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January 18, 1996


Appeal from the Circuit Court of Lake County, the Hon. William Block, Judge, presiding.

Rehearing Denied April 1, 1996.

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

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

The defendant, Hector Reuben Sanchez, brings this appeal from an order of the circuit court of Lake County dismissing, without an evidentiary hearing, his petition for post-conviction relief. Because the defendant was sentenced to death for the underlying murder conviction, the present appeal lies directly to this court. 134 Ill. 2d R. 651(a).

Following a jury trial in the circuit court of Lake County, the defendant was convicted of murder, attempted murder, aggravated kidnapping, rape, and deviate sexual assault and was sentenced to death for the murder conviction. This court affirmed the defendant's convictions and sentences on direct appeal ( People v. Sanchez (1986), 115 Ill. 2d 238, 104 Ill. Dec. 720, 503 N.E.2d 277), and the United States Supreme Court denied the defendant's ensuing petition for certiorari ( Sanchez v. Illinois (1987), 483 U.S. 1010, 97 L. Ed. 2d 745, 107 S. Ct. 3240). The defendant then instituted the present post-conviction proceeding. The circuit judge dismissed the defendant's petition without an evidentiary hearing, and this appeal followed.

The defendant's convictions stem from his role in the abduction, assault, and murder of Michelle Thompson and the attempted murder of Thompson's male companion, Rene Valentine. At the defendant's trial, Valentine identified the defendant as one of two men who forced their way into the car in which Valentine and Thompson were sitting outside a nightclub in Gurnee around 12:30 a.m. on February 4, 1983. After the intruders pulled the couple from their car, the defendant shot Valentine, and the defendant and the second man then drove off with Thompson.

Further evidence against the defendant was provided by his codefendant, Warren Peters, who testified on behalf of the prosecution at the defendant's trial. Peters stated that he and the defendant took Thompson to the defendant's home in Zion, where the defendant sexually assaulted the victim. A neighbor, Gene Gonyo, testified that he heard pounding on his back door around 1:30 a.m. on February 4 and saw a man and woman outside his house. Although the weather was wintry and there was snow on the ground, the woman was naked below the waist. Shortly after that, Gonyo saw the man and woman walk toward the defendant's house. The defendant soon appeared at Gonyo's door alone and apologized for the earlier disturbance. Warren Peters testified that the defendant later strangled the victim with a nylon strap, wrapped a coat hanger around her neck, and slammed her head against the basement floor. After the defendant burned the victim's clothing and jewelry in his fireplace, Peters and the defendant transported the body to Wisconsin and left it along a road.

The jury found the defendant guilty of murder, attempted murder, aggravated kidnapping, rape, and deviate sexual assault. The defendant waived his right to a jury for the first stage of the capital sentencing hearing, and the trial judge found the defendant eligible for the death penalty under the murder-in-course-of-felony aggravating circumstance. The defendant elected to have a jury for the second stage of the sentencing hearing. In aggravation, the State presented evidence of the defendant's murder of Sharon Egerer in Milwaukee in May 1975. According to this testimony, the defendant killed Egerer because she had filed a paternity action against him. In mitigation, the defense presented testimony from family members, who described the defendant's personal history and acts of kindness. Testifying in his own behalf at the sentencing hearing, the defendant denied committing either the Thompson murder or the Egerer murder.

On direct appeal this court affirmed the defendant's convictions and sentences. ( People v. Sanchez (1986), 115 Ill. 2d 238, 104 Ill. Dec. 720, 503 N.E.2d 277.) Consolidated with the case was the appeal from a separate proceeding the defendant had initiated pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401), and at that time we remanded for an evidentiary hearing on one of the contentions raised in the section 2-1401 petition. We later affirmed the trial court's denial of the claim. People v. Sanchez (1989), 131 Ill. 2d 417, 137 Ill. Dec. 629, 546 N.E.2d 574.

The defendant instituted the present matter in 1990 by filing a pro se petition for post-conviction relief in the circuit court of Lake County. Counsel was appointed to assist the defendant in the preparation and presentation of his claims, and counsel subsequently filed an amended petition, raising numerous allegations of constitutional error in the proceedings that resulted in the defendant's conviction and death sentence. The State moved to dismiss the defendant's amended post-conviction petition. Following argument by the parties, the judge took the matter under advisement and later dismissed the petition. Before this court the defendant raises more than 25 separate allegations of error, which may be divided among three principal groups: those concerning the defendant's fitness following a suicide attempt, those alleging ineffective assistance of counsel, and those challenging the post-conviction court's denial of certain defense motions.

A proceeding under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, pars. 122-1 through 122-7) represents a collateral challenge to the underlying conviction, not an appeal from the conviction. ( People v. Free (1988), 122 Ill. 2d 367, 377, 119 Ill. Dec. 325, 522 N.E.2d 1184.) To gain post-conviction relief, a defendant must establish a deprivation of Federal or State constitutional rights. ( People v. Thompkins (1994), 161 Ill. 2d 148, 157, 204 Ill. Dec. 147, 641 N.E.2d 371.) Considerations of res judicata and waiver limit the scope of post-conviction review "to constitutional matters which have not been, and could not have been, previously adjudicated." ( People v. Winsett (1992), 153 Ill. 2d 335, 346, 180 Ill. Dec. 109, 606 N.E.2d 1186.) With these principles in mind, we now turn to the defendant's post-conviction claims.

I. Fitness Hearing

The first group of issues raised by the defendant in the present appeal concerns his suicide attempt just prior to the start of the sentencing hearing and the trial court's failure to conduct a fitness hearing at that time. The defendant attempted to commit suicide the morning that the sentencing hearing was scheduled to begin. Following the defendant's treatment and release from the hospital, the sentencing hearing commenced later that day. The defendant now argues that he was not fit to proceed with the penalty hearing and that the trial court erred in failing to conduct a fitness hearing on its own motion.

Facts and circumstances of the defendant's suicide attempt were noted of record on the morning of the scheduled sentencing hearing. The trial judge stated that upon arriving at court he learned that jailers had discovered around 8:30 that morning that the defendant had attempted to commit suicide. The judge said that he had been told that the defendant had broken the lenses in his eyeglasses and had used the broken pieces of glass to cut his arm. The judge also said that the defendant had been released from a local hospital after treatment there for his injuries. The court noted that the defendant was then in a witness room in the courthouse and that defense counsel had had an opportunity to speak with him.

Defense counsel added that the defendant was distraught and had instructed the attorneys to send home the mitigation witnesses whom the defense had planned to call. Counsel also related that the defendant had said that he attempted to take his own life because he thought society was going to do so. Defense counsel requested that the jury be discharged and the hearing postponed until the defendant had "gotten a hold of himself" and was able to cooperate more fully with counsel. Asked by the judge whether the defendant was unable to communicate with his attorneys, counsel replied that the defendant seemed different from when he had spoken to him the preceding night. As evidence of the defendant's inability to communicate and cooperate, counsel said that the defendant had ordered the attorney to do the opposite of what counsel had intended to do. Following this colloquy, the trial judge concluded that there was no bona fide doubt of the defendant's fitness for sentencing and denied the defense motion for postponement of the penalty hearing.

With the post-conviction petition the defendant presented additional evidence documenting the circumstances of his suicide attempt. Medical records submitted by post-conviction counsel showed that the defendant inflicted eight separate wounds on his arms, and these injuries are depicted in photographs that accompany the petition. Other photographs show the condition of the defendant's cell after he was removed from it. The post-conviction petition also includes written reports made by personnel of the county jail. According to one report, during the suicide attempt the defendant located an artery in his left arm and told an inmate, "I can pull it out but I can't cut it." The defendant also consumed sleeping pills that he had hidden from the guards. It took the efforts of several jailers to subdue the defendant following the discovery of the suicide attempt.

A defendant will be considered unfit for trial or sentencing if he is unable to understand the nature and purpose of the proceedings or to assist in his defense. (Ill. Rev. Stat. 1983, ch. 38, par. 104-10; Dusky v. United States (1960), 362 U.S. 402, 402, 4 L. Ed. 2d 824, 825, 80 S. Ct. 788, 788-89; People v. Eddmonds (1991), 143 Ill. 2d 501, 512, 161 Ill. Dec. 306, 578 N.E.2d 952.) The law presumes that a defendant is fit. (Ill. Rev. Stat. 1983, ch. 38, par. 104-10; People v. Brandon (1994), 162 Ill. 2d 450, 456, 205 Ill. Dec. 421, 643 N.E.2d 712.) Once a bona fide doubt of the defendant's fitness exists, however, the trial court is obligated to conduct a hearing to determine the defendant's competency. Ill. Rev. Stat. 1983, ch. 38, par. 104-11(a).

The defendant initially argues that the facts and circumstances known to the trial court at the time of the sentencing hearing were sufficient to compel the judge to hold a fitness hearing on his own motion. We do not reach the merits of this issue, however, for we find that the same question could have been, and was, raised by the defendant in his direct appeal to this court. In the earlier case, the defendant argued that a new jury should have been impaneled for the sentencing hearing because he was then unfit to proceed as a result of the injuries he had sustained in the suicide attempt. This court noted that the defendant had failed to include the issue in his post-trial motion, and the court thus concluded that the defendant had waived the question. The court additionally found that "the trial judge's decision to proceed with the original jury was not so prejudicial as to amount to plain error." Sanchez, 115 Ill. 2d at 271.

The defendant further argues that the new evidence submitted with the post-conviction petition, coupled with the facts known to the judge at the time of the sentencing hearing, was sufficient to raise a bona fide doubt of his fitness. The defendant contends that neither the trial judge nor the defense attorneys were then aware of the full import of his injuries from the suicide attempt.

We do not agree with the defendant that the newly discovered evidence, in combination with the circumstances present at the time of the sentencing hearing, compelled the judge to hold a fitness hearing. As the State observes, a history of suicide attempts does not by itself demonstrate that a defendant is unfit. (See People v. George (1993), 263 Ill. App. 3d 968, 980, 201 Ill. Dec. 250, 636 N.E.2d 682; People v. Lopez (1991), 216 Ill. App. 3d 83, 86-87, 159 Ill. Dec. 577, 576 N.E.2d 246; People v. Stevens (1989), 188 Ill. App. 3d 865, 890, 136 Ill. Dec. 433, 544 N.E.2d 1208.) Although the trial judge might not have known the full extent of the defendant's injuries, the judge was aware of the nature of those injuries and of the defendant's release from the hospital following his treatment there. The judge also knew that defense counsel had met with the defendant that morning and heard counsel's own assessment of the defendant. The new evidence documenting the defendant's suicide attempt does not show that the defendant's capacity to understand the proceedings or to assist in his own defense was diminished or impaired at the time of the sentencing hearing.

The only evidence cited by the defendant that would indicate an inability on his part to cooperate with counsel or to understand the nature of the proceedings occurred when he waived his right to a jury for the first stage of the bifurcated sentencing hearing. The defendant argues that the comments he made on that occasion, together with the documentary evidence of his injuries, further demonstrate his unfitness for sentencing. We have examined the defendant's comments at the time of the jury waiver, however, and find that they do not assist the defendant.

The defendant's jury waiver was taken around noon on the day of the suicide attempt. The defendant notes that at one point during the admonitions he told the judge, "No, I lost you far back, I didn't understand what you're saying," and that at the end of the admonitions he requested a drink of water and said that he thought he was going to faint. The defendant contends that these comments demonstrate his inability to understand the nature of the proceedings and to assist in his own defense.

The defendant's comment that he did not understand what the judge was saying came in response to the judge's efforts to explain the requirements of the murder-in-course-of-felony provision of section 9-1(b)(6), the aggravating circumstance relied on here, and its application when the victim has sustained injuries inflicted by more than one offender. Following the defendant's comment that he did not understand what the judge was saying, defense counsel declared that accountability was not part of this case and questioned the relevance of the admonition. The defendant's request for water and statement that he feared he was going to faint occurred at the end of the lengthy admonitions. Following those remarks, the defendant was provided with water and was permitted to sit down. There was no further discussion concerning the defendant's physical capacity to continue with the proceeding.

We do not believe that the comments cited by the defendant raise a bona fide doubt of his fitness. The full text of the admonitions demonstrates that the defendant's waiver was knowing and intelligent and fails to support the defendant's contention that his responses to the court's inquiries raise a bona fide doubt of his fitness. The defendant's statements were coherent and do not suggest that he failed to understand the admonitions or the purpose or nature of the proceedings. On this record, and considering the new evidence presented by the defendant in support of his claim, we do not believe that the trial judge erred in failing to conduct a fitness hearing.

The defendant next argues that law enforcement officers violated the requirements of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, by misleading defense counsel about the gravity of the defendant's suicide attempt and by withholding evidence documenting the nature and extent of the defendant's injuries. According to Brady, a due process violation may be found in the prosecution's ...

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