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11/22/95 PEOPLE STATE ILLINOIS v. LEROY ORANGE

November 22, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
LEROY ORANGE, APPELLANT.



Appeal from the Circuit Court of Cook County, the Hon. Thomas P. Durkin, Judge, presiding.

The Honorable Justice Miller delivered the opinion of the court:

The opinion of the court was delivered by: Miller

JUSTICE MILLER delivered the opinion of the court:

Defendant, Leroy Orange, was convicted by a jury in the circuit court of Cook County on charges of murder, concealment of a homicidal death, and aggravated arson. Defendant waived his right to a jury trial for purposes of a death penalty hearing, and the trial judge sentenced the defendant to death. On direct appeal, this court affirmed defendant's murder and concealment convictions and death sentence, but reversed the arson conviction. ( People v. Orange (1988), 121 Ill. 2d 364, 118 Ill. Dec. 1, 521 N.E.2d 69.) The United States Supreme Court denied defendant's petition for a writ of certiorari. Orange v. Illinois (1988), 488 U.S. 900, 102 L. Ed. 2d 235, 109 S. Ct. 247.

Seeking post-conviction relief, defendant filed a pro se petition (Ill. Rev. Stat. 1989, ch. 38, par. 122-1 et seq.) in the circuit court of Cook County. With assistance of appointed counsel, the defendant then filed an amended post-conviction petition, seeking reversal of his conviction and a new trial. After hearing arguments on the State's motion to dismiss, the post-conviction judge dismissed the petition without evidentiary hearing. Because the defendant was sentenced to death for the underlying convictions, he appeals the denial of his post-conviction petition directly to this court. 134 Ill. 2d R. 651(a).

This court's prior opinion in this case contains a detailed recitation of the facts. ( People v. Orange (1988), 121 Ill. 2d 364, 118 Ill. Dec. 1, 521 N.E.2d 69.) We repeat only those facts pertinent to the issues in the post-conviction petition.

On January 12, 1984, police responded to a report of a fire in a Chicago apartment building, and discovered the bodies of three adults-Renee Coleman, Michelle Jointer, Ricardo Pedro-and a child-Anthony Coleman. All four victims had been repeatedly stabbed, and the coroner believed that they died from the stab wounds. Defendant, an acquaintance of the victims, and defendant's half-brother, Leonard Kidd, were arrested in connection with the crimes. Defendant gave an oral statement and a signed confession to the police, admitting he stabbed the victims and attempted to burn the apartment. Defendant and Kidd were tried in separate trials. At trial, defendant testified and denied involvement in the crimes. While defendant acknowledged he was present at the apartment on the night of the crime, he testified that he left before the crimes were committed. Defendant also testified that the police coerced his confession through physical torture.

Leonard Kidd also provided a detailed statement to police that was generally consistent with defendant'sconfession. However, at defendant's trial Kidd recanted his earlier statement and took full responsibility for the offenses. Kidd denied that the defendant took part in any of the crimes. The jury found defendant guilty on four counts each of murder and concealment of homicidal death and one count of aggravated arson.

The defendant chose to proceed with a sentencing hearing before the judge without a jury. At sentencing the judge found defendant eligible for the death sentence based on the statutory aggravating factors that defendant was 18 years or older at the time of the crimes, that he had been convicted of the murder of two or more individuals, and that one of the victims was under 12 years of age and was murdered in an exceptionally brutal and heinous manner. (Ill. Rev. Stat. 1989, ch. 38, pars. 9-1(b)(3), (b)(7).) The sentencing judge found no mitigating factors sufficient to preclude a sentence of death, and the defendant was sentenced to death.

On direct appeal this court overturned the aggravated arson conviction, but affirmed defendant's murder convictions and his sentence. ( People v. Orange (1988), 121 Ill. 2d 364, 118 Ill. Dec. 1, 521 N.E.2d 69.) Defendant's initial, pro se post-conviction petition was dismissed. His amended petition, filed with the assistance of appointed counsel, was dismissed on the State's motion without an evidentiary hearing. Defendant appeals the dismissal of his amended post-conviction petition and seeks an evidentiary hearing.

I. Ineffective Assistance of Counsel at Trial

In support of his post-conviction petition, defendant raises numerous claims of ineffective assistance of counsel at trial in violation of his sixth and fourteenth amendment rights (U.S. Const., amends. VI, XIV). Claims of ineffective assistance of counsel are analyzed under the two-prong test established in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104S. Ct. 2052, and adopted by this court in People v. Albanese (1984), 104 Ill. 2d 504, 525-26, 85 Ill. Dec. 441, 473 N.E.2d 1246. To succeed on a claim of ineffective assistance of counsel a defendant must prove (1) that his attorney's performance fell below the objective standard of reasonableness, as measured by reference to prevailing professional norms, and (2) that the substandard representation so prejudiced defendant that there is a reasonable probability that, absent the errors, the outcome would have been different. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

Defendant first alleges that counsel was ineffective for failing to investigate the factual basis for a motion to suppress defendant's confession. As grounds for suppression, defendant charges that prior to his interrogation he requested, but was denied, the assistance of counsel. Defendant also claims that a police officer struck him in the mouth in response to his request for an attorney. Defendant maintains that his confession was involuntary and the product of police torture during his interrogation at Area 2 police headquarters. Defendant claims that during his interrogation police used electroshock, stuck needles in his buttocks, repeatedly squeezed his scrotum, and placed a bag over his head in attempts to coerce his confession.

Defendant argues that had his trial counsel investigated further, he would have discovered evidence to corroborate defendant's allegations regarding coercive activities at Area 2. Defendant contends that his trial counsel was ineffective because he did not subpoena disciplinary files of the officers who interrogated defendant. Defendant alsoclaims that trial counsel was ineffective for not seeking expert testimony that would have indicated that the results of defendant's post-interrogation medical exams were consistent with defendant's account of police torture. Defendant further claims that trial counsel was ineffective for failing to consult with attorneys who represented other clients alleging police brutality in Area 2. Finally, defendant argues that trial counsel should have subpoenaed personnel records in an effort to locate the paramedic who examined defendant and completed a report called a "bruise sheet."

In support of his claim, defendant submits various affidavits to demonstrate that trial counsel should have been aware of the need for further investigation to discover evidence corroborating defendant's claims of torture. First, defendant submits the affidavit of a member of a citizen's watchdog group. The affiant describes a pattern and practice of police brutality at Area 2 during the period 1982-84 consistent with defendant's allegations. However, the citizen's watchdog group representative does not name any of the persons who interrogated or arrested this defendant as being a party to the pattern and practice of police brutality in Area 2. Defendant also submits the affidavit of an expert who would have testified at trial that the type of torture defendant alleges he suffered is designed to leave no physical injuries. Finally, defendant offers reports prepared by the City of Chicago's Office of Police Standards concerning an internal investigation of police misconduct in Area 2 in the period 1982-84. However, these reports were not available at the time of defendant's trial, and the trial testimony did not place any of the officers cited in the report at defendant's interrogation. One officer did testify that Jon Burge, the lieutenant at Area 2 named in the internal investigation, and since separated from the police force, was possibly present during defendant's interrogation. However, two other officers testified at trial that Burge was not present during defendant's interrogation.

The paramedic and physician reports submitted withdefendant's post-conviction petition record defendant's claim that he was subjected to needle pricks and electronic probe, yet neither physical exam report corroborates these allegations. The paramedic report, or "bruise sheet," contains a line pointing to the diagram of the left buttock with the word "slight." However, the paramedic did not testify at trial and his report was ruled inadmissible for lack of foundation. After the paramedic examined the defendant, a physician also performed an exam. The physician testified at trial that he found no bruising or indication of tenderness on defendant's back, scrotum or anus. The only mark on defendant's body the physician noted was a slight pimple on the buttocks.

As a preliminary matter, the State argues that this and many of defendant's claims regarding his trial attorney's performance are waived because they could have been raised on direct appeal. Generally, the issue of trial counsel's competence is waived where defendant's appellate counsel fails to raise the issue on direct appeal. ( People v. Owens (1989), 129 Ill. 2d 303, 308, 135 Ill. Dec. 780, 544 N.E.2d 276.) However, where facts relating to the issue of incompetency do not appear of record, the waiver rule is relaxed. ( Owens, 129 Ill. 2d at 308.) Because many of defendant's claims rely on evidence not contained in the record on direct appeal, we address those claims in turn.

We do not believe that counsel's failure to investigate defendant's claim of police misconduct as a basis for a motion to suppress in this case failed to meet reasonable professional standards. Counsel has only a duty to make reasonable investigations or to make a reasonable decision which makes particular investigations unnecessary, and the reasonableness of a decision to investigate is assessed applying a heavy measure of deference to counsel's judgment. People v. Harris (1989), 129 Ill. 2d 123, 158, 135 Ill. Dec. 861, 544 N.E.2d 357, citing Strickland v. Washington (1984), 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694, 104 S. Ct. 2052, 2065.

In his deposition, trial counsel states that he did not talk with police to investigate the claims of brutality, because he "did not have specifics" and defendant had not told him which officers were involved in the interrogation and the claimed brutality. Trial counsel admits that he was contacted by attorneys representing Andrew Wilson, a defendant in another case, who alleged police abuse at Area 2. However, defense counsel states that he did not seek more information from Wilson's attorneys because he found defendant's case distinguishable from Wilson's. Wilson had observable injuries and several witnesses to his prearrest and post-arrest condition, in contrast to defendant, who had no observable physical marks and no witnesses. Defense counsel also stated that he did attempt to locate the paramedic who completed the bruise sheet, and personally went to the paramedic's last known address. Counsel also explained that he believed he spoke with hospital personnel in a further attempt to locate the paramedic, but was not successful in reaching him.

Where the circumstances known to counsel at the time of his investigation do not reveal a sound basis for further inquiry in a particular area, it is not ineffective for the attorney to forgo additional investigation. ( People v. Holman (1995), 164 Ill. 2d 356, 371, 207 Ill. Dec. 467, 647 N.E.2d 960.) Here, at the time of defense counsel's investigation, the only evidence to support defendant's allegation of coercion were defendant's own statements and a questionable entry on the paramedic's report. Moreover, the affidavits submitted by defendant in support of his amended post-conviction petition are generalized and do not support the claims of torture or coercion made by him in this case. Because generalized allegations of coercive activity in Area 2, without other evidence, would not establish that this defendantwas coerced into confessing ( People v. Jones (1993), 156 Ill. 2d 225, 245, 189 Ill. Dec. 357, 620 N.E.2d 325 (occurrences of past police brutality have no relevance to instant case)), we believe that it was not unreasonable for counsel to curtail his investigation. Further, trial counsel's decision not to consult more with Andrew Wilson's attorneys was reasonable in light of the dissimilarity of the cases. (See People v. Hobley (1994), 159 Ill. 2d 272, 311-12, 202 Ill. Dec. 256, 637 N.E.2d 992 (specific allegations of prior police torture may be admissible only with sufficient indicia of timeliness and similarity).) In light of this lack of corroborative evidence, defendant fails to demonstrate that the scope of the investigation trial counsel conducted was unreasonable.

Moreover, defendant's claim fails because he does not demonstrate that he was prejudiced by the breadth of trial counsel's investigation. To prevail on a claim of ineffective assistance of counsel based on a failure to investigate, defendant must show that substantial prejudice resulted and that there is a reasonable probability that the final result would have been different had counsel properly investigated. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; see People v. Kluppelberg (1993), 257 Ill. App. 3d 516, 527, 195 Ill. Dec. 444, 628 N.E.2d 908.

Even if trial counsel had conducted a broader investigation of defendant's claims of police brutality, it is unlikely that such an investigation would have changed the outcome. The medical examination reports did not support a claim of physical abuse, and the defendant exhibited no evidence of trauma. There were no witnesses to the alleged brutality. Therefore, there is no reasonable probability that even if trial counsel had investigated further, a motion to suppress defendant's confession would have been granted.

Defendant next claims that trial counsel was ineffective for failing to file an amended motion to suppress his confession on the basis of coercion. Before trial, defendant's counsel presented a motion to suppress the confession, but the trial judge rejected the motion on the grounds that it was legally insufficient. The court allowed defense counsel to withdraw the motion and the motion was not resubmitted. We note that the original motion to suppress the confession is not part of the record.

In his deposition, counsel described his strategic decision not to resubmit the motion. Counsel stated that after the court summarily rejected the motion, counsel believed submitting the question of coercion directly to the jury would be more successful than asking the trial judge to reconsider the motion. Counsel also maintained that once he decided that he would present the coercion evidence to the jury, presenting the issue in a motion to suppress would be unwise, as it would only give the police "a chance to get a good dress rehearsal" at the suppression hearing. Further, counsel stated that given the lack of physical evidence, counsel believed the only way he could "properly present the motion *** would be to have [defendant] testify, and subject him to cross-examination," which could be potentially damaging to the defense.

Defendant denies the possibility that defense counsel's decision not to refile the motion to suppress was a strategic decision. Defendant alleges that his trial counsel's failure to resubmit the motion was motivated by monetary considerations because, at the time defense counsel filed the motion to suppress defendant's confession, he was acting pro bono. Defendant contends that counsel did not refile the motion because he was concerned that it was too time-consuming, and counsel was not being compensated for his services.

The facts do not support defendant's claim that his counsel's decision was based on monetary considerations. The record indicates that defense counsel sought courtappointment, but his request was denied one month before the motion to suppress was filed. When appointment was denied, defense counsel agreed to continue on a pro bono basis. Thus, defense counsel knew that he was receiving little or no compensation for his services when he initially tendered the motion to suppress. Presumably, he would have anticipated proceeding to hearing to present the motion. Defense counsel did not withdraw the motion in response to the court's unwillingness to appoint him as defendant's counsel, but withdrew the motion after the trial judge stated that it was legally insufficient. Accordingly, we reject defendant's argument that monetary considerations predominated counsel's decision not to file a new motion to suppress.

A decision which involves a matter of trial strategy will generally not support a claim of ineffective representation. ( People v. Flores (1989), 128 Ill. 2d 66, 106, 131 Ill. Dec. 106, 538 N.E.2d 481.) Here, trial counsel's decision to submit the question of coercion to the jury in lieu of submitting an amended motion to the court was a matter of defense strategy. The record indicates that counsel followed his stated strategy and elicited testimony in the presence of the jury detailing the alleged coercive tactics. Although the strategy proved unsuccessful, we cannot say that counsel's failure to file an amended motion was outside the bounds of reasonable professional competency.

Even if we had found trial counsel's failure to file a motion to suppress outside the bounds of reasonable professional standards, defendant fails to prove prejudice. To prevail on a claim of ineffectiveness of counsel to file a motion to suppress, defendant must show that a reasonable probability exists that both the motion would have been granted and that the trial outcome would have been different had the evidence been suppressed. (See Kimmelman v. Morrison (1986), 477 U.S. 365, 91 L. Ed. 2d 305, 106 S. Ct. 2574.) As noted above, the record in this case suggests that no factual basis existed for a motion to suppress. No medical evidence corroborated defendant's purported injuries. A photograph taken after defendant's confession showed no evidence of physical trauma, and no witnesses were available to support defendant's allegations of abuse. Police officers testifying at trial denied the use of torture or coercion. The defendant's wife observed defendant at the police station during the evening after his arrest, and she stated that defendant did not exhibit ...


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