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02/06/97 PEOPLE STATE ILLINOIS v. TUHRAN A. LEAR

February 6, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
TUHRAN A. LEAR, APPELLANT.



Chief Justice Heiple delivered the opinion of the court. Justice McMORROW, concurring in part and dissenting in part. Justice Freeman, dissenting.

The opinion of the court was delivered by: Heiple

CHIEF JUSTICE HEIPLE delivered the opinion of the court:

Following a jury trial in the circuit court of Montgomery County, defendant, Tuhran Lear, was convicted of first degree murder, attempted first degree murder, and two counts of armed robbery. The jury found defendant eligible for the death penalty and found no mitigating circumstances sufficient to preclude imposition of the death penalty. Defendant was sentenced to death and also to two concurrent 60-year prison terms for armed robbery and attempted murder.

On direct appeal, this court affirmed the convictions and sentences. People v. Lear, 143 Ill. 2d 138, 157 Ill. Dec. 412, 572 N.E.2d 876 (1991). Defendant subsequently filed a petition for post-conviction relief which he later amended and supplemented. Of the 11 claims raised in defendant's post-conviction petition, nine were dismissed by the court without an evidentiary hearing. After an evidentiary hearing on the remaining two claims, the court denied defendant's post-conviction petition.

Before this court, defendant argues that (1) defense counsel was ineffective in failing to request a voir dire question regarding racial bias; (2) defense counsel was ineffective in failing to properly present the defense theory that defendant was not the shooter; (3) defense counsel was ineffective at the capital sentencing hearing; and (4) defendant was denied his constitutional rights when evidence of other crimes was admitted as aggravating evidence during the sentencing hearing. We affirm.

The evidence at trial disclosed that, on September 3, 1988, defendant, accompanied by Randy Thomas, entered a gas station in Farmersville, Illinois, and emptied the cash register. During the robbery, defendant shot the store manager, Gregory McAnarney, and an employee, Robert Bishop. McAnarney died as a result of the gunshot wound but Bishop survived and later testified against defendant.

Further details regarding the evidence presented at defendant's trial are set forth in the opinion disposing of defendant's direct appeal ( Lear, 143 Ill. 2d 138, 157 Ill. Dec. 412, 572 N.E.2d 876) and will be referred to below only as necessary to dispose of defendant's instant appeal.

ANALYSIS

A proceeding under the Post-Conviction Hearing Act is a collateral attack on the judgment of conviction which is limited to constitutional issues which were not, and could not have been, presented on direct review. People v. Gosier, 165 Ill. 2d 16, 20, 208 Ill. Dec. 308, 649 N.E.2d 364 (1995). Issues decided by a reviewing court on a prior direct appeal are res judicata as to issues actually decided; issues that could have been presented during direct review, but were not, are deemed waived for purposes of post-conviction review. People v. Franklin, 167 Ill. 2d 1, 9, 212 Ill. Dec. 153, 656 N.E.2d 750 (1995). On review, the trial court's determinations regarding the post-conviction petition will not be disturbed unless they are manifestly erroneous. Franklin, 167 Ill. 2d at 9.

I. Ineffective Assistance of Counsel

In order for defendant to succeed on a claim of ineffective assistance of counsel, he must show (1) that his counsel's performance was deficient in that it fell below an objective standard of reasonableness and (2) that counsel's deficient performance so prejudiced defendant that there is a reasonable probability that the outcome of the trial would have been different without counsel's errors. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Simms, 168 Ill. 2d 176, 213 Ill. Dec. 576, 659 N.E.2d 922 (1995). This standard applies to claims of ineffective assistance of both trial and appellate counsel. People v. Foster, 168 Ill. 2d 465, 214 Ill. Dec. 244, 660 N.E.2d 951 (1995). A reviewing court may reject a claim of ineffective assistance of counsel by finding that defendant was not prejudiced by counsel's representation without determining whether counsel's performance was deficient. People v. Erickson, 161 Ill. 2d 82, 90, 204 Ill. Dec. 231, 641 N.E.2d 455 (1994).

A. Voir Dire

Defendant, an African-American, argues that his trial counsel was ineffective in failing to inform the jury that the victim was white and in failing to draft and tender a voir dire question regarding racial bias. Initially, the State argues that this issue is waived because it was plainly discernible from the record and thus could have been raised on direct appeal. We find that this argument is not waived since it is based on evidence first presented during the post-conviction hearing, during which defendant testified that prior to voir dire he had asked defense counsel to question prospective jurors about racial bias.

"The Constitution requires a trial judge to question venirepersons specifically regarding racial prejudice if 'special circumstances' exist that suggest a constitutionally significant likelihood that racial prejudice might infect a defendant's trial." People v. Peeples, 155 Ill. 2d 422, 459, 186 Ill. Dec. 341, 616 N.E.2d 294 (1993). Such special circumstances exist where racial issues are " 'inextricably bound up with the conduct of the trial.' " Peeples, 155 Ill. 2d at 459-60, quoting Ristaino v. Ross, 424 U.S. 589, 596-97, 47 L. Ed. 2d 258, 264, 96 S. Ct. 1017, 1021 (1976). In general, that the defendant and victim are of different races does not in itself create a special circumstance. Peeples, 155 Ill. 2d at 460. However, when a capital defendant is on trial for an interracial crime, the defendant is entitled to have prospective jurors informed of the race of the victim and questioned about racial bias, but only as to the sentencing phase, and only if the defendant specifically requests such an inquiry. Turner v. Murray, 476 U.S. 28, 37, 90 L. Ed. 2d 27, 37, 106 S. Ct. 1683, 1688 (1986).

After reviewing the record, we find that the circuit court's decision to dismiss this claim in the post-conviction petition was not manifestly erroneous. During the post-conviction hearing, defendant testified that he asked defense counsel to question prospective jurors about racial bias. However, defense counsel testified that defendant made no such request. The issue was thus one of credibility since counsel and defendant gave different views of what transpired prior to and during voir dire. The trial court did not find defendant credible on this point and thus dismissed the claim.

Since defendant, according to the trial court, did not ask for an inquiry into racial bias, counsel was not required to make such an inquiry. Turner, 476 U.S. at 37, 90 L. Ed. 2d at 37, 106 S. Ct. at 1688. Whether to ask such questions was then left to counsel as a matter of trial strategy, which is protected under Strickland. Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066; People v. Steidl, 142 Ill. 2d 204, 240, 154 Ill. Dec. 616, 568 N.E.2d 837 (1991) (trial counsel's strategic decisions are generally protected by a strong presumption that they reflect sound strategy rather than incompetence). Accordingly, we affirm the dismissal of this claim.

B. Trial

1. Shooter Defense

The defense theory at trial was that Thomas, rather than defendant, did the shooting during the robbery. Defendant argues that counsel was ineffective for failing to admit a prior statement made by the victim, Bishop, which defendant contends supported his theory of the case. The trial court dismissed this claim, finding that defendant failed to satisfy the prejudice prong of Strickland. See Erickson, 161 Ill. 2d at 90.

We first note that this issue is not barred by the doctrine of res judicata, as the State contends. On direct appeal, this court addressed whether the trial court erred in refusing to allow impeachment of Bishop using the reporter's testimony. Lear, 143 Ill. 2d at 145. However, the court never addressed whether counsel was ineffective in failing to have Bishop's prior statement admitted. The State further argues that the issue is waived, as it could have been raised on direct appeal, to which defendant responds that the issue is preserved due to the ineffectiveness of appellate counsel in failing to raise the issue. We thus consider the alleged ineffectiveness of appellate counsel.

Bishop, who was shot in the neck during the robbery, testified at trial that defendant came into the store and asked for the rest room. Bishop pointed to the rest room and defendant walked toward it, leaving Bishop's line of sight. Defendant's accomplice, Thomas, who was taller than defendant, then asked Bishop how far it was to Chicago. A few moments later, Bishop heard a noise behind him, upon which he was shot in the neck.

Prior to trial, Bishop allegedly told a newspaper reporter that the first man who entered the store was the taller of the two, which, if correct, would suggest that the taller man, Thomas, fired the shots. At trial, defense counsel cross-examined Bishop about his statement to the reporter and Bishop replied that he did not recall what he said to the reporter. However, counsel failed to ask Bishop whether the taller man entered the store first. When counsel later attempted to impeach Bishop with the reporter's testimony, the trial court ruled that there was nothing to impeach since Bishop never testified about the relative heights of the two assailants.

Defendant now argues that counsel was ineffective when he failed to have Bishop's prior statement admitted, and specifically contends that counsel erred when he: (1) failed to obtain an affidavit from Bishop, which could have been used substantively or to refresh Bishop's recollection; (2) failed to cross-examine Bishop about who came into the store first; (3) failed to properly preserve this issue by making an offer of proof of the reporter's testimony; and (4) failed to request a jury instruction allowing substantive use of Bishop's prior statement.

However, had Bishop's statement to the reporter been admitted as substantive evidence, it would not have impacted the outcome of the trial. During direct examination, Bishop, using a photograph, unequivocally identified Thomas as the man who stayed in front of him and asked the distance to Chicago. Another witness testified that she saw defendant with the gun in his waistband as he left the gas station after the robbery. Also, when defendant was picked up by police he had the murdered victim's wallet in his pocket and dried blood on his shoe. Moreover, on redirect, Bishop explained that he was distracted while making the statement to the reporter because his wife was at work and he was fixing supper while supervising his four young children.

In light of this evidence, defendant was not prejudiced when counsel failed to introduce into evidence Bishop's prior statement. Since we find no prejudice, we affirm the trial court's dismissal of this claim of ineffective assistance of counsel. Erickson, 161 Ill. 2d at 90.

C. Sentencing

Defendant raises various ineffective-assistance-of-counsel claims arising out of the sentencing hearing. Therein, the State presented aggravating evidence of two prior murders committed by defendant. First, the State presented evidence of a 1974 juvenile murder conviction which occurred when defendant was 15 years old. Second, the State presented evidence that defendant committed a robbery/murder at a gas station in Collinsville, Illinois, nine days before the instant crime.

Defense counsel presented three witnesses in mitigation. Defendant's girlfriend testified that she had a good relationship with defendant and that he was "always there" for her when she needed help. She also stated that defendant had a good relationship with his young daughter. In addition, defendant's mother testified that defendant had been an obedient child and an average student. Finally, defendant's sister testified that he was a good child who got along well with his brothers and sisters. She also stated that defendant was a good parent who supported his daughter regularly.

1. Counsel's Inexperience and Limited Resources

Defendant argues that trial counsel's inexperience and lack of resources constituted a per se violation of his right to effective assistance of counsel. Defendant first argues that trial counsel was per se ineffective because no co-counsel was appointed. Defendant cites to the guidelines for capital cases provided by the American Bar Association and the National Legal Aid and Defender Association, which recommend that two attorneys be appointed to represent each capital defendant. Second, defendant argues that trial counsel was per se ineffective because he was young, inexperienced, and had insufficient resources. Testimony by defense counsel at the post-conviction hearing showed that: counsel graduated from law school two years prior to his appointment as counsel for defendant; this was both counsel's first homicide and first capital case; counsel had never received any formal training for defending a capital case; counsel's office employed no other attorneys and no investigator; the only assistance received by counsel was 60 hours of legal research help from another attorney; and, during the time counsel was representing defendant, he was responsible for numerous other pending cases.

Having a counsel with limited resources and limited experience is not a circumstance which this court has held to constitute per se ineffective assistance of counsel. See, e.g., People v. Hattery, 109 Ill. 2d 449, 461, 94 Ill. Dec. 514, 488 N.E.2d 513 (1985) (counsel failed to present a defense); People v. Brandon, 162 Ill. 2d 450, 205 Ill. Dec. 421, 643 N.E.2d 712 (1994) (counsel failed to request a fitness hearing for a defendant taking psychotropic medication). Therefore, the proper inquiry is whether counsel's representation fell below the standard of ineffective assistance of counsel set forth in Strickland.

Applying Strickland to the instant case, we reject defendant's ineffective-assistance claim because these alleged deficiencies did not result in prejudice to defendant. Erickson, 161 Ill. 2d at 90. Defendant was convicted by overwhelming evidence, after which substantial aggravating evidence was presented, including evidence of two prior murders committed by defendant. Defendant has failed to show how additional personnel or financial resources would have resulted in a sentence other than death. We thus affirm the trial court's dismissal of defendant's claim of ineffective assistance of counsel based on counsel's level of experience and amount of resources.

2. Continuance of Sentencing Hearing

During the sentencing hearing, counsel unsuccessfully requested a continuance in order to further prepare for the proceedings. Defendant now argues that counsel was ineffective in failing to request a continuance prior to the sentencing hearing in order to ...


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