The opinion of the court was delivered by: Justice Miller
Docket No. 86408-Agenda 7-March 2000.
The defendant, Daniel J. Edwards, brings this appeal from an order of the circuit court of Kankakee County dismissing, without an evidentiary hearing, his amended post-conviction petition. Because the defendant received the death sentence for the underlying first degree murder conviction, the present appeal lies directly to this court. 134 Ill. 2d R. 651(a).
Following a jury trial in the circuit court of Kankakee County, the defendant was convicted of first degree murder and aggravated kidnapping. The same jury found the defendant eligible for the death penalty because of his commission of first degree murder during the course of another felony, aggravated kidnapping. See Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6). At the conclusion of the sentencing hearing, the jury determined that there were no mitigating circumstances sufficient to preclude a sentence of death, and the trial court therefore imposed the death sentence for the conviction for first degree murder. On direct appeal, this court affirmed the defendant's convictions and death sentence. People v. Edwards, 144 Ill. 2d 108 (1991). The United States Supreme Court denied the defendant's petition for a writ of certiorari. Edwards v. Illinois, 504 U.S. 942, 119 L. Ed. 2d 204, 112 S. Ct. 2278 (1992).
The defendant commenced the present action for post-conviction relief in the circuit court of Kankakee County in November 1992. With the assistance of counsel, the defendant filed an initial and later an amended post-conviction petition, raising a number of challenges to the trial and sentencing proceedings. The State moved to dismiss the defendant's amended petition. The circuit court granted the State's motion and dismissed the amended petition without an evidentiary hearing. This appeal followed. 134 Ill. 2d R. 651(a).
We will briefly summarize the evidence presented at trial. The defendant was charged with first degree murder and aggravated kidnapping for the abduction and death of Stephen Small of Kankakee. Small had been buried alive in a wooden box, where he was being held for payment of a $1 million ransom.
Around 12:30 a.m. on September 2, 1987, someone claiming to be a Kankakee police officer called the Small home and told Stephen Small that a burglary had occurred at his office. Small got dressed and left the house. Around 3:30 that morning someone called the Small residence and told Stephen's wife, Nancy, "We have your husband." Nancy then heard her husband say that he had been handcuffed inside a box underground. Small told his wife to obtain $1 million in cash. The caller directed Mrs. Small not to report the matter to the police.
The matter was reported to the authorities, however, and devices were connected to the Smalls' telephone line to record incoming calls and to determine their origins. At 5:03 that afternoon, the same person called again, asking Mrs. Small how much money had been collected. This call was placed from a telephone located at a Phillips 66 gas station in Aroma Park. The defendant was seen there at that time, in the company of a blonde-haired woman.
At 5:40 p.m., Jean Alice Small, Stephen Small's aunt, telephoned the Small residence to tell them of a call she had just received. Jean said that the caller had told her that he knew that Nancy Small's telephone was tapped. After telling Jean that the victim was buried, the caller threatened to kill Jean's husband.
Nancy Small received another telephone call from the kidnapper at 11:28 that night. This call originated from a telephone at a Sunoco station in Aroma Park, where an FBI agent saw a white male at a telephone, and a blonde-haired woman in a car that was later identified as belonging to Nancy Rish, the defendant's girlfriend; Rish had blonde hair. The caller played a tape recording of Stephen Small's voice. On the tape, Stephen provided instructions for delivering the ransom. After audio enhancement, a voice in the background could be heard threatening Small.
Nancy Small received one more telephone call from the kidnapper, at 11:46 that night. The call was placed from a Marathon service station in Kankakee. The caller accused Nancy of having notified the police and refused her offer of the ransom. Minutes later, at 11:50 p.m., an Illinois state police officer saw Rish's car, with its trunk partly open, driving from Kankakee toward Aroma Park.
Law enforcement officers then placed the defendant's home under surveillance. They saw a dark-colored Buick, with its trunk partly open, arrive at the house in Bourbonnais where the defendant and Rish lived. The defendant and a white woman with blonde hair left the car and went inside.
Officers carried out a search of the residence later that morning, on September 3, and the defendant was arrested at that time. Later that day, the defendant led law enforcement officers to the site where the victim was buried. There, officers dug up a wooden box and found the victim's body inside. The box measured about six feet long and three feet wide, and was constructed of plywood.
A medical examiner later determined that the victim died of asphyxiation caused by suffocation. The medical examiner believed that the victim would not have survived more than three or four hours inside the enclosed box. The medical examiner noted that the pipe extending from the box into the open air was too long for its diameter to serve as an adequate air-exchange system.
The State presented other evidence connecting the defendant to these offenses. On the night of the victim's disappearance, around midnight, a neighbor of the defendant heard the defendant say, "Let's go, let's hit it," get into his car, and drive off. Also, two neighbors of the Small family saw the defendant's van, or one similar to it, parked in their neighborhood after midnight on September 2. One neighbor also noticed a mid-sized car at that time, heard two car doors slam, and saw the car and the defendant's van drive away with their lights off.
Several witnesses saw the defendant constructing a wooden box in his garage during summer 1987, preceding the offenses here. The defendant gave various explanations for the project, saying that it would be used for a lemonade stand, or by his brother for transporting things, or at his brother's pool in Florida. A neighbor of the Smalls had seen a white van similar to the defendant's van driving through an alley next to the Small's home about 10 times that summer. While the defendant and Rish were visiting a boat store that summer, the defendant saw Stephen Small leaving the store in a sports car; the defendant was heard to say, "Boy, it sure would be nice to afford stuff like that."
The search of the defendant's residence at the time of his arrest turned up a Kankakee telephone book with the name "Small" circled. The defendant's boots were found behind a washer and dryer at the residence, and soil on the boots matched a sample from the location where the box was buried. Soil in the defendant's van also matched the sample. White caulking material on gloves found in the defendant's trash had the same chemical composition as the caulking material used to fill in the seams of the wooden box in which the victim had been buried. The defendant's fingerprints were found on PVC pipe and duct tape recovered from the box.
A person who owed the defendant money had had a pair of handcuffs stolen from him, and the same pair was later discovered on the victim. Another person who owed the defendant money had had a gun stolen, and it was found by investigators in the countryside near Aroma Park. The defendant purchased a battery that was found in the wooden box. Bolt cutters belonging to a company owned by the defendant's brother were found at a point between where the box was uncovered and where the victim's car was found, and they could have been the implement used to cut the chain connecting the handcuffs on the victim's wrists.
At the close of evidence, the jury found the defendant guilty of first degree murder and aggravated kidnapping. A capital sentencing hearing was then conducted. At the first stage of the hearing, the jury found the defendant eligible for the death penalty because of his commission of murder during the course of another felony, aggravated kidnapping. See Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6). At the second stage of the hearing, the parties presented evidence in aggravation and mitigation. At the conclusion of the hearing, the jury determined that there were no mitigating circumstances sufficient to preclude a sentence of death. The trial judge accordingly sentenced the defendant to death for the conviction for first degree murder.
The Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-7 (West 1994)) provides a method by which a defendant may challenge a conviction or sentence for violations of federal or state constitutional rights. People v. Tenner, 175 Ill. 2d 372, 377 (1997); People v. Thompkins, 161 Ill. 2d 148, 157 (1994). An action for post-conviction relief is a collateral proceeding rather than an appeal from the underlying judgment. People v. Williams, 186 Ill. 2d 55, 62 (1999). To be entitled to post-conviction relief, a defendant must demonstrate a substantial deprivation of federal or state constitutional rights in the proceedings that led to the judgment being challenged. 725 ILCS 5/122-1 (West 1994); People v. Morgan, 187 Ill. 2d 500, 528 (1999). Principles of res judicata and waiver narrow the range of issues available to a post-conviction petitioner "to constitutional matters which have not been, and could not have been, previously adjudicated." People v. Winsett, 153 Ill. 2d 335, 346 (1992). Accordingly, rulings on issues that were previously raised at trial or on direct appeal are res judicata, and issues that could have been raised in the earlier proceedings, but were not, will ordinarily be deemed waived. People v. Tenner, 175 Ill. 2d 372, 378 (1997); People v. Coleman, 168 Ill. 2d 509, 522 (1995).
The defendant raises a number of contentions in this appeal, arguing generally that the post-conviction court erred in dismissing the petition without an evidentiary hearing. A court considering a post-conviction appeal will conduct a de novo review of a petition that has been dismissed without an evidentiary hearing. People v. Coleman, 183 Ill. 2d 366, 389 (1998). With several exceptions, we will discuss these issues in the same sequence in which the defendant has presented them in his brief before this court.
The defendant argues that the affidavit submitted by Master Sergeant William Willis of the Illinois State Police in support of the search warrant was defective in various respects. On direct appeal, this court considered a number of the same or related contentions involving the affidavit and the issuance of the search warrant. Edwards, 144 Ill. 2d at 129-33. At that time, the court held that various misstatements in the affidavit would not have affected the judge's decision to issue the requested warrant. The defendant renews here a number of the same allegations, and supplements them with an additional circumstance that he believes entitles him to an evidentiary hearing. Specifically, the defendant argues that Willis should have stated in the affidavit that Mrs. Small heard a tape recording of her husband's voice, rather than his actual voice, during the kidnapper's first call to her; that the victim said that "he was handcuffed, instead of being handcuffed"; that the 11:50 telephone call originated from a Marathon gas station in Kankakee, not from a Sunoco station in Aroma Park; and that FBI agents did not see a white male go to Rish's home after leaving the pay telephone at 11:40.
On direct appeal, the defendant also raised the discrepancy in the origin of the 11:50 telephone call, and a number of other issues concerning the affidavit. Edwards, 144 Ill. 2d at 129-33. Despite those matters, this court concluded that the warrant was valid and that the defendant was not entitled to a hearing into the accuracy of the affidavit under Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). We adhere to that decision. Even with the changes urged by the defendant, the Willis affidavit would still have provided sufficient information to justify the issuance of the search warrant.
In renewing his challenge to the affidavit in this appeal, the defendant places special emphasis on a comment made by Officer Willis that appears in a transcript of remarks by Officer Willis for a television program called "Top Cops." According to the defendant, on that occasion, in May 1990, after the trial, Willis told the reporter on the program:
"Wanted the warrant to stand up in case we're right. We know Edwards is it. We have no proof, but we know by cop instinct this guy is involved. He made the second phone call. Got to know where he's at. Small might be at the house. So we made the decision to get the search warrant."
The defendant argues that the comment "We have no proof" shows that Willis intentionally made material misstatements in the affidavit he submitted in support of the warrant. Rejecting this argument, the post-conviction judge characterized the officer's comment as "theatrics." We agree with the judge's assessment. The remark "We have no proof" is belied by the extensive discussion preceding it in the transcript, in which Willis detailed the steps in the investigation and the events leading to the decision to focus on the defendant as a suspect in the case.
In addition, we question the relevance of the comment. The officer made the remark several years after the issuance of the warrant. We do not believe that Officer Willis' later characterization of the case is relevant to the determination of probable cause made earlier by the judge who issued the warrant. Even without the items criticized by the defendant, the affidavit contained sufficient grounds to justify the issuance of the warrant.
The defendant next argues that the prosecution presented hypnotically refreshed testimony at trial, in violation of state law, without first disclosing the nature of the evidence to the defense. According to the defendant, the evidence in question was introduced during the testimony of Deputy Sheriff Jan Krizik, which, the defendant alleges, was enhanced through hypnosis. The defendant complains specifically that Krizik's identification of the defendant's van was the product of hypnosis the witness underwent before trial. At trial, Krizik testified that she identified the defendant's van as having been on the street near the Small residence, and outside her own home, in the early morning hours of September 2 by the presence of decals on one of its rear windows. The defendant argues that Krizik acquired this detail-the presence of the decals-as a result of hypnosis. The defendant maintains that ...