People v. Lear
Annotate this Case
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. 78292--Agenda 15--May 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. TUHRAN A. LEAR,
Appellant.
Opinion filed February 6, 1997.
CHIEF JUSTICE HEIPLE delivered the opinion of the court:
Following a jury trial in the circuit court of Montgomery
County, defendant, Tuhran Lear, was convicted of first degree
murder, attempted first degree murder, and two counts of armed
robbery. The jury found defendant eligible for the death penalty
and found no mitigating circumstances sufficient to preclude
imposition of the death penalty. Defendant was sentenced to death
and also to two concurrent 60-year prison terms for armed robbery
and attempted murder.
On direct appeal, this court affirmed the convictions and
sentences. People v. Lear, 143 Ill. 2d 138 (1991). Defendant
subsequently filed a petition for post-conviction relief which he
later amended and supplemented. Of the 11 claims raised in
defendant's post-conviction petition, nine were dismissed by the
court without an evidentiary hearing. After an evidentiary hearing
on the remaining two claims, the court denied defendant's post-
conviction petition.
Before this court, defendant argues that (1) defense counsel
was ineffective in failing to request a voir dire question
regarding racial bias; (2) defense counsel was ineffective in
failing to properly present the defense theory that defendant was
not the shooter; (3) defense counsel was ineffective at the capital
sentencing hearing; and (4) defendant was denied his constitutional
rights when evidence of other crimes was admitted as aggravating
evidence during the sentencing hearing. We affirm.
The evidence at trial disclosed that, on September 3, 1988,
defendant, accompanied by Randy Thomas, entered a gas station in
Farmersville, Illinois, and emptied the cash register. During the
robbery, defendant shot the store manager, Gregory McAnarney, and
an employee, Robert Bishop. McAnarney died as a result of the
gunshot wound but Bishop survived and later testified against
defendant.
Further details regarding the evidence presented at
defendant's trial are set forth in the opinion disposing of
defendant's direct appeal (Lear, 143 Ill. 2d 138) and will be
referred to below only as necessary to dispose of defendant's
instant appeal.
ANALYSIS
A proceeding under the Post-Conviction Hearing Act is a
collateral attack on the judgment of conviction which is limited to
constitutional issues which were not, and could not have been,
presented on direct review. People v. Gosier, 165 Ill. 2d 16, 20
(1995). Issues decided by a reviewing court on a prior direct
appeal are res judicata as to issues actually decided; issues that
could have been presented during direct review, but were not, are
deemed waived for purposes of post-conviction review. People v.
Franklin, 167 Ill. 2d 1, 9 (1995). On review, the trial court's
determinations regarding the post-conviction petition will not be
disturbed unless they are manifestly erroneous. Franklin, 167 Ill. 2d at 9.
I. Ineffective Assistance of Counsel
In order for defendant to succeed on a claim of ineffective
assistance of counsel, he must show (1) that his counsel's
performance was deficient in that it fell below an objective
standard of reasonableness and (2) that counsel's deficient
performance so prejudiced defendant that there is a reasonable
probability that the outcome of the trial would have been different
without counsel's errors. Strickland v. Washington, 466 U.S. 668,
80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Simms, 168 Ill. 2d 176 (1995). This standard applies to claims of ineffective
assistance of both trial and appellate counsel. People v. Foster,
168 Ill. 2d 465 (1995). A reviewing court may reject a claim of
ineffective assistance of counsel by finding that defendant was not
prejudiced by counsel's representation without determining whether
counsel's performance was deficient. People v. Erickson, 161 Ill. 2d 82, 90 (1994).
A. Voir Dire
Defendant, an African-American, argues that his trial counsel
was ineffective in failing to inform the jury that the victim was
white and in failing to draft and tender a voir dire question
regarding racial bias. Initially, the State argues that this issue
is waived because it was plainly discernible from the record and
thus could have been raised on direct appeal. We find that this
argument is not waived since it is based on evidence first
presented during the post-conviction hearing, during which
defendant testified that prior to voir dire he had asked defense
counsel to question prospective jurors about racial bias.
"[T]he Constitution requires a trial judge to question
venirepersons specifically regarding racial prejudice if `special
circumstances' exist that suggest a constitutionally significant
likelihood that racial prejudice might infect a defendant's trial."
People v. Peeples, 155 Ill. 2d 422, 459 (1993). Such special
circumstances exist where racial issues are " `inextricably bound
up with the conduct of the trial.' " Peeples, 155 Ill. 2d at 459-
60, quoting Ristaino v. Ross, 424 U.S. 589, 596-97, 47 L. Ed. 2d 258, 264, 96 S. Ct. 1017, 1021 (1976). In general, that the
defendant and victim are of different races does not in itself
create a special circumstance. Peeples, 155 Ill. 2d at 460.
However, when a capital defendant is on trial for an interracial
crime, the defendant is entitled to have prospective jurors
informed of the race of the victim and questioned about racial
bias, but only as to the sentencing phase, and only if the
defendant specifically requests such an inquiry. Turner v. Murray,
476 U.S. 28, 37, 90 L. Ed. 2d 27, 37, 106 S. Ct. 1683, 1688 (1986).
After reviewing the record, we find that the circuit court's
decision to dismiss this claim in the post-conviction petition was
not manifestly erroneous. During the post-conviction hearing,
defendant testified that he asked defense counsel to question
prospective jurors about racial bias. However, defense counsel
testified that defendant made no such request. The issue was thus
one of credibility since counsel and defendant gave different views
of what transpired prior to and during voir dire. The trial court
did not find defendant credible on this point and thus dismissed
the claim.
Since defendant, according to the trial court, did not ask for
an inquiry into racial bias, counsel was not required to make such
an inquiry. Turner, 476 U.S. at 37, 90 L. Ed. 2d at 37, 106 S. Ct.
at 1688. Whether to ask such questions was then left to counsel as
a matter of trial strategy, which is protected under Strickland.
Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at
2066; People v. Steidl, 142 Ill. 2d 204, 240 (1991) (trial
counsel's strategic decisions are generally protected by a strong
presumption that they reflect sound strategy rather than
incompetence). Accordingly, we affirm the dismissal of this claim.
B. Trial
1. Shooter Defense
The defense theory at trial was that Thomas, rather than
defendant, did the shooting during the robbery. Defendant argues
that counsel was ineffective for failing to admit a prior statement
made by the victim, Bishop, which defendant contends supported his
theory of the case. The trial court dismissed this claim, finding
that defendant failed to satisfy the prejudice prong of Strickland.
See Erickson, 161 Ill. 2d at 90.
We first note that this issue is not barred by the doctrine of
res judicata, as the State contends. On direct appeal, this court
addressed whether the trial court erred in refusing to allow
impeachment of Bishop using the reporter's testimony. Lear, 143 Ill. 2d at 145. However, the court never addressed whether counsel
was ineffective in failing to have Bishop's prior statement
admitted. The State further argues that the issue is waived, as it
could have been raised on direct appeal, to which defendant
responds that the issue is preserved due to the ineffectiveness of
appellate counsel in failing to raise the issue. We thus consider
the alleged ineffectiveness of appellate counsel.
Bishop, who was shot in the neck during the robbery, testified
at trial that defendant came into the store and asked for the rest
room. Bishop pointed to the rest room and defendant walked toward
it, leaving Bishop's line of sight. Defendant's accomplice, Thomas,
who was taller than defendant, then asked Bishop how far it was to
Chicago. A few moments later, Bishop heard a noise behind him, upon
which he was shot in the neck.
Prior to trial, Bishop allegedly told a newspaper reporter
that the first man who entered the store was the taller of the two,
which, if correct, would suggest that the taller man, Thomas, fired
the shots. At trial, defense counsel cross-examined Bishop about
his statement to the reporter and Bishop replied that he did not
recall what he said to the reporter. However, counsel failed to ask
Bishop whether the taller man entered the store first. When counsel
later attempted to impeach Bishop with the reporter's testimony,
the trial court ruled that there was nothing to impeach since
Bishop never testified about the relative heights of the two
assailants.
Defendant now argues that counsel was ineffective when he
failed to have Bishop's prior statement admitted, and specifically
contends that counsel erred when he: (1) failed to obtain an
affidavit from Bishop, which could have been used substantively or
to refresh Bishop's recollection; (2) failed to cross-examine
Bishop about who came into the store first; (3) failed to properly
preserve this issue by making an offer of proof of the reporter's
testimony; and (4) failed to request a jury instruction allowing
substantive use of Bishop's prior statement.
However, had Bishop's statement to the reporter been admitted
as substantive evidence, it would not have impacted the outcome of
the trial. During direct examination, Bishop, using a photograph,
unequivocally identified Thomas as the man who stayed in front of
him and asked the distance to Chicago. Another witness testified
that she saw defendant with the gun in his waistband as he left the
gas station after the robbery. Also, when defendant was picked up
by police he had the murdered victim's wallet in his pocket and
dried blood on his shoe. Moreover, on redirect, Bishop explained
that he was distracted while making the statement to the reporter
because his wife was at work and he was fixing supper while
supervising his four young children.
In light of this evidence, defendant was not prejudiced when
counsel failed to introduce into evidence Bishop's prior statement.
Since we find no prejudice, we affirm the trial court's dismissal
of this claim of ineffective assistance of counsel. Erickson, 161 Ill. 2d at 90.
C. Sentencing
Defendant raises various ineffective-assistance-of-counsel
claims arising out of the sentencing hearing. Therein, the State
presented aggravating evidence of two prior murders committed by
defendant. First, the State presented evidence of a 1974 juvenile
murder conviction which occurred when defendant was 15 years old.
Second, the State presented evidence that defendant committed a
robbery/murder at a gas station in Collinsville, Illinois, nine
days before the instant crime.
Defense counsel presented three witnesses in mitigation.
Defendant's girlfriend testified that she had a good relationship
with defendant and that he was "always there" for her when she
needed help. She also stated that defendant had a good relationship
with his young daughter. In addition, defendant's mother testified
that defendant had been an obedient child and an average student.
Finally, defendant's sister testified that he was a good child who
got along well with his brothers and sisters. She also stated that
defendant was a good parent who supported his daughter regularly.
1. Counsel's Inexperience and Limited Resources
Defendant argues that trial counsel's inexperience and lack of
resources constituted a per se violation of his right to effective
assistance of counsel. Defendant first argues that trial counsel
was per se ineffective because no co-counsel was appointed.
Defendant cites to the guidelines for capital cases provided by the
American Bar Association and the National Legal Aid and Defender
Association, which recommend that two attorneys be appointed to
represent each capital defendant. Second, defendant argues that
trial counsel was per se ineffective because he was young,
inexperienced, and had insufficient resources. Testimony by defense
counsel at the post-conviction hearing showed that: counsel
graduated from law school two years prior to his appointment as
counsel for defendant; this was both counsel's first homicide and
first capital case; counsel had never received any formal training
for defending a capital case; counsel's office employed no other
attorneys and no investigator; the only assistance received by
counsel was 60 hours of legal research help from another attorney;
and, during the time counsel was representing defendant, he was
responsible for numerous other pending cases.
Having a counsel with limited resources and limited experience
is not a circumstance which this court has held to constitute per
se ineffective assistance of counsel. See, e.g., People v. Hattery,
109 Ill. 2d 449, 461 (1985) (counsel failed to present a defense);
People v. Brandon, 162 Ill. 2d 450 (1994) (counsel failed to
request a fitness hearing for a defendant taking psychotropic
medication). Therefore, the proper inquiry is whether counsel's
representation fell below the standard of ineffective assistance of
counsel set forth in Strickland.
Applying Strickland to the instant case, we reject defendant's
ineffective-assistance claim because these alleged deficiencies did
not result in prejudice to defendant. Erickson, 161 Ill. 2d at 90.
Defendant was convicted by overwhelming evidence, after which
substantial aggravating evidence was presented, including evidence
of two prior murders committed by defendant. Defendant has failed
to show how additional personnel or financial resources would have
resulted in a sentence other than death. We thus affirm the trial
court's dismissal of defendant's claim of ineffective assistance of
counsel based on counsel's level of experience and amount of
resources.
2. Continuance of Sentencing Hearing
During the sentencing hearing, counsel unsuccessfully
requested a continuance in order to further prepare for the
proceedings. Defendant now argues that counsel was ineffective in
failing to request a continuance prior to the sentencing hearing in
order to further investigate the Collinsville crime and the
juvenile conviction.
The State contends that these issues are waived since they
could have been raised on direct appeal. With regard to the
Collinsville crime, we agree since no new evidence was presented
about that crime during the post-conviction proceedings. However,
a claim based on failure to investigate the juvenile crime was not
waived because it was based on evidence first presented during the
post-conviction proceedings.
During the post-conviction proceedings, defendant presented
evidence that, as a juvenile, he committed murder because he was
"provoked over a period of time and probably was fed up with being
picked on." Such evidence, however, is no justification for killing
another human being and would have been insufficient to counteract
the aggravating nature of the juvenile murder conviction. Thus,
defendant was not prejudiced by counsel's failure to request a
continuance to allow further investigation that may have led to the
discovery of this evidence. Accordingly, the trial court properly
dismissed this claim of ineffective assistance of counsel.
Erickson, 161 Ill. 2d at 90.
3. Mitigation
Next defendant argues that trial counsel was ineffective in
preparing and presenting mitigating evidence. He argues that
counsel was ineffective in that he (1) failed to renew a previously
denied request for funds to hire a mitigation expert; (2) used
available funds to acquire legal research assistance rather than
mitigation investigation assistance; (3) failed to adequately
question defendant's friends and family members; and (4) failed to
argue to the jury that defendant's past substance abuse impaired
his judgment. The State responds that none of these instances were
a violation of defendant's right to effective assistance of counsel
because defendant failed to show how these omissions prejudiced
defendant. Specifically, the State contends that doing the above
would not have uncovered mitigating evidence sufficient to change
the outcome of this case.
During the post-conviction hearing, defendant presented
additional mitigating evidence that was not presented during
sentencing. Three former correctional officers testified as to
defendant's good conduct while he was in juvenile detention. Angela
Granberry, who lived with defendant for several years and who was
the mother of defendant's daughter, testified that he was a good
family man, provided well for their daughter and helped around the
house while she was attending college. She also stated that he was
good with kids, including his own daughter and Angela's son, and
that he was a good worker. Angela's father, sister and aunt also
testified to these facts. A mitigation specialist from the Capital
Resource Center prepared defendant's social history, outlining his
disadvantaged childhood and lack of childhood supervision. Dr.
Risolo, a psychiatrist, testified as to defendant's substance abuse
history and his mother's failure to teach values. Finally, a friend
of defendant testified about defendant's drug and alcohol use
during the years prior to the instant crime.
The additional evidence presented through the testimony of
defendant's family at the post-conviction hearing was largely
cumulative of evidence presented during the sentencing hearing. The
remainder of the additional evidence was not sufficiently
mitigating, in light of the aggravating evidence, to change the
outcome of the sentencing hearing. We thus find that defendant was
not prejudiced by failure to present his disadvantaged childhood
and substance abuse history (see People v. Christiansen, 116 Ill. 2d 96, 129 (1987) (death penalty appropriate despite mitigating
evidence that included drug addiction and a deprived childhood);
People v. Johnson, 146 Ill. 2d 109, 145 (1991) (death penalty
appropriate despite mitigating evidence that included drug and
alcohol abuse, as well as abuse as a child)), or his good behavior
while incarcerated as a juvenile (see People v. Garcia, 165 Ill. 2d 409, 437 (1995) (defendant's good behavior in prison not
sufficiently mitigating to preclude a death sentence)).
Accordingly, we affirm the trial court's dismissal of this claim.
4. Psychological/Physiological Evidence
Defendant argues that counsel was ineffective for failing to
seek mitigating evidence concerning his possible psychological and
physiological defects. Specifically, defendant argues that counsel
was ineffective because he (1) failed to obtain the court file of
defendant's juvenile conviction, which contained a fitness report
and a psychiatric report; (2) failed to obtain a psychological
evaluation in response to the information contained in the juvenile
court file; and (3) failed to obtain a neurological evaluation to
determine if defendant had brain damage as a result of past
substance abuse.
At the post-conviction hearing, a psychiatrist, Dr. Risolo,
testified regarding her psychological evaluation of defendant prior
to the post-conviction hearing. Dr. Risolo testified that defendant
had antisocial personality disorder and mild neurotic depression.
She further testified that defendant's substance abuse might have
contributed to some neurological disfunction but stated that no
disfunction had ever been conclusively proven.
We find that defendant was not prejudiced by counsel's failure
to present this evidence during the sentencing hearing. Given the
overwhelming aggravating evidence and the relatively weak
mitigating evidence, evidence of defendant's antisocial personality
disorder and depression would not have resulted in a sentence other
than death. See People v. Montgomery, 112 Ill. 2d 517, 533 (1986)
(death penalty appropriate despite defendant's antisocial
personality disorder and extreme mental and emotional
disturbances). Furthermore, Dr. Risolo's testimony about a
possible, unproven neurological disfunction also would have been
insufficient to change the outcome of the sentencing hearing. See
Montgomery, 112 Ill. 2d at 533. Since defendant was not prejudiced
by the failure to present this evidence, we affirm the dismissal of
this claim of ineffective assistance. Erickson, 161 Ill. 2d at 90.
5. Codefendant's Lesser Sentence
Defendant, citing Messer v. State, 330 So. 2d 137 (Fla. 1976),
argues that counsel was ineffective in failing to argue, as a
nonstatutory mitigating circumstance, the lesser sentence given to
Thomas, his codefendant. As the State observes, this precise
argument was rejected by this court in People v. Page, 156 Ill. 2d 258, 270-72 (1993). Accordingly, we affirm the dismissal of this
claim of the post-conviction petition.
6. Prosecutor's Closing Argument
Defendant argues that defense counsel was ineffective when he
failed to object to the prosecutor's request that the jury
"recommend" a death sentence. Defendant argues that the statement
improperly misled the jury regarding its responsibility for
imposing the death penalty. As the State correctly observes, this
issue is waived because it was not raised on direct appeal and is
not based on any new evidence presented during the post-conviction
proceedings. However, insofar as defendant argues that the issue is
preserved for review because it was not raised on direct appeal due
to the ineffectiveness of appellate counsel, we will review the
claim.
The State may not, in closing argument, mislead the jury to
believe that the ultimate responsibility for a defendant's death
penalty rests elsewhere. Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985). When such an allegation is
made, "[t]he relevant inquiry *** is whether in consideration of
all facts and circumstances, the State has misled the jury
regarding its sentencing role. No single factor is necessarily
dispositive." People v. Flores, 153 Ill. 2d 264, 287 (1992).
Therefore, in order to determine whether the argument was improper,
we must look at the State's closing argument as a whole.
In two instances during her closing argument, the prosecutor
asked the jury to "impose and recommend the death sentence." We
find that those statements did not improperly mislead the jury
because use of the word "impose" adequately counteracted any
improper effect resulting from use of the word "recommend." As her
final words to the jury, the prosecutor stated, "We ask you to
recommend that the death sentence be imposed. Thank you." The jury
was not misled by this statement either because, only a few moments
earlier, the prosecutor had expressly acknowledged the weight of
the jury's responsibility for the death penalty, recognizing "that
for responsible people [imposing and recommending the death
penalty] is not an easy thing." Furthermore, the jury instructions
clearly apprised the jury of its responsibility for imposing the
death penalty.
Under these circumstances, we find that the State did not
improperly diminish the jury's sense of responsibility. Since the
State's closing argument was not misleading, appellate counsel was
not ineffective for failing to raise the issue on direct appeal and
the issue is therefore waived. Accordingly, we affirm the trial
court's dismissal of this claim of the post-conviction petition.
7. Defense's Closing Argument
Defendant argues that counsel was ineffective in his closing
argument during the second phase of the sentencing hearing because
he merely focused upon the death penalty generally without arguing
mitigating circumstances. On direct appeal, this court stated:
"Defendant complains that he received ineffective assistance at the
second stage of the death penalty hearing in that defense counsel
*** confined his argument to the jury to a plea that there is no
justification to take a human life. Defendant's claims are
meritless." Lear, 143 Ill. 2d at 151-52. Since this issue was
addressed on direct appeal it is now res judicata and may not be
relitigated during this post-conviction appeal. We thus affirm the
circuit court's dismissal of this claim.
II. Aggravating Evidence
Defendant argues that evidence of a crime he committed in
Collinsville, Illinois, was improperly used as aggravating
evidence. First, defendant argues that he was denied due process,
effective assistance of counsel, and his right to be free from
cruel and unusual punishment when evidence of the Collinsville
crime was admitted in the absence of requested counsel for the
Collinsville crime. Second, defendant argues that he was denied
effective assistance of counsel when defense counsel failed to
object to the evidence's introduction on due process grounds.
The State responds that any challenge to the introduction of
evidence of the Collinsville crime is res judicata because, during
direct appeal, this court affirmed the use of this evidence when it
stated:
"Defendant asserts that the trial court erred in
allowing the jury to consider evidence of unadjudicated
criminal conduct during the second stage of the
sentencing hearing. We disagree. This court has
previously held that evidence showing the defendant's
commission of other crimes or acts of misconduct is
admissible even though the defendant was not prosecuted
or convicted for such conduct. People v. Ramirez, 98 Ill.
2d, 439, 460-61 (1983)." Lear, 143 Ill. 2d at 152-53.
We agree that this issue cannot be raised again here and thus
affirm the trial court's decision to dismiss this claim.
CONCLUSION
For the reasons stated above, we affirm the judgment of the
circuit court. We direct the clerk of this court to enter an order
setting Wednesday, May 21, 1997, as the date on which defendant's
sentence of death 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, the warden at
Stateville Correctional Center, and the warden of the institution
where the defendant is now confined.
Affirmed.
JUSTICE McMORROW, concurring in part and dissenting in part:
I concur in the majority opinion to the extent that it affirms
defendant's convictions for murder, attempted murder, and armed
robbery. However, I join in the dissent of Justice Freeman only
with respect to his analysis and conclusions on the issue of trial
strategy during voir dire.
JUSTICE FREEMAN, dissenting:
In this appeal from the denial of post-conviction relief,
defendant, as petitioner, argues that he was denied effective
assistance of counsel for several reasons. I take issue with the
majority's analysis and resolution of at least two of defendant's
claims. Because there is an unreasonable risk that this defendant
was unfairly sentenced to death, I dissent.
Voir Dire
Defendant claims ineffectiveness in that his trial counsel,
during voir dire, failed to raise the issue of racial bias to the
venire in accordance with Turner v. Murray, 476 U.S. 28, 90 L. Ed. 2d 27, 106 S. Ct. 1683 (1986), and People v. Peeples, 155 Ill. 2d 422 (1993). The majority correctly notes that when a capital
defendant is on trial for an interracial crime the defendant is
entitled to have prospective jurors informed of the race of the
victim and questioned about racial bias. Slip op at 3. The majority
errs, however, in its statement of how the right is invoked and,
correspondingly, in its analysis of counsel's failure to assert the
right in this case.
In his petition, defendant asserted that he had requested that
counsel make a Turner inquiry; however, counsel refused.
The majority, finding that defendant's post-conviction testimony to
that effect was contradicted by counsel's testimony holds that
"[t]he issue was thus one of credibility," and the trial court did
not find defendant credible on this point. Slip op at 3. The
majority then holds that because the court found that defendant
himself made no such request of counsel, counsel was not required
to make the inquiry. Slip op. at 4.
The majority misstates the law concerning how the right to a
Turner inquiry is invoked. Turner does not contemplate that a
defendant, who is represented by counsel, will, in the first place,
be aware of such an entitlement, or that that defendant will, in
the second place, specifically request that his attorney make such
an inquiry. That a defendant himself fails to request the Turner
voir dire does not deprive him or her of his entitlement to such an
inquiry. Many of the rights of an accused, including constitutional
rights, are such that only trained experts can comprehend their
full significance.
By its analysis, the majority effectively grafts onto the
Turner entitlement a new requirement--that the defendant as client
must request the inquiry. However, Turner merely holds that "a
capital defendant accused of an interracial crime is entitled to
have prospective jurors informed of the race of the victim and
questioned on the issue of racial bias. *** Also, a defendant
cannot complain of a judge's failure to question the venire on
racial prejudice unless the defendant has specifically requested
such an inquiry."
Significantly, the Court in Morgan v. Illinois, 504 U.S. 719,
119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992), in setting out the
requirement for a reverse-Witherspoon inquiry, relies largely on
the reasoning in Turner and uses much the same language. Morgan,
504 U.S. at 736, 119 L. Ed. 2d at 507, 112 S. Ct. at 2233
("[p]etitioner was entitled, upon his request, to inquiry
discerning those jurors who," prior to termination of the case, had
predetermined the issue of death (emphasis added)). I have not
heard it suggested that, because the defendant himself does not
request the reverse-Witherspoon inquiry, counsel is not required to
inquire. Entitlement to a Turner inquiry, like the entitlement to
the reverse-Witherspoon inquiry, is far too important to depend on
the request of an untrained criminal defendant.
Knowledge of a constitutional entitlement to inquiry on
matters such as a predisposition to impose death or, in this case,
on racial bias, is within the knowledge of the criminal defense
attorney, not the client. Thus, the viability of defendant's Turner
claim does not turn on whether the post- conviction court
disbelieved that defendant, as client, requested that counsel make
such an inquiry.
The majority next reasons that since defendant did not request
the Turner inquiry, whether to conduct such an inquiry became a
matter of trial strategy, not subject to the Strickland
ineffectiveness analysis (see Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)). Slip op. at 4.
Certainly, what questions will be posed on voir dire may
properly fall within the bounds of trial strategy. However,
counsel's failure to inquire on Turner racial bias was not
converted to a strategic decision merely because defendant failed
to request such an inquiry. Strategic decisions are those decisions
which flow from counsel's particular knowledge and expertise. Thus,
while a decision on whether to voir dire on particular issues may
be a matter of trial strategy, the absence of voir dire on such
issues might just as well be a matter of ineptitude, inexperience,
lack of preparation or unfamiliarity with basic legal principles.
In such case, the failure to voir dire amounts to ineffective
assistance of counsel. 1 ABA Standards for Criminal Justice 4--5.2
(2d ed. Supp. 1986).
Here, it is significant that counsel had been admitted to the
bar for only a two-year period prior to being assigned this, his
very first, capital case. While the extent and nature of counsel's
legal experience alone do not necessarily support a conclusion of
ineffective assistance, those facts take on particular significance
in the evaluation of a Turner claim. This is so because voir dire
pursuant to Turner is available to capital defendants only. Unless
there is evidence here to support a finding that counsel's failure
to request a Turner inquiry flowed from his particular knowledge
and expertise concerning the nature and purpose of the Turner
inquiry, there can be no basis upon which to conclude that such a
failing was the result of trial strategy.
Proper resolution of the issue requires more than cursory
consideration; it necessarily involves thorough review and
consideration of counsel's post-conviction affidavit and testimony
in the context of his conduct of voir dire. Based upon my review,
I believe that the record supports the conclusion that counsel was
unfamiliar with the Turner entitlement and his failure to voir dire
was, therefore, not a matter of strategy.
In his affidavit, counsel first states that, during voir dire,
he asked each potential juror whether there was anything about
defendant that would cause him or her to be biased or prejudiced.
His purpose in asking that question was to address the issue of
racial prejudice because defendant was black. Counsel next states
that he "had no reason for not asking a question of the venire on
voir dire whether the race of the victim would be a factor in
causing them to be biased or prejudiced against Mr. Lear." Finally,
counsel states that he might have discussed with defendant asking
a question concerning racial bias because of the victims' race, and
he may have said that such a question would get the jurors "pissed
off" and that they would be there three weeks and he may have
preferred not to harp on the victims' race because he might have
thought that that was more harmful, although he did not recall.
The only definitive statements concerning voir dire in
counsel's affidavit are that: (1) he was concerned about racial
bias and (2) he had no reason for failing to request the Turner
inquiry. The remainder of counsel's statements concerning what he
might have thought regarding a Turner inquiry can only be
characterized as tentative and equivocal at best.
Counsel's subsequent direct examination testimony at the post-
conviction hearing is consistent with the statements in his
affidavit. After being shown his affidavit, counsel testified
concerning the Turner inquiry in much the same equivocal manner as
his statements in his affidavit. Particularly telling are the
prosecutor's cross-examination questions and counsel's answers
thereto.
"Ms. Dobrinic [Assistant State's Attorney]: Now, did
you ever in the course of your relationship have--well,
did [defendant] ever express a concern that he might be
an African-American defendant being tried in a
predominantly Caucasian county?
Mr. Grigsby [Defense Attorney]: I am sure that there
would have been some discussions regarding that. Usually
that subject came up whenever I represented African-
Americans in this county.
***
Ms. Dobrinic: Mr. Grigsby, as a trial attorney and
under the circumstances that we were in being in
Effingham, Illinois, with the defendant, did you think it
was proper to find out jurors attitudes toward race--or
let me say this. Did you think it was important to find
out their attitudes towards race?
Mr. Grigsby: Well, yes, I thought that was
important.
Ms. Dobrinic: Do you feel like you did that by your
voir dire of these jurors?
Mr. Grigsby: Yes, I felt that the race issue was
brought out during the voir dire by the questions.
Ms. Dobrinic: Did you find it necessary to
specifically ask jurors are you prejudiced against
African-Americans?
Mr Grigsby: No, no, because the jurors understood
the question and would volunteer any prejudice they had."
Four things are apparent from counsel's affidavits and
testimony and none of them suggest strategy with respect to Turner:
(1) counsel was concerned about racial prejudice in predominantly
white Effingham County; (2) counsel had no reason for failing to
request a Turner inquiry; (3) counsel "might have" chosen not to
inquire regarding Turner racial bias because it "might have" been
more harmful and (4) counsel believed his inquiry concerning
prejudice toward the defendant was sufficient to prompt a volunteer
admission concerning any type of racial bias.
Based on counsel's statements and testimony, I would not find
that his failure to request a Turner inquiry was in fact trial
strategy. Counsel stated that he was concerned about prejudice in
predominantly white Effingham County. So concerned about racial
bias was counsel that he specifically questioned and excused those
particular jurors who would judge partially based on defendant's
race. Though actively inquiring and ferreting out any biased juror
prior to the commencement of trial, counsel now offers that he
might have chosen not to additionally inquire concerning
interracial crime bias because such an inquiry might have harmfully
focused the jury's attention on that fact.
Even if I could disregard the tentativeness of counsel's
stated reason, given counsel's concern and conduct at voir dire
with respect to racial bias the reason lacks validity. Counsel
questioned each juror on racial bias toward defendant as an
African-American and excused any juror who expressed an inability
based upon race to be impartial. It is therefore unlikely that this
same counsel would believe that a Turner voir dire, like his
general racial bias voir dire, would be harmful or that it would
not have had the similarly desired effect of affording him the
opportunity to also excuse any juror who would judge partially
because the defendant was black and the victims were white.
Defense counsel's harmful effect reason is, to me,
questionable for additional reasons. First, each juror was voir
dired individually, out of the presence of any other potential
jurors. Secondly, individual jurors were already focused during
voir dire on the issue of race by defendant's prejudice inquiry.
Third, the record does not reveal that counsel proposed withholding
the race of the victims from the jury once trial commenced.
Finally, concerning counsel's cross-examination testimony, it
is not plausible, as counsel suggests, that the jurors, because
they had been voir dired concerning prejudice toward defendant,
would have volunteered any Turner prejudice. There was nothing
which would have prompted any juror to offer such information
during voir dire. Counsel stated in both his affidavit and in his
testimony that the jury did not learn of the victims' race until
after trial had commenced. By then, of course, it was too late to
guard against the risk of the kind partiality contemplated by
Turner.
In my view, if in fact counsel was concerned that racial bias
might hinder the jury's ability to judge impartially, as I believe
defense counsel in this case genuinely was, that concern would have
logically prompted an informed counsel to utilize every known legal
tool to eliminate that bias. Given counsel's concern and conduct on
the issue of bias toward defendant, coupled with his equivocation
as to why he "might" not have additionally conducted a Turner
inquiry, I believe that counsel's failure to inquire is more
reasonably explained as a lack of awareness or unfamiliarity with
Turner and defendant's entitlement to an inquiry regarding
interracial crime bias.
Further, the majority of this court can place little reliance
on the post-conviction court's disposition of this claim. The post-
conviction judge, in rejecting defendant's voir dire claim, made
the following findings: the jurors were individually voir dired and
were asked questions indirectly which would detect bias against the
defendant for race or otherwise; (2) defendant was consulted
personally as to each juror; (3) several jurors were excused
because of racial bias; and (4) the evidence does not support the
fact that defendant specifically requested any particular question
and, even if he did, there is no reason to believe the jurors'
responses would be any different than that reached by the questions
they were asked.
It appears that the post-conviction judge, like the majority,
misperceives both the import and the requirements under Turner.
Inquiry with respect to prejudice against a defendant as an
African-American is not the inquiry deemed important by Turner and
is, therefore, insufficient to satisfy Turner's requirements. In
point of fact, voir dire on racial bias is not required in a
capital case simply because the defendant happens to be of African-
American descent. Turner seeks to address that particular brand of
racial prejudice which would cloud jurors' objectivity when the
crime is interracial. Thus, while counsel's inquiry concerning bias
toward defendant eliminated those jurors who harbored racial
prejudice based upon the defendant's descent, that same inquiry was
ineffective to detect that bias which potentially exists when the
defendant is African-American and the victim is Caucasian.
In this case, the victims' race was not made known to the
jurors until after the jury had been impaneled and trial had
commenced. Counsel's voir dire with respect to prejudice against
defendant as an African-American did nothing to satisfy the
requirements under Turner or to safeguard against interracial crime
bias. Further, it is simply impossible to conclude, as did the
post-conviction court, that the jurors responses pursuant to Turner
would not have been different had the inquiry been made.
In sum, I would find that counsel's failure to request Turner
voir dire was not based on any particular strategy, but rather on
inexperience with capital cases and his lack of familiarity with
the Turner entitlement. Further, in light of counsel's own
expressed concern and conduct regarding the potential for racial
bias in Effingham County, this court cannot conclude with any
degree of certainty that, once the jurors learned of the
interracial nature of these offenses, their ability to be impartial
was unaffected. I would therefore find that Strickland has been
satisfied on this particular claim and remand for a new sentencing
hearing.
The Shooter Defense
Defendant's defense theory at trial was that his separately
tried codefendant, Randy Thomas, and not defendant, shot both
victims. Defense counsel failed to present this defense at trial.
Defendant and Thomas were both charged with the commission of
these offenses. Defendant is shorter in stature than is his
codefendant, Thomas. Prior to trial, Bob Bishop, the surviving
victim and a material witness in this case, made a statement to a
newspaper reporter, Jacqueline Price, that the taller of the two
men (Thomas) entered the store first and while the shorter man
(defendant) distracted Bishop with a question regarding directions,
the taller man shot Bishop. Bishop did not see who shot McArnarney,
the nonsurviving victim involved in +these offenses.
At trial, Bishop testified that defendant entered the station
and asked for the rest room. Thomas, who was taller than defendant,
then asked Bishop how far it was to Chicago. A few moments later
Bishop was shot in the neck.
Defense counsel did not impeach Bishop with his prior
inconsistent statements to the reporter. Further, counsel did not
present either testimony or an offer of proof concerning the
statements made to the reporter. Defendant asserts that these
failings, which deprived him of the presentation of his defense at
trial, constitute ineffective assistance of counsel.
The majority, recalling Bishop's trial testimony, concludes
that even had counsel been able to impeach Bishop's testimony, no
different result would have yielded. In support, the majority notes
that Bishop unequivocally identified Thomas as the man who stayed
in front of him and asked the distance to Chicago. Further,
witnesses testified that defendant had the gun in his waistband as
he left the gas station after the robbery; when defendant was
picked up by police he had the murdered victim's wallet in his
pocket and there was dried blood on defendant's shoe. Finally, the
majority notes that on redirect, Bishop explained that he was
distracted while making the statement to the reporter. Slip op. at
5.
I am not as assured as is the majority that the same result
would yield had defendant been given the opportunity to present his
shooter defense. Bishop's post-conviction affidavit, which is
consistent with his statements to the reporter, contradicts his
trial testimony. In his affidavit, Bishop states that, although he
has difficulty remembering details of the shooting, it is his
belief that the first person who entered the station, and who asked
where the bathroom was, is the one who shot him, while the second
person, who sought directions, distracted Bishop's attention. "I
told [the reporter] something about the tall one, it seemed to me
at the time that the first one in was pretty tall." It was Bishop's
recollection that the first defendant to enter the station was
taller than the second one who entered. Bishop states in his
affidavit that he does not know who shot him.
We have two accounts of the event by Bishop, one given through
trial testimony and another in his post-conviction affidavit; one
which suggests that the taller man, Thomas, was the shooter and
another which suggests that defendant, the shorter man, was the
shooter. So much for Bishop's unequivocal identification of Thomas
as the man who sought directions. Further, that defendant was seen
with "the gun" in his waistband does not necessarily support a
conclusion that he was the shooter. Additionally, the fact that
defendant had the murdered victim's wallet supports a conclusion
that he robbed the victim, not that he also shot the victim.
Finally and significantly, although there was testimony that
defendant's shoe bore human blood, there was no testimony to the
effect that the blood matched the blood of either of the two
victims in this crime. Importantly, while awaiting trial on these
offenses, defendant was found guilty of a fatal shooting which had
occurred only weeks prior to this offense. It is, therefore,
conceivable that the blood on defendant's shoe was from that prior
incident.
Also worth noting, during deliberation, the jurors asked to
have Bishop's testimony reread to them. That request was denied,
and the jury instead tendered the following question, "Bob Bishop's
question concerning identity of man who asked distance to Chicago."
Further, although there had been no impeachment testimony
concerning the relative heights of each defendant and where each
stood in relation to Bishop at the time of the shooting, in closing
argument, both the defense and the State, in its rebuttal, argued
those points to the jury.
Counsel in his affidavit states that he was aware of Bishop's
inconsistent statement; however, he did not interview Bishop prior
to trial. At trial he did not call Bishop as a witness (see 134
Ill. 2d R. 238), nor did he, on cross-examination, question Bishop
on the issue of the relative height of the assailants.
In light of all of the facts concerning this defense, I am
hardpressed to conclude, as does the majority, that the
presentation of the defendant's shooter defense would have made no
difference, particularly with respect to sentencing. There was no
direct evidence that defendant was the shooter; not even Bishop,
who was present during the course of the offense, knows who shot
him or McArnarney. The jury, by its question concerning Bishop's
testimony and after hearing conflicting arguments on the shooter
defense, appears to have placed particular significance on that
issue during its deliberation.
Incidentally, on direct appeal, we held that the exclusion of
the reporter's potential impeachment testimony was proper, as there
was no inconsistency in Bishop's testimony that would justify the
need for the same. Further, we held that any error in the exclusion
of such testimony was waived for counsel's failure to include the
claim in his post-trial motion. See People v. Lear, 143 Ill. 2d 138, 145 (1991). Significantly, it was trial counsel who, in the
first place, failed to elicit the inconsistent statements from
Bishop which would have provided a basis for the reporter's
testimony. Secondly, it was defense counsel who then filed the
post-trial motion which omitted this particular issue. In light of
defendant's participation in these offenses, as the majority so
assuredly concludes, even had the shooter defense been presented,
there perhaps would have been no different result on the issue of
guilt. However, given that there is a question as to whether the
defendant was the shooter, that the jury apparently considered the
issue significant in its deliberations, and further, mindful that
it takes only one juror to vote against death, I cannot conclude
with any assurance that presentation of the shooter defense might
not have altered the result at sentencing. Notably, in affidavits
presented by two jurors, each one states that an initial paper
ballot yielded an 11-1 vote on the issue of death.
As a result of counsel's performance, defendant was left with
no presentation of a defense at trial. Although, in the case of a
jury, we can never conclude with absolute certainty that another
result might have resulted, there is sufficient probability here
that, but for counsel's failure to present defendant's shooter
defense, defendant might not have received death. I would therefore
find that Strickland has been satisfied with respect to defendant's
shooter defense claim.
Conclusion
The majority in this court is apparently satisfied that the
failure to present the shooter defense and the failure to voir dire
on the issue of interracial crime racial bias "in Effingham County"
had no prejudicial effect. In the absence of affidavits from each
juror to that effect, I am at a loss as to how the majority can,
with such assurance, reach this conclusion. A new sentencing
hearing is the only available means by which this court can assure
that this defendant was fairly sentenced to death. In the absence
of a such a judgment, I dissent.
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. 78292--Agenda 15--May 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. TUHRAN A. LEAR,
Appellant.
Opinion filed February 6, 1997.
CHIEF JUSTICE HEIPLE delivered the opinion of the court:
Following a jury trial in the circuit court of Montgomery
County, defendant, Tuhran Lear, was convicted of first degree
murder, attempted first degree murder, and two counts of armed
robbery. The jury found defendant eligible for the death penalty
and found no mitigating circumstances sufficient to preclude
imposition of the death penalty. Defendant was sentenced to death
and also to two concurrent 60-year prison terms for armed robbery
and attempted murder.
On direct appeal, this court affirmed the convictions and
sentences. People v. Lear, 143 Ill. 2d 138 (1991). Defendant
subsequently filed a petition for post-conviction relief which he
later amended and supplemented. Of the 11 claims raised in
defendant's post-conviction petition, nine were dismissed by the
court without an evidentiary hearing. After an evidentiary hearing
on the remaining two claims, the court denied defendant's post-
conviction petition.
Before this court, defendant argues that (1) defense counsel
was ineffective in failing to request a voir dire question
regarding racial bias; (2) defense counsel was ineffective in
failing to properly present the defense theory that defendant was
not the shooter; (3) defense counsel was ineffective at the capital
sentencing hearing; and (4) defendant was denied his constitutional
rights when evidence of other crimes was admitted as aggravating
evidence during the sentencing hearing. We affirm.
The evidence at trial disclosed that, on September 3, 1988,
defendant, accompanied by Randy Thomas, entered a gas station in
Farmersville, Illinois, and emptied the cash register. During the
robbery, defendant shot the store manager, Gregory McAnarney, and
an employee, Robert Bishop. McAnarney died as a result of the
gunshot wound but Bishop survived and later testified against
defendant.
Further details regarding the evidence presented at
defendant's trial are set forth in the opinion disposing of
defendant's direct appeal (Lear, 143 Ill. 2d 138) and will be
referred to below only as necessary to dispose of defendant's
instant appeal.
ANALYSIS
A proceeding under the Post-Conviction Hearing Act is a
collateral attack on the judgment of conviction which is limited to
constitutional issues which were not, and could not have been,
presented on direct review. People v. Gosier, 165 Ill. 2d 16, 20
(1995). Issues decided by a reviewing court on a prior direct
appeal are res judicata as to issues actually decided; issues that
could have been presented during direct review, but were not, are
deemed waived for purposes of post-conviction review. People v.
Franklin, 167 Ill. 2d 1, 9 (1995). On review, the trial court's
determinations regarding the post-conviction petition will not be
disturbed unless they are manifestly erroneous. Franklin, 167 Ill. 2d at 9.
I. Ineffective Assistance of Counsel
In order for defendant to succeed on a claim of ineffective
assistance of counsel, he must show (1) that his counsel's
performance was deficient in that it fell below an objective
standard of reasonableness and (2) that counsel's deficient
performance so prejudiced defendant that there is a reasonable
probability that the outcome of the trial would have been different
without counsel's errors. Strickland v. Washington, 466 U.S. 668,
80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Simms, 168 Ill. 2d 176 (1995). This standard applies to claims of ineffective
assistance of both trial and appellate counsel. People v. Foster,
168 Ill. 2d 465 (1995). A reviewing court may reject a claim of
ineffective assistance of counsel by finding that defendant was not
prejudiced by counsel's representation without determining whether
counsel's performance was deficient. People v. Erickson, 161 Ill. 2d 82, 90 (1994).
A. Voir Dire
Defendant, an African-American, argues that his trial counsel
was ineffective in failing to inform the jury that the victim was
white and in failing to draft and tender a voir dire question
regarding racial bias. Initially, the State argues that this issue
is waived because it was plainly discernible from the record and
thus could have been raised on direct appeal. We find that this
argument is not waived since it is based on evidence first
presented during the post-conviction hearing, during which
defendant testified that prior to voir dire he had asked defense
counsel to question prospective jurors about racial bias.
"[T]he Constitution requires a trial judge to question
venirepersons specifically regarding racial prejudice if `special
circumstances' exist that suggest a constitutionally significant
likelihood that racial prejudice might infect a defendant's trial."
People v. Peeples, 155 Ill. 2d 422, 459 (1993). Such special
circumstances exist where racial issues are " `inextricably bound
up with the conduct of the trial.' " Peeples, 155 Ill. 2d at 459-
60, quoting Ristaino v. Ross, 424 U.S. 589, 596-97, 47 L. Ed. 2d 258, 264, 96 S. Ct. 1017, 1021 (1976). In general, that the
defendant and victim are of different races does not in itself
create a special circumstance. Peeples, 155 Ill. 2d at 460.
However, when a capital defendant is on trial for an interracial
crime, the defendant is entitled to have prospective jurors
informed of the race of the victim and questioned about racial
bias, but only as to the sentencing phase, and only if the
defendant specifically requests such an inquiry. Turner v. Murray,
476 U.S. 28, 37, 90 L. Ed. 2d 27, 37, 106 S. Ct. 1683, 1688 (1986).
After reviewing the record, we find that the circuit court's
decision to dismiss this claim in the post-conviction petition was
not manifestly erroneous. During the post-conviction hearing,
defendant testified that he asked defense counsel to question
prospective jurors about racial bias. However, defense counsel
testified that defendant made no such request. The issue was thus
one of credibility since counsel and defendant gave different views
of what transpired prior to and during voir dire. The trial court
did not find defendant credible on this point and thus dismissed
the claim.
Since defendant, according to the trial court, did not ask for
an inquiry into racial bias, counsel was not required to make such
an inquiry. Turner, 476 U.S. at 37, 90 L. Ed. 2d at 37, 106 S. Ct.
at 1688. Whether to ask such questions was then left to counsel as
a matter of trial strategy, which is protected under Strickland.
Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at
2066; People v. Steidl, 142 Ill. 2d 204, 240 (1991) (trial
counsel's strategic decisions are generally protected by a strong
presumption that they reflect sound strategy rather than
incompetence). Accordingly, we affirm the dismissal of this claim.
B. Trial
1. Shooter Defense
The defense theory at trial was that Thomas, rather than
defendant, did the shooting during the robbery. Defendant argues
that counsel was ineffective for failing to admit a prior statement
made by the victim, Bishop, which defendant contends supported his
theory of the case. The trial court dismissed this claim, finding
that defendant failed to satisfy the prejudice prong of Strickland.
See Erickson, 161 Ill. 2d at 90.
We first note that this issue is not barred by the doctrine of
res judicata, as the State contends. On direct appeal, this court
addressed whether the trial court erred in refusing to allow
impeachment of Bishop using the reporter's testimony. Lear, 143 Ill. 2d at 145. However, the court never addressed whether counsel
was ineffective in failing to have Bishop's prior statement
admitted. The State further argues that the issue is waived, as it
could have been raised on direct appeal, to which defendant
responds that the issue is preserved due to the ineffectiveness of
appellate counsel in failing to raise the issue. We thus consider
the alleged ineffectiveness of appellate counsel.
Bishop, who was shot in the neck during the robbery, testified
at trial that defendant came into the store and asked for the rest
room. Bishop pointed to the rest room and defendant walked toward
it, leaving Bishop's line of sight. Defendant's accomplice, Thomas,
who was taller than defendant, then asked Bishop how far it was to
Chicago. A few moments later, Bishop heard a noise behind him, upon
which he was shot in the neck.
Prior to trial, Bishop allegedly told a newspaper reporter
that the first man who entered the store was the taller of the two,
which, if correct, would suggest that the taller man, Thomas, fired
the shots. At trial, defense counsel cross-examined Bishop about
his statement to the reporter and Bishop replied that he did not
recall what he said to the reporter. However, counsel failed to ask
Bishop whether the taller man entered the store first. When counsel
later attempted to impeach Bishop with the reporter's testimony,
the trial court ruled that there was nothing to impeach since
Bishop never testified about the relative heights of the two
assailants.
Defendant now argues that counsel was ineffective when he
failed to have Bishop's prior statement admitted, and specifically
contends that counsel erred when he: (1) failed to obtain an
affidavit from Bishop, which could have been used substantively or
to refresh Bishop's recollection; (2) failed to cross-examine
Bishop about who came into the store first; (3) failed to properly
preserve this issue by making an offer of proof of the reporter's
testimony; and (4) failed to request a jury instruction allowing
substantive use of Bishop's prior statement.
However, had Bishop's statement to the reporter been admitted
as substantive evidence, it would not have impacted the outcome of
the trial. During direct examination, Bishop, using a photograph,
unequivocally identified Thomas as the man who stayed in front of
him and asked the distance to Chicago. Another witness testified
that she saw defendant with the gun in his waistband as he left the
gas station after the robbery. Also, when defendant was picked up
by police he had the murdered victim's wallet in his pocket and
dried blood on his shoe. Moreover, on redirect, Bishop explained
that he was distracted while making the statement to the reporter
because his wife was at work and he was fixing supper while
supervising his four young children.
In light of this evidence, defendant was not prejudiced when
counsel failed to introduce into evidence Bishop's prior statement.
Since we find no prejudice, we affirm the trial court's dismissal
of this claim of ineffective assistance of counsel. Erickson, 161 Ill. 2d at 90.
C. Sentencing
Defendant raises various ineffective-assistance-of-counsel
claims arising out of the sentencing hearing. Therein, the State
presented aggravating evidence of two prior murders committed by
defendant. First, the State presented evidence of a 1974 juvenile
murder conviction which occurred when defendant was 15 years old.
Second, the State presented evidence that defendant committed a
robbery/murder at a gas station in Collinsville, Illinois, nine
days before the instant crime.
Defense counsel presented three witnesses in mitigation.
Defendant's girlfriend testified that she had a good relationship
with defendant and that he was "always there" for her when she
needed help. She also stated that defendant had a good relationship
with his young daughter. In addition, defendant's mother testified
that defendant had been an obedient child and an average student.
Finally, defendant's sister testified that he was a good child who
got along well with his brothers and sisters. She also stated that
defendant was a good parent who supported his daughter regularly.
1. Counsel's Inexperience and Limited Resources
Defendant argues that trial counsel's inexperience and lack of
resources constituted a per se violation of his right to effective
assistance of counsel. Defendant first argues that trial counsel
was per se ineffective because no co-counsel was appointed.
Defendant cites to the guidelines for capital cases provided by the
American Bar Association and the National Legal Aid and Defender
Association, which recommend that two attorneys be appointed to
represent each capital defendant. Second, defendant argues that
trial counsel was per se ineffective because he was young,
inexperienced, and had insufficient resources. Testimony by defense
counsel at the post-conviction hearing showed that: counsel
graduated from law school two years prior to his appointment as
counsel for defendant; this was both counsel's first homicide and
first capital case; counsel had never received any formal training
for defending a capital case; counsel's office employed no other
attorneys and no investigator; the only assistance received by
counsel was 60 hours of legal research help from another attorney;
and, during the time counsel was representing defendant, he was
responsible for numerous other pending cases.
Having a counsel with limited resources and limited experience
is not a circumstance which this court has held to constitute per
se ineffective assistance of counsel. See, e.g., People v. Hattery,
109 Ill. 2d 449, 461 (1985) (counsel failed to present a defense);
People v. Brandon, 162 Ill. 2d 450 (1994) (counsel failed to
request a fitness hearing for a defendant taking psychotropic
medication). Therefore, the proper inquiry is whether counsel's
representation fell below the standard of ineffective assistance of
counsel set forth in Strickland.
Applying Strickland to the instant case, we reject defendant's
ineffective-assistance claim because these alleged deficiencies did
not result in prejudice to defendant. Erickson, 161 Ill. 2d at 90.
Defendant was convicted by overwhelming evidence, after which
substantial aggravating evidence was presented, including evidence
of two prior murders committed by defendant. Defendant has failed
to show how additional personnel or financial resources would have
resulted in a sentence other than death. We thus affirm the trial
court's dismissal of defendant's claim of ineffective assistance of
counsel based on counsel's level of experience and amount of
resources.
2. Continuance of Sentencing Hearing
During the sentencing hearing, counsel unsuccessfully
requested a continuance in order to further prepare for the
proceedings. Defendant now argues that counsel was ineffective in
failing to request a continuance prior to the sentencing hearing in
order to further investigate the Collinsville crime and the
juvenile conviction.
The State contends that these issues are waived since they
could have been raised on direct appeal. With regard to the
Collinsville crime, we agree since no new evidence was presented
about that crime during the post-conviction proceedings. However,
a claim based on failure to investigate the juvenile crime was not
waived because it was based on evidence first presented during the
post-conviction proceedings.
During the post-conviction proceedings, defendant presented
evidence that, as a juvenile, he committed murder because he was
"provoked over a period of time and probably was fed up with being
picked on." Such evidence, however, is no justification for killing
another human being and would have been insufficient to counteract
the aggravating nature of the juvenile murder conviction. Thus,
defendant was not prejudiced by counsel's failure to request a
continuance to allow further investigation that may have led to the
discovery of this evidence. Accordingly, the trial court properly
dismissed this claim of ineffective assistance of counsel.
Erickson, 161 Ill. 2d at 90.
3. Mitigation
Next defendant argues that trial counsel was ineffective in
preparing and presenting mitigating evidence. He argues that
counsel was ineffective in that he (1) failed to renew a previously
denied request for funds to hire a mitigation expert; (2) used
available funds to acquire legal research assistance rather than
mitigation investigation assistance; (3) failed to adequately
question defendant's friends and family members; and (4) failed to
argue to the jury that defendant's past substance abuse impaired
his judgment. The State responds that none of these instances were
a violation of defendant's right to effective assistance of counsel
because defendant failed to show how these omissions prejudiced
defendant. Specifically, the State contends that doing the above
would not have uncovered mitigating evidence sufficient to change
the outcome of this case.
During the post-conviction hearing, defendant presented
additional mitigating evidence that was not presented during
sentencing. Three former correctional officers testified as to
defendant's good conduct while he was in juvenile detention. Angela
Granberry, who lived with defendant for several years and who was
the mother of defendant's daughter, testified that he was a good
family man, provided well for their daughter and helped around the
house while she was attending college. She also stated that he was
good with kids, including his own daughter and Angela's son, and
that he was a good worker. Angela's father, sister and aunt also
testified to these facts. A mitigation specialist from the Capital
Resource Center prepared defendant's social history, outlining his
disadvantaged childhood and lack of childhood supervision. Dr.
Risolo, a psychiatrist, testified as to defendant's substance abuse
history and his mother's failure to teach values. Finally, a friend
of defendant testified about defendant's drug and alcohol use
during the years prior to the instant crime.
The additional evidence presented through the testimony of
defendant's family at the post-conviction hearing was largely
cumulative of evidence presented during the sentencing hearing. The
remainder of the additional evidence was not sufficiently
mitigating, in light of the aggravating evidence, to change the
outcome of the sentencing hearing. We thus find that defendant was
not prejudiced by failure to present his disadvantaged childhood
and substance abuse history (see People v. Christiansen, 116 Ill. 2d 96, 129 (1987) (death penalty appropriate despite mitigating
evidence that included drug addiction and a deprived childhood);
People v. Johnson, 146 Ill. 2d 109, 145 (1991) (death penalty
appropriate despite mitigating evidence that included drug and
alcohol abuse, as well as abuse as a child)), or his good behavior
while incarcerated as a juvenile (see People v. Garcia, 165 Ill. 2d 409, 437 (1995) (defendant's good behavior in prison not
sufficiently mitigating to preclude a death sentence)).
Accordingly, we affirm the trial court's dismissal of this claim.
4. Psychological/Physiological Evidence
Defendant argues that counsel was ineffective for failing to
seek mitigating evidence concerning his possible psychological and
physiological defects. Specifically, defendant argues that counsel
was ineffective because he (1) failed to obtain the court file of
defendant's juvenile conviction, which contained a fitness report
and a psychiatric report; (2) failed to obtain a psychological
evaluation in response to the information contained in the juvenile
court file; and (3) failed to obtain a neurological evaluation to
determine if defendant had brain damage as a result of past
substance abuse.
At the post-conviction hearing, a psychiatrist, Dr. Risolo,
testified regarding her psychological evaluation of defendant prior
to the post-conviction hearing. Dr. Risolo testified that defendant
had antisocial personality disorder and mild neurotic depression.
She further testified that defendant's substance abuse might have
contributed to some neurological disfunction but stated that no
disfunction had ever been conclusively proven.
We find that defendant was not prejudiced by counsel's failure
to present this evidence during the sentencing hearing. Given the
overwhelming aggravating evidence and the relatively weak
mitigating evidence, evidence of defendant's antisocial personality
disorder and depression would not have resulted in a sentence other
than death. See People v. Montgomery, 112 Ill. 2d 517, 533 (1986)
(death penalty appropriate despite defendant's antisocial
personality disorder and extreme mental and emotional
disturbances). Furthermore, Dr. Risolo's testimony about a
possible, unproven neurological disfunction also would have been
insufficient to change the outcome of the sentencing hearing. See
Montgomery, 112 Ill. 2d at 533. Since defendant was not prejudiced
by the failure to present this evidence, we affirm the dismissal of
this claim of ineffective assistance. Erickson, 161 Ill. 2d at 90.
5. Codefendant's Lesser Sentence
Defendant, citing Messer v. State, 330 So. 2d 137 (Fla. 1976),
argues that counsel was ineffective in failing to argue, as a
nonstatutory mitigating circumstance, the lesser sentence given to
Thomas, his codefendant. As the State observes, this precise
argument was rejected by this court in People v. Page, 156 Ill. 2d 258, 270-72 (1993). Accordingly, we affirm the dismissal of this
claim of the post-conviction petition.
6. Prosecutor's Closing Argument
Defendant argues that defense counsel was ineffective when he
failed to object to the prosecutor's request that the jury
"recommend" a death sentence. Defendant argues that the statement
improperly misled the jury regarding its responsibility for
imposing the death penalty. As the State correctly observes, this
issue is waived because it was not raised on direct appeal and is
not based on any new evidence presented during the post-conviction
proceedings. However, insofar as defendant argues that the issue is
preserved for review because it was not raised on direct appeal due
to the ineffectiveness of appellate counsel, we will review the
claim.
The State may not, in closing argument, mislead the jury to
believe that the ultimate responsibility for a defendant's death
penalty rests elsewhere. Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985). When such an allegation is
made, "[t]he relevant inquiry *** is whether in consideration of
all facts and circumstances, the State has misled the jury
regarding its sentencing role. No single factor is necessarily
dispositive." People v. Flores, 153 Ill. 2d 264, 287 (1992).
Therefore, in order to determine whether the argument was improper,
we must look at the State's closing argument as a whole.
In two instances during her closing argument, the prosecutor
asked the jury to "impose and recommend the death sentence." We
find that those statements did not improperly mislead the jury
because use of the word "impose" adequately counteracted any
improper effect resulting from use of the word "recommend." As her
final words to the jury, the prosecutor stated, "We ask you to
recommend that the death sentence be imposed. Thank you." The jury
was not misled by this statement either because, only a few moments
earlier, the prosecutor had expressly acknowledged the weight of
the jury's responsibility for the death penalty, recognizing "that
for responsible people [imposing and recommending the death
penalty] is not an easy thing." Furthermore, the jury instructions
clearly apprised the jury of its responsibility for imposing the
death penalty.
Under these circumstances, we find that the State did not
improperly diminish the jury's sense of responsibility. Since the
State's closing argument was not misleading, appellate counsel was
not ineffective for failing to raise the issue on direct appeal and
the issue is therefore waived. Accordingly, we affirm the trial
court's dismissal of this claim of the post-conviction petition.
7. Defense's Closing Argument
Defendant argues that counsel was ineffective in his closing
argument during the second phase of the sentencing hearing because
he merely focused upon the death penalty generally without arguing
mitigating circumstances. On direct appeal, this court stated:
"Defendant complains that he received ineffective assistance at the
second stage of the death penalty hearing in that defense counsel
*** confined his argument to the jury to a plea that there is no
justification to take a human life. Defendant's claims are
meritless." Lear, 143 Ill. 2d at 151-52. Since this issue was
addressed on direct appeal it is now res judicata and may not be
relitigated during this post-conviction appeal. We thus affirm the
circuit court's dismissal of this claim.
II. Aggravating Evidence
Defendant argues that evidence of a crime he committed in
Collinsville, Illinois, was improperly used as aggravating
evidence. First, defendant argues that he was denied due process,
effective assistance of counsel, and his right to be free from
cruel and unusual punishment when evidence of the Collinsville
crime was admitted in the absence of requested counsel for the
Collinsville crime. Second, defendant argues that he was denied
effective assistance of counsel when defense counsel failed to
object to the evidence's introduction on due process grounds.
The State responds that any challenge to the introduction of
evidence of the Collinsville crime is res judicata because, during
direct appeal, this court affirmed the use of this evidence when it
stated:
"Defendant asserts that the trial court erred in
allowing the jury to consider evidence of unadjudicated
criminal conduct during the second stage of the
sentencing hearing. We disagree. This court has
previously held that evidence showing the defendant's
commission of other crimes or acts of misconduct is
admissible even though the defendant was not prosecuted
or convicted for such conduct. People v. Ramirez, 98 Ill.
2d, 439, 460-61 (1983)." Lear, 143 Ill. 2d at 152-53.
We agree that this issue cannot be raised again here and thus
affirm the trial court's decision to dismiss this claim.
CONCLUSION
For the reasons stated above, we affirm the judgment of the
circuit court. We direct the clerk of this court to enter an order
setting Wednesday, May 21, 1997, as the date on which defendant's
sentence of death 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, the warden at
Stateville Correctional Center, and the warden of the institution
where the defendant is now confined.
Affirmed.
JUSTICE McMORROW, concurring in part and dissenting in part:
I concur in the majority opinion to the extent that it affirms
defendant's convictions for murder, attempted murder, and armed
robbery. However, I join in the dissent of Justice Freeman only
with respect to his analysis and conclusions on the issue of trial
strategy during voir dire.
JUSTICE FREEMAN, dissenting:
In this appeal from the denial of post-conviction relief,
defendant, as petitioner, argues that he was denied effective
assistance of counsel for several reasons. I take issue with the
majority's analysis and resolution of at least two of defendant's
claims. Because there is an unreasonable risk that this defendant
was unfairly sentenced to death, I dissent.
Voir Dire
Defendant claims ineffectiveness in that his trial counsel,
during voir dire, failed to raise the issue of racial bias to the
venire in accordance with Turner v. Murray, 476 U.S. 28, 90 L. Ed. 2d 27, 106 S. Ct. 1683 (1986), and People v. Peeples, 155 Ill. 2d 422 (1993). The majority correctly notes that when a capital
defendant is on trial for an interracial crime the defendant is
entitled to have prospective jurors informed of the race of the
victim and questioned about racial bias. Slip op at 3. The majority
errs, however, in its statement of how the right is invoked and,
correspondingly, in its analysis of counsel's failure to assert the
right in this case.
In his petition, defendant asserted that he had requested that
counsel make a Turner inquiry; however, counsel refused.
The majority, finding that defendant's post-conviction testimony to
that effect was contradicted by counsel's testimony holds that
"[t]he issue was thus one of credibility," and the trial court did
not find defendant credible on this point. Slip op at 3. The
majority then holds that because the court found that defendant
himself made no such request of counsel, counsel was not required
to make the inquiry. Slip op. at 4.
The majority misstates the law concerning how the right to a
Turner inquiry is invoked. Turner does not contemplate that a
defendant, who is represented by counsel, will, in the first place,
be aware of such an entitlement, or that that defendant will, in
the second place, specifically request that his attorney make such
an inquiry. That a defendant himself fails to request the Turner
voir dire does not deprive him or her of his entitlement to such an
inquiry. Many of the rights of an accused, including constitutional
rights, are such that only trained experts can comprehend their
full significance.
By its analysis, the majority effectively grafts onto the
Turner entitlement a new requirement--that the defendant as client
must request the inquiry. However, Turner merely holds that "a
capital defendant accused of an interracial crime is entitled to
have prospective jurors informed of the race of the victim and
questioned on the issue of racial bias. *** Also, a defendant
cannot complain of a judge's failure to question the venire on
racial prejudice unless the defendant has specifically requested
such an inquiry."
Significantly, the Court in Morgan v. Illinois, 504 U.S. 719,
119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992), in setting out the
requirement for a reverse-Witherspoon inquiry, relies largely on
the reasoning in Turner and uses much the same language. Morgan,
504 U.S. at 736, 119 L. Ed. 2d at 507, 112 S. Ct. at 2233
("[p]etitioner was entitled, upon his request, to inquiry
discerning those jurors who," prior to termination of the case, had
predetermined the issue of death (emphasis added)). I have not
heard it suggested that, because the defendant himself does not
request the reverse-Witherspoon inquiry, counsel is not required to
inquire. Entitlement to a Turner inquiry, like the entitlement to
the reverse-Witherspoon inquiry, is far too important to depend on
the request of an untrained criminal defendant.
Knowledge of a constitutional entitlement to inquiry on
matters such as a predisposition to impose death or, in this case,
on racial bias, is within the knowledge of the criminal defense
attorney, not the client. Thus, the viability of defendant's Turner
claim does not turn on whether the post- conviction court
disbelieved that defendant, as client, requested that counsel make
such an inquiry.
The majority next reasons that since defendant did not request
the Turner inquiry, whether to conduct such an inquiry became a
matter of trial strategy, not subject to the Strickland
ineffectiveness analysis (see Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)). Slip op. at 4.
Certainly, what questions will be posed on voir dire may
properly fall within the bounds of trial strategy. However,
counsel's failure to inquire on Turner racial bias was not
converted to a strategic decision merely because defendant failed
to request such an inquiry. Strategic decisions are those decisions
which flow from counsel's particular knowledge and expertise. Thus,
while a decision on whether to voir dire on particular issues may
be a matter of trial strategy, the absence of voir dire on such
issues might just as well be a matter of ineptitude, inexperience,
lack of preparation or unfamiliarity with basic legal principles.
In such case, the failure to voir dire amounts to ineffective
assistance of counsel. 1 ABA Standards for Criminal Justice 4--5.2
(2d ed. Supp. 1986).
Here, it is significant that counsel had been admitted to the
bar for only a two-year period prior to being assigned this, his
very first, capital case. While the extent and nature of counsel's
legal experience alone do not necessarily support a conclusion of
ineffective assistance, those facts take on particular significance
in the evaluation of a Turner claim. This is so because voir dire
pursuant to Turner is available to capital defendants only. Unless
there is evidence here to support a finding that counsel's failure
to request a Turner inquiry flowed from his particular knowledge
and expertise concerning the nature and purpose of the Turner
inquiry, there can be no basis upon which to conclude that such a
failing was the result of trial strategy.
Proper resolution of the issue requires more than cursory
consideration; it necessarily involves thorough review and
consideration of counsel's post-conviction affidavit and testimony
in the context of his conduct of voir dire. Based upon my review,
I believe that the record supports the conclusion that counsel was
unfamiliar with the Turner entitlement and his failure to voir dire
was, therefore, not a matter of strategy.
In his affidavit, counsel first states that, during voir dire,
he asked each potential juror whether there was anything about
defendant that would cause him or her to be biased or prejudiced.
His purpose in asking that question was to address the issue of
racial prejudice because defendant was black. Counsel next states
that he "had no reason for not asking a question of the venire on
voir dire whether the race of the victim would be a factor in
causing them to be biased or prejudiced against Mr. Lear." Finally,
counsel states that he might have discussed with defendant asking
a question concerning racial bias because of the victims' race, and
he may have said that such a question would get the jurors "pissed
off" and that they would be there three weeks and he may have
preferred not to harp on the victims' race because he might have
thought that that was more harmful, although he did not recall.
The only definitive statements concerning voir dire in
counsel's affidavit are that: (1) he was concerned about racial
bias and (2) he had no reason for failing to request the Turner
inquiry. The remainder of counsel's statements concerning what he
might have thought regarding a Turner inquiry can only be
characterized as tentative and equivocal at best.
Counsel's subsequent direct examination testimony at the post-
conviction hearing is consistent with the statements in his
affidavit. After being shown his affidavit, counsel testified
concerning the Turner inquiry in much the same equivocal manner as
his statements in his affidavit. Particularly telling are the
prosecutor's cross-examination questions and counsel's answers
thereto.
"Ms. Dobrinic [Assistant State's Attorney]: Now, did
you ever in the course of your relationship have--well,
did [defendant] ever express a concern that he might be
an African-American defendant being tried in a
predominantly Caucasian county?
Mr. Grigsby [Defense Attorney]: I am sure that there
would have been some discussions regarding that. Usually
that subject came up whenever I represented African-
Americans in this county.
***
Ms. Dobrinic: Mr. Grigsby, as a trial attorney and
under the circumstances that we were in being in
Effingham, Illinois, with the defendant, did you think it
was proper to find out jurors attitudes toward race--or
let me say this. Did you think it was important to find
out their attitudes towards race?
Mr. Grigsby: Well, yes, I thought that was
important.
Ms. Dobrinic: Do you feel like you did that by your
voir dire of these jurors?
Mr. Grigsby: Yes, I felt that the race issue was
brought out during the voir dire by the questions.
Ms. Dobrinic: Did you find it necessary to
specifically ask jurors are you prejudiced against
African-Americans?
Mr Grigsby: No, no, because the jurors understood
the question and would volunteer any prejudice they had."
Four things are apparent from counsel's affidavits and
testimony and none of them suggest strategy with respect to Turner:
(1) counsel was concerned about racial prejudice in predominantly
white Effingham County; (2) counsel had no reason for failing to
request a Turner inquiry; (3) counsel "might have" chosen not to
inquire regarding Turner racial bias because it "might have" been
more harmful and (4) counsel believed his inquiry concerning
prejudice toward the defendant was sufficient to prompt a volunteer
admission concerning any type of racial bias.
Based on counsel's statements and testimony, I would not find
that his failure to request a Turner inquiry was in fact trial
strategy. Counsel stated that he was concerned about prejudice in
predominantly white Effingham County. So concerned about racial
bias was counsel that he specifically questioned and excused those
particular jurors who would judge partially based on defendant's
race. Though actively inquiring and ferreting out any biased juror
prior to the commencement of trial, counsel now offers that he
might have chosen not to additionally inquire concerning
interracial crime bias because such an inquiry might have harmfully
focused the jury's attention on that fact.
Even if I could disregard the tentativeness of counsel's
stated reason, given counsel's concern and conduct at voir dire
with respect to racial bias the reason lacks validity. Counsel
questioned each juror on racial bias toward defendant as an
African-American and excused any juror who expressed an inability
based upon race to be impartial. It is therefore unlikely that this
same counsel would believe that a Turner voir dire, like his
general racial bias voir dire, would be harmful or that it would
not have had the similarly desired effect of affording him the
opportunity to also excuse any juror who would judge partially
because the defendant was black and the victims were white.
Defense counsel's harmful effect reason is, to me,
questionable for additional reasons. First, each juror was voir
dired individually, out of the presence of any other potential
jurors. Secondly, individual jurors were already focused during
voir dire on the issue of race by defendant's prejudice inquiry.
Third, the record does not reveal that counsel proposed withholding
the race of the victims from the jury once trial commenced.
Finally, concerning counsel's cross-examination testimony, it
is not plausible, as counsel suggests, that the jurors, because
they had been voir dired concerning prejudice toward defendant,
would have volunteered any Turner prejudice. There was nothing
which would have prompted any juror to offer such information
during voir dire. Counsel stated in both his affidavit and in his
testimony that the jury did not learn of the victims' race until
after trial had commenced. By then, of course, it was too late to
guard against the risk of the kind partiality contemplated by
Turner.
In my view, if in fact counsel was concerned that racial bias
might hinder the jury's ability to judge impartially, as I believe
defense counsel in this case genuinely was, that concern would have
logically prompted an informed counsel to utilize every known legal
tool to eliminate that bias. Given counsel's concern and conduct on
the issue of bias toward defendant, coupled with his equivocation
as to why he "might" not have additionally conducted a Turner
inquiry, I believe that counsel's failure to inquire is more
reasonably explained as a lack of awareness or unfamiliarity with
Turner and defendant's entitlement to an inquiry regarding
interracial crime bias.
Further, the majority of this court can place little reliance
on the post-conviction court's disposition of this claim. The post-
conviction judge, in rejecting defendant's voir dire claim, made
the following findings: the jurors were individually voir dired and
were asked questions indirectly which would detect bias against the
defendant for race or otherwise; (2) defendant was consulted
personally as to each juror; (3) several jurors were excused
because of racial bias; and (4) the evidence does not support the
fact that defendant specifically requested any particular question
and, even if he did, there is no reason to believe the jurors'
responses would be any different than that reached by the questions
they were asked.
It appears that the post-conviction judge, like the majority,
misperceives both the import and the requirements under Turner.
Inquiry with respect to prejudice against a defendant as an
African-American is not the inquiry deemed important by Turner and
is, therefore, insufficient to satisfy Turner's requirements. In
point of fact, voir dire on racial bias is not required in a
capital case simply because the defendant happens to be of African-
American descent. Turner seeks to address that particular brand of
racial prejudice which would cloud jurors' objectivity when the
crime is interracial. Thus, while counsel's inquiry concerning bias
toward defendant eliminated those jurors who harbored racial
prejudice based upon the defendant's descent, that same inquiry was
ineffective to detect that bias which potentially exists when the
defendant is African-American and the victim is Caucasian.
In this case, the victims' race was not made known to the
jurors until after the jury had been impaneled and trial had
commenced. Counsel's voir dire with respect to prejudice against
defendant as an African-American did nothing to satisfy the
requirements under Turner or to safeguard against interracial crime
bias. Further, it is simply impossible to conclude, as did the
post-conviction court, that the jurors responses pursuant to Turner
would not have been different had the inquiry been made.
In sum, I would find that counsel's failure to request Turner
voir dire was not based on any particular strategy, but rather on
inexperience with capital cases and his lack of familiarity with
the Turner entitlement. Further, in light of counsel's own
expressed concern and conduct regarding the potential for racial
bias in Effingham County, this court cannot conclude with any
degree of certainty that, once the jurors learned of the
interracial nature of these offenses, their ability to be impartial
was unaffected. I would therefore find that Strickland has been
satisfied on this particular claim and remand for a new sentencing
hearing.
The Shooter Defense
Defendant's defense theory at trial was that his separately
tried codefendant, Randy Thomas, and not defendant, shot both
victims. Defense counsel failed to present this defense at trial.
Defendant and Thomas were both charged with the commission of
these offenses. Defendant is shorter in stature than is his
codefendant, Thomas. Prior to trial, Bob Bishop, the surviving
victim and a material witness in this case, made a statement to a
newspaper reporter, Jacqueline Price, that the taller of the two
men (Thomas) entered the store first and while the shorter man
(defendant) distracted Bishop with a question regarding directions,
the taller man shot Bishop. Bishop did not see who shot McArnarney,
the nonsurviving victim involved in +these offenses.
At trial, Bishop testified that defendant entered the station
and asked for the rest room. Thomas, who was taller than defendant,
then asked Bishop how far it was to Chicago. A few moments later
Bishop was shot in the neck.
Defense counsel did not impeach Bishop with his prior
inconsistent statements to the reporter. Further, counsel did not
present either testimony or an offer of proof concerning the
statements made to the reporter. Defendant asserts that these
failings, which deprived him of the presentation of his defense at
trial, constitute ineffective assistance of counsel.
The majority, recalling Bishop's trial testimony, concludes
that even had counsel been able to impeach Bishop's testimony, no
different result would have yielded. In support, the majority notes
that Bishop unequivocally identified Thomas as the man who stayed
in front of him and asked the distance to Chicago. Further,
witnesses testified that defendant had the gun in his waistband as
he left the gas station after the robbery; when defendant was
picked up by police he had the murdered victim's wallet in his
pocket and there was dried blood on defendant's shoe. Finally, the
majority notes that on redirect, Bishop explained that he was
distracted while making the statement to the reporter. Slip op. at
5.
I am not as assured as is the majority that the same result
would yield had defendant been given the opportunity to present his
shooter defense. Bishop's post-conviction affidavit, which is
consistent with his statements to the reporter, contradicts his
trial testimony. In his affidavit, Bishop states that, although he
has difficulty remembering details of the shooting, it is his
belief that the first person who entered the station, and who asked
where the bathroom was, is the one who shot him, while the second
person, who sought directions, distracted Bishop's attention. "I
told [the reporter] something about the tall one, it seemed to me
at the time that the first one in was pretty tall." It was Bishop's
recollection that the first defendant to enter the station was
taller than the second one who entered. Bishop states in his
affidavit that he does not know who shot him.
We have two accounts of the event by Bishop, one given through
trial testimony and another in his post-conviction affidavit; one
which suggests that the taller man, Thomas, was the shooter and
another which suggests that defendant, the shorter man, was the
shooter. So much for Bishop's unequivocal identification of Thomas
as the man who sought directions. Further, that defendant was seen
with "the gun" in his waistband does not necessarily support a
conclusion that he was the shooter. Additionally, the fact that
defendant had the murdered victim's wallet supports a conclusion
that he robbed the victim, not that he also shot the victim.
Finally and significantly, although there was testimony that
defendant's shoe bore human blood, there was no testimony to the
effect that the blood matched the blood of either of the two
victims in this crime. Importantly, while awaiting trial on these
offenses, defendant was found guilty of a fatal shooting which had
occurred only weeks prior to this offense. It is, therefore,
conceivable that the blood on defendant's shoe was from that prior
incident.
Also worth noting, during deliberation, the jurors asked to
have Bishop's testimony reread to them. That request was denied,
and the jury instead tendered the following question, "Bob Bishop's
question concerning identity of man who asked distance to Chicago."
Further, although there had been no impeachment testimony
concerning the relative heights of each defendant and where each
stood in relation to Bishop at the time of the shooting, in closing
argument, both the defense and the State, in its rebuttal, argued
those points to the jury.
Counsel in his affidavit states that he was aware of Bishop's
inconsistent statement; however, he did not interview Bishop prior
to trial. At trial he did not call Bishop as a witness (see 134
Ill. 2d R. 238), nor did he, on cross-examination, question Bishop
on the issue of the relative height of the assailants.
In light of all of the facts concerning this defense, I am
hardpressed to conclude, as does the majority, that the
presentation of the defendant's shooter defense would have made no
difference, particularly with respect to sentencing. There was no
direct evidence that defendant was the shooter; not even Bishop,
who was present during the course of the offense, knows who shot
him or McArnarney. The jury, by its question concerning Bishop's
testimony and after hearing conflicting arguments on the shooter
defense, appears to have placed particular significance on that
issue during its deliberation.
Incidentally, on direct appeal, we held that the exclusion of
the reporter's potential impeachment testimony was proper, as there
was no inconsistency in Bishop's testimony that would justify the
need for the same. Further, we held that any error in the exclusion
of such testimony was waived for counsel's failure to include the
claim in his post-trial motion. See People v. Lear, 143 Ill. 2d 138, 145 (1991). Significantly, it was trial counsel who, in the
first place, failed to elicit the inconsistent statements from
Bishop which would have provided a basis for the reporter's
testimony. Secondly, it was defense counsel who then filed the
post-trial motion which omitted this particular issue. In light of
defendant's participation in these offenses, as the majority so
assuredly concludes, even had the shooter defense been presented,
there perhaps would have been no different result on the issue of
guilt. However, given that there is a question as to whether the
defendant was the shooter, that the jury apparently considered the
issue significant in its deliberations, and further, mindful that
it takes only one juror to vote against death, I cannot conclude
with any assurance that presentation of the shooter defense might
not have altered the result at sentencing. Notably, in affidavits
presented by two jurors, each one states that an initial paper
ballot yielded an 11-1 vote on the issue of death.
As a result of counsel's performance, defendant was left with
no presentation of a defense at trial. Although, in the case of a
jury, we can never conclude with absolute certainty that another
result might have resulted, there is sufficient probability here
that, but for counsel's failure to present defendant's shooter
defense, defendant might not have received death. I would therefore
find that Strickland has been satisfied with respect to defendant's
shooter defense claim.
Conclusion
The majority in this court is apparently satisfied that the
failure to present the shooter defense and the failure to voir dire
on the issue of interracial crime racial bias "in Effingham County"
had no prejudicial effect. In the absence of affidavits from each
juror to that effect, I am at a loss as to how the majority can,
with such assurance, reach this conclusion. A new sentencing
hearing is the only available means by which this court can assure
that this defendant was fairly sentenced to death. In the absence
of a such a judgment, I dissent.
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