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June 22, 1995


The Honorable Justice Heiple delivered the opinion of the court: Justice McMORROW, dissenting:

The opinion of the court was delivered by: Heiple

JUSTICE HEIPLE delivered the opinion of the court:

The defendant, William Franklin, was convicted by a jury in the circuit court of Cook County for the murder of Elgin Evans, Jr. The same jury found defendant eligible for the death penalty on the basis of having previously been convicted of a murder in addition to the murder of Evans. (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(3).) After hearing evidence in aggravation and mitigation, the jury determined that there were no mitigating circumstances sufficient to preclude imposition of the death penalty.

Defendant's conviction and death sentence were affirmed by this court on direct appeal in People v. Franklin (1990), 135 Ill. 2d 78, 142 Ill. Dec. 152, 552 N.E.2d 743. The United States Supreme Court subsequently denied certiorari. ( Franklin v. Illinois (1990), 498 U.S. 881, 112 L. Ed. 2d 182, 111 S. Ct. 228.) On February 28, 1991, the defendant filed a petition for post-conviction relief. The defendant then filed an amended petition and a supplemental petition to the amended petition. The State filed motions to dismiss all of the defendant's petitions. After holding an evidentiary hearing on the defendant's claim that prosecutorial misconduct occurred when the prosecutor entered the jury room, the circuit court of Cook County found that a prosecutor did not enter the jury room and the court subsequently denied all of defendant's post-conviction claims for relief. This court has jurisdiction over the instant appeal pursuant to Supreme Court Rule 651(a). 134 Ill. 2d R. 651(a).

The facts of this case are adequately set forth in the opinion on the defendant's direct appeal ( People v. Franklin (1990), 135 Ill. 2d 78, 142 Ill. Dec. 152, 552 N.E.2d 743) and will be repeated here only as necessary. The body of Elgin Evans, Jr., was found on February 6, 1980. He had been shot once in the right side of his head and once in the left side of his chest. At trial Ulric "Buddy" Williams testified that he was at the home of Marion Holmes when defendant drove up. Defendant told Williams that Evans was in the car, and then defendant went inside to speak with Holmes. After coming back outside, defendant and Holmes told Williams that they were going to take a ride in the car and that Williams was to drive. Holmes told Williams where to drive. When they reached the desired location, Holmes, Evans and defendant got out of the car and went to the trunk supposedly to dispose of stolen auto parts. Williams was told to stay in the car. Williams stated that in the rearview mirror, he saw defendant pull a gun from his jacket pocket and shoot Evans in the head. He then saw defendant bend over Evans and he heard another gun shot. In exchange for his truthful testimony in the instant case and in the trial of Marion Holmes, Williams stated, he agreed to plead guilty to a separate armed robbery charge, to receive a sentence ofsix years for this armed robbery, and to be relocated with his family after his release from prison.


A proceeding brought under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122-1 et seq.) is not a direct appeal, but a collateral attack on a judgment of conviction. The proceeding is limited to constitutional issues which have not been, and could not have been, presented on direct review. ( People v. Winsett (1992), 153 Ill. 2d 335, 346, 180 Ill. Dec. 109, 606 N.E.2d 1186.) A defendant bears the burden of establishing a substantial denial of his rights under the United States Constitution or the Illinois Constitution. ( People v. Odle (1992), 151 Ill. 2d 168, 172.) A defendant is not entitled to an evidentiary hearing on his petition unless the allegations in the petition are supported by the trial record and by accompanying affidavits and show a substantial violation of constitutional rights. Determinations made by a reviewing court on the prior direct appeal are res judicata as to issues actually decided; issues that could have been presented on direct review, but which were not, are deemed waived for purposes of post-conviction review. On review, the trial court's determinations will not be disturbed unless manifestly erroneous. People v. Silagy (1987), 116 Ill. 2d 357, 365, 107 Ill. Dec. 677, 507 N.E.2d 830.

On appeal, the defendant argues that the circuit court erred in dismissing his post-conviction petition without granting a full evidentiary hearing or relief. Specifically, defendant contends that (1) he was denied a fair trial, as the prosecution misled the jury by failing to disclose that Buddy Williams testified against him with an expectation of leniency and that Williams was an accomplice to the murder; (2) defense counsel was ineffective as he was under criminal investigation at the time of trial; (3) his Federal due process rights were violated and defense counsel was ineffective sincedefense counsel failed to request an instruction that the alternative sentence to death was natural life in prison without parole; (4) defense counsel was ineffective for failing to investigate, prepare and present mitigation evidence at sentencing; (5) the post-conviction court erred in finding his past Federal prison records irrelevant to the post-conviction proceedings; (6) counsel was ineffective for failing to make a plea for mercy at sentencing; (7) the jury instructions used at sentencing were unconstitutional; and (8) a prosecutor improperly entered the jury room during deliberations, causing him substantial prejudice. We find that the trial court's denial of the defendant's post-conviction petition, after conducting an evidentiary hearing on only the claim that the prosecutor entered the jury room, is amply supported by the record and by Illinois law. Accordingly, we affirm.


Defendant claims that he was denied a fair trial, because the State misled the jury about Buddy Williams' true involvement in the crime by stating that Williams was an innocent bystander rather than an accomplice and because the State failed to tell the jury that Williams was testifying under a hope of leniency in not being prosecuted for the murder. Defendant contends that the post-conviction circuit court was governed by the case of People v. Holmes (1992), 238 Ill. App. 3d 480, 179 Ill. Dec. 607, 606 N.E.2d 439. Holmes, a codefendant in the instant case, was found guilty of Evans' murder by a jury on a theory of accountability and sentenced to 40 years in prison. On appeal, the appellate court reversed Holmes' conviction. The appellate court found that Williams was an accomplice to the murder. Since the State knew that Williams was not an innocent bystander to the murder, the court ruled that the State misled the jury by not informing the jury of Williams' true involvement. Thus, Holmeswas entitled to a new trial. The appellate court also found that Williams was operating under an expectation of leniency of not being charged with Evans' murder at the time of Holmes' trial. Thus, the State was required to disclose to the jury that Williams had hopes and expectations of leniency in not being charged with the murder. Holmes, 238 Ill. App. 3d at 489-91.

Defendant also supports his claim with the statement which Williams gave to Will County authorities. Defendant contends that the statement provided the State with knowledge of Williams' true involvement in the crime. In the statement, Williams discusses how he, Holmes, and Franklin had looked for Evans several days before the murder because Evans had supposedly robbed the lounge of an associate of Holmes. The man who owned the lounge paid to have Evans killed and Holmes had killed other people for this man. Williams stated that he knew Holmes was "supposed to whoop his [Evans'] ass or break his nose or something." Defendant contends that since the State knew from this statement that Williams was not an innocent bystander, the State had a duty to tell the jury that Williams was an accomplice.

Although not phrasing his argument in the exact terms, defendant attempts to apply the Holmes decision to his post-conviction proceedings through the doctrine of collateral estoppel. The doctrine of collateral estoppel applies "'when a party or someone in privity with a party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit by a court of competent jurisdiction.'" (Emphasis in original.) ( People v. Moore (1990), 138 Ill. 2d 162, 166, 149 Ill. Dec. 278, 561 N.E.2d 648, quoting Housing Authority v. Young Men's Christian Association (1984), 101 Ill. 2d 246, 252.) Thethreshold requirements for collateral estoppel are that (1) the issue decided in the prior adjudication is identical with the one presented in the suit in question; (2) there was a final judgment on the merits in the prior adjudication; and (3) the party against whom estoppel is asserted was a party or in privity with a party to the adjudication. ( In re Owens (1988), 125 Ill. 2d 390, 399-400, 126 Ill. Dec. 563, 532 N.E.2d 248.) Absent from this list of requirements is the mutuality requirement. Under the mutuality doctrine, neither party could use a prior finding as an estoppel against their opponent unless both parties were bound by the prior judgment. ( Owens, 125 Ill. 2d at 398.) This court removed the mutuality requirement from the doctrine of collateral estoppel in the civil case of Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 7, 34 Ill. Dec. 334, 398 N.E.2d 9. See Owens, 125 Ill. 2d at 398.

Our own criminal cases and those of our appellate court involving collateral estoppel have not mentioned the mutuality requirement. However, in these estoppel cases the party asserting the doctrine was, in fact, a party to the prior proceeding. That is not the scenario we are confronted with in the instant case. We are presented with a unique set of circumstances in which one defendant attempts to use the reversal of another defendant's conviction to his own benefit. This court has cautioned against the unlimited use of offensive collateral estoppel in civil cases, as there is no longer the requirement of mutuality of parties. Owens, 125 Ill. 2d at 398-99 (giving circuit courts in civil cases the discretion to ensure that the use of offensive collateral estoppel is not fundamentally unfair to a party).

A review of the law of neighboring jurisdictions has not revealed any cases with the same scenario with which we are presented. Many courts, however, have been confronted with the question of whether a defendant can use the acquittal of a codefendant in his ownfavor. Most of these courts have held that a defendant cannot use the acquittal to his own benefit and have required that the defendant seeking to assert collateral estoppel actually have been a party to the prior litigation. (See, e.g., Standefer v. United States (1980), 447 U.S. 10, 64 L. Ed. 2d 689, 100 S. Ct. 1999; State v. Jimenez (1981), 130 Ariz. 138, 634 P.2d 950; People v. Allee (Colo. 1987), 740 P.2d 1; Kott v. State (Alaska 1984), 678 P.2d 386; Potts v. State (Fla. 1982), 430 So. 2d 900; Commonwealth v. Cerveny (1982), 387 Mass. 280, 439 N.E.2d 754; but see People v. Taylor (1974), 12 Cal. 3d 686, 527 P.2d 622, 117 Cal. Rptr. 70 (lack of identity of parties does not preclude application of doctrine of collateral estoppel when defendant's guilt is predicated on his vicarious liability for the acts of previously acquitted codefendants); State v. Gonzalez (1977), 75 N.J. 181, 380 A.2d 1128 (facts of case required that defendant be afforded benefit of earlier suppression hearing ruling that evidence was inadmissible against codefendant).) The majority of courts have provided numerous justifications for imposing a mutuality requirement, including that the State often lacks the full and fair opportunity to litigate an issue that is accorded a party in a civil case, because of the statutory and constitutional privileges granted a criminal defendant. See Standefer, 447 U.S. at 21-25, 64 L. Ed. 2d at 698-701, 100 S. Ct. at 2006-08; Allee, 740 P.2d at 7.

We adopt the reasoning of these courts which mandate a mutuality requirement and also apply this reasoning to the instant set of facts. We note that in the civil case of Illinois State Chamber of Commerce, this court did not discuss or analyze the necessity of a mutuality requirement in criminal cases. The requirement of mutuality should be retained in criminal cases, because the State often lacks the full and fair opportunity to litigate an issue. For instance, the prosecution's discovery rights in a criminal are limited by rules of the court and by constitutional privileges. Evidentiary rules often prevent the State from presenting all of its evidence against one defendant; evidence which is admissible against one defendant may not be admissible against another defendant. The suppression or limited use of evidence may result in the acquittal or reversal of conviction of one defendant. In addition, the evidence presented at separate trials and the manner in which that evidence is presented may be significantly different and will rarely, if ever, be identical. The State may also not present its case as effectively or persuasively in one trial or appeal as it does in another. (See Standefer, 447 U.S. at 21-25, 64 L. Ed. 2d at 2006-08, 100 S. Ct. at 698-701; Allee, 740 P.2d at 7.) The acquittal of a codefendant or the reversal of a codefendant's conviction does not establish a status of innocence and should not be given conclusive effect against the State in favor of a stranger to that trial. In addition, criminal cases involve an important consideration wholly absent from civil cases -- the interest in the enforcement of the criminal law. (See Allee, 740 P.2d 1.) The public has a strong interest in the accuracy of the results of every criminal prosecution and criminal appeal and this public interest outweighs any need for the appearance of consistent verdicts. Thus, the fundamental differences between the separate trials and appeals of two codefendants support the requirement of mutuality in criminal cases.

Allowing the defendant to use the Holmes opinion in his favor encourages the defendant, and others like him, to adopt a wait-and-see attitude rather than bringing the claims himself. Since the defendant was not a party to the trial of Holmes or the appeal of Holmes' conviction, the defendant cannot now use the Holmes opinion to his benefit. As mutuality of parties does not exist, the post-conviction circuit court was not required to apply the Holmes opinion to defendant's claims.

Defendant also contends that due process requires that he receive a new trial because of the State's errors. Defendant partially relies on the appellate court analysis in the Holmes opinion for this contention. The State argues that defendant has waived this issue for failing to bring it on direct appeal. Defendant responds first by stating that this issue is not waived, because its resolution depends on materials not in the appellate court record (the Holmes opinion, the Will County statement, and a transcript of Williams' testimony from Holmes and defendant's preliminary hearing), second by stating that if waiver is found, fundamental fairness requires relaxation of the waiver doctrine, and third by arguing that if the issue is waived, then appellate counsel was ineffective for failing to bring the issue on direct appeal.

Defendant has waived this issue for failure to bring it on direct review. Defendant had access to the Will County statement and the transcript of the preliminary hearing during his trial, as evidenced by defense counsel's attempt to question and impeach Williams with both of these documents during cross-examination. Defendant could have brought this claim on direct review, much like Holmes brought these claims on the appeal of his case.

In addition, the doctrine of fundamental fairness does not support relaxation of the waiver rule. Fundamental fairness is generally defined in terms of a "cause and prejudice" test. ( People v. Flores (1992), 153 Ill. 2d 264, 279, 180 Ill. Dec. 1, 606 N.E.2d 1078.) Defendant has failed to provide argument sufficient to support the "cause and prejudice" test. Defendant has simply made a blatant statement that fundamental fairness requires relaxation of the waiver rule and has not provided additional argument. In addition, our review of the record reveals that the defendant was not denied a fair trial by the State's actions. First, the State did not mislead the jury about Williams' involvementin the crime. The State did not characterize Williams as an "innocent bystander" to the commission of a crime; in fact, the State did not even use that phrase. During opening and closing arguments the State simply recited the testimony which Williams was to give and gave at trial. The evidence of defendant's involvement in the murder was also in front of the jury, as Williams had testified to looking for Evans several days before the murder and driving the car to the murder scene. The jury was free to decide whether or not Williams was involved and, thus, the extent of defendant's involvement. Second, the State did tell the jury about the deal which had been made with Williams -- that in exchange for his truthful testimony, Williams would receive a six-year sentence in an unrelated armed robbery charge. Any other hopes or expectations Williams had about not being charged for the murder were just that. There is no evidence of any other agreement between Williams and the State. The State was not required to speculate about what Williams was thinking or believing in regard to his being charged for the murder and then to relate these speculations to the jury.

Finally, defendant has also failed to prove that appellate counsel was ineffective for failing to bring these claims on direct review. In light of the above analysis, defendant has not shown that but for counsel's alleged errors that his conviction would have been reversed. See People v. Stewart (1990), 141 Ill. 2d 107, 119, 152 Ill. Dec. 286, 565 N.E.2d 968.


Defendant claims that he should be granted a new trial because his lawyer, Cary Polikoff, was the subject of a Federal criminal investigation involving "Operation Greylord" and the fixing of cases in Cook County circuit court prior to and during his trial. Defendant asserts that his conviction should be reversed in the interests of justice and because the investigation of Polikoffcaused Polikoff to render ineffective assistance of counsel. In support of the latter position, defendant's post-conviction petition listed a minimum of 13 reasons for finding that counsel was ineffective.

To support his contention that the interests of justice require a new trial, defendant relies on the case of People v. Williams (1982), 93 Ill. 2d 309, 67 Ill. Dec. 97, 444 N.E.2d 136. Williams was a capital case in which defense counsel represented three of four defendants. Two juries were impaneled and the trials were held simultaneously, with counsel representing defendants before both juries. At the same time, counsel also had complaints pending against him before the Attorney Registration and Disciplinary Commission (ARDC). This court subsequently overturned the defendant's conviction, finding that counsel's problems in front of the ARDC in conjunction with the complex nature of the capital case may have prevented the defendant from receiving the effective assistance of counsel guaranteed by the Constitution. Because of the uniqueness of the situation, this court declined to apply the tests for ineffective assistance of counsel established in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. This court went on to say that "considering the unique circumstances and sequence of events in this capital case, which will rarely, if ever, be duplicated, that the interests of justice require that Dennis Williams be granted a new trial." (Emphasis added.) Williams, 93 Ill. 2d at 325.

Later, in People v. Szabo (1991), 144 Ill. 2d 525, 529, 163 Ill. Dec. 907, 582 N.E.2d 173, this court held "that the Williams decision was an aberration peculiar to the facts of that case." This court also noted the factual differences between the two cases. The defendant's post-conviction petition in Szabo contained only two brief paragraphs alleging counsel's deficient representation and did not compare favorably with the list of counsel errors alleged in Williams. In addition, Szabo's counsel did not appear before the ARDC until 10 months after defendant's trial, while Williams' counsel was the subject of disbarment proceedings at the time of his trial. This court declined to apply a per se rule that whenever counsel is involved in proceedings with the ARDC interests of justice require that the defendant be granted a new trial. Rather, this court reviewed the defendant's claims under the Strickland ineffective assistance of counsel test. Szabo, 144 Ill. 2d at 530-31.

Although both Williams and Szabo involved attorneys who were facing proceedings in front of the ARDC, the analysis in those cases is applicable to an attorney who is being investigated for criminal infractions. The "unique circumstances and sequence of events" in Williams, however, are not present in the instant case. The circumstances surrounding the investigation of Polikoff are different from the disbarment of the attorney in Williams. Knowledge of the investigation of "Operation Greylord" became public in November of 1986 through a series of newspaper articles. Defendant claims that the publicity surrounding the investigation and Polikoff's subsequent indictment for his involvement in the scheme caused Polikoff to perform deficiently and automatically require that a new trial be granted in the interests of justice.

Defendant, however, has failed to meet his burden of proof on this issue. Defendant has only provided evidence of publicity surrounding Joseph McDermott's involvement in the investigation. Defendant has not provided proof of publicity surrounding Polikoff's involvement in the scheme, nor has defendant provided proof that Polikoff had been indicted for his involvement before or at the time of his trial. In actuality, as evidenced by the number "87" prefix on Polikoff's Federal indictment, Polikoff was, at most, only underinvestigation for his involvement in "Operation Greylord" at the time of defendant's trial. He was not indicted until after the conclusion of defendant's trial and he did not plead guilty to any charges until some time later. Being under a criminal investigation is not of the same degree as appearing in front of the ARDC on current, pending complaints. (See Szabo, 144 Ill. 2d 525, 163 Ill. Dec. 907, 582 N.E.2d 173.) In addition, Polikoff did not appear in front of the ARDC at the time of defendant's trial. Polikoff was disbarred on December 15, 1988, two years after the trial.

The circumstances of defendant's trial are also different from the circumstances of Williams' trial. Although both were trials of capital cases, defendant was the only person whom Polikoff was representing and the only person on trial. Thus, the instant circumstances are more similar to the Szabo case than to the Williams case. The circumstances surrounding the investigation of Polikoff and the nature of defendant's trial do not meet the unique set of circumstances found to exist in Williams. Thus, defendant does not have a right to a new trial in the interests of justice.

As in Szabo, however, defendant's claims of ineffective assistance of counsel must be analyzed in terms of Strickland. Strickland established a two-prong test for judging attorney performance, of which the defendant must prove both prongs. ( Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) The defendant must first show that "counsel's performance was deficient" in that it "fell below an objective standard of reasonableness," and second that the "deficient performance prejudiced the defense" such that the defendant was deprived of a fair trial whose result was reliable. ( Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) The Strickland test also requires "a reasonable probability of a different result, not merely a possibility" of a different result. ( People v. Gacy (1988), 125 Ill. 2d 117, 129-30, 125 Ill. Dec. 770, 530 N.E.2d 1340.) A defendant's claims of ineffectiveness can often be disposed of upon a showing that the defendant suffered no prejudice from the claimed errors, without reaching a decision on whether the errors constituted constitutionally ineffective assistance of counsel. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.

Several of the claims which defendant makes in his post-conviction petition regarding the ineffectiveness of his counsel were raised and discussed on direct appeal. Several of the other claims are analyzed later in this opinion and, for still others, defendant has failed to raise and to provide argument for them in his brief. A point raised in a brief but not argued or supported by citation to relevant authority fails to satisfy the requirements of Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)) and is therefore waived. ( People v. Patterson (1992), 154 Ill. 2d 414, 455, 182 Ill. Dec. 592, 610 N.E.2d 16.) The two remaining claims of ineffective assistance of counsel are whether counsel was ineffective when ...

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