The opinion of the court was delivered by: Justice Garman
Docket No. 90137-Agenda 8-September 2002.
Petitioner, Elton Williams, was convicted following a jury trial of the first degree murder of police officer Timothy Simenson and sentenced to death. This court affirmed his conviction and sentence on direct appeal. People v. Williams, 181 Ill. 2d 297 (1998). After his petition for a writ of certiorari to the United States Supreme Court was denied (Williams v. Illinois, 525 U.S. 882, 142 L. Ed. 2d 157, 119 S. Ct. 192 (1998)), he filed a timely petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)). The State filed a motion to dismiss, which the circuit court granted. Because petitioner was sentenced to death for the underlying convictions, his appeal lies directly to this court. 134 Ill. 2d R. 651(a).
In this appeal, he argues that the circuit court erred by dismissing three of his post-conviction claims: (1) that juror misconduct deprived him of a fair trial; (2) that trial counsel was ineffective for failing to present expert testimony at the aggravation/mitigation stage of the sentencing hearing that would have linked his childhood history of abuse to his adult behavior; and (3) that appellate counsel was ineffective for failing to raise a claim pursuant to Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), on direct appeal. With regard to the first claim, he also argues that the circuit court erred in limiting discovery and by ordering his attorney and investigator not to contact jurors directly.
Subsequent to the filing of this appeal, but after this court heard oral argument and took the matter under advisement, the Governor commuted petitioner's death sentence to life imprisonment without the possibility of parole or mandatory supervised release. Commutation removes the judicially imposed sentence and replaces it with a lesser, executively imposed sentence. People ex rel. Johnson v. Murphy, 257 Ill. 564, 566 (1913); Black's Law Dictionary 274 (7th ed. 1999). Thus, because circumstances have changed during the pendency of the appeal that prevent this court from rendering effectual relief (People v. Jackson, 199 Ill. 2d 286, 294 (2002)), the sentencing issue is rendered moot. See, e.g., Lewis v. Commonwealth, 218 Va. 31, 38, 235 S.E.2d 320, 325 (1977); State v. Mitchell, 239 Or. 87, 88, 396 P.2d 572, 573 (1964). We, therefore, address only the nonsentencing issues.
This court has previously described the facts underlying petitioner's conviction in our opinion on his direct appeal. Williams, 181 Ill. 2d 297. Thus, we will refer to those facts only as necessary in the discussion of the remaining issues raised in petitioner's post-conviction petition.
The Post-Conviction Hearing Act provides a remedy to a criminal defendant whose federal or state constitutional rights were substantially violated in his original trial or sentencing hearing. People v. Towns, 182 Ill. 2d 491, 502 (1998). A petition for post-conviction relief is not an appeal of the underlying judgment. Rather, it is a collateral proceeding and, as such, permits inquiry only into constitutional issues that were not, and could not have been, adjudicated on direct appeal. Towns, 182 Ill. 2d at 502. Thus, issues that were raised and decided on direct appeal are barred from consideration by the doctrine of res judicata; issues that could have been raised, but were not, are considered waived. Towns, 182 Ill. 2d at 502-03. The doctrines of res judicata and waiver will, however, be relaxed in three circumstances: where fundamental fairness so requires, where the waiver stems from the ineffective assistance of appellate counsel, or where the facts relating to the claim do not appear on the face of the original appellate record. People v. Whitehead, 169 Ill. 2d 355, 371-72 (1996).
Post-conviction proceedings in capital cases are governed by section 122-2.1 of the Act (725 ILCS 5/122-2.1 (West 1998)), which requires the circuit court to determine initially "whether the petitioner, if indigent, wants to be represented by counsel. After the petitioner makes that choice, the matter is then docketed for further proceedings." People v. Thomas, 195 Ill. 2d 37, 40 (2001). The State must then either answer the petition or move to dismiss it. 725 ILCS 5/122-5 (West 1998); Thomas, 195 Ill. 2d at 40. If the State moves to dismiss the petition, the circuit court must examine and rule on the legal sufficiency of each of defendant's claims, taking all well-pleaded facts as true. People v. Ward, 187 Ill. 2d 249, 255 (1999). If the allegations of the post-conviction petition, supported by the trial record and any accompanying affidavits, do not make a substantial showing of a constitutional violation, the petition may be dismissed. People v. Orange, 195 Ill. 2d 437, 448 (2001). If the petition does make a substantial showing of a constitutional violation, the matter proceeds to a hearing on the merits of petitioner's claims. People v. Hobley, 182 Ill. 2d 404, 428 (1998).
This court acquired jurisdiction over the present case because petitioner was under a sentence of death at the time he file his notice of appeal from the denial of his post-conviction petition. Oral arguments were heard in September 2002, and the matter was taken under advisement. After petitioner's sentence was commuted, this court issued an order retaining jurisdiction. Although petitioner is now serving a life sentence, we continue to have jurisdiction. In the interest of judicial economy, we choose to dispose of this matter, rather than transfer it to the appellate court.
Because the circuit court dismissed petitioner's claims without a hearing on the basis that he failed to make a substantial showing of a constitutional violation, our review of the issues raised in this appeal is de novo. People v. Coleman, 183 Ill. 2d 366, 389 (1998). As to the additional claim that the circuit court erred by limiting discovery, we review the circuit court's decisions regarding discovery for abuse of discretion. People v. Fair, 193 Ill. 2d 256, 265 (2000).
A. Juror Misconduct and Denial of Discovery
The investigator employed by post-conviction counsel was able to identify 7 of the 14 jurors (12 jurors and 2 alternates) who were present for petitioner's trial. He spoke to several of them and left his card with others with a request that they contact him for an interview. One juror, John Sinadinos, provided the affidavit that is the basis for the claim of juror misconduct. In his sworn statement, Sinadinos described an exchange that he had with another juror during the trial. The other juror mentioned that she "had a conversation" with her husband about one of the issues in the case. When a third juror commented that they had been instructed not to discuss the case with others, she responded that it was "hard not to."
The circuit court denied petitioner's motion for discovery of the names and addresses of unidentified jurors. In addition, the circuit court ordered defense counsel and his investigator to cease their efforts to contact jurors directly, based in part on an assertion by the State that several jurors had contacted the State's Attorney's office because they were upset by the investigator's request for an interview.
In response to a suggestion by the State, the circuit court ordered the jury commission to send a letter to the jurors explaining that petitioner's attorney wished to speak to them. The letter further stated that the jurors had a right to speak to the attorney as well as "the right to be left alone." The jurors were instructed to call a certain telephone number if they were willing to be interviewed. They were also told to call the chief judge's office "immediately" if they were "contacted by any attorneys involved in the current proceedings." If they were not willing to be interviewed, the jurors did not need to respond to the letter. "The choice is yours," the letter emphasized. The letter was reviewed and approved by the circuit court before mailing.
Petitioner objected to the use of the letter, arguing that the wording sent an implied message that the jurors should not respond. This court denied his petition for leave to file a petition for a writ of prohibition to prevent the mailing of the letters, as well as his motion to issue a supervisory order to vacate the circuit court's order banning any further contact with the jurors. The letters were sent; none of the jurors responded.
Because none of the jurors came forward voluntarily and because counsel and the investigator were prohibited from making any further efforts to contact the jurors directly, petitioner filed a motion to depose the jurors. The circuit court denied this motion.
Neither the discovery rules for civil cases nor the rules for criminal cases apply to proceedings under the Act. People ex rel. Daley v. Fitzgerald, 123 Ill. 2d 175, 181-83 (1988). However, the circuit court has the inherent discretionary authority to order discovery in post-conviction proceedings. Fair, 193 Ill. 2d at 264. This authority must be exercised with caution, because of the potential for abuse of the discovery process and because of the limited scope of post-conviction proceedings. Fair, 193 Ill. 2d at 264. Thus, discovery should be allowed only after the moving party demonstrates good cause for the request. Fair, 193 Ill. 2d at 264-65, citing Daley, 123 Ill. 2d at 183.
Petitioner asserts that the Sinadinos affidavit demonstrates that at least one juror failed to follow the trial court's instruction that she not discuss the case with anyone. This information, he claims, is sufficient to demonstrate good cause, specifically, the possibility of an improper outside influence on the juror in question, who has not yet been identified. He argues that a finding of good cause is implicit in the circuit court's order that the jurors be contacted by letter. As such, he argues that it was error to deny his request to discover the names and addresses of the jurors. The ...