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December 19, 1996


The Honorable Justice Nickels delivered the opinion of the court. Justice Freeman, dissenting.

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

This case arises from the dismissal of a petition brought under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1992)). In 1990, defendant, Kathy Gaultney, was convicted of the first degree murder of her husband and was sentenced to 45 years in prison. The conviction and sentence were affirmed by the appellate court on direct appeal in 1992. No. 5-90-0583 (unpublished order under Supreme Court Rule 23). Defendant filed a petition for leave to appeal to this court, which was denied. People v. Gaultney, 148 Ill. 2d 647, 183 Ill. Dec. 25, 610 N.E.2d 1269 (1993).

On August 6, 1993, defendant filed a pro se post-conviction petition in the circuit court of Madison County. On August 11, 1993, the State filed a motion to dismiss the petition. The circuit court dismissed the petition as frivolous and patently without merit on November 1, 1993. The appellate court affirmed the dismissal of the petition. No. 5-93-0816 (unpublished order under Supreme Court Rule 23). We granted defendant's petition for leave to appeal. 155 Ill. 2d R. 315. We affirm.


We will summarize the evidence presented at trial only as needed to address the issues raised in this appeal. On September 22, 1989, defendant's husband, Keith Gaultney, was killed after being shot twice in the head at the residence he shared with defendant. Defendant called the police around 10 p.m. to report a burglary at her home. When the police arrived, they found the victim lying face down in his bed, shot twice and apparently killed during the burglary. A drawer had been removed from a dresser in the room and was resting partially on the victim's legs. Some of the contents of the drawer had spilled onto the bed.

The police interviewed defendant. She told them that she left the residence about 10 minutes before 7 p.m. She said that, when she left, she saw the victim in the bedroom, asleep on the bed with the television on. She returned around 10 p.m. to find the victim dead. Defendant also told the police that the victim had probably eaten between 4 p.m. and 6 p.m. A pathologist estimated, in an autopsy report, that the victim had died roughly within an hour after eating a meal, based on the contents of the victim's stomach.

The State called Rachel Lauer, defendant's daughter, to testify at trial. Rachel was also the victim's stepdaughter. At the time of the murder, she was in seventh grade and lived with her mother and stepfather. Rachel testified that she was at the house around 7 p.m. with her friend, Misty Robards. At that time, her mother was getting ready to leave and said that she wanted to lock the doors. Rachel's mother told her to leave and to be back at 12 a.m.

Rachel and Misty remained in the neighborhood to wait for Rachel's mother to leave. According to Rachel, they wanted to return to the house after defendant left to get some money from the victim. They were going to take the money out of the victim's wallet while he slept. Rachel and Misty watched the house for 15 to 20 minutes until defendant left. At some point, they encountered Jodie White, another friend. After Rachel's mother left, Rachel and Misty returned and entered the house. Jodie remained outside. While in the house, Rachel went by the bedroom door. She did not enter the bedroom. Rachel saw a dresser drawer and its contents scattered around the bedroom. She saw some of her mother's jewelry lying on the bed. The bedroom light was off but the television was on and blaring loudly. Rachel saw the victim's feet but the rest of the victim was "covered up." Rachel thought that her mother and the victim had been involved in a fight and that the victim was sleeping. In response to a question from trial counsel, Rachel testified that she did not hear any noise emanating from the bedroom other than the television. Rachel's testimony suggested that the victim was already dead when her mother left the house.

Misty Robards also testified. Her testimony was similar to Rachel's. Misty, however, testified that she and Rachel returned to the house twice after Rachel's mother left. First, they returned with Jodie White. Misty testified that Rachel went into the house by herself but came back outside after a short time. Rachel could not find the victim's wallet. Rachel and Misty returned to the house a second time. When they returned, both went into the house this time. Rachel and Misty entered the house through the back door, which was unlocked. Misty testified that she and Rachel walked past the bedroom. Her testimony regarding the condition of the bedroom and the victim was essentially the same as Rachel's.

In the post-conviction petition, defendant claimed that she was denied effective assistance of counsel at trial. Specifically, defendant alleged that her trial counsel failed to ask Rachel whether she heard the victim snoring in the bedroom on the night of the murder. According to defendant, Rachel told trial counsel before trial that she heard the victim snoring when she entered the house the first time. Trial counsel did not ask her about this snoring at trial. Defendant alleged that this testimony would have shown that defendant had not killed the victim before she left the house and that another individual must have killed the victim.

In support of the petition, defendant submitted five affidavits from herself and from relatives. Rachel allegedly told these individuals that she heard the victim snoring when she first entered the house. Defendant also submitted an affidavit from trial counsel, who stated that Rachel told him before trial that she had heard the victim snoring. Defendant submitted an affidavit from another attorney, who talked to someone over the phone claiming to be Rachel Lauer. Defendant, however, did not submit an affidavit from Rachel, the individual who was critical to defendant's claim.

The State filed a motion to dismiss the post-conviction petition on August 11, 1993. The State sought dismissal on four general grounds: (1) the petition was untimely; (2) the petition failed to present a substantial showing of a violation of defendant's constitutional rights; (3) defendant was merely trying to relitigate the jury trial proceedings; and (4) the claims in the petition were barred by res judicata or were waived. The motion was short and contained "boilerplate" language. The State did not discuss any of the facts of the case in the motion. The State cited no case law in support of the motion. The State asked that the petition be dismissed without an evidentiary hearing.

The circuit court dismissed the petition as frivolous and patently without merit. The dismissal order stated:

"This cause comes before the court on Defendant's Petition for Post Conviction Relief pursuant to 725 ILCS 5/122-2.1. The Court having reviewed the Petition and affidavits attached thereto, the trial transcript, and the opinion of the 5th District Appellate Court finds as follows:

Defendant was convicted of the offense of Murder in the death of her husband after a jury trial. She was sentenced to the Illinois Department of Corrections for a term of 45 years. On the 26th day of August, 1992, Defendant's direct appeal was denied by the 5th District Appellate Court. On appeal, Defendant raised six issues, one of those being whether the ...

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