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06/19/97 PEOPLE STATE ILLINOIS v. GREGORY MADEJ

June 19, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
GREGORY MADEJ, APPELLANT.



Appeal from the Circuit Court of Cook County, the Hon. Vincent Bentivenga, Judge, presiding.

As Corrected August 13, 1997. Rehearing Denied September 29, 1997.

The Honorable Justice McMORROW delivered the opinion of the court.

The opinion of the court was delivered by: Mcmorrow

The Honorable Justice McMORROW delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant, Gregory Madej, was convicted of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)), felony murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(3)), rape (Ill. Rev. Stat. 1979, ch. 38, par. 11-1), deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11-3), and armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2). The circuit court sentenced defendant to death on the murder and felony murder convictions. On direct appeal, this court affirmed defendant's convictions and sentences. People v. Madej, 106 Ill. 2d 201, 88 Ill. Dec. 77, 478 N.E.2d 392 (1985). The United States Supreme Court subsequently denied defendant's petition for writ of certiorari. Madej v. Illinois, 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 268 (1985), reh'g denied, 474 U.S. 1038, 88 L. Ed. 2d 586, 106 S. Ct. 608 (1985).

Defendant thereafter filed a pro se petition for relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.). His attorney filed an amended petition several years later. The circuit court dismissed the amended petition without an evidentiary hearing, and this appeal followed. 134 Ill. 2d R. 651. We now affirm the order of the circuit court.

BACKGROUND

Barbara Doyle's naked body was found in an alley on the north side of Chicago in the early morning hours of August 23, 1981. She had been stabbed and slashed approximately 34 times. A post-mortem examination revealed the presence of numerous abrasions over various parts of her body. Semen was found in her vagina and rectum.

At approximately 5 a.m. on the day in question, two Chicago police officers observed defendant drive through a posted stop sign on Wilson Avenue in Chicago. The officers signalled for defendant to pull over. Instead of stopping, defendant accelerated and proceeded to lead the officers on a high-speed chase. Several other police cars joined in the chase as defendant sped through red lights in excess of 80 miles per hour. Defendant eventually drove into an alley, where he tried unsuccessfully to escape on foot. When the officers arrested defendant, his hands, head, shirt, pants and undershorts were covered with blood. The automobile, which was later determined to be Barbara's, was likewise stained with blood, mostly in the area of the passenger's seat. Upon searching the vehicle, police officers recovered a large knife as well as Barbara's jeans and blouse, both of which were saturated with blood.

At the police station, defendant explained to the officers that he had been drinking at the Garage Inn tavern until 2:20 a.m., at which time he was thrown out for disorderly conduct. He then met a friend named "Hojamoto," who was driving Barbara's car. When defendant got into the vehicle to go "cruising," he noticed that Hojamoto was wearing a bloody shirt. Hojamoto told defendant that he had been in a gang fight. Defendant then switched seats with Hojamoto, who jumped from the vehicle during the high-speed chase with the police.

Police subsequently charged defendant with the murder of Barbara Doyle and other felonies. Prior to trial, defendant waived his right to have a jury determine his guilt or innocence.

At trial, Barbara's estranged husband, David Doyle, testified that he and Barbara were drinking at the Garage Inn tavern until 2:15 a.m. The two left the bar and fell asleep in Barbara's car. When he woke up, David noticed that defendant was in the driver's seat, and it appeared to him that Barbara and defendant knew each other. Defendant drove to the Golden Flame restaurant, where he and Barbara went inside. David, meanwhile, walked home alone.

A waitress from the Golden Flame restaurant testified that she served coffee to Barbara and defendant around 3:15 a.m. Another witness testified that he saw defendant "tinkering" with Barbara's car in an alley approximately 25 minutes later.

James Bunker, who knew defendant socially, also testified on behalf of the State. Bunker told the court that he was at a party with defendant on the night before Barbara's murder. According to Bunker, defendant had taken a "Buck-type knife" from another person at the party. In court, Bunker identified the knife which police recovered from Barbara's car as the knife defendant had taken the night before. Bunker further testified that "Hojamoto" was a fictitious name commonly used by defendant and friends as a form of greeting. In fact, defendant had in the past referred to Bunker as "Hojamoto," and vice versa. When asked why the group used the name, Bunker responded, "[It was] just like a greeting, you know *** . How are you doing? Moto."

Defendant testified on his own behalf. In contrast to his original statement to the police, at trial defendant claimed that he had killed Barbara only after she drew a knife on him during a drug deal that had gone awry. Defendant explained to the court that he had been drinking alcohol and ingesting drugs throughout the day. When he arrived at the Garage Inn tavern, he noticed Barbara, whom he had previously known, sitting at the bar with her husband. Barbara and her husband later left the tavern. Defendant, meanwhile, continued to drink until he was thrown out for disorderly behavior. He then approached Barbara's vehicle, and she asked him if he would like to smoke some marijuana. The two of them proceeded to get "high," and they later drove to the Golden Flame restaurant. Upon leaving the restaurant, they smoked more marijuana and stopped three times to purchase liquor. According to defendant, he had by that time consumed at least two cases of beer, drank some whiskey, smoked one ounce of marijuana, ingested 10 quaaludes, and injected Talwin.

Defendant further testified that he and Barbara stopped twice to engage in consensual sexual relations. Afterwards, Barbara asked defendant if he would sell her some marijuana. He agreed, and placed seven one-ounce bags of marijuana on the vehicle's console. After paying for one of the bags, Barbara attempted to steal two more. A struggle ensued, and she eventually brandished a knife and began attacking him. At some point in the struggle, defendant gained control of the knife and began stabbing Barbara, realizing what he was doing only after he saw that she was bleeding from her chest. He then removed Barbara's body from the car and sounded the car's horn (apparently in an attempt to summon help). He drove to a friend's house, but left when no one answered the door. Defendant next recalled being chased by the police, but could not remember anything else other than being taken into custody.

At the close of the evidence, the circuit court found defendant guilty of all charges. On the following day, the court ruled that defendant was eligible for the death penalty (720 ILCS 5/9-1(b)(6)(c) (West 1994) (commission of first degree murder in the course of another felony)) and that the evidence in mitigation did not outweigh the aggravating factors. Accordingly, the court imposed a sentence of death. This court affirmed that decision on direct appeal. People v. Madej, 106 Ill. 2d 201, 88 Ill. Dec. 77, 478 N.E.2d 392 (1985).

ANALYSIS

The matter is now before this court on dismissal of defendant's amended petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1992)). A post-conviction action is 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 scope of the proceeding is limited to constitutional matters which have not been, nor could have been, previously adjudicated. People v. Whitehead, 169 Ill. 2d 355, 370, 215 Ill. Dec. 164, 662 N.E.2d 1304 (1996). Any issues which could have been raised on direct appeal, but were not, are waived ( People v. Ruiz, 132 Ill. 2d 1, 9, 138 Ill. Dec. 201, 547 N.E.2d 170 (1989)) and any issues which have already been decided by a reviewing court are barred by the doctrine of res judicata ( People v. Silagy, 116 Ill. 2d 357, 365, 107 Ill. Dec. 677, 507 N.E.2d 830 (1987)). In addition, a defendant is not entitled to an evidentiary hearing unless the allegations set forth in the petition, as supported by the trial record or accompanying affidavits, show that a constitutional right has been violated. People v. Caballero, 126 Ill. 2d 248, 259, 128 Ill. Dec. 1, 533 N.E.2d 1089 (1989). In making that determination, all well-pleaded facts in the petition and affidavits are to be taken as true. Caballero, 126 Ill. 2d at 259. Upon review of a dismissal of a petition without an evidentiary hearing, the trial court's decision will not be disturbed absent an abuse of discretion. People v. Whitehead, 169 Ill. 2d 355, 370-71, 215 Ill. Dec. 164, 662 N.E.2d 1304 (1996).

Ineffective Assistance of Counsel During Sentencing

A. Failure to Present Mitigating Evidence

Defendant first argues that he was denied effective assistance of counsel during the aggravation/mitigation phase of the sentencing hearing due to his attorney's failure to investigate potential mitigating evidence prior to trial. According to defendant, counsel decided to forgo such an investigation under the mistaken belief that there would be sufficient time to prepare a mitigation defense if defendant were found guilty. Once the court reached its verdict, however, the State requested an immediate hearing on the death penalty in order to accommodate out-of-state members of the victim's family. Although the court denied the State's request for a hearing instanter, the court nevertheless scheduled the hearing for the following day. Defendant claims that such a short continuance, coupled with his attorney's lack of pretrial preparation, prejudiced his ability to put on an adequate mitigation defense. In support of this contention, defendant points out that his entire defense consisted of a brief statement to the court. In the statement, defendant merely noted that he had the opportunity to use drugs and alcohol while in jail, but had declined to do so. He further stated that if he were ever released from prison he would never use drugs or alcohol again. He also acknowledged that he had been using drugs since his teenage years, and that drugs "had the greatest part to do with the case." When counsel asked him whether there were "any events occurring in [his] life or ... in [his] home situation that may have been a contributing factor in [his] being heavily involved in drugs," and hence a contributing factor in Barbara's murder, defendant explained, "Well, it was hard to cope with my parents [because they] always did have something against the drugs." Defendant then expressed remorse for his crimes. No other evidence was offered in mitigation.

Defendant now argues that had his trial counsel undertaken a proper investigation prior to trial, he would have discovered "a wealth of available mitigating evidence" which could have been presented to the trial court. That evidence, appended to defendant's amended petition for post-conviction relief, can be summarized as follows.

Defendant was born in Poland and came to the United States while still an infant. His parents, Helena and Kazamier Madej, were strict disciplinarians who physically punished their children's disobedience. Helena Madej acknowledges that her husband would often beat defendant, and that her husband was a violent person with a drinking problem. Jill Miller, a forensic social worker who submitted a report on defendant's behalf, believes that "Kazamier Madej's chronic abuse of alcohol during [defendant's] childhood, and into his adult years, had a significant impact on the development of [his] personality, and on his behavior." She further maintains that defendant exhibits "many of the characteristics of adult children of alcoholics, including: low self-esteem; difficulty trusting others; difficulty establishing or maintaining intimate relationships; denial and repression of feelings; poor problem solving skills; impulsiveness; and increased incidence of alcohol or drug abuse." According to Miller, defendant continues to show "some of the characteristics of an adult chid [ sic ] of an alcoholic."

The evidence further shows that defendant began using drugs and alcohol during his early teenage years. He soon dropped out of high school and entered the military. Despite his continued use of drugs and alcohol while in the army, defendant eventually earned his GED certificate and was later honorably discharged. Upon returning to Chicago, defendant attended Triton College for two semesters before withdrawing due to his first arrest in November 1977. Defendant later obtained employment at an automobile service station. That employment ended, however, following his second arrest in July 1978. Defendant spent the next seven months travelling around the country, eventually finding part-time work in California "doing odd jobs." He returned to Chicago in February 1979 and was soon arrested again. He remained in jail until October 1980. After his release, defendant worked for a short time at Methode Electronics. He was laid off in April 1981 due to a "phase down" of Methode's Chicago plant. He worked briefly for three more employers before his final arrest for the instant offense.

The petition further alleges that defendant suffers from both psychological and neurological impairments. Dr. James O'Donnell, an assistant professor of pharmacology, believes that defendant is a drug addict and an alcoholic whose "atrophy of brain tissue [has led] to an impairment in his neuropsychological function; in other words, his ability to think and reason." Dr. Linda Wetzel, the director of Neuropsychological Assessment at the West Side V.A. Hospital, also believes that defendant suffers from "mild to moderate" atrophy of the brain tissue. In her affidavit, she explains that defendant shows signs of attention deficit and impaired verbal learning ability, and that he has experienced headaches and depression during his incarceration. Dr. Dan L. Zimbroff, a board certified psychiatrist and neurologist, opines that defendant has been in need of psychiatric treatment since he was 14 years old. He further postulates that defendant was "physically and verbally abused by his sadistic and alcoholic father who showed no signs at all of being a competent and empathic parent in any way."

Finally, defendant claims that he has had an excellent incarceration record. For example, he notes that he had been both compliant and responsible during his confinement at Cook County jail while awaiting trial for the instant offense. During that time, he developed "some insight" into his behavior and recognized the negative effects of drugs and alcohol. In addition, he has, since his conviction for Barbara's murder, adjusted well to his incarceration at Menard State Penitentiary.

According to defendant, his attorney's failure to investigate his background and present the foregoing evidence "amounted in every respect to no representation at all." Blake v. Kemp, 758 F.2d 523, 534 (11th Cir. 1985). He describes his attorney's effort in this regard as a "mere sham," adding that counsel simply "[gave] up and abandoned any attempt to present mitigating evidence." He concludes that his counsel was incompetent, and that as a result he was denied his constitutional right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, ยง 8.

In response, the State points our that this court previously rejected defendant's claim of ineffective assistance of counsel based on his counsel's failure to present sufficient mitigating evidence. People v. Madej, 106 Ill. 2d 201, 88 Ill. Dec. 77, 478 N.E.2d 392 (1985). On direct appeal, this court held that defendant did not meet his burden of demonstrating a reasonable probability that the result of the sentencing hearing would have been different. Madej, 106 Ill. 2d at 215-16. The State insists, therefore, that the defendant is now barred from relitigating that issue under the doctrine of res judicata. People v. Silagy, 116 Ill. 2d 357, 365, 107 Ill. Dec. 677, 507 N.E.2d 830 (1987). We disagree.

As defendant points out, most of the evidence submitted in support of the amended petition for post-conviction relief did not appear in the original trial record and was not available to appellate counsel on direct appeal. For example, the affidavits of Drs. O'Donnell, Wetzel and Zimbroff, all of which offer expert opinions on defendant's psychological and neurological impairments, were presented for the first time in defendant's amended petition for post-conviction relief. Thus, when the court held on direct appeal that defendant failed to demonstrate a reasonable probability that the result of the sentencing proceeding would have been different, it did so solely on the basis of the record as it then existed. The record now contains substantial mitigation evidence which, defendant claims, should have been presented at the original trial, but was not. Under these circumstances, we have repeatedly held that procedural fairness dictates that the rules of res judicata be relaxed, and that the merits of defendant's claim be considered. See People v. Henderson, 171 Ill. 2d 124, 150-51, 215 Ill. Dec. 147, 662 N.E.2d 1287 (1996); People v. Eddmonds, 143 Ill. 2d 501, 528, 161 Ill. Dec. 306, 578 N.E.2d 952 (1991); People v. Orange, 168 Ill. 2d 138, 166-67, 213 Ill. Dec. 589, 659 N.E.2d 935 (1995); People v. Thompkins, 161 Ill. 2d 148, 166, 204 Ill. Dec. 147, 641 N.E.2d 371 (1994). Consequently, we decline to utilize the doctrine of res judicata to bar defendant's claim of ineffective assistance of counsel.

Res judicata notwithstanding, the State alternatively argues that defendant knowingly waived his right to present additional mitigating evidence when he told his counsel and the trial court that he did not want any other witnesses to testify on his behalf. The record here discloses that after defendant testified, the court asked defense counsel whether any other witnesses would be called to the stand. Counsel replied, "No, your Honor. I have been instructed by my client that he wishes to have no one else called in his defense *** ." The court then asked defendant whether he wished to present any other witnesses or testimony "in any form." Defendant replied, "No, sir."

Relying on People v. Emerson, 122 Ill. 2d 411, 119 Ill. Dec. 250, 522 N.E.2d 1109 (1987), the State maintains that defendant should not be allowed to complain of his counsel's failure to present additional mitigating evidence because defendant himself was the reason for the lack of the evidence in the first place. In Emerson, the defendant claimed that he was denied effective assistance of counsel because his attorney did not present any evidence in mitigation. The court rejected that argument, in part, on the ground that Emerson had specifically instructed his attorney not to do so. Noting that "counsel's conduct at the sentencing hearing was consistent with the defendant's stated wishes," this court held that Emerson could no longer complain of his counsel's failure to present evidence at the sentencing hearing. Emerson, 122 Ill. 2d at 440.

We note, however, that during the pendency of this appeal, the federal courts granted Emerson's request for habeas corpus relief on the basis that his counsel's performance at sentencing was constitutionally deficient. United States ex rel. Emerson v. Gramley, 883 F. Supp. 225 (N.D. Ill. 1995), aff'd, 91 F.3d 898 (7th Cir. 1996). Contrary to the position taken by this court, the Seventh Circuit Court of Appeals held that "Emerson's waiver of his procedural rights at the sentencing hearing [could not] be considered a knowing waiver to which he should be held." Emerson, 91 F.3d at 906. The court reached this conclusion by noting that Emerson's counsel had not undertaken any investigation into the possible existence of mitigating evidence. Without such an investigation, the court stressed, defense counsel could not adequately advise Emerson on whether he should present evidence in mitigation. Emerson, 91 F.3d at 906. The Seventh Circuit further emphasized that neither counsel nor the trial court warned Emerson of "the fell consequences of failing to establish some mitigating circumstances without which (because the evidence of aggravating circumstances was overwhelming) a sentence of death was certain unless the jury disobeyed the judge's instructions." Emerson, 91 F.3d at 906. As a result, the decision to forgo the presentation of mitigating evidence could not be considered a "knowing" waiver; therefore, Emerson was entitled to a new sentencing hearing.

In light of the recent developments in Emerson, defendant submits that he, too, could not have knowingly waived his right to present additional mitigating evidence. Defendant points out that his attorney, like Emerson's, did not conduct an investigation into possible sources of mitigation. He further states that the constitutional right to effective assistance of counsel would be meaningless if courts were to condone an attorney's failure to investigate and prepare for a capital sentencing hearing. We agree.

The record in the instant case reveals that although defendant understood the concept of mitigation, he was never advised of the considerable quantity of mitigating evidence available for presentation to the court, including the opinions of several expert witnesses who now believe that defendant suffers from various psychological and neurological impairments. The reason defendant was not informed of this evidence was because his attorney never conducted an investigation into possible sources of mitigation. Without such an investigation, defense counsel was not in a position to provide defendant with a realistic assessment of all available options. Thus, when defendant indicated to the trial court that he did not wish to present any other testimony at the sentencing hearing, he did so without a full appreciation of the nature and extent of the mitigating evidence that could be presented on his behalf. See Emerson, 91 F.3d 898. Indeed, that it is questionable whether defendant fully understood the potential consequences of his decision to forgo the presentation of additional mitigating evidence can be readily seen from the paucity of evidence that he did present. Defendant's entire mitigation defense consisted of his own statement to the court as well as a few answers to questions posed by counsel, all of which now comprise approximately eight pages of transcript. Such meager testimony at a capital sentencing hearing can hardly be deemed the equivalent of a fully presented mitigation defense, one that is complete with the testimony of relatives, colleagues and psychological experts. In fact, defendant's brief, self-serving and at times rambling account of his drug usage, which in this case is tantamount to the presentation of no evidence at all, clearly demonstrates that defendant failed to appreciate the ...


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