The opinion of the court was delivered by: Justice Bilandic
Docket No. 86636-Agenda 6-May 2000.
Defendant, Anthony Enis, appeals from an order of the circuit court of Lake County dismissing his post-conviction petition without an evidentiary hearing. Because defendant was sentenced to death for the underlying murder conviction, his appeal lies directly to this court. See 134 Ill. 2d R. 651(a)). For the reasons that follow, we affirm the dismissal of defendant's post-conviction petition.
Defendant was indicted for the murder of Merlinda Entrata. A jury found defendant guilty of first degree murder. Defendant was sentenced to death. On direct appeal to this court, we reversed defendant's conviction and sentence, based on the prosecutor's improper cross-examination of defendant, and remanded the matter for a new trial. People v. Enis, 139 Ill. 2d 264 (1990).
On retrial, defendant was convicted of Entrata's murder and sentenced to death. On direct review, we affirmed defendant's conviction and sentence. People v. Enis, 163 Ill. 2d 367 (1994). Defendant's petition for a writ of certiorari was denied. Enis v. Illinois, 516 U.S. 827, 133 L. Ed. 2d 50, 116 S. Ct. 94 (1995).
The evidence presented against defendant on retrial is discussed in this court's opinion on direct appeal. See Enis, 163 Ill. 2d at 375-84. We provide a brief summary here.
The victim, Merlinda Entrata, was the complainant in a criminal sexual assault case against defendant that was set to begin trial on August 17, 1987. Defendant had pled not guilty to the sexual assault charge and had been released on a personal recognizance bond. On August 10, 1987, shortly before 7 a.m., police found Entrata's body in the hallway of her Waukegan apartment building. She had sustained multiple close-range gunshot wounds to the head.
Prosecution witnesses identified defendant as the man they saw in the parking lot outside the victim's building on the morning of the shooting. Clara Burk testified that she saw defendant, who was wearing sunglasses, pursue Entrata from the parking lot into the apartment building. Defendant was carrying a box that resembled a lunch box. Dan Thacker testified that he saw a man running after Entrata in the parking lot. The man, whose description fit defendant, was wearing white gloves, white sunglasses and dark clothing, and was carrying a metal lunch box. Richard Hanson identified defendant as the man he saw running in the parking lot. The man was wearing white gloves and white sunglasses. As he ran, the metal box he was carrying fell open and a gun fell out of the box. Sylvia Barrett also saw defendant in the parking lot on the morning of the shooting. Defendant was wearing a dark-blue jumpsuit. In addition, John Twardy saw a man run through the parking lot, drop something, and retrieve it. Twardy lost sight of the man, and then saw a red or maroon car drive away. Twardy testified that the vehicle owned by defendant's girlfriend, Diane Gonzales, was similar to the car he saw leaving the parking lot. Within two hours of the shooting, police found Gonzales' car parked outside defendant's apartment. The hood of the car was warm. Unlike the other cars in the area, there was no dew on Gonzales' car.
A jury found defendant guilty of Entrata's murder. Defendant waived a jury at sentencing. The trial court determined that defendant was eligible for the death penalty in that he murdered the victim because she would have been a witness against him in a criminal prosecution (see Ill. Rev. Stat. 1987, ch. 38, par. 9-1(b)(8)), and that there were no mitigating factors sufficient to preclude imposition of the death penalty. The trial court sentenced defendant to death. On direct appeal, we affirmed defendant's conviction and death sentence. Enis, 163 Ill. 2d 367.
B. Post-Conviction Proceedings
On June 14, 1995, defendant filed a pro se petition for post-conviction relief. The circuit court appointed counsel to represent defendant in the post-conviction proceedings. The trial court subsequently granted attorney Robert Hauser leave to file an appearance as additional counsel in the post-conviction proceedings. In August 1996, Hauser directed a subpoena to the Waukegan police department, calling for the production of the "entire police file pertaining to Anthony Enis and/or Melissa Entratta [sic]." The circuit court granted the State's motion to quash the subpoena.
On November 27, 1996, defendant, through counsel, filed an amended petition for post-conviction relief alleging that he was denied the effective assistance of counsel at trial and sentencing. Defendant attached numerous affidavits and other documents to the amended petition. On April 17, 1997, the State filed a motion to dismiss the amended petition for post-conviction relief, arguing that defendant's claims are barred by the doctrines of res judicata and waiver, and are otherwise unsupported by the record or affidavit.
On April 25, 1997, defendant filed a motion for substitution of judge, alleging that certain rulings and comments by Judge Christopher Starck demonstrated prejudice against defendant. Defendant subsequently filed an amended motion for substitution of judge, with supporting affidavit, containing essentially the same allegations. Defendant's amended motion was transferred for disposition to Judge Stephen Walter, who denied the motion.
On October 17, 1997, the circuit court granted defendant leave to file a supplement to the amended petition for post-conviction relief. In this supplement, defendant argued that appellate counsel was ineffective for failing to raise, on direct appeal, the issue of trial counsel's ineffectiveness. The State responded with a motion to dismiss the supplement.
On November 4, 1998, the circuit court dismissed defendant's petition for post-conviction relief without an evidentiary hearing. The circuit court ruled that the claimed instances of ineffective assistance of trial counsel involved matters of trial strategy, were not supported by affidavit, could have been raised on direct review, or were already considered on direct review. The circuit court also ruled that there were no meritorious claims of ineffective assistance of appellate counsel.
On appeal, defendant challenges the orders of the circuit court dismissing his post-conviction petition without an evidentiary hearing, granting the State's motion to quash the subpoena directed to the Waukegan police department, and denying his motion for substitution of judge.
A. Post-Conviction Hearing Act
The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)) provides a remedy for criminal defendants who claim that a substantial violation of their constitutional rights occurred at the proceedings which resulted in their convictions, when such a claim was not, and could not have been, previously adjudicated. People v. Johnson, 191 Ill. 2d 257, 268 (2000). Issues that were decided on direct appeal are barred by the doctrine of res judicata, and issues that could have been raised on direct appeal, but were not, are deemed waived. People v. Cloutier, 191 Ill. 2d 392, 397 (2000); Johnson, 191 Ill. 2d at 268. Waiver is not implicated, however, where a defendant's post-conviction claim relies on evidence dehors the record. People v. Holman, 164 Ill. 2d 356, 362, 376 (1995). The petitioner is entitled to a hearing on his post-conviction claims only where the allegations of the petition, supported by the trial court record and accompanying affidavits, make a substantial showing of a violation of a constitutional right. Cloutier, 191 Ill. 2d at 397; People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). All well-pleaded facts in the petition and in any accompanying affidavits are taken as true. People v. Towns, 182 Ill. 2d 491, 503 (1998). The sufficiency of the allegations contained in a post-conviction petition are reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).
With these principles in mind, we consider whether the circuit court erred in dismissing defendant's post-conviction petition without an evidentiary hearing. Although defendant's petition raises numerous claims of ineffective assistance of counsel at trial, sentencing, and on direct appeal, we consider only those claims that defendant has raised in this appeal. See 177 Ill. 2d R. 341(e)(7).
B. Ineffective Assistance of Counsel
In order to succeed on a claim of ineffective assistance of trial counsel, a defendant must satisfy the two-pronged Strickland test: a defendant must allege facts which demonstrate that counsel'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 trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984); People v. Wilson, 191 Ill. 2d 363, 370 (2000). A reasonable probability is a probability sufficient to undermine confidence in the outcome, namely, that counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; People v. Evans, 186 Ill. 2d 83, 93 (1999). There is a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. The failure to satisfy either the deficiency prong or the prejudice prong of the Strickland test precludes a finding of ineffective assistance of counsel. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; Wilson, 191 Ill. 2d at 370.
Claims of ineffective assistance of appellate counsel are also evaluated under the Strickland test. People v. Childress, 191 Ill. 2d 168, 175 (2000). A defendant who claims that appellate counsel was ineffective for failing to raise an issue on appeal must allege facts demonstrating that such failure was objectively unreasonable and that counsel's decision prejudiced defendant. If the underlying issue is not meritorious, then defendant has suffered no prejudice. Childress, 191 Ill. 2d at 175.
We address individually each of defendant's claims of ineffective assistance of counsel.
Defendant claims that his counsel was ineffective because he made promises to the jury in his opening statement that he did not keep. In his opening statement, counsel indicated that the evidence would show that Merlinda Entrata reported the sexual assault days after it allegedly occurred; that at the time of Entrata's murder, defendant was with Diane Gonzales, his then girlfriend, now his wife; and that R.C. Burton, defendant's landlord, told police officers that as he left for work at 6:30 a.m. on the day of the murder, Gonzales' car was parked outside defendant's apartment. Defendant argues that no testimony or other evidence was introduced to establish these propositions.
Defendant raises the foregoing claim as a matter separate and distinct from his claim that his counsel was ineffective for failing to call certain witnesses at trial, including those witnesses who could have established some of the propositions listed above. We therefore view defendant's claim as a challenge only to the propriety of counsel's opening. Defendant, however, cites to nothing outside the trial court record in support of this claim. Accordingly, this issue could have been raised on direct review. The issue is therefore waived. See Johnson, 191 Ill. 2d at 268; People v. Olinger, 176 Ill. 2d 326, 365 (1997).
2. Failure to Call Witnesses
Defendant next claims that his counsel was ineffective for failing to present the testimony of several witnesses that would have rebutted the State's case in chief and that would have fulfilled promises made to the jury in defense counsel's opening statement. These witnesses include Moselle Williams, Michael Melius, R.C. Burton, Kathleen Jackson, Roy Norvell, Joseph Caliendo, David Asma, and Dr. Solomon Fulero.
Guiding our review of defendant's claim is the principle that decisions concerning whether to call certain witnesses on a defendant's behalf are matters of trial strategy, reserved to the discretion of trial counsel. People v. West, 187 Ill. 2d 418, 432 (1999); People v. Reid, 179 Ill. 2d 297, 310 (1997). Such decisions enjoy a strong presumption that they reflect sound trial strategy, rather than incompetence (People v. Wiley, 165 Ill. 2d 259, 289 (1995)), and are, therefore, generally immune from claims of ineffective assistance of counsel (Reid, 179 Ill. 2d at 310). This is not the case, however, where counsel's strategy was so unsound that no meaningful adversarial testing was conducted. West, 187 Ill. 2d at 432-33; Reid, 179 Ill. 2d at 310.
Defendant claims that Moselle Williams, had he been called as a witness at trial, would have testified that he drove Merlinda Entrata to the police station six days after the alleged sexual assault. Defendant argues that Entrata's delay in reporting the alleged assault, and other evidence that the sexual assault case against defendant was weak, negates defendant's motive for murdering Entrata.
The issue of counsel's failure to present evidence as to Entrata's delay in reporting the alleged sexual assault is barred by the doctrine of res judicata. On retrial, defendant's counsel attempted to elicit testimony from former Assistant State's Attorney Steven Simonian that Entrata did not report the alleged sexual assault until May 4, 1987, six days after its alleged occurrence. The State objected, citing a pretrial ruling which restricted the introduction of evidence relating to the sexual assault case. The trial court sustained the objection. On direct appeal, defendant argued that trial counsel was ineffective for failing to raise this issue in a post-trial motion and preserve it for review. Defendant further argued, on direct appeal, that the trial court's exclusion of this evidence was plain error. Enis, 163 Ill. 2d at 403, 406. We rejected both arguments. We held that, assuming arguendo trial counsel was ineffective, the result of the trial would not have been different had counsel preserved this claim. Enis, 163 Ill. 2d at 407. We also held that the exclusion of such evidence was not plain error and did not deprive defendant of a fundamentally fair trial. Enis, 163 Ill. 2d at 403-04. Defendant cannot obtain post-conviction relief merely by rephrasing a claim which was previously addressed on direct appeal. See Evans, 186 Ill. 2d at 103; People v. Williams, 186 Ill. 2d 55, 62 (1999).
Defendant also claims that Williams would have testified that Entrata told him that she could not identify her attacker. In support of this claim, defendant attached to his post-conviction petition a copy of an unsigned, unsworn, untitled report that defendant identifies as investigation notes from "Consolidated Investigation Services." An investigation note, dated February 4, 1988, states that contact was made that day with Williams, who stated that Entrata had told him that she was sexually assaulted by a person wearing a mask and gloves and that she could not identify her attacker.
A claim that trial counsel failed to investigate and call a witness must be supported by an affidavit from the proposed witness. People v. Johnson, 183 Ill. 2d 176, 192 (1998); People v. Thompkins, 161 Ill. 2d 148, 163 (1994). In the absence of such an affidavit, a reviewing court cannot determine whether the proposed witness could have provided testimony or information favorable to the defendant, and further review of the claim is unnecessary. Johnson, 183 Ill. 2d at 192; Thompkins, 161 Ill. 2d at 163. Defendant has failed to support his claim with an appropriate affidavit from Williams.
Even if we considered the February 4, 1988, investigation note, in lieu of an affidavit, defendant has failed to demonstrate that there is a reasonable probability that the outcome of defendant's trial would have been different had counsel presented Williams' testimony. As this court stated on direct appeal, the evidence overwhelmingly proved defendant's guilt. Enis, 163 Ill. 2d at 403. Williams' proposed testimony would not have impeached or otherwise discredited the testimony of the three prosecution witnesses who identified defendant as the man they observed in the parking lot outside the victim's apartment building on the morning of the murder. Further, whatever identification problems the State might have encountered in its prosecution of defendant for the alleged sexual assault of Entrata, that case was, in fact, set to begin trial on August 17, 1987. Williams' testimony would not have negated defendant's motive for murdering Entrata on August 10, 1987. We therefore reject defendant's claim.
We also reject defendant's related claim that appellate counsel was ineffective for failing to raise, on direct appeal, trial counsel's ineffectiveness for not calling Williams as a witness. As discussed above, the underlying issue has no merit. Accordingly, defendant has suffered no prejudice due to appellate counsel's failure to raise this issue on appeal. See Childress, 191 Ill. 2d at 175.
Defendant next claims that his counsel was ineffective for failing to call as a witness Michael Melius, former public defender for Lake County, who represented defendant in the sexual assault case. According to Melius' affidavit, defense counsel did not interview him prior to defendant's retrial. Melius states that he would have testified that the sexual assault case was defensible; that he had advised defendant that there was a good chance of a not-guilty finding; that defendant was a cooperative client; and that defendant never expressed any hostility toward Entrata. The gist of defendant's claim is that Melius' testimony would have "blunted" the State's suggested motive for the murder, i.e., because defendant expected a favorable outcome in the sexual assault case, there was no need to murder Entrata.
In deciding an ineffectiveness claim, the reasonableness of counsel's conduct must be judged on the facts of the particular case, viewed as of the time of counsel's conduct. Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066. In the present case, defendant's counsel had available to him a record of Melius' testimony at defendant's first trial. See Enis, 139 Ill. 2d at 275-76. Melius testified, in relevant part, that statements Entrata made to police indicated that she recognized her attacker as defendant, whom she knew from her place of employment, and that Melius believed he told defendant that the outcome of the sexual assault case depended largely on the credibility of Entrata. Enis, 139 Ill. 2d at 275-76. Defendant's counsel could have reasonably determined that Melius' testimony would reinforce, rather than "blunt," the State's suggested motive for the murder of Entrata. Accordingly, counsel's decision not to call Melius was not deficient. Assuming counsel's decision was deficient, defendant has failed to demonstrate that there is a reasonable probability that the outcome of the trial would have been different. Melius' proposed testimony, like that of Moselle Williams, would not have negated defendant's motive for murdering Entrata. Nor would his testimony have called into doubt the testimony of the three eyewitnesses who identified defendant. In the absence of a showing of prejudice, the trial court properly rejected defendant's claim.
The trial court also properly rejected defendant's related claim that appellate counsel was ineffective for failing to raise, on direct appeal, trial counsel's ineffectiveness for not calling Melius as a witness. Because the underlying issue has no merit, defendant has suffered no prejudice due to appellate counsel's failure to raise this issue on direct appeal. See Childress, 191 Ill. 2d at 175.
As his next claim, defendant alleges that counsel was ineffective for failing to present the testimony of R.C. Burton, defendant's landlord. Burton was hospitalized during the time of defendant's second trial, and the trial court granted defendant leave to take Burton's evidence deposition. Counsel ultimately decided, however, to proceed without Burton's testimony. According to defendant, Burton would have testified that, at 6:30 a.m. on August 10, 1987, he saw Diane Gonzales' maroon car in the parking lot outside defendant's apartment. This vehicle, therefore, could not have been the vehicle seen leaving the parking lot outside Entrata's apartment building that morning.
Defendant has failed to support this claim with the necessary affidavit from Burton. See Johnson, 183 Ill. 2d at 192. Although defendant states in his reply brief that Burton is deceased and not "now" available, it remains unclear whether defendant could have obtained an affidavit from Burton in November 1996 when defendant filed his amended post-conviction petition. Defendant argues that, notwithstanding the absence of an affidavit from Burton, it was "established" in the first trial that Burton would testify that the maroon vehicle was parked outside defendant's apartment on the morning of the murder. Defendant mischaracterizes Burton's testimony.
At defendant's first trial, the State called Burton as a witness. On cross-examination by defense counsel, the following exchange occurred:
"Q. When you left for work on the morning of August 10th at 6:30 in the morning, that maroon car that belonged to Tony and Diane was still parked in the parking space, wasn't it?
A. I can't say for sure whether it was or was not.
Q. Do you remember having a conversation with the Lieutenant ...