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01/23/98 PEOPLE STATE ILLINOIS v. WILLIE THOMPKINS

January 23, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
WILLIE THOMPKINS, APPELLANT.



The Honorable Justice Bilandic delivered the opinion of the court.

The opinion of the court was delivered by: Bilandic

The Honorable Justice BILANDIC delivered the opinion of the court:

The defendant, Willie Thompkins, was convicted in the circuit court of Cook County of the murders of two individuals and sentenced to death. On direct appeal, this court affirmed defendant's convictions and death sentence. People v. Thompkins, 121 Ill. 2d 401, 117 Ill. Dec. 927, 521 N.E.2d 38 (1988).

Defendant sought post-conviction relief in the Cook County circuit court. His supplemental post-conviction petition, along with an addendum, alleged 34 separate grounds for relief. The circuit court dismissed the entire petition without conducting an evidentiary hearing. This court affirmed the circuit court's dismissal of 33 of the 34 claims raised therein. People v. Thompkins, 161 Ill. 2d 148, 204 Ill. Dec. 147, 641 N.E.2d 371 (1994). We, however, reversed the circuit court's dismissal of one portion of claim XV, which alleged that defendant was denied effective assistance of counsel at his sentencing hearing because his counsel failed to adequately investigate and present mitigating evidence. We remanded the cause to the circuit court and directed it to conduct an evidentiary hearing on this claim.

The circuit court conducted the evidentiary hearing and concluded that defendant was not denied effective assistance of counsel at sentencing. Consequently, the circuit court denied the only claim that had remained in defendant's post-conviction petition. Defendant appeals directly to this court from that denial. 134 Ill. 2d Rs. 603, 651(a). For the reasons that follow, we remand this cause with directions to reopen the evidentiary hearing.

FACTS

As noted, defendant filed a post-conviction petition alleging, in relevant part, that he was denied effective assistance of counsel at sentencing because his counsel failed to adequately investigate and present mitigating evidence. In support of this claim, defendant attached to the petition the affidavits of his parents, siblings, children, a friend, and coworkers. This court reviewed those affidavits and concluded that they consisted of new evidence and that they were not duplicative of certain letters submitted at the sentencing hearing. Thompkins, 161 Ill. 2d at 166. After reviewing the affidavits, this court was "not sure" whether "live testimony" from those individuals who knew defendant well "would not have provided the sentencing judge with a more complete portrayal of the defendant." Thompkins, 161 Ill. 2d at 167. We therefore directed the circuit court to conduct an evidentiary hearing on this claim.

The evidentiary hearing commenced on December 4, 1995. Because we determine that the evidentiary hearing must be reopened, we review only those facts pertinent to our holding. At the hearing, defendant presented the testimony of his trial counsel, several mitigation witnesses, and an investigator. He also testified on his own behalf. In addition, defendant tendered other testimony and evidence that the circuit court excluded from consideration.

In particular, before the evidentiary hearing began, defendant sought to include expert witnesses on his witness list. The State filed a motion in limine to preclude their testimony. The State maintained that this court's remand order did not contemplate the use of expert testimony at the evidentiary hearing, that defendant was attempting to raise a new claim, and that defendant had waived any claim not specified in his post-conviction petition.

At the hearing on the motion in limine, defendant described the nature of the proffered expert testimony. Dr. Michael Gelbort was a psychologist who had assessed defendant with psychological testing. Dr. Myra Levick was an art therapist and psychologist who had examined one of defendant's daughters. Jeffry Eno was a social worker and mitigation specialist from the Capital Resource Center who would testify as to what types of mitigating evidence were available in 1982, the year defendant's sentencing hearing was conducted. Lastly, W. Jameson Kunz was an expert in defending capital cases and would testify that defense counsel's performance at sentencing fell below standards prevailing at the time.

The circuit court took the matter under advisement. The following day, the court granted the State's motion in limine. The court correctly noted that it is within the trial court's discretion whether to permit the introduction of expert testimony and that the threshold requirement for its admission is that the proffered testimony be of assistance to the court or jury. See People v. Hall, 157 Ill. 2d 324, 339-40, 193 Ill. Dec. 98, 626 N.E.2d 131 (1993). Stating that the proffered expert testimony would be of no assistance to him, the circuit judge ruled that he would not hear any expert testimony.

Later, during the evidentiary hearing, defendant filed a motion for reconsideration of the circuit court's ruling precluding expert testimony or, in the alternative, leave to make offers of proof. The motion requested leave to make the offers of proof via live testimony or, in the alternative, by way of affidavit. The motion included a brief summary of the substance of the experts' testimony and was supported with over 80 pages of affidavits, exhibits, and resumes from the expert witnesses.

In response, the State filed a motion to strike all the materials attached to the motion to reconsider, which the circuit court granted. The circuit court then denied defendant's request to make offers of proof of the four experts' testimony, with one exception. The court allowed the affidavit of mitigation specialist Jeffry Eno to be included in the record. The court refused to allow a live offer of proof from Eno, even though he was on the witness stand. Defendant then attempted to submit a portion of Eno's testimony as fact testimony, not expert testimony. The circuit court refused an offer of proof of Eno's fact testimony as well. The circuit court concluded that an oral offer of proof would "merely be corroborative with what you attempted to get into the record with this 12-page affidavit. I don't need that offer of proof. Neither does the Supreme Court."

Just before closing arguments, defendant again raised the issue of offers of proof. The circuit court repeated its earlier ruling that it would not allow offers of proof on expert testimony or Eno's fact testimony. The court also stated that, with the exception of Eno's affidavit, no experts' affidavits should appear in the record because they had been ordered stricken.

Also, near the end of the hearing, defendant filed the affidavits of two additional mitigating witnesses, Clarence McKay and Eddie Madgett. Defendant did not call these witnesses to testify in person. Defendant claimed that he was submitting the two affidavits in lieu of live testimony in the interest of concluding the hearing and because of a scheduling conflict. The State moved to strike these two affidavits. The State argued that defendant sought to use the affidavits rather than live testimony as a means to prevent the State from cross-examining McKay and Madgett. The circuit court granted the State's motion to strike. Defendant never sought to make offers of proof of the affidavits of McKay and Madgett.

In addition, at the evidentiary hearing, the circuit court excluded the testimony of Karen Popek, defendant's attorney on direct appeal. The circuit judge allowed an offer of proof of Popek's testimony to be given. At the State's suggestion, however, the judge left the courtroom during this offer of proof. Defendant's attempt to persuade the circuit judge to remain in the courtroom to hear the offer was unavailing.

Popek testified that she obtained a copy of defense counsel's trial file from him when she began representing defendant on appeal. Defendant's offered exhibit of the trial file represents the entire file as she obtained it. Further, defense counsel told Popek that defendant was a "great guy" whom he "really liked." He never said that defendant had been uncooperative. Defendant was forthcoming with Popek and never failed to respond to her requests.

After considering the evidence admitted at the evidentiary hearing, the circuit court held that defendant was not denied effective assistance of counsel at his sentencing hearing. Accordingly, the circuit court denied defendant's post-conviction petition and affirmed his death sentence. The circuit court entered this final judgment on January 11, 1996.

On February 9, 1996, defendant moved to vacate the judgment and submitted a memorandum of law in support of that motion accompanied by all the material ordered stricken from the record. The stricken material includes the more than 80 pages of information by defendant's proffered experts and the affidavits of McKay and Madgett. The State again moved to strike all this material. The circuit court granted the State's motion. This appeal followed.

Despite the foregoing events, all the materials that the circuit court ordered stricken from the record are contained in the record on appeal. The State filed a motion in this court to strike all these materials from the ...


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