The opinion of the court was delivered by: Miller
JUSTICE MILLER delivered the opinion of the court:
The defendant, Willie Thompkins, brings this appeal from an order of the circuit court of Cook County dismissing, without an evidentiary hearing, his petition for post-conviction relief. Because the defendant received the death sentence for the underlying murder convictions, the present appeal lies directly to this court. 134 Ill. 2d R. 651(a).
The defendant was convicted in June 1982 in the circuit court of Cook County of the murders of two men, Gerald Holton and Arthur Sheppard. The defendant was also convicted of a number of other offenses based on the same occurrence. The defendant was sentenced to death for the murder convictions. On appeal, this court affirmed the defendant's convictions and sentences. ( People v. Thompkins (1988), 121 Ill. 2d 401, 117 Ill. Dec. 927, 521 N.E.2d 38.) The United States Supreme Court denied the defendant's petition for a writ of certiorari. Thompkins v. Illinois (1988), 488 U.S. 871, 102 L. Ed. 2d 156, 109 S. Ct. 187.
Seeking post-conviction relief, the defendant later instituted the present action in the circuit court of Cook County. The defendant's supplemental post-conviction petition alleged 33 separate grounds for relief, and an addendum to the supplemental petition raised one additional point. The State moved to dismiss most of the claims of the petition without an evidentiary hearing, contending that the bulk of the issues raised by the defendant had been determined adversely to him on direct appeal, had been waived, or were without merit; with respect to several of the defendant's claims, however, the State denied the defendant's allegations rather than request their dismissal. Following a hearing on the motion, the circuit Judge dismissed all 34 claims raised by the defendant. The Judge found that some of the defendant's issues were barred from reconsideration by principles of res judicata, that others had been waived, and that still others lacked merit. The defendant appeals the dismissal of his supplemental post-conviction petition. For the reasons set out below, we affirm in part and reverse in part the judgment of the circuit court and remand the cause to that court for further proceedings.
Our prior opinion in this case filly describes the factual background of the defendant's offenses, and we will repeat those facts only to the extent necessary here. The State's principal witness was Sandra Douglas, who described the occurrence of the offenses and many of the arrangements preceding them. In brief, this testimony showed that on December 22, 1980, the defendant, Ronnie Moore, Pamela Thompkins, and Sandra Douglas were at Pamela's home, in Markham; Pamela is the defendant's sister-in-law. Pamela made a telephone call and at one point stated, "They're here and they have what I told you they would." About 20 minutes later, two men, Holton and Sheppard, arrived at the house, and Pamela escorted them to the basement kitchen, where Moore and Douglas were seated. According to Douglas, Holton placed some cocaine on the table. After part of it was tested, the defendant appeared in the kitchen doorway. He was holding a gun, and he said, "Put-all right put your hands on the table. This is the police." The defendant and Moore then bound Holton and Sheppard with telephone cord.
Around 8 or 9 o'clock that evening, Sandra Douglas heard a banging sound and two gunshots. According to Douglas, Pamela then said, "No, I told them not to do it here. I knew it wouldn't go according to plans." Douglas looked down the basement stairs and saw the feet of abody being dragged toward the garage. Sheppard, with his hands tied behind his back, then walked by, followed by Moore, who was holding a knife.
Sandra Douglas remained at the house. About 35 minutes later, she received a telephone call from the defendant, who instructed her to "go downstairs and clean up a little bit." She found blood in several areas of the basement and a large pool of blood in the garage. The defendant called again later, asking Sandra to retrieve a handgun from under a couch. The next day, Sandra asked the defendant about the banging sound she had heard. The defendant said that he had hit Sheppard in the head with a shovel when Sheppard refused to get in the trunk of the car. Sandra Douglas later left the Chicago area and lived with relatives in Alabama for several months.
Keith Culbreath also testified at the defendant's trial. Culbreath said that around noon on December 22, 1980, he talked with the defendant at Sandra Douglas' home, in Harvey. According to Culbreath, the defendant asked whether Culbreath wanted to earn some money by committing an armed robbery. Culbreath said that he was interested. Later in the conversation Culbreath said that he wanted to go home to obtain a ski mask to use as a disguise. According to Culbreath, the defendant replied, "Don't worry about it, [I'll] take care of that." Culbreath then said that he did not want to take part in the robbery.
The next day, on December 23, 1980, a Markham police officer found Gerald Holton's body in a ditch alongside a road in an unincorporated area of Markham; the officer found Arthur Sheppard's body nearby. The victims' hands were bound with telephone cord. The cause of death in each case was determined to be a gunshot wound to the head.
The defendant was not arrested until March 17, 1981. At that time, he gave an oral statement to police, admitting his involvement in the offenses but shifting part of the blame for them to Ronnie Moore. At the Conclusion of the trial, the defendant was convicted of the murders of Holton and Sheppard and of a number of related felonies. Following a sentencing hearing, the defendant was sentenced to death for the murder convictions.
Codefendant Moore was tried separately, convicted of the murders of Holton and Sheppard, and received a sentence of natural life imprisonment for those offenses. In a separate trial, codefendant Pamela Thompkins was found guilty of conspiracy to commit murder and conspiracy to commit armed robbery and received concurrent four-year sentences. Sandra Douglas was initially charged but was never tried for the offenses involved here.
The Post-Conviction Hearing Act provides an offender with the opportunity to challenge his conviction and sentence for violations of Federal and State constitutional rights. (Ill. Rev. Stat. 1991, ch. 38, pars. 122-1 through 122-7.) A post-conviction proceeding is a collateral proceeding, not an appeal from the underlying conviction. ( People v. Free (1988), 122 Ill. 2d 367, 377, 119 Ill. Dec. 325, 522 N.E.2d 1184.) "The function of a post-conviction proceeding is not to relitigate the defendant's guilt or innocence but to determine whether he was denied constitutional rights. [Citation.]" ( People v. Shaw (1971), 49 Ill. 2d 309, 311, 273 N.E.2d 816.) Because of considerations of res judicata and waiver, the scope of post-conviction review is limited "to constitutional matters which have not been, and could not have been, previously adjudicated." ( People v. Winsett (1992), 153 Ill. 2d 335, 346, 180 Ill. Dec. 109, 606 N.E.2d 1186.) Accordingly, issues that were raised in the appeal from the underlying judgment of conviction, or that could have been raised but were not, will not ordinarily be considered in a post-convictionproceeding. ( People v. Collins (1992), 153 Ill. 2d 130, 135, 180 Ill. Dec. 60, 606 N.E.2d 1137; People v. Ruiz (1989), 132 Ill. 2d 1, 9, 138 Ill. Dec. 201, 547 N.E.2d 170.) Principles of fundamental fairness, however, will support relaxation of the res judicata and waiver doctrines when appropriate. People v. Neal (1990), 142 Ill. 2d 140, 146, 154 Ill. Dec. 587, 568 N.E.2d 808.
This court, in its opinion disposing of the defendant's direct appeal, addressed many of the same issues now being raised by defendant in his post-conviction filings. ( People v. Thompkins (1988), 121 Ill. 2d 401, 117 Ill. Dec. 927, 521 N.E.2d 38.) Our prior opinion is res judicata with respect to issues that the defendant raised or could have raised on direct appeal from the judgment of conviction. Indeed, in response to a question from the post-conviction Judge, defense counsel acknowledged in the proceedings below that only nine of the claims being raised by the defendant were substantial ones based on newly discovered evidence. With respect to the other issues raised in the post-conviction petition, defendant elected to stand on his brief. We fully agree with defendant's implicit acknowledgment that many of the matters raised by the defendant in his post-conviction petition do not involve newly discovered evidence. Rather, many of these claims are essentially a repetition of issues raised by defendant on direct appeal and disposed of by this court on that occasion.
As we have noted, the State, in the proceedings below, sought the dismissal of most, but not all, of the defendant's post-conviction claims. We reject, at the outset, the defendant's suggestion that the State's failure to seek the dismissal of certain portions of the post-conviction petition automatically entitles the defendant to an evidentiary hearing on those particular issues. At the hearing below, the State requested the dismissal of the defendant's petition in its entirety, thus expanding on the relief originally requested. In addition, it is well established that a post-conviction petitioner is notentitled to an evidentiary hearing as a matter of right. People v. Titone (1992), 151 Ill. 2d 19, 24, 175 Ill. Dec. 702, 600 N.E.2d 1160.
The defendant also argues that the post-conviction court erred in dismissing the petition without allowing further discovery or the taking of depositions. The defendant filed a motion to permit further discovery, but the post-conviction Judge dismissed the petition without having ruled on the defendant's motion. We agree with the State, however, that the defendant has waived this point by failing to call the motion for a hearing. The defendant filed his original post-conviction petition in July 1990, and he filed the motion for discovery in October of that year. At that time the State asked the post-conviction Judge to reserve ruling on the motion until after the voluminous pleadings had been fully reviewed. The post-conviction Judge agreed with that procedure. At no time prior to the court's ruling, however, did the defendant call the motion for hearing. Nor did defense counsel mention the motion when the Judge announced his ruling in open court, in October 1991. The defendant argues here that the dismissal of the petition would have precluded the post-conviction Judge from entertaining the motion at that time, citing Bettenhausen v. Guenther (1944), 388 Ill. 487, 58 N.E.2d 550. The case cited, however, involved litigants' voluntary dismissal of a matter and their own subsequent motion seeking leave to withdraw the motion to dismiss, not an adverse judgment against them. See Johnson v. Sumner (1988), 172 Ill. App. 3d 70, 122 Ill. Dec. 431, 526 N.E.2d 690.
The defendant raises numerous issues in the present appeal, and, as we have noted, we considered and rejected a number of the same questions on direct appeal. We will consider the issues presented here in three groups: claims alleging the ineffective assistance of counsel, other claims in support of which the defendant cites new evidence, and claims that are wholly waived.
The defendant argues, in claims VI and XV of his supplemental post-conviction petition, that counsel rendered ineffective assistance at trial and at the capital sentencing hearing. The appropriate standard for reviewing these claims is found in the Supreme Court's decision in 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, 85 Ill. Dec. 441, 473 N.E.2d 1246 (adopting Strickland standard).) Strickland states:
"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.
We rejected on direct appeal several allegations of ineffective assistance of counsel at trial. ( Thompkins, 121 Ill. 2d at 447-48.) The defendant raises different challenges here and cites in support of them evidence that he believes was previously unavailable.
The defendant first argues that trial counsel was ineffective for failing to interview codefendant Pamela Thompkins or to call her as a witness. The defendant notes that Pamela later recanted a statement she had given police in which she implicated the defendant, and the defendant cites the recantation as newly available evidence that warrants consideration of this issue in thepresent proceeding. The defendant apparently believes that Pamela would have provided favorable testimony if she had been called as a defense witness.
It is not clear from the record whether trial counsel ever talked to Pamela Thompkins about testifying as a defense witness. In a postscript to a signed recantation of her original statement implicating the defendant, Pamela wrote, "Willie and his attorney asked me would I testify in his behalf and I agreed to do so. Unfortunately it was never presented or brought into court." If defense counsel in fact considered calling Pamela as a witness at trial, then the deference that must be owed to counsel's strategic decisions would insulate this conduct from a charge of ineffective assistance. As Strickland explains:
"Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 690-91, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.
Even if counsel did not seriously consider the prospect of calling Pamela as a defense witness, however, we do not believe that counsel may be faulted for failing to do so. Counsel successfully obtained severance of the defendant's case from Pamela's, knowing that her defense would be antagonistic to the defendant's and that she had made statements implicating herself and the defendant in the offenses involved here. Pamela did not recant her statement until January 1983, more than six months after the Conclusion of the defendant's trialand sentencing hearing. There is nothing in the present record to suggest that counsel would have had any cause to believe that Pamela would recant before that time. Counsel's decision not to pursue this avenue of investigation would have been reasonable under the circumstances shown here.
Finally, we note that the recantation itself was of doubtful utility. It appears as a brief handwritten letter, or note, dated January 26, 1983, and addressed "To whom it may concern." In the document Pamela repudiates her prior statement implicating the defendant in these offenses. Pamela subsequently reaffirmed the content of her original statement, however. At a stipulated bench trial conducted on January 27, 1983, only one day after the purported recantation, Pamela's attorney presented the following stipulation on her behalf:
"If Pamela were called to testify, she, Pamela, would say that yes, it is true that she did call these two men to come over to the house, and yes, it is true that she did plan some type of narcotics transaction. However, she had no knowledge and had no idea that Willie Thompkins and the other man who was there planned to kill the two people.
She did not participate in those killings; she was shocked and surprised, and that she did not content to it or agree to it.
Furthermore, she would state that anything she may have done subsequent to the killing of those two men, or anything she did in terms of traveling to and from such point was ordered to do so by Willie Thompkins and the other man, and she did so because she was in fear of her life, if she did not comply.
That she and her children would be killed, and both Thompkins and this other man did so threaten her and order her.
That's what she would testify to."
At the stipulated bench trial, then, Pamela effectively recanted the recantation she had made only oneday earlier. On this record, we agree with the post-conviction Judge's assessment that Pamela's recantation of her statement implicating the defendant "cannot be given any substantial weight." Just as we reject here the defendant's contention that counsel was ineffective for failing to call Pamela as a witness at trial, we reject the defendant's separate argument that counsel was ineffective for failing later to call her as a witness at the sentencing hearing.
The defendant next contends that defense counsel was ineffective because he did not investigate two potential alibi witnesses, Tina Pitts and Karen Hayes. In the affidavit the defendant submitted with his post-conviction petition, he states that he was with those two women during the period when other evidence showed that he was meeting with Keith Culbreath prior to the offenses. The defendant believes that Pitts and Hayes therefore could have provided helpful alibi testimony to counter a portion of the prosecution's case. The defendant has failed to submit affidavits from Pitts and Hayes themselves, however, and thus we are precluded from considering this issue further. See People v. Rial (1991), 214 Ill. App. 3d 420, 423-24, 158 Ill. Dec. 29, 573 N.E.2d 842.
The defendant also argues that trial counsel was ineffective for failing to present alibi testimony from Barbara Thompkins, the defendant's wife. In an affidavit submitted with the post-conviction petition, Barbara states that the defendant "must have been home after 9:00 in the evening of December 22, 1980," because that was the time when she would normally leave for work and the defendant drove her to work that night. In her affidavit, however, Barbara acknowledges that defense counsel spoke to her generally about testifying in this case. If Barbara related the possible alibi to defense counsel, then, as Strickland instructs, we should defer to counsel's decision not to present her testimony.
The defendant contends further that counsel was ineffective for failing to obtain and to introduce at trial telephone records, since destroyed, that could have established the occurrence of calls between the defendant and Sandra Douglas during the time after the offenses when she was living in Alabama. No evidence shows, however, that counsel failed to obtain the records in question. Counsel initially informed the prosecution that he might introduce telephone records at trial, but counsel later stated that he would not be doing so. It thus appears that counsel investigated the matter and decided against using the records. New evidence presented by the defendant in support of this contention is of no help. Affidavits submitted by the aunt and uncle with whom Sandra Douglas lived in Alabama from December 1980 to March 1981 show only that Sandra received a call from a male caller and that she made telephone calls to unspecified family members in Chicago. Finally, even if records had been available to show the occurrence of calls between Douglas and the defendant, we fail to see how that evidence would have assisted the defendant in meeting the charges involved here.
The defendant also submits that defense counsel was ineffective for failing to visit the crime scene. The defendant asserts that such a visit would have enabled counsel to impeach several points of Douglas' testimony, including her description of Holton's murder and of what she saw from a bedroom window. There is, however, nothing in the record that establishes whether or not counsel made a visit to the crime scene. In any event, we do not believe that the suggested impeachment would have been of any material benefit to the defense.
Finally, the defendant lists nine additional ways in which counsel was allegedly ineffective at trial. The defendant presents these points without the benefit of anyargument or analysis, however, and we decline to consider them here. (See People v. Dinger (1990), 136 Ill. 2d 248, 254, 144 Ill. Dec. 88, 554 N.E.2d 1376.) We note, however, that they are matters that could have been raised on direct appeal, and to that extent we must deem them waived.
In claim XV of the post-conviction petition, the defendant argues that he was denied the effective assistance of counsel at his capital sentencing hearing. Because the defendant raised, or could have raised, a number of these contentions on direct appeal, principles of res judicata and waiver preclude our consideration of these issues here, as we note elsewhere in this opinion. With respect to one contention raised by defendant, however, we believe that an evidentiary hearing is necessary.
At the capital sentencing hearing, defense counsel presented stipulations regarding certain forensic testimony about the possible origins of the bullets that killed the murder victims. The defendant's only witness at the sentencing hearing was his wife, Barbara Thompkins, who provided favorable testimony concerning the defendant's character and background. In addition, counsel introduced into evidence more than 50 letters in support of the defendant. In argument at the death penalty hearing, counsel contended that the defendant should not be sentenced to death because he had not been clearly identified as the gunman.
The defendant's primary argument here is that defense counsel failed to investigate and present other available mitigating evidence at the sentencing hearing. In his affidavit, the defendant alleges that counsel failed to discuss with him the mitigation phase of the sentencing hearing and failed to ask him about possible witnesses for that portion of the hearing. In support of this contention, the defendant has submitted, with his post-conviction petition, affidavits from a number ofpersons, including his parents, siblings, children, and friends. The affiants state that they were not contacted by defense counsel prior to the sentencing hearing and that they would have testified in the defendant's behalf if they had been asked to do so. An affidavit submitted by an attorney who represented the defendant on direct appeal relates that she spoke to trial counsel about this case and that he said that he was familiar with the trial Judge and had not expected the Judge to impose the death penalty.
The post-conviction Judge cited two separate grounds in rejecting this challenge to counsel's effectiveness. First, the Judge believed that consideration of this issue was barred by res judicata. Second, the Judge believed that the testimony now being offered by the defendant largely duplicated evidence introduced at the hearing by counsel in the 56 letters from acquaintances and friends. We do not agree.
The material being submitted by the defendant in support of the present contention was not part of the record in the original proceedings in this case. Rather, the affidavits represent new evidence. Accordingly, we do not believe that the present claim is one that could have been raised on direct appeal. Moreover, the affidavits do not duplicate the letters introduced by defense counsel at the sentencing hearing. As the trial Judge found, it appears that many of the letter writers were persons who were writing "in respect to the defendant's parents," and these persons do not appear to have known the defendant particularly well. In contrast, the persons who submitted affidavits in the post-conviction proceeding are the defendant's parents, siblings, children, and friends.
As a constitutional matter, a capital sentencing hearing requires an individualized assessment of the offense and the offender. ( Sumner v. Shuman (1987), 483 U.S. 66, 73-76, 97 L. Ed. 2d 56, 64-66, 107 S. Ct. 2716, 2721-23; Woodson v. North Carolina (1976), 428 U.S. 280, 303-05, 49 L. Ed. 2d 944, 960-61, 96 S. Ct. 2978, 2990-91 (plurality opinion); People v. Ruiz (1989), 132 Ill. 2d 1, 25, 138 Ill. Dec. 201, 547 N.E.2d 170.) Accordingly, the Judge or jury in a capital case may not refuse to consider, or be prevented from considering, relevant mitigating evidence offered by the defense. ( Hitchcock v. Dugger (1987), 481 U.S. 393, 398-99, 95 L. Ed. 2d 347, 353, 107 S. Ct. 1821, 1824; Eddings v. Oklahoma (1982), 455 U.S. 104, 110-12, 71 L. Ed. 2d 1, 8-9, 102 S. Ct. 869, 874-75; Ruiz, 132 Ill. 2d at 25.) The State contends that counsel's strategy at the sentencing hearing was to argue that the State's evidence depicting the defendant as the gunman was not so convincing that the death penalty was warranted in this case. But the mitigating evidence now being proposed by the defendant would have complemented counsel's strategy. Favorable testimony by the defendant's family members would have fortified counsel's contention that the evidence of the defendant's role in the offenses was subject to doubt and did not justify sentencing the defendant to death.
Out of all the letters submitted at the sentencing hearing, the one selected by the trial Judge as the most candid and revealing was one written by a person who had previously served time with the defendant. The author of that letter certainly provided a favorable and sincere portrayal of the defendant; we are not sure, however, that live testimony, whether from that individual or from others who knew the defendant equally well, if not better, would not have provided the sentencing Judge with a more complete portrayal of the defendant.
Given the paramount importance of evidence of this nature and the allegations raised in the defendant's post-conviction petition, we believe that it is appropriatehere to remand the matter to the circuit court for an evidentiary hearing on this aspect of the defendant's ineffectiveness claim. See People v. Ruiz (1989), 132 Ill. 2d 1, 24-28, 138 Ill. Dec. 201, 547 N.E.2d 170; People v. Caballero (1989), 126 Ill. 2d 248, 273-82, 128 Ill. Dec. 1, 533 N.E.2d 1089.
II. CLAIMS FOR WHICH THE DEFENDANT PRESENTS NEW EVIDENCE
We consider next other claims in support of which the defendant has submitted new evidence. The defendant argues, in claim I of his supplemental post-conviction petition, that the trial court erred in denying his motion to quash the search warrant issued in this case and to suppress the evidence seized in the search. The warrant was issued on March 16, 1981, three days after officers allegedly were contacted by an informant, Doris Ferguson. According to the complaint for the warrant, Ferguson told the investigating officer, Foley, that Pamela Thompkins had asked her for advice about removing bloodstains from the basement floor and that Pamela had gone on to relate the details of the offenses. In an affidavit, Ferguson now denies both that she ever spoke to the police about this case and that Pamela Thompkins ever spoke to her about it. Ferguson had made similar denials in a statement given in 1983 to the defendant's counsel on direct appeal and counsel's investigator, and a copy of the statement she made on that occasion is attached to the affidavit. The defendant maintains that the new evidence presented here establishes that the search warrant was invalid and should not have been issued. The defendant also contends that the period between the time of the offenses and the time Ferguson allegedly spoke with the police was too lengthy to support a finding of probable cause for issuance of the warrant. Doris Ferguson was Pamela Thompkins's mother-in-law; Pamela was married to Ferguson's son, now deceased. In addition, Ferguson has known the defendant since he was a child.
Officer Patrick Foley of the Cook County sheriff's police stated in his warrant affidavit that he received a telephone call during the evening of March 13, 1981, from a woman who said that she had information concerning the murders of Gerald Holton and Arthur Sheppard. The caller arrived at Foley's office, in Markham, a half hour later and identified herself as Doris Ferguson. Ferguson told Foley that on the day the victims' bodies were discovered, December 23, 1980, she had a conversation with Pamela Winfree -- Winfree was Pamela's maiden name. Pamela wanted to know how to remove bloodstains from the concrete floors of her garage and basement. In response to Ferguson's questions, Pamela then related to her the details of the offenses. Armed with this information, Foley ...