assistance, even if the client is not consulted. Id.
Sammons argued in closing that the facts did not support the State's contention that the two people who entered Ray's apartment that night intended to commit armed robbery. He focused on Ray's testimony that Emerson had told him on the night of the murder that he would meet him at the saloon, and that Emerson supposedly permitted Ray to leave the tavern and get some cigarettes. Sammons then asked the jury to return a verdict of not guilty with regard to the armed robbery counts, saying "if this was a murder, it was a murder." He concluded his argument by saying that all he was asking the jury to do was find Emerson not guilty of armed robbery. Emerson contends that these remarks effectively undermined his plea of not guilty to the murder charge against him.
Given the problematic situation in which Sammons was placed by the actions of his client, and the remarkable evidence which was presented by Jackson, we conclude that Sammons conducted his closing argument according to the professional dictates of the Sixth Amendment. Counsel's original theory--that Ray had concocted the entire story--was seriously undermined by Jackson's testimony, since the vast majority of Ray's testimony was corroborated by Jackson. While Sammons could have argued that Jackson's testimony showed that Ray incorrectly identified Emerson, it would have required Sammons to credit portions of Ray's testimony at the same time he was discrediting others. Emerson maintains that Sammons could have stressed the lack of fingerprints connecting him to the crime, but this would not have been persuasive since much of the building had been destroyed by the fire. Instead, Sammons focused on the armed robbery charge in the hope of effecting Emerson's eligibility for the death penalty. As noted by the Illinois Supreme Court on direct appeal, this theory was not perfect, since the underlying felony need not have been be completed, proven or even charged by the government in order for a defendant to be found guilty of felony murder. See People v. Emerson, 122 Ill. 2d 411, 522 N.E.2d 1109, 1117, 119 Ill. Dec. 250 (Ill. 1987) (quoting People v. Walker, 91 Ill. 2d 502, 440 N.E.2d 83, 88, 64 Ill. Dec. 531 (Ill. 1982)). However, had Sammons been able to persuade the jury to acquit Emerson of armed robbery, he could have defeated the felony murder charge and a potential death sentence. See People v. Harris, 132 Ill. 2d 366, 547 N.E.2d 1241, 1252, 138 Ill. Dec. 620 (Ill. 1989), cert. denied, 496 U.S. 908 (1990). Sammons's comment on the evidence dealing with the murder charge was therefore rational, given that such evidence overwhelmingly pointed to Emerson as the attacker and Sammons was trying to save his client from the death penalty.
To be sure, Sammons's closing was not particularly persuasive, since he only chose to challenge the State's contention that Emerson went to the Lounge with the intent to commit armed robbery. However, due to the damning evidence given by Ray, the physical evidence supporting his version of the events, and Jackson's corroboration of most of it, Sammons did not have much room in which to maneuver. While not an optimal presentation, Sammons's closing was rational given the evidence presented at trial and Emerson's potential penalty, and therefore did not constitute deficient performance.
Additionally, Emerson has failed to demonstrate prejudice resulting from this closing argument. In order to succeed on his claim petitioner must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; see also Lockhart v. Fretwell, 122 L. Ed. 2d 180, 113 S. Ct. 838, 842 (1993) (proceeding must be fundamentally unfair or unreliable to amount to prejudice). In this case, any other closing that Sammons could have made would not have sheltered his client from the thoroughly damning evidence against him. Although petitioner claims that he was only implicated because of Ray's biased testimony, this testimony was corroborated by both physical evidence (e.g., Byrd's body was found in the airshaft, the door locking mechanism found just as Ray had described it, etc.) and Emerson's own witness.
Emerson also contends that because the evidence at the first trial was so close as to require reversal upon the finding of certain minor trial errors, the evidence at the second trial must also have been near equilibrium. Not so. At his first trial Emerson himself testified that he was not at the Lounge on the night in question, while in the second trial only his brother testified as to petitioner's absence. Given that Emerson did not take the stand in the second trial, and thus Ray's testimony was only challenged the dubious testimony Jackson gave (after the State had rested in its case against him), the evidence facing Emerson at his second trial was much stronger than at the first. In sum, we do not find that the evidence at the second trial was so close as to render Sammons's closing argument prejudicial.
5. Failure to Object to State's Closing
Petitioner claims that Sammons was also deficient in failing to object to the State's closing argument and its rebuttal. In general, the decision of whether to object to a prosecutor's closing argument is considered a matter of trial strategy. See United States v. Driver, 798 F.2d 248, 255 (7th Cir. 1986). Only where the evidence is obviously objectionable and thoroughly inculpating have courts based a finding of ineffectiveness on a failure to object. See, e.g., Bolander v. Iowa, 978 F.2d 1079, 1083 (8th Cir. 1992). In the instant case, closing argument by the state's attorney did not violate the ethical rule against offering a personal belief or opinion on testimony, see ABA Rules of Professional Conduct 3.4(e); ABA Standards for Criminal Justice 3-5.8(b), but rather, sought to point out the strengths and weaknesses in the credibility of the various witnesses. In the context of his entire argument, the prosecutor's contention that Jackson's testimony was a "bizarre sham," bordering on perjury, was nothing more than argument as to why the State's version should be believed. As the prosecutor did not interject personal opinion, there would have been no grounds for Sammons to object. Moreover, Emerson has failed to demonstrate any prejudice resulting from this alleged error. Accordingly, this claim is denied.
6. Miscellaneous Errors
Emerson also makes two additional arguments as to why Sammons provided deficient assistance. First, he claims that Sammons demonstrated antagonism towards his client when Ms. Jackson was called to the stand, as well as during his closing argument. While these two instances did indicate to the jury that friction existed between Emerson and his lawyer, they were not so serious as to implicate the Sixth Amendment. Indeed, Sammons's statement during closing argument was apparently intended to establish some credibility with the jury, and was therefore a rational matter of trial strategy.
Second, petitioner contends that the cumulative effect of all of Sammons's trial errors was to deprive him of effective assistance. While it is true that a collection of harmless errors, when considered in concert, may nonetheless amount to a violation of the Sixth Amendment, see Kubat v. Thieret, 867 F.2d 351, 357 (7th Cir.), cert. denied, 493 U.S. 874 (1989); United States v. Kladouris, 739 F. Supp. 1221, 1230 (N.D. Ill. 1990), we are not faced with such a scenario. Rather, counsel in the instant case had available the transcript from the first trial to assess possible theories and witnesses; no additional evidence was to be presented by the State; Emerson was not going to testify, thereby preventing the State from inquiring into the circumstances of his arrest; and Emerson's brother presented incredible testimony that had never been previously presented and contradicted his own defense. In evaluating Sammons's conduct in the context of these events, we cannot conclude that the combined effect of his performance was to deprive petitioner of his constitutional rights.
In sum, petitioner has failed to satisfy his heavy burden of demonstrating that Sammons provided him with ineffective assistance during the guilt-innocence phase of his trial. Accordingly, these habeas corpus claims are denied.
C. Ineffective Assistance at Sentencing
The Sixth Amendment also requires that defendants receive the assistance of counsel during sentencing. In order to prevail on a claim of ineffective assistance, "[a] defendant must demonstrate (1) that his representation at sentencing fell below an objective standard of reasonableness and (2) that a reasonable probability exists that, but for his attorney's unprofessional representation, the result of the proceeding would have been different." Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993), cert. denied, 127 L. Ed. 2d 573, 114 S. Ct. 1229 (1994); see Strickland, 466 U.S. at 687-88. In the context of a death penalty hearing, the second prong is satisfied if there was a reasonable probability that at least one juror would be sufficiently influenced by mitigation evidence to vote against the imposition of the death penalty. See Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir.), cert. denied, 493 U.S. 874 (1989). As with the application of Strickland to the guilt-innocence phase, we need not continue our analysis if petitioner fails to satisfy either prong. Ebbole, 8 F.3d at 533.
Emerson contends that Sammons failed to conduct any investigation or preparation into possible mitigation evidence, and failed to present any evidence at the sentencing phase, in contravention of his obligation to provide effective assistance of counsel. The Seventh Circuit has mandated that
defense counsel must make a significant effort, based on reasonable investigation and logical argument, to ably present the defendant's fate to the jury and to focus the attention of the jury on any mitigating factors. Mitigating factors brought out at trial might be emphasized, a coherent plea of mercy might be given, or new evidence in mitigation might be presented. But counsel may not treat the sentencing phase as nothing more than a mere postscript to trial.
Kubat, 867 F.2d at 369. In support of his lack of investigation argument, petitioner points to the absence of any notes or other preparatory materials in the Public Defender case file. He also introduces affidavits from his family members stating that they were not contacted by Sammons about presenting possible mitigation evidence, as well as his own affidavit indicating that Sammons failed to discuss with him any possible sources of mitigation. In his deposition Sammons either fails to remember conducting any specific investigation
or admits that he prepared nothing before the conclusion of the guilt-innocence phase of the trial.
Respondent essentially concedes the issue of deficient representation with regard to Sammons's preparation, focusing instead on any prejudice his performance may have caused. After a thorough review of the trial court transcript and Sammons's deposition, we conclude that Sammons's failure to conduct any meaningful investigation into potential mitigation evidence constituted deficient representation. While it is true that counsel had the benefit of a transcript of the first death penalty hearing, there was no evidence of mitigation presented in the first case so this testimony was of little value. Although Sammons claims that he reviewed Emerson's criminal record in order to ascertain what aggravating evidence would be introduced, this does not constitute sufficient preparation for a death penalty hearing. Because the scope of mitigation evidence which may be considered by the jury in sentencing is much broader than the range of relevant information which may be considered in determining guilt or innocence, see 720 ILCS 5/9-1(c), (e) (no limitation on possible mitigating factors and rules of evidence do not apply), counsel is under a greater obligation to discover and evaluate potential evidence of mitigation. Moreover, the death penalty phase "may be the stage of the proceedings where counsel can do his or her client the most good." Kubat, 867 F.2d at 369. Therefore, prior to the sentencing phase, an attorney representing a capital defendant must undertake a reasonable investigation--constituting more than simply reviewing the transcript of a prior hearing and the criminal record of the defendant--into potential aggravating and mitigating evidence. See Brewer v. Aiken, 935 F.2d 850, 857 (7th Cir. 1991); cf. Martinez-Macias v. Collins, 810 F. Supp. 782, 817-18 (W.D. Tex. 1991) (decision to forgo interviewing family members, without knowledge of what they would say, was neither tactical nor reasonable), aff'd, 979 F.2d 1067 (5th Cir. 1992); Gaines v. Thieret, 665 F. Supp. 1342, 1362-71 (N.D. Ill. 1987) (eight hours preparation between guilt-innocence phase and sentencing phase insufficient), aff'd in part, rev'd in part on other grounds, 846 F.2d 402 (7th Cir. 1988). Although we recognize the extreme time pressures placed upon public defenders, and the speed with which the instant case went to trial after Sammons was appointed, such concerns do not outweigh a capital defendant's right to have his attorney conduct the necessary preparation before sentencing. As the evidence shows that Sammons failed to perform such investigation, we find his performance deficient.
We next address Sammons's failure to present mitigation evidence to the jury during the aggravation-mitigation phase of sentencing. The State presented an opening statement wherein it characterized Emerson has a horrible and vicious individual who demonstrated no redeeming qualities whatsoever; Sammons did not make an opening statement. In presenting its case for imposition of the death penalty, the State introduced certified copies of Emerson's seven prior felony convictions, all involving theft or armed robbery. Sammons objected to some of these documents, but his protestations were overruled. The State also presented additional evidence concerning petitioner's prior armed robberies, including testimony from one of the victims, two police officers who had arrested him, and a prosecutor who obtained a conviction against him. During this testimony, Sammons asked only one immaterial question in cross-examination. At the close of the state's case Sammons declined to introduce any mitigating evidence, and submitted the case to the jury without argument. It is clear from the record that at this point in the proceedings, the jury had no option other than to impose the death penalty. No evidence in mitigation had been presented during the sentencing phase, and none of the testimony from the guilt-innocence phase could have supplied mitigating information about Emerson.
Respondent argues that Sammons's complete failure to present mitigating evidence was the result of Emerson's knowing decision to follow that route. The State points to numerous portions of the transcript wherein Emerson states that he does not want Sammons to act on his behalf. In particular, respondent quotes a colloquy between the trial judge and Emerson in which Emerson indicated that he did not want to present any evidence in mitigation. Trial Rec., Vol. III at 584-85. In general, a defendant cannot complain that his attorney was ineffective simply because the trial strategy chosen by the defendant led to an undesirable result. See United State v. Kamel, 965 F.2d 484, 497 (7th Cir. 1992). However, when counsel has failed to conduct a reasonable investigation into possibly mitigating evidence, he cannot possibly advise his client as to the propriety of a particular course of action. See Blanco v. Singletary, 943 F.2d 1477, 1501 (11th Cir. 1991) ("Counsel essentially acquiesced in [defendant's] defeatism without knowing what evidence [defendant] was foregoing. Counsel therefore could not have advised [defendant] fully as to the consequences of his choice not to put on any mitigation evidence."), cert. denied, 504 U.S. 943, 119 L. Ed. 2d 207, 112 S. Ct. 2282 (1992). In this case, there is no indication that Sammons alerted Emerson to the fact that unless he presented some mitigating evidence, a death sentence was certain. Moreover, Sammons was incapable of adequately advising Emerson as to value of potentially mitigating evidence, since he had conducted no investigation. Consequently, Emerson's decision to forego the presentation of evidence at the sentencing hearing cannot be viewed as simply a matter of trial strategy. Given that Emerson faced an almost certain sentence of death, counsel was remiss in not presenting some evidence of mitigation on his behalf, and his failure to do so constituted deficient performance.
In order to prevail on his petition, however, Emerson must also show that he was prejudiced by this failure to investigate and present mitigation evidence. In other words, Emerson must demonstrate a reasonable probability that the jury "would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Brewer, 935 F.2d at 858 (quoting Strickland, 466 U.S. at 695). Petitioner maintains that had Sammons conducted an investigation, he could have uncovered at least seven potential witnesses who would have provided mitigating evidence.
He claims that one or more of these witnesses, as well as the social worker that he has retained as an expert witness, could have testified as to the following information. At age eight Emerson was shot when he was an innocent bystander to a grocery store robbery, and was prevented from finishing out the school year because his injuries. After this incident Emerson claims that he began a period of extensive truancy, thereby inhibiting his educational development. Emerson was forced to live at several juvenile institutions over the next few years because of his truancy. He was evaluated as having an IQ of between 80-87, which his expert witness characterizes as between dull normal and borderline retarded. While at these institutions petitioner was repeatedly recommended for special services and counselling, but most often these services were not provided to him. Case workers dealing with Emerson concluded that he had no positive male role models in his life, had suffered from emotional neglect, and had not developed the skills necessary for him to live independently. Several of these witnesses could have testified that petitioner was a kind-hearted individual, who tried to take care of his family. Emerson at one point in his life fathered a baby girl, whom he cared for in part until her death at age seven months. Petitioner claims that he was emotionally devastated by her death.
Respondent challenges the relevance and strength of much of this evidence. First, it argues that many of the witnesses were family members whose testimony would be of little value because of bias. While we agree that bias would exist, this does not mean that such testimony can never be relevant or useful in determining a defendant's sentence. See Blanco, 943 F.2d at 1505 (prejudice resulted from not presenting mitigation evidence from relatives). Second, the state contends that petitioner's history of truancy indicates not an inability to perform well at school, but a conscious desire to avoid it. However, this theory neglects to account for the contention that Emerson's troubles with school began when he was shot during a robbery, suggesting that his problem with school may be more complicated than simply rebelliousness. Third, respondent argues that petitioner's IQ is not relevant because it is not sufficiently low enough to characterize him as mentally retarded. While this classification of petitioner is correct, the Illinois death penalty statute does not require a defendant to be mentally retarded in order for him to present evidence of his IQ in mitigation. Rather, a jury could rationally consider evidence of the diminished mental capacity of a defendant who is not mentally retarded when determining the appropriate sentence. Cf. Brewer, 935 F.2d at 857-59. Finally, respondent maintains that allowing petitioner's expert witness to testify as to her evaluation of Emerson's experiences would also open the door to a detailed chronicle of petitioner's extensive criminal and behavioral problems. Notwithstanding the accuracy of this statement, we do not believe that it defeat's petitioner's claim. Considering that the evaluation outlined Emerson's problematic childhood and development in great detail, and provided a rational explanation as to how these problems facilitated his development into a criminal, a juror might well have given greater weight to these factors than to his criminal history.
Taking all of this evidence together, we are left with the conviction that a reasonable probability exists that at least one juror would have found such mitigation evidence sufficient to preclude the imposition of the death penalty. Being a victim of a violent attack at age eight, lacking emotional and educational support from his parents, losing a young child, and having a diminished IQ are all significant pieces of mitigation evidence which could have altered the jury's decision as to Emerson's culpability. See Brewer, 935 F.2d at 857-59 (habeas petitioner with diminished IQ, troubled childhood, deprived background and other psychiatric problems prejudiced by failure to present such evidence in mitigation). Testimony as to the care Emerson gave to his family and daughter could have humanized him before the jury and potentially persuaded at least one of them that Emerson was not the vicious killer portrayed by the State. See Marinez-Macias, 810 F. Supp. at 816-17 (prejudicial not to present evidence that habeas petitioner was good father and family man). Sammons's failure to present a closing argument compounded these errors, as the jury was left with the impression that no one--not even his lawyer--thought his life was worth saving. In sum, a reasonable probability exists that the information could have persuaded at least one juror not to impose the death penalty. Because none of this mitigating evidence was presented at the first hearing, our confidence in the fairness and reliability of the original sentencing has been seriously undermined. See Lockhart, 113 S. Ct. at 842. Accordingly, we grant petitioner's motion for habeas corpus and order that he be resentenced.
D. Constitutionality of Illinois Death Penalty Statute
Petitioner also argues that he was sentenced under an unconstitutional sentencing scheme. First, he contends that the unbridled discretion of prosecutors in seeking the death penalty leads to its "arbitrary, capricious, and freakish imposition." Second, he asserts that because the State need not declare its request to seek the death penalty until after the guilt-innocence phase of the trial, the scheme violates defendants' rights to due process of law. Third, petitioner contends that this lack of pretrial notice also hampers the preparation of a meaningful strategy by a lawyer, thereby violating the right to effective assistance of counsel. In addition to the fact that at least some of these arguments may have been waived in the state courts, all three of them have been repeatedly rejected by the Seventh Circuit. See, e.g., Williams v. Chrans, 945 F.2d 926, 938-39 (7th Cir. 1991), cert. denied, 120 L. Ed. 2d 877, 112 S. Ct. 3002 (1992); Silagy v. Peters, 905 F.2d 986, 990-97 (7th Cir. 1990), cert. denied, 498 U.S. 1110, 112 L. Ed. 2d 1106, 111 S. Ct. 1024 (1991). Moreover, the Supreme Court has upheld similar death penalty statutes in the past. See, e.g., Gregg v. Georgia, 428 U.S. 153, 199, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). In the interest of limiting the length of this opus, we deny Emerson's claims for the reasons stated in those opinions.
For the reasons set forth above, Emerson's petition for habeas corpus is granted with regard to his sentence of death and denied in all other respects. The state is ordered to resentence petitioner pursuant to the dictates of the Sixth Amendment within 120 days of the date of this order. It is so ordered.
MARVIN E. ASPEN
United States District Judge
Dated March 30, 1995
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED
that Emerso's petition for habeas corpus is granted with respect to this sentence of death and denied in all other respects. The state is ordered to resentence petitioner pursuant to the dictates of the Sixth Amendment within 120 days of the date of this order.
March 30, 1995