People v. Erickson
Annotate this Case
People v. Erickson, No. 81321 (6/18/98)
Docket No. 81321--Agenda 8--September 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PAUL S.
ERICKSON, Appellant.
Opinion filed June 18, 1998.
JUSTICE NICKELS delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, defendant
was found guilty of the murder, rape, unlawful restraint and concealment of
a homicidal death in connection with the stabbing death of 15-year-old
Elizabeth Launer. The State sought imposition of the death penalty.
Defendant waived his right to a jury for sentencing. After a capital
sentencing hearing, the trial court sentenced defendant to death. This court
affirmed defendant's convictions and sentence. People v. Erickson, 117 Ill. 2d 271 (1987), cert. denied, 486 U.S. 1017, 100 L. Ed. 2d 216, 108 S. Ct. 1754 (1988). On November 30, 1990, defendant filed a petition for relief
under the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38,
par. 122--1 et seq.). The trial court dismissed the petition, and this court
affirmed the dismissal. People v. Erickson, 161 Ill. 2d 82 (1994).
Subsequently, on December 15, 1995, defendant filed a second post-
conviction petition, which was likewise dismissed by the trial court.
Defendant now appeals the trial court's dismissal of his second post-
conviction petition.
BACKGROUND
The factual background of defendant's trial is set forth in the opinion
in defendant's direct appeal (People v. Erickson, 117 Ill. 2d 271 (1987)) and
only a brief summary is necessary here. On the evening of July 30, 1982, the
victim, Elizabeth Launer, and four other teenagers, Lisa Soderberg, Renee
East, Thomas Fairweather and Michael Blanchard, assembled for a party.
The members of this group ranged in age from 13 to 16 years old.
Defendant, who was then 25 years old, agreed to purchase alcohol and to
rent a room for the group at the Holiday Inn in Rolling Meadows.
Fairweather and Blanchard testified for the State that defendant solicited
their help with a plan to rape Elizabeth Launer. The plan called for the
victim to be killed so that the rape would not be reported. After Lisa
Soderberg and Renee East left the party, defendant, Fairweather, Blanchard
and the victim drove to an apartment complex in Rolling Meadows in
defendant's car. Defendant had brought along neckties, which were used to
bind the victim's hands and to gag her.
Defendant used a knife to cut off the victim's clothes, at which point
Blanchard walked away from the car, indicating that he wanted no part of
what was occurring. According to Fairweather, defendant placed the victim
on the front seat of the car and positioned himself between her legs.
Fairweather heard the sound of a zipper being unzipped, and observed
defendant lower himself onto the victim. Later, defendant and Fairweather
walked the victim to a nearby retention pond. Fairweather held the victim's
head while defendant stabbed her to death. Fairweather and defendant threw
the victim's body and her clothing into the retention pond.
Defendant, Fairweather and Blanchard then returned to defendant's
car and left the scene. According to Blanchard, during the ride from the
scene defendant stated that he stabbed the victim in the heart, and he
commented on how the blood had spurted when he stabbed her. At the time
of trial, Fairweather had been charged as a juvenile with various offenses
including murder. Pursuant to an agreement with the State, he would plead
guilty to one of the charges and would receive a lenient sentence in
exchange for his truthful testimony against defendant. Blanchard had been
charged as a juvenile with concealment of a homicidal death, but the State
had agreed to dismiss the charge in exchange for Blanchard's truthful
testimony. Other witnesses for the State included Mickey Jaksch and Billy
Johnson, both of whom related conversations with defendant in which
defendant indicated that he had personally stabbed the victim.
Defendant testified on his own behalf. According to defendant,
Thomas Fairweather had expressed an interest in having sex with the victim
and discussed raping her. Defendant indicated that he held the victim's arms
while Fairweather tied her hands together at the Rolling Meadows apartment
complex. Defendant testified that he left the car at that point, and he did not
know whether Fairweather had raped the victim. According to defendant's
testimony, he and Fairweather walked the victim to the retention pond, at
which point Fairweather stabbed her. Defendant denied having sexual contact
with the victim.
Following the presentation of this evidence, the jury found defendant
guilty of murder, rape, unlawful restraint, and concealment of a homicidal
death. The State sought the death penalty, and defendant elected to be
sentenced by the court. At the first stage of the death penalty hearing, the
court found that defendant was eligible for the death penalty because the
victim was killed during the course of the felony of rape, and the victim was
actually killed by defendant and not another party to the crime. Ill. Rev. Stat.
1981, ch. 38, par. 9--1(b)(6).
At the second stage of sentencing, the State presented the testimony
of Billy Johnson, who described an incident that occurred about two weeks
before the murder of Elizabeth Launer. According to Johnson, defendant
suggested that they drive to O'Hare Airport to pick up a prostitute. Johnson
testified that defendant said they would kill the prostitute after having sex.
Rosalie Blackstock testified that in 1979 she encountered defendant, whom
she had met once before, at a restaurant in Lombard. According to
Blackstock, defendant forced her to have sex with him after she accepted his
offer of a ride. Marge Rader Bass testified that in 1979, defendant invited
her to a party in a motel room. When she and defendant arrived at the motel
room it was empty. After 15 or 20 minutes, defendant pinned Bass to the
bed and threatened to rape her or to tell her parents that she had seduced
him. When Bass threatened to scream, defendant released her and took her
home. About a week later the tires on Bass' car were slashed. About a week
after that, Bass again encountered defendant. Defendant displayed a knife.
While displaying a knife, defendant "apologized" for slashing Bass' tires and
stated that he should have slashed Bass instead.
Harvey Greenway, a detective with the Rolling Meadows police
department, related a conversation with Joanne Combs. Combs indicated that
she met defendant in March of 1980 when she was 14 years old and soon
became involved in a sexual relationship with defendant which resulted in
her becoming pregnant. Detective Greenway testified that Combs told him
defendant had slapped her on several occasions and threatened to kill her if
she told anyone the baby was his. Therese Moran testified that in 1981, at
the age of 15, she conceived a child with defendant. Finally, one of
defendant's fellow inmates in a Cook County jail hospital ward testified that
defendant boasted about the murder of Elizabeth Launer.
The sentencing proceedings took an unusual turn when defendant
commenced with the presentation of mitigating evidence. Defendant sought
to call John Weliczko as an expert witness. Initially, Weliczko testified that
he held a Masters degree in psychology from Harvard University and a
Ph.D. in psychology from the University of Chicago. On cross-examination,
however, Weliczko admitted that his degree from Harvard was in theological
studies rather than psychology. Weliczko's claimed doctoral degree was not
a Ph.D. from the University of Chicago, but a ministry degree from an
affiliated institution, the Chicago Theological Seminary. The trial court
found that Weliczko did not qualify as an expert in the field of psychology.
However, the trial court allowed Weliczko to testify as a lay witness with
respect to defendant's mental or emotional condition. Based on meetings
with defendant and with his parents, Weliczko offered the opinion that
defendant suffered from a narcissistic personality disorder. According to
Weliczko, defendant needed to be the center of attention. Weliczko portrayed
defendant to be deceitful and manipulative, but added that he was also
susceptible to manipulation by others because of his need for acceptance. A
written "psychological evaluation" prepared by Weliczko was admitted into
evidence.
At the conclusion of the second stage of the sentencing hearing, the
trial court determined that there were no mitigating factors sufficient to
preclude the imposition of the death penalty. The court sentenced defendant
to death.
ANALYSIS
I. The Post-Conviction Hearing Act
The Post-Conviction Hearing Act permits a defendant to mount a
collateral attack on his conviction and sentence based on violations of his
constitutional rights. People v. Coleman, 168 Ill. 2d 509, 522 (1995), People
v. Mahaffey, 165 Ill. 2d 445, 452 (1995). Post-conviction review is limited
to matters which have not been, and could not have been, previously
adjudicated. Coleman, 168 Ill. 2d at 522; People v. Brisbon, 164 Ill. 2d 236,
245 (1995). Determinations of the reviewing court on direct appeal are res
judicata as to issues actually decided, and issues that could have been raised
on direct appeal but were not are waived. Coleman, 168 Ill. 2d at 522;
Mahaffey, 165 Ill. 2d at 452. Moreover, a defendant is entitled to an
evidentiary hearing on a post-conviction claim only if he has made a
substantial showing, based on the record and supporting affidavits, that his
constitutional rights were violated. Coleman, 168 Ill. 2d at 537; People v.
Guest, 166 Ill. 2d 381, 389 (1995).
This is defendant's second post-conviction proceeding; as discussed
above, we previously affirmed the dismissal of defendant's first post-
conviction petition. The Post-Conviction Hearing Act contemplates the filing
of only one post-conviction petition, although successive petitions may be
allowed where the proceedings on the initial petition were deficient in some
fundamental way. People v. Flores, 153 Ill. 2d 264, 273-74 (1992). The Act
provides that any claim of a substantial denial of constitutional rights not
raised in the original or an amended petition is waived. 725 ILCS 5/122--3
(West 1996); see Flores, 153 Ill. 2d at 274. Moreover, a ruling on a post-
conviction petition has res judicata effect with respect to all claims that were
raised or could have been raised in the initial petition. Flores, 153 Ill. 2d at
274; People v. Free, 122 Ill. 2d 367, 375-76 (1988).
However, an exception to these procedural bars applies for claims of
ineffective assistance of counsel on direct appeal. This court has held that
a defendant's failure to raise a claim of ineffective assistance of appellate
counsel in his initial post-conviction petition will not operate as a waiver if
the defendant was represented by the same attorney on direct appeal and in
his initial post-conviction proceeding. In such cases, the claim of ineffective
assistance of appellate counsel may be raised for the first time in a second
post-conviction petition. See Flores, 153 Ill. 2d at 281-82. Mindful of these
principles, we turn to the issues presented on appeal.
II. Ineffective Assistance of Counsel
Defendant first argues that he was deprived of effective assistance of
counsel during sentencing. Claims of ineffective assistance of counsel based
on deficient representation of a criminal defendant are evaluated in
accordance with the two-prong test set forth in Strickland v. Washington,
466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Initially, the
defendant must show deficient performance. "This requires showing that
counsel made errors so serious that counsel was not functioning as the
`counsel' guaranteed the defendant by the Sixth Amendment." Strickland,
466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. The defendant
must establish that counsel's performance fell below an objective standard
of reasonableness. Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Judicial scrutiny of counsel's performance is highly deferential
and "a court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the
challenged action `might be considered sound trial strategy.' [Citation.]"
Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.
Once deficient performance is shown, the defendant must also
demonstrate prejudice in order to establish a claim of ineffective assistance
of counsel. Prejudice exists when "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.
Defendant contends that trial counsel's reliance on John Weliczko as
a mitigation witness, and counsel's concomitant failure at sentencing to
investigate and present available mitigating evidence of defendant's mental
or emotional condition, constitutes ineffective assistance of counsel. The
aspect of defendant's claim involving counsel's alleged failure to investigate
and present mitigating evidence was raised and rejected in defendant's first
post-conviction petition and is therefore procedurally barred under the
principles of res judicata set forth in People v. Flores, 153 Ill. 2d 264
(1992), and described above. In his first post-conviction petition, defendant
claimed that a proper investigation of mitigating evidence would have
revealed that defendant suffered psychological, emotional and sexual abuse
during childhood and that he had a history of alcohol and drug addiction.
Defendant supported these allegations with affidavits from two mental health
professionals. Defendant also submitted affidavits from two former teachers
who indicated that they could have testified on defendant's behalf at
sentencing if they had been contacted. See People v. Erickson, 161 Ill. 2d 82, 89-90 (1994). This court concluded, however, that defendant suffered no
prejudice under the Strickland test from trial counsel's failure to investigate
and present this evidence:
"[D]efendant, then 25 years old, enlisted the aid of two
juveniles to methodically chart a plan to isolate, bind, and gag a 15-
year-old girl for purposes of raping her, stabbing her to death, and,
in the end, concealing the corpse. (See Erickson, 117 Ill. 2d at 279-
83.) For those crimes, defendant was remorseless. He bragged about
the stabbing immediately after the deed. He boasted of the crimes
days after and even did so much later when detained in a county jail
awaiting trial. Other aggravating evidence, including the commission
of another rape at knife point and a third threatened one, attests to
some pattern of sexual assault against women.
Any laxity of counsel notwithstanding, what is offered to
bolster the ineffectiveness claim does not show the result would
`reasonably likely' have been different excluding the possibility of
arbitrariness. Briefly, the psychologists' reports could, at best, only
suggest what may have explained defendant's criminal behavior of
July of 1982. The evaluations were produced years after the crimes
and, apparently, without the aid of the trial record, which revealed,
through witnesses' testimony, defendant's actual behavior. The
affidavits of the teachers, one from fourth grade and one from high
school, disclose that neither maintained close contact with defendant
after he left their respective classrooms. And, if anything, they show
defendant to be polite, intelligent, and engaging, not a person
troubled by a disturbed psyche which might account for his criminal
behavior.
The record is also revealing as to the process of decision,
underscoring the lack of prejudice which might have been occasioned
by any deficiencies of counsel. The trial judge, whom defendant
elected to impose sentence, actually took into account the notion that
defendant may have suffered from a personality disorder. In addition,
the trial judge noted that a presentencing investigation report on
defendant revealed a background free of what might be normally
encountered given the nature of the crimes. It would appear, then,
that the trial judge on his own considered, and rejected, the gist of
what defendant hoped the evidence might show." Erickson, 161 Ill. 2d at 91-92.
In accordance with Flores, the above ruling is res judicata and forecloses
relitigation of defendant's failure to investigate claim in the present
proceeding.
Defendant contends that the principle of res judicata should be
relaxed in this case because the second post-conviction petition is supported
by evidence that was not presented with the first petition. In addition to the
evidence submitted with the first petition, the second petition contains an
affidavit from another mental health professional and affidavits from
defendant's mother and brother indicating that defendant's family and friends
were available to testify at sentencing. Defendant claims that the case at bar
is similar to People v. Eddmonds, 143 Ill. 2d 501 (1991), where the court
considered an ineffective assistance of counsel claim in a post-conviction
petition even though the claim had already been rejected on direct appeal.
The Eddmonds court noted that the rules of waiver and res judicata may be
relaxed where the facts relating to the issue of ineffective assistance of
counsel do not appear on the face of the record. Here, unlike Eddmonds,
defendant's specific claim of ineffective assistance of counsel was rejected
in the earlier post-conviction proceeding where defendant had a full
opportunity to develop the claim using evidence outside the trial record.
Now, however, defendant is attempting to relitigate this claim with new
affidavits that were not submitted with the first petition. Eddmonds does not
permit a defendant to develop the evidentiary basis for a claim in a
piecemeal fashion in successive post-conviction petitions, as defendant has
attempted to do here.
Defendant also insists that applying res judicata principles in this
case would contravene the "basic tenets" of Strickland. Defendant maintains
that in a claim of ineffective assistance of counsel based on the failure to
investigate and present mitigating evidence, the defendant must be permitted
to develop the record to show what mitigating evidence a competent attorney
could have been presented. Again, however, defendant already received a
complete opportunity to develop the record in the proceedings on his first
post-conviction petition.
Defendant further argues that because his current post-conviction
petition identifies mitigating evidence that was not included in his earlier
post-conviction petition, the rule of res judicata must be relaxed as a matter
of fundamental fairness. Defendant contends that the death penalty statute
requires the sentencer to balance all the aggravating and mitigating evidence.
In defendant's view, fundamental fairness demands that the additional
evidence presented in his second post-conviction petition now be considered.
We disagree. This court has explained that a death sentence is
constitutionally reliable if the sentencer has duly considered all relevant
mitigating evidence which the defendant has chosen to present. People v.
Coleman, 168 Ill. 2d 509, 556-57 (1995). Defendant does not suggest that
the trial court failed to consider any mitigating evidence that he chose to
present at sentencing. Moreover, as we have indicated repeatedly in this
opinion, defendant had a unrestricted opportunity to develop his ineffective
assistance of counsel claim in his first post-conviction petition. Defendant
offers no explanation why the new affidavits submitted with the present
post-conviction petition could not have been submitted in the earlier
proceedings. Furthermore, we agree with the State that the new evidence is
largely cumulative of what was presented in the prior petition. Under these
circumstances, it cannot be said that application of the doctrine of res
judicata is fundamentally unfair.
We turn now to the other aspect of defendant's ineffective assistance
of counsel claim--that trial counsel's use of John Weliczko as a mitigation
witness represents ineffective assistance because Weliczko's testimony and
his written "psychological evaluation" constituted evidence in aggravation
rather than mitigation. Defendant raised this claim in his first post-conviction
petition, but this court did not reach the merits. Instead, this court concluded
that this claim could have been raised on direct appeal, and was therefore
waived. Erickson, 161 Ill. 2d at 89. Defendant presently argues, however,
that the failure of his appellate counsel to raise this issue on direct appeal
constitutes ineffective assistance of counsel. As discussed above, under
People v. Flores, 153 Ill. 2d 264, 281-82 (1992), when a criminal defendant
is represented by the same counsel on direct appeal and in his initial post-
conviction proceeding, a claim of ineffective assistance of counsel on direct
appeal may be raised in a second post-conviction proceeding. That is the
case here.
Although defendant's claim is properly before this court, it fails on
the merits. Defendant contends that Weliczko's testimony and his written
report undermined the defense by portraying defendant as manipulative,
aggressive and violent. While Weliczko's negative characterization of
defendant may not have helped the defense, it did not contribute to the trial
court's sentencing decision. The trial court explained in detail the
aggravating factors forming the basis for its decision, but made no reference
to Weliczko's testimony or written report. Rather, in sentencing defendant
to death the court relied on its conclusions that defendant had devised the
plot to abduct, rape and murder Elizabeth Launer and that he produced the
necktie with which she was bound, the sock with which she was gagged, and
the knife with which she was killed. The court emphasized the heinous
nature of the crime, observing that the victim was "stripped, tied, gagged,
subjected to the most ultimate indignity that could be forced upon a female
and then executed in a brutal and savage attack," that defendant ignored the
victim's pleas for mercy, and that defendant later boasted about the crime.
The court also cited defendant's prior history of sexual attacks against
women.
The trial court did briefly refer to Weliczko's testimony in its
summary of mitigating evidence. While the trial court may not have given
the evidence great weight in mitigation, it does not appear that the court
considered the evidence to be aggravating. Moreover, regardless of the
opinions Weliczko offered, the circumstances of the crime and the other
aggravation evidence presented by the State clearly portrayed defendant as
calculating, aggressive and violent. It is unlikely the trial court would have
drawn any different conclusion even if Weliczko had not testified. Thus
defendant suffered no prejudice due to the counsel's use of Weliczko as a
mitigation witness.
Defendant further argues that the cumulative effect of counsel's
errors was prejudicial within the meaning of Strickland. According to
defendant, counsel failed not only to present reliable evidence of defendant's
mental condition, but to introduce any mitigating evidence at all. Defendant
also contends that trial counsel should have argued that defendant was not
eligible for the death penalty. As discussed above, this court has previously
held that counsel's alleged failure to investigate mitigating evidence did not
alter the outcome of the sentencing proceeding. See Erickson, 161 Ill. 2d at
89-92. Moreover, as explained below, we are unpersuaded that there is
anything trial counsel could have done to have prevented defendant from
being found eligible for the death penalty.
Defendant was found eligible for the death penalty pursuant to
section 9--1(b)(6) of the Criminal Code of 1961 on the grounds that the
victim was killed during the course of a felony, rape. At the time of the
murder, section 9--1(b)(6) required proof that "the murdered individual was
actually killed by the defendant and not by another party to the crime." Ill.
Rev. Stat. 1981, ch. 38, par. 9--1(b)(6). Defendant contends that testimony
by his family and friends would have supported the theory that the victim
was actually killed by Thomas Fairweather rather than by defendant.
Defendant relies on an affidavit from his brother indicating that he did not
believe defendant killed the victim and affidavits from two of defendant's
former teachers who stated that they were shocked to learn defendant had
been accused of murdering Elizabeth Launer, and did not believe he could
have been responsible. Even to the extent that such evidence might have
been admissible at the eligibility stage of sentencing, it is exceedingly
unlikely that it would have carried much weight with the trial court. Neither
defendant's brother nor his former teachers had any firsthand knowledge of
the crime; even if admissible, their mere opinions or beliefs as to whether
defendant killed, or could have killed, the victim would lack any significant
probative value. In contrast, the State presented compelling evidence that it
was indeed defendant, and not any other party to the crime, who killed the
victim. Both Mickey Jaksch and Billy Johnson testified that defendant had
described to them how he had stabbed the victim after raping her. In closing
argument during the guilt phase, counsel argued at length that Thomas
Fairweather inflicted the fatal wounds. There is no reason to believe that
repetition of this argument during sentencing would have affected the trial
court's decision. Defendant has failed to establish a reasonable probability
that testimony by his brother and former teachers, or argument by counsel,
would have resulted in a finding favorable to defendant at the eligibility
stage of the sentencing hearing.
Defendant alternatively argues that trial counsel's performance at
sentencing was so deficient that prejudice may be presumed. Defendant
contends that trial counsel conceded defendant's eligibility for the death
penalty and failed to introduce credible mitigating evidence, thereby virtually
assuring that defendant would be sentenced to death. As discussed, to show
a violation of the right to effective assistance of counsel, a criminal
defendant ordinarily must establish both deficient performance and resultant
prejudice. However, a presumption of prejudice arises where counsel
"entirely fails to subject the prosecution's case to meaningful adversarial
testing." United States v. Cronic, 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668,
104 S. Ct. 2039, 2047 (1984). Defendant relies on People v. Hattery, 109 Ill. 2d 449 (1985), in which prejudice was presumed. In Hattery, although the
defendant pleaded not guilty his attorney expressly conceded, during his
opening statement and at other points in the trial, that the defendant had
committed the crime of murder. Defense counsel presented no evidence,
advanced no legally valid defense theory, and elected to make no closing
statement. Defense counsel's apparent strategy was to show that the
defendant was guilty of murder but did not deserve to be put to death. This
court held, however, that "[c]ounsel may not concede his client's guilt in the
hope of obtaining a more lenient sentence where a plea of not guilty has
been entered, unless the record adequately shows that defendant knowingly
and intelligently consented to his counsel's strategy." Hattery, 109 Ill. 2d at
465. Under these circumstances, this court concluded that counsel had failed
to subject the prosecution's case to the meaningful adversarial testing
required under the constitution. Hattery, 109 Ill. 2d at 464.
The case at bar is readily distinguishable from Hattery. Unlike
Hattery, counsel in this case never conceded defendant's guilt. Counsel
aggressively cross-examined the State's witnesses and advanced the theory
that another party was responsible for the crime. Contrary to defendant's
argument, counsel did not concede defendant's eligibility for the death
penalty. Rather, counsel advanced the theory that during the guilt phase the
jury had concluded that Thomas Fairweather killed the victim and found
defendant guilty as an accomplice. To this end, counsel sought to subpoena
certain jurors to testify as to whether they believed the victim was killed by
defendant or by Thomas Fairweather.
In any event, this court has held that the failure to contest death-
eligibility does not in itself constitute ineffective assistance of counsel under
Hattery. See People v. Smith, 176 Ill. 2d 217, 231 (1997); People v. Holman,
132 Ill. 2d 128, 162-63 (1989). With respect to the aggravation/mitigation
stage of sentencing, defendant contends that trial counsel failed to introduce
any valid mitigation evidence. Nonetheless, counsel vigorously cross-
examined the State's witnesses at this stage of the proceedings. Given
counsel's efforts, it cannot be said that counsel failed to subject the State's
case to meaningful adversarial testing. Accordingly, prejudice cannot be
presumed in this case.
III. Reliability of Defendant's Sentence
Defendant contends that the trial court's reliance on Weliczko's
testimony and written report deprived him of the right to be sentenced on the
basis of fair and reliable information. We disagree. The trial court was well
aware of Weliczko's shortcomings as a witness and only allowed him to
testify as a layman. As previously stated, it does not appear that the trial
court attached significant weight to this evidence. Moreover, the negative
characteristics suggested by Weliczko's testimony--that defendant was
manipulative, deceitful and misogynistic--are all amply established by the
circumstances of the present crime and the other evidence in aggravation
presented by the State.
Defendant also argues that he was deprived of his right under Ake v.
Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985), to a
competent psychological evaluation. Ake dealt with the State's obligation to
bear the expense of providing an indigent defendant with the assistance of
a psychiatrist when issues of sanity or mental health are relevant to the case.
In Ake, the trial court refused the indigent defendant's request for a court
appointed psychiatrist to evaluate his sanity at the time of the offense.
Nothing in Ake suggests that the State must verify the credentials of a
mitigation witness who was selected by the defendant. Accordingly, Ake has
no application here.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Cook
County is affirmed. The clerk of this court is directed to enter an order
setting Wednesday, November 11, 1998, as the date on which the sentence
of death entered in the circuit court of Cook County is to be carried out.
Defendant shall be executed in the manner provided by law (725 ILCS
5/119--5 (West 1996)). The clerk of this court shall send a certified copy of
the mandate in this case to the Director of Corrections, to the warden of
Stateville Correctional Center, and to the warden of the institution where
defendant is now confined.
Affirmed.
JUSTICE McMORROW, dissenting:
I believe that defendant is entitled to an evidentiary hearing to prove
his claim of ineffective assistance of appellate counsel. Accordingly, I
dissent.
Defendant's conviction and sentence of death were affirmed by this
court on direct appeal. People v. Erickson, 117 Ill. 2d 271 (1987) (Erickson
I). The instant appeal concerns defendant's second attempt to obtain post-
conviction relief from his convictions and sentence of death. In defendant's
first post-conviction proceeding, defendant alleged, inter alia, that he
received ineffective assistance of counsel during the sentencing phase of trial
when trial counsel proffered the testimony and report of John Weliczko
regarding defendant's emotional and mental condition at the time of the
offenses. Defendant alleged that trial counsel failed to discover that
Weliczko was not qualified to provide a psychological evaluation of
defendant, and that, in fact, Weliczko had no bona fide psychological
training or experience whatsoever. According to defendant, Weliczko's
testimony was incompetent and unreliable, and trial counsel's decision to
proffer that testimony actually undermined the strategy of the defense.
Defendant also alleged that trial counsel failed to offer in mitigation
significant, valid psychological evidence which was available at the time of
sentencing. In support of the allegations raised in his post-conviction
petition, defendant submitted affidavits from two qualified mental health
professionals. The circuit court dismissed defendant's first post-conviction
petition without an evidentiary hearing.
Upon review, this court affirmed the dismissal of defendant's first
post-conviction petition. People v. Erickson, 161 Ill. 2d 82 (1994) (Erickson
II). This court concluded that defendant had waived his claim that the
presentation of Weliczko's testimony undermined the strategy of the defense
because that claim could have been presented on direct appeal. This court
also determined that defendant was not prejudiced by trial counsel's failure
to present the additional psychological evidence offered by the mental health
professionals.
I dissented from this court's decision affirming the dismissal of
defendant's first post-conviction petition. Erickson II, 161 Ill. 2d at 96
(McMorrow, J., dissenting, joined by Harrison, J.). I concluded that
defendant's claim with respect to the presentation of Weliczko's testimony
was not waived. I also disagreed with the conclusion that defendant was not
prejudiced by trial counsel's failure to present the additional mitigating
evidence from the mental health professionals. In my view, defendant should
have received an evidentiary hearing to prove his claim of ineffective
assistance of counsel.
In the case at bar, defendant again raises a claim of ineffective
assistance of counsel. On this occasion, defendant's claim of ineffective
assistance of counsel is directed toward his appellate counsel on direct
appeal. Defendant asserts that appellate counsel was ineffective for failing
to raise on direct appeal the claim of ineffective assistance of trial counsel
relating to the proffer of Weliczko's testimony and report. Because the
merits of the underlying ineffective assistance of counsel claim must be
assessed to determine the effectiveness of appellate counsel (People v. Guest,
166 Ill. 2d 381, 390 (1995)), defendant's second post-conviction petition
again addresses the failings of trial counsel in presenting Weliczko's
testimony. Specifically, defendant contends that Weliczko's testimony and
report were incompetent and constituted aggravating rather than mitigating
evidence, and that "[a]s a result of [trial] counsel's professional dereliction
in relying on an unqualified witness, [defendant] never had an expert mental
health professional testify on his behalf." As with defendant's first post-
conviction petition, defendant's second post-conviction petition was
dismissed by the circuit court without an evidentiary hearing.
The majority affirms the dismissal of defendant's second post-
conviction petition. The majority treats defendant's claim of ineffective
assistance of counsel as having two distinct parts, as this court did in
Erickson II. The majority asserts that the first aspect of defendant's claim
relates to whether trial counsel was ineffective for failing to present in
mitigation valid psychological evidence prepared by competent mental health
professionals. The majority concludes that this argument was raised and
rejected in Erickson II and, therefore, is procedurally barred under principles
of res judicata.
The majority asserts that the second aspect of defendant's claim of
ineffective assistance of counsel is whether trial counsel was constitutionally
ineffective in presenting Weliczko's incompetent and aggravating testimony
during the sentencing hearing. The majority acknowledges that under People
v. Flores, 153 Ill. 2d 264 (1992), this aspect of defendant's claim is properly
before this court. However, the majority determines that defendant suffered
no prejudice from the presentation of Weliczko's testimony or report, and,
therefore, that defendant is not entitled to an evidentiary hearing to prove his
claim of ineffective assistance of counsel.
I agree with the majority that defendant's claim of ineffective
assistance of counsel relating to the presentation of Weliczko's testimony is
properly before us. Unlike the majority, however, I believe that defendant
is entitled to an evidentiary hearing. In reaching this decision, I rely upon
both Weliczko's testimony and the affidavits from qualified mental health
professionals which defendant has included with his post-conviction petition.
As the majority notes, it may be improper to consider the affidavits of the
mental health professionals with respect to any of defendant's claims which
are barred by principles of res judicata. However, there is no reason why the
affidavits may not be considered when evaluating the claim which is
properly before the court, i.e., whether trial counsel was ineffective in
proffering Weliczko's testimony and report. Indeed, it is not possible to
determine whether defendant has made a substantial showing that trial
counsel's proffer of Weliczko's testimony was objectively unreasonable, or
to determine whether defendant has shown that he suffered prejudice as a
result of that testimony, without examining what further evidence could have
been presented in its place.[fn1]
In my dissent from this court's decision affirming the dismissal of
defendant's first post-conviction petition, I examined in detail Weliczko's
testimony and the affidavits of the mental health professionals presented in
defendant's petition. Erickson II, 161 Ill. 2d at 112-18 (McMorrow, J.
dissenting, joined by Harrison, J.). That examination revealed the damning
and prejudicial nature of Weliczko's testimony. I also observed that the trial
court had never been advised of the true nature of Weliczko's allegedly
fraudulent representations, nor advised of the extent to which Weliczko's
evaluation of defendant differed from those given by the mental health
professionals. For these reasons, I concluded that defendant was entitled to
an evidentiary hearing to prove his claim of ineffective assistance of counsel.
I believe that conclusion applies with equal force to defendant's claim of
ineffective assistance of appellate counsel presented in the case at bar.
I emphasize the serious nature of the allegations contained in
defendant's post-conviction petition. Defendant asserts that he was sentenced
to death following a sentencing hearing in which the only witness to testify
in mitigation, Weliczko, provided a fatally unreliable and completely
incompetent psychological and emotional evaluation of defendant.
Defendant's petition shows that Weliczko was a fraud and a sham who had
a history of engaging in deceptive activities, and, further, that his evaluation
of defendant actually supported the State's argument in aggravation.
Moreover, there is no question that Weliczko's testimony was considered by
the trial court during sentencing, as this court itself noted in its decision
affirming defendant's convictions and sentence on direct appeal. Erickson I,
117 Ill. 2d at 301-02. All of the foregoing indicates that the integrity of the
capital sentencing process has been seriously compromised in the case at bar.
Despite this fact, the majority refuses to grant defendant even an evidentiary
hearing to prove his claim of ineffective assistance of counsel. I cannot join
in this result.
Accordingly, I dissent.
JUSTICE HARRISON joins in this dissent.
[fn1] The State argues that because the affidavits of the mental health
professionals were not part of the record on direct appeal, they may not be
considered in addressing defendant's claim that counsel on direct appeal was
ineffective. However, a majority of this court held in Erickson II that
defendant's claim that trial counsel was ineffective in proffering Weliczko's
testimony could have been presented on direct appeal. As I note in the text,
the only way this court can now determine whether defendant has made a
substantial showing that trial counsel was ineffective in proffering
Weliczko's testimony is to compare that testimony to the evidence offered
in the affidavits of the mental health professionals.
Docket No. 81321--Agenda 8--September 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PAUL S.
ERICKSON, Appellant.
Opinion filed June 18, 1998.
JUSTICE NICKELS delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, defendant
was found guilty of the murder, rape, unlawful restraint and concealment of
a homicidal death in connection with the stabbing death of 15-year-old
Elizabeth Launer. The State sought imposition of the death penalty.
Defendant waived his right to a jury for sentencing. After a capital
sentencing hearing, the trial court sentenced defendant to death. This court
affirmed defendant's convictions and sentence. People v. Erickson, 117 Ill. 2d 271 (1987), cert. denied, 486 U.S. 1017, 100 L. Ed. 2d 216, 108 S. Ct. 1754 (1988). On November 30, 1990, defendant filed a petition for relief
under the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38,
par. 122--1 et seq.). The trial court dismissed the petition, and this court
affirmed the dismissal. People v. Erickson, 161 Ill. 2d 82 (1994).
Subsequently, on December 15, 1995, defendant filed a second post-
conviction petition, which was likewise dismissed by the trial court.
Defendant now appeals the trial court's dismissal of his second post-
conviction petition.
BACKGROUND
The factual background of defendant's trial is set forth in the opinion
in defendant's direct appeal (People v. Erickson, 117 Ill. 2d 271 (1987)) and
only a brief summary is necessary here. On the evening of July 30, 1982, the
victim, Elizabeth Launer, and four other teenagers, Lisa Soderberg, Renee
East, Thomas Fairweather and Michael Blanchard, assembled for a party.
The members of this group ranged in age from 13 to 16 years old.
Defendant, who was then 25 years old, agreed to purchase alcohol and to
rent a room for the group at the Holiday Inn in Rolling Meadows.
Fairweather and Blanchard testified for the State that defendant solicited
their help with a plan to rape Elizabeth Launer. The plan called for the
victim to be killed so that the rape would not be reported. After Lisa
Soderberg and Renee East left the party, defendant, Fairweather, Blanchard
and the victim drove to an apartment complex in Rolling Meadows in
defendant's car. Defendant had brought along neckties, which were used to
bind the victim's hands and to gag her.
Defendant used a knife to cut off the victim's clothes, at which point
Blanchard walked away from the car, indicating that he wanted no part of
what was occurring. According to Fairweather, defendant placed the victim
on the front seat of the car and positioned himself between her legs.
Fairweather heard the sound of a zipper being unzipped, and observed
defendant lower himself onto the victim. Later, defendant and Fairweather
walked the victim to a nearby retention pond. Fairweather held the victim's
head while defendant stabbed her to death. Fairweather and defendant threw
the victim's body and her clothing into the retention pond.
Defendant, Fairweather and Blanchard then returned to defendant's
car and left the scene. According to Blanchard, during the ride from the
scene defendant stated that he stabbed the victim in the heart, and he
commented on how the blood had spurted when he stabbed her. At the time
of trial, Fairweather had been charged as a juvenile with various offenses
including murder. Pursuant to an agreement with the State, he would plead
guilty to one of the charges and would receive a lenient sentence in
exchange for his truthful testimony against defendant. Blanchard had been
charged as a juvenile with concealment of a homicidal death, but the State
had agreed to dismiss the charge in exchange for Blanchard's truthful
testimony. Other witnesses for the State included Mickey Jaksch and Billy
Johnson, both of whom related conversations with defendant in which
defendant indicated that he had personally stabbed the victim.
Defendant testified on his own behalf. According to defendant,
Thomas Fairweather had expressed an interest in having sex with the victim
and discussed raping her. Defendant indicated that he held the victim's arms
while Fairweather tied her hands together at the Rolling Meadows apartment
complex. Defendant testified that he left the car at that point, and he did not
know whether Fairweather had raped the victim. According to defendant's
testimony, he and Fairweather walked the victim to the retention pond, at
which point Fairweather stabbed her. Defendant denied having sexual contact
with the victim.
Following the presentation of this evidence, the jury found defendant
guilty of murder, rape, unlawful restraint, and concealment of a homicidal
death. The State sought the death penalty, and defendant elected to be
sentenced by the court. At the first stage of the death penalty hearing, the
court found that defendant was eligible for the death penalty because the
victim was killed during the course of the felony of rape, and the victim was
actually killed by defendant and not another party to the crime. Ill. Rev. Stat.
1981, ch. 38, par. 9--1(b)(6).
At the second stage of sentencing, the State presented the testimony
of Billy Johnson, who described an incident that occurred about two weeks
before the murder of Elizabeth Launer. According to Johnson, defendant
suggested that they drive to O'Hare Airport to pick up a prostitute. Johnson
testified that defendant said they would kill the prostitute after having sex.
Rosalie Blackstock testified that in 1979 she encountered defendant, whom
she had met once before, at a restaurant in Lombard. According to
Blackstock, defendant forced her to have sex with him after she accepted his
offer of a ride. Marge Rader Bass testified that in 1979, defendant invited
her to a party in a motel room. When she and defendant arrived at the motel
room it was empty. After 15 or 20 minutes, defendant pinned Bass to the
bed and threatened to rape her or to tell her parents that she had seduced
him. When Bass threatened to scream, defendant released her and took her
home. About a week later the tires on Bass' car were slashed. About a week
after that, Bass again encountered defendant. Defendant displayed a knife.
While displaying a knife, defendant "apologized" for slashing Bass' tires and
stated that he should have slashed Bass instead.
Harvey Greenway, a detective with the Rolling Meadows police
department, related a conversation with Joanne Combs. Combs indicated that
she met defendant in March of 1980 when she was 14 years old and soon
became involved in a sexual relationship with defendant which resulted in
her becoming pregnant. Detective Greenway testified that Combs told him
defendant had slapped her on several occasions and threatened to kill her if
she told anyone the baby was his. Therese Moran testified that in 1981, at
the age of 15, she conceived a child with defendant. Finally, one of
defendant's fellow inmates in a Cook County jail hospital ward testified that
defendant boasted about the murder of Elizabeth Launer.
The sentencing proceedings took an unusual turn when defendant
commenced with the presentation of mitigating evidence. Defendant sought
to call John Weliczko as an expert witness. Initially, Weliczko testified that
he held a Masters degree in psychology from Harvard University and a
Ph.D. in psychology from the University of Chicago. On cross-examination,
however, Weliczko admitted that his degree from Harvard was in theological
studies rather than psychology. Weliczko's claimed doctoral degree was not
a Ph.D. from the University of Chicago, but a ministry degree from an
affiliated institution, the Chicago Theological Seminary. The trial court
found that Weliczko did not qualify as an expert in the field of psychology.
However, the trial court allowed Weliczko to testify as a lay witness with
respect to defendant's mental or emotional condition. Based on meetings
with defendant and with his parents, Weliczko offered the opinion that
defendant suffered from a narcissistic personality disorder. According to
Weliczko, defendant needed to be the center of attention. Weliczko portrayed
defendant to be deceitful and manipulative, but added that he was also
susceptible to manipulation by others because of his need for acceptance. A
written "psychological evaluation" prepared by Weliczko was admitted into
evidence.
At the conclusion of the second stage of the sentencing hearing, the
trial court determined that there were no mitigating factors sufficient to
preclude the imposition of the death penalty. The court sentenced defendant
to death.
ANALYSIS
I. The Post-Conviction Hearing Act
The Post-Conviction Hearing Act permits a defendant to mount a
collateral attack on his conviction and sentence based on violations of his
constitutional rights. People v. Coleman, 168 Ill. 2d 509, 522 (1995), People
v. Mahaffey, 165 Ill. 2d 445, 452 (1995). Post-conviction review is limited
to matters which have not been, and could not have been, previously
adjudicated. Coleman, 168 Ill. 2d at 522; People v. Brisbon, 164 Ill. 2d 236,
245 (1995). Determinations of the reviewing court on direct appeal are res
judicata as to issues actually decided, and issues that could have been raised
on direct appeal but were not are waived. Coleman, 168 Ill. 2d at 522;
Mahaffey, 165 Ill. 2d at 452. Moreover, a defendant is entitled to an
evidentiary hearing on a post-conviction claim only if he has made a
substantial showing, based on the record and supporting affidavits, that his
constitutional rights were violated. Coleman, 168 Ill. 2d at 537; People v.
Guest, 166 Ill. 2d 381, 389 (1995).
This is defendant's second post-conviction proceeding; as discussed
above, we previously affirmed the dismissal of defendant's first post-
conviction petition. The Post-Conviction Hearing Act contemplates the filing
of only one post-conviction petition, although successive petitions may be
allowed where the proceedings on the initial petition were deficient in some
fundamental way. People v. Flores, 153 Ill. 2d 264, 273-74 (1992). The Act
provides that any claim of a substantial denial of constitutional rights not
raised in the original or an amended petition is waived. 725 ILCS 5/122--3
(West 1996); see Flores, 153 Ill. 2d at 274. Moreover, a ruling on a post-
conviction petition has res judicata effect with respect to all claims that were
raised or could have been raised in the initial petition. Flores, 153 Ill. 2d at
274; People v. Free, 122 Ill. 2d 367, 375-76 (1988).
However, an exception to these procedural bars applies for claims of
ineffective assistance of counsel on direct appeal. This court has held that
a defendant's failure to raise a claim of ineffective assistance of appellate
counsel in his initial post-conviction petition will not operate as a waiver if
the defendant was represented by the same attorney on direct appeal and in
his initial post-conviction proceeding. In such cases, the claim of ineffective
assistance of appellate counsel may be raised for the first time in a second
post-conviction petition. See Flores, 153 Ill. 2d at 281-82. Mindful of these
principles, we turn to the issues presented on appeal.
II. Ineffective Assistance of Counsel
Defendant first argues that he was deprived of effective assistance of
counsel during sentencing. Claims of ineffective assistance of counsel based
on deficient representation of a criminal defendant are evaluated in
accordance with the two-prong test set forth in Strickland v. Washington,
466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Initially, the
defendant must show deficient performance. "This requires showing that
counsel made errors so serious that counsel was not functioning as the
`counsel' guaranteed the defendant by the Sixth Amendment." Strickland,
466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. The defendant
must establish that counsel's performance fell below an objective standard
of reasonableness. Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Judicial scrutiny of counsel's performance is highly deferential
and "a court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the
challenged action `might be considered sound trial strategy.' [Citation.]"
Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.
Once deficient performance is shown, the defendant must also
demonstrate prejudice in order to establish a claim of ineffective assistance
of counsel. Prejudice exists when "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.
Defendant contends that trial counsel's reliance on John Weliczko as
a mitigation witness, and counsel's concomitant failure at sentencing to
investigate and present available mitigating evidence of defendant's mental
or emotional condition, constitutes ineffective assistance of counsel. The
aspect of defendant's claim involving counsel's alleged failure to investigate
and present mitigating evidence was raised and rejected in defendant's first
post-conviction petition and is therefore procedurally barred under the
principles of res judicata set forth in People v. Flores, 153 Ill. 2d 264
(1992), and described above. In his first post-conviction petition, defendant
claimed that a proper investigation of mitigating evidence would have
revealed that defendant suffered psychological, emotional and sexual abuse
during childhood and that he had a history of alcohol and drug addiction.
Defendant supported these allegations with affidavits from two mental health
professionals. Defendant also submitted affidavits from two former teachers
who indicated that they could have testified on defendant's behalf at
sentencing if they had been contacted. See People v. Erickson, 161 Ill. 2d 82, 89-90 (1994). This court concluded, however, that defendant suffered no
prejudice under the Strickland test from trial counsel's failure to investigate
and present this evidence:
"[D]efendant, then 25 years old, enlisted the aid of two
juveniles to methodically chart a plan to isolate, bind, and gag a 15-
year-old girl for purposes of raping her, stabbing her to death, and,
in the end, concealing the corpse. (See Erickson, 117 Ill. 2d at 279-
83.) For those crimes, defendant was remorseless. He bragged about
the stabbing immediately after the deed. He boasted of the crimes
days after and even did so much later when detained in a county jail
awaiting trial. Other aggravating evidence, including the commission
of another rape at knife point and a third threatened one, attests to
some pattern of sexual assault against women.
Any laxity of counsel notwithstanding, what is offered to
bolster the ineffectiveness claim does not show the result would
`reasonably likely' have been different excluding the possibility of
arbitrariness. Briefly, the psychologists' reports could, at best, only
suggest what may have explained defendant's criminal behavior of
July of 1982. The evaluations were produced years after the crimes
and, apparently, without the aid of the trial record, which revealed,
through witnesses' testimony, defendant's actual behavior. The
affidavits of the teachers, one from fourth grade and one from high
school, disclose that neither maintained close contact with defendant
after he left their respective classrooms. And, if anything, they show
defendant to be polite, intelligent, and engaging, not a person
troubled by a disturbed psyche which might account for his criminal
behavior.
The record is also revealing as to the process of decision,
underscoring the lack of prejudice which might have been occasioned
by any deficiencies of counsel. The trial judge, whom defendant
elected to impose sentence, actually took into account the notion that
defendant may have suffered from a personality disorder. In addition,
the trial judge noted that a presentencing investigation report on
defendant revealed a background free of what might be normally
encountered given the nature of the crimes. It would appear, then,
that the trial judge on his own considered, and rejected, the gist of
what defendant hoped the evidence might show." Erickson, 161 Ill. 2d at 91-92.
In accordance with Flores, the above ruling is res judicata and forecloses
relitigation of defendant's failure to investigate claim in the present
proceeding.
Defendant contends that the principle of res judicata should be
relaxed in this case because the second post-conviction petition is supported
by evidence that was not presented with the first petition. In addition to the
evidence submitted with the first petition, the second petition contains an
affidavit from another mental health professional and affidavits from
defendant's mother and brother indicating that defendant's family and friends
were available to testify at sentencing. Defendant claims that the case at bar
is similar to People v. Eddmonds, 143 Ill. 2d 501 (1991), where the court
considered an ineffective assistance of counsel claim in a post-conviction
petition even though the claim had already been rejected on direct appeal.
The Eddmonds court noted that the rules of waiver and res judicata may be
relaxed where the facts relating to the issue of ineffective assistance of
counsel do not appear on the face of the record. Here, unlike Eddmonds,
defendant's specific claim of ineffective assistance of counsel was rejected
in the earlier post-conviction proceeding where defendant had a full
opportunity to develop the claim using evidence outside the trial record.
Now, however, defendant is attempting to relitigate this claim with new
affidavits that were not submitted with the first petition. Eddmonds does not
permit a defendant to develop the evidentiary basis for a claim in a
piecemeal fashion in successive post-conviction petitions, as defendant has
attempted to do here.
Defendant also insists that applying res judicata principles in this
case would contravene the "basic tenets" of Strickland. Defendant maintains
that in a claim of ineffective assistance of counsel based on the failure to
investigate and present mitigating evidence, the defendant must be permitted
to develop the record to show what mitigating evidence a competent attorney
could have been presented. Again, however, defendant already received a
complete opportunity to develop the record in the proceedings on his first
post-conviction petition.
Defendant further argues that because his current post-conviction
petition identifies mitigating evidence that was not included in his earlier
post-conviction petition, the rule of res judicata must be relaxed as a matter
of fundamental fairness. Defendant contends that the death penalty statute
requires the sentencer to balance all the aggravating and mitigating evidence.
In defendant's view, fundamental fairness demands that the additional
evidence presented in his second post-conviction petition now be considered.
We disagree. This court has explained that a death sentence is
constitutionally reliable if the sentencer has duly considered all relevant
mitigating evidence which the defendant has chosen to present. People v.
Coleman, 168 Ill. 2d 509, 556-57 (1995). Defendant does not suggest that
the trial court failed to consider any mitigating evidence that he chose to
present at sentencing. Moreover, as we have indicated repeatedly in this
opinion, defendant had a unrestricted opportunity to develop his ineffective
assistance of counsel claim in his first post-conviction petition. Defendant
offers no explanation why the new affidavits submitted with the present
post-conviction petition could not have been submitted in the earlier
proceedings. Furthermore, we agree with the State that the new evidence is
largely cumulative of what was presented in the prior petition. Under these
circumstances, it cannot be said that application of the doctrine of res
judicata is fundamentally unfair.
We turn now to the other aspect of defendant's ineffective assistance
of counsel claim--that trial counsel's use of John Weliczko as a mitigation
witness represents ineffective assistance because Weliczko's testimony and
his written "psychological evaluation" constituted evidence in aggravation
rather than mitigation. Defendant raised this claim in his first post-conviction
petition, but this court did not reach the merits. Instead, this court concluded
that this claim could have been raised on direct appeal, and was therefore
waived. Erickson, 161 Ill. 2d at 89. Defendant presently argues, however,
that the failure of his appellate counsel to raise this issue on direct appeal
constitutes ineffective assistance of counsel. As discussed above, under
People v. Flores, 153 Ill. 2d 264, 281-82 (1992), when a criminal defendant
is represented by the same counsel on direct appeal and in his initial post-
conviction proceeding, a claim of ineffective assistance of counsel on direct
appeal may be raised in a second post-conviction proceeding. That is the
case here.
Although defendant's claim is properly before this court, it fails on
the merits. Defendant contends that Weliczko's testimony and his written
report undermined the defense by portraying defendant as manipulative,
aggressive and violent. While Weliczko's negative characterization of
defendant may not have helped the defense, it did not contribute to the trial
court's sentencing decision. The trial court explained in detail the
aggravating factors forming the basis for its decision, but made no reference
to Weliczko's testimony or written report. Rather, in sentencing defendant
to death the court relied on its conclusions that defendant had devised the
plot to abduct, rape and murder Elizabeth Launer and that he produced the
necktie with which she was bound, the sock with which she was gagged, and
the knife with which she was killed. The court emphasized the heinous
nature of the crime, observing that the victim was "stripped, tied, gagged,
subjected to the most ultimate indignity that could be forced upon a female
and then executed in a brutal and savage attack," that defendant ignored the
victim's pleas for mercy, and that defendant later boasted about the crime.
The court also cited defendant's prior history of sexual attacks against
women.
The trial court did briefly refer to Weliczko's testimony in its
summary of mitigating evidence. While the trial court may not have given
the evidence great weight in mitigation, it does not appear that the court
considered the evidence to be aggravating. Moreover, regardless of the
opinions Weliczko offered, the circumstances of the crime and the other
aggravation evidence presented by the State clearly portrayed defendant as
calculating, aggressive and violent. It is unlikely the trial court would have
drawn any different conclusion even if Weliczko had not testified. Thus
defendant suffered no prejudice due to the counsel's use of Weliczko as a
mitigation witness.
Defendant further argues that the cumulative effect of counsel's
errors was prejudicial within the meaning of Strickland. According to
defendant, counsel failed not only to present reliable evidence of defendant's
mental condition, but to introduce any mitigating evidence at all. Defendant
also contends that trial counsel should have argued that defendant was not
eligible for the death penalty. As discussed above, this court has previously
held that counsel's alleged failure to investigate mitigating evidence did not
alter the outcome of the sentencing proceeding. See Erickson, 161 Ill. 2d at
89-92. Moreover, as explained below, we are unpersuaded that there is
anything trial counsel could have done to have prevented defendant from
being found eligible for the death penalty.
Defendant was found eligible for the death penalty pursuant to
section 9--1(b)(6) of the Criminal Code of 1961 on the grounds that the
victim was killed during the course of a felony, rape. At the time of the
murder, section 9--1(b)(6) required proof that "the murdered individual was
actually killed by the defendant and not by another party to the crime." Ill.
Rev. Stat. 1981, ch. 38, par. 9--1(b)(6). Defendant contends that testimony
by his family and friends would have supported the theory that the victim
was actually killed by Thomas Fairweather rather than by defendant.
Defendant relies on an affidavit from his brother indicating that he did not
believe defendant killed the victim and affidavits from two of defendant's
former teachers who stated that they were shocked to learn defendant had
been accused of murdering Elizabeth Launer, and did not believe he could
have been responsible. Even to the extent that such evidence might have
been admissible at the eligibility stage of sentencing, it is exceedingly
unlikely that it would have carried much weight with the trial court. Neither
defendant's brother nor his former teachers had any firsthand knowledge of
the crime; even if admissible, their mere opinions or beliefs as to whether
defendant killed, or could have killed, the victim would lack any significant
probative value. In contrast, the State presented compelling evidence that it
was indeed defendant, and not any other party to the crime, who killed the
victim. Both Mickey Jaksch and Billy Johnson testified that defendant had
described to them how he had stabbed the victim after raping her. In closing
argument during the guilt phase, counsel argued at length that Thomas
Fairweather inflicted the fatal wounds. There is no reason to believe that
repetition of this argument during sentencing would have affected the trial
court's decision. Defendant has failed to establish a reasonable probability
that testimony by his brother and former teachers, or argument by counsel,
would have resulted in a finding favorable to defendant at the eligibility
stage of the sentencing hearing.
Defendant alternatively argues that trial counsel's performance at
sentencing was so deficient that prejudice may be presumed. Defendant
contends that trial counsel conceded defendant's eligibility for the death
penalty and failed to introduce credible mitigating evidence, thereby virtually
assuring that defendant would be sentenced to death. As discussed, to show
a violation of the right to effective assistance of counsel, a criminal
defendant ordinarily must establish both deficient performance and resultant
prejudice. However, a presumption of prejudice arises where counsel
"entirely fails to subject the prosecution's case to meaningful adversarial
testing." United States v. Cronic, 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668,
104 S. Ct. 2039, 2047 (1984). Defendant relies on People v. Hattery, 109 Ill. 2d 449 (1985), in which prejudice was presumed. In Hattery, although the
defendant pleaded not guilty his attorney expressly conceded, during his
opening statement and at other points in the trial, that the defendant had
committed the crime of murder. Defense counsel presented no evidence,
advanced no legally valid defense theory, and elected to make no closing
statement. Defense counsel's apparent strategy was to show that the
defendant was guilty of murder but did not deserve to be put to death. This
court held, however, that "[c]ounsel may not concede his client's guilt in the
hope of obtaining a more lenient sentence where a plea of not guilty has
been entered, unless the record adequately shows that defendant knowingly
and intelligently consented to his counsel's strategy." Hattery, 109 Ill. 2d at
465. Under these circumstances, this court concluded that counsel had failed
to subject the prosecution's case to the meaningful adversarial testing
required under the constitution. Hattery, 109 Ill. 2d at 464.
The case at bar is readily distinguishable from Hattery. Unlike
Hattery, counsel in this case never conceded defendant's guilt. Counsel
aggressively cross-examined the State's witnesses and advanced the theory
that another party was responsible for the crime. Contrary to defendant's
argument, counsel did not concede defendant's eligibility for the death
penalty. Rather, counsel advanced the theory that during the guilt phase the
jury had concluded that Thomas Fairweather killed the victim and found
defendant guilty as an accomplice. To this end, counsel sought to subpoena
certain jurors to testify as to whether they believed the victim was killed by
defendant or by Thomas Fairweather.
In any event, this court has held that the failure to contest death-
eligibility does not in itself constitute ineffective assistance of counsel under
Hattery. See People v. Smith, 176 Ill. 2d 217, 231 (1997); People v. Holman,
132 Ill. 2d 128, 162-63 (1989). With respect to the aggravation/mitigation
stage of sentencing, defendant contends that trial counsel failed to introduce
any valid mitigation evidence. Nonetheless, counsel vigorously cross-
examined the State's witnesses at this stage of the proceedings. Given
counsel's efforts, it cannot be said that counsel failed to subject the State's
case to meaningful adversarial testing. Accordingly, prejudice cannot be
presumed in this case.
III. Reliability of Defendant's Sentence
Defendant contends that the trial court's reliance on Weliczko's
testimony and written report deprived him of the right to be sentenced on the
basis of fair and reliable information. We disagree. The trial court was well
aware of Weliczko's shortcomings as a witness and only allowed him to
testify as a layman. As previously stated, it does not appear that the trial
court attached significant weight to this evidence. Moreover, the negative
characteristics suggested by Weliczko's testimony--that defendant was
manipulative, deceitful and misogynistic--are all amply established by the
circumstances of the present crime and the other evidence in aggravation
presented by the State.
Defendant also argues that he was deprived of his right under Ake v.
Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985), to a
competent psychological evaluation. Ake dealt with the State's obligation to
bear the expense of providing an indigent defendant with the assistance of
a psychiatrist when issues of sanity or mental health are relevant to the case.
In Ake, the trial court refused the indigent defendant's request for a court
appointed psychiatrist to evaluate his sanity at the time of the offense.
Nothing in Ake suggests that the State must verify the credentials of a
mitigation witness who was selected by the defendant. Accordingly, Ake has
no application here.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Cook
County is affirmed. The clerk of this court is directed to enter an order
setting Wednesday, November 11, 1998, as the date on which the sentence
of death entered in the circuit court of Cook County is to be carried out.
Defendant shall be executed in the manner provided by law (725 ILCS
5/119--5 (West 1996)). The clerk of this court shall send a certified copy of
the mandate in this case to the Director of Corrections, to the warden of
Stateville Correctional Center, and to the warden of the institution where
defendant is now confined.
Affirmed.
JUSTICE McMORROW, dissenting:
I believe that defendant is entitled to an evidentiary hearing to prove
his claim of ineffective assistance of appellate counsel. Accordingly, I
dissent.
Defendant's conviction and sentence of death were affirmed by this
court on direct appeal. People v. Erickson, 117 Ill. 2d 271 (1987) (Erickson
I). The instant appeal concerns defendant's second attempt to obtain post-
conviction relief from his convictions and sentence of death. In defendant's
first post-conviction proceeding, defendant alleged, inter alia, that he
received ineffective assistance of counsel during the sentencing phase of trial
when trial counsel proffered the testimony and report of John Weliczko
regarding defendant's emotional and mental condition at the time of the
offenses. Defendant alleged that trial counsel failed to discover that
Weliczko was not qualified to provide a psychological evaluation of
defendant, and that, in fact, Weliczko had no bona fide psychological
training or experience whatsoever. According to defendant, Weliczko's
testimony was incompetent and unreliable, and trial counsel's decision to
proffer that testimony actually undermined the strategy of the defense.
Defendant also alleged that trial counsel failed to offer in mitigation
significant, valid psychological evidence which was available at the time of
sentencing. In support of the allegations raised in his post-conviction
petition, defendant submitted affidavits from two qualified mental health
professionals. The circuit court dismissed defendant's first post-conviction
petition without an evidentiary hearing.
Upon review, this court affirmed the dismissal of defendant's first
post-conviction petition. People v. Erickson, 161 Ill. 2d 82 (1994) (Erickson
II). This court concluded that defendant had waived his claim that the
presentation of Weliczko's testimony undermined the strategy of the defense
because that claim could have been presented on direct appeal. This court
also determined that defendant was not prejudiced by trial counsel's failure
to present the additional psychological evidence offered by the mental health
professionals.
I dissented from this court's decision affirming the dismissal of
defendant's first post-conviction petition. Erickson II, 161 Ill. 2d at 96
(McMorrow, J., dissenting, joined by Harrison, J.). I concluded that
defendant's claim with respect to the presentation of Weliczko's testimony
was not waived. I also disagreed with the conclusion that defendant was not
prejudiced by trial counsel's failure to present the additional mitigating
evidence from the mental health professionals. In my view, defendant should
have received an evidentiary hearing to prove his claim of ineffective
assistance of counsel.
In the case at bar, defendant again raises a claim of ineffective
assistance of counsel. On this occasion, defendant's claim of ineffective
assistance of counsel is directed toward his appellate counsel on direct
appeal. Defendant asserts that appellate counsel was ineffective for failing
to raise on direct appeal the claim of ineffective assistance of trial counsel
relating to the proffer of Weliczko's testimony and report. Because the
merits of the underlying ineffective assistance of counsel claim must be
assessed to determine the effectiveness of appellate counsel (People v. Guest,
166 Ill. 2d 381, 390 (1995)), defendant's second post-conviction petition
again addresses the failings of trial counsel in presenting Weliczko's
testimony. Specifically, defendant contends that Weliczko's testimony and
report were incompetent and constituted aggravating rather than mitigating
evidence, and that "[a]s a result of [trial] counsel's professional dereliction
in relying on an unqualified witness, [defendant] never had an expert mental
health professional testify on his behalf." As with defendant's first post-
conviction petition, defendant's second post-conviction petition was
dismissed by the circuit court without an evidentiary hearing.
The majority affirms the dismissal of defendant's second post-
conviction petition. The majority treats defendant's claim of ineffective
assistance of counsel as having two distinct parts, as this court did in
Erickson II. The majority asserts that the first aspect of defendant's claim
relates to whether trial counsel was ineffective for failing to present in
mitigation valid psychological evidence prepared by competent mental health
professionals. The majority concludes that this argument was raised and
rejected in Erickson II and, therefore, is procedurally barred under principles
of res judicata.
The majority asserts that the second aspect of defendant's claim of
ineffective assistance of counsel is whether trial counsel was constitutionally
ineffective in presenting Weliczko's incompetent and aggravating testimony
during the sentencing hearing. The majority acknowledges that under People
v. Flores, 153 Ill. 2d 264 (1992), this aspect of defendant's claim is properly
before this court. However, the majority determines that defendant suffered
no prejudice from the presentation of Weliczko's testimony or report, and,
therefore, that defendant is not entitled to an evidentiary hearing to prove his
claim of ineffective assistance of counsel.
I agree with the majority that defendant's claim of ineffective
assistance of counsel relating to the presentation of Weliczko's testimony is
properly before us. Unlike the majority, however, I believe that defendant
is entitled to an evidentiary hearing. In reaching this decision, I rely upon
both Weliczko's testimony and the affidavits from qualified mental health
professionals which defendant has included with his post-conviction petition.
As the majority notes, it may be improper to consider the affidavits of the
mental health professionals with respect to any of defendant's claims which
are barred by principles of res judicata. However, there is no reason why the
affidavits may not be considered when evaluating the claim which is
properly before the court, i.e., whether trial counsel was ineffective in
proffering Weliczko's testimony and report. Indeed, it is not possible to
determine whether defendant has made a substantial showing that trial
counsel's proffer of Weliczko's testimony was objectively unreasonable, or
to determine whether defendant has shown that he suffered prejudice as a
result of that testimony, without examining what further evidence could have
been presented in its place.[fn1]
In my dissent from this court's decision affirming the dismissal of
defendant's first post-conviction petition, I examined in detail Weliczko's
testimony and the affidavits of the mental health professionals presented in
defendant's petition. Erickson II, 161 Ill. 2d at 112-18 (McMorrow, J.
dissenting, joined by Harrison, J.). That examination revealed the damning
and prejudicial nature of Weliczko's testimony. I also observed that the trial
court had never been advised of the true nature of Weliczko's allegedly
fraudulent representations, nor advised of the extent to which Weliczko's
evaluation of defendant differed from those given by the mental health
professionals. For these reasons, I concluded that defendant was entitled to
an evidentiary hearing to prove his claim of ineffective assistance of counsel.
I believe that conclusion applies with equal force to defendant's claim of
ineffective assistance of appellate counsel presented in the case at bar.
I emphasize the serious nature of the allegations contained in
defendant's post-conviction petition. Defendant asserts that he was sentenced
to death following a sentencing hearing in which the only witness to testify
in mitigation, Weliczko, provided a fatally unreliable and completely
incompetent psychological and emotional evaluation of defendant.
Defendant's petition shows that Weliczko was a fraud and a sham who had
a history of engaging in deceptive activities, and, further, that his evaluation
of defendant actually supported the State's argument in aggravation.
Moreover, there is no question that Weliczko's testimony was considered by
the trial court during sentencing, as this court itself noted in its decision
affirming defendant's convictions and sentence on direct appeal. Erickson I,
117 Ill. 2d at 301-02. All of the foregoing indicates that the integrity of the
capital sentencing process has been seriously compromised in the case at bar.
Despite this fact, the majority refuses to grant defendant even an evidentiary
hearing to prove his claim of ineffective assistance of counsel. I cannot join
in this result.
Accordingly, I dissent.
JUSTICE HARRISON joins in this dissent.
[fn1] The State argues that because the affidavits of the mental health
professionals were not part of the record on direct appeal, they may not be
considered in addressing defendant's claim that counsel on direct appeal was
ineffective. However, a majority of this court held in Erickson II that
defendant's claim that trial counsel was ineffective in proffering Weliczko's
testimony could have been presented on direct appeal. As I note in the text,
the only way this court can now determine whether defendant has made a
substantial showing that trial counsel was ineffective in proffering
Weliczko's testimony is to compare that testimony to the evidence offered
in the affidavits of the mental health professionals.
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