The opinion of the court was delivered by: Justice McMORROW.
Docket No. 88474 - Agenda 3-May 2001.
Defendant, Lawrence Jackson, appeals from an order of the circuit court of Cook County dismissing his amended petition for post-conviction relief without an evidentiary hearing. Because defendant was sentenced to death for his underlying convictions, his appeal lies directly with this court. 134 Ill. 2d R. 651(a). For the reasons that follow, we affirm the dismissal of defendant's post-conviction petition.
At a jury trial in the circuit court of Cook County, eight-year-old Urica Winder testified that defendant and co-defendant Bobbie Driskel came to her family's apartment at 1850 West Washington late in the evening on September 24, 1986. The two men stabbed to death her mother, Vernita Winder, her four-year-old sister, Dana, her mother's boyfriend, Mark Brown, and her mother's friend, Shirley Martin, and then stole a television set and VCR. Urica, too, was brutally stabbed, but survived the attack by pretending to be dead. *fn1
Based on Urica's testimony and other evidence, including defendant's own inculpatory statements to police, defendant was convicted on June 23, 1988, on four counts of first degree murder, one count of attempted murder, one count of aggravated battery of a child, five counts of home invasion, five counts of armed robbery, and one count of residential burglary. Following the convictions, a death penalty sentencing hearing was held. The jury found defendant eligible for the death penalty and, after hearing evidence in aggravation and mitigation, found that the mitigation evidence did not preclude imposition of the death penalty. On September 7, 1988, the circuit court sentenced defendant to death, and imposed terms of imprisonment for the nonmurder convictions. This court affirmed the convictions and sentences on direct appeal. People v. Jackson, 145 Ill. 2d 43 (1991).
After our decision issued, defendant petitioned for a writ of certiorari with the United States Supreme Court. In response, the Supreme Court remanded the matter to this court for further consideration in light of Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992). See Jackson v. Illinois, 506 U.S. 802, 121 L. Ed. 2d 5, 113 S. Ct. 32 (1992). Thereafter, on September 26, 1991, this court issued a judgment affirming defendant's convictions and non-death sentences. In accord with Morgan, however, defendant's death sentence was vacated and the cause remanded to the circuit court for a new death penalty sentencing hearing.
A new sentencing hearing was held and defendant again was found eligible for the death penalty based on three aggravating factors: multiple murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(b)(3)); felony murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(b)(6)), and murder of a child under the age of 12 when "the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty" (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(b)(7)). The resentencing jury also determined that the mitigating evidence was insufficient to preclude imposition of the death penalty. Ill. Rev. Stat. 1987, ch. 38, par. 9-1(g). Therefore, on April 24, 1995, defendant was resentenced to death. On May 23, 1995, defendant filed a notice of appeal directly to this court.
On August 29, 1996, while the direct appeal was still pending, defendant filed a pro se post-conviction petition, challenging the effectiveness of his trial and appellate counsel and the fairness of his death penalty sentencing hearing. Upon receipt of the petition, the circuit court appointed the office of the State Appellate Defender to represent defendant. Nothing further was filed, however, until this court issued an opinion on defendant's direct appeal, affirming the imposition of the death penalty upon resentencing. People v. Jackson, 182 Ill. 2d 30 (1998). Thereafter, on March 12, 1999, with the assistance of counsel, defendant filed an amended post-conviction petition, raising 14 claims. A fifteenth claim was added later.
Upon the State's motion, the trial court dismissed defendant's petition without an evidentiary hearing. Because this is a capital case, defendant seeks review of the dismissal of his post-conviction petition by this court. 134 Ill. 2d R. 651(a). Before this court, defendant asks that an evidentiary hearing be held on the following nine claims: (1) whether he was denied effective assistance of counsel at resentencing because his attorney failed to investigate and present evidence of a family history of mental illness; (2) whether he was denied effective assistance of counsel because his appellate attorney failed to argue on direct appeal that he was denied a fair sentencing hearing due to the introduction of victim impact evidence concerning unrelated offenses; (3) whether his constitutional rights were violated when the State used peremptory challenges to excuse prospective jurors who expressed reservations about the death penalty; (4) whether he was denied a fair sentencing hearing due to (a) judicial bias, (b) the presentation of hypnotically enhanced testimony, and (c) erroneous rulings; (5) whether the death penalty is an appropriate sentence in this case; (6) whether the court questioned prospective jurors in a manner which suggested that the jury would have to find unanimously that mitigation evidence outweighed aggravation evidence; (7) whether a new sentencing hearing is required because of the cumulative effect of all of the constitutional violations alleged above; (8) whether the death penalty statute is unconstitutional because it has no burden of persuasion; and (9) whether the death penalty statute is unconstitutionally discriminatory, arbitrary and capricious because it precludes the imposition of death in cases where an individual requires "special forms of communicative assistance" at trial.
The evidence presented at defendant's second death penalty hearing is presented in detail in our opinion on defendant's direct appeal and will not be recounted here. We will discuss only those facts necessary to the disposition of this appeal.
The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2000)) is a statutory vehicle which provides criminal defendants with an opportunity to obtain relief from substantial violations of their federal or state constitutional rights that occurred at trial or sentencing. People v. Towns, 182 Ill. 2d 491, 502 (1998). A petition filed under the Act is not an appeal, but a collateral attack on the judgment of conviction or sentence. People v. Edwards, 195 Ill. 2d 142 (2001); People v. Williams, 186 Ill. 2d 55, 62 (1999). Consequently, the purpose of a post-conviction proceeding is not to determine guilt or innocence, but to inquire into constitutional issues which have not been, and could not have been, previously adjudicated. People v. Griffin, 178 Ill. 2d 65, 72-73 (1997); People v. Eddmonds, 143 Ill. 2d 501 (1991). Matters that were raised and decided on direct appeal are res judicata, and matters that could have been raised on appeal, but were not, will ordinarily be deemed waived. People v. McNeal, 194 Ill. 2d 135 (2000); People v. West, 187 Ill. 2d 418, 425 (1999).
In a capital case, once a post-conviction petition is filed, the circuit court has 90 days in which to examine the petition and, if the petitioner is without counsel or the means to procure counsel, appoint counsel for him. 725 ILCS 5/122-2.1(a)(1) (West 2000). The petition is then docketed for further consideration and the State must "answer or move to dismiss." 725 ILCS 5/122-5 (West 2000). If the State seeks dismissal of the petition, the circuit court must rule on the sufficiency of the allegations, without engaging in any fact finding and taking all well-pleaded facts as true. People v. Coleman, 183 Ill. 2d 366, 388 (1998). Unless the circuit court finds that the allegations in the post-conviction petition, supported where appropriate by the trial record or accompanying affidavits, make a substantial showing that the defendant's constitutional rights have been violated, the petition may be dismissed without an evidentiary hearing. People v. West, 187 Ill. 2d 418, 425 (1999); Coleman, 183 Ill. 2d at 381; People v. Pecoraro, 175 Ill. 2d 294, 304 (1997). A petitioner is not entitled to an evidentiary hearing as of right. Griffin, 178 Ill. 2d at 73.
A circuit court's ruling on the sufficiency of the allegations contained in a post-conviction petition is a legal determination. Coleman, 183 Ill. 2d at 388. We review de novo a post-conviction petition that has been dismissed without an evidentiary hearing. People v. Edwards, 195 Ill. 2d 142 (2001); Coleman, 183 Ill. 2d at 389.
With these principles in mind, we address defendant's claims in the order that they were raised.
I. Ineffective Assistance of Counsel
In his first two claims, defendant contends that he received ineffective assistance of counsel, first at his resentencing hearing and then when his death sentence was appealed directly to this court. The right to effective assistance of counsel, guaranteed by our federal and state constitutions (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8), applies to appellate and sentencing proceedings, as well as trial proceedings, and violations of this right are cognizable under the Post-Conviction Hearing Act. People v. Simms, 192 Ill. 2d 348, 361 (2000).
Claims of ineffective assistance of counsel are governed by the familiar Strickland standard, which is composed of two prongs: deficiency and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984) . To establish the deficiency prong, defendant must show that his counsel's performance, objectively measured against prevailing professional norms, was so deficient that counsel was not functioning as the "counsel" guaranteed by the sixth amendment. People v. Easley, 192 Ill. 2d 307, 317 (2000); People v. Hampton, 149 Ill. 2d 71, 108-09 (1992). Defendant must overcome the strong presumption that the challenged action or inaction might have been the product of sound trial strategy. People v. Evans, 186 Ill. 2d 83, 93 (1999); People v. Griffin, 178 Ill. 2d 65, 73-74 (1997).
To establish the prejudice prong, defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Evans, 186 Ill. 2d at 93; Griffin, 178 Ill. 2d at 74. However, the prejudice prong of Strickland is not simply an "outcome-determinative" test but, rather, may be satisfied if defendant can show that counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Simms, 192 Ill. 2d at 362.
In the case at bar, defendant first claims that he received ineffective assistance of counsel at his capital resentencing hearing. Defendant contends that his attorneys conducted a "superficial" investigation and, as a result, failed to discover and present to the sentencing jury evidence that defendant's family has an extensive history of mental illness. In support of this claim, defendant attached to his amended post-conviction petition a 39-page amended mitigation report by forensic social worker Alice Washington. Washington's report, supported by the affidavits of several of defendant's family members, reveals that mental illness has affected several generations on both sides of defendant's family. At least 13 members of defendant's family, including one sibling, aunts and uncles, and several cousins, have been diagnosed as suffering from mental illness, predominantly paranoid schizophrenia, which has in some instances been accompanied by episodes of extreme violence. In further support of his claim, defendant also attached to his petition a five-page neuropsychological assessment prepared by developmental psychologist Dr. James Garbarino and a one-page letter from psychiatrist Dr. Henry Conroe. It is defendant's position that the allegations in his claim, supported by the documents which he attached to his petition, make a substantial showing that his resentencing counsel's failure to present evidence of his family history of mental illness constitutes ineffective assistance of counsel and that an evidentiary hearing is necessary to determine whether his constitutional rights were violated. We disagree.
In the context of a second-stage capital sentencing hearing, the Strickland standard for proving ineffective assistance of counsel requires a defendant to show "(1) that his attorney's performance at the sentencing hearing did not constitute reasonably effective assistance, judged by prevailing professional norms (Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065), and (2) there is reasonable probability that, absent the errors, the sentencer would have concluded that the balance of aggravating and mitigating factors did not warrant death (Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069)." People v. Johnson, 183 Ill. 2d 176, 195-96 (1998); see also People v. Mitchell, 189 Ill. 2d 312 (2000). Counsel has an obligation to conduct a reasonable investigation into potential sources of mitigating evidence to present at the capital sentencing hearing, or must have a legitimate reason for failing to make a particular investigation. People v. Towns, 182 Ill. 2d 491, 510 (1998); Griffin, 178 Ill. 2d at 86. However, if an adequate investigation was conducted, counsel will not be deemed ineffective merely because a particular item of evidence was not introduced. Towns, 182 Ill. 2d at 510; Griffin, 178 Ill. 2d at 86.
In the present case, defendant cannot satisfy either prong of the Strickland test. As to the first prong-deficiency-the record does not support defendant's claim that the investigation into potential sources of mitigating evidence was inadequate, nor does it show that counsel was deficient for having failed to uncover evidence of a family history of mental illness. Defendant's attempts to draw a comparison between this case and People v. Towns, 182 Ill. 2d 491 (1998), are unavailing.
In Towns, the record showed that counsel conducted no investigation into mitigating evidence and, instead, relied solely on a pretrial sanity report. In the present case, however, a review of the record reveals that the resentencing defense attorneys employed the services of mitigation specialist, Alvin Hill. Although Hill did not testify at the resentencing hearing, he prepared a lengthy mitigation report after interviewing the defendant and at least 10 other persons. Due in part to Hill's extensive investigations, the defense team was able to present mitigation evidence at the second sentencing hearing which had been unavailable at the first sentencing hearing. For instance, family members who earlier had been unwilling to testify or whose testimony at the first sentencing hearing failed to include family background came forward at the resentencing hearing and revealed, for the first time, the nature of defendant's life during his formative years. Through the testimony of witnesses such as Alicia Jackson, Donald Jackson, and George Rowe, Jr., the resentencing jury learned that defendant led an impoverished childhood which was chaotic, turbulent, and punctuated by frequent episodes of extreme abuse and neglect. These witnesses explained that defendant's natural father abandoned the family when defendant was young, leaving him and his siblings to be raised by an alcoholic mother and her abusive boyfriends. As a child, defendant also witnessed several disturbing incidents of violence, including his brother being struck and killed by a car.
In addition to this newly discovered family background evidence, defendant's attorneys introduced new evidence that defendant exhibited abnormal brain functioning, which was likely a result of head injuries defendant had suffered. Dr. Michael Gelbort, a clinical psychologist with a specialty in neuropsychology, testified that he examined defendant and performed numerous tests, including intelligence tests, which allowed him to assess various aspects of defendant's brain functioning. From these tests, Dr. Gelbort concluded that defendant suffered from organic brain dysfunction with cognitive abnormalities. The abnormalities seemed to be most severe in the frontal lobes of the brain, which control problem-solving and reasoning ability. According to Dr. Gelbort, the frontal lobes operate as the "gas pedal" and "brake pedal" of behavior-allowing a person to initiate appropriate behavior and preventing a person from acting inappropriately. The abnormalities to defendant's frontal lobes suggested that defendant's judgment as to appropriate behavior would be impaired.
By comparing the evidence presented at defendant's first sentencing hearing with the evidence presented at resentencing, it is clear that the attorneys who assisted defendant at his resentencing conducted a reasonable investigation into potential sources of mitigating evidence. Neither the investigation, nor the presentation of mitigation evidence at defendant's resentencing, was superficial.
Moreover, there is good reason why defense counsel failed to uncover and present evidence of defendant's family history of mental illness. In an affidavit dated March 10, 1999, and submitted by the defense in support of defendant's post-conviction petition, mitigation specialist Alice Washington stated, "That at the time of the initial sentencing hearing, and those subsequent thereof, [sic] no one had knowledge of the family history of mental illness because it was the family's dark secret." According to Washington, defendant's family, apparently due to embarrassment, had been disinclined to reveal information regarding the family's widespread affliction with mental illness. In a previous affidavit dated January 21, 1999, Washington stated, "It has been a very difficult task trying to convince [defendant's] family that the family history of mental illness needs to be explored and presented to the court."
We conclude that the failure to discover the family history of mental illness cannot be attributed to any deficiency of counsel. Defendant's family withheld this information due to a desire to keep this "family secret" private. Consequently, defendant has failed to satisfy the deficiency prong of the Strickland test. In light of the record in this case, defendant has not made a substantial showing that his counsel was deficient because evidence of a family history of mental illness was not discovered or presented at his resentencing hearing.
Having made this determination, it is not necessary to consider the prejudice prong of the Strickland test. Nevertheless, it is clear to this court that defendant cannot make a substantial showing of prejudice and, consequently, the lack of prejudice is an additional reason for finding that defendant's ineffective assistance of counsel claim was properly dismissed without an evidentiary hearing.
To show prejudice, defendant must be able to show a reasonable probability that, had evidence of his family history of mental illness been presented, the sentencing jury would have concluded that the balance of aggravating and mitigating factors would not warrant death. Defendant cannot meet this standard, however, because no correlation has been shown between the history of mental illness in defendant's family and his own mental condition.
Experts who examined defendant in 1987 and 1988, prior to defendant's first trial and sentencing, found that defendant did not suffer from a mental illness. Dr. Ziporyn, a psychiatrist called by the defense, diagnosed defendant as having a passive-aggressive personality disorder and testified that "at the time I examined [defendant] there were no marked or major mental issues." Dr. Ziporyn's findings were confirmed by Dr. Reifman, the director of the Psychiatric Institute of the circuit court of Cook County, who was called by the State at trial. Based on the results of psychological testing and his own observations of defendant, Dr. Reifman diagnosed defendant as having a mixed personality disorder with antisocial passive-aggressive tendencies, influenced by drug abuse. Dr. Reifman found defendant to be "oriented, relevant, coherent, logical" and concluded that defendant was not suffering from a mental disease, defect, or mental condition.
These experts have not been contradicted by anything in defendant's post-conviction petition or the documents attached to the petition. The report prepared by mitigation specialist Alice Washington suggests that the high incidence of paranoid schizophrenia in defendant's family raises "a reasonable question as to whether or not [defendant] suffers from the same mental illness which has afflicted his relatives." But Washington is only speculating and her speculation is not evidence which can defeat the earlier expert testimony that defendant does not suffer from mental illness or defect.
Furthermore, this court is unable to discern from any of the documents attached to defendant's post-conviction petition how defendant's family history of mental illness mitigates his criminal behavior in this case. Dr. James Garbarino states in his five-page report: "The mental illness evident in [defendant's] family and the cognitive limitations noted in the various reports would tend to contribute to the problems [defendant] would face in drawing appropriate conclusions from social realities." Thus, according to Dr. Garbarino, defendant's family history of mental illness may have some tangential relevance to defendant's ability to draw "appropriate conclusions from social realities." To the extent that this is true, however, it is cumulative of the evidence already heard by the resentencing jury from Dr. Gelbort, who testified that defendant's organic brain dysfunction impaired his ability to make appropriate behavior choices. We are unpersuaded that there is a reasonable probability that defendant's sentencing jury, after considering Dr. Garbarino's report and other evidence of defendant's family history of mental illness, would conclude the balance of aggravating and mitigating factors would not warrant a death sentence.
Nor is this conclusion altered by the letter from Dr. Henry Conroe. Dr. Conroe, it appears, examined defendant on February 17, 1988, prior to defendant's initial trial and sentencing. In a letter, dated May 15, 1999, and attached to the post-conviction petition, Dr. Conroe writes:
"At the time that I examined [defendant] on 2/17/88, I did not have access to information about his family, his growing up, the history of physical and mental abuse, his history of head injuries, and neuropsychological testing. After being provided this information, I conclude that if this evidence were made available to me initially, my assessment of him would have been different. Beyond the diagnoses of Substance Abuse and a Mixed Personality Disorder with Anti-social and Passive Aggressive features, I would have focused on the effects of his family history, his early ...