jury for trial and sentencing. In the
proceedings below, the circuit judge rejected these
claims after an evidentiary hearing. At the hearing, the
parties presented conflicting evidence on this portion of
the defendant's post-conviction petition. The defendant
testified that on May 9, 1990, he was summoned to the
Clinton County jail from the Washington County jail, in
Nashville, where he had been staying. Early that
afternoon, he met with his attorney, Maurice Killion, in
a judge's chambers in the Clinton County courthouse. The
defendant said that the meeting was brief, lasting only
a minute to a minute and a half. According to the
defendant, Killion said that the defendant would have to
testify if he chose a jury trial, and that he should
waive a jury because counsel had not been allowed
sufficient time to prepare for a jury trial and because
a jury would not believe Killion, for he was black. In
addition, Killion said that the defendant would receive
a sentence of 35 years' imprisonment if he agreed to
waive a jury but that he would be executed within 30 days
if a jury found him guilty.
The defense presented other witnesses at the
evidentiary hearing who described the defendant's
preparations for a jury trial. A minister who had
regularly visited the defendant in jail said that he gave
the defendant a haircut on the morning of May 9, 1990,
the day when the waivers were accepted, and that the
defendant did not say then that he would not have a jury
trial. The defendant's mother, Sally Todd, who visited
the defendant frequently while he was jail awaiting
trial, testified that he never said, prior to May 9, that
he was going to waive a jury.
The defendant's trial attorney, Maurice
Killion, testified at the evidentiary hearing that he and
the defendant discussed the jury waivers a number of
times prior to May 9, 1990, the day when the waivers were
executed. According to Killion, he met with the defendant
in a judge's chambers in the courthouse for an hour to an
hour and a half early in the afternoon of May 9. Killion
testified that he recommended that the defendant waive a
jury because a jury would want to hear the defendant
testify, yet the defendant was reluctant to do so;
because photographs from the crime scene were gruesome
and would be upsetting to jurors; and because the trial
judge might be lenient in the wake of a jury waiver.
Killion denied telling the defendant to waive a jury for
any of the reasons mentioned by the defendant in his
testimony at the evidentiary hearing. Killion was
impeached at the hearing with his testimony from a
deposition, in which he said repeatedly that he was
unable to remember what he and the defendant had
discussed regarding the jury waiver. At the post-
conviction hearing, Killion explained that he was deposed
after only several hours' sleep the night before and that
he had not known in advance what particular aspects of
the case would be the focus of the deposition.
Assistant State's Attorney Robert Matoush
testified at the evidentiary hearing that on May 9, 1990,
Killion and the defendant met together in a room in the
courthouse for one or two hours and that the defendant
entered his jury waivers later that afternoon. Matoush
denied that the defendant was ever offered a 35-year
prison term in exchange for the jury waivers. According
to Matoush, the prosecution offered only to forgo seeking
the death penalty if the defendant pleaded guilty to
first degree murder.
At the conclusion of the evidentiary hearing,
the judge rejected the defendant's challenge to the jury
waivers. The judge concluded that the defendant and trial
counsel were together for a period of time considerably
longer than the brief period alleged by the defendant.
The judge believed that the oral admonitions given to the
defendant at the time of the jury waivers were thorough,
and the judge found nothing in the record to show a lack
of knowledge or an absence of voluntariness on the part
of the defendant in making the waivers. The judge also
noted that the defendant did not voice any complaints at
the sentencing hearing, notwithstanding his assertion
that he had been promised a 35-year sentence. The judge
also believed that trial counsel's reasons for preferring
a bench trial were not unreasonable, and the judge found
that it was not surprising that Killion's recollection
would have improved with the passage of time, and through
subsequent efforts at recalling these events.
A defendant's right to a jury at trial is
guaranteed by both the federal and state constitutions
(U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I,
sec. 8, 13); the right to a jury at a capital sentencing
hearing is statutory in origin (Ill. Rev. Stat. 1989, ch.
38, par. 9--1(d); People v. Maxwell, 148 Ill. 2d 116, 142
(1992); People v. Erickson, 117 Ill. 2d 271, 289 (1987)).
Waiver of either right must be knowing, intelligent, and
voluntary. People v. Strickland, 154 Ill. 2d 489, 517
(1992); People v. Buggs, 112 Ill. 2d 284, 292-93 (1986);
People v. Albanese, 104 Ill. 2d 504, 534-36 (1984). There
is no prescribed formula that must be used by a judge
before accepting a defendant's jury waiver, whether for
trial (People v. Smith, 106 Ill. 2d 327, 334 (1985);
People v. Frey, 103 Ill. 2d 327, 332 (1984)) or for a
death penalty hearing (Buggs, 112 Ill. 2d at 292;
Albanese, 104 Ill. 2d at 535-36).
The judge hearing the defendant's post-
conviction petition rejected the defendant's allegations
that he was improperly induced to waive juries for both
trial and sentencing. This finding is not against the
manifest weight of the evidence. The post-conviction
judge found that the meeting between the defendant and
trial counsel on May 9, prior to the jury waivers, lasted
considerably longer than the brief period claimed by the
defendant. In addition, the judge found that trial
counsel's reasons for recommending the jury waivers were
not unreasonable.
Any doubt whether the defendant's jury waivers
were knowing and voluntary is dispelled by a
consideration of the admonitions given to the defendant
by the judge who accepted the waivers. On direct appeal,
this court rejected two challenges to the
comprehensiveness of the admonitions used to advise the
defendant of his right to a jury for the capital
sentencing hearing. People v. Todd, 154 Ill. 2d 57, 72
(1992). The lengthy series of admonitions is reproduced
below:
"THE COURT: Mr. Todd, I have been
handed a document entitled Waiver of Jury
and where you waive your right to trial
by jury in each of the 5 Bills of
Indictment and consent to then a trial by
the Court. Appears to be signed by Robert
B. Todd. Did you sign this here today?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: Any threats or use of
force used against you to get you to sign
this?
ROBERT TODD, DEFENDANT: No, sir.
THE COURT: Any promises made to you
to get you to sign this?
ROBERT TODD, DEFENDANT: No, sir.
THE COURT: You understand what this
is doing?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: What you were doing
before with the jury trial, the State had
to convince 12 people beyond a reasonable
doubt that you were guilty of the
charges, and now all they have got to do
is convince the Judge. Do you understand
that?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: That's what you want to
do?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: Let the record show the
Defendant knowingly and voluntarily
waives trial by jury. Need to contact
Judge Huber as to date for Bench Trial?
MR. MIDDENDORF [State's Attorney]:
Your honor, we are assuming, at this
point, that the trial would remain set
for the 14th of May. I will contact Judge
Huber today with Mr. Killion [defense
counsel] and see whether or not Judge
Huber elects to make any changes.
THE COURT: I will just set it for
Bench Trial then at this time for May
14th. So your case will be set for trial
before the Court on May 14th at 9 o'clock
a.m. Mr. Todd, I have been provided with
a document entitled Waiver of Trial by
Jury for Sentencing Hearing. This appears
to bear the signature of Robert Todd. Did
you sign this document?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: Any threats or use of
force used against you to get you to sign
this?
ROBERT TODD, DEFENDANT: No, sir.
THE COURT: Any promises made to you?
ROBERT TODD, DEFENDANT: No, sir.
THE COURT: I am going to ask you
again back on the waiver of the trial,
the jury trial and as far as this waiver,
did you execute these after fully
consulting with your lawyer?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: You understand, that the-
-I indicated the State is requesting the
death penalty be imposed in this case?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: And so you are entitled
to a jury on that, and there would have
to be unanimous finding. All 12 would
have to find that one of the factors
existed is the factor [sic]. Basically
the State's proceeding on that. There was
another felony involved?
MR. MIDDENDORF: Yes, sir. There have
been 2 separate theories proposed. One is
that the crime of Attempt Criminal Sexual
Assault and the other being--excuse me,
of Robbery. Charged in separate counts of
the Indictment.
THE COURT: So they would have to
present that and have a unanimous finding
of those 12 jurors of one of--one or more
of those factors existed. Now then,
without a jury it will just be up to a
judge to decide that. You understand
that?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: And then if that jury
unanimously found that some of those
factors existed, then they would consider
matters in aggravation and mitigation
which would be prior history, significant
history of prior criminal activity. This
is in mitigation, in your favor. Murder
was committed when you were under the
influence of extreme mental or emotional
disturbance. Murdered individual was
participant in homicidal conduct,
consented to it. That you acted on
compulsion or threat of menace or
imminent infliction of death or great
bodily harm. That you were not personally
present during commission of the act or
acts that caused the death. So now, in
connection with those factors, they would
have to again unanimously decide to
impose the death penalty. So here you'd
have 12 people that they have all got to
agree on, and you are giving up that. Do
you understand that?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: So basically, then it's
your desire that just one person, a
judge, decides your guilt or innocence.
One person, just one judge decides
whether or not the factors, aggravating
factors, exist such that the death
penalty could be imposed? If that's so
found, then only one person, just one
judge, would decide whether or not there
were any mitigating factors or whether
the death sentence could be imposed. So
just one person is going to decide your
entire facts. Do you understand?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: As opposed to 12. Do you
understand that?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: You have no questions at
all?
ROBERT TODD, DEFENDANT: No, sir.
THE COURT: No qualms or hesitations?
ROBERT TODD, DEFENDANT: No, sir.
THE COURT: You are telling the Court
today this is what you freely and
voluntarily--this is what you want to do?
ROBERT TODD, DEFENDANT: Yes, sir.
THE COURT: You don't need any more
time to talk with your lawyer?
ROBERT TODD, DEFENDANT: No, sir.
THE COURT: Very well. Let the record
further show that the Defendant, after
being interrogated, knowingly and
voluntarily executes a Waiver of Trial by
Jury for the Sentencing Hearing. Such a
waiver will be so entered. Do you have
any questions at all?
ROBERT TODD, DEFENDANT: No, sir."
We believe that the preceding admonitions were
sufficient to insure that the defendant's jury waivers
were knowing, intelligent, and voluntary. Notably, in
responding to the judge's questions, the defendant at no
time referred to the promise of a 35-year sentence, the
threat that he would have to testify if he elected to be
tried and sentenced by a jury, or the other comments
allegedly made by trial counsel to induce him to waive
juries for trial and sentencing. The judge below rejected
the defendant's allegations, and we conclude that defense
counsel was not ineffective in his representation of the
defendant regarding this aspect of the proceedings.
The defendant next challenges a provision in
the form he used to waive a jury for sentencing.
Paragraph nine of the waiver form stated:
"My attorney has explained to me,
and I fully understand, that if the court
accepts my waiver of jury trial for
sentencing, that I cannot thereafter at
any time, change my mind, and I will be
forever barred from requesting that a
jury determine sentencing in this case if
I am convicted of the offense of first
degree murder."
The defendant argues that the preceding paragraph
incorrectly suggested that his decision to waive a jury
would be irrevocable. We note that a defendant entering
a jury waiver may later file a motion seeking to withdraw
the waiver; the decision whether to grant or deny the
motion is generally reserved to the trial court's
discretion. People v. Hall, 114 Ill. 2d 376, 414 (1986).
Trial counsel had prepared the waiver form used in this
case, and the defendant contends that trial counsel
rendered ineffective assistance by including the
provision in the form.
The State responds that this particular attack
on the jury waiver comes too late because the issue is
apparent from the record and could have been raised by
the defendant on appeal from his convictions and
sentence. On direct appeal, the defendant did raise two
challenges to the comprehensiveness of the admonitions
given to him prior to his waiver of a sentencing jury. As
we have stated, this court rejected the defendant's
arguments, finding no error in the court's admonitions to
the defendant. People v. Todd, 154 Ill. 2d 57, 72 (1992).
Clearly, the defendant at that time could have also
challenged the presence of paragraph nine in the waiver
form, which was a part of the record in the case. The
defendant makes the additional argument, however, that
appellate counsel was ineffective for failing to
challenge on direct appeal the competency of trial
counsel. Because this is the defendant's first
opportunity to challenge appellate counsel's performance,
we find it necessary to address the merits of this issue.
See People v. Tenner, 175 Ill. 2d 372, 386 (1997).
We do not believe that the infirmity alleged in
paragraph nine denied the defendant his right to
competent counsel. The constitutional guarantee to the
assistance of counsel (U.S. Const., amends. VI, XIV)
encompasses the right to the effective assistance of
counsel (Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 343-44, 100 S. Ct. 1708, 1716 (1980)), both at
trial and on a first appeal as of right (Evitts v. Lucey,
469 U.S. 387, 396-97, 83 L. Ed. 2d 821, 830-31, 105 S. Ct. 830, 836-37 (1985). In Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1986), the
Supreme Court articulated a two-part test for resolving
claims of ineffective assistance of counsel. To prevail
on a claim of ineffective assistance, a defendant must
establish both that counsel's performance was deficient
and that the deficiency was prejudicial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. To
demonstrate prejudice resulting from an asserted
deficiency in counsel's performance, "[t]he defendant
must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694,
80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
Assuming that trial counsel was deficient for
including this provision in the jury waiver, the relevant
question under the prejudice component of the Strickland
standard is "whether there exists a reasonable likelihood
that the defendant would not have waived his jury right
in the absence of the alleged error." People v. Maxwell,
148 Ill. 2d 116, 142 (1992). We conclude that inclusion
of the challenged paragraph could not have affected the
defendant's election to waive a sentencing jury in this
case. It must be recognized that the provision in
paragraph nine would have advised the reader that the
consequences of a jury waiver were more onerous than they
actually are. By suggesting that withdrawal of the waiver
was always and forever barred, paragraph nine of the form
imposed a disincentive to the decision to surrender the
right to a jury. Thus, if the provision had had any
effect on the reader, it would have been to make waiver
of the right less likely, not more likely. The defendant,
however, persisted in his desire to waive a jury for
sentencing, even in the face of the statement that his
decision would be irrevocable. Given these circumstances,
we must therefore conclude that paragraph nine of the
waiver form did not affect the defendant's decision to
give up the right to a jury, and this claim of
ineffective assistance must therefore fail.
The defendant also briefly argues that the
written waiver was defective because it did not
specifically refer to the eligibility stage of the
sentencing hearing. The defendant notes that trial
counsel in his deposition and at the hearing was somewhat
vague about when that stage occurred, at one point saying
that it was when the grand jury indicted the defendant
for a capital offense; counsel also correctly stated that
it occurred after a finding of guilt in a capital case.
Although this issue could have been raised on direct
appeal, we will consider the claim on its merits, for the
defendant makes the additional assertion that appellate
counsel was ineffective for failing to challenge trial
counsel's representation. We do not believe that the
written waiver was required to mention specifically the
eligibility stage of the sentencing hearing. We note that
the death penalty statute refers to the waiver of a jury
for the separate sentencing proceeding, without speaking
of separate waivers for the two stages of the hearing.
See Ill. Rev. Stat. 1989, ch. 38, par. 9--1(d). The
admonitions provided by the judge who accepted the
defendant's waivers sufficiently explained the process of
capital sentencing, and we find no infirmity in the
waiver on this ground.
The defendant, in his final argument pertaining
to the jury waiver, contends that he later informed
counsel that he wanted to withdraw the waivers but that
his attorney refused to do so, telling him that the
waivers were irrevocable. The defendant contends that
counsel was ineffective for giving him that advice. The
sole reason assigned by the defendant for his desire to
withdraw the waivers is that he did not trust the trial
judge in this case. The defendant's statement was
contradicted by trial counsel, who, at the hearing on the
post-conviction petition, denied that the defendant
sought to withdraw the jury waivers. Killion further
testified that if the defendant had asked him to withdraw
the jury waivers, he would have filed a motion to do so.
In denying the defendant's post-conviction petition, the
judge below did not specifically address this contention,
though apparently he rejected the defendant's testimony
on this point.
Assuming that the defendant wished to withdraw
the jury waivers, we do not consider it likely that the
trial judge would have granted the motion. "The question
of whether a jury waiver may be withdrawn rests within
the discretion of the trial court unless the
circumstances indicate the defendant was unaware of the
consequences of the waiver." People v. Hall, 114 Ill. 2d 376, 414 (1986). The only reason assigned for the
defendant's change of heart is his assertion that he did
not trust the trial judge. We agree with the State that
it is unlikely that the trial judge would have allowed a
motion to withdraw the waiver on that ground. Counsel's
failure to file the requisite motion therefore could not
have been prejudicial to the defendant, and we must
therefore reject the defendant's contention that trial
counsel was ineffective for not moving to withdraw the
jury waivers.
II
The defendant next argues that trial counsel
was ineffective for not investigating and presenting
additional mitigating evidence that was available at the
time of the sentencing hearing. In support of this
contention the defendant submitted, as part of his
amended post-conviction petition, a report from a
psychologist who had examined the defendant, a report
from a mitigation specialist who had conducted an
investigation into the defendant's personal history, and
affidavits from some 28 family members, neighbors, and
friends offering mitigating evidence. Both the
psychologist and the mitigation specialist testified at
the post-conviction hearing below. Before addressing the
merits of this contention, we will review the evidence
presented by defense counsel at the capital sentencing
hearing and the evidence now offered by the defendant in
support of his ineffective-assistance claim.
At the defendant's capital sentencing hearing,
defense counsel introduced mitigating testimony from a
variety of witnesses. A mitigation specialist, Arlene
Messner Peters, had conducted an investigation of the
defendant's personal history, and she testified at the
sentencing hearing, summarizing her findings. Also, her
report on the defendant was admitted into evidence. At
the sentencing hearing, Peters testified that the
defendant's mother was a strict disciplinarian and would
often strike the defendant. On one occasion, she threw a
knife at the defendant but missed him, hitting an
aquarium instead. On several occasions, the mother would
become angry if the defendant and his two younger sisters
had not cleaned up dirty dishes by the time she returned
home; their mother would then throw the food and dishes
on the floor and order the children to clean up the mess.
The defendant stuttered as a young child and was often
picked on by other children as a result. He also did
poorly in school. The family's house was small and
cramped, and the defendant's sleeping area was in the
kitchen. The defendant was particularly close to his
sister Laurie, who is several years younger than the
defendant.
Messner further related that, after graduating
from high school, the defendant attended a Bible college
for a year and worked in a variety of jobs. Later, he
joined the army, serving for 1« years. Around this time,
the defendant was using drugs heavily. He later stopped
using drugs. The defendant had no prior criminal record,
and he was not a problem while incarcerated for the
offenses here.
The defendant's mother also testified at the
sentencing hearing. She described, among other incidents
in the defendant's life, three suicide attempts by the
defendant, beginning when he was a teenager. The defense
also introduced favorable testimony from the defendant's
two sisters and his father, and from a clergyman and the
parents of his fiancée.
At the conclusion of the hearing, defense
counsel argued that the defendant's background
demonstrated a number of mitigating circumstances,
including the commission of the offenses while the
defendant was under the influence of extreme mental or
emotional disturbance, the defendant's history of drug
and alcohol abuse, his religious upbringing and beliefs,
and his learning disability.
The defendant now argues that trial counsel
should have conducted a more extensive investigation and
could have presented additional testimony that was
available at the time of the original sentencing
proceeding. At the evidentiary hearing on the defendant's
post-conviction petition, the defendant presented
testimony from several witnesses in support of this
contention. Dr. Keenan Ferrell, a clinical psychologist,
testified that he had examined and tested the defendant
over a two-day period. Personality tests showed the
defendant to be impulsive, deviant, and paranoid. Dr.
Ferrell found that the defendant had an IQ of 86, but Dr.
Ferrell said that the defendant's grade school records
credited the defendant with above-average intelligence.
Dr. Ferrell believed that the decline in the defendant's
abilities was indicative of a head injury, and the
defendant had sustained a serious one when he was 12 or
13 years old. The defendant reported a number of
incidents of abuse committed by his mother, including
having liquid detergent poured down his throat. The
defendant began to stutter when he was seven years old,
and Dr. Ferrell stated that this was a sign of emotional
torment. Dr. Ferrell concluded that the defendant was
emotionally and psychologically damaged. Although the
defendant had no recollection of being sexually abused,
Dr. Ferrell believed that many of the defendant's
characteristics were consistent with sexual abuse.
Caryn Platt Tatelli, a mitigation specialist,
investigated the defendant's background, interviewing
more than 25 persons and reviewing a number of records.
Tatelli prepared a report summarizing her findings; the
report and its voluminous attachments were made a part of
the defendant's post-conviction petition. Tatelli learned
of a number of acts of abuse committed against the
defendant by his mother. For example, while the defendant
was being toilet trained, his mother would make him run
outside naked if he had an accident. Also, the defendant
sustained a number of head injuries when he was a child.
The first one occurred when the defendant was four years
old, when he fell off a bed. Later, around the age of 12,
the defendant suffered an injury to his scalp that
required between 20 and 30 stitches to close; shortly
after that injury, the defendant's mother became angry
with him and ripped the stitches open. Tatelli reported
that the defendant had raped his sister Laurie when he
was 12 years old and she was 9. Tatelli believed that the
defendant was also sexually abused as a child.
In support of the amended post-conviction
petition, the defendant also submitted affidavits from a
number of relatives, neighbors, and friends who stated
that they would have testified at the defendant's
sentencing hearing if they had been called as witnesses.
These persons described the defendant's childhood home
environment as well as various incidents in the
defendant's life. The defendant's parents and sisters
also submitted affidavits, stating that they were not
adequately prepared by trial counsel before the
sentencing hearing and describing other items of
information that had not been elicited from them at the
earlier proceeding.
As we have stated, in Strickland v. Washington,
466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1986),
the Supreme Court formulated a two-part test for
resolving claims of ineffective assistance of counsel. To
prevail on a claim of ineffective assistance, a defendant
must establish both that counsel's performance was
deficient and that the deficiency was prejudicial.
Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Judicial scrutiny of counsel's performance
is highly deferential, and a court considering an
allegation of ineffective assistance "must indulge a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance."
Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.
Even if counsel's performance is objectively
unreasonable, however, relief is not automatically
warranted, for a defendant must also show that he was
prejudiced as a result of counsel's deficient
performance. "An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment
of a criminal proceeding if the error had no effect on
the judgment." Strickland, 466 U.S. at 691, 80 L. Ed. 2d
at 696, 104 S. Ct. at 2066. To establish prejudice,
"[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Because a defendant must establish both a
deficiency in counsel's performance and prejudice
resulting from the alleged deficiency, failure to
establish either proposition will prove fatal to the
claim. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699,
104 S. Ct. at 2069; People v. Harris, 164 Ill. 2d 322,
349 (1994).
The defendant complains that trial counsel did
not present, as mitigating evidence at the sentencing
hearing, more detailed testimony regarding a series of
head injuries the defendant suffered as a child, or
testimony concerning the reasons for his three separate
suicide attempts, among other things. The defendant
maintains that the information provided by the defense
witnesses at the hearing gave only a superficial analysis
of his background and personality.
We are unpersuaded by the defendant's challenge
to the conduct of his attorney at the sentencing hearing.
Unlike defense counsel in People v. Perez, 148 Ill. 2d 168 (1992), cited by the defendant, defense counsel in
this case presented a substantial amount of mitigating
testimony. Moreover, defense counsel's strategic decision
not to present other types of evidence was made after
investigation and should be accorded substantial
deference. Counsel explained at his deposition that the
defendant had undergone a fitness evaluation by a
psychiatrist before trial, and that counsel then learned
of the defendant's propensity for violence from the
psychiatric report. Trial counsel and the mitigation
specialist thus decided not to use the information at the
sentencing hearing because they believed that it would be
more harmful than helpful to the defendant's case.
Counsel's determination not to pursue this line of
inquiry further was a strategic decision, made after
investigation, and is entitled to substantial deference.
In Strickland the Supreme Court stated:
"[S]trategic choices made after thorough
investigation of law and facts relevant
to plausible options are virtually
unchallengeable; and strategic choices
made after less than complete
investigation are reasonable precisely to
the extent that reasonable professional
judgments support the limitations on
investigation. In other words, counsel
has a duty to make reasonable
investigations or to make a reasonable
decision that makes particular
investigations unnecessary. In any
ineffectiveness case, a particular
decision not to investigate must be
directly assessed for reasonableness in
all the circumstances, applying a heavy
measure of deference to counsel's
judgments." Strickland, 466 U.S. at 690-
91, 80 L. Ed. 2d at 695, 104 S. Ct. at
2066.
The record in this case shows that trial
counsel considered the possibility of introducing expert
testimony about the defendant's mental condition and
functioning but chose not to pursue that inquiry because
counsel feared that information about the defendant's
violent nature would also be revealed. Counsel's concerns
were borne out at the post-conviction hearing, when Dr.
Ferrell stated that his testing of the defendant showed
a person who was impulsive, deviant, and paranoid.
Trial counsel's strategic decision to forgo
evidence of this nature is entitled to deference. In
People v. Tenner, 175 Ill. 2d 372, 382 (1997), this court
noted "the potentially ambiguous nature of evidence of
mental problems," for "information about a defendant's
mental or psychological impairment is not inherently
mitigating." Tenner stated, "At sentencing, a judge or
jury considering evidence of this nature might view the
information as either mitigating or aggravating,
depending, of course, on whether the individual hearing
the evidence finds that it evokes compassion or
demonstrates possible future dangerousness." Tenner, 175 Ill. 2d at 382.
We believe that other evidence now offered by
the defendant in support of his request for a new
sentencing hearing is essentially cumulative of
information presented at the sentencing hearing by trial
counsel or does not give rise to a reasonable probability
that its introduction at the sentencing hearing would
have produced a sentence other than the sentence of death
imposed on the defendant. The defendant has prepared a
table listing the items of information included in the
mitigation report prepared by the post-conviction
mitigation specialist, Caryn Tatelli, and omitted from
the report done by Arlene Peters, who testified at the
sentencing hearing. Some of this information was
presented at the sentencing hearing through the testimony
of other witnesses. We have examined the other items of
information that the defendant contends should have been
presented at this sentencing hearing, and we are not
persuaded that introduction of this additional testimony
would have had any effect on the judge's decision to
impose the death penalty in this case. For example,
testimony about the defendant's parents' own substance
abuse problems would have added little to the mitigating
case counsel was attempting to build. Evidence of the
family's shaky finances would have been unnecessary, for
the sentencer in this case, the trial judge, was aware
that the defendant was required to sleep in the kitchen
of the family's small house. Evidence of steady
employment is mitigating (see People v. Johnson, 128 Ill. 2d 253, 281-82 (1989); evidence of the defendant's spotty
work history would have been construed as aggravating.
In determining whether the defendant incurred
prejudice as a result of trial counsel's asserted
deficiencies at the sentencing hearing, we must ask
"whether there is a reasonable probability that, absent
the errors, the sentencer--including an appellate court,
to the extent that it independently reweighs the
evidence--would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death." Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698,
104 S. Ct. at 2069. We do not believe that there is a
reasonable probability that presentation of the
additional evidence cited by the defendant would have
resulted in a sentence other than death, given the nature
of the offenses in this case, and the circumstances and
character of the defendant.
III
The defendant raises a number other claims of
ineffective assistance of counsel; the judge hearing the
post-conviction petition denied them without an
evidentiary hearing, concluding that all of these
contentions had been waived or resolved on direct appeal.
Because the defendant also argues that counsel on direct
appeal was ineffective for failing to challenge trial
counsel's alleged deficiencies, we will consider these
issues on their merits.
The defendant first argues that trial counsel
was ineffective for not requesting a continuance when, on
May 3, 1990, less than two weeks before trial was
scheduled to begin, the grand jury indicted the defendant
on a fifth count, alleging the defendant's commission of
murder during the course of a robbery. The genesis for
this additional count was the discovery of the victim's
purse in a farmer's field near Beckemeyer on March 22,
1990. The defendant suggests that trial counsel needed
additional time to investigate the circumstances
surrounding the discovery of the purse. On April 26,
1990, counsel learned of the purse and of the
prosecutor's intent to seek an additional charge against
the defendant. The purse was sent to a laboratory for
analysis, and no fingerprints were found on it or on the
wallet that was inside. Moreover, hairs in the purse
could not be traced to the defendant. We agree with the
State that the discovery of the purse did not represent
new evidence that defense counsel needed time to
challenge, and that the additional charge could not have
affected the defense theory at trial, which was to deny
the defendant's participation in the offenses.
The defendant also argues that trial counsel
was ineffective for failing to object to the
prosecution's amendment of count II of the indictment.
Count II originally alleged that the defendant committed
the offense of first degree murder by stabbing, choking,
and beating the victim about the head, "knowing such act
committed [sic] a strong probability of death or great
bodily harm." By amendment, the word "committed" was
replaced with the "created." Prior counsel had agreed to
this change on July 26, 1989, shortly after the
indictment was returned; the defendant argues that trial
counsel, Maurice Killion, who was later appointed to
represent the defendant in this case, should have moved
for a directed finding on this count at the close of the
State's evidence. Amendments to an indictment are
permitted to correct formal defects, including "[a]ny
miswriting, misspelling, or grammatical error." Ill. Rev.
Stat. 1989, ch. 38, par. 111--5(a). Here, the amendment
corrected what was merely a formal defect in the charge
and therefore was permissible. See People v. Griggs, 152 Ill. 2d 1, 32-33 (1992). We do not believe that
substitution of the word "created" for the word
"committed" worked a material change in the count.
The defendant next contends that trial counsel
was ineffective for failing to obtain a hair
identification expert to testify to the significance of
evidence showing that no hairs consistent with the
defendant's hair standards were found on the victim or at
the crime scene. The defendant notes that the State's
forensic experts were unable to link the defendant to any
of the hairs discovered after the offenses, and the
defendant believes that an additional expert would have
undermined the prosecution theory that the defendant
removed the victim's clothing and strangled the victim
without depositing any of his own hairs.
The defense did call as a witness one expert,
Eleanor Gillespie, a forensic scientist for the Illinois
State Police. Gillespie had compared hairs found at the
crime scene and on the victim's body with hair standards
taken from the victim and the defendant, and she
concluded that there was no transfer of hair between the
defendant and the victim. Most of the hair samples were
consistent with the victim's own hair, and none of the
hairs found on the victim's body or at the scene could be
linked to the defendant; at least two hairs could not be
identified at all. The defendant maintains that counsel
should have called another expert to testify that it
would have been unlikely for the defendant to have
committed the offenses without leaving behind strands of
his own hair. We note that defense counsel made this
argument at trial, and the defendant has not shown
whether any expert was available who would have been able
to couch the argument in scientific terms. The
defendant's complaint is merely speculative.
The defendant next raises a series of brief
challenges to the competency of trial counsel, and we
will consider these in summary fashion. Contrary to the
defendant's argument, we do not believe that trial
counsel was ineffective for his supposed acquiescence in
the trial court's decision to consider a motion under
Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), during trial rather than before trial.
The defendant believes that the tardy consideration of
the motion meant that the trier of fact could hear
evidence that would later be deemed inadmissible. We note
that the judge denied the motion, so the defendant's
present concerns are unfounded. In addition, the
defendant's trial was a bench proceeding, and there is a
strong presumption that judges base their findings only
on competent evidence. People v. Tye, 141 Ill. 2d 1, 26
(1990).
We find no deficiency in counsel's failure to
make an opening statement at trial; again, this was a
bench proceeding, and we do not believe that counsel's
failure to address the court at the point in the
proceedings could have had any effect on the judge's
resolution of the case. We note, too, that the
prosecutor, in his opening statement, merely read the
indictments against the defendant. Nor do we find any
deficiency in trial counsel's failure to challenge the
victim's daughter's identification of her mother's purse.
The purse contained the victim's driver's license, which
certainly was sufficient to establish the victim's
ownership.
The defendant next complains that trial counsel
failed to cross-examine prosecution witness Linda Berry,
the bartender at the Main Street Tavern in Beckemeyer,
who testified at trial that she saw the defendant and the
victim together shortly before the victim's death. Rather
than cross-examine the witness, trial counsel simply
noted to the court that he believed Berry's testimony was
irrelevant. The defendant has not shown what greater
advantage defense could have gained in this case from
cross-examining the witness. Nor do we believe that
counsel was ineffective for failing to ask the
defendant's cellmate, Scott Nielson, what consideration,
if any, the State had promised him in exchange for his
testimony at trial. In discovery prior to trial the State
disclosed that no promises or rewards were made to any
witnesses. The defendant has neither alleged nor shown
here that the prosecutor's response was untruthful in
relation to Nielson.
The defendant also complains that counsel
failed to argue at trial that the defendant did not have
the intent to rob the victim prior to her death. The
defendant believes that an argument like that could have
forestalled a conviction on a felony murder theory. The
defendant apparently believes that the absence of a
finding on that charge would have precluded the trial
judge's later determination that the defendant was
eligible for the death penalty for his commission of
murder in the course of a robbery. The defense theory at
trial was that the defendant did not have any role in the
offenses committed here and, further, that no robbery or
theft occurred. An argument like the one now proposed by
the defendant would have directly contradicted that
theory by placing the defendant at the crime scene and
attributing to him the acts that caused the victim's
death. Moreover, we note that this court, in the
defendant's direct appeal, held that the defendant could
be found eligible for the death penalty even if the State
did not prove that the defendant had formed the intent to
rob the victim before committing the murder. People v.
Todd, 154 Ill. 2d 57, 73 (1992).
As a final matter, the defendant argues that
the trial judge improperly imposed sentence only on count
I of the indictment, which, the defendant asserts without
explanation, is not an offense for which he may receive
the death penalty. We note that the defendant was charged
with four counts of first degree murder, based on
sections 9--1(a)(1), 9--1(a)(2), and 9--1(a)(3) of the
Criminal Code of 1961. Ill. Rev. Stat. 1989, ch. 38,
pars. 9--1(a)(1), (a)(2), (a)(3). Count I, charging first
degree murder under section 9--1(a)(1), represented the
most serious form of the offense and therefore is
properly the one on which the sentence of death is
imposed. See People v. Pitsonbarger, 142 Ill. 2d 353,
377-78 (1990); People v. Lego, 116 Ill. 2d 323, 344
(1987); People v. Guest, 115 Ill. 2d 72, 103-04 (1986).
* * *
For the reasons stated, the judgment of the
circuit court of Clinton County is affirmed. The clerk of
this court is directed to enter an order setting
Thursday, January 22, 1998, as the date on which the
sentence of death entered in the circuit court of Clinton
County is to be carried out. The defendant shall be
executed in the manner provided by law (725 ILCS 5/119--5
(West 1996)). The clerk of this court shall send a
certified copy of the mandate in this case to the
Director of Corrections, to the warden of Stateville
Correctional Center, and to the warden of the institution
where the defendant is now confined.
Judgment affirmed.
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