The opinion of the court was delivered by: Justice Thomas
No. 89408-Agenda 4-September 2002.
Defendant, Joseph R. Miller, appeals from the dismissal of his post-conviction petition without an evidentiary hearing. We affirm.
In the late 1970s, defendant murdered two women and disposed of their bodies by the side of a road. He was convicted of these murders and sentenced to the Department of Corrections (DOC). In April 1993, he was released from prison. Five months later, he killed three more women and disposed of their bodies in drainage ditches. Following a jury trial in the circuit court of Peoria County, defendant was convicted of six counts of first degree murder (720 ILCS 5/9-1(a) (West 1992)) for the later crimes. The same jury found that defendant was eligible for the death penalty because he was convicted of killing more than one person (720 ILCS 5/9-1(b)(3) (West 1992)), and that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Accordingly, the trial court sentenced defendant to death. On direct appeal, we affirmed defendant's convictions and sentence. People v. Miller, 173 Ill. 2d 167 (1996). The United States Supreme Court denied defendant's petition for a writ of certiorari on March 31, 1997. Miller v. Illinois, 520 U.S. 1157, 137 L. Ed. 2d 497, 117 S. Ct. 1338 (1997).
On December 29, 1995, defendant filed a pro se petition for post-conviction relief. In the petition, defendant argued that his trial counsel was ineffective in two respects. First, defendant contended that, during plea negotiations, his attorney failed to explain to him that a sentence of natural life was the most lenient sentence he could receive. Defendant had rejected the State's offer of life imprisonment in exchange for his guilty plea. Defendant claimed that, if his attorney had explained to him that natural life was the most lenient sentence he could have received, he would have accepted the State's offer. Defendant supported this contention with his own affidavit. Second, defendant contended that his attorney was ineffective for failing to cross-examine two of the State's witnesses about their criminal involvement in the sale of stolen property. Defendant concluded that these witnesses must have been promised leniency in exchange for their testimony, and the State did not disclose such a promise to the defense. Defendant supported this claim with police reports showing that these two witnesses admitted to being involved in the sale of stolen property with defendant. Defendant contended both that his due process rights were violated by the State's failure to disclose the promise of leniency and that his attorney was ineffective for failing to cross-examine the witnesses about the promise of leniency.
The trial court appointed counsel to represent defendant, and counsel filed an amended petition on defendant's behalf. The amended petition incorporated by reference defendant's pro se petition and added the additional claim that defendant's trial counsel was ineffective for failing to investigate and present available mitigating evidence. Defendant supported this contention with evaluations conducted by Dr. Michael Gelbort, a clinical psychologist, and Dr. Fred Berlin, an associate professor at Johns Hopkins University School of Medicine. Dr. Berlin's report concluded that defendant was a sexual sadist and that this malady impaired his volitional capabilities. Dr. Gelbort concluded that defendant suffered from neuro-psychological impairment and dysfunction reflective of brain dysfunction or damage.
The State moved to dismiss the petition without an evidentiary hearing. In the motion, the State contended that all of defendant's issues were waived because they could have been raised on direct appeal. The State further argued that defendant had failed to meet his burden of showing that he had experienced a substantial denial of his constitutional rights. The trial court granted the State's motion to dismiss. The court concluded that defendant had failed to show that trial counsel's performance fell below an objective standard of reasonableness. Defendant appealed directly to this court. 134 Ill. 2d R. 651(c).
A defendant is not entitled to an evidentiary hearing on a post-conviction petition as a matter of course. Rather, a hearing is required only when the allegations of the petition, supported by the trial record and the accompanying affidavits, make a substantial showing of a violation of a constitutional right. People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). Considerations of waiver and res judicata limit the range of issues available to a post-conviction petitioner to constitutional matters that have not been, and could not have been, previously adjudicated. People v. Tenner, 175 Ill. 2d 372, 378 (1997). Rulings on issues that were previously raised at trial or on direct appeal are res judicata, and issues that could have been raised, but were not, are waived. People v. Coleman, 168 Ill. 2d 509, 522 (1995). Where the State seeks dismissal of a post-conviction petition instead of filing an answer, its motion to dismiss assumes the truth of the allegations to which it is directed and questions only their legal sufficiency. People v. Ward, 187 Ill. 2d 249, 255 (1999). If the circuit court determines that the petition should be dismissed without an evidentiary hearing, its judgment is subject to de novo review. People v. Coleman, 183 Ill. 2d 366, 387-88 (1998).
Ineffective Assistance of Counsel: Failure to Investigate and Present Mitigating Evidence
Defendant first argues that he received the ineffective assistance of counsel at the aggravation-mitigation phase of his capital sentencing hearing because his attorney failed to investigate and present available mitigating evidence. Defendant alleges that, had this evidence been considered by the jury, there is a reasonable probability that the jury would have concluded that sufficient mitigating evidence existed to preclude the death penalty.
To prevail on a claim of ineffectiveness of counsel at sentencing, a defendant must show that his attorney's performance fell below an objective standard of reasonableness and that, absent counsel's errors, there is a reasonable probability that the trier of fact would have concluded that the balance of aggravating and mitigating factors did not warrant the death penalty. People v. Henderson, 171 Ill. 2d 124, 145 (1996). Counsel has a duty to make reasonable investigations of potential sources of mitigating evidence to present at a capital sentencing hearing. People v. Towns, 182 Ill. 2d 491, 510 (1998). When made after a thorough investigation of the law and facts relevant to plausible options, strategic choices of what evidence to present are virtually unchallengeable. Towns, 182 Ill. 2d at 514; Strickland v. Washington, 466 U.S. 668, 690, 80 L. Ed. 2d 674, 695, 104 S. Ct. 2052, 2066 (1984). Choices made after less than complete investigation are reasonable to the extent that reasonable professional judgments support the limitations on investigation. Strickland, 466 U.S. at 691, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.
Before proceeding to the merits of this issue, we address the State's contention that the issue is waived. The State argues that this issue is waived because defendant could have raised it on direct appeal. We disagree. Defendant's argument depends on evidence outside the original trial record. Accordingly, defendant could not have raised it on direct appeal. People v. Orange, 168 Ill. 2d 138, 149 (1995).
The following evidence was presented to the jury at the aggravation-mitigation phase of the sentencing hearing. Jack Thurmon, a DOC parole agent, testified that he handled cases involving people who had been convicted of murder or a sex offense and were either homeless or going to a halfway house. Thurmon worked in the Peoria area, and his job responsibilities included deciding whether parolees could come to a specific region. Thurmon first encountered defendant while Thurmon was teaching parole school at the Illinois River Correctional Center. Defendant was serving time there for two murder convictions and an armed robbery conviction.
Thurmon received a parole residence plan from defendant. A residence plan states where the person plans to live after being paroled. Thurmon reviewed defendant's case and determined that defendant did not have any ties to the Peoria area, had no family in the area, and no prospective job in the area. Thurmon rejected placement in Peoria and requested that defendant be sent back to Cook County, which was his committing county. Defendant was paroled in April 1993 and was sent to a mission in Cook County. In September 1993, Thurmon learned that DOC had given defendant permission to move to Peoria.
On cross-examination, Thurmon testified that he had reviewed all of defendant's records, including a psychiatric consultation that defendant had at the Joliet Receiving Center in either 1977 or 1978. Thurmon acknowledged that the report stated that defendant said that he was fearful of killing people again because he could not control his behavior. The records did not indicate that defendant had received any psychiatric help from DOC. Thurmon was not aware of any other comments defendant had made about his inability to control his behavior.
Detective Lester Mustacchio, a police investigator for the Village of Skokie, testified that in 1977 he was assigned to investigate the homicide of Martha Kowalski. On November 4, 1977, he interviewed defendant at the Du Page County jail. The interview was tape recorded and transcribed. Mustacchio identified photographs of Kowalski's body that were taken where her body was found. The body was wrapped in a sleeping bag, tied with rope, and dumped in a ditch. Defendant participated freely in the interview and discussed both the Kowalski homicide and another one. Defendant signed his statement after it was transcribed. The jury was given a transcribed copy of defendant's statement, and the tape recording of the interview was also played for the jury.
In the statement, defendant details how, in October 1977, he picked up a woman and agreed to pay her for sex. Defendant took her back to his apartment and had sex with her. Afterwards, they argued about the amount of money he owed her. Defendant subdued her by strangling her and then took her to the bathtub and drowned her. He then wrapped her body in a sleeping bag, tied it up with rope, placed it in his car, and then disposed of it in a ditch.
Defendant then told about another prostitute that he had killed. In 1976, he picked up a prostitute and brought her back to his residence. Defendant claimed that he paid her for sex that night, but that she came back a few days later and wanted more money. Defendant then strangled her to death and wrapped her body in garbage bags, towels, sheets, and a blanket. He then tied the body with rope, placed it in his car, and dumped it by the side of the road in some bushes. Defendant's signature appeared at the bottom of each of the transcribed pages, and defendant stated on the tape that he signed the pages because they were his true statements.
The State then entered into evidence defendant's two certified convictions for murder and one for armed robbery. On November 29, 1977, defendant was convicted of the murders of Martha Kowalski and Ann Maxham and sentenced to concurrent terms of 15 to 30 years' imprisonment. In January 1978, defendant was convicted of armed robbery and sentenced to 4 to 8 years' imprisonment.
The defense called two witnesses in mitigation. Dr. Sohee Lee, a board-certified psychiatrist, testified that he met with defendant on three occasions. Before meeting with defendant, Dr. Lee reviewed a grand jury report, records from the DOC, and a psychiatric report. Dr. Lee determined that defendant probably suffered from disassociative amnesia and an antisocial personality. The disassociative amnesia could prevent defendant from recalling traumatic or stressful events in his life. According to Dr. Lee, people who suffer from the psychiatric maladies defendant suffered from generally have ...