SUPREME COURT OF ILLINOIS
547 N.E.2d 170, 132 Ill. 2d 1, 138 Ill. Dec. 201 1989.IL.1675
Appeal from the Circuit Court of Cook County, the Hon. Arthur Cieslik, Judge, presiding.
Rehearing Denied December 4, 1989
JUSTICE MILLER delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER
The defendant, Luis Ruiz, appeals from an order of the circuit court of Cook County dismissing, without an evidentiary hearing, his petitions for post-conviction relief. Because the defendant was sentenced to death for the underlying murder convictions, the present appeal lies directly to this court. 107 Ill. 2d R. 651(a).
The defendant's convictions stem from his participation in the murders of three youths, Michael Salcido, Arthur Salcido, and Frank Mussa. The victims' bodies were discovered in a car early in the morning on February 25, 1979. According to the evidence presented at the defendant's trial, the victims encountered the defendant and three other men late in the evening on February 24, 1979, at a restaurant in Chicago. The defendant and his companions were members of the Latin Kings street gang, but the victims were not aware of that at the time. Michael Salcido asked the defendant for help in obtaining marijuana. After a brief conversation, Michael told the defendant's group that at times he assisted a rival gang, the Latin Eagles, and that he had been present during the Eagles' murder of two Latin Queens, who are female companions of the Latin Kings. The defendant responded that he was also a Latin Eagle and told Michael that he would help him find some marijuana. The group then left the restaurant in the victims' car, and the Latin Kings directed the victims to drive to an alley. There, they escorted Michael Salcido some distance from the car and beat him. They then returned with Michael to the car and drove to another alley, where the victims were stabbed to death by the defendant's three companions. On March 2, 1979, less than a week after the murders, the defendant told a friend about the offenses. The defendant was arrested on March 3, and he made a confession to authorities. Both statements were introduced into evidence at the defendant's trial, along with evidence that the defendant's fingerprint was found on the victims' car.
A jury found the defendant guilty on charges of murder, unlawful restraint, and armed violence with respect to each of the three victims. In a separate bench proceeding, the defendant, who was 19 years old at the time of his commission of the offenses, was found eligible for the death penalty on the basis of the multiple-murder aggravating circumstance (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 9-1(b)(3)); the Judge rejected the defendant's argument that the death sentence was not an available Disposition for one convicted on an accountability theory. At the sentencing hearing the State presented evidence of the defendant's commission of a homicide in 1976, for which the defendant was not tried, and of his guilty plea to a charge of burglary in 1977. The Judge sentenced the defendant to death for the murder convictions.
The defendant's convictions and death sentence were affirmed on direct appeal (People v. Ruiz (1982), 94 Ill. 2d 245), and the United States Supreme Court denied review (Ruiz v. Illinois (1983), 462 U.S. 1112, 77 L. Ed. 2d 1341, 103 S. Ct. 2465). The defendant then instituted the present action under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1983, ch. 38, pars. 122-1 through 122-7), filing pro se a petition for post-conviction relief on September 30, 1983. The State moved to dismiss the petition. Through appointed counsel, the defendant later filed a supplemental petition and an amendment to the supplemental petition. The main allegations raised by the defendant's post-conviction petitions concerned the competency of the different attorneys who had represented the defendant at trial and on direct appeal.
The action was originally assigned to the same circuit Judge who had presided at the defendant's trial and sentencing hearing. The Judge denied the defendant's request for reassignment of the case and dismissed the post-conviction petitions without conducting an evidentiary hearing. The defendant appealed, contending, among other things, that the matter should have been assigned to a different Judge, as was then required by section 122-8 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122-8), which took effect shortly after the defendant filed his initial, pro se post-conviction petition. We agreed with the defendant that the new provision was applicable to his action, expressly reserving for a future case a determination of the statute's constitutionality (see People v. Joseph (1986), 113 Ill. 2d 36 (invalidating section 122-8 as a violation of the separation of powers provision of the Illinois Constitution)). We therefore vacated the circuit court order dismissing the defendant's post-conviction petitions and remanded the cause for further proceedings before a different Judge. People v. Ruiz (1985), 107 Ill. 2d 19.
The matter then returned to the circuit court, and the case was assigned to a different Judge, in accordance with our mandate. Following the remand, defense counsel submitted a group of affidavits in support of the post-conviction petitions and renewed his request for an evidentiary hearing; counsel did not make any further amendments to the petitions. The State rested on the dismissal motion that had been previously filed in response to the defendant's original, pro se petition. At the Conclusion of the hearing on the State's motion to dismiss, the circuit Judge dismissed the defendant's post-conviction petitions without allowing an evidentiary hearing.
In the present appeal the defendant asks that his request for post-conviction relief be allowed and that he be granted a new trial and sentencing hearing. In the alternative, the defendant asks that the cause be remanded for an evidentiary hearing on the matters raised in the post-conviction petitions.
An action for post-conviction relief represents a collateral attack on a prior judgment; it is not an appeal from the underlying conviction and sentence. (People v. Free (1988), 122 Ill. 2d 367, 377; People v. James (1986), 111 Ill. 2d 283, 290.) To be entitled to post-conviction relief, a defendant must establish a substantial deprivation of Federal or State constitutional rights in the proceedings that produced the judgment under attack (Ill. Rev. Stat. 1985, ch. 38, par. 122-1). Rulings on issues that were previously raised at trial and on direct appeal are res judicata, and issues that could have been raised in the original proceedings, but were not, will be deemed waived. People v. Silagy (1987), 116 Ill. 2d 357, 365.
The primary constitutional claim undergirding the defendant's arguments for post-conviction relief is that he was denied the effective assistance of counsel both at trial and on direct appeal. In addition, the defendant raises a number of challenges to the constitutionality of the Illinois death penalty statute. The State responds that several of the issues pertaining to trial counsel's representation must be deemed waived because they were matters of record and therefore could have been raised on direct appeal. We have previously held, however, that counsel cannot be expected to argue his own incompetency (People v. Gaines (1984), 105 Ill. 2d 79, 91), and such a rule would be applicable here, where trial counsel hired the attorney who handled the appeal. Moreover, we note that the defendant has made the additional allegation that appellate counsel was ineffective for failing to raise the matters on direct appeal. The alleged ineffectiveness of appellate counsel will not operate as a bar to consideration of those issues. See People v. Frank (1971), 48 Ill. 2d 500, 503-04.
The constitutional guarantee of the assistance of counsel (U.S. Const., amends. VI, XIV) entails the right to the effective assistance of counsel (Cuyler v. Sullivan (1980), 446 U.S. 335, 344, 64 L. Ed. 2d 333, 343-44, 100 S. Ct. 1708, 1716), both at trial and on a defendant's first appeal as of right (Evitts v. Lucey (1985), 469 U.S. 387, 396-97, 83 L. Ed. 2d 821, 830-31, 105 S. Ct. 830, 836-37). The applicable standard for gauging the performance of counsel is that provided by Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. (See People v. Albanese (1984), 104 Ill. 2d 504, 526-27 (adopting standard).) To prevail on an allegation of ineffective assistance of counsel, a defendant must establish both that counsel's performance was deficient and that he was prejudiced as a result of the deficiency.
The defendant's first group of arguments concerns the trial proceedings. The defendant first argues that trial counsel's cross-examination of one of the State's witnesses at trial opened the door on redirect examination to damaging testimony suggesting that the defendant had intimidated the witness. The defendant contends that trial counsel's cross-examination was ineffective, and that appellate counsel was ineffective for failing to raise the issue on direct appeal.
The witness, Julio Lopez, testified at trial to a statement made by the defendant describing the murders of the three youths. On cross-examination, defense counsel asked Lopez whether he had visited the defendant in the Cook County Jail with other Latin Kings a month after speaking with the police about the case. Lopez said that he had made such a visit, in the company of one gang member. On redirect examination Lopez explained that the defendant had summoned him to the jail so that he could assure the defendant that he had not cooperated with the authorities. Lopez also testified that he had been threatened by relatives of co-defendant Juan Caballero but that he had not been threatened by relatives of the defendant.
Defense counsel in the present appeal professes not to understand why trial counsel asked Lopez about his visit to the defendant in jail. The record clearly demonstrates, however, that trial counsel was attempting to establish Lopez's continued affiliation with the gang at the time of the visit, contrary to his testimony. Lopez testified that he had left the gang around the time he talked to the police about the case, in March 1979. Defense counsel impeached Lopez with his earlier statement to police that he had quit the gang in August 1978. During further cross-examination, Lopez declared that he had quit the gang in March 1979, that he had lied to police when he told them that he quit in August 1978, and that this was the only lie he had ever told. Counsel then asked Lopez about his visit to the defendant in jail, which, according to Lopez's testimony, would have occurred in April 1979, a month after he spoke with the police.
Unlike the defendant, we do not believe that trial counsel's inquiry should be condemned. Lopez was one of two principal witnesses against the defendant -- the other was the assistant State's Attorney who took a statement from the defendant. Lopez was the only witness, however, who testified that the defendant said that he had a gun and that he checked the bodies after the stabbings to make sure the victims were dead. Lopez's credibility was important to the State's case, and defense counsel attacked the witness vigorously. After Lopez insisted that the only lie he told in his life was his statement to police that he left the gang in August 1978 rather than in March 1979, defense counsel may well have believed that evidence suggesting the witness' continued affiliation with gang members in April 1979 would be more damaging than information about the defendant's interest in what the witness had told the authorities. Counsel's decision to impeach the witness in this manner is precisely the type of strategic decision that Strickland counsels against attempting to second-guess. In light of the overwhelming evidence of the defendant's guilt, we cannot say that counsel's opening the door to the information determined the outcome of the trial.
The defendant next alleges that during closing argument at trial the prosecutor improperly commented on the defendant's failure to provide authorities with a written statement after making an initial, oral statement. The defendant asserts that the prosecutor's remark was inconsistent with the rule expressed in Doyle v. Ohio (1976), 426 U.S. 610, 619, 49 L. Ed. 2d 91, 98, 96 S. Ct. 2240, 2245, which found a due process violation in "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings." (See also Wainwright v. Greenfield (1986), 474 U.S. 284, 88 L. Ed. 2d 623, 106 S. Ct. 634.) The defendant argues, as grounds for post-conviction relief, that appellate counsel was ineffective in failing to raise the issue on direct appeal. The State responds that the prosecutor's comment was invited by trial counsel's own argument to the jury and, furthermore, that whatever error occurred was harmless.
Testimony concerning the defendant's refusal to make a statement in the presence of a court reporter was presented without objection at trial, during the testimony of Assistant State's Attorney Barnett. Barnett testified that he talked to the defendant on two separate occasions early in the morning on March 4, 1979, following the defendant's arrest in connection with the present offenses. On direct examination, Barnett explained that at the start of the questioning he advised the defendant of the Miranda rights, which the defendant elected to waive. According to Barnett, during the first conversation, which lasted 20 to 25 minutes, the defendant gave a statement concerning the murders of the three youths. With respect to the second conversation, Barnett testified only that it was much briefer than the first, lasting but several minutes. Barnett then related the defendant's statement to the jury. On cross-examination defense counsel established that Barnett's testimony concerning the defendant's statement was based on the assistant State's Attorney's recollection of his conversation with the defendant and on a memorandum that he had later prepared from handwritten notes made by him during the conversation. Defense counsel was able to show that several facts mentioned by Assistant State's Attorney Barnett as having been related to him by the defendant did not appear in the memorandum. On redirect examination, the prosecution inquired whether the defendant made a written statement, and the witness replied that the defendant did not wish to make a written statement after he made the oral statement.
Defense counsel's only objection to the redirect examination about the defendant's refusal to repeat his statement in the presence of the court reporter was that the questioning might bring out information of the defendant's alleged commission of another crime. It appears, from the attorneys' side bar Discussion, that the defendant, in refusing to give a second statement to Assistant State's Attorney Barnett, mentioned another murder case in which he had been asked to give a statement. The apparent purpose of defense counsel's objection to the testimony was, therefore, to prevent the jury from learning about the other murder case. During the side bar Discussion defense counsel explained, "Now, the problem we get into, the answer is that he refused to take a court reporter's statement. I don't mind him saying that, what I want to prevent is him saying well, he said I was charged with murder before and I gave a statement before, but then I refused to take it." To avoid any reference to the defendant's reason for refusing to give a statement in the court reporter's presence, defense counsel suggested that the prosecutor ask, "Isn't it a fact he would not give a court reporter's statement?" Later, in open court, the prosecutor did just that, eliciting from the witness testimony that the defendant refused to make a statement in the presence of a court reporter after being shown photographs depicting the victims' injuries.
In closing argument defense counsel stressed the relative inexperience of the assistant State's Attorney who conducted the interrogation and attacked the accuracy and completeness of his recollection. Referring to the report Barnett prepared after questioning the defendant, defense counsel said:
"As far as what is in this report, the only record, the only person that ever spoke to Ruiz is Randy Barnett. 1:15 in the morning, 13 hours or so after he is in custody. No one else. Randy Barnett is apparently the only person in the room talking to my client because no one else comes forward to discuss this conversation, only the assistant State's Attorney Randy Barnett. We don't have to bring anybody in and we don't have to explain it because it's their case to prove to you beyond a reasonable doubt."
In rebuttal argument the prosecutor made the remarks now challenged by the defendant:
"Talk about Randy Barnett's memorandum. Same thing, then he talks about Randy Barnett who he calls a very young, inexperienced assistant State's Attorney. Well, that's news to me. He does the same thing to Trainor and myself. Just told you what great guys we are. What professionals we are, but he's young and inexperienced and he says he didn't take notes copious enough for his benefit. He didn't do his job and combined ...