People v. Hobley

Annotate this Case

People v. Hobley, No. 81609 (5/29/98)

Docket No. 81609--Agenda 3--March 1998.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MADISON
HOBLEY, Appellant.
Filed May 29, 1998

JUSTICE BILANDIC delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, the
defendant, Madison Hobley, was found guilty of seven counts of felony
murder, one count of arson, and seven counts of aggravated arson. The
charges related to an arson fire in which seven persons died and several
other persons were injured. Following a sentencing hearing, defendant was
sentenced to death. This court affirmed defendant's convictions and death
sentence on direct appeal. People v. Hobley, (1994).
Defendant's petition for a writ of certiorari was denied. Hobley v. Illinois,
513 U.S. 1015, 130 L. Ed. 2d 491, 115 S. Ct. 575 (1994).
Defendant subsequently filed a second-amended petition for post-
conviction relief, which the circuit court dismissed without conducting an
evidentiary hearing. He appeals to this court from the dismissal of that
post-conviction petition. 134 Ill. 2d R. 651(a). We now affirm in part and
reverse in part, and remand to the circuit court for an evidentiary hearing.

FACTS
Trial Evidence
The evidence presented at defendant's trial is detailed in part in this
court's opinion on direct appeal. Hobley, . Because an
understanding of the trial evidence is necessary to evaluate the first claim
presented in defendant's post-conviction petition, we present a summary
of that evidence.

State's Case
The State's evidence showed that, on January 6, 1987, at
approximately 2 a.m., a fire broke out in a multiple-unit apartment building
at 1121-23 East 82nd Street in Chicago. The fire claimed the lives of
Anthony Bradford, Johnny Mae Dodds, Shelone Holton, Schalise Lindey,
and Robert Stephens, as well as Anita Hobley and Philip Hobley,
defendant's wife and infant son. The cause of death for each victim was
acute carbon monoxide toxicity.
The apartment building consisted of four floors: the garden-level
English basement and the first, second and third floors. The building was
long and narrow, with an inside stairwell located at its front and an outside
stairwell located at its rear. A single hallway ran the length of each floor
and could be accessed by both stairwells. The top three floors each
contained seven apartments, numbered _01 through _07. The fire was
located in the front stairwell of the building, nearest the apartments
numbered _01 and _02.
At the time of the fire, defendant lived in apartment 301 with his
wife and son. Apartment 301 was located directly across from the front
stairwell on the third floor.
Investigation revealed that gasoline, an accelerant, was used to start
the fire. The front stairwell completely collapsed as a result of the fire.
Tests of stairwell debris revealed the presence of gasoline in the front
stairwell. Experts for both the State and the defense agreed that the fire
was intentionally set with gasoline somewhere in the front stairwell.
Tests of the area outside of apartment 301 revealed no traces of
gasoline. The door and door jam of apartment 301 were burned almost
completely.
A firefighter called to the scene saw that the fire was burning hotter
on the third floor, and he smelled the presence of gasoline in the burning
stairwell.
While the fire still raged, firefighters discovered four bodies in the
third-floor hallway. Another body was found in the second-floor hallway.
A firefighter located the bodies of Anita and Philip Hobley inside of
apartment 301, lying to the right of the window up against the wall. He
testified that, when he arrived, the door was shut but burned off. The
window had been stripped or blown out. Some furniture in the apartment
had melted tops, which evidenced the enormous heat that had been in the
apartment. He smelled the odor of gasoline.
Louis Casa, the building manager, testified that he rented apartment
301 on November 12, 1986, to defendant. A woman named Angela
McDaniel was also there. Casa was under the impression that defendant
and McDaniel would live together. Casa was not aware that at some time
between November 12, 1986, and the day of the fire, McDaniel had moved
out and defendant had moved his wife and son into the apartment.
Two witnesses testified regarding a gasoline purchase on the night
of the fire. Andre Council testified that he was visiting Kenneth Stewart
while Stewart worked at an Amoco station located at 83rd and Cottage
Grove in Chicago. Council parked his car next to a gasoline pump.
Sometime after midnight on January 6, 1987, Council saw a man walk up
to the station. The man was carrying a gasoline can and asked to purchase
one dollar's worth of gasoline. Council was not certain of the size of the
can, but he said it looked like a one-gallon can. Council made an in-court
identification of defendant as the man who had purchased the gasoline.
Council described defendant as wearing a navy blue or black pea coat, a
hat and jeans while at the station.
Council stated that the man then left the station, walking toward the
direction of the building. Sometime later, fire trucks passed the station.
Council left because he lived near the direction where the fire trucks were
heading. After a brief stop at home, Council went near the fire. While
there, he again saw the man, now standing near the viaduct, about two
houses away from the fire. Council claimed that the man was wearing the
same thing as when he saw him at the Amoco station. When Council later
saw defendant on television as a suspect in the fire, he called police and
told them about the gasoline purchase.
The second witness, Kenneth Stewart, was working at the Amoco
station on the night of January 5 and 6, 1987. He recalled that a short man
purchased one dollar's worth of gasoline with a standard red and yellow
gasoline can. The can was a one-gallon can. Stewart acknowledged that the
gasoline can introduced as People's exhibit 8 was a two-gallon can, but
said that it looked similar to the can he saw. Stewart witnessed a lineup at
4 p.m. on January 6, 1987. After some difficulties, Stewart stated that
defendant "favored" the man who purchased the gasoline. He also stated
that he could not tell with "any degree of certainty." At trial, Stewart
expressed more certainty, but acknowledged that he saw the man's face for
only three to four seconds.
A number of professionals investigated the fire to determine its
cause. One of them was Fire Marshall Francis Burns. He testified that the
extreme heat outside of apartment 301, and the damage sustained at that
location, evidenced that an accelerant had been poured on the floor outside
the door of apartment 301. He also stated, however, that if the door to
apartment 301 had been left open and a window inside the apartment was
open, the fire would have been drawn to apartment 301 more intensely
because fire seeks oxygen.
Detective Virgil Mikus, a Chicago police officer then assigned to
a federal arson task force, arrived at the scene at 3:10 a.m. and was
assigned to investigate the cause and origin of the fire. As part of his
investigation, he examined the exterior and interior of the building, and
collected debris samples for examination. Mikus testified that a flammable
liquid was poured in front of apartment 301. As evidence of this, he noted
a circular pour and burn pattern outside the apartment door with a four to
six foot diameter, and that the roof and baseboards had been completely
burned.
Chicago police Detectives Robert Dwyer and James Lotito also
investigated the fire. At about 9 a.m. on January 6, 1987, Dwyer and
Lotito interviewed defendant at his mother's home after determining that
he had been a tenant of apartment 301. Dwyer, Lotito and defendant sat
in Dwyer's vehicle, and Dwyer told defendant that the fire had been
intentionally set and asked defendant if he had any idea who may have
done it. Dwyer testified that defendant mentioned a suspicious fire in the
building on December 31, 1986. Defendant also mentioned that he
suspected a woman named Angela McDaniel, with whom he had
previously had an affair. Defendant then agreed to accompany the officers
to Area Two Police Headquarters (Area 2).
After arriving at Area 2, Dwyer learned information that
contradicted defendant's story. Defendant was read his Miranda rights so
that he could be questioned again. Defendant gave Dwyer the address and
telephone number of McDaniel.
Defendant was then taken to another area police headquarters, at
11th and State Streets, where he was interviewed by Sergeant Patrick
Garrity. In the meantime, Dwyer and Lotito interviewed McDaniel over her
lunch hour. Garrity testified that no one else was present during their
interview. According to Garrity, defendant first denied involvement with
the fire, but mentioned his suspicions of McDaniel. Garrity told defendant
that he had reason to believe that he was lying. Defendant then allegedly
broke eye contact and made an admission. Garrity testified that defendant
told him that he had gone to a gasoline station with a can, purchased
gasoline, poured it in the stairwell and in the hallway outside his
apartment, lit the gasoline with a match, and then threw the gasoline can
down the second-floor hallway. Defendant said that he did this because he
was experiencing trouble with his girlfriend Angela and his wife. Garrity
took notes during this interview, but those notes stated only that defendant
made "admissions." Garrity stated that he did not write down defendant's
confession, but rather notified the investigating detectives.
Subsequently, Dwyer interviewed defendant in an interview room.
Lotito and Officer McWeeney were either in or just outside of the room
during this time. Dwyer testified that defendant repeated his confession to
him. Defendant also told Dwyer that he could not handle his wife anymore
and that he wanted to be with McDaniel in the future. Defendant was then
allowed to speak to his attorney, who had arrived, and was then taken to
the lineup. After the lineup, Dwyer was escorting defendant back to Area
2 when they were approached by reporters. Defendant told the reporters
that the police have the wrong man.
Dwyer testified that he took notes of defendant's confession, but
those notes do not exist anymore. Dwyer destroyed them because "They
were a mess. Quite frankly they were soaking wet. You know, ink was
running on them. Once I completed my report I no longer had need for the
notes and it is my custom that if I don't need them to just discard them."
The report that still exists was written on January 31, 1987. Dwyer denied
ever physically brutalizing or racially harassing defendant.
Detective John Paladino testified that when he started his shift on
the afternoon of January 6, 1987, another officer contacted him and told
him to go to the fire scene and locate a gasoline can on the second floor.
He also spoke with Dwyer. Paladino went to the fire scene and found the
gasoline can inside of apartment 206 in the kitchen under the sink. He
located the arson investigators and had them take photographs of the can.
Paladino found the can at 5 p.m. on January 6, 1987. This two-gallon can
was introduced at trial as People's exhibit 8.
Paladino further testified that the black powder appearing on the
can at trial appeared to be fingerprint powder. He stated that the can had
been sent to the crime lab for fingerprint testing.
Some tenants testified about the night of the fire. Debra Bedford of
apartment 302 testified that her apartment was directly across the hall from
apartment 301. After being awakened by a smoke alarm, she touched her
front door and noticed that it was hot. She did not open the door. She
called the fire department. She then sat in her window for about 10 to 15
minutes as her apartment filled with extreme heat and smoke. The fire
department finally arrived and rescued her with a ladder.
After her rescue, Debra Bedford saw defendant at the scene of the
fire. He was upset. Defendant told her that he thought his wife and baby
were still in there, and that he thought maybe they were behind him as he
ran out. Defendant was wearing a short jacket, like a pea coat, and pants,
but no shoes. Bedford testified further that the coat introduced as defense
exhibit 1 looked like the coat defendant was wearing. She examined the
coat and noted that it is a ladies coat, since it buttons on the left side.
Althea Tucker of apartment 203 testified that she went to the
window when she realized the building was on fire. Her brother Curtis
Tucker, who had just escaped from apartment 207, called for her to throw
her children down. From her window, Tucker saw defendant near the
viaduct, which was two houses away. Defendant ran toward the building.
Defendant then helped her brother catch her son when she dropped him
from the window. Defendant was wearing a T-shirt and pants, but no shoes
and no jacket.
Angela Slatton testified that she lived in apartment 206 with
Howard Wilson and her toddler daughter. Apartment 206 was near the rear
of the building. She awoke after her daughter bit her. The apartment was
full of smoke. She opened the door and saw that the hallway was full of
smoke, real hot and dark. She closed the door. She threw her daughter out
the window. Firemen then rescued her and Wilson with a ladder. Slatton
denied that the two-gallon gasoline can later found in her apartment
belonged to her or Wilson. This was the gasoline can introduced as
People's exhibit 8.
Brian Greene, a firefighter, testified that while the January 6, 1987,
fire was still burning, he entered the second-floor hallway through the back
stairwell with his supervisor. Greene did not know if other firefighters had
already been in the second-floor hallway. Although he was equipped with
appropriate fire-fighting equipment, the heavy smoke and heat required
him to crawl on the floor. He crawled halfway through the building. As he
crawled, he looked at the floor. He located the body of Anthony Bradford
and took it outside. Green never saw a gasoline can in the hallway.
There was brief testimony regarding an earlier fire in the building
on December 31, 1986. Some tenants testified that there had been a small
fire on the third floor on December 31, 1986, a few days earlier than the
instant fire. Louis Casa, the building manager, fixed the damage caused by
the December 31, 1986, fire. He described the damaged area as being in
the third-floor landing area, about nine feet outside of apartment 301.
At the close of the State's case, defendant moved for a mistrial.
Defendant argued that Detective Paladino's testimony revealed that the
State had performed fingerprint testing on the gasoline can introduced as
exhibit 8. Defendant asserted that he was entitled to a mistrial because the
State had never disclosed to the defense that a fingerprint analysis had
been performed on that can. Nor did the State disclose to the defense the
results of that test. The assistant State's Attorney told the trial judge that
no such fingerprint report existed. The trial judge accepted the State's
representation and denied defendant's motion for a mistrial.

Defense Case
Defendant testified that he did not set fire to his apartment building
and that he never confessed to doing so. Defendant admitted having had
an affair with Angela McDaniel while he was married. He met McDaniel
at a going-away party during the third week of October 1986. The affair
lasted about one month. In November 1986, defendant rented apartment
301 in the building on 1121-23 East 82nd Street for McDaniel because she
had no credit. McDaniel moved into the apartment, but defendant did not.
Defendant's wife discovered the affair in mid-November 1986, after
McDaniel moved into apartment 301. A week later, his wife threw
defendant out of their home and told him not to return until he ended the
affair. Defendant stayed with McDaniel for four days. Defendant then
informed McDaniel that he was ending the affair. McDaniel moved out of
the apartment after Thanksgiving Day, 1986, because she could not afford
it on her own. At Thanksgiving, defendant admitted the affair to his wife's
grandparents, who had raised her. He and his wife then reconciled.
According to defendant, he and his wife and child moved into
apartment 301 during the week before Christmas of 1986 because it was
nicer than where they were living. When defendant came home from work
on December 31, 1986, there was a large burn hole in the carpeting outside
their apartment. His wife told him that she and another tenant had put out
a fire there. Defendant suspected that McDaniel may have had something
to do with the fire because their affair had ended badly.
After New Year's Day, 1987, defendant called McDaniel and
arranged to meet her at a lounge. Defendant asked McDaniel if she knew
anything about the fire in the building. She asked if the fire was on the
third floor, but then denied having any knowledge of the fire. McDaniel
stated that she wanted the $590 back that she had put down on the
apartment. When defendant said that he wanted to stay with his wife and
baby, she slapped him and said that he "was going to pay for *** wasting
her time."
Defendant testified that he was home with his wife and child on the
night of the fire. He was awakened that night by what he initially thought
was his watch alarm. After realizing that the noise was a smoke alarm, he
woke his wife and got out of bed. When he opened the hallway door, he
saw and smelled smoke. Defendant told his wife there was a fire and to
get the baby.
Defendant went out into the hallway to investigate, leaving the door
to his apartment open. The smoke appeared to be coming from apartment
304. The smoke was low in the hallway near that apartment. Defendant
was walking over to knock on the door to that apartment when he heard
a popping noise. The doorway to his own apartment went up in flames.
The fire had come up the stairwell. Defendant could not get back inside
his own apartment. He pounded at the wall and screamed at his wife to
shut the door and go to the window. Defendant then "got down low" and
ran out the back door because he could not breathe.
Once outside, defendant went and stood below his bedroom
window. The window was open a few inches, as it always was because the
apartment tended to be warm. He saw smoke coming out of his window,
but never saw his wife or baby. Defendant was wearing only a T-shirt and
shorts, and was not wearing shoes.
Defendant ran to the front of the building where some people had
gathered. He was looking for help to get his wife and baby out. A man
gave defendant some oversize pants to wear.
After defendant put the pants on, he could see fire trucks driving
by. He ran after the trucks, but could not catch them, so he ran back to the
building. He helped a man catch a baby who was being thrown out a
window. He then saw flames coming out of his apartment. Defendant went
back to the front of the building searching for help. There he saw Debra
Bedford, whom he knew. He told Bedford that he did not know if his wife
and baby got out of the fire and asked to use a telephone. He went into the
house next door, called his mother and asked her to bring him and his
family some clothes. A lady then gave him some gym shoes to wear.
When defendant went back toward the building, he saw a fireman.
He asked the fireman to save his wife and baby, and pointed to his
window. The fireman told him that some people had been rescued from the
third floor and he should go around the back. There, a policeman told him
to check the trauma units in the front. He went to the trauma units. He saw
a lot of confusion and people everywhere. He returned to the house next
door and called his mother again.
Once outside again, defendant could see that all the windows to his
apartment had been broken out by the firefighters. Flames were coming out
of his apartment. A woman came up to him and wrapped a coat around
him. Defendant asked a firefighter if he knew if his wife and baby had
been saved, and he said no. His mother, Myra Hobley, then arrived at the
fire scene with her landlord.
Defendant told his mother that he could not find his wife and baby.
They were hugging and crying. His sister Robin Milan then arrived. Robin
directed their mother to take him home, and Robin stayed to look for
defendant's wife and baby.
At his mother's house at 8006 South Rhodes, several relatives
began arriving. They called hospitals searching for defendant's wife and
child. Robin arrived a short time later stating that she could not find Anita
or Phil at the fire scene.
Robin called for an ambulance for defendant. Defendant was taken
to St. Bernard's Hospital in Chicago, where Robin asked that he be given
a sedative. When the doctors informed her that tests would be needed first,
Robin took defendant back to his mother's house.
Later in the morning, police officers arrived at his mother's home.
Defendant's mother gave the officers the clothes he was wearing during
the fire. The officers then told defendant to come out to their car. They
questioned defendant about the fire and asked him if he had any enemies.
Defendant told the officers about his affair with McDaniel and how it had
ended badly. The officers then took defendant to Area 2 headquarters to
avoid the news media.
At Area 2, Detective Dwyer placed defendant in an interview room,
handcuffed him to a wall ring, and began to physically abuse and racially
harass him. Later, defendant was taken to 11th and State after giving out
McDaniel's telephone number. There defendant was asked a series of
questions by Sergeant Patrick Garrity. When defendant denied setting the
fire, Garrity kicked him. Defendant denied that he confessed to Garrity that
he had set the fire.
Detectives Dwyer and Lotito and Officer McWeeney escorted
defendant to another room where he was again handcuffed. Defendant
complained that his handcuffs were too tight. The officers hit and kicked
defendant and told him to confess. Lotito put a plastic typewriter bag over
his head until he blacked out. When he regained consciousness, Dwyer told
defendant that they had interviewed McDaniel. Defendant was then
allowed to see a lawyer, Steven Stern, and was placed in a lineup.
As defendant was being escorted back to Area 2, the media was
there. A reporter asked defendant why he did it. Defendant said, "I didn't
do it. They got the wrong person. I didn't do it." A videotape of this
discussion was entered into evidence. Therein, defendant denies setting the
fire, denies knowing who set the fire, and says he awoke to a smoke
detector.
On cross-examination, defendant admitted having had some
difficulties with his wife after Thanksgiving, 1986. On November 30,
1986, he took his son away from his wife. Defendant also admitted lying
to McDaniel about his wife to convince McDaniel to have sex with him.
John Campbell, an expert in the field of fire investigation and
analysis, testified that gasoline poured in the hallway outside of apartment
301 could not have been the cause of the damage to that area. Rather, the
damage outside of apartment 301 was the result of a "chimney effect,"
which caused the fire to burn hotter and gain intensity as it traveled up the
stairwell. The fire "mushroom[ed] out" at the upper level of the stairwell,
which acted like a firebox. In Campbell's opinion, accelerant actually
burned only in the stairwell at a point above the entry to the building. He
further opined that the fire happened exactly as defendant described it.
Robin Milan, defendant's sister, testified and corroborated some of
defendant's testimony. She stated that, after she arrived at the fire, she
stayed to look for defendant's wife and son while her mother took
defendant home. She could not locate them. Later, she followed defendant
to the emergency room so he could get a sedative. She removed defendant
from the hospital when she realized how long it would take.
Myra Hobley, defendant's mother, testified and she also
corroborated some of defendant's testimony. She stated that defendant was
shaking and crying when she arrived at the fire scene. She took defendant
to her home so he could calm down. A family member later called the
paramedics because defendant "was hysterical." The next morning, police
arrived and she gave them the clothing that defendant was wearing during
the fire, but forgot the coat. After realizing that she had forgotten to give
the coat to police, she gave the coat to defendant's public defender on
January 8, 1987. The coat was introduced into evidence as defense exhibit
1. It was a dark-colored ladies pea coat.
Penny Hobley, defendant's other sister, testified that she went to
the morgue and identified the bodies of defendant's wife and son.
Defendant was at their mother's house rocking and crying. At the morgue,
she saw Detective Dwyer and he asked her if she knew Angela McDaniel.
Curt Tucker of apartment 207 testified that he lived there with his
mother. His brother Anthony Bradford woke him and told him that there
was a fire. Tucker escaped out the rear stairwell. He went beneath the
window of apartment 203, where his sister lived, when he saw defendant
come up from under the viaduct. Defendant was wearing pants, but no
shoes. Defendant helped Tucker catch his infant nephew. Defendant told
Tucker that his wife and child were in an apartment where smoke and
flames were coming out the window. Later, a neighbor gave defendant
some shoes. There were no fire engines at the scene when Tucker saw
defendant.
Georgia White testified that she lived next door to 1121-23 East
82nd Street. During the fire, people came into her home to use the
telephone and for clothing. Defendant was one of those people. When he
arrived, defendant was wearing no shoes and, to her recollection, no coat.
She let defendant use her telephone. She also gave defendant a pair of gym
shoes to wear.
Three lawyers were attempting to locate defendant on January 6,
1987. Steven Stern was contacted by defendant's family that morning and
he contacted another attorney, Terry Stallings, who agreed to speak with
defendant. Stallings went to Area 2 headquarters. Upon his arrival, he was
told that defendant had never been there. He waited there for 90 minutes
but never saw defendant. Stallings returned to Area 2 later that afternoon
with another lawyer, Oliver Spurlock, but they never saw defendant.
Stern, after learning that Stallings had not seen defendant on his
first trip to Area 2, called Area 2. He learned that defendant was at 11th
and State. Upon his arrival there, Stern was told that he could not see
defendant yet because he was being interviewed. Stern was allowed to see
defendant about 30 minutes later and observed injuries to his wrists.
Defendant told Stern that the police had beaten and "bagged" him, and that
they were trying to force him to confess, but he kept telling them that he
did not do it. Stern then viewed the lineup.
It was stipulated that the clothes that defendant had on the night of
the fire had no gasoline on them. These were the clothes that defendant
gave to the police, and included a T-shirt, shorts, oversized pants, and gym
shoes.
The defense also introduced evidence regarding the earlier fire in
the building on December 31, 1986. It was stipulated that Battalion Chief
R. Pitschen would testify that he went to 1121-23 East 82nd Street, the
third-floor stairwell, in response to a fire alarm made at 5:06 p.m. on
December 31, 1986. He arrived at 5:09 p.m. and left at 5:23 p.m.
Cary Widel testified that he was the branch manager of the medical
company for which defendant worked. On December 31, 1986, defendant
was at work from 8:30 a.m. to 6 p.m. Charles Jordan testified that he
worked directly with defendant on December 31, 1986. They were together
until 6 p.m., when Jordan dropped defendant off at home.
The defense also made an offer of proof concerning the two-gallon
gasoline can introduced as People's exhibit 8. The trial court refused to
allow defendant's expert, John Campbell, to testify regarding the location
of the gasoline can, finding the testimony to be speculative. In the offer of
proof, Campbell testified that he inspected the gasoline can and the photos
taken of it at the scene. The photos revealed that the can was clean and in
excellent condition when photographed. Campbell stated that, given its
condition, the can was "nowhere near where there was any heavy fire or
heavy smoke." Upon viewing photos of the second floor, he opined that
the can could not have been in the following locations: on the front
stairwell, in the hallway outside the door to apartment 206, and anywhere
in the hallway between the door to apartment 206 and the front stairwell.

State's Case in Rebuttal
Two paramedics gave testimony to the effect that defendant did not
appear remorseful when they responded to the emergency call to give him
a sedative.
It was stipulated that defendant made statements to medical
personnel at the hospital that he had just lost his wife and baby in a fire.
There was soot in defendant's nasal passages. Earlier expert testimony had
established that both starting a fire and escaping a fire could cause soot in
nasal passages.
Ollie Portwood, the grandmother of Angela McDaniel, testified that
McDaniel was home at their house on the night of the fire. She stated:
"Angela didn't go no further than the back yard that night. She and the girl
upstairs from next door, they was playing, running and playing in the back
yard, and myself and the lady next door, we was in the kitchen. We could
see them, so she was out there." She did not know where McDaniel was
at the time of trial. She had not seen her in months.
Sergeant Patrick Garrity testified and denied abusing defendant.
Detective James Lotito also testified and denied abusing defendant. Lotito
took no notes whatsoever of defendant's alleged admissions. Lotito's notes
did refer to defendant's denials of his involvement with the fire, however.
The jury found defendant guilty of seven counts of felony murder,
one count of arson, and seven counts of aggravated arson, as earlier noted.
The jury was polled in open court. A bifurcated capital sentencing hearing
then commenced before the same jury. At the first stage, the jury found
defendant eligible for the death penalty. At the second stage, the jury
found no mitigating factors sufficient to preclude imposition of the death
penalty. The trial court sentenced defendant to death. A summary of the
evidence presented at defendant's sentencing hearing is contained in this
court's opinion on direct appeal. Hobley, 159 Ill. 2d at 288-90. Given that
defendant has not raised any issue relating to this evidence here, we do not
reiterate it.

Post-Conviction Proceedings
Defendant filed his first petition for post-conviction relief on May
30, 1995. It was amended twice thereafter. The operative petition,
defendant's second-amended post-conviction petition, was filed on May 13,
1996. It was accompanied by a large group of exhibits and affidavits. It
also referred to materials attached to the earlier petitions for post-
conviction relief. In response, the State filed an amended motion to dismiss
the second-amended post-conviction petition. After briefing and argument,
the circuit court granted the State's motion to dismiss all claims in the
second-amended post-conviction petition without conducting an evidentiary
hearing.
Defendant's post-conviction claims, and the materials filed in
support of those claims, are discussed in the analysis portion of the
opinion.

ANALYSIS
This is a proceeding under the Post-Conviction Hearing Act (Act)
(725 ILCS 5/122--1 et seq. (West 1994)). To obtain relief under the Act's
provisions, a defendant must establish that a substantial deprivation of his
constitutional rights occurred in his trial or sentencing hearing. 725 ILCS
5/122--1 (West 1994).
A defendant is not entitled to an evidentiary hearing on a post-
conviction petition as a matter of right. People v. Albanese, , 105 (1988). Rather, a hearing is required only when the allegations
of the petition, supported by the trial record and accompanying affidavits,
make a substantial showing of a violation of a constitutional right. People
v. Del Vecchio, , 279 (1989). For the purpose of
determining whether to grant an evidentiary hearing, all well-pleaded facts
in the petition and any accompanying affidavits are taken as true. People
v. Brisbon, , 245 (1995).
Determinations of the reviewing court on the prior direct appeal are
res judicata as to all issues actually decided, and any issue that could have
been presented, but was not, is waived. People v. Whitehead, 169 Ill. 2d 355, 371 (1996). The doctrines of res judicata and waiver will be relaxed,
however, in three situations: where fundamental fairness so requires, where
the alleged waiver stems from the incompetence of appellate counsel, and
where the facts relating to the claim do not appear on the face of the
original appellate record. Whitehead, 169 Ill. 2d at 371-72.
A circuit court's determinations regarding a post-conviction petition
will not be disturbed on appeal unless manifestly erroneous. People v.
Lear, 175 Ill. 2d 262, 268 (1997).

I. Brady Violations and Related Claim
Defendant initially contends that his constitutional right to due
process of law was violated at his jury trial because the State failed to
disclose to the defense all exculpatory evidence as required by Brady v.
Maryland, , 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).
Defendant asserts that the State's violation of his due process rights took
two forms: first, the State suppressed a fingerprint report on the gasoline
can that it introduced into evidence at defendant's trial; and, second, the
State suppressed a second gasoline can found at the scene of the fire, and
then destroyed it after defense counsel demanded its production during
post-conviction proceedings.
Defendant attached items to his post-conviction petition which, he
argues, demonstrate these alleged constitutional violations. The items
attached to defendant's post-conviction petition include two subpoenas; the
affidavit of one of defendant's post-conviction attorneys; the affidavit of
a defense investigator; a lab report related to defendant's case with police
record department number (RD No.) J008183; and several other police
reports with RD No. J007699, including a fingerprint report and a report
referencing a one-gallon can.
For the purpose of deciding whether to grant an evidentiary hearing
on defendant's Brady claims, we accept the well-pleaded facts in his post-
conviction petition and its accompanying affidavits as true. See Brisbon,
164 Ill. 2d at 245. We also accept the allegations of the petition where
supported by the trial record. See Del Vecchio, 129 Ill. 2d at 279. The
allegations of defendant's post-conviction petition and the supporting
evidence reveal the following.
The trial record discloses that defendant filed a pretrial discovery
request on March 25, 1987. Therein, defendant requested that the State
produce any report and results of fingerprint tests pertinent to the case.
Defendant also requested the disclosure of all material within the State's
possession or control that tends to negate defendant's guilt. Despite these
defense requests for production, the State never disclosed the results of
fingerprint tests performed on the two-gallon gasoline can introduced as
People's exhibit 8. Nor did the State disclose that a second gasoline can
was recovered from the fire scene.
The materials attached to defendant's post-conviction petition reveal
that, during defendant's post-conviction investigation, he issued two
subpoenas to the Chicago police department seeking the production of all
reports, records, documents or other items relating to any fingerprint
testing on the gasoline can introduced against him at trial and any other
objects recovered from the fire scene, and the results of any such tests.
The first subpoena was dated September 7, 1995, and was sent to the
Chicago police department crime laboratory. The second subpoena was
dated February 8, 1996, and was sent to the keeper of records, Chicago
police department. Defendant's post-conviction counsel attested that, in
response to the first subpoena, he was told that no records could be found
under the police RD number that he had. Apparently, RD No. J008183 was
the record department number assigned to defendant's case.
Defense investigator Lee Smith of the Capital Resource Center
stated in an affidavit that he subsequently spoke with Ms. Millbrooks from
the crime lab, who stated that some records were available. Smith also
spoke with Ms. Karlic of the "laser unit," who told him that other police
inventory numbers exist that are related to defendant's RD No. J008183.
Smith was then advised to call the evidence and recovered property section
(ERPS) of the Chicago police department. At Smith's request, Officer
Laverene of ERPS looked up the various inventory numbers Smith had
been given. Laverene told Smith that inventory number 357051 was a two-
gallon gasoline can that had been turned over to the State's Attorney's
office on July 16, 1990. Apparently, this gasoline can was the can used by
the prosecution as exhibit 8 at defendant's trial.
Smith's affidavit further states that Laverene told him that
inventory number 341644 was also a gasoline can, and that this second
gasoline can had been destroyed on October 6, 1995. Laverene stated that
the order to destroy this can was signed by Officer Virgil Mikus. Mikus
was one of the officers who investigated the fire in this case. The date of
destruction was less than one month after the issuance of defendant's first
subpoena to the crime lab. Although Laverene agreed to fax to Smith a
copy of Mikus' order to destroy the second can, Laverene's supervisor
later called Smith and told him that defendant needed a court order before
any records would be produced.
Defendant's post-conviction petition further alleges that his post-
conviction investigation revealed that an additional record department
number other than RD No. J008183 had been assigned to records relating
to the fire in this case, that being RD No. J007699. In support of this
allegation, defendant attached several Chicago police department evidence
and laboratory reports relating to the fire that do not contain defendant's
name. All these reports contain RD No. J007699, and they list the names
of victims who died in the fire. One of the reports filed under RD No.
J007699 was a "Request for Analysis/Receipt for Exhibit" for the "Crime
Laboratory Division/Chicago Police." This report indicates that the two-
gallon gasoline can used as an exhibit at defendant's trial was submitted
for fingerprint testing on January 6, 1987. The report additionally indicates
that three forms of fingerprint testing were performed on this gasoline can
on January 6, 1987, and that the results of those tests were negative. A
second report filed under RD No. J007699 clearly relates to the fire and
it states that a one-gallon can containing debris was recovered from the
ground-floor stairwell.
Defendant asserts that the foregoing evidence entitles him to an
evidentiary hearing on his claim that the State violated Brady by
suppressing exculpatory evidence. Defendant contends that the State
violated Brady by suppressing (1) the negative fingerprint report on the
gasoline can that it introduced against him at trial, and (2) a second
gasoline can found at the fire scene.
The United States Supreme Court set forth the government's
affirmative duty to disclose evidence favorable to a defendant in Brady v.
Maryland, , 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). There,
the petitioner was convicted of first degree murder and sentenced to death,
and his conviction was affirmed on appeal. Subsequently, the petitioner
learned of an extrajudicial confession by his accomplice admitting the
homicide. Although the petitioner had requested disclosure of his
accomplice's statements before his trial, the prosecution had suppressed
one in which the accomplice admitted committing the homicide. The
Supreme Court held that the prosecutor's suppression of this confession
violated the due process clause of the fourteenth amendment to the United
States Constitution. The Court in Brady set forth this general rule: "the
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the
prosecution." Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at
1196-97. The Court explained that this principle is not intended to punish
society for the misdeeds of a prosecutor, but to ensure a fair trial for the
accused and to protect the administration of justice. Brady, 373 U.S. at 87-
88, 10 L. Ed. 2d at 218-19, 83 S. Ct. at 1197.
To establish a Brady violation, suppressed evidence must be both
favorable to the accused and material. Favorable evidence is material in
this context "only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have
been different." United States v. Bagley, , 682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383 (1985). A "reasonable probability" of a
different result is a "probability sufficient to undermine confidence in the
outcome." Bagley, 473 U.S. at 682, 87 L. Ed. 2d at 494, 105 S. Ct. at
3383. In making a materiality determination, a court considers the
cumulative effect of all suppressed evidence favorable to the defense,
rather than considering each piece individually. Kyles v. Whitley, , 436-41, 131 L. Ed. 2d 490, 507-10, 115 S. Ct. 1555, 1567-69 (1995).
The prosecution cannot escape its duty under Brady by contending
that the suppressed evidence was known only to police investigators and
not to the prosecutor. Kyles, 514 U.S. at 438, 131 L. Ed. 2d at 508-09, 115 S. Ct. at 1568. As the Supreme Court explained in Kyles, "any argument
for excusing a prosecutor from disclosing what he does not happen to
know about boils down to a plea to substitute the police for the prosecutor,
and even for the courts themselves, as the final arbiters of the
government's obligation to ensure fair trials." Kyles, 514 U.S. at 438, 131 L. Ed. 2d at 509, 115 S. Ct. at 1568.
Applying the foregoing principles of constitutional law here, we
conclude that defendant is entitled to an evidentiary hearing on his Brady
claims. The trial record and defendant's post-conviction petition clearly
support his claims that, despite his pretrial requests for production, the
State failed to disclose to him the existence of two pieces of exculpatory
evidence: (1) a report that defendant's fingerprints were not on the
gasoline can introduced against him at his trial, and (2) a second gasoline
can found at the fire scene.
As to the fingerprint report, the record of defendant's trial discloses
that an important part of the State's case was the two-gallon gasoline can
admitted as People's exhibit 8. Detective John Paladino testified about his
discovery of this can at the fire scene. The discovery of this can was
utilized to corroborate defendant's confession. The trial record also shows,
however, that the State did not disclose to the defense that a fingerprint
analysis had been performed on the can. Nor did the State disclose to the
defense the results of such test. To the contrary, the State informed
defendant that no such fingerprint analysis had been performed. Paladino
testified that the black powder on the can at trial appeared to be fingerprint
powder and that he believed the can had been sent to the crime lab for
fingerprint testing. As a result of this testimony, the defense moved, at the
close of the State's case, for a mistrial based on the State's failure to
disclose that a fingerprint analysis had been performed on the can. In
response, the assistant State's Attorney told the trial judge that no such
fingerprint report existed. The trial judge accepted the State's
representation and denied defendant's motion for a mistrial. Now,
defendant has attached to his post-conviction petition items which indicate
that, in contrast to the State's representation at trial, the State had
performed three forms of fingerprint testing on this gasoline can on
January 6, 1987. The results of those tests were contained in a report filed
under RD No. J007699. The report stated that the test results were
negative. These fingerprint results are clearly favorable to the defense.
Additionally, as to the second gasoline can, the record of
defendant's trial reveals that defendant was never informed by the State
that more than one gasoline can had been recovered from the fire scene.
Now, however, defendant has attached to his post-conviction petition items
which indicate that a second gasoline can was recovered from the fire
scene. Defense investigator Smith averred that Officer Laverene of the
Chicago police department informed him that a second gasoline can
relating to defendant's case had been filed with an inventory number
341644. Moreover, a report relating to the fire states that a one-gallon can
was recovered from the ground-floor stairwell. This report, like the
negative fingerprint report, had been filed under RD No. J007699. The
existence of a second gasoline can found at the fire scene is also clearly
favorable to the defense.
The State contends that defendant has failed to show that these
pieces of evidence were material under Brady. The State separately
analyzes the possible impact that disclosure of the fingerprint report may
have had on the trial. Later in its brief, the State then separately analyzes
the possible impact that disclosure of the existence of the second gasoline
can may have had on the trial. The State's method of analysis is
fundamentally flawed. As earlier noted, in making a determination of
materiality under Brady, the court must consider the cumulative effect of
all suppressed evidence favorable to the defense, rather than considering
each piece individually. Kyles, 514 U.S. at 436-41, 131 L. Ed. 2d at 507-
10, 115 S. Ct. at 1567-69.
We are persuaded that defendant has made a substantial showing
of materiality under Brady. Materiality is shown where there is a
reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. Bagley, 473 U.S. at 682, 87 L. Ed. 2d at 494, 105 S. Ct. at 3383. A "reasonable probability"
of a different result means a "probability sufficient to undermine
confidence in the outcome." Bagley, 473 U.S. at 682, 87 L. Ed. 2d at 494,
105 S. Ct. at 3383. At defendant's trial, the defense theory was that
another person had started the fire. The negative fingerprint report and the
existence of a second gasoline can found at the fire scene certainly would
have offered concrete evidentiary support to that defense theory. At trial,
the State claimed that defendant confessed to starting the fire and to
throwing the gasoline can he used into the second-floor hallway. In
contrast to the State's case, defendant denied that he made any
confessions. He supported this contention with his own testimony and by
pointing out that the officers who testified as to his confessions had no
contemporaneous documentation to support their claim. Defendant also
presented the testimony of his attorney Steven Stern, who spoke with
defendant immediately after his interview by the officers. Stern testified
that, during this conversation, defendant told him that the police had
beaten and "bagged" him, and that they were trying to force him to
confess, but defendant kept telling the officers that he did not do it.
Defendant further presented a media videotape taken of him as he was
being escorted by a detective shortly after he was alleged to have given his
confessions. A reporter asked defendant why he did it. Defendant told the
reporter that he did not set the fire, that he did not know who did, and that
he awoke to a smoke detector. Had defendant been given the negative
fingerprint report, he would have had scientific evidence to show that his
fingerprints were not on the gasoline can found inside of apartment 206.
This would have provided defendant with further support for the
unreliability of his alleged confession. Moreover, had the existence of a
second gasoline can been disclosed, defendant would have had a piece of
physical evidence that could have weighed heavily against the State's
presentation of the gasoline can that it utilized against him as People's
exhibit 8, and against the State's claim that this can was strong evidence
of defendant's guilt.
Significantly, the trial testimony regarding the location where
People's exhibit 8 was found, although used by the State to corroborate
defendant's confession, was inconsistent with that confession. The officers
stated that defendant confessed to them that he had thrown the gasoline
can used to start the fire into the second-floor hallway. People's exhibit 8,
however, was found located inside of apartment 206, under the kitchen
sink. No explanation was provided at trial as to how this gasoline can,
after being thrown down the second-floor hallway, made it underneath a
kitchen sink inside of apartment 206. Another problem with People's
exhibit 8 was also revealed at trial. People's exhibit 8 was a two-gallon
gasoline can, but both men who testified at trial concerning the purchase
of gasoline stated that they believed the man was carrying a one-gallon
gasoline can. These inconsistencies in the State's evidence presented
against defendant at trial are placed in an entirely different light once they
are considered along with the suppressed fingerprint report and second
gasoline can. Certainly, credibility assessments were for the trier of fact to
make. Had the jury here, however, been informed of the suppressed
evidence, it may well have believed defendant's testimony at trial that he
never confessed to setting the fire and that he never told officers that he
threw a gasoline can down the second-floor hallway. We therefore
conclude that there is a reasonable probability that, had such evidence been
disclosed to the defense, the result of the proceeding would have been
different. Our confidence in the outcome of defendant's trial has been
seriously undermined by the possibility that the State failed to disclose
exculpatory evidence of this nature to the defense.
The State counters that defendant's Brady claims are barred by res
judicata by virtue of his direct appeal. We disagree. Defendant's Brady
claims, both with regard to the suppressed fingerprint report and the
second gasoline can, are the result of a post-conviction investigation and
disclosures by the Chicago police department. As such, the information
upon which the claims are based are clearly outside of the trial record
upon which this court's ruling on direct appeal was based (see Hobley, 159
Ill. 2d at 306-08). Because the record does not contain the evidence
defendant now presents, the merits of defendant's claims are properly
considered. See People v. Orange, , 167 (1995); People v.
Thomas, , 323-24 (1967) (res judicata does not preclude
consideration in post-conviction proceedings of "constitutional questions
which, by their nature, depended upon facts not found in the record").
The State also asserts that defendant's Brady claims must fail
because he made no showing that the items in question were in control of
the prosecution at the time of trial. The State is mistaken. Contrary to the
State's assumption, the law is well settled that the same Brady rules apply
even where the suppressed evidence was known only to police
investigators and not to the prosecutor. Kyles, 514 U.S. at 438, 131 L. Ed. 2d at 508-09, 115 S. Ct. at 1568. Consequently, the State's argument must
be rejected.
In conclusion, defendant has made a substantial showing that the
State did in fact fail to disclose to him two items of material, exculpatory
evidence that it had in its possession, in violation of Brady and its
progeny. Accordingly, defendant is entitled to an evidentiary hearing on
this matter. If defendant establishes the alleged Brady violations at his
evidentiary hearing, he is entitled to a new trial.
An argument by the State remains to be addressed. The State
contends that this case is governed by Arizona v. Youngblood, ,
102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), and not by Brady, because the
second gasoline can has been destroyed. We disagree. Brady directly
addresses the State's responsibility to turn over favorable, material
evidence to the defense upon a pretrial request. Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97. Defendant has alleged in his post-
conviction petition new evidence showing that the State failed to fulfill this
exact responsibility. Brady therefore applies. If by this argument the State
is suggesting that it can somehow eliminate a Brady violation by
destroying suppressed evidence in its possession after the trial, we reject
that assertion as a matter of principle.
In response to the State's argument, defendant contends that, even
if Youngblood were to apply, he is entitled to an evidentiary hearing on
this portion of his post-conviction petition. The Supreme Court in
Youngblood considered the due process ramifications where the
government fails to preserve a piece of evidence which the defendant
claims would have been useful to him at trial. The Court held that "unless
a criminal defendant can show bad faith on the part of the police, failure
to preserve potentially useful evidence does not constitute a denial of due
process of law." Youngblood, 488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337. Assuming for the sake of argument that Youngblood applies, we
agree with defendant that his post-conviction petition makes a sufficient
showing that the State acted in bad faith in destroying the second gasoline
can. The items attached to the petition make a substantial showing that the
State has acted with bad faith in suppressing exculpatory evidence
throughout the course of proceedings in defendant's case, despite
defendant's requests that he be given the evidence. Before his trial,
defendant filed a motion for discovery requesting the production of reports
pertaining to fingerprint testing and other exculpatory evidence related to
the case. Despite these requests, defendant was never informed of the
existence of a negative fingerprint report on the gasoline can introduced
as People's exhibit 8, nor was he informed of the existence of a second
gasoline can found at the fire scene. The items attached to defendant's
petition indicate that these items were in the possession of the State before
and during defendant's trial. Both the fingerprint analysis and the second
gasoline can were apparently catalogued by the Chicago police department
in reports with RD No. J007699, an RD number that defense counsel did
not have at the time of trial. Defendant claims that this worked to mask the
existence of these items from the defense. Later, during defendant's post-
conviction investigation, he issued two subpoenas to the Chicago police
department for information relating to this case. A police department
employee, Officer Laverene, informed defendant's investigator, Smith,
about the existence of the second gasoline can. Laverene also told Smith
that this can was destroyed on October 6, 1995, on the order of Officer
Mikus. That date was less than one month after the issuance of defendant's
first subpoena. Defendant submits that, just as one can infer consciousness
of guilt from flight, the inference here is crystal clear--that upon receipt of
a subpoena regarding the theretofore successfully hidden gasoline can, the
officer central to the investigation ordered its destruction. The trial record
shows that Mikus testified that he arrived at the fire scene at 3:10 a.m. on
January 6, 1987, and was assigned to investigate fire cause and origin. As
part of his investigation, he examined the exterior and interior of the
building, and collected debris samples for examination. Mikus did not
testify that he recovered a gasoline can from the building. Yet it was
Mikus who later ordered the gasoline can destroyed. The actual
circumstances surrounding the destruction of the second gasoline can are
not known because the State has refused to produce any information
regarding its destruction without a court order. Considered as a whole,
these facts support a finding that the State's destruction of the second
gasoline can was motivated by bad faith.
In addition to a showing of bad faith, this court has stated that a
due process violation under Youngblood requires a showing that the
evidence lost or destroyed was important relative to the evidence presented
against the defendant at trial. People v. Hobley, , 307
(1994); see also People v. Newberry, (1995). Defendant has
sufficiently shown that the second gasoline can was important relative to
the evidence presented against him at trial. The trial established that the
fire was intentionally ignited through the use of gasoline. The State
proceeded on the theory that the gasoline can admitted at trial as People's
exhibit 8 was used to start the fire, and used this can to corroborate
defendant's alleged confession. As noted earlier, the trial testimony
regarding the location where People's exhibit 8 was found was not
consistent with that confession. The officers stated that defendant told them
that he had thrown the gasoline can used to start the fire into the second-
floor hallway, but People's exhibit 8 was found located inside of apartment
206 under the kitchen sink. No explanation was provided at trial for this
discrepancy. A second problem with People's exhibit 8 was that it was a
two-gallon gasoline can, even though both men who testified at trial
concerning the purchase of gasoline stated that they believed the man was
carrying a one-gallon gasoline can. Given these discrepancies in the State's
evidence, the existence of a second gasoline can found at the fire scene
was important relative to the evidence presented against defendant at trial.
Moreover, the second gasoline can remained of substantial value to
defendant even after his trial, in the sense that its very existence could be
used to prove a Brady violation by the State. At the very least, it appears
that the police located and recovered two different gasoline cans from the
scene of this fire. It was not up to the police to decide that only one of
these cans was relevant to the case and to deny defendant access to the
other one. It strains credulity to suggest that a second gasoline can
recovered from the fire scene was not important relative to the evidence
presented against defendant at his trial.
The foregoing analysis shows that, even under the more stringent
Youngblood test, defendant's post-conviction petition has made a
substantial showing of a violation of his constitutional rights. Given this
showing, we hold that, with regard to the second gasoline can, an
evidentiary hearing must be held to determine whether it was suppressed
by the State during trial in violation of Brady, and also to determine if it
was later destroyed in bad faith by the State, as contemplated by
Youngblood. All information surrounding the second gasoline can should
be considered at the hearing. According to an affidavit attached to the
post-conviction petition, the State has refused to turn over to the defense
copies of its records regarding the second gasoline can without a court
order. We hereby order the State to provide the defense with all the
information that it has concerning the second gasoline can and its
destruction. We also order the State to provide the defense with all the
information that it has regarding the negative fingerprint analysis.
In remanding for an evidentiary hearing, we stress that we are
deeply troubled by the nature of the allegations made in this case.
Defendant has provided evidence which suggests that items favorable to
the defense were suppressed by the State, and that this suppression was
accomplished, in part, by cataloging evidence under an RD number that
was not made available to the defense. The materials attached to
defendant's post-conviction petition indicate that defendant discovered
during his post-conviction investigation that an additional RD number had
been assigned to records relating to the fire in this case, that being RD No.
J007699. He attached several Chicago police department evidence and
laboratory reports relating to the fire that do not contain defendant's name.
All these reports contain RD No. J007699, and they list the names of
victims who died in the fire. One of the reports filed under RD No.
J007699 contained the negative fingerprint results. A second report filed
under RD No. J007699 referenced the one-gallon can. Defendant seeks to
make a parallel between his case and the infamous "street files" formerly
used by some Chicago police detectives. See Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988); Palmer v. City of Chicago,
(N.D. Ill. 1983), reversed by 755 F.2d 560 (7th Cir. 1985). Although at
this stage we cannot ascertain whether defendant's asserted parallel is
warranted, we point this out to underscore the seriousness of these
allegations and the need for a thorough evidentiary hearing on remand.

II. Actual Innocence Claim
Defendant next asserts that he is entitled to an evidentiary hearing
or a new trial on his claim that he has newly discovered evidence that
provides compelling evidence that he is actually innocent of the arson and
murders for which he stands convicted. The newly discovered evidence
defendant points to include the negative fingerprint report on the gasoline
can introduced against him at trial, and the second gasoline can found at
the fire scene.
Relief under our Post-Conviction Hearing Act is limited to
constitutional claims. 725 ILCS 5/122--1 (West 1994). In People v.
Washington, 171 Ill. 2d 475 (1996), this court recognized the viability of
a "free-standing" claim of actual innocence in post-conviction review. This
claim is cognizable under the due process protection provided in the
Illinois Constitution of 1970 (Ill. Const. 1970, art. I, sec. 2). Washington,
171 Ill. 2d at 487-89. A "free-standing" claim of innocence means that the
newly discovered evidence being relied upon "is not being used to
supplement an assertion of a constitutional violation with respect to [the]
trial." See Washington, 171 Ill. 2d at 479. For example, in Washington, a
witness came forward years after the defendant's conviction and stated that
two other men had committed the murder for which the defendant was
convicted, and that she had not come forward sooner out of fear for her
life. Washington, 171 Ill. 2d at 477-78. This newly discovered evidence
was deemed sufficient to grant relief. Washington, 171 Ill. 2d at 489-90.
In this appeal, we have already held that the State's actions
regarding the fingerprint report and second gasoline can may establish a
violation of defendant's constitutional right to due process under Brady.
Consequently, this evidence does not support a "free-standing" claim of
actual innocence. Rather, the newly discovered evidence defendant points
to here is being used to supplement his assertions of constitutional
violations with respect to his trial. Defendant has therefore not properly
raised a claim of actual innocence under Washington.
In addition, defendant briefly mentions that he has newly
discovered evidence showing that the officers at Area 2 engaged in a
pattern and practice of police torture. This evidence, however, is being
used to supplement defendant's assertion, in part III, that his confessions
were coerced and involuntary and that the introduction of these confessions
violated his constitutional rights. Therefore, this evidence also fails to
support a "free-standing" claim of actual innocence under Washington.
In conclusion, defendant is not entitled to either an evidentiary
hearing or a new trial on his actual innocence claim.

III. Evidence of Prior Police Brutality
Defendant claims that he is entitled to an evidentiary hearing on his
claim that newly discovered evidence requires a new trial. The newly
discovered evidence submitted by defendant consists of reports, transcripts
and other documents, all of which set forth allegations by other suspects
of abuse by police officers at Area 2 police headquarters. Defendant
contends that this evidence would have corroborated his claim at trial that
he was physically abused by police officers at Area 2 and would have
established that his alleged confessions were coerced and involuntary,
making their introduction at trial a violation of his constitutional rights.
Prior to his trial, defendant moved to suppress his alleged
confessions to police on the ground that the statements were the result of
police brutality. Defendant testified at the hearing on the motion that he
was physically brutalized by several police officers at Area 2 police
headquarters. Defendant stated that Detective Robert Dwyer hit and
punched him repeatedly in the stomach, chest and face. Defendant also
stated that Dwyer pushed his thumbs against defendant's throat and
handcuffed his wrists so tightly that he experienced pain. Defendant
testified that Detective James Lotito put a plastic typewriter cover over his
head, cutting off his air supply and causing him to black out. Defendant
further testified that both Dwyer and Lotito made racial and threatening
remarks to him. Defendant further testified that, while he was at another
area police headquarters, he was kicked and threatened by Sergeant Patrick
Garrity. Defendant also testified that he never confessed involvement in
this crime to any police officer. Dwyer, Lotito and Garrity each testified
at the suppression hearing and denied that defendant was physically abused
or harassed in any way. The trial court ruled that defendant's confessions
were not procured through physical abuse and denied his motion to
suppress on that ground.
At trial, defendant testified and again related his allegations of
abuse at the hands of Dwyer, Lotito and Garrity. Defendant also reiterated
his testimony that he had not made any inculpatory statements to any of
these police officers. Dwyer, Lotito and Garrity testified at trial and again
denied that defendant was subjected to any physical abuse. In order to
corroborate his claim that he was abused by these police officers,
defendant sought at trial to introduce evidence that three other persons
claimed to have been physically abused by Dwyer. The State filed a
motion in limine to preclude this testimony. The trial court reviewed
defendant's proffered evidence and granted the State's motion to exclude
it.
On direct appeal, this court affirmed both the trial court's ruling
denying defendant's motion to suppress and the ruling excluding
defendant's proffered testimony of other incidents of police brutality.
Hobley, 159 Ill. 2d at 294-95, 311-12. In affirming the denial of the
suppression motion, we noted that, although photographs taken of
defendant after his confession revealed scrapes on his wrists and a small
bruise on his chest, defendant had not shown that he was injured by the
police. Dwyer had testified that the wrist injuries were inflicted by
defendant himself as he tugged at the handcuffs. With regard to the chest
bruise, defendant had presented no evidence that the bruise was not present
prior to his arrest. We concluded that, because defendant did not sustain
any injuries consistent with his allegations of abuse, and all the police
officers involved denied the alleged brutality, the trial court did not abuse
its discretion in denying the motion to suppress. Hobley, 159 Ill. 2d at 294-
95.
We also upheld the trial court's exclusion of defendant's proffered
evidence of prior acts of brutality by Dwyer. Defendant sought to
introduce evidence of allegations of police brutality made by Vincent
Lawson, Carolyn Tomsek and Stanley Howard. We upheld the trial court's
ruling excluding this evidence. We held that the allegations by Lawson and
Tomsek were not similar to those made by defendant and were therefore
not relevant to defendant's case. We further held that the allegations made
by Howard, although similar to those made by defendant, were properly
excluded for two reasons: (1) the alleged abuse of Howard took place in
1984 and was therefore too remote to defendant's case, and (2) neither
Howard nor defendant sustained any injuries consistent with their claims
of police brutality. Hobley, 159 Ill. 2d at 311-12.
Defendant now seeks a new trial on the ground that he has newly
discovered evidence that other suspects were physically abused by some
of the same Area 2 officers whom he claims abused him. In support of this
claim, defendant attached to his post-conviction petition a report by the
Chicago police department office of professional standards which studied
allegations of physical abuse at Area 2 between 1973 and 1986 and
concluded that such abuse was "systematic" during that time period.
Defendant also submitted numerous transcripts of testimony by other
persons alleging that they were victims of police brutality by various
officers at Area 2. Defendant argues that, had this evidence been presented
at his trial, the jury likely would have concluded that his alleged
confessions were the product of police brutality and would therefore have
reached a different result. Accordingly, defendant claims that he is entitled
to a new trial on the basis of this evidence.
The State contends that this issue is barred by the doctrine of res
judicata as a result of this court's decision on direct appeal. We agree. In
a post-conviction proceeding, determinations of the reviewing court on the
prior direct appeal are res judicata as to all issues actually decided. People
v. Whitehead, 169 Ill. 2d 355, 371 (1996). On his direct appeal in this
case, defendant argued, inter alia, that the trial court erred in excluding the
testimony of three other persons who were allegedly abused by Dwyer.
Defendant sought to introduce this evidence to corroborate his testimony
that he was abused by Dwyer and Lotito. The State's motion in limine to
exclude this testimony was granted by the trial court. This court affirmed.
In reaching this holding, we discussed the admissibility of evidence of
prior police brutality in this context. We noted that one of the requirements
for admitting such evidence is that in both the prior allegation of abuse
and the case before the court, there is evidence of injury consistent with
police brutality. We then concluded that defendant had not shown any
injuries which were consistent with the police brutality he alleged.
Consequently, we held that the trial court did not err in excluding
defendant's proffered testimony of prior police brutality. Hobley, 159 Ill. 2d at 311-12.
In his post-conviction petition, defendant argues that he now has
additional evidence that other suspects were physically abused at Area 2.
We held on direct appeal that it was not error to exclude defendant's
evidence of prior police brutality because defendant has not shown any
injuries commensurate with his alleged beatings. Defendant's "new"
evidence does not alter that fact. Defendant does not submit any new
evidence to demonstrate that he suffered any physical injuries in addition
to those that were revealed in the record on direct appeal. Rather,
defendant only submits evidence of additional alleged incidents of prior
police abuse at Area 2. Accordingly, what this court found to be lacking
in defendant's position on direct appeal is still lacking. Our determination
on direct appeal that defendant did not suffer injuries consistent with his
claims of abuse is not altered by defendant's new evidence. This issue is
therefore barred by res judicata. See People v. Thomas, ,
433-34 (1995) (issue decided on direct appeal was res judicata in post-
conviction proceeding even though defendant submitted new facts in
support of issue); People v. Thompkins, , 176 (1994)
(argument that confession should have been suppressed was decided on
direct appeal and was therefore res judicata in post-conviction proceeding
and new evidence submitted by defendant did not warrant reconsideration
of issue).
In the particular context of this case, fundamental fairness does not
require that we relax the res judicata bar and revisit this issue. In order for
newly discovered evidence to warrant a new trial, the evidence must be
" ` "of such conclusive character that it will probably change the result on
retrial." ' " People v. Silagy, , 368 (1987), quoting People
v. Molstad, , 134 (1984), quoting People v. Baker, , (1959). Defendant here argues that his new evidence of other
alleged incidents of police brutality would likely alter the result on retrial
because it would convince the trier of fact that his alleged confessions
were coerced and involuntary. We note, however, that at trial, as well as
at the suppression hearing, defendant testified that he did not make any
confessions in this case. He testified that he was physically abused by
Dwyer, Lotito and Garrity, but that he did not confess to setting the fire.
Thus, it has consistently been defendant's position in this case that he did
not make any confessions. Defendant supported this contention by his own
testimony and by the testimony of an attorney who testified that he saw
defendant immediately after the alleged confession to police and defendant
told him he had not confessed. Defendant also introduced evidence of a
videotape of a news report in which he, shortly after the alleged confession
to police, stated to reporters that he had not committed this crime.
Defendant also elicited testimony from the police officers who testified to
his confessions that they had no contemporaneous documentation of his
alleged confessions. Defense counsel argued these points to the jury during
closing argument.
In order to demonstrate the "conclusive" effect of the new brutality
evidence, defendant argues that this evidence would have convinced the
jury that his confessions were the product of police brutality. This
argument is, of course, inconsistent with the position defendant took
throughout the trial and with his own testimony that he did not make any
confessions. Accordingly, in order for the jury to have concluded that
defendant's confessions were coerced, the jury would have had to believe
defendant's testimony that he was physically abused, but disbelieve his
testimony that he did not confess. Thus, the contention that defendant
confessed but that the confession was the product of coercion was not a
particularly persuasive one for the defense. For this reason, we conclude
that it is not likely that, had this new evidence of brutality allegations been
introduced, the jury would have concluded that defendant's confessions
were coerced. Defendant's primary challenge to the confessions was that
they were fabricated by police, and evidence that other suspects were
allegedly coerced into confessing would not have directly aided that
position.
For the foregoing reasons, we hold that defendant is not entitled to
an evidentiary hearing on his claim that a new trial is warranted because
of newly discovered evidence of police brutality at Area 2.

IV. Ineffective Assistance of Counsel Claims
Defendant raises three claims of ineffective assistance of counsel.
Defendant contends that he is entitled to an evidentiary hearing on these
claims. In this context, an evidentiary hearing is required only if the
allegations of the petition, supported by the trial record and any
accompanying affidavits, make a substantial showing of a violation of
defendant's constitutional right to the effective assistance of counsel. See
Del Vecchio, 129 Ill. 2d at 279. To prevail on a claim of ineffective
assistance of counsel, a defendant must demonstrate both that his defense
counsel's performance was deficient and that, but for defense counsel's
deficient performance, the result of the proceeding would have been
different. Strickland v. Washington, , 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984).

A. Failure to Adequately Investigate Police Torture
Defendant first contends that his trial counsel were ineffective for
failing to adequately investigate his claims of police torture. This
contention is related to his newly discovered evidence claim addressed in
part III. Defendant here argues that his trial counsel should have located
the information appended to his post-conviction petition in support of that
claim, to the extent that it predates his trial. Had his counsel obtained this
information, defendant asserts, they could have used it to support his
testimony at trial.
We concluded earlier in this opinion that it is not likely that, had
additional evidence of brutality allegations been introduced at trial, the jury
would have concluded that defendant's confessions were coerced.
Accordingly, we cannot conclude here that the outcome of defendant's trial
would have been different, but for counsel's failure to obtain the same
information. Defendant has therefore failed to meet the prejudice prong of
Strickland. This argument is rejected.
In a related argument, defendant insists that his counsel were
ineffective for failing to procure evidence regarding his medical condition
before his arrest. He claims that this information was readily available
because, after the fire, he was treated by paramedics and taken to a
hospital. Defendant asserts that, had his counsel interviewed the medical
personnel who treated him and obtained his medical records, counsel
would have obtained evidence of his physical condition before his arrest,
which could have been compared to the injuries he had on January 7,
1987.
Defendant has not attached any affidavits or other material to his
post-conviction petition in support of this claim. Without such, this claim
is waived because it could have been presented on direct appeal. See
Whitehead, 169 Ill. 2d at 371. Were we to address this claim on its merits,
however, it would fail. Defendant is entitled to an evidentiary hearing only
if the allegations of his post-conviction petition, supported by the trial
record and any accompanying affidavits, make a substantial showing of a
violation of his constitutional right to effective assistance of counsel. See
Del Vecchio, 129 Ill. 2d at 279. Defendant's claim here rests upon pure
speculation. There has been no showing that information pertaining to
defendant's overall physical condition was readily available from the
paramedics or hospital personnel who treated him. More particularly, there
has been no showing that any of these medical personnel even viewed
defendant's chest, much less noted that it was free of bruises.
Consequently, defendant has not made the required showing to warrant an
evidentiary hearing on this claim.

B. Failure to Move to Suppress
or Object to Identification Testimony
Defendant next argues that his trial counsel were inadequate for
failing to move to suppress or object to the identification testimony of
Kenneth Stewart. Stewart was the service station attendant who identified
defendant at trial as the man who purchased gasoline from him before the
fire. At trial, Stewart testified that he witnessed a lineup at 4 p.m. on
January 6, 1987. In his testimony Stewart candidly admitted that, at the
lineup, he stated that he thought defendant was the man, but that he could
not tell with "any degree of certainty." Stewart told police during the
lineup that defendant "favored" the man who purchased the gasoline.
Defendant attached an affidavit from Stewart to his post-conviction
petition. In it, Stewart avers that he was asked by police to view the lineup
to identify the man who purchased the gasoline. The lineup consisted of
five African-American men, one of whom was shorter than the other four.
Stewart was not able to identify anyone. Stewart was still not able to make
an identification after going into the lineup room and listening to the men
ask for "$1.50 worth of gas." Stewart felt pressured by a prosecutor to
make a positive identification. Stewart was asked "if any of the men more
likely than not was the man," and Stewart picked out defendant, the
shortest man. At trial, Stewart identified defendant as the man who
purchased the gasoline "although [he] was not certain." Stewart did not
recall being contacted by the defense before trial. Defendant now asserts
that the failure of his trial counsel to obtain this information from Stewart
constitutes ineffective assistance. He argues that counsel should have filed
a motion to suppress Stewart's identification and that, without this
information, counsel could not have made a strategic choice about whether
to file the motion to suppress.
The record of defendant's trial, however, reveals that counsel had
almost all this information and used it. Steven Stern, the attorney who
represented defendant during the lineup, testified that he viewed the lineup
and Stewart's identification. Stern informed the jury that on several
occasions Stewart failed to make an identification, that he again made no
identification after he heard each person ask for $1.50 worth of gas, that
he declined to rate his certainty of identification on a scale of 1 to 10, and
that he finally identified defendant only when asked if it was more likely
than not that someone in the lineup was the person. Therefore, the
information that defendant now asserts should have been presented to the
jury by trial counsel was in fact presented to them through Stern's
testimony. Trial counsel used this information at trial in an effort to cast
doubt on Stewart's identification testimony. Defendant has thus failed to
show any deficiency in the performance of his counsel.
Defendant nonetheless asserts that his counsel was deficient because
they should have filed a motion to suppress rather than presenting Stern's
testimony at trial. To show deficiency, a defendant must overcome the
strong presumption that the challenged action or inaction of counsel was
the product of sound trial strategy and not of incompetence. People v.
Barrow, , 247 (1989). The decision whether to file a motion
is a matter of trial strategy which will be accorded great deference. People
v. Wilson, , 454-55 (1994). Here, the decision by counsel
to present this information at trial rather than file a motion to suppress was
a sound strategic decision. Defendant's ineffectiveness claim thus fails.

C. Failure to Secure a Witness' Presence at Trial
Defendant contends that his trial counsel were ineffective for failing
to secure the presence of Angela McDaniel so that she could testify on his
behalf at trial. This claim was raised and adjudicated on defendant's direct
appeal. Hobley, 159 Ill. 2d at 305-06. Defendant asserts, however, that the
doctrine of res judicata does not apply here because his claim is based on
information outside the record. He points to an affidavit by McDaniel,
attached to his post-conviction petition. Defendant's claim can be
considered if it depends upon facts found in this affidavit that are outside
the record on direct appeal. See Whitehead, 169 Ill. 2d at 372-73.
In her affidavit, McDaniel attests that she was living in Philadelphia
during defendant's trial, and that she was never contacted by anyone
working on defendant's behalf. She further states that the police treated her
badly when they questioned her about the fire the day after it happened.
She was called a "bitch" and a "ho" and accused of setting the fire. She
was held at the station on 11th and State from about noon until midnight.
McDaniel also avers that, although her grandmother Ollie Portwood
testified that McDaniel was playing in her backyard on the night of the
fire, McDaniel was not. Her grandmother now suffers from Alzheimer's
Disease. The facts alleged in McDaniel's affidavit are not contained in the
record on direct appeal. We therefore consider the merits of this claim.
The record of defendant's trial reveals that the State obtained a
court order to secure McDaniel's testimony at trial on behalf of the State.
The trial court also gave defense counsel permission to interview
McDaniel before she testified. Despite the court order, McDaniel never
appeared. McDaniel's grandmother testified at trial and informed the jury
that she did not know McDaniel's whereabouts. Although McDaniel's
affidavit now avers that she was living in Philadelphia at the time of trial,
there has been no showing that McDaniel could have been found by
defense counsel, or that she would have been willing to testify on
defendant's behalf had she been located. Indeed, the absence of these
averments suggests exactly the opposite.
Even assuming for the sake of argument that McDaniel could have
been located and would have offered the testimony contained in her
affidavit, that testimony does little to help defendant's case. At a hearing
on a motion to suppress, defense counsel were informed that McDaniel
told the detectives who interviewed her that before the fire defendant had
expressed a desire to reconcile, and that he had asked her to move in with
him, his wife and son. McDaniel had refused and told defendant that he
must choose between his wife and her. As this court explained on direct
appeal, this testimony would have been harmful to defendant. It directly
supports the State's theory of the case that defendant murdered his wife
and son to be with McDaniel. Nothing in McDaniel's newly obtained
affidavit rebuts this harmful testimony. Defendant nonetheless asserts that
McDaniel's statements regarding the police misconduct and Portwood's
testimony are enough to render his counsels' failure to secure her
testimony constitutionally ineffective. We disagree. Although this
testimony may have aided defendant to some degree, defendant has failed
to make a showing that McDaniel's testimony would have proved more
helpful than harmful to his case. Without the required showing of
prejudice, defendant's claim of ineffective assistance of counsel must fail.
In conclusion, defendant has not made a substantial showing that
his constitutional right to effective assistance of counsel was violated at his
trial, in any respect. Defendant is therefore not entitled to an evidentiary
hearing on these claims.

V. Juror Affidavits
Defendant next contends that he is entitled to an evidentiary
hearing on his claims that the jurors were exposed to extraneous
information and outside influences which prejudiced their deliberations.
Defendant attached the affidavits of several jurors to his post-conviction
petition. Based upon these affidavits, defendant asserts that: jurors were
intimidated by nonjurors during their deliberations; jurors were prejudiced
by the acts of the jury foreperson; jurors brought newspapers with articles
about the case into the jury room; the jurors were subjected to intolerable
physical conditions during deliberations; and jurors repeatedly violated the
trial court's sequestration order. Defendant claims that, as a result of these
improper influences on the jury, he was deprived of due process under
both the federal and the Illinois constitutions.
As a general rule, a jury verdict may not be impeached by the
testimony of the jurors. People v. McDonald, , 457 (1995);
People v. Holmes, , 511 (1978). It is well settled that a
statement by a juror taken after the jury has rendered its verdict, has been
polled in open court, and has been discharged will not be admitted to
impeach the jury's verdict. McDonald, 168 Ill. 2d at 457; People v. Towns,
, 112 (1993). This rule prevents the admission of a juror's
affidavit to show the "motive, method or process by which the jury
reached its verdict." Holmes, 69 Ill. 2d at 511. The sound public policy
considerations underlying this rule were well stated by the United States
Supreme Court in Tanner v. United States, , 97 L. Ed. 2d 90,
107 S. Ct. 2739 (1987):
" `[If it is] established that verdicts solemnly made and
publicly returned into court can be attacked and set aside on
the testimony of those who took part in their publication
[then] all verdicts could be, and many would be, followed
by an inquiry in the hope of discovering something which
might invalidate the finding. Jurors would be harassed and
beset by the defeated party in an effort to secure from them
evidence of facts which might establish misconduct
sufficient to set aside a verdict. If evidence thus secured
could be thus used, the result would be to make what was
intended to be a private deliberation, the constant subject of
public investigation--to the destruction of all frankness and
freedom of discussion and conference.' " Tanner, 483 U.S. at 119-20, 97 L. Ed. 2d at 105-06, 107 S. Ct. at 2747,
quoting McDonald v. Pless, , 267-68, 59 L. Ed. 1300, 1302, 35 S. Ct. 783, 784 (1915).
The rule against admitting juror testimony to impeach a verdict
does not, however, preclude juror testimony or affidavits which are offered
as proof of improper extraneous influences on the jury. Holmes, 69 Ill. 2d
at 512-14; see also Tanner, 483 U.S. at 120, 97 L. Ed. 2d at 106, 107 S. Ct. at 2747-48. This court has held that a juror should be permitted to
testify " `whether extraneous prejudicial information was improperly
brought to the jury's attention or whether any outside influence was
improperly brought to bear upon any juror.' " Holmes, 69 Ill. 2d at 516,
quoting Fed. R. Evid. 606(b). A jury verdict will be set aside as a result
of outside influences or communications only if the defendant was
prejudiced as a result of the improper communication or outside influence.
People v. Tobe, , 542 (1971); People v. Mills, ,
14 (1968). In order to demonstrate such prejudice, jurors may testify as to
the nature of outside influences or communications, but evidence relating
to the effect of such influences on the mental processes of the jurors is
inadmissible. Holmes, 69 Ill. 2d at 514. Accordingly, because the actual
effect of the conduct on the minds of the jurors cannot be proved, the
standard to be applied is whether the conduct involved " `such a
probability that prejudice will result that it is [to be] deemed inherently
lacking in due process.' " Holmes, 69 Ill. 2d at 514, quoting Estes v.
Texas, , 542-43, 14 L. Ed. 2d 543, 550, 85 S. Ct. 1628, 1633
(1965); see also Tobe, 49 Ill. 2d at 544.
With these principles in mind, we consider each of defendant's
claims of improper jury influence.

A. Intimidation by Nonjurors
Defendant first claims that he was deprived of due process because
some of the jurors were subjected to intimidation by nonjurors during their
sequestered deliberations. The affidavits of jurors Crandall, Sanchez and
Schab each described an incident that occurred while the jury was
sequestered at a hotel. While they and several other jurors were dining in
the hotel restaurant, several men sitting in the same area learned that they
were the Hobley jury. Each juror stated that the men made comments to
them to the effect that "you know he's guilty," and "give him the death
penalty." Juror Sanchez described that the men "yelled out, `Hang the
motherfucker.' " Juror Sanchez further stated that the incident "upset quite
a few of the jurors" and that she herself "was scared and felt that my life
was in danger." Juror Crandall stated that the incident "upset" her and that
she saw that other jurors were "noticeably upset." Juror Wodka, who was
not present when this incident took place, related the incident
"secondhand" and stated that the jurors who were present were "extremely
shaken." Defendant argues that these affidavits make a substantial showing
that he was deprived of due process because some jurors were subjected
to prejudicial outside influences.
We find that defendant is entitled to an evidentiary hearing on this
claim. As stated above, the rule against admitting juror testimony to
impeach a verdict does not preclude testimony showing that prejudicial
outside influences were brought to bear upon the jury. Holmes, 69 Ill. 2d
at 516. Long ago, the United States Supreme Court recognized that
"[p]rivate communications, possibly prejudicial, between jurors and third
persons, or witnesses, or the officer in charge, are absolutely forbidden,
and invalidate the verdict, at least unless their harmlessness is made to
appear." Mattox v. United States, , 150, 36 L. Ed. 917, 921,
13 S. Ct. 50, 53 (1898); see also Remmer v. United States, ,
229, 98 L. Ed. 654, 656, 74 S. Ct. 450, 451 (1954). The standard to be
applied in such a situation was explained by this court in People v.
Mitchell, (1992):
" `It is well settled in Illinois that any
communication with a juror during trial about a matter
pending before the jury is deemed presumptively prejudicial
to a defendant's right to a fair trial. Although this
presumption of prejudice is not conclusive, the burden rests
upon the State to establish that such contact with the jurors
was harmless to defendant. [Citations.] A verdict will not
be set aside where it is obvious that no prejudice resulted
from a communication to the jury, either by the court or by
third persons outside the presence of the defendant.' "
Mitchell, 152 Ill. 2d at 341, quoting People v. Harris, , 132 (1988).
See also People v. Childs, , 228 (1994) (burden on State to
prove ex parte communication between judge and jury was harmless).
The Supreme Court invalidated a conviction on the basis of
improper communications with the jury in Parker v. Gladden, , 17 L. Ed. 2d 420, 87 S. Ct. 468 (1966). Following his conviction for
second degree murder, the defendant in Parker filed a petition for post-
conviction relief alleging that a court bailiff had engaged in prejudicial
communications with the jury. At a hearing on the petition, it was revealed
that the court bailiff assigned to shepherd the sequestered jury had stated
to one of the jurors, in the presence of others: " `Oh that wicked fellow
[the defendant], he is guilty.' " On another occasion, the bailiff stated to
jurors: " `If there is anything wrong [in finding the defendant guilty] the
Supreme Court will correct it.' " Parker, -64, 17 L. Ed. 2d
at 422, 87 S. Ct. at 470. The Supreme Court upheld the state trial court's
determination that the defendant was entitled to a new trial because the
unauthorized communication was prejudicial to the defendant. The Court
concluded that it would be " `blinking reality not to recognize the extreme
prejudice inherent' in such statements." Parker, 385 U.S. at 365, 17 L. Ed. 2d at 423, 87 S. Ct. at 471, quoting Turner v. Louisiana, ,
473, 13 L. Ed. 2d 424, 429, 85 S. Ct. 546, 550 (1965).
The effect of an outside influence on a juror was also considered
in Remmer v. United States, , 98 L. Ed. 654, 74 S. Ct. 450
(1954). There, the defendant was convicted by a jury of evasion of federal
income taxes. After the verdict was returned, the defendant learned for the
first time that, during the trial, a juror had been the subject of an attempted
bribe. The juror reported the bribe to the trial judge, who informed the
prosecutors. A federal investigation was conducted. The investigators
concluded that the "bribe attempt" was made in jest and nothing further
was done about the matter. Based upon this information, the defendant
filed a motion for a new trial and requested a hearing to determine the
circumstances surrounding the incident and its effect on the jury. The
district court denied the motion without a hearing. The Supreme Court
reversed. The Court noted that private communications with a juror during
trial about the matter pending before the jury are considered presumptively
prejudicial. The Court went on to hold that a hearing was required because
it could not be ascertained from the record what actually transpired or
whether the incident prejudiced the defendant. Accordingly, the Court
remanded the cause to the district court with directions to conduct a
hearing "to determine whether the incident complained of was harmful to
the petitioner, and if after hearing it is found to have been harmful, to
grant a new trial." Remmer, 347 U.S. at 230, 98 L. Ed. at 656, 74 S. Ct.
451-42; see also Stockton v. Virginia, 852 F.2d 740, 745 (4th Cir. 1988)
(new capital sentencing required as a result of third party's comment to
deliberating jurors that "they ought to fry the son-of-a-bitch").
In this case, we find that the affidavits submitted by defendant are
sufficient to warrant an evidentiary hearing to determine whether the
incident in the hotel dining room resulted in prejudice to defendant. Four
jurors submitted affidavits establishing that a group of men made
comments to them about the Hobley trial. Although the exact language of
the comments differed among the affidavits, each relayed that the men
urged the jurors both to find defendant guilty and to sentence him to death.
At least one of the jurors relayed that the men "yelled" at them to "Hang
the motherfucker." In addition, two of the jurors stated that they were
"upset" by the comments and that other jurors were "noticeably upset."
Juror Sanchez elaborated that she felt her life was in danger as a result of
the incident. Under these facts, defendant made a sufficient showing of
possible prejudice from the incident to warrant an evidentiary hearing into
the matter.
The State argues that this claim was properly dismissed because
defendant did not make a sufficient showing of prejudice resulting from
the hotel incident. We disagree. As stated above, the law is well
established that communications about the case between jurors and third
parties are presumptively prejudicial. Mitchell, 152 Ill. 2d at 341; Harris,
123 Ill. 2d at 132. In such a case, the verdict may stand only if it is
"obvious" that no prejudice resulted from the communication. See Harris,
123 Ill. 2d at 132. Considering the juror affidavits provided by defendant,
we cannot conclude that it is obvious that no prejudice resulted from the
hotel incident. The State seems to contend that defendant was required to
submit juror affidavits which stated that the incident, in fact, prejudiced
them against defendant. This court has stated, however, that, although
jurors may testify as to communications and outside influences, "evidence
relating to the effect of such influences on the mental processes of jury
members is inadmissible." Holmes, 69 Ill. 2d at 514. We find that
defendant is entitled to an evidentiary hearing on this claim.

B. Conduct of Jury Foreperson
Defendant next claims that he was prejudiced by the improper
conduct of the foreperson of the jury, Matthew Evans. Defendant contends
that Evans, a police officer, sought to intimidate other jurors, and offered
himself as an "expert" in the area of proper police conduct. In support of
the intimidation allegation, defendant relies on statements in the juror
affidavits that Evans "wanted everyone to know that he was a police
officer," and that he showed everyone his gun on the first day of jury
selection. One juror also stated that Evans "said that Hobley was guilty and
that our decision was going to be unanimous," and that Evans and other
jurors "wore her down" and persuaded her to change her vote to guilty,
even though she was still not convinced that defendant was guilty. The
affidavits also related that Evans "elected himself as foreman."
Defendant claims that Evans' conduct in bringing a gun into the
jury room, electing himself foreman and otherwise "intimidating" the other
jurors constituted an improper extraneous influence on the other jurors. We
disagree. Defendant's claim in this regard does not concern an outside
influence on the jury but, rather, goes to the "motive, method or process"
by which the jury reached its verdict. Defendant seeks to show how a
particular juror influenced other jurors during the deliberations. The
evidence offered by defendant pertains to the deliberative process of the
jury in reaching a verdict and, as such, may not be used to impeach the
jury verdict. See Towns, 157 Ill. 2d at 112. In Towns, the defendant sought
to impeach the jury's death verdict by means of an affidavit of a juror
which stated that, after a vote of 9 to 3 in favor of a death sentence, the
foreperson told the other jurors that they were "bound" to vote for the
death penalty. This court held that this information pertained to the
deliberative process of the jury and therefore could not be used to impeach
the verdict. Towns, 157 Ill. 2d at 112; Tanner v. United States, , 97 L. Ed. 2d 90, 107 S. Ct. 2739 (1987) (defendant could not
impeach verdict with juror testimony that, during trial, jurors regularly
used alcohol and drugs). We therefore find that defendant is not entitled
to an evidentiary hearing on his claim that Evans intimidated other jurors.
Defendant also claims that Evans improperly gave "expert"
testimony in the area of proper police conduct. The affidavit of juror
Crandall stated that, while the jury was discussing the issue of whether
defendant had been beaten by the police, Evans stated that, as a police
officer, he had been in similar situations and he knew that the officers'
actions in this case were proper. Evans further stated that the other jurors
did not understand what it is like to be a police officer and that the police
are there to protect us from criminals. Defendant claims that these
statements by Evans constituted improper "evidence" brought to the jury's
attention.
Defendant correctly points out that jurors must decide a case based
upon the evidence presented in court and may not conduct their own
independent investigation of the case. See Holmes, 69 Ill. 2d at 516-19;
People v. Gilbert, , 259 (1977); People v. Szymanski, 226 Ill.
App. 3d 115, 121 (1992). Further, the rule against verdict impeachment
does not preclude juror testimony that such extraneous information was
considered. Holmes, . Defendant's attempt to classify Evans'
conduct within this category of cases, however, is not persuasive. In
Holmes, for instance, this court reversed a defendant's conviction where
it was established that members of the jury had improperly conducted their
own investigation concerning certain evidence. Holmes, 69 Ill. 2d at 519.
Here, Evans did not conduct an independent investigation of the case.
Rather, Evans simply offered his opinion on matters of credibility based
upon his particular experience as a police officer. Jurors are entitled to
consider the evidence presented in light of their own "knowledge and
observation in the affairs of life." People v. Rogers, , 182
(1959). Accordingly, no improper "evidence" was interjected into the jury's
deliberations in this case. Defendant's claim in this regard was properly
dismissed as an attempt to impeach the jury's verdict with evidence
regarding the method and process by which the verdict was reached. An
evidentiary hearing is therefore not required on this claim.

C. Newspapers in Jury Room
Defendant next claims that prejudice resulted because several
newspapers which contained articles about the case were brought into the
jury room. Juror Crandall's affidavit stated that she brought the Chicago
Tribune into the jury room each day where it was read by various jurors.
Crandall stated that, after the trial ended, her daughter informed her that
the newspapers she had brought into the jury room contained articles about
the trial. Juror Wodka stated in her affidavit that there were Chicago
newspapers in the jury room which were supplied by the bailiff. Wodka
further stated that, at one point, a juror was talking about an article on the
trial in one of the newspapers. Copies of various articles concerning the
trial were attached to defendant's post-conviction petition.
The circuit court ruled that defendant failed to show any prejudice
resulted from the presence of the newspapers in the jury room. We find
that the circuit court's ruling on this issue was not manifestly erroneous.
Assertions of juror exposure to media coverage do not by themselves
warrant a new trial. See People v. Britz, , 466-70 (1988);
People v. Silagy, , 366 (1987). Rather, the defendant must
show that prejudice resulted from the exposure. See Britz, 123 Ill. 2d at
466-70 (defendant not deprived of fair and impartial jury because some
jurors had read pretrial newspaper article about the case); Silagy, 116 Ill. 2d at 366.
In this case, defendant made no showing of prejudice resulting from
the presence of newspapers in the jury room. Although juror Crandall
stated that she brought a newspaper into the jury room each day, she also
stated that she did not even realize until after trial that these papers had
contained articles about the trial. Only juror Wodka's affidavit suggested
that any juror actually read an article about the trial. Wodka did not,
however, state who this juror was or indicate the nature of the article the
juror was discussing. Defendant attached a number of newspaper articles
concerning the trial to his post-conviction petition. There is no showing,
however, that any of these articles were actually read by any juror.
Consequently, there is no basis for concluding that any juror read a
newspaper article which contained material prejudicial to defendant. See
People v. Torres, , 390 (1973) (jurors' minimal exposure to
media coverage of the case did not prejudice the defendant).

D. Intolerable Physical Conditions
Defendant also contends that the jury's deliberations were
prejudiced because the jurors were subjected to "intolerable" physical
conditions in the jury room. In support of this claim, defendant refers to
statements in the juror affidavits indicating that, for two days during their
deliberations, the air conditioning was not working in the jury room, and
some jurors ran out of clothes and money while they were sequestered.
Defendant claims that these physical "hardships" constituted an improper
outside influence on the jury's deliberations, which resulted in prejudice
to him.
The circuit court properly dismissed this claim without an
evidentiary hearing. In this claim, defendant attempts to show that some
jurors reached their verdict because they were hot, or running out of
clothes or money. Defendant asserts no extraneous influence on the jury's
deliberations, but seeks simply to show the method, motive or process by
which the jury reached its verdict. This claim was therefore properly
dismissed.

E. Violations of Sequestration Order
Finally, defendant argues that prejudice resulted because a number
of jurors left their hotel rooms in violation of the trial court's sequestration
order. Defendant claims that these unsupervised absences created the
"possibility" of juror exposure to improper influences. The circuit court
properly dismissed this claim. Defendant has produced no evidence that
any of the jurors who violated the sequestration order actually were
subjected to improper outside influences. No evidentiary hearing on this
claim is warranted.

VI. Death Penalty Instructions
Defendant last asserts that the instructions given to the jury at the
second stage of the sentencing hearing were unconstitutionally vague.
Defendant contends that, as a result of these instructions, the jury
erroneously believed they had to agree unanimously in order to reach a
verdict of imprisonment. Defendant argues that studies conducted by
Professor Hans Zeisel and Professor Shari Diamond, coupled with the
affidavits of several jurors in his case, demonstrate that the instructions are
constitutionally infirm. We disagree.
Both the Zeisel and the Diamond studies purported to test the
ability of potential jurors to comprehend certain Illinois death penalty
instructions. The 1990 Zeisel study, which concluded that the instructions
resulted in misunderstanding and confusion, formed the basis for a federal
district court's holding that the death penalty instructions were
constitutionally infirm. Free v. Peters, (N.D. Ill. 1992).
The Seventh Circuit Court of Appeals, however, reversed the district
court's holding. Free v. Peters, 12 F.3d 700 (7th Cir. 1993); see also Gacy
v. Wellborn, 994 F.2d 305 (7th Cir. 1993). This court has repeatedly
agreed with the Seventh Circuit that the Zeisel study does not establish
that the Illinois death penalty instructions are constitutionally infirm. See
People v. Jackson, No. 79243, slip op. at 47 (March 26, 1998); People v.
Brown, 172 Ill. 2d 1, 55-56 (1996); People v. Williams, , 59
(1994).
Defendant nonetheless claims that we should reconsider our
holdings on this issue on the basis of the study by Professor Diamond,
conducted after the Zeisel study. The Diamond study was designed to
address two of the primary objections to the Zeisel study: (1) that the
Zeisel study did not use a control group to determine whether revised jury
instructions would improve performance, and (2) that the Zeisel study did
not take into account juror deliberations. The results of the Diamond study
confirmed the conclusion of the Zeisel study that the death penalty
instructions were confusing.
This court has already rejected the contention that the Diamond
study provides a basis for invalidating the Illinois death penalty jury
instructions. See Jackson, slip op. at 47; Brown, 172 Ill. 2d at 56-57. In
Brown, we stated that we were not persuaded by the Diamond study that
the death penalty instructions were constitutionally infirm. In reaching this
holding, we reasoned that:
"[A]lthough the Diamond study claims to correct two
deficiencies in the Zeisel study, there still remain more
generalized problems with the research. Perhaps the most
fundamental objection is the `lack of comparability between
the test setting and the sentencing hearing.' See Free, 12 F.3d at 705. There is no reason to suppose that actual jurors
who have sat though trial and a sentencing hearing would
respond to the sentencing instructions in the same way as
the test subjects who simply listened to an audiotaped
description of the evidence presented in the case and an
audiotape of the instructions, as was done in the Diamond
study." Brown, 172 Ill. 2d at 57.
The State asserts that Brown is controlling here. Defendant
contends, on the other hand, that Brown does not dispose of his argument
in this case because he has provided, in the form of juror affidavits, the
"comparability" found to be missing in Brown. Defendant claims that the
juror affidavits he attached to his post-conviction petition establish that the
jurors in his case were misled by the instructions in the same way as the
Diamond test subjects. We disagree. Even if we accept that juror affidavits
may be used for this purpose, the juror statements here do not provide
"comparability" for the results of the Diamond study.
Defendant claims that the jury instructions misled the jury as to the
need for unanimity in order to impose a sentence other than death. The
Diamond study tested comprehension in the area of "non-unanimity on
mitigators," explained as "juror understanding that a juror can consider a
factor in mitigation even if other jurors disagree." The Diamond study
apparently concluded that revised instructions on this issue produced a
significant increase in comprehension. The juror affidavits in this case,
however, do not reveal that these jurors were misled "in the same way" as
the Diamond test subjects. With regard to the unanimity issue, the jurors
stated simply that they believed that they were required to reach a
unanimous verdict at each stage of the proceedings. This statement is not
entirely incorrect. In order to impose a death sentence, the jury was
required to unanimously agree to do so. These statements do not
demonstrate that any juror actually believed that they could not consider
a factor as mitigating even if the other jurors did not consider it to be
mitigating. Accordingly, these statements do not provide comparability for
the Diamond study findings on this issue.
We note that defendant also points out that some jurors in this case
stated that they found the jury instructions to be "confusing," that they felt
"obligated" to impose the death penalty as a result of their guilty verdict,
and that they believed that defendant may be released on parole if they did
not impose the death penalty. All of this information pertains to the
method, motive or process by which the jurors reached their verdict. As
such, this information may not be used to impeach the jury's verdict.
There is no indication that the Diamond study tested comprehension of
these issues. Thus, the study did not make any findings that may be
"corroborated" by these juror statements.
For the foregoing reasons, we find that an evidentiary hearing is not
warranted on defendant's claim that the death penalty instructions were
unconstitutionally vague.

CONCLUSION
For the reasons stated above, the judgment of the circuit court of
Cook County is affirmed in part and reversed in part. We reverse the
circuit court's dismissal without an evidentiary hearing of two claims
presented in defendant's post-conviction petition. We remand for an
evidentiary hearing on the issue of whether the State violated defendant's
constitutional rights under Brady, as set forth in part I, and on the issue of
whether the jurors were intimidated by nonjurors during their deliberations,
as set forth in part V(A). The circuit court's dismissal of the remaining
issues is affirmed. This cause is remanded to the circuit court for further
proceedings consistent with this opinion.

Affirmed in part and reversed in part;
cause remanded.

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