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January 25, 1996


The Honorable Justice McMORROW 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: Mcmorrow

The Honorable Justice McMORROW delivered the opinion of the court:

The defendant, Demetrius Henderson, appeals from an order of the circuit court of Cook County dismissing, without an evidentiary hearing, his petition for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122-1 et seq.). Because he was sentenced to death, defendant's appeal lies directly to this court. (134 Ill. 2d R. 651.) For the reasons which follow, we affirm the judgment of the circuit court.


The defendant's convictions stem from incidents which took place on the night of July 12, 1986 and which extended into the early morning hours of July 13, 1986. During the course of a party held that night and morning, defendant and several codefendants sexually assaulted Kimberly Boyd. After the assault, the defendant told his codefendants that they would have to kill the victim because he was "not going to spend no time in jail" for having raped her. The victim was subsequently blindfolded and placed in the trunk of defendant's car. Defendant, and one codefendant, then proceeded to an alley in Chicago where they removed the victim from the trunk, stabbed her over 40 times, and ran over her with the car until they were certain she was dead. A police investigation initiated after the discovery of the body led to the eventual arrest of defendant and a lengthy statement in which defendant admitted to the crimes. Following a jury trial in the circuit court of Cook County defendant was found guilty of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)), aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(a)), and aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10-2(a)).

At the sentencing hearing, the trial judge determined that defendant was 18 years old at the time of the murder, that he had killed the victim during the course of a felony, and, therefore, that he was eligible for the death penalty. (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6).) After hearing evidence in aggravation and mitigation, the judge also determined that there were no mitigating factors sufficient to preclude the imposition of the death penalty, and sentenced defendant to death.

Defendant's murder conviction and death sentence were affirmed by this court on direct appeal. ( People v. Henderson (1990), 142 Ill. 2d 258, 154 Ill. Dec. 785, 568 N.E.2d 1234.) The United States Supreme Court subsequently denied defendant's petition for writ of certiorari. ( Henderson v. Illinois (1991), 502 U.S. 882, 116 L. Ed. 2d 189, 112 S. Ct. 233.) On April 7, 1992, defendant filed a petition with the circuit court of Cook County for relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122-1 et seq.). The State filed a motion to dismiss. The circuit court considered the allegations raised in the post-conviction petition, and after hearing arguments, concluded that the defendant had failed to establish that he was entitled to an evidentiary hearing or post-conviction relief. Accordingly, the court ordered the dismissal of the post-conviction petition. Defendant now appeals that order, alternatively seeking remand for a new trial, remand for a new sentencing hearing, or remand for an evidentiary hearing.


The general rules regarding post-conviction proceedings are familiar. The Post-Conviction Hearing Act provides a remedy for defendants who have suffered a substantial violation of their constitutional rights at trial. ( People v. Brisbon (1995), 164 Ill. 2d 236, 242, 207 Ill. Dec. 442, 647 N.E.2d 935.) A post-conviction proceeding is not an appeal of the underlying conviction; rather, it is a collateral attack on the trial court proceedings in which a defendant attempts to establish constitutional violations that have not been and could not have been previously adjudicated. ( People v. Thompkins (1994), 161 Ill. 2d 148, 157, 204 Ill. Dec. 147, 641 N.E.2d 371.) The defendant bears the burden of establishing that a substantial violation of his constitutional rights occurred. ( People v. Eddmonds (1991), 143 Ill. 2d 501, 510, 161 Ill. Dec. 306, 578 N.E.2d 952.) In addition, this court will not disturb the trial court's ruling on a defendant's petition for post-conviction relief absent a showing of manifest error. People v. Hall (1993), 157 Ill. 2d 324, 331, 193 Ill. Dec. 98, 626 N.E.2d 131.

Defendant makes two principal arguments before this court. First, defendant argues that the standard by which the trial judge determined that he should be sentenced to death was unconstitutionally vague and arbitrary, and was imposed upon him without proper notice. Second, defendant argues that the circuit court erroneously dismissed his post-conviction claims of ineffective assistance of counsel without allowing discovery or conducting an evidentiary hearing.


With respect to defendant's argument regarding the trial judge's basis for imposing the death penalty, defendant contends that the trial judge refused to consider evidence which he presented during the aggravation and mitigation phase of the sentencing hearing. Instead, defendant contends that the judge focused exclusively on defendant's alleged inability to be rehabilitated and, further, that this was the judge's sole basis for imposing the death penalty. Defendant bases these contentions primarily on two comments made by the trial judge near the end of sentencing. In response to evidence that defendant's violent and dysfunctional upbringing made criminal action on his part essentially inevitable, the judge noted that "[a] mitigating factor is not that it is inevitable that the defendant act out his aggressions against people and society, the mitigating factor is that there is some way to rehabilitate and change that and make sure that it will never happen again." Later, the judge also stated: "I don't think that Mr. Henderson is a person that I believe can be rehabilitated."

Defendant asserts that the trial judge's "rehabilitative potential" standard is vague and arbitrary, both facially and as applied, and that it was imposed upon him in violation of his constitutional rights under the eighth and fourteenth amendments (U.S. Const., amends. VIII, XIV). He asserts further that this standard was imposed without proper notice, and that if he had known the trial judge's sole focus was to be on his potential for rehabilitation, he could have prepared substantial evidence in mitigation. In response, the State maintains that defendant's argument is barred by principles of waiver and res judicata.

Initially, we note that defendant's "rehabilitative potential" argument was not squarely addressed in the direct appeal. In that appeal, defendant argued that the trial judge improperly considered the testimony given by a social worker during sentencing in aggravation, when the judge should have considered it in mitigation. The trial judge stated that the social worker's testimony, describing the defendant's violent and dysfunctional family history, caused him to believe that defendant could not be rehabilitated and would remain a danger to society. This court held that it was within the trial judge's discretion to consider the social worker's testimony in aggravation, and that the judge was not required to consider the family history of the defendant solely as mitigation evidence. ( People v. Henderson (1990), 142 Ill. 2d 258, 340-41, 154 Ill. Dec. 785, 568 N.E.2d 1234.) This court made additional comments concerning the trial judge's basis for imposing the death penalty, but the holding of the court on this issue was limited to the determination that the "trial judge did not err in his evaluation of [the social worker's] evidence." Henderson, 142 Ill. 2d at 341.

However, while we agree that defendant's "rehabilitative potential" argument has not been previously considered by this court, we must conclude that the argument has been technically waived. Under the general rule, in a post-conviction proceeding, an issue is deemed waived when it could have been presented on direct appeal but was not. ( People v. Albanese (1988), 125 Ill. 2d 100, 104-05, 125 Ill. Dec. 838, 531 N.E.2d 17.) In the case at bar, defendant's "rehabilitative potential" argument is focused almost entirely on the statements and actions of the trial judge during the sentencing hearing, matters which were part of the trial record. Hence, defendant could have raised the "rehabilitative potential" argument on direct appeal, but chose not to.

In response, defendant points out that among the many exhibits attached to the post-conviction petition are copies of decisions from other capital cases presided over by the same judge who had sentenced defendant to death. In some of those cases, the judge had considered the respective defendant's potential for rehabilitation, while in others he had not. Defendant argues that these cases arc evidence of the vague and arbitrary nature of the judge's "rehabilitative potential" standard and that, because these cases were not part of the record on direct appeal, his argument is not waived. (See People v. Porter (1995), 164 Ill. 2d 400, 404-05, 207 Ill. Dec. 479, 647 N.E.2d 972.) We disagree. It is well established that courts may take judicial notice of matters which are commonly known or, if not commonly known, are readily verifiable from sources of indisputable accuracy. ( Murdy v. Edgar (1984), 103 Ill. 2d 384, 394, 83 Ill. Dec. 151, 469 N.E.2d 1085.) The cases defendant offered with his post-conviction petition are public documents which fall within the category of readily verifiable matters. (See, e.g., May Department Stores Co. v. Teamsters Union Local No. 743 (1976), 64 Ill. 2d 153, 159, 355 N.E.2d 7; Nordine v. Illinois Power Co. (1965), 32 Ill. 2d 421, 428, 206 N.E.2d 709; NBD Highland Park Bank N.A. v. Wien (1993), 251 Ill. App. 3d 512, 520-21, 190 Ill. Dec. 713, 622 N.E.2d 123; Pearce v. Illinois Central Gulf R.R. Co. (1980), 89 Ill. App. 3d 22, 30, 44 Ill. Dec. 196, 411 N.E.2d 102.) If essential to his argument, defendant faced no bar in presenting these additional cases on direct appeal.

Furthermore, even assuming, arguendo, that defendant's "rehabilitative potential" argument has not been waived, it is nevertheless unsupported by the facts or by law. The underlying premise of defendant's argument-that his inability to be rehabilitated was the sole criterion used by the trial judge in imposing the death penalty-is unsupported by the facts before this court. A review of the record indicates that the trial judge plainly considered other factors in addition to the defendant's potential for rehabilitation when the court determined that defendant deserved the death penalty. Indeed, after hearing the evidence offered at sentencing, the trial judge explicitly recited and applied the statutory list of mitigating factors. Ill. Rev. Stat. 1985, ch. 38, par. 9-1(c).

The judge took note of whether a lack of a prior history of criminal activity could mitigate against imposing the death penalty. (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(c)(1).) The judge noted that defendant had struck a woman who attempted to retrieve a videotape from his apartment and, in a separate incident, had shot at her in a car. The judge also noted that defendant had struck his girlfriend and mother of his child in the head with a wrench, injuring her to the extent that she required hospitalization. Based on this evidence, the judge concluded that there was, in fact, "a significant history of prior criminal activity on behalf of Mr. Henderson."

The trial judge also determined that defendant was not under the influence of extreme mental or emotional disturbance (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(c)(2)) and, further, that the victim was not a participant in the defendant's homicidal conduct and did not consent to the homicidal act (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(c)(3)). In considering whether defendant acted under the compulsion of a threat of imminent infliction of death or great bodily harm when he committed his crimes (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(c)(4)), the judge noted,

"There is no such evidence here, in fact, not only was Mr. Henderson not compelled to do as he did, but he took the time to contemplate and reflect about what his acts would be while the girl was in the trunk of the car and while he rode around to decide what type of violence he would perpetrate upon her.

As difficult as it was for me to understand at the time that I heard the evidence, but I heard it again and reviewed the transcript, with Kim Boyd locked and blindfolded and bound in the trunk of the car; he stops his automobile in a neighborhood he was familiar with to give a jump to another friend's car that couldn't be started, he was so overwrought, apparently, as he would like to say, with this quick action and this passionate reaction of violence that he took the time to use his mechanical skills to aid a friend.

I find that is not mitigating in the least, I find it aggravating, and I find that it shows me that Mr. Henderson is a cold and calculating and uncaring individual who has taken this life with planning."

Finally, the trial judge noted that defendant was personally present during the commission of the murder. Ill. Rev. Stat. 1985, ch. 38, par. 9-1(c)(3).

Summarizing, the record is clear that more was considered at sentencing than defendant's ability to be rehabilitated. The judge considered both the aggravating and mitigating evidence presented and made an "individualized determination on the basis of the character of the individual and the circumstances of the crime" (emphasis omitted) ( Zant v. Stephens (1983), 462 U.S. 862, 879, 77 L. Ed. 2d 235, 251, 103 S. Ct. 2733, 2743-44) that defendant deserved the death penalty.

The lack of factual support for defendant's "rehabilitative potential" argument is paralleled by a lack of sound legal support. Defendant argues that the "the rehabilitative standard is vague on its face" because it is unclear under such a standard whether the sentencer is required to consider the potential that the defendant can be rehabilitated to useful citizenship in society, a "higher" standard, or whether the sentencer can consider that the defendant can be ...

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