SUPREME COURT OF ILLINOIS
543 N.E.2d 1290, 129 Ill. 2d 233, 135 Ill. Dec. 543 1989.IL.923
Appeal from the Circuit Court of Sangamon County, the Hon. C. Joseph Cavanaugh, Judge, presiding.
JUSTICE STAMOS delivered the opinion of the court. JUSTICE RYAN, Dissenting. JUSTICE MILLER, also Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS
The defendant, Mark Chandler, was convicted in a jury trial in the circuit court of Sangamon County of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1), residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3), and arson (Ill. Rev. Stat. 1985, ch. 38, par. 20-1). Defendant waived his right to a jury at the sentencing hearing, and the trial Judge found him eligible for the death penalty and imposed the death sentence for the murder conviction. Defendant's execution was stayed pending direct review by this court. Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d Rules 603, 609(a).
Defendant was arrested on January 17, 1986, after giving a statement admitting his involvement in the offenses at issue. In his statement, to which a police officer testified at the trial, defendant stated that he, along with a co-defendant (who was granted a separate trial), broke into the victim's home during the early hours of January 16, 1986. Defendant stated that he ransacked the first floor of the victim's house and that his co-defendant went to the second floor of the house. Defendant said that after coming downstairs and saying that there was a woman upstairs, his co-defendant went back upstairs with a knife from the kitchen. According to defendant's statement, he then started to go upstairs and saw his co-defendant come out of the victim's bedroom and heard him state that "it's too late." Defendant stated that they both then took some items from the house and left the residence. Defendant further told police that he and his co-defendant returned to the victim's house later that morning with a can of lighter fluid in an attempt to obliterate fingerprints from the residence by setting it on fire.
The following day, defendant initially recanted his prior statements and denied involvement in the perpetration of the offenses, but subsequently admitted the truth of his prior statements when he was told by the police that they could establish that he was in fact involved. He continued to deny that he had stabbed the victim. Defendant also told the police that a necklace taken from the victim's house was hidden in the basement of his parents' residence, where he lived. He also revealed the location of other items taken during the break-in, which police subsequently recovered.
Both defendant and his co-defendant were charged by information with four counts of murder, one count of residential burglary, and one count of aggravated arson. At the instructions conference, the instructions were amended so that the jury could find defendant guilty or not guilty of arson. The trial court granted their joint motion to sever their trials.
When police were called to the victim's house on the morning of January 16, 1986, by the victim's daughter, they discovered evidence of a fire in the living room of the house. A fire investigator for the Springfield fire department testified that the fire had been intentionally set. The victim was found lying on her bed in an upstairs bedroom of the house. Testimony given at defendant's trial revealed that the cause of death of the victim, a 78-year-old woman who was the owner of the house, was two fatal stab wounds in the chest.
Defendant's girlfriend testified that defendant told her, on the afternoon of January 16, 1986, that he had killed the victim. The State also presented the testimony of two former cellmates of defendant who testified that he had told them that he killed the victim.
Defense counsel presented no witnesses, and defendant did not testify, despite defense counsel's representation to the jury in his opening statement that defendant would testify at trial.
The State, in its closing argument, argued that defendant was guilty of murder, either as the person who actually wielded the knife or as an accomplice to a forcible felony in which the victim was killed. As the prosecutor pointed out to the jury, under the law of accountability, "there is no doubt that this defendant caused the death of Florence Hatch, even if you take the defendant's story to the police that all he did was burglarize and that [the codefendant] did the killing."
Defense counsel, in his closing argument, while apparently conceding the fact that defendant entered the victim's house, argued that defendant did not stab the victim but that defendant's codefendant stabbed the victim, causing her death. He concluded, "I don't think if you take a realistic view of this that you can find defendant guilty of murder."
Following closing arguments, the jury was instructed on accountability (Illinois Pattern Jury Instructions, Criminal, No. 5.03 (2d ed. 1981)), and murder, including felony murder (Illinois Pattern Jury Instructions, Criminal, Nos. 7.01, 7.02 (2d ed. 1981)). The jury returned a general verdict finding defendant guilty of murder, residential burglary and arson. Defendant waived a jury for his sentencing hearing.
The State sought the death penalty. At the eligibility phase, after presenting evidence that defendant was over the age of 18, the State argued that defendant's murder and residential burglary convictions made defendant eligible for the death penalty under section 9-1(b)(6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)).
Defense counsel introduced no evidence at this phase of the sentencing hearing, and did not argue that defendant's codefendant, rather than defendant, had inflicted the victim's fatal wounds. Defense counsel did argue, however, that defendant was not eligible for the death penalty because residential burglary is not among the enumerated felonies which support eligibility for death under section 9 -- 1(b)(6)(c). The State responded by contending that because burglary, a felony listed in the statute, is a lesser included offense of residential burglary, defendant was eligible for death under this statutory aggravating factor. Although the trial court expressed concern that defendant had not been convicted of one of the statutorily enumerated felonies supporting eligibility for the death penalty, the court found defendant eligible for the death penalty by holding that burglary is a lesser included offense of residential burglary.
At the second phase of the death penalty hearing, the State introduced in aggravation, and the trial court took judicial notice of, the presentence investigation report, which listed the history of defendant's juvenile adjudications and adult convictions; the report also contained a three-page victim impact statement written by the victim's daughter. The State also introduced certified copies of defendant's adult convictions for burglary, criminal damage to property, theft, and attempted theft.
Defense counsel called defendant's mother as a witness in mitigation. He also introduced defendant's records from the Springfield Mental Health Center and defendant's report cards from grade school and high school. Defense counsel also introduced the statements of two persons who had been cellmates of defendant's co-defendant while the codefendant was imprisoned at the Sangamon County jail. Their statements revealed that defendant's co-defendant had admitted to killing the victim.
The trial court, without specifying any factors it relied on in making its decision, found that no mitigating factors sufficient to preclude imposition of the death penalty existed, and sentenced defendant to death. The court also sentenced defendant to an extended term of 30 years' imprisonment for residential burglary, and an extended term of 14 years' imprisonment for arson.
A hearing was held on May 15, 1987, on defendant's post-sentencing motion which had been filed on February 11, 1987. The trial court vacated defendant's 14-year sentence for arson and imposed a seven-year sentence on the arson conviction. The trial court denied all other relief sought by defendant.
Defendant first contends that his convictions for murder, arson and residential burglary must be overturned because he was denied his sixth amendment right to effective assistance of counsel when his trial attorney conceded defendant's guilt at trial during his opening and closing arguments.
In his opening argument, defense counsel told the jury, "I can say I think candidly there's only really two people know [ sic ] what happened in the Florence Hatch house on the night of January 15th and the early morning hours of January the 16th and that's the defendant and his co-defendant."
During his closing argument, defense counsel told the jury:
"is [defendant's] statement is consistent after he decided that he was going to help -- after he decided that he wanted to admit his participation to some degree as to what he did or did not do in reference to this event . . . Well, he didn't have to tell [the police] and he didn't have to tell them the truth, but he did and that is a consistent pattern of what his statement was all about.
Now, I don't know that there is any argument since he made the statement to Detective Mitchell that he entered the house. Whether this is going to constitute residential burglary or not, which is a legal charge -- is something that you will have to find in the jury room, but the testimony is consistent in terms of what his statement was and what they produced in the way of what their witnesses said . . . [i]t is consistent with the truth."
The State initially argues that defendant has waived review of this claim by failing to raise it in a written post-trial motion. See People v. Enoch (1988), 122 Ill. 2d 176, 185-91; People v. Gacho (1988), 122 Ill. 2d 221, 239.
We note that defendant did file a timely post-sentencing motion on February 11, 1987, although the motion did not allege that defendant's trial counsel had been ineffective. The motion was signed, however, by the defense counsel who defendant now alleges was ineffective. The record of the hearing on the post-sentencing motion indicates that defendant's trial counsel prepared the motion in "consultation" with the Appellate Defender's office. In light of the fact that the same attorney who defendant now alleges deprived him of his constitutional right to effective assistance of counsel signed the motion, and argued it before the trial court, and the fact that the error complained of is substantial and of constitutional magnitude, we will review defendant's claim under our plain error rule. 107 Ill. 2d R. 615(a); see People v. Enoch (1988), 122 Ill. 2d 176, 190; People v. Crews (1988), 122 Ill. 2d 266, 275.
A defendant alleging a violation of his sixth amendment right to effective assistance of counsel must generally meet the two-pronged test announced by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, in order to establish a valid claim. Strickland requires a defendant to prove (1) that his counsel's performance was deficient by having made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the sixth amendment, and (2) that his counsel's deficiencies prejudiced the defendant. (Strickland, 466 U.S. at 687, 80 L.Ed. 2d at 693, 104 S. Ct. at 2064; see People v. Albanese (1984), 104 Ill. 2d 504, 526-27.) To prove this, a defendant must show ...