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People v. Wiley

IN THE SUPREME COURT OF THE STATE OF ILLINOIS


November 16, 2000

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. HOWARD WILEY, APPELLANT.

The opinion of the court was delivered by: Justice Rathje

Docket No. 86557-Agenda 29-May 2000.

A jury convicted defendant of three counts of murder. He waived a jury for sentencing, and the trial court sentenced defendant to death. Defendant appealed, and this court remanded the case. People v. Wiley, 156 Ill. 2d 464 (1993) (Wiley I). After the trial court upheld defendant's conviction, he again appealed, and this court affirmed his conviction and death sentence. People v. Wiley, 165 Ill. 2d 259 (1995) (Wiley II). Defendant then filed a post-conviction petition and now appeals the trial court's dismissal of that petition without an evidentiary hearing.

BACKGROUND

On approximately December 2, 1985, *fn1 Donna Rucks, Carla Williams, and Adrienne Parham were murdered in Rucks' apartment. All three deaths were the result of gunshot wounds to the head. Their bodies were discovered on December 3.

The testimony presented at trial was recounted by this court in Wiley II, 165 Ill. 2d at 267-71, and we will not repeat it here. The jury found defendant guilty of three counts of first degree murder and three counts of armed robbery.

Defendant waived a jury for sentencing. At the eligibility phase of the hearing, the State presented a certified copy of defendant's birth certificate as proof that defendant was over the age of 18, and the parties stipulated that defendant was born on June 7, 1946. The parties also stipulated to the trial testimony, the trial exhibits, and the special verdicts of the jury, which found that defendant was guilty of murder and of armed robbery and that defendant "performed the acts which caused the death" of each victim. No other evidence was introduced. The court found defendant eligible for the death penalty under section 9-1(b)(6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(b)(6), now 720 ILCS 5/9-1(b)(6) (West 1998)) because he had committed the murders knowingly or intentionally and in the course of another felony. The court declined to find defendant eligible under any other factor.

At the aggravation and mitigation phase of the death penalty hearing, both sides presented evidence. In aggravation, the State presented witnesses who testified to defendant's criminal history between 1964 and 1976, which included seven convictions. The parties stipulated that petitioner received four disciplinary violations while awaiting trial on the current charges.

In mitigation, defendant presented the stipulated testimony of two witnesses. First, Robert Kelly, a Cook County correctional officer, would have testified that he knew defendant during the year before trial when defendant was housed at the jail. In that year, defendant worked at the commissary, faithfully performed his duties, and did not present a threat to jail staff or inmates. Second, Cheryl Winke, a psychologist with the Illinois Department of Corrections, would have testified that defendant has "betta IQ of 103" and appeared "spontaneously aggressive" rather than "criminally oriented."

Defendant also presented evidence of commendations that he received while incarcerated. In October 1981, an adjustment committee recommended defendant for meritorious good time for his work in the vegetable room at Stateville Correctional Center, and defendant ultimately received the maximum of meritorious good time during that six-month period. A prison memorandum indicated that defendant turned over some keys to prison authorities and was recommended to receive 90 days' good time, of which 15 days was granted. Additionally, defendant was awarded a weightlifting trophy while in the Department of Corrections.

Finally, defendant presented two witnesses. Harold Anderson, defendant's former co-worker, testified that defendant was well liked by his co-workers and was able to take orders from his boss. Anderson said that defendant was "a big-brother-type person" and that defendant did not have a problem with alcohol or drugs. On cross-examination, the State elicited testimony that Anderson, who had been convicted of "a rape charge," had met defendant while both were in prison.

Jerry Wiley, defendant's younger stepbrother, testified about defendant's childhood and family life. He said that defendant's mother had a drinking problem but that Jerry's father, who was defendant's stepfather, was a good father to defendant. Jerry also testified that defendant was a good brother but not his role model and that defendant's childhood friends were troublemakers. Jerry stated that defendant's relationship with his stepfather soured after defendant moved out of the house when he was around 20 years old. Jerry estimated that defendant had a problem with drugs for about seven or eight years. According to Jerry's testimony, while defendant was under the influence of drugs, he started fights with family members and even drew a knife on his family.

The trial court found that defendant failed to establish the existence of any mitigating factors but that the State had presented substantial aggravating factors. Accordingly, defendant was sentenced to death on the murder convictions and to three consecutive 30-year terms on the armed robbery convictions. He appealed his convictions and sentences. Wiley I, 156 Ill. 2d at 467-68, and Wiley II, 165 Ill. 2d at 271-303. This court remanded the cause for a hearing pursuant to the rule set forth in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), and, after the hearing, the trial court determined that the State had not violated the Batson rule. Wiley II, 165 Ill. 2d at 272. Defendant again appealed, and this court affirmed his conviction and sentence. Wiley II, 165 Ill. 2d 259 (1995). Defendant appealed to the United States Supreme Court but was denied certiorari. Wiley v. Illinois, 516 U.S. 923, 133 L. Ed. 2d 223, 116 S. Ct. 322 (1995).

Defendant filed a petition for post-conviction relief. The petition was improperly denied, and this court reinstated defendant's petition. Defendant filed an amended post-conviction petition and later filed a supplement to that petition. The State then moved to dismiss.

The trial court dismissed defendant's post-conviction petition without a hearing, stating both that the petition was untimely and that the petition was patently without merit. Defendant appeals both findings, arguing that the petition was timely and that he presented three meritorious claims: (1) appellate counsel was ineffective for failing to argue that the death eligibility finding was constitutionally deficient; (2) defendant was denied the effective assistance of counsel at the death eligibility hearing; and (3) defendant was denied the effective assistance of counsel at the aggravation and mitigation stage of his death penalty sentencing hearing.

ANALYSIS

Timeliness of Post-Conviction Petition

Defendant first argues that the order dismissing his post-conviction petition as untimely should be reversed. The State agrees.

When defendant filed his post-conviction petition, section 122-1 of the Code of Criminal Procedure provided that, for a post-conviction petition to be timely, it must be filed no later than

"6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or issuance of the opinion from the Illinois Supreme Court or 6 months after the date of the order denying certiorari by the United States Supreme Court or the date for filing such a petition if none is filed or 3 years from the date of conviction, whichever is later ***." (Emphasis added.) 725 ILCS 5/122-1 (West 1994).

Here, defendant was convicted in 1990, this court filed Wiley II in March 1995, and the United States Supreme Court denied certiorari on October 10, 1995 . Defendant filed his first post-conviction petition on June 28, 1995, 3½ months before the denial of certiorari. Thus, as both defendant and the State agree, defendant's petition was timely under the version of section 122-1 in effect at the time.

Death Penalty Eligibility

Defendant raises two challenges to the trial court's finding of death penalty eligibility. First, defendant argues that his appellate counsel was ineffective for failing to argue that the evidence was insufficient to prove him eligible for the death penalty beyond a reasonable doubt. Second, defendant argues that counsel was ineffective at the eligibility hearing for failing to present additional available evidence that defendant was not eligible for the death penalty. Defendant contends that this second claim is not waived for two reasons: (1) the claim is based on evidence not in the trial record; and (2) if the claim could have been made without this new evidence, then appellate counsel was ineffective for failing to make this argument.

For a defendant to succeed on an ineffective assistance of counsel claim, defendant must allege facts to demonstrate 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, 688, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984). In the context of appellate counsel, this means that defendant must demonstrate that, if counsel would have made the argument on appeal, a reasonable probability exists that the reviewing court would have granted defendant relief. People v. Caballero, 126 Ill. 2d 248, 269-70 (1989).

Defendant's first argument is that appellate counsel was ineffective for failing to argue that the imposition of the death penalty was unconstitutional because the State failed to prove that defendant possessed the necessary degree of culpable conduct. See People v. Jimerson, 127 Ill. 2d 12, 48 (1989). Defendant claims that, although the jury returned guilty verdicts finding that defendant had "performed the acts which caused the death" of each of the victims, the evidence in fact was insufficient to prove that defendant served as the gunman.

When a defendant challenges the sufficiency of the evidence at the eligibility hearing, this court determines whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements which would establish defendant's eligibility for the death penalty beyond a reasonable doubt. People v. Pasch, 152 Ill. 2d 133, 216 (1992). The State clearly met this burden.

The issue in this case bears a striking similarity to People v. Harris, 182 Ill. 2d 114 (1998). In Harris, the defendant challenged the imposition of the death penalty, claiming that the State had failed to present sufficient evidence to prove him eligible for the death penalty. The defendant had waived a jury for sentencing. The State, failing to cite the particular statutory subsection under which it was seeking eligibility, introduced into evidence only the defendant's birth certificate and his convictions for first degree murder and armed robbery. The trial court found him eligible for the death penalty under section 9-1(b)(6) of the Criminal Code of 1961 because he had committed murder in the course of an armed robbery. In reviewing the sufficiency of the State's evidence, this court held:

"[W]e conclude that the proceedings adequately established the defendant's eligibility for the death penalty under section 9-1(b)(6). The State introduced into evidence defendant's birth certificate, establishing that he had reached the age of 18 at the time of the murder (720 ILCS 5/9-1(b)(6) (West 1994)), and the defendant's convictions in this case for first degree murder and attempted armed robbery. This information was sufficient to establish, beyond a reasonable doubt, the existence of the aggravating circumstance found in section 9-1(b)(6). People v. Shatner, 174 Ill. 2d 133, 149 (1996)." Harris, 182 Ill. 2d at 153.

In this case, just as in Harris, defendant was found eligible for the death penalty under section 9-1(b)(6) because he had committed murder in the course of an armed robbery. Significantly, the evidence upon which defendant was found eligible for the death penalty in this case is much stronger than that which was held sufficient in Harris. Here, the evidence included not only the evidence presented at trial, the jury verdicts, and defendant's birth certificate but also specific findings by the jury that defendant had "performed the acts which caused the death" of each of the victims. Additionally, in this case, unlike Harris, the State did not make the trial court guess under which factor eligibility was sought but instead specifically requested an eligibility finding under section 9-1(b)(6). Clearly, under the rule set forth in Harris, the evidence presented by the State was sufficient to sustain a finding of death eligibility. Defendant's appellate counsel was therefore not ineffective for failing to argue that the evidence was insufficient.

Defendant's second argument again challenges the sufficiency of the trial court's finding of death penalty eligibility. Defendant's contention is that, at the eligibility hearing, counsel should have presented more evidence that would have shown that the evidence was insufficient to support a finding of death penalty eligibility. Defendant argues that counsel should have presented evidence to support defendant's claim that, although defendant was involved in the robbery and therefore responsible for the victims' deaths under the felony-murder statute, another man did the shooting.

In addressing this claim, we find People v. Shatner, 174 Ill. 2d 133 (1996), instructive. At the eligibility hearing in Shatner, the State presented only the defendant's birth certificate and the jury verdicts finding the defendant guilty of murder and guilty of armed robbery. Shatner, 174 Ill. 2d at 149. In his post-conviction petition, the defendant argued that counsel was ineffective because he failed to present evidence at defendant's eligibility hearing or make any argument against a finding of eligibility. The defendant contended that, even though the jury had returned a general verdict finding him guilty of first degree murder, defendant's attorney should have argued that defendant did not have requisite mental state for death penalty eligibility. This court ruled that "[s]ince the jury verdicts encompassed the necessary finding of intent, and since the trial judge took judicial notice of these verdicts, his conclusion that defendant acted with the requisite intent to be eligible for the death penalty cannot be assailed." (Emphasis added.) Shatner, 174 Ill. 2d at 150-51.

As this court held in Shatner, counsel's failure to present, at the eligibility phase, evidence of defendant's lack of intent is not ineffective if the presence of intent is dictated by the jury's verdict from the guilt phase. In this case, the jury's verdicts at the guilt phase not only "encompassed the necessary finding of intent" but also included specific findings that defendant had "performed the acts which caused the death" of each of the victims. Because the evidence of eligibility was, as a matter of law, unassailable, we hold that counsel was not ineffective for failing to argue new evidence that would not have impacted defendant's eligibility.

Aggravation and Mitigation

Defendant's final argument is that he received the ineffective assistance of counsel at the aggravation and mitigation phase of his death penalty hearing. As discussed supra, to claim ineffective assistance of counsel, a defendant must satisfy the two-pronged test set out in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). When a defendant makes this claim regarding a death sentencing hearing, to satisfy the prejudice prong of the Strickland test, he "must prove that there is a reasonable probability that, absent counsel's deficient conduct, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." People v. Hall, 157 Ill. 2d 324, 337 (1993). Defendant's failure to satisfy either prong of the Strickland test will preclude a finding of ineffective assistance of counsel. People v. Shaw, 186 Ill. 2d 301, 332 (1998).

In this case, although defendant claims that counsel was ineffective throughout the aggravation and mitigation phase of defendant's death penalty hearing, defendant in fact raises seven separate allegations of error that we will address in turn. First, defendant claims that defense counsel failed to discuss mitigation strategy with defendant. Significantly, however, defendant does not claim that he was prejudiced by this error, as he never suggests why the sentence would have been different if counsel had discussed the strategy with defendant. Accordingly, defendant's claim fails. See People v. Morgan, 187 Ill. 2d 500, 537 (1999) (without a showing of prejudice, under Strickland, a claim of ineffective assistance of counsel fails).

Second, defendant claims that counsel failed to contact several persons who would have testified favorably in mitigation. Specifically, defendant argues that his daughter Gwen Brown, his stepsister Rosie Rhodes, and his sister Juanita Jones were not contacted by counsel but were on a list of mitigation witnesses proffered to counsel by defendant. Brown affied that she would have testified that her father kept in contact with her, that he was a gentle person, that he had a good employment history, and that his stepfather said bad things about him. In Rhodes' affidavit, she stated that she would have testified that defendant's mother and stepfather treated both her and defendant well, that defendant's friends were troublemakers, and that defendant had a good employment history. Jones stated in her affidavit that she would have testified that defendant's mother and stepfather treated her, defendant, and Rose differently than they treated the other three children and that defendant was a good brother to Jones.

The State argues that, although this testimony could have been presented by defendant's counsel, counsel's failure to present it did not constitute ineffective assistance both because the decision to exclude such testimony was based on trial strategy and because the testimony would not have changed the outcome of the sentencing hearing. The State first contends that counsel did not call these three women as witnesses because of the drawbacks in their testimony. In making this argument, the State misses the gist of defendant's claim. Defendant claims that counsel was ineffective for failing to contact these witnesses. If counsel never contacted the witnesses, he was in no position to make a strategic decision as to whether to present their testimony.

The State's second argument is that, even if trial counsel was unreasonable for not contacting these witnesses, defendant was not prejudiced by counsel's inaction. We agree. All of the information to which these three women affied was addressed by the mitigation witnesses who were presented by counsel. Jerry Wiley testified that defendant was a good brother who got into the wrong crowd during his childhood and that defendant's mother and stepfather were adequate parents. Jerry also testified that defendant had fallen out with his stepfather. Anderson testified that defendant had a good work history, with direct knowledge of defendant's ability to hold down a job and get along with his superiors. Because the testimony of Brown, Rhodes, and Jones simply would have repeated the testimony of Jerry and Anderson, counsel's failure to call Brown, Rhodes, and Jones cannot be deemed ineffective. See People v. Brisbon, 164 Ill. 2d 236, 248 (1995) (counsel is not ineffective for failing to present cumulative evidence). *fn2

Third, defendant alleges that counsel failed to present evidence that, at the time of the offense, defendant was under extreme emotional and mental distress. The State argues that, if defendant had made such a claim, it would be contradictory to defendant's contention of innocence. We agree with the State.

At trial and at sentencing, defendant contended that he was not the shooter. In fact, defendant continues to make that assertion before this court. For defendant also to contend that he was under extreme emotional distress when he shot the victims would contradict directly his assertion that he was not the shooter. When analyzing a defendant's claim that his attorney should have argued that the defendant was acting under an extreme mental or emotional disturbance at the time he committed the murder, this court has stated that "[d]efendant's insistence of innocence colors the understanding of his claim." People v. Kokoraleis, 159 Ill. 2d 325, 330 (1994). In this case, like Kokoraleis, defendant has claimed and continues to claim that he was not personally responsible for the deaths of the victims. To argue that defendant was under an extreme disturbance at the time he committed the murders, defendant's attorney would have had to contradict defendant's own testimony. As in Kokoraleis, we conclude that the failure to present evidence alleging that defendant was under an extreme emotional disturbance when he committed the murders did not render counsel ineffective. See Kokoraleis, 159 Ill. 2d at 331.

Defendant's fourth and fifth contentions are that counsel failed to present evidence of defendant's family history of mental illness and that counsel did not have defendant evaluated by a psychologist. Defendant bases his argument that counsel was aware of both the family history and defendant's own mental illness solely on a group of copied documents that defendant claims to have discovered in counsel's case file. The State points out that these documents are nearly illegible, unsigned, and not authenticated by affidavit.

Under the Post-Conviction Hearing Act, allegations must be supported by "affidavits, records, or other evidence." 725 ILCS 5/122-2 (West 1998). Evidence, such as attorney notes, "must be accompanied by an affidavit which identifies with reasonable certainty the source, character, and availability of the alleged evidence." People v. Johnson, 183 Ill. 2d 176, 190 (1998). Defendant is entitled to an evidentiary hearing "only if he has made a substantial showing, based on the record and supporting affidavits, that his constitutional rights were violated." (Emphasis in original and added.) People v. Erickson, 183 Ill. 2d 213, 222 (1998).

Defendant has presented no affidavit identifying these documents or their source. The only indication in defendant's post-conviction petition of the origin of these documents is the title page, identifying the document as "EXHIBIT 11 Notes from the case file of Cook County Public Defendant (copies)." This assertion of origin by defendant clearly does not alleviate the need for an authenticating affidavit. Because we have no other evidence that counsel knew that defendant's family had a history of mental illness or that defendant himself might be mentally ill, we cannot conclude that counsel should have investigated those two matters. Therefore, defendant's claim fails.

Sixth, defendant claims that counsel should have introduced evidence that defendant had a positive employment history when he was not incarcerated. In support, defendant refers to his own affidavit, which states that he related his employment history to counsel.

There are two flaws in defendant's argument. First, although defendant's affidavit states that defendant related his employment history to counsel, the affidavit does not include any discussion or description of that employment history. Most notably, the affidavit fails to contain even a single statement from which to conclude that defendant's employment history was in any way positive. Without some indication from defendant that he advised counsel not of his employment history but of his positive employment history, this court cannot conclude that counsel was ineffective for failing to present evidence of that history. That said, the second problem with defendant's argument is that counsel did present evidence of defendant's positive employment history through the testimony of defendant's co-worker, Harold Anderson. Anderson testified that, when he worked with defendant, defendant was a good worker and respected authority in the workplace. As a result, defendant has not substantiated sufficiently his claim of ineffective assistance to warrant an evidentiary hearing.

Defendant's seventh and final claim is that counsel failed to properly prepare Jerry Wiley to testify in mitigation. Defendant points out that the trial court remarked that "the State could not have provided a better witness than Jerry Wiley if they wrote the script themselves." Defendant contends that, had counsel properly prepared the witness, Jerry would have testified that their mother was terminally ill, that defendant was a worker, that their parents used corporal discipline, that defendant had close relationships with his brother and sisters, that defendant abused alcohol and drugs, that one of the victims was a positive influence on defendant's life, and that something happened to cause defendant's relationship with his stepfather to sour.

The State first claims that Jerry did not need to be prepared to testify about those matters because they were a part of Jerry's own life. This argument misses the point of defendant's claim. Counsel's alleged failure to prepare Jerry led to a lack of knowledge on the part of counsel, not Jerry. The prejudice that allegedly resulted is counsel's failure to ask questions to elicit that information.

The State next argues that counsel did elicit some of that information and that counsel's failure to elicit the other information did not prejudice defendant. We agree. Jerry testified that their mother had cancer, that defendant got along well with his mother and sisters, that defendant had a problem with alcohol and other drugs, that defendant "got beat around sometimes" at home, and that defendant's relationship with his stepfather had been precipitated by defendant's move from the house. Anderson testified about defendant's positive work history. The only portion of the information described in defendant's claim that counsel did not elicit was that one of defendant's victims had been a positive influence on defendant. How defendant is prejudiced by this omission is a mystery, as we fail to find any mitigating value in the fact that defendant murdered a friend rather than a stranger. Indeed, defendant's ridding himself of what he calls a "positive influence on his life" is, if anything, far more aggravating than mitigating. Therefore, we hold that counsel's failure to prepare Jerry Wiley to so testify did not render counsel ineffective.

Admittedly, counsel presented very little mitigating evidence, and the evidence that was presented was so unconvincing that the trial court failed to find the presence of even one mitigating factor. Nevertheless, defendant has failed to identify any evidence that might have changed the trial court's ruling. Therefore, we hold that defendant has not presented a claim of ineffective assistance of counsel sufficient to warrant an evidentiary hearing.

CONCLUSION

We affirm the trial court's dismissal of defendant's petition without an evidentiary hearing. The clerk of this court is directed to enter an order setting Thursday, March 22, 2001, as the date on which the sentence of death entered by the circuit court shall be implemented. Defendant shall be executed in the manner provided by law (725 ILCS 5/119-5 (West 1998)). A certified copy of the mandate of this court shall be transmitted by the clerk of this court to the Director of Corrections, to the warden of Tamms Correctional Center, and to the warden of the institution where defendant is confined.

Affirmed.

CHIEF JUSTICE HARRISON, dissenting:

When this case was last before us on direct review, I concluded that the State had failed to prove beyond a reasonable doubt that Wiley was guilty of armed robbery. Because the armed robbery convictions were the sole predicate for Wiley's death sentence, that sentence should have been vacated. People v. Wiley, 165 Ill. 2d 259, 303-05 (1995) (Harrison, J., concurring in part and dissenting in part). I continue to adhere to that view.

Even if Wiley were eligible for capital punishment, I still could not vote to affirm any disposition that would lead to his execution. For the reasons set forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law violates the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, §2). Wiley's sentence of death should be vacated for this reason, if for no other, and he should be sentenced to a term of imprisonment. Ill. Rev. Stat. 1985, ch. 38, par. 9-1(j). Because Wiley was found guilty of murdering more than one victim, the term of his imprisonment must be natural life. Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-1(a)(1)(c).

JUSTICE FREEMAN, also dissenting:

I disagree with the court's conclusion regarding the sufficiency of the evidence with respect to defendant's death eligibility under section 9-1(b)(6) and, therefore, must respectfully dissent.

Section 9-1(b)(6) provides that a person may be eligible for the death penalty when the murdered individual was killed in the course of another felony "if: (a) the murdered individual: (1) was actually killed by the defendant, or (ii) received physical injuries personally inflicted by the defendant substantially contemporaneously with physical injuries caused by one or more persons for whose conduct the defendant is legally accountable *** and the physical injuries inflicted by either the defendant or the other person or persons for whose conduct he is legally accountable caused the death of the murdered individual." Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)(a). The section also requires that the defendant acted with the intent to kill the murdered individual or with knowledge that his acts created a strong probability of death or great bodily harm to the murdered individual or another. Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)(b). During the eligibility phase of the death sentencing hearing, the State must prove all of the elements of the aggravating factor beyond a reasonable doubt. Ill. Rev. Stat. 1985, ch. 38, par. 9-1(f).

Defendant maintains that his appellate counsel was ineffective for failing to argue that the evidence was insufficient to prove him eligible for the death penalty beyond a reasonable doubt. This court has held that this type of claim is cognizable under the Post-Conviction Hearing Act. See People v. West, 187 Ill. 2d 418, 434-35 (1999). Such a claim is measured against the same standard as those dealing with ineffective assistance of trial counsel. See West, 187 Ill. 2d at 435 (and cases cited therein). A defendant who contends that appellate counsel rendered ineffective assistance must show that the failure to raise the issue was objectively unreasonable and that the decision prejudiced the defendant. West, 187 Ill. 2d at 435.

According to defendant, the eligibility finding in this case is constitutionally deficient because the State never proved that defendant's conduct fell within the class of culpable conduct necessary to warrant the imposition of the death penalty. Defendant contends that there is simply no proof that his conduct was within the ambit of section 9-1(b)(6) because the evidence does not reflect that he actually murdered the victims or that he inflicted physical injuries upon the victims in the manner required by the statute. Defendant points out that his confession, relied upon by the State during the guilt phase of the trial, coupled with the rest of the evidence presented by the State, proves only guilt of felony murder or guilt on the basis of accountability. Stated differently, defendant argues that there is no evidence of record which supports the inference that he actually killed the victims or that he inflicted injuries substantially contemporaneously with physical injuries caused by one or more persons for whose conduct defendant is legally accountable, as is required under the felony-murder aggravating factor.

Defendant's contentions necessitate a review of the evidence adduced at trial because both the State and defendant, at the eligibility phase of the hearing, stipulated to that evidence. In addition, the trial judge, sitting as the trier of fact at sentencing, referred specifically to the evidence at trial when he found defendant eligible for the death penalty under section 9-1(b)(6). The evidence revealed that defendant told police that on December 2, he telephoned one of the victims, who was "holding" $5,000 for him. Defendant told her that he wanted his money, but she informed him that he would have to wait for it. Defendant then went to a pool hall where he met a man he knew by the names of Eddie Jones and Charles Battles. Defendant told Battles about the money and offered to pay him $1,500 if Battles would help him recover his money. Battles agreed, and the men drove to the victims' apartment. Defendant gave Battles a .38 revolver that defendant had with him.

When they arrived at the victims' apartment, defendant, according to the plan, knocked on the door and was let in. Defendant left the door slightly ajar so that Batties could enter behind him. According to defendant's confession, Battles came into the apartment and announced a "stickup." One of the victims, Rucks, jumped up from a couch. Barnes, startled, shot her. At this time, the second victim, Parham, started to run away, and Battles shot her, too. The third victim, Williams, then came down the stairs from an upper-floor bedroom. When she saw what had happened, she started back up the stairs. Battles ran after her, and shot her. Defendant told police that after the shooting stopped, Battles told him that defendant "better be with" Battles, and defendant agreed. Defendant stated that he left the apartment at that lime, but that Battles stayed.

Apart from defendant's statement, the State also presented testimony that revealed that one week prior to the murders at issue, defendant, in an unrelated incident, fired a gun into a store. The bullet taken from the wall at that location was compared to the bullet recovered from the murder victims. Forensic testing revealed that all were fired from the same gun.

As noted previously, the crux of defendant's ineffective-assistance claim is that the evidence of death eligibility is insufficient to support the trial judge's finding. The standard of review to be applied is whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements necessary to establish defendant's eligibility for the death penalty beyond a reasonable doubt. People v. Pasch, 152 Ill. 2d 133, 213-14 (1992). The reviewing court must consider that the circuit court heard and saw the witnesses and, thus, was in a better position to judge their credibility, to determine the weight to be accorded their testimony, to decide the inferences to be drawn from the evidence, and to resolve any conflicts in it. People v. Batchelor, 171 Ill. 2d 367, 376 (1996). The credibility of a defendants confession is to be weighed by the trier of fact, which may accept all, parts, or none of the confession. People v. Pecoraro, 144 Ill. 2d 1, 11 (1991); People v. DiGerlando, 30 Ill. 2d 544, 551 (1964). Where a defendant's statement is contradicted by the facts and circumstantial evidence, the trier of fact need not believe it, even though other witnesses do not contradict the statement directly. Batchelor, 171 Ill. 2d at 377; People v. Warren, 33 Ill. 2d 168, 174 (1965).

After carefully reviewing the evidence presented at trial, I must conclude that the State failed to prove defendant's death eligibility under section 9-1(b)(6) beyond a reasonable doubt. I note that defendant, in his confession to the police, in effect admitted that he is responsible for homicides under the theory of accountability. Defendant, in his confession, also admitted that he is responsible for the homicides under a theory of felony murder. However, defendant, in his confession, denied actually killing the victims or inflicting injuries on the victims in the manner required by section 9-1(b)(6). I acknowledge the principle that a trier of fact is not bound to accept a confession in its entirety. indeed, a trier of fact may accept the damaging admissions and discredit the exculpatory assertions in the confession. Assuming, however, that a trier of fact rejects the exculpatory portions of the confession, "it may not draw an inference contrary to them unless there is affirmative evidence contradicting such assertions, be that evidence direct or circumstantial, from which the opposite deduction can be drawn." United States v. Wilson, 178 F. Supp. 681, 886 (D.C. 1959). Thus, in this case, the sentencing judge, sitting as the trier of fact, had a right to discard defendant's assertion that it was Battles who fired all of the fatal shots. However, the trial judge could not draw an inference to the contrary, unless there was evidence to support it. In this case there was none except the fact that defendant was linked to the murder weapon, a gun which apparently was never found. There were no eye witnesses to the murders. There was no circumstantial evidence other than the fact that defendant possessed the gun to support the theory that he actually murdered these victims. While I might speculate that defendant's involvement in the crimes was greater than what he admitted, speculation cannot serve as a substitute for evidence beyond a reasonable doubt.

The justices in the majority today assert that "the State clearly met [its] burden" in this case. Slip op. at 5. In reaching this conclusion, the court relies on People v. Harris, 182 Ill. 2d 114 (1998). Harris, however, does not, in my view, support the court's analysis because the case turned upon whether trial counsel was ineffective for failing to contest eligibility. In contrast here, defendant's attorneys at sentencing argued that the evidence was insufficient to establish the culpable conduct required under the statute. Appellate counsel, however, did not pursue the matter further on appeal. Moreover, Harris is distinguishable from the present case on a more basic level-in Harris, the evidence adduced at the guilt phase of the trial undisputedly supported the inference that defendant Harris actually killed his victim because defendant not only admitted to being the shooter, but two eyewitnesses at trial testified to that fact. For these reasons, I believe Harris is inapposite to the case at bar.

Finally, I note that the court places much emphasis on the specific finding made by the jury as a part of its verdicts that defendant had " `performed the acts which caused the death' of each of the victims." Slip op. at 6. The jury's findings at the conclusion of the guilt phase, in this particular case, are irrelevant because the sentencing judge relied upon the evidence adduced at trial in making the eligibility finding required under section 9-1(f). The finding that we have been asked to review is not that of the jury, but that of the trial judge who was sitting as the sentencing trier of fact. Moreover, the question before this court is whether the evidence supports the trial judge's finding beyond a reasonable doubt. As such, this court must look beyond the jury verdicts to the actual evidence at trial and determine whether the evidence supports the finding of eligibility. The court's opinion today is remarkable in that it fails to speak to the evidence in any way with respect to this issue. In other words, the court does not tell us how the evidence supports the finding made by the trial judge (and the jury for that matter) that defendant personally killed the three victims, as is required under section 9-1(b)(6). While the evidence might have been sufficient to support death eligibility under section 9-1(b)(3) (multiple-murder aggravator in which accountability alone can render defendant eligible), the trial judge here refused to find eligibility on that basis. *fn3 In my view, the court's analysis sets dangerous precedent-the court can now sustain a death eligibility verdict against a sufficiency of the evidence charge merely by pointing to the verdict itself as proof. I cannot join in such reasoning.

In my view, the court's decision in this case, along with its decision in People v. Casillas, No. 83911 (adopted September 2000), reveals a disturbing trend developing in this area of the our death penalty jurisprudence; death penalty eligibility verdicts are seemingly being reviewed as if the standard of proof were merely that of a preponderance of the evidence. Our death penalty statute, however, requires proof beyond a reasonable doubt. I believe that the better approach for this court to take in such cases is to review the State's evidence meaningfully in order to ensure that the State has indeed met its high burden in seeking the imposition of the ultimate penalty. That, in my view, has not been done here. Therefore, I believe that defendant has shown the prejudice required under Strickland. In light of the above, I would remand the matter to the circuit with directions to vacate defendant's death sentence and to resentence him to a sentence other than death in accordance with the applicable provisions of the Unified Code of Corrections.

JUSTICE McMORROW joins in this dissent.


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