People v. Lear , 175 Ill. 2d 262 ( 1997 )

CHIEF JUSTICE HEIPLE

delivered the opinion of the court:

Following a jury trial in the circuit court of Montgomery County, defendant, Tuhran Lear, was convicted of first degree murder, attempted first degree murder, and two counts of armed robbery. The jury found defendant eligible for the death penalty and found no mitigating circumstances sufficient to preclude imposition of the death penalty. Defendant was sentenced to death and also to two concurrent 60-year prison terms for armed robbery and attempted murder.

On direct appeal, this court affirmed the convictions and sentences. People v. Lear, 143 Ill. 2d 138 (1991). Defendant subsequently filed a petition for post-conviction relief which he later amended and supplemented. Of the 11 claims raised in defendant’s post-conviction petition, nine were dismissed by the court without an evidentiary hearing. After an evidentiary hearing on the remaining two claims, the court denied defendant’s post-conviction petition.

Before this court, defendant argues that (1) defense counsel was ineffective in failing to request a voir dire question regarding racial bias; (2) defense counsel was ineffective in failing to properly present the defense theory that defendant was not the shooter; (3) defense counsel was ineffective at the capital sentencing hearing; and (4) defendant was denied his constitutional rights when evidence of other crimes was admitted as aggravating evidence during the sentencing hearing. We affirm.

The evidence at trial disclosed that, on September 3, 1988, defendant, accompanied by Randy Thomas, entered a gas station in Farmersville, Illinois, and emptied the cash register. During the robbery, defendant shot the store manager, Gregory McAnarney, and an employee, Robert Bishop. McAnarney died as a result of the gunshot wound but Bishop survived and later testified against defendant.

Further details regarding the evidence presented at defendant’s trial are set forth in the opinion disposing of defendant’s direct appeal (Lear, 143 Ill. 2d 138) and will be referred to below only as necessary to dispose of defendant’s instant appeal.

ANALYSIS

A proceeding under the Post-Conviction Hearing Act is a collateral attack on the judgment of conviction which is limited to constitutional issues which were not, and could not have been, presented on direct review. People v. Gosier, 165 Ill. 2d 16, 20 (1995). Issues decided by a reviewing court on a prior direct appeal are res judicata as to issues actually decided; issues that could have been presented during direct review, but were not, are deemed waived for purposes of post-conviction review. People v. Franklin, 167 Ill. 2d 1, 9 (1995). On review, the trial court’s determinations regarding the post-conviction petition will not be disturbed unless they are manifestly erroneous. Franklin, 167 Ill. 2d at 9.

I. Ineffective Assistance of Counsel

In order for defendant to succeed on a claim of ineffective assistance of counsel, he must show (1) that his counsel’s performance was deficient in that it fell below an objective standard of reasonableness and (2) that counsel’s deficient performance so prejudiced defendant that there is a reasonable probability that the outcome of the trial would have been different without counsel’s errors. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Simms, 168 Ill. 2d 176 (1995). This standard applies to claims of ineffective assistance of both trial and appellate counsel. People v. Foster, 168 Ill. 2d 465 (1995). A reviewing court may reject a claim of ineffective assistance of counsel by finding that defendant was not prejudiced by counsel’s representation without determining whether counsel’s performance was deficient. People v. Erickson, 161 Ill. 2d 82, 90 (1994).

A. Voir Dire

Defendant, an African-American, argues that his trial counsel was ineffective in failing to inform the jury that the victim was white and in failing to draft and tender a voir dire question regarding racial bias. Initially, the State argues that this issue is waived because it was plainly discernible from the record and thus could have been raised on direct appeal. We find that this argument is not waived since it is based on evidence first presented during the post-conviction hearing, during which defendant testified that prior to voir dire he had asked defense counsel to question prospective jurors about racial bias.

"[T]he Constitution requires a trial judge to question venirepersons specifically regarding racial prejudice if 'special circumstances’ exist that suggest a constitutionally significant likelihood that racial prejudice might infect a defendant’s trial.” People v. Peeples, 155 Ill. 2d 422, 459 (1993). Such special circumstances exist where racial issues are " 'inextricably bound up with the conduct of the trial.’ ” Peeples, 155 Ill. 2d at 459-60, quoting Ristaino v. Ross, 424 U.S. 589, 596-97, 47 L. Ed. 2d 258, 264, 96 S. Ct. 1017, 1021 (1976). In general, that the defendant and victim are of different races does not in itself create a special circumstance. Peeples, 155 Ill. 2d at 460. However, when a capital defendant is on trial for an interracial crime, the defendant is entitled to have prospective jurors informed of the race of the victim and questioned about racial bias, but only as to the sentencing phase, and only if the defendant specifically requests such an inquiry. Turner v. Murray, 476 U.S. 28, 37, 90 L. Ed. 2d 27, 37, 106 S. Ct. 1683, 1688 (1986).

After reviewing the record, we find that the circuit court’s decision to dismiss this claim in the post-conviction petition was not manifestly erroneous. During the post-conviction hearing, defendant testified that he asked defense counsel to question prospective jurors about racial bias. However, defense counsel testified that defendant made no such request. The issue was thus one of credibility since counsel and defendant gave different views of what transpired prior to and during voir dire. The trial court did not find defendant credible on this point and thus dismissed the claim.

Since defendant, according to the trial court, did not ask for an inquiry into racial bias, counsel was not required to make such an inquiry. Turner, 476 U.S. at 37, 90 L. Ed. 2d at 37, 106 S. Ct. at 1688. Whether to ask such questions was then left to counsel as a matter of trial strategy, which is protected under Strickland. Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066; People v. Steidl, 142 Ill. 2d 204, 240 (1991) (trial counsel’s strategic decisions are generally protected by a strong presumption that they reflect sound strategy rather than incompetence). Accordingly, we affirm the dismissal of this claim.

B. Trial

1. Shooter Defense

The defense theory at trial was that Thomas, rather than defendant, did the shooting during the robbery. Defendant argues that counsel was ineffective for failing to admit a prior statement made by the victim, Bishop, which defendant contends supported his theory of the case. The trial court dismissed this claim, finding that defendant failed to satisfy the prejudice prong of Strickland. See Erickson, 161 Ill. 2d at 90.

We first note that this issue is not barred by the doctrine of res judicata, as the State contends. On direct appeal, this court addressed whether the trial court erred in refusing to allow impeachment of Bishop using the reporter’s testimony. Lear, 143 Ill. 2d at 145. However, the court never addressed whether counsel was ineffective in failing to have Bishop’s prior statement admitted. The State further argues that the issue is waived, as it could have been raised on direct appeal, to which defendant responds that the issue is preserved due to the ineffectiveness of appellate counsel in failing to raise the issue. We thus consider the alleged ineffectiveness of appellate counsel.

Bishop, who was shot in the neck during the robbery, testified at trial that defendant came into the store and asked for the rest room. Bishop pointed to the rest room and defendant walked toward it, leaving Bishop’s line of sight. Defendant’s accomplice, Thomas, who was taller than defendant, then asked Bishop how far it was to Chicago. A few moments later, Bishop heard a noise behind him, upon which he was shot in the neck.

Prior to trial, Bishop allegedly told a newspaper reporter that the first man who entered the store was the taller of the two, which, if correct, would suggest that the taller man, Thomas, fired the shots. At trial, defense counsel cross-examined Bishop about his statement to the reporter and Bishop replied that he did not recall what he said to the reporter. However, counsel failed to ask Bishop whether the taller man entered the store first. When counsel later attempted to impeach Bishop with the reporter’s testimony, the trial court ruled that there was nothing to impeach since Bishop never testified about the relative heights of the two assailants.

Defendant now argues that counsel was ineffective when he failed to have Bishop’s prior statement admitted, and specifically contends that counsel erred when he: (1) failed to obtain an affidavit from Bishop, which could have been used substantively or to refresh Bishop’s recollection; (2) failed to cross-examine Bishop about who came into the store first; (3) failed to properly preserve this issue by making an offer of proof of the reporter’s testimony; and (4) failed to request a jury instruction allowing substantive use of Bishop’s prior statement.

However, had Bishop’s statement to the reporter been admitted as substantive evidence, it would not have impacted the outcome of the trial. During direct examination, Bishop, using a photograph, unequivocally identified Thomas as the man who stayed in front of him and asked the distance to Chicago. Another witness testified that she saw defendant with the gun in his waistband as he left the gas station after the robbery. Also, when defendant was picked up by police he had the murdered victim’s wallet in his pocket and dried blood on his shoe. Moreover, on redirect, Bishop explained that he was distracted while making the statement to the reporter because his wife was at work and he was fixing supper while supervising his four young children.

In light of this evidence, defendant was not prejudiced when counsel failed to introduce into evidence Bishop’s prior statement. Since we find no prejudice, we affirm the trial court’s dismissal of this claim of ineffective assistance of counsel. Erickson, 161 Ill. 2d at 90.

C. Sentencing

Defendant raises various ineffective-assistance-of-counsel claims arising out of the sentencing hearing. Therein, the State presented aggravating evidence of two prior murders committed by defendant. First, the State presented evidence of a 1974 juvenile murder conviction which occurred when defendant was 15 years old. Second, the State presented evidence that defendant committed a robbery/murder at'a gas station in Collinsville, Illinois, nine days before the instant crime.

Defense counsel presented three witnesses in mitiga-. tian. Defendant’s girlfriend testified that she had a good relationship with defendant and that he was "always there” for her when she needed help. She also stated that defendant had a good relationship with his young daughter. In addition, defendant’s mother testified that defendant had been an obedient child and an average student. Finally, defendant’s sister testified that he was a good child who got along well with his brothers and sisters. She also stated that defendant was a good parent who supported his daughter regularly.

1. Counsel’s Inexperience and Limited Resources

Defendant argues that trial counsel’s inexperience and lack of resources constituted a per se violation of his right to effective assistance of counsel. Defendant first argues that trial counsel was per se ineffective because no co-counsel was appointed. Defendant cites to the guidelines for capital cases provided by the American Bar Association and the National Legal Aid and Defender Association, which recommend that two attorneys be appointed to represent each capital defendant. Second, defendant argues that trial counsel was per se ineffective because he was young, inexperienced, and had insufficient resources. Testimony by defense counsel at the post-conviction hearing showed that: counsel graduated from law school two years prior to his appointment as counsel for defendant; this was both counsel’s first homicide and first capital case; counsel had never received any formal training for defending a capital case; counsel’s office employed no other attorneys and no investigator; the only assistance received by counsel was 60 hours of legal research help from another attorney; and, during the time counsel was representing defendant, he was responsible for numerous other pending cases.

Having a counsel with limited resources and limited experience is not a circumstance which this court has held to constitute per se ineffective assistance of counsel. See, e.g., People v. Hattery, 109 Ill. 2d 449, 461 (1985) (counsel failed to present a defense); People v. Brandon, 162 Ill. 2d 450 (1994) (counsel failed to request a fitness hearing for a defendant taking psychotropic medication). Therefore, the proper inquiry is whether counsel’s representation fell below the standard of ineffective assistance of counsel set forth in Strickland.

Applying Strickland to the instant case, we reject defendant’s ineffective-assistance claim because these alleged deficiencies did not result in prejudice to defendant. Erickson, 161 Ill. 2d at 90. Defendant was convicted by overwhelming evidence, after which substantial aggravating evidence was presented, including evidence of two prior murders committed by defendant. Defendant has failed to show how additional personnel or financial resources would have resulted in a sentence other than death. We thus affirm the trial court’s dismissal of defendant’s claim of ineffective assistance of counsel based on counsel’s level of experience and amount of resources.

2. Continuance of Sentencing Hearing

' During the sentencing hearing, counsel unsuccessfully requested a continuance in order to further prepare for the proceedings. Defendant now argues that counsel was ineffective in failing to request a continuance prior to the sentencing hearing in order to further investigate the Collinsville crime and the juvenile conviction.

The State contends that these issues are waived since they could have been raised on direct appeal. With regard to the Collinsville crime, we agree since no new evidence was presented about that crime during the post-conviction proceedings. However, a claim based on failure to investigate the juvenile crime was not waived because it was based on evidence first presented during the post-conviction proceedings.

During the post-conviction proceedings, defendant presented evidence that, as a juvenile, he committed murder because he was "provoked over a period of time and probably was fed up with being picked on.” Such evidence, however, is no justification for killing another human being and would have been insufficient to counteract the aggravating nature of the juvenile murder conviction. Thus, defendant was not prejudiced by counsel’s failure to request a continuance to allow further investigation that may have led to the discovery of this evidence. Accordingly, the trial court properly dismissed this claim of ineffective assistance of counsel. Erickson, 161 Ill. 2d at 90.

3. Mitigation

Next defendant argues that trial counsel was ineffective in preparing and presenting mitigating evidence. He argues that counsel was ineffective in that he (1) failed to renew a previously denied request for funds to hire a mitigation expert; (2) used available funds to acquire legal research assistance rather than mitigation investigation assistance; (3) failed to adequately question defendant’s friends and family members; and (4) failed to argue to the jury that defendant’s past substance abuse impaired his judgment. The State responds that none of these instances were a violation of defendant’s right to effective assistance of counsel because defendant failed to show how these omissions prejudiced defendant. Specifically, the State contends that doing the above would not have uncovered mitigating evidence sufficient to change the outcome of this case.

During the post-conviction hearing, defendant presented additional mitigating evidence that was not presented during sentencing. Three former correctional officers testified as to defendant’s good conduct while he was in juvenile detention. Angela Cranberry, who lived with defendant for several years and who was the mother of defendant’s daughter, testified that he was a good family man, provided well for their daughter and helped around the house while she was attending college. She also stated that he was good with kids, including his own daughter and Angela’s son, and that he was a good worker. Angela’s father, sister and aunt also testified to these facts. A mitigation specialist from the Capital Resource Center prepared defendant’s social history, outlining his disadvantaged childhood and lack of childhood supervision. Dr. Risolo, a psychiatrist, testified as to defendant’s substance abuse history and his mother’s failure to teach values. Finally, a friend of defendant testified about defendant’s drug and alcohol use during the years prior to the instant crime.

The additional evidence presented through the testimony of defendant’s family at the post-conviction hearing was largely cumulative of evidence presented during the sentencing hearing. The remainder of the additional evidence was not sufficiently mitigating, in light of the aggravating evidence, to change the outcome of the sentencing hearing. We thus find that defendant was not prejudiced by failure to present his disadvantaged childhood and substance abuse history (see People v. Christiansen, 116 Ill. 2d 96, 129 (1987) (death penalty appropriate despite mitigating evidence that included drug addiction and a deprived childhood); People v. Johnson, 146 Ill. 2d 109, 145 (1991) (death penalty appropriate despite mitigating evidence that included drug and alcohol abuse, as well as abuse as a child)), or his good behavior while incarcerated as a juvenile (see People v. Garcia, 165 Ill. 2d 409, 437 (1995) (defendant’s good behavior in prison not sufficiently mitigating to preclude a death sentence)). Accordingly, we affirm the trial court’s dismissal of this claim.

4. Psychological / Physiological Evidence

Defendant argues that counsel was ineffective for failing to seek mitigating evidence concerning his possible psychological and physiological defects. Specifically, defendant argues that counsel was ineffective because he (1) failed to obtain the court file of defendant’s juvenile conviction, which contained a fitness report and a psychiatric report; (2) failed to obtain a psychological evaluation in response to the information contained in the juvenile court file; and (3) failed to obtain a neurological evaluation to determine if defendant had brain damage as a result of past substance abuse.

At the post-conviction hearing, a psychiatrist, Dr. Risolo, testified regarding her psychological evaluation of defendant prior to the post-conviction hearing. Dr. Risolo testified that defendant had antisocial personality disorder and mild neurotic depression. She further testified that defendant’s substance abuse might have contributed to some neurological disfunction but stated that no disfunction had ever been conclusively proven.

We find that defendant was not prejudiced by counsel’s failure to present this evidence during the sentencing hearing. Given the overwhelming aggravating evidence and the relatively weak mitigating evidence, evidence of defendant’s antisocial personality disorder and depression would not have resulted in a sentence other than death. See People v. Montgomery, 112 Ill. 2d 517, 533 (1986) (death penalty appropriate despite defendant’s antisocial personality disorder and extreme mental and emotional disturbances). Furthermore, Dr. Risolo’s testimony about a possible, unproven neurological disfunction also would have been insufficient to change the outcome of the sentencing hearing. See Montgomery, 112 Ill. 2d at 533. Since defendant was not prejudiced by the failure to present this evidence, we affirm the dismissal of this claim of ineffective assistance. Erickson, 161 Ill. 2d at 90.

5. Codefendant’s Lesser Sentence

Defendant, citing Messer v. State, 330 So. 2d 137 (Fla. 1976), argues that counsel was ineffective in failing to argue, as a nonstatutory mitigating circumstance, the lesser sentence given to Thomas, his codefendant. As the State observes, this precise argument was rejected by this court in People v. Page, 156 Ill. 2d 258, 270-72 (1993). Accordingly, we affirm the dismissal of this claim of the post-conviction petition.

6. Prosecutor’s Closing Argument

Defendant argues that defense counsel was ineffective when he failed to object to the prosecutor’s request that the jury "recommend” a death sentence. Defendant argues that the statement improperly misled the jury regarding its responsibility for imposing the death penalty. As the State correctly observes, this issue is waived because it was not raised on direct appeal and is not based on any new evidence presented during the post-conviction proceedings. However, insofar as defendant argues that the issue is preserved for review because it was not raised on direct appeal due to the ineffectiveness of appellate counsel, we will review the claim.

The State may not, in closing argument, mislead the jury to believe that the ultimate responsibility for a defendant’s death penalty rests elsewhere. Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985). When such an allegation is made, "[t]he relevant inquiry *** is whether in consideration of all facts and circumstances, the State has misled the jury regarding its sentencing role. No single factor is necessarily dispositive.” People v. Flores, 153 Ill. 2d 264, 287 (1992). Therefore, in order to determine whether the argument was improper, we must look at the State’s closing argument as a whole.

In two instances during her closing argument, the prosecutor asked the jury to "impose and recommend the death sentence.” We find that those statements did not improperly mislead the jury because use of the word "impose” adequately counteracted any improper effect resulting from use of the word "recommend.” As her final words to the jury, the prosecutor stated, "We ask you to recommend that the death sentence be imposed. Thank you.” The jury was not misled by this statement either because, only a few moments earlier, the prosecutor had expressly acknowledged the weight of the jury’s responsibility for the death penalty, recognizing "that for responsible people [imposing and recommending the death penalty] is not an easy thing.” Furthermore, the jury instructions clearly apprised the jury of its responsibility for imposing the death penalty.

Under these circumstances, we find that the State did not improperly diminish the jury’s sense of responsibility. Since the State’s closing argument was not misleading, appellate counsel was not ineffective for failing to raise the issue on direct appeal and the issue is therefore waived. Accordingly, we affirm the trial court’s dismissal of this claim of the post-conviction petition.

7. Defense’s Closing Argument

Defendant argues that counsel was ineffective in his closing argument during the second phase of the sentencing hearing because he merely focused upon the death penalty generally without arguing mitigating circumstances. On direct appeal, this court stated: "Defendant complains that he received ineffective assistance at the second stage of the death penalty hearing in that defense counsel *** confined his argument to the jury to a plea that there is no justification to take a human life. Defendant’s claims are meritless.” Lear, 143 Ill. 2d at 151-52. Since this issue was addressed on direct appeal it is now res judicata and may not be relitigated during this post-conviction appeal. We thus affirm the. circuit court’s dismissal of this claim.

II. Aggravating Evidence

Defendant argues that evidence of a crime he committed in Collinsville, Illinois, was improperly used as aggravating evidence. First, defendant argues that he was denied due process, effective assistance of counsel, and his right to be free from cruel and unusual punishment when evidence of the Collinsville crime was admitted in the absence of requested counsel for the Collinsville crime. Second, defendant argues that he was denied effective assistance of counsel when defense counsel failed to object to the evidence’s introduction on due process grounds.

The State responds that any challenge to the introduction of evidence of the Collinsville crime is res judicata because, during direct appeal, this court affirmed the use of this evidence when it stated:

"Defendant asserts that the trial court erred in allowing the jury to consider evidence of unadjudicated criminal conduct during the second stage of the sentencing hearing. We disagree. This court has previously held that evidence showing the defendant’s commission of other crimes or acts of misconduct is admissible even though the defendant was not prosecuted or convicted for such conduct. People v. Ramirez (1983), 98 Ill. 2d 439, 460-61.” Lear, 143 Ill. 2d at 152-53.

We agree that this issue cannot be raised again here and thus affirm the trial court’s decision to dismiss this claim.

CONCLUSION

For the reasons stated above, we affirm the judgment of the circuit court. We direct the clerk of this court to enter an order setting Wednesday, May 21, 1997, as the date on which defendant’s sentence of death is to be carried out. The defendant shall be executed in a manner provided by law. 725 ILCS 5/119 — 5 (West 1994). The clerk of this court shall send a certified copy of the mandate in this case to the Director of Corrections, the warden at Stateville Correctional Center, and the warden of the institution where the defendant is now confined.

Affirmed.