The opinion of the court was delivered by: Justice Fitzgerald
Docket No. 89796-Agenda 2-March 2002.
David Harris, was convicted of first degree murder and attempted armed robbery in 1995 and sentenced to death. On direct appeal, this court affirmed defendant's conviction and sentence. People v. Harris, 182 Ill. 2d 114 (1998). Defendant thereafter petitioned the Cook County circuit court for relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1998)). Defendant now appeals directly to this court the Cook County circuit court's order dismissing his first and second amended post-conviction petitions without an evidentiary hearing. 134 Ill. 2d R. 651(a).
The Post-Conviction Hearing Act provides a procedural mechanism for a criminal defendant to 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); People v. Enis, 194 Ill. 2d 361, 375-76 (2000); People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). A post-conviction proceeding is a collateral attack upon a prior conviction or sentence and does not relitigate a defendant's innocence or guilt. People v. Evans, 186 Ill. 2d 83, 89 (1999). Therefore, any issues considered by the court on direct appeal are barred by the doctrine of res judicata, and issues which could have been raised on direct appeal are deemed waived. People v. West, 187 Ill. 2d 418, 425 (1999).
After a capital defendant files a post-conviction petition, the trial court examines the petition and appoints an attorney to represent the defendant, if necessary. 725 ILCS 5/122-2.1(a)(1) (West 1998). Thereafter, the State may answer or move to dismiss the petition. 725 ILCS 5/122-5 (West 1998). If the State moves to dismiss the petition, the trial court must examine and rule upon 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 post-conviction petition, supported by the trial record and any accompanying affidavits, make a substantial showing of a constitutional violation. People v. Orange, 195 Ill. 2d 437, 448 (2001); Enis, 194 Ill. 2d at 376. A trial court's ruling on the sufficiency of defendant's allegations is a legal determination and, therefore, our review is de novo. Coleman, 183 Ill. 2d at 388.
In this appeal, defendant raises eight issues. He contends: (1) he is actually innocent of the crime; (2) he received ineffective assistance of trial counsel because his lawyer failed to request a fitness examination; (3) he received ineffective assistance of trial counsel because his lawyer failed to adequately investigate the case and produce exculpatory evidence and alibi witnesses; (4) the State committed a Brady violation when it failed to disclose impeachment evidence regarding its witness Theodore Traylor; (5) the State committed a Brady violation at his capital sentencing hearing when prosecutors failed to disclose material exculpatory evidence regarding a disciplinary incident; (6) he received ineffective assistance of counsel at his capital sentencing hearing because his lawyer failed to perform a proper mitigation investigation; (7) he was not statutorily death eligible; and (8) the Illinois death penalty statute is unconstitutional.
Defendant argues that he is entitled to an evidentiary hearing on his claim that he is actually innocent of the crime for which he was convicted. Defendant's claim of actual innocence is based upon the affidavits of co-defendants Demetrius Daniels and Howard McClinton, who state that defendant was not present at the time of the crime and that they conspired to frame defendant. Defendant also bases his claim upon the affidavits of his brothers, Darrell and Rashid Harris, who state that defendant was at home with them in defendant's basement apartment watching a movie at the time of the shooting.
Courts may consider a free-standing claim of actual innocence in a post-conviction proceeding if the claim is based on newly discovered, material, and non-cumulative evidence that the defendant is innocent of the crime for which he has been tried, convicted, and sentenced. People v. Washington, 171 Ill. 2d 475, 489 (1996). Newly discovered evidence is evidence that was unavailable at trial and could not have been discovered sooner through due diligence. People v. Burrows, 172 Ill. 2d 169, 180 (1996). A defendant is only entitled to relief on his claim of actual innocence if the evidence is of such a conclusive character that it would probably change the result of retrial. Washington, 171 Ill. 2d at 489; Burrows, 172 Ill. 2d at 180.
We affirm the circuit court's dismissal of defendant's claim of actual innocence without an evidentiary hearing. First, the affidavits of defendant's brothers, Darrell and Rashid, do not contain "newly discovered" evidence. This evidence could have been discovered before trial with the exercise of due diligence. Despite defendant's contention that the evidence is newly discovered because the alibi affidavits are dated after the time of trial, the mere fact that these affidavits are dated after the time of trial does not render the evidence newly discovered. Clearly, the fact that defendant was allegedly with his brothers on the night of the crime could have been discovered sooner. More importantly, defendant is the source of this information and was armed with this information at the time of trial.
Turning to the affidavits of co-defendants Daniels and McClinton, we also reject defendant's claim of actual innocence based upon the evidence contained in these affidavits. In 1994, Daniels and McClinton gave statements to the police in which they outlined their involvement in the crime and identified defendant as the shooter. In their affidavits, however, they state that it was "a scheme to say that it was [defendant] who shot Clifford Chase in the event any of us were caught." However, as we observed in defendant's direct appeal, "evidence of guilt in this case was overwhelming." Harris, 182 Ill. 2d at 142. Defendant was convicted based upon the following evidence: defendant's written statement in which he confessed to personally shooting the victim; the testimony of an eyewitness, Theresa Barnes, who identified defendant as the shooter; and the testimony of co-defendant Theodore Traylor, who stated that defendant was the shooter. Importantly, the statements of Daniels, McClinton, Traylor, Barnes, and defendant describe in strikingly similar detail the circumstances of the crime. Based upon the overwhelming evidence of guilt, the affidavits of co-defendants Daniels and McClinton are not of such a conclusive character that they would probably change the outcome on retrial. We affirm the decision of the circuit court dismissing this claim without an evidentiary hearing.
A. Strickland-Failure to Request a Fitness Hearing
Defendant argues that his trial counsel was ineffective for failing to seek a fitness hearing pursuant to section 104-11(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-11(a) (West 1998)). Under section 104-11(a), "[t]he issue of the defendant's fitness for trial, to plead, or to be sentenced may be raised by the defense ***. When a bona fide doubt of the defendant's fitness is raised, the court shall order a determination of the issue before proceeding further." 725 ILCS 5/104-11(a) (West 1998). Defendant argues that at the time of trial and sentencing there was a bona fide doubt of his fitness because he suffered from depression, a dependent personality disorder, and organic brain damage.
The State argues that defendant waived this claim because it could have been raised on direct appeal. See People v. Olinger, 176 Ill. 2d 326, 365 (1997) ("argument is waived because it was apparent from a direct examination of the record and should have been raised on direct appeal"). The record on direct appeal contains defendant's pretrial and presentence investigation reports. These reports state that in 1994, one year prior to his conviction and sentence in August 1995, defendant was diagnosed with depression and prescribed medication for a period of five months, to manage his depression.
Defendant, however, also relies on evidence outside the record on direct appeal, including psychological assessments gathered by his post-conviction counsel which conclude that defendant suffers from severe depression, dependent personality disorder, and organic brain disorder. Accordingly, to the extent defendant relies upon evidence outside the record, we examine this claim. Claims of ineffective assistance of counsel are examined under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Regarding the first Strickland prong, a defendant must prove that (1) counsel's performance fell below an objective standard of reasonableness; and (2) absent counsel's deficient performance there is a reasonable probability that the result of the proceeding would have been different. Evans, 186 Ill. 2d at 93. Under Strickland, reviewing courts entertain a strong presumption that the attorney's performance was a product of sound trial strategy and professional judgment. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065; see also People v. Richardson, 189 Ill. 2d 401, 414 (2000) ("Counsel's decision whether to present a particular witness is generally a strategic choice which cannot support a claim of ineffective assistance of counsel"). To overcome this presumption, a defendant must demonstrate that his attorney's performance fell below an objective standard of reasonableness, and that but for the attorney's deficient performance the result would have been different. People v. Enoch, 122 Ill. 2d 176, 202 (1988); see also People v. Stewart, 104 Ill. 2d 463, 491-92 (1984) ("Effective assistance of counsel refers to competent, not perfect representation"). Regarding the second Strickland prong, a reasonable probability is a probability sufficient to undermine confidence in the outcome-or put another way, that counsel's deficient performance rendered the result of the trial unreliable or fundamentally unfair. Enis, 194 Ill. 2d at 376. To prevail, a defendant must satisfy both the performance and prejudice prongs of the Strickland test. People v. Sanchez, 169 Ill. 2d 472, 487 (1996). If this court concludes that defendant did not suffer prejudice, the court need not decide whether counsel's performance was constitutionally deficient. Evans, 186 Ill. 2d at 94.
To establish that the failure to request a fitness hearing prejudiced a defendant within the meaning of Strickland, a defendant must show that facts existed at the time of trial that would have raised a bona fide doubt of his ability "to understand the nature and purpose of the proceedings against him or to assist in his defense." 725 ILCS 5/104-10 (West 1998); People v. Easley, 192 Ill. 2d 307, 319 (2000). "Defendant is entitled to relief *** only if he shows that the trial court would have found a bona fide doubt of his fitness and ordered a fitness hearing if it had been apprised of the evidence now offered." Easley, 192 Ill. 2d at 319. To determine whether there exists a bona fide doubt of defendant's fitness, a court may consider the defendant's irrational behavior, the defendant's demeanor at trial, and any prior medical opinion on defendant's competence. Easley, 192 Ill. 2d at 319; see also People v. Eddmonds, 143 Ill. 2d 501, 518 (1991) (There are " `no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated' "), quoting Drope v. Missouri, 420 U.S. 162, 180, 43 L. Ed. 2d 103, 118, 95 S. Ct. 896, 908 (1975).
Taking as true defendant's allegations that he suffers from mental impairments as they are stated in his post-conviction psychological assessments (see Coleman, 183 Ill. 2d at 380-82), these allegations do not necessarily establish that defendant was unfit. Easley, 192 Ill. 2d at 322-23. The issue is whether defendant could understand the proceedings and cooperate with counsel. Easley, 192 Ill. 2d at 323. Specifically, we have stated that "[f]itness speaks only to a person's ability to function within the context of a trial. It does not refer to sanity or competence in other areas." Easley, 192 Ill. 2d at 320, 322.
In this case, the record clearly illustrates that defendant understood the nature and purpose of the proceedings. On several occasions, the court provided defendant with a detailed explanation of the proceedings and informed defendant of his rights during those proceedings. Following these admonishments, defendant stated that he understood. Furthermore, the record shows that defendant participated in his own defense; communicated and conferred with his trial counsel; expressed to the court his understanding of the proceedings, including his decisions to litigate rather than agree to a plea, waive his right to testify, and waive his right to a jury at the sentencing hearing; and articulated a clear statement in allocution during mitigation.
Because defendant has not shown that there was a bona fide doubt concerning his fitness, defendant fails to make a substantial showing of ineffective assistance of counsel on this claim. The circuit court correctly dismissed defendant's claim without an evidentiary hearing.
B. Strickland-Failure to Present Alibi and Exculpatory Evidence
Defendant asserts that even if this court rejects his claim of actual innocence, at the very least we should find that he received ineffective assistance of trial counsel because his attorney failed to investigate and present his alibi evidence that at the time of the shooting he was at home with his brothers. Defendant argues that his trial attorney's deficient performance is the reason this evidence was not discovered before trial and presented in his defense.
We disagree. As we noted previously, defendant is clearly the source of this evidence and, yet, does not explain why he failed to inform his attorney about the existence of his alibi defense before trial. He cannot now blame his attorney for failing to investigate and discover this evidence. Moreover, given all of the evidence that was before the jury, defendant does not demonstrate that the result of the proceeding would have been different. We affirm the circuit court's dismissal of this claim without an evidentiary hearing.
Defendant also contends that his trial counsel was ineffective because (1) he negligently failed to present evidence that co-defendant Daniels was seen with a .38-caliber handgun, the same type of gun used to kill the victim, several days after the shooting, and (2) he negligently failed to present the testimony of assistant Cook County Public Defender Maura Shapiro, who would have advanced defendant's claim that his post-arrest statements were coerced. We address each issue in turn.
The victim was shot to death in his car on June 7, 1993. Bullets were recovered from the front seat and the back floor of the victim's car. At trial, the parties stipulated that an expert would testify that both of the bullets recovered from the victim's car were fired from a .38 Special revolver. Prior to trial, defense counsel, Dennis Doherty, received an arrest report dated June 19, 1993, with information that co-defendant Daniels was seen with a .38-caliber gun. The arrest report summary indicated that a Chicago Housing Authority security guard noticed Daniels holding a .38-caliber gun, that Daniels fled with the gun, but when he was apprehended several minutes later, he was no longer in possession of the gun. The gun was not recovered. In Doherty's post-conviction affidavit, he states:
"My overall strategy was to establish a reasonable doubt that [defendant] had in fact shot Clifford Chase with a .38 handgun. In this connection, I had been tendered a police report relating to the subsequent arrest of a co-defendant who was observed *** to be in possession of a .38. I conducted no investigation based upon this report even though it obviously advanced my reasonable doubt defense ***. In fact, at the time of trial I overlooked the information altogether and never even considered it in terms of the defense that I did present. *** [T]his was not a strategic or tactical decision on my part."
We conclude that the trial court correctly dismissed this claim without an evidentiary hearing because defendant fails to make a substantial showing of prejudice. See Eddmonds, 143 Ill. 2d at 512. In the instant case, evidence against defendant was based, in part, upon the eyewitness testimony of Barnes, a disinterested bystander present in the parking lot at the time of the shooting, and Traylor, an individual present in the car with defendant before, during, and after the shooting. Evidence that a co-defendant was seen with a similar model handgun, never recovered by the police, almost two weeks after the incident does not render the result of trial unreliable. Put another way, this evidence does not create a reasonable probability that the outcome of trial would have been different.
Next, defendant contends Doherty was ineffective for failing to call Assistant Public Defender Shapiro at trial. Defendant twice confessed to the crime, and the second time he memorialized his participation in the crime in a detailed, court-reported statement. These statements were offered as evidence at trial; however, defendant claimed that the police physically coerced his statements.
Turning to the time of his statements, on July 15, 1993, defendant was transferred from Judge Singer's courtroom by the police to Area Two Police Headquarters for questioning. At that time, Assistant Public Defender Shapiro was assigned to Judge Singer's courtroom and oversaw defendant's transfer from the courtroom. Two days later, on July 17, 1993, defendant was returned to the Cook County jail with injuries to his lip and mouth.
At trial, the State called Assistant State's Attorney Chiampas, the attorney who took defendant's statement on June 15, 1993. Chiampas testified that when she took defendant's statement he had no visible injuries. Additionally, the State presented the stipulated testimony of Officer Hughes, an Area Two officer who returned defendant to the lockup at 1:15 a.m. on June 16, 1993, after defendant made his statement. Officer Hughes provided in his stipulated testimony that when he returned defendant to the lockup, defendant had no visible injuries.
Defendant relies upon Doherty's affidavit to support his claim that Shapiro's testimony at trial would have advanced his defense that his statements were physically coerced:
"I never asked Ms. Shapiro about her practice in this case where a prisoner appears in court with obvious or even apparent injuries. This was a significant omission on my part because my defense at trial was predicated in part on the theory that [defendant's] statement to authorities was coerced by physical violence. If Ms. Shapiro had not observed injuries to [defendant] *** on the date the police removed him from Judge Singer's courtroom, this fact obviously would have bolstered our defense by eliminating the possibility that [defendant's] injuries were pre-existing ...