The opinion of the court was delivered by: Justice Rathje
Defendant, Aaron Patterson, appeals from the trial court's dismissal of his post-conviction petition. Because defendant was sentenced to death for the underlying murder conviction, he appeals directly to this court. See 134 Ill. 2d R. 651(a).
A jury in the circuit court of Cook County convicted defendant of the murders of Vincent and Rafaela Sanchez. Subsequently, the jury found that there were no mitigating factors sufficient to preclude a sentence of death, and the trial court sentenced defendant to death. Defendant appealed, and we affirmed defendant's convictions and sentence. People v. Patterson, 154 Ill. 2d 414 (1992). The Supreme Court denied defendant's petition for a writ of certiorari. Patterson v. Illinois, 510 U.S. 879, 126 L. Ed. 2d 175, 114 S. Ct. 219 (1993).
Thereafter, defendant filed a timely post-conviction petition. The State moved to dismiss the petition, and the trial court granted the State's motion. Defendant now appeals, arguing first that he was denied the effective assistance of counsel when his attorney failed to (a) discover and present additional evidence to support defendant's claim that his confession was coerced; (b) discover and present evidence to support defendant's motion to reopen his motion to suppress; (c) present evidence at trial that defendant's confession was coerced; (d) present, during the post-trial proceedings, new evidence relating to defendant's allegations of torture; (e) supplement the record on direct appeal or seek a remand; (f) interview witnesses who could have provided exculpatory testimony; (g) cross-examine witnesses properly; (h) seek to remove for cause the judge who presided over the pretrial proceedings; (i) argue that the trial court did not ask the proper questions during voir dire; (j) object to the use of residential burglary as an eligibility and aggravating factor; and (k) object to the trial court's praise of the jury. In addition, defendant argues that (1) new evidence demonstrates that the trial court erred in denying defendant's motion to suppress statements; (2) the State knowingly used perjured testimony; (3) he was denied his right to a fair trial when a police officer volunteered that defendant had taken a polygraph; and (4) the State violated its duties under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), by failing to tender the results of fingerprint examinations.
In May 1986, defendant and Eric Caine were indicted for the Sanchez murders. Their case originally was assigned to Judge James Bailey. Defendant sought a substitution of judge. Rather than randomly assigning a new judge, Judge Bailey assigned the case to Judge Arthur Cieslik. Defendant moved to vacate the assignment to Judge Cieslik, and that motion was denied. Subsequently, defendant sought leave to file a writ of mandamus ordering that the case be assigned randomly. This court denied defendant's motion.
Thereafter, defendant filed a motion to suppress statements that he had made while in police custody. After a hearing, the trial court denied that motion. Defendant's attorney then filed a renewed motion to suppress statements or to reopen the evidence. The crux of defendant's argument in his motions was that, to obtain defendant's confession, the police officers struck him, attempted to suffocate him, and threatened him with a gun. The trial court, Judge John Morrissey *fn1 presiding, denied that motion. Thereafter, defendant and Caine were simultaneously tried before separate juries.
The evidence at defendant's trial established that, on April 19, 1986, Chicago police officers discovered the victims' badly decomposed bodies in the Sanchez home. The police were called when Wayne Washington, a teenager who routinely performed odd jobs for Vincent, discovered that the Sanchezes' door was open and that there was blood on the floor. Washington told the police that he had seen Caine and DeEdward White across from the Sanchez house.
The police took White into custody to question him about the Sanchez murders. Subsequently, Marva Hall, White's 16-year-old cousin, told the police that defendant had offered to sell her a chain saw and a shotgun. Defendant had claimed that he obtained the items from two elderly Mexicans that he had stabbed to death. Under cross-examination, Hall admitted that she had told a defense investigator that defendant had not told her that he had committed the murders. She explained, however, that she told the investigator this only because she was scared of defendant.
Several days after Hall spoke with the police, defendant was arrested on an unrelated charge. Detective James Pienta testified that, when he learned that defendant had been arrested, he questioned him about the Sanchez murders. Defendant told Pienta that Caine had approached defendant and said that he needed guns. Defendant and Caine knew that the Sanchezes had guns. They reached the house by traveling down the Illinois Central railroad tracks. Once at the house, defendant waited in the garage while Caine entered the house. Shortly thereafter, Caine came running out with a shotgun in a duffle bag, and the two fled.
When Pienta asked defendant to elaborate, defendant added that he had entered the Sanchez house and "came up like-up like a straight up Ninja" and "shanked" the "old man" because he was taking too much time to get the "good stuff." Rafaela began screaming so defendant "shanked" her too. Thereafter, defendant repeated the same story to Pienta and Assistant State's Attorney Kip Owen. At this time, defendant also stated that he had thrown the knife away on the railroad tracks. Although the police searched the railroad tracks for the knife, they never discovered it.
Former Assistant State's Attorney Peter Troy testified that defendant told him that Caine, Michael Arbuckle, "Cochise," "Rambo," and defendant went on a "mission" to the Sanchez home to retrieve guns and drugs. The remainder of defendant's statement to Troy was consistent with his original statement to Pienta. Troy reduced this statement to writing, but defendant refused to sign it.
An assistant medical examiner testified that both victims died of stab wounds and that both had defense wounds. An expert in fingerprint identification testified that both a palmprint and a fingerprint recovered from the scene belonged to Vincent. A second fingerprint, recovered from a tape recorder, did not belong to Vincent, Rafaela, Wayne Washington, Willie Washington, Arbuckle, Caine, or defendant.
Detective William Marley testified for defendant that, after hearing defendant's statement, Owen wanted the police to perform additional investigation before he would authorize the filing charges against defendant. Carlton Ford testified that he, Steve Weathersby, and defendant were driving around in late April 1986, trying to sell a saw Weathersby owned. Ford testified that they saw Hall that day and asked her if she knew anyone who would want the saw. Ford also testified that there were no guns in the car. Defendant's former girlfriend testified that she was with defendant on the night of April 17, the night that the State contends that the Sanchezes were murdered.
This court affirmed defendant's sentence and conviction on direct appeal. Defendant then filed a post-conviction petition, relying largely on evidence that numerous other people had made allegations similar to defendant's about police brutality at Area 2. In particular, defendant relied on a report from the police department's office of professional standards (OPS). This report found that the abuse of prisoners at Area 2 was systemic. After allowing defendant to amend his petition, the trial court granted the State's motion to dismiss. In dismissing the petition, the trial court stated that "any nexus between Area 2 Chicago Police Department Headquarters' alleged systemic torture of people and Aaron Patterson is highly tenuous at best." Defendant subsequently appealed.
Ineffective Assistance of Counsel
Defendant first raises several arguments as to how he was deprived of the effective assistance of counsel. To support a claim of ineffective assistance of counsel, a defendant must allege facts demonstrating that his attorney's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 695, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068-69 (1984). A defendant must satisfy both prongs of the Strickland test; thus the failure to satisfy either prong precludes a finding of ineffective assistance of counsel. People v. Shaw, 186 Ill. 2d 301, 332 (1998). Because the trial court dismissed defendant's petition without holding an evidentiary hearing, we review that dismissal de novo. People v. Coleman, 183 Ill. 2d 366, 388 (1998).
Failure to Discover and Present Evidence to Support Defendant's Claim of Torture
Defendant, who was represented by several different attorneys before his trial, asserts that each of these attorneys, along with his trial counsel and his post-trial counsel, was ineffective for failing to properly discover and present evidence that (1) Area 2 Lieutenant Jon Burge, who defendant alleges participated in torturing him, has a documented pattern of leading and participating in similar acts of torture; (2) Burge and the detectives who served under him had contemporaneously beaten and abused other suspects and witnesses in defendant's case; and (3) defendant suffered psychological injury from the torture. Defendant also contends that his direct appeal counsel was ineffective for failing to raise the ineffectiveness claim with respect to his pretrial and trial counsel.
Defendant asserts that Luther Hicks, who represented defendant on his motion to suppress, was aware both of the details of defendant's torture allegations and that a red-haired officer along with Detectives Pienta, Marley, Daniel McWeeny, and Raymond Madigan were involved.
Defendant alleges that Hicks should have discovered that the red-haired officer was Burge. Further, Hicks should have discovered that his supervisor was representing Andrew Wilson and that Wilson had raised similar torture allegations against Burge. Moreover, defendant contends that Hicks should have questioned other assistant public defenders to determine if their cases involved similar torture allegations at Area 2. Defendant concludes that, had Hicks properly conducted this investigation, he would have discovered almost 50 other victims of torture at Area 2.
Further, defendant asserts that Hicks should have discovered that Burge had actively participated in a "systemic policy and practice of torture" while at Area 2 and was involved in at least 50 incidents while he was there. Moreover, he claims that Hicks should have discovered that Pienta had been involved in prior acts of beating while working with Burge. After the other officers had finished, McWeeney would often act as the "good cop" who would help the prisoner if he would cooperate.
The problem with defendant's argument is that much of the information relating to other allegations of torture would simply not have been discoverable by Hicks at the time of the suppression hearing in 1987. At approximately the same time that defendant's case was proceeding, defendant's current attorney, G. Flint Taylor, Jr., was representing Wilson in a federal suit against the City of Chicago, Burge, and other officers. Notwithstanding the fact that Taylor had available to him the full panoply of the civil discovery process, he did not discover the vast majority of the information upon which defendant now relies until February 1989, two years after Hicks filed defendant's motion to suppress. Moreover, Taylor discovered the information relating to the other allegations of torture only because he was assisted by an anonymous police department informant.
Additionally, beyond interviewing anyone who had ever been a prisoner at Area 2, we can conceive of no manner in which Hicks reasonably could have obtained this information. At the time, the OPS had no reports indicating that several other people had been tortured. Defendant has identified no other available source that could provide this information.
After reviewing defendant's allegations and considering the facts that were known when Hicks filed the motion to suppress, we will not find Hicks ineffective for failing to discover information that only an informant could provide. Because defense counsel would not have discovered this information, defendant was not prejudiced by counsel's failure to investigate.
Defendant also alleges that Hicks should have investigated other contemporaneous allegations of torture from Caine, Arbuckle, and Illya Rowland. To support his claim with respect to Caine, defendant attaches Caine's original and amended motions to suppress. These motions allege that Caine was not informed of his Miranda rights, that the police officers promised him leniency, that the police officers struck him in the head and kicked him in the stomach, and that he was intoxicated when he gave his statement. The motions, however, do not identify any of the officers involved or describe with any particularity misconduct similar to what defendant suffered. Without some evidence indicating that the same officers or supervisors were involved or that the same type of misconduct was involved, we have no basis upon which to conclude that this evidence was relevant to defendant's claims. See People v. Hobley, 159 Ill. 2d 272, 312 (1994) (holding that evidence of other allegations of torture was inadmissible, in part, because it was not similar to the allegations made by defendant).
Rowland's affidavit alleges that the officers told him to implicate defendant, but it does not assert that the officers mistreated him. Arbuckle, in his affidavit, states that an Area 2 lieutenant (whom he later identified as Burge) threatened him. He does not allege, however, that Burge or any other officer used physical coercion. His allegations are limited to asserting that the officers verbally threatened him. Because these allegations are quite different from defendant's, we are unable to conclude that they are relevant to defendant's claim. See Hobley, 159 Ill. 2d at 312.
After reviewing the evidence submitted by defendant, we are unable to conclude that defendant has demonstrated that, had Hicks interviewed these witnesses, a reasonable probability exists that the result of the suppression hearing would have been different.
As for defendant's claim about evidence of a psychological injury, defendant has not explained why Hicks would request a psychiatric examination of defendant. Defendant has not alleged that he told Hicks that the torture caused him psychological damage. Moreover, defendant has not alleged that any of his actions would have placed Hicks on notice that defendant had suffered a psychological injury. Without some evidence that would indicate to Hicks that defendant had suffered a psychological injury, we are unable to conclude that Hicks acted in an objectively unreasonable manner when he failed to secure a psychiatric examination of defendant.
Defendant also alleges that Hicks was ineffective in his presentation of hearsay evidence during defendant's motion to suppress. At the motion, Hicks sought to introduce etchings made by defendant in the interrogation room after he had been interrogated. Photographs that Hicks sought to introduce revealed the following etchings on the bench in the interrogation room:
"I lied about murders police threatened me with violence slapped and suffocated me with plastic-no phone-no dad signed false statement to murders (Tonto) Aaron."
"Sign false statements to murder, Tonto on statements is code word Aaron."
Additionally, the photographs revealed the phrase "Aaron lied" etched in the door of the room.
During the motion to suppress, Hicks argued that the etchings were admissible under various exceptions to the hearsay rule. The trial court rejected Hicks' argument. On appeal, defense counsel argued that the statements were admissible (1) as spontaneous declarations, (2) as prior consistent statements, and (3) under the doctrines of curative admissibility or completeness. This court rejected each of those claims. Patterson, 154 Ill. 2d at 452-54.
Defendant now claims that his trial and appellate attorneys were ineffective because they advanced the wrong arguments. Defendant explains that the etchings were admissible at the motion to suppress not because they fell within an exception to the hearsay rule but because hearsay is admissible at pretrial hearings in which the trial court is determining the admissibility of evidence.
The appellate court has recognized that hearsay evidence is admissible during a motion to suppress, even though it is not admissible at trial. People v. Lesure, 271 Ill. App. 3d 679, 680 (1995). Moreover, federal law supports defendant's argument. Federal Rule of Evidence 104(a) provides, in relevant part, "Preliminary questions concerning *** the admissibility of evidence shall be determined by the court ***. In making its determination it is not bound by the rules of evidence except those with respect to privileges." (Emphasis added.) Fed. R. Evid. 104(a). The Supreme Court has explained that no automatic rule precludes the admission of hearsay when a trial court is determining the admissibility of evidence. United States v. Matlock, 415 U.S. 164, 175, 39 L. Ed. 2d 242, 252, 94 S. Ct. 988, 995 (1974); see also United States v. Bolin, 514 F.2d 554, 557 (7th Cir. 1975) (holding that "it is clear that hearsay evidence is admissible in a hearing on a motion to suppress").
After reviewing the cases cited by defendant, we agree with defendant that they support his contention that hearsay evidence is admissible during a hearing on a motion to suppress. That, however, is not sufficient to grant defendant relief on his claim. Under Strickland, a defendant must demonstrate a reasonable probability that, had this evidence been presented, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Given the context of defendant's claim, that means that he must demonstrate that a reasonable probability exists that, had his appellate attorney argued on appeal that Hicks was ineffective, this court would have agreed. To do so, this court would have had to reach the conclusion that a reasonable probability exists that, had the etchings been introduced as admissible hearsay, the trial court would have concluded that defendant's confession should have been suppressed. With this conclusion, we cannot agree.
When Hicks presented the pictures of the etchings during the motion to suppress, the trial court, in addition to excluding them from evidence as hearsay, specifically found that it did not believe that defendant had established that the etchings in the pictures were in the same condition as the etchings were when defendant allegedly made them. Moreover, the trial court twice stated that it believed that the etchings were not relevant to the motion to suppress.
As noted by the Court in Matlock, although hearsay may be admissible during motions to suppress, the trial court is entitled to "give it such weight as his judgment and experience counsel." Matlock, 415 U.S. at 175, 39 L. Ed. 2d at 252, 94 S. Ct. at 995. Here, we know exactly how much weight the trial court would have given it, had the court considered it: none. While this conclusion is by no means binding on any subsequent trier of fact, it is sufficient to allow us to conclude that, even if Hicks had argued that the etchings were admissible hearsay, no reasonable probability exists that defendant's confession would have been suppressed.
Failure to Investigate, Present, and Preserve Evidence During the Motion to Suppress Statements or Reopen the Motion to Suppress
Defendant next contends that when Brian Dosch, the attorney who succeeded Hicks, sought to reopen the motion to suppress, he erred because he failed to (1) inform the court that the red-haired officer was Burge and that Burge supervised and participated in the policy and practice of torture at Area 2; (2) inform the court of the similarities between defendant's allegations of torture and Wilson's allegations; (3) document the other claims of torture by filing the "proffer" *fn2 prepared by Wilson's civil attorneys; and (4) subpoena Burge's record from the OPS. Defendant also alleges that Dale Coventry, Dosch's supervisor, failed to inform Dosch both of the similarity between defendant's allegations of torture and the allegations raised by Wilson, Melvin Jones, and of the actions of Burge, Pienta, and McWeeny.
Allegations Relating to Coventry
With respect to the allegations relating to Coventry, defendant has cited no rule of law, and we are aware of none, that holds that the defendant's attorney's supervisor owes a constitutional duty to the defendant. Because defendant has failed to demonstrate that Coventry owed defendant a constitutional obligation, we must agree that the trial court properly dismissed the claims with respect to Coventry.
Defendant's Identification of Burge as the Red-Haired Officer
As to the claims involving Dosch, defendant does not explain how Dosch's identification of Burge as the red-haired officer would have affected either the trial court's ruling on the motion or this court's decision on appeal. Notably, on direct appeal, this court held that, although the red-haired officer was a material witness, it was within the trial court's discretion not to require that the officer be called. Patterson, 154 Ill. 2d at 450. Defendant has failed to explain why a reasonable probability exists that, had either this court or the trial court known the identity of the red-haired officer, either court would have ruled differently. Accordingly, this claim must fail.
Similarities Between Defendant's Allegations and Wilson's Allegations
Next, defendant claims that counsel erred by failing to inform the court of the similarities between defendant's and Wilson's torture allegations. Counsel could be ineffective for failing to introduce this evidence only if it would have been admissible at defendant's motion to suppress. Evidence is admissible if it is relevant to an issue in dispute and if its prejudicial effect does not substantially outweigh its probative value. People v. Gonzalez, 142 Ill. 2d 481, 487 (1991). Evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Gonzalez, 142 Ill. 2d at 487-88. Probability is tested in the light of logic, experience, and accepted assumption as to human behavior. Marut v. Costello, 34 Ill. 2d 125, 128 (1966).
In past cases, this court has declined to find evidence of prior police brutality to be relevant when the defendant offered only generalized allegations of coercive activity at Area 2 (People v. Orange, 168 Ill. 2d 138, 150-51 (1995)) and when the allegations of brutality were not similar and occurred three years before the case at bar (Hobley, 159 Ill. 2d at 312).
The appellate court has found evidence of prior brutality admissible when the allegations were similar and involved the same officers, the incidents occurred only 13 months apart, and both the prior allegations and the allegations in the case before the court contained evidence of injury consistent with police brutality. People v. Banks, 192 Ill. App. 3d 986, 994 (1989). The appellate court also has found evidence of prior allegations of brutality admissible where the defendant could present evidence that "the police officers who questioned him systematically tortured other suspects to obtain confessions at or near the time he was questioned." People v. Cannon, 293 Ill. App. 3d 634, 640 (1997). Additionally, the United States Court of Appeals, Seventh Circuit, has found evidence of prior allegations of brutality admissible when it involves the same officer, involves similar methods of torture, and occurs at or near the time of the current allegation. Wilson v. City of Chicago, 6 F.3d 1233, 1238 (7th Cir. 1993).
Here, the State contends that the evidence of prior allegations of torture is inadmissible because defendant has failed to demonstrate that he suffered physical injuries consistent with his allegations of torture. Although we believe that this is a relevant consideration, we do not believe that the absence of physical injury, standing alone, precludes evidence of prior acts of brutality from being admissible. See Cannon, 293 Ill. App. 3d at 642.
Here, defendant testified at his suppression hearing that, when he was being transported to Area 2, he was in a car with Marley, Pedersen, Pienta, and James Hill, a friend of defendant. During this trip, Pienta reached across defendant and slapped Hill across the face. After doing this, Pienta turned to defendant and stated that, if he had been the officer who had found defendant, defendant would now be dead. Later, when the officers were interrogating defendant at the police station, Pienta said to the other officers in the room, "I don't know about the rest of you, but I am tired of listening to this bullshit, I am about ready to kick his ass."
Pienta then left the room and returned with four other officers. Pienta was carrying a manila folder and a gray plastic item, later identified as a typewriter cover. Thereafter, Pienta handcuffed defendant's hands behind his back. Another officer turned off the lights, and Pienta slapped defendant across the chest and placed his hands around defendant's neck. Pedersen then grabbed the typewriter cover and placed it over defendant's face. Defendant testified that he could not breathe when the typewriter cover was over his face. Also, when the typewriter cover was over his face, the other officers hit him in the chest.
After approximately one minute, the officers removed the typewriter cover and turned the lights back on. Defendant then requested to speak to an attorney. Pienta replied, "No, you are not getting an m.f. attorney." The officers then asked defendant if he was ready to cooperate. He told them that he had said all that he was going to say. The officers again turned the lights off and placed the typewriter cover over defendant's face. After approximately one to two minutes, the officers removed the typewriter cover and turned the lights on.
Subsequently, defendant requested something to drink, and an officer gave him a plastic cup containing a brown liquid. The officer told defendant that the cup contained bourbon. The officers then told him that he was to tell an assistant State's Attorney that he killed the victims. The officers left him alone for approximately one hour. During that time, defendant used a paper clip to scratch a statement into the bench on which he was sitting. An assistant State's Attorney then arrived with a red-haired officer, later identified as Burge. After Burge left, pursuant to defendant's request, defendant told the assistant State's Attorney that he wanted an attorney and that he had nothing to say. Thereafter, the assistant State's Attorney left. Burge then entered the room and sat across from defendant.
After taking a seat, Burge told defendant, "You are fucking up." Defendant did not respond, and Burge said, "We told you if you didn't do it-if you didn't do what we told you to do that you was going to get something worse than what you had earlier. And what you had earlier will be a snap compared to what you will get." Burge then placed his revolver on the table and asked, "[Y]ou are going to cooperate now, right?" Defendant's only reply was to request an attorney. Burge then said, "[Y]ou know, that we [sic] just doing our job and this is nothing new to you, you know, the way we go about doing things around here, you know. If you decide to tell us that, it is your word against our word. And who are they going to believe you or us." Burge then holstered his revolver and left the room.
After that, Troy entered the room and told defendant that he was going to write a statement that defendant was to sign. Defendant said that he would sign the statement if Troy allowed him to make a phone call. Troy agreed. Defendant called an attorney and his grandmother. Troy took him to the interview room and asked ...