Appeal from the Circuit Court of Cook County, the Hon. Richard
Petrarca, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 1, 1985.
Following a jury trial in the circuit court of Cook County, defendant, Dickie Gaines, was convicted of the murders of Andre Davis and Causea McCall, the attempted murder of Lenious Thomas, armed violence against Davis, McCall and Thomas, and the armed robbery of Davis and Thomas. Pursuant to section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(d)), the State requested a death penalty hearing, which was heard by the same jury. The jury found that there were present one or more of the aggravating factors set forth in section 9-1(b) and that there were no mitigating factors sufficient to preclude a sentence of death. (See Ill. Rev. Stat. 1979, ch. 38, par. 9-1(g).) The court sentenced the defendant to death. On direct appeal to this court (73 Ill.2d R. 603), the armed-robbery conviction as to Andre Davis was reversed, but the other convictions and the death sentence were affirmed. (People v. Gaines (1981), 88 Ill.2d 342.) A petition for rehearing in this court was denied, and the Supreme Court denied defendant's petition for writ of certiorari. Gaines v. Illinois (1982), 456 U.S. 1001, 73 L.Ed.2d 1295, 102 S.Ct. 2285.
The defendant then obtained new counsel and filed a petition under the Post-Conviction Hearing Act in the circuit court. (Ill. Rev. Stat. 1981, ch. 38, par. 122-1 et seq.) A number of constitutional violations were alleged. The defendant maintained that his right to an impartial jury trial and his right to equal protection of the law were violated as a result of the State's systematic use of peremptory challenges during voir dire to exclude blacks from the jury. (U.S. Const., amends. V, VI, XIV; Ill. Const. 1970, art. I, secs. 2, 8, 13.) The defendant also stated that he was denied his right to due process of law because of the alleged existence of "street files" (investigative working files) containing exculpatory evidence, which were not tendered to him. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2.) Further, defendant claimed that allowing a police officer to testify at trial regarding telephone conversations between defendant and his mother and defendant and his brother, wherein defendant was alleged to have made incriminating statements, impinged on his right to be free from unreasonable search and seizure, as well as his privilege against self-incrimination. (U.S. Const., amends. IV, V; Ill. Const. 1970, art. I, secs. 6, 10.) Finally, defendant alleged that he was denied his right to the effective assistance of counsel at trial and the sentencing hearing. U.S. Const., amend. VI; Ill. Const. 1970, art. I, sec. 8.
In a motion to dismiss the petition, the State argued that the defendant had not raised issues of the constitutional magnitude required by the Post-Conviction Hearing Act. Further, the State maintained that all issues raised in defendant's petition, with the exception of the street-files issue, were barred by the application of the doctrines of waiver and res judicata.
The transcript of the proceedings from the hearing on the post-conviction petition reveals that the court found that all issues raised in the petition, with the exception of the street-files issue, were either waived or decided on direct appeal in this court. Thus, the court allowed an evidentiary hearing to be held only on the street-files issue. Finding that defendant had failed to establish the existence of a street file at the hearing, the court denied the petition.
Defendant filed a notice of appeal to the appellate court. Subsequently, the State filed a motion to have the case transferred to this court. That motion was allowed. The defendant then filed a motion to reconsider the order allowing the State's motion to transfer the post-conviction appeal. That motion was denied.
Review of the petition for post-conviction relief, in this court, raises two issues: (1) Did the trial court err in denying the post-conviction petition? and (2) Does the transfer of defendant's appeal from the appellate court to this court deprive him of due process and equal protection of the law?
The facts relating to the underlying crimes involved in this case will not be set out in their entirety, since the defendant does not maintain that his conviction was not supported by the evidence. Rather, relevant facts will be discussed as they become germane to the issues on review. Further, it is well established that a post-conviction proceeding is not one wherein a defendant's guilt or innocence is determined, but a new proceeding meant to delve into the constitutional phases of the original conviction which have not previously been determined. People v. Vail (1970), 46 Ill.2d 589, 591; People v. French (1970), 46 Ill.2d 104, 108, cert. denied (1971), 400 U.S. 1024, 27 L.Ed.2d 636, 91 S.Ct. 590; People v. Somerville (1969), 42 Ill.2d 1, 3-4.
Defendant, who is black, was tried and sentenced by an all-white jury. It is his position that the State's use of its peremptory challenges to exclude every prospective black juror resulted in the denial of his sixth amendment right to an impartial jury trial, as well as his fifth and fourteenth amendment right to equal protection of the law. (U.S. Const., amends. V, VI, XIV; Ill. Const. 1970, art. I, secs. 2, 8, 13.) On direct appeal, this court was confronted with the same issue. Finding that defense counsel, in the trial court, failed to raise the issue until all the jurors had been sworn, and that he had failed to establish a record which would demonstrate that all peremptorily challenged veniremen were black, the court resolved the issue against defendant. (People v. Gaines (1981), 88 Ill.2d 342, 359.) In an affidavit submitted by defendant in support of his post-conviction petition, he asserts that the State utilized its peremptory challenges "to exclude five or six Black jurors." Because this court, on direct appeal, answered this issue, the defendant's post-conviction claim regarding jury selection is res judicata. It is well established that "where an appeal was taken from a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those that could have been presented but were not are deemed waived." People v. French (1970), 46 Ill.2d 104, 107, cert. denied (1971), 400 U.S. 1024, 27 L.Ed.2d 636, 91 S.Ct. 590; see People v. Burns (1979), 75 Ill.2d 282, 290; People v. Partin (1977), 69 Ill.2d 80, 83.
Moreover, under the holding of Swain v. Alabama (1965), 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824, which has been followed by this court (People v. Williams (1983), 97 Ill.2d 252; People v. Payne (1983), 99 Ill.2d 135), the defendant's claim regarding jury selection is insufficient to raise an issue of constitutional proportion. In Swain, the court held that "the Constitution [does not] requir[e] an examination of the prosecutor's reasons for the exercise of his challenges in any given case." (380 U.S. 202, 222, 13 L.Ed.2d 759, 773, 85 S.Ct. 824, 837.) Rather, a constitutional issue is raised only when the record demonstrates that blacks in a particular county or State have been consistently and systematically denied the opportunity to serve on juries. (380 U.S. 202, 223-24, 13 L.Ed.2d 759, 774-75, 85 S.Ct. 824, 838.) While the holding in Swain was articulated on the basis of equal protection guarantees, this court has expressly found that "the authority of Swain was not lessened because of the recognition of a sixth amendment fair-cross-section requirement in Taylor v. Louisiana (1975), 419 U.S. 522, 42 L.Ed.2d 690, 95 S.Ct. 692." (People v. Williams (1983), 97 Ill.2d 252, 278; accord, People v. Payne (1983), 99 Ill.2d 135, 138.) As the court noted in Williams, "the complaint addressed in Taylor is the systematic exclusion of a group from the jury system, not from any particular jury." (Emphasis added.) (People v. Williams (1983), 97 Ill.2d 252, 278.) Defendant makes no such showing in his petition for post-conviction relief. Neither the petition nor the affidavit raises the issue of the case-by-case exclusion of blacks required by Swain. As such, defendant's assertions regarding the State's use of its peremptory challenges do not raise an issue of "substantial denial of his rights under the Constitution" as required by the Post-Conviction Hearing Act (Ill. Rev. Stat. 1981, ch. 38, pars. 122-1, 122-2; People v. Curtis (1971), 48 Ill.2d 25, 27; People v. Harper (1969), 43 Ill.2d 368, 372).
As another basis for post-conviction relief, the defendant alleges violations of his constitutional right to be free from unreasonable search and seizure and his privilege against self-incrimination (U.S. Const., amends. IV, V; Ill. Const. 1970, art. I, secs. 6, 10). This allegation is premised on the admission of a police officer's testimony during defendant's original trial. At that trial, the police officer was allowed to testify regarding telephone conversations between the defendant and his mother and defendant and his brother, wherein defendant allegedly made self-incriminating statements. The officer overheard the conversations on an extension telephone in the home of defendant's mother. The officer's testimony indicated that Mrs. Gaines consented to the officer's use of the telephone.
On the initial appeal to this court, defendant objected to the admission of the officer's testimony, claiming that section 14-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 14-2) had been violated. As such, defendant maintained that the trial judge erred in denying his motion to exclude that portion of the officer's testimony. This court found that "[t]he monitoring of the defendant's telephone conversation * * * was not proscribed by section 14-2(a), for an extension telephone is not an eavesdropping device as that term is defined by section 14-1(a)." ...