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10/18/96 PEOPLE STATE ILLINOIS v. DEWAYNE C. BRITZ

October 18, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
DEWAYNE C. BRITZ, APPELLANT.



The Honorable Justice Freeman delivered the opinion of the court. Justice Harrison, specially concurring.

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

In 1985, petitioner, Dewayne C. Britz, was charged by information in Sangamon County with murder, aggravated kidnapping, aggravated criminal sexual assault, armed robbery, theft and concealment of a homicidal death. Following a jury trial, petitioner was convicted of all charges and sentenced to death. This court affirmed petitioner's conviction and sentence on direct appeal. People v. Britz, 123 Ill. 2d 446, 124 Ill. Dec. 15, 528 N.E.2d 703 (1988). The United States Supreme Court later denied petitioner's writ of certiorari. Britz v. Illinois, 489 U.S. 1044, 103 L. Ed. 2d 242, 109 S. Ct. 1100 (1989).

Petitioner subsequently filed a pro se petition under the Post-Conviction Hearing Act in the circuit court of Sangamon County. See Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq. After being twice amended, the petition was dismissed by the trial court without an evidentiary hearing. Petitioner now appeals from the dismissal pursuant to Supreme Court Rule 651. 134 Ill. 2d R. 651. Based on the following considerations, we affirm.

ISSUES

Petitioner raises essentially four issues on appeal: (1) whether at trial he was denied the effective assistance of counsel guaranteed under the sixth amendment (U.S. Const., amend. VI); (2) whether he was denied this same right at sentencing; (3) whether he made a substantial showing that the right was violated such that he was entitled to an evidentiary hearing; and (4) whether fundamental fairness and the orderly administration of justice require that a fitness hearing be held to determine if medication he was taking one month prior to the commencement of trial affected his defense.

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. Whitehead, 169 Ill. 2d 355, 215 Ill. Dec. 164, 662 N.E.2d 1304 (1996); People v. Silagy, 116 Ill. 2d 357, 365, 107 Ill. Dec. 677, 507 N.E.2d 830 (1987).

BACKGROUND

At trial, the State presented essentially the following evidence. On January 16, 1985, petitioner struck his former employer in the head with a pistol in an attempt to rob him and then drove off with the employer's truck. Petitioner later kidnapped, sexually assaulted and fatally shot Mimi C. Covert. Covert had offered petitioner a ride after his employer's truck stalled on the highway.

After committing the crimes, petitioner purchased a 12-pack of beer and a half-pint of whiskey and drove to a motel where he checked into a room and fell asleep. Pursuant to their investigation, police later arrived at the motel, questioned petitioner and placed him under arrest. A police search yielded Covert's fishing license, her car keys, and the murder weapon. After petitioner was taken into custody, he gave police a statement, informing them where Covert's body could be found.

Police officers and the motel clerk testified that, shortly after the crimes, petitioner had not appeared to be under the influence of either alcohol or drugs. Petitioner's former employer testified also that he had observed petitioner throughout the course of the day prior to the crime, and petitioner had not appeared to be under the influence of either alcohol or narcotics.

Petitioner's statement to police that he had committed the crimes and left Covert's body on the side of a road was introduced into evidence. A witness, who had been housed previously with petitioner in the Sangamon County jail, also testified that petitioner had admitted to him that he had murdered and raped Covert, and consumed only two beers but no drugs on the night of the murder.

Defendant attempted to present three expert witnesses to raise an "insanity defense based upon a chronic disease predicated on the voluntary ingestion of alcohol or drugs." Britz, 123 Ill. 2d at 457. The State, however, filed a motion in limine to prevent the three experts from testifying because their reports contained plaintiff's self-serving hearsay statements regarding the type and quantity of drugs and alcohol he had consumed on the night of the crimes.

Following a hearing, the trial court ruled that the experts could only testify to any conclusions they reached through objective testing; any opinions based on defendant's statements to them would be inadmissible. After objecting, defense counsel presented an offer of proof regarding the proposed testimony of the expert witnesses. Britz, 123 Ill. 2d at 458-60.

The offer of proof showed that Dr. Leslie Fryans, a psychologist, would have testified that petitioner suffered from both a "long-standing chronic" substance abuse disorder and a borderline personality disorder. Fryans opined that based on these mental defects, petitioner would have been unable to conform his conduct to the constraints of the law on the night of the crimes. See Ill. Rev. Stat. 1985, ch. 38, par. 6-2(a). Fryans drew these conclusions after administering objective assessment tests to petitioner and learning his version of the incident and his history of chronic substance abuse. Britz, 123 Ill. 2d at 458-59.

Petitioner also offered the testimony of Joan Stockhoff, a clinical pharmacist, and Dr. Thomas Mulry, a specialist in chemical dependency. Stockhoff would have testified that under the direction of Dr. Mulry, she conducted a drug-history interview with petitioner and learned from him that he had a history of substance abuse. Mulry would have testified that he reviewed Stockhoff's report and interviewed petitioner. Based upon this information, Mulry formed the opinion that petitioner was chemically dependent and alcoholic, that his dependency was chronic and permanent, that he was intoxicated on the night of the crimes and possibly could have had periods of loss of control as well as periods of control. Britz, 123 Ill. 2d at 459-60.

The trial court again ruled that the experts' opinion testimony was inadmissible "if based in material part" on his statements to them regarding his drug and alcohol history and his ingestion of chemicals on the night of the crimes. Britz, 123 Ill. 2d at 459-60. As a result, none of petitioner's three expert witnesses testified during the guilt or innocence phase of trial. Petitioner presented however, five witnesses who testified regarding his use of alcohol and drugs prior to the incident and the observed effect of those chemicals on him. The trial court gave the jury no insanity instruction, finding that no evidence of insanity had been shown. Petitioner was ultimately convicted of all charges and found eligible for the death penalty.

During the mitigation phase of sentencing, petitioner's three experts and two family members testified. The three experts testified substantially similar to their testimony presented in the offer of proof. Defense counsel, however, did not ask Dr. Fryans to state an opinion regarding whether petitioner suffered from an extreme emotional or mental disturbance at the time of the murder. Defense counsel also did not ask Fryans to explain substance abuse and borderline personality disorders to the jury.

The State presented the testimony of Dr. Philip Bornstein, a psychiatrist, and Kenneth Imhoff, a clinical psychologist, in rebuttal. Based on their examinations of petitioner, a review of police reports, the report of an associate, petitioner's statement, and newspaper reports, they testified that petitioner was not suffering from a mental or emotional disturbance at the time of the crime. Bornstein also testified that in his opinion petitioner was not intoxicated, mentally retarded or suffering from a mental disease or defect at the time of the crimes. Bornstein agreed with Fryans that petitioner suffered from a personality disorder, but he defined it as antisocial.

During argument, the prosecutor specifically drew attention to the fact that the statutory mitigating factor of commission of the crime under extreme mental or emotional disturbance was not shown by petitioner's evidence, but was negated by the State's evidence.

Following deliberations, the jury found no mitigating factors sufficient to preclude the imposition of death, and petitioner was sentenced to death.

On direct appeal, an issue was raised concerning the admissibility of petitioner's three expert witnesses' testimony. This court ruled that the testimony was properly excluded by the trial court because the expense did not rely on any reports regarding the issue of his sanity, save petitioner's statements to them. Britz, 123 Ill. 2d at 462-63.

After filing a pro se petition in 1989, petitioner filed an amended petition for post-conviction relief and appointment of counsel in 1992. In June 1993, petitioner filed a second-amended petition for post-conviction relief. Petitioner alleged that trial counsel was ineffective for failing to provide his experts with independent evidence to support the experts' opinions at trial and sentencing. Petitioner also alleged that trial counsel was ineffective for failing to elicit an opinion from Fryans that petitioner suffered from an extreme mental or emotional disturbance and failing to ask Fryans to explain borderline personality and substance abuse disorders to the jury.

Included with the petition were documents pertaining to petitioner's history of drug abuse and treatment and Illinois Department of Corrections records pertaining to this offense. Also included were affidavits from Dr. William Kip Hillman, a clinical psychologist, and petitioner's mother and sister.

Subsequent to the filing of the petition, the trial court directed petitioner's counsel to depose petitioner's trial counsel, Mike Vonnahmen and Jim Pappas, and his primary psychological expert, Dr. Fryans. Following a review of the petition and this information, the trial court found, inter alia, that the failure of trial counsel to provide corroboration of petitioner's drug usage history to the experts did not prejudice the defense; and that the sentencing result was unlikely to have been any different even if trial counsel had presented the indicated mitigation evidence. The trial court accordingly dismissed the second-amended petition. Petitioner filed a motion for reconsideration which included affidavits from one of his former high school teachers and two high school administrators. The trial court denied the motion for reconsideration. This appeal followed.

ANALYSIS

I. Ineffective Assistance of Trial Counsel During

Guilt-Innocence Phase

The Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, 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. A proceeding under the Act is not an appeal, but a collateral attack on a prior conviction and sentence. People v. Mahaffey, 165 Ill. 2d 445, 452, 209 Ill. Dec. 246, 651 N.E.2d 174 (1995). 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 have been. Whitehead, 169 Ill. 2d at 370.

Petitioner contends that he was denied the effective assistance of counsel guaranteed by the sixth amendment at trial. Petitioner claims that trial counsel was ineffective for failing to provide his experts with corroborating data to support their opinions at trial.

During his deposition at the post-conviction stage, Jim Pappas, one of petitioner's trial attorneys, testified that trial counsel knew prior to trial about the importance and necessity of providing corroborative documentation to buttress expert witnesses' testimony. Pappas testified that both he and Mike Vonnahmen, petitioner's other trial attorney, believed that it was doubtful that the insanity instruction would be given by the trial court because Fryans' opinion was based solely upon petitioner's statements. Pappas could not recall, but he believed that Vonnahmen had subpoenaed any available records. Pappas also believed that Vonnahmen had talked to petitioner's relatives and investigated any "past problems" that petitioner had.

During his deposition, Vonnahmen confirmed Pappas' recollection. Vonnahmen testified that he conducted no investigation to locate information that would corroborate expert opinion that petitioner suffered from a disorder. Vonnahmen acknowledged that, although he knew petitioner had a prior criminal record and had been incarcerated, he did not subpoena any related documents or any hospital, psychiatric or psychological records. Vonnahmen also acknowledged that he did not obtain the following specific documentation which was included with the post-conviction petition:

(a) a police report and hospital admission report dated May 30, 1980, stating that petitioner was found on a highway suffering from an apparent drug overdose from glue, possibly "speed" and other controlled substances; (b) a hospital report dated August 2, 1980, which indicated that petitioner consumed various drugs;

(c) court records from an unrelated 1980 case, indicating that pursuant to court order, petitioner was evaluated by Treatment Alternatives to Street Crimes (T.A.S.C.) to determine whether he was a drug addict, that he had a history of substance abuse, and was subsequently determined to be a drug addict displaying a "classic poly-drug abuse pattern [ sic ] anything and everything";

(d) additional records, indicating that petitioner received probation conditioned upon successful completion of a T.A.S.C. residential drug treatment program;

(c) T.A.S.C. records indicating that petitioner suffered from family and living situation problems, had lost self respect, felt insecure and relied on drugs for support;

(f) Department of Corrections records indicating that between November 1, 1982, and June 7, 1983, petitioner underwent five psychiatric evaluations, and stating, in September 1985, that he had "mental/psyche" problems and was suicidal from 1979 to 1984.

Dr. Fryans was shown these documents during his deposition. Fryans testified that if the documents had been provided to him by trial counsel before petitioner's trial in 1985, he would have relied on the documents to support his opinion that petitioner suffered from ...


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