People v. Tenner
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. 79423--Agenda 4--November 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES TENNER,
Appellant.
Opinion filed January 30, 1997.
JUSTICE MILLER delivered the opinion of the court:
The defendant, James Tenner, brings this appeal from an
order of the circuit court of Cook County dismissing his post-
conviction petition without an evidentiary hearing. Because the
defendant received the death penalty for the underlying first-
degree murder convictions, the present appeal lies directly to this
court. 134 Ill. 2d R. 651(a).
The circumstances of the defendant's offenses are fully
set forth in our opinion on direct appeal and require only brief
restatement here. The offenses in question occurred in South
Chicago Heights on September 2, 1987, when the defendant shot and
killed two persons and injured a third. The defendant had been
acquainted with two of the victims, Albert and Donna Sauls, for a
lengthy period; the third victim, Alvin Smith, was employed by
Albert Sauls. The offenses occurred in a garage where the defendant
rented space. Testimony was received at trial from both Albert
Sauls, who survived the attack, and Shirley Garza, who was the
defendant's former girlfriend and who was present during the
offenses. According to the trial testimony, the Saulses' and
Smith's hands and feet were first bound, and the three victims were
then ordered by the defendant to proceed to an area where three
nooses were hanging from the rafters. After placing the victims in
the nooses, the defendant proceeded to harangue them for several
hours, complaining that they had interfered in his relationship
with Garza, his former girlfriend. The defendant later shot the
Saulses and Smith with a shotgun, killing Donna Sauls and Smith.
The defendant then left the premises with Garza, and he was
apprehended later that night. In his own testimony at trial, the
defendant explained that he believed that the Saulses had
previously abducted Garza, and that they were plotting to kill him.
The jury found the defendant guilty of two counts of
first degree murder, one count of attempted first degree murder,
four counts of aggravated unlawful restraint, and one count of
armed violence. After a capital sentencing hearing before the same
jury, the defendant was sentenced to death for his convictions for
first degree murder. On direct appeal, this court vacated the
defendant's conviction for attempted first degree murder but
otherwise affirmed the remaining convictions and corresponding
sentences. People v. Tenner, 157 Ill. 2d 341 (1993). The United
States Supreme Court denied the defendant's petition for a writ of
certiorari. Tenner v. Illinois, ___ U.S. ___, 129 L. Ed. 2d 882,
114 S. Ct. 2768 (1994). In December 1994 the defendant instituted
the present action in the circuit court of Cook County, seeking
post-conviction relief. The defendant submitted a supplemental
petition in March 1995. The circuit judge dismissed the defendant's
petitions without an evidentiary hearing. Because the death penalty
was imposed for the underlying first-degree murder convictions, the
defendant's appeal from the dismissal of his post-conviction
petition lies directly to this court. 134 Ill. 2d R. 651(a).
The Post-Conviction Hearing Act (725 ILCS 5/122--1
through 122--7 (West 1994)) enables a defendant to challenge a
conviction or sentence for violations of federal or state
constitutional rights. People v. Thompkins, 161 Ill. 2d 148, 157
(1994). An action for post-conviction relief is a collateral
proceeding, not an appeal from the underlying judgment. People v.
Brisbon, 164 Ill. 2d 236, 242 (1995); People v. Free, 122 Ill. 2d 367, 377 (1988). To be entitled to post-conviction relief, a
defendant must establish a substantial deprivation of federal or
state constitutional rights in the proceedings that produced the
judgment being challenged. 725 ILCS 5/122--1 (West 1994); People v.
Guest, 166 Ill. 2d 381, 389 (1995). Considerations of res judicata
and waiver limit the range of issues available to a post-conviction
petitioner to constitutional matters which have not been, and
could not have been, previously adjudicated." People v. Winsett,
153 Ill. 2d 335, 346 (1992). Thus, rulings on issues that were
previously raised at trial or on direct appeal are res judicata,
and issues that could have been raised in the earlier proceedings,
but were not, will be deemed waived. People v. Coleman, 168 Ill. 2d 509, 522 (1995); People v. Silagy, 116 Ill. 2d 357, 365 (1987).
I
The defendant raises a number of contentions here in
opposition to the trial court's decision to dismiss the amended
post-conviction petition without an evidentiary hearing. The
defendant's principal arguments on appeal concern the conduct of
trial and appellate counsel, and the defendant alleges that the
attorneys rendered constitutionally ineffective assistance in a
number of respects. Although the defendant focuses on the conduct
of trial counsel, he makes the allied claims that his attorney on
direct appeal was ineffective for failing to raise claims of trial
counsel's incompetence that were available at that time. Because
these issues overlap, we will address the challenges to appellate
counsel's competence at the same time as we consider the arguments
pertaining to trial counsel. See People v. Guest, 166 Ill. 2d 381,
390 (1995). We note that the same standards govern our assessment
of the performance of trial and appellate counsel here. People v.
Whitehead, 169 Ill. 2d 355, 381 (1996); People v. Johnson, 154 Ill. 2d 227, 233-34 (1993).
A
The defendant first argues that trial counsel was
ineffective for failing to have the defendant undergo an evaluation
of his mental condition prior to trial and sentencing. The
defendant contends that a mental evaluation could have provided the
basis for an insanity defense at trial and could have supplied
important mitigating evidence at the capital sentencing hearing. In
support of this contention, the defendant included with his
original and supplemental post-conviction petitions two reports by
Dr. Lyle Rossiter, a psychiatrist. Dr. Rossiter prepared a
preliminary report after reviewing the trial transcript and other
materials supplied by post-conviction counsel. After interviewing
the defendant on January 10, 1995, Dr. Rossiter submitted a
supplemental report, which incorporated the impressions he gleaned
on that occasion. In the supplemental report, Dr. Rossiter
expressed the view that the defendant was in a highly irrational
state caused by a paranoid delusional disorder" at the time of the
offenses committed here. Dr. Rossiter believed that the defendant's
condition warranted a psychiatric examination to determine whether
he was insane or was suffering from extreme mental or emotional
distress.
The constitutional guarantee of the assistance of counsel
(U.S. Const., amends. VI, XIV) includes the right to the effective
assistance of counsel (Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 343-44, 100 S. Ct. 1708, 1716 (1980)), both at trial
and on a defendant's first appeal as of right (Evitts v. Lucey, 469 U.S. 387, 396-97, 83 L. Ed. 2d 821, 830-31, 105 S. Ct. 830, 836-37
(1985)). The relevant standard for gauging the performance of
counsel is provided by Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To prevail on a claim of
ineffective assistance of counsel, a defendant must establish both
that counsel's performance was deficient and that he was prejudiced
as a result of counsel's alleged deficiency. Strickland, 466 U.S.
at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.
(1)
The defendant initially argues that trial counsel was
ineffective for failing to have the defendant undergo a mental
evaluation prior to trial. The defendant believes that an
examination could have revealed evidence that would have supported
an insanity defense to the charges.
This is not a case in which counsel wholly failed to
investigate the defendant's background prior to trial or
sentencing. Here, defense counsel retained a mitigation expert, who
conducted an investigation into the defendant's personal history,
though counsel later decided not to call that person as a witness
either at trial or at sentencing. Nothing in the record at that
time, however, suggested that the defendant suffered from any
mental impairment, or that there was any need to pursue a separate
inquiry into the defendant's mental condition. Where the
circumstances known to counsel at the time of his investigation do
not reveal a sound basis for further inquiry in a particular area,
it is not ineffective for the attorney to forgo additional
investigation. [Citation.]" People v. Holman, 164 Ill. 2d 356, 371
(1995).
We believe that trial counsel's failure to have the
defendant undergo a mental evaluation was a strategic choice made
after sufficient investigation. In Strickland the Supreme Court
observed:
[S]trategic choices made after thorough
investigation of law and facts relevant to
plausible options are virtually unchallengeable;
and strategic choices made after less than complete
investigation are reasonable precisely to the
extent that reasonable professional judgments
support the limitations on investigation. In other
words, counsel has a duty to make reasonable
investigations or to make a reasonable decision
that makes particular investigations unnecessary.
In any ineffectiveness case, a particular decision
not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a
heavy measure of deference to counsel's judgments."
Strickland, 466 U.S. at 690-91, 80 L. Ed. 2d at
695, 104 S. Ct. at 2066.
Nothing in the defendant's record or personal history
disclosed any history of mental illness or emotional disturbance;
there was nothing to prompt a separate inquiry into the defendant's
mental condition. In rejecting this portion of the defendant's
post-conviction petition, the judge below, who had also presided at
trial, explained:
There was nothing to suggest a psychiatric exam in
this young Defendant's background. If there had
been anything that would have suggested [a]
psychiatric exam, I probably would have ordered it
sua sponte. I've been known to do that to satisfy
myself as to the mental competency of a defendant
in front of the bench. There's none of that in this
record."
Like the judge below, we do not believe that counsel acted
unreasonably in failing to obtain a mental evaluation of the
defendant prior to trial.
Even if we assume that counsel was deficient for not
obtaining an expert evaluation of the defendant's mental condition,
we do not believe that the defendant incurred any prejudice at
trial as a result of the claimed error. As we have noted, a
defendant complaining of ineffective assistance of counsel must
establish both a deficiency in counsel's performance and prejudice
resulting from the deficiency. To establish prejudice, [t]he
defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at
2068.
The defendant does not claim that he was insane at the
time of the offenses involved in this case, and the defendant has
failed to show that a mental evaluation would have revealed
evidence that could have resulted in his acquittal on grounds of
insanity. Notably, Dr. Rossiter did not find that the defendant was
insane when he committed the present offenses. Although Dr.
Rossiter believed that the defendant was delusional at the relevant
time, Dr. Rossiter did not conclude that the defendant was insane.
The evidence presented by the defendant in support of the present
claim falls far short of what is needed to establish an insanity
defense.
(2)
The defendant makes the related argument that counsel
rendered ineffective assistance at his capital sentencing hearing
when his attorneys failed to obtain a mental evaluation of the
defendant and offer the evidence in mitigation. The defendant
correctly notes that extreme mental or emotional disturbance is
included as a mitigating circumstance in the Illinois death penalty
statute. Ill. Rev. Stat. 1987, ch. 38, par. 9--1(c)(2).
We do not believe that counsel's failure to make this
inquiry in preparation for the sentencing hearing constituted
ineffective assistance. As we have already noted, there was nothing
in the defendant's record or personal history at that time to
prompt counsel to seek an examination of the type the defendant now
proposes. Moreover, we note the potentially ambiguous nature of
evidence of mental problems: as we have observed in other cases,
information about a defendant's mental or psychological impairments
is not inherently mitigating. People v. Sanchez, 169 Ill. 2d 472,
491-92 (1996). At sentencing, a judge or jury considering evidence
of this nature might view the information as either mitigating or
aggravating, depending, of course, on whether the individual
hearing the evidence finds that it evokes compassion or
demonstrates possible future dangerousness. People v. Foster, 168 Ill. 2d 465, 491 (1995); People v. Mahaffey, 165 Ill. 2d 445, 467-
68 (1995); People v. Jones, 144 Ill. 2d 242, 272-73 (1991).
Further supporting our conclusion that counsel was not
deficient is the conflict that this evidence could have created
with the defendant's trial testimony, in which the defendant
attempted to establish that he was guilty only of second degree
murder, a noncapital offense. See People v. Holman, 164 Ill. 2d 356, 373 (1995); People v. Kokoraleis, 159 Ill. 2d 325, 330-31
(1994). Testimony given by a defendant at trial can profoundly
influence the range of strategic options available to counsel at a
subsequent sentencing hearing. In the present case, the defendant
testified at trial that he prepared the ropes used to bind the
victims and that he fired the shots that killed two of the victims
and injured a third. The defendant sought to explain these actions
by attributing his conduct to passion and emotion.
Consistent with the defendant's trial testimony,
counsel's strategy at the sentencing hearing was to demonstrate
that the present crimes were anomalous events in the defendant's
life. In closing argument at the second stage of the sentencing
hearing, counsel argued that the defendant would not pose a threat
to others if he received a sentence of life imprisonment, which in
this case was the only alternative to the death sentence. Defense
counsel continued with this theme by characterizing the offenses as
products of passion and emotion, unlikely to be repeated in the
future. Counsel noted further that the defendant had previously led
a peaceful, law-abiding life. In addition, counsel emphasized the
defendant's ambition, his exemplary work history, and his devotion
to family members and friends.
In sum, defense counsel, after sufficient investigation,
employed a coherent strategy at the sentencing hearing, and we do
not believe that counsel was ineffective in failing to take the
course now suggested by the defendant. Unlike post-conviction cases
raising similar allegations of incompetence in which this court has
found an evidentiary hearing or a new sentencing hearing to be
warranted (see People v. Orange, 168 Ill. 2d 138 (1995); People v.
Thompkins, 161 Ill. 2d 148 (1994); People v. Perez, 148 Ill. 2d 168
(1992)), there did not exist in this case a substantial amount of
mitigation that counsel ignored or inexplicably failed to
introduce. Even if we assume that the performance of the
defendant's trial attorneys was deficient in this regard, however,
we do not believe that the defendant suffered any prejudice as a
consequence. Assessing potential prejudice of an asserted
deficiency in counsel's performance at a capital sentencing hearing
requires that we examine the effect of counsel's conduct on the
sentencer's decision. People v. Sanchez, 169 Ill. 2d 472, 491
(1996); People v. Ashford, 168 Ill. 2d 494, 505 (1995); People v.
Coleman, 168 Ill. 2d 509, 536 (1995). The relevant question here is
whether there is a reasonable probability that, absent the errors,
the sentencer--including an appellate court, to the extent it
independently reweighs the evidence--would have concluded that the
balance of aggravating and mitigating circumstances did not warrant
death." Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.
With these considerations in mind, we do not believe that
the present defendant was prejudiced by his trial attorneys'
failure to obtain and introduce evidence of this nature. Although
the jury heard substantial evidence in mitigation--including the
testimony of 12 defense witnesses who testified to the defendant's
good characteristics, his helpfulness to others, and his loyalty to
his family and friends--together with evidence of the role that
passion and emotion played in the commission of these offenses, the
jury still decided that death was the appropriate punishment in
this case. The jury's decision to impose the death penalty in the
face of this evidence suggests that the additional evidence
proposed by the defendant would not likely have altered the jury's
determination. See People v. Holman, 164 Ill. 2d 356, 373-74
(1995). The jury's decision stemmed in large part from the facts
and circumstances of the present crimes, not from the absence of
evidence that the defendant was mentally or emotionally disturbed.
As we have already noted, evidence of extreme mental and emotional
disturbance has a dual nature and can be viewed as either
aggravating or mitigating by the sentencer, and we do not believe
that further inquiry into the defendant's mental condition would
have resulted in imposition of a different sentence.
B
The defendant next argues that trial counsel was
ineffective for pursuing what the defendant believes was a
fundamentally flawed and untenable defense at trial, and for
permitting the defendant to testify in support of that theory.
Specifically, the defendant contends that counsel should not have
attempted to establish that the defendant was guilty of second
degree murder, for the defendant believes that the evidence in this
case was clearly inadequate to support either form of that offense.
The defendant notes that the trial judge refused to instruct the
jury on either form, a decision that this court upheld on appeal.
Tenner, 157 Ill. 2d at 370-74.
Res judicata and waiver would normally preclude our
consideration of this challenge to trial counsel's performance, for
these same questions could have been raised on appeal from the
defendant's conviction and sentence. A related issue was, in fact,
raised on direct appeal, when the defendant argued that trial
counsel was ineffective for acknowledging in opening statement at
the guilt-innocence phase of the proceedings that the defendant
prepared the rope restraints and fired shots at the victims;
appellate counsel then contended that the combination of counsel's
concession with the instructions given to the jury, including
instructions for felony murder, made a conviction for first degree
murder automatic. This court rejected the defendant's challenge to
counsel's performance, concluding that the trial attorneys were not
ineffective in this respect. Tenner, 157 Ill. 2d at 374-78. Because
the defendant also contends here that appellate counsel was
ineffective in failing to challenge trial counsel's selection of
this trial strategy, we believe that it is appropriate to consider
the question on its merits.
Discussing trial counsel's acknowledgment that the
defendant performed the acts constituting the basis for the charged
offenses, we stated on direct appeal:
In the present case, counsel was attempting to
show that the defendant was acting under a
mitigating mental state that would have reduced the
severity of the homicides from first degree murder
to second degree murder. `It is not at all unusual
for a defendant facing a murder charge to argue
that he is guilty instead of a less serious
offense, such as voluntary manslaughter.
[Citations.]' (People v. Page (1993), 155 Ill. 2d 232, 262.) Because the defendant's own testimony
corresponded to the statements made by defense
counsel, we must assume that the defendant
consented to this strategy." Tenner, 157 Ill. 2d at
376.
These same considerations are pertinent here in assessing
counsel's choice of a defense strategy. The State had overwhelming
proof of the defendant's commission of the acts involved here,
including the testimony of two persons present throughout the
offenses. Given the strength of that evidence, counsel could have
reasonably concluded that the best option was to attempt to portray
the defendant's conduct as the result of sudden and intense passion
resulting from provocation or an unreasonable belief in the need
for self-defense, which, under either theory, would establish
second degree murder. Ill. Rev. Stat. 1987, ch. 38, pars. 9--
2(a)(1), (a)(2). That the trial judge ultimately refused to
instruct the jury on either form of second degree murder does not
demonstrate that counsel acted unreasonably in pursuing this line
of defense. Nor can it be said that the presentation of this theory
was useless. By portraying the defendant's actions as the result of
provocation or an unreasonable belief in self-defense, counsel
could attempt to evoke sympathy for the defendant in the minds of
the jurors, which might possibly have led to imposition of a
sentence other than death. For these reasons, we do not believe
that trial counsel was deficient in this choice of strategy, or
that the defendant was prejudiced by it.
C
The defendant also contends that trial counsel was
ineffective for not objecting to some 10 instances of allegedly
improper comments by the prosecution in closing argument at the
conclusion of the second stage of the capital sentencing hearing.
Again, principles of res judicata and waiver would normally
preclude our consideration of these objections. Because the
defendant also argues that appellate counsel was ineffective for
failing to challenge trial counsel's performance in this regard,
however, we will address this issue on its merits.
It is well established that appellate counsel is not
required to raise every conceivable issue on appeal. Jones v.
Barnes, 463 U.S. 745, 751-53, 77 L. Ed. 2d 987, 993-94, 103 S. Ct. 3308, 3312-13 (1983); People v. Collins, 153 Ill. 2d 130, 140
(1992); People v. Ruiz, 132 Ill. 2d 1, 18 (1989); People v. Frank,
48 Ill. 2d 500, 505 (1971). Experienced advocates since time
beyond memory have emphasized the importance of winnowing out
weaker arguments on appeal and focusing on one central issue if
possible, or at most on a few key issues." Jones, 463 U.S. at 751-
52, 77 L. Ed. 2d at 994, 103 S. Ct. at 3313. Although in capital
cases the number of issues raised on appeal customarily exceeds a
few," counsel cannot possibly--and competently--argue every issue
imaginable. Page limits and time constraints will both influence
appellate counsel's choice of issues, requiring the attorney to
exercise judgment in selecting from the potential claims of error
that may be asserted on appeal.
We are satisfied in the present case that appellate
counsel did not unreasonably fail to raise on appeal the instances
of allegedly improper argument cited by the defendant in his post-
conviction petition. Our conclusion is confirmed by an examination
of the remarks in question. We have examined the comments cited by
the defendant and, without reproducing the full text of each of
those comments here, we do not believe that appellate counsel was
ineffective for failing to challenge these comments on appeal, or
that trial counsel was ineffective for failing to register
contemporaneous objections to these remarks. In the series of
comments challenged here, the defendant maintains that the
prosecutor improperly referred to the victims' families, stated
that the defendant had dragged in" mitigating witnesses, advised
the jurors that, under their oaths, they were to judge the
defendant by his vicious acts, referred to hearsay evidence that
the defendant had tortured" a girlfriend several times over a
period of several years, and stated that the defendant had slashed
and slaughtered" a girlfriend on another occasion. In addition, the
defendant contends that the prosecutor improperly speculated that
the defendant planned the offenses in advance, suggested that the
defendant sought out female victims, expressed a personal belief
that the defendant should receive the death sentence, told the jury
to act on behalf of the victims in this case, and suggested that
the defense was concealing a witness. The defendant argues that the
preceding remarks were not supported by the evidence, prevented the
jury from considering the mitigating evidence offered by the
defense, and were otherwise improper and prejudicial.
On direct appeal, appellate counsel challenged four
portions of the prosecution's argument, including two of the
comments raised by the defendant here. This court rejected these
objections, finding that the remarks either were either proper or
did not warrant reversal. Tenner, 157 Ill. 2d at 382-86. We do not
believe that appellate counsel was ineffective for failing to raise
the additional remarks cited by the defendant in this post-
conviction proceeding. Trial counsel failed to object to 9 of the
10 comments raised here, and on direct appeal our review therefore
would have been limited in those instances in which no timely
objection was made, allowing a consideration only of whether the
asserted impropriety rose to the level of plain error (134 Ill. 2d
R. 615(a)), or whether trial counsel was ineffective for failing to
make an objection. We believe that the comments cited here were
fair inferences from the evidence or were not so egregious as to
constitute plain error, or that trial counsel's failure to object
to the remarks did not constitute ineffective assistance. We note,
too, that the sentencing jury heard the evidence in the case, that
the comments complained of were scattered through a lengthy
argument, and that the jury was properly instructed on the purpose
of closing argument.
D
In his final challenge to the performance of trial
counsel, the defendant argues that counsel was ineffective for
failing to comply with the discovery rules applicable to criminal
cases. The defendant maintains that evidence supporting his theory
of self-defense was excluded by the trial judge because defense
counsel had violated Supreme Court Rule 413(d) (134 Ill. 2d R.
413(a)) by not disclosing to the prosecution that that defense
would be raised at trial. Because of counsel's failure to meet the
requirements of the rule, the trial judge sustained the State's
objection to counsel's assertion in opening statement that the
defendant acted in fear of the victims. The defendant believes that
trial counsel's error effectively denied him the right to present
a part of his defense to the jury.
Principles of res judicata and waiver would normally
preclude our consideration of this issue. The same evidence now
offered by the defendant in support of this contention was
available on direct appeal, and a related issue was even raised at
that time. Without challenging the competency of the defendant's
trial attorneys, appellate counsel argued then that the trial judge
improperly limited the presentation of the theory of defense in
ruling that counsel could not mention, in opening statement, the
defendant's alleged fear of the victims. We did not rule on that
contention on direct appeal, however, concluding that the trial
judge's correct refusal of instructions on second degree murder
made the question moot. Tenner, 157 Ill. 2d at 374. Because we did
not previously rule on this matter, and because the defendant now
frames the issue as one involving the ineffective assistance of
both trial counsel and appellate counsel, we will consider the
question here.
Assuming that trial counsel was deficient in failing to
comply with the requirements of Rule 413, we do not believe that
the defendant was prejudiced by trial counsel's failure to provide
timely notice of the anticipated defense. Notwithstanding the trial
judge's initial ruling, the defendant was not actually precluded
from presenting the self-defense theory at trial. As the State
observes, the defendant stated repeatedly in his testimony at trial
that he was scared," afraid," or in fear" of the victims and
acted in response to their perceived threats. Defense counsel
succeeded in making the same point in closing argument at trial.
The State did not object to those portions of the defendant's
testimony or counsel's argument. Although trial counsel was
prevented from raising the theory in opening statement, he was
still able to introduce it through the defendant's testimony and in
subsequent argument to the jury. The trial judge later refused to
instruct the jury on second degree murder and the defendant's claim
that he acted from an unreasonable belief in the need for self-
defense, but the reason for the judge's ruling was the inadequacy
of the evidence offered in support of the theory, not counsel's
failure to comply with the discovery mandate. The defendant was not
prejudiced by counsel's failure to comply with the discovery rule.
II
The defendant next argues that his right to present a
defense was denied by a policy of the Cook County jail that
prevented a probationary correctional officer from testifying in
the defendant's behalf as a mitigation witness at the second stage
of the capital sentencing hearing. The defendant also contends that
the State's Attorney's office knew or should have known of the
alleged policy, and that the prosecution failed to disclose it.
Finally, the defendant argues that trial counsel was ineffective
for failing to bring forth evidence of the alleged policy at the
sentencing hearing to explain the absence of the additional
witness.
Our consideration of this issue is doubly handicapped,
for the defendant has presented insufficient evidence of the
existence of the policy alleged and has provided no written offer
of proof of what the witness in question would have testified to.
Included in the defendant's post-conviction petition is a
memorandum by a defense investigator, in which the investigator
reported that he learned of the supposed policy from two sources:
from the superintendent of the jail, and from the guard whom the
defense sought to call as a witness. The investigator related that
he was told by those two sources that probationary correctional
officers could be subpoenaed but that they were not to testify in
behalf of an inmate. The defendant does not explain how such a
witness could avoid testifying if he appeared in course in response
to a subpoena. We note also that another probationary correctional
officer did testify in the defendant's behalf at the sentencing
hearing. As the State observes, the policy cited by the defendant
apparently did not prevent that guard from appearing as a
mitigation witness.
Even if the policy in question existed, we are unable to
conclude that the defendant was prejudiced by it, or by counsel's
failure to raise the matter at sentencing. The defendant has failed
to set forth the substance of the potential witness' anticipated
testimony. In the absence of a showing of what that testimony would
have been, it is impossible for this court to attempt to determine
the witness' potential impact on the sentencing jury. A post-
conviction petitioner is not entitled to an evidentiary hearing as
of right. People v. Thomas, 164 Ill. 2d 410, 416 (1995). An
evidentiary hearing is necessary only when the petitioner makes a
substantial showing of a constitutional deprivation, supported by
the record or affidavits. People v. Gaines, 105 Ill. 2d 79, 91-92
(1984); People v. Curtis, 48 Ill. 2d 25, 27-28 (1971). Assuming,
however, that the second guard would have corroborated the
testimony of the correctional officer who did appear, and who
described the defendant as a model prisoner, we do not believe that
the defendant was prejudiced by the absence of the second guard's
testimony. The sentencing jury heard mitigating testimony from a
substantial number of witnesses, who described various facets of
the defendant's life, including his conduct while incarcerated.
Given the circumstances of the present offenses and the mitigating
evidence introduced by defense counsel, we do not believe that the
jury would have reached a different sentencing decision if it had
heard favorable yet cumulative testimony from a second guard
describing the defendant's behavior in jail.
III
In his final post-conviction claim, the defendant argues
that appellate counsel acted under a conflict of interest and
rendered ineffective assistance. We have already disposed of the
defendant's allegations of ineffective assistance of appellate
counsel in our preceding discussion, however, and these issues
require no further treatment here. One additional allegation made
by the defendant warrants brief comment, however. The defendant
makes the generalized complaint that appellate counsel was laboring
under a conflict of interest in representing the defendant on
appeal. The defendant offers no evidence in support of this
contention, but he apparently believes that the conflict arose
because appellate counsel and trial counsel were employed by the
same entity, the public defender's office of Cook County. Beyond
the identity of the attorneys' employer, however, the defendant
offers nothing to support the charge of a conflict, and we fail to
see in what way the defendant was prejudiced in this case by the
appellate representation. See People v. Banks, 121 Ill. 2d 36
(1987). It should be noted that counsel on direct appeal challenged
the performance of counsel at trial. Moreover, the defendant
specifically asked the trial judge to appoint the public defender's
office to handle the appeal. In the absence of evidence of an
actual conflict, we do not believe that the defendant may now
complain of that choice.
* * *
For the reasons stated, the judgment of the circuit court
of Cook County is affirmed. The clerk of this court is directed to
enter an order setting Tuesday, May 20, 1997, as the date on which
the sentence of death entered in the circuit court of Cook County
is to be carried out. 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, to the warden of Stateville
Correctional Center, and to the warden of the institution where the
defendant is now confined.
Judgment affirmed.
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. 79423--Agenda 4--November 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES TENNER,
Appellant.
Opinion filed January 30, 1997.
JUSTICE MILLER delivered the opinion of the court:
The defendant, James Tenner, brings this appeal from an
order of the circuit court of Cook County dismissing his post-
conviction petition without an evidentiary hearing. Because the
defendant received the death penalty for the underlying first-
degree murder convictions, the present appeal lies directly to this
court. 134 Ill. 2d R. 651(a).
The circumstances of the defendant's offenses are fully
set forth in our opinion on direct appeal and require only brief
restatement here. The offenses in question occurred in South
Chicago Heights on September 2, 1987, when the defendant shot and
killed two persons and injured a third. The defendant had been
acquainted with two of the victims, Albert and Donna Sauls, for a
lengthy period; the third victim, Alvin Smith, was employed by
Albert Sauls. The offenses occurred in a garage where the defendant
rented space. Testimony was received at trial from both Albert
Sauls, who survived the attack, and Shirley Garza, who was the
defendant's former girlfriend and who was present during the
offenses. According to the trial testimony, the Saulses' and
Smith's hands and feet were first bound, and the three victims were
then ordered by the defendant to proceed to an area where three
nooses were hanging from the rafters. After placing the victims in
the nooses, the defendant proceeded to harangue them for several
hours, complaining that they had interfered in his relationship
with Garza, his former girlfriend. The defendant later shot the
Saulses and Smith with a shotgun, killing Donna Sauls and Smith.
The defendant then left the premises with Garza, and he was
apprehended later that night. In his own testimony at trial, the
defendant explained that he believed that the Saulses had
previously abducted Garza, and that they were plotting to kill him.
The jury found the defendant guilty of two counts of
first degree murder, one count of attempted first degree murder,
four counts of aggravated unlawful restraint, and one count of
armed violence. After a capital sentencing hearing before the same
jury, the defendant was sentenced to death for his convictions for
first degree murder. On direct appeal, this court vacated the
defendant's conviction for attempted first degree murder but
otherwise affirmed the remaining convictions and corresponding
sentences. People v. Tenner, 157 Ill. 2d 341 (1993). The United
States Supreme Court denied the defendant's petition for a writ of
certiorari. Tenner v. Illinois, ___ U.S. ___, 129 L. Ed. 2d 882,
114 S. Ct. 2768 (1994). In December 1994 the defendant instituted
the present action in the circuit court of Cook County, seeking
post-conviction relief. The defendant submitted a supplemental
petition in March 1995. The circuit judge dismissed the defendant's
petitions without an evidentiary hearing. Because the death penalty
was imposed for the underlying first-degree murder convictions, the
defendant's appeal from the dismissal of his post-conviction
petition lies directly to this court. 134 Ill. 2d R. 651(a).
The Post-Conviction Hearing Act (725 ILCS 5/122--1
through 122--7 (West 1994)) enables a defendant to challenge a
conviction or sentence for violations of federal or state
constitutional rights. People v. Thompkins, 161 Ill. 2d 148, 157
(1994). An action for post-conviction relief is a collateral
proceeding, not an appeal from the underlying judgment. People v.
Brisbon, 164 Ill. 2d 236, 242 (1995); People v. Free, 122 Ill. 2d 367, 377 (1988). To be entitled to post-conviction relief, a
defendant must establish a substantial deprivation of federal or
state constitutional rights in the proceedings that produced the
judgment being challenged. 725 ILCS 5/122--1 (West 1994); People v.
Guest, 166 Ill. 2d 381, 389 (1995). Considerations of res judicata
and waiver limit the range of issues available to a post-conviction
petitioner to constitutional matters which have not been, and
could not have been, previously adjudicated." People v. Winsett,
153 Ill. 2d 335, 346 (1992). Thus, rulings on issues that were
previously raised at trial or on direct appeal are res judicata,
and issues that could have been raised in the earlier proceedings,
but were not, will be deemed waived. People v. Coleman, 168 Ill. 2d 509, 522 (1995); People v. Silagy, 116 Ill. 2d 357, 365 (1987).
I
The defendant raises a number of contentions here in
opposition to the trial court's decision to dismiss the amended
post-conviction petition without an evidentiary hearing. The
defendant's principal arguments on appeal concern the conduct of
trial and appellate counsel, and the defendant alleges that the
attorneys rendered constitutionally ineffective assistance in a
number of respects. Although the defendant focuses on the conduct
of trial counsel, he makes the allied claims that his attorney on
direct appeal was ineffective for failing to raise claims of trial
counsel's incompetence that were available at that time. Because
these issues overlap, we will address the challenges to appellate
counsel's competence at the same time as we consider the arguments
pertaining to trial counsel. See People v. Guest, 166 Ill. 2d 381,
390 (1995). We note that the same standards govern our assessment
of the performance of trial and appellate counsel here. People v.
Whitehead, 169 Ill. 2d 355, 381 (1996); People v. Johnson, 154 Ill. 2d 227, 233-34 (1993).
A
The defendant first argues that trial counsel was
ineffective for failing to have the defendant undergo an evaluation
of his mental condition prior to trial and sentencing. The
defendant contends that a mental evaluation could have provided the
basis for an insanity defense at trial and could have supplied
important mitigating evidence at the capital sentencing hearing. In
support of this contention, the defendant included with his
original and supplemental post-conviction petitions two reports by
Dr. Lyle Rossiter, a psychiatrist. Dr. Rossiter prepared a
preliminary report after reviewing the trial transcript and other
materials supplied by post-conviction counsel. After interviewing
the defendant on January 10, 1995, Dr. Rossiter submitted a
supplemental report, which incorporated the impressions he gleaned
on that occasion. In the supplemental report, Dr. Rossiter
expressed the view that the defendant was in a highly irrational
state caused by a paranoid delusional disorder" at the time of the
offenses committed here. Dr. Rossiter believed that the defendant's
condition warranted a psychiatric examination to determine whether
he was insane or was suffering from extreme mental or emotional
distress.
The constitutional guarantee of the assistance of counsel
(U.S. Const., amends. VI, XIV) includes the right to the effective
assistance of counsel (Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 343-44, 100 S. Ct. 1708, 1716 (1980)), both at trial
and on a defendant's first appeal as of right (Evitts v. Lucey, 469 U.S. 387, 396-97, 83 L. Ed. 2d 821, 830-31, 105 S. Ct. 830, 836-37
(1985)). The relevant standard for gauging the performance of
counsel is provided by Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To prevail on a claim of
ineffective assistance of counsel, a defendant must establish both
that counsel's performance was deficient and that he was prejudiced
as a result of counsel's alleged deficiency. Strickland, 466 U.S.
at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.
(1)
The defendant initially argues that trial counsel was
ineffective for failing to have the defendant undergo a mental
evaluation prior to trial. The defendant believes that an
examination could have revealed evidence that would have supported
an insanity defense to the charges.
This is not a case in which counsel wholly failed to
investigate the defendant's background prior to trial or
sentencing. Here, defense counsel retained a mitigation expert, who
conducted an investigation into the defendant's personal history,
though counsel later decided not to call that person as a witness
either at trial or at sentencing. Nothing in the record at that
time, however, suggested that the defendant suffered from any
mental impairment, or that there was any need to pursue a separate
inquiry into the defendant's mental condition. Where the
circumstances known to counsel at the time of his investigation do
not reveal a sound basis for further inquiry in a particular area,
it is not ineffective for the attorney to forgo additional
investigation. [Citation.]" People v. Holman, 164 Ill. 2d 356, 371
(1995).
We believe that trial counsel's failure to have the
defendant undergo a mental evaluation was a strategic choice made
after sufficient investigation. In Strickland the Supreme Court
observed:
[S]trategic choices made after thorough
investigation of law and facts relevant to
plausible options are virtually unchallengeable;
and strategic choices made after less than complete
investigation are reasonable precisely to the
extent that reasonable professional judgments
support the limitations on investigation. In other
words, counsel has a duty to make reasonable
investigations or to make a reasonable decision
that makes particular investigations unnecessary.
In any ineffectiveness case, a particular decision
not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a
heavy measure of deference to counsel's judgments."
Strickland, 466 U.S. at 690-91, 80 L. Ed. 2d at
695, 104 S. Ct. at 2066.
Nothing in the defendant's record or personal history
disclosed any history of mental illness or emotional disturbance;
there was nothing to prompt a separate inquiry into the defendant's
mental condition. In rejecting this portion of the defendant's
post-conviction petition, the judge below, who had also presided at
trial, explained:
There was nothing to suggest a psychiatric exam in
this young Defendant's background. If there had
been anything that would have suggested [a]
psychiatric exam, I probably would have ordered it
sua sponte. I've been known to do that to satisfy
myself as to the mental competency of a defendant
in front of the bench. There's none of that in this
record."
Like the judge below, we do not believe that counsel acted
unreasonably in failing to obtain a mental evaluation of the
defendant prior to trial.
Even if we assume that counsel was deficient for not
obtaining an expert evaluation of the defendant's mental condition,
we do not believe that the defendant incurred any prejudice at
trial as a result of the claimed error. As we have noted, a
defendant complaining of ineffective assistance of counsel must
establish both a deficiency in counsel's performance and prejudice
resulting from the deficiency. To establish prejudice, [t]he
defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at
2068.
The defendant does not claim that he was insane at the
time of the offenses involved in this case, and the defendant has
failed to show that a mental evaluation would have revealed
evidence that could have resulted in his acquittal on grounds of
insanity. Notably, Dr. Rossiter did not find that the defendant was
insane when he committed the present offenses. Although Dr.
Rossiter believed that the defendant was delusional at the relevant
time, Dr. Rossiter did not conclude that the defendant was insane.
The evidence presented by the defendant in support of the present
claim falls far short of what is needed to establish an insanity
defense.
(2)
The defendant makes the related argument that counsel
rendered ineffective assistance at his capital sentencing hearing
when his attorneys failed to obtain a mental evaluation of the
defendant and offer the evidence in mitigation. The defendant
correctly notes that extreme mental or emotional disturbance is
included as a mitigating circumstance in the Illinois death penalty
statute. Ill. Rev. Stat. 1987, ch. 38, par. 9--1(c)(2).
We do not believe that counsel's failure to make this
inquiry in preparation for the sentencing hearing constituted
ineffective assistance. As we have already noted, there was nothing
in the defendant's record or personal history at that time to
prompt counsel to seek an examination of the type the defendant now
proposes. Moreover, we note the potentially ambiguous nature of
evidence of mental problems: as we have observed in other cases,
information about a defendant's mental or psychological impairments
is not inherently mitigating. People v. Sanchez, 169 Ill. 2d 472,
491-92 (1996). At sentencing, a judge or jury considering evidence
of this nature might view the information as either mitigating or
aggravating, depending, of course, on whether the individual
hearing the evidence finds that it evokes compassion or
demonstrates possible future dangerousness. People v. Foster, 168 Ill. 2d 465, 491 (1995); People v. Mahaffey, 165 Ill. 2d 445, 467-
68 (1995); People v. Jones, 144 Ill. 2d 242, 272-73 (1991).
Further supporting our conclusion that counsel was not
deficient is the conflict that this evidence could have created
with the defendant's trial testimony, in which the defendant
attempted to establish that he was guilty only of second degree
murder, a noncapital offense. See People v. Holman, 164 Ill. 2d 356, 373 (1995); People v. Kokoraleis, 159 Ill. 2d 325, 330-31
(1994). Testimony given by a defendant at trial can profoundly
influence the range of strategic options available to counsel at a
subsequent sentencing hearing. In the present case, the defendant
testified at trial that he prepared the ropes used to bind the
victims and that he fired the shots that killed two of the victims
and injured a third. The defendant sought to explain these actions
by attributing his conduct to passion and emotion.
Consistent with the defendant's trial testimony,
counsel's strategy at the sentencing hearing was to demonstrate
that the present crimes were anomalous events in the defendant's
life. In closing argument at the second stage of the sentencing
hearing, counsel argued that the defendant would not pose a threat
to others if he received a sentence of life imprisonment, which in
this case was the only alternative to the death sentence. Defense
counsel continued with this theme by characterizing the offenses as
products of passion and emotion, unlikely to be repeated in the
future. Counsel noted further that the defendant had previously led
a peaceful, law-abiding life. In addition, counsel emphasized the
defendant's ambition, his exemplary work history, and his devotion
to family members and friends.
In sum, defense counsel, after sufficient investigation,
employed a coherent strategy at the sentencing hearing, and we do
not believe that counsel was ineffective in failing to take the
course now suggested by the defendant. Unlike post-conviction cases
raising similar allegations of incompetence in which this court has
found an evidentiary hearing or a new sentencing hearing to be
warranted (see People v. Orange, 168 Ill. 2d 138 (1995); People v.
Thompkins, 161 Ill. 2d 148 (1994); People v. Perez, 148 Ill. 2d 168
(1992)), there did not exist in this case a substantial amount of
mitigation that counsel ignored or inexplicably failed to
introduce. Even if we assume that the performance of the
defendant's trial attorneys was deficient in this regard, however,
we do not believe that the defendant suffered any prejudice as a
consequence. Assessing potential prejudice of an asserted
deficiency in counsel's performance at a capital sentencing hearing
requires that we examine the effect of counsel's conduct on the
sentencer's decision. People v. Sanchez, 169 Ill. 2d 472, 491
(1996); People v. Ashford, 168 Ill. 2d 494, 505 (1995); People v.
Coleman, 168 Ill. 2d 509, 536 (1995). The relevant question here is
whether there is a reasonable probability that, absent the errors,
the sentencer--including an appellate court, to the extent it
independently reweighs the evidence--would have concluded that the
balance of aggravating and mitigating circumstances did not warrant
death." Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.
With these considerations in mind, we do not believe that
the present defendant was prejudiced by his trial attorneys'
failure to obtain and introduce evidence of this nature. Although
the jury heard substantial evidence in mitigation--including the
testimony of 12 defense witnesses who testified to the defendant's
good characteristics, his helpfulness to others, and his loyalty to
his family and friends--together with evidence of the role that
passion and emotion played in the commission of these offenses, the
jury still decided that death was the appropriate punishment in
this case. The jury's decision to impose the death penalty in the
face of this evidence suggests that the additional evidence
proposed by the defendant would not likely have altered the jury's
determination. See People v. Holman, 164 Ill. 2d 356, 373-74
(1995). The jury's decision stemmed in large part from the facts
and circumstances of the present crimes, not from the absence of
evidence that the defendant was mentally or emotionally disturbed.
As we have already noted, evidence of extreme mental and emotional
disturbance has a dual nature and can be viewed as either
aggravating or mitigating by the sentencer, and we do not believe
that further inquiry into the defendant's mental condition would
have resulted in imposition of a different sentence.
B
The defendant next argues that trial counsel was
ineffective for pursuing what the defendant believes was a
fundamentally flawed and untenable defense at trial, and for
permitting the defendant to testify in support of that theory.
Specifically, the defendant contends that counsel should not have
attempted to establish that the defendant was guilty of second
degree murder, for the defendant believes that the evidence in this
case was clearly inadequate to support either form of that offense.
The defendant notes that the trial judge refused to instruct the
jury on either form, a decision that this court upheld on appeal.
Tenner, 157 Ill. 2d at 370-74.
Res judicata and waiver would normally preclude our
consideration of this challenge to trial counsel's performance, for
these same questions could have been raised on appeal from the
defendant's conviction and sentence. A related issue was, in fact,
raised on direct appeal, when the defendant argued that trial
counsel was ineffective for acknowledging in opening statement at
the guilt-innocence phase of the proceedings that the defendant
prepared the rope restraints and fired shots at the victims;
appellate counsel then contended that the combination of counsel's
concession with the instructions given to the jury, including
instructions for felony murder, made a conviction for first degree
murder automatic. This court rejected the defendant's challenge to
counsel's performance, concluding that the trial attorneys were not
ineffective in this respect. Tenner, 157 Ill. 2d at 374-78. Because
the defendant also contends here that appellate counsel was
ineffective in failing to challenge trial counsel's selection of
this trial strategy, we believe that it is appropriate to consider
the question on its merits.
Discussing trial counsel's acknowledgment that the
defendant performed the acts constituting the basis for the charged
offenses, we stated on direct appeal:
In the present case, counsel was attempting to
show that the defendant was acting under a
mitigating mental state that would have reduced the
severity of the homicides from first degree murder
to second degree murder. `It is not at all unusual
for a defendant facing a murder charge to argue
that he is guilty instead of a less serious
offense, such as voluntary manslaughter.
[Citations.]' (People v. Page (1993), 155 Ill. 2d 232, 262.) Because the defendant's own testimony
corresponded to the statements made by defense
counsel, we must assume that the defendant
consented to this strategy." Tenner, 157 Ill. 2d at
376.
These same considerations are pertinent here in assessing
counsel's choice of a defense strategy. The State had overwhelming
proof of the defendant's commission of the acts involved here,
including the testimony of two persons present throughout the
offenses. Given the strength of that evidence, counsel could have
reasonably concluded that the best option was to attempt to portray
the defendant's conduct as the result of sudden and intense passion
resulting from provocation or an unreasonable belief in the need
for self-defense, which, under either theory, would establish
second degree murder. Ill. Rev. Stat. 1987, ch. 38, pars. 9--
2(a)(1), (a)(2). That the trial judge ultimately refused to
instruct the jury on either form of second degree murder does not
demonstrate that counsel acted unreasonably in pursuing this line
of defense. Nor can it be said that the presentation of this theory
was useless. By portraying the defendant's actions as the result of
provocation or an unreasonable belief in self-defense, counsel
could attempt to evoke sympathy for the defendant in the minds of
the jurors, which might possibly have led to imposition of a
sentence other than death. For these reasons, we do not believe
that trial counsel was deficient in this choice of strategy, or
that the defendant was prejudiced by it.
C
The defendant also contends that trial counsel was
ineffective for not objecting to some 10 instances of allegedly
improper comments by the prosecution in closing argument at the
conclusion of the second stage of the capital sentencing hearing.
Again, principles of res judicata and waiver would normally
preclude our consideration of these objections. Because the
defendant also argues that appellate counsel was ineffective for
failing to challenge trial counsel's performance in this regard,
however, we will address this issue on its merits.
It is well established that appellate counsel is not
required to raise every conceivable issue on appeal. Jones v.
Barnes, 463 U.S. 745, 751-53, 77 L. Ed. 2d 987, 993-94, 103 S. Ct. 3308, 3312-13 (1983); People v. Collins, 153 Ill. 2d 130, 140
(1992); People v. Ruiz, 132 Ill. 2d 1, 18 (1989); People v. Frank,
48 Ill. 2d 500, 505 (1971). Experienced advocates since time
beyond memory have emphasized the importance of winnowing out
weaker arguments on appeal and focusing on one central issue if
possible, or at most on a few key issues." Jones, 463 U.S. at 751-
52, 77 L. Ed. 2d at 994, 103 S. Ct. at 3313. Although in capital
cases the number of issues raised on appeal customarily exceeds a
few," counsel cannot possibly--and competently--argue every issue
imaginable. Page limits and time constraints will both influence
appellate counsel's choice of issues, requiring the attorney to
exercise judgment in selecting from the potential claims of error
that may be asserted on appeal.
We are satisfied in the present case that appellate
counsel did not unreasonably fail to raise on appeal the instances
of allegedly improper argument cited by the defendant in his post-
conviction petition. Our conclusion is confirmed by an examination
of the remarks in question. We have examined the comments cited by
the defendant and, without reproducing the full text of each of
those comments here, we do not believe that appellate counsel was
ineffective for failing to challenge these comments on appeal, or
that trial counsel was ineffective for failing to register
contemporaneous objections to these remarks. In the series of
comments challenged here, the defendant maintains that the
prosecutor improperly referred to the victims' families, stated
that the defendant had dragged in" mitigating witnesses, advised
the jurors that, under their oaths, they were to judge the
defendant by his vicious acts, referred to hearsay evidence that
the defendant had tortured" a girlfriend several times over a
period of several years, and stated that the defendant had slashed
and slaughtered" a girlfriend on another occasion. In addition, the
defendant contends that the prosecutor improperly speculated that
the defendant planned the offenses in advance, suggested that the
defendant sought out female victims, expressed a personal belief
that the defendant should receive the death sentence, told the jury
to act on behalf of the victims in this case, and suggested that
the defense was concealing a witness. The defendant argues that the
preceding remarks were not supported by the evidence, prevented the
jury from considering the mitigating evidence offered by the
defense, and were otherwise improper and prejudicial.
On direct appeal, appellate counsel challenged four
portions of the prosecution's argument, including two of the
comments raised by the defendant here. This court rejected these
objections, finding that the remarks either were either proper or
did not warrant reversal. Tenner, 157 Ill. 2d at 382-86. We do not
believe that appellate counsel was ineffective for failing to raise
the additional remarks cited by the defendant in this post-
conviction proceeding. Trial counsel failed to object to 9 of the
10 comments raised here, and on direct appeal our review therefore
would have been limited in those instances in which no timely
objection was made, allowing a consideration only of whether the
asserted impropriety rose to the level of plain error (134 Ill. 2d
R. 615(a)), or whether trial counsel was ineffective for failing to
make an objection. We believe that the comments cited here were
fair inferences from the evidence or were not so egregious as to
constitute plain error, or that trial counsel's failure to object
to the remarks did not constitute ineffective assistance. We note,
too, that the sentencing jury heard the evidence in the case, that
the comments complained of were scattered through a lengthy
argument, and that the jury was properly instructed on the purpose
of closing argument.
D
In his final challenge to the performance of trial
counsel, the defendant argues that counsel was ineffective for
failing to comply with the discovery rules applicable to criminal
cases. The defendant maintains that evidence supporting his theory
of self-defense was excluded by the trial judge because defense
counsel had violated Supreme Court Rule 413(d) (134 Ill. 2d R.
413(a)) by not disclosing to the prosecution that that defense
would be raised at trial. Because of counsel's failure to meet the
requirements of the rule, the trial judge sustained the State's
objection to counsel's assertion in opening statement that the
defendant acted in fear of the victims. The defendant believes that
trial counsel's error effectively denied him the right to present
a part of his defense to the jury.
Principles of res judicata and waiver would normally
preclude our consideration of this issue. The same evidence now
offered by the defendant in support of this contention was
available on direct appeal, and a related issue was even raised at
that time. Without challenging the competency of the defendant's
trial attorneys, appellate counsel argued then that the trial judge
improperly limited the presentation of the theory of defense in
ruling that counsel could not mention, in opening statement, the
defendant's alleged fear of the victims. We did not rule on that
contention on direct appeal, however, concluding that the trial
judge's correct refusal of instructions on second degree murder
made the question moot. Tenner, 157 Ill. 2d at 374. Because we did
not previously rule on this matter, and because the defendant now
frames the issue as one involving the ineffective assistance of
both trial counsel and appellate counsel, we will consider the
question here.
Assuming that trial counsel was deficient in failing to
comply with the requirements of Rule 413, we do not believe that
the defendant was prejudiced by trial counsel's failure to provide
timely notice of the anticipated defense. Notwithstanding the trial
judge's initial ruling, the defendant was not actually precluded
from presenting the self-defense theory at trial. As the State
observes, the defendant stated repeatedly in his testimony at trial
that he was scared," afraid," or in fear" of the victims and
acted in response to their perceived threats. Defense counsel
succeeded in making the same point in closing argument at trial.
The State did not object to those portions of the defendant's
testimony or counsel's argument. Although trial counsel was
prevented from raising the theory in opening statement, he was
still able to introduce it through the defendant's testimony and in
subsequent argument to the jury. The trial judge later refused to
instruct the jury on second degree murder and the defendant's claim
that he acted from an unreasonable belief in the need for self-
defense, but the reason for the judge's ruling was the inadequacy
of the evidence offered in support of the theory, not counsel's
failure to comply with the discovery mandate. The defendant was not
prejudiced by counsel's failure to comply with the discovery rule.
II
The defendant next argues that his right to present a
defense was denied by a policy of the Cook County jail that
prevented a probationary correctional officer from testifying in
the defendant's behalf as a mitigation witness at the second stage
of the capital sentencing hearing. The defendant also contends that
the State's Attorney's office knew or should have known of the
alleged policy, and that the prosecution failed to disclose it.
Finally, the defendant argues that trial counsel was ineffective
for failing to bring forth evidence of the alleged policy at the
sentencing hearing to explain the absence of the additional
witness.
Our consideration of this issue is doubly handicapped,
for the defendant has presented insufficient evidence of the
existence of the policy alleged and has provided no written offer
of proof of what the witness in question would have testified to.
Included in the defendant's post-conviction petition is a
memorandum by a defense investigator, in which the investigator
reported that he learned of the supposed policy from two sources:
from the superintendent of the jail, and from the guard whom the
defense sought to call as a witness. The investigator related that
he was told by those two sources that probationary correctional
officers could be subpoenaed but that they were not to testify in
behalf of an inmate. The defendant does not explain how such a
witness could avoid testifying if he appeared in course in response
to a subpoena. We note also that another probationary correctional
officer did testify in the defendant's behalf at the sentencing
hearing. As the State observes, the policy cited by the defendant
apparently did not prevent that guard from appearing as a
mitigation witness.
Even if the policy in question existed, we are unable to
conclude that the defendant was prejudiced by it, or by counsel's
failure to raise the matter at sentencing. The defendant has failed
to set forth the substance of the potential witness' anticipated
testimony. In the absence of a showing of what that testimony would
have been, it is impossible for this court to attempt to determine
the witness' potential impact on the sentencing jury. A post-
conviction petitioner is not entitled to an evidentiary hearing as
of right. People v. Thomas, 164 Ill. 2d 410, 416 (1995). An
evidentiary hearing is necessary only when the petitioner makes a
substantial showing of a constitutional deprivation, supported by
the record or affidavits. People v. Gaines, 105 Ill. 2d 79, 91-92
(1984); People v. Curtis, 48 Ill. 2d 25, 27-28 (1971). Assuming,
however, that the second guard would have corroborated the
testimony of the correctional officer who did appear, and who
described the defendant as a model prisoner, we do not believe that
the defendant was prejudiced by the absence of the second guard's
testimony. The sentencing jury heard mitigating testimony from a
substantial number of witnesses, who described various facets of
the defendant's life, including his conduct while incarcerated.
Given the circumstances of the present offenses and the mitigating
evidence introduced by defense counsel, we do not believe that the
jury would have reached a different sentencing decision if it had
heard favorable yet cumulative testimony from a second guard
describing the defendant's behavior in jail.
III
In his final post-conviction claim, the defendant argues
that appellate counsel acted under a conflict of interest and
rendered ineffective assistance. We have already disposed of the
defendant's allegations of ineffective assistance of appellate
counsel in our preceding discussion, however, and these issues
require no further treatment here. One additional allegation made
by the defendant warrants brief comment, however. The defendant
makes the generalized complaint that appellate counsel was laboring
under a conflict of interest in representing the defendant on
appeal. The defendant offers no evidence in support of this
contention, but he apparently believes that the conflict arose
because appellate counsel and trial counsel were employed by the
same entity, the public defender's office of Cook County. Beyond
the identity of the attorneys' employer, however, the defendant
offers nothing to support the charge of a conflict, and we fail to
see in what way the defendant was prejudiced in this case by the
appellate representation. See People v. Banks, 121 Ill. 2d 36
(1987). It should be noted that counsel on direct appeal challenged
the performance of counsel at trial. Moreover, the defendant
specifically asked the trial judge to appoint the public defender's
office to handle the appeal. In the absence of evidence of an
actual conflict, we do not believe that the defendant may now
complain of that choice.
* * *
For the reasons stated, the judgment of the circuit court
of Cook County is affirmed. The clerk of this court is directed to
enter an order setting Tuesday, May 20, 1997, as the date on which
the sentence of death entered in the circuit court of Cook County
is to be carried out. 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, to the warden of Stateville
Correctional Center, and to the warden of the institution where the
defendant is now confined.
Judgment affirmed.
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