The opinion of the court was delivered by: Presiding Justice Cousins
Appeal from the Circuit Court of Cook County Post Conviction The Honorable Frank Deboni, Judge Presiding.
A jury convicted the defendant of one count of aggravated arson and two counts of first degree murder. The trial court sentenced him to 30 years' incarceration in the Illinois Department of Corrections for the arson and imposed the mandatory sentence of natural life for the two murders. The defendant appealed to this court alleging various errors by the trial court as well as ineffective assistance of counsel. We affirmed. People v. Topps, 293 Ill. App. 3d 39, 687 N.E.2d 106 (1997). Subsequently, Chrales Topps (the petitioner) filed pro se for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 (West 1996)), for deprivation of his sixth amendment right to counsel. He alleged ineffectiveness of trial counsel (on different grounds than those enumerated in his direct appeal) as well as ineffectiveness of appellate counsel. The circuit court summarily dismissed the petition as frivolous and patently without merit. The petitioner now appeals, arguing that the circuit court should have appointed counsel for him and allowed him to file an amended petition.
The petitioner, Charles Topps, and his co-defendant, Arthur Eppinger, were charged by indictment with aggravated arson and first degree murder. The charges arose from a fire that killed two people in an apartment building at 306 North Fifth Avenue. At trial, a fire investigator testified that the fire was deliberately set in apartment 7A, which belonged to Dennis Moore.
Moore testified that he and Eppinger met Topps on the evening of the fire and that Topps asked Eppinger to help him obtain some cocaine. The three men located a drug dealer, but the dealer refused to sell to them due to Topps' loud, aggressive behavior. Then they went to Moore's apartment and drank beer. Moore recounted that Topps gave him $30 and asked him to try once more to find some drugs. When he was unable to buy drugs from a dealer who lived in the building, Moore went around the west side of the city attempting to locate another source. The apartment building was in flames when he returned.
In a statement to the police, Topps related that when Moore did not return with cocaine, he and Eppinger were enraged. Topps ransacked the kitchen, emptied some drawers and cabinets and overturned a table. Eppinger suggested that Topps burn the building down. Topps then saw Eppinger attempting to light a blanket on fire, and he encouraged Eppinger to do so. After the blanket had been ignited, the two men left the apartment. The building manager, who had come because of the noise, escorted them out of the building.
Betty Ringo, a resident of the building, testified that shortly before the fire she heard two men arguing in the hallway. When she looked outside, she saw the men outside of apartment 7A. A few minutes later she heard the fire alarm and looked and saw flames emanating from that apartment.
Angela Collins, whose parents died in the fire, testified that on the evening in question she was visiting a friend in another apartment on the same floor of the building. She heard two men in the hallway yelling that they would burn down the building if they didn't get their money. She testified that she looked outside and saw the two men. On cross-examination by Eppinger's attorney, however, she recanted much of this testimony.
Eppinger was still at the scene of the crime when the police arrived. After talking to Eppinger, detectives brought in Topps for questioning. Topps gave a statement in which he admitted that he was in the apartment, but denied that he or Eppinger set the fire. He took a polygraph test and was released. Eppinger was also questioned and gave a statement.
Two years later, State Police reopened the investigation. Topps came in for questioning at their request. He gave another statement, this time admitting that Eppinger started the fire and that he had encouraged him to do so. The police then placed Topps under arrest.
Eppinger had a bench trial, and Topps had a jury trial. The trials were simultaneous. Prior to trial, both Topps and Eppinger moved to suppress their statements to the police. After a hearing, the judge suppressed Eppinger's statement on the grounds that it was the product of coercion, but allowed Topps' statements. The court acquitted Eppinger and the jury convicted Topps.
During the interview for his presentencing report, Topps told the investigator that he had been treated for paranoid schizophrenia while in the army. He said that over the years he had been prescribed various antipsychotic medications. He claimed that he had heard voices since he was a child. The trial court, after examining the report and hearing evidence in mitigation, imposed the mandatory sentence of natural life imprisonment for the two murders as well as a sentence of 30 years' imprisonment for the arson, to run concurrently.
Topps appealed to this court, contending that the trial court erred in admitting hearsay by Eppinger that implicated him and that he was denied effective assistance of counsel. Topps argued that his counsel was deficient for, inter alia, not perfecting impeachment of Angela Collins, failing to introduce evidence promised in opening statement, and not requesting a curative instruction after the acquittal ...