The opinion of the court was delivered by: Justice Bilandic
Defendant, Terrance Towns, appeals from an order of the circuit court of St. Clair County dismissing his amended petition for post-conviction relief without an evidentiary hearing. Defendant's appeal lies directly to this court pursuant to Supreme Court Rule 651(a) (134 Ill. 2d R. 651(a)).
Following a jury trial, defendant was convicted of murder. The jury also found defendant eligible for the death penalty and that there were no mitigating factors sufficient to preclude a sentence of death. Accordingly, the trial court sentenced defendant to death. On direct appeal, this court affirmed defendant's conviction and death sentence. People v. Towns, 157 Ill. 2d 90 (1993). The United States Supreme Court denied defendant's petition for a writ of certiorari. Towns v. Illinois, 511 U.S. 1115, 128 L. Ed. 2d 678, 114 S. Ct. 2122 (1994).
On November 22, 1994, defendant instituted the present action under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1992)), by filing a petition for post-conviction relief. On September 19, 1995, defendant filed an amended post-conviction petition. The State filed a motion to dismiss the amended post-conviction petition. After hearing arguments on the State's motion, the post-conviction Judge dismissed the amended petition without conducting an evidentiary hearing.
Defendant now appeals from the dismissal of his amended post- conviction petition without an evidentiary hearing. For the reasons set forth below, we affirm in part and reverse in part the judgment of the circuit court, and remand the cause to that court for an evidentiary hearing.
The facts relating to defendant's trial are adequately set forth in this court's opinion on direct appeal. People v. Towns, 157 Ill. 2d 90 (1993). We repeat only those facts pertinent to the issues in the amended post-conviction petition. We, however, set forth in some detail the facts relating to defendant's sentencing hearing.
On February 22, 1990, the body of Charles Woodcock, Jr., was found lying on the floor of a convenience store in Fairview Heights, Illinois. At the time Woodcock's body was discovered, it was determined that $2,000 was missing from the store. The victim's car was also found on fire that same morning. The car stereo had been removed from the victim's car. It was later determined that Woodcock sustained two gunshot wounds to the head, one of which was fatal.
The evidence revealed that defendant had been acquainted with Woodcock prior to his death, and that defendant had been seen on several occasions in the convenience store talking to Woodcock. Defendant made oral and written statements to the police in which he admitted that he shot the victim twice in the head and took the money from the store, drove away in the victim's car, removed the stereo equipment, and set the car on fire. Defendant also admitted that the robbery of the convenience store had been planned for approximately two weeks. After searching the home in which defendant, his mother, and his brother lived, the police discovered in defendant's brother's bedroom a handwritten note, which detailed the plan for the robbery of the convenience store. In addition, the police found a gun which belonged to defendant's mother and which was kept in her bedroom. That gun was later determined to have fired the bullets that killed Woodcock. The stereo equipment that had been removed from Woodcock's car was found in defendant's sister's home.
Defendant testified on his own behalf at trial. He denied any intention of shooting Woodcock because he considered him to be a friend. Rather, defendant insisted that on February 21, 1990, he carried his mother's gun to East St. Louis while visiting his sister's home. Defendant stated that he carried the gun for the purpose of protecting himself from gang members who had previously beaten and harassed him. He still had possession of the gun when he left his sister's home and returned to his own home in Fairview Heights. That evening he went to the store where Woodcock worked to buy some chips and candy. Woodcock told him to return later that evening to discuss a stereo convention. Defendant returned to the store around 10:30 p.m. While in the store, Woodcock accused defendant of taking some money that Woodcock had left on the counter. Defendant denied taking the money and offered to allow Woodcock to search him. Defendant then realized that he was still carrying his mother's gun, which he had taken with him to East St. Louis. Woodcock picked up the phone and stated that he was going to call the police. Defendant responded by pulling out his gun. As defendant cocked the hammer, his hand slipped and the gun accidentally fired. Defendant then "shook" and "jerked the gun back," and it again fired accidentally a second time. Defendant claimed that he was afraid to call the police. Instead, he took some money from the store and drove away in Woodcock's car. Defendant further denied planning the robbery and denied any connection to the note found in his brother's bedroom.
The jury found defendant guilty of first degree murder. Shortly after defendant's conviction, the trial court began defendant's capital sentencing hearing. At the eligibility phase of the sentencing hearing, the State argued defendant's eligibility on two grounds: (1) the murder was committed during the course of an armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(b)(6)); and (2) the murder was committed in a cold, calculated and premeditated manner pursuant to a preconceived plan, scheme or design to take a human life by unlawful means, and the conduct of defendant created a reasonable expectation that the death of a human being would result therefrom (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(b)(10)). The State offered and the court accepted into evidence defendant's birth certificate, which listed his date of birth as April 24, 1970. Defendant was 19 years of age at the time of the murder. The State also called two witnesses. Lucille Woodcock, the victim's mother, testified that defendant was at her house for dinner on February 18, 1990. Scott Woodcock, the victim's brother, stated that on February 18, 1990, defendant was at the victim's home and looking at the victim's car stereo equipment. The State rested. Defense counsel called defendant to testify as its only witness. Defendant denied any preconceived plan to rob or shoot the victim. After considering the evidence, the jury found defendant eligible for the death penalty based on the fact that defendant was 18 years old or older at the time of the murder, and that the murder occurred during the course of an armed robbery. Ill. Rev. Stat. 1989, ch. 38, par. 9-1(b)(6).
The following day, the sentencing jury heard evidence relevant to aggravation and mitigation. The State admitted into evidence a certified copy of a criminal information, plea to charge and sentencing in a prior case against defendant. According to the information, on October 30, 1989, defendant committed the offense of burglary in that he entered a motor vehicle with the intent to commit a theft. On February 16, 1990, defendant pleaded guilty to this charge and was sentenced to one year of probation. In connection with this charge, Jonathon Muelchi testified and identified defendant as the person who stole the stereo from his car. The only other witness called by the State was David Jacknewitz, defendant's probation officer. Jacknewitz testified that a person who is placed on probation is not allowed to carry a gun and that defendant was advised of that fact.
Defendant's case in mitigation consisted of the testimony of four witnesses. Defendant's mother, Delores Taylor, testified that defendant had experienced problems with gang members in East St. Louis, who had beaten him. She indicated that the gang members told defendant that if he stayed around they would kill him. For that reason she moved the family to Fairview Heights. Due to this prior problem with gang members, she claimed that defendant was afraid to go to East St. Louis. According to Taylor, she believed defendant when he said that Woodcock's death was an accident because he would not lie to her. Moreover, she indicated that defendant had always been a good child, and that she did not have any problems with defendant being aggressive because defendant is very loving. Before this incident, she had never seen him with a gun. Taylor also stated that defendant entered the Job Corps in Maryland because he wanted to get away from East St. Louis and the gang members. Defendant stayed with the Job Corps for five or six months but then returned and remained home when she became ill. She indicated that she believed defendant could be rehabilitated because she has had no problems with him. As a final point, Taylor testified that she is a single mother and attends to defendant and her other three children daily.
The defendant's girlfriend's mother, Mary Ann Morgan, testified that she knew defendant for 10 years and had not seen him commit any act of violence. Morgan was aware of defendant's problems with avoiding gang members, who had "jumped" him in the past. She believed that defendant could be rehabilitated. Morgan stated that defendant assisted her in caring for her bedridden husband. She loved defendant for his assistance with her husband.
Perlene Jackson, defendant's grandmother, testified that she was not aware of any other problems that defendant may have had prior to this incident. Defendant has been a good grandson. Jackson believed that if defendant was given an opportunity he could be rehabilitated. Jackson further testified that defendant's mother works most of the time so as to provide for her four children. She indicated that defendant's mother tried to do the best for her children. For that reason, she hated to see defendant's mother go through this trauma.
Lastly, Earnestine Jackson, defendant's aunt, testified on behalf of defendant. Jackson stated that she did not know of any violence on the part of defendant. She did notice, however, that defendant had fights with gang members, who picked on him. She indicated that the reason the family moved from East St. Louis was because gang members had "jumped" defendant in the past. Jackson believed that if given the opportunity, defendant could be rehabilitated and become a good citizen.
With the foregoing evidence before it, the jury on November 16, 1990, found no mitigating factors sufficient to preclude the death penalty. The trial Judge therefore sentenced defendant to death.
On direct appeal this court affirmed defendant's conviction and his death sentence. People v. Towns, 157 Ill. 2d 90 (1993). Defendant subsequently filed an amended post-conviction petition, which alleged that constitutional errors occurred during defendant's trial, sentencing hearing, and post-trial proceedings. Attached to the petition were numerous affidavits from defendant's relatives and friends and a mitigation report, which was prepared by a mitigation specialist. We set forth only those claims that are raised by defendant in this appeal. First, the petition alleged that defendant was deprived of an impartial jury because the prosecutor and a juror did not reveal that they had attended law school together. Second, the petition alleged that defendant was denied effective assistance of counsel during the sentencing hearing because counsel failed to investigate and present certain mitigating evidence. Third, the petition ...