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People v. Ganus

December 31, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
VICTOR L. GANUS, APPELLANT.



The opinion of the court was delivered by: Justice Nickels

29-May 1998.

Following a jury trial in the circuit court of Randolph County, defendant, Victor Ganus, was found guilty of first degree murder in connection with the death of Lucas Gonzales in October 1988. At the time of the murder, defendant was an inmate at the Menard Correctional Center where he was serving a natural life sentence for the 1985 murder of Richard Misslich. Lucas Gonzales, the victim in the present case, was a fellow inmate at Menard. After the jury found defendant guilty of the murder of Gonzales, a bifurcated hearing was held before the same jury to determine whether defendant should be sentenced to death. The jury first determined that defendant was eligible for the death penalty on the basis of the statutory aggravating factors that defendant had been convicted of murdering two or more individuals (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(b)(3)) and also that the murdered individual was an inmate of an institution of the Department of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(b)(2)). Thereafter, following the presentation of evidence in aggravation and mitigation, the jury found that there were no mitigating factors sufficient to preclude the imposition of the death sentence, and the trial court sentenced defendant to death. This court affirmed defendant's conviction and sentence on direct appeal. People v. Ganus, 148 Ill. 2d 466 (1992), cert. denied, 506 U.S. 1083, 122 L. Ed. 2d 362, 113 S. Ct. 1055 (1993). Defendant subsequently filed a petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1992)), seeking relief from his conviction and sentence. Following an evidentiary hearing, the trial court denied defendant's petition and this appeal followed.

The victim, Lucas Gonzales, was killed in his cell at Menard in November 1988. Defendant confessed his responsibility for the crime to Illinois Department of Corrections (Department) officials. According to defendant's statement to the Department officials, on November 5, 1988, he "thought about" robbing and murdering Gonzales in Cell 530. Defendant obtained a knife and fashioned a garrote from pieces of wood and the wire from a broom. The next morning, defendant told the inmates in Cell 523 to be away from their cell in the afternoon. Defendant went to Cell 523 after lunch, waited until Gonzales was alone, and then proceeded to his cell. There, defendant choked Gonzales with the garrote until Gonzales was unconscious. Defendant reported to authorities that he told Gonzales that "he [Gonzales] raped the wrong `bitch' out in the street." Defendant explained that he learned this information from other inmates in connection with his job as "cell house security" for the Latin Kings "organization."

Two of defendant's fellow inmates testified at trial that defendant had asked them to leave their cell on the day of the murder, as defendant had indicated in his confession. An autopsy on the victim revealed that the cause of death was asphyxiation due to strangulation and blood loss from stab wounds.

ANALYSIS

Defendant argues on appeal that the trial court erred in denying his claims seeking post-conviction relief on the based on the violation of his right to the effective assistance of counsel at sentencing. Defendant argues that trial counsel failed to adequately develop and present mitigating evidence that defendant did not act entirely on his own initiative in the murder of Lucas Gonzales. According to defendant, a "mountain" of evidence was available to demonstrate that the murder was a "concerted gang hit." Defendant argues that the jurors might have been inclined to spare his life if they believed others shared responsibility for the murder. According to defendant, counsel's failure to show the circumstances of the murder left the jurors with the impression that defendant had the cunning and wherewithal to plan and carry out the Gonzales murder by himself. Defendant contends that because trial counsel raised the "gang hit" theory but failed to provide sufficient evidentiary support, the jury may have viewed defendant as deceitful and cowardly in attempting to shift the blame for the killing to others. Defendant also contends that trial counsel was deficient in failing to correct a misimpression created by the prosecution that defendant had killed his earlier victim, Richard Misslich, in the same manner that he killed Lucas Gonzalez. Finally, defendant faults trial counsel for failing to investigate mitigating evidence of defendant's mental condition.

Claims of ineffective assistance of counsel are evaluated in accordance with the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In order to succeed on such a claim, the defendant must show both deficient performance by counsel and resultant prejudice. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. To establish deficient performance, the defendant must show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. This entails demonstrating that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693-94, 104 S. Ct. at 2064-65.

We will address defendant's contentions in an order different from that presented in his appellate brief. We begin with defendant's claim that trial counsel was ineffective in failing to investigate and present evidence of defendant's mental health and cognitive functioning. In support of his post-conviction petition, defendant submitted a report of a neuropsychological evaluation conducted by Michael M. Gelbort, Ph.D., in 1993. Based on a defendant's background and health history, and the results of neuropsychological testing, Dr. Gelbort observed that defendant was alert, oriented to person, place and time, and appropriate in mood and affect. However, Dr. Gelbort noted that defendant was easily angered and "hypervigilant" to threat, "react[ing] very quickly with little or no intervening thought processes." According to Dr. Gelbort,"[t]his emotional volatility is seen throughout his history and is consistent with, as well as a likely outgrowth of[,] his neurocognitive deficits and dysfunction." Dr. Gelbort summarized his findings as follows:

"The [test] results show neuropsychologically impaired functioning in a variety of areas including sensory perceptual functioning, motor functioning, learning and memory, and higher cognitive or executive functions. Intelligence scores vacillated significantly with measures of reasoning and judgment being lowest and in the borderline range of functioning. Reasoning and problem solving were in the impaired or cognitively dysfunctional range. Consistent problems with functional attention and concentration were observed. The patient is able to communicate adequately but receptive and expressive language deficits were observed. There is evidence in the protocol and the patient's history of the presence of a language based learning disability, specifically, a dyslexia. The patient shows repeated evidence of neuropsychological impairment and dysfunction. His performance places him in the impaired or dysfunctional as opposed to the normal population."

Defendant also submitted a written psychological evaluation prepared by Harry E. Gunn, Ph.D. Based on his examination and testing, Dr. Gunn observed that defendant had a tendency to be excessively absorbed with his own needs and insufficiently aware of the need of others. Defendant is impulsive, shows poor judgment and has difficulty controlling himself. Defendant yearned for personal relationships with others, but feared rejection and felt "unworthy." Defendant's demanding nature and lack of social skills compounds his difficulties in developing relationships. Dr. Gunn noted indications of substantial depression and feelings of futility. Dr. Gunn's report concludes with the observations that,"[d]iagnostically [defendant] shows a Severe Depression Disorder NOS with an underlying Borderline Personality Disorder. He is at times impulsive and particularly with the MMPI-2 shows `Psychopathic Deviancy.' "

Although defense counsel evidently did not enlist the services of a practicing psychologist or psychiatrist to evaluate defendant's condition, it is important to emphasize that in other respects defense counsel was extremely well prepared for sentencing. This is not a case where counsel essentially neglected to prepare for sentencing. See, e.g., People v. Perez, 148 Ill. 2d 168 (1992). Counsel did not treat the sentencing phase as "a mere postscript to the trial." Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir. 1989). To the contrary, the record shows that defense counsel consulted with attorneys experienced in the defense of capital cases, and obtained the assistance of David Randall, a court-appointed mitigation specialist who began his investigation of mitigating evidence months before trial. Although Randall was not a licensed psychologist, he had earned an undergraduate degree in psychology and was nearing completion of his studies for a Ph.D. in clinical psychology. Randall's training involved work in clinical settings and counseling students. Randall investigated defendant's background and compiled a social history which formed the basis of the defense's mitigation strategy.

At the sentencing hearing, defense counsel presented the testimony of several members of defendant's family who related the details of defendant's exceptionally troubled childhood. According to these witnesses defendant endured severe physical and emotional abuse and neglect at the hands of his volatile and domineering father, Kenneth Ganus. The evidence indicated that Kenneth Ganus refused to acknowledge paternity of defendant, claiming that defendant's mother was out "fooling around" and somebody else got her pregnant. Kenneth Ganus referred to defendant as "ugly" and "retarded." Kenneth Ganus also frequently administered severe physical beatings to defendant, his mother and his siblings. In the words of defendant's uncle, Kenneth Ganus "beat [the children], slapped them, kicked them around." Kenneth Ganus never bought gifts for any of his children except at Christmas, and even then defendant received nothing. Evidence was presented that on two occasions when defendant suffered accidental injuries, Kenneth Ganus neglected or only reluctantly obtained appropriate medical attention for defendant.

Additionally, David Randall testified regarding the results of his investigation of defendant's social history. Randall related information contained in the presentence report prepared in 1986 in connection with defendant's first murder conviction. Randall noted that defendant had withdrawn from public school in 1978 because he was placed in a juvenile facility operated by the Department of Corrections. Department records showed that intelligence testing conducted when defendant was a juvenile indicated an IQ of 81, placing defendant in the "dull-normal" or "low average" range. Testing also indicated the possibility that defendant suffered from dyslexia. According to the Department records of defendant's health history, defendant had once attempted to commit suicide by ingesting valium. Defendant also had a history of frequently running away from home.

Evidence was presented that defendant had a history of drug and alcohol use reaching back to the age of 12. During a period of incarceration in Missouri, defendant began to "shoot" narcotics (apparently heroin). Defendant's brother, Terry Ganus, picked defendant up after his release and drove him back to Illinois. Terry Ganus testified that defendant's physical appearance scared him: defendant looked "hard and mean" and had lost a considerable amount of weight. During the ride, defendant "bought a couple of bottles of Jack Daniels and just guzzled them." Forty-one days after being released from prison in Missouri, defendant murdered ...


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