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02/11/88 the People of the State of v. James Free

February 11, 1988





522 N.E.2d 1184, 122 Ill. 2d 367, 119 Ill. Dec. 325 1988.IL.170

Appeal from the Circuit Court of Du Page County, the Hon. John J. Bowman, Judge, presiding.


JUSTICE MILLER delivered the opinion of the court. JUSTICE RYAN, specially Concurring. JUSTICE CLARK, Dissenting. JUSTICE SIMON, also Dissenting.


The defendant, James Free, brings this appeal from the dismissal of his second post-conviction petition. In 1979 the defendant was convicted in a jury trial in the circuit court of Du Page County on one count each of murder and attempted murder and on two counts of attempted rape. The jury sentenced the defendant to death for the murder conviction, and the trial Judge imposed terms of imprisonment for the other offenses. On direct appeal this court affirmed the defendant's convictions and sentences (People v. Free (1983), 94 Ill. 2d 379), and the United States Supreme Court denied review (Free v. Illinois (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 200). The defendant then filed a petition for post-conviction relief; the circuit court dismissed the petition, we affirmed that decision (People v. Free (1986), 112 Ill. 2d 154), and the United States Supreme Court again denied review (Free v. Illinois (1986), 479 U.S. 871, 93 L. Ed. 2d 170, 107 S. Ct. 246). Following those proceedings, the defendant filed a second post-conviction petition, the subject of the instant appeal. The circuit court dismissed the petition, and the matter is here on direct review (see 107 Ill. 2d R. 651(a)).

The defendant's convictions stem from his attack on two women, Bonnie Serpico and Lori Rowe, at an office complex in Glen Ellyn on April 24, 1978. Around 4 o'clock that morning the defendant appeared in the office where the women were working and threatened to rape them; the defendant was armed with a gun and was carrying a cloth bag. After directing the two women to a back room, the defendant ordered Rowe to remove her clothing, and he then bound her hands and feet with rope, which he had brought with him. Following that, the defendant took Serpico to another room, where she undressed. When the defendant returned to check on Rowe, he found that she had loosened her bindings; as the defendant was tightening them, Serpico ran from the other room. The defendant chased after Serpico and shot her. The defendant then came back to where Rowe was, shot her, and fled from the building. Serpico died as a result of her gunshot wound. Rowe survived her injury, and she testified at the defendant's trial.

The grounds for relief asserted in the defendant's second post-conviction petition all relate to the State's introduction at the sentencing hearing of evidence concerning the psychological and emotional effects of the crimes on Mrs. Serpico's surviving family members and on Lori Rowe. The information complained of was presented in the testimony of Deborah Ahlstrand, a Du Page County probation officer who had prepared a presentence investigation report for the case. The presentence investigation was done at the defendant's request and over the State's objection. (People v. Free (1983), 94 Ill. 2d 378, 415.) By statute, the investigator was required to ascertain "the defendant's history of delinquency or criminality, physical and mental history and condition, family situation and background, economic status, education, occupation and personal habits," as well as "the effect the offense committed has had upon the victim or victims thereof." (Ill. Rev. Stat., 1978 Supp., ch. 38, pars. 1005-3-2(a)(1), (a)(3).) As this court noted in the two previous appeals, defense counsel made a number of objections at the sentencing hearing to Ahlstrand's testimony, but he did not object on grounds that the victim impact evidence was prejudicial, inflammatory, or irrelevant. (See People v. Free (1986), 112 Ill. 2d 154, 170; People v. Free (1983), 94 Ill. 2d 378, 425.) Rather, counsel moved in limine to bar admission of the presentence report and testimony because he believed that the material was conclusory and would be hearsay; the trial Judge said that he would consider those objections on a question-by-question basis.

At the sentencing hearing, Ahlstrand testified that in connection with her investigation she had met with Bonnie Serpico's husband, their two daughters, aged 13 and 12, and Mrs. Serpico's mother. The meeting took place in July 1979, several weeks before the sentencing hearing was held. Ahlstrand learned that the family had moved sometime after the murder because of the painful memories their old house held for them. Mr. Serpico told Ahlstrand that he felt "shut out" by events and that friends seemed uncomfortable with the situation. For about a month after his wife's death he had a drinking problem. The two girls said that their father had become more protective of them. According to Ahlstrand, what Mr. Serpico described as "the greatest loss" was that his daughters would be deprived of a maternal relationship while they were growing up, entering adulthood, and starting families of their own. Mr. Serpico also told Ahlstrand that his wife's mother had had a difficult year. One week after the murder, her husband died of cancer, and she required tranquilizers following that. Ahlstrand testified that she had also spoken with Lori Rowe's parents in July 1979 -- Lori was out of the country at the time and therefore was not available for an interview. Rowe's parents related that their daughter had become suspicious of strangers and that she was bothered by having to testify at trial. On cross-examination, defense counsel elicited some additional information regarding both Lori Rowe and the Serpico family. Defense counsel also asked Ahlstrand about the defendant. From her investigation, she learned that the defendant had a good work record, was an average to above-average student in high school, did not have a record of delinquency in the county where he lived as a juvenile, did not have a record of psychological abnormalities, and had entered the service, where he was rated highly by a commanding officer. Finally, Ahlstrand testified to the defendant's expressions of remorse for the crimes here. Defense counsel did not object to the victim impact testimony on the grounds that it was prejudicial, inflammatory, or irrelevant.

In his second post-conviction petition, filed October 9, 1986, the defendant contended that the victim impact evidence described above was inadmissible under the prior decisions of this court and as a matter of Federal constitutional law. The defendant also contended that trial counsel was ineffective for failing to make an appropriate objection to the evidence, and that the attorneys who had handled the subsequent proceedings in the case -- the initial direct appeal to this court, the submission of the first post-conviction petition in the circuit court, and the direct appeal of its dismissal -- were ineffective for failing to challenge the competence of their predecessors, including trial counsel, with respect to the State's use of the victim impact evidence at the sentencing hearing. Several affidavits were submitted by counsel in support of those claims, outlining the reasons why those issues had not been pursued at the various stages of the case.

On the State's motion, the circuit Judge dismissed the defendant's second post-conviction petition. The circuit Judge believed that the defendant's original trial counsel may have decided not to make the objection now urged by the defendant in light of the broad range of evidence admissible in the second part of a death penalty hearing (see Ill. Rev. Stat. 1979, ch. 38, par. 9-1(e)). The circuit Judge noted that the State's evidence here did not preclude the defendant from offering mitigating evidence. Applying the standard set out in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, for gauging claims of ineffective assistance, the circuit Judge concluded that trial counsel was not ineffective.

In this appeal the defendant contends that the probation officer's testimony was inadmissible under both Federal and State law, that trial counsel was ineffective for failing to object to it on grounds that it was prejudicial, inflammatory, or irrelevant, and that the attorney who handled the initial post-conviction proceedings in the circuit court was ineffective for failing to assert the ineffectiveness of trial counsel as a ground for relief. The defendant does not challenge here the competency of counsel in either of his previous appeals to this court.

We are aware that after oral arguments were held in this court, the United States Supreme Court ruled on the merits of the issue that underlies the defendant's claims for relief here. In Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, the court held that victim impact evidence is not admissible at a capital sentencing hearing. Booth involved a victim impact statement that had been compiled from interviews with the surviving family members of an elderly married couple who had been murdered in their home. The statement contained an extensive summary of the effects of the murders on the family, and defense counsel moved to bar the use of the information at the capital sentencing hearing on grounds that it was irrelevant and inflammatory. The trial Judge denied the motion; the prosecutor then agreed to counsel's suggestion that the statement be read to the jury, so that the family members would not have to testify. (Booth, 482 U.S. at 500-01, 96 L. Ed. 2d at 447, 107 S. Ct. at 2532.) The Supreme Court held that use of the victim impact statement violated the eighth amendment to the Federal Constitution. The Court believed that the information was irrelevant in a death penalty hearing and would only divert the jury's attention from its consideration of the circumstances of the offense and the character and nature of the defendant. Additionally, the Court did not believe that a jury's decision whether to impose the death penalty in a particular case should be allowed to turn on differences in the willingness or ability of surviving family members to articulate their grief, or on the victim's standing in the community. Moreover, the Court in Booth feared that a defendant's efforts to rebut the victim impact information could distract the jury from its consideration of the defendant and his offense. (Booth, 482 U.S. at 504-07, 96 L. Ed. 2d at 449-51, 107 S. Ct. at 2533-35.) The victim impact statement used in that case also contained family members' thoughts and feelings about the crimes and the defendant, and the Court held that information of that type was similarly inadmissible at a capital sentencing hearing. Booth, 482 U.S. at 508-09, 96 L. Ed. 2d 451-52, 107 S. Ct. at 2535-36.

At the death penalty hearing conducted in this case, probation officer Ahlstrand testified concerning the effects of the crimes on the murder victim's surviving family members and on the woman who survived the attack. Evidence of that nature would now be barred by Booth. In the original post-conviction proceeding, the defendant filed a petition pro se, and appointed counsel later submitted an amended version that incorporated the defendant's own petition and asserted a number of additional grounds for relief. We note that among the issues raised in the amended petition was one alleging a denial of equal protection and due process because of "the Illinois Courts inconsistent decisions on death penalty cases as to the admission of evidence relating to the effect of the death on the victim's family"; the amended petition did not also challenge trial counsel's competency in failing to preserve that issue for review, though several other ineffective-assistance claims were made. The trial Judge dismissed the amended petition, and this court affirmed the dismissal. (People v. Free (1986), 112 Ill. 2d 154.) That the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, pars. 122-1 through 122-8) contemplates the filing of only one post-conviction petition is made clear by section 122-3, which provides, "Any claim of substantial denial of constitutional rights not raised in the original or in an amended petition is waived." (Ill. Rev. Stat. 1985, ch. 38, par. 122-3.) Consistent with that provision, this court has held that a ruling on a post-conviction petition has res judicata effect with respect to all claims that were raised or could have been raised in the initial petition. People v. Richeson (1971), 50 Ill. 2d 46; People v. Le May (1969), 44 Ill. 2d 58.

To be sure, section 122 -- 3 is not an ironclad bar on multiple post-conviction petitions, but in those cases in which the court has allowed the filing of successive post-conviction petitions, the proceedings on the original petitions were deficient in some fundamental way. (See, e.g., People v. Nichols (1972), 51 Ill. 2d 244, 246 (original post-conviction petition erroneously dismissed without counsel having been appointed); People v. Hollins (1972), 51 Ill. 2d 68, 70 ("Our examination of the record of the prior [post-conviction] proceeding fails to disclose any effort by appointed counsel, in either the trial court or this court, to amend the pro se petition or argue any issue other than to oppose the People's contention that the [original] post-conviction petition was not timely filed"); People v. Slaughter (1968), 39 Ill. 2d 278 (reversing orders dismissing original post-conviction petition, denying leave to amend original petition, and dismissing second petition; inadequate representation in original proceedings apparent from counsel's mere repetition, at hearing on motion to dismiss, of conclusory allegations in defendant's pro se petition).) We do not believe that a similar complaint may be made here. Unlike the virtual nullities that occurred in Nichols, Hollins, and Slaughter, the proceedings conducted in this case on the defendant's original post-conviction petition were not fundamentally deficient. Because the defendant has already had "one complete opportunity to show a substantial denial of his constitutional rights" (People v. Logan (1978), 72 Ill. 2d 358, 370), the second post-conviction petition was properly dismissed.

The defendant has made no attempt here to justify our consideration of his second post-conviction petition. Moreover, the only portion of the transcript of the sentencing hearing included in the record here is the one volume containing the probation officer's testimony; without a more complete record, we are unable to ascertain the full effect in this case of the presentation of the victim impact evidence, and of trial counsel's procedural default in failing to preserve the issue for review. If we were to examine those issues, we still would not be required to disregard the State's substantial and legitimate interest in the finality of the defendant's convictions. In Dissent, Justice Simon argues in favor of considering the claims in the defendant's second post-conviction petition under the "plain error" rule. (See 107 Ill. 2d R. 615(a) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court").) That argument misconstrues the nature and purpose of the post-conviction remedy, which is collateral to a judgment of conviction and is not designed to provide a convicted defendant with yet another opportunity for direct review of the original trial proceedings. In a case involving a Federal prisoner's habeas petition, United States v. Frady (1982), 456 U.S. 152, 71 L. Ed. 2d 816, 102 S. Ct. 1584, the Supreme Court refused to consider a procedurally defaulted claim under the plain error standard contained in Rule 52(b) of the Federal Rules of Criminal Procedure. Rule 52(b) provides, "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The court believed that use of the plain error standard was "out of place when a prisoner launches a collateral attack against a criminal conviction after society's legitimate interest in the finality of the judgment has been perfected by the expiration of the time allowed for direct review or by the affirmance of the conviction on appeal." (Frady, 456 U.S. at 164, 71 L. Ed. 2d at 827-28, 102 S. Ct. at 1592.) In the Court's view, use of the plain error standard in the collateral proceeding would accord "no significance whatever to the existence of a final judgment perfected by appeal." (Frady, 456 U.S. at 164, 71 L. Ed. 2d at 828, 102 S. Ct. at 1592.) By the same token, application of the plain error standard provided by our Rule 615(a) to the defendant's procedurally defaulted claims in a post-conviction proceeding, such as this, would deny the State's legitimate interest in the finality of the defendant's convictions, which this court affirmed in 1983 on direct appeal.

Moreover, defense counsel may have believed that the defendant derived some benefit from the probation officer's testimony at the sentencing hearing; it should be noted that this court has since held that a defendant may not compel the preparation of a presentence investigation report in a capital case (People v. Gaines (1981), 88 Ill. 2d 342). In this case, the defendant testified at trial but not, apparently, at the sentencing hearing. The defendant had no right of allocution at the sentencing hearing (People v. Perez (1985), 108 Ill. 2d 70, 89; People v. Williams (1983), 97 Ill. 2d 252, 303-04; People v. Gaines (1981), 88 Ill. 2d 342, 374-80), but defense counsel was able to present, through the testimony of Ahlstrand, the defendant's expressions of remorse for what had happened here without having the defendant subjected to the State's cross-examination. In addition, Ahlstrand described on cross-examination favorable information that her presentence investigation had revealed concerning the defendant.

For the reasons stated, the judgment of the circuit court of Du Page County is affirmed. The clerk of this court is directed to enter an order setting Thursday, May 26, 1988, as the date on which the sentence of death entered in the circuit court is to be carried out. The defendant shall be executed by lethal injection in the manner provided by section 119-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 119-5). The clerk of this court shall send a certified copy of the mandate in this case to the ...

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