The opinion of the court was delivered by: Justice Garman
Docket No. 88799-Agenda 4-November 2001.
Following a jury trial in the circuit court of Cook County, defendant, James Munson, was convicted of the first degree murder of Marvin Cheeks, armed robbery, aggravated kidnapping, and arson of the property of Cheeks. Defendant waived a jury for sentencing and, following a bifurcated sentencing hearing, was sentenced to death by the trial court on the first degree murder conviction and to concurrent prison terms on the other convictions. The trial court denied defendant's post-trial motions. This court affirmed defendant's convictions and death sentence on direct appeal (People v. Munson, 171 Ill. 2d 158 (1996)), and the United States Supreme Court denied certiorari (Munson v. Illinois, 519 U.S. 880, 136 L. Ed. 2d 141, 117 S. Ct. 205 (1996)). Defendant filed a post-conviction petition, which was dismissed by the trial court on the State's motion. Defendant's appeal lies directly to this court. 134 Ill. 2d R. 651(a).
The facts of this case are set forth in this court's opinion on direct review and will be repeated here only as necessary to address defendant's arguments in this appeal. In December 1995, defendant filed a pro se petition for post-conviction relief and requested appointment of counsel. Post-conviction counsel filed an amended post-conviction petition and a supplement to the petition. Defendant filed a pro se supplemental petition. The various petitions made many allegations, some of which have been abandoned in this appeal. The amended post-conviction petition advanced five claims for relief: (1) trial counsel was ineffective in failing to properly investigate and present mitigating evidence at the capital sentencing hearing; (2) defendant was denied equal protection or, in the alternative, effective assistance of appellate counsel, regarding a failure to raise a challenge pursuant to Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), to the State's use of a peremptory challenge to venireperson Sandra McElwee; (3) appellate counsel was ineffective for failing to raise the issue of prosecutorial misconduct; (4) defendant was denied due process when the trial court erroneously found defendant's possession of a handgun when he was arrested to be an aggravating factor at sentencing, or in the alternative, trial counsel was ineffective for failing to produce police reports that would have corroborated defendant's claim as to his intent in possessing the gun; and (5) defendant's sentence is unconstitutionally disparate to that of his co-defendant, Darryl Clemons.
Post-conviction counsel further alleged in the supplement to the post-conviction petition that (1) defendant's arrest was illegal; (2) trial counsel was ineffective for (a) failing to investigate and present independent ballistics testing and forensic analysis of the alleged murder weapon, (b) failing to file motions to quash defendant's arrest and adequately prepare for the suppression motion counsel did file, (c) failing to present any defense evidence or a coherent theory of defense at trial, and (d) presenting a "rambling, incoherent, offensive" closing argument that conceded defendant's guilt and attacked the victim; (3) appellate counsel was ineffective for (a) not obtaining portions of the record relating to Batson discussions concerning juror McElwee and the availability of Kenneth Burks as a witness, (b) failing to raise the admissibility of the recovered weapon, (c) failing to raise the trial court's improper restriction of cross-examination regarding a witness' expectation of a reward, and (c) failing to raise the issue of disproportionality of defendant's sentence; (4) the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) in failing to disclose criminal records of certain witnesses and the existence of a reward offered by the victim's family for information leading to the victim's killer; (5) the State presented perjured testimony or failed to correct testimony it knew to be false of two witnesses; (6) defendant's constitutional rights were violated where the prosecutor (a) repeatedly commented in closing argument on defendant's failure to testify at trial, and (b) made repeated improper statements in closing argument; and (7) defendant's constitutional rights were violated where he did not knowingly and intelligently waive his right to a sentencing jury due to trial counsel's misinforming and actively misleading him.
The trial court granted the State's motion to dismiss, finding defendant's claims to be barred by waiver and res judicata.
The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2000)) provides a remedy by which defendants may challenge their convictions or sentences for violations of federal or state constitutional law. People v. Towns, 182 Ill. 2d 491, 502 (1998); People v. Tenner, 175 Ill. 2d 372, 377 (1997). A post-conviction action is a collateral proceeding, and not an appeal from the underlying judgment. People v. Williams, 186 Ill. 2d 55, 62 (1999), quoting People v. Ruiz, 132 Ill. 2d 1, 9 (1989). The purpose of the proceeding is to allow inquiry into constitutional issues relating to the conviction or sentence that were not, and could not have been, determined on direct appeal. People v. Griffin, 178 Ill. 2d 65, 72-73 (1997); People v. Mahaffey, 165 Ill. 2d 445, 452 (1995). Thus, res judicata bars consideration of issues that were raised and decided on direct appeal, and issues that could have been presented on direct appeal, but were not, are considered waived. Towns, 182 Ill. 2d at 502-03. A defendant is not entitled to an evidentiary hearing on a post-conviction petition as a matter of right. People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). Rather, an evidentiary hearing is warranted only when the allegations of the post-conviction petition, supported when necessary by the trial record or accompanying affidavits, make a substantial showing that the defendant's constitutional rights have been violated. Hobley, 182 Ill. 2d at 428; Towns, 182 Ill. 2d at 503. In determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits must be taken as true. Towns, 182 Ill. 2d at 503. A circuit court's dismissal of a post-conviction petition without a hearing will be reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).
On appeal, defendant alleges that appellate counsel was ineffective for failing to raise a Batson claim as to the prosecutor's use of a peremptory challenge to venireperson Sandra McElwee. At trial, the State used peremptory challenges to exclude from the jury McElwee and two other venirepersons, Robert Canady and Ola Love. At the close of jury selection, trial counsel moved for a mistrial, arguing that the prosecution had improperly used three of its four peremptory challenges to exclude Canady, Love and McElwee, in violation of Batson. The trial court found a prima facie case of racial discrimination as to the exclusion of Canady and Love. As to McElwee, although trial counsel argued that she was clearly black, the trial court expressed doubt, noting her light complexion and her name. In response to questioning from the trial court, the prosecutor stated that her notes reflected that McElwee was a Caucasian female. The trial court found this perception to be reasonable and concluded that the prosecutor had advanced a race-neutral explanation for excluding McElwee. The trial court denied trial counsel's motion to subpoena McElwee to testify concerning her race. On direct appeal, appellate counsel raised a Batson issue as to venirepersons Canady and Love, but not as to McElwee.
Batson established a three-step analysis to determine whether or not the State used its peremptory challenges to remove venirepersons on the basis of race. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Munson, 171 Ill. 2d at 174; People v. Hudson, 157 Ill. 2d 401, 425 (1993). Second, if the defendant has made a prima facie showing, the burden then shifts to the State to provide a race-neutral explanation for excluding each venireperson in question. A race-neutral explanation is one based upon something other than the race of the venireperson. In assessing an explanation, the trial court focuses on the facial validity of the prosecutor's explanation. The explanation need not be persuasive, or even plausible. A legitimate reason is not a reason that makes sense, but rather is a reason that does not deny equal protection. Absent an inherent discriminatory intent in the prosecutor's explanation, the reason offered will be deemed race-neutral. Munson, 171 Ill. 2d at 174-75. Defense counsel then may rebut the prosecutor's reasons as being pretextual. People v. Mitchell, 152 Ill. 2d 274, 288 (1992). Third, the trial court then weighs the evidence in light of the prima facie case, the prosecutor's reasons for challenging the venireperson, and any rebuttal by defense counsel. Mitchell, 152 Ill. 2d at 288. The court must determine whether the defendant has met his or her burden of proving purposeful discrimination. Munson, 171 Ill. 2d at 174.
Defendant attached to his post-conviction petition an affidavit of McElwee, in which she stated that she is an African-American woman whose race has been mistaken for Hispanic, but never for Caucasian. At the conclusion of the hearing on the State's motion to dismiss defendant's post-conviction petition, the trial court found that the prosecutor's perception of McElwee's race as Caucasian at the time the peremptory challenge was exercised was significant and that this perception was reasonable, based upon the trial court's observation of McElwee. The court also noted that because the victim was black and the State's principal witnesses were black, the prosecutor would have no motive to exclude black people from the jury.
Defendant now argues that the trial court's finding as to the prosecutor's perception of McElwee's race as Caucasian is erroneous, and that it was the trial court who supplied the race-neutral explanation for McElwee's exclusion from the jury, not the prosecutor. He argues that the prosecutor did not state that she thought McElwee was Caucasian and that it was improper for the trial court to rely on its own impression of McElwee, where those impressions were stated prior to inquiry of the prosecutor as to a race-neutral explanation for the peremptory challenge. According to defendant, the prosecutor did not give a race-neutral explanation, but merely expressed uncertainty about McElwee's race.
The State argues that defendant has waived this claim, because he did not raise it in his direct appeal. As stated, determinations made by a reviewing court on direct appeal are res judicata as to issues actually decided. Issues that could have been presented on direct appeal, but which were not, are deemed waived for purposes of post-conviction review. People v. Johnson, 183 Ill. 2d 176, 186 (1998); Towns, 182 Ill. 2d at 502-03. Procedural default, however, will be excused where (1) fundamental fairness so requires; (2) the alleged waiver stems from the incompetence of appellate counsel; or (3) the facts relating to the claim do not appear on the face of the original appellate record. People v. Mahaffey, 194 Ill. 2d 154, 171 (2000); People v. Whitehead, 169 Ill. 2d 355, 371-72 (1996). Ineffective assistance of appellate counsel is judged under the standard set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Richardson, 189 Ill. 2d 401, 412 (2000). Defendant must show that the failure to raise the Batson issue regarding McElwee was objectively unreasonable and that, absent this failure, defendant's conviction or sentence would have been reversed. Richardson, 189 Ill. 2d at 412. We note that appellate counsel is not required to argue every conceivable issue on appeal. People v. Tenner, 175 Ill. 2d 372, 387 (1997). Counsel's decision as to what issues to raise and argue will not be questioned unless that decision is patently wrong. People v. Madej, 177 Ill. 2d 116, 159 (1997).
The record reveals that when the trial court asked the prosecutor her opinion of McElwee's race, she replied, "In my opinion, female white, lab technician, attended the University of Illinois." In a subsequent colloquy, the trial court again asked the prosecutor her opinion as to whether McElwee was Caucasian, Hispanic, or black. The prosecutor replied, "I-I-I'm not sure, Judge. I wrote female white. I really didn't think that hard. I have F.W. Looking back, I don't know, Judge."
Defendant argues that the trial court erred in ruling that defendant had not made a prima facie case of racial discrimination as to McElwee on the grounds that the prosecutor's belief that McElwee was Caucasian was reasonable, when the prosecutor did not state that she believed McElwee was in fact Caucasian. The trial record, however, belies this claim. Batson requires that a defendant make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. If that burden is satisfied, the burden shifts to the prosecutor to provide a race-neutral explanation for excluding the particular juror. The trial court must then determine whether the defendant has met his burden of proving purposeful discrimination. Munson, 171 Ill. 2d at 174. In the instant case, we conclude that the prosecutor's statements indicate that, at the time she exercised the peremptory challenge to McElwee, she believed that McElwee was Caucasian. Her later statements of uncertainty at the hearing on defendant's Batson motion do not detract from this conclusion. The gravamen of a Batson claim is purposeful discrimination in excluding venirepersons from the jury on the basis of their race. See Hernandez v. New York, 500 U.S. 352, 359-60, 114 L. Ed. 2d 395, 406, 111 S. Ct. 1859, 1866 (1991).
Defendant argues that the prosecutor did not give a race-neutral explanation for excusing McElwee, because the trial court failed to ask for an explanation. However, no such explanation is required unless the defendant makes a prima facie showing of racial discrimination. The trial court's questioning of the prosecutor was designed to assist it in determining whether defendant had carried his burden. Once the trial court found that the prosecutor's perception of McElwee as Caucasian was objectively reasonable, no further inquiry was required. The trial court did not, as defendant suggests, blindly accept the prosecutor's statements concerning her belief that McElwee was Caucasian. The court set forth its own observations on the record and, based upon those observations, found the prosecutor's belief to be reasonable. Defendant submits that a good-faith question existed with respect to McElwee's race and that the question has now been answered by McElwee's affidavit stating that she is black. However, the prosecutor was not required to establish the empirical truth of her stated belief concerning McElwee's race. It is sufficient that the prosecutor reasonably believed that McElwee was Caucasian at the time the peremptory challenge was exercised. See People v. Harris, 164 Ill. 2d 322, 338 (1994).
Accordingly, we conclude that trial counsel's Batson challenge as to McElwee had no merit and appellate counsel was not ineffective in failing to raise that issue on direct appeal.
III. Probable Cause for Arrest
Defendant argues that trial counsel was ineffective for failing to file a motion to quash defendant's arrest on the ground of lack of probable cause. He further argues that the trial court erred in denying an evidentiary hearing on this issue.
At trial, Kenny Curry testified that the day after the murder, he was working on his car at the home of his friend, Kenneth Burks. Defendant came over to Burks' home and began conversing with Burks. Curry noticed that defendant's face had burn marks and was covered with grease. Defendant told Curry that his "thing [was] taking [people] out of their cars." Defendant elaborated, telling Curry that on the prior evening he set fire to an Amigo truck because "the guy tried [him.]" He shot the man once and then shot him a second time after the man "broke and ran" away from him. Defendant then purchased some gasoline and returned to the area to burn the victim's truck. In the process of burning the truck, defendant's face was burned.
Curry further testified that he later learned that the victim was Marvin Cheeks, the brother of Maurice Cheeks, a professional basketball player. Although Curry did not know Marvin Cheeks, he and a friend (Burks) attended the funeral in anticipation of Maurice Cheeks' presence there. Neither Curry nor Burks immediately reported to the police what defendant had said about the killing.
Detectives Mike Miller and James Hanrahan were assigned to investigate the Cheeks murder. Hanrahan testified that on October 8, 1991, he received a telephone call from a member of the Cheeks family. He and Miller subsequently met with the Cheeks family member, Kenneth Burks and Ricky Vivurette. After speaking with those individuals, Hanrahan and Miller made arrangements with Burks to conduct a mobile surveillance of Burks' car. Miller and Hanrahan followed Burks, with whom Vivurette was riding, for a period of time. Burks eventually parked on West Monroe Street. A person, later identified as defendant, approached Burks' car and began to talk to Burks. After a brief conversation, defendant turned and ran into the building at 2020 West Monroe Street and Burks drove off. Hanrahan and Miller stopped Burks, at which time Burks explained that defendant had seen the detectives parked nearby and believed them to be vice detectives. Defendant told Burks to drive away and to come back. The surveillance continued. Burks drove off, returned to 2020 West Monroe Street and parked. The detectives observed defendant run out of the 2020 West Monroe Street building and enter the rear of Burks' car. Burks then drove off with both defendant and Vivurette. The detectives followed, eventually stopping Burks' car at North Leavitt Street. Hanrahan first ordered Burks and Vivurette out of the car and then defendant. While Hanrahan searched defendant, Miller searched the backseat of the car, where he found a weapon. At that time, Hanrahan handcuffed defendant and advised him of his Miranda warnings. Miller drove the vehicle to a police garage and Hanrahan transported defendant to Area 4 Violent Crimes.
The basis for defendant's claim that his trial counsel was ineffective for failing to file a motion to quash his arrest is that Burks was not a reliable informant. Defendant notes that at the time he came forward, Burks had an expectation of a reward from the Cheeks family. Defendant also notes that Burks did not go directly to the police, but initially contacted the Cheeks family at the victim's funeral. The State argues that defendant has waived review of this claim because it could have been raised on direct review and was not. However, defendant relies on his affidavit attached to his post-conviction petition to support his argument on this issue. As this affidavit is dehors the record, a finding of waiver is not appropriate. See Mahaffey, 194 Ill. 2d at 171.
Probable cause for a warrantless arrest exists where police have knowledge of facts that would lead a reasonable person to believe that a crime has been committed and that the person to be arrested committed it. People v. Chapman, 194 Ill. 2d 186, 216-17 (2000). Where police are acting on an informant's tip, the totality of the circumstances known to the officers must support their reliance on the information provided by the informant. People v. Kidd, 175 Ill. 2d 1, 23-24 (1996). The existence of probable cause is not governed by technical legal rules, but by commonsense considerations that are factual and practical. People v. Williams, 147 Ill. 2d 173, 209 (1991).
Defendant argues that Burks' credibility was undermined by the fact that he did not come forward immediately after the alleged conversation with defendant and that he and Curry contacted the victim's family after a reward had been publicized. Defendant also argues that Burks knew he could ensure that defendant would have a gun when he was arrested. Defendant alleges that Burks had given him a gun several days earlier. During the police surveillance of Burks' car, when Burks pulled his car over to pick up defendant, Burks told defendant to go back in the house and get the gun. This last allegation is made in defendant's affidavit attached to his post-conviction petition. Defendant seeks to draw a distinction between Burks and the ordinary citizen informant. However, whether an informant is classified as a citizen informant or a paid informant is unimportant; rather, courts look to the reliability of the informant as only one factor in assessing whether the totality of the circumstances establishes the existence of probable cause. People v. Adams, 131 Ill. 2d 387, 397 (1989).
Burks related to police the conversation with defendant two days after the murder in which defendant admitted that he had killed the victim and set fire to his car. Defendant also stated that he had burned his face while burning the victim's car. Burks provided a physical description of defendant and stated that the gun used in the shooting could be found on defendant or in his home. When police arrested defendant, it was immediately apparent to them that defendant had recent, serious burns on his face. Further, the police reports appended to defendant's petition state that Burks related to officers that defendant had appeared at Burks' home hours before the murder looking for a gun and that Burks sold defendant a gun on credit. Although defendant now contends that Burks set him up by telling him to go inside the house and get the gun, there is no support in the record for this theory. Burks told police that defendant ran into the house because he saw the officers' car and thought they were "vice cops." We note that the record contains no evidence that Burks sought or received a reward from the Cheeks family. Defendant's affidavit attached to his post-conviction petition alleges that on May 10, 1993, he had a telephone conversation with Burks in which Burks denied receiving any reward money. Burks allegedly told defendant that Curry received the reward. This fact, even if true, does not support defendant's argument concerning Burks' reliability.
We conclude that probable cause existed for defendant's warrantless arrest and, thus, he has failed to establish that his trial counsel was ineffective for ...