The opinion of the court was delivered by: Justice Thomas
Docket No. 86880 Agenda 3-September 2000.
The defendant, Leroy Orange, appeals from an order of the circuit court of Cook County dismissing, without an evidentiary hearing, his second post-conviction petition. Because the defendant was sentenced to death for the underlying murder convictions, he appeals directly to this court. 134 Ill. 2d R. 651(a). We now affirm the judgment of the circuit court.
The defendant was convicted in 1985 of four counts each of murder and concealment of a homicidal death, and one count of aggravated arson, and subsequently was sentenced to death. On direct appeal, this court affirmed the defendant's murder and concealment convictions and death sentence, but reversed his arson conviction. People v. Orange, 121 Ill. 2d 364 (1988). The Supreme Court denied the defendant's petition for writ of certiorari. Orange v. Illinois, 488 U.S. 900, 102 L. Ed. 2d 235, 109 S. Ct. 247 (1988). Thereafter, the defendant filed an amended post-conviction petition in the circuit court of Cook County, which the trial court summarily dismissed. On appeal from that dismissal, this court remanded the cause for an evidentiary hearing on the portion of the defendant's petition that alleged that he was denied the effective assistance of counsel at his sentencing hearing. People v. Orange, 168 Ill. 2d 138 (1995). On remand, the trial court found that the defendant's trial counsel had been ineffective at sentencing and ordered a new sentencing hearing. While those proceedings were pending, the defendant filed a second petition for post-conviction relief, and then an amended second post-conviction petition, in the circuit court of Cook County. The amended second petition alleged that new evidence supported his previous assertions that his confession to the murders was the result of torture by a group of Chicago police officers at Area 2 police headquarters. The trial court dismissed this petition without an evidentiary hearing. The circuit court stayed the proceedings on the new sentencing hearing pending the defendant's appeal of the dismissal of his petition.
This court has previously set forth a detailed recitation of the evidence presented at the defendant's trial. Orange, 121 Ill. 2d 364. Therefore, we will state here only those facts necessary to resolve the issues involved in this appeal. On January 12, 1984, around 6:30 a.m., the police responded to a report of a fire at an apartment building. Upon arriving, they discovered the dead bodies of four persons who had been repeatedly stabbed. One of the victims was a 10-year-old child. The defendant, an acquaintance of the victims, was arrested at his mother's house later that day around 3 p.m. Prior to the defendant's arrest, Mildred Orange, the defendant's wife, told police that the defendant had not come home the night of the murders. She also told police that she had found some clothing in her kitchen that belonged to the defendant's brother, Leonard Kidd. The clothing had not been there on the morning of January 12 when she went to work. Later that night when she went to the police station, she noticed that the defendant was not wearing the same clothes he had been wearing when he left the house the night before. While the officers were questioning the defendant at the police station, Kidd telephoned Mildred and asked her to call the police to find out the nature of the charges against the defendant. During the course of their conversation, Kidd referred to the defendant by his nickname "Pokey" and told her that he had something to tell her that could put he and Pokey away for the rest of their lives. Mildred met Kidd at a restaurant a short time later where he was then arrested by police. At the time of his arrest, Kidd was wearing a watch that belonged to one of the victims.
The defendant gave an oral statement and a signed confession to the police, admitting that he had stabbed the four victims and had attempted to burn the apartment. Kidd also provided a detailed statement to police that was generally consistent with the defendant's confession. At trial, however, the defendant testified that he had not been involved in the crimes. He acknowledged that he was present at the apartment on the night in question, but he testified that he had left before the crimes were committed. The defendant further claimed that the police had coerced his confession by physically torturing him. Kidd also testified at the defendant's trial but recanted his earlier statement to the police and took full responsibility for the crimes. Kidd denied that the defendant had taken any part in the crimes.
With respect to his claim that he was tortured by police, the defendant testified that he was placed in an interrogation room and handcuffed behind his back. According to the defendant, "two guys" placed a plastic bag over his head and told him to tell them where the weapon was located. When he refused, they placed the bag over his head again and hit him in the stomach to keep him from holding his breath. Sometime later, a man that police said was from the State's Attorney's office came in to see the defendant. The defendant claimed that he told the man about the plastic bag and the beating. The defendant also claimed that he told him that police had stuck him with an electrical device on his arm and that this had made his fingers move. He also said that they had "stuck some grease in his behind and stuck him in the behind." After the man the defendant thought was from the State's Attorney's office left, one of the officers approached him and placed his hands between the defendant's legs and squeezed his testicles. The defendant finally gave his confession to police about 4 a.m., after being in custody for about 12 hours.
According to the defendant, he was taken to the county jail after he gave his statement. About two hours later, the defendant was examined by a paramedic. The defendant told the paramedic that he had been stuck in the behind with pins and that somebody had squeezed his testicles. Finally, the defendant testified that when he talked to Assistant State's Attorney Dennis Dernbach at the time of his confession he did not mention the police torture because he was fearful of further torture.
On cross-examination, the defendant acknowledged that he had not been in custody on January 11, 1984, even though he signed a consent to be examined by Dr. Parikh on January 14, 1984, stating that he was abused by police on January 11 and 12, 1984. The defendant also acknowledged that there was nothing in the consent to indicate that he told the doctor about the electric shock or the plastic bag, although the defendant did tell the doctor that he had been stuck in the butt with needles three or four times and that his testicles had been squeezed once.
Dr. Shirish Parikh, a neurosurgeon, testified that he was employed by the Department of Corrections, Cermak Hospital, when he examined the defendant on January 14, 1984. According to Parikh, the defendant told him that the police had stuck needles three or four times into his back, and that they had kicked and squeezed his scrotum throughout the night. Dr. Parikh further testified that he found no evidence of physical abuse or mistreatment. Specifically, he found no indication of bruising, swelling, or tenderness on the defendant's back, scrotum or anus. The only mark on the defendant's body was a slight pimple on the buttocks.
The State introduced the testimony of the police officers who had taken part in the investigation of the offenses and the interrogation of the defendant. They denied that any mistreatment of the defendant had occurred. Two police officers testified that Jon Burge, a police lieutenant at Area 2, was not present during the defendant's interrogation, while one other officer testified that he did not know whether or not Burge had been in the interrogation room with the defendant.
At the close of all the evidence, the jury found the defendant guilty on the charges of murder, concealment of a homicidal death and aggravated arson. The defendant chose to proceed with a sentencing hearing before the judge without a jury. The judge at sentencing determined that the defendant was eligible for the death penalty based on the statutory aggravating factors that the defendant was 18 years old or older at the time of the crimes, that he had been convicted of the murder of two or more individuals, and that one of the victims was under 12 years of age and was murdered in an exceptionally brutal and heinous manner. The judge found no mitigating factors to preclude a sentence of death and the defendant was sentenced to death.
On direct appeal, this court affirmed the defendant's murder and concealment convictions and death sentence, but reversed his arson conviction. People v. Orange, 121 Ill. 2d 364 (1988). Thereafter, the defendant filed an amended post-conviction petition in the circuit court of Cook County, which the trial court summarily dismissed. In this amended post-conviction petition, the defendant alleged, inter alia, that his counsel had been ineffective in failing to investigate and discover other complaints of torture that would have corroborated his allegations regarding coercive activities at Area 2. The petition further alleged that the defendant was electrically shocked by police when they placed electrodes on his arms and buttocks and that they placed a plastic bag over his head. The petition did not identify any officers by name. In support of his claims, the defendant submitted various documents and affidavits describing a pattern and practice of police brutality at Area 2, including a report prepared by the City of Chicago's office of police standards (OPS report). The OPS report was completed on September 28, 1990, following an internal investigation of police misconduct at Area 2. The OPS investigation began in 1989. The first section of the OPS report is known as the Goldston report. It documents the allegations of 50 different suspects concerning misconduct by Area 2 personnel from 1973 to 1986. The allegations included 27 incidents of beatings, 13 incidents where a plastic bag or typewriter cover was placed over a suspect's head, 11 incidents where a firearm was used to threaten or strike a suspect, 9 incidents of electroshock, and 2 hanging incidents. The report concluded that Area 2 police engaged in systematic abuse of suspects during the 13-year period, which included planned torture. The report specifically listed the names of six officers, one of which was Jon Burge, that "repeatedly appeared as connected to alleged acts of abuse." The defendant submitted the Goldston report in its entirety to the trial court in support of his first post-conviction petition on February 17, 1993, noting that it had been produced pursuant to a confidential order. After hearing arguments on the State's motion to dismiss, the trial court dismissed the defendant's petition without an evidentiary hearing.
On appeal from that dismissal, this court remanded the cause for an evidentiary hearing on the portion of the defendant's petition that alleged that the defendant was denied the effective assistance of counsel at his sentencing hearing. People v. Orange, 168 Ill. 2d 138 (1995). However, this court rejected the defendant's ineffective-assistance claim related to counsel's conduct at trial in not investigating other allegations of abuse at Area 2, noting that "the affidavits submitted by the defendant in support of his amended post-conviction petition are generalized and do not support the claims of torture or coercion made by him in this case." The court then found that "generalized allegations of coercive activity in Area 2, without other evidence, would not establish that this defendant was coerced into confessing." On remand, the trial court found that the defendant's trial counsel had been ineffective at sentencing and ordered a new sentencing hearing. While the case was pending on remand, the defendant filed a second post-conviction petition and then an amended second post-conviction petition. This time the defendant alleged, among other things, that newly discovered evidence supported his claim that he was tortured at Area 2. In support of his amended second petition, the defendant again attached the Goldston report, along with various other documents. This time he stated in his petition that Burge was the main commander identified in the Goldston report and that the "defendant's accusations of torture appear in the report." The defendant claimed that the types of torture documented in the report, i.e., "baggings and shockings," lend credibility to his own accusations. The defendant also attached to his petition the affidavit of pathologist Dr. Robert Kirschner, which stated, inter alia, that he interviewed the defendant on August 10, 1998, and determined that the defendant's description of the events surrounding his confession was consistent with someone who had been tortured. The trial court dismissed the successor petition without an evidentiary hearing, finding that it was an attempt to revisit an issue already decided by the supreme court on appeal from the first post-conviction petition and that, at any rate, the evidence presented by the defendant was not of such a conclusive character that it would change the result on retrial. The defendant's appeal to this court followed. See 134 Ill. 2d R. 651(a).
The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1998)) provides a means by which a defendant may challenge his conviction for violations of federal or state constitutional rights. People v. Tenner, 175 Ill. 2d 372, 377 (1997). An action seeking post-conviction relief is a collateral proceeding, not an appeal from the underlying judgment. People v. Evans, 186 Ill. 2d 83, 89 (1999). To be entitled to post-conviction relief, a defendant must establish a substantial deprivation of federal or state constitutional rights in the proceedings that resulted in the conviction or sentence being challenged. People v. Morgan, 187 Ill. 2d 500, 528 (1999). Because a proceeding brought under the Act is a collateral attack on a judgment of conviction, all issues actually decided on direct appeal are res judicata, and all issues that could have been raised in the original proceeding but were not are ...