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People v. Simpson

September 27, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
ROBERT SIMPSON, APPELLANT.



The opinion of the court was delivered by: Justice Fitzgerald

UNPUBLISHED

Agenda 1-March 2001.

Defendant, Robert Simpson, appeals the orders of the circuit court of Cook County, dismissing his amended post-conviction petition and his petition for post-judgment relief. Defendant was sentenced to death for his underlying murder conviction; therefore, his appeal lies directly with this court. See 134 Ill. 2d R. 651(a). We affirm the circuit court's orders.

BACKGROUND

Defendant's convictions arose from the armed robbery and murder of Barbara Lindich at the Fairway Food store in Glenwood, Illinois. This court has previously set forth the evidence presented at defendant's trial in our opinion on defendant's direct appeal. People v. Simpson, 172 Ill. 2d 117 (1996). For this reason, we will discuss only the facts that are necessary to the disposition of the issues raised in this appeal.

On May 22, 1992, at approximately 10 a.m., defendant and Carolyn LaGrone entered the Fairway Food store and robbed it while Lurlarn Young waited in the car. As defendant emptied the cash register, Barbara Lindich, a store customer, walked up behind LaGrone and peered over her shoulder. Defendant turned and shot Lindich, who later died as a result of the gunshot wound. Defendant then checked the safe, left the store with LaGrone and went to the car where Young awaited.

LaGrone was arrested three days later and gave a statement to the police that detailed the offense as well as Young and defendant's involvement. Defendant was thereafter arrested and placed in a lineup. He was identified by eyewitnesses, including employees at the Fairway Food store, as the man they saw rob the store and shoot Lindich.

At trial, three store employees identified defendant as the man who was behind the service desk with the gun. Forensic testing experts stated that the cartridge case recovered from the scene was fired from one of the pistols recovered from defendant's storage locker after defendant was arrested.

During all phases of the pretrial and trial proceedings, defendant represented himself with the aid of a public defender acting as standby counsel. Defendant called several witnesses who were present in the store at the time of the robbery to testify on his behalf. No defense witnesses contradicted the State's witnesses' accounts of what occurred in the store. Defendant also called co-defendant Young to testify but she invoked her fifth amendment right and did not testify. At defendant's request, and against the trial court's advice, custodial statements of LaGrone and Young were published to the jury.

At the close of the evidence, the jury returned a verdict finding defendant guilty of armed robbery and first degree murder of Lindich. The jury found defendant eligible for death on the basis of the murder-in-the-course-of-felony aggravating factor (720 ILCS 5/9-1(b)(6) (West 1992)) and the matter proceeded to the second stage of sentencing. Defendant continued to represent himself during the sentencing phase.

The trial court inquired whether defendant intended to call any witnesses on his behalf in mitigation and defendant responded that he wanted to call Judges James Bailey, Richard Fitzgerald and Lloyd Van Duzen as character witnesses. The trial court instructed defendant's standby counsel to investigate the matter and find out where the judges were currently located and if they could recollect knowing defendant.

At the next court date, the trial court provided defendant with three transcripts defendant had previously requested. The trial judge further informed defendant that he had contacted Judges Fitzgerald and Bailey and that neither judge remembered defendant. However, the trial court also informed defendant that both judges would be willing to come to court.

Defendant informed the trial court that since the judges could not remember him, he wanted to go to the law library and prepare certain motions. The trial court admonished defendant that he should be more concerned because the jury had not made a final determination as to defendant's sentence. In response, defendant countered that if the worse case scenario occurred and he was sentenced to death, that sentence would allow him to "bypass the Illinois Appellate Court" and go "directly to the Illinois Supreme Court." The trial court stated, "[Y]ou have your own strategy and I have told you this before, but I still wouldn't give up on the jury." Defendant acknowledged the statement but again affirmed his decision: "I understand, your Honor, but the law indicates if that does occur, the matter goes directly to the Supreme Court."

As a last attempt to convince defendant to reconsider his strategy, the trial judge informed defendant that if he were in defendant's position he would vigorously present mitigation evidence to the jury so that it would be inclined not to sentence defendant to death. Defendant asked if he could have some time to contact the judges himself. When court resumed, defendant informed the trial court that after speaking to Judge Bailey, the judge could not recall defendant. The judge again admonished defendant that he should not hinge his strategy on post-trial motions or on an appeal. He also explained to defendant that if one person on the jury panel disagreed with the imposition of death, defendant would not be sentenced to death. Despite the trial court's admonishments, however, defendant decided not to present any mitigation evidence.

At the conclusion of the second stage of the sentencing hearing, the jury found no mitigating factors to preclude imposition of the death penalty. The trial court appointed counsel to represent defendant on his post-trial motion. In preparation for the post-trial hearing, counsel requested defendant's medical file from the Pontiac Correctional Center, which showed that defendant suffered from headaches, dizziness, fainting spells, and bad eyesight and had survived a gunshot wound to the head from a prior incident. At the post-trial hearing, counsel argued that defendant was not competent to represent himself during either the trial or the sentencing phase. The trial court denied the post-trial motion and sentenced defendant to death for the murder and 30 years' imprisonment for the armed robbery.

On direct appeal, this court affirmed defendant's conviction and sentence. People v. Simpson, 172 Ill. 2d 117 (1996). The United States Supreme Court denied certiorari. Simpson v. Illinois, 519 U.S. 982, 136 L. Ed. 2d 334, 117 S. Ct. 436 (1996). Thereafter, defendant filed a pro se petition for post-conviction relief and a motion to appoint counsel. Counsel filed a motion to produce handwritten statements from the Glenwood police department. The trial court ordered the Glenwood police department to produce the requested documents. After records were produced, counsel filed a motion to compel complete production of the documents and a motion to take depositions. The trial court denied the motions.

Prior to the initial court date on defendant's post-conviction petition, the State filed a motion for clarification of defendant's competence pursuant to People v. Owens, 139 Ill. 2d 351 (1990). The State requested that the trial court determine if defendant had raised a bona fide issue as to his competence. The trial court determined that defendant's condition had not deteriorated and that he was coherent and able to understand the proceedings.

Thereafter, the trial court dismissed defendant's post-conviction petition without an evidentiary hearing. Defendant then filed a pro se petition for post-judgment relief. 735 ILCS 5/2-1401 (West 1998). The trial court dismissed the petition for post-judgment relief and defendant appealed directly to this court. We consolidated both matters for purposes of this appeal. We affirm the trial court's dismissal of defendant's post-conviction and the dismissal of defendant's petition for post-judgment relief for the following reasons.

ANALYSIS

In a post-conviction proceeding, the trial court does not redetermine a defendant's innocence or guilt, but instead examines constitutional issues which escaped earlier review. See People v. Evans, 186 Ill. 2d 83, 89 (1999). To be entitled to post-conviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-7 (West 1998)), a defendant must demonstrate a substantial deprivation of federal or state constitutional rights in the proceedings that produced the challenged conviction or sentence. People v. Morgan, 187 Ill. 2d 500, 528 (1999).

A basic tenet of the Act is that the scope of post-conviction relief is limited by considerations of waiver and res judicata "to constitutional matters which have not been, and could not have been, previously adjudicated." People v. Winsett, 153 Ill. 2d 335, 346 (1992). Issues that could have been raised on direct appeal, but were not, and any issues that were decided by a reviewing court generally will not be considered in a post-conviction proceeding. People v. West, 187 Ill. 2d 418, 425 (1999).

At the second stage of a post-conviction proceeding, as in the present case, the circuit court appoints counsel to represent an indigent defendant and counsel may file an amended post-conviction petition. See 725 ILCS 5/122-4 (West 1998); People v. Gaultney, 174 Ill. 2d 410, 418 (1996). The State may then file a motion to dismiss or answer the defendant's post-conviction petition. 725 ILCS 5/122-5 (West 1998). A defendant is not entitled to an evidentiary hearing on his post-conviction petition as a matter of right. People v. Whitehead, 169 Ill. 2d 355, 370-71 (1996).

An evidentiary hearing on a post-conviction petition is warranted only where the allegations of the petition, supported by the trial record or accompanying affidavits where appropriate, make a substantial showing that a defendant's constitutional rights have been violated. Morgan, 187 Ill. 2d at 528; People v. Towns, 182 Ill. 2d 491, 503 (1998). All well-pleaded facts in the petition and accompanying affidavits, if any, are taken as true for the purpose of determining whether to grant an evidentiary hearing. People v. Brisbon, 164 Ill. 2d 236, 244-45 (1995).

This court reviews a trial court's determination regarding the sufficiency of allegations in a post-conviction petition de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998). With these basic principles in mind, we turn to defendant's first contention.

I. Errors at Post-Conviction Proceeding

Before considering the allegations raised in defendant's post-conviction petition, we first consider defendant's contention that the trial court erred during the post-conviction proceeding when it failed to grant defendant's discovery request, improperly made certain factual and credibility determinations, and ruled that defendant was competent to proceed with the post-conviction process.

Defendant maintains that the post-conviction court erred in denying his request for the discovery depositions from four witnesses who wrote out information after the incident at the request of one of the police officers, Sergeant DiMare. Defendant alleges that there exists a conflict between DiMare's trial testimony as to what he told the four witnesses to write down after the incident, an affidavit that DiMare prepared for the post-conviction proceeding, and the witnesses' own testimony.

At trial, all four witnesses testified that DiMare gave them pencil and paper and requested that they write out notes about the incident. DiMare testified that he gave all of the witnesses pencils and paper so that they could write out notes about the incident. In an affidavit DiMare prepared for the post-conviction proceeding, he stated that the statements he received contained general information about the crime, which he incorporated into the police report. He further stated that the notes were destroyed once the police report was completed. Defendant argues the trial court should have ordered discovery depositions from the four witnesses in order to ascertain what their statements actually contained.

Although neither the civil nor the criminal discovery rules apply to post-conviction proceedings, a circuit court nonetheless has inherent discretionary authority to order discovery in post-conviction proceedings. People ex rel. Daley v. Fitzgerald, 123 Ill. 2d 175, 183 (1988); People v. Fair, 193 Ill. 2d 256, 264 (2000). A circuit court should allow discovery only if the moving party has demonstrated "good cause" for the discovery request. Fair, 193 Ill. 2d at 264-65. A discovery request will be denied where it amounts to a "fishing expedition." People v. Enis, 194 Ill. 2d 361, 415 (2000). A circuit court's denial of a request for discovery in a post-conviction proceeding will not be reversed absent an abuse of discretion. Fair, 193 Ill. 2d at 265.

Upon review, we find that the trial court did not abuse its discretion in denying defendant's discovery requests. Despite defendant's contention to the contrary, the conflict between DiMare's testimony and his affidavit is not apparent from the record. The witnesses testified that DiMare asked them to write down information about the incident and that he provided pencils and paper for them to do so. Similarly, DiMare testified that he told the witnesses to write down their names and addresses "and if they had anything that they want to keep a note of they could." In his affidavit, DiMare stated, "I asked the witnesses to write their names, addresses, telephone number, where they were in the store at the time of the shooting, and other such information, on a piece of paper." There is no inconsistency between these two statements, nor has defendant demonstrated that there existed a good cause for the trial court to order discovery depositions of the four witnesses. As such, the trial court did not abuse its discretion in denying the request.

Defendant next maintains that the circuit court incorrectly made findings of fact and determinations of credibility regarding Brady material and the testimony of LaGrone. We find defendant's argument as to both contentions unpersuasive.

In his post-conviction petition, defendant argued that DiMare deliberately withheld statements that were given to him by four witnesses. Defendant argues that in reaching its determination to dismiss defendant's petition, the trial court made improper factual and credibility findings. The record shows, however, that the trial court simply restated the contents of DiMare's affidavit.

We note that in restating the contents of the affidavit, the trial court incorrectly used the term res judicata instead of waiver. This error, however, is de minimus. It is clear from the trial court's order that the dismissal rested on the fact that the Brady violation could have been brought up on direct appeal and was, therefore, waived. In reaching this conclusion, the trial court did not make any factual or credibility determinations.

Defendant further contends that the trial court made factual findings as to his allegation that LaGrone was instructed by the State to lie about her drug usage on the day of the arrest. The trial court noted that although defendant attached an affidavit from an investigator stating that LaGrone told him she was instructed to lie, defendant did not submit an affidavit from LaGrone herself. The trial court also noted that during the trial LaGrone was extensively cross-examined about her drug use. She denied that she used drugs on the day of her arrest but admitted that she was a drug user and was receiving treatment for her drug addition. Thus, the trial court properly concluded that defendant's allegations lacked legal sufficiency.

Defendant's final argument concerns his competency to proceed with the post-conviction proceedings. The record shows that upon the State's request, the trial court made an initial determination of whether a bona fide doubt existed as to defendant's competency. See People v. Owens, 139 Ill. 2d 351 (1990). The trial judge decided the issue after hearing arguments from the defendant, defendant's post-conviction counsel and the prosecutor. The trial court concluded,

"This court listened to the petitioner at length and heard the various legal arguments he advanced as to why a psychiatric examination should not be ordered. This court also listened to petitioner's appointed counsel and arguments advanced by the assistant state's attorney. It is clear to this court that petitioner's condition had not deteriorated and that he is coherent and able to understand the proceedings."

A defendant is presumed to be fit to stand trial, to plead, and to be sentenced. 725 ILCS 5/104-10 (West 1998). A defendant is also presumed to be fit at the time of post-conviction proceedings. Owens, 139 Ill. 2d at 362. When a bona fide doubt of a defendant's fitness to proceed with post-conviction proceedings is raised, the court may order a psychological evaluation of the defendant and consider the matter at an evidentiary hearing. Owens, 139 Ill. 2d at 365.

Because the trial court is in the best position to observe a defendant's conduct, whether a bona fide doubt of fitness to proceed exists is a matter that lies within the discretion of that court. People v. Johnson, 191 Ill. 2d 257, 269 (2000). A defendant is considered unfit to proceed with the post-conviction process when, because of a mental condition, he cannot communicate his allegations of constitutional deprivations to counsel, thus frustrating his entitlement, under the Act, to a reasonable level of assistance. Johnson, 191 Ill. 2d at 269, citing Owens, 139 Ill. 2d at 359-65. If a defendant is competent to communicate allegations of constitutional violations to counsel, that defendant is competent to participate in post-conviction proceedings.

Here, the circuit court found that no bona fide doubt of defendant's fitness existed. In fact, the trial court noted that the differences between defendant and his post-conviction counsel centered around legal matters and procedures. This conflict about legal strategy does not rise to the level of mental incompetency on defendant's part. The trial court further found that defendant's mental condition had not deteriorated since the last court date and that defendant's post-conviction counsel was able to incorporate some of defendant's pro se arguments into the amended petition. All of these factors together demonstrate that the trial court did not abuse its discretion in ruling that defendant was competent to proceed with the post-conviction proceedings.

II. Use of Perjured Testimony

We now consider the allegations of defendant's post-conviction petition. Defendant first claims that Sergeant DiMare, "in a calculated effort to convict" defendant, presented false testimony to the grand jury, at hearing on defendant's motion to suppress and at trial. Before reaching the merits of defendant's perjury claims, however, we must address the State's contention that review of these claims was forfeited when defendant failed to raise them on direct appeal. A post-conviction petition is a collateral attack upon a prior conviction and sentence, not a substitute for or an addendum to a direct appeal. People v. West, 187 Ill. 2d 418 (1999). Consequently, any issues which could have been raised on direct appeal are forfeited. West, 187 Ill. 2d at 425.

We agree with the State that defendant's claim as to DiMare's grand jury testimony, his testimony at the suppression hearing and his testimony at trial were all contained in the record on direct appeal. As such, each of these claims could have and should have been raised on direct appeal. See West, 187 Ill. 2d at 425. Thus, these claims are waived.

The application of the waiver rule is not, however, a jurisdictional or absolute bar to review of procedurally defaulted claims, but is rather a rule of administrative convenience. People v. Whitehead, 169 Ill. 2d 355, 371 (1996); see also People v. Owens, 129 Ill. 2d 303, 317 (1989). Thus, the strict application of waiver will be relaxed " `where fundamental fairness so requires.' " Whitehead, 169 Ill. 2d at 371, quoting People v. Gaines, 105 Ill. 2d 79, 91 (1984). In order to satisfy the requirements of invoking the fundamental fairness exception, the defendant must satisfy a "cause and prejudice" test by objectively showing that defense counsel's efforts to raise the claim on direct review were impeded and that the error so infected the entire trial that the defendant's conviction violates due process. People v. Franklin, 167 Ill. 2d 1, 20 (1995); see also People v. Mahaffey, 194 Ill. 2d 154, 173 (2000). We find that defendant has failed to satisfy either prong of this "cause and prejudice" test and has failed, thus, to show that the fundamental fairness exception should be invoked.

It is well established that the State's knowing use of perjured testimony in order to obtain a criminal conviction constitutes a violation of due process of law. People v. Olinger, 176 Ill. 2d 326, 345 (1997). A conviction obtained through the knowing use of perjured testimony must be set aside. Olinger, 176 Ill. 2d at 345, citing United States v. Bagley, 473 U.S. 667, 678-80, 87 L. Ed. 2d 481, 492, 105 S. Ct. 3375, 3381-82 (1985). Where the State allows false testimony to go uncorrected, the same principles apply. Olinger, 176 Ill. 2d at 345. However, the State's obligation to correct false testimony does not amount to an obligation to impeach its witnesses with any and all evidence bearing upon their credibility. People v. Pecoraro, 175 Ill. 2d 294, 312-14 (1997).

Contrary to defendant's claim, we find no evidence in the record that DiMare committed perjury. Defendant first argues that DiMare presented false testimony when he stated to the grand jury that defendant used a gun to strike Katherine Koszut but that in his report he stated that he was told that defendant hit her with his other hand. The record, however, fails to support this claim. DiMare's report states,

"Mrs. Koszut asked the black man if she could help him at which time he held up what she thought to be a paper with a barrel of a gun sticking out, and said `this is a stick up.' *** [T]he suspect then grabbed Mrs. Koszut by the back collar of her shirt and with his other hand struck her in the rear of the head driving her to the floor of the service booth."

The statement that defendant hit Koszut "with his other hand" does not distinguish whether that was the hand that held the gun or not. Thus, this statement does not contradict DiMare's testimony that defendant hit Koszut with the gun. Moreover, as the State points out, even if DiMare incorrectly testified that defendant hit Koszut with the gun, the aggravated battery and armed violence counts stemming from this action were dismissed by the State prior to jury selection. Thus, because the jury never heard the allegedly false testimony and did not know of the armed violence and aggravated battery counts, its verdict would not have been affected.

Defendant also claims that DiMare gave false testimony at the hearing on the motion to suppress when he testified that one of the witnesses, Helen Gair, identified defendant at a lineup. The State counters that defendant fails to show the falsity of DiMare's statement at the suppression. However, Gair's affidavit, attached to the petition, states that she could not ...


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