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People v. Pulliam

October 18, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
LATASHA PULLIAM, APPELLANT.



The opinion of the court was delivered by: Justice Thomas

UNPUBLISHED

Docket No. 89141-Agenda 1-May 2002.

Following a jury trial in the circuit court of Cook County, defendant, Latasha Pulliam, was convicted of murder, two counts of aggravated criminal sexual assault, and two counts of aggravated kidnapping, in connection with the sexual assault and death of a six-year-old girl. After a bifurcated sentencing hearing, the same jury found that defendant was death-eligible and that there were no mitigating factors sufficient to preclude imposition of the death penalty. Accordingly, the trial court sentenced defendant to death for the murder conviction and to three consecutive prison terms of 60, 30, and 15 years for the remaining convictions. On direct appeal, this court affirmed defendant's convictions and sentences. People v. Pulliam, 176 Ill. 2d 261 (1997). The United States Supreme Court subsequently denied defendant's petition for a writ of certiorari. Pulliam v. Illinois, 522 U.S. 921, 139 L. Ed. 2d 243, 118 S. Ct. 314 (1997).

Defendant then filed a pro se petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1996)) and requested the appointment of counsel. After counsel was appointed, defendant filed an amended post-conviction petition, challenging her death sentence on a number of grounds. The circuit court dismissed defendant's amended post-conviction petition without an evidentiary hearing. Defendant's appeal to this court ensued. See 134 Ill. 2d R. 651(a). For the reasons that follow, we affirm in part and reverse in part the judgment of the circuit court, and remand the cause to that court for an evidentiary hearing in light of the recent United States Supreme Court decision in Atkins v. Virginia, 536 U.S. ___, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002), to determine whether defendant is mentally retarded and therefore, under Atkins, may not be executed.

BACKGROUND

This court has previously set forth the evidence presented at defendant's trial in our opinion on direct appeal. Pulliam, 176 Ill. 2d 261. Therefore, we will discuss here only those facts necessary to resolve the issues involved in this appeal.

Defendant gave a signed, court-reported confession following her apprehension after the commission of the crime. Defendant's statement revealed that, on March 21, 1991, defendant took six-year-old Shenosha Richards to defendant's apartment. There, defendant placed Shenosha in a bedroom with defendant's boyfriend and co-defendant, Dwight Jordan. Defendant then went to the kitchen to use cocaine. When defendant returned to the bedroom, Shenosha was on the floor crying with her underwear down to her knees. Jordan was behind her attempting to attain an erection. Jordan then picked up a shoe polish bottle and inserted it into the victim's rectum. Defendant then placed the straight end of a hammer into Shenosha's vagina while Jordan continued inserting the shoe polish bottle into her rectum. Defendant and Jordan continued this assault for 10 minutes. Shenosha was crying, and when defendant put her hand over Shenosha's mouth, Shenosha attempted to scream. Defendant then took an electrical cord, wrapped it around Shenosha's neck, and began strangling her.

Defendant eventually took Shenosha to an empty apartment down the hall, where Shenosha told the defendant that she would not tell anyone, except she would have to tell her parents. At that point, defendant pulled the cord tighter around the victim's neck and continued tightening it for 10 minutes. Because defendant heard knocking at her apartment down the hall, she put Shenosha in a closet in the empty apartment. Defendant returned to the closet a few minutes later and noticed that Shenosha was no longer breathing. Defendant then hit Shenosha over the head with a hammer three or four times. After placing Shenosha in a garbage can, defendant struck the victim over the head with a two-by-four and then attempted to cover the victim's body with garbage.

The medical evidence revealed that in all Shenosha suffered 42 distinct injuries. She had two puncture wounds to her chest, which damaged her lungs and coronary artery, and lacerations on her head, which penetrated to her skull. She also had numerous lacerations to her anus and vaginal area. Shenosha's injuries were consistent with the conduct described in defendant's confession.

After the State rested, defendant presented the testimony of Dr. Mark Moulthrop, a clinical psychologist. Moulthrop noted that he examined defendant in April 1994 and that he reviewed her educational records from her childhood. He testified about the results of the various psychological and IQ tests that were given to defendant through the years. A report of a psychological evaluation conducted by the board of education when defendant was five years old revealed that she was mentally impaired and that she was placed in special classes. Defendant was given the Wechsler Intelligence Scale for Children on three separate occasions as a child. That testing revealed that, when defendant was 11 years old, her verbal scale IQ was 72, her performance scale IQ was 77, and her full scale IQ was 72. At age 13, defendant had a verbal scale IQ of 72, a performance scale IQ of 86, and a full scale IQ of 77. Defendant was again administered the Wechsler Intelligence Scale for Children at age 15. At that time, her verbal scale IQ was 66, her performance scale IQ was 87, and her full scale IQ was 74. Moulthrop attributed the increase in defendant's IQ score after age 11 to "the practice effect," which means that she did better on the performance portion of the test because she had had the opportunity to take the same test more than once over the years. Dr. Moulthrop gave defendant the Wechsler Adult Intelligence Scale test during his April 1994 examination, revealing that her full scale IQ was 69. He concluded that defendant placed within the mildly mentally retarded range, which would be an IQ of 75 or below, or possibly 70 or below "depending on the system," down to an IQ of 55. Moulthrop then explained the difficulties that a person in this range of mental capacity would have in life. Finally, Moulthrop noted that he did not believe defendant was "malingering" during his examination of her.

In rebuttal, the State presented the testimony of forensic psychologist Paul K. Fauteck. Dr. Fauteck was appointed by the court in 1991 to conduct a psychological examination of defendant. He testified that he believed defendant's full scale IQ was 74 and that she was not mildly mentally retarded. He said that the demarcation line for mild mental retardation was an IQ of under 70. He classified defendant as a "malingerer" because she faked mental illness and mental impairment during his examination of her. He further stated that he believed defendant likely malingered during the 1994 examination by Dr. Moulthrop.

Dr. Fauteck further testified that he based his assessment of defendant's IQ on her previous IQ tests and on some screening questions he asked her. He explained that he did not administer another IQ test to defendant because the previous ones were adequate and because it would be "frankly silly to administer an I.Q. test to someone that you know is malingering, that is not going to perform their best on the test." Fauteck defined a malingerer as someone who either pretends to have a mental disease or defect that they do not in fact have or exaggerates a mental disease or defect that they do have. Dr. Fauteck cited several examples from his observation of defendant during the examination to support his conclusion that defendant was malingering.

At the close of all the evidence, the jury found defendant guilty on the charges of first degree murder, aggravated criminal sexual assault, and aggravated kidnapping. At the conclusion of the first phase of a separate sentencing hearing, the same jury found defendant eligible for the death penalty based on the statutory aggravating factors that the murder was committed during the course of aggravated criminal sexual assault and aggravated kidnapping (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(b)(6)) and the victim was under the age of 12 and her death resulted from exceptionally brutal and heinous behavior indicative of wanton cruelty (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(b)(7)). The cause then proceeded to the hearing in aggravation and mitigation.

The State presented evidence in aggravation from several witnesses. Juilett Brown-Perry, a social worker employed by the Department of Children and Family Services (DCFS), testified that defendant was placed in state facilities when she was a youth, and she often ran away from them. On one occasion, defendant and another girl, who was also under the care of the state, ran away together. Defendant brought the girl to the residence of defendant's 27-year-old boyfriend. There, defendant physically forced the girl to have oral, anal, and vaginal sex with the 27-year-old man. The girl was also forced to perform oral sex on defendant.

Dreszina Jarrett testified that she was incarcerated with defendant at the Cook County jail in March 1991. During that time, defendant told Jarrett about the murder and sexual assault of Shenosha. Defendant also told Jarrett about the details of the crime, including that she used a wooden door stopper with a nail in it to jab Shenosha in the chest. According to Jarrett, defendant never shed any tears when telling about the crime.

Gloria LaFay Anderson, a Cook County sheriff's department officer, testified that in the mid-part of 1991 defendant sexually assaulted a female inmate. Defendant beat the woman and forced her to have oral sex. Anderson could not file a report about the incident because the victim was too scared to talk about it.

The State also presented evidence that defendant's baby daughter, Patrice, was twice hospitalized, once for injuries consistent with physical abuse, and once for injuries consistent with both physical and sexual abuse. The first incident occurred on March 19, 1989, when defendant's daughter suffered second degree burns from having her buttocks dipped and scalded in hot water. The child was kept in the same diaper after the burn for over 16 hours, which would have been extremely painful and which caused the child to run a 105 degree fever. The child remained in the hospital burn unit for almost one month.

Defendant's daughter Patrice was again brought to the hospital on February 16, 1990. The examining physician observed numerous injuries on the child's body. She had a number of head injuries, including two black eyes and "a very well-defined linear-type of bruise with very sharp edges." The doctor noted the burn wound to the child's buttocks, but also noticed bruising to the buttocks that indicated a blow from an object. The child also had cigarette burns on her arms. Both of the child's thighs had multiple fingernail marks. Upon examination of the child's vaginal area, the doctor noted a fresh abrasion to the lip of the vagina and two fresh tears to the hymen. Defendant's explanations for the injuries were not consistent with the injuries themselves, and defendant had no explanation for the injuries to her daughter's vaginal area.

Dr. Fauteck testified on behalf of the State in aggravation that, based on both his examination of defendant on October 7, 1991, and his review of the facts of the case, it was his opinion that defendant did not suffer from a mental illness at the time the crimes were committed. Instead, he testified that defendant was a "sexual sadist," with borderline intellectual functioning and antisocial personality disorder. He described a sexual sadist as a person who sexually enjoys inflicting pain and suffering on another person. He noted that in its severe form it tends to get worse over time and is "virtually untreatable."

In mitigation, Linda Sobotka, a sentencing advocate for the public defender's office, testified that she investigated and did a social history of defendant. Sobotka contacted defendant's parents and attempted to contact various relatives. She also spoke with DCFS workers and jail guards about defendant. She also reviewed numerous documents from DCFS, Hargrove Hospital, Cook County jail, and the Chicago board of education. Sobotka noted that defendant was born in 1971 to Joseph and Renee Pulliam, who were teenagers at the time. Defendant was born prematurely and spent the first two months of her life in an incubator. The family lived with Joseph's mother for the first three or four years before moving out on their own. The couple had a son, Joseph Jr., who reportedly died of sudden infant death syndrome (SIDS) as an infant.

Sobotka further testified that shortly after moving out of Joseph's parent's house and after Joseph Jr. died, Renee began drinking and became very violent in her disciplining of defendant. Because Joseph was mostly either working or attending school, Renee stayed home and raised defendant. When defendant went to kindergarten she was found to be educable but mentally handicapped. Around that same time, according to a report from the Chicago board of education (the board), defendant had many old scars, bruises, and lacerations on her face and arms. After testing at age seven, the board noted that defendant was in need of therapeutic intervention because of family problems.

Sobotka stated that around age 10 Renee began beating defendant "continuously" and was drinking more heavily. At that time, Joseph filed for divorce because he would come home from work and find Renee in the apartment with different men. When defendant was 12 years old, her paternal grandmother, who seemed to be a positive influence, died. Defendant was also raped at age 12 by one of Renee's boyfriends. When Joseph found out about the incident, he took defendant to Wisconsin to live with him. A few months later, in August 1984, defendant was brought back to Chicago and admitted to Hargrove Hospital suffering from depression and "behavioral problems." Testing conducted at the hospital revealed that defendant was four or five grade levels behind in school. Defendant talked to the hospital staff about the abuse that she suffered at her mother's hands. She said that she felt responsible for the beatings and was concerned her mother would be caught. In 1986, at the age of 15, defendant was impregnated by one of Renee's boyfriends, who was 37 years old. When she was three months pregnant, defendant was again admitted to the hospital for depression.

Sobotka also testified that Joseph received guardianship of defendant's child, Antoinette, after she was born. Defendant, however, began living on the street, using cocaine and marijuana. Defendant eventually became pregnant again by another one of Renee's boyfriends. Patrice was born to defendant in 1988 and was addicted to cocaine. Eventually the child was taken away from defendant, and defendant moved in with Jordan, who was 47 years old at the time. Jordan physically abused defendant.

On cross-examination, the State questioned Sobotka about her knowledge of defendant's abuse of Patrice and her knowledge of the other aggravating evidence presented by the State. On redirect examination, Sobotka testified that there were numerous reports that Renee abused defendant. She noted that defendant had cuts, lacerations, and bruises on her body as a child, and once Renee put a hole in a wall by banging defendant's head into it. Sobotka further testified that in a presentence investigation report, defendant indicated that defendant's mother began sexually abusing defendant at the age of five or six. Renee performed oral sex on defendant and had defendant perform oral sex on Renee. When Joseph went to work, Renee engaged in sex with various men and made defendant watch. On re-cross-examination, Sobotka acknowledged that defendant's allegations that she had been sexually abused by Renee were not made until after defendant was placed in custody for the crimes against Shenosha.

Dr. Jeffrey Teich, a psychiatrist, also testified on behalf of defendant in mitigation. Dr. Teich recounted defendant's social history and that defendant was abused as a child by her mother. He noted that defendant was raised without an effective support system in a violent and unpredictable home, where she was physically and sexually abused. He concluded that defendant was mildly mentally retarded and had an antisocial personality disorder. He explained the extent of defendant's mental capacity, including that defendant could understand concrete, but not abstract, concepts.

Additionally, three Cook County jail guards testified in mitigation about defendant's behavior while incarcerated. They noted that defendant was aggressive and physically dirty when she first entered the system, but her conduct and appearance changed over time. She became quieter and more friendly and polite toward other inmates and guards. She improved her personal hygiene as well.

Finally, the defense presented in mitigation the testimony of defendant's father, Joseph Pulliam. Joseph testified that Renee physically abused defendant when she was a child. Renee often kept defendant out of school because she did not want teachers to discover the injuries left by the abuse. He noted that the abuse began when defendant was five or six years old and that it continued for the next 10 years. Joseph stated that his mother was a positive influence upon defendant, but Renee counteracted that influence. He acknowledged that Renee had always exerted more influence over defendant than he had.

At the close of the sentencing hearing, the jury unanimously found that there were no mitigating factors sufficient to preclude imposition of the death penalty. Accordingly, the trial court sentenced defendant to death.

After the resolution of defendant's direct appeal and the denial of defendant's petition for writ of certiorari before the United State's Supreme Court, defendant filed an original and then an amended petition for post-conviction relief in the circuit court of Cook County. Defendant's amended petition for post-conviction relief raised seven claims, challenging only her sentence of death.

Defendant devoted the bulk of her amended petition for post-conviction relief to allegations that her trial counsel was ineffective at the aggravation-mitigation phase of the sentencing hearing because he failed to conduct a complete investigation into the mitigating evidence and then failed to present to the jury the evidence that would have been uncovered by a more thorough investigation. Defendant alleged, inter alia, that trial counsel was ineffective in the following ways: (1) he failed to obtain defendant's early childhood hospital records, which suggested defendant may have been sexually abused when she was 22 months old and that she may have suffered lead poisoning at age 2; (2) he failed to fully investigate the circumstances surrounding the death of defendant's brother, Joseph Jr., suggesting that the cause of the baby's death may have been due to abuse by Renee rather than SIDS; (3) he failed to present additional evidence that Renee sexually abused defendant to rebut any claim that defendant recently fabricated her claim that Renee had sexually abused her; (4) he presented an inaccurate picture of defendant's early childhood by portraying Joseph as a responsible father when evidence existed that Joseph helped to conceal the abuse committed by Renee; (5) he failed to interview and present the testimony of numerous additional witnesses, including an expert witness, who could have provided information about defendant's abusive upbringing and the impact that it had on her; and (6) he failed to present evidence showing that defendant had organic brain damage.

Defendant's amended post-conviction petition includes a number of supporting affidavits and exhibits. In that regard, records from Michael Reese Hospital show that defendant was hospitalized when she was 22 months old with a 104 degree fever and that she had experienced a near-drowning incident in the bathtub. Defendant had various marks on her body indicative of physical abuse. She also had a perineal rash around her vagina. Renee and Joseph gave conflicting reports about the bathtub incident, and the parents were referred to social service for suspected child abuse. Defendant was eventually discharged to the care of her parents, but was to be "closely followed up by social service." Eight months later, defendant was again hospitalized-this time for ingesting iron pills. It was also noted that defendant had a high lead content in her blood. Hospital staff apparently did not consider whether defendant was an abused child at this time even though she had a rash on her face caused by "window sealer." Joseph informed the hospital that defendant's previous admission was due to a cold and fever.

Defendant attached the affidavit of Donna Crowell Bryant to her post-conviction petition. In her affidavit, Bryant stated that she was not contacted by trial counsel, but if she had been, she would have been willing to testify that she had a seven-year relationship with Joseph that began in 1982. According to Bryant, defendant was repeatedly abused both physically and sexually by Renee. Joseph admitted to Bryant that Renee tried to drown defendant in the bathtub on one occasion, which resulted in defendant being taken to the hospital. Bryant also stated that Joseph told her that Joseph Jr. actually died from Renee suffocating the child and not from SIDS. When defendant was five years old, Renee had defendant performing and receiving oral sex. Joseph and his mother knew about the abuse, but they ignored it and covered it up.

Another affidavit attached to defendant's petition was that of Juliett Brown Perry, the DCFS social worker who testified on behalf of the State at defendant's sentencing hearing. Perry noted that she became defendant's caseworker when defendant was about 12 years old. According to Perry, defendant told her that Renee, Renee's boyfriend, and defendant all slept in the same bed together and had sex. Perry further noted that Renee was an alcoholic, and Joseph was always working. Perry stated that she would have been willing to testify about these matters, but she was not contacted by trial counsel for the defense.

Defendant further attached a letter of Janice J. Ophoven, M.D., a psychological expert, who reviewed the various documents in the case, including the Michael Reese Hospital records. Based on her review, Dr. Ophoven concluded that defendant was clearly the victim of repeated and severe physical and sexual abuse. Among the factors Ophoven relied upon to form her conclusion that defendant was sexually abused was the perineal rash noted when defendant was 22 months old and the sexually transmitted disease and pregnancy at ages 13 and 15. She opined that this type of abuse leads to tragic and long-term consequences for children and is a well recognized and direct factor ...


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