Appeal from the Circuit Court of St. Clair County. No. 90-CF-781 Honorable Robert J. Hillebrand, Judge, presiding.
The opinion of the court was delivered by: Presiding Justice Hopkins
This case comes before this court for the third time. Defendant appealed following his conviction by a jury for the murder of his estranged wife, Tracy Hayden, and this court affirmed defendant's conviction. People v. Hayden, No. 5-91-0560 (1993) (unpublished order under Supreme Court Rule 23 (134 Ill. 2d R. 23)). Subsequently, defendant filed a post-conviction petition in October 1994 and a supplemental post-conviction petition in February 1995. The State moved to dismiss both petitions. The trial court denied the State's motion to dismiss and granted defendant a new trial. This court reversed the trial court's order granting defendant a new trial, finding that after the denial of the State's motion to dismiss, the State should have been allowed to answer the petitions. We remanded this case for further proceedings in conformance with section 122-5 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-5 (West 1992)). People v. Hayden, 288 Ill. App. 3d 1076 (1997).
On remand, defendant filed an amended and a supplemental post-conviction petition. Defendant attached an affidavit to the amended post-conviction petition. The State filed motions to dismiss and answers to defendant's post-conviction petitions. On August 2, 2000, the trial court dismissed defendant's post-conviction petitions without conducting an evidentiary hearing.
On appeal, defendant contends that the trial court erred for the following reasons in denying his post-conviction petitions without an evidentiary hearing:
1. The court denied his constitutional right to a public trial when it excluded his siblings from the courtroom during voir dire, trial counsel was ineffective for failing to object to the closure, and appellate counsel was ineffective for not raising trial counsel's failure.
2. The trial judge erred in failing to recuse himself from the trial sua sponte, trial counsel was ineffective for failing to make a timely motion to substitute the judge, and appellate counsel was ineffective for not raising the issue.
3. The Belleville police department destroyed exculpatory evidence, i.e., fingerprint evidence on the victim's vehicle and evidence pertaining to defendant's bicycle, in bad faith, and trial counsel was ineffective for failing to object to the destruction of the exculpatory evidence.
4. The State spoliated evidence essential to his defense by wiping the knife used in the murder clean of fingerprints and blood, trial counsel was ineffective for failing to make a timely objection to the spoliation of the evidence, and appellate counsel was ineffective for not raising trial counsel's failure to raise the issue and for not raising the issue on appeal.
5. A hearing should have been conducted concerning defendant's fitness to stand trial because it was apparent from the record that defendant was ingesting psychotropic medication at the trial and sentencing, trial counsel was ineffective for failing to request a fitness hearing, and appellate counsel was ineffective for failing to raise the issue of trial counsel's ineffectiveness.
6. Trial counsel was ineffective because he withheld exculpatory evidence from defendant during the trial.
7. Trial counsel was ineffective for not filing a motion to reconsider sentence, and appellate counsel was ineffective for failing to raise trial counsel's failure.
The facts adduced at the trial are as follows. Defendant and his wife Tracy separated in late May 1990. Tracy took the couple's two children with her. On the evening of July 27, 1990, Tracy went to Dundee's, a bar, where she met 10 to 12 other women for a mini reunion. That evening, defendant was riding his bicycle in the area. Defendant saw James Fogarty, Tracy's brother, and asked Fogarty for a ride to a park. Defendant's remarks to Fogarty raised the inference that defendant was looking for Tracy. Defendant ultimately went to Dundee's, where he saw Tracy, but he did not approach her. Tracy and the women with her prepared to leave Dundee's. Defendant left Dundee's before them, so Tracy stayed, not wanting to encounter defendant outside in the parking lot.
After leaving Dundee's, defendant went to a nearby bar, Crehan's, where he asked the barmaid, Judy Gamble, for a knife "to fix a tire." When Judy gave defendant a butter knife, he refused the knife, saying it was not sharp enough. Judy gave defendant a butcher knife, which was six to eight inches long and had a brown wooden handle.
Defendant rode his bicycle back to Dundee's. Defendant went inside and approached Tracy, who was sitting down, and asked her if he could talk to her. Tracy said no. Defendant pushed Tracy out of her chair onto the floor and jumped on top of her. Witnesses stated that defendant's arm went up and down several times. Tracy crawled away from defendant when several persons restrained him until the police arrived. Defendant was lying face down on the floor when the police handcuffed and arrested him. When the police lifted defendant from the floor, there was a knife lying underneath him. The knife was taken by the police as evidence. Judy Gamble identified the knife as the one she had given defendant the night of Tracy's murder.
The evidence revealed that Tracy was dead when the police arrived at Dundee's. The pathologist testified that Tracy died of a knife wound to her chest because her aorta, the main blood vessel of the body, was pierced. The pathologist also stated that Tracy had a total of seven stab wounds to her body.
At the time of the crime, there were approximately 25 to 30 persons present at Dundee's. The two women with Tracy testified that they did not see a weapon in defendant's hand when he approached Tracy. Two employees of Dundee's and a patron also testified that they did not see a knife in defendant's hands when he approached Tracy; however, one of the witnesses thought that defendant had a gun in his hand. All of the eyewitnesses testified that they saw defendant on top of Tracy and that it appeared that defendant was striking her.
A friend of defendant's, Ron Ulrich, testified that defendant came to his home on June 29, 1990, a month before Tracy's death. Defendant was upset about Tracy leaving him and taking the children. Defendant told Ulrich that Tracy was not letting him see the children and that he would kill her before she would "get away with that."
Mental health experts testified for both defendant and the State. Their testimony established that defendant suffers from major depression, panic disorder, alcohol dependence, drug abuse, and borderline personality disorder. The experts found that defendant has a mental illness but that he was sane at the time of the incident. Defendant's expert testified that he did not think defendant was able to form the intent to commit murder.
The jury found defendant guilty of first-degree murder. The court sentenced defendant to 55 years' imprisonment.
The standard of review for a post-conviction petition dismissed without conducting an evidentiary hearing is de novo plenary review. People v. Coleman, 183 Ill. 2d 366 (1998). An evidentiary hearing for a post-conviction petition is not a matter of right but is only required when a petitioner makes a substantial showing of a violation of constitutional rights. Coleman, 183 Ill. 2d at 381. A petitioner's allegations in the post-conviction petition must be supported by the record in the case or by accompanying affidavits; however, nonfactual and nonspecific assertions that amount to conclusions are not sufficient to require a hearing under the Act. Coleman, 183 Ill. 2d at 381. Where the allegations in a post-conviction petition are contradicted by the trial record, the dismissal of the petition is proper. Coleman, 183 Ill. 2d at 382. Well-pleaded facts that are not positively rebutted by the record are to be taken as true at the dismissal stage of a post-conviction proceeding. Coleman, 183 Ill. 2d at 385.
A post-conviction petition is a collateral attack on a judgment, enabling the defendant to challenge a conviction or sentence for a violation of constitutional rights. People v. Johnson, 183 Ill. 2d 176 (1998). Issues considered on direct appeal are res judicata regarding matters actually decided, and issues that could have been raised in ...