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07/28/94 PEOPLE STATE ILLINOIS v. PAUL S. ERICKSON

July 28, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
PAUL S. ERICKSON, APPELLANT.



Freeman, McMORROW, Harrison

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

After waiving the jury that had convicted him, defendant was sentenced to death for raping Elizabeth Launer, murdering her, and concealing the homicide. This court affirmed the convictions and sentence on direct appeal. ( People v. Erickson (1987), 117 Ill. 2d 271, 111 Ill. Dec. 924, 513 N.E.2d 367). After the United States Supreme Court declined review ( Erickson v. Illinois (1988), 486 U.S. 1017, 100 L. Ed. 2d 216, 108 S. Ct. 1754), defendant pursued, unsuccessfully, post-conviction relief (Ill. Rev. Stat. 1989, ch. 38, par. 122-1) in the circuit court of Cook County. Defendant appeals the dismissal of his petition for that relief (134 Ill. 2d R. 651(a)), seeking, alternatively, remand for an evidentiary hearing on it or a new sentencing hearing.

We affirm.

As this court's earlier opinion summarizes the circumstances of the convictions and sentence, only the facts necessary to understand the issues raised are noted.

THE TESTIMONY OF JOHN WELICZKO

After learning of the charges against their son, defendant's parents sought out, for themselves, the professional counseling services of John Weliczko. (See Erickson, 117 Ill. 2d at 285.) Weliczko eventually extended his services to the defense, testifying as the sole witness on defendant's behalf during the sentencing phase of the trial.

It was intended that Weliczko would give his opinion as a mental health expert that a psychological condition explained defendant's criminal behavior. (See Ill. Rev. Stat. 1989, ch. 38, par. 9-1(c)(2); Erickson, 117 Ill. 2d at 285, 301.) Weliczko did testify as to what might have accounted for defendant's acts. But he did so as a lay person, the trial Judge having refused to qualify him as an expert. See Erickson, 117 Ill. 2d at 285, 301.

There was good reason for this. In relating his credentials, Weliczko had stated that he held a masters degree in psychology from Harvard University and a doctorate in the field from the University of Chicago. Weliczko, in fact, was not trained in psychology.

Cross-examined about his background, Weliczko admitted the Harvard masters degree was in theology. As for the doctorate, it was a ministry degree in pastoral counseling and psychology. Further, the degree-granting institution was not the University of Chicago but the Chicago Theological Seminary, an entity affiliated with the university.

Weliczko did manage to offer that he practiced psychotherapy, and, therefore, was, like a licensed psychologist, recognized to be a mental health care provider. He stated that, like a psychologist, a psychotherapist could evaluate a person and arrive at "somewhat the same Conclusions" about the person's mental health. For those reasons, it appears, the trial Judge considered Weliczko's opinion, albeit as a lay person, and accepted into evidence his written "psychological" evaluation of defendant. See Erickson, 117 Ill. 2d at 301.

Defendant now complains Weliczko's testimony denied him a fair death penalty hearing. He cites guarantees of the sixth, eighth, and fourteenth amendments of the United States Constitution (U.S. Const., amends. VI, VIII, XIV) as well as unspecified protections of the Illinois Constitution. Defendant also directs attention to decisions decrying the use of perjured testimony. See, e.g., People v. Cornille (1983), 95 Ill. 2d 497, 69 Ill. Dec. 945, 448 N.E.2d 857 (allowing post-conviction relief where the State's expert witness lied about his academic scholarship and achievements).

The misrepresentation of professional credentials would be a serious concern but for the fact that Weliczko was retained by, and testified for, the defense, notthe State. But the claim is even more fundamentally flawed: whatever effect Weliczko's testimony might have had was apparent when his credentials were challenged on cross-examination. The opportunity to take issue with Weliczko's testimony was therefore on direct appeal, not in a collateral attack in a post-conviction proceeding.

Failure to raise a claim which could have been addressed on direct appeal is a procedural default which results in a bar to consideration of the claim's merits in a post-conviction proceeding. ( People v. Albanese (1988), 125 Ill. 2d 100, 104-05, 125 Ill. Dec. 838, 531 N.E.2d 17.) Excused in limited circumstances (see People v. Flores (1992), 153 Ill. 2d 264, 274, 180 Ill. Dec. 1, 606 N.E.2d 1078), the result of a procedural default forces acknowledgment of a conviction's finality, an elemental concern in any such proceeding (see People v. Free (1988), 122 Ill. 2d 367, 378, 119 Ill. Dec. 325, 522 N.E.2d 1184).

Defendant attempts to skirt the procedural bar under an exception which looks to matters which were not a part of the record on direct appeal. He points to a copy of Weliczko's transcript from the Chicago Theological Seminary and an affidavit of an official at Gordon College in Wenham, Massachusetts, which shows Weliczko earned a degree in philosophy there.

Defendant concedes the State debunked Weliczko's assertion that he was a psychologist. But he insists a different injurious "perjury" is shown by the affidavit and documents: that is, Weliczko lied about actually holding a degree in the field of psychology.

The argument glosses over the reason why the procedural bar properly may be relaxed given matters outside the trial record. The bar normally reaches to all matters that could have been -- not merely were not -- earlier raised. Thus, the mere fact that support for a claim is contained in papers not in the trial record is largely immaterial. Reason to relax the bar occurs only when what is offered in the papers also explains whythe claim it supports could not have been raised on direct appeal.

For example, the default may not preclude an ineffective-assistance claim for what trial counsel allegedly ought to have done in presenting a defense. (See generally People v. Hall (1993), 157 Ill. 2d 324, 336-37, 193 Ill. Dec. 98, 626 N.E.2d 131; People v. Kokoraleis (March 31, 1993), No. 72862; People v. Owens (1989), 129 Ill. 2d 303, 308-09, 135 Ill. Dec. 780, 544 N.E.2d 276; see also Perry v. Fairman (7th Cir. 1983), 702 F.2d 119, 122 (collecting Illinois appellate cases).) An ineffective-assistance claim based on what the record on direct appeal discloses counsel did, in fact, do is, of course, subject to the usual procedural default rule. (See People v. Kokoraleis (March 31, 1994), No. 72862.) But a claim based on what ought to have been done may depend on proof of matters which could not have been included in the record precisely because of the allegedly deficient representation. But see People v. Jones (1985), 109 Ill. 2d 19, 23, 92 Ill. Dec. 552, 485 N.E.2d 363 (barring consideration of a claim of counsel's ineffectiveness for not presenting evidence which was included in the trial record).

There is nothing in the content of the affidavit and documents here offering more than what is evident from the record itself. The issue of prejudice resulting from Weliczko's testimony could have been raised on direct appeal based on the testimony elicited during the sentencing hearing. Weliczko had admitted that his academic background was in theology and ministry and that, in fact, he was not a psychologist. The admissions were fixed in the record as a result of the cross-examination. The affidavit and documents reveal no more than Weliczko's own testimony. Finding no reason to excuse the procedural default, defendant's claim must be dismissed.

ASSISTANCE OF COUNSEL AT THE SENTENCING PHASE

Defendant claims his counsel's representation wasso deficient at the sentencing phase of trial that the process failed. Although its basis is not identified, such a claim is rooted in protections of the sixth and fourteenth amendments of the United States Constitution. (See U.S. Const., amends. VI, XIV; Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) It should be noted that counsel who represented defendant at sentencing did not represent him on direct appeal or in the post-conviction proceeding.

Defendant asserts several grounds independently support his claim. Two relate directly to Weliczko's testimony. Defendant first points to the failure to verify Weliczko's credentials. He then argues that proffering Weliczko's testimony actually undermined the defense strategy.

Neither point may now be considered. Again, defendant's opportunity to raise those arguments was on direct appeal. Any inadequacy there may have been with counsel's representation with respect to Weliczko was evident when Weliczko was cross-examined. Defendant failed to take issue with that representation on direct appeal and so is procedurally barred from doing so here ( People v. Albanese, 125 Ill. 2d at 104-05) absent some exception. We find none.

Defendant next asserts counsel failed to independently investigate and present other mitigating evidence, including a competent psychological profile. Defendant argues that that evidence would show he had endured a childhood of psychological, emotional, and sexual abuse and that he had a history of alcohol and drug addiction. Defendant points to reports of two psychologists which recount that background in confirming it could explain defendant's acts. One adds the factor of head injury. Defendant also points to affidavits from two former teachers. They offer that defendant was awell-adjusted student and that news of his involvement in the crimes came as a shock.

The ever present duty of independent investigation in a criminal defense effort (see United States v. Decoster (D.C. Cir. 1979), 199 U.S. App. D.C. 359, 624 F.2d 196, 209-10) is to be Judged using a standard of reasonableness in light of all circumstances presented ( Strickland, 466 U.S. at 691, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066). Reasonableness is to be determined by considering the informed strategic choices of, as well as the information supplied by, the defendant. Strickland, 466 U.S. at 691, 80 L. Ed. 2d at 695-96, 104 S. Ct. at 2066.

Initially, then, it bears noting that Weliczko, who, it must be remembered, was retained by defendant's own parents, had already generated a "psychological" evaluation. Ignoring, as would be proper in separately analyzing this issue, that an ineffectiveness claim for not verifying Weliczko's training in psychology is barred, the evaluation's existence would seem reason enough to dismiss the claim that counsel was ineffective for not having obtained another. The State suggests just such a Disposition. But defendant's argument fails substantively as well.

Courts may resolve ineffectiveness claims against the two-part test of Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reaching only the prejudice component, for lack of prejudice renders irrelevant the issue of counsel's performance. ( People v. Albanese (1984), 104 Ill. 2d 504, 525-27, 85 Ill. Dec. 441, 473 N.E.2d 1246, adopting Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) That involves looking at the findings unaffected by error, accounting for the effect of error on remaining findings, and answering, in the end, whether the decision would "reasonably likely" have been different. ( Strickland, 466 U.S. at 695-96, 80 L. Ed. 2d at 698-99, 104 S. Ct. at 2068-69.) The assessment "must exclude the possibility ofarbitrariness, whimsy, caprice, 'nullification,' and the like" ( Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068)-an important observation given that, in this State, the sentencer could have elected to preclude the death penalty for any reason found to be sufficiently mitigating (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(h)). Just as importantly, the assessment may include "evidence about the actual process of decision" if that evidence is a part of the record of the proceedings being reviewed. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

The unaffected findings show that defendant, then 25 years old, enlisted the aid of two juveniles to methodically chart a plan to isolate, bind, and gag a 15-year-old girl for purposes of raping her, stabbing her to death, and, in the end, concealing the corpse. (See Erickson, 117 Ill. 2d at 279-83.) For those crimes, defendant was remorseless. He bragged about the stabbing immediately after the deed. He boasted of the crimes days after and even did so much later when detained in a county jail awaiting trial. Other aggravating evidence, including the commission of another rape at knife point and a third threatened one, attests to some pattern of sexual assault against women.

Any laxity of counsel notwithstanding, what is offered to bolster the ineffectiveness claim does not show the result would "reasonably likely" have been different, excluding the possibility of arbitrariness. Briefly, the psychologists' reports could, at best, only suggest what may have explained defendant's criminal behavior of July of 1982. The evaluations were produced years after the crimes and, apparently, without the aid of the trial record, which revealed, through witnesses' testimony, defendant's actual behavior. The affidavits of the teachers, one from fourth grade and one from high school, disclose that neither maintained close contactwith defendant after he left their respective classrooms. And, if anything, they show defendant to be polite, intelligent, and engaging, not a person troubled by a disturbed psyche which might account for his criminal behavior.

The record is also revealing as to the process of decision, underscoring the lack of prejudice which might have been occasioned by any deficiencies of counsel. The trial Judge, who defendant elected to impose sentence, actually took into account the notion that defendant may have suffered from a personality disorder. In addition, the trial Judge noted that a presentencing investigation report on defendant revealed a background free of what might be normally encountered given the nature of the crimes. It would appear, then, that the trial Judge on his own considered, and rejected, the gist of what defendant hoped the evidence might show.

Defendant raises two other issues, tangentially related to claims of ineffectiveness addressed above, insisting each supports the need for an evidentiary hearing on the petition.

Defendant claims the Judge who ruled on the post-conviction petition did so improperly by guessing at how the original trial Judge, who recused himself, would have ruled in light of the evidence defendant claims should have been presented.

Both defendant's post-conviction counsel and the State conceded that the Judge ruling on defendant's petition could do so after reviewing the trial transcript and other evidence in the record. The Judge stated that he did, indeed, review the entire record and that he, himself, not the trial Judge, found the petition to be without merit. The Judge did refer to the original trial Judge by name, stating he reviewed the materials supporting defendant's petition just as the sentencing Judge would have had the materials been presented inmitigation. A fair reading of those remarks, however, does not show that the Judge evaluated defendant's petition in any way other than as defense counsel and the State conceded would be the only way possible. No prejudice is found here.

Finally, defendant notes that his parents had executed a promissory note for the balance of fees for counsel's representation. Ultimately, counsel sued to collect on the note. Defendant now theorizes that the failure to obtain a competent psychological profile may have been due to a reluctance to incur additional costs. If so, defendant reasons, the conflict contributed to counsel's ineffectiveness.

The record answers any speculation as to why counsel did not seek out a psychological profile in addition to Weliczko's evaluation. The reasons are not as defendant suggests. Surprised by Weliczko's disclosure of his true background on cross-examination, counsel sought a continuance of the hearing to obtain an "acceptable" evaluation. (See Erickson, 117 Ill. 2d at 301.) That request, though denied (see Erickson, 117 Ill. 2d at 301-02), would be inconsistent with a reluctance to incur additional expense on defendant's behalf. Further, as earlier noted, an evaluation of defendant had already been generated. Without reason ...


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