The opinion of the court was delivered by: Justice Freeman
Docket No. 86557-Agenda 1-May 2001.
Following a trial in the circuit court of Cook County, a jury convicted defendant, Howard Wiley, of three counts of murder and armed robbery. Defendant waived his right to a jury for the ensuing capital sentencing hearing, and the circuit court sentenced him to death on the murder counts. The circuit court also sentenced defendant to consecutive 30-year sentences for the armed robbery convictions. Defendant appealed, and this court remanded the cause with directions to conduct further proceedings under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). People v. Wiley, 156 Ill. 2d 464 (1993) (Wiley I). After the circuit court concluded that the State had not violated the principles enunciated in Batson, the cause returned to this court for further review, and this court affirmed the convictions and death sentence. People v. Wiley, 165 Ill. 2d 259 (1995) (Wiley II). The United States Supreme Court subsequently denied defendant's petition for writ of certiorari. Wiley v. Illinois, 516 U.S. 923, 133 L. Ed. 2d 223, 116 S. Ct. 322 (1995).
Defendant thereafter filed a petition, which was later amended and supplemented, for relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 (West 1994)). The circuit court dismissed the petition without an evidentiary hearing, and this appeal followed. 134 Ill. 2d R. 651. On November 16, 2000, this court issued an opinion affirming the circuit court's order of dismissal. Defendant filed a petition for rehearing (155 Ill. 2d R. 367), which this court allowed on January 29, 2001. Both parties have submitted further briefing materials in accordance with the order of this court. For the reasons that follow, we affirm in part, reverse in part, and remand the matter for an evidentiary hearing.
The testimony presented at trial was recounted by this court in Wiley II, 165 Ill. 2d at 267-71, and we will detail here only those facts relevant to our resolution of this appeal. On approximately December 2, 1985, *fn1 Donna Rucks, Carla Williams, and Adrienne Parham were murdered in Rucks' apartment. Their bodies were discovered on the morning of December 3 by employees of the building where the apartment was located, and the police were summoned. All three deaths were the result of gunshot wounds to the head. The subsequent police investigation led to defendant's arrest. Defendant was ultimately tried, convicted, and sentenced to death for the crimes.
After the completion of the direct appeal proceedings, defendant filed a petition for post-conviction relief. The petition was improperly denied, and this court reinstated defendant's petition. Defendant filed an amended post-conviction petition and later filed a supplement to that petition. The State then moved to dismiss.
The trial court dismissed defendant's post-conviction petition without a hearing, stating both that the petition was untimely and that the petition did not necessitate an evidentiary hearing. Additional facts will be supplied, where necessary, in our analysis.
On appeal, defendant maintains that the circuit court's order must be reversed because the circuit court erred in finding that the petition was time-barred. Defendant also maintains that the circuit court's alternative ruling-that the issues raised did not warrant an evidentiary hearing-was improper.
We begin by noting that a post-conviction action is a collateral attack on a prior conviction and sentence. People v. Brisbon, 164 Ill. 2d 236, 242 (1995); People v. Free, 122 Ill. 2d 367, 377 (1988). As such, the remedy "is not a substitute for, or an addendum to, direct appeal." People v. Kokoraleis, 159 Ill. 2d 325, 328 (1994). The scope of the proceeding is limited to constitutional matters that neither have been, nor could not have been, previously adjudicated. Any issues which could have raised on direct appeal, but were not, are procedurally defaulted (People v. Ruiz, 132 Ill. 2d 1, 9 (1989)) and any issues which have previously been decided by a reviewing court are barred by the doctrine of res judicata (People v. Silagy, 116 Ill. 2d 357, 365 (1987)).
In addition to these procedural bars, a defendant is not entitled to an evidentiary hearing unless the allegations set forth in the petition, as supported by the trial record or accompanying affidavits, make a substantial showing of a constitutional violation. People v. Coleman, 183 Ill. 2d 366, 381 (1998). In making that determination, all well-pleaded facts in the petition and affidavits are to be taken as true, but nonfactual and nonspecific assertions which merely amount to conclusions are not sufficient to require a hearing under the Act. Coleman, 183 Ill. 2d at 381. The dismissal of a post-conviction petition is warranted only when the petition's allegations of fact-liberally construed in favor of the petitioner and in light of the original trial record-fail to make a substantial showing of a constitutional violation. Coleman, 183 Ill. 2d at 382. On appeal, the circuit court's decision to dismiss the petition without an evidentiary hearing is subject to plenary review. Coleman, 183 Ill. 2d at 388.
Timeliness of the Petition
We note the State concedes that the circuit court improperly dismissed, as untimely, defendant's post-conviction action. After reviewing the record, we agree and accept the State's concession. Therefore, we turn to defendant's other assertions of error.
Sufficiency of the Death Eligibility Verdict
Defendant maintains that his appellate counsel was ineffective for failing to argue that the evidence was insufficient to prove him eligible for the death penalty beyond a reasonable doubt. This court has held that this type of claim is cognizable under the Post-Conviction Hearing Act. See People v. West, 187 Ill. 2d 418, 434-35 (1999). Such a claim is measured against the same standard as those dealing with ineffective assistance of trial counsel. See West, 187 Ill. 2d at 435 (and cases cited therein). A defendant who contends that appellate counsel rendered ineffective assistance must show that the failure to raise the issue was objectively unreasonable and that the decision prejudiced the defendant. West, 187 Ill. 2d at 435. In other words, we must determine whether appellate counsel would have presented a successful challenge to the sufficiency of the evidence with respect to defendant's death eligibility on direct review, had he raised the claim at that time.
A defendant can be found eligible for the death penalty only if the finder of fact finds that the State has proven beyond a reasonable doubt that defendant was at least 18 years of age at the time of the commission of the offense and that at least one statutory aggravating factor exists. Ill. Rev. Stat. 1985, ch. 38, pars. 9-1(f), (g). In this case, defendant's death eligibility was predicated upon the statutory aggravating factor set out in section 9-1(b)(6) of the Criminal Code of 1961.
At the time of defendant's trial, section 9-1(b)(6) authorized the imposition of the death penalty when the murdered individual was killed in the course of another felony "if: (a) the murdered individual: (1) was actually killed by the defendant, or (ii) received physical injuries personally inflicted by the defendant substantially contemporaneously with physical injuries caused by one or more persons for whose conduct the defendant is legally accountable *** and the physical injuries inflicted by either the defendant or the other person or persons for whose conduct he is legally accountable caused the death of the murdered individual." Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)(a). The section also required that the defendant acted with the intent to kill the murdered individual or with knowledge that his acts created a strong probability of death or great bodily harm to the murdered individual or another. Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)(b). During the eligibility phase of the death sentencing hearing, the State must prove all of the elements of the aggravating factor beyond a reasonable doubt. Ill. Rev. Stat. 1985, ch. 38, par. 9-1(f).
Defendant waived his right to a jury for sentencing. At the eligibility phase of the hearing, the State presented a certified copy of defendant's birth certificate as proof that defendant was over the age of 18, and the parties stipulated that defendant was born on June 7, 1946. The parties also stipulated to the trial testimony, the trial exhibits, and the special verdicts of the jury, which found that defendant was guilty of murder and of armed robbery and that defendant "performed the acts which caused the death" of each victim. No other evidence was introduced. The court found defendant eligible for the death penalty under section 9-1(b)(6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(b)(6), now 720 ILCS 5/9-1(b)(6) (West 2000)) because he had committed the murders knowingly or intentionally and in the course of another felony. The court declined to find defendant eligible under any other factor.
According to defendant, the eligibility finding in this case is constitutionally deficient because the State never proved that defendant's conduct fell within the class of culpable conduct which would warrant the imposition of the death penalty. Defendant contends that there is simply no proof that his conduct was within the ambit of section 9-1(b)(6) because the evidence does not reflect that he actually murdered the victims or that he inflicted physical injuries upon the victims in the manner required by the statute. Defendant points out that his confession, relied upon by the State during the guilt phase of the trial, coupled with the rest of the evidence presented by the State, proves only guilt of felony murder or guilt on the basis of accountability. Stated differently, defendant argues that there is no evidence of record which supports the inference that he actually killed the victims or that he inflicted injuries substantially contemporaneously with physical injuries caused by one or more persons for whose conduct defendant is legally accountable, as is required under the felony-murder aggravating factor. Thus, the crux of defendant's ineffective assistance of counsel claim is that the evidence was insufficient to support the circuit court's finding of death eligibility.
In light of defendant's contentions, the State argues that the evidence presented at trial was sufficient to find that defendant committed the murders. The State points out that the trier of fact was entitled to reject the self-serving portions of defendant's confession on the basis of the circumstantial evidence which supported the inference that defendant acted alone in committing the murders.
In addressing this claim, we must necessarily review the evidence adduced at trial because both the State and defendant, at the eligibility phase of the hearing, stipulated to that evidence. In addition, the trial judge, sitting as the trier of fact at sentencing, referred specifically to the evidence at trial when he found defendant eligible for the death penalty under section 9-1(b)(6).
The evidence presented at the guilt phase of defendant's trial revealed the following. One of the victims, Donna Rucks, normally worked a morning shift at a hotel near the murder scene. A co-worker became concerned when Rucks failed to report for work on the morning of December 3, 1985. The co-worker went to Rucks apartment and asked the building manager to enter the apartment. The building manager went to get the passkey to the apartment, but the key would not work. Police eventually were called to the scene, and it was decided that a window would be broken by the building maintenance man in order to gain access to Rucks' apartment.
The maintenance man broke the window and entered into the apartment's living room. There he saw two bodies and smelled something burning. Police instructed him to open the front door. The front door had two types of locks on it-one attached to the doorknob and a dead-bolt. The door was both locked and dead-bolted. The door could be locked from the inside of the apartment by throwing the deadbolt. The door could be dead-bolted from the outside only by the use of a key.
While police were investigating the crime scene, the phone in the apartment rang. After receiving the phone call, police went to the home of defendant's father. There, they spoke with defendant, who told them that he knew the victims, was concerned about them, and would be happy to help with the police investigation. Defendant agreed to accompany them to the police station.
At the station, defendant acknowledged to Detective Ptak that he had been at Rucks' apartment on December 2, and that he had become concerned when no one answered his knocks on the door. Defendant said that he had called the police, but that the officers who had responded to his call ...