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02/11/88 the People of the State of v. Raymond Lee Stewart

February 11, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

RAYMOND LEE STEWART, APPELLANT



SUPREME COURT OF ILLINOIS

520 N.E.2d 348, 121 Ill. 2d 93, 117 Ill. Dec. 187 1988.IL.186

Appeal from the Circuit Court of Winnebago County, the Hon. Robert C. Gill, Judge, presiding.

APPELLATE Judges:

CHIEF JUSTICE MORAN delivered the opinion of the court. JUSTICE SIMON, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

In cause No. 56629, defendant, Raymond Lee Stewart, was convicted of the murder of Kevin Kaiser (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (a)(3)), following a jury trial in the circuit court of Winnebago County. At a separate sentencing hearing, the same jury determined that the necessary aggravating factors existed and that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. The court thereupon sentenced defendant to death and, following a direct appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 87 Ill. 2d R. 603), his conviction and sentence were affirmed. (People v. Stewart (1984), 104 Ill. 2d 463 (hereinafter referred to as Stewart I).) This court denied rehearing, and the United States Supreme Court denied defendant's petition for certiorari. Stewart v. Illinois (1985), 471 U.S. 1120, 86 L. Ed. 2d 267, 105 S. Ct. 2368.

In cause No. 56332, defendant was indicted in the circuit court of Winnebago County for the murders of Willie Fredd and Albert Pearson (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)). A jury found defendant guilty of both offenses, and following a separate sentencing hearing held before the same jury, he was sentenced to death. This court affirmed his conviction and sentence on direct appeal (People v. Stewart (1984), 105 Ill. 2d 22 (hereinafter referred to as Stewart II)), and denied his petition for rehearing. The United States Supreme Court subsequently denied his petition for certiorari. Stewart v. Illinois (1985), 471 U.S. 1131, 86 L. Ed. 2d 283, 105 S. Ct. 2666.

Defendant then filed a petition in each case under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1983, ch. 38, par. 122-1 et seq.). Because the petitions raised the same constitutional issues, they were consolidated pursuant to the State's motion.

Defendant maintained in his petitions that the statutory grant of discretion to prosecutors has resulted in "uneven, arbitrary, and capricious application" of the death penalty statute in violation of his right to due process and his right to freedom from cruel and unusual punishment. (U.S. Const., amends. V, VIII; Ill. Const. 1970, art. I, 2.) Defendant also asserted that the alleged "racially discriminatory application" of the death penalty statute deprived him of his rights to due process and equal protection of the law. (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, § 2.) Further, defendant claimed that

because four of the seven presently sitting Illinois Supreme Court Justices at one time allegedly believed that the death penalty statute is unconstitutional, his death sentence violates the supremacy clause of the United States Constitution and is violative of his rights to due process and freedom from cruel and unusual punishment. (U.S. Const., amends. V, XIII; Ill. Const. 1970, art. 1, § 2.) Finally, defendant alleged that execution by lethal injection is violative of the prohibition against cruel and unusual punishment because no guidelines have purportedly been established regarding the "method and manner" of such executions, and because the Food and Drug Administration had not approved "the procedures to be followed or the drugs to be administered." U.S. Const., amend. VIII.

In a motion to dismiss the petitions, the State asserted that the issues raised by defendant were barred by the application of the doctrines of waiver and res judicata, or were insufficient to establish any constitutional violations.

Following a hearing on the petitions, the trial court granted the State's motion to dismiss the petitions without an evidentiary hearing on the grounds that the issues raised were waived, barred by the application of res judicata, or insufficient to state a constitutional violation. Defendant brings a direct appeal to this court from the denial of his petitions. 107 Ill. 2d R. 651(a).

Review of the petitions for post-conviction relief, in this court, raises three issues: (1) Was defendant's right to the effective assistance of counsel violated during the post-conviction proceedings? (2) Did the trial court err in dismissing defendant's petitions without holding an evidentiary hearing on the allegations regarding prosecutorial discretion and the alleged racially discriminatory application of the death penalty statute? and (3) Did the alleged lack of guidelines relating to the "method and manner" of execution by lethal injection violate the eighth amendment to the United States Constitution? Defendant, in this court, has not raised the dismissal of his claim that his death sentence should be vacated because a majority of this court presently sitting, at one time, allegedly believed that the death penalty statute is unconstitutional.

The facts relating to the underlying crimes for which defendant was convicted will not be set forth in their entirety since defendant does not contend that the evidence was insufficient to support his convictions, and does not raise any issue challenging the validity of those convictions. Rather, the pertinent facts will be discussed only to the extent necessary for resolution of the issues. Moreover, "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. Gaines (1984), 105 Ill. 2d 79, 87.

Defendant initially claims that he did not receive adequate representation during the post-conviction proceedings because his counsel, Mr. Pumilia, failed to comply with Supreme Court Rule 651(c), which governs appeals in post-conviction proceedings. Rule 651 provides, in relevant part:

"(c) . . . The record filed in [the trial] court shall contain a showing, which may be made by the certificate of petitioner's attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional right, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions." 107 Ill. 2d R. 651(c).

Mr. Pumilia failed to file with the trial court a certificate of compliance with Rule 651. However, while the case was being briefed in this court, we granted the State leave to supplement the record with Mr. Pumilia's affidavit attesting to the fact that he conferred with defendant relative to the issues "which should be presented" in the post-conviction petitions. The affidavit also reflected that Ms. Kyle Wesendorf, who represented defendant on direct appeal to this court in Stewart II, conferred with defendant "and [Mr. Pumilia] concerning the Post Conviction Relief Petition and assisted [him] in all phases of the matter except those involving court appearances."

At the time defendant filed his reply brief, he moved this court to allow him to supplement the record with his own affidavit and the affidavit of Kyle Wesendorf, in support of his claim that Mr. Pumilia violated Rule 651(c). By order dated July 28, 1987, after the case had been fully briefed, this court granted defendant's motion to supplement the record and for a summary remand directing the trial court to conduct a hearing "on the evidentiary dispute concerning whether [Mr. Pumilia] complied with Rule 651(c)."

During the hearing on summary remand, Kyle Wesendorf testified on behalf of the defendant. She stated that she was previously employed by the State Appellate Defender's office and represented defendant on direct appeal to this court from one of his murder convictions. Ms. Wesendorf further testified that, following this court's affirmance of defendant's conviction and death sentence, she contacted Mr. Pumilia by letter to advise him that she would no longer be handling defendant's case, but that she intended to draft a "bare bones" petition for post-conviction relief on defendant's behalf which he could file. She stated that she subsequently forwarded to Mr. Pumilia a copy of the petition along with supporting documents. She did not send defendant a copy of the petition, but she spoke with him by telephone and "probably" informed him that a petition would be filed and to confer with Mr. Pumilia regarding the petition.

On cross-examination, Ms. Wesendorf testified that she also had a telephone conversation with Mr. Pumilia during which she described the post-conviction materials that she was forwarding to him. On redirect examination, she stated that the issues raised in the petition she drafted were those which could be raised in any death penalty case, and did not address any matters relating to defendant's trial proceedings. She also stated, as she did in her affidavit, that she did not discuss with Mr. Pumilia any issues that should be raised in the petition.

Defendant refused to testify at the hearing because the trial court denied his request to appear without shackles or, in the alternative, to have the public removed from the courtroom. However, defense counsel made an offer of proof which the court accepted, relating that defendant would have testified that he never placed a telephone call to Mr. Pumilia between November of 1985, when the petitions were filed, and June of 1986, when the trial court dismissed the petitions. He would also testify that, according to prison regulations, inmates may only place collect telephone calls. Finally, the offer of proof reflected that defendant was unaware that Mr. Pumilia represented him until he received a letter from him advising defendant that the petition was dismissed and an appeal would be filed.

In defendant's affidavit, which he submitted as part of the supplemental record, he also stated that he did not consult with Mr. Pumilia regarding the post-conviction petition. However, he did attest that he conferred with Mr. Pumilia regarding a "personal matter" during the pendency of the post-conviction proceedings. He also stated that Ms. Wesendorf "did discuss the procedural aspects of post-conviction proceedings" with him.

Angela Pappas, an employee of the public defender's office for Winnebago County, testified that she reviewed telephone records reflecting calls made to the public defender's office between November of 1985 and June of 1986. She stated that the records reflected that no collect calls were made to the office from Pontiac Correctional Center, wherein the defendant was confined during that time.

Mr. Pumilia was called as a witness on behalf of the State. He testified that he was the public defender for Winnebago County and that he had held that position for approximately four through five years. He stated that he was familiar with the trial records in both Stewart I and Stewart II because he represented defendant in those cases and reviewed the transcripts.

Mr. Pumilia further testified that he maintained close contact with Ms. Wesendorf throughout defendant's appeal in the case she handled, and received from her the post-conviction petition and supporting documentation to be filed on defendant's behalf.

He also stated that during the pendency of the post-conviction proceeding, he had a "brief" telephone conversation with defendant, which the defendant initiated. He testified that during the conversation, he "briefly outlined the issues in the Petition," and advised defendant that he had no further issues to raise. He asked defendant whether there were any additional allegations which he would like to include in the petitions, and defendant's response was "negative." Finally, Mr. Pumilia testified that defendant could have telephoned him prior to November of 1985, but he believed that was "highly unlikely."

During cross-examination, Mr. Pumilia testified that the telephone call to which he attested on direct examination was his only contact with defendant during the pendency of the post-conviction proceedings in the trial court. He also stated that he was familiar with the appeals in Stewart I and Stewart II and read the Illinois Supreme Court opinions in those cases. Mr. Pumilia further testified that he realized he was required to confer with his client and review the reports of proceedings in accordance with Rule 651(c). He stated that he "went over the whole batch" of transcripts at some point, and reviewed certain portions following his appointment as defendant's post-conviction counsel.

Finally, Mr. Pumilia stated that if a defendant wished to claim ineffective assistance of trial counsel, that same counsel should not represent him during the post-conviction proceedings without first obtaining a "waiver" from the client.

The trial court, in determining that defendant's counsel complied with Rule 651(c), found that a post-conviction petition drafted by a lawyer was filed; that defendant had the benefit of both Mr. Pumilia's and Ms. Wesendorf's thoughts concerning the petition; and that Ms. Wesendorf apparently did not consider raising any issue regarding ineffective assistance of counsel. In addition, the trial court noted there was conflicting evidence with respect to whether defendant ever telephoned Mr. Pumilia and discussed the petition, ...


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