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09/11/97 PEOPLE STATE ILLINOIS v. HENRY GRIFFIN

September 11, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
HENRY GRIFFIN, APPELLANT.



Appeal from the Circuit Court of Cook County, the Hon. Earl Strayhorn, Judge, presiding.

Chief Justice Freeman delivered the opinion of the court.

The opinion of the court was delivered by: Freeman

CHIEF JUSTICE FREEMAN delivered the opinion of the court:

Defendant, Henry Griffin, filed a second petition for post-conviction relief in the circuit court of Cook County pursuant to the Post-Conviction Hearing Act. 725 ILCS 5/122-1 et seq. (West 1994). The trial court dismissed defendant's petition without an evidentiary hearing. Defendant appeals directly to this court. 134 Ill. 2d R. 651(a). We affirm.

BACKGROUND

In defendant's direct appeal, this court recited the details of his crimes. See People v. Griffin, 148 Ill. 2d 45, 49-52, 170 Ill. Dec. 250, 592 N.E.2d 930 (1992). We need not repeat those details here. Briefly, the record contains the following facts. Charles Ashley operated a major narcotics network. Ashley employed the victim, Carl Gibson, to manage the daily operations of the drug ring. Defendant and Darryl Moore were "enforcers" for Ashley.

Ashley suspected that the victim was a police informant. In the presence of James Allen, Ashley offered defendant $2,500 to kill the victim, and defendant accepted the offer. Defendant then obtained a handgun from Moore. Later that night, the victim, defendant, and Allen were in a car travelling on the Chicago Skyway. Allen drove the car, the victim sat in the front passenger seat, and defendant sat in the back seat. Defendant shot the victim four times in the back of the head, and dumped the victim's body on the Skyway's 73rd Street exit ramp. Defendant and Allen disposed of the car. Ashley subsequently paid defendant in cash and cocaine. Defendant was arrested approximately six weeks after the murder.

Defendant, Ashley, and Allen were jointly indicted on various charges. The trial court severed their cases, but conducted their trials simultaneously. Defendant and Allen were tried before separate juries; Ashley chose a bench trial. The State's evidence against the three included defendant's confession and the testimony of Moore, which corroborated defendant's confession. At the close of his trial, defendant was convicted of murder, solicitation to commit murder, and conspiracy to commit murder. The trial court sentenced defendant to death.

Defendant's sentence was stayed pending direct appeal to this court. Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d Rs. 603, 609(a). Before this court heard his appeal, defendant filed his first petition in the trial court seeking post-conviction relief. The trial court dismissed the petition without an evidentiary hearing. This court consolidated defendant's appeal from the dismissal of his first post-conviction petition with the appeal of his conviction and sentence. This court affirmed defendant's conviction and sentence, and the dismissal of his first post-conviction petition. People v. Griffin, 148 Ill. 2d 45, 170 Ill. Dec. 250, 592 N.E.2d 930 (1992). The United States Supreme Court subsequently denied defendant's petition for a writ of certiorari. Griffin v. Illinois, 507 U.S. 924, 122 L. Ed. 2d 684, 113 S. Ct. 1293 (1993), reh'g denied, 507 U.S. 1046, 123 L. Ed. 2d 502, 113 S. Ct. 1885 (1993).

Pursuant to leave of this court, defendant then filed this second petition for post-conviction relief. The trial court dismissed the petition without an evidentiary hearing. We will discuss additional relevant facts in the context of the issues raised on appeal.

ARGUMENT(S)

A proceeding brought under the Post-Conviction Hearing Act (Act) is not an appeal. Rather, it is a collateral attack on a judgment of conviction. The purpose of the proceeding is to resolve allegations that constitutional violations occurred at trial, when those allegations have not been, and could not have been, adjudicated previously. The petitioner bears the burden to establish a substantial constitutional deprivation. People v. Whitehead, 169 Ill. 2d 355, 370, 215 Ill. Dec. 164, 662 N.E.2d 1304 (1996); People v. Mahaffey, 165 Ill. 2d 445, 452, 209 Ill. Dec. 246, 651 N.E.2d 174 (1995).

The petitioner in a post-conviction proceeding is not entitled to an evidentiary hearing as of right. Rather, the Act permits summary dismissal of a nonmeritorious petition. The allegations in the petition, supported where appropriate by the trial record or accompanying affidavits, must show a substantial violation of constitutional rights. Determinations of the reviewing court on the prior direct appeal are res judicata as to issues actually decided. Issues that could have been presented on direct appeal, but were not, are deemed waived. Determinations of the trial court in a post-conviction proceeding will not be disturbed unless manifestly erroneous. Whitehead, 169 Ill. 2d at 365, 370-71; Mahaffey, 165 Ill. 2d at 452-53.

On appeal, defendant contends that he was denied his constitutional right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the familiar Strickland test. See Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The test is composed of two prongs: deficiency and prejudice. First, the defendant must prove that counsel made errors so serious, and that counsel's performance was so deficient, that counsel was not functioning as the "counsel" guaranteed by the sixth amendment. A court measures counsel's performance by an objective standard of competence under prevailing professional norms. To establish deficiency, the defendant must overcome the strong presumption that the challenged action or lack of action might have been the product of sound trial strategy. People v. Sanchez, 169 Ill. 2d 472, 487, 215 Ill. Dec. 59, 662 N.E.2d 1199 (1996); Mahaffey, 165 Ill. 2d at 457-58; People v. Flores, 153 Ill. 2d 264, 283, 180 Ill. Dec. 1, 606 N.E.2d 1078 (1992).

Second, the defendant must establish prejudice. The defendant must prove that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The prejudice prong of Strickland entails more than an "outcome-determinative" test. The defendant must show that counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Sanchez, 169 Ill. 2d at 487; Whitehead, 169 Ill. 2d at 380-81; Mahaffey, 165 Ill. 2d at 458.

A court uses the Strickland analysis also to test the adequacy of appellate counsel. A defendant who contends that appellate counsel rendered ineffective assistance, e.g., by failing to argue an issue, must show that the failure to raise that issue was objectively unreasonable and that, but for this failure, defendant's conviction or sentence would have been reversed. Whitehead, 169 Ill. 2d at 381; Flores, 153 Ill. 2d at 283.

A defendant must satisfy both prongs of the Strickland test. However, if the ineffective-assistance claim can be disposed of on the ground that the defendant did not suffer prejudice, a court need not decide whether counsel's performance was constitutionally deficient. Mahaffey, 165 Ill. 2d at 458; Flores, 153 Ill. 2d at 283-84.

In the present case, defendant contends he received ineffective assistance of counsel because: (1) appellate counsel failed to raise on direct appeal the issue of the trial court's refusal to hold a Franks hearing; (2) trial counsel failed to investigate and present evidence at defendant's fitness hearing; (3) trial counsel failed to waive a sentencing jury prior to trial; (4) appellate counsel failed to raise on direct appeal the issue of the erroneous giving of additional jury instructions; (5) trial counsel failed to investigate and present evidence at defendant's death sentencing hearing; and (6) appellate counsel failed to raise on direct review the issue of whether defendant's death sentence was unreasonably disparate to the sentence of Ashley or Allen.

I. Franks Hearing

Defendant first contends that he received ineffective assistance of counsel because his appellate counsel failed to raise on direct appeal the issue of the trial court's refusal to hold a Franks hearing. We note the State's concession that, since defendant was represented by the same counsel on direct appeal and on his first post-conviction petition, he is not barred from now attacking the effectiveness of appellate counsel. See Flores, 153 Ill. 2d at 281-82.

On August 8, 1984, Chicago Police Detective Michael Pochordo swore out an affidavit which was the basis for search warrants and arrest warrants for defendant and Allen, and an application for a telephone eavesdropping device (see 725 ILCS 5/108A-1 et seq. (West 1994)) for defendant. The affidavit included information from Darryl Moore that implicated defendant in the murder. The trial court approved the application and issued the warrants that day. The next day, an eavesdropping device was set up, Moore telephoned and spoke with defendant and, during that conversation, defendant implicated himself in the murder. Defendant was arrested while he was still on the telephone with Moore. See Griffin, 148 Ill. 2d at 49-50.

Defendant moved to quash his arrest and suppress his incriminating statements. Pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), defendant sought to attack the veracity of Detective Pochordo's affidavit, which was the basis of his application for the telephone eavesdropping. The trial court denied defendant a Franks hearing.

Defendant contends that he was entitled to a Franks hearing to determine the veracity of Detective Pochordo's affidavit. In Franks, the United States Supreme Court recognized a limited right to challenge the affidavit supporting a search warrant. The affidavit is presumed valid. To obtain an evidentiary hearing, the defendant must make a substantial preliminary showing that false statements in the affidavit were made knowingly and intelligently or with reckless disregard for the truth, and that those false statements are necessary to establish probable cause. People v. Edwards, 144 Ill. 2d 108, 131, 161 Ill. Dec. 788, 579 N.E.2d 336 (1991); People v. Eyler, 133 Ill. 2d 173, 201, 139 Ill. Dec. 756, 549 N.E.2d 268 (1989). We note that the statutory requirement of "reasonable cause" in the Illinois eavesdropping statute is synonymous with the term "probable cause." People v. Monoson, 75 Ill. App. 3d 1, 9-10, 30 Ill. Dec. 892, 393 N.E.2d 1239 (1979); accord People v. Wright, 56 Ill. 2d 523, 528-29, 309 N.E.2d 537 (1974).

"If the affidavit is insufficient to establish probable cause without the false material, the search warrant must be voided and the fruits of the search excluded." Eyler, 133 Ill. 2d at 201; accord People v. Lucente, 116 Ill. 2d 133, 147, 506 N.E.2d 1269, 107 Ill. Dec. 214 (1987). However, it is settled "that if, after the alleged untruths in a warrant affidavit are excised, the remainder is sufficient to establish probable cause, no hearing is required on the defendant's motion, and suppression will not result." Lucente, 116 Ill. 2d at 145; accord Eyler, 133 Ill. 2d at 204.

In the present case, we conclude that, even with Moore's inculpatory references to defendant excised from Detective Pochordo's affidavit, the remaining allegations in the affidavit would have established probable cause and the other statutory requirements for authorization of the telephone eavesdropping. See Griffin, 148 Ill. 2d at 61-62 (Miller, C.J., specially concurring, joined by Freeman, J.).

It is settled that probable cause means simply that the totality of the facts and circumstances within the knowledge of the affiant when the warrant was sought were sufficient to warrant a person of reasonable caution to believe that the law was violated and evidence of it is on the premises to be searched. The complaint or affidavit need not show beyond a reasonable doubt that the warrant should be issued. In deciding the question of probable cause, the courts are not unduly technical. Rather, the probabilities considered are the factual and practical considerations of everyday life on which reasonable persons, not legal technicians, act. People v. Free, 94 Ill. 2d 378, 400, 69 Ill. Dec. 1, 447 N.E.2d 218 (1983); see People v. Stewart, 104 Ill. 2d 463, 475-76, 85 Ill. Dec. 422, 473 N.E.2d 1227 (1984).

Detective Pochordo's affidavit, with Moore's inculpatory references to defendant excised, included the following information. Moore stated that when defendant and Allen arrived at Moore's apartment on the night of the murder to obtain a handgun, they arrived in a black 1983 or 1984 Chevrolet truck. That night, a bystander observed the ...


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