The opinion of the court was delivered by: Justice Bilandic
cons.-Agenda 1-January 2000.
Defendant, Patrick Page, was charged in the circuit court of Cook County with two separate murders and various other offenses. Defendant was first tried for the May 1987 murder of John Goodman. The jury found defendant guilty of murder, armed robbery, and home invasion. The jury then found that defendant was eligible for the death penalty (see Ill. Rev. Stat. 1985, ch. 38, pars. 9-1(b)(3), (b)(6)), and that there were no mitigating factors sufficient to preclude a sentence of death. The trial court therefore sentenced defendant to death for the murder conviction. The trial court imposed concurrent 60-year terms of imprisonment for defendant's remaining convictions. On direct appeal, this court affirmed defendant's convictions and sentences. People v. Page, 155 Ill. 2d 232 (1993) (Goodman case).
Defendant was next tried for the fall 1985 murder of Charles Howell. The jury found defendant guilty of murder and armed robbery. The jury also found that defendant was eligible for the death penalty (see Ill. Rev. Stat. 1985, ch. 38, pars. 9-1(b)(3), (b)(6)), and that there were no mitigating factors sufficient to preclude a death sentence. The trial court sentenced defendant to death for the murder conviction and to an extended 60-year term of imprisonment for the armed robbery conviction. This court affirmed defendant's convictions and sentences on direct appeal. People v. Page, 156 Ill. 2d 258 (1993) (Howell case).
Defendant filed a pro se post-conviction petition in the Goodman case. Appointed counsel filed a post-conviction petition in the Howell case. Appointed counsel later filed a supplemental post-conviction petition that consolidated the issues in both cases. The State filed a motion to dismiss the post-conviction petition in each case. Appointed counsel subsequently filed a consolidated amended post-conviction petition that superseded all prior post-conviction petitions but refers to exhibits attached to those earlier petitions. The State filed a motion to dismiss the consolidated amended post-conviction petition (post-conviction petition). After hearing arguments on the State's motion, the trial court dismissed defendant's post-conviction petition without an evidentiary hearing.
Defendant now appeals from the dismissal of his post-conviction petition. For the reasons set forth below, we affirm the trial court's dismissal of defendant's post-conviction petition.
The facts relating to defendant's trials are set forth in this court's opinions on direct appeal. Because an understanding of some of the trial evidence is necessary to evaluate defendant's arguments in this post-conviction proceeding, we present a summary of that evidence.
Defendant has been convicted of three murders, the Goodman and Howell murders at issue in this case, as well as the murder of Dale Andrew Devine. On May 16, 1987, defendant was arrested by the Olympia Fields police department as part of the investigation into Goodman's murder. Over the next several days, defendant gave law enforcement authorities several statements admitting his involvement in the three murders. On two occasions during that time, defendant led Olympia Fields police officers on an unsuccessful search of the area in Wisconsin where defendant claimed that he buried Goodman's body.
On May 19, 1987, defendant gave a court-reported statement in which he confessed to the three murders. Defendant revealed that, during the fall of 1985, defendant, Kenneth Cheney, and Gerald Feinberg murdered Devine. Devine and Cheney became involved in a drug deal in which Devine apparently "ripped off" Cheney. Devine was residing with defendant at this time. Defendant contacted Feinberg and told him that Devine was at his house. Feinberg came to defendant's house, and defendant and Feinberg tied up Devine with an extension cord. Defendant then called Cheney and told him that Devine was at his house. Cheney came over and, using a hypodermic needle, injected Devine with barbiturates. Defendant took approximately $100 from Devine's pocket and gave it to Cheney.
Defendant, Feinberg, and Cheney then transported Devine to a wooded area near Wilmington, Illinois. Cheney asked Devine how he wanted to die, either by being stabbed with a knife or by being injected with a hypodermic needle. Devine indicated that he preferred the injection. Cheney attempted to inject an air bubble into Devine's bloodstream. When this did not kill Devine, Cheney slit Devine's throat with the knife. Cheney then directed defendant and Feinberg to stab Devine, which they did. After the murder, defendant, Cheney, and Feinberg drove to Cheney's home, where they drank alcohol and smoked marijuana. Two days later, defendant and Cheney returned to the murder scene, and Cheney poured gasoline on Devine's body and set it on fire. Defendant was convicted in the circuit court of Will County of the murder of Devine, and was sentenced to a 60-year term of imprisonment. The appellate court affirmed defendant's murder conviction and sentence. People v. Page, 196 Ill. App. 3d 285 (1990) (Devine case).
Defendant also confessed to the fall 1985 murder of Charles Howell. Defendant stated that he and Feinberg killed Howell because Howell had been a roommate of Devine, and Devine's disappearance would make Howell suspicious. Defendant and Feinberg decided to murder Howell and bury him in a forest preserve in Park Forest, Illinois. Defendant and Feinberg planned the murder in advance by drawing a map of the area where they would bury Howell, taking shovels from defendant's home and from the home of a neighbor, going to the planned burial site in advance to dig a hole, and luring Howell to the site under the pretense of having a party and engaging in a drug transaction there. Defendant stabbed Howell, and Feinberg hit him in the head with a large stick. Defendant and Feinberg laid Howell in the hole that they had dug, covered him with dirt and branches, and started a fire over the grave with lighter fluid. Feinberg, who had taken Howell's car keys from the pocket of Howell's jeans prior to burying him, gave the keys to defendant as they were leaving the forest preserve. Defendant stated that he wanted the keys because Howell's car was parked in front of defendant's house. After the murder, defendant and Feinberg went to defendant's house, smoked marijuana, and drove around in Howell's car. A few days later, defendant sold Howell's car to a junkyard.
Defendant's statement also included a confession to the murder of John Goodman. Defendant stated that, on May 6, 1987, he and Feinberg made plans to rob and kill Goodman. Defendant originated the plan because he had a grudge against Goodman. On Thursday, May 7, 1987, defendant and Feinberg visited Goodman's home in Olympia Fields. When Goodman was in another room, defendant displayed a knife to Feinberg. Defendant then approached Goodman and asked Goodman about some photographs that Goodman had taken of defendant. When Goodman began to laugh, defendant stabbed him in the chest four times. Defendant said that Goodman had not touched him prior to that.
Defendant and Feinberg then put Goodman's body in the bathtub while they wiped the house clean of their fingerprints. They stole credit cards and cash from Goodman's wallet. They wrapped Goodman's body in a sheet and a rug and placed the body in the trunk of Goodman's car. Defendant and Feinberg obtained a shovel and a can of gasoline and left in Goodman's car. After stopping at a tavern in southeastern Wisconsin to eat and play pool, they drove to a rural area in Wisconsin, dug a hole, and buried Goodman's body. They then burned the sheet and rug over the grave.
Defendant further stated that, on May 9, 1987, he and a friend transported some electronic equipment from Goodman's house to defendant's father's house. Defendant described his and his friends' use of Goodman's credit cards during the weekend following the murder. Defendant and Feinberg abandoned Goodman's car at a commuter station the following Tuesday or Wednesday.
As discussed, defendant was convicted of all three murders and received the death penalty for the murders of Goodman and Howell. This appeal follows the dismissal of defendant's post-conviction petition without an evidentiary hearing in the Goodman and Howell cases. For the reasons set forth below, we hold that the trial court properly dismissed defendant's post-conviction petition without an evidentiary hearing. We therefore affirm the judgment of the trial court.
The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1998)) provides a remedy to criminal defendants who claim that substantial violations of their federal or state constitutional rights occurred in their trial or sentencing hearing. People v. Towns, 182 Ill. 2d 491, 502 (1998). A post-conviction action, however, is a collateral proceeding, not an appeal from the underlying judgment. Towns, 182 Ill. 2d at 502. The purpose of the post-conviction proceeding is to allow inquiry into constitutional issues involved in the conviction and sentence that have not been, and could not have been, adjudicated previously on direct appeal. Towns, 182 Ill. 2d at 502. The doctrine of res judicata bars consideration of issues that were raised and decided on direct appeal. Towns, 182 Ill. 2d at 502; People v. Griffin, 178 Ill. 2d 65, 73 (1997). Issues that could have been presented on direct appeal, but were not, are waived. Towns, 182 Ill. 2d at 503; Griffin, 178 Ill. 2d at 73.
A defendant is not entitled to an evidentiary hearing on a post-conviction petition as a matter of right. People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). Rather, an evidentiary hearing is warranted only where the allegations of the post-conviction petition, supported where appropriate by the trial record or accompanying affidavits, make a substantial showing that the defendant's constitutional rights have been violated. Hobley, 182 Ill. 2d at 428; Towns, 182 Ill. 2d at 503. In determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits are taken as true. Towns, 182 Ill. 2d at 503. Assertions that are nonfactual and nonspecific and that merely amount to conclusions are not sufficient to require an evidentiary hearing. People v. Coleman, 183 Ill. 2d 366, 381 (1998). A trial court's determination regarding the sufficiency of the allegations contained in a post-conviction petition is reviewed de novo. Coleman, 183 Ill. 2d at 388-89. With these principles in mind, we review de novo the trial court's dismissal of defendant's post-conviction petition without an evidentiary hearing.
I. Ineffective Assistance of Counsel
Defendant first raises a series of challenges to the effectiveness of his counsel during trial, sentencing, and on direct appeal.
To establish a claim of ineffective assistance of counsel, a defendant must first show that counsel's performance was deficient in that it fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). In satisfying this prong, a defendant must overcome the strong presumption that the challenged action or inaction of counsel was the product of sound trial strategy. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.
A defendant must also establish prejudice by proving that there is a reasonable probability that, but for counsel's deficient performance, 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome; namely, that counsel's deficient performance either rendered the result of the trial unreliable or rendered the proceeding fundamentally unfair. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. When challenging a death sentence, a defendant must prove that there is a reasonable probability that, absent counsel's deficient performance, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.
A defendant must establish both prongs of the Strickland test to prevail on a claim of ineffective assistance of counsel. A court, however, may resolve an ineffectiveness claim by reaching only the prejudice prong, as lack of prejudice renders irrelevant the issue of counsel's alleged deficient performance. See Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.
A. Failure to Present Sufficient Evidence of a Voluntary Manslaughter Defense
Defendant argues that trial counsel was ineffective during the Goodman trial for failing to present sufficient evidence to support defendant's voluntary manslaughter theory of defense. At the time of the offense, the homicide statute provided that a person commits voluntary manslaughter if at the time of the killing he either had an actual but unreasonable belief regarding the need for self-defense, or was acting under a sudden and intense passion resulting from serious provocation. Ill. Rev. Stat. 1985, ch. 38, par. 9-2. *fn1 Serious provocation is conduct sufficient to excite an intense passion in a reasonable person. Ill. Rev. Stat. 1985, ch. 38, par. 9-2. This court has recognized the following categories of provocation: substantial physical injury or substantial physical assault; mutual quarrel or combat; illegal arrest; and adultery with the offender's spouse. People v. Garcia, 165 Ill. 2d 409, 429 (1995); People v. Chevalier, 131 Ill. 2d 66, 71 (1989).
During the opening argument in the Goodman trial, defense counsel told the jury that defendant had committed the homicide charged, but maintained that defendant was guilty of voluntary manslaughter rather than murder. Later, however, the trial court denied defendant's request that the jury be instructed on voluntary manslaughter, finding that the evidence was not sufficient to support the instruction. The trial court also directed defense counsel not to argue the theory of voluntary manslaughter in summation.
On direct appeal in the Goodman case, defendant argued that his trial counsel was ineffective for presenting the voluntary manslaughter theory of defense. Defendant argued that this theory was not supported by either the law or the facts of the case. This court noted that trial counsel sought to demonstrate that defendant killed Goodman while defendant was acting under a sudden and intense passion resulting from serious provocation. Page, 155 Ill. 2d at 261. Trial counsel sought to establish the provocation form of the offense by showing evidence of mutual combat between defendant and Goodman. Page, 155 Ill. 2d at 261. Although defendant did not testify, trial counsel was able to elicit evidence, during cross-examination of one of the prosecution witnesses, about an altercation between defendant and Goodman. Trial counsel asked the witness about an inculpatory statement made by defendant prior to his formal confession. In that statement, defendant said that he and Goodman argued for 10 to 15 minutes over some photographs that Goodman refused to surrender. According to defendant, Goodman had taken photographs of defendant and Goodman having a homosexual relationship. Defendant said that he punched and stabbed Goodman when Goodman refused to move from the bathroom doorway, where the two were standing. In addition to this evidence, defendant, in his formal statement, said that he stabbed Goodman after Goodman began laughing at his request for the photographs. See Page, 155 Ill. 2d at 261.
This court rejected defendant's argument that trial counsel was ineffective for arguing voluntary manslaughter. We held that trial counsel's decision to present the voluntary manslaughter defense was a matter of trial strategy, and that the record showed that defendant expressly consented to this strategy. Page, 155 Ill. 2d at 262-63. We found that, in light of the overwhelming evidence of defendant's involvement in Goodman's murder, defense counsel might reasonably have considered a voluntary manslaughter theory to be the only reasonable course of defense. Page, 155 Ill. 2d at 262. We then recounted the overwhelming evidence of defendant's guilt. Defendant confessed in detail to the crimes. An eyewitness saw defendant at Goodman's house shortly before Goodman disappeared. Other witnesses established that defendant was in possession of property belonging to Goodman, including his car and credit cards. Another witness testified that defendant had access to Goodman's house shortly after he disappeared. See Page, 155 Ill. 2d at 266.
In these post-conviction proceedings, defendant now argues that his trial counsel was ineffective for failing to present sufficient evidence to support the voluntary manslaughter defense. Defendant has waived review of this argument by failing to raise it on direct appeal. See People v. Towns, 182 Ill. 2d 491, 503 (1998). Indeed, this argument is directly contrary to the argument defendant did raise on direct appeal, i.e., that trial counsel was ineffective for presenting the voluntary manslaughter defense.
Defendant, however, appears to argue that his claim is not waived because it is based on evidence outside the original trial record. This exception to the waiver rule in post-conviction appeals refers to those claims that the reviewing court on direct appeal could not have considered because the claim's evidentiary basis was de hors the record. See People v. Whitehead, 169 Ill. 2d 355, 372 (1996), overruled in part on other grounds, People v. Coleman, 183 Ill. 2d 366 (1998). Defendant argues that there was evidence available to trial counsel to substantiate defendant's voluntary manslaughter defense. Defendant claims that he has now "submitted police reports and evidence of other statements, from numerous individuals, substantiating and establishing the manslaughter defense, including: evidence that the pictures being argued over were evidence of a homosexual attack perpetrated by the victim and his friends; evidence that such tendencies and similar photographs were discovered concerning the victim (as well as additional material involving the defendants); and evidence that in addition to an altercation over the pictures, the victim attempted homosexual contact with the defendant."
The evidence that defendant cites in support of his argument is as follows. Defendant provides his own affidavit which states that "John Goodman had pictures of Gerald Feinberg. Cheyney [sic] told Gerald that if he helped Cheyney get Andy and Chuck, Cheyney would help Gerald get Goodman for what he had done to him. John Goodman and his friend had drugged Feinberg and performed unnatural sex acts on him. Feinberg was very upset about this, and wanted to get them back."
Defendant attaches the affidavit of Edward Torres, an investigator from the Capital Litigation Division. Torres interviewed Kenneth Berksen, who was once Gerald Feinberg's cellmate at the Cook County jail. According to Torres' affidavit, Berksen stated that Feinberg told him that, on the night of Goodman's murder, Goodman made a sexual advance toward defendant, which enraged defendant and caused defendant to stab Goodman. In this regard, defendant also provides a report from the Olympia Fields police department which relates that Greg Wilson, a friend of Goodman, spoke to a man named John Dixon, who spoke to Feinberg, who said that "Goodman tried to make out with Pat Page, and then they stabbed him."
Defendant also cites numerous other reports from the Olympia Fields police department which discuss relations among defendant, Goodman, and Feinberg. One report recounts that a certain newspaper reporter gave the Olympia Fields police department a photograph of Goodman and defendant. The reporter received the photograph from a third party who had received it from the photographer. The reporter advised police that the source had stated that the photograph was taken one week before Goodman's murder while on a weekend fishing trip in Illinois. Another report discusses information received from Greg Wilson. According to Wilson, defendant had been to Goodman's home and had been videotaped in one of Goodman's "home movies."
An additional report from the Olympia Fields police department describes an interview with Glen Rogers, a friend of Goodman. Rogers stated that he led a homosexual lifestyle which included a relationship with Feinberg, and that approximately one month prior to the interview, Goodman told Rogers that Goodman and Feinberg had a sexual encounter the previous weekend. One report discusses Goodman's homosexual lifestyle and the police department's possession of photographs of Goodman with Glen Rogers and an unidentified nude male. Another report describes a telephone call that the police department received from an individual named Bill Davis. Davis "wanted to know why the S&M angle of this homicide has not been followed up on in the news media." According to Davis, Goodman "used to hang out" at a Chicago bar "frequented by `male hustlers' with homosexual and S&M tendencies." Davis recognized defendant and Feinberg as being patrons of this bar.
The other evidence that defendant cites in support of his current argument references personal details of Goodman's lifestyle. Defendant has attached an affidavit from Appolon Beaudouin, Jr., an investigator for the Capital Litigation Division. This affidavit references Beaudouin's interview with Michelle Kury, defendant's former girlfriend. According to Beaudouin, Kury stated that "Patrick told her that Goodman was into sex videos." Defendant further cites a report from the Olympia Fields police department that lists property recovered from Goodman's home. The list of property references "pornographic homosexual assorted photos" and a "copy of Gay Chicago Magazine for January, 87."
Defendant argues that, had trial counsel presented this evidence, he would have been entitled to a jury instruction on voluntary manslaughter. We hold that defendant has failed to make a substantial showing that he was prejudiced by trial counsel's failure to present this evidence.
Defendant's argument is that this evidence would have supported a defense that he killed Goodman while acting under a sudden and intense passion resulting from serious provocation. Defendant's theory of provocation appears to be that Goodman made unwanted sexual advances toward him on the night of the murder. The only evidence that could have supported this theory is (1) the affidavit from the Capital Litigation Division investigator which recounts that a former cellmate of Feinberg stated that Feinberg told him that, on the night of Goodman's murder, Goodman made a sexual advance toward defendant which enraged defendant and caused defendant to stab Goodman; and (2) the police report which relates that Greg Wilson spoke to a man named John Dixon, who spoke to Feinberg, who said that "Goodman tried to make out with Pat Page, and then they stabbed him." The remaining evidence is ...