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September 25, 1997


The Honorable Justice Harrison delivered the opinion of the court.

The opinion of the court was delivered by: Harrison

The Honorable Justice HARRISON delivered the opinion of the court:

The State appeals from an order of the circuit court of Cook County granting defendant, Luis Ruiz, relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1992)). The circuit court vacated defendant's death sentence and ordered a new sentencing hearing, concluding that defendant had been denied effective assistance of counsel at his original capital sentencing hearing. "Because the post-conviction proceedings involve a judgment imposing the death penalty, the State's appeal lies directly to this court." People v. Mack, 167 Ill. 2d 525, 528, 212 Ill. Dec. 955, 658 N.E.2d 437 (1995); 134 Ill. 2d R. 651(a); see also People v. Joyce, 1 Ill. 2d 225, 227, 115 N.E.2d 262 (1953) (order granting post-conviction relief is a final judgment from which State may appeal). For the reasons set forth below, we affirm.

Early on the morning of February 25, 1979, the bodies of three teenage males, Michael Salcido, Arthur Salcido and Frank Mussa, were discovered in a car in a Chicago alley. Defendant and codefendant Juan Caballero were tried before one judge supervising two separate juries; both men were found guilty on charges of murder, unlawful restraint, and armed violence with respect to each of the three victims. The State requested a death penalty hearing in each case. Defendant waived a jury and, after hearing evidence in aggravation and mitigation, the trial court sentenced him to death.

On direct appeal, this court affirmed defendant's convictions and death sentence ( People v. Ruiz, 94 Ill. 2d 245, 68 Ill. Dec. 890, 447 N.E.2d 148 (1982)), and the United States Supreme Court denied review ( Ruiz v. Illinois, 462 U.S. 1112, 77 L. Ed. 2d 1341, 103 S. Ct. 2465 (1983)). Defendant then instituted the present action under the Act, filing a pro se petition for post-conviction relief which was later supplemented and amended by appointed counsel. The State's motion to dismiss the petition was granted by the circuit court, and defendant appealed. This court, without reaching other issues, vacated the circuit court order dismissing defendant's post-conviction petition and remanded with directions that a judge other than the judge who had presided over defendant's trial should consider the petition. People v. Ruiz, 107 Ill. 2d 19, 88 Ill. Dec. 902, 479 N.E.2d 922 (1985).

Following the remand, defense counsel submitted a group of affidavits in support of the post-conviction petition and renewed his request for an evidentiary hearing. The State relied on its original motion to dismiss, and after a hearing on that motion, the circuit court dismissed defendant's petition. Once again, defendant appealed.

In its third opinion in this case, this court rejected all but one of the arguments raised by defendant in his post-conviction petition. This court focused on the contention that defendant's trial counsel was ineffective at the capital sentencing hearing because he "failed to investigate possible sources of mitigating evidence and failed to introduce favorable evidence that was readily available." People v. Ruiz, 132 Ill. 2d 1, 21, 138 Ill. Dec. 201, 547 N.E.2d 170 (1989). More specifically, this court stated:

"The defendant alleges that counsel failed to investigate the defendant's personal history and failed to inquire of the defendant or his family members whether they were aware of mitigating information that could be used at the sentencing hearing. The defendant concludes that counsel was ineffective in failing to conduct such an investigation and to present the readily available information." Ruiz, 132 Ill. 2d at 24.

This court reasoned that favorable testimony from defendant's family members and friends might have supported the defense theory at the sentencing hearing that defendant was not an active or willing participant in the offenses. Ruiz, 132 Ill. 2d at 26. The court further noted that this testimony would have provided a portrayal of defendant that was not apparent from the evidence already admitted, and that the record did not suggest any reasons for not presenting the evidence. Ruiz, 132 Ill. 2d at 26. The court therefore concluded:

"In light of the unchallenged and unheard allegations in the defendant's post-conviction petitions, we are not prepared to assume that the course chosen by counsel was justified. Counsel has a duty to investigate potential sources of mitigating evidence, or to have reason not to make such an investigation; according to the allegations before us, counsel inexplicably failed to conduct such an investigation. We do not mean to suggest, however, that trial counsel was required to formally interview each family member and friend; it may be that in discussions with those persons counsel was made aware of their testimony and of their value as witnesses. But, on the present record, we are unable to conclude that counsel's course was reasonable, or that he had some other valid strategy in mind. *** An evidentiary hearing on the allegations is warranted, and we therefore remand the cause to the circuit court for an evidentiary hearing on these portions of the defendant's petitions for post-conviction relief." Ruiz, 132 Ill. 2d at 27-28.

At the evidentiary hearing, defendant's trial counsel, Michael Green, testified that he had no recollection of representing defendant at his sentencing hearing 14 years earlier, although Green believed that it was his first capital sentencing hearing. Green also did not remember if, prior to the sentencing hearing, he had interviewed defendant or his family regarding defendant's background. However, Green surmised that, given defendant's criminal record and history of gang affiliation, such mitigation would have been futile and would have opened up possibly damaging avenues of cross-examination to the State. The following colloquy then occurred:

"MR. NIGRO [Assistant State's Attorney]: Did you ordinarily made [ sic ] a consideration based upon the individual's background as to whether to call or not to call family members to testify as mitigation witnesses at the sentencing hearing?

MR. GREEN: I think it depends on the facts of a particular case. I would have to evaluate the pros and cons, discuss it with my client, and discuss it with his family. *** Did I do it here? I don't know.

MR. NIGRO: Would it have been your practice at the time to acquire information concerning the defendant's social history and then make a determination as to whether or not you wanted to call family members to testify as mitigation witnesses?

MR. GREEN: That is something that depends on the individual case."

Defendant's mother, Carmen Ruiz, testified that she had nine children, of whom defendant was the second oldest. In addition to defendant, her sons Michael and Richard were also in prison. She recalled defendant's murder trial and was present for it and the sentencing hearing. Mrs. Ruiz stated that Green had asked her nothing about defendant, his background, or persons who might be able to offer information concerning defendant. While she and other family members had short conversations with counsel during trial, he did not ask about defendant's background. She did not speak to Green between defendant's conviction and sentencing and in conversations at the sentencing hearing he asked her nothing about defendant or his background.

Mrs. Ruiz further testified concerning her husband's criminal record, his involvement in the so-called "numbers racket," and his practice of carrying knives on his person. She also stated that her husband was a heavy drinker when defendant was a child and that he had beaten defendant and forced him to kneel on a sharp cooking utensil, like a grater. When defendant was 14 years of age, the family moved to a new neighborhood and Mrs. Ruiz went back to work full time, leaving defendant with no parental supervision. Defendant was shot in the arm at age 15.

Mrs. Ruiz testified that Green had never asked her about her husband's criminal activity, his drinking and abuse of defendant as a child, or what defendant was like in the family. She described defendant as "special," helpful and loved by his family, and stated that he could always make her laugh. Mrs. Ruiz further stated that defendant had expressed remorse about the murders while in prison and had attempted to warn his brothers against gang involvement. Green had also not asked her about these matters. If asked, she would have been willing to testify at defendant's capital sentencing hearing. On cross-examination, Mrs. Ruiz ...

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