SUPREME COURT OF ILLINOIS
530 N.E.2d 1340, 125 Ill. 2d 117, 125 Ill. Dec. 770 1988.IL.1479
Appeal from the Circuit Court of Cook County, the Hon. Louis Garippo and Francis J. Mahon, Judges, presiding.
JUSTICE CLARK delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK
This case involves the petition of the defendant, John Wayne Gacy, under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.), challenging his convictions and sentences. In the circuit court of Cook County, after a trial by jury, the defendant was tried and convicted of murdering 33 boys and young men. He was also found guilty of one count of deviate sexual assault, and a second count of indecent liberties with a child. For 12 of these murders, the State sought and obtained the death penalty, the jury finding the existence of one or more of the statutory aggravating circumstances and that no mitigating circumstances precluded the imposition of death (Ill. Rev. Stat. 1979, ch. 38, par. 9-1). The defendant was sentenced to imprisonment for his natural life on the remaining murder charges. On direct appeal to this court, his convictions and sentences were affirmed (103 Ill. 2d 1), and his petition for writ of certiorari was denied by the Supreme Court of the United States (470 U.S. 1037, 84 L. Ed. 2d 799, 105 S. Ct. 1410). His subsequent petition for post-conviction relief was dismissed without an evidentiary hearing in the circuit court of Cook County, and this appeal followed (107 Ill. 2d R. 651).
The factual background of this case is recited at length in the defendant's direct appeal, and need not be repeated here. On this appeal the defendant raises five principal claims of error: (1) that his trial counsel's failure to present any evidence in mitigation deprived him of the effective assistance of counsel at his sentencing hearing, (2) that his trial counsel's failure to make offers of proof as to which of the defendant's statements to his expert psychiatric witnesses would have been offered into evidence had not the trial court precluded the defendant from doing so deprived the defendant of the effective assistance of counsel, (3) that the trial Judge erred by precluding the defendant's psychiatric witnesses from testifying as to the defendant's statements to them, (4) that his trial counsel's failure to request that the jury be sequestered during the five- to nine-day period after their selection and before trial deprived the defendant of the effective assistance of counsel, and (5) that his death sentence is unconstitutional on account of a variety of facial deficiencies in the Illinois death penalty statute. Acting pro se, the defendant has also filed a supplementary petition for post-conviction relief, to which are attached two letters which list 43 (numbered "1" to "43A," with no number "33") additional issues he claims entitle him to post-conviction relief. As to each claim he maintains that the circuit court erred by dismissing his petition without any evidentiary hearing.
The State claims that all of these allegations of error were decided against the defendant on his direct appeal and are therefore barred on his post-conviction petition by res judicata. (See People v. Kubat (1986), 114 Ill. 2d 424, 436.) Since, however, this is a death case, and since in any case we find no merit in any of the defendant's allegations, we need not consider whether they are barred.
Under the Post-Conviction Hearing Act, a defendant is only entitled to an evidentiary hearing if the allegations of his petition, together with the record of his trial and supporting affidavits, make a substantial showing of a violation of his constitutional rights. (People v. Silagy (1987), 116 Ill. 2d 357, 365.) We find that the defendant has not made such a showing as to any of his allegations.
The defendant first argues that his defense counsel's failure to present any mitigating evidence at his sentencing hearing denied him the effective assistance of counsel. We find no merit in this argument. The standard for ineffective assistance at a sentencing hearing is the two-prong standard enunciated in Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064. Under this standard, the defendant must prove: (1) that his counsel's representation was so deficient that his counsel was not functioning as the "counsel" guaranteed the defendant by the sixth amendment, and (2) that this deficient performance so prejudiced the defendant as to deprive him of a fair hearing. The defendant's petition does not adequately allege either deficiency or prejudice.
The standard for assessing claimed deficiencies in an attorney's performance is that of "reasonably effective assistance," which is within the "range of competence demanded of attorneys in criminal cases." The standard is one of objective reasonableness, under "prevailing professional norms." (466 U.S. at 687-88, 80 L. Ed. 2d at 693-94, 104 S. Ct. at 2064-65.) To establish a deficiency, the defendant must overcome the strong presumption that the challenged action or lack of action might be the product of "'sound trial strategy.'" (466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.) At death sentencing hearings, decisions not to present mitigating evidence will not be deemed incompetent if they stem from a theory of defense which does not require the use of mitigating evidence (466 U.S. at 699, 80 L. Ed. 2d at 700-01, 104 S. Ct. at 2070 (reliance upon extreme emotional distress mitigating circumstance)), or from a theory which might be adversely affected by the use of such evidence (Burger v. Kemp (1987), 483 U.S. 776, 793-94, 97 L. Ed. 2d 638, 656-57, 107 S. Ct. 3114, 3125-26).
We acknowledge that there may be cases in which counsel's failure to present mitigating evidence does not flow from a reasonable alternative strategy and will therefore be deemed incompetent. (Compare People v. Gaines (1984), 105 Ill. 2d 79, People v. Kubat (1983), 94 Ill. 2d 437, and People v. Lewis (1981), 88 Ill. 2d 129, with Gaines v. Thieret (N.D. Ill. 1987), 665 F. Supp. 1342, rev'd on other grounds (7th Cir. 1988), 846 F.2d 402, United States ex rel. Kubat v. Thieret (N.D. Ill. 1988), 679 F. Supp. 788, and Lewis v. Lane (7th Cir. 1987), 832 F.2d 1446; see also Blake v. Kemp (11th Cir. 1985), 758 F.2d 523.) This, however, is not such a case.
The evidence which the defendant now claims should have been presented in mitigation includes both statutory and nonstatutory mitigation. In support of the statutory mitigating factor of extreme mental or emotional disturbance, the defendant now claims that his attorney should have recalled the psychiatric witnesses who testified at trial, and who indicated their belief that the defendant murdered while under extreme mental or emotional disturbance. The defendant also claims that his trial counsel should have introduced evidence of non-statutory mitigation, including evidence of his traumatic childhood, warm relationships with family members and friends, success in business, political, and civic affairs, and his good behavior while in prison awaiting trial. In addition, he claims that a relative of one of the deceased victims wrote a letter forgiving him, which might also have been presented in mitigation.
Both claims are substantially weakened by the fact that much of this evidence was actually presented at trial, and all evidence at trial was admitted by stipulation at the death penalty hearing. In fact, in his closing argument at the sentencing hearing, trial counsel used the psychiatric evidence to argue that the defendant had acted while under extreme mental or emotional disturbance. As we stated on the defendant's direct appeal, we believe that counsel could reasonably have believed that the jurors would not have ...