People v. Stiedl
Annotate this Case
People v. Steidl, No. 80341 (9/18/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the
filing of the opinion to request a rehearing. Also, opinions are
subject to modification, correction or withdrawal at anytime prior
to issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 80341--Agenda 4--March 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GORDON "RANDY"
STEIDL, Appellant.
Opinion filed September 18, 1997.
JUSTICE HEIPLE delivered the opinion of the court:
Defendant, Gordon "Randy" Steidl, and codefendant, Herbert
Whitlock, were indicted for the murders of Dyke and Karen Rhoads.
Defendant's case was severed from Whitlock's. Following a jury
trial, defendant was found guilty of both murders. The jury found
defendant eligible for the death penalty and that there were no
mitigating factors sufficient to preclude a sentence of death.
Defendant was sentenced to death and his sentence and conviction
were upheld by this court on direct appeal. People v. Steidl, 142 Ill. 2d 204 (1991).
Defendant subsequently filed a petition for post-judgment re-
lief under section 2--1401 of the Civil Practice Law (735 ILCS
5/2--1401 (West 1994)) based on recantations of testimony by two
key State witnesses. The section 2--1401 petition was denied when
the witnesses withdrew their recantations at the hearing. Plaintiff
then filed a petition under the Post-Conviction Hearing Act (725
ILCS 5/122--1 et seq. (West 1994)). The petition was later amended.
During the proceedings on the amended post-conviction petition,
defendant filed three motions for substitution of judge. All three
motions were denied, and the court subsequently dismissed the post-
conviction petition without an evidentiary hearing.
Defendant now appeals the denial of his amended post-
conviction petition without an evidentiary hearing, arguing that he
has presented substantial evidence to establish that he received
ineffective assistance of counsel at trial and at the sentencing
hearing. He further contends that the trial court erred when it de-
nied his motions for substitution of judge. For the reasons
detailed below, we reverse and remand for an evidentiary hearing on
defendant's post-conviction petition in front of a newly
substituted judge.
BACKGROUND
At 4:39 a.m. on July 6, 1986, firefighters responded to the
report of a fire at a house in Paris, Illinois. The firefighters
found that the fire had been set in two separate locations in the
home. Although the fire had destroyed much of the downstairs area,
the upstairs had received mostly smoke damage. The firefighters
discovered the naked bodies of Dyke and Karen Rhoads in an upstairs
bedroom. Dyke was lying on the floor near the bedroom door and had
been stabbed 28 times. His fatal wound was below the left armpit
and was six inches deep. Karen was on the floor near the foot of
the bed with a pillow covering her face, and had been stabbed 26
times. She had two possibly fatal wounds, one under her right
armpit, the other in her chest. The former was also six inches
deep. None of the physical evidence found at the scene was linked
to the defendant.
The State offered two key witnesses at trial, Deborah Rienbolt
and Darrell Herrington. Rienbolt testified that she was a drug
addict and alcoholic, and that she knew defendant and Whitlock from
around town and from drug dealing. Rienbolt testified that
approximately one month before the murders she had heard defendant
and Whitlock talking to Dyke Rhoads about drug deals and that she
had accompanied Whitlock to the Rhoads house a few times. During
the visits, Rienbolt remained outside while Whitlock spoke to Dyke
Rhoads about drugs.
Rienbolt further testified that on the morning of July 5,
1986, she was at a bar called Jeanie's Place, where she overheard
a conversation between Whitlock and Dyke Rhoads. Dyke wanted out of
a drug deal and gave Whitlock some money toward this end. Whitlock
told Dyke that it was not that easy to get out. That afternoon
Rienbolt decided not to go to work. She either had a coworker punch
her in or punched herself in and then left. Rienbolt then borrowed
a car from a friend and drove to the house of another friend,
Barbara Furry. She and Furry smoked marijuana. Around 8:30 that
evening, Rienbolt went to a local bar called the Tap Room, where
she encountered the defendant, Whitlock, Herrington, and an
unidentified man.
Rienbolt further testified that, later that night, she went to
the American Legion, possibly with Barbara Furry, but stayed
outside until closing time at midnight. At closing, defendant,
Whitlock, Herrington, and the unidentified man exited the Legion.
Whitlock approached Rienbolt and asked her for a hunting knife that
belonged to her husband, which she had brought with her in response
to Whitlock's earlier requests for the knife. Rienbolt gave
Whitlock the knife. Whitlock told her that he had some business to
take care of, mentioning Dyke Rhoads and drug deals. Rienbolt then
proceeded alone to the Rhoads residence, where she observed
defendant's car parked next to the house. She entered the house
through the back door and went upstairs to a bedroom. Upon entering
the bedroom, she noticed a broken lamp in the room, a piece of
which somebody was holding. Dyke and Karen Rhoads were in the
bedroom, as were defendant and Whitlock. Defendant and Whitlock
stopped Dyke Rhoads as he stumbled to the doorway. Defendant and
Whitlock began stabbing Dyke with the knife Rienbolt had given
Whitlock. Meanwhile Rienbolt held Karen down. She continued to hold
Karen as defendant and Whitlock stabbed Karen. Rienbolt testified
that everything "got real fuzzy at that point," but she did
remember the position of the bodies in the room. She also recalled
a fire. Rienbolt testified that Whitlock returned her knife later
that morning and that she cleaned it by soaking it in hot water and
picking the blood out of the crevices. A subsequent forensic
examination of the knife revealed no traces of blood, although
animal hairs were found.
In February 1987, Rienbolt made the first of several
statements to the police. The events surrounding the murders in
Rienbolt's statements varied, but she admitted more involvement in
the murders with each successive statement. In April 1987, Rienbolt
entered into a plea agreement whereby she pled guilty to
concealment of a homicidal death in exchange for a five-year prison
sentence.
Herrington testified that he was an alcoholic and that on July
5, 1986, he drank continuously from noon until midnight. He
testified that he was with defendant and Whitlock at the Tap Room
and the American Legion the evening of July 5. When the American
Legion closed, he asked defendant for a ride home. Defendant
agreed, but drove with him and Whitlock to the Rhoads house first.
Herrington slept in the car while defendant and Whitlock went
inside the house. Herrington was awakened by a sound and used a
credit card to open the locked back door. He heard a woman scream,
and inside the house he encountered defendant holding a knife.
Herrington left the house. Whitlock later came outside and drove
off. Herrington went back inside the house, going upstairs into the
bedroom. There he observed the bodies of Dyke and Karen Rhoads.
Herrington picked up a pillow and threw it on Karen's face.
Defendant told Herrington that he would suffer the same fate if he
told anyone what had happened. Soon thereafter Whitlock returned
with gallon jugs. Defendant threatened Herrington again and told
him to leave. Herrington then ran for home. He testified that he
saw no one other than himself, defendant, Whitlock, and the victims
at the Rhoads residence.
Defendant testified that at about 9:30 p.m. on July 5 he was
at the Barn Tavern with Nanette Klein, Christy Ferris, and Dennis
Ouzleman. Around 10:30 p.m. he left the Barn Tavern and went to the
American Legion by himself. At approximately 12:15 a.m. he left the
American Legion alone, dropped his car off at his apartment, and
walked to the Horseshoe Tavern, where he met up with Klein, Ferris,
and Ouzleman. After about 15 minutes, at around 12:50 a.m., the
group left and returned to Ouzleman's apartment, which was in the
same building as defendant's apartment. The four then smoked some
marijuana. Defendant and Ferris subsequently returned to
defendant's apartment, where they both remained until approximately
3 a.m., at which time defendant left to mail his unemployment forms
to insure the timely arrival of his unemployment check. On his way
out, defendant encountered Klein in the yard and told her what he
was doing. When defendant returned to the apartment about five
minutes later, Klein and Ferris left. Defendant went to bed and
slept until 11:30 that morning.
ANALYSIS
A proceeding brought under the Post-Conviction Act is a col-
lateral attack on a judgment of conviction. The inquiry in a post-
conviction petition is limited to allegations of constitutional
violations that were not and could not have been raised previously.
People v. Eddmonds, 143 Ill. 2d 501, 510 (1991). The petitioner is
entitled to an evidentiary hearing only upon making a substantial
showing that he suffered a substantial deprivation of
constitutional rights. People v. Coleman, 168 Ill. 2d 509, 537
(1995). In making that determination, all well-pleaded facts in the
petition and any accompanying affidavits are taken as true. People
v. Caballero, 126 Ill. 2d 248, 259 (1989). The determinations of
the trial court, however, will not be disturbed absent manifest
error. People v. Franklin, 167 Ill. 2d 1, 9 (1995).
Ineffective Assistance of Counsel
Defendant's claims of ineffective assistance of counsel fall
into two general areas: (1) failure to conduct an investigation and
to impeach the State's key witness at trial; and (2) failure to
prepare and present evidence in mitigation at the sentencing
hearing. Defendant maintains that the cumulative effect of these
errors constituted ineffective assistance of counsel.
To establish a claim of ineffective assistance of counsel,
defendant must show both that counsel's performance was deficient
and that he was substantially prejudiced by the deficient
performance. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). An attorney is required
to provide reasonable assistance within the range of prevailing
professional norms. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at
693-94, 104 S. Ct. at 2064-65; Caballero, 126 Ill. 2d at 260. The
court, however, must indulge in a strong presumption that counsel's
performance was competent and that all decisions were made while
exercising reasonable professional judgment. Strickland, 466 U.S.
at 690-91, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066; People v.
Thompkins, 161 Ill. 2d 148, 161 (1994). Additionally, even if an
attorney's performance was incompetent, a defendant must still
establish that he was prejudiced by the attorney's errors such that
there exists a reasonable probability that, but for the counsel's
deficient performance, the fact finder would have entertained
reasonable doubt as to the defendant's guilt. Strickland, 466 U.S.
at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69; Caballero, 126 Ill. 2d at 260.
At the outset we note that in a post-conviction petition,
issues that were raised and decided on direct appeal are barred by
the doctrine of res judicata, and any claim that could have been
presented on direct appeal but was not is deemed waived. People v.
Thompkins, 161 Ill. 2d at 157-58; People v. Del Vecchio, 129 Ill. 2d 265, 275 (1989). The doctrines of res judicata and waiver are
relaxed, however, if fundamental fairness so requires. Thompkins,
161 Ill. 2d at 158. Defendant contends that the evidence contained
in his post-conviction petition is newly discovered and the
doctrines of res judicata and waiver do not apply. Generally,
claims of ineffective assistance of counsel are waived if they are
not raised on direct appeal. People v. Orange, 168 Ill. 2d 138, 149
(1995). Where facts relating to the competency of counsel are not
in the record or are newly discovered, however, the waiver rule is
relaxed. Orange, 168 Ill. 2d at 149. Except where noted below,
defendant's post-conviction petition presents new arguments or new
evidence not considered on direct appeal and will therefore be
considered.
Ineffective Assistance at Trial
Defendant asserts that his trial attorney, S. John Muller,
rendered ineffective assistance in failing to conduct an investiga-
tion of the crime scene, failing to locate and subpoena crucial
witnesses, and failing to properly impeach Rienbolt at trial.
Consequently, Muller missed opportunities to discredit Rienbolt and
Herrington's version of events. Defendant's post-conviction counsel
conducted an investigation of the crime scene and retained experts
who examined the evidence and arrived at conclusions contrary those
argued by the State at trial. Defendant asserts that his case was
prejudiced because the jury never heard this evidence. The post-
conviction investigation of the crime scene focused on three pieces
of evidence: the knife wounds, a broken lamp, and a pillow.
The victims' autopsies revealed that the fatal wounds on both
victims were six inches deep and 2.5 centimeters wide. The knife
that Rienbolt testified she gave to Whitlock to use in the murders
was five inches long and 1.3 centimeters wide at its widest point,
with a locking mechanism above the hilt (hereinafter, the Rienbolt
knife). Police investigators, however, had discovered another knife
in the kitchen sink of the Rhoads home (hereinafter, the kitchen
sink knife). The kitchen sink knife was eight inches long and 2.4
centimeters wide and had no locking mechanism. Crime scene
photographs of the kitchen sink knife were taken, and it was
collected as evidence. The discovery of the kitchen sink knife was
noted in a supplemental police report dated August 12, 1986.
Muller, however, never learned of the kitchen sink knife, and its
existence was first discovered and raised after defendant's
conviction.
At trial, Dr. John Murphy, the pathologist who performed the
autopsy, testified that the Rienbolt knife was compatible with the
victims' wounds. Defendant's post-conviction counsel retained
pathologist Dr. Michael Baden to examine the autopsy reports and
photographs, trial testimony, evidence, and the two knives. In an
affidavit attached to the post-conviction petition, Dr. Baden
states that if the Rienbolt knife had been used, he would have
expected to see bruising and abrasions, known as hilt marks, around
the edges of the stab wounds. There were no hilt marks on the
victims' bodies. Dr. Baden concluded that the kitchen sink knife
was more compatible with the wounds than the Rienbolt knife. An
affidavit by Dr. Murphy was also submitted with defendant's post-
conviction petition. In the affidavit, Dr. Murphy stated that since
the time of trial he had viewed photographs of the kitchen sink
knife. He opined that due to the compressibility of a young
person's rib cage and chest wall, the five-inch blade of the
Rienbolt knife could have made wounds six inches deep. Although Dr.
Murphy would not speculate as to which knife was the more likely
murder weapon, he did concede that he would have expected the
locking mechanism above the hilt of the Rienbolt knife to leave a
mark adjacent to the stab wounds. No marks were observed at the
time of the autopsy. Defendant's post-conviction petition also
includes the notes of police officer Kevin Ring, who was present at
Karen Rhoads' autopsy. Ring's notes contained the comment, "Knife
blade at least 6" long Dr. Murphy adv. 5:50 p.m."
Defendant asserts that the kitchen sink knife was the likely
murder weapon, not the Rienbolt knife. He argues that by not con-
ducting an investigation of the crime scene Muller missed an
obvious opportunity to bring this suggestion before the court.
Defendant notes that Muller did not question Dr. Murphy about the
discrepancy between the length of the Rienbolt knife and the depth
of the wounds or about the absence of hilt marks around the wounds.
Defendant also points out that Muller did not ask Dr. Murphy about
the notation in Ring's notes. Nor did he retain his own expert to
counter Dr. Murphy's testimony at trial. Muller thus missed a vital
opportunity to discredit Rienbolt's testimony that the knife she
supplied was used in the murders.
Defendant's post-conviction petition also discloses
discrepancies regarding testimony about a lamp. Rienbolt testified
that on the night of the murders she saw a broken lamp in the
Rhoads' bedroom and that somebody was holding a piece of it. A
broken lamp was later found in the bedroom, and the State used it
to corroborate Rienbolt's testimony. The lamp was not forensically
examined before trial. Post-conviction defense counsel had a
certified fire examiner examine the lamp. The examiner concluded,
based on the lack of smoke stains or soot marks on the inside of
the lamp, that the lamp was broken after the fire rather than
before. Defendant asserts that the lamp was most likely broken by
the firefighters who arrived at the scene. He argues that Muller's
failure to obtain expert examination of the lamp, at the very
least, deprived him of an opportunity to cast doubt on Rienbolt's
testimony.
Lastly, defendant's post-conviction petition raises questions
regarding Herrington's testimony about a pillow. Herrington
testified that he threw a pillow over Karen Rhoads' face after she
had been killed. Dr. Baden's affidavit, however, contends that it
was highly unlikely that the pillow was simply thrown onto Karen's
face. Rather, he believed that the pillow was forced onto her face
to suppress her screams while she was alive, as evidenced by a
witness who heard Karen's screams suddenly stop; the existence of
defensive wounds on Karen's arm; the position of the mattress and
the bed clothes, consistent with a struggle; and Karen's broken and
blood-smeared eyeglasses, found near her head, indicating that the
pillow was applied with sufficient force to break her glasses.
Defendant asserts that because Muller failed to retain an expert to
elicit this testimony at trial, he lost an opportunity to discredit
Herrington's testimony.
The State responds that these new contentions do not indicate
that Muller handled the evidence improperly, nor do they
necessarily exculpate defendant. The State asserts that Muller's
decision not to call a forensic expert regarding the knife wounds
was one of trial strategy given that the difference between the
depth of the wounds and the length of the Rienbolt knife was a
matter of common sense easily understood by the jury. Moreover, the
State theorizes that both the Rienbolt knife and the kitchen sink
knife could have been used to inflict the victims' wounds. The
State next argues that the lamp evidence is inconclusive because
Rienbolt did not testify to the extent the lamp was broken when she
saw it. Thus, at the time of the murders, it is possible that the
lamp was not yet broken to the extent necessary for soot to settle
inside. Finally, the State maintains that Dr. Baden's analysis of
the pillow and Herrington's testimony are not inconsistent. It is
possible that the pillow was first used to muffle Karen's screams
during a struggle, was removed or fell off her face later, and was
subsequently replaced by Herrington.
Defendant further asserts that Muller's faulty investigation
also resulted in missed opportunities to impeach Rienbolt with
witnesses whose affidavits were attached to defendant's post-
conviction petition. Muller never met with alibi witness Dennis
Ouzleman or called him to testify. Barbara Furry was never
subpoenaed to dispute under oath Rienbolt's testimony that she and
Furry went to the American Legion together July 5. Likewise,
Rienbolt's supervisor was not called, notwithstanding her statement
that her log indicated that Rienbolt was present at work on July 5,
contrary to Rienbolt's testimony. Nor was Eva Jean Trover, the
owner-operator of Jeanie's Place, asked to testify, though her
affidavit states that she did not see Rienbolt, Rhoads, Whitlock,
or defendant in her establishment during the day of July 5. Curtis
Smith, a bartender at the Tap Room, was not called to testify that
he did not observe Whitlock or Rienbolt in the Tap Room on the
night of July 5 and could provide the names of several persons who
were there who could verify this observation.
Defendant finally contends that Muller rendered ineffective
assistance of counsel in failing to impeach Rienbolt's testimony at
trial with three previous inconsistent pretrial statements Rienbolt
made to the police. On direct appeal, however, defendant had also
asserted that Muller was ineffective for failing to use the
contents of three pretrial statements to impeach Rienbolt's
testimony. This court found that the inconsistencies between
Rienbolt's statements did not work to exonerate defendant and that
Muller's cross-examination of Rienbolt was adequate. Steidl, 142 Ill. 2d at 242. Defendant's present argument is substantially the
same as the one he made on direct appeal, and defendant presents no
new evidence to support his related argument in his post-conviction
petition. It is therefore foreclosed by the doctrine of res
judicata. Thompkins, 161 Ill. 2d at 157.
We also observe that Muller testified in a deposition
conducted by post-conviction counsel that some of his decisions
were attributable to trial strategy. For example, he did not obtain
a forensics expert to testify as to the knife wounds because he
felt it unnecessary, as the discrepancy between the length of the
Rienbolt blade and the depth of the wounds was a matter of common
sense. He chose not to interview Ouzleman, who is hearing impaired
and cannot speak, because he believed Ouzleman's alibi testimony
would merely repeat the testimony of other alibi witnesses and that
he would have difficulty communicating on the stand. No strategic
explanation was provided, however, for Muller's failure to conduct
an investigation of the crime scene or interview and call some of
the post-conviction affiants to discredit the testimony of Rienbolt
and Herrington.
Defendant's post-conviction petition has identified several
instances where Muller's failure to investigate precluded the jury
from hearing evidence. The failure to interview witnesses may
indicate incompetence, particularly when the witnesses are known to
trial counsel and their testimony may be exonerating. People v.
Greer, 79 Ill. 2d 103, 123 (1980). Whether a failure to investigate
amounts to incompetency depends upon the value of the evidence to
the case. People v. Lopez, 242 Ill. App. 3d 160, 171 (1993). The
evidence in this case was closely balanced. No physical evidence
linked defendant to the crime scene and defendant presented an
alibi. The jury's decision necessarily rested upon its judgment of
the credibility of the witnesses that came before it, primarily
Rienbolt and Herrington. Even considering the State's arguments
that the new evidence does not necessarily exonerate defendant,
defendant's new evidence and proffered affidavits do tend to
discredit Rienbolt and Herrington's testimony. Given the balance of
the evidence in this case, defendant's post-conviction petition
arguments combine to make a substantial showing that his
constitutional rights were violated for purposes of requiring an
evidentiary hearing on defendant's post-conviction petition.
Coleman, 168 Ill. 2d at 537.
Ineffective Assistance at the Sentencing Hearing
Defendant next claims that Muller was ineffective for failing
to prepare and present sufficient mitigation evidence or witnesses
at the sentencing hearing. Defendant's sentencing hearing lasted
one day and occurred the day after the trial ended. Muller's
presentation at the sentencing hearing consisted solely of a short
statement on defendant's lack of a serious criminal history. He
presented no witnesses or other evidence in mitigation. Defendant
asks for an evidentiary hearing on this issue.
Failure to offer evidence in mitigation does not necessarily
demonstrate deficient performance. Orange, 168 Ill. 2d at 167-68;
People v. Perez, 148 Ill. 2d 168, 186 (1992). Ineffective-
assistance-of-counsel claims concerning a sentencing hearing must
show that counsel's performance fell below minimal professional
standards and that a reasonable probability exists that the
sentence was affected by the poor performance. Orange, 168 Ill. 2d
at 168. Courts are highly deferential of trial counsel's strategic
decisions regarding the presentation of mitigation evidence.
Orange, 168 Ill. 2d at 170. Such deference is not warranted,
however, where the lack of mitigation evidence results from
counsel's failure to properly investigate and prepare a defense.
Orange, 168 Ill. 2d at 170; Steidl, 142 Ill. 2d at 249.
Muller testified in his post-conviction deposition that he did
not prepare for the sentencing hearing. He believed that it was
highly unlikely that defendant would get the death penalty because
he did not have a serious criminal background. Muller was also
unaware that the sentencing hearing would immediately follow the
trial, and believed instead that he would have one or two weeks to
prepare. Muller further testified that he presented no mitigation
evidence or witnesses at defendant's request. In an affidavit
accompanying defendant's post-conviction petition, however,
defendant contends that he never told Muller that he did not want
to present evidence and witnesses in mitigation. Rather, defendant
asserts that he told Muller only that he did not wish to testify on
his own behalf, but that Muller could present other witnesses.
Defendant states that he had at least 10 family members present at
the sentencing hearing willing to testify on his behalf. Defendant
also provides the affidavits of 27 relatives, friends, and
neighbors who were willing to testify but were never contacted by
Muller.
Whether or not defendant had instructed Muller not to present
mitigating evidence is not dispositive, for while counsel's
decision to follow a capital defendant's instructions not to
present mitigating evidence will not necessarily support a claim of
ineffective assistance of counsel (Orange, 168 Ill. 2d at 169), a
defendant cannot knowingly waive his right to present mitigating
evidence without being fully apprised of the nature and extent of
the mitigation evidence available (People v. Madej, No. 77167, slip
op. at 9 (June 19, 1997)). Where defense counsel fails to conduct
an investigation that would reveal possible sources of mitigation,
a capital defendant cannot make a knowing waiver. Madej, slip op.
at 9. Here, Muller's own deposition testimony evidences that he did
not conduct a mitigation investigation. Therefore, any decision
made by defendant as to the presentation of evidence at the
mitigation hearing was not an informed one, and defendant could not
have made a knowing waiver of his right to present mitigation
evidence.
Muller's failure to conduct even a minimal investigation into
possible mitigation evidence raises serious questions as to the
effectiveness of his legal representation of defendant. The record
indicates that Muller's failure to present any evidence in
mitigation stems not from strategic considerations, but rather from
sheer lack of preparation and a personal belief that defendant
would not be sentenced to death. Muller, knowing he had no
mitigation evidence prepared, did not object or ask the judge for
a time extension when he was surprised to learn that the sentencing
hearing would commence the next day. Furthermore, the affidavits of
defendant's relatives and friends demonstrate that there were
several obvious mitigation witnesses--defendant's mother, brother,
and children, for example--who were ready to testify on short
notice and could easily have been called.
Muller's inaction is similar to other situations where this
court determined that a defense counsel's assistance fell below the
Strickland standard or at least warranted an evidentiary hearing.
See Caballero, 126 Ill. 2d 248 (evidentiary hearing ordered where
defense counsel waited until after defendant was convicted to
prepare for mitigation hearing, then held a group interview with
potential witnesses for one hour); Perez, 148 Ill. 2d 168 (court
remanded for a new sentencing hearing where defense counsel failed
to make even a minimal investigation into the defendant's
background, although he possessed information to do so); Thompkins,
161 Ill. 2d 148 (court remanded for an evidentiary hearing on
counsel's competency where defense counsel failed to contact a
number of the defendant's relatives and friends to testify in
mitigation).
Accordingly, we must consider whether, absent Muller's
allegedly deficient performance, there exists a reasonable
probability that the sentence would have been different. While we
observe that several of defendant's 27 affidavits are from persons
who were only acquaintances of defendant or had not had substantial
contact with defendant in the time directly before the murders,
other affidavits are from close family members and friends who
swear to defendant's considerate nature and dedication to family.
We cannot say that this testimony, coupled with defendant's lack of
serious prior criminal history, could not have altered the jury's
determination that there was no evidence that mitigated against
imposing the death sentence.
Based on Muller's lack of preparation at the sentencing
hearing and the weight of the missing mitigation evidence, we hold
that defendant's post-conviction petition has made a substantial
showing that Muller's performance constituted ineffective
assistance of counsel and that the trial court erred when it denied
defendant an evidentiary hearing on Muller's performance at the
sentencing hearing.
Newly Discovered Evidence
Lastly, defendant presents two new developments which he
asserts warrant an evidentiary hearing. The first involves
recantations of trial testimony. Rienbolt and Herrington both
recanted their trial testimony after the trial, Rienbolt in an
affidavit and Herrington in a statement made in front of a court
reporter, though both reaffirmed their trial testimony at the
section 2--1401 hearing. Rienbolt has since recanted her trial
testimony again, this time in a four-hour videotaped statement. As
we noted on direct appeal, the recantation of testimony is regarded
as inherently unreliable, and a court will not grant a new trial on
that basis except in extraordinary circumstances. Steidl, 142 Ill. 2d at 254, quoting People v. Marquis, 344 Ill. 261, 265 (1931).
Here, Rienbolt recanted once, recanted the recantation at the
section 2--1401 hearing, and has since recanted a second time. On
direct appeal, we noted that the first recantations were suspect,
in part because neither witness was represented by counsel during
the recantations, and no one from the State's Attorney's office was
present. Steidl, 142 Ill. 2d at 255. The record does not indicate
the conditions of or the reasons for Rienbolt's recantation
following the section 2--1401 hearing. If Rienbolt's attorney or
someone from the State's Attorney's office was present, the
recantation might be more credible. Because there was no physical
evidence linking the defendant to the crime scene, and further
given that the evidence against the defendant was comprised solely
of witness testimony, we believe that this specific situation
warrants a review of Rienbolt's new recantation at an evidentiary
hearing.
Second, defendant's post-conviction petition discloses
heretofore unknown facts that indicate Rienbolt and Herrington
received money from the State after the trial. Rienbolt received
$2,500 "relocation money" in August 1987: $600 paid to her, $900
paid for past-due rent, and $1,000 retained by a police detective
until Rienbolt relocated. Rienbolt testified at trial, however,
that she did not know of or expect a reward in this case. Defendant
asserts that an evidentiary hearing is necessary to determine if a
deal had been made before trial in return for which Rienbolt gave
testimony favorable to the State. The State counters that evidence
that Rienbolt planned on relocating after trial would have damaged,
rather than helped, defendant's case in that it would have made
defendant appear dangerous. Additionally, the money was received
after the trial and the sums were modest.
The knowing use of perjured testimony is a violation of a
defendant's due process rights. People v. Jimerson, 166 Ill. 2d 211, 223 (1995). This is true even when the testimony does not
relate to a material issue, but rather goes to the credibility of
the witness. People v. Martin, 46 Ill. 2d 565, 568 (1970). If a
prosecutor knowingly permits false testimony to be used, the
defendant is entitled to a new trial. Jimerson, 166 Ill. 2d at 224.
If Rienbolt knew she was to receive compensation of some kind and
did not so testify when asked, defendant's due process rights were
violated, regardless of whether such information could be construed
against defendant. Based on the record before the court, it is not
possible to determine whether Rienbolt knew she was to receive
money before the trial and on what basis that money was to be
given. Accordingly, the trial court erred in not holding an
evidentiary hearing at which evidence as to whether Rienbolt
expected to receive compensation could be adduced.
Defendant's post-conviction petition also includes a copy of
a piece of paper that indicates that Herrington received $240 in
November 1987 for "help" with the Rhoads investigation. Other
documents indicate that the $240 might have been to reimburse
Herrington for wages lost during the trial. Defendant argues that
even though the money was not received until after the trial, it is
still unknown whether Herrington expected to receive the money at
trial. Herrington, however, was never asked at trial whether he was
promised anything in exchange for his testimony. Defendant's post-
conviction petition has presented no evidence that Herrington lied
about any anticipated compensation or that the prosecution relied
on any false testimony, and therefore fails to make a substantial
showing that defendant's constitutional rights were violated. See
People v. Frank, 48 Ill. 2d 500 (1971) (where post-conviction
petition failed to state or support claim that the State knowingly
used false testimony, it is subject to dismissal without an
evidentiary hearing). We cannot say that the trial court erred in
refusing to hold an evidentiary hearing on whether Herrington
expected compensation for his testimony.
Substitution of Judge
Defendant's post-conviction proceedings were conducted by
Judge Paul Komada. At a June 5, 1989, motion hearing on defendant's
section 2--1401 petition, Judge Komada informed the parties that he
was acquainted with Illinois State Police Special Agent Jack
Eckerty, who was an investigator on the case. Four days after this
announcement, Judge Komada purchased a houseboat from Eckerty.
After the section 2--1401 hearing, and before post-conviction
proceedings, Judge Komada bought a second houseboat from Eckerty.
Judge Komada did not disclose the second purchase to the parties.
On April 3, 1992, defendant filed the first of three motions
to substitute Judge Komada. The first motion, amended September 9,
1992, alleged that Judge Komada's business relationship with
Eckerty indicated that Judge Komada was predisposed to have special
faith in Eckerty's credibility. The second motion to substitute,
filed on November 25, 1992, dealt again with Judge Komada's connec-
tion with Eckerty and also his association with defendant's trial
counsel Muller, who had been Judge Komada's law partner
approximately 15 years earlier. Defendant filed the third petition
for substitution on July 18, 1994, after Judge Komada reported
post-conviction defense counsel Michael Metnick to the Attorney
Registration and Disciplinary Commission (ARDC). The report to the
ARDC stemmed from comments made to the press by Metnick's
investigator, William Clutter. Clutter alleged that Muller
conducted an inadequate investigation and defense of defendant's
case. Judge Komada was displeased that Metnick's investigator was
discussing details of an ongoing case with the press and filed a
report on Metnick with the ARDC, which was later dismissed without
investigation. All three motions for substitution were denied.
Defendant contends that the trial court erred when it denied his
motions to substitute.
The decision to disqualify a judge is not one to be made
lightly. People v. Vance, 76 Ill. 2d 171 (1979). A defendant does
not have an absolute right to a substitution of judge at a post-
conviction proceeding. People v. Hall, 157 Ill. 2d 324, 331 (1993).
Rather, a defendant must show that he will be substantially
prejudiced if his motion for substitution is denied. Vance, 76 Ill. 2d at 178; Hall, 157 Ill. 2d at 331. Defendant's first two
petitions for substitution of judge allege that the judge was
familiar with a detective on the case and with defendant's trial
counsel. These allegations are insufficient to demonstrate bias.
The mere fact the judge has some kind of relationship with someone
involved in the case, without more, is insufficient to establish
judicial bias or to warrant a judge's removal from the case. See
People v. McLain, 226 Ill. App. 3d 892 (1992) (the fact that the
trial judge and the prosecutor were neighbors, the judge's wife was
the godmother of one of the State's Attorney's children, and the
judge chaired the State's Attorney's election campaign did not
require judge's recusal, especially considering that the case was
prosecuted by an assistant State's Attorney); People v. Anderson,
95 Ill. App. 3d 143 (1981) (defendant was not deprived of an
impartial judge where the judge was a former neighbor of a
prosecution witness); United States v. Kehlbeck, 766 F. Supp. 707,
711 (S.D. Ind. 1990) (where defendant alleged that judge could not
be impartial where the judge had socialized with a witness, the
court disagreed, stating that "[r]arely does a judge's mere
acquaintance with a party or witness justify recusal"), citing Clay
v. Doherty, 608 F. Supp. 295 (N.D. Ill. 1985) (where judge's
acquaintance with key witness did not justify recusal). At the time
of the petitions, there was no evidence that Judge Komada's
dealings with Eckerty or prior professional association with Muller
colored his decisions.
Defendant's third petition protests that Judge Komada reported
defendant's post-conviction counsel to the ARDC. In People v. Hall,
the court discussed how a judge is presumed to be impartial even
after extreme provocation. To hold otherwise would encourage unruly
courtroom behavior as a tactic designed to garner a new judge or
new trial. Hall, 157 Ill. 2d at 333. Rather, the trial record
should be examined to discern signs of bias before a judgment is
made on the judge's partiality. Hall, 157 Ill. 2d at 333. In the
case at bar, the fact that counsel's behavior displeased the judge,
whether the displeasure was ultimately unfounded or not, cannot be
used as an automatic basis for recusal. Our review of the post-
conviction proceedings does not reveal evidence of bias towards
defendant based on the ARDC reporting incident. Therefore, the
trial court did not err in denying defendant's petitions for
substitution of judge.
Defendant's post-conviction petition makes an additional claim
that Judge Komada relied on personal knowledge of Muller's
performance in other cases to make his decision on defendant's
claims of ineffective assistance of counsel. Upon denying
defendant's request for an evidentiary hearing on his post-
conviction petition, Judge Komada stated:
"Petitioner's trial counsel has appeared before it
on numerous other occasions involving both criminal and
civil cases and has effectively represented clients. In
a serious felony case tried before this Court, the Court
recalls a defendant being found not guilty by a jury
although the evidence against the defendant was
substantial. The result was probably attributable to
counsel's tactics in presenting the case to the jury.
The court is also aware of a homicide case tried by
petitioner's trial counsel to a jury in Vermilion County,
Illinois. In that case, the defendant was found not
guilty by jury in spite of eyewitness testimony. A
result, again, probably attributable to trial counsel's
tactics. In the pending post-conviction petition, the
court is of the opinion petitioner has failed to
establish ineffective assistance of counsel falling below
an objective standard of reasonableness or that he was
prejudiced by his attorney's performance so as to deny
him a fair trial."
We find that defendant's argument concerning Judge Komada's
comments regarding Muller's competency has merit. Deliberations of
the court must necessarily be limited to the record before it.
People v. Rivers, 410 Ill. 410, 416 (1951); People v. Cooper, 398 Ill. 468, 472 (1947). While all judges come to the courtroom
influenced, either consciously or unconsciously, by the
experiences, associations, and prejudices developed over a
lifetime, they are expected to make an effort to put those
predilections aside and make determinations based only upon the
evidence presented. Vance, 76 Ill. 2d at 179. Judge Komada's
statements upon denial of the evidentiary hearing indicate that he
relied on personal knowledge of Muller's performance in previous
cases to determine his competency in the instant case. In so doing,
Judge Komada considered information outside the record, which is
prejudicial error. Cooper, 398 Ill. at 472; People v. Holmes, 69 Ill. 2d 507, 516-19 (1978). Judge Komada's remarks indicate that
his associations with Muller have rendered him biased against
defendant's ineffective-assistance claims. Therefore, we hold that
Judge Komada should be recused from further consideration of this
case.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Edgar County dismissing the defendant's post-conviction petition
without an evidentiary hearing is reversed. We remand to the
circuit court for an evidentiary hearing in front of a newly
substituted judge.
Circuit court judgment reversed;
cause remanded with directions.
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. 80341--Agenda 4--March 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GORDON "RANDY"
STEIDL, Appellant.
Opinion filed September 18, 1997.
JUSTICE HEIPLE delivered the opinion of the court:
Defendant, Gordon "Randy" Steidl, and codefendant, Herbert
Whitlock, were indicted for the murders of Dyke and Karen Rhoads.
Defendant's case was severed from Whitlock's. Following a jury
trial, defendant was found guilty of both murders. The jury found
defendant eligible for the death penalty and that there were no
mitigating factors sufficient to preclude a sentence of death.
Defendant was sentenced to death and his sentence and conviction
were upheld by this court on direct appeal. People v. Steidl, 142 Ill. 2d 204 (1991).
Defendant subsequently filed a petition for post-judgment re-
lief under section 2--1401 of the Civil Practice Law (735 ILCS
5/2--1401 (West 1994)) based on recantations of testimony by two
key State witnesses. The section 2--1401 petition was denied when
the witnesses withdrew their recantations at the hearing. Plaintiff
then filed a petition under the Post-Conviction Hearing Act (725
ILCS 5/122--1 et seq. (West 1994)). The petition was later amended.
During the proceedings on the amended post-conviction petition,
defendant filed three motions for substitution of judge. All three
motions were denied, and the court subsequently dismissed the post-
conviction petition without an evidentiary hearing.
Defendant now appeals the denial of his amended post-
conviction petition without an evidentiary hearing, arguing that he
has presented substantial evidence to establish that he received
ineffective assistance of counsel at trial and at the sentencing
hearing. He further contends that the trial court erred when it de-
nied his motions for substitution of judge. For the reasons
detailed below, we reverse and remand for an evidentiary hearing on
defendant's post-conviction petition in front of a newly
substituted judge.
BACKGROUND
At 4:39 a.m. on July 6, 1986, firefighters responded to the
report of a fire at a house in Paris, Illinois. The firefighters
found that the fire had been set in two separate locations in the
home. Although the fire had destroyed much of the downstairs area,
the upstairs had received mostly smoke damage. The firefighters
discovered the naked bodies of Dyke and Karen Rhoads in an upstairs
bedroom. Dyke was lying on the floor near the bedroom door and had
been stabbed 28 times. His fatal wound was below the left armpit
and was six inches deep. Karen was on the floor near the foot of
the bed with a pillow covering her face, and had been stabbed 26
times. She had two possibly fatal wounds, one under her right
armpit, the other in her chest. The former was also six inches
deep. None of the physical evidence found at the scene was linked
to the defendant.
The State offered two key witnesses at trial, Deborah Rienbolt
and Darrell Herrington. Rienbolt testified that she was a drug
addict and alcoholic, and that she knew defendant and Whitlock from
around town and from drug dealing. Rienbolt testified that
approximately one month before the murders she had heard defendant
and Whitlock talking to Dyke Rhoads about drug deals and that she
had accompanied Whitlock to the Rhoads house a few times. During
the visits, Rienbolt remained outside while Whitlock spoke to Dyke
Rhoads about drugs.
Rienbolt further testified that on the morning of July 5,
1986, she was at a bar called Jeanie's Place, where she overheard
a conversation between Whitlock and Dyke Rhoads. Dyke wanted out of
a drug deal and gave Whitlock some money toward this end. Whitlock
told Dyke that it was not that easy to get out. That afternoon
Rienbolt decided not to go to work. She either had a coworker punch
her in or punched herself in and then left. Rienbolt then borrowed
a car from a friend and drove to the house of another friend,
Barbara Furry. She and Furry smoked marijuana. Around 8:30 that
evening, Rienbolt went to a local bar called the Tap Room, where
she encountered the defendant, Whitlock, Herrington, and an
unidentified man.
Rienbolt further testified that, later that night, she went to
the American Legion, possibly with Barbara Furry, but stayed
outside until closing time at midnight. At closing, defendant,
Whitlock, Herrington, and the unidentified man exited the Legion.
Whitlock approached Rienbolt and asked her for a hunting knife that
belonged to her husband, which she had brought with her in response
to Whitlock's earlier requests for the knife. Rienbolt gave
Whitlock the knife. Whitlock told her that he had some business to
take care of, mentioning Dyke Rhoads and drug deals. Rienbolt then
proceeded alone to the Rhoads residence, where she observed
defendant's car parked next to the house. She entered the house
through the back door and went upstairs to a bedroom. Upon entering
the bedroom, she noticed a broken lamp in the room, a piece of
which somebody was holding. Dyke and Karen Rhoads were in the
bedroom, as were defendant and Whitlock. Defendant and Whitlock
stopped Dyke Rhoads as he stumbled to the doorway. Defendant and
Whitlock began stabbing Dyke with the knife Rienbolt had given
Whitlock. Meanwhile Rienbolt held Karen down. She continued to hold
Karen as defendant and Whitlock stabbed Karen. Rienbolt testified
that everything "got real fuzzy at that point," but she did
remember the position of the bodies in the room. She also recalled
a fire. Rienbolt testified that Whitlock returned her knife later
that morning and that she cleaned it by soaking it in hot water and
picking the blood out of the crevices. A subsequent forensic
examination of the knife revealed no traces of blood, although
animal hairs were found.
In February 1987, Rienbolt made the first of several
statements to the police. The events surrounding the murders in
Rienbolt's statements varied, but she admitted more involvement in
the murders with each successive statement. In April 1987, Rienbolt
entered into a plea agreement whereby she pled guilty to
concealment of a homicidal death in exchange for a five-year prison
sentence.
Herrington testified that he was an alcoholic and that on July
5, 1986, he drank continuously from noon until midnight. He
testified that he was with defendant and Whitlock at the Tap Room
and the American Legion the evening of July 5. When the American
Legion closed, he asked defendant for a ride home. Defendant
agreed, but drove with him and Whitlock to the Rhoads house first.
Herrington slept in the car while defendant and Whitlock went
inside the house. Herrington was awakened by a sound and used a
credit card to open the locked back door. He heard a woman scream,
and inside the house he encountered defendant holding a knife.
Herrington left the house. Whitlock later came outside and drove
off. Herrington went back inside the house, going upstairs into the
bedroom. There he observed the bodies of Dyke and Karen Rhoads.
Herrington picked up a pillow and threw it on Karen's face.
Defendant told Herrington that he would suffer the same fate if he
told anyone what had happened. Soon thereafter Whitlock returned
with gallon jugs. Defendant threatened Herrington again and told
him to leave. Herrington then ran for home. He testified that he
saw no one other than himself, defendant, Whitlock, and the victims
at the Rhoads residence.
Defendant testified that at about 9:30 p.m. on July 5 he was
at the Barn Tavern with Nanette Klein, Christy Ferris, and Dennis
Ouzleman. Around 10:30 p.m. he left the Barn Tavern and went to the
American Legion by himself. At approximately 12:15 a.m. he left the
American Legion alone, dropped his car off at his apartment, and
walked to the Horseshoe Tavern, where he met up with Klein, Ferris,
and Ouzleman. After about 15 minutes, at around 12:50 a.m., the
group left and returned to Ouzleman's apartment, which was in the
same building as defendant's apartment. The four then smoked some
marijuana. Defendant and Ferris subsequently returned to
defendant's apartment, where they both remained until approximately
3 a.m., at which time defendant left to mail his unemployment forms
to insure the timely arrival of his unemployment check. On his way
out, defendant encountered Klein in the yard and told her what he
was doing. When defendant returned to the apartment about five
minutes later, Klein and Ferris left. Defendant went to bed and
slept until 11:30 that morning.
ANALYSIS
A proceeding brought under the Post-Conviction Act is a col-
lateral attack on a judgment of conviction. The inquiry in a post-
conviction petition is limited to allegations of constitutional
violations that were not and could not have been raised previously.
People v. Eddmonds, 143 Ill. 2d 501, 510 (1991). The petitioner is
entitled to an evidentiary hearing only upon making a substantial
showing that he suffered a substantial deprivation of
constitutional rights. People v. Coleman, 168 Ill. 2d 509, 537
(1995). In making that determination, all well-pleaded facts in the
petition and any accompanying affidavits are taken as true. People
v. Caballero, 126 Ill. 2d 248, 259 (1989). The determinations of
the trial court, however, will not be disturbed absent manifest
error. People v. Franklin, 167 Ill. 2d 1, 9 (1995).
Ineffective Assistance of Counsel
Defendant's claims of ineffective assistance of counsel fall
into two general areas: (1) failure to conduct an investigation and
to impeach the State's key witness at trial; and (2) failure to
prepare and present evidence in mitigation at the sentencing
hearing. Defendant maintains that the cumulative effect of these
errors constituted ineffective assistance of counsel.
To establish a claim of ineffective assistance of counsel,
defendant must show both that counsel's performance was deficient
and that he was substantially prejudiced by the deficient
performance. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). An attorney is required
to provide reasonable assistance within the range of prevailing
professional norms. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at
693-94, 104 S. Ct. at 2064-65; Caballero, 126 Ill. 2d at 260. The
court, however, must indulge in a strong presumption that counsel's
performance was competent and that all decisions were made while
exercising reasonable professional judgment. Strickland, 466 U.S.
at 690-91, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066; People v.
Thompkins, 161 Ill. 2d 148, 161 (1994). Additionally, even if an
attorney's performance was incompetent, a defendant must still
establish that he was prejudiced by the attorney's errors such that
there exists a reasonable probability that, but for the counsel's
deficient performance, the fact finder would have entertained
reasonable doubt as to the defendant's guilt. Strickland, 466 U.S.
at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69; Caballero, 126 Ill. 2d at 260.
At the outset we note that in a post-conviction petition,
issues that were raised and decided on direct appeal are barred by
the doctrine of res judicata, and any claim that could have been
presented on direct appeal but was not is deemed waived. People v.
Thompkins, 161 Ill. 2d at 157-58; People v. Del Vecchio, 129 Ill. 2d 265, 275 (1989). The doctrines of res judicata and waiver are
relaxed, however, if fundamental fairness so requires. Thompkins,
161 Ill. 2d at 158. Defendant contends that the evidence contained
in his post-conviction petition is newly discovered and the
doctrines of res judicata and waiver do not apply. Generally,
claims of ineffective assistance of counsel are waived if they are
not raised on direct appeal. People v. Orange, 168 Ill. 2d 138, 149
(1995). Where facts relating to the competency of counsel are not
in the record or are newly discovered, however, the waiver rule is
relaxed. Orange, 168 Ill. 2d at 149. Except where noted below,
defendant's post-conviction petition presents new arguments or new
evidence not considered on direct appeal and will therefore be
considered.
Ineffective Assistance at Trial
Defendant asserts that his trial attorney, S. John Muller,
rendered ineffective assistance in failing to conduct an investiga-
tion of the crime scene, failing to locate and subpoena crucial
witnesses, and failing to properly impeach Rienbolt at trial.
Consequently, Muller missed opportunities to discredit Rienbolt and
Herrington's version of events. Defendant's post-conviction counsel
conducted an investigation of the crime scene and retained experts
who examined the evidence and arrived at conclusions contrary those
argued by the State at trial. Defendant asserts that his case was
prejudiced because the jury never heard this evidence. The post-
conviction investigation of the crime scene focused on three pieces
of evidence: the knife wounds, a broken lamp, and a pillow.
The victims' autopsies revealed that the fatal wounds on both
victims were six inches deep and 2.5 centimeters wide. The knife
that Rienbolt testified she gave to Whitlock to use in the murders
was five inches long and 1.3 centimeters wide at its widest point,
with a locking mechanism above the hilt (hereinafter, the Rienbolt
knife). Police investigators, however, had discovered another knife
in the kitchen sink of the Rhoads home (hereinafter, the kitchen
sink knife). The kitchen sink knife was eight inches long and 2.4
centimeters wide and had no locking mechanism. Crime scene
photographs of the kitchen sink knife were taken, and it was
collected as evidence. The discovery of the kitchen sink knife was
noted in a supplemental police report dated August 12, 1986.
Muller, however, never learned of the kitchen sink knife, and its
existence was first discovered and raised after defendant's
conviction.
At trial, Dr. John Murphy, the pathologist who performed the
autopsy, testified that the Rienbolt knife was compatible with the
victims' wounds. Defendant's post-conviction counsel retained
pathologist Dr. Michael Baden to examine the autopsy reports and
photographs, trial testimony, evidence, and the two knives. In an
affidavit attached to the post-conviction petition, Dr. Baden
states that if the Rienbolt knife had been used, he would have
expected to see bruising and abrasions, known as hilt marks, around
the edges of the stab wounds. There were no hilt marks on the
victims' bodies. Dr. Baden concluded that the kitchen sink knife
was more compatible with the wounds than the Rienbolt knife. An
affidavit by Dr. Murphy was also submitted with defendant's post-
conviction petition. In the affidavit, Dr. Murphy stated that since
the time of trial he had viewed photographs of the kitchen sink
knife. He opined that due to the compressibility of a young
person's rib cage and chest wall, the five-inch blade of the
Rienbolt knife could have made wounds six inches deep. Although Dr.
Murphy would not speculate as to which knife was the more likely
murder weapon, he did concede that he would have expected the
locking mechanism above the hilt of the Rienbolt knife to leave a
mark adjacent to the stab wounds. No marks were observed at the
time of the autopsy. Defendant's post-conviction petition also
includes the notes of police officer Kevin Ring, who was present at
Karen Rhoads' autopsy. Ring's notes contained the comment, "Knife
blade at least 6" long Dr. Murphy adv. 5:50 p.m."
Defendant asserts that the kitchen sink knife was the likely
murder weapon, not the Rienbolt knife. He argues that by not con-
ducting an investigation of the crime scene Muller missed an
obvious opportunity to bring this suggestion before the court.
Defendant notes that Muller did not question Dr. Murphy about the
discrepancy between the length of the Rienbolt knife and the depth
of the wounds or about the absence of hilt marks around the wounds.
Defendant also points out that Muller did not ask Dr. Murphy about
the notation in Ring's notes. Nor did he retain his own expert to
counter Dr. Murphy's testimony at trial. Muller thus missed a vital
opportunity to discredit Rienbolt's testimony that the knife she
supplied was used in the murders.
Defendant's post-conviction petition also discloses
discrepancies regarding testimony about a lamp. Rienbolt testified
that on the night of the murders she saw a broken lamp in the
Rhoads' bedroom and that somebody was holding a piece of it. A
broken lamp was later found in the bedroom, and the State used it
to corroborate Rienbolt's testimony. The lamp was not forensically
examined before trial. Post-conviction defense counsel had a
certified fire examiner examine the lamp. The examiner concluded,
based on the lack of smoke stains or soot marks on the inside of
the lamp, that the lamp was broken after the fire rather than
before. Defendant asserts that the lamp was most likely broken by
the firefighters who arrived at the scene. He argues that Muller's
failure to obtain expert examination of the lamp, at the very
least, deprived him of an opportunity to cast doubt on Rienbolt's
testimony.
Lastly, defendant's post-conviction petition raises questions
regarding Herrington's testimony about a pillow. Herrington
testified that he threw a pillow over Karen Rhoads' face after she
had been killed. Dr. Baden's affidavit, however, contends that it
was highly unlikely that the pillow was simply thrown onto Karen's
face. Rather, he believed that the pillow was forced onto her face
to suppress her screams while she was alive, as evidenced by a
witness who heard Karen's screams suddenly stop; the existence of
defensive wounds on Karen's arm; the position of the mattress and
the bed clothes, consistent with a struggle; and Karen's broken and
blood-smeared eyeglasses, found near her head, indicating that the
pillow was applied with sufficient force to break her glasses.
Defendant asserts that because Muller failed to retain an expert to
elicit this testimony at trial, he lost an opportunity to discredit
Herrington's testimony.
The State responds that these new contentions do not indicate
that Muller handled the evidence improperly, nor do they
necessarily exculpate defendant. The State asserts that Muller's
decision not to call a forensic expert regarding the knife wounds
was one of trial strategy given that the difference between the
depth of the wounds and the length of the Rienbolt knife was a
matter of common sense easily understood by the jury. Moreover, the
State theorizes that both the Rienbolt knife and the kitchen sink
knife could have been used to inflict the victims' wounds. The
State next argues that the lamp evidence is inconclusive because
Rienbolt did not testify to the extent the lamp was broken when she
saw it. Thus, at the time of the murders, it is possible that the
lamp was not yet broken to the extent necessary for soot to settle
inside. Finally, the State maintains that Dr. Baden's analysis of
the pillow and Herrington's testimony are not inconsistent. It is
possible that the pillow was first used to muffle Karen's screams
during a struggle, was removed or fell off her face later, and was
subsequently replaced by Herrington.
Defendant further asserts that Muller's faulty investigation
also resulted in missed opportunities to impeach Rienbolt with
witnesses whose affidavits were attached to defendant's post-
conviction petition. Muller never met with alibi witness Dennis
Ouzleman or called him to testify. Barbara Furry was never
subpoenaed to dispute under oath Rienbolt's testimony that she and
Furry went to the American Legion together July 5. Likewise,
Rienbolt's supervisor was not called, notwithstanding her statement
that her log indicated that Rienbolt was present at work on July 5,
contrary to Rienbolt's testimony. Nor was Eva Jean Trover, the
owner-operator of Jeanie's Place, asked to testify, though her
affidavit states that she did not see Rienbolt, Rhoads, Whitlock,
or defendant in her establishment during the day of July 5. Curtis
Smith, a bartender at the Tap Room, was not called to testify that
he did not observe Whitlock or Rienbolt in the Tap Room on the
night of July 5 and could provide the names of several persons who
were there who could verify this observation.
Defendant finally contends that Muller rendered ineffective
assistance of counsel in failing to impeach Rienbolt's testimony at
trial with three previous inconsistent pretrial statements Rienbolt
made to the police. On direct appeal, however, defendant had also
asserted that Muller was ineffective for failing to use the
contents of three pretrial statements to impeach Rienbolt's
testimony. This court found that the inconsistencies between
Rienbolt's statements did not work to exonerate defendant and that
Muller's cross-examination of Rienbolt was adequate. Steidl, 142 Ill. 2d at 242. Defendant's present argument is substantially the
same as the one he made on direct appeal, and defendant presents no
new evidence to support his related argument in his post-conviction
petition. It is therefore foreclosed by the doctrine of res
judicata. Thompkins, 161 Ill. 2d at 157.
We also observe that Muller testified in a deposition
conducted by post-conviction counsel that some of his decisions
were attributable to trial strategy. For example, he did not obtain
a forensics expert to testify as to the knife wounds because he
felt it unnecessary, as the discrepancy between the length of the
Rienbolt blade and the depth of the wounds was a matter of common
sense. He chose not to interview Ouzleman, who is hearing impaired
and cannot speak, because he believed Ouzleman's alibi testimony
would merely repeat the testimony of other alibi witnesses and that
he would have difficulty communicating on the stand. No strategic
explanation was provided, however, for Muller's failure to conduct
an investigation of the crime scene or interview and call some of
the post-conviction affiants to discredit the testimony of Rienbolt
and Herrington.
Defendant's post-conviction petition has identified several
instances where Muller's failure to investigate precluded the jury
from hearing evidence. The failure to interview witnesses may
indicate incompetence, particularly when the witnesses are known to
trial counsel and their testimony may be exonerating. People v.
Greer, 79 Ill. 2d 103, 123 (1980). Whether a failure to investigate
amounts to incompetency depends upon the value of the evidence to
the case. People v. Lopez, 242 Ill. App. 3d 160, 171 (1993). The
evidence in this case was closely balanced. No physical evidence
linked defendant to the crime scene and defendant presented an
alibi. The jury's decision necessarily rested upon its judgment of
the credibility of the witnesses that came before it, primarily
Rienbolt and Herrington. Even considering the State's arguments
that the new evidence does not necessarily exonerate defendant,
defendant's new evidence and proffered affidavits do tend to
discredit Rienbolt and Herrington's testimony. Given the balance of
the evidence in this case, defendant's post-conviction petition
arguments combine to make a substantial showing that his
constitutional rights were violated for purposes of requiring an
evidentiary hearing on defendant's post-conviction petition.
Coleman, 168 Ill. 2d at 537.
Ineffective Assistance at the Sentencing Hearing
Defendant next claims that Muller was ineffective for failing
to prepare and present sufficient mitigation evidence or witnesses
at the sentencing hearing. Defendant's sentencing hearing lasted
one day and occurred the day after the trial ended. Muller's
presentation at the sentencing hearing consisted solely of a short
statement on defendant's lack of a serious criminal history. He
presented no witnesses or other evidence in mitigation. Defendant
asks for an evidentiary hearing on this issue.
Failure to offer evidence in mitigation does not necessarily
demonstrate deficient performance. Orange, 168 Ill. 2d at 167-68;
People v. Perez, 148 Ill. 2d 168, 186 (1992). Ineffective-
assistance-of-counsel claims concerning a sentencing hearing must
show that counsel's performance fell below minimal professional
standards and that a reasonable probability exists that the
sentence was affected by the poor performance. Orange, 168 Ill. 2d
at 168. Courts are highly deferential of trial counsel's strategic
decisions regarding the presentation of mitigation evidence.
Orange, 168 Ill. 2d at 170. Such deference is not warranted,
however, where the lack of mitigation evidence results from
counsel's failure to properly investigate and prepare a defense.
Orange, 168 Ill. 2d at 170; Steidl, 142 Ill. 2d at 249.
Muller testified in his post-conviction deposition that he did
not prepare for the sentencing hearing. He believed that it was
highly unlikely that defendant would get the death penalty because
he did not have a serious criminal background. Muller was also
unaware that the sentencing hearing would immediately follow the
trial, and believed instead that he would have one or two weeks to
prepare. Muller further testified that he presented no mitigation
evidence or witnesses at defendant's request. In an affidavit
accompanying defendant's post-conviction petition, however,
defendant contends that he never told Muller that he did not want
to present evidence and witnesses in mitigation. Rather, defendant
asserts that he told Muller only that he did not wish to testify on
his own behalf, but that Muller could present other witnesses.
Defendant states that he had at least 10 family members present at
the sentencing hearing willing to testify on his behalf. Defendant
also provides the affidavits of 27 relatives, friends, and
neighbors who were willing to testify but were never contacted by
Muller.
Whether or not defendant had instructed Muller not to present
mitigating evidence is not dispositive, for while counsel's
decision to follow a capital defendant's instructions not to
present mitigating evidence will not necessarily support a claim of
ineffective assistance of counsel (Orange, 168 Ill. 2d at 169), a
defendant cannot knowingly waive his right to present mitigating
evidence without being fully apprised of the nature and extent of
the mitigation evidence available (People v. Madej, No. 77167, slip
op. at 9 (June 19, 1997)). Where defense counsel fails to conduct
an investigation that would reveal possible sources of mitigation,
a capital defendant cannot make a knowing waiver. Madej, slip op.
at 9. Here, Muller's own deposition testimony evidences that he did
not conduct a mitigation investigation. Therefore, any decision
made by defendant as to the presentation of evidence at the
mitigation hearing was not an informed one, and defendant could not
have made a knowing waiver of his right to present mitigation
evidence.
Muller's failure to conduct even a minimal investigation into
possible mitigation evidence raises serious questions as to the
effectiveness of his legal representation of defendant. The record
indicates that Muller's failure to present any evidence in
mitigation stems not from strategic considerations, but rather from
sheer lack of preparation and a personal belief that defendant
would not be sentenced to death. Muller, knowing he had no
mitigation evidence prepared, did not object or ask the judge for
a time extension when he was surprised to learn that the sentencing
hearing would commence the next day. Furthermore, the affidavits of
defendant's relatives and friends demonstrate that there were
several obvious mitigation witnesses--defendant's mother, brother,
and children, for example--who were ready to testify on short
notice and could easily have been called.
Muller's inaction is similar to other situations where this
court determined that a defense counsel's assistance fell below the
Strickland standard or at least warranted an evidentiary hearing.
See Caballero, 126 Ill. 2d 248 (evidentiary hearing ordered where
defense counsel waited until after defendant was convicted to
prepare for mitigation hearing, then held a group interview with
potential witnesses for one hour); Perez, 148 Ill. 2d 168 (court
remanded for a new sentencing hearing where defense counsel failed
to make even a minimal investigation into the defendant's
background, although he possessed information to do so); Thompkins,
161 Ill. 2d 148 (court remanded for an evidentiary hearing on
counsel's competency where defense counsel failed to contact a
number of the defendant's relatives and friends to testify in
mitigation).
Accordingly, we must consider whether, absent Muller's
allegedly deficient performance, there exists a reasonable
probability that the sentence would have been different. While we
observe that several of defendant's 27 affidavits are from persons
who were only acquaintances of defendant or had not had substantial
contact with defendant in the time directly before the murders,
other affidavits are from close family members and friends who
swear to defendant's considerate nature and dedication to family.
We cannot say that this testimony, coupled with defendant's lack of
serious prior criminal history, could not have altered the jury's
determination that there was no evidence that mitigated against
imposing the death sentence.
Based on Muller's lack of preparation at the sentencing
hearing and the weight of the missing mitigation evidence, we hold
that defendant's post-conviction petition has made a substantial
showing that Muller's performance constituted ineffective
assistance of counsel and that the trial court erred when it denied
defendant an evidentiary hearing on Muller's performance at the
sentencing hearing.
Newly Discovered Evidence
Lastly, defendant presents two new developments which he
asserts warrant an evidentiary hearing. The first involves
recantations of trial testimony. Rienbolt and Herrington both
recanted their trial testimony after the trial, Rienbolt in an
affidavit and Herrington in a statement made in front of a court
reporter, though both reaffirmed their trial testimony at the
section 2--1401 hearing. Rienbolt has since recanted her trial
testimony again, this time in a four-hour videotaped statement. As
we noted on direct appeal, the recantation of testimony is regarded
as inherently unreliable, and a court will not grant a new trial on
that basis except in extraordinary circumstances. Steidl, 142 Ill. 2d at 254, quoting People v. Marquis, 344 Ill. 261, 265 (1931).
Here, Rienbolt recanted once, recanted the recantation at the
section 2--1401 hearing, and has since recanted a second time. On
direct appeal, we noted that the first recantations were suspect,
in part because neither witness was represented by counsel during
the recantations, and no one from the State's Attorney's office was
present. Steidl, 142 Ill. 2d at 255. The record does not indicate
the conditions of or the reasons for Rienbolt's recantation
following the section 2--1401 hearing. If Rienbolt's attorney or
someone from the State's Attorney's office was present, the
recantation might be more credible. Because there was no physical
evidence linking the defendant to the crime scene, and further
given that the evidence against the defendant was comprised solely
of witness testimony, we believe that this specific situation
warrants a review of Rienbolt's new recantation at an evidentiary
hearing.
Second, defendant's post-conviction petition discloses
heretofore unknown facts that indicate Rienbolt and Herrington
received money from the State after the trial. Rienbolt received
$2,500 "relocation money" in August 1987: $600 paid to her, $900
paid for past-due rent, and $1,000 retained by a police detective
until Rienbolt relocated. Rienbolt testified at trial, however,
that she did not know of or expect a reward in this case. Defendant
asserts that an evidentiary hearing is necessary to determine if a
deal had been made before trial in return for which Rienbolt gave
testimony favorable to the State. The State counters that evidence
that Rienbolt planned on relocating after trial would have damaged,
rather than helped, defendant's case in that it would have made
defendant appear dangerous. Additionally, the money was received
after the trial and the sums were modest.
The knowing use of perjured testimony is a violation of a
defendant's due process rights. People v. Jimerson, 166 Ill. 2d 211, 223 (1995). This is true even when the testimony does not
relate to a material issue, but rather goes to the credibility of
the witness. People v. Martin, 46 Ill. 2d 565, 568 (1970). If a
prosecutor knowingly permits false testimony to be used, the
defendant is entitled to a new trial. Jimerson, 166 Ill. 2d at 224.
If Rienbolt knew she was to receive compensation of some kind and
did not so testify when asked, defendant's due process rights were
violated, regardless of whether such information could be construed
against defendant. Based on the record before the court, it is not
possible to determine whether Rienbolt knew she was to receive
money before the trial and on what basis that money was to be
given. Accordingly, the trial court erred in not holding an
evidentiary hearing at which evidence as to whether Rienbolt
expected to receive compensation could be adduced.
Defendant's post-conviction petition also includes a copy of
a piece of paper that indicates that Herrington received $240 in
November 1987 for "help" with the Rhoads investigation. Other
documents indicate that the $240 might have been to reimburse
Herrington for wages lost during the trial. Defendant argues that
even though the money was not received until after the trial, it is
still unknown whether Herrington expected to receive the money at
trial. Herrington, however, was never asked at trial whether he was
promised anything in exchange for his testimony. Defendant's post-
conviction petition has presented no evidence that Herrington lied
about any anticipated compensation or that the prosecution relied
on any false testimony, and therefore fails to make a substantial
showing that defendant's constitutional rights were violated. See
People v. Frank, 48 Ill. 2d 500 (1971) (where post-conviction
petition failed to state or support claim that the State knowingly
used false testimony, it is subject to dismissal without an
evidentiary hearing). We cannot say that the trial court erred in
refusing to hold an evidentiary hearing on whether Herrington
expected compensation for his testimony.
Substitution of Judge
Defendant's post-conviction proceedings were conducted by
Judge Paul Komada. At a June 5, 1989, motion hearing on defendant's
section 2--1401 petition, Judge Komada informed the parties that he
was acquainted with Illinois State Police Special Agent Jack
Eckerty, who was an investigator on the case. Four days after this
announcement, Judge Komada purchased a houseboat from Eckerty.
After the section 2--1401 hearing, and before post-conviction
proceedings, Judge Komada bought a second houseboat from Eckerty.
Judge Komada did not disclose the second purchase to the parties.
On April 3, 1992, defendant filed the first of three motions
to substitute Judge Komada. The first motion, amended September 9,
1992, alleged that Judge Komada's business relationship with
Eckerty indicated that Judge Komada was predisposed to have special
faith in Eckerty's credibility. The second motion to substitute,
filed on November 25, 1992, dealt again with Judge Komada's connec-
tion with Eckerty and also his association with defendant's trial
counsel Muller, who had been Judge Komada's law partner
approximately 15 years earlier. Defendant filed the third petition
for substitution on July 18, 1994, after Judge Komada reported
post-conviction defense counsel Michael Metnick to the Attorney
Registration and Disciplinary Commission (ARDC). The report to the
ARDC stemmed from comments made to the press by Metnick's
investigator, William Clutter. Clutter alleged that Muller
conducted an inadequate investigation and defense of defendant's
case. Judge Komada was displeased that Metnick's investigator was
discussing details of an ongoing case with the press and filed a
report on Metnick with the ARDC, which was later dismissed without
investigation. All three motions for substitution were denied.
Defendant contends that the trial court erred when it denied his
motions to substitute.
The decision to disqualify a judge is not one to be made
lightly. People v. Vance, 76 Ill. 2d 171 (1979). A defendant does
not have an absolute right to a substitution of judge at a post-
conviction proceeding. People v. Hall, 157 Ill. 2d 324, 331 (1993).
Rather, a defendant must show that he will be substantially
prejudiced if his motion for substitution is denied. Vance, 76 Ill. 2d at 178; Hall, 157 Ill. 2d at 331. Defendant's first two
petitions for substitution of judge allege that the judge was
familiar with a detective on the case and with defendant's trial
counsel. These allegations are insufficient to demonstrate bias.
The mere fact the judge has some kind of relationship with someone
involved in the case, without more, is insufficient to establish
judicial bias or to warrant a judge's removal from the case. See
People v. McLain, 226 Ill. App. 3d 892 (1992) (the fact that the
trial judge and the prosecutor were neighbors, the judge's wife was
the godmother of one of the State's Attorney's children, and the
judge chaired the State's Attorney's election campaign did not
require judge's recusal, especially considering that the case was
prosecuted by an assistant State's Attorney); People v. Anderson,
95 Ill. App. 3d 143 (1981) (defendant was not deprived of an
impartial judge where the judge was a former neighbor of a
prosecution witness); United States v. Kehlbeck, 766 F. Supp. 707,
711 (S.D. Ind. 1990) (where defendant alleged that judge could not
be impartial where the judge had socialized with a witness, the
court disagreed, stating that "[r]arely does a judge's mere
acquaintance with a party or witness justify recusal"), citing Clay
v. Doherty, 608 F. Supp. 295 (N.D. Ill. 1985) (where judge's
acquaintance with key witness did not justify recusal). At the time
of the petitions, there was no evidence that Judge Komada's
dealings with Eckerty or prior professional association with Muller
colored his decisions.
Defendant's third petition protests that Judge Komada reported
defendant's post-conviction counsel to the ARDC. In People v. Hall,
the court discussed how a judge is presumed to be impartial even
after extreme provocation. To hold otherwise would encourage unruly
courtroom behavior as a tactic designed to garner a new judge or
new trial. Hall, 157 Ill. 2d at 333. Rather, the trial record
should be examined to discern signs of bias before a judgment is
made on the judge's partiality. Hall, 157 Ill. 2d at 333. In the
case at bar, the fact that counsel's behavior displeased the judge,
whether the displeasure was ultimately unfounded or not, cannot be
used as an automatic basis for recusal. Our review of the post-
conviction proceedings does not reveal evidence of bias towards
defendant based on the ARDC reporting incident. Therefore, the
trial court did not err in denying defendant's petitions for
substitution of judge.
Defendant's post-conviction petition makes an additional claim
that Judge Komada relied on personal knowledge of Muller's
performance in other cases to make his decision on defendant's
claims of ineffective assistance of counsel. Upon denying
defendant's request for an evidentiary hearing on his post-
conviction petition, Judge Komada stated:
"Petitioner's trial counsel has appeared before it
on numerous other occasions involving both criminal and
civil cases and has effectively represented clients. In
a serious felony case tried before this Court, the Court
recalls a defendant being found not guilty by a jury
although the evidence against the defendant was
substantial. The result was probably attributable to
counsel's tactics in presenting the case to the jury.
The court is also aware of a homicide case tried by
petitioner's trial counsel to a jury in Vermilion County,
Illinois. In that case, the defendant was found not
guilty by jury in spite of eyewitness testimony. A
result, again, probably attributable to trial counsel's
tactics. In the pending post-conviction petition, the
court is of the opinion petitioner has failed to
establish ineffective assistance of counsel falling below
an objective standard of reasonableness or that he was
prejudiced by his attorney's performance so as to deny
him a fair trial."
We find that defendant's argument concerning Judge Komada's
comments regarding Muller's competency has merit. Deliberations of
the court must necessarily be limited to the record before it.
People v. Rivers, 410 Ill. 410, 416 (1951); People v. Cooper, 398 Ill. 468, 472 (1947). While all judges come to the courtroom
influenced, either consciously or unconsciously, by the
experiences, associations, and prejudices developed over a
lifetime, they are expected to make an effort to put those
predilections aside and make determinations based only upon the
evidence presented. Vance, 76 Ill. 2d at 179. Judge Komada's
statements upon denial of the evidentiary hearing indicate that he
relied on personal knowledge of Muller's performance in previous
cases to determine his competency in the instant case. In so doing,
Judge Komada considered information outside the record, which is
prejudicial error. Cooper, 398 Ill. at 472; People v. Holmes, 69 Ill. 2d 507, 516-19 (1978). Judge Komada's remarks indicate that
his associations with Muller have rendered him biased against
defendant's ineffective-assistance claims. Therefore, we hold that
Judge Komada should be recused from further consideration of this
case.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Edgar County dismissing the defendant's post-conviction petition
without an evidentiary hearing is reversed. We remand to the
circuit court for an evidentiary hearing in front of a newly
substituted judge.
Circuit court judgment reversed;
cause remanded with directions.
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