People v. Griffin
Annotate this Case
People v. Griffin, No. 78812
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. 78812--Agenda 3--March 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. HENRY GRIFFIN, Appellant.
Opinion filed September 11, 1997.
CHIEF JUSTICE FREEMAN delivered the opinion of the court:
Defendant, Henry Griffin, filed a second petition for post-conviction
relief in the circuit court of Cook County pursuant to the Post-Conviction
Hearing Act. 725 ILCS 5/122--1 et seq. (West 1994). The trial court dismissed
defendant's petition without an evidentiary hearing. Defendant appeals
directly to this court. 134 Ill. 2d R. 651(a). We affirm.
BACKGROUND
In defendant's direct appeal, this court recited the details of his
crimes. See People v. Griffin, 148 Ill. 2d 45, 49-52 (1992). We need not
repeat those details here. Briefly, the record contains the following facts.
Charles Ashley operated a major narcotics network. Ashley employed the
victim, Carl Gibson, to manage the daily operations of the drug ring. Defen-
dant and Darryl Moore were "enforcers" for Ashley.
Ashley suspected that the victim was a police informant. In the presence
of James Allen, Ashley offered defendant $2,500 to kill the victim, and
defendant accepted the offer. Defendant then obtained a handgun from Moore.
Later that night, the victim, defendant, and Allen were in a car travelling
on the Chicago Skyway. Allen drove the car, the victim sat in the front
passenger seat, and defendant sat in the back seat. Defendant shot the victim
four times in the back of the head, and dumped the victim's body on the
Skyway's 73rd Street exit ramp. Defendant and Allen disposed of the car.
Ashley subsequently paid defendant in cash and cocaine. Defendant was
arrested approximately six weeks after the murder.
Defendant, Ashley, and Allen were jointly indicted on various charges.
The trial court severed their cases, but conducted their trials
simultaneously. Defendant and Allen were tried before separate juries; Ashley
chose a bench trial. The State's evidence against the three included
defendant's confession and the testimony of Moore, which corroborated
defendant's confession. At the close of his trial, defendant was convicted of
murder, solicitation to commit murder, and conspiracy to commit murder. The
trial court sentenced defendant to death.
Defendant's sentence was stayed pending direct appeal to this court.
Ill. Const. 1970, art. VI, sec. 4(b); 134 Ill. 2d Rs. 603, 609(a). Before
this court heard his appeal, defendant filed his first petition in the trial
court seeking post-conviction relief. The trial court dismissed the petition
without an evidentiary hearing. This court consolidated defendant's appeal
from the dismissal of his first post-conviction petition with the appeal of
his conviction and sentence. This court affirmed defendant's conviction and
sentence, and the dismissal of his first post-conviction petition. People v.
Griffin, 148 Ill. 2d 45 (1992). The United States Supreme Court subsequently
denied defendant's petition for a writ of certiorari. Griffin v. Illinois,
507 U.S. 924, 122 L. Ed. 2d 684, 113 S. Ct. 1293 (1993), reh'g denied, 507 U.S. 1046, 123 L. Ed. 2d 502, 113 S. Ct. 1885 (1993).
Pursuant to leave of this court, defendant then filed this second
petition for post-conviction relief. The trial court dismissed the petition
without an evidentiary hearing. We will discuss additional relevant facts in
the context of the issues raised on appeal.
DISCUSSION
A proceeding brought under the Post-Conviction Hearing Act (Act) is not
an appeal. Rather, it is a collateral attack on a judgment of conviction. The
purpose of the proceeding is to resolve allegations that constitutional
violations occurred at trial, when those allegations have not been, and could
not have been, adjudicated previously. The petitioner bears the burden to
establish a substantial constitutional deprivation. People v. Whitehead, 169 Ill. 2d 355, 370 (1996); People v. Mahaffey, 165 Ill. 2d 445, 452 (1995).
The petitioner in a post-conviction proceeding is not entitled to an
evidentiary hearing as of right. Rather, the Act permits summary dismissal of
a nonmeritorious petition. The allegations in the petition, supported where
appropriate by the trial record or accompanying affidavits, must show a
substantial violation of constitutional rights. Determinations of the
reviewing court on the prior direct appeal are res judicata as to issues
actually decided. Issues that could have been presented on direct appeal, but
were not, are deemed waived. Determinations of the trial court in a post-
conviction proceeding will not be disturbed unless manifestly erroneous.
Whitehead, 169 Ill. 2d at 365, 370-71; Mahaffey, 165 Ill. 2d at 452-53.
On appeal, defendant contends that he was denied his constitutional
right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill.
Const. 1970, art. I, sec. 8. To establish a claim of ineffective assistance
of counsel, a defendant must satisfy the familiar Strickland test. See
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984). The test is composed of two prongs: deficiency and prejudice. First,
the defendant must prove that counsel made errors so serious, and that
counsel's performance was so deficient, that counsel was not functioning as
the "counsel" guaranteed by the sixth amendment. A court measures counsel's
performance by an objective standard of competence under prevailing
professional norms. To establish deficiency, the defendant must overcome the
strong presumption that the challenged action or lack of action might have
been the product of sound trial strategy. People v. Sanchez, 169 Ill. 2d 472,
487 (1996); Mahaffey, 165 Ill. 2d at 457-58; People v. Flores, 153 Ill. 2d 264, 283 (1992).
Second, the defendant must establish prejudice. The defendant must prove
that there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome. The prejudice prong of Strickland entails more than an "outcome-
determinative" test. The defendant must show that counsel's deficient
performance rendered the result of the trial unreliable or the proceeding
fundamentally unfair. Sanchez, 169 Ill. 2d at 487; Whitehead, 169 Ill. 2d at
380-81; Mahaffey, 165 Ill. 2d at 458.
A court uses the Strickland analysis also to test the adequacy of
appellate counsel. A defendant who contends that appellate counsel rendered
ineffective assistance, e.g., by failing to argue an issue, must show that
the failure to raise that issue was objectively unreasonable and that, but
for this failure, defendant's conviction or sentence would have been
reversed. Whitehead, 169 Ill. 2d at 381; Flores, 153 Ill. 2d at 283.
A defendant must satisfy both prongs of the Strickland test. However, if
the ineffective-assistance claim can be disposed of on the ground that the
defendant did not suffer prejudice, a court need not decide whether counsel's
performance was constitutionally deficient. Mahaffey, 165 Ill. 2d at 458;
Flores, 153 Ill. 2d at 283-84.
In the present case, defendant contends he received ineffective
assistance of counsel because: (1) appellate counsel failed to raise on
direct appeal the issue of the trial court's refusal to hold a Franks
hearing; (2) trial counsel failed to investigate and present evidence at
defendant's fitness hearing; (3) trial counsel failed to waive a sentencing
jury prior to trial; (4) appellate counsel failed to raise on direct appeal
the issue of the erroneous giving of additional jury instructions; (5) trial
counsel failed to investigate and present evidence at defendant's death
sentencing hearing; and (6) appellate counsel failed to raise on direct
review the issue of whether defendant's death sentence was unreasonably
disparate to the sentence of Ashley or Allen.
I. Franks Hearing
Defendant first contends that he received ineffective assistance of
counsel because his appellate counsel failed to raise on direct appeal the
issue of the trial court's refusal to hold a Franks hearing. We note the
State's concession that, since defendant was represented by the same counsel
on direct appeal and on his first post-conviction petition, he is not barred
from now attacking the effectiveness of appellate counsel. See Flores, 153 Ill. 2d at 281-82.
On August 8, 1984, Chicago Police Detective Michael Pochordo swore out
an affidavit which was the basis for search warrants and arrest warrants for
defendant and Allen, and an application for a telephone eavesdropping device
(see 725 ILCS 5/108A--1 et seq. (West 1994)) for defendant. The affidavit
included information from Darryl Moore that implicated defendant in the
murder. The trial court approved the application and issued the warrants that
day. The next day, an eavesdropping device was set up, Moore telephoned and
spoke with defendant and, during that conversation, defendant implicated
himself in the murder. Defendant was arrested while he was still on the tele-
phone with Moore. See Griffin, 148 Ill. 2d at 49-50.
Defendant moved to quash his arrest and suppress his incriminating
statements. Pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667,
98 S. Ct. 2674 (1978), defendant sought to attack the veracity of Detective
Pochordo's affidavit, which was the basis of his application for the
telephone eavesdropping. The trial court denied defendant a Franks hearing.
Defendant contends that he was entitled to a Franks hearing to determine
the veracity of Detective Pochordo's affidavit. In Franks, the United States
Supreme Court recognized a limited right to challenge the affidavit
supporting a search warrant. The affidavit is presumed valid. To obtain an
evidentiary hearing, the defendant must make a substantial preliminary
showing that false statements in the affidavit were made knowingly and
intelligently or with reckless disregard for the truth, and that those false
statements are necessary to establish probable cause. People v. Edwards, 144 Ill. 2d 108, 131 (1991); People v. Eyler, 133 Ill. 2d 173, 201 (1989). We
note that the statutory requirement of "reasonable cause" in the Illinois
eavesdropping statute is synonymous with the term "probable cause." People v.
Monoson, 75 Ill. App. 3d 1, 9-10 (1979); accord People v. Wright, 56 Ill. 2d 523, 528-29 (1974).
"If the affidavit is insufficient to establish probable cause without
the false material, the search warrant must be voided and the fruits of the
search excluded." Eyler, 133 Ill. 2d at 201; accord People v. Lucente, 116 Ill. 2d 133, 147 (1987). However, it is settled "that if, after the alleged
untruths in a warrant affidavit are excised, the remainder is sufficient to
establish probable cause, no hearing is required on the defendant's motion,
and suppression will not result." Lucente, 116 Ill. 2d at 145; accord Eyler,
133 Ill. 2d at 204.
In the present case, we conclude that, even with Moore's inculpatory
references to defendant excised from Detective Pochordo's affidavit, the
remaining allegations in the affidavit would have established probable cause
and the other statutory requirements for authorization of the telephone
eavesdropping. See Griffin, 148 Ill. 2d at 61-62 (Miller, C.J., specially
concurring, joined by Freeman, J.).
It is settled that probable cause means simply that the totality of the
facts and circumstances within the knowledge of the affiant when the warrant
was sought were sufficient to warrant a person of reasonable caution to
believe that the law was violated and evidence of it is on the premises to be
searched. The complaint or affidavit need not show beyond a reasonable doubt
that the warrant should be issued. In deciding the question of probable
cause, the courts are not unduly technical. Rather, the probabilities
considered are the factual and practical considerations of everyday life on
which reasonable persons, not legal technicians, act. People v. Free, 94 Ill. 2d 378, 400 (1983); see People v. Stewart, 104 Ill. 2d 463, 475-76 (1984).
Detective Pochordo's affidavit, with Moore's inculpatory references to
defendant excised, included the following information. Moore stated that when
defendant and Allen arrived at Moore's apartment on the night of the murder
to obtain a handgun, they arrived in a black 1983 or 1984 Chevrolet truck.
That night, a bystander observed the victim entering a black van with two men
in it in the vicinity of the victim's residence.
This information, read in a commonsense and realistic fashion, clearly
established probable cause. Thus, defendant was not entitled to a Franks
hearing. Since defendant was not entitled to a Franks hearing, he was not
prejudiced by appellate counsel's failure to contest this issue on appeal.
See People v. Foster, 168 Ill. 2d 465, 481 (1995). We cannot say that the
trial court manifestly erred in dismissing this claim.
II. Fitness Hearing
Defendant next contends that he received ineffective assistance of
counsel because his trial counsel failed to investigate and present evidence
at defendant's fitness hearing. On the day before jury selection, trial
counsel told the court that, based on the entire time he was involved in the
case, including a number of conversations with defendant, counsel doubted
whether defendant was fit to stand trial. Counsel requested a psychological
evaluation of defendant, which the court granted. Dr. Gilbert Bogen gave
defendant a psychological evaluation that day, and opined that defendant was
fit to stand trial. Counsel requested a fitness hearing, which the trial
court granted and scheduled for the next day.
At the fitness hearing, Dr. Bogen testified that he spoke to defendant
for close to an hour. Dr. Bogen repeated his opinion that defendant was able
to understand the nature of the offense with which he was charged, and was
able to cooperate with counsel. Dr. Bogen also opined that defendant was sane
at the time of the murder. At the close of the hearing, the court found that
defendant was fit to stand trial.
Defendant argues that trial counsel was ineffective for: (1) failing to
investigate defendant's fitness and request a psychological evaluation until
the day before trial, and (2) failing to investigate and present available
evidence at the fitness hearing. However, this court rejected these exact
arguments on direct review. Griffin, 148 Ill. 2d at 56-58; see 148 Ill. 2d at
62-63 (Miller, C.J., specially concurring, joined by Freeman, J.). That
holding is res judicata. See Flores, 153 Ill. 2d at 274.
Defendant also argues that his appellate counsel was deficient: (1) in
presenting this issue on direct review, and (2) in failing to investigate and
present additional available evidence and to raise the issue in the first
post-conviction petition. This argument is not barred by res judicata and is
cognizable in this second post-conviction petition. See Flores, 153 Ill. 2d
at 281-82.
However, this argument is unavailing. We conclude that defendant fails
the prejudice prong of the Strickland test. Thus, we need not address whether
appellate counsel was deficient under the first prong. See Eddmonds, 143 Ill. 2d at 511-12.
Defendant's second post-conviction petition includes a report from Dr.
William Hillman. Dr. Hillman's report was based on information that included
defendant's mental health records, school and prison records, affidavits from
defendant's relatives, and Dr. Hillman's psychological examination of
defendant. Dr. Hillman diagnosed defendant as having several abnormal
psychological conditions and mental disorders. He opined "that there was a
serious doubt, at the time of trial, as to whether [defendant] was able to
assist in his defense."
In Illinois, a defendant is presumed to be fit to stand trial, and will
be considered unfit only if, because of the defendant's mental or physical
condition, the defendant is unable to understand the nature and purpose of
the proceedings against him or her, or to assist in his or her defense.
Fitness speaks only to a person's ability to function within the context of
a trial; a defendant may be fit to stand trial even though the defendant's
mind is otherwise unsound. If a bona fide doubt of the defendant's fitness is
raised, the trial court has a duty to hold a fitness hearing before
proceeding further. People v. Haynes, 174 Ill. 2d 204, 226 (1996) (and
authorities cited therein). Once the fitness question is raised, the burden
falls on the State to establish a defendant's fitness by a preponderance of
the evidence. People v. Mahaffey, 166 Ill. 2d 1, 18 (1995).
In the present case, the introduction of Dr. Hillman's report with its
supporting information would not have created a reasonable probability that
this court would have reversed the trial court's finding of defendant's
fitness. See Flores, 153 Ill. 2d at 283. Initially, Dr. Hillman's ultimate
opinion was only that there was a bona fide doubt as to whether defendant was
fit to stand trial. Such a doubt only entitled defendant to a fitness
hearing, which he received.
Also, much of Dr. Hillman's supporting information was presented by
appellate counsel on direct review. Dr. Bogen knew defendant's background
information when he examined defendant. This information "was simply too
remote in time to be relevant here and would not have been helpful to the
judge in determining the defendant's competency to stand trial." Griffin, 148 Ill. 2d at 62-63 (Miller, C.J., specially concurring, joined by Freeman, J.).
Even assuming that the trial court heard evidence that defendant had abnormal
psychological conditions or mental disorders, such evidence would not have
been determinative on the issue of fitness. We cannot say that the trial
court manifestly erred in dismissing this claim.
III. Sentencing Jury Waiver
Defendant next contends that he received ineffective assistance of
counsel because his trial counsel failed to waive a jury for the death
sentencing hearing prior to the guilt phase of the trial. The record shows
that in the courtroom prior to voir dire, trial counsel initially stated that
defendant wanted to waive a sentencing jury. The trial court then instructed
counsel that defendant would have to tender a sentencing jury waiver. In
chambers, however, trial counsel changed his mind, and asked that the jury be
"death qualified." At the close of the guilt phase of the trial, however,
counsel waived a jury for sentencing.
According to defendant, as a result of trial counsel's failure to waive
a sentencing jury prior to trial, defendant's jury at the guilt phase of the
trial was "death qualified." A death-qualified jury is a jury from which
venirepersons have been excluded for cause based on their inability to set
aside their views about the death penalty that would prevent or substantially
impair the performance of their duties as jurors in accordance with their
instructions and their oath. A prosecutor may remove such venirepersons
according to the guidelines set out in Witherspoon v. Illinois, 391 U.S. 510,
20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), as refined by Wainwright v. Witt,
469 U.S. 412, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985). Buchanan v. Kentucky,
483 U.S. 402, 407 n.6, 97 L. Ed. 2d 336, 346 n.6, 107 S. Ct. 2906, 2909 n.6
(1987).
Defendant argues that he had the "right to a jury free from death
qualification," and that trial counsel's failure to afford him this right
"deprived him of fundamental fairness and mandates a new trial." We note
defendant's additional argument that his appellate counsel was ineffective
for failing to raise this issue on direct appeal.
Defendant is correct that a defendant has the statutory right to waive
a sentencing jury prior to trial. People v. Erickson, 117 Ill. 2d 271, 286-88
(1987). Further, this court has held that "[t]here is no justification for
death-qualifying a jury which has nothing to do with sentencing." People v.
Kidd, 147 Ill. 2d 510, 547 (1992).
Nonetheless, we conclude that this claim of ineffective assistance of
counsel fails the second prong of the Strickland test. Assuming that
defendant's trial counsel was deficient by failing to waive a sentencing jury
prior to trial, thereby allowing defendant's jury to be death-qualified, such
deficient performance did not render the trial fundamentally unfair or the
jury's guilty verdict unreliable. See Mahaffey, 165 Ill. 2d at 458.
Concerning fundamental fairness, it is settled that the death
qualification of a jury that determines guilt does not violate either the
United States Constitution or the Illinois Constitution. People v. Coleman,
168 Ill. 2d 509, 549-50 (1995); People v. Sanchez, 115 Ill. 2d 238, 265-66
(1986). Further:
"[t]his court has held that even where a defendant waives a jury at
the sentencing phase, as defendant did here, a jury that is
questioned about the death penalty is still presumed to be a fair
jury on the issue of guilt or innocence. (People v. Erickson
(1987), 117 Ill. 2d 271, 292.) Defendant has failed to muster any
evidence to rebut this presumption." People v. Boclair, 129 Ill. 2d 458, 483 (1989).
Concerning the verdict's reliability, the evidence against defendant,
which included his confession, was overwhelming. This distinguishes this case
from Kidd, where there were sufficient trial errors to warrant a new trial.
Kidd, 147 Ill. 2d at 547. Here, there is no reasonable probability that, but
for trial counsel's alleged error, defendant's guilty verdict would have been
different. See People v. Page, 155 Ill. 2d 232, 265-67 (1993).
We note that since defendant was not prejudiced by this alleged error at
trial, then he was not prejudiced by appellate counsel's failure to raise
this issue on direct review. See Foster, 168 Ill. 2d at 481. We cannot say
that the trial court manifestly erred in dismissing this claim.
IV. Additional Jury Instructions
Defendant next contends that he received ineffective assistance of
counsel because his appellate counsel failed to raise on direct review the
issue of the erroneous giving of additional jury instructions. Defendant was
indicted with Allen and Ashley on one count of intentional and knowing murder
(Ill. Rev. Stat. 1983, ch. 38, par. 9--1(a)(1)) and one count of murder by
creating a strong probability of death or great bodily harm (Ill. Rev. Stat.
1983, ch. 38, par. 9--1(a)(2)). Defendant was not charged with murder while
attempting or committing a forcible felony (Ill. Rev. Stat. 1983, ch. 38,
par. 9--1(a)(3)).
Defendant was also indicted on one count of aggravated kidnapping (Ill.
Rev. Stat. 1983, ch. 38, par. 10--2(a)(3)). However, the charge was defective
because it erroneously recited the elements of murder instead of the elements
of aggravated kidnapping. The State entered a nolle prosequi on the
aggravated kidnapping charge. However, over trial counsel's objections,
defendant's jury was instructed on felony murder based on aggravated kidnap-
ping, and on the definitions of the predicate offenses of kidnapping and
aggravated kidnapping. The jury returned a general verdict of guilty of
murder.
Defendant contends that he did not receive a fair trial because the jury
was instructed on crimes with which he was not charged. He also contends that
reversal is required because, due to the general guilty verdict of murder, it
cannot be shown whether the jury followed the correct instructions or the
superfluous instructions. Defendant further contends that his appellate
counsel was ineffective for failing to raise this issue on direct review. We
note--and reject--the State's waiver argument. See Flores, 153 Ill. 2d at
281-82.
It is settled that under section 9--1(a) of the Criminal Code of 1961
(Ill. Rev. Stat. 1983, ch. 38, par. 9--1(a), now codified at 720 ILCS 5/9--
1(a) (West 1994)), there is only one crime of murder and not three distinct
offenses. Subsections (1), (2), and (3) each describes a defendant's mental
state or conduct that must accompany the acts that cause the murder. People
v. Maxwell, 148 Ill. 2d 116, 134 (1992), quoting People v. Allen, 56 Ill. 2d 536, 543 (1974). Each subsection describes a different means of committing
the same crime.
In Griffin v. United States, 502 U.S. 46, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991), the United States Supreme Court held that reversal of a general
verdict of guilty is not required where the evidence is insufficient to
support one of several alternative means of committing the same crime, as set
forth in the jury instructions.
"After Griffin, then, a general guilty verdict based on an
instruction which includes different methods of committing the same
offense in the disjunctive is grounds for reversal only where one
alternative is legally defective, i.e., fails to correctly state
the law, and not where the flawed alternative is factually
inadequate, i.e., where the evidence is insufficient to sustain
that count." People v. Griffin, 247 Ill. App. 3d 1, 16 (1993).
In the present case, defendant's challenge to the use of the felony
murder and aggravated kidnapping instructions is unavailing. Defendant does
not claim that the instructions were erroneous or conflicting on an essential
element of an offense. Those instructions correctly stated the law. Rather,
defendant claims that the instructions were not supported by the evidence.
However, there was more than sufficient evidence to support the other
two grounds on which the State sought to base a murder conviction. Indeed,
the evidence was overwhelming. The evidence included: the recorded telephone
conversation between defendant and Moore, in which defendant implicated
himself in the murder; defendant's confession; and Moore's inculpatory testi-
mony.
Of course, where the evidence is insufficient to support an alternative
legal theory or basis of liability, it is generally preferable for a trial
court to remove that theory from the jury's consideration. "The refusal to do
so, however, does not provide an independent basis for reversing an otherwise
valid conviction." Griffin, 502 U.S. at 60, 116 L. Ed. 2d at 383, 112 S. Ct.
at 474.
Since this alleged error at trial does not require the reversal of
defendant's conviction, defendant was not prejudiced by appellate counsel's
failure to raise this issue on direct review. See Foster, 168 Ill. 2d at 481.
We cannot say that the trial court manifestly erred in dismissing this claim.
V. Death Sentencing Hearing
Defendant next contends that he did not receive effective assistance of
counsel because trial counsel failed to investigate and present mitigation
evidence at the death sentencing hearing. Defendant also contends that his
appellate counsel was ineffective for failing to investigate and present
evidence in support of this issue on direct review. We note--and reject--the
State's waiver argument. See Flores, 153 Ill. 2d at 281-82.
At the second phase of the death sentencing hearing, the State
introduced as aggravation evidence defendant's lengthy criminal history,
which included prior convictions for attempted robbery in 1965, robbery in
1972, federal mail theft and bank theft in 1972, unlawful use of a weapon in
1978, and two counts of possession of a controlled substance in 1982. The
State also introduced all of the evidence adduced at the guilt phase of the
trial.
In mitigation, trial counsel called two witnesses, defendant and Ida
Powe. Defendant testified that he was 37 years old and had six children.
Since 1974, he was a cocaine and heroin addict; his prior convictions were
related to his drug addiction. He testified that he resided at a center for
ex-convicts who were drug addicts. He also testified that, as a minor, he was
placed in Kankakee State Hospital in 1962, from which he twice escaped and
where he lived for approximately one year.
Ida Powe testified that she had known defendant since 1974. She also
testified that she had never known defendant to act violently towards anyone,
and that defendant did not have a reputation for violence in his community.
In his closing argument, trial counsel reargued defendant's innocence.
He argued that there was insufficient evidence of guilt. Thus, according to
trial counsel, because of the "cloud" on the conviction, it would be
inappropriate to sentence defendant to death.
The death sentencing hearing was continued to a later date for the
preparation of a presentence investigation report, which the trial court had
at the time of sentencing. In addition to defendant's criminal record, the
report contained information on defendant's personal and family background,
educational history, and physical and mental health history. The report
included information on defendant's cocaine and heroin addiction. The report
also described defendant's relationships with his parents, siblings, wife,
and children.
In this second post-conviction petition, defendant claims that trial
counsel failed to investigate and introduce the following mitigation
evidence: (1) defendant's school, mental health, and prison records; (2) Dr.
Hillman's psychological evaluation; and (3) affidavits from three of
defendant's sisters, a niece, and a nephew.
As previously noted, in reviewing a claim of ineffective assistance of
counsel, a court accords much deference to trial counsel's judgment and
strongly presumes that counsel's conduct falls within the wide range of
reasonable professional assistance. Accordingly, counsel's strategic choices,
made after investigating the law and the facts, are virtually
unchallengeable. People v. Perez, 148 Ill. 2d 168, 186 (1992), quoting People
v. Franklin, 135 Ill. 2d 78, 116-17 (1990).
Of course, counsel has a duty to investigate potential sources of
mitigation evidence, or to have a reason not to make such an investigation.
People v. Ruiz, 132 Ill. 2d 1, 27 (1989). If mitigation evidence exists,
counsel has the duty to introduce it in support of the defendant. Griffin,
148 Ill. 2d at 63-64 (Miller, C.J., specially concurring, joined by Freeman,
J.); accord Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997), quoting
Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir. 1989).
However, it is equally settled that the failure to offer mitigation
evidence at a death sentencing hearing is not itself sufficient to show that
defense counsel was ineffective. Counsel's decision whether to present a
particular witness is generally a strategic choice which cannot support a
claim of ineffective assistance of counsel. People v. Jones, 144 Ill. 2d 242,
278 (1991).
In the present case, counsel's performance was clearly a strategic
decision. As the special concurrence in the direct appeal observed:
"The defendant had a lengthy criminal history, however, and he
committed the murder charged here only two months after his parole
from prison. Apparently believing that the defendant's personal
history provided little, if any, mitigation, counsel chose to argue
to the sentencing judge that the evidence of the defendant's guilt
for this offense should not form the basis for a death sentence.
Counsel's strategic decision is entitled to deference ***."
Griffin, 148 Ill. 2d at 64-65 (Miller, C.J., specially concurring,
joined by Freeman, J.).
We add that information on defendant's personal history was included in the
presentence investigation report. Defense counsel cannot be faulted for
failing to introduce mitigation evidence that was already contained in the
report. See People v. Hampton, 149 Ill. 2d 71, 110 (1992).
Even assuming that trial counsel was deficient under the first prong of
Strickland, defendant must still show prejudice under the second prong. In
the context of a death sentencing hearing, a defendant must prove that there
is a reasonable probability that, absent counsel's deficient conduct, the
sentencer would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death. Mahaffey, 165 Ill. 2d at 466.
We conclude that there is no reasonable probability that, absent trial
counsel's alleged deficiencies, the sentencer would have found that the
mitigating circumstances preclude the imposition of the death penalty.
Defendant confessed that he executed the victim for money and narcotics. His
confession was corroborated by the other evidence introduced at trial.
Griffin, 148 Ill. 2d at 49-52. Additionally, the State presented defendant's
lengthy criminal history.
Defendant's proffered mitigation evidence in support of his second post-
conviction petition either is cumulative to evidence already introduced at
trial or is not inherently mitigating. The trial court was already presented
with information contained in defendant's school, mental health, and prison
records through the presentence investigation report and defendant's
mitigation testimony. Also, the court was aware of defendant's mental
condition through Dr. Bogen's testimony at the fitness hearing.
Also, the testimony from defendant's family members would have gone
essentially to defendant's troubled, disadvantaged childhood. This
information was already presented through the presentence investigation
report. The proffered additional testimony would have been cumulative and,
further, not inherently mitigating. The testimony from defendant's family
also would have essentially gone to defendant's family ties, and lack of a
violent disposition. This information was already presented through the
presentence investigation report and Powe's mitigation testimony. The
additional proffered testimony would have been cumulative. See Mahaffey, 165 Ill. 2d at 467-68 (and cases cited therein).
Lastly, the post-conviction court in this appeal was the sentencer at
defendant's trial. Attached to defendant's second post-conviction petition
were supporting affidavits that described the proffered additional evidence.
In dismissing the petition, the court stated that the introduction of this
proffered evidence would not have changed defendant's sentence. Also, "the
defendant has failed to show that a different closing argument would have
produced a different result." Griffin, 148 Ill. 2d at 65 (Miller, C.J.,
specially concurring, joined by Freeman, J.). Since we conclude that
defendant was not prejudiced by trial counsel's conduct on this issue, then
we conclude also that he was not prejudiced by appellate counsel's alleged
deficiencies. See Foster, 168 Ill. 2d at 481. We cannot say that the trial
court manifestly erred in dismissing this claim.
VI. Disparate Sentences
Lastly defendant contends that he received ineffective assistance of
counsel because his appellate counsel failed to raise on direct review the
issue of whether defendant's death sentence was unreasonably disparate to the
sentences of Ashley and Allen. Defendant and Allen were tried before separate
juries, and Ashley chose a bench trial. However, defendant and Allen each
waived a sentencing jury; thus, the trial court sentenced all three. At the
close of separate sentencing hearings, the trial court sentenced defendant to
death, and sentenced Ashley and Allen each to a prison term of natural life.
We note that the appellate court upheld Allen's murder conviction and
sentence. People v. Allen, 184 Ill. App. 3d 438 (1989). We also note that
Ashley had terminal cancer when he was sentenced; he died while his appeal
was pending in the appellate court.
It is settled that comparative proportionality review in death penalty
cases is not required by the United States Constitution, and is not a feature
of the Illinois death penalty statute. People v. Jimerson, 127 Ill. 2d 12, 54
(1989). Nonetheless, this court has the constitutional duty to determine
whether a death sentence has been imposed arbitrarily or capriciously, or is
unduly severe, considering the circumstances of the offense and the character
and rehabilitative prospects of the defendant. To guarantee the
individualized sentencing that the eighth amendment requires, this court has
compared the defendant's death sentence to the sentence of a codefendant or
an accomplice. The court has focused on the nature of the offense, each
individual's relative involvement, his character and background, and his
criminal record and potential for rehabilitation. People v. Burt, 168 Ill. 2d 49, 79-80 (1995); People v. Bean, 137 Ill. 2d 65, 133-35 (1990).
In the present case, defendant points to the following in arguing that
his death sentence was unreasonably disparate to the natural life prison
sentences imposed on Ashley and Allen. Generally, Ashley had been responsible
for other violent acts and had victimized thousands through his drug ring.
Specifically, Ashley was "the driving force behind the entire criminal
episode at issue here" and is as culpable as defendant. Generally, Allen had
a significant criminal record. Specifically, Allen played a crucial role as
the driver in the victim's murder.
We conclude that defendant's death sentence was not unreasonably
disparate to Ashley's and Allen's natural life prison sentences. When Ashley
was sentenced, he was 67 years old and had terminal cancer; he had
approximately six months to live. This is properly considered as mitigation
evidence. See McCleskey v. Kemp, 481 U.S. 279, 304-06, 95 L. Ed. 2d 262, 286-
87, 107 S. Ct. 1756, 1773-74 (1987). Defendant's death sentence was not
disparate to Ashley's prison sentence because Ashley would soon die a natural
death. As to Allen, defendant's conduct was more culpable. Although Allen
played the necessary role of driver, defendant nonetheless was the shooter.
Further, defendant killed for money. Thus, a more severe sentence for defen-
dant was justified.
Since we do not find an unreasonable disparity between the sentences of
defendant and his accomplices, then defendant was not prejudiced by appellate
counsel's failure to raise this issue on direct review. See Foster, 168 Ill. 2d at 481. We cannot say that the trial court manifestly erred in dismissing
this claim.
CONCLUSION
This was not a perfect trial. However, a defendant is entitled to a fair
trial, not a perfect one. People v. Royse, 99 Ill. 2d 163, 170-71 (1983).
Likewise, ineffective assistance of counsel refers to competent, not perfect,
representation. People v. Palmer, 162 Ill. 2d 465, 476 (1994). Recognizing
these axioms, Strickland requires only that a defendant receive a fair trial,
i.e., a trial free of errors so egregious that they probably caused the
conviction. Averhart v. State, 614 N.E.2d 924, 929 (Ind. 1993).
In the present case, defendant was convicted of murder and sentenced to
death based not on any alleged ineffective assistance of counsel, but rather
on overwhelming evidence, which included his confession. We cannot say that
the trial court manifestly erred in dismissing defendant's second post-
conviction petition.
For the foregoing reasons, the order of the circuit court of Cook County
is affirmed. The clerk of this court is directed to enter an order setting
Tuesday, January 13, 1998, as the date on which the sentence of death entered
in the circuit court is to be imposed. The defendant shall be executed in the
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 of Stateville Correctional Center, and the warden
of the institution where defendant is now confined.
Affirmed.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 78812--Agenda 3--March 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. HENRY GRIFFIN, Appellant.
Opinion filed September 11, 1997.
CHIEF JUSTICE FREEMAN delivered the opinion of the court:
Defendant, Henry Griffin, filed a second petition for post-conviction
relief in the circuit court of Cook County pursuant to the Post-Conviction
Hearing Act. 725 ILCS 5/122--1 et seq. (West 1994). The trial court dismissed
defendant's petition without an evidentiary hearing. Defendant appeals
directly to this court. 134 Ill. 2d R. 651(a). We affirm.
BACKGROUND
In defendant's direct appeal, this court recited the details of his
crimes. See People v. Griffin, 148 Ill. 2d 45, 49-52 (1992). We need not
repeat those details here. Briefly, the record contains the following facts.
Charles Ashley operated a major narcotics network. Ashley employed the
victim, Carl Gibson, to manage the daily operations of the drug ring. Defen-
dant and Darryl Moore were "enforcers" for Ashley.
Ashley suspected that the victim was a police informant. In the presence
of James Allen, Ashley offered defendant $2,500 to kill the victim, and
defendant accepted the offer. Defendant then obtained a handgun from Moore.
Later that night, the victim, defendant, and Allen were in a car travelling
on the Chicago Skyway. Allen drove the car, the victim sat in the front
passenger seat, and defendant sat in the back seat. Defendant shot the victim
four times in the back of the head, and dumped the victim's body on the
Skyway's 73rd Street exit ramp. Defendant and Allen disposed of the car.
Ashley subsequently paid defendant in cash and cocaine. Defendant was
arrested approximately six weeks after the murder.
Defendant, Ashley, and Allen were jointly indicted on various charges.
The trial court severed their cases, but conducted their trials
simultaneously. Defendant and Allen were tried before separate juries; Ashley
chose a bench trial. The State's evidence against the three included
defendant's confession and the testimony of Moore, which corroborated
defendant's confession. At the close of his trial, defendant was convicted of
murder, solicitation to commit murder, and conspiracy to commit murder. The
trial court sentenced defendant to death.
Defendant's sentence was stayed pending direct appeal to this court.
Ill. Const. 1970, art. VI, sec. 4(b); 134 Ill. 2d Rs. 603, 609(a). Before
this court heard his appeal, defendant filed his first petition in the trial
court seeking post-conviction relief. The trial court dismissed the petition
without an evidentiary hearing. This court consolidated defendant's appeal
from the dismissal of his first post-conviction petition with the appeal of
his conviction and sentence. This court affirmed defendant's conviction and
sentence, and the dismissal of his first post-conviction petition. People v.
Griffin, 148 Ill. 2d 45 (1992). The United States Supreme Court subsequently
denied defendant's petition for a writ of certiorari. Griffin v. Illinois,
507 U.S. 924, 122 L. Ed. 2d 684, 113 S. Ct. 1293 (1993), reh'g denied, 507 U.S. 1046, 123 L. Ed. 2d 502, 113 S. Ct. 1885 (1993).
Pursuant to leave of this court, defendant then filed this second
petition for post-conviction relief. The trial court dismissed the petition
without an evidentiary hearing. We will discuss additional relevant facts in
the context of the issues raised on appeal.
DISCUSSION
A proceeding brought under the Post-Conviction Hearing Act (Act) is not
an appeal. Rather, it is a collateral attack on a judgment of conviction. The
purpose of the proceeding is to resolve allegations that constitutional
violations occurred at trial, when those allegations have not been, and could
not have been, adjudicated previously. The petitioner bears the burden to
establish a substantial constitutional deprivation. People v. Whitehead, 169 Ill. 2d 355, 370 (1996); People v. Mahaffey, 165 Ill. 2d 445, 452 (1995).
The petitioner in a post-conviction proceeding is not entitled to an
evidentiary hearing as of right. Rather, the Act permits summary dismissal of
a nonmeritorious petition. The allegations in the petition, supported where
appropriate by the trial record or accompanying affidavits, must show a
substantial violation of constitutional rights. Determinations of the
reviewing court on the prior direct appeal are res judicata as to issues
actually decided. Issues that could have been presented on direct appeal, but
were not, are deemed waived. Determinations of the trial court in a post-
conviction proceeding will not be disturbed unless manifestly erroneous.
Whitehead, 169 Ill. 2d at 365, 370-71; Mahaffey, 165 Ill. 2d at 452-53.
On appeal, defendant contends that he was denied his constitutional
right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill.
Const. 1970, art. I, sec. 8. To establish a claim of ineffective assistance
of counsel, a defendant must satisfy the familiar Strickland test. See
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984). The test is composed of two prongs: deficiency and prejudice. First,
the defendant must prove that counsel made errors so serious, and that
counsel's performance was so deficient, that counsel was not functioning as
the "counsel" guaranteed by the sixth amendment. A court measures counsel's
performance by an objective standard of competence under prevailing
professional norms. To establish deficiency, the defendant must overcome the
strong presumption that the challenged action or lack of action might have
been the product of sound trial strategy. People v. Sanchez, 169 Ill. 2d 472,
487 (1996); Mahaffey, 165 Ill. 2d at 457-58; People v. Flores, 153 Ill. 2d 264, 283 (1992).
Second, the defendant must establish prejudice. The defendant must prove
that there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome. The prejudice prong of Strickland entails more than an "outcome-
determinative" test. The defendant must show that counsel's deficient
performance rendered the result of the trial unreliable or the proceeding
fundamentally unfair. Sanchez, 169 Ill. 2d at 487; Whitehead, 169 Ill. 2d at
380-81; Mahaffey, 165 Ill. 2d at 458.
A court uses the Strickland analysis also to test the adequacy of
appellate counsel. A defendant who contends that appellate counsel rendered
ineffective assistance, e.g., by failing to argue an issue, must show that
the failure to raise that issue was objectively unreasonable and that, but
for this failure, defendant's conviction or sentence would have been
reversed. Whitehead, 169 Ill. 2d at 381; Flores, 153 Ill. 2d at 283.
A defendant must satisfy both prongs of the Strickland test. However, if
the ineffective-assistance claim can be disposed of on the ground that the
defendant did not suffer prejudice, a court need not decide whether counsel's
performance was constitutionally deficient. Mahaffey, 165 Ill. 2d at 458;
Flores, 153 Ill. 2d at 283-84.
In the present case, defendant contends he received ineffective
assistance of counsel because: (1) appellate counsel failed to raise on
direct appeal the issue of the trial court's refusal to hold a Franks
hearing; (2) trial counsel failed to investigate and present evidence at
defendant's fitness hearing; (3) trial counsel failed to waive a sentencing
jury prior to trial; (4) appellate counsel failed to raise on direct appeal
the issue of the erroneous giving of additional jury instructions; (5) trial
counsel failed to investigate and present evidence at defendant's death
sentencing hearing; and (6) appellate counsel failed to raise on direct
review the issue of whether defendant's death sentence was unreasonably
disparate to the sentence of Ashley or Allen.
I. Franks Hearing
Defendant first contends that he received ineffective assistance of
counsel because his appellate counsel failed to raise on direct appeal the
issue of the trial court's refusal to hold a Franks hearing. We note the
State's concession that, since defendant was represented by the same counsel
on direct appeal and on his first post-conviction petition, he is not barred
from now attacking the effectiveness of appellate counsel. See Flores, 153 Ill. 2d at 281-82.
On August 8, 1984, Chicago Police Detective Michael Pochordo swore out
an affidavit which was the basis for search warrants and arrest warrants for
defendant and Allen, and an application for a telephone eavesdropping device
(see 725 ILCS 5/108A--1 et seq. (West 1994)) for defendant. The affidavit
included information from Darryl Moore that implicated defendant in the
murder. The trial court approved the application and issued the warrants that
day. The next day, an eavesdropping device was set up, Moore telephoned and
spoke with defendant and, during that conversation, defendant implicated
himself in the murder. Defendant was arrested while he was still on the tele-
phone with Moore. See Griffin, 148 Ill. 2d at 49-50.
Defendant moved to quash his arrest and suppress his incriminating
statements. Pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667,
98 S. Ct. 2674 (1978), defendant sought to attack the veracity of Detective
Pochordo's affidavit, which was the basis of his application for the
telephone eavesdropping. The trial court denied defendant a Franks hearing.
Defendant contends that he was entitled to a Franks hearing to determine
the veracity of Detective Pochordo's affidavit. In Franks, the United States
Supreme Court recognized a limited right to challenge the affidavit
supporting a search warrant. The affidavit is presumed valid. To obtain an
evidentiary hearing, the defendant must make a substantial preliminary
showing that false statements in the affidavit were made knowingly and
intelligently or with reckless disregard for the truth, and that those false
statements are necessary to establish probable cause. People v. Edwards, 144 Ill. 2d 108, 131 (1991); People v. Eyler, 133 Ill. 2d 173, 201 (1989). We
note that the statutory requirement of "reasonable cause" in the Illinois
eavesdropping statute is synonymous with the term "probable cause." People v.
Monoson, 75 Ill. App. 3d 1, 9-10 (1979); accord People v. Wright, 56 Ill. 2d 523, 528-29 (1974).
"If the affidavit is insufficient to establish probable cause without
the false material, the search warrant must be voided and the fruits of the
search excluded." Eyler, 133 Ill. 2d at 201; accord People v. Lucente, 116 Ill. 2d 133, 147 (1987). However, it is settled "that if, after the alleged
untruths in a warrant affidavit are excised, the remainder is sufficient to
establish probable cause, no hearing is required on the defendant's motion,
and suppression will not result." Lucente, 116 Ill. 2d at 145; accord Eyler,
133 Ill. 2d at 204.
In the present case, we conclude that, even with Moore's inculpatory
references to defendant excised from Detective Pochordo's affidavit, the
remaining allegations in the affidavit would have established probable cause
and the other statutory requirements for authorization of the telephone
eavesdropping. See Griffin, 148 Ill. 2d at 61-62 (Miller, C.J., specially
concurring, joined by Freeman, J.).
It is settled that probable cause means simply that the totality of the
facts and circumstances within the knowledge of the affiant when the warrant
was sought were sufficient to warrant a person of reasonable caution to
believe that the law was violated and evidence of it is on the premises to be
searched. The complaint or affidavit need not show beyond a reasonable doubt
that the warrant should be issued. In deciding the question of probable
cause, the courts are not unduly technical. Rather, the probabilities
considered are the factual and practical considerations of everyday life on
which reasonable persons, not legal technicians, act. People v. Free, 94 Ill. 2d 378, 400 (1983); see People v. Stewart, 104 Ill. 2d 463, 475-76 (1984).
Detective Pochordo's affidavit, with Moore's inculpatory references to
defendant excised, included the following information. Moore stated that when
defendant and Allen arrived at Moore's apartment on the night of the murder
to obtain a handgun, they arrived in a black 1983 or 1984 Chevrolet truck.
That night, a bystander observed the victim entering a black van with two men
in it in the vicinity of the victim's residence.
This information, read in a commonsense and realistic fashion, clearly
established probable cause. Thus, defendant was not entitled to a Franks
hearing. Since defendant was not entitled to a Franks hearing, he was not
prejudiced by appellate counsel's failure to contest this issue on appeal.
See People v. Foster, 168 Ill. 2d 465, 481 (1995). We cannot say that the
trial court manifestly erred in dismissing this claim.
II. Fitness Hearing
Defendant next contends that he received ineffective assistance of
counsel because his trial counsel failed to investigate and present evidence
at defendant's fitness hearing. On the day before jury selection, trial
counsel told the court that, based on the entire time he was involved in the
case, including a number of conversations with defendant, counsel doubted
whether defendant was fit to stand trial. Counsel requested a psychological
evaluation of defendant, which the court granted. Dr. Gilbert Bogen gave
defendant a psychological evaluation that day, and opined that defendant was
fit to stand trial. Counsel requested a fitness hearing, which the trial
court granted and scheduled for the next day.
At the fitness hearing, Dr. Bogen testified that he spoke to defendant
for close to an hour. Dr. Bogen repeated his opinion that defendant was able
to understand the nature of the offense with which he was charged, and was
able to cooperate with counsel. Dr. Bogen also opined that defendant was sane
at the time of the murder. At the close of the hearing, the court found that
defendant was fit to stand trial.
Defendant argues that trial counsel was ineffective for: (1) failing to
investigate defendant's fitness and request a psychological evaluation until
the day before trial, and (2) failing to investigate and present available
evidence at the fitness hearing. However, this court rejected these exact
arguments on direct review. Griffin, 148 Ill. 2d at 56-58; see 148 Ill. 2d at
62-63 (Miller, C.J., specially concurring, joined by Freeman, J.). That
holding is res judicata. See Flores, 153 Ill. 2d at 274.
Defendant also argues that his appellate counsel was deficient: (1) in
presenting this issue on direct review, and (2) in failing to investigate and
present additional available evidence and to raise the issue in the first
post-conviction petition. This argument is not barred by res judicata and is
cognizable in this second post-conviction petition. See Flores, 153 Ill. 2d
at 281-82.
However, this argument is unavailing. We conclude that defendant fails
the prejudice prong of the Strickland test. Thus, we need not address whether
appellate counsel was deficient under the first prong. See Eddmonds, 143 Ill. 2d at 511-12.
Defendant's second post-conviction petition includes a report from Dr.
William Hillman. Dr. Hillman's report was based on information that included
defendant's mental health records, school and prison records, affidavits from
defendant's relatives, and Dr. Hillman's psychological examination of
defendant. Dr. Hillman diagnosed defendant as having several abnormal
psychological conditions and mental disorders. He opined "that there was a
serious doubt, at the time of trial, as to whether [defendant] was able to
assist in his defense."
In Illinois, a defendant is presumed to be fit to stand trial, and will
be considered unfit only if, because of the defendant's mental or physical
condition, the defendant is unable to understand the nature and purpose of
the proceedings against him or her, or to assist in his or her defense.
Fitness speaks only to a person's ability to function within the context of
a trial; a defendant may be fit to stand trial even though the defendant's
mind is otherwise unsound. If a bona fide doubt of the defendant's fitness is
raised, the trial court has a duty to hold a fitness hearing before
proceeding further. People v. Haynes, 174 Ill. 2d 204, 226 (1996) (and
authorities cited therein). Once the fitness question is raised, the burden
falls on the State to establish a defendant's fitness by a preponderance of
the evidence. People v. Mahaffey, 166 Ill. 2d 1, 18 (1995).
In the present case, the introduction of Dr. Hillman's report with its
supporting information would not have created a reasonable probability that
this court would have reversed the trial court's finding of defendant's
fitness. See Flores, 153 Ill. 2d at 283. Initially, Dr. Hillman's ultimate
opinion was only that there was a bona fide doubt as to whether defendant was
fit to stand trial. Such a doubt only entitled defendant to a fitness
hearing, which he received.
Also, much of Dr. Hillman's supporting information was presented by
appellate counsel on direct review. Dr. Bogen knew defendant's background
information when he examined defendant. This information "was simply too
remote in time to be relevant here and would not have been helpful to the
judge in determining the defendant's competency to stand trial." Griffin, 148 Ill. 2d at 62-63 (Miller, C.J., specially concurring, joined by Freeman, J.).
Even assuming that the trial court heard evidence that defendant had abnormal
psychological conditions or mental disorders, such evidence would not have
been determinative on the issue of fitness. We cannot say that the trial
court manifestly erred in dismissing this claim.
III. Sentencing Jury Waiver
Defendant next contends that he received ineffective assistance of
counsel because his trial counsel failed to waive a jury for the death
sentencing hearing prior to the guilt phase of the trial. The record shows
that in the courtroom prior to voir dire, trial counsel initially stated that
defendant wanted to waive a sentencing jury. The trial court then instructed
counsel that defendant would have to tender a sentencing jury waiver. In
chambers, however, trial counsel changed his mind, and asked that the jury be
"death qualified." At the close of the guilt phase of the trial, however,
counsel waived a jury for sentencing.
According to defendant, as a result of trial counsel's failure to waive
a sentencing jury prior to trial, defendant's jury at the guilt phase of the
trial was "death qualified." A death-qualified jury is a jury from which
venirepersons have been excluded for cause based on their inability to set
aside their views about the death penalty that would prevent or substantially
impair the performance of their duties as jurors in accordance with their
instructions and their oath. A prosecutor may remove such venirepersons
according to the guidelines set out in Witherspoon v. Illinois, 391 U.S. 510,
20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), as refined by Wainwright v. Witt,
469 U.S. 412, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985). Buchanan v. Kentucky,
483 U.S. 402, 407 n.6, 97 L. Ed. 2d 336, 346 n.6, 107 S. Ct. 2906, 2909 n.6
(1987).
Defendant argues that he had the "right to a jury free from death
qualification," and that trial counsel's failure to afford him this right
"deprived him of fundamental fairness and mandates a new trial." We note
defendant's additional argument that his appellate counsel was ineffective
for failing to raise this issue on direct appeal.
Defendant is correct that a defendant has the statutory right to waive
a sentencing jury prior to trial. People v. Erickson, 117 Ill. 2d 271, 286-88
(1987). Further, this court has held that "[t]here is no justification for
death-qualifying a jury which has nothing to do with sentencing." People v.
Kidd, 147 Ill. 2d 510, 547 (1992).
Nonetheless, we conclude that this claim of ineffective assistance of
counsel fails the second prong of the Strickland test. Assuming that
defendant's trial counsel was deficient by failing to waive a sentencing jury
prior to trial, thereby allowing defendant's jury to be death-qualified, such
deficient performance did not render the trial fundamentally unfair or the
jury's guilty verdict unreliable. See Mahaffey, 165 Ill. 2d at 458.
Concerning fundamental fairness, it is settled that the death
qualification of a jury that determines guilt does not violate either the
United States Constitution or the Illinois Constitution. People v. Coleman,
168 Ill. 2d 509, 549-50 (1995); People v. Sanchez, 115 Ill. 2d 238, 265-66
(1986). Further:
"[t]his court has held that even where a defendant waives a jury at
the sentencing phase, as defendant did here, a jury that is
questioned about the death penalty is still presumed to be a fair
jury on the issue of guilt or innocence. (People v. Erickson
(1987), 117 Ill. 2d 271, 292.) Defendant has failed to muster any
evidence to rebut this presumption." People v. Boclair, 129 Ill. 2d 458, 483 (1989).
Concerning the verdict's reliability, the evidence against defendant,
which included his confession, was overwhelming. This distinguishes this case
from Kidd, where there were sufficient trial errors to warrant a new trial.
Kidd, 147 Ill. 2d at 547. Here, there is no reasonable probability that, but
for trial counsel's alleged error, defendant's guilty verdict would have been
different. See People v. Page, 155 Ill. 2d 232, 265-67 (1993).
We note that since defendant was not prejudiced by this alleged error at
trial, then he was not prejudiced by appellate counsel's failure to raise
this issue on direct review. See Foster, 168 Ill. 2d at 481. We cannot say
that the trial court manifestly erred in dismissing this claim.
IV. Additional Jury Instructions
Defendant next contends that he received ineffective assistance of
counsel because his appellate counsel failed to raise on direct review the
issue of the erroneous giving of additional jury instructions. Defendant was
indicted with Allen and Ashley on one count of intentional and knowing murder
(Ill. Rev. Stat. 1983, ch. 38, par. 9--1(a)(1)) and one count of murder by
creating a strong probability of death or great bodily harm (Ill. Rev. Stat.
1983, ch. 38, par. 9--1(a)(2)). Defendant was not charged with murder while
attempting or committing a forcible felony (Ill. Rev. Stat. 1983, ch. 38,
par. 9--1(a)(3)).
Defendant was also indicted on one count of aggravated kidnapping (Ill.
Rev. Stat. 1983, ch. 38, par. 10--2(a)(3)). However, the charge was defective
because it erroneously recited the elements of murder instead of the elements
of aggravated kidnapping. The State entered a nolle prosequi on the
aggravated kidnapping charge. However, over trial counsel's objections,
defendant's jury was instructed on felony murder based on aggravated kidnap-
ping, and on the definitions of the predicate offenses of kidnapping and
aggravated kidnapping. The jury returned a general verdict of guilty of
murder.
Defendant contends that he did not receive a fair trial because the jury
was instructed on crimes with which he was not charged. He also contends that
reversal is required because, due to the general guilty verdict of murder, it
cannot be shown whether the jury followed the correct instructions or the
superfluous instructions. Defendant further contends that his appellate
counsel was ineffective for failing to raise this issue on direct review. We
note--and reject--the State's waiver argument. See Flores, 153 Ill. 2d at
281-82.
It is settled that under section 9--1(a) of the Criminal Code of 1961
(Ill. Rev. Stat. 1983, ch. 38, par. 9--1(a), now codified at 720 ILCS 5/9--
1(a) (West 1994)), there is only one crime of murder and not three distinct
offenses. Subsections (1), (2), and (3) each describes a defendant's mental
state or conduct that must accompany the acts that cause the murder. People
v. Maxwell, 148 Ill. 2d 116, 134 (1992), quoting People v. Allen, 56 Ill. 2d 536, 543 (1974). Each subsection describes a different means of committing
the same crime.
In Griffin v. United States, 502 U.S. 46, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991), the United States Supreme Court held that reversal of a general
verdict of guilty is not required where the evidence is insufficient to
support one of several alternative means of committing the same crime, as set
forth in the jury instructions.
"After Griffin, then, a general guilty verdict based on an
instruction which includes different methods of committing the same
offense in the disjunctive is grounds for reversal only where one
alternative is legally defective, i.e., fails to correctly state
the law, and not where the flawed alternative is factually
inadequate, i.e., where the evidence is insufficient to sustain
that count." People v. Griffin, 247 Ill. App. 3d 1, 16 (1993).
In the present case, defendant's challenge to the use of the felony
murder and aggravated kidnapping instructions is unavailing. Defendant does
not claim that the instructions were erroneous or conflicting on an essential
element of an offense. Those instructions correctly stated the law. Rather,
defendant claims that the instructions were not supported by the evidence.
However, there was more than sufficient evidence to support the other
two grounds on which the State sought to base a murder conviction. Indeed,
the evidence was overwhelming. The evidence included: the recorded telephone
conversation between defendant and Moore, in which defendant implicated
himself in the murder; defendant's confession; and Moore's inculpatory testi-
mony.
Of course, where the evidence is insufficient to support an alternative
legal theory or basis of liability, it is generally preferable for a trial
court to remove that theory from the jury's consideration. "The refusal to do
so, however, does not provide an independent basis for reversing an otherwise
valid conviction." Griffin, 502 U.S. at 60, 116 L. Ed. 2d at 383, 112 S. Ct.
at 474.
Since this alleged error at trial does not require the reversal of
defendant's conviction, defendant was not prejudiced by appellate counsel's
failure to raise this issue on direct review. See Foster, 168 Ill. 2d at 481.
We cannot say that the trial court manifestly erred in dismissing this claim.
V. Death Sentencing Hearing
Defendant next contends that he did not receive effective assistance of
counsel because trial counsel failed to investigate and present mitigation
evidence at the death sentencing hearing. Defendant also contends that his
appellate counsel was ineffective for failing to investigate and present
evidence in support of this issue on direct review. We note--and reject--the
State's waiver argument. See Flores, 153 Ill. 2d at 281-82.
At the second phase of the death sentencing hearing, the State
introduced as aggravation evidence defendant's lengthy criminal history,
which included prior convictions for attempted robbery in 1965, robbery in
1972, federal mail theft and bank theft in 1972, unlawful use of a weapon in
1978, and two counts of possession of a controlled substance in 1982. The
State also introduced all of the evidence adduced at the guilt phase of the
trial.
In mitigation, trial counsel called two witnesses, defendant and Ida
Powe. Defendant testified that he was 37 years old and had six children.
Since 1974, he was a cocaine and heroin addict; his prior convictions were
related to his drug addiction. He testified that he resided at a center for
ex-convicts who were drug addicts. He also testified that, as a minor, he was
placed in Kankakee State Hospital in 1962, from which he twice escaped and
where he lived for approximately one year.
Ida Powe testified that she had known defendant since 1974. She also
testified that she had never known defendant to act violently towards anyone,
and that defendant did not have a reputation for violence in his community.
In his closing argument, trial counsel reargued defendant's innocence.
He argued that there was insufficient evidence of guilt. Thus, according to
trial counsel, because of the "cloud" on the conviction, it would be
inappropriate to sentence defendant to death.
The death sentencing hearing was continued to a later date for the
preparation of a presentence investigation report, which the trial court had
at the time of sentencing. In addition to defendant's criminal record, the
report contained information on defendant's personal and family background,
educational history, and physical and mental health history. The report
included information on defendant's cocaine and heroin addiction. The report
also described defendant's relationships with his parents, siblings, wife,
and children.
In this second post-conviction petition, defendant claims that trial
counsel failed to investigate and introduce the following mitigation
evidence: (1) defendant's school, mental health, and prison records; (2) Dr.
Hillman's psychological evaluation; and (3) affidavits from three of
defendant's sisters, a niece, and a nephew.
As previously noted, in reviewing a claim of ineffective assistance of
counsel, a court accords much deference to trial counsel's judgment and
strongly presumes that counsel's conduct falls within the wide range of
reasonable professional assistance. Accordingly, counsel's strategic choices,
made after investigating the law and the facts, are virtually
unchallengeable. People v. Perez, 148 Ill. 2d 168, 186 (1992), quoting People
v. Franklin, 135 Ill. 2d 78, 116-17 (1990).
Of course, counsel has a duty to investigate potential sources of
mitigation evidence, or to have a reason not to make such an investigation.
People v. Ruiz, 132 Ill. 2d 1, 27 (1989). If mitigation evidence exists,
counsel has the duty to introduce it in support of the defendant. Griffin,
148 Ill. 2d at 63-64 (Miller, C.J., specially concurring, joined by Freeman,
J.); accord Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997), quoting
Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir. 1989).
However, it is equally settled that the failure to offer mitigation
evidence at a death sentencing hearing is not itself sufficient to show that
defense counsel was ineffective. Counsel's decision whether to present a
particular witness is generally a strategic choice which cannot support a
claim of ineffective assistance of counsel. People v. Jones, 144 Ill. 2d 242,
278 (1991).
In the present case, counsel's performance was clearly a strategic
decision. As the special concurrence in the direct appeal observed:
"The defendant had a lengthy criminal history, however, and he
committed the murder charged here only two months after his parole
from prison. Apparently believing that the defendant's personal
history provided little, if any, mitigation, counsel chose to argue
to the sentencing judge that the evidence of the defendant's guilt
for this offense should not form the basis for a death sentence.
Counsel's strategic decision is entitled to deference ***."
Griffin, 148 Ill. 2d at 64-65 (Miller, C.J., specially concurring,
joined by Freeman, J.).
We add that information on defendant's personal history was included in the
presentence investigation report. Defense counsel cannot be faulted for
failing to introduce mitigation evidence that was already contained in the
report. See People v. Hampton, 149 Ill. 2d 71, 110 (1992).
Even assuming that trial counsel was deficient under the first prong of
Strickland, defendant must still show prejudice under the second prong. In
the context of a death sentencing hearing, a defendant must prove that there
is a reasonable probability that, absent counsel's deficient conduct, the
sentencer would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death. Mahaffey, 165 Ill. 2d at 466.
We conclude that there is no reasonable probability that, absent trial
counsel's alleged deficiencies, the sentencer would have found that the
mitigating circumstances preclude the imposition of the death penalty.
Defendant confessed that he executed the victim for money and narcotics. His
confession was corroborated by the other evidence introduced at trial.
Griffin, 148 Ill. 2d at 49-52. Additionally, the State presented defendant's
lengthy criminal history.
Defendant's proffered mitigation evidence in support of his second post-
conviction petition either is cumulative to evidence already introduced at
trial or is not inherently mitigating. The trial court was already presented
with information contained in defendant's school, mental health, and prison
records through the presentence investigation report and defendant's
mitigation testimony. Also, the court was aware of defendant's mental
condition through Dr. Bogen's testimony at the fitness hearing.
Also, the testimony from defendant's family members would have gone
essentially to defendant's troubled, disadvantaged childhood. This
information was already presented through the presentence investigation
report. The proffered additional testimony would have been cumulative and,
further, not inherently mitigating. The testimony from defendant's family
also would have essentially gone to defendant's family ties, and lack of a
violent disposition. This information was already presented through the
presentence investigation report and Powe's mitigation testimony. The
additional proffered testimony would have been cumulative. See Mahaffey, 165 Ill. 2d at 467-68 (and cases cited therein).
Lastly, the post-conviction court in this appeal was the sentencer at
defendant's trial. Attached to defendant's second post-conviction petition
were supporting affidavits that described the proffered additional evidence.
In dismissing the petition, the court stated that the introduction of this
proffered evidence would not have changed defendant's sentence. Also, "the
defendant has failed to show that a different closing argument would have
produced a different result." Griffin, 148 Ill. 2d at 65 (Miller, C.J.,
specially concurring, joined by Freeman, J.). Since we conclude that
defendant was not prejudiced by trial counsel's conduct on this issue, then
we conclude also that he was not prejudiced by appellate counsel's alleged
deficiencies. See Foster, 168 Ill. 2d at 481. We cannot say that the trial
court manifestly erred in dismissing this claim.
VI. Disparate Sentences
Lastly defendant contends that he received ineffective assistance of
counsel because his appellate counsel failed to raise on direct review the
issue of whether defendant's death sentence was unreasonably disparate to the
sentences of Ashley and Allen. Defendant and Allen were tried before separate
juries, and Ashley chose a bench trial. However, defendant and Allen each
waived a sentencing jury; thus, the trial court sentenced all three. At the
close of separate sentencing hearings, the trial court sentenced defendant to
death, and sentenced Ashley and Allen each to a prison term of natural life.
We note that the appellate court upheld Allen's murder conviction and
sentence. People v. Allen, 184 Ill. App. 3d 438 (1989). We also note that
Ashley had terminal cancer when he was sentenced; he died while his appeal
was pending in the appellate court.
It is settled that comparative proportionality review in death penalty
cases is not required by the United States Constitution, and is not a feature
of the Illinois death penalty statute. People v. Jimerson, 127 Ill. 2d 12, 54
(1989). Nonetheless, this court has the constitutional duty to determine
whether a death sentence has been imposed arbitrarily or capriciously, or is
unduly severe, considering the circumstances of the offense and the character
and rehabilitative prospects of the defendant. To guarantee the
individualized sentencing that the eighth amendment requires, this court has
compared the defendant's death sentence to the sentence of a codefendant or
an accomplice. The court has focused on the nature of the offense, each
individual's relative involvement, his character and background, and his
criminal record and potential for rehabilitation. People v. Burt, 168 Ill. 2d 49, 79-80 (1995); People v. Bean, 137 Ill. 2d 65, 133-35 (1990).
In the present case, defendant points to the following in arguing that
his death sentence was unreasonably disparate to the natural life prison
sentences imposed on Ashley and Allen. Generally, Ashley had been responsible
for other violent acts and had victimized thousands through his drug ring.
Specifically, Ashley was "the driving force behind the entire criminal
episode at issue here" and is as culpable as defendant. Generally, Allen had
a significant criminal record. Specifically, Allen played a crucial role as
the driver in the victim's murder.
We conclude that defendant's death sentence was not unreasonably
disparate to Ashley's and Allen's natural life prison sentences. When Ashley
was sentenced, he was 67 years old and had terminal cancer; he had
approximately six months to live. This is properly considered as mitigation
evidence. See McCleskey v. Kemp, 481 U.S. 279, 304-06, 95 L. Ed. 2d 262, 286-
87, 107 S. Ct. 1756, 1773-74 (1987). Defendant's death sentence was not
disparate to Ashley's prison sentence because Ashley would soon die a natural
death. As to Allen, defendant's conduct was more culpable. Although Allen
played the necessary role of driver, defendant nonetheless was the shooter.
Further, defendant killed for money. Thus, a more severe sentence for defen-
dant was justified.
Since we do not find an unreasonable disparity between the sentences of
defendant and his accomplices, then defendant was not prejudiced by appellate
counsel's failure to raise this issue on direct review. See Foster, 168 Ill. 2d at 481. We cannot say that the trial court manifestly erred in dismissing
this claim.
CONCLUSION
This was not a perfect trial. However, a defendant is entitled to a fair
trial, not a perfect one. People v. Royse, 99 Ill. 2d 163, 170-71 (1983).
Likewise, ineffective assistance of counsel refers to competent, not perfect,
representation. People v. Palmer, 162 Ill. 2d 465, 476 (1994). Recognizing
these axioms, Strickland requires only that a defendant receive a fair trial,
i.e., a trial free of errors so egregious that they probably caused the
conviction. Averhart v. State, 614 N.E.2d 924, 929 (Ind. 1993).
In the present case, defendant was convicted of murder and sentenced to
death based not on any alleged ineffective assistance of counsel, but rather
on overwhelming evidence, which included his confession. We cannot say that
the trial court manifestly erred in dismissing defendant's second post-
conviction petition.
For the foregoing reasons, the order of the circuit court of Cook County
is affirmed. The clerk of this court is directed to enter an order setting
Tuesday, January 13, 1998, as the date on which the sentence of death entered
in the circuit court is to be imposed. The defendant shall be executed in the
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 of Stateville Correctional Center, and the warden
of the institution where defendant is now confined.
Affirmed.
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