the Illinois Court had a second chance to review the evidence in Albanese III, where Albanese argued that attorney Kelly was ineffective for failing to point out discrepancies in the State's financial exhibits. Once again the Court found the alleged errors to be immaterial: "there is no dispute that as a result of the deaths the defendant experienced financial gains that eased a financially tight situation, and moving numbers from one side of the ledger to another could not have altered that fact." Albanese III, 531 N.E.2d at 20. Second, Albanese has never put forth credible evidence seriously challenging the precariousness of his financial condition. At the post conviction hearing, where Albanese's accounting expert, Terry Hall, stated that Albanese was in "terrific" financial condition, the judge dismissed her testimony as unpersuasive. (Post Conviction R. vol. II at 285). Finally, there can be no reason for this court to revisit an issue satisfactorily resolved in the state courts where Albanese had access to all of the underlying financial documentation in advance of his trials. Although Albanese has presented this argument in a Supplemental Petition together with claims based on purportedly "new" information, any inference that the financial claim is supported by new evidence must be rejected. In his post conviction appeal, in the context of an ineffectiveness argument, Albanese asserted "there is clearly evidence, available pretrial, which proves that Charles and Virginia Albanese were financially stable." (Petitioner's Br. in Post Conviction Appeal at 23). Terry Hall based her opinion exclusively on records available at trial; additionally, she found Albanese himself to be well-acquainted with his business affairs. (Post Conviction R. vol. VIII at 275-76).
The only "new" allegation contained in Claim 9 is that the State intentionally misstated Petitioner's financial status. Albanese equivocates over what exactly the State is accused of doing. First he asserts that "this claim is that the State solicited or allowed perjured testimony to stand in support of the conviction." (Petitioner's Resp. to Resp. to Supplemental Pet. at 8). Later, the onus is shifted to Schaefer: "the testimony of Rudolph Schaeffer [sic] is alleged herein to be false because he intentionally omitted income or because the State withheld those records from him, thus invalidating his analysis." (Id. at 11) (emphasis added). Through these allegations, Albanese seems to be relying on a Napue -type theory. As discussed above, however, Albanese never asserted that theory in the state courts and so never produced any evidence of withholding of records or of solicitation to give false testimony. Instead, Albanese bases this claim on bare assertions. For the reasons stated supra at 64-66, the solicitation of false evidence/allowing false evidence to be introduced aspect of Claim 9 is procedurally defaulted for failure to present the issue to the state courts.
The same fate befalls Claims 10 and 11, also based on Napue v. Illinois.40 As Albanese himself makes plain, he is not asserting that the State violated Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) with regard to the medical records of Albanese's brother Michael: "It is not now, nor has it ever been alleged, that the State withheld the hospital records that would have proven the patent falsity of Michael Albanese, Jr.'s testimony." (Petitioner's Mem. in Sup. of Supplemental Pet. at 11). Instead, he claims that the State knew Michael's testimony about having been hospitalized for vomiting was false. While in the state courts, Albanese utilized the discrepancy between Michael's testimony and the medical records of his symptoms to argue that attorney Kelly was ineffective for failing to highlight the differences. "Richard Kelly did not impeach the crucial testimony of Michael Albanese. Michael testified the he experienced nausea and stomach problems in September of 1980, when in fact according to hospital records and medical notes, Michael was tested because of severe headaches." (Petitioner's Br. in Post Conviction Appeal at 25). There was no hint in the ineffectiveness argument that the State violated Albanese's due process rights by allowing Michael to testify to feeling nauseous. Albanese cannot preserve a Fourteenth Amendment claim by the roundabout method of asserting a Sixth Amendment challenge to counsel. Nothing in Albanese's argument about Kelly's performance would have "raised the red flag" of a constitutional violation based on Napue.
See Verdin v. O'Leary, 972 F.2d at 1475.
Claim 11 was also presented to the state courts as an ineffective assistance of counsel claim, rather than a due process claim for the State's knowing presentation of false evidence. Joseph Reichel testified that he gave a quantity of arsenic to Albanese in late 1979. (McHenry R. vol. XXX at 315-17). The State and Albanese had access to police statements given by Reichel which placed the date of arsenic delivery in the spring of 1980. (Petitioner's Br. in Post Conviction Appeal at 21) (material with which to impeach Reichel was "readily available"). Albanese argued that Kelly's failure to use the police reports to impeach Reichel as to the date of arsenic delivery constituted ineffective assistance.
(Id.). Once again, Albanese's arguments to the state courts did not ever intimate that the State, rather than Kelly, was the source of a constitutional violation. Because this claim was never presented to the state courts, review by this court is precluded.
After careful consideration of Claims 1 through 12, this court has not found that the constitutional rights of Charles Albanese were violated in the guilt phase of either the McHenry or Lake County trial. His convictions, therefore, will not be disturbed. The court now turns to Albanese's claims of constitutional error in the sentencing phases of his trials.
Part Two: Sentence Claims.
After the McHenry County jury found Albanese guilty, a separate sentencing hearing was conducted in accordance with the procedures set forth in the Illinois death penalty statute, Ill. Rev. Stat. ch 38, P 9-1(d). The same jury which convicted Albanese sentenced him to death. In the Lake County trial, Albanese waived a jury for sentencing, and the death penalty hearing was conducted before the trial judge, who imposed the death sentence. In Claims 13 through 19, Albanese contests the constitutionality of those two death sentences.
Albanese mounts a facial attack on Illinois death penalty statute (Claims 13(a) - 13(f)), as well as on the procedures followed in his particular case. These "as applied" claims are directed solely against the McHenry County sentence. Albanese argues (1) that the prosecutor's closing argument was inflammatory and improperly commented on Albanese's silence (Claims 14, 19), (2) that the process of Witherspooning produced a jury predisposed to impose the death penalty (Claims 17-18), and (3) that the jury was incorrectly instructed (Claims 15-16).
I. Facial Attack on Illinois Death Penalty Statute.
The death penalty statutory scheme in Illinois has been upheld repeatedly by both the state and federal courts. People ex rel. Carey v. Cousins, 77 Ill. 2d 531, 34 Ill. Dec. 137, 397 N.E.2d 809 (1979); People v. Brownell, 79 Ill. 2d 508, 404 N.E.2d 181, 38 Ill. Dec. 757 (1980); Silagy v. Peters, 905 F.2d 986 (7th Cir. 1990), cert. denied, 498 U.S. 1110, 112 L. Ed. 2d 1106, 111 S. Ct. 1024 (1991); Williams v. Chrans, 945 F.2d 926 (7th Cir. 1991), cert. denied, 120 L. Ed. 2d 877, 112 S. Ct. 3002 (1992). Albanese, therefore, faces an uphill battle in arguing its unconstitutionality. As is discussed in detail below, Albanese is not equal to this challenge; his claims are either procedurally defaulted or deficient on the merits.
In Claim 13(a), Albanese argues that the death penalty statute is unconstitutional because
It permits unlimited prosecutorial discretion in seeking the death penalty, violating the doctrine of separation of powers, and a defendant's right to due process of law, resulting in death penalty sentences that are arbitrary and capricious and are imposed in a wanton and freakish manner.
Both of these contentions were rejected in Silagy v. Peters. As to the separation of powers argument, Silagy notes that a prosecutor's exercise of discretion under the death penalty statute does not amount to a "judicial function." 905 F.2d at 993, n. 5. The prosecutor merely initiates the death penalty proceeding, while the jury or judge, as the case may be, determines whether to impose the sentence. This fact also defeats Albanese's due process claim, because the prosecutor's election to seek the death penalty does not deprive a defendant of life, liberty or property. Id. at 997. Rather, "the deprivation occurs, if at all, only through the action of the judge or jury at the conclusion of the statutorily-mandated sentencing hearing . . . . [which] provides for all the procedure which is due under the fourteenth amendment." Id. Claim 13(a) is rejected.
The State asserts that Albanese's next Claims, 13(b) and 13(c), have been procedurally defaulted because they were never presented to the Illinois courts. These claims are that the death penalty statute is unconstitutional because:
It fails to provide proper constitutional focus on the individual characteristics of a defendant in having a jury decide the death penalty issue.