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02/15/96 PEOPLE STATE ILLINOIS v. JOHN E. WHITEHEAD

February 15, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE
v.
JOHN E. WHITEHEAD, APPELLANT.



Appeal from the Circuit Court of Grundy County, the Hon. Louis J. Perona, Judge, presiding.

Rehearing Denied April 1, 1996.

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

The opinion of the court was delivered by: Freeman

The Honorable Justice FREEMAN delivered the opinion of the court:

Following a jury trial in the circuit court of Grundy County, defendant, John E. Whitehead, was convicted of murder and aggravated kidnapping (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1, 10-2) and sentenced to death and a term of 30 years imprisonment. On direct appeal, this court affirmed defendant's convictions and sentences. ( People v. Whitehead (1987), 116 Ill. 2d 425, 108 Ill. Dec. 376, 508 N.E.2d 687.) The United States Supreme Court later denied a petition for a writ of certiorari ( Whitehead v. Illinois (1987), 484 U.S. 933, 98 L. Ed. 2d 266, 108 S. Ct. 307) and a petition for rehearing ( Whitehead v. Illinois (1988), 484 U.S. 1021, 98 L. Ed. 2d 685, 108 S. Ct. 737). Over a period of years, defendant filed several amended petitions under the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1981, ch. 38, par. 122-1 et seq.) in the circuit court of Grundy County. Subsequent to the trial court's dismissal of the second-amended petition, defendant filed notice of direct appeal to this court. During the pendency of that appeal, the trial court dismissed a third-amended petition and defendant again filed notice of direct appeal to this court. We have consolidated the appeals. (134 Ill. 2d R. 366(a).) For reasons which follow, we affirm.

FACTS

The factual details surrounding the murder and aggravated kidnapping of five-year-old Vickie Wrobel are recounted in Whitehead, 116 Ill. 2d 425, 108 Ill. Dec. 376, 508 N.E.2d 687. The State's evidence against defendant included eight statements by defendant, oral, written and tape-recorded in which he admitted kidnapping, sexually assaulting and killing the Wrobel child. Defendant's statements were in turn corroborated by a multitude of physical and circumstantial evidence. We present only those facts necessary to resolve issues relevant to this post-conviction appeal.

STANDARD OF REVIEW

On review of matters decided under the Post-Conviction Hearing Act, determinations of the trial court will not be disturbed unless manifestly erroneous. See People v. Silagy (1987), 116 Ill. 2d 357, 365, 107 Ill. Dec. 677, 507 N.E.2d 830.

PROCEDURAL BACKGROUND

On May 25, 1988, defendant filed a pro se petition under the Post-Conviction Hearing Act in the circuit court. With the assistance of appointed counsel, defendant later filed an amended petition and a second-amended post-conviction petition and an addition. The second-amended petition claimed a violation of the right to the effective assistance of counsel (U.S. Const., amend. VI; Ill. Const. 1970, art. I, ยง 8) in that trial counsel: mishandled the defenses of insanity, intoxication and reasonable doubt; failed to adequately preserve a record of error; failed to vigorously argue present or investigate available evidence in support of a reasonable doubt defense; failed to object to improper prosecutorial remarks; and was provided no capable assistance to investigate or develop mitigation evidence for sentencing. The addition to the petition claimed that separate appellate counsel was ineffective for failing to raise on direct appeal the ineffective assistance of trial counsel. Defendant's affidavit and the affidavit of Wayne M. McFarland, his trial counsel, were attached to the second-amended petition.

On February 7, 1991, the trial court dismissed the second-amended petition and addition, without an evidentiary hearing, finding that the claim of trial counsel's ineffectiveness was waived for failure to raise it on direct appeal. The trial court additionally ruled that both trial and appellate counsel assisted effectively. Before entry of the judgment, defendant unsuccessfully requested that the ruling be stayed to allow him to file an amended pleading with the assistance of the Capital Resource Center, a recently created branch of the Illinois State Appellate Defender's office. Post-conviction counsel indicated that they had just become aware of the Center's existence and that it provides investigative services and mitigation and capital defense expertise. Defendant subsequently filed a motion for reconsideration, asserting that the trial court had limited the investigative resources available to post-conviction counsel by declining to rule that they might obtain reimbursement of their costs; asserting that the second-amended petition was incomplete; and requesting 120 days to utilize the resources of the Capital Resource Center to supplement the petition. The trial court denied the motion for reconsideration. On April 24, 1991, defendant filed notice of appeal from the dismissal of the second-amended petition with addition and the denial of the motion for reconsideration. 134 Ill. 2d Rules 603, 651(a).

On November 13, 1991, defendant filed a third-amended post-conviction petition in the circuit court of Grundy County with the assistance of the Capital Resource Center. The third-amended petition claimed a violation of the sixth amendment right to an impartial jury (U.S. Const., amend. VI) because several jurors had become upset and complained to the clerk of the circuit court during the trial that their names and addresses had been published in the local newspaper, and the jury had also witnessed an emotional outburst by the victim's mother from the witness stand. The petition also claimed a violation of due process (U.S. Const., amend. XIV) because one juror revealed that, before evidence was presented at trial, he had conceptualized defendant as being equipoised on a gradated scale extending between unequivocal guilt and unequivocal innocence. The petition also repeated the second-amended petition's claims of trial and appellate counsel's ineffective assistance. Defendant supplemented his previous claim concerning trial counsel's ineffectiveness with the additional claim that trial counsel's handling of the insanity defense resulted in defendant's inability to testify in support of the reasonable doubt defense. Defendant also supplemented his arguments against procedural default of the claims. The affidavits of various individuals with legal and mitigation expertise were attached to the third-amended petition.

On November 13, 1991, defendant filed a motion in this court requesting a stay of the appeal, pending disposition of the third-amended petition. On November 19, 1991, this court stayed the appeal, and later extended the stay to April 19, 1992. A further extension was later denied. On June 8, 1992, defendant filed his initial appellate brief. The State responded by brief on September 14, 1992. On December 1, 1992, defendant filed a reply brief.

On May 15, 1992, the State answered the third-amended petition. In September 1992, the trial court set the matter for hearing when the State did not move to dismiss. The trial court later granted leave to file a motion to dismiss. In addition to arguing primarily the merits, the motion stated that the due process and right to impartial jury claims in the third-amended petition were waived by defendant's failure to raise them on direct appeal or in prior post-conviction petitions. Defendant responded that the prior post-conviction pleadings were dismissed for procedural default, their merits not having been addressed. Accordingly, the petition's dismissal should not form the basis for waiver of additional issues. Moreover, defendant contended that he was not reasonably and adequately assisted in preparing the second-amended petition (see People v. Wright (1992), 149 Ill. 2d 36, 64, 171 Ill. Dec. 424, 594 N.E.2d 276; People v. Owens (1990), 139 Ill. 2d 351, 364, 151 Ill. Dec. 522, 564 N.E.2d 1184), as demonstrated by comparing the petitions and their support as well as by appointed counsel's requests to file a third-amended petition utilizing the assistance of the Capital Resource Center. Defendant additionally pointed out that successive petitions have been allowed where prior proceedings were fundamentally deficient.

On December 12, 1992, the trial court dismissed the third-amended petition finding that most of the claims, including that of trial counsel's ineffective assistance and the violations of the right to impartial jury and due process, were waived for failure to raise them on direct appeal. The trial court found that the claim of appellate counsel's ineffective assistance was sufficient to warrant an evidentiary hearing and that there had been no previous opportunity to raise that claim. The trial court additionally entered findings that previous post-conviction pleadings had been dismissed on procedural grounds and that defendant had asserted that his representation in those proceedings was inadequate. On April 29, 1994, after a hearing concerned with the effective assistance of appellate counsel, the trial court denied the petition. On June 13, 1994, defendant filed notice of appeal from the denial of the third-amended petition, and on August 22, 1994, we consolidated the appeals (134 Ill. 2d R. 366 (a)).

At this juncture, we note that the Post-Conviction Hearing Act allows for amendment of a post-conviction petition (see Ill. Rev. Stat. 1981, ch. 38, par. 122-5), yet contemplates the filing of one post-conviction petition (see Ill. Rev. Stat. 1981, ch. 38, par. 122-3; see also People v. Flores (1992), 153 Ill. 2d 264, 274, 180 Ill. Dec. 1, 606 N.E.2d 1078). Section 122-3 provides that "any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." (Ill. Rev. Stat. 1981, ch. 38, par. 122-3.) Consistent with section 122-3, this court has held that a ruling on a post-conviction petition has res judicata effect with respect to all claims that were raised or could have been raised in the initial petition. ( People v. Free (1988), 122 Ill. 2d 367, 375-76, 119 Ill. Dec. 325, 522 N.E.2d 1184; see also Flores, 153 Ill. 2d at 274.) Nonetheless, section 122-3 is not an ironclad bar to multiple post-conviction petitions. ( Free, 122 Ill. 2d at 376.) The filing of successive petitions has been allowed where the proceedings on the initial petition were deficient in some fundamental way. (See Flores, 153 Ill. 2d at 273-74 (citing cases); Free, 122 Ill. 2d at 376 (citing cases).) Further, this court has also held that the objective of finality must yield in circumstances where fundamental fairness so requires. See People v. Slaughter (1968), 39 Ill. 2d 278, 285, 235 N.E.2d 566.

The procedural circumstances of this case are somewhat unusual. It is not clear that the trial court construed the third-amended petition as a separate and successive petition. The trial court ruled on issues it had previously decided. Also, when presented with the opportunity to find remaining issues waived on the basis of a successive filing, the trial court specifically declined to do so. Defendant's first appeal before this court also apparently remained dormant for three years during the pendency of the proceedings on the third-amended petition and is now consolidated. Consequently, in our view, given these unusual circumstances and to ensure that defendant obtains one complete opportunity to show a substantial denial of constitutional rights (cf. People v. Logan (1978), 72 Ill. 2d 358, 21 Ill. Dec. 186, 381 N.E.2d 264), the third-amended petition stands.

ANALYSIS

I.

Ineffective Assistance Of Trial Counsel At Trial And Sentencing

Defendant initially argues that he sufficiently alleged meritorious claims, asserting the ineffective assistance of trial counsel, in both his second- and third-amended petitions. Defendant contends the trial court erred in dismissing the claims of ineffectiveness of trial counsel on the basis of waiver for failure to raise them on direct appeal. Defendant asserts the claims were not waived for either or both of two reasons: (1) either the claims were supported by facts outside the record; and/or (2) separately appointed appellate counsel rendered ineffective assistance by not raising the claims on direct appeal. Defendant additionally asserts that the trial court erred in dismissing his second-amended petition and the claims of trial counsel's ineffectiveness raised in the third-amended petition without holding an evidentiary hearing.

The Post-Conviction Hearing Act (Ill. Rev. Stat. 1981, ch. 38, par. 122-1 et seq.) provides a remedy to criminal defendants who claim that substantial violations of constitutional rights occurred in their trial ( People v. Owens (1989), 129 Ill. 2d 303, 307, 135 Ill. Dec. 780, 544 N.E.2d 276). A proceeding under the Act is not an appeal but a collateral attack on a judgment. ( People v. James (1986), 111 Ill. 2d 283, 290, 95 Ill. Dec. 486, 489 N.E.2d 1350.) The purpose of the proceeding is to permit inquiry into constitutional issues involved in the original conviction that have not already been adjudicated or could not have been. ( Silagy, 116 Ill. 2d at 365; see also People v. Gaines (1984), 105 Ill. 2d 79, 87, 85 Ill. Dec. 269, 473 N.E.2d 868.) The burden is on the defendant to establish a substantial deprivation of constitutional rights.

A defendant filing a post-conviction petition is not entitled to an evidentiary hearing as a matter of right. (Ill. Rev. Stat. 1981, ch. 38, pan 122-6; see Silagy, 116 Ill. 2d at 365.) An evidentiary hearing should be conducted when the petitioner makes a "substantial showing of a violation of constitutional rights," which means that the petition's allegations must be supported by the record or by accompanying affidavits. ( Silagy, 116 Ill. 2d at 365.) Denial of an evidentiary hearing is however a matter of discretion, and the trial court's decision will not be reversed absent such an abuse. See People v. Hanrahan (1985), 132 Ill. App. 3d 640, 641, 87 Ill. Dec. 892, 478 N.E.2d 31.

A. Waiver

The Act also provides that any claim of a substantial denial of constitutional rights not raised in the original or an amended petition is waived. (Ill. Rev. Stat. 1981, ch. 38, par. 122-3.) Further, a defendant may not prevail in a post-conviction proceeding on constitutional claims which he has previously waived. ( People v. Eldredge (1969), 41 Ill. 2d 520, 244 N.E.2d 151.) Furthermore, it is well established that determinations of the reviewing court on the prior direct appeal are res judicata as to issues actually decided and issues that could have been presented on direct appeal, but were not, are deemed waived. (See People v. Albanese (1988), 125 Ill. 2d 100, 105, 125 Ill. Dec. 838, 531 N.E.2d 17; Silagy, 116 Ill. 2d at 365; People v. French (1970), 46 Ill. 2d 104, 262 N.E.2d 901.) The application of the waiver rule is not, however, a jurisdictional or absolute bar to review of procedurally defaulted claims, but is rather a rule of administrative convenience. (See People v. Owens (1989), 129 Ill. 2d 303, 317, 135 Ill. Dec. 780, 544 N.E.2d 276.) Thus, the strict application of res judicata and waiver will be relaxed "where fundamental fairness so requires." ( People v. Gaines (1984), 105 Ill. 2d 79, 91, 85 Ill. Dec. 269, 473 N.E.2d 868; People v. Hamby (1968), 39 Ill. 2d 290, 291, 235 N.E.2d 572.) Further, where the alleged waiver stems from incompetency of appointed counsel on appeal, the doctrine is also relaxed. ( People v. Barnard (1984), 104 Ill. 2d 218, 229, 83 Ill. Dec. 585, 470 N.E.2d 1005; People v. Frank (1971), 48 Ill. 2d 500, 503, 272 N.E.2d 25.) The rule is also relaxed in instances where the facts relating to the claim do not appear on the face of the original appellate record (see People v. Eddmonds (1991), 143 Ill. 2d 501, 528, 161 Ill. Dec. 306, 578 N.E.2d 952; see also People v. Thomas (1967), 38 Ill. 2d 321, 231 N.E.2d 436 (holding res judicata does not preclude consideration of constitutional questions in post-conviction proceedings which, by their nature, depended upon facts not found in record)) and could not have been supplemented to that record under Supreme Court Rule 329; 134 Ill. 2d R. 329; see People v. Jones (1985), 109 Ill. 2d 19, 23, 92 Ill. Dec. 552, 485 N.E.2d 363). Obviously, a claim may survive the bar of waiver on the basis of any one of these three well-established exceptions.

With respect to the third exception, as a matter of clarification, it is not so much that such a claim "could not have been presented" or "raised" by a party on direct appeal, but rather that such a claim could not have been considered by the reviewing court because the claim's evidentiary basis was de hors the record. (Cf. People v. Hall (1993), 157 Ill. 2d 324, 336, 193 Ill. Dec. 98, 626 N.E.2d 131 (stating that defendant could not have "raised" issue in direct appeal since affidavits supporting issue not part of record); People v. Cobb (1986), 150 Ill. App. 3d 267, 270, 103 Ill. Dec. 382, 501 N.E.2d 699.) Thus, the exception recognizes that waiver ought not to preclude that species of claim which, though theoretically capable of being "presented" on appeal, is nonetheless incapable of consideration by a reviewing court because of rules governing the scope of appellate review. (See People v. Edwards (1978), 74 Ill. 2d 1, 7, 23 Ill. Dec. 73, 383 N.E.2d 944 (reviewing court restricted in examination to record); People v. Anthony (1963), 28 Ill. 2d 65, 70, 190 N.E.2d 837 (matters not of record cannot be considered on appeal).) Further, the exception saves those claims irrespective of whether their supporting facts are available as a practical matter at the time of the direct appeal. The recent decisions of People v. Erickson (1994), 161 Ill. 2d 82, 204 Ill. Dec. 231, 641 N.E.2d 455, and People v. Thomas (1995), 164 Ill. 2d 410, 207 Ill. Dec. 490, 647 N.E.2d 983, do not change these rules. That factual information presented in documents in support of a post-conviction petition was not made a part of the trial record "explains" why the claim could not have been presented for consideration on direct appeal.

In the appellate brief arguing the merits of the second-amended petition and its addition, defendant conceded that "some" of the claims of trial counsel's ineffectiveness were apparent from the record. Defendant argued only that the claim concerning the reasonable doubt defense, trial counsel's failure to vigorously argue and present or investigate available evidence, and the claim concerning trial counsel's ineffectiveness at sentencing, counsel's incapacity to investigate and develop mitigation evidence, were dependent on matters de hors the record. In the appellate brief in support of the third-amended petition, defendant apparently takes the position that all of the ineffectiveness claims, with the exception of trial counsel's failure to object to improper prosecutorial comments, and failure to preserve a record of error, are dependent upon facts outside the record. According to defendant, virtually all of the ineffectiveness claims survived the bar of waiver on that basis and should not have been dismissed without a hearing.

The State argues that the ineffectiveness claims were nonetheless waived under this attempted exception unless their factual support also "explains" why the claims could not have been raised on direct appeal. See Thomas, 164 Ill. 2d 410, 207 Ill. Dec. 490, 647 N.E.2d 983.

We first consider whether defendant's ineffectiveness claims survived waiver based on the exception made for claims dependent upon facts outside the record.

Defendant was represented at trial by McFarland, the public defender of Grundy County, and John V. Hanson, an assistant public defender, who was appointed by the court to assist McFarland. Defendant's second- and third-amended petitions claimed that trial counsel was ineffective for mishandling the defenses of insanity, intoxication and reasonable doubt. Specifically, defendant claimed that trial counsel presented defenses that were inconsistent, insanity or intoxication along with reasonable doubt, and then without sound strategy they abandoned the insanity defense. Defendant claimed that the abandonment of the insanity defense resulted in defendant's inability to testify to offer the best evidence of an intoxication defense and the only available evidence of the circumstances surrounding his many statements to police

In support of these interrelated arguments, defendant included with the third-amended petition the affidavits of several persons. James P. Carey, a professor of criminal law. Randolph N. Stone and Howard L. Weitzman, criminal law specialists, and Roger J. Kiley, a former trial judge, attested to their opinions that presenting a reasonable doubt defense and either an insanity or intoxication defense is fundamentally unsound and would prevent the rendition of effective assistance of counsel, and that the breach of a promise to call witnesses or present certain defenses is ineffective assistance of counsel per se or can seriously undermine a defense counsel's credibility. Linda Meza, a social psychologist and trial consultant, expert in jury selection procedures, reviewed the voir dire of the jury and opening statements. Meza attested to her opinion regarding trial counsel's voir dire questioning concerning insanity and intoxication defenses, and the effect upon the jurors of that questioning and counsel's failure to present any insanity evidence.

Following dismissal of the claims of trial counsel's ineffectiveness, the trial court held the hearing concerning the claim of appellate counsel's ineffectiveness. At the hearing, Professor Carey testified that when he previously made his affidavit, he had not known anything about defendant's case. Carey testified that since that time, he had reviewed the opening and closing statements of both parties. Carey testified that in his opinion simultaneously presenting a reasonable doubt defense and an insanity defense constitutes ineffective assistance of counsel, and that the State's closing argument in the case illustrated the adverse consequences of doing so. Carey also testified that trial counsel's presentation of both theories in opening and closing arguments represented defective performance.

Kyle Wesendorf, a criminal appeals attorney employed by the Cook County public defender, testified that she had reviewed the entire trial record. Wesendorf was asked whether she would have raised on appeal the issue of trial counsel's ineffectiveness. In response, Wesendorf testified that, in this case, in her opinion, trial counsel's presentation of the defenses of insanity or intoxication and reasonable doubt constituted ineffective assistance of counsel because the defenses were done badly. Wesendorf additionally testified that in her opinion the failure here to present evidence of insanity also constituted ineffective assistance of counsel.

We do not find that defendant's claim of trial counsel's ineffectiveness in handling the insanity, intoxication and reasonable doubt defenses "depended upon" facts found in these affidavits. ( Thomas, 38 Ill. 2d at 324.) This particular ineffectiveness claim depended no more on these affidavits than on other written legal opinion concerning matters of law that was available for consideration by this court on direct appeal. Like the trial court in People v. Eddmonds (1991), 143 Ill. 2d 501, 537, 161 Ill. Dec. 306, 578 N.E.2d 952, we do not find that this particular proffered information necessarily assists in determining whether trial counsel performed competently any more than that information already apparent of record. The proffered information consists merely of expert opinion critiquing what trial counsel did, in fact, do at trial as opposed to what information trial counsel ought to have investigated or presented. The underlying purpose of the exception recognized in Thomas was to permit post-conviction review of matters which were unreviewable on direct appeal because those matters depended upon facts not within the trial record. This particular ineffectiveness claim, that trial counsel mishandled the three defenses, does not depend on the fact that an expert believes that to be the case. Accordingly, the ineffectiveness claim arguing the mishandling of defenses cannot survive waiver on this basis. Notably, the arguments forming this claim are those that defendant previously conceded were dependent upon facts apparent of record.

Defendant also claimed that trial counsel failed to deliver on a promise to the jury to present evidence of reasonable doubt and failed to vigorously argue, present or investigate available evidence in support of the reasonable doubt defense. Defendant contended that, because of the State's evidence, trial counsel intended to rely at trial primarily on insanity and intoxication defenses. Defendant contended that because of this focus, trial counsel failed to vigorously pursue a reasonable doubt defense even though counsel was aware of many facts and circumstances pointing to its viability. According to defendant, trial counsel did not utilize admitted evidence to "communicate" to the jury that William Starbuck or someone else committed the crime and "unreasonably ignored opportunities to weave the facts together" into a reasonable doubt defense.

In addition, trial counsel allegedly failed to present or elicit evidence that he and LeAllen Starbuck had been sexually involved; that she was pregnant with his child; and that William Starbuck, her husband, had access to Esther Harmon's car keys and defendant's shirt found in the Mazon River. Defendant also claimed that trial counsel did not present hydrology evidence that was promised in opening statement and evidence of the involuntariness of his statements and was not provided adequate investigative assistance to discover evidence concerning an unidentified handwritten address found on a note in the pocket of his shirt and other unspecified, exculpatory evidence from William Starbuck. In support of this ineffectiveness claim, defendant attached his own and McFarland's affidavits which spoke primarily to the claimed failures to present certain evidence, not the failures to vigorously argue, communicate, and highlight evidence to the jury.

In his affidavit, defendant stated that, although he told trial counsel that LeAllen had said she was pregnant with defendant's child and trial counsel assured him that proof of that fact could be presented at trial, trial counsel did not obtain and present that evidence. In contrast, however, neither defendant nor McFarland clearly stated in their affidavits what evidence was available to show that William Starbuck had access to Harmon's keys and defendant's shirt beyond the already admitted evidence that defendant and Starbuck resided in the same house. Moreover, while McFarland's affidavit provided much new information from outside the record concerning the inadequacy of the investigative assistance he had received, neither affidavit identified the information defendant expected to recover from an investigation of Starbuck or the unidentified written address on the note. Also, it is apparent of record that trial counsel actually hired a hydrologist who conducted tests of the Mazon River, but the results were neither supportive of the defense nor damaging to the State. It is also apparent from the record, in proceedings on the motion to suppress, what evidence defendant would have likely provided if he had been called to testify regarding the circumstances of his statements to police. Nonetheless, despite these deficiencies, we cannot dispute that the affidavits contained information outside the record generally supporting the claim concerning argument and evidence of reasonable doubt. Accordingly, this ineffectiveness claim was not waived.

Defendant additionally claimed that he was provided ineffective assistance at sentencing because trial counsel was unable and did not attempt to investigate and present available mitigation evidence. At trial, counsel had requested the appointment of expert assistance, in the nature of a social psychologist or social worker, to develop mitigation evidence. The trial court had denied the request, ruling that such development could be done by an attorney or by William Sulkey, the investigator assigned to the case. Defendant's and trial counsel's affidavits supported also this claim.

In his affidavit, defendant stated that trial counsel had advised him that it would be most advantageous if he called at sentencing as few mitigation witnesses as possible. McFarland recounted the many difficulties he experienced obtaining adequate investigation from Sulkey, and stated that Sulkey did not possess the necessary skills, knowledge or expertise to function as the mitigation expert he had requested.

The affidavits of Dr. Linda C. Wetzel, a psychologist, Dr. Michael Levins, a psychologist, and Cynthia Hines, a mitigation specialist, were attached to the third-amended petition. Wetzel reviewed defendant's electroencephalogram (EEG), his mental health, other personal background records, and other materials related to the case. Wetzel concluded that there was a likelihood that defendant suffered from Episodic Dyscontrol associated with a partial complex seizure disorder. Her affidavit referred to this condition as a brain disease. Levins reviewed similar materials, interviewed defendant, diagnosed him as a pedophiliac, and concluded it was possible that defendant had an organic brain impairment. Wetzel and Levin stated that they were requested by Hines to evaluate defendant's background and ...


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