People v. Maxwell

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the opinion to request a rehearing. Also, opinions are subject to
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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. 77419--Agenda 2--March 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ANDREW MAXWELL,
Appellant.
Opinion filed June 20, 1996.

JUSTICE HARRISON delivered the opinion of the court:
The defendant, Andrew Maxwell, appeals (134 Ill. 2d R. 651(a)) the
judgment of the circuit court of Cook County dismissing without an
evidentiary hearing his amended petition for post-conviction relief, brought
pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West
1992)). Following a jury trial the defendant was convicted of murder and
attempted armed robbery committed on October 26, 1986. He waived his right to
a jury for purposes of his capital sentencing hearing, and the trial court
imposed a sentence of death on the conviction for murder and a term of 15
years on the conviction for attempted armed robbery. In his direct appeal
(People v. Maxwell, (1992)), this court affirmed his
convictions and sentences. Thereafter the United States Supreme Court denied
his petition for a writ of certiorari (Maxwell v. Illinois, 506 U.S. 977, 121 L. Ed. 2d 377, 113 S. Ct. 471 (1992)). Challenging the dismissal of his
amended petition without an evidentiary hearing, defendant presents 22 issues
for our review. For the reasons that follow, we affirm. Because the facts of
this case are set forth adequately in the opinion concerning defendant's
direct appeal, we state here only those facts necessary to the disposition of
his post-conviction appeal.
A proceeding brought pursuant to the Post-Conviction Hearing Act is not
an appeal per se but, rather, a collateral attack on a judgment. People v.
Caballero, , 258 (1989). The purpose of the proceeding is to
allow inquiry into constitutional issues related to the original conviction
that have not or could not have been adjudicated. People v. Whitehead, 169 Ill. 2d 355, 370 (1996). It is the defendant's burden to show a substantial
deprivation of his constitutional rights (Whitehead, 169 Ill. 2d at 370), and
determinations made by the circuit court will not be disturbed unless they
are manifestly erroneous (People v. Silagy, , 365 (1987)). The
defendant is not entitled to an evidentiary hearing unless the allegations of
his petition, supported where appropriate by the trial record or accompanying
affidavits, make a substantial showing that his rights have been so violated.
Caballero, 126 Ill. 2d at 259. In determining whether an evidentiary hearing
should be granted, all well-pleaded facts in the petition and in any
accompanying affidavits are to be taken as true. Caballero, 126 Ill. 2d at
259.
Initially defendant contends that he was denied his constitutional right
to the effective assistance of counsel at the second phase of the sentencing
proceeding because counsel failed "to investigate and present available
evidence in mitigation." Specifically, defendant asserts that trial counsel
conducted virtually no investigation into his background, failing (1) to
investigate his developmental history; (2) to discover and present to the
court not only his school records, which would have revealed his intellectual
and developmental deficits, but also his medical records as well as records
of childhood psychological tests; (3) to obtain a professional drug and
alcohol evaluation with which to gauge the extent of his problem with
substance abuse; (4) to discover the alcoholism and attendant denial that
pervaded his family, which would have been revealed and explained had counsel
obtained a comprehensive social history; (5) to obtain any kind of current
psychological or psychiatric evaluation; and (6) to interview the defendant
himself sufficiently. The defendant's voluminous amended post-conviction
petition, which includes numerous supporting reports and affidavits attached
as exhibits, sets forth these claims in detail.
In his amended petition defendant alleges that because trial counsel
failed to obtain his school records, counsel did not know of the
determination by his school that he was, in defendant's words, "educably
mentally handicapped" and that, as a result, counsel could not make an
informed decision as to how this information would affect sentencing. In the
same way, defendant alleges, counsel did not know of defendant's "borderline
mentally retarded I.Q." Similarly, counsel's failure to obtain a drug and
alcohol evaluation of defendant meant that his attorneys were not fully aware
of the extent of his problems. Counsel's failure to interview defendant's
father and his sisters, Monalisa Maxwell and Martha Brown, and to investigate
or evaluate drug and alcohol usage in his immediate family prevented counsel
from understanding defendant's drug dependency, his intellectual and
developmental deficiencies, and his family's denial of those problems; as a
consequence, defendant alleges, counsel lacked a strategy for mitigation.
Defendant alleges finally with respect to this first claim of his amended
petition:
"Assuming arguendo that trial counsel was not inadequate for
concluding, based on her limited investigation, that [defendant]
had not had significant intellectual, physical and developmental
deficits, trial counsel was put on notice of these problems by the
Presentence Report which had been filed March 11, 1988. [Ex. 17]
[sic] Counsel was incompetent for failing to pursue this evidence."
The defendant includes as an exhibit in support of this claim the
affidavit of Louis Hemmerich, Ph.D., a clinical psychologist who tested him
on March 14, 1993. The affidavit includes the report of his psychological
evaluation. In it the defendant is reported to have stated that he had been
held back in the third grade because of a lack of academic progress and that
he had been in special education classes during most of his formal education.
The defendant also reported having had psychiatric counseling, in Dr.
Hemmerich's words, "for a brief period of time, about six months, when he was
in the third or fourth grade." He described the defendant's Full Scale score
on the Wechsler Adult Intelligence Scale-Revised as being within the
borderline mentally retarded range of intellectual ability. The pattern of
scores obtained on this administration of the intelligence test suggests, Dr.
Hemmerich concluded, that defendant suffers from a verbal information
processing learning disability. In his summary he assessed the test results
as indicating that defendant was functioning "within the borderline mentally
retarded range to the low average range of intellectual ability."
Dr. Hemmerich stated further that defendant
"reported a serious history of alcohol and drug abuse. He stated
that he began smoking marijuana at the age of twelve. At that time,
his sisters would encourage him to smoke a joint with them since
they enjoyed watching him `get silly.' He reportedly began drinking
alcohol at approximately the age of 14. At the age of 16, he began
using cocaine. During this period of time, he also took codeine, up
to three ounces of syrup and three pills at a time. By the age of
17, he admitted to drinking « pint of whiskey and smoking a nickel
bag of marijuana each night. Later that year, he stated that he
would smoke marijuana laced with cocaine. He stated that he had a
hard time functioning without using drugs and alcohol, and
reportedly used substances on a daily basis."
Dr. Hemmerich concluded that the amount of drugs and alcohol reportedly
consumed, as well as the withdrawal symptoms defendant reported, suggest that
he was physiologically addicted to drugs and alcohol. The psychologist
reported further that defendant
"stated that he had never participated in any drug or alcohol
treatment program. He stated, `I never admitted I had a problem.'
He stated that he has experienced numerous legal difficulties due
to drug and alcohol abuse. He has been arrested a number of times
over the years for illegal activities which he stated that he
engaged in [sic] order to support his drug and alcohol habits."
In ruling upon the State's motion to dismiss the amended petition
without an evidentiary hearing, the circuit court, having examined the
petition and exhibits, remarked as follows:
"We have had an opportunity on several occasions, I might add,
to review all of the material that has been submitted to us.
Obviously, we are very familiar with the case, having heard the
case, the case at the trial level, and having presided over all of
the proceedings therein, not only on the trial but also the
preliminary motions, and also obviously the sentencing proceedings.
We have reviewed the post-conviction petition. ***
*** We *** feel, and we have reviewed this thoroughly, that
the provisions, the two-pronged test in Strickland; i.e., whether
counsel's performance at the sentencing proceeding fell below what
is commonly accepted standard and maybe more importantly at least
in the Court's mind, but for that error, whether the results would
be different, and we most respectfully come down on the side of the
State because we feel it would not have, and the motion to dismiss
the post-conviction petition will be granted."
Available to the trial judge prior to sentencing was the presentence
investigation report, to which defendant refers in his amended petition.
About the physical and mental health of the defendant, who was born in
November of 1966, the report says,
"The defendant states that when he was in third grade his
teacher recommended he see a psychiatrist. He states he saw some
doctor for his third and fourth grade years once a week. He states
he has no idea why he was seeing this doctor and doesn't remember
what the doctors [sic] name was.
The defendant states that since fifth grade he was placed in
slow learner classes and does not have any idea why he was placed
in that type of program."
Of defendant's history of alcohol and drug use, the report indicates,
"The defendant states he began drinking at age seventeen and
stated since that time he has been drinking beer and/or vodka every
day, depending on the day he may drink anywhere from three beers to
a twelve pack and/or one half pint vodka.
The defendant states he began using marijuana at age
seventeen. He also states he uses marijuana and cocaine everyday
and has so since around age seventeen.
He states he smokes two nickel bags of marijuana everyday and
states he uses $20.00 to $25.00 a day of cocaine. He states he
supported his habits by Public Assistance, odd jobs, paper routes,
and his mother. The defendant states he knew he had a drug problem
since age seventeen but has never tried to get help for this
problem."
The report includes statements by the defendant concerning his parents' use
of alcohol and his sisters' use of marijuana.
It is well established that the standard for determining whether a
defendant has received effective assistance of counsel at trial or at a death
penalty hearing consists of two elements, deficiency and prejudice. People v.
Brisbon, , 245-46 (1995); Strickland v. Washington, , 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) (adopted by this court in
People v. Albanese, (1984)). Under this two-part test, a
defendant must show that counsel's performance fell below an objective
standard of reasonableness and that there is a reasonable probability that,
were it not for counsel's professional errors, the result of the proceeding
would have been different. Whitehead, 169 Ill. 2d at 390. A reasonable
probability is one sufficient to undermine confidence in the outcome of the
proceeding. Whitehead, 169 Ill. 2d at 390. To establish ineffective
assistance of counsel at a death sentencing hearing, the defendant must prove
that counsel's representation was deficient and that, but for counsel's
deficient conduct, the sentencer would have concluded that the balance of
aggravating and mitigating factors did not warrant death. Brisbon, 164 Ill. 2d at 246.
We need not determine whether counsel's performance fell below an
objective standard of reasonableness because defendant fails to show that
counsel's alleged omissions prejudiced him. The gulf is relatively slight
between what the trial judge knew from his reading of the presentence
investigation report at the time of sentencing with respect to defendant's
intellectual and developmental deficits and his and his family's drug and
alcohol abuse and what defendant alleges in this regard in his amended post-
conviction petition. As a result, there is no reasonable probability that,
had counsel provided this information to the court and focused upon it at the
sentencing hearing, the court would have concluded that the balance of
aggravating and mitigating factors, which are summarized in the opinion in
defendant's direct appeal, did not warrant the imposition of the death
penalty. Indeed, the circuit court, which noted that it had reviewed all of
the material submitted with respect to defendant's amended post-conviction
petition and that it had presided over all of the proceedings related to
defendant's trial and sentencing hearing, ruled in favor of the State because
of the court's express feeling that the outcome would have been no different.
Our reading of the record leads us to the same conclusion. This entirely
reasonable determination by the circuit court can hardly be said to be
manifestly erroneous, and we will not disturb it.
Defendant contends next that he was denied the effective assistance of
counsel at sentencing because trial counsel advised him "that the court would
not impose death, and [defendant] relied upon that advice when he waived
jury." He claims that he was induced to waive jury for sentencing through
trial counsel's assurance that the judge had signaled that he would not
sentence defendant to death. In an affidavit attached as an exhibit to his
amended petition, defendant states, "[B]efore the time that I waived my right
to a jury at sentencing, my trial counsel, Clare Hillyard, advised me that
the trial judge *** had stated to her that [he] would not impose the death
penalty if I waived a jury at sentencing." Defendant states further, "[I]n
reliance upon counsel's advice that Judge Karnezis would not impose the death
penalty, I agreed to waive a jury at sentencing, despite my initial
reluctance to waive my right to a jury." In an affidavit attached as an
exhibit to defendant's amended petition, Clare Hillyard, who was one of
defendant's trial attorneys, states as follows:
"That [defendant] agreed to waive a jury for any possible
sentencing proceedings prior to the jury selection in the guilt-
innocence phase of his trial; that he was fully informed of the
advantages and disadvantages of his options; that careful
consideration was given to this decision over a long period of
time.
*** That during a strategy discussion after the jury verdict,
the Judge made a comment in the presence of the State's Attorneys,
defense counsel and the defendant about the death penalty, `if it
comes to that'; [t]hat a facial expression and voice inflection
inspired the belief that the death penalty would not be imposed;
that none of the prepared mitigation was curtailed as a result of
said comment."
Also attached to the amended petition as an exhibit is the affidavit of
Charles Hoffman, who represented defendant in his direct appeal; he states
that at a meeting following defendant's conviction and sentencing, Clare
Hillyard and defendant's other attorney at trial, Michael Brennock, told him
that
"prior to sentencing, they had firmly believed that Judge Karnezis
would not impose death on [the defendant]. They said they got what
they interpreted as a `signal' from Judge Karnezis that if they
took a bench sentencing, he would not impose a sentence of death.
Brennock said that in his discussions with [defendant] on whether
to take a bench or jury sentencing, Brennock told [defendant] that
he was `99% sure' that Judge Karnezis would not impose death.
Hillyard and Brennock told me they were `stunned' when Judge
Karnezis imposed death on [defendant]."
Another affidavit attached to defendant's amended petition as an exhibit is
that of David Rothal, who is one of the attorneys representing defendant in
this appeal. He indicates that during a three-way telephone conference with
Clare Hillyard and the other attorney representing defendant in this appeal,
"Ms. Hillyard stated that based upon Judge Karnezis' statement `if it comes
to that', her determination that [defendant's] case was not a particularly
aggravating one, and other factors, she recommended to [defendant] that he
waive a jury for sentencing."
In defendant's direct appeal he contended that his waiver of a jury for
purposes of the sentencing hearing was invalid because it was based on the
erroneous advice of his attorney, given to him because of counsel's mistaken
belief that evidence of defendant's involvement in offenses of which he had
not yet been convicted could not be introduced at the sentencing hearing.
Maxwell, 148 Ill. 2d at 140, 143. Defendant maintained that counsel was
ineffective and his jury waiver, therefore, invalid. Maxwell, 148 Ill. 2d at
142. Counsel's error notwithstanding, this court concluded, on the record
before it, that counsel had not rendered ineffective assistance in advising
defendant to waive a jury and that the defendant's jury waiver was not
invalid on this ground:
"As an examination of defense counsel's remarks makes clear,
counsel offered three distinct reasons in support of her decision
to advise the defendant to waive a jury for the sentencing hearing.
First, counsel apparently believed that the judge was more likely
to be lenient than a jury; counsel stated that she and her client
preferred that the judge make the sentencing determination. Second,
counsel wanted to preclude death-qualification of the jury for
purposes of the guilt phase of the proceedings. (See Daley v. Hett
(1986), .) Third, counsel did not want the sentencing
decision to be made by a jury if its members had been exposed to,
or, in counsel's words, had been `inflamed' by, evidence of the
defendant's other offenses. For these reasons, then, counsel
recommended that the defendant waive a jury for the death penalty
hearing.
`A convicted defendant making a claim of ineffective
assistance must identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional
judgment.' (Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.) Any one of the three grounds mentioned by counsel
constitutes a valid reason for choosing to waive a sentencing
jury." Maxwell, 148 Ill. 2d at 143-44.
Under the circumstances, this court said, counsel's mistaken belief
concerning the admissibility of evidence of other crimes did not result in an
act or omission reflecting unreasonable professional judgment; counsel's
recommendation that the defendant waive a jury for the sentencing phase was
entirely consistent with counsel's strategy to avoid submitting the
sentencing determination to jurors who were aware of the defendant's criminal
record. Maxwell, 148 Ill. 2d at 144.
In defendant's direct appeal the court's conclusion that defendant had
failed to show that counsel had acted in a professionally unreasonable manner
was dispositive of the defendant's claim for failure to establish one of the
two necessary parts of the Strickland test. However, this court went on to
consider whether, assuming that counsel's mistaken belief resulted in a
professionally unreasonable act or omission, defendant sustained prejudice as
a consequence. The court determined that he had not, concluding that defense
counsel would have offered the same recommendation had she known that the
evidence of the defendant's other crimes would later be admissible at the
sentencing hearing. Maxwell, 148 Ill. 2d at 145. The court pointed out,
"As we have stated, one reason for counsel's recommendation to the
defendant that he forgo a jury for sentencing was to avoid
submitting the sentencing determination to jurors who were aware of
the defendant's extensive criminal record. Recognition that the
jurors would eventually acquire this information at the sentencing
hearing could only have confirmed counsel in her assessment that a
jury waiver was necessary to effectuate her strategy. Here, counsel
achieved her avowed goal of not having the sentencing determination
submitted to a jury if its members were aware of the defendant's
criminal history." Maxwell, 148 Ill. 2d at 145-46.
In effect, defendant attacks in his post-conviction petition one of the
three grounds stated by counsel as a reason for choosing to waive a jury for
sentencing, namely, counsel's belief that the judge was more likely to be
lenient than a jury. However, two valid reasons remain for defendant's having
chosen to waive a jury at sentencing: the wish to preclude death-
qualification of the jury for purposes of the guilt phase of the proceedings
and the desire to avoid sentencing by jurors who had been exposed to evidence
of defendant's other offenses. Thus defendant could have suffered no
prejudice as a result of counsel's advice to waive a jury for sentencing.
Inasmuch as defendant can not meet the requirement of Strickland that he show
prejudice, namely, that he would not have waived his right to a jury in the
absence of the error alleged (see Maxwell, 148 Ill. 2d at 142), the circuit
court properly dismissed this claim of his amended post-conviction petition
without an evidentiary hearing.
In the third issue defendant presents for our review, he contends that
he was denied his constitutional rights as a consequence of the proceedings
in which he waived a jury for sentencing. More specifically, he maintains
that he was denied due process because the trial court did not ask him
whether any promises were employed to induce his waiver, which was obtained,
he avers, as the result of a misrepresentation by counsel that such a promise
had been made. Despite the different origins of a defendant's right to a jury
at the guilt phase of the proceedings and his right to a jury at the capital
sentencing hearing, the waiver of either right to a jury must be knowing,
intelligent, and voluntary. People v. Strickland, , 517
(1992). As defendant points out, this court held in People v. Albanese, , 535 (1984), the sixth amendment requires no precise formula for
determining whether a waiver has been knowingly and intelligently made. The
court need not deliver a formulaic recitation prior to receiving a
defendant's valid waiver of a jury at a capital sentencing hearing.
Strickland, 154 Ill. 2d at 517. Instead, each case turns on its own facts and
circumstances. Albanese, 104 Ill. 2d at 535-36.
With respect to the defendant's waiver of a jury for sentencing, the
record includes the following colloquy between the trial court and the
defendant:
"THE COURT: Okay, Mr. Maxwell, your attorney is indicating at
this time that in the event, in the event that the jury were to
find you guilty of the charge of murder, and in the further event
that the State indicated that they would be seeking the death
penalty, it would be your intention to waive your right to have
that jury determine that question. Do you understand what I am
saying?
DEFENDANT MAXWELL: Yes, sir.
THE COURT: Okay. Now, you have a right to have a--jury decide
the question of whether or not the death penalty is to be imposed.
Do you understand?
DEFENDANT MAXWELL: (Nodding head.)
THE COURT: Now, that, of course, would only arise if in the
event you were found guilty of the offense of murder. Do you
understand that?
DEFENDANT MAXWELL: Yes.
THE COURT: Now, that right cannot be taken away from you. You
must knowingly waive or give up that right to have the jury make
that determination. Do you understand that?
DEFENDANT MAXWELL: Yes, sir.
THE COURT: If you waive that right, the right to have a jury
make that determination, I will hear the--it would be up for--it
would be for me to determine whether the death penalty would be
imposed or not in the event that you were found guilty. Do you
understand that?
DEFENDANT MAXWELL: Yes, sir.
***
THE COURT: ***
What I am saying, instead of having 12 jurors reach a
unanimous verdict of 12 to nothing, it would be for me alone to
make that decision. Do you understand that?
DEFENDANT MAXWELL: Yes, sir.
THE COURT: Now, do you wish a jury to make that determination,
or do you wish to have a judge, myself, decide that--make that
decision in the event that you are found guilty?
DEFENDANT MAXWELL: You, sir.
THE COURT: You wish to have me make that decision?
DEFENDANT MAXWELL: Yes, sir.
* * *
THE COURT: ***
When we say, Mr. Maxwell, that the 12 people must decide,
there could be a situation where 11 people say the death penalty
should be imposed and one says it should not, and the death penalty
would not be imposed. You understand that, that that decision by
the 12 jurors must be a unanimous decision, and in the event that
it is not a unanimous decision, then the death penalty could be
imposed. Do you understand that?
DEFENDANT MAXWELL: (Nodding head.)
THE COURT: And knowing and understanding all of these things
which I have just stated, you are choosing to waive your right to
a jury for the penalty phase, is that correct?
DEFENDANT MAXWELL: Yes, sir.
THE COURT: *** I will ask you to indicate that by signing the
waiver which your attorney has prepared. I just want to make sure
that we are covering all of the points.
Now, Mr. Maxwell, you are making this waiver. You have
executed this waiver freely and voluntarily?
DEFENDANT MAXWELL: Yes, sir.
THE COURT: Nobody has threatened you in any way?
DEFENDANT MAXWELL: No, sir.
THE COURT: Nobody is forcing you to sign this waiver, is that
correct?
DEFENDANT MAXWELL: Yes, sir.
THE COURT: And I assume you have discussed this matter with
your attorneys prior to today, have you not?
DEFENDANT MAXWELL: Yes, sir.
THE COURT: Okay, and after discussing it with them, you are
choosing at this time to waive your right to have a jury make the
determination as to whether the death penalty should be imposed in
the event there is a finding of guilty?
DEFENDANT MAXWELL: Yes, sir.
THE COURT: That is your wish?
DEFENDANT MAXWELL: Yes, sir.
THE COURT: Okay, I believe I have covered, I hope, all of the
possible--just give me one more second.
Okay, we will in our discretion accept that jury waiver, and
that will be made a part of the file."
As the State indicates, the inquiry by the trial court was extensive and
thorough, exploring fully defendant's understanding of that which he was
relinquishing. We agree with the State that while this colloquy does not
include an inquiry as to whether any promises were made, it establishes
sufficiently the knowing, intelligent, and voluntary nature of defendant's
waiver of a jury for sentencing. We conclude that defendant was not denied
due process in this regard and that his waiver was effective. Hence, the
circuit court appropriately dismissed the third claim of defendant's amended
post-conviction petition.
In another issue defendant raises for review, he contends that his
constitutional rights were violated "at the pre-trial motions stage of the
trial, because studies and reports, establishing that physical abuse of
prisoners and coercion of confessions at Area 2 Violent Crimes was widespread
and systematic--evidence which would have been instrumental in persuading the
court to grant defendant's motion to suppress evidence--were not available to
the defense at the time of trial." Defendant argues that the physical abuse
and denial of rights that were employed to obtain his confession were found
to be a regular practice at Area 2 Violent Crimes, where he gave statements
confessing his involvement in the offenses in question. In his amended post-
conviction petition, he alleges that had this evidence been available to
counsel at the time of his trial, it could have served as the basis for
admitting specific evidence from other victims of abuse to rebut the mere
denials of police that they beat defendant and refused to allow him to call
his lawyer. He alleges further that had the trial court "been informed of the
extent of abuses occurring at Area 2, of the sanctioning of these abuses--and
participation in them--by command, and the evidence that officers who
conducted [defendant's] interrogation were specifically named among the
perpetrators [Ex. 19, 22, 25, 26, 27, 53, 56], it is reasonable to conclude
that defendant's motion to suppress confession would have been granted." As
a consequence, he alleges, the outcome of his trial would have been
different. By "command," defendant refers to Commander John Burge. Numerous
exhibits, including affidavits, reports, and transcripts, are attached to his
amended petition in support of this claim.
In ruling on the motion of the defendant as well as those of his two
codefendants to suppress statements, the trial court expressly found "that
they were not struck or threatened in any way by Detective Paladino,
Detective Glynn, Detective Basile, and Assistant State's Attorney Telander."
In so ruling, the trial court found further "no evidence of physical abuse"
and that "[a]ny alleged injury to any of these individuals did not occur as
a result, Court finds did not occur as a result of any police action prior to
these statements being made." In support of his motion to suppress the oral
and signed statements that he had given on November 12, 1986, defendant had
introduced into evidence photographs taken a week later, on November 19,
1986. The defendant testified at the hearing on his motion to suppress
statements that the pictures showed a knot on the left side of his head,
swelling above his eyebrow, and a knot on his right leg.
When it is evident that a defendant has been injured while in police
custody, the State must show by clear and convincing evidence that the
injuries were not inflicted as a means of producing the confession. People v.
Wilson, , 40 (1987). To do so requires more by the State's
witnesses than mere denial that the confession was coerced. Wilson, 116 Ill. 2d at 40. Here, however, it was not evident that the defendant had been
injured while in police custody. In view of the trial court's findings that
there was no evidence of physical abuse of the defendant and that any alleged
injury did not occur as a result of any police action prior to giving the
statements sought to be suppressed, the defendant, by these tangential
allegations, has failed to make a substantial showing that his constitutional
rights were violated. Thus, the determination of the trial court dismissing
his amended post-conviction petition without an evidentiary hearing was not
manifestly erroneous, and we do not disturb it.
In another, related issue defendant asserts that he was denied his right
to due process when the State failed to disclose to the defense that the
deprivations of rights complained of in his motion to suppress statements
were widespread and systematic at Area 2 Violent Crimes Headquarters. In his
amended post-conviction petition, he alleges that prior to trial he filed a
motion for discovery requesting that the State produce "any and all material
or information within its possession or control which tends to negate the
guilt of the accused as to the offense charged or would tend to reduce his
punishment therefor." In its answer to discovery the State responded, "None
known to the People." In his brief defendant states that the superintendent
of police failed to notify the State's Attorney and the judiciary that an
internal investigation revealed that Area 2 had become the scene of
widespread abuses. While defendant considers it "doubtful that the specific
prosecutors whose answer to discovery misled the defense in this case were
actually aware that reports existed which would gravely undermine the
credibility of the police," he maintains that prosecutors had a duty under
Brady v. Maryland, , 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), to
tender this information to defense counsel pursuant to defendant's motion for
discovery. He argues that evidence of the abuses and beating that were
practiced at Area 2 Violent Crimes and by the detectives who interrogated
defendant would have tended to negate his guilt because such evidence would
have increased the likelihood that his coerced statement would have been
suppressed. Even assuming that suppression of the defendant's inculpatory
statements to police would have led to his acquittal, in light of the
findings of the trial court following the hearing on his motion to suppress
these statements, particularly the court's finding of "no physical abuse" of
the defendant, he has failed to make the requisite substantial showing that
his constitutional rights have been violated.
Ten of the issues defendant asks us to consider were raised in his
direct appeal. He merely repeats them here without argument, stating that he
stands on the arguments set forth in his brief in the direct appeal, which is
included in the record as an exhibit attached to the amended post-conviction
petition. The scope of post-conviction review is limited by the doctrines of
both res judicata and waiver, with the result that post-conviction
proceedings are limited to issues that have not and could not have been
previously adjudicated. People v. Stewart, (1988). All issues
actually decided on direct appeal are res judicata, and all those that could
have been presented but were not are deemed waived. Stewart, 123 Ill. 2d at
372. These ten issues raised in his direct appeal are res judicata, and we do
not address them further.
We have read the entire record for review and have examined it with
regard to the remaining issues defendant presents. We conclude that they are
without merit.
Therefore, for the reasons stated above, we affirm the judgment of the
circuit court of Cook County dismissing the defendant's amended petition for
post-conviction relief. We hereby direct the clerk of this court to enter an
order setting Wednesday, November 13, 1996, as the date on which the sentence
of death entered by the circuit court of Cook County is to be carried out.
The defendant shall be executed in a manner provided by law (725 ILCS 5/119--
5 (West 1994)). 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
defendant is now confined.

Affirmed.

JUSTICE McMORROW, dissenting:
The issue in this appeal is whether defendant has established
entitlement to an evidentiary hearing on the allegations in his amended post-
conviction petition. The trial court summarily dismissed defendant's
petition, and denied defendant an evidentiary hearing on the allegations in
his amended post-conviction petition. For the reasons that follow, I believe
that the well-pleaded allegations of the post-conviction petition and its
accompanying exhibits satisfy the threshold requirement that defendant
demonstrate a substantial deprivation of his constitutional rights. I
conclude that the majority errs in affirming summary dismissal of defendant's
petition and therefore dissent.
I believe that defendant has established his right to an evidentiary
hearing on his amended petition for post-conviction relief for two reasons.
First, there are significant allegations that, in violation of his
constitutional rights, defendant did not receive effective assistance of
counsel throughout the various stages of this capital prosecution. Second,
there exists compelling information, not available to trial counsel at the
time of the motion to suppress defendant's confession, that certain
detectives at Area 2 Violent Crimes, including three of the officers who
interrogated defendant, participated in systematic abuse to coerce
confessions from prisoners.
Defendant's amended post-conviction petition, which is accompanied by
numerous factually detailed affidavits, reports, court filings, and other
documents, reveals that defendant was 19 years old at the time of the
commission of the crimes charged, is borderline mentally retarded, and has a
long history of physical disabilities, serious mental deficits, and
developmental problems, along with a history of familial substance abuse and
denial. Defendant has expressed remorse for the crimes. According to a
psychologist who examined defendant after he was found guilty, defendant
exhibits rehabilitation potential and is a good candidate for successful
adjustment to the structured environment of prison. Defendant's trial
attorneys did not investigate or present evidence of these and other
significant matters at the sentencing hearing. It is uncontroverted that both
of the defense attorneys advised and persuaded defendant to waive his right
to have the jury decide the capital sentencing issue because the attorneys
believed the judge had signalled to them that he would not impose the death
penalty if defendant waived his right to have a jury determine his sentence.
Subsequently, defendant was sentenced to death for the crime of murder in the
course of attempted armed robbery.
The victim in this case, Adrian Bracy, was walking with a friend when
defendant and two companions, Gregory Howard and Jerry Thompson, attempted an
armed robbery. According to trial testimony, defendant pointed a gun at Bracy
and announced a "stickup." Bracy threw a bottle of beer toward defendant, who
then fired the fatal shots. Defendant, Howard, and Thompson were subsequently
interrogated as suspects in the homicide. All three made incriminating
statements to police detectives. Howard and Thompson entered negotiated pleas
of guilty and received 35 years in prison. Defendant was convicted of murder
in the course of attempted armed robbery and sentenced to death. This court
affirmed on direct appeal. People v. Maxwell, (1992).
The instant post-conviction petition claims that trial counsel failed to
adequately represent defendant at several key stages of the criminal
proceedings. The alleged errors include the following: (1) defendant's trial
lawyers induced defendant to waive his right to have a jury determine his
sentence by advising defendant that they had received a sign from the judge
that he would not impose the death penalty if defendant waived the jury; (2)
partly in reliance on their belief that the court would not sentence
defendant to death, the defense attorneys failed to investigate or present
significant evidence in mitigation at the capital sentencing hearing, despite
the availability of such evidence; and (3) the attorneys failed to offer a
consistent or coherent theory of defense, choosing instead to virtually
concede defendant's participation in the crimes in order to argue,
erroneously, that because defendant lacked the intent to kill and did not
take money from the victim, defendant therefore was not liable for felony
murder.
In addition to the above assertions, defendant claims that the outcome
of the hearing to suppress his statement and the trial itself would have
differed if defendant had been able to obtain police reports and files
containing the numerous charges of physical abuse of suspects by officers at
Area 2 Violent Crimes, including then Commander John Burge and at least three
of the individual detectives who interrogated defendant in the case at bar.
Had such reports been disclosed to defense counsel, defendant asserts,
additional evidence could have been developed that would have strongly
corroborated defendant's claim that his statement was the product of coercion
by these officers.

BACKGROUND
On November 4, 1986, defendant was arrested as a suspect in a series of
three armed robberies that occurred the day before. Two other men, Thompson
and Howard, also were arrested for their participation in those robberies.
Witnesses identified the codefendants in lineups. An assistant public
defender was appointed to represent defendant on these charges. Approximately
one week later, while the three codefendants were in Cook County jail on the
armed robbery charges, homicide detectives transferred the three men to Area
2 headquarters for questioning in connection with the October 23, 1986,
attempted armed robbery and fatal shooting of Adrian Bracy. After
approximately 10 hours of interrogation, during which none of the three men
made any telephone calls or consulted with their attorneys, all three gave
incriminating statements to the police.
According to defendant's testimony at the pretrial hearing on all three
defendants' motions to suppress their statements, defendant was not permitted
to call a lawyer or his family, despite his request on two occasions to make
such calls. Defendant also testified that he was kicked, punched, threatened,
and slapped while handcuffed to a wall during interrogation. The other two
suspects, Howard and Thompson, gave testimony regarding similar physical
abuse and the denial of their requests to telephone family members or
attorneys. At the suppression hearing, defendant identified photographs
depicting injuries that he alleged resulted from the abuse he received during
his interrogation. These photographs were taken by a defense attorney a week
after the police interrogation. Photographs of Thompson's injuries were also
introduced at the suppression hearing.
In sharp contrast to the codefendants' testimony, the detectives who
interrogated the codefendants denied that they were physically mistreated and
further testified that the co-defendants had not even asked to use the
telephone or consult with attorneys.
The trial court ruled that the codefendants had not proved that their
statements were the product of police coercion and accordingly denied the
motion to suppress their statements. The voluntariness of defendant's
statement was not further challenged by defense counsel at trial, argued to
the jury, or challenged on appeal. Accordingly, this court on direct review
did not consider any issue relating to defendant's alleged beating or
coercion as a ground for suppression of his statement. The sole issue on
direct appeal regarding the suppression of defendant's statement centered
upon defendant's claim that his admission of involvement in the Bracy
homicide had been taken in violation of the Miranda protections because at
the time the Area 2 detectives interrogated him concerning the Bracy homicide
defendant was represented by court-appointed counsel on the separate armed
robbery charges and counsel was unaware that his client was being questioned
with respect to the homicide. See Maxwell, 148 Ill. 2d at 126-29.
Before trial on the attempted armed robbery and murder charges, the
judge denied the defense motion to bar the State from presenting evidence of
defendant's involvement in the three other, pending armed robberies charges.
In light of this adverse ruling, one of defendant's attorneys informed the
court that defendant would be waiving the jury for sentencing. One of the
reasons counsel cited for the jury waiver was her belief that the evidence of
other crimes would not be admissible at the aggravation phase of sentencing.
Defense counsel apparently believed that the jury at sentencing nonetheless
would be influenced by the trial testimony regarding defendant's other
pending criminal charges, and therefore be unable to render a fair sentencing
decision. In addition, both of defendant's attorneys believed that the trial
court had given them a signal that the court would not impose the death
penalty if defendant waived the jury for sentencing. The attorneys
accordingly advised defendant of their "certainty" that the trial judge would
not impose the death penalty, and persuaded defendant to waive his right to
a sentencing jury.
At the close of the trial evidence, the jury was instructed on theories
including felony murder, a charge which had not been specifically alleged in
the indictments. See Maxwell, 148 Ill. 2d at 132-40. Defendant was convicted
of the crimes charged. At the first phase of capital sentencing, the judge
found that the State had proved the statutory death-eligibility factor of
murder in the course of a forcible felony. After the hearing on the
mitigation and aggravation evidence, the trial court imposed the death
penalty.
Additional facts are supplied as needed in the context of the issues
analysis. The post-conviction materials included in the record on appeal
consist of the verified 82-page amended post-conviction petition and four
bound volumes of exhibits having a combined total of approximately 700 pages.

I. Ineffective Assistance of Counsel
Of the several assertions of ineffective assistance of trial counsel,
the two I view as particularly serious are the advice to waive the jury for
sentencing, based on both defense attorneys' belief that the trial judge had
signalled his intention not to impose the death penalty, and the attorneys'
failure to adequately investigate and present readily available mitigation
evidence at the capital sentencing hearing.

A. Jury Waiver for Sentencing
Defendant's affidavit in support of his post-conviction petition asserts
that he waived the jury for sentencing based on the advice of his lawyers
that the trial judge would not impose the death penalty. As the majority
opinion reveals, other affidavits attached to the amended post-conviction
petition corroborate that defendant's trial attorneys, Clare Hillyard and
Michael Brennock, did in fact inform defendant that the trial judge was not
likely to impose death as a sentence if defendant waived the jury. According
to one affidavit, Brennock told defendant he was "99%" certain the judge
would not impose the death penalty, and he and Hillyard were "stunned" when
the court subsequently did so. Attorney Hillyard stated in an affidavit that
she understood from the court's comment, facial expression, and vocal
inflection that the judge would not impose the death penalty. Hillyard
denied, however, that her preparation of the mitigation evidence was
curtailed because of her strong certainty that the court would not impose the
death penalty. The circuit court denied defendant's post-conviction counsel's
requests to depose Brennock and Hillyard.
Notwithstanding the undisputed and factually corroborated assertion that
defendant waived the jury for sentencing based on his two attorneys' express
conviction that the judge would not impose the death penalty, the majority
holds that defendant has not met the requirement of Strickland that he was
actually prejudiced by counsels' perceptions. The majority concludes that
because Clare Hillyard, one of defendant's attorneys, offered additional
reasons for her belief that defendant should waive his right to have a jury
determine his sentence, reasons that were consistent with legitimate trial
strategy, no harm resulted to defendant. To support its conclusion, the
majority discusses at length portions of the direct appeal, in which a
different issue regarding Hillyard's advice to waive the sentencing jury was
resolved against defendant. In the direct appeal, this court acknowledged
that Hillyard's advice to her client to waive the sentencing jury was based
on her erroneous view of the law, i.e., that evidence of defendant's other
crimes would not be admissible in aggravation at the sentencing phase of
trial. Hillyard had expressed concern that the jury would be inflamed against
defendant if the jury learned that he was accused of participating in a
series of armed robberies near in time to the charges for which defendant was
on trial. Accordingly, she advised defendant to waive the jury for
sentencing. In holding that defendant sustained no prejudice from his
attorney's erroneous view respecting the admission of other-crimes evidence
at his sentencing hearing, this court concluded on direct review that
counsel's main objective was to prevent defendant from being sentenced by a
jury possessing knowledge of defendant's other crimes. Maxwell, 148 Ill. 2d
at 144. This court observed that by recommending that defendant waive the
jury for sentencing, Hillyard achieved this strategic goal of removing the
sentencing decision from the jury.
I note that the jury was apprised of the other-crimes evidence during
the guilt-innocence phase of defendant's trial because the trial court denied
the defense motion in limine to bar reference to defendant's pending armed
robbery charges. Therefore, Hillyard's advice to waive the sentencing jury
for fear that the jury would be inflamed by the other-crimes evidence was not
a persuasive reason for urging defendant to consent to the jury waiver.
Nonetheless, in the instant appeal the majority relies to a large extent on
the analysis of the direct appeal to support its conclusion that defendant
has not established prejudice stemming from his attorneys' misleading advice
that the judge was not inclined to impose the death penalty. The majority
implies that if the defense attorneys' advice to waive the sentencing jury
may be justified on any of the various grounds advanced, no prejudicial error
exists as a matter of law. This view does not, in my opinion, withstand
analysis.
In the instant appeal, unlike the direct appeal, defendant has offered
affidavits outside the trial record showing that his defense attorneys
informed him that the judge exhibited a physical sign that he would not
impose the death penalty. In his affidavit, defendant states that he relied
on Clare Hillyard's advice that the trial judge told her he would not impose
the death penalty. Defendant's reliance on such representation as the primary
reason for waiving the sentencing jury is far more compelling than the other
reasons offered. Would not a defendant facing capital punishment waive the
jury for sentencing if counsel declared that the trial court manifested its
intent not to impose death? To merely conclude, as the majority does here,
that trial counsel may have had other facially valid reasons to waive the
jury for sentencing is to evade the essential point of defendant's argument;
i.e., if trial counsel had not assured defendant that the trial court stated
it would not impose the death penalty, defendant would not have waived the
jury. Under the circumstances, I cannot conclude that defendant knowingly and
intelligently waived the jury for sentencing. Nor can I join the majority's
conclusion that defendant was not prejudiced by his counsel's misguided
assurances that the judge would not impose death. Therefore, I would permit
defendant the opportunity to proceed to an evidentiary hearing on his claim
of ineffective assistance of counsel with respect to the jury waiver.
As a related matter, defendant contends that the trial court should have
granted his motion for substitution of judges, which was presented as part of
the post-conviction proceedings. The court summarily denied the motion and no
discussion of its merits appears in the transcript. In the instant appeal
defendant argues that the court should have recused itself from ruling on the
amended post-conviction petition because the impartiality of the court had
been called into question over the issue of the jury waiver and trial
attorneys' belief that the court had signalled how it would rule on the issue
of the death penalty. Moreover, defendant claims, during the court's
admonishments on the issue of his rights with respect to waiver of the jury,
the trial court did not inquire whether defendant had received any promises
or inducements to waive the jury for sentencing. Accordingly, defendant
argues, the post-conviction petition should have been transferred for
consideration by a different judge.
The majority opinion does not address or even acknowledge the concerns
raised by defendant's motion for substitution of judges, despite the apparent
significance of the issue. The affidavits of Clare Hillyard and defendant's
appellate counsel indicate that the trial judge conveyed something which led
the defense attorneys to believe with 99% certainty that the death penalty
was not seriously being considered as a penalty by the trial judge. Had a
hearing on the post-conviction petition or a hearing on the motion for
substitution of judges been allowed, it is likely that the trial judge might
have been a witness on this issue. In view of the serious stakes involved,
any alleged "cue" from the judge raises the possible appearance of
impropriety. I believe, therefore, that the circuit court should have granted
the defense motion for substitution of judges. See, e.g., People v.
Washington, (1967).

B. Defense Counsel's Representation at Sentencing
Defendant claims that his trial counsel was ineffective in failing to
investigate and present significant and readily available evidence in
mitigation of the death penalty. According to defendant, defense counsel's
cursory and incomplete evaluation of his case for sentencing purposes
resulted in part because counsel strongly believed that the trial court was
not going to impose the death sentence. Irrespective of the cause of
counsel's failings, defendant concludes, the result of the inadequate
preparation for capital sentencing was highly prejudicial because it left the
court with the mistaken impression, as emphasized by the court's remark, that
there was not "a single mitigating factor" to preclude imposition of death.
This finding by the court led directly to its holding that it was "dutybound
to impose the ultimate penalty."
Initially, I note that the majority opinion does not address defendant's
contention that his counsels' failure to investigate and present mitigation
at the sentencing hearing was based, at least in part, on their erroneous
interpretation of the judge's "signal" that he would not impose the death
penalty. If true, the defense attorneys' alleged shortcomings at sentencing
cannot be ascribed to proper trial strategy. See, e.g., People v. Orange, , 168-71 (1995) (trial counsel's decision not to present
mitigation testimony, based at least in part on counsel's belief that
mitigation testimony would not influence sentencing judge, could not be
justified as legitimate strategy). Adequate preparation for the aggravation
and mitigation phase of a capital sentencing hearing is a crucial aspect of
defense counsel's duties, as prejudice resulting from ineffective assistance
at capital sentencing is likely to be fatal.
After examining the record I believe that defendant has made a strong
preliminary showing of ineffective assistance of counsel at the sentencing
phase of his capital prosecution and should be granted an evidentiary hearing
on the merits of his claims. Among the numerous exhibits attached to the
post-conviction petition is the affidavit of the clinical psychologist who
tested defendant and found him to be within the borderline mentally retarded
range of intellectual ability. Other evidence reveals defendant's history of
serious psychological, physical, and developmental problems beginning in
childhood; the resulting difficulties he faced at school; and an extensive
family history of alcohol and drug abuse coupled with the family's extreme
denial of such problems. None of this material was presented or considered at
defendant's sentencing hearing. In fact, the mitigation witnesses who
testified denied or downplayed the existence of defendant's impairments and
his family's dysfunctions.
According to defendant, his trial counsel failed to interview him in
depth to elicit material evidence in mitigation. Her first meeting with him
was 55 days after his incarceration, and she visited him in jail
approximately four times within 15 months. Defendant argues that his counsel
failed to seek out certain family members and others having knowledge of his
background; failed to obtain school and medical records to help evaluate his
mental and physical condition; failed to order a current psychological
examination; and failed to obtain a professional evaluation of defendant's
substance abuse and its effect on his functioning. Instead, counsel called
defendant's mother and a few other family members and friends to testify in
mitigation as to his good character, but failed to adequately prepare the
witnesses. This lack of adequate preparation led to the witnesses' misguided
and inaccurate portrayal of defendant's history and family life, which in
turn invited the prosecutor's argument that the evidence of good family
background was actually aggravating, rather than mitigating, in nature.
Defendant further charges that his counsel failed to investigate and present
evidence relating to his rehabilitation potential and capacity for a positive
adjustment to the structured environment of prison. He concludes that if the
materials in the post-conviction petition had been presented at the
sentencing hearing, the outcome likely would have differed and the death
penalty would not have been imposed.
The majority opinion describes or quotes portions of the mitigation
evidence proffered as part of the post-conviction petition and expressly
acknowledges "numerous supporting reports and affidavits" bearing on the
mitigation issues. After making this observation, however, the majority
inexplicably pronounces, without analysis, that
"[t]he gulf is relatively slight between what the trial judge knew
from his reading of the presentence investigation report at the
time of sentencing with respect to defendant's intellectual and
development deficits and his and his family's drug and alcohol
abuse and what defendant alleges in this regard in his amended
post-conviction petition. As a result, there is no reasonable
probability that, had counsel provided this information to the
court and focused upon it at the sentencing hearing, the court
would have concluded that the balance of aggravating and mitigating
factors *** did not warrant the imposition of the death penalty."
Slip op. at 6.
I cannot join in such a comparison of the materials presented in the
post-conviction petition with the pro forma presentence investigation report.
The former contains extensive school and medical records, affidavits, and
other material from outside sources, while the presentence report consists
almost entirely of the self-reported statements of defendant, with little or
no corroboration or elaboration by others. For example, under the heading
"Physical and Mental Health," the brief entry in the presentence
investigation report relates defendant's statement that his third-grade
teacher recommended he see a psychiatrist, and that he saw "some doctor"
weekly during third and fourth grade, but that defendant "has no idea why he
was seeing this doctor and doesn't remember what the doctors[']s name was."
The defendant also stated to the presentence interviewer that he was placed
in slow learner classes since the fifth grade but, again, had "no idea why."
In contrast to these vague, uncorroborated statements attributed to
defendant in the presentence investigation report, the amended post-
conviction petition offers significant factually detailed and verified
exhibits. These include school-initiated reports and referrals relating to
defendant's mental deficits, physical problems, and behavioral disorders
detected as early as his initial foray into the public school system, in the
first grade. According to a 1972 report from the Chicago school system,
Bureau of Mentally Handicapped Children, defendant entered first grade with
below-average skills, suffered from a vision deficit, and was referred to the
school psychologist for examination because he talked to himself in class,
made funny noises, fell out of his chair, and needed constant help to focus
his attention on classroom matters. He also was referred for medical
examination and found to have an eye condition called strabismus (inability
to aim one or both eyes), which required surgery. Defendant's IQ tested at 86
in this initial examination, indicating a "slow average rate of mental
growth" and the school psychologist made certain recommendations, concluding
that "[w]arm praise for small efforts will help this child."
Defendant was referred to Michael Reese Hospital and Medical Center for
vision, physical, and neurological testing. In a 1973 report from the medical
center, an interviewer was unable to complete her evaluation of the child's
developmental status because of his inability to concentrate during testing.
The report notes that the boy's mother expressed surprise at her son's
inattentiveness and claimed his behavior at home was different. The Michael
Reese Hospital report noted that the boy "seem[ed] to have a great deal of
potential if provided with direction and successful experiences" and
recommended that defendant receive learning disabled services from the school
system. However, he did not immediately receive such services and had to
repeat the third grade. He also spent five years in "social adjustment"
classes before finally being placed in classes for the educable mentally
handicapped in 1978.
In a January 1980 school examination, defendant's IQ had slipped to 70,
indicating "a slow rate of mental growth." The report noted that defendant's
vision and hearing problems had not been corrected and further stated that
defendant appeared to be "a very worried and insecure boy who [was] readily
overwhelmed by tasks and needed much encouragement." Emotionally, he was
viewed as a "highly dependent youngster with very low self-esteem who
requires much support and re-assurance." Defendant's grades while in school
were poor and he dropped out of high school in his second year.
The post-conviction materials also contain a lengthy affidavit from Dr.
Louis Hemmerich, the clinical psychologist who examined and tested defendant
at the behest of post-conviction counsel. Dr. Hemmerich's affidavit
enumerates the large number of records and affidavits he reviewed in addition
to his testing of and interviews with defendant, which lasted six hours. He
found that defendant's full score IQ was 77, indicating a borderline mentally
retarded range of intellectual ability which placed him at the sixth
percentile when compared to others of the same age range. Defendant also
demonstrated significant impairments in his commonsense judgment and abstract
verbal reasoning. Dr. Hemmerich concluded that defendant was dependent upon
others, wanting their approval, and had adopted his family's coping style of
denial, which stemmed from substantial use and abuse of alcohol and drugs.
Dr. Hemmerich also concluded that rehabilitation was "certainly possible" for
defendant, who exhibited remorse and guilt. The doctor further concluded that
defendant would adjust well to the structured environment of prison.
As the record in the instant case demonstrates, the majority errs in
implying that the cursory presentencing investigation report provided the
trial court with adequate and credible information respecting defendant's
mental and physical health and social development. To characterize as
"relatively slight" the gulf between what is contained in the presentence
report and what is revealed in the numerous exhibits attached to the post-
conviction petition is comparable to equating a blurred snapshot with a full-
length documentary film.
I would conclude on the basis of the materials contained in the post-
conviction petition and under Illinois law that "defendant did not receive
the individualized sentencing determination that the Constitution requires.
[Citation.]" People v. Perez, , 195-96 (1992). In Perez, the
circuit court held an evidentiary hearing on a portion of the defendant's
allegations but denied post-conviction relief. On appeal, this court reversed
the post-conviction judgment and vacated the defendant's death sentence,
holding that a new sentencing hearing was constitutionally required because
defendant's trial counsel had failed to investigate and provide evidence of
mitigation. Such evidence included school records reflecting the defendant's
mental deficiency and evidence that the defendant was abandoned by his family
as a teenager. As in the case at bar, in Perez there existed reports from
school psychologists indicating a history of low scholastic aptitude, as
measured by low IQ scores, and behavioral problems in the classroom. This
court in Perez cited with approval "a line of Federal cases in which
counsels' failure to investigate and present defendants' mental histories was
found to fall below objective standards of reasonableness and constitute
ineffective assistance of counsel." Perez, 148 Ill. 2d at 190 (citing, inter
alia, Brewer v. Aiken, 935 F.2d 850 (7th Cir. 1991), Cunningham v. Zant, 928 F.2d 1006 (11th Cir. 1991), and Stephens v. Kemp, 846 F.2d 642 (11th Cir.
1988)).
In Aiken, similar to the case at bar, the defendant and his accomplices
had committed a series of armed robberies in one day, and then killed a
victim during another armed robbery. The defendant had an extensive criminal
history and was sentenced to death upon his conviction of murder in the
course of armed robbery. However, the Seventh Circuit Court of Appeals
reversed for a new trial based on ineffective assistance of trial counsel
because counsel had failed to obtain and present evidence of defendant's
borderline retardation, failure in school, and tendency to be easily led.
Aiken, 935 F.2d at 859.
In light of the persuasive force of such decisions as Aiken, Perez, and
the other cases cited above, the decision of the majority in the case at bar
is difficult to comprehend. The majority, citing the second prong of
Strickland, simplistically seizes upon the circuit court's statement that the
result of the sentencing hearing would not have differed even if the
mitigation evidence had been presented. In so doing, however, the majority
fails to consider as true the well-pleaded allegations supporting defendant's
constitutional cause of action and thereby fails to apply settled principles
of our post-conviction law. See, e.g., People v. Caballero, ,
259 (1989). The majority offers no decisional authority to justify its
rejection of defendant's claim that he was denied effective assistance by his
attorneys' failure to investigate and present the mitigation evidence.
Indeed, the majority makes no attempt to justify the defense attorneys'
failings as proper strategy but instead finds a lack of prejudice resulting
from counsel's failings. As previously discussed, the majority's belief that
the presentence report adequately apprised the court of the defendant's
background is simply unsupportable. Accordingly, the majority's mechanical
application of Strickland rings hollow. See People v. Ruiz, , 25
(1989) ("the sentencing authority in a capital may not refuse to consider ***
relevant mitigating evidence concerning the offender or the circumstances of
the offense"). In Ruiz, this court held that the defendant's "unchallenged
and unheard allegations" of ineffective assistance of counsel, based on
failure to investigate and present mitigation evidence, required an
evidentiary hearing on the post-conviction petition because on the record
before this court the Strickland standard could not be meaningfully applied.
I find it especially disturbing, under the facts of this case, that the
majority so readily embraces the circuit court's supposition that the
mitigation evidence would not have been sufficient to preclude the death
penalty. My review of the record indicates that there is much to militate
against imposition of the death penalty. The circumstances surrounding the
attempted armed robbery and homicide do not appear unusually egregious or
indicative of wanton cruelty. The trial testimony indicates that Bracy was
shot after he swung or threw a bottle at defendant. Bracy's companion, who
testified against defendant, was not shot. It would not have been
unreasonable to infer from these facts that defendant might simply have
panicked or felt unreasonably threatened at the sudden movement from Bracy.
Although the State implied that the slaying was an "execution," the mere fact
that more than one shot was fired does not support the State's
characterization in light of the other facts. Moreover, case precedent
demonstrates that, although the nature of the crime may be considered in
aggravation, even heinous crimes do not obviate the need for an evidentiary
hearing when trial counsel fails to investigate and present mitigation
evidence at sentencing. See, e.g., People v. Orange, , 171
(1995) (rejecting State's argument that the defendant failed to establish
prejudice resulting from counsel's ineffective assistance, even where the
"heinous nature of the multiple murders for which defendant was convicted is
not an inconsiderable aggravating factor"). See also People v. Thompkins, (1994) (remanding for evidentiary hearing on post-conviction
claim of ineffective assistance of counsel where, even though counsel had
introduced into evidence at sentencing 50 letters in support of defendant,
post-conviction affidavits of family members and friends were of such
significance that evidence relating thereto should have been presented at
sentencing).
The comparatively shorter prison sentences defendant's two accomplices
received further indicates that defendant suffered prejudice from the
performance of his counsel at sentencing. Thompson and Howard, the two other
participants in the attempted armed robbery and murder of Bracy, pleaded
guilty and thus were criminally responsible for the same crimes as defendant.
Like defendant, Thompson and Howard were charged with and identified as
participants in the three other armed robberies that occurred on November 3,
1986. Thompson and defendant were further identified at defendant's
sentencing hearing as being involved in a November 1, 1986, shooting incident
in which a mailman was wounded. Notwithstanding this shared history of a
recent spree of similar offenses, Thompson and Howard each received only 35
years in prison (the maximum, unextended period of imprisonment for murder
was 40 years), as compared with a sentence of death for defendant. Moreover,
according to the record, Thompson had a criminal history that included two
prior felony convictions, while defendant had one prior criminal conviction,
a 1984 robbery (in which Thompson also participated). Finally, although the
three armed robberies of November 3, 1986, created a great risk of harm, none
of them resulted in killings of any victims. For these reasons, the
mitigation evidence presented in the instant post-conviction petition attains
critical importance to defendant's right to effective assistance of counsel
and due process of law.
To summarize, taking the well-pleaded allegations of the post-conviction
petition as true, the specific circumstances of the instant case simply do
not justify the majority's ruling that the outcome would not have differed if
the court had considered the evidence in mitigation. Defendant was 19 years
old at the time of the commission of the homicide, borderline mentally
retarded, and had a documented history of physical disabilities, profound
mental deficits, and developmental problems, along with a history of familial
substance abuse and denial. Not only did his counsel fail to assemble and
present this critical evidence to the court during sentencing, but the
mitigation witnesses who did testify characterized defendant's development
and family history in terms starkly contradicting the actual circumstances.
Defendant's mother denied that defendant was using drugs or alcohol and
denied that he had had severe problems or even bad grades in school. Although
the several mitigation witnesses testified that defendant had not displayed
any violent tendencies and was a helpful and trustworthy person around them,
these witnesses also denied that defendant abused drugs or alcohol. As a
result of their apparent attempt to paint a more wholesome picture of
defendant's background, the witnesses actually contradicted defendant's own
statements regarding his substance abuse in the presentence report.
Given the substantial evidence in mitigation that was not presented,
solely due to the defense attorneys' failure to investigate, defendant's
sentencing hearing was not a true adversarial proceeding of the type required
by the sixth amendment. Therefore, I strongly dissent from my colleagues'
refusal to grant defendant an evidentiary hearing on defendant's claim of
ineffective assistance of counsel. The result of the majority's decision is
to permit execution of this defendant despite serious constitutional flaws in
defendant's prosecution, particularly the sentencing hearing.

II. Motion to Suppress Statement Based on Police Coercion
In his amended post-conviction petition, defendant relies on material
outside the trial record to argue that his inculpatory statement to the
police following his interrogation was the result of coercive tactics,
including physical abuse. The new evidence, which was obtained by post-
conviction counsel, includes internal police reports, affidavits, legal
filings in other lawsuits, and lengthy additional exhibits corroborating the
charge of widespread physical abuse of suspects under interrogation at Area
2 Violent Crimes by certain detectives and supervisors as a means of forcing
confessions. Specifically, the record contains the report of an Office of
Professional Standards (OPS) investigation into claims of abuse at Area 2
headquarters during the reign of Commander John Burge, who has since been
terminated from the Chicago police force as a result of his misconduct. An
OPS investigator who studied approximately 50 claims of police abuse during
1978 through 1986 concluded: "[T]he preponderance of the evidence is that
abuse did occur and that it was systematic." He further found that "[t]he
number of incidents in which an Area 2 command member is identified as an
accused can lead to only one conclusion. Particular command members were
aware of the systematic abuse and perpetuated it either by actively
participating in same or failing to take any action to bring it to an end."
Defendant's post-conviction petition contains an affidavit by an
attorney claiming considerable experience in police abuse cases. This
attorney drew on his own experience of almost 30 years litigating,
investigating, or reviewing approximately 75 police brutality claims. He also
evaluated the OPS report and other information he received. This attorney
concluded that three of the four officers who participated in defendant's
interrogation at Area 2 had been identified as officers who had engaged in a
pattern of brutality during the time defendant and his codefendants were
interrogated.
The record also contains pleadings filed in federal court, transcripts
of testimony, and orders in which the City of Chicago has settled claims of
police brutality. These materials from other cases involve the alleged
physical abuse of other defendants by Area 2 officers, including the police
officers who procured defendant's inculpatory statements in the instant case.
Despite its acknowledgment of the "[n]umerous exhibits, including
affidavits, reports, and transcripts, [which] are attached to [defendant's]
amended petition in support of this claim" (slip op. at 14), the majority
opinion does not further describe or consider the now available evidence
suggesting systematic police misconduct at Area 2 at the time of defendant's
interrogation. Instead, the majority summarily disposes of defendant's claim
of police coercion by deferring to the trial court's original finding, at the
hearing to suppress the codefendants' statements, that defendant was not
injured and that "any alleged injury did not occur as a result of any police
action prior to giving the statements sought to be suppressed." Slip op. at
15.
In my view, such a cursory disposition of this serious issue avoids the
key inquiry that this court must undertake in considering defendant's claim:
Is there a substantial likelihood that the result of the suppression hearing
would have differed if defense counsel produced evidence that linked the
testifying officers who denied striking defendant to a widespread practice of
abuse at Area 2? Certainly such information could have had a dramatic
influence on the perceived credibility of all the witnesses who testified at
the hearing to suppress the codefendants' statements. The majority, however,
chooses to disregard the impact such evidence might have had on witness
credibility by merely assuming that the trial court would have made the same
finding--that defendant was not injured by police while in custody--even if
there had been a strong showing of systematic prisoner abuse by the officers
at Area 2 who interrogated defendant. The majority also ignores the fact that
photographs of defendant's and Thompson's injuries were admitted at the
suppression hearing.
I do not believe that the majority can fairly dispose of the issue
solely by relying on the trial court's original finding at the suppression
hearing; i.e., that defendant had not established physical injury caused by
police officers. The issue of police coercion in the post-conviction petition
is presented in the context of ongoing and systematic abuse at Area 2, an
issue which was not present at the suppression hearing. To arrive at the
conclusion the majority reaches it is necessary to either ignore the
materials included in the post-conviction petition or to conclude that they
lack probative value under the specific circumstances of defendant's claim.
It may be true, as the State insists in its brief, that the post-
conviction materials regarding the allegedly widespread abusive practices at
Area 2 are irrelevant to defendant's claim and thus would be deemed
inadmissible at an evidentiary hearing. However, the requirements for
determining whether an evidentiary hearing should be held differ from the
application of the rules of evidence at such an evidentiary hearing. At this
stage of the proceedings I believe it is inappropriate to affirm dismissal of
this post-conviction claim by merely conjecturing that some or all of the
proffered evidence would be subject to evidentiary challenges at a hearing.
Moreover, the majority expresses no opinion as to the probative value of this
evidence, choosing instead to merely repeat the trial court's finding at the
suppression hearing that defendant was not coerced, through police abuse, to
give his statement relating to the Bracy homicide. By its ruling, the
majority assumes that the availability of evidence tending to cast doubt on
the veracity of the testifying officers would not have changed the outcome of
the suppression hearing.
It is not my purpose in this dissent to imply that a defendant's bare
allegation of physical abuse during interrogation is grounds for new trial or
post-conviction relief. For practical reasons, if a defendant's assertion of
physical abuse by police is uncorroborated by other evidence, such as medical
records, photographs, or third-party observation, the defendant's claim of
coerced confession may fail. See, e.g., In re Lamb, (1975);
People v. Johnson, (1970). Nonetheless, this court has held
that the State bears the burden of establishing by the preponderance of the
evidence that a defendant's confession was voluntary (e.g., People v. Wilson,
, 38 (1987)). If the only evidence of coercion is defendant's
testimony, and that testimony is contradicted by witnesses for the
prosecution, the trial court may choose to believe the State's witnesses.
E.g., People v. La Frana, , 267 (1954). However, where it is
evident or undisputed that defendant received injuries while in police
custody and the only question is how and why the injuries were sustained,
more than mere denial of coercion by the police is necessary (La Frana, 4
Ill. 2d at 267) and the State will be held to the higher standard of
establishing, by clear and convincing evidence, that such injuries were not
inflicted by police officers to induce defendant's confession (Wilson, 116
Ill. 2d at 40).
In Wilson, the State's witnesses, including the police officers, the
assistant State's Attorney, and the court reporter who took defendant's
statement, all testified under oath that defendant was not threatened or
harmed by the police. The trial court denied the motion to suppress.
Compelling evidence contradicting the court's conclusion that defendant's
confession was not coerced led this court, in the direct appeal, to reverse
the conviction and remand the case for a new trial. The evidence of record
included testimony that defendant did not have noticeable injuries before the
interrogation and the testimony of doctors who examined the defendant
directly after his interrogation and discovered significant burns, cuts, and
bruises on his face, chest, and legs. See also People v. Banks, 192 Ill. App.
3d 986 (1989) (reversing for new trial where fact of defendant's injuries
while in police custody was corroborated by evidence including medical
testimony, and the police officers' explanation that defendant accidentally
fell down the stairs was deemed insufficient to sustain the State's burden of
establishing voluntary nature of confession by clear and convincing
evidence).
In the instant case there is less evidence of actual injury to defendant
than existed in the Wilson and Banks cases. Nonetheless, it does not appear
accurate to conclude, as the majority does here, that there was no evidence
corroborating defendant's claim of physical abuse and coercion. During the
suppression hearing the court was presented with photographs and
codefendants' testimony regarding the alleged physical abuse. While the trial
court's finding of no injury attributable to police officers may have been
supported by the evidence presented and thus within the scope of the trial
court's discretion based on the facts before it, the precise issue before
this court is not a mere revisiting of the original suppression hearing. Cf.
People v. Hobley, , 294-95 (1994) (on direct appeal, where no
evidence existed to link defendant's chest bruise to abusive tactics of
police while interrogating defendant, trial court's denial of motion to
suppress was not an abuse of discretion). We are not reviewing the
voluntariness of the confession upon direct appeal. Rather, the question is
whether the outcome of the suppression hearing likely would have differed if
the same officers who told the court they did not harm defendant had been
subject to impeachment based on evidence revealing a pattern of abusive
tactics employed by them in the interrogation of other defendants. Unlike my
colleagues, I cannot simply conclude that the trial court's findings at the
suppression hearing, based on the information then available, compels this
court's holding that defendant, "by these tangential allegations, has failed
to make a substantial showing that his constitutional rights were violated."
Slip op. at 15.
My examination of the pertinent transcripts reveals that the post-
conviction judge apparently foreclosed further inquiry into the issue of Area
2 abuse before the amended post-conviction petition was filed. During a court
session in which defendant's motion for substitution of judges was presented,
and denied without comment, defense counsel sought leave to issue discovery
subpoenas in order to fully prepare the amended petition. The transcript
indicates that the State's Attorney was willing to satisfy subpoena requests
involving matters within the control of the State, including a copy of the
"Burge report." However, the circuit court judge, expressing his intent to
narrow the issues, spontaneously and somewhat cryptically announced his views
on the alleged abuse at Area 2:
"I specifically don't care what John Burge did at Area 2. I don't
think John Burge had anything to do with this case whatsoever. We
are not going to retry the Wilson case in this courtroom, and I
wouldn't turn any of that stuff over if I were the People of the
State of Illinois. *** I am going to tell you it is not going to
come out in a hearing here. That has been gone through four or five
times in other courts. It is not going through this courtroom. John
Burge probably doesn't have a clue who Andrew Maxwell is. That's
out. That's out."
The above opinion was interjected by the post-conviction judge during a
routine discussion of discovery matters. The State had not presented its
motion to dismiss defendant's petition at that time and had not expressed an
objection to the subpoenas in issue when the judge offered the above remarks.
The judge denied defendant's request to obtain certain discovery in advance
of the hearing on the State's motion to dismiss the post-conviction petition
and instead "reserved ruling" on the subpoenas until after the hearing on the
motion to dismiss. The judge further indicated to the parties that he
considered most of the other issues in the post-conviction petition to be
barred by waiver and res judicata. The court then suggested that the State
concentrate its motion to dismiss on the single issue of ineffective
assistance of trial counsel during the sentencing proceedings.
The judge's remarks reflect his intent to curtail inquiry into
defendant's claim of police coercion at Area 2. Although a challenge to the
admissibility of some of the materials might be well founded, I do not
believe that the issue raised in defendant's petition and supported by the
numerous exhibits has been given a fair evaluation by either the circuit
court or this court. I cannot discount as irrelevant the materials presented
in the post-conviction petition that tend to support the inference that
repeated and egregious abuses on the part of at least certain police officers
occurred at Area 2 headquarters contemporaneous to the time in which
defendant was being interrogated about the Bracy homicide. Without hearing
evidence, no court can conclusively determine whether, and to what extent,
the individual officers who interrogated defendant may have participated in
routine interrogation abuse and whose credibility at the suppression hearing
might have been impeached as a result.
For the reasons stated, I would remand this cause to the circuit court
for an evidentiary hearing on the claims discussed herein.

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