The Honorable Justice McMORROW delivered the opinion of the court:
The opinion of the court was delivered by: Mcmorrow
The Honorable Justice McMORROW delivered the opinion of the court:
In this appeal from the trial court's denial of the defendant's request for post-conviction relief the defendant presents four arguments for our disposition. Initially, defendant claims that the attorney who represented him at his death penalty sentencing hearing was incompetent because he failed to present certain mitigation evidence in defendant's behalf. Second, defendant contends that his sentencing attorney labored under a conflict of interest that caused him to render ineffective representation, because the attorney allegedly told another lawyer that defendant "deserved" the death penalty. Defendant further asserts that the State improperly used two peremptory challenges to exclude an Hispanic and a Filipino juror from service at defendant's sentencing hearing. Finally, the defendant argues that the death penalty is unconstitutional, in light of certain studies with respect to jurors' ability to understand and follow instructions regarding the death penalty. We affirm the trial court's denial of the defendant's request for post-conviction relief.
Following a jury trial in the circuit court of Will County, defendant was convicted of murder, armed violence and home invasion. These convictions were based on charges that in 1979, defendant entered the Joliet, Illinois, home of Antoinette Townsend and killed her son, Anthony. According to evidence presented at defendant's trial, after defendant had shot and killed Anthony, defendant abducted Antoinette and drove her, in her son's automobile, to Gary, Indiana. When Antoinette attempted to escape, defendant shot her twice. He then left her at the scene and fled, believing she was dead. Following a sentencing hearing, it was determined that defendant should receive the death penalty as punishment for his murder conviction. See People v. Holman (1984), 103 Ill. 2d 133, 82 Ill. Dec. 585, 469 N.E.2d 119 (hereinafter Holman I).
Upon review, this court upheld defendant's convictions. (Holman I, 103 Ill. 2d at 158.) However, the defendant's death sentence was reversed and the cause remanded for a new sentencing hearing, because this court determined that numerous inflammatory remarks made by the prosecution during closing argument deprived the defendant of a fair sentencing hearing. ( Holman I, 103 Ill. 2d at 161-78.) The United States Supreme Court denied certiorari. Holman v. Illinois (1985), 469 U.S. 1220, 84 L. Ed. 2d 347, 105 S. Ct. 1204.
Following a new sentencing hearing, the defendant was again sentenced to death. Upon direct review, defendant's death sentence was affirmed. ( People v. Holman (1989), 132 Ill. 2d 128, 138 Ill. Dec. 155, 547 N.E.2d 124 (hereinafter Holman II).) This court specifically rejected defendant's argument that his attorney at the resentencing hearing was ineffective. ( Holman II, 132 Ill. 2d at 156-67.) In addition, the court found no error in the trial court's determination that the prosecution's exercise of peremptory challenges at the resentencing hearing had not violated the directives of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. ( Holman II, 132 Ill. 2d at 169-77.) The United States Supreme Court denied certiorari. Holman v. Illinois (1990), 497 U.S. 1032, 111 L. Ed. 2d 804, 110 S. Ct. 3296.
Defendant then filed a petition for post-conviction relief. (725 ILCS 5/122-1 et seq. (West 1992).) The trial court denied the relief requested by defendant in his petition. Upon review, defendant presents only four of the arguments he raised in his post-conviction petition. These arguments are: (1) his counsel at the resentencing hearing was incompetent because he failed to present certain mitigation evidence in defendant's behalf; (2) his attorney at the resentencing hearing was ineffective because he allegedly told another attorney that defendant "deserved" the death penalty; (3) the State improperly used two peremptory challenges to exclude an Hispanic and a Filipino juror; and (4) the death penalty is unconstitutional, as shown in certain studies regarding a jury's ability to understand and follow instructions regarding the death penalty. We consider each of these arguments seriatim.
Defendant argues that his attorney at the resentencing hearing, Paul Bjekich, was incompetent because he failed to investigate additional mitigation evidence that should have been presented on defendant's behalf.
Before considering the merits of the defendant's claim, we address the State's argument that this issue is waived. Where a defendant's allegation of ineffective assistance of counsel relies upon matters that were not and could not be included in the record of defendant's direct appeal, and does not merely reiterate an argument raised on direct appeal, the defendant's claim is not waived for the purpose of post-conviction review. (See, e.g, People v. Erickson (1994), 161 Ill. 2d 82, 204 Ill. Dec. 231, 641 N.E.2d 455; People v. Owens (1989), 129 Ill. 2d 303, 135 Ill. Dec. 780, 544 N.E.2d 276.) Defendant's ineffective assistance argument relies upon mitigation evidence that was not part of the record in his direct appeal. Also, defendant's ineffective assistance claim does not restate arguments made in his direct appeal, inasmuch as the defendant's direct appeal challenged only those matters that appeared of record from his resentencing hearing. As a result, defendant's argument is properly raised in his post-conviction proceeding.
The trial court held an evidentiary hearing with respect to defendant's allegations that his counsel was ineffective for failing to investigate and present additional mitigation evidence. The record of the hearing reveals the following pertinent evidence.
Paul Bjekich testified at the court's hearing on defendant's post-conviction allegation of ineffective assistance of counsel. He testified that he had previous experience representing defendants in capital cases. With respect to the evidence he offered in defendant's behalf at the defendant's resentencing hearing, attorney Bjekich recalled that Fred Morelli testified in mitigation. Morelli had represented defendant in a case in another county. Morelli testified that defendant had been cooperative and truthful, that defendant was not "a leader type, and that he was a follower." Attorney Bjekich considered Morelli a mitigation witness.
Attorney Bjekich also recalled that one of defendant's sisters testified at the resentencing hearing, reciting defendant's family background and the family's contact with him since he had been in prison. The record also shows that at defendant's resentencing hearing, defendant testified in his own behalf and stated that he had not shot or killed Anthony Townsend. The record further indicates that attorney Bjekich called Eddie Sims, whose testimony he offered in order to corroborate the defendant's testimony regarding his physical and emotional condition on the day of the incident. Stipulated testimony was also presented in defendant's behalf to show that a prison counselor, if called to testify, would state that defendant attended religious services. Holman II, 132 Ill. 2d at 154.
With respect to his investigation of the case prior to the resentencing hearing, attorney Bjekich testified that defendant was not very cooperative in developing his defense when they first met. However, defendant later changed and became more cooperative. Attorney Bjekich related that he discussed with the defendant, at length, potential mitigation evidence or witnesses to call at the hearing. The attorney testified that he interviewed everyone whom defendant requested or suggested for personal background information. With respect to potential witnesses who did not testify at the resentencing hearing, attorney Bjekich stated that he spoke to these persons, but concluded that they should not be called because their testimony would not be helpful to the defendant's defense. He did not call one of the defendant's sisters because she was pregnant and it would have been too difficult for her to testify at the hearing. Instead, one of the defendant's other sisters testified at the resentencing hearing.
Attorney Bjekich stated that he never used the services of an investigator and never asked the court to appoint one to help him find mitigation evidence. He explained that "after interviewing [the defendant], getting a background on him through his words, talking to family members, there didn't seem to be any area that needed that type of investigation." Attorney Bjekich stated that defendant was going to take the stand and he was going to testify as to what happened that night and that this was "an important part of the evidence that was presented." He explained that the "theory * * * was that [defendant] hoped to convince at least one person that he didn't do the murder" and that someone else had actually killed Anthony Townsend.
Attorney Bjekich further explained that in this case, "it didn't look like it was a compelling argument to talk about defendant's upbringing as a three, four, five, or six year old." Attorney Bjekich found no mental deficiency in the defendant "whatsoever" when he talked to the defendant. Attorney Bjekich said that he had considered contacting a psychologist, psychiatrist, or social worker, but that there were no indications that this would produce useful evidence for the resentencing hearing. Attorney Bjekich also didn't believe that such evidence "goes over that well in Will County [where defendant was tried]" and that the evidence is "somewhat obscure."
Attorney Bjekich testified that, to the best of his knowledge, Capital Resources Center of the State Appellate Defender's Office did not have a mitigation specialist expert in 1985. Attorney Bjekich stated that he discussed defendant's case with an assistant Cook County public defender with whom he was acquainted. This attorney was employed on the "death squad" and attorney Bjekich "would talk to him to see what he felt were appropriate tactics."
Defendant submitted affidavits and reports to show that there was substantial mitigation evidence that attorney Bjekich would have discovered had he undertaken adequate investigation into the defendant's background. For example, Chandra J. Walker Smith, a mitigation specialist for the Capital Resource Center, stated that defendant's family history showed that he had been beaten and abused by his father, who was an alcoholic and a "very violent man." From the time that defendant was a small child, defendant's father attempted to teach defendant how to gamble, drink, and fight. Defendant's mother divorced his father and later remarried. The defendant's step-father also beat and mistreated the defendant. Defendant left home at the age of 13 and went to live with other family members and friends.
Smith recounted that she had interviewed defendant's sisters as well as certain friends of the defendant. Defendant's sisters stated that they had a good relationship with him, that he always tried to help and protect them, and that he was usually more concerned about the welfare of others than he was about his own. Other family members, and friends, echoed these sentiments. Their affidavits, in support of defendant's post-conviction petition, detailed their appreciation for defendant's actions in their behalf.
Smith also reviewed defendant's prison records. These records indicated that defendant had a history of numerous incarcerations. In an initial assessment when he was 16 years old, defendant was described as a "small, angry, rejected youth that displaced his anger at being rejected and abandoned upon the society in an antisocial manner." At the age of 16, defendant was found to be functioning at a 3.7 grade level. Based upon medical examinations, it was determined that there may be ...