This opinion supplements our earlier opinion of People v. Thompkins, 181 Ill. 2d 1 (1998) (Thompkins III).
The defendant, Willie Thompkins, was convicted in the circuit court of Cook County of the 1980 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 (1988) (ThompkinsI).
On post-conviction review, this court ordered an evidentiary hearing on defendant's claim that he was denied effective assistance of counsel at his sentencing hearing because his counsel failed to adequately investigate and present mitigating evidence. People v. Thompkins, 161 Ill. 2d 148 (1994) (Thompkins II). The circuit court conducted the evidentiary hearing and concluded that defendant was not denied effective assistance of counsel at sentencing. Defendant appealed directly to this court. 134 Ill. 2d Rs. 603, 651(a). Defendant argued that the circuit court erred during the evidentiary hearing by refusing to allow defendant to make several offers of proof, by leaving the bench during another offer of proof, and by ordering defendant's offers of proof to be stricken from the record. Thompkins III, 181 Ill. 2d at 9. We held that this combination of events resulted in clear and serious error. Thompkins III, 181 Ill. 2d at 11-13. Accordingly, we ordered that the evidentiary hearing be reopened and retained jurisdiction over the cause. Thompkins III, 181 Ill. 2d at 23-24.
On remand, the circuit court reopened the evidentiary hearing as directed. A record of that proceeding has been filed with this court. Supplemental briefs have been filed, and additional oral argument has been heard. For the reasons that follow, we now conclude that defendant received ineffective assistance of counsel at his sentencing hearing. Consequently, we vacate defendant's death sentence and remand for a new sentencing hearing.
This court's prior opinions detail the evidence presented against defendant at his trial. We reiterate that evidence here only briefly and as necessary to resolve the ineffective-assistance-of-counsel issue before us. On December 23, 1980, the bodies of Gerald Holton and Arthur Sheppard were found lying outside in an unincorporated area near Markham, Illinois. Both men died from gunshot wounds to the head. The evidence disclosed that, on December 22, 1980, defendant's sister-in-law, Pamela Thompkins, arranged to purchase some cocaine from the victims. The victims brought cocaine to Pamela's home and placed it on a table in the basement, where Ronnie Moore and Sandra Douglas were seated. Defendant appeared with a gun and told the victims, "Put *** your hands on the table. This is the police." Defendant and Moore then bound the victims with telephone cord. According to Douglas, some hours later while she and Pamela were upstairs in the home, she heard gunshots in the basement. She then saw a body being dragged to the garage, and saw Moore escort Sheppard outside. Defendant later called Douglas and instructed her to clean up the basement, which was bloody. Upon his arrest, defendant gave an oral statement to police in which he admitted his participation in the murders, but attempted to shift the blame to Moore.
Following a jury trial, defendant was found guilty of the two murders and several other offenses. The jury returned its verdict on June 8, 1982.
I. The 1982 Sentencing Hearing
After defendant's conviction, the State asked the circuit court to convene defendant's capital sentencing hearing immediately. Defense counsel requested the circuit court to order a presentence investigation. The circuit court refused defense counsel's request, stating that a presentence investigation is not required in a capital case. Some discussion was then held concerning whether defendant would waive his right to a jury for sentencing.
The next morning, on June 9, 1982, the circuit court accepted defendant's jury waiver for sentencing. The sentencing hearing then commenced.
Defendant was found eligible for the death penalty under the multiple-murder eligibility factor. Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)(3). His eligibility is not at issue in this appeal.
The sentencing judge heard evidence relevant to aggravation and mitigation. The State presented three items of aggravating evidence. In 1971, defendant was convicted of attempted murder and aggravated battery for shooting a man named Michael Weaver. The evidence in that case revealed that, in late 1970, defendant and some other men spoke with Weaver about whether he would remain a member of the Black P. Stone Nation street gang. The men accused Weaver of informing the Markham police department about gang activities. Ultimately, defendant and the men escorted Weaver to "an area of 161st and Gauger." There, defendant kissed Weaver on both cheeks and then shot him three or four times and left him for dead. Weaver survived the shooting, but was left permanently paralyzed below the waist. Certified records showed that defendant was sentenced to 15 to 20 years in prison for shooting Weaver, and was released from prison and placed on parole on June 30, 1975.
The second item of aggravating evidence concerned an arrest. Shortly before his arrest in 1981 for the Holton and Sheppard murders, defendant was arrested for possession of a stolen motor vehicle and possession of a loaded firearm. The arresting officer testified that he stopped defendant while defendant was driving a stolen car. He found a loaded firearm on the car's backseat and a sawed-off shotgun in its trunk. Defendant's license plates were on the car, and the car's vehicle identification number had been replaced with a fraudulent number.
Lastly, the State presented a statement by Pamela Thompkins in which she gave further details about the Holton and Sheppard murders. According to the statement, while defendant was in the basement of her home with the victims, Pamela heard him say something like "lay down, get down on the floor, this is it." She also heard gunshots and then later saw blood on defendant's clothing and shoes. She subsequently witnessed defendant pull Holton's body out of a car trunk and dump it in a ditch. Pamela temporarily recanted this statement, following her own trial.
Defendant's case in mitigation consisted of four stipulations and the brief testimony of defendant's wife. The four stipulations concerned the possible origins of bullets used to kill Holton and Sheppard. Annetta Humphries would testify that, at 2:30 p.m. on December 22, 1980, she gave Holton a .357 revolver. She never saw Holton again. Linda Novelli would testify that, on November 8, 1979, she witnessed Holton purchase two .357 revolvers with certain serial numbers from a gun shop. On December 31, 1980, Novelli gave the revolver with one of those serial numbers to police. The police officer who received the revolver from Novelli would testify that he gave it to the Illinois State Police Crime Lab. A forensic scientist would testify that he examined the People's exhibits 49 and 50, which consisted of spent projectiles, a bullet core, and lead fragments, and determined that they could have been fired from the revolver that Holton had purchased and which Novelli later gave to police.
Barbara Thompkins, defendant's wife, testified in mitigation as follows. She married defendant on January 31, 1976. Defendant had two daughters from a previous relationship. Barbara and defendant had three children together, Tiffany, Willie, and Marshon. She and defendant owned a home together in Markham. After defendant's release from prison in 1975, defendant was employed as a nurse's assistant at the Rehabilitation Institute in Chicago. Defendant attended evening classes so that he could work in respiratory therapy. Defendant left his job at the Rehabilitation Institute in 1976. The next day he started work as a paramedic at the Cook County Department of Corrections. He worked there full-time until the fall of 1980. In July of 1980, defendant became ill with sarcodosis, a rare respiratory disease. As a result of his illness, defendant was hospitalized for six days and left his job as a paramedic. Defendant then worked periodically for his father doing construction work. From March 1981 through December 1981, defendant was in jail awaiting trial for these offenses. He was scheduled to start a new job for the City of Chicago rehabilitating gang members on June 1, 1982. Barbara's entire direct testimony took up fewer than eight pages of transcript. This concluded defendant's case in mitigation.
The next day, on June 10, 1982, the circuit court on its own motion ordered a presentence investigation to be conducted. The hearing was continued until July 1, 1982.
When the sentencing hearing was reconvened on July 1, 1982, the circuit court acknowledged receipt of a presentence investigation report and tendered copies to defense counsel and the State. The four-page report contained the following information about defendant: he was born on October 20, 1949; he attended three years of high school and completed his general equivalency diploma in 1972; he was enlisted in the army in 1967; he was currently unemployed but had worked as a paramedic and medical assistant in the past; he was married with four children; he lived in Markham in his own home; he was a Jehovah's Witness; he enjoyed family sports; he suffered from a rare lung disease; he was of sound mind and had no problems with alcohol or drugs; and he had a good childhood. The report also reiterated defendant's criminal background.
Also on July 1, 1982, defense counsel submitted over 50 personal letters to the circuit court on defendant's behalf in mitigation. Many of the letter writers were friends and fellow church members of defendant's parents. They described defendant as a good family man who was raised in a good, loving home and asked the circuit court to spare his life. Other letter writers included some of defendant's aunts, in-laws, neighbors, and friends. They described defendant as respectful and helpful, and as a loving family man. Many of the foregoing letter writers acknowledged, however, that they did not know defendant well or had lost touch with him since his childhood. One letter writer, Emitt R. Jordan, had been incarcerated with defendant as an adult. He described defendant as a decent person with "much concern about the welfare of others"; as being dedicated to his prison job in the tuberculosis hospital; as coming from a good home and family; and as a person who is dedicated to his own family and a great asset to them.
Closing arguments ensued. Defense counsel argued that defendant should not be sentenced to death for the two homicides because the State had presented no evidence at trial that defendant actually fired the shots which killed the two victims. Defense counsel pointed out that defendant claimed in his statement to police that his co-defendant, Ronnie Moore, actually fired those shots. Next, defense counsel briefly asked the circuit court not to dismiss the letters submitted on defendant's behalf. Finally, defense counsel made a plea for life imprisonment.
After considering the evidence before it, the circuit court found no mitigating factor sufficient to preclude the death penalty and sentenced defendant to death. In his ruling, the circuit judge acknowledged that he had read and considered all the letters submitted on defendant's behalf. He found the letter written by Jordan to be the most relevant. The circuit judge noted that many of the letter writers were writing "in respect to the defendant's parents" and did not appear to know defendant well.
II. The Appeal in Thompkins II
On appeal from the dismissal of his post-conviction petition, defendant argued that he was denied effective assistance of counsel at sentencing because his counsel failed to adequately investigate and present mitigating evidence. Thompkins II, 161 Ill. 2d at 165-68. Defendant had attached the affidavits of his parents, siblings, children, and friends to his post-conviction petition in support. This court reviewed those affidavits and concluded that they consisted of new evidence and that they were not duplicative of the letters submitted at the sentencing hearing. Thompkins II, 161 Ill. 2d at 166. After reviewing the affidavits, this court was "not sure" whether actual testimony from those individuals who knew defendant well "would not have provided the sentencing judge with a more complete portrayal of the defendant." Thompkins II, 161 Ill. 2d at 167. Consequently, we ordered the circuit court to conduct an evidentiary hearing to determine whether defense counsel was ineffective for failing to investigate and present such testimony. Thompkins II, 161 Ill. 2d at 167-68, 199.
The State contended in that appeal that defense counsel's strategy at the sentencing hearing was to argue that the State's evidence depicting defendant as the gunman was not so convincing that the death penalty was warranted. We stated in response:
"But the mitigating evidence now being proposed by the defendant would have complemented counsel's strategy. Favorable testimony by the defendant's family members would have fortified counsel's contention that the evidence of the defendant's role in the offenses was subject to doubt and did not justify sentencing the defendant to death." Thompkins II, 161 Ill. 2d at 167.
We therefore determined that defense counsel's strategy of arguing that defendant did not actually kill the victims would not excuse a failure to present other mitigating evidence.
III. The 1995 Evidentiary Hearing
The circuit court conducted the evidentiary hearing in December of 1995. Defendant presented the testimony of his trial counsel, several mitigation witnesses, and an investigator. Defendant also testified on his own behalf. In addition, defendant tendered other testimony that the circuit court excluded from consideration.
The same attorney represented defendant at trial and sentencing. Defense counsel was an attorney in private practice, but the circuit court appointed him to represent defendant. Counsel testified that he began representing defendant for the Holton and Sheppard murders in July of 1981, approximately one year before defendant's trial began. Because defendant was charged with a double homicide, counsel knew from the start that the State might seek the death penalty. He learned that the State would seek the death penalty just before trial.
Counsel averred that he met with defendant in preparation for defendant's sentencing hearing, but could not recall the number of occasions. He met with defendant in the courthouse anteroom and in jail; however, he never met with defendant in his office "specifically concerning the sentencing hearing." When counsel met with defendant in his office prior to defendant's trial, they discussed the possible penalties that defendant could receive. Counsel also asked defendant general questions about his background:
"I asked him about himself. Who he was. What he was about. I asked him about his family. General information. I asked him about his background. If he had any criminal background, things of that nature."
A colloquy then followed between defendant's post-conviction counsel and his trial counsel:
"Q. What did you tell Mr. Thompkins with respect to what type of evidence you intended to present at the capital sentencing hearing?
A. Well, I advised him more of his options to find out what he wanted me to do as opposed to me telling him what to do. It was his case. It was not my case.
Q. Did you tell Mr. Thompkins that you would be performing any investigation for purposes of preparing for the capital sentencing hearing when you met with him?
A. I told him it would be important to look at certain things. That was prior to the decision. Well, yes, I did. I told him that there were certain things that should be investigated.
Q. What were the things that you told Mr. Thompkins should be investigated?
A. Basically, who he was, and what he was.
Q. Did you suggest to Mr. Thompkins any specific avenues to uncover that information?
A. Not that I recall, no."
Counsel admitted that, although he asked defendant about his background, he never asked defendant to provide him with the names of persons who could help him prepare for the sentencing hearing.
Counsel could not recall how much time he had spent preparing for defendant's sentencing hearing, conducted 12 years earlier. When asked if he met with any members of defendant's family to prepare for the sentencing hearing, counsel responded that he met once with defendant's wife, but could not recall for how long. He also spoke with defendant's parents "but, in the sense of having an actual meeting [with them], I would not define it as an actual meeting." Counsel had no memory of meeting with any of defendant's four brothers or any of defendant's five children. He had no memory of defendant's daughters from outside his marriage. He never spoke with defendant's aunt, Margaret Haskell.
Counsel did not call defendant's parents to testify at sentencing because he did not believe that their testimony would have any impact on the case. He based this decision on the fact that defendant had opted for sentencing by the judge, rather than the jury. He admitted, however, that he did not know that defendant would waive the jury until, at the earliest, the night before the sentencing hearing began. Counsel did not call any other family members to testify at sentencing because he ...