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November 30, 1995


Appeal from the Circuit Court of Kane County, the Hon. Barry E. Puklin, Judge, presiding.

As Modified on Denial of Rehearing January 29, 1996.

The Honorable Justice McMORROW delivered the opinion of the court: Justice Nickels took no part in the consideration or decision of this case.

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

A jury in the circuit court of Kane County found defendant, James T. Foster, guilty of first degree murder. Following a hearing, the trial court found defendant eligible for the death penalty because he killed the victim during the course of an aggravated criminal sexual assault. The court further found no mitigating factors sufficient to preclude imposition of the death penalty and sentenced the defendant to death. Defendant's murder conviction and death sentence were affirmed by this court on direct appeal. ( People v. Foster (1987), 119 Ill. 2d 69, 115 Ill. Dec. 557, 518 N.E.2d 82.) The defendant's petition for certiorari was denied by the United States Supreme Court. Foster v. Illinois (1988), 486 U.S. 1047, 100 L. Ed. 2d 628, 108 S. Ct. 2044.

Thereafter, defendant filed a petition for relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122-1 et seq.). Counsel was appointed and an amended post-conviction petition was filed. In his petition for post-conviction relief defendant alleged that: (1) trial counsel was ineffective at the hearing on the defendant's motion to suppress his confession; (2) appellate counsel was ineffective for failing to contest on direct appeal the trial court's finding that the defendant's confession was voluntary; (3) trial counsel was ineffective for failing to challenge the prosecution's medical evidence and for failing to present a defense; (4) appellate counsel was ineffective for failing to raise the issue of ineffective assistance of trial counsel on direct appeal; and (5) trial counsel was ineffective for failing to present evidence of statutory mitigating factors at defendant's sentencing hearing.

The trial court dismissed the amended post-conviction petition without an evidentiary hearing, and defendant appeals.


The evidence introduced at trial which led to the defendant's conviction and sentence is summarized as follows. Defendant was convicted for the murder of his girlfriend, Jaquelin Simmons. At the time of the incident, Simmons shared an apartment with Theresa Williams. Williams' trial testimony detailed how defendant used a baseball bat to extensively beat Simmons at the apartment on the night of January 9, 1985. Williams also recounted that at one point during the beating, she went into the living room and saw Simmons lying face down on the floor with the baseball bat inserted in her rectum. Williams testified that defendant began "bragging about how much he put [the bat] up herrectum and how she took it, and how she pulled it out." When Williams returned to the living room, she found Simmons on the couch breathing irregularly and noticed that defendant was nervous. Williams told defendant that Simmons needed to go to a hospital. However, defendant left the apartment and returned after approximately 20 minutes.

When defendant returned, Williams told him that Simmons was dead, and defendant attempted mouth-to-mouth resuscitation. The defendant told Anthony Lloyd, who had been at the apartment for a portion of the evening, to call the paramedics. Williams testified that the defendant took the bat and "got rid of" his bloody sweat shirt.

Anthony Lloyd testified that he arrived at the apartment of Simmons and Williams at about 11 p.m. on the night Simmons was killed. Lloyd testified that he could hear the defendant hitting Simmons with the bat and saw the defendant holding the broken baseball bat. Lloyd's account of defendant's beating of Simmons was substantially similar to that provided by Williams.

Pathologist Dr. Larry Blum testified at trial that Simmons suffered many blunt-trauma-type injuries over her head, chest, abdomen and legs. He stated that the cause of death was multiple blunt trauma resulting in swelling of the brain and internal hemorrhage.

The morning following Simmons' death, defendant gave authorities a confession in which he admitted that he had beaten Simmons to death. The defendant then signed a written waiver of his Miranda rights and a typed confession.


A petition filed under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1992)) is a collateral attack on the judgment of conviction in which the petitioner attempts to establish constitutional violationsat trial that have not been and could not have been previously adjudicated. ( People v. Brisbon (1995), 164 Ill. 2d 236, 242, 207 Ill. Dec. 442, 647 N.E.2d 935; People v. Thompkins (1994), 161 Ill. 2d 148, 157, 204 Ill. Dec. 147, 641 N.E.2d 371.) The petitioner bears the burden of establishing a substantial deprivation of his constitutional rights to be entitled to an evidentiary hearing. ( People v. Albanese (1988), 125 Ill. 2d 100, 104-05, 125 Ill. Dec. 838, 531 N.E.2d 17.) We will disturb the trial court's ruling on defendant's petition for post-conviction relief only if manifestly erroneous. People v. Griffin (1985), 109 Ill. 2d 293, 303, 93 Ill. Dec. 774, 487 N.E.2d 599.

The State contends that several of defendant's claims of ineffective assistance of trial counsel have been waived for failure to raise them on direct appeal. The State asserts that the facts necessary to raise several of these issues were present in the trial record and available to defendant on direct appeal, and that defendant has offered no new material to support these ineffective-assistance-of-counsel claims. Defendant replies that these claims were not raised due to ineffective assistance of appellate counsel. The doctrine of waiver does not bar review of an issue when the waiver arises from ineffective assistance of appellate counsel. ( People v. Guest (1995), 166 Ill. 2d 381, 390, 211 Ill. Dec. 490, 655 N.E.2d 873; People v. Winsett (1992), 153 Ill. 2d 335, 346, 180 Ill. Dec. 109, 606 N.E.2d 1186.) We review the merits of the underlying issues that were not raised on direct review to determine whether appellate counsel's performance was ineffective. We note that unless the underlying issues are meritorious, defendant has suffered no prejudice from counsel's failure to raise them on appeal. Winsett, 153 Ill. 2d at 347.

Ineffective Assistance of Counsel With Respect to Defendant's Motion to Suppress His Confessions

Defendant claims that he was denied his constitutional right to effective assistance of counsel because his trial counsel failed to present evidence to show that his confessions were not voluntary. Defendant also contends that his appellate counsel was ineffective for failure to contest, on direct appeal, the trial court's ruling that the defendant's confessions were voluntary.

Defendant must meet the two prongs of the Strickland test to be successful in his claim of ineffective assistance of counsel. ( Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) The Strickland test requires that the defendant show that (1) counsel's performance fell below an objective standard of reasonableness, and that (2) counsel's deficient performance resulted in prejudice to defendant. If the defendant fails to satisfy either prong, his claim of ineffective assistance of counsel must fail. ( Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.) This court need not determine whether counsel's performance was deficient if we decide that the defendant suffered no prejudice from the alleged errors. Winsett, 153 Ill. 2d at 347.

Defendant asserts that additional evidence which his trial counsel should have presented at the motion to suppress demonstrated that he was intoxicated, insulin-deprived and coerced by police on the night of the murder, and that these factors rendered his confessions involuntary in violation of the fifth and fourteenth amendments (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, ยงยง 2, 10). Defendant also claims that the aforementioned circumstances establish that he did not knowingly and voluntarily waive his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. Defendant argues that his constitutional right to effective assistance of ...

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