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06/19/89 the People of the State of v. George W. Del Vecchio

June 19, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

GEORGE W. DEL VECCHIO, APPELLANT



Before addressing the issue of judicial disqualification it is important to note that in 1979, Del Vecchio was tried before a jury and that he had a jury sentencing hearing. The jury made the findings that Del Vecchio was death-eligible and the jury determined that the aggravating factors making defendant eligible for the death sentence were present and that there were no mitigating factors sufficient to preclude the imposition of the death penalty. The Judge had virtually no role in these decisions.

SUPREME COURT OF ILLINOIS

544 N.E.2d 312, 129 Ill. 2d 265, 135 Ill. Dec. 816

June 19, 1989; Filed

Appeal from the Circuit Court of Cook County, the Hon. William Cousins, Jr., Judge, presiding. 1989.IL.921

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. WARD and CALVO, JJ., took no part in the consideration or decision of this case. JUSTICE CLARK, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

Following a jury trial in the circuit court of Cook County, defendant, George W. Del Vecchio, was convicted of murder, burglary, rape and deviate sexual assault. At the Conclusion of the sentencing hearing, the jury found that there existed one or more factors in aggravation set forth in section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)) and that there were no mitigating factors sufficient to preclude a sentence of death. The sentence of death was imposed. The defendant was also sentenced to 15 years' imprisonment for rape, 6 years' for deviate sexual assault, and 7 years' for burglary. On direct appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603), the convictions and sentences were affirmed. (People v. Del Vecchio (1985), 105 Ill. 2d 414 (hereinafter referred to as Del Vecchio I).) The United States Supreme Court denied the defendant's petition for

Defendant was convicted for the December 22, 1977, murder of six-year-old Tony Canzoneri, the rape and deviate sexual assault of Canzoneri's mother and the burglary of their home. The facts relating to the underlying crimes were discussed at length in the first appeal (Del Vecchio I, 105 Ill. 2d 414), and we will discuss only the facts relevant to the issues on this review.

Del Vecchio's first claim in his post-conviction petition is that there should be a new trial because the 1979 trial Judge, Judge Louis B. Garippo (the trial Judge for the 1977 murder of Tony Canzoneri), had a conflict of interest stemming from his involvement in a 1965 case in which Del Vecchio was convicted of the murder of Fred Christiansen. One of the aggravating factors introduced at the penalty hearing in our case was the 1965 murder of Fred Christiansen, of which the defendant was convicted at the age of 16.

The record reflects that in 1979, defendant's defense attorneys learned, during the trial, that Garippo had been present at the defendant's 1965 plea of guilty in the Christiansen murder case. They knew that Judge Garippo had been an assistant State's Attorney, but they were unaware that he had been chief of the criminal division at that time. Defendant's attorneys prepared a motion for mistrial but, knowing only of the Judge's limited involvement, they did not file it, believing that at that late stage in the proceeding the Judge would not disqualify himself simply because he had witnessed the 1965 proceedings.

Briefly, the facts surrounding the 1965 conviction are as follows. On February 2, 1965, Del Vecchio was interrogated in connection with the murder of Fred Christiansen. At that time he confessed to the crime. An assistant State's Attorney took a written statement and later prepared a report for his supervisors on the investigation, interrogation and confession. One of the supervisors was Louis Garippo, then the chief of the State's Attorney's criminal division. The Christiansen murder received a good deal of publicity because it represented a new and alarming phenomenon: a robbery spree and a killing by a young person under the influence of drugs. At the time of the murder Del Vecchio was 16 years old and would turn 17 on March 1, 1965, at which age he could be tried as an adult. In mid-February Del Vecchio's attorney went to Garippo and requested an expedited indictment so that Del Vecchio could be sentenced as a youth. Garippo agreed and a grand jury indicted Del Vecchio. On February 24, 1965, Del Vecchio pleaded guilty and was sentenced that day.

The defendant acknowledges that in 1965, upon interrogation, he confessed to the crime and that after the decision to expedite the indictment the State's Attorney's office made no significant decisions in the case. However, he now claims that he was denied a fair trial in 1979 on the murder charge involved in the case before us because of Garippo's involvement with the 1965 prosecution. He speculates that perhaps Judge Garippo regretted his 1965 decision to expedite the indictment. That decision allowed Del Vecchio to be sentenced as a youth, which presumably helped him obtain an earlier release from prison, and as a result of this early release he was able to perform the subsequent crimes.

In a post-conviction proceeding, the petitioner has the burden of proof and must establish a substantial deprivation of rights under the United States Constitution or the Constitution of Illinois before he is entitled to any relief. (People v. Silagy (1987), 116 Ill. 2d 357, 365; People v. Harper (1969), 43 Ill. 2d 368, 372.) "Dismissal of nonmeritorious petitions on motion is certainly within contemplation of the Act [citation], and necessary to the orderly and expeditious Disposition of these petitions." People v. Collins (1968), 39 Ill. 2d 286, 288.

The United States Supreme Court has recognized that the issue of judicial disqualification does not necessarily involve a question of constitutional validity. The Supreme Court has stated that "matters of kinship, personal bias, state policy, remoteness of interest would seem generally to be matters merely of legislative discretion. [Citation.] But it certainly violates the 14th Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the Judge of which has a direct, personal, substantial pecuniary interest in reaching a Conclusion against him in his case." (Tumey v. Ohio (1926), 273 U.S. 510, 523, 71 L. Ed. 749, 754, 47 S. Ct. 437, 441; see Aetna Life Insurance Co. v. Lavoie (1986), 475 U.S. 813, 89 L. Ed. 2d 823, 106 S. Ct. 1580; Ward v. Village of Monroeville (1972), 409 U.S. 57, 34 L. Ed. 2d 267, 93 S. Ct. 80.) Another guiding principle on the issue of judicial bias is whether the case involves a possible temptation such that the average person, acting as Judge, could not hold the balance nice, clear and true between the State and the accused. (Tumey v. Ohio (1926), 273 U.S. 510, 532, 71 L. Ed. 749, 758, 47 S. Ct. 437, 444.) Recently, the Supreme Court recognized that only under the most extreme cases would disqualification on the basis of bias or prejudice be constitutionally required. Aetna Life Insurance Co. v. Lavoie (1986), 475 U.S. 813, 821, 89 L. Ed. 2d 823, 832, 106 S. Ct. 1580, 1585.

Certainly, Judge Garippo had no pecuniary interest in the matter. However, the defendant points to a number of rulings during the course of the 1979 proceedings that were supposedly prejudicial to him and which indicate Judge Garippo's bias. These rulings cannot be raised now as error because a proceeding under the Post-Conviction Hearing Act is not an appeal, but is a collateral attack on the judgment. (People v. James (1986), 111 Ill. 2d 283, 290.) The judgment of the reviewing court on appeal is res judicata as to all issues decided, and any claim that could have been presented on direct appeal is, if not presented, thereafter barred under the doctrine of waiver. People v. Silagy (1987), 116 Ill. 2d 357, 365.

One of the rulings now claimed to have been prejudicial was the Judge's refusal to rule on a pretrial motion that the 1965 evidence was irrelevant to rebut a possible defense of insanity in the 1979 case. Judge Garippo did not rule on the motion, claiming he did not have enough information before trial. In the post-conviction petition the defendant argues Garippo ordered the psychiatrists to prepare written reports for him before trial and, therefore, he must have had plenty of information on which to base a ruling. Another claimed indication of prejudice is that Judge Garippo stated that Del Vecchio was more worthy of the death penalty than John Gacy, whose case was also on the Judge's trial call. (See People v. Gacy (1984), 103 Ill. 2d 1.) In an affidavit attached to the State's motion to dismiss the post-conviction petition, Judge Garippo stated that he was not a strong proponent of the death penalty, but that of the three death penalty cases on his docket in 1979-80, based on the psychiatric reports available to him, Gacy was the least likely candidate for the death penalty.

Either of these matters could have been raised on direct appeal. The statement objected to by Del Vecchio was made in 1979 and was made in the presence of his two defense attorneys. At that time, if they felt their client was prejudiced in any way by Judge Garippo's statement, they could have moved for a substitution of Judges. Because neither of these issues was raised as error, it is likely that the trial and appellate attorneys did not think the rulings were sufficiently prejudicial to the defendant. Likewise, we are not persuaded that any bias or prejudice on the part of Judge Garippo toward Del Vecchio is shown.

It is also argued that perhaps Judge Garippo violated a rule of this court when he presided over Del Vecchio's case. The Supreme Court, in Aetna Life Insurance Co. v. Lavoie (1986), 475 U.S. 813, 828, 89 L. Ed. 2d 823, 837, 106 S. Ct. 1580, 1589, noted that the States are free to impose more rigorous standards for judicial disqualification than those mandated by the due process clause. This court had established, at the time of the defendant's hearing, standards for disqualification due to a prior involvement with the defendant. (73. Ill. 2d R. 67(c).) Supreme Court Rule 67(c) at that time stated:

"A Judge shall not participate in any case in which he has previously acted as counsel. He cannot rid himself of this responsibility by consent of counsel or the parties to the case." (73 Ill. 2d R. 67(c).)

This rule did not require that anytime a Judge had knowledge of, contact with, or an interest in the case he must recuse himself or his failure to do so would be reversible error. We agree with the holdings of our appellate court to this effect. (See People v. Lipa (1982), 109 Ill. App. 3d 610 (the trial Judge had been in a supervisory capacity with the State's Attorney's office at the time of the defendant's indictment and had approved a grand jury subpoena in the case); People v. Burnett (1979), 73 Ill. App. 3d 750 (the trial Judge had been in a supervisory capacity with the State's Attorney's office at the circuit court where defendant's case had previously been pending and where a bond forfeiture hearing had been held).) In United States ex rel. Link v. Lane (7th Cir. 1987), 811 F.2d 1166, 1171, the court held that our rule on judicial disqualification did not require a Judge to withdraw even though he had previously been involved in the case. In Link, the Judge had appeared before the grand jury investigating the defendants and had assisted in the preparation of a memorandum. The Judge had no recollection of these acts. Trial counsel was aware of the involvement and felt there was no need for recusal.

Merely having a previous involvement with a defendant does not, per se, require disqualification. The important phrase is "acted as counsel." Attached to the State's motion to dismiss was the affidavit of Louis Garippo, wherein he explains that the extent of his role in the 1965 murder case was limited to assigning the case to an attorney who had previously been his trial partner at the State's Attorney's office and agreeing, at the request of defense counsel, to expedite the indictment. By no stretch of the term could it be said that this involvement constitutes acting as counsel.

Del Vecchio has presented nothing indicating further involvement in the case other than that Garippo probably received a State's Attorney's report on the interrogation, investigation, and confession; that he was in the courtroom during the guilty plea and sentencing; and that at the time in question, the State's Attorney's office was not very large and Garippo most likely knew the details of the case. Del Vecchio admits that after agreeing to expedite the indictment, the State's Attorney's office had little involvement with the 1965 murder case and that the case received a great deal of publicity. On the basis of the motion to dismiss and the supporting documents, the trial Judge granted the State's motion to dismiss the post-conviction petition. We agree that our rule was not violated and that there was no constitutional deprivation. Judge Garippo did not have a direct, personal interest in seeing Del Vecchio punished, nor was he unable to balance the interests between the defense and the State. He did not act as counsel in 1965 such that recusal was required in the 1979 case. In light of his limited role, we find no prejudice to the defendant, no due process violation, and that a new trial is not warranted.

Del Vecchio next requests an evidentiary hearing, contending that his due process rights were violated because a police officer perjured himself at the sentencing hearing in regard to the defendant's drug use. Officer Motzny testified, on cross-examination at the 1979 sentencing hearing, that he had spoken to Mrs. Del Vecchio, the defendant's mother, within hours after the 1965 arrest and that, at that time, she denied any knowledge of her son's drug use. It is contended that the testimony is relevant because one of Del Vecchio's defenses to the 1977 crimes was that he was under the influence of drugs. The State contested this defense and, instead, characterized him as a malingerer.

A post-conviction petitioner is not entitled to an evidentiary hearing as a matter of right. (People v. James (1986), 111 Ill. 2d 283, 291.) A hearing is only allowed if the petitioner makes a substantial showing of a violation of a constitutional right and the allegations are supported by the record in the case or by accompanying affidavits. (People v. Curtis (1971), 48 Ill. 2d 25, 27.) Del Vecchio attempts to establish circumstantially that it is implausible his mother would have made such a statement. Two days before the 1965 killing, she provided information for a missing-persons report and she stated that her son used drugs; subsequent to the arrest, she told the press about his drug use; another police officer testified in 1965 that during the interrogation following his arrest, Del Vecchio stated he was on pills; and there were numerous exhibits and testimony documenting his drug use.

At the sentencing hearing in 1979, Officer Motzny stated that Del Vecchio's mother said, after the 1965 arrest, that she had no knowledge about her son's drug use. In the post-conviction petition, Mrs. Del Vecchio's affidavit states that before the 1965 killing, in the missing-persons report, she told the police about her son's drug use and that there "is absolutely no reason why, following the Christiansen killing, I would have denied that George had used drugs. I believe I made no such denial. To the best of my present recollection, I made no such denial." Based upon this, Del Vecchio requests a finding that the officer knowingly committed perjury or an evidentiary hearing on the issue.

The circuit court ruled that an evidentiary hearing was not warranted and granted the motion to dismiss. It reasoned that this was only a small aspect of the consideration in the aggravation and mitigation stage of the sentencing hearing, that there was ample evidence of the defendant's drug use, and that Mrs. Del Vecchio's affidavit does not clearly establish perjury.

Initially, the State argues that the issue was waived by the failure to raise it on direct appeal. However, where fundamental fairness so requires, this court will relax the waiver doctrine in post-conviction proceedings (People v. Burns (1979), 75 Ill. 2d 282, 290; People v. Hamby (1968), 39 Ill. 2d 290, 291), and, though it is unusual to grant an evidentiary hearing or a new trial based on such a claim as this, the Post-Conviction Hearing Act has been used to remedy a claim of perjury (People v. Macias (1968), 39 Ill. 2d 208, 211-12). One instance where an evidentiary hearing was allowed was in People v. Cihlar (1986), 111 Ill. 2d 212, where the defendant located a witness who would testify that the victim stated that the assailant had worn a mask at the time of the crime. The victim's testimony at trial was that the defendant had worn a hairnet and the testimony was the only evidence connecting the defendant with the crime. This court granted an evidentiary hearing, finding that if the conviction were based on this false testimony, due process would be violated.

Alleged perjury does not always rise to a substantial constitutional violation. In People v. Doherty (1966), 36 Ill. 2d 286, 289, the petitioner claimed that a police officer perjured himself because there were inherent improbabilities in his testimony and the testimony was contradicted by the petitioner. The court held that the claim fell far short of establishing a substantial denial of a constitutional right. Rather, such matters concern the weight and credibility of the evidence and go to the issue of guilt or innocence. See People v. Tyner (1968), 40 Ill. 2d 1, 3; People v. Orndorff (1968), 39 Ill. 2d 96, 100.

The alleged perjurious testimony in this case was given in 1979, but related to defendant's 1965, not 1977, drug use. The testimony referred to one instance where the defendant's mother discussed Del Vecchio's drug use in 1965, and her affidavit now merely states that she believes she would have told the police about her son's drug use. There were numerous references throughout the record that the defendant had used drugs. In fact, Del Vecchio's 1965 confession was admitted through the testimony of the same Officer Motzny, and in it are a number of statements about defendant's drug use. The importance of the 1965 drug use is diminished by the fact that trial counsel did not attempt to bring out from Del Vecchio at the sentencing whether he had used drugs during the 1965 murder, though there was extensive testimony regarding his 1977 drug use, and this issue was not raised on appeal. In any event, there was ample evidence concerning the defendant's drug use such that Officer Motzny's statement does not rise to a constitutional violation requiring a new sentencing hearing or an evidentiary hearing on the post-conviction petition. The inconsistency would, at most, go to the weight and credibility of the witness' testimony.

Del Vecchio next contends that the trial court erred in not granting defendant's request for production of certain documents before it ruled on the State's motion to dismiss the post-conviction petition. First, he requests the missing-persons report issued shortly before the 1965 murder, and the report of Officers Vass and Motzny summarizing their interview with Mrs. Del Vecchio. He claims that these reports may contain information that contradicts Officer Motzny's testimony that Mrs. Del Vecchio did not say her son had been using drugs. Even if the documents show that Mrs. Del Vecchio told the police about the drug use, their production is not warranted, due to our ruling that the officer's inconsistent testimony does not require a new sentencing hearing.

Second, defendant requests disclosure of a memorandum an assistant State's Attorney prepared concerning the investigation, interrogation, and confession of Del Vecchio, and "other documents" relating to Garippo's involvement. Our analysis above shows that Garippo did not act as counsel in the 1965 murder case and the affidavits and exhibits provided by the petitioner and the State show that Garippo's involvement was minor. Judge Garippo's 1979 rulings were upheld on direct appeal and no bias or prejudice is established in reviewing the record of the proceedings. Therefore, there has been no substantial showing of a violation of a constitutional right and an evidentiary hearing is unwarranted. People v. Silagy (1987), 116 Ill. 2d 357, 365.

Lastly, the defendant requests the police department "street files." These files are auxiliary records of an investigation kept by police officers. A number of newspapers' reports immediately following defendant's arrest indicate that perhaps Mrs. Canzoneri had been partying with Del Vecchio and had consented to sex with him, and that the defendant was under the influence of narcotics. The defendant believes that the source for these articles was a supervising officer who had spoken to reporters. Defendant claims that the street files may contain information that supports his defense that he was under the influence of controlled substances at the time of his arrest and that Mrs. Canzoneri was not raped. Bolstering this view is the original arrest sheet, which indicated the charges would include drug offenses but not sex offenses, and that the police did not preserve Mrs. Canzoneri's nightgown or bed sheets, which most likely would have been done if rape had been suspected.

As noted, a proceeding under the Post-Conviction Hearing Act is not an appeal, but is a collateral attack on the judgment. (People v. James (1986), 111 Ill. 2d 283, 290.) "The purpose of a post-conviction proceeding is to inquire into the constitutional phases of the original conviction which have not already been adjudicated" (People v. Williams (1970), 47 Ill. 2d 1, 3), and the petitioner must make a substantial showing of a violation of a constitutional right (People v. Silagy (1987), 116 Ill. 2d 357, 365). The court fails to see what constitutional rights defendant is attempting to raise. Instead, it appears that he is trying to relitigate factual issues that were or should have been litigated at the trial. Del Vecchio was aware in 1977 of these articles and attempted to impeach police officers and Mrs. Canzoneri from these reports, but was unable to do so because the police officer who allegedly was the source of the articles stated that he neither interviewed the victim nor took any notes. Therefore, a post-conviction proceeding is not the proper forum in which to raise this issue. (See Palmer v. City of Chicago (1985), 755 F. 2d 560 (street files may be obtained through a properly drafted, specific subpoena).) The Judge was correct in not entering a general discovery order prior to ruling on the motion to dismiss. (See People v. Rose (1971), 48 Ill. 2d 300, 302.) Also, defendant is not correct in saying that the Judge did not permit him to subpoena specific documents before ruling on the motion to dismiss. When asked whether the court's order would include counsel's efforts to "get by subpoena rather than by formal discovery," the court prefaced its answer with "the court says it is up to you." This cannot be construed to be a prohibition by the court of counsel's use of a subpoena to procure desired documents.

The defendant next contends that the prosecutor made improper remarks concerning parole during opening and closing arguments of the sentencing hearing. This same issue was raised in Del Vecchio I and defendant again relies on the two statements addressed in that opinion. (105 Ill. 2d at 435-36.) However, in the post-conviction petition, the defendant also cites to one statement made during closing argument which, in Del Vecchio I, he argued was an improper remark about the victim's family (105 Ill. 2d at 434-35), and to one instance which has not yet been addressed. The one new remark occurred during closing argument, when the prosecution argued:

"Eight years, eight years after he kills Mr. Christiansen and does those other acts, they decide to let him go, he's allowed to walk out, to be put on parole because he's rehabilitated. He's not going to do it anymore. He's got the ...


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