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11/02/95 PEOPLE STATE ILLINOIS v. ALTON COLEMAN

November 2, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
ALTON COLEMAN, APPELLANT.



Appeal from the Circuit Court of Lake County, the Hon. Henry C. Tonigan, Judge, presiding.

The Honorable Justice Nickels delivered the opinion of the court: Justice Miller, concurring:

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

Following a jury trial in the circuit court of Lake County, defendant, Alton Coleman, was found guilty of aggravated kidnapping (Ill. Rev. Stat. 1983, ch. 38, par. 10-2) and murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1) in connection with the abduction and death of nine-year-old Vernita Wheat. The jury found defendant eligible for the death penalty (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(b)(3), (b)(7)) and found that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. The trial court sentenced defendant to death and to a 15-year term of imprisonment for aggravated kidnapping. On direct appeal to this court, defendant's convictions and sentence were affirmed. ( People v. Coleman (1989), 129 Ill. 2d 321, 135 Ill. Dec. 834, 544 N.E.2d 330, cert. denied (1990), 497 U.S. 1032, 111 L. Ed. 2d 802, 110 S. Ct. 3294.) Defendant subsequently filed a petition for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122-1 et seq.) in the circuit court of Lake County. The circuit court dismissed the majority of the claims in defendant's petition without an evidentiary hearing. Following an evidentiary hearing, the circuit court denied relief on the remaining claims. Defendant appeals directly to this court pursuant to Supreme Court Rule 651 (145 Ill. 2d R. 651). For the reasons set forth below, we affirm.

BACKGROUND

The factual background of the trial and sentencing is set forth in this court's opinion in defendant's direct appeal ( People v. Coleman (1989), 129 Ill. 2d 321, 135 Ill. Dec. 834, 544 N.E.2d 330), andonly a relatively brief summary is necessary here. We note that although defendant was initially represented by Lake County Public Defender Michael Melius and Assistant Public Defender Joan Pantsios, six days before trial defendant requested to waive the right to counsel and act as his own attorney. The trial court granted defendant's request, and appointed attorneys Melius and Pantsios to act as advisors to defendant during trial.

The following evidence was presented at trial. On June 19, 1984, the body of the victim, Vernita Wheat, was discovered in a bathroom in an abandoned apartment building in Waukegan. Her hands were bound, and a cable was wrapped around her chest and neck. Dr. Larry Blum performed an autopsy and determined that the cause of death was ligature strangulation and that the victim had died about three weeks before the discovery of the body. A forensic entomologist studied the development of fly larvae on the body and concluded that the body had probably been placed in the building on May 29 or May 30. Two fingerprints were found side by side on the lower portion of the door to the bathroom where the body was found. One of the fingerprints matched defendant's, and the other was unidentified.

Juanita Wheat, the victim's mother, testified that at the time of the offense she lived in Kenosha, Wisconsin, with her children, Vernita and seven-year-old Brandon. Juanita met defendant in late April or early May 1984, and knew him by the name Robert Knight. Defendant had told Juanita that he lived in her neighborhood in Kenosha, although in actuality he lived in Waukegan. He also falsely claimed that he was employed by American Motors. Juanita last saw Vernita alive on May 29, 1984. That evening, defendant stated that he wanted to give Juanita a stereo as a gift. At about 10:15 p.m., with Juanita's permission, Vernita accompanied defendant to pick up the stereo at defendant's apartment. Juanitadid not give defendant permission to take Vernita to Waukegan. Defendant failed to return with Vernita, and Juanita contacted the police.

Defendant and the victim were observed entering an establishment in Kenosha known as the "400 Club" at about 11:35 p.m. on May 29. Upon arrival at the 400 Club, defendant used the telephone, and a short time later a cab arrived to pick up defendant and Vernita. One of the patrons of the 400 Club testified that the cab driver's name was Keith. Cab driver Keith Hach testified that at 11:35 p.m. on May 29 he was dispatched to the 400 Club where he picked up a black man and a black girl. Defendant is black, as was Vernita. The man first directed Hach to drive to a location in Zion, Illinois. When they arrived, the man asked Hach to drive to Waukegan. Hach dropped the man and girl off near Slater's Barbeque in Waukegan. James Adams was working in the area near Slater's Barbeque in the early morning hours of May 30. At about 1:30 a.m., he observed a black man wearing a large floppy hat walking with a young girl near Slater's Barbeque. Slater's Barbeque is located about two blocks from the building where Vernita's body was discovered.

On May 31, 1984, a Waukegan police officer observed defendant near defendant's sister's house. When the officer activated his squad car's lights, defendant fled. The State also presented evidence that subsequent to Vernita Wheat's disappearance, defendant attempted to obtain false identification cards and defendant left the State.

Anna Ross, an acquaintance of the Wheats, testified on defendant's behalf that on the afternoon of May 30, 1984, she saw Vernita and defendant walking together in front of her house in Kenosha. Ross waved to Vernita and Vernita waved back.

The jury was instructed on theories of intentionalmurder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(1)), murder based on knowledge of a strong probability of death or great bodily harm (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(2)) and felony murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(3)) based on aggravated kidnapping. The jury returned general verdicts of guilty of aggravated kidnapping and murder.

Thereafter, a bifurcated death penalty hearing was conducted before the jury that had found defendant guilty. At defendant's request, attorneys Melius and Pantsios were reappointed to represent him at sentencing. At the first stage of sentencing, the jury found that defendant was at least 18 years of age at the time of the murder and was eligible for the death penalty on the basis that he had been convicted of intentional murder in Indiana and Ohio, under laws substantially similar to the laws of the State of Illinois (Ill. Rev. Stat. 1983, ch. 38, 9-1(b)(3)). The record reveals that the Indiana and Ohio murders occurred after the murder of Vernita Wheat, but defendant was tried for those murders first. The jury also found defendant eligible for the death penalty because the victim was under 12 years of age and death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)(7).) The State also sought to impose the death penalty on the basis that defendant personally killed the victim and acted knowingly or intentionally. (Ill. Rev. Stat. 1983, ch. 38, pan 9-1(6)(b).) However, the jury could not reach a verdict finding defendant eligible for the death penalty on this basis.

After the jury found defendant eligible for the death penalty, defendant again requested to act pro se. The trial court granted the request and attorneys Melius and Pantsios were again appointed to act as advisors. At the second stage of the sentencing proceedings, the State introduced evidence that in June and July of 1984, defendantparticipated in the murders of seven-year-old Tamika Turks and Eugene Scott, whose bodies were discovered in Indiana: 15-year-old Tonnie Storey, Marlene Walters and Virginia Temple and her nine-year-old daughter, Rachelle, whose bodies were discovered in Ohio; and Donna Williams, whose body was discovered in Michigan. At the time of trial in the instant case, defendant had already been found guilty of the murders of Tamika Turks, Marlene Walters and Tonnie Storey. The State also presented evidence of defendant's involvement in other offenses during this time period, including attempted murder, sexual assault, robbery and kidnapping.

As evidence in mitigation, defendant presented the testimony of Reverend Lloyd R. Davis, pastor of the Christian Fellowship Church in Waukegan, who had counselled defendant. According to Reverend Davis, defendant sought spiritual guidance and indicated his desire to find peace with God.

The jury unanimously found that there were no mitigating circumstances sufficient to preclude imposition of the death penalty, and the trial court sentenced defendant to death. As noted above, this court affirmed the conviction and sentence. On May 31, 1991, defendant filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122-1 et seq.). The circuit court dismissed all of the claims in defendant's petition, as amended, except a portion of defendant's claim of ineffective assistance of counsel relating to trial counsel's performance during the first stage of sentencing (eligibility), and his claim that his waiver of counsel at trial and at the second stage of sentencing (aggravation/mitigation) was invalid. Following an evidentiary hearing, the circuit court denied those claims. This appeal followed.

ANALYSIS

I

At the outset, we note that the circuit court ruled that numerous claims in defendant's post-conviction petition were waived because they could have been raised in defendant's direct appeal. A proceeding under the Post-Conviction Hearing Act does not constitute an appeal. Rather, the Act permits a defendant to mount a collateral attack on his conviction and sentence based on violations of his constitutional rights. ( People v. Mahaffey (1995), 165 Ill. 2d 445, 452, 209 Ill. Dec. 246, 651 N.E.2d 174; People v. Thompkins (1994), 161 Ill. 2d 148, 157, 204 Ill. Dec. 147, 641 N.E.2d 371.) It is well established that the scope of post-conviction review is limited to constitutional matters which have not been, and could not have been, previously adjudicated. ( People v. Brisbon (1995), 164 Ill. 2d 236, 245, 207 Ill. Dec. 442, 647 N.E.2d 935; People v. Winsett (1992), 153 Ill. 2d 335, 346, 180 Ill. Dec. 109, 606 N.E.2d 1186.) Accordingly, determinations of the reviewing court on direct appeal are res judicata as to issues actually decided and issues that could have been raised on direct appeal but were not are waived. ( Mahaffey, 165 Ill. 2d at 452; People v. Thomas (1995), 164 Ill. 2d 410, 416, 207 Ill. Dec. 490, 647 N.E.2d 983; People v. Flores (1992), 153 Ill. 2d 264, 274, 180 Ill. Dec. 1, 606 N.E.2d 1078; People v. Collins (1992), 153 Ill. 2d 130, 135, 180 Ill. Dec. 60, 606 N.E.2d 1137.) Occasionally, these procedural bars may be relaxed when fundamental fairness requires. Thompkins, 161 Ill. 2d at 158.

It is true that numerous claims in defendant's post-conviction petition involve matters documented in the trial record which could have been raised on direct appeal. Nevertheless, in his post-conviction petition, defendant alleges that appellate counsel's failure to raise these issues on direct appeal constitutes ineffective assistance of counsel. A defendant is guaranteed the effective assistance of counsel on appeal. ( Evitts v. Lucey (1985), 469 U.S. 387, 393-97, 83 L. Ed. 2d 821, 828-30, 105 S. Ct. 830, 834-37; Flores, 153 Ill. 2d at 277.) This court has held that the doctrine of waiver should notbar consideration of an issue where the alleged waiver stems from incompetency of counsel on appeal. ( People v. Salazar (1994), 162 Ill. 2d 513, 520-21, 205 Ill. Dec. 407, 643 N.E.2d 698; Winsett, 153 Ill. 2d at 346; Flores, 153 Ill. 2d at 282; People v. Ruiz (1989), 132 Ill. 2d 1, 10, 138 Ill. Dec. 201, 547 N.E.2d 170; see People v. Brisbon (1995), 164 Ill. 2d 236, 255, 207 Ill. Dec. 442, 647 N.E.2d 935.) Claims of ineffective assistance of appellate counsel are evaluated under the standard set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, which requires the defendant to show both deficient performance by counsel and resultant prejudice. We note that appellate counsel "has no obligation to raise every conceivable argument which might be made, and counsel's assessment of what to raise and argue will not be questioned unless it can be said that his judgment in this regard was patently erroneous." Collins, 153 Ill. 2d at 140.

Accordingly, we will examine the merits of the issues which could have been raised on direct appeal as they relate to defendant's allegations of ineffective assistance of counsel on appeal. We note that unless the underlying issues are meritorious, defendant obviously suffered no prejudice due to appellate counsel's failure to raise them on direct appeal. See Winsett, 153 Ill. 2d at 347.

II

Turning to the merits of defendant's post-conviction claims, we first address those claims which the circuit court denied following an evidentiary hearing.

A. Competence to Waive Counsel

Defendant contends that the circuit court in the post-conviction proceedings erred in concluding that he was competent to waive counsel during trial and the second stage of sentencing. A criminal defendant may not waive his right to counsel unless he does so "'competently and intelligently.'" ( Godinez v. Moran (1993), 509 U.S. 389, 396, 125 L. Ed. 2d 321, 330, 113 S. Ct. 2680, 2685, quoting Johnson v. Zerbst (1938), 304 U.S. 458, 468, 82 L. Ed. 1461, 1469, 58 S. Ct. 1019, 1025.) Competence to waive counsel is measured by the same standard as competence to stand trial. ( People v. Mahaffey (1995), 166 Ill. 2d 1, 19, 209 Ill. Dec. 607, 651 N.E.2d 1055, citing Godinez, 509 U.S. at 396, 125 L. Ed. 2d at 330, 113 S. Ct. at 2685.) A defendant is considered unfit to stand trial if, because of a mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense. ( People v. Eddmonds (1991), 143 Ill. 2d 501, 512, 161 Ill. Dec. 306, 578 N.E.2d 952.) Fitness speaks only to a person's ability to function within the context of trial; it does not refer to sanity or competence in other areas. (See People v. Fowler (1991), 222 Ill. App. 3d 157, 164, 164 Ill. Dec. 770, 583 N.E.2d 686.) A person can be fit for trial although his mind may be otherwise unsound. See Fowler, 222 Ill. App. 3d at 164.

At the post-conviction evidentiary hearing, defendant's trial attorneys and an attorney who represented defendant in a Federal kidnapping prosecution testified that defendant was extremely distrustful, uncooperative and difficult to work with. Defendant also presented the testimony of Dr. Leonard D. Elkun, a physician specializing in forensic psychiatry. Dr. Elkun personally interviewed defendant and reviewed reports from other mental health professionals concerning defendant's mental and emotional health and various materials relating to legal proceedings and defendant's personal background. Dr. Elkun formed the opinion that at the time defendant waived counsel, he was suffering from borderline personality disorder, a serious mental illness characterized by a poor capacity to organize one's life and plan for the future, the elevation of personal motivations above societal values, unstable interpersonal relationships, and instability in mood. According to Dr. Elkun, individuals suffering from borderlinepersonality disorder experience transient psychotic episodes, but may otherwise appear outwardly normal. Dr. Elkun testified that defendant's grandmother, allegedly a practitioner of voodoo, instilled in defendant the belief that he possessed supernatural powers and was exempt from the laws of society. Dr. Elkun believed defendant's condition caused him to overestimate his ability to conduct his own defense. According to Dr. Elkun, defendant's paranoid thinking, characterized by mistrust of his attorneys, combined with his delusions of grandeur, prevented defendant from being able to make a knowing and intelligent decision whether to waive counsel.

Defendant contends that in view of Dr. Elkun's testimony, the circuit court erred in denying post-conviction relief. We disagree. Mindful that determinations by the trial court in post-conviction proceedings will not be disturbed on review unless contrary to the manifest weight of the evidence ( People v. Eddmonds (1991), 143 Ill. 2d 501, 514, 161 Ill. Dec. 306, 578 N.E.2d 952), we note that the ultimate issue of fitness is for the trial court, not the experts, to decide (see People v. Bleitner (1989), 189 Ill. App. 3d 971, 976, 137 Ill. Dec. 487, 546 N.E.2d 241). The mere fact that a psychiatrist expresses the opinion that the defendant was unfit does not require a similar finding by the trial court; it is the trial court's function to assess the credibility and weight to be given to psychiatric expert testimony. See Bleitner, 189 Ill. App. 3d at 976.

The circuit court indicated that in light of all the evidence presented, it did not find Dr. Elkun's testimony to be credible. In this regard we note that the circuit court had the opportunity to observe Dr. Elkun's demeanor on the witness stand, including his demeanor during the State's sometimes vigorous cross-examination. In addition to Dr. Elkun's testimony, the trial court heard testimony from mental health professionalswho had examined defendant in 1984 and found him fit to stand trial on criminal charges in another jurisdiction. Other evidence before the circuit court included the observations of defendant's demeanor and behavior by his trial attorneys and others who had frequent contact with him prior to and during his trial. While these witnesses lacked formal training in psychiatry or psychology, nonexperts who have had an opportunity to observe a person may give their opinions of mental condition or capacity based on their observations, and such lay opinions may overcome an expert opinion. (See Bleitner, 189 Ill. App. 3d at 976.) Moreover, in assessing defendant's fitness the circuit court could properly consider defendant's conduct at trial, as reflected in the trial transcripts. Defendant's conduct at trial clearly demonstrates that he understood the nature and purpose of the proceedings against him.

Dr. Elkun's testimony that defendant suffered paranoid thought processes might suggest an inability to assist counsel in his defense. However, there was testimony that while acting pro se defendant was sometimes agreeable to the recommendations of the attorneys acting as his advisors. From this evidence it is possible to infer that defendant's distrustfulness was not so pervasive as to constitute paranoia. While Dr. Elkun offered the opinion that defendant's decision to conduct his own defense was symptomatic of paranoid thinking, the trial court could conclude that the decision may have been in part a response to the fact that in three prior capital cases in other jurisdictions, his attorneys had been unable to save him from the death penalty. In view of all the circumstances, the circuit court's determination that defendant's waiver of counsel was valid is not against the manifest weight of the evidence.

B. Ineffective Assistance of Counsel During the Eligibility Phase of the Sentencing Proceedings

Defendant contends that he was deprived of effective assistance of counsel during the first stage of the sentencing proceedings. According to defendant, his attorneys should have asserted a defense to imposition of the death penalty based on the eighth amendment proportionality principles set forth in Enmund v. Florida (1982), 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368, and Tison v. Arizona (1987), 481 U.S. 137, 95 L. Ed. 2d 127, 107 S. Ct. 1676. In Enmund, the Court concluded that the eighth amendment to the United States Constitution (U.S. Const., amend. VIII) precludes capital punishment for an offender "who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." ( Enmund, 458 U.S. at 797, 73 L. Ed. 2d at 1151, 102 S. Ct. at 3376.) Subsequently, in Tison, which was decided shortly after the sentencing proceedings in the case at bar, the Court held that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." Tison, 481 U.S. at 158, 95 L. Ed. 2d at 145, 107 S. Ct. at 1688.

Defendant maintains that certain physical and testimonial evidence presented at trial suggests that even to the extent he was involved in the murder of Vernita Wheat, he did not act alone. Defendant asserts that the evidence provides no basis for a rational conclusion as to the respective roles and mental states of the participants, and accordingly it cannot be established that he acted with the degree of personal culpability necessary to permit imposition of the death penalty. At the post-conviction evidentiary hearing, defendant presented the testimony of Robert Isaacson, a defense attorney with extensive experience in capital cases. Isaacsontestified that defendant's attorneys should have sought a ruling from the trial court that defendant was ineligible for the death penalty as a matter of law. According to Isaacson, if the trial court declined to rule that defendant was ineligible for the death penalty, defendant's attorneys should have requested that the jury be instructed in accordance with Enmund and should have offered argument on the question. Defendant contends that trial counsel's failure to take these steps constituted ineffective assistance of counsel. We disagree.

As noted, claims of ineffective assistance of counsel based on deficient representation of a criminal defendant are evaluated in accordance with the two-prong test set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. Strickland provides as follows:

"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or ...


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