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September 25, 1997


Appeal from the Circuit Court of Clinton County, the Hon. William P. Todd, Judge, presiding.

The Honorable Justice Miller delivered the opinion of the court.

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

The defendant, Robert Todd, brings this appeal from an order of the circuit court of Clinton County denying his amended petition for post-conviction relief. Because the defendant received the death sentence for the underlying first degree murder conviction, the present appeal lies directly to this court. 134 Ill. 2d R. 651(a).

Following a bench trial in the circuit court of Clinton County, the defendant was convicted of the first degree murder and attempted aggravated criminal sexual assault of Sandy Shelton. The trial judge, in a bench proceeding, sentenced the defendant to death for the first degree murder conviction. On appeal, this court affirmed the defendant's convictions and death sentence. People v. Todd, 154 Ill. 2d 57, 180 Ill. Dec. 676, 607 N.E.2d 1189 (1992). The United States Supreme Court denied the defendant's petition for a writ of certiorari. Todd v. Illinois, 510 U.S. 944, 126 L. Ed. 2d 331, 114 S. Ct. 381 (1993).

The defendant instituted the present action on May 2, 1994, by filing a pro se petition for post-conviction relief in the circuit court of Clinton County. Counsel was later appointed to assist the defendant, and the defendant subsequently filed an amended post-conviction petition, raising a number of allegations of constitutional error in the original proceedings. The State moved to dismiss the petition without an evidentiary hearing. The circuit judge granted the defendant an evidentiary hearing on two of the issues raised in the amended post-conviction petition; the judge believed that the remaining claims either were waived or had been determined by this court on direct appeal. Following the evidentiary hearing, the circuit judge denied the defendant's amended petition. For the reasons set forth below, we affirm the judgment of the circuit court.

The evidence of the defendant's offenses was described in our opinion on direct appeal, and only a brief summary of the trial testimony is necessary here. The defendant and the victim were seen together at two bars, one in Carlyle and one in Beckemeyer, late on July 11, 1989, and early the following morning. At the second bar, in Beckemeyer, a bartender provided the defendant with a marker so that he could write on the wall, a practice customers were encouraged to take part in. There, the victim purchased a six-pack of beer, and she and the defendant then left together.

Scott Nielson, who had been a cellmate with the defendant in the Clinton County jail, testified to a statement made to him by the defendant about the present offenses. According to Nielson, the defendant said that he met a woman in a bar, where they had a beer, and that they then went to another bar, where they danced and had a couple of drinks. The defendant signed his name under the woman's name on the wall of one of the bars. They later bought some beer and went to the woman's house, in Beckemeyer. The defendant told Nielson that the woman put a Bob Seger tape in a tape player. After the two drank for awhile, the defendant made advances toward the woman, and she rebuffed him. The defendant then got up, used the bathroom, and got another can of beer from the kitchen. The defendant returned and made more overtures, which the woman again declined, pushing him away. According to Nielson, the defendant said that he then slapped the woman and blacked out. His next memory was of being at a convenience store later that morning.

Two persons saw the defendant's car between 2:30 and 3 a.m. on July 12 at the building in Carlyle where the defendant was renting an apartment. The car drove up to the building quickly, went over the curb, and stopped on the grass. The driver, whom the witnesses were unable to identify, made several trips inside the building, returning to his car with armloads of things, and then drove off.

Other testimony showed that the Pana police department received a telephone call at 8:25 a.m. on July 12 reporting that a woman who drove a Cordoba automobile had been murdered in Beckemeyer. An employee at a convenience store in Pana testified that the defendant came into the store around 8:15 and asked for change so that he could make a telephone call. A pay phone was located outside the store, and the police station was across the street.

The victim's daughter discovered her mother's body around 11 a.m. on July 12. The victim was lying on the floor and was naked. A shirt was wrapped tightly around her neck. The victim's daughter noticed a strong odor of natural gas, and found that the burners on the gas stove were turned on. Candles were burning in several rooms of the house. The cause of the victim's death was later determined to be strangulation; she had also been stabbed five times in the side. Vegetable oil had been spread on the victim, and drops of wax had been placed over that. One hundred dollars in cash was found in the pocket of the victim's jeans, which were lying near her body. Tests for the presence of semen and sperm were negative. In addition, a number of hairs were found on the victim, but none of them could be linked to the defendant; most of the hairs were from the victim herself. Other forensic testimony, however, established that the defendant's fingerprint and bare footprint and several shoeprints were found in the victim's house. Also, wax consistent with that found on the victim's body was discovered in the defendant's shower. In addition, a Bob Seger tape was later found in the victim's tape player, corroborating Nielson's account of the defendant's statement to him. The defendant's name was found under the victim's name on the wall of the bar where the defendant had requested a marker and where the defendant and the victim had been seen together. Also, the victim drove a Cordoba, as the caller to the Pana police department had stated. At the conclusion of the trial, the judge found the defendant guilty of first degree murder and attempted aggravated criminal sexual assault.

A capital sentencing hearing was subsequently conducted. At the hearing, the State established the defendant's eligibility for the death penalty on the basis of two aggravating circumstances: first degree murder in the course of robbery, and first degree murder in the course of attempted aggravated criminal sexual assault. At the second stage of the sentencing hearing, the State presented aggravating evidence from several witnesses. The defendant's former wife testified that the defendant had a bad temper and was occasionally violent. A former employer testified that the defendant was fired from his job at a facility for mentally retarded persons because he had used excessive force with two patients. A young woman described her encounter with the defendant a day before the offenses, when the defendant, whom she had not previously met, stopped to help her with her car and then attempted to touch and kiss her. The woman also testified that she declined the defendant's invitation to go to his apartment. The defense presented mitigating testimony from a number of the defendant's family members and friends. We will discuss the evidence introduced at the sentencing hearing in greater detail later in this opinion.


The Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-7 (West 1994)) permits an offender to challenge a conviction or sentence for violations of federal or state constitutional rights. People v. Sanchez, 169 Ill. 2d 472, 480, 215 Ill. Dec. 59, 662 N.E.2d 1199 (1996); People v. Thompkins, 161 Ill. 2d 148, 157, 204 Ill. Dec. 147, 641 N.E.2d 371 (1994). An action for post-conviction relief is a collateral proceeding, not an appeal from the underlying criminal judgment. People v. Brisbon, 164 Ill. 2d 236, 242, 207 Ill. Dec. 442, 647 N.E.2d 935 (1995); People v. Free, 122 Ill. 2d 367, 377, 119 Ill. Dec. 325, 522 N.E.2d 1184 (1988). "The function of a post-conviction proceeding is not to relitigate the defendant's guilt or innocence but to determine whether he was denied constitutional rights. [Citation.]" People v. Shaw, 49 Ill. 2d 309, 311, 273 N.E.2d 816 (1971). To obtain post-conviction relief, a defendant must establish a substantial deprivation of federal or state constitutional rights in the proceedings that produced the judgment being challenged. 725 ILCS 5/122-1 (West 1994); People v. Guest, 166 Ill. 2d 381, 389, 211 Ill. Dec. 490, 655 N.E.2d 873 (1995). Considerations of res judicata and waiver limit the scope of post-conviction review "to constitutional matters which have not been, and could not have been, previously adjudicated." People v. Winsett, 153 Ill. 2d 335, 346, 180 Ill. Dec. 109, 606 N.E.2d 1186 (1992). Accordingly, rulings on issues that were previously raised at trial or on direct appeal are res judicata, and issues that could have been raised in the earlier proceedings, but were not, will normally be deemed waived. People v. Coleman, 168 Ill. 2d 509, 522, 214 Ill. Dec. 212, 660 N.E.2d 919 (1995); People v. Ruiz, 132 Ill. 2d 1, 9, 138 Ill. Dec. 201, 547 N.E.2d 170 (1989). Principles of fundamental fairness, however, will support relaxation of the res judicata and waiver doctrines when appropriate. People v. Neal, 142 Ill. 2d 140, 146, 154 Ill. Dec. 587, 568 N.E.2d 808 (1990). With these considerations in mind, we now turn to the issues raised by the defendant in this appeal from the circuit court's denial of post-conviction relief.

The defendant first argues that trial counsel was ineffective for giving him incorrect advice about waiving a jury for trial and sentencing. In the proceedings below, the circuit judge rejected these claims after an evidentiary hearing. At the hearing, the parties presented conflicting evidence on this portion of the defendant's post-conviction petition. The defendant testified that on May 9, 1990, he was summoned to the Clinton County jail from the Washington County jail, in Nashville, where he had been staying. Early that afternoon, he met with his attorney, Maurice Killion, in a judge's chambers in the Clinton County courthouse. The defendant said that the meeting was brief, lasting only a minute to a minute and a half. According to the defendant, Killion said that the defendant would have to testify if he chose a jury trial, and that he should waive a jury because counsel had not been allowed sufficient time to prepare for a jury trial and because a jury would not believe Killion, for he was black. In addition, Killion said that the defendant would receive a sentence of 35 years' imprisonment if he agreed to waive a jury but that he would be executed within 30 days if a jury found him guilty.

The defense presented other witnesses at the evidentiary hearing who described the defendant's preparations for a jury trial. A minister who had regularly visited the defendant in jail said that he gave the defendant a haircut on the morning of May 9, 1990, the day when the waivers were accepted, and that the defendant did not say then that he would not have a jury trial. The defendant's mother, Sally Todd, who visited the defendant frequently while he was jail awaiting trial, testified that he never said, prior to May 9, that he was going to waive a jury.

The defendant's trial attorney, Maurice Killion, testified at the evidentiary hearing that he and the defendant discussed the jury waivers a number of times prior to May 9, 1990, the day when the waivers were executed. According to Killion, he met with the defendant in a judge's chambers in the courthouse for an hour to an hour and a half early in the afternoon of May 9. Killion testified that he recommended that the defendant waive a jury because a jury would want to hear the defendant testify, yet the defendant was reluctant to do so; because photographs from the crime scene were gruesome and would be upsetting to jurors; and because the trial judge might be lenient in the wake of a jury waiver. Killion denied telling the defendant to waive a jury for any of the reasons mentioned by the defendant in his testimony at the evidentiary hearing. Killion was impeached at the hearing with his testimony from a deposition, in which he said repeatedly that he was unable to remember what he and the defendant had discussed regarding the jury waiver. At the post-conviction hearing, Killion explained that he was deposed after only several hours' sleep the night before and that he had not known in advance what particular aspects of the case would be the focus of the deposition.

Assistant State's Attorney Robert Matoush testified at the evidentiary hearing that on May 9, 1990, Killion and the defendant met together in a room in the courthouse for one or two hours and that the defendant entered his jury waivers later that afternoon. Matoush denied that the defendant was ever offered a 35-year prison term in exchange for the jury waivers. According to Matoush, the prosecution offered only to forgo seeking the death penalty if the defendant pleaded guilty to first degree murder.

At the conclusion of the evidentiary hearing, the judge rejected the defendant's challenge to the jury waivers. The judge concluded that the defendant and trial counsel were together for a period of time considerably longer than the brief period alleged by the defendant. The judge believed that the oral admonitions given to the defendant at the time of the jury waivers were thorough, and the judge found nothing in the record to show a lack of knowledge or an absence of voluntariness on the part of the defendant in making the waivers. The judge also noted that the defendant did not voice any complaints at the sentencing hearing, notwithstanding his assertion that he had been promised a 35-year sentence. The judge also believed that trial counsel's reasons for preferring a bench trial were not unreasonable, and the judge found that it was not surprising that Killion's recollection would have improved with the passage of time, and through subsequent efforts at recalling these events.

A defendant's right to a jury at trial is guaranteed by both the federal and state constitutions (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, ยงยง 8, 13); the right to a jury at a capital sentencing hearing is statutory in origin (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(d); People v. Maxwell, 148 Ill. 2d 116, 142, 170 Ill. Dec. 280, 592 N.E.2d 960 (1992); People v. Erickson, 117 Ill. 2d 271, 289, 111 Ill. Dec. 924, 513 N.E.2d 367 (1987)). Waiver of either right must be knowing, intelligent, and voluntary. People v. Strickland, 154 Ill. 2d 489, 517, 182 Ill. Dec. 551, 609 N.E.2d 1366 (1992); People v. Buggs, 112 Ill. 2d 284, 292-93, 493 N.E.2d 332, 97 Ill. Dec. 669 (1986); People v. Albanese, 104 Ill. 2d 504, 534-36, 85 Ill. Dec. 441, 473 N.E.2d 1246 (1984). There is no prescribed formula that must be used by a judge before accepting a defendant's jury waiver, whether for trial ( People v. Smith, 106 Ill. 2d 327, 334, 88 Ill. Dec. 42, 478 N.E.2d 357 (1985); People v. Frey, 103 Ill. 2d 327, 332, 82 Ill. Dec. 661, 469 N.E.2d 195 (1984)) or for a death penalty hearing ( Buggs, 112 Ill. 2d at 292; Albanese, 104 Ill. 2d at 535-36).

The judge hearing the defendant's post-conviction petition rejected the defendant's allegations that he was improperly induced to waive juries for both trial and sentencing. This finding is not against the manifest weight of the evidence. The post-conviction judge found that the meeting between the defendant and trial counsel on May 9, prior to the jury waivers, lasted considerably longer than the brief period claimed by the defendant. In addition, the judge found that trial counsel's reasons for recommending the jury waivers were not unreasonable.

Any doubt whether the defendant's jury waivers were knowing and voluntary is dispelled by a consideration of the admonitions given to the defendant by the judge who accepted the waivers. On direct appeal, this court rejected two challenges to the comprehensiveness of the admonitions used to advise the defendant of his right to a jury for the capital sentencing hearing. People v. Todd, 154 Ill. 2d 57, 72, 180 Ill. Dec. 676, 607 N.E.2d 1189 (1992). The lengthy series of admonitions is reproduced below:

"THE COURT: Mr. Todd, I have been handed a document entitled Waiver of Jury and where you waive your right to trial by jury in each of the 5 Bills of Indictment and consent to then a trial by the Court. Appears to be signed by Robert B. Todd. Did you sign this here today?


THE COURT: Any threats or use of force used against you to get you to sign this?


THE COURT: Any promises made to you to get you to sign this?


THE COURT: You understand what this is doing?


THE COURT: What you were doing before with the jury trial, the State had to convince 12 people beyond a reasonable doubt that you were guilty of the charges, and now all they have got to ...

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