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02/17/95 PEOPLE STATE ILLINOIS v. WALTER L. THOMAS

February 17, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
WALTER L. THOMAS, APPELLANT.



The Honorable Justice Nickels delivered the opinion of the court:

The opinion of the court was delivered by: Nickels

The Honorable Justice NICKELS delivered the opinion of the court:

Defendant was convicted by a Du Page County jury of murder, burglary, arson, and aggravated arson. That same jury found defendant eligible for the death penalty and sentenced him to death. This court affirmed defendant's convictions and sentences on direct appeal ( People v. Thomas (1991), 137 Ill. 2d 500, 148 Ill. Dec. 751, 561 N.E.2d 57) and the United States Supreme Court declined review ( Thomas v. Illinois (1991), 498 U.S. 1127, 112 L. Ed. 2d 1196, 111 S. Ct. 1092). Defendant, with the assistance of counsel, then sought post-conviction relief in the circuit court of Du Page County. (Ill. Rev. Stat. 1991, ch. 38, par. 122-1) The trial court dismissed defendant's post-conviction claims on the State's motion and defendant appeals directly to this court. (134 Ill. 2d R. 651(a).) Defendant requests this court to remand this cause for an evidentiary hearing. We affirm.

FACTS

The victim, Sophie Darlene Dudek, was found in her garage by the Aurora police department during their investigation of a fire in the garage. The victim had been stabbed in the neck and back and had been set on fire.

Defendant's employer, Donnie Moore, informed the police that defendant was the leader of a cleaning crew that had cleaned Dudek's building on the day of the murder. Moore also told the police that defendant, a black man, was wearing a gray hooded sweat shirt on that day. A witness had seen a black man wearing a gray hooded sweat shirt walking in front of Dudek's garage several minutes before he saw smoke coming from the garage.

Police interrogated defendant about the murder and defendant twice orally confessed and signed a written confession. According to these confessions, defendant was in Dudek's garage to steal a bottle of perfume that Dudek kept in her garage. However, the bottle fell to the ground and Dudek entered the garage. As defendant attempted to flee, Dudek grabbed him from behind. Defendant removed a knife from his pocket and stabbed Dudek repeatedly. Defendant then poured perfume throughout the garage and on Dudek's body and set it on fire to conceal the murder.

POST-CONVICTION PETITION

After defendant's convictions and sentences were affirmed, defendant filed an amended petition for post-conviction relief in the circuit court of Du Page County on July 21, 1992. Attached to the petition were, inter alia, the deposition of defense trial counsel, defendant's grade school and juvenile criminal records that contained psychological reports, recent psychological evaluations, and affidavits from friends and relatives.

The State moved to dismiss defendant's petition and a hearing was held. The trial court dismissed the petition without a full evidentiary hearing and defendant appealed directly to this court.

ISSUES

Defendant raises eight issues on appeal and argues that the trial court erred in failing to grant an evidentiary hearing on the following issues: (1) trial counsel's effectiveness at the guilt-innocence phase of trial, (2) trial counsel's effectiveness at sentencing, (3) the constitutionality of Illinois' death penalty statute and defense counsel's errors at sentencing, (4) the prosecution's racial remarks during sentencing, (5) denial of defendant's right to confront witnesses against him, (6) defense counsel's per se ineffectiveness due to her lack of experience in capital cases, (7) the misreading of jury verdict forms, and (8) the denial of a fair sentencing hearing.

ANALYSIS

Before we address the issues presented for review, we note the following concerning review of a dismissal of a post-conviction petition. The defendant has the burden at a post-conviction hearing to establish a substantial deprivation of his rights under the United States Constitution or the Constitution of Illinois. ( People v. Griffin (1985), 109 Ill. 2d 293, 303.) The trial court's determination on this matter will not be disturbed unless manifestly erroneous. ( Griffin, 109 Ill. 2d at 303.) A defendant is not entitled to an evidentiary hearing as a matter of right. (Ill. Rev. Stat. 1991, ch. 38, par. 122-6; People v. James (1986), 111 Ill. 2d 283, 291, 95 Ill. Dec. 486, 489 N.E.2d 1350.) Instead, an evidentiary hearing should be conducted where a substantial showing of a violation of constitutional rights has been made, supported by the record or affidavits. ( People v. Gaines (1984), 105 Ill. 2d 79, 91-92, 85 Ill. Dec. 269, 473 N.E.2d 868.) We further note that issues already decided by a reviewing court are res judicata as to those issues, and any issue that could have been presented on direct appeal, but was not, is waived. People v. Silagy (1987), 116 Ill. 2d 357, 365, 107 Ill. Dec. 677, 507 N.E.2d 830.

I

Counsel's Effectiveness at Trial

Defendant's first allegation concerns the effectiveness of trial defense counsel during the guilt/innocence phase of his trial. Defendant argues that counsel was ineffective in failing to (1) recognize the racial aspects of the case, (2) object to the State's characterization of stains on defendant's clothing as blood, (3) impeach a State witness with proof of the witness' previous arrests, and (4) request a mistrial after a witness testified that defendant confessed to his mother. None of these contentions have merit.

1. Racial Aspects

Defendant first contends that trial defense counsel was ineffective in failing to recognize the racial aspects of his case. Defendant, a black man, was convicted of killing a white woman by an all-white jury. Defense counsel stated in her deposition that she was not concerned with the racial aspect of defendant's case because she did not consider the case to have any racial overtones. Defense counsel did not believe that racial implications are present in any case when a black man is accused of killing a white woman, absent additional facts. However, at trial, defense counsel did question 8 of the 12 jurors about their views on race. Defendant argues that defense counsel's failure to recognize the racial aspect of his case as a fundamental issue with the case caused the entire defense strategy to be flawed at the guilt-innocence phase of trial. Defendant further argues that defense counsel was ineffective in failing to attempt to prevent the lack of minorities in the venire and for failing to formulate a strategy to attempt to minimize potential racial bias against him.

The standard for ineffective-assistance-of-counsel claims is well known. In order for defendant to succeed on such claim, he must show (1) that his counsel's performance fell below an objective standard of competence and (2) that but for counsel's unprofessional errors, the result would have been different. ( Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Hall (1993), 157 Ill. 2d 324, 337, 193 Ill. Dec. 98, 626 N.E.2d 131.) At issue in a post-conviction proceeding dismissed without an evidentiary hearing is whether defendant has made a substantial showing that his sixth amendment right to effective assistance of counsel has been violated. On this issue, the trial court found: "The defense was not oblivious to the racial issue if it could be developed. It was not, however, present in the case."

Defendant, however, relies on United States Supreme Court decisions that recognize that racial implications may be present when a violent crime is committed by a member of one race against a member of another. (See Rosales-Lopez v. United States (1981), 451 U.S. 182, 68 L. Ed. 2d 22, 101 S. Ct. 1629; Ham v. South Carolina (1973), 409 U.S. 524, 35 L. Ed. 2d 46, 93 S. Ct. 848.) Defendant also notes that defense counsel failed to question four of the jurors about their attitudes toward race.

Before we address this argument, however, we address the State's claim that defendant has waived this issue for review because he failed to raise it on direct appeal. ( People v. Stewart (1988), 123 Ill. 2d 368, 372, 123 Ill. Dec. 927, 528 N.E.2d 631.) The State also notes that defendant's trial and appellate counsel were not the same counsel. See People v. Ford (1981), 99 Ill. App. 3d 973, 976, 55 Ill. Dec. 365, 426 N.E.2d 340.

Concerning waiver, this court has recently stated:

"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. [Citation.] * * *

For example, the default may not preclude an ineffective-assistance claim for what trial counsel allegedly ought to have done in presenting a defense. [Citations.] 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. 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." People v. Erickson (1994), 161 Ill. 2d 82, 87-88, 204 Ill. Dec. 231, 641 N.E.2d 455.

Defendant has not waived this issue for review. Defendant argues that trial defense counsel failed to recognize the racial implications of his case. Trial counsel admitted in her deposition that she did not believe racial implications are present in a case simply because a black man is accused of killing a white woman. The context of this admission explains why the claim it supports could not have been raised on direct appeal. The admission, taken from trial counsel's deposition, could not have been obtained or included in the trial record for defendant's direct appeal. Thus, defendant could not have raised this claim on direct appeal.

Nevertheless, we find defendant's argument to be without merit. Defendant has not made a substantial showing that trial counsel's alleged errors resulted in such prejudice as to affect the result of the guilt-innocence phase of trial. While the trial court dismissed this claim on other grounds, a reviewing court may affirm a trial court's decision on any grounds in the record. (See Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387; People v. Thomas (1958), 15 Ill. 2d 344, 348, 155 N.E.2d 16.) Moreover, courts may decide an ineffectiveness claim on only the prejudice component of the Strickland test without reaching the question of counsel's competence. People v. Erickson (1994), 161 Ill. 2d 82, 90, 204 Ill. Dec. 231, 641 N.E.2d 455.

The evidence of defendant's guilt was overwhelming. Defendant was placed at the crime scene and admitted to several persons that he had previously been in the victim's garage to take items stored there. Defendant had a substance on his vest that an expert opined was type B blood, the same as the victim's and different from defendant's. Defendant also gave two oral confessions and a written confession, and confessed and apologized to his mother in the presence of a witness. Defendant has not made any showing that the outcome of the guilt-innocence phase of his trial would have been different had counsel developed a strategy to combat any racial aspects of this case.

2. Blood Stains

Defendant next argues that trial defense counsel was ineffective for failing (1) to object to the State's characterization of stains on defendant's clothing as blood and (2) to obtain a forensic expert to examine the stains. As the State notes, however, this issue is barred by the doctrines of res judicata and waiver. This court found the State's characterization of the stains as blood proper in defendant's direct appeal. ( Thomas, 137 Ill. 2d at 527.) While defendant did not raise the characterization-of-stains argument in the form of ineffective assistance of counsel in his direct appeal, principles of res judicata still apply:

"We recognize, as does apparently the State, the ease with which a petitioner may evade the operation of waiver and res judicata by couching his claims in the context of ineffective assistance. In that regard, we reiterate the rule that a petitioner cannot obtain relief under the Post-Conviction Hearing Act by simply 'rephrasing previously addressed issues in constitutional terms' in his petition. ( People v. Gaines (1984), 105 Ill. 2d 79, 90, 85 Ill. Dec. 269, 473 N.E.2d 868; Silagy, 116 Ill. 2d at 371.) Such claims will be properly defeated by operation of waiver and res judicata." ( People v. Flores (1992), 153 Ill. 2d 264, 277-78, 180 Ill. Dec. 1, 606 N.E.2d 1078.)

Defendant cannot now argue that trial counsel was ineffective in failing to object to what this court has previously found to have been a proper characterization of evidence. We further note that defendant could have argued this claim as an ineffective-assistance-of-counsel claim in his direct appeal, but did not. As noted, defendant was represented by different counsel on appeal. Thus, this claim is also waived.

We further note that because the State's expert at trial opined that the stains were blood, though she could not be certain, defense counsel had no reason to object to the State's characterization of the evidence. Moreover, according to trial counsel's deposition, defendant informed her that the stains were indeed blood.

Defendant's argument concerning counsel's failure to hire an independant forensic expert to determine whether the stains were blood has been waived. This argument could have been raised in defendant's direct appeal but was not. Moreover, defendant informed her that the stains were blood. Thus, ...


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