The opinion of the court was delivered by: Justice Fitzgerald
THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
MILTON JOHNSON, APPELLANT.
The opinion of the court was delivered by: Justice Fitzgerald
Docket No. 85134-Agenda 1-January 2002.
The defendant, Milton Johnson, appeals a Will County circuit court order dismissing his first amended post-conviction petition without an evidentiary hearing. Because the defendant was sentenced to death, his appeal lies directly to this court. See 134 Ill. 2d R. 651(a). We now affirm in part, reverse in part, and remand for further proceedings.
On July 16, 1983, Patricia Payne and her boyfriend, Anthony Hackett, drove from their hometown of Emden, Illinois, and spent the day at Great America Amusement Park in Gurnee, Illinois. That day, Hackett bought a stuffed doll depicting the popular Tasmanian Devil character; he placed the receipt for the doll in his wallet. Around 10 p.m., Payne and Hackett left the park and, on the way home, they stopped Hackett's car along Interstate 55 in Will County to sleep. Hackett slept in the front seat; Payne slept in the back.
Around 1:30 a.m. on July 17, Payne awoke to tapping on the passenger-side window followed by gunshots which struck and killed Hackett. The assailant opened the passenger-side door and ordered Payne to give him Hackett's wallet and her purse. He then ordered Payne to crawl from the car and into a pickup truck parked nearby. The assailant climbed into the truck and drove down the interstate. While driving, the assailant sexually assaulted Payne; after exiting the interstate and stopping the truck, he raped her. The assailant again started to drive, but pulled the truck onto the shoulder of the road 10 minutes later. The assailant then stabbed Payne in the chest and dumped her from the truck. Payne was found on the grassy median an hour later at 5:30 a.m. by a passing motorist. She had no pulse or blood pressure, and she was rushed to a Joliet hospital, where doctors performed emergency surgery. Payne survived.
Later that morning, Special Agent John Meduga of the Illinois Department of Law Enforcement (now known as the Illinois State Police) spoke with Payne. Payne indicated to Meduga that her assailant was an African American man with no observable facial hair. Eight days later, Payne looked through approximately 1,500 mugshots and selected 42 photographs of persons with facial characteristics similar to her assailant, 34 of whom had facial hair. The record does not reveal whether the defendant's photograph was chosen by Payne. More than a month later, Payne looked through 137 mugshots, including one of the defendant, and selected four photographs of persons with facial hair and facial characteristics similar to her assailant. Payne did not choose the defendant's photograph.
The police investigation into these crimes stalled until Ann Shoemaker telephoned the Will County sheriff's office in February 1984. Shoemaker described an incident in which a dark pickup truck had passed her several times while she was driving one night in July 1983. She and a friend followed the truck and recorded its licence plate number. On March 6, 1984, she gave this number to the police, who traced it to a truck owned by Sam Myers, the defendant's stepfather. After Myers signed a consent form, the police searched the truck and found Caucasian head hairs similar to Payne's hair, bloodstains, a steak knife, reddish brown fibers, and a sales receipt for a Tasmanian Devil stuffed doll. Based on these items, the police obtained a search warrant for Myers' residence, where the defendant lived. The police seized three .357 Magnum cartridges from a dresser in Myers' bedroom.
Also on March 6, 1984, Payne looked at five mugshots. The defendant's photograph was the only one among the five which Payne had seen on September 6, 1983. After several minutes, Payne tentatively identified the defendant as her assailant. On March 9, Payne viewed a six-person lineup. After each person in the lineup repeated commands that the assailant had given Payne on the night of her ordeal, Payne unmistakably identified the defendant as her assailant.
Initially, the Will County public defender was appointed to represent the defendant. On June 1, 1984, the day before the scheduled trial date, William Swano entered his appearance as the defendant's retained attorney. The trial court granted Swano three continuances, totaling 55 days, and set the trial date for July 26, 1984. The defendant moved for a change of venue, citing negative pretrial publicity in Will County, and the trial court transferred the case to Iroquois County. Following a jury trial, the defendant was convicted of the first degree murder of Hackett, as well as the aggravated kidnapping, deviate sexual assault, rape, and attempted murder of Payne. The defendant waived his right to a sentencing jury, and the trial court found the defendant eligible for the death penalty. The trial court further found no mitigating circumstances sufficient to preclude the death penalty and sentenced the defendant to death for Hackett's murder and to concurrent terms of 40 years' imprisonment for deviate sexual assault, rape, and attempted murder. On direct appeal, this court affirmed the defendant's convictions and sentences. See People v. Johnson, 114 Ill. 2d 170 (1986).
The defendant then filed a pro se post-conviction petition in the Will County circuit court, alleging that he received ineffective assistance of counsel on direct appeal and in post-conviction proceedings. The trial court granted the State's motion to dismiss the petition. On appeal, we affirmed in part, reversed in part, and remanded. We held that the trial court properly dismissed the defendant's claim of ineffective assistance of appellate counsel, but that the trial court improperly dismissed the defendant's claim relating to his post-conviction attorney's performance. See People v. Johnson, 154 Ill. 2d 227 (1993).
On remand, the defendant filed a nine-count first amended post-conviction petition, which is the subject of this appeal. The State filed a motion dismiss, and, in a written order, the trial court dismissed the defendant's amended petition without an evidentiary hearing. This appeal followed.
On appeal, the defendant has shuffled and refashioned the claims raised in his amended petition. He essentially raises seven issues: (1) whether his pending execution is unconstitutional because the State possesses forensic evidence which would help establish his innocence through DNA testing; (2) whether he was denied due process because the trial court refused to grant Swano sufficient time to prepare the defendant's case for trial and sentencing; (3) whether he was denied effective assistance of trial counsel because of several alleged shortcomings by Swano before trial, during trial and sentencing, and after trial; (4) whether he was denied effective assistance of trial counsel because of several alleged shortcomings by the public defender; (5) whether he was denied effective assistance of appellate counsel because appellate counsel failed to raise several issues on his direct appeal; (6) whether he was denied due process by the State's concealment of a hypnotic interview session with Payne; and (7) whether he was denied due process because the trial court refused to grant discovery on his post-conviction claims.
The Illinois Post-Conviction Hearing Act provides a procedural mechanism through which a criminal defendant can assert "that in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both." 725 ILCS 5/122-1 (West 1998); see People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). 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). 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, 425 (1999). Consequently, any issues which were decided on direct appeal are barred by the doctrine of res judicata; any issues which could have been raised on direct appeal are forfeited. West, 187 Ill. 2d at 425.
Once a capital defendant files a post-conviction petition, the trial court examines the petition and appoints an attorney for the defendant, if necessary. 725 ILCS 5/122-2.1(a)(1) (West 1998). The State then must answer or move to dismiss the petition. 725 ILCS 5/122-5 (West 1998). If the State files a motion to dismiss, the trial court must rule on the legal sufficiency of the defendant's allegations, taking all well-pleaded facts as true. People v. Ward, 187 Ill. 2d 249, 255 (1999). A defendant is not entitled to an evidentiary hearing unless the allegations of the petition, supported by the trial record and any accompanying affidavits, make a substantial showing of a constitutional violation. People v. Enis, 194 Ill. 2d 361, 376 (2000). Because a trial court's ruling on the sufficiency of the defendant's allegations is a legal determination, our review is de novo. Coleman, 183 Ill. 2d at 388-89.
Initially, we note that the trial court correctly dismissed several of the defendant's claims.
The defendant contends that his petition makes a substantial showing his due process rights were violated because the trial court refused to grant Swano sufficient time to prepare for trial and sentencing. This issue could have been raised on direct appeal and is forfeited.
The defendant also contends that his petition made a substantial showing that he received ineffective assistance of counsel from the public defender. The defendant charges that assistant public defenders failed to preserve his right to substitute trial judges and failed to file a continuance motion. These issues could have been raised on direct appeal and are forfeited. The defendant further charges that assistant public defenders failed to investigate trial and mitigation evidence and failed to prepare for trial and sentencing. These claims, states the defendant, are revealed by the record. Accordingly, they also could have been raised on direct appeal and are forfeited.
The defendant further contends that his petition made a substantial showing his due process rights were violated because the State failed to notify Swano that Payne had undergone hypnosis. The defendant cites People v. Gibson, 117 Ill. App. 3d 270, 278 (1983), in which the appellate court held that the State must provide notice to the defense if it intends to introduce testimony of a previously hypnotized witness.
Here, the State notes that it informed the public defenders about Payne's hypnosis session. Assistant public defenders even informed the trial court that they discussed filing a motion to suppress Payne's identification. Though, in answers to the defendant's post-conviction interrogatories, Swano asserted, "I received no information regarding hypnosis of the victim Patricia Payne," Swano also stated, "To my knowledge, [the public defenders] turned over everything they had" when he entered his appearance. The State also correctly notes that Payne's hypnosis session focused only on the identification of her assailant's truck, not on the identification of her assailant. At trial, the State did not inquire into her identification of the truck, and Payne's testimony was admissible. See People v. Zayas, 131 Ill. 2d 284, 295 (1989) ("a witness' hypnotically induced testimony *** is not admissible in Illinois courts" (emphasis added)). The defendant failed to make a substantial showing his due process rights were violated, and the trial court correctly dismissed this claim.
We now turn to the defendant's remaining claims.
The defendant contends that his pending execution is unconstitutional because the State possesses forensic evidence which would establish his innocence. He asserts that DNA testing of a Vitullo rape kit completed at the hospital where Payne was treated would cast doubt on whether he raped Payne and, accordingly, whether he murdered Hackett.
In his petition, the defendant alleged that a vaginal swab taken during Payne's July 17, 1983, hospital examination was delivered to and retained by the State Police Crime Lab; this swab purportedly was never tested. The defendant claimed,
"[This swab] will have been maintained by the lab or evidence section in an acceptably preserved and uncontaminated state for DNA testing. Said swab would never be stored in a manner that would allow it to come into contact with foreign DNA. The swab has been subject to a chain of custody sufficient to establish that is has not been substituted, tampered with, replaced, or altered in any material respect."
The defendant further alleged that the only direct evidence in this case was Payne's identification testimony; thus, the central issue in this case was identification. The defendant then cited section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 1998)), which, he ...