The opinion of the court was delivered by: Justice Miller
Docket No. 80332-Agenda 1-March 1999.
The defendant, Ronald Barrow, appeals from an order of the circuit court of La Salle County dismissing, without an evidentiary hearing, his amended petition for post-conviction relief. Because the defendant was sentenced to death for the underlying murder conviction, the present appeal lies directly to this court. 134 Ill. 2d R. 651(a).
In May 1985, following a jury trial in the circuit court of La Salle County, the defendant was convicted of murder, armed robbery, residential burglary, and burglary. The same jury later found him eligible for the death penalty because of his commission of murder during the course of a felony. See Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)(6). The jury also found that there were no mitigating factors sufficient to preclude a sentence of death. Accordingly, the trial judge sentenced the defendant to death for the murder conviction. The judge also sentenced him to a 30-year prison term for armed robbery and to a 15-year prison term for residential burglary, with the sentences to be served consecutively; no sentence was imposed on the conviction for burglary. On direct appeal, this court affirmed the convictions and sentences. People v. Barrow, 133 Ill. 2d 226 (1989). The United States Supreme Court denied the defendant's petition for a writ of certiorari. Barrow v. Illinois, 497 U.S. 1011, 111 L. Ed. 2d 767, 110 S. Ct. 3257 (1990).
The defendant later instituted the present action by filing a pro se petition for post-conviction relief in the circuit court of La Salle County. The court appointed counsel to assist the defendant, and counsel filed an amended petition. The defendant subsequently requested leave to file a "supplemental pro se post-conviction petition," which the court denied. The State moved to dismiss the amended petition, and, after hearing arguments, the court granted the State's motion and dismissed the amended petition without an evidentiary hearing. The circuit judge concluded that the defendant's post-conviction claims were barred by the doctrine of res judicata, did not allege an issue of constitutional magnitude, or did not involve errors that would have affected the outcome of defendant's trial. The defendant brings this appeal from the dismissal of his amended post-conviction petition, and we now affirm the judgment of the circuit court.
The testimony introduced at the defendant's trial is set forth fully in this court's opinion on direct appeal. Barrow, 133 Ill. 2d at 238-45. Because much of this evidence is also relevant to the arguments raised in these post-conviction proceedings, however, we find it helpful to present a detailed summary of the trial testimony here.
Darlene Brown, the victim's daughter, testified that on February 18, 1984, she was with her father, Joseph O'Berto, at his home from about 7 p.m. until 9 p.m. The next afternoon, on February 19, Brown, her husband, and her father-in-law found O'Berto lying in the basement of his home in a pool of blood; he had been shot in the head. The front door of the house was unlocked, and several rooms were in disarray. Brown determined that some of her father's possessions were missing, including his wallet, which usually contained about $500 in hundred-dollar bills, a bankbook showing $20,000 on deposit, and a gold money clip. Hayden Baldwin, a crime scene technician, testified that several of the stairs leading to the victim's basement had been "torn up" and, in the basement, he observed an empty safe and three slot machines. Baldwin examined the front and rear doors of the victim's house and found no signs of forced entry.
Leroy Blum, the victim's next-door neighbor, testified that on February 18, 1984, he observed the outside light at the victim's home go off around 9 p.m. and then turn on again around 10:30 p.m. Around 1:15 a.m., Blum noticed that the light was on; later, at 3 a.m., Blum awoke and saw that the light was off.
Harry Hockings, an Illinois state trooper, testified that on March 15, 1984, Judy Herron informed him that her boyfriend, Harold "Smokey" Wrona, who was then serving a sentence in a Maryland state prison, had information regarding the victim's death and wanted to talk to Hockings about the case. Officer Hockings and La Salle County Sheriff Pete Wahl met with Wrona in the Maryland prison where Wrona was incarcerated. Officer Hockings testified that, because of the information provided by Wrona, arrangements were made with Maryland law enforcement authorities to have Wrona released from prison so that he could meet with the defendant and provide an opportunity for the defendant to incriminate himself in the matter. On April 6, 1984, Wrona met the defendant in Maryland in a hotel room specially equipped with hidden audiovisual equipment. After making a number of incriminating statements to Wrona, the defendant was arrested and charged with the offenses involved here.
At trial, Wrona explained that he first met the defendant in July 1983, while they were both incarcerated at a Maryland prison. Wrona testified that, while in prison, he told the defendant that, in 1966, two of his friends had committed a burglary at a home in Cedar Point, Illinois, stealing $64,000 that they had found under a basement stair. Wrona further related to the defendant that his friends told him that they had also found three "barrels of change" in the basement, which they did not take. Wrona told the defendant that his friends later learned that an additional $175,000 was hidden in a basement stair where they had not searched.
Wrona testified that the defendant visited him in the Maryland prison on February 2, 1984, following the defendant's release on bond pending appeal. According to Wrona, the defendant asked about the Cedar Point robbery, sought directions to the town, and had Wrona describe the house involved.
Wrona further testified that the defendant visited him again in prison several weeks later, on February 24, 1984. On that occasion, the defendant said that he had made "a pretty good score" in Cedar Point. According to Wrona's testimony, the defendant recounted that he and his brother, Bruce Barrow, had watched the victim's home for about one week. Late one night, the defendant knocked on the victim's front door and asked to use the telephone because he was having car trouble. The defendant then stuck his foot in the door, pushed the victim back into the house with a gun, and handcuffed him. The defendant said that the victim's wallet contained five one-hundred dollar bills and that he also found a bankbook showing a balance of $18,000. In the basement, the defendant saw an empty safe and three slot machines covered with plastic. The defendant stated that he and his brother "tore a couple stairs up" but did not find any money hidden under them. The defendant also told Wrona that he asked the victim where the money was; because the man could not hear, the defendant then "whipped him." While pointing a finger to his head, the defendant said that he "had to take him out of it." Wrona also testified that the defendant said that he and his brother wore gloves the entire time they were in the victim's home. The defendant related that he disposed of the gun in a river in Indiana later that night, just before he was stopped by an Indiana state trooper for speeding.
The tape recording of the defendant's conversation with Wrona in the Maryland hotel room was also played for the jury, and a transcript of the recording was received into evidence. As recorded on the tape, the defendant told Wrona that "everything went just like *** we had planned it." The defendant said that, after watching the victim's home for a week, he forced his way into the residence one evening after midnight. The defendant stated that although he hit the victim "all over," the victim refused to tell the defendant anything except "where he kept change." The defendant said that he then searched everywhere but could find only an empty safe in the basement. The defendant also stated that he "pulled up" the first two stairs leading to the basement but did not find any money there. Wrona asked the defendant what kind of gun he used, and the defendant replied that it was a "hot, nine mil[limeter]" from Delaware. The defendant stated that he tossed the gun off a bridge on his return trip east.
The State also presented evidence showing that the defendant, who lived in Maryland, was in the vicinity of Cedar Point around the time of the victim's murder. Judy Herron, Wrona's girlfriend, testified that in February 1984 the defendant and his brother, Bruce, visited her home in Seatonville, which is about 20 miles from Cedar Point. Herron testified that the defendant was driving a white car and that he told her that he was staying at the Holiday Inn motel in Peru under an assumed name. According to Herron, the defendant and his brother returned several days later. At that time, the defendant told Herron that his brother had been stopped for a traffic offense the previous evening, and that they had been lucky because the police officer had not discovered a gun that was in the car at the time.
Several other witnesses at trial also gave testimony establishing that the defendant was in the area at the time of the offenses involved here. An employee of a car rental agency in Delaware testified that on February 11, 1984, the defendant rented a white Ford Thunderbird, with license plate number 744741. A clerk at the Holiday Inn motel in Peru testified that defendant and another man checked into room 123 on February 13, 1984, and checked out on February 19, 1984. A police officer testified that on February 16, 1984, she observed Bruce Barrow driving the wrong way down a one-way street in La Salle. The officer stopped the car, a white Ford Thunderbird with Delaware license plate number 744741, and asked Bruce for his driver's license. According to the officer, Bruce identified himself as William Payne and said that he had a Delaware driver's license but did not have it with him at that moment. Bruce was then taken to the police station, where he called the Peru Holiday Inn and asked for room 123. A second police officer testified that Bruce asked him to talk on the telephone to a person who identified himself as Ronald Barrow. A short time later, a man who said he was Ronald Barrow called and asked to speak to William Payne. Another police officer also testified that he received a call that night at the police station from a man named Ronald Barrow, who asked to speak with William Payne. Bruce Barrow was released from custody later that night.
Walter Hamlin testified that at approximately 10 p.m. on February 18, 1984, the day of the murder, he saw a man whom he identified as Bruce Barrow enter his parents' restaurant in Cedar Point and purchase cigarettes and candy. Curtis Barmes, an Illinois state trooper, testified that on February 19, 1984, at about 1:55 a.m., he observed a white Ford Thunderbird, with Delaware license plate number 744741, traveling north on Route 51 at a point south of the Illinois River bridge near Cedar Point. Officer Barmes observed two white males in the car; Ronald and Bruce Barrow are white. Officer Barmes also testified that the only way the car could have reached Route 51 at that point near the Illinois River bridge would have been by turning off a road that led from Cedar Point.
Dave Doll, an Indiana state trooper, testified that on February 19, 1984, at around 5:07 a.m. Eastern Standard Time, he observed the defendant driving a white Ford Thunderbird east on the Indiana Toll Road. Officer Doll followed the car from the Michigan City toll plaza for 20 to 30 miles before stopping the vehicle and issuing the defendant a ticket for speeding. Officer Doll stated that another man was in the car, asleep. Evidence showed that the distance from the Illinois River bridge outside Cedar Point to the location where Officer Doll stopped the defendant was about 160 miles.
The prosecution also presented evidence to link a pair of the defendant's shoes, which were found in a search of defendant's mother's home in Maryland, where the defendant lived, to the impression of a shoe recovered from a piece of plywood found in the victim's basement. Robert Hunton, a forensic scientist with the Illinois Department of Law Enforcement, stated that the shoes "could have made the footwear impressions," for the size and pattern of the soles matched those shown on the impression.
At the close of the State's case, the defendant moved for a directed verdict; the trial court denied the motion. The defense did not present any evidence. As earlier noted, at the conclusion of the trial the defendant was found guilty of murder, armed robbery, residential burglary, and burglary. A capital sentencing hearing was then held, and the defendant was sentenced to death for the murder conviction. Because the defendant does not raise, in this post-conviction proceeding, any contentions concerning the sentencing hearing, we do not find it necessary to summarize the evidence presented at sentencing.
In this appeal from the dismissal of the amended post-conviction petition, the defendant is represented by counsel, who has filed an appellate brief. The defendant has also filed a pro se "supplemental brief." After defense counsel filed the appellate brief, counsel filed a motion for a limited remand to the circuit court for purposes of discovery in light of People v. Olinger, 176 Ill. 2d 326 (1997), which we allowed. Upon remand, the circuit court permitted the defendant to take the depositions of three persons. The circuit court then returned the cause to this court.
During the course of these proceedings, this court granted the State numerous extensions of time in which to file its brief. On October 29, 1998, this court granted the State's sixth request, extending the filing date until December 17, 1998. That order read, "Final extension. This case will be submitted without the brief of appellee if it is not timely filed." On December 23, 1998, the State sought leave to file its brief instanter. This court denied the motion and later denied the State's motions for reconsideration. Thus, we address the defendant's appeal without a brief from the State.
At the outset, we note the scope and purpose of post-conviction proceedings. The Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-7 (West 1998)) provides a remedy by which defendants may challenge their convictions or sentences for violations of federal or state constitutional law. People v. Towns, 182 Ill. 2d 491, 502 (1998); People v. Tenner, 175 Ill. 2d 372, 377 (1997). A post-conviction action is a collateral proceeding, and not an appeal from the underlying judgment. People v. Williams, 186 Ill. 2d 55, 62 (1999); Towns, 182 Ill. 2d at 502. The purpose of the proceeding is to allow inquiry into constitutional issues relating to the conviction or sentence that were not, and could not have been, determined on direct appeal. People v. Griffin, 178 Ill. 2d 65, 72-73 (1997); People v. Mahaffey, 165 Ill. 2d 445, 452 (1995). Thus, res judicata bars consideration of issues that were raised and decided on direct appeal, and issues that could have been presented on direct appeal, but were not, are considered waived. Towns, 182 Ill. 2d at 502-03; 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 when the allegations of the post-conviction petition, supported when necessary 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 must be taken as true. Towns, 182 Ill. 2d at 503. A circuit court's dismissal of a post-conviction petition without a hearing will be reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 389 (1998).
The defendant first argues that he was denied the effective assistance of trial counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel's representation was deficient and that the asserted deficiency in counsel's performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). Establishing prejudice under the Strickland inquiry requires a defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
The defendant argues that his trial counsel, Wayne McFarland, was ineffective because he erroneously advised the defendant not to testify. The defendant further asserts that trial counsel was ineffective because he promised in his opening statement to show that the defendant was not guilty but later rested without presenting a defense. This court rejected these arguments on direct appeal (People v. Barrow, 133 Ill. 2d 226, 246-50, 268 (1989)), and therefore reconsideration of the same contentions is barred here.
Specifically, the defendant argued on direct appeal that trial counsel was ineffective because he erroneously advised the defendant to forgo presenting any evidence so that the defendant could preserve for review the argument that the trial court had erroneously denied the defense motion for a directed verdict. After the trial court denied the motion for a directed verdict, defense counsel stated:
" `The law in Illinois, I believe, says that if we proceed to present evidence at this time, we may *** waive our right to raise as error on appeal, if in fact, a conviction is entered, any error which may have been committed in the denial of the motion for directed verdict. I would ask that I be allowed to speak with Mr. Barrow for I'd like to have a few minutes in ...