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October 14, 1997


Appeal from the Circuit Court of Williamson County. No. 87-CF-117. Honorable Donald Lowery, Judge, presiding.

Presiding Justice Kuehn delivered the opinion of the court. Maag and Goldenhersh, JJ., concur.

The opinion of the court was delivered by: Kuehn

PRESIDING JUSTICE KUEHN delivered the opinion of the court:

This case features the disappearance of a man named William Rose. Rose vanished mysteriously in June of 1984. He has never been seen since, and his whereabouts remain unknown. It is quite reasonable to suspect that he will never be heard from again.

In 1987, the mystery surrounding Rose's disappearance unraveled into a bizarre tale of murder spun by defendant's offspring, Jimmy and Valerie Faulkner. Jimmy Faulkner offered an eyewitness account of Rose's unnatural demise. It is an eerie account of Rose's death and disappearance that the entire Faulkner family now disavows. When offered at defendant's trial, it found support in other evidence presented and rang true to the Williamson County jury that heard it.

Jimmy's testimony told of a dreadful night sometime in June of 1984. On that night, Jimmy's father insisted that Jimmy accompany him to his parents' bedroom. There he saw his naked mother on top of Rose, engaged in adulterous sexual intercourse. His mother did not appear surprised at his father's presence. She did pause, however, to ask why Jimmy was there. Apparently, Jimmy was brought to the bedroom by his father to witness a killing. Jimmy watched as his father plunged a knife blade deep into Rose's chest. As Rose's heart pumped, blood gushed from the wound. Rose was taken to the bathroom, placed into the bathtub, and watched until his life drained away.

When the bedlam created by defendant's shocking deed subsided, defendant's wife, Judith, and his two children, Jimmy and Valerie, helped dispose of the corpse. Rose was wrapped in a drop cloth and stuffed into the family car's trunk. His remains were taken to a remote and abandoned strip mine pit, where they were left to suffer nature's ravages. The Faulkner family suffered silence and shared a dark secret for several years.

Defendant currently serves a life sentence without parole. We affirmed his murder conviction in People v. Faulkner, 186 Ill. App. 3d 1013, 542 N.E.2d 1190, 134 Ill. Dec. 683 (1989). We are asked now to overturn a denial of postconviction relief.

This appeal raises but one question. Does defendant deserve a new trial because of trial counsel's failure to properly impeach Jimmy Faulkner? To prevail, defendant must show that counsel's neglect in attacking Jimmy's credibility was so deficient that counsel failed to function as the "counsel" guaranteed defendant under the sixth amendment. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Defendant must show a degree of error that, in effect, vitiates counsel's contemplated constitutional role. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

Defendant's claim mounts two bases for impeachment never pursued by defense counsel at defendant's trial. Both clearly bear on the worth of Jimmy Faulkner's trial testimony. Defendant inveighs the failure to expose the true motivation behind his son's resolve to bear false witness against him. That motivation is set forth in a 1991 affidavit in which Jimmy repudiates his trial testimony. Jimmy belatedly swears that Rose's murder is a complete and outright canard. He swears that his testimony was no more than the false product of self-interest motivated by threats from authorities.

Shortly before the 1987 trial, Jimmy recanted his initial murder account. In a written statement to defense counsel, he insisted that his earlier statements to authorities were totally false. In his 1991 affidavit, Jimmy discloses that the written recantation was met by an unannounced and secret visit from authorities. Jimmy claims that the Williamson County State's Attorney and the case agent in charge of the investigation met with him in response to notice of Jimmy's recantation. Jimmy swears that authorities assured him that he and his other family members would be jailed unless he persisted in his fabricated eyewitness murder account. Thus, the trial testimony belies the truth. Jimmy testified to a pack of lies in order to protect himself and his family. Defense counsel did not expose Jimmy's deceit.

Defendant also denounces the failure to adduce testimony from Helga Davis, a Faulkner family friend. Counsel was clearly aware of Davis and her bearing on Jimmy's testimony. Unquestionably, Davis possessed knowledge of prior statements to discredit that testimony. Jimmy confided to Helga Davis, prior to trial, that his initial disclosures about William Rose's untimely death were lies. He confessed to her that the testimony relied upon by the prosecution was a fabricated yarn.

At first blush, the ineffective assistance of counsel claim raises obvious shortcomings in trial counsel's efforts to discredit a key prosecution witness. Upon closer examination, however, defendant's claim exhibits the worst of hindsight's ills. It offers an inconsiderate critique of trial counsel's work from a perspective that did not exist when the work was performed. Those in search of a constitutional peg for postconviction relief often neglect warnings set forth long ago that constrain sixth amendment claims. The Supreme Court cautioned over a decade ago:

"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to ...

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