Docket No. 82711-Agenda 1-September 1999.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
AARON PATTERSON, Appellant.
Opinion filed August 10, 2000.
JUSTICE RATHJE delivered the opinion of the court:
Defendant, Aaron Patterson, appeals from the trial court'sdismissal of his post-conviction petition. Because defendant wassentenced to death for the underlying murder conviction, heappeals directly to this court. See 134 Ill. 2d R. 651(a).
BACKGROUND
Procedural Background
A jury in the circuit court of Cook County convicteddefendant of the murders of Vincent and Rafaela Sanchez.Subsequently, the jury found that there were no mitigating factorssufficient to preclude a sentence of death, and the trial courtsentenced defendant to death. Defendant appealed, and weaffirmed defendant's convictions and sentence. People v.Patterson, 154 Ill. 2d 414 (1992). The Supreme Court denieddefendant's petition for a writ of certiorari. Patterson v. Illinois,510 U.S. 879, 126 L. Ed. 2d 175, 114 S. Ct. 219 (1993).
Thereafter, defendant filed a timely post-conviction petition.The State moved to dismiss the petition, and the trial court grantedthe State's motion. Defendant now appeals, arguing first that hewas denied the effective assistance of counsel when his attorneyfailed to (a) discover and present additional evidence to supportdefendant's claim that his confession was coerced; (b) discoverand present evidence to support defendant's motion to reopen hismotion to suppress; (c) present evidence at trial that defendant'sconfession was coerced; (d) present, during the post-trialproceedings, new evidence relating to defendant's allegations oftorture; (e) supplement the record on direct appeal or seek aremand; (f) interview witnesses who could have providedexculpatory testimony; (g) cross-examine witnesses properly; (h)seek to remove for cause the judge who presided over the pretrialproceedings; (i) argue that the trial court did not ask the properquestions during voir dire; (j) object to the use of residentialburglary as an eligibility and aggravating factor; and (k) object tothe trial court's praise of the jury. In addition, defendant arguesthat (1) new evidence demonstrates that the trial court erred indenying defendant's motion to suppress statements; (2) the Stateknowingly used perjured testimony; (3) he was denied his right toa fair trial when a police officer volunteered that defendant hadtaken a polygraph; and (4) the State violated its duties under Bradyv. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963),by failing to tender the results of fingerprint examinations.
Pretrial Proceedings
In May 1986, defendant and Eric Caine were indicted for theSanchez murders. Their case originally was assigned to JudgeJames Bailey. Defendant sought a substitution of judge. Ratherthan randomly assigning a new judge, Judge Bailey assigned thecase to Judge Arthur Cieslik. Defendant moved to vacate theassignment to Judge Cieslik, and that motion was denied.Subsequently, defendant sought leave to file a writ of mandamusordering that the case be assigned randomly. This court denieddefendant's motion.
Thereafter, defendant filed a motion to suppress statementsthat he had made while in police custody. After a hearing, the trialcourt denied that motion. Defendant's attorney then filed arenewed motion to suppress statements or to reopen the evidence.The crux of defendant's argument in his motions was that, toobtain defendant's confession, the police officers struck him,attempted to suffocate him, and threatened him with a gun. Thetrial court, Judge John Morrissey(1) presiding, denied that motion.Thereafter, defendant and Caine were simultaneously tried beforeseparate juries.
Defendant's Trial
The evidence at defendant's trial established that, on April 19,1986, Chicago police officers discovered the victims' badlydecomposed bodies in the Sanchez home. The police were calledwhen Wayne Washington, a teenager who routinely performed oddjobs for Vincent, discovered that the Sanchezes' door was openand that there was blood on the floor. Washington told the policethat he had seen Caine and DeEdward White across from theSanchez house.
The police took White into custody to question him about theSanchez murders. Subsequently, Marva Hall, White's 16-year-oldcousin, told the police that defendant had offered to sell her achain saw and a shotgun. Defendant had claimed that he obtainedthe items from two elderly Mexicans that he had stabbed to death.Under cross-examination, Hall admitted that she had told adefense investigator that defendant had not told her that he hadcommitted the murders. She explained, however, that she told theinvestigator this only because she was scared of defendant.
Several days after Hall spoke with the police, defendant wasarrested on an unrelated charge. Detective James Pienta testifiedthat, when he learned that defendant had been arrested, hequestioned him about the Sanchez murders. Defendant told Pientathat Caine had approached defendant and said that he needed guns.Defendant and Caine knew that the Sanchezes had guns. Theyreached the house by traveling down the Illinois Central railroadtracks. Once at the house, defendant waited in the garage whileCaine entered the house. Shortly thereafter, Caine came runningout with a shotgun in a duffle bag, and the two fled.
When Pienta asked defendant to elaborate, defendant addedthat he had entered the Sanchez house and "came up like-up likea straight up Ninja" and "shanked" the "old man" because he wastaking too much time to get the "good stuff." Rafaela beganscreaming so defendant "shanked" her too. Thereafter, defendantrepeated the same story to Pienta and Assistant State's AttorneyKip Owen. At this time, defendant also stated that he had thrownthe knife away on the railroad tracks. Although the police searchedthe railroad tracks for the knife, they never discovered it.
Former Assistant State's Attorney Peter Troy testified thatdefendant told him that Caine, Michael Arbuckle, "Cochise,""Rambo," and defendant went on a "mission" to the Sanchezhome to retrieve guns and drugs. The remainder of defendant'sstatement to Troy was consistent with his original statement toPienta. Troy reduced this statement to writing, but defendantrefused to sign it.
An assistant medical examiner testified that both victims diedof stab wounds and that both had defense wounds. An expert infingerprint identification testified that both a palmprint and afingerprint recovered from the scene belonged to Vincent. Asecond fingerprint, recovered from a tape recorder, did not belongto Vincent, Rafaela, Wayne Washington, Willie Washington,Arbuckle, Caine, or defendant.
Detective William Marley testified for defendant that, afterhearing defendant's statement, Owen wanted the police to performadditional investigation before he would authorize the filingcharges against defendant. Carlton Ford testified that he, SteveWeathersby, and defendant were driving around in late April 1986,trying to sell a saw Weathersby owned. Ford testified that they sawHall that day and asked her if she knew anyone who would wantthe saw. Ford also testified that there were no guns in the car.Defendant's former girlfriend testified that she was with defendanton the night of April 17, the night that the State contends that theSanchezes were murdered.
Post-Conviction Proceedings
This court affirmed defendant's sentence and conviction ondirect appeal. Defendant then filed a post-conviction petition,relying largely on evidence that numerous other people had madeallegations similar to defendant's about police brutality at Area 2.In particular, defendant relied on a report from the policedepartment's office of professional standards (OPS). This reportfound that the abuse of prisoners at Area 2 was systemic. Afterallowing defendant to amend his petition, the trial court grantedthe State's motion to dismiss. In dismissing the petition, the trialcourt stated that "any nexus between Area 2 Chicago PoliceDepartment Headquarters' alleged systemic torture of people andAaron Patterson is highly tenuous at best." Defendantsubsequently appealed.
ANALYSIS
Ineffective Assistance of Counsel
Defendant first raises several arguments as to how he wasdeprived of the effective assistance of counsel. To support a claimof ineffective assistance of counsel, a defendant must allege factsdemonstrating that his attorney's representation fell below anobjective standard of reasonableness and that there is a reasonableprobability that, but for counsel's errors, the result of theproceeding would have been different. Strickland v. Washington,466 U.S. 668, 687, 695, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct.2052, 2064, 2068-69 (1984). A defendant must satisfy both prongsof the Strickland test; thus the failure to satisfy either prongprecludes a finding of ineffective assistance of counsel. People v.Shaw, 186 Ill. 2d 301, 332 (1998). Because the trial courtdismissed defendant's petition without holding an evidentiaryhearing, we review that dismissal de novo. People v. Coleman, 183Ill. 2d 366, 388 (1998).
Failure to Discover and Present Evidence to SupportDefendant's Claim of Torture
Defendant, who was represented by several different attorneysbefore his trial, asserts that each of these attorneys, along with histrial counsel and his post-trial counsel, was ineffective for failingto properly discover and present evidence that (1) Area 2Lieutenant Jon Burge, who defendant alleges participated intorturing him, has a documented pattern of leading andparticipating in similar acts of torture; (2) Burge and the detectiveswho served under him had contemporaneously beaten and abusedother suspects and witnesses in defendant's case; and (3)defendant suffered psychological injury from the torture.Defendant also contends that his direct appeal counsel wasineffective for failing to raise the ineffectiveness claim withrespect to his pretrial and trial counsel.
Defendant asserts that Luther Hicks, who representeddefendant on his motion to suppress, was aware both of the detailsof defendant's torture allegations and that a red-haired officeralong with Detectives Pienta, Marley, Daniel McWeeny, andRaymond Madigan were involved.
Defendant alleges that Hicks should have discovered that thered-haired officer was Burge. Further, Hicks should havediscovered that his supervisor was representing Andrew Wilsonand that Wilson had raised similar torture allegations againstBurge. Moreover, defendant contends that Hicks should havequestioned other assistant public defenders to determine if theircases involved similar torture allegations at Area 2. Defendantconcludes that, had Hicks properly conducted this investigation,he would have discovered almost 50 other victims of torture atArea 2.
Further, defendant asserts that Hicks should have discoveredthat Burge had actively participated in a "systemic policy andpractice of torture" while at Area 2 and was involved in at least 50incidents while he was there. Moreover, he claims that Hicksshould have discovered that Pienta had been involved in prior actsof beating while working with Burge. After the other officers hadfinished, McWeeney would often act as the "good cop" whowould help the prisoner if he would cooperate.
The problem with defendant's argument is that much of theinformation relating to other allegations of torture would simplynot have been discoverable by Hicks at the time of the suppressionhearing in 1987. At approximately the same time that defendant'scase was proceeding, defendant's current attorney, G. Flint Taylor,Jr., was representing Wilson in a federal suit against the City ofChicago, Burge, and other officers. Notwithstanding the fact thatTaylor had available to him the full panoply of the civil discoveryprocess, he did not discover the vast majority of the informationupon which defendant now relies until February 1989, two yearsafter Hicks filed defendant's motion to suppress. Moreover, Taylordiscovered the information relating to the other allegations oftorture only because he was assisted by an anonymous policedepartment informant.
Additionally, beyond interviewing anyone who had ever beena prisoner at Area 2, we can conceive of no manner in whichHicks reasonably could have obtained this information. At thetime, the OPS had no reports indicating that several other peoplehad been tortured. Defendant has identified no other availablesource that could provide this information.
After reviewing defendant's allegations and considering thefacts that were known when Hicks filed the motion to suppress, wewill not find Hicks ineffective for failing to discover informationthat only an informant could provide. Because defense counselwould not have discovered this information, defendant was notprejudiced by counsel's failure to investigate.
Defendant also alleges that Hicks should have investigatedother contemporaneous allegations of torture from Caine,Arbuckle, and Illya Rowland. To support his claim with respect toCaine, defendant attaches Caine's original and amended motionsto suppress. These motions allege that Caine was not informed ofhis Miranda rights, that the police officers promised him leniency,that the police officers struck him in the head and kicked him inthe stomach, and that he was intoxicated when he gave hisstatement. The motions, however, do not identify any of theofficers involved or describe with any particularity misconductsimilar to what defendant suffered. Without some evidenceindicating that the same officers or supervisors were involved orthat the same type of misconduct was involved, we have no basisupon which to conclude that this evidence was relevant todefendant's claims. See People v. Hobley, 159 Ill. 2d 272, 312(1994) (holding that evidence of other allegations of torture wasinadmissible, in part, because it was not similar to the allegationsmade by defendant).
Rowland's affidavit alleges that the officers told him toimplicate defendant, but it does not assert that the officersmistreated him. Arbuckle, in his affidavit, states that an Area 2lieutenant (whom he later identified as Burge) threatened him. Hedoes not allege, however, that Burge or any other officer usedphysical coercion. His allegations are limited to asserting that theofficers verbally threatened him. Because these allegations arequite different from defendant's, we are unable to conclude thatthey are relevant to defendant's claim. See Hobley, 159 Ill. 2d at312.
After reviewing the evidence submitted by defendant, we areunable to conclude that defendant has demonstrated that, hadHicks interviewed these witnesses, a reasonable probability existsthat the result of the suppression hearing would have beendifferent.
As for defendant's claim about evidence of a psychologicalinjury, defendant has not explained why Hicks would request apsychiatric examination of defendant. Defendant has not allegedthat he told Hicks that the torture caused him psychologicaldamage. Moreover, defendant has not alleged that any of hisactions would have placed Hicks on notice that defendant hadsuffered a psychological injury. Without some evidence that wouldindicate to Hicks that defendant had suffered a psychologicalinjury, we are unable to conclude that Hicks acted in anobjectively unreasonable manner when he failed to secure apsychiatric examination of defendant.
Defendant also alleges that Hicks was ineffective in hispresentation of hearsay evidence during defendant's motion tosuppress. At the motion, Hicks sought to introduce etchings madeby defendant in the interrogation room after he had beeninterrogated. Photographs that Hicks sought to introduce revealedthe following etchings on the bench in the interrogation room:
"I lied about murders police threatened me withviolence slapped and suffocated me with plastic-nophone-no dad signed false statement to murders (Tonto)Aaron."
"Sign false statements to murder, Tonto on statementsis code word Aaron."
Additionally, the photographs revealed the phrase "Aaron lied"etched in the door of the room.
During the motion to suppress, Hicks argued that the etchingswere admissible under various exceptions to the hearsay rule. Thetrial court rejected Hicks' argument. On appeal, defense counselargued that the statements were admissible (1) as spontaneousdeclarations, (2) as prior consistent statements, and (3) under thedoctrines of curative admissibility or completeness. This courtrejected each of those claims. Patterson, 154 Ill. 2d at 452-54.
Defendant now claims that his trial and appellate attorneyswere ineffective because they advanced the wrong arguments.Defendant explains that the etchings were admissible at the motionto suppress not because they fell within an exception to thehearsay rule but because hearsay is admissible at pretrial hearingsin which the trial court is determining the admissibility ofevidence.
The appellate court has recognized that hearsay evidence isadmissible during a motion to suppress, even though it is notadmissible at trial. People v. Lesure, 271 Ill. App. 3d 679, 680(1995). Moreover, federal law supports defendant's argument.Federal Rule of Evidence 104(a) provides, in relevant part,"Preliminary questions concerning *** the admissibility ofevidence shall be determined by the court ***. In making itsdetermination it is not bound by the rules of evidence except thosewith respect to privileges." (Emphasis added.) Fed. R. Evid.104(a). The Supreme Court has explained that no automatic ruleprecludes the admission of hearsay when a trial court isdetermining the admissibility of evidence. United States v.Matlock, 415 U.S. 164, 175, 39 L. Ed. 2d 242, 252, 94 S. Ct. 988,995 (1974); see also United States v. Bolin, 514 F.2d 554, 557 (7thCir. 1975) (holding that "it is clear that hearsay evidence isadmissible in a hearing on a motion to suppress").
After reviewing the cases cited by defendant, we agree withdefendant that they support his contention that hearsay evidenceis admissible during a hearing on a motion to suppress. That,however, is not sufficient to grant defendant relief on his claim.Under Strickland, a defendant must demonstrate a reasonableprobability that, had this evidence been presented, the result of theproceeding would have been different. Strickland, 466 U.S. at 694,80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Given the context ofdefendant's claim, that means that he must demonstrate that areasonable probability exists that, had his appellate attorneyargued on appeal that Hicks was ineffective, this court would haveagreed. To do so, this court would have had to reach theconclusion that a reasonable probability exists that, had theetchings been introduced as admissible hearsay, the trial courtwould have concluded that defendant's confession should havebeen suppressed. With this conclusion, we cannot agree.
When Hicks presented the pictures of the etchings during themotion to suppress, the trial court, in addition to excluding themfrom evidence as hearsay, specifically found that it did not believethat defendant had established that the etchings in the pictureswere in the same condition as the etchings were when defendantallegedly made them. Moreover, the trial court twice stated that itbelieved that the etchings were not relevant to the motion tosuppress.
As noted by the Court in Matlock, although hearsay may beadmissible during motions to suppress, the trial court is entitled to"give it such weight as his judgment and experience counsel."Matlock, 415 U.S. at 175, 39 L. Ed. 2d at 252, 94 S. Ct. at 995.Here, we know exactly how much weight the trial court wouldhave given it, had the court considered it: none. While thisconclusion is by no means binding on any subsequent trier of fact,it is sufficient to allow us to conclude that, even if Hicks hadargued that the etchings were admissible hearsay, no reasonableprobability exists that defendant's confession would have beensuppressed.
Failure to Investigate, Present, and Preserve Evidence Duringthe Motion to Suppress Statements or Reopen the Motion toSuppress
Defendant next contends that when Brian Dosch, the attorneywho succeeded Hicks, sought to reopen the motion to suppress, heerred because he failed to (1) inform the court that the red-hairedofficer was Burge and that Burge supervised and participated inthe policy and practice of torture at Area 2; (2) inform the court ofthe similarities between defendant's allegations of torture andWilson's allegations; (3) document the other claims of torture byfiling the "proffer"(2) prepared by Wilson's civil attorneys; and (4)subpoena Burge's record from the OPS. Defendant also allegesthat Dale Coventry, Dosch's supervisor, failed to inform Doschboth of the similarity between defendant's allegations of tortureand the allegations raised by Wilson, Melvin Jones, and of theactions of Burge, Pienta, and McWeeny.
Allegations Relating to Coventry
With respect to the allegations relating to Coventry, defendanthas cited no rule of law, and we are aware of none, that holds thatthe defendant's attorney's supervisor owes a constitutional duty tothe defendant. Because defendant has failed to demonstrate thatCoventry owed defendant a constitutional obligation, we mustagree that the trial court properly dismissed the claims with respectto Coventry.
Defendant's Identification of Burge as the Red-Haired Officer
As to the claims involving Dosch, defendant does not explainhow Dosch's identification of Burge as the red-haired officerwould have affected either the trial court's ruling on the motion orthis court's decision on appeal. Notably, on direct appeal, thiscourt held that, although the red-haired officer was a materialwitness, it was within the trial court's discretion not to require thatthe officer be called. Patterson, 154 Ill. 2d at 450. Defendant hasfailed to explain why a reasonable probability exists that, hadeither this court or the trial court known the identity of the red-haired officer, either court would have ruled differently.Accordingly, this claim must fail.
Similarities Between Defendant's Allegations and Wilson'sAllegations
Next, defendant claims that counsel erred by failing to informthe court of the similarities between defendant's and Wilson'storture allegations. Counsel could be ineffective for failing tointroduce this evidence only if it would have been admissible atdefendant's motion to suppress. Evidence is admissible if it isrelevant to an issue in dispute and if its prejudicial effect does notsubstantially outweigh its probative value. People v. Gonzalez, 142Ill. 2d 481, 487 (1991). Evidence is relevant if it has any tendencyto make the existence of a fact that is of consequence to thedetermination of the action more or less probable than it would bewithout the evidence. Gonzalez, 142 Ill. 2d at 487-88. Probabilityis tested in the light of logic, experience, and accepted assumptionas to human behavior. Marut v. Costello, 34 Ill. 2d 125, 128(1966).
In past cases, this court has declined to find evidence of priorpolice brutality to be relevant when the defendant offered onlygeneralized allegations of coercive activity at Area 2 (People v.Orange, 168 Ill. 2d 138, 150-51 (1995)) and when the allegationsof brutality were not similar and occurred three years before thecase at bar (Hobley, 159 Ill. 2d at 312).
The appellate court has found evidence of prior brutalityadmissible when the allegations were similar and involved thesame officers, the incidents occurred only 13 months apart, andboth the prior allegations and the allegations in the case before thecourt contained evidence of injury consistent with police brutality.People v. Banks, 192 Ill. App. 3d 986, 994 (1989). The appellatecourt also has found evidence of prior allegations of brutalityadmissible where the defendant could present evidence that "thepolice officers who questioned him systematically tortured othersuspects to obtain confessions at or near the time he wasquestioned." People v. Cannon, 293 Ill. App. 3d 634, 640 (1997).Additionally, the United States Court of Appeals, Seventh Circuit,has found evidence of prior allegations of brutality admissiblewhen it involves the same officer, involves similar methods oftorture, and occurs at or near the time of the current allegation.Wilson v. City of Chicago, 6 F.3d 1233, 1238 (7th Cir. 1993).
Here, the State contends that the evidence of prior allegationsof torture is inadmissible because defendant has failed todemonstrate that he suffered physical injuries consistent with hisallegations of torture. Although we believe that this is a relevantconsideration, we do not believe that the absence of physicalinjury, standing alone, precludes evidence of prior acts of brutalityfrom being admissible. See Cannon, 293 Ill. App. 3d at 642.
Here, defendant testified at his suppression hearing that, whenhe was being transported to Area 2, he was in a car with Marley,Pedersen, Pienta, and James Hill, a friend of defendant. Duringthis trip, Pienta reached across defendant and slapped Hill acrossthe face. After doing this, Pienta turned to defendant and statedthat, if he had been the officer who had found defendant,defendant would now be dead. Later, when the officers wereinterrogating defendant at the police station, Pienta said to theother officers in the room, "I don't know about the rest of you, butI am tired of listening to this bullshit, I am about ready to kick hisass."
Pienta then left the room and returned with four other officers.Pienta was carrying a manila folder and a gray plastic item, lateridentified as a typewriter cover. Thereafter, Pienta handcuffeddefendant's hands behind his back. Another officer turned off thelights, and Pienta slapped defendant across the chest and placedhis hands around defendant's neck. Pedersen then grabbed thetypewriter cover and placed it over defendant's face. Defendanttestified that he could not breathe when the typewriter cover wasover his face. Also, when the typewriter cover was over his face,the other officers hit him in the chest.
After approximately one minute, the officers removed thetypewriter cover and turned the lights back on. Defendant thenrequested to speak to an attorney. Pienta replied, "No, you are notgetting an m.f. attorney." The officers then asked defendant if hewas ready to cooperate. He told them that he had said all that hewas going to say. The officers again turned the lights off andplaced the typewriter cover over defendant's face. Afterapproximately one to two minutes, the officers removed thetypewriter cover and turned the lights on.
Subsequently, defendant requested something to drink, and anofficer gave him a plastic cup containing a brown liquid. Theofficer told defendant that the cup contained bourbon. The officersthen told him that he was to tell an assistant State's Attorney thathe killed the victims. The officers left him alone for approximatelyone hour. During that time, defendant used a paper clip to scratcha statement into the bench on which he was sitting. An assistantState's Attorney then arrived with a red-haired officer, lateridentified as Burge. After Burge left, pursuant to defendant'srequest, defendant told the assistant State's Attorney that hewanted an attorney and that he had nothing to say. Thereafter, theassistant State's Attorney left. Burge then entered the room and satacross from defendant.
After taking a seat, Burge told defendant, "You are fuckingup." Defendant did not respond, and Burge said, "We told you ifyou didn't do it-if you didn't do what we told you to do that youwas going to get something worse than what you had earlier. Andwhat you had earlier will be a snap compared to what you willget." Burge then placed his revolver on the table and asked,"[Y]ou are going to cooperate now, right?" Defendant's only replywas to request an attorney. Burge then said, "[Y]ou know, that we[sic] just doing our job and this is nothing new to you, you know,the way we go about doing things around here, you know. If youdecide to tell us that, it is your word against our word. And whoare they going to believe you or us." Burge then holstered hisrevolver and left the room.
After that, Troy entered the room and told defendant that hewas going to write a statement that defendant was to sign.Defendant said that he would sign the statement if Troy allowedhim to make a phone call. Troy agreed. Defendant called anattorney and his grandmother. Troy took him to the interviewroom and asked defendant to sign the statement. After defendantrefused to sign the statement, Troy left.
McWeeny then entered the room and told defendant that hewas trying to help defendant and that defendant should cooperatebecause "they could do something serious" to defendant if hefailed to cooperate. When defendant continued to refuse to sign thestatement, the officers had defendant shower and they placed himin a cell.
The allegations made by Wilson are similar in some respectsto those made by defendant. Wilson has testified that he waspunched, kicked, and smothered with a plastic bag. He has alsoclaimed that he was electrically shocked and forced against a hotradiator. Additionally, Wilson has testified that Burge placed arevolver in Wilson's mouth when Burge was alone in the roomwith Wilson. Although both defendant and Wilson alleged thatnumerous officers were involved, the only officers that bothincluded in their allegations were Burge and Pienta.
We first note that defendant's allegations and Wilson'sallegations are not closely related in time. Wilson was arrested inFebruary 1982. Defendant was arrested in April 1986. Thus, morethan four years passed between the two occurrences. Werecognize, however, that both defendant and Wilson alleged thatthey had been punched, kicked, and suffocated with a plastic bag.Moreover, Burge, while alone with each of them, used a revolveras a threat.
Notwithstanding these similarities, we do not believe that areasonable probability exists that, had defense counsel informedthe trial court of these similarities, the trial court would have foundthis evidence admissible or that we would have reversed thisdecision on appeal. As noted earlier, the Wilson incident occurredmore than four years before the incident involving defendant.Additionally, at the time of defendant's trial, Wilson believed thathe was tortured not because officers at Area 2 routinely torturedall suspects, but rather because the officers routinely tortured thoseaccused of killing police officers. See Wilson, 6 F.3d at 1236.
Because the information available at the time indicated thatWilson was mistreated for a reason wholly unrelated todefendant's case, and because the evidence identified only a singleincident of misconduct removed in time from defendant's, webelieve that the evidence is too attenuated to be relevant.Accordingly defendant's attorney was not ineffective for failing toinform the court of the similarities between defendant's andWilson's torture allegations.
Failure to Introduce Plaintiff's Proffer
Defendant next contends that his attorney was ineffective forfailing to document the other allegations of torture by introducingthe proffer prepared by Wilson's civil attorneys. The proffer is a12-page document detailing various allegations of torture by Burgeand his associates during the years 1972 through 1984. In hisaffidavit, Dosch admits that he had the proffer before he sought toreopen defendant's motion to suppress.
After examining the proffer, we do not believe that defensecounsel was ineffective for failing to provide it to the trial court.The proffer is a summary of evidence prepared by Wilson's civilattorneys for Wilson's civil trials. We have previously recognizedthat documents prepared in anticipation of litigation "generallylack the earmarks of trustworthiness and reliability." People v.Smith, 141 Ill. 2d 40, 73 (1990); see also 725 ILCS 5/115-5(c)(2)(West 1998). The plaintiff's proffer is nothing more than 12 pagesof unreliable hearsay. Consequently, we are unable to concludethat, even if this proffer had been presented to the trial court, areasonable probability exists that the court would have eitherreopened the hearing or suppressed defendant's statements.
Failure to Subpoena Burge's OPS Records
Defendant next contends that his attorney was ineffective forfailing to subpoena Burge's OPS records. Defendant, however,never explains what information was contained within Burge'sOPS records that would have assisted him in convincing the trialcourt to reopen the hearing on the motion to suppress or to grantdefendant's motion. Without this information, we have no basis toconclude that a reasonable probability exists that, had defensecounsel subpoenaed the records, the result of the proceedingwould have been different.
Failure to Introduce at Trial Evidence That Defendant'sConfession Was Coerced
Defendant next contends that his attorney was ineffective forfailing to introduce evidence that his confession was coerced.Defendant contends that this error was particularly damagingbecause, during opening statements, defense counsel promised topresent evidence that defendant's statement was coerced.
Defendant could have raised this issue on direct appeal.Because he failed to do so, the issue is waived. See People v.Hobley, 182 Ill. 2d 404, 428 (1998). Defendant also argues,however, that his appellate counsel was ineffective for failing toraise this issue on direct appeal. Consequently, we will review theunderlying claim. See People v. West, 187 Ill. 2d 418, 435 (1999).
Dosch's affidavit reveals that he chose not to have defendanttestify that his confession was coerced or to present other evidenceto corroborate defendant's torture allegations because he believedthat reversible error had occurred earlier during the trial when oneof the State's witnesses, in violation of Doyle v. Ohio, 426 U.S.610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), commented ondefendant's post-arrest silence. Unfortunately for defendant, thiscourt did not agree with counsel's assessment of the Doyleviolation. Although this court agreed that a Doyle violation hadoccurred, the court held that the error was harmless beyond areasonable doubt. Patterson, 154 Ill. 2d at 467-68.
We recognize that a mistake as to the law can be a basis forfinding that an attorney was ineffective. See People v. Wright, 111Ill. 2d 18 (1986) (holding that an attorney was ineffective forfailing to pursue a voluntary intoxication defense because he didnot understand the elements). Here, however, counsel's error liesnot in believing that the State had committed reversible error, butrather in deciding that, because of the error, he should not presentthe defense that he had promised to present.
Significantly, neither the State nor Dosch has ever explainedwhat about the Doyle violation would have made defendant'stestimony less credible than it would have been had the Doyleviolation not occurred. Because the Doyle violation did notundermine, in any manner, defendant's defense, we fail tounderstand what about this Doyle violation would lead areasonable attorney to conclude that he need not present thedefense that he has already promised the jury that he will present.We also fail to see what strategy would lead Dosch to concludethat it would be best to pin defendant's chance for success on thepossibility of a reversal and remandment for a new trial rather thanattempting to obtain an acquittal. Consequently, we believe thatdefendant has pleaded sufficient facts to demonstrate thatcounsel's decision not to present this defense fell below anobjective standard of reasonableness.
We now decide whether this failure to present a defenseprejudiced defendant. As noted above, to demonstrate prejudice,a defendant must show that there is a reasonable probability that,but for counsel's errors, the result of the proceeding would havebeen different. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698,104 S. Ct. at 2068-69. Notably, this standard does not require adefendant to demonstrate that counsel's conduct more likely thannot altered the outcome in the case. Strickland, 466 U.S. at 693, 80L. Ed. 2d at 697, 104 S. Ct. at 2068. Instead, a reasonableprobability "is a probability sufficient to undermine confidence inthe outcome." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698,104 S. Ct. at 2068.
The evidence identifying defendant as the perpetratorconsisted of (1) the oft-changing testimony of a teenager whosecousin had been a suspect in the crime; and (2) the testimony fromthe police officers and assistant State's Attorneys concerningdefendant's confession.
The promised defense would have consisted of defendant'stestimony consistent with the testimony he provided at the motionto suppress. In his brief, defendant also contends that he couldhave introduced other evidence corroborating this testimony. TheState raises numerous objections to this other testimony. Withoutdeciding the effect of the other testimony, we believe thatdefendant has pleaded sufficient facts to undermine confidence inthe jury's verdict.
The evidence against defendant consisted essentially of thetestimony of police officers and assistant State's Attorneys statingthat defendant had confessed. During opening statements,defendant's attorney told the jury that they would hear evidencethat defendant confessed only because the police beat him up andtried to suffocate him with a plastic bag. Notwithstanding thispromise, defense counsel chose to present no such evidence.Although we are unable to conclude that, absent this failure, theresult of the proceeding would have been different, we have noneed to reach such a conclusion. See Strickland, 466 U.S. at 695,80 L. Ed. 2d at 698, 104 S. Ct. at 2068. We need only determinethat a reasonable probability exists that, had the evidence beenpresent, the outcome would have been different. Strickland, 466U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69. We are, ofcourse, unable to divine the course the jury would have taken if ithad heard this evidence, but we believe that, under the factualcircumstances of this case, the evidence is of such import that ourconfidence in the jury's verdict is undermined.
In reaching this conclusion, we emphasize that we aredetermining only that defendant has pleaded sufficient facts toenable him to obtain an evidentiary hearing. After the hearing, thetrial court may conclude that defendant had demonstrated that hisattorney was ineffective. On the other hand, the trial court maydetermine that the attorney had a previously undisclosed butobjectively reasonable basis for failing to present defendant'stestimony or that defendant's testimony is not so compelling as toundermine confidence in the jury's verdict. That, however, is aquestion to be answered in the trial court.
Failure of Post-Trial Counsel to Present Newly DiscoveredEvidence of Torture Allegations
Following defendant's conviction, Dosch sought to continuethe date for filing a post-trial motion until after the trial transcriptswere completed. The trial court denied the motion, and Doschfailed to file a post-judgment motion. Subsequently, this courtremanded the action for the filing of a post-trial motion.Thereafter, in an arrangement with the office of the StateAppellate Defender, Joan Kubalanza, an attorney with Foley &Lardner who normally handled commercial litigation, assumedprimary responsibility for handling defendant's post-trial motionand appeal.
Defendant now contends that, before Kubalanza filed hermotion, she knew that (1) Burge was the red-haired officer; (2) afederal jury had found a policy and practice of torture and abuseby Area 2 detectives; and (3) the City of Chicago had held publichearings at which acts of torture and abuse by Burge had beendetailed. Defendant also claims that Kubalanza had access to (1)trial counsel's file containing Wilson's proffer and informationconcerning Caine and Arbuckle, who could corroboratedefendant's testimony; (2) an article from the Chicago Readerdocumenting torture by Burge and other Area 2 detectives; and (3)an OPS report finding that physical and psychological abuse wassystemic and methodical in Area 2 from 1973 through 1986.Defendant asserts that, if Kubalanza had introduced this newevidence, the trial court would have granted defendant's motionfor a new trial.
For new evidence to be sufficient to grant a defendant a newtrial, the evidence (1) must be of such a conclusive character thatit will probably change the result on retrial; (2) must be materialbut not merely cumulative; and (3) must have been discoveredsince trial and be of such character that the defendant in theexercise of due diligence could not have discovered it earlier.People v. Molstad, 101 Ill. 2d 128, 134 (1984). Becausedefendant's claim is based upon a claim of ineffective assistanceof counsel, he must demonstrate that Kubalanza's failure tointroduce this evidence fell below an objective standard ofreasonableness and that, but for counsel's error, a reasonableprobability exists that the result of the proceeding would havebeen different. See Strickland, 466 U.S. at 695, 80 L. Ed. 2d at698, 104 S. Ct. at 2068-69.
Turning to the facts that defendant contends Kubalanzashould have introduced, we can easily discard some of them. Thefact that Burge was the red-haired officer and the facts containedwithin trial counsel's file were facts that were not "new." Not onlycould they have reasonably been discovered earlier, they were. Thearticle from the Chicago Reader is simply a newspaper article, andas such is essentially a collection of hearsay statements. Defendantfails to explain why this hearsay would have been admissible forany purpose. With respect to the hearings, defendant does notexplain what information was revealed at those hearings thatwould have required the trial court to order a new trial.
Turning to the OPS report, we note that defendant concedesthat the report was not public at the time Kubalanza fileddefendant's post-trial motion. Defendant contends, however, thatthe report could have been obtained by subpoena. Defendant,however, never explains why Kubalanza should have known thatthe OPS report existed. Without some explanation of whyKubalanza should have known that the OPS report existed, we willnot find that Kubalanza's actions fell below an objective standardof reasonableness. Kubalanza could not reasonably have beenexpected to engage in a fishing expedition by serving subpoenason the Chicago police department. This is particularly true giventhat, just before defendant's trial, Dosch had subpoenaed recordsfrom the OPS and the trial court found that the records that OPSdelivered were not relevant to the litigation.
That leaves only the fact that a federal jury had found thatArea 2 detectives had a policy and practice of torture and abuse.The evidence defendant relies on here is from the first Wilson civiltrial. In that case, the jury found that Wilson's civil rights wereviolated. However, the jury also exonerated all of the individualofficers, including Burge. Moreover, the finding with respect tothe policy and practice of abuse was a finding that "the City ofChicago had a de facto policy authorizing its police officersphysically to abuse persons suspected of having killed or injureda police officer." (Emphasis added.) Wilson, 6 F.3d at 1236.
After examining this evidence, we are unable to conclude thata reasonable probability exists that, had Kubalanza presented thisin defendant's post-trial motion, the trial court would haveconcluded that the evidence was of such a character that it wouldlikely change the result on retrial. First, the jury verdict implicatedno officer at all, let alone any officer identified by defendant.Second, the jury's finding, and Wilson's theory of the case, wasthat Area 2 detectives tortured defendants that they believed hadkilled or injured police officers. Here, the victims were not policeofficers. Thus, any probative value that the jury's verdict in theWilson case might have is weakened to the point of irrelevancy.Consequently, we are unable to conclude that Kubalanza renderedthe ineffective assistance of counsel when she prepared andpresented defendant's post-trial motion.
Failure of Appellate Counsel to Supplement the Record onDirect Appeal or Seek a Remand
Defendant next contends that Kubalanza was ineffective whenshe represented him on appeal. Specifically, he alleges that, by thetime she filed his appellate brief, she (1) had obtained the OPSreport finding a systemic pattern and practice of torture at Area 2;(2) had obtained an OPS report finding that Burge had torturedWilson and recommending that Burge be fired; and (3) knew thatthe police board was holding public hearings at which ShadeedMumin, Wilson, and Melvin Jones testified about acts of torturethat "closely paralleled" the acts described by defendant.Defendant contends that Kubalanza should have either sought tosupplement the record with this information or sought a remand tothe trial court for a hearing on these issues.
Supreme Court Rule 329 (134 Ill. 2d R. 329) permits a partyto amend the record on appeal to correct "[m]aterial omissions,""inaccuracies," or "improper authentication." Rule 329 is not avehicle through which a party may supplement a record withevidence that was not presented in the lower court. People v.Evans, 125 Ill. 2d 50, 94 (1988). Because the evidence defendantnow relies upon was not presented in the lower court, noreasonable probability exists that, had a motion to supplementbeen made, that it would have been granted.
Turning to defendant's assertion that Kubalanza should havefiled a motion for remand, we are unable to conclude thatKubalanza's failure to file such a motion fell below an objectivestandard of reasonableness. Although such a motion is notnecessarily improper, defendant has not identified a single statute,court rule, or case that authorizes such a motion. Because of this,we are unable to conclude that Kubalanza's failure to file themotion was objectively unreasonable.
Failure to Interview Other Witnesses
Defendant next contends that his trial attorneys wereineffective for failing to interview and present witnesses that wereidentified in the police and medical examiner's reports. Thesewitnesses included Ophelia Loy, Willie Washington, Mack Ray,and Rowland.
The State contends that, because the issue could have beenraised on direct appeal, defendant has waived his claim thatcounsel was ineffective for failing to interview Loy. See Hobley,182 Ill. 2d at 428. Although this is true, defendant argues that hisappellate counsel was ineffective for failing to raise this issue ondirect appeal. Consequently, we will review the underlying claim.See West, 187 Ill. 2d at 435.
Defendant contends that Loy's testimony would haveimpeached the reliability of the unsigned statement admittedagainst him. Loy, the victims' neighbor, reportedly saw one of thevictims raking grass on April 18, 1986, at 3 p.m. In defendant'sstatement, however, he states that he had killed the victims duringthe early morning hours of April 18.
The State asserts that defense counsel did not have Loy testifyas a matter of trial strategy because her testimony would havedirectly contradicted defendant's theory as to the victims' time ofdeath. After reviewing the evidence, we agree with the State'sassessment. During trial, defense counsel sought to establish thatthe victims had died before the time mentioned in defendant'sconfession. Loy, however, would have testified that the victimsdied after the time indicated in defendant's confession. BecauseLoy's testimony would have directly contradicted defendant'stheory relating to the time of death, we believe that counsel'sdecision not to call Loy was a matter of trial strategy and did notfall below an objective standard of reasonableness.
Defendant next asserts that his attorneys should haveinterviewed Willie Washington because he was a suspect in theSanchez murders, he was identified in police reports as the personwho killed the Sanchezes, and his brother Wayne knew the victimsand discovered the bodies. Defendant contends that, if counsel hadinterviewed Washington, he would have learned that Washingtonlived near the victims and that the victims would open the door forhim.
Defendant also contends that defense counsel should haveinterviewed Ray, who was reported in a police report to have toldthe police that Willie Washington had recruited him to rob theSanchezes. According to Ray's affidavit, if defense counsel hadinterviewed him, counsel would have learned that Ray, along withWillie and Wayne Washington, stole merchandise to sell to theSanchezes. On several occasions, the Washington brothers askedRay if he wanted to help them rob the Sanchezes. Ray declinedeach time.
Defendant also contends that counsel was ineffective forfailing to interview Rowland. Defendant asserts that counselshould have interviewed Rowland because police reports indicatethat defendant was at Rowland's house just before the murders.Moreover, Rowland told Madigan that Ray had told him thatWillie Washington had tried to recruit Ray to rob the Sanchezesand that defendant was with his girlfriend at the time of themurders.
The State first argues that defendant has waived his right tochallenge counsel's failure to interview and present the testimonyof Washington, Ray, and Rowland. We must disagree. Theevidentiary basis of the claims relating to these witnessesnecessarily rests upon evidence that was de hors the direct appealrecord. See People v. Whitehead, 169 Ill. 2d 355, 372 (1996).Here, Ray and Rowland have provided affidavits as to what theirtestimony would have been and one of defendant's attorneys whointerviewed Washington in prison has filed an affidavit revealingwhat Washington told him during the interview.
After examining the affidavits, we are unable to conclude thatdefendant has demonstrated that, had he introduced this testimony,a reasonable probability exists that he would have been found notguilty. Ray, an admitted drug user who was in custody on aburglary charge, would have been able to testify only that theWashingtons had asked him if he wanted to rob the Sanchezes.Ray had no information that either or both Washington brothersactually had committed the crime, and he was unable to identifywith any specificity the time when they suggested robbing theSanchezes. Rowland's testimony is nothing more than hearsay thatrepeats Ray's vague testimony. Finally, the information providedby Washington adds nothing of substance. After reviewing theseaffidavits, we are unable to conclude that, had counsel interviewedthese witnesses and presented this evidence, a reasonableprobability exists that the outcome of the trial would have beendifferent.
Failure to Cross-Examine Witnesses Properly
Defendant next asserts that his attorney was ineffective forfailing to cross-examine Hall properly. In particular, he asserts thatcounsel failed to perfect impeachment relating to (1) where Hallsaw the shotgun defendant tried to sell her; and (2) what daydefendant tried to sell her the shotgun.
The crux of defendant's argument concerns counsel's failureto impeach Hall with her testimony before the grand jury.Defendant, however, did not attach Hall's grand jury testimony tohis post-conviction petition. Without this evidence attached to hispetition, defendant's claim must fail. See 725 ILCS 5/122-2 (West1998); People v. Turner, 187 Ill. 2d 406, 414 (1999).
The other issues defendant raises all involve a failure to cross-examine or perfect impeachment with respect to certain policereports. Defendant does not assert that these records were de horsthe record on direct appeal. Consequently, we find these issueswaived. See Hobley, 182 Ill. 2d at 428; Whitehead, 169 Ill. 2d at372.
Failure to Seek Removal of Judge Cieslik for Cause
Defendant asserts that defense counsel was ineffective forfailing to seek removal of Judge Cieslik for cause and thatappellate counsel was ineffective for failing to raise this issue onappeal.
Defendant's action was originally assigned to Judge Bailey.Defendant's attorney, Thomas Bomba, sought a substitution as amatter of right (see 725 ILCS 5/114-5(a) (West 1998)). When thatmotion was granted, Judge Bailey, rather than sending the case tothe office of the chief judge for random reassignment, assigned thecase to Judge Cieslik. Bomba moved to vacate the caseassignment, and Judge Cieslik denied that motion. Subsequently,defendant sought leave to file a petition for writ of mandamus ora supervisory order with this court. This court denied defendant'smotion.
Defendant could have raised this issue on direct appeal.Because he failed to do so, the issue is waived. Hobley, 182 Ill. 2dat 428. Defendant argues, however, that his appellate counsel wasineffective for failing to raise this issue on direct appeal.Consequently, we will review the underlying claim. See West, 187Ill. 2d at 435.
A defendant who seeks a substitution of judge for cause (see725 ILCS 5/114-5(d) (West 1998)) bears the burden ofestablishing actual prejudice. People v. Vance, 76 Ill. 2d 171, 178(1979). To meet this burden, the defendant must establish"animosity, hostility, ill will, or distrust towards this defendant."Vance, 76 Ill. 2d at 181.
Defendant contends that Judge Cieslik demonstrated hisprejudice when he (1) ruled against the motion to vacate the caseassignment to Judge Cieslik filed by Bomba; (2) criticizeddefendant's attitude; (3) criticized defendant's objections to NeilSpector, who had been appointed to represent defendant; (4)referred to Hicks, in a different case, as "Smiley" and to anotherassistant public defender as "Laughing Boy"; (5) had a reputationfor racial and sexual intolerance and had previously been censuredfor offensive comments to a female attorney; (6) made derogatorycomments to both defendant and Hicks during the motion tosuppress; and (7) stated, during defendant's testimony during themotion to suppress, that he was not getting the facts fromdefendant.
The facts that Judge Cieslik ruled against defendant's motionto vacate the case assignment and that he told Bomba that themotion was baseless are not reasons to grant a motion forsubstitution for cause. See Vance, 76 Ill. 2d at 178 (holding thatthe fact that a judge had ruled against the defendant is not a basisfor finding the judge prejudiced); see also Liteky v. United States,510 U.S. 540, 555, 127 L. Ed. 2d 474, 490, 114 S. Ct. 1147, 1157(1994) (explaining that "judicial rulings alone almost neverconstitute a valid basis for a bias or partiality motion").
The comments criticizing defendant's attitude and defendant'sobjections to Spector similarly do not demonstrate an animosity,hostility, ill will, or distrust toward defendant. The firstcomplained-of criticism occurred during the following colloquy.
"THE COURT: Any other matters that can be handleda this particular time?
A DEFENDANT:(3) Did they catch the guy who did thedouble murder yet?
THE COURT: I don't know anything about it sir. Ireally have no idea who they caught or anything. I haveenough problems with the people that are before me, andI don't want to get involved with some other people'sproblems.
I not only have problems with the individuals, butcertain other situations that you need not concern yourself.
The only problem I have, gentlemen, is that you all geta fair trial and you get fair consideration by this court, doyou understand that?
A DEFENDANT: I understand, I'm just wondering isanybody earning their money around here besides sittingon your duffs.
THE COURT: How do you mean that?
A DEFENDANT: You got me up here for a doublemurder I didn't even do.
THE COURT: Look, I know nothing about what'shappening in here. An attitude like that will do nothingfor you."
Defendant also complains of Judge Cieslik's commentsduring a later proceeding in which defendant said, with respect toSpector, "He's not representing me, your Honor, I don't wanthim." The trial judge responded,
"When did you think that you could tell me-just aminute. You listen to me. I listened to what you had tosay. You are not going to tell me who's going to representyou. Do you understand that? I am not running acourtroom where the defendants are telling me what theyare going to do. There is no law that requires me to listento you to tell me what I have to do. Do you understandthat? I don't tell you what you have to do. You arerequired to do certain things as required by rules of courtand rules of statute or the Supreme Court. But there is[sic] no rules that I know of where a defendant can comeout there and tell me that a particular individual is notrepresenting him. You can indicate that you are notsatisfied with him, and it is for me to make that decision."
After reviewing the statements in their context, we are unableto conclude that they demonstrate animosity, hostility, ill will, ordistrust toward defendant. Instead, they demonstrate nothing morethan judicial expressions of impatience, dissatisfaction andannoyance that are within the bounds of what judges, as imperfectpeople, sometimes display, and such statements do not provide abasis for finding that Judge Cieslik was prejudiced againstdefendant. See Liteky, 510 U.S. at 555-56, 127 L. Ed. 2d at 491,114 S. Ct. at 1157; see also People v. Blanck, 263 Ill. App. 3d 224,232-33 (1994) (holding that an isolated comment made during a"momentary lapse of judicial composure" does not demonstratethe prejudice necessary to obtain a motion for substitution forcause).
Although we recognize the concern raised by Judge Cieslik'sstatements in another case involving Hicks and another African-American assistant public defender, we do not believe that thesestatements are sufficient to demonstrate a prejudice againstdefendant. To begin with, the comments at issue were not directedat defendant. Granted, they were directed toward one ofdefendant's attorneys, but our test looks to whether the trial courtis prejudiced against the defendant. See Vance, 76 Ill. 2d at 181.Although situations may arise in which comments directed towarda defendant's attorney can demonstrate animosity, hostility, illwill, or distrust toward the defendant, we do not believe that thissingle comment in another proceeding is sufficient to meet thisstandard. Moreover, the mere fact that Judge Cieslik allegedly hada reputation for racial and sexual intolerance is an insufficientbasis upon which to grant a motion for substitution for cause. "Toconclude that a judge is disqualified because of prejudice is not, ofcourse, a judgment to be lightly made." Vance, 76 Ill. 2d at 179.Because of this, a defendant must demonstrate actual prejudice,not just the possibility of prejudice. People v. Hooper, 133 Ill. 2d469, 513 (1989).
Finally, the comments directed toward defendant and hisattorney during the motion to suppress do not demonstrateanimosity, hostility, ill will, or distrust toward defendant.Defendant alleges that Judge Cieslik admonished him 11 timesduring defendant's testimony to answer yes or no. Although thejudge did, at times, instruct defendant to answer yes or no, he didso only where there was confusion over the question asked orwhen an objection had been raised. With respect to the statementin which Judge Cieslik stated, "I know what the facts are. But thatis not the facts [sic] I am getting from this witness," it appears thatthe judge's comment arose, not as a criticism of defendant, butrather from confusion over the contents of defendant's testimony.
After reviewing the portions of the record cited by defendant,we are unable to conclude that, had a motion for substitution forcause been filed, a reasonable probability exists that it would havebeen granted.
Failure to Argue That the Trial Court Asked ImproperWitherspoon Questions
Defendant contends that, despite repeated objections fromDosch, the trial court failed to ask proper Witherspoon questions.Defendant now asserts that his counsel on direct appeal wasineffective for failing to raise this issue.
We note that the State begins its argument by asserting thatthis claim is waived because it "should have been fully addressedon direct appeal." With all due respect to the State, this is preciselydefendant's argument.
Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S.Ct. 1770 (1968), precludes the trial court from excluding for causejurors who merely express general objections to the death penaltyor conscientious or religious scruples against its infliction. For ajuror to be excluded for cause because of his views on the deathpenalty, the juror's views must "prevent or substantially impair theperformance of his duties as a juror in accordance with hisinstructions and his oath." Adams v. Texas, 448 U.S. 38, 45, 65 L.Ed. 2d 581, 589, 100 S. Ct. 2521, 2526 (1980).
The crux of defendant's argument is that the trial court failedto inquire of those jurors dismissed for cause whether they couldset aside their objections to the death penalty and follow the lawand impose the death penalty if the circumstances warranted it.After reviewing the relevant portions of the record, we believe thatthe trial court's voir dire with respect to this issue did not violateWitherspoon.
At the beginning of voir dire, the trial court instructed thevenire:
"Keeping in mind what I told you about your duty tofollow the law and what I just told you about now, is thereanyone in the array who unmistakably wouldautomatically vote against the imposition of the deathpenalty without regard to any evidenced that might bedeveloped at trial of the case ***." (Emphasis added.)
Nine prospective jurors raised their hands. Ultimately only threeof those were excused because of their views on the death penalty.The trial court asked each of these prospective jurors severalquestions about their views on the death penalty and their abilityto impose it. Further the court ended each inquiry with thequestion "Is there no situation regardless of how brutal or howheinous where you could vote for capital punishment?" Oneprospective juror answered, "No, no situation." A secondprospective juror answered. "No, I couldn't." And the thirdprospective juror answered, "No."
Given the trial court's admonition regarding the jurors' dutyto follow the law and these prospective jurors' unequivocalstatements that they could never vote to impose the death penalty,the trial court was not required to conduct a further examination.Consequently, had appellate counsel raised this issue on directreview, no reasonable probability exists that this court would havefound a Witherspoon violation.
Failure to Object to the Use of Residential Burglary as anEligibility and Aggravating Factor
Defendant next contends that his counsel was ineffectiveduring the sentencing hearing because counsel failed to object tothe State's use of residential burglary during the eligibility phaseas an aggravating factor rendering defendant eligible for the deathpenalty. When defendant was sentenced, residential burglary wasnot one of the enumerated felonies making a defendant eligible fora death sentence. See Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)(c)(now codified, as amended, at 720 ILCS 5/9-1(b)(6)(c) (West1998)). Defendant also contends that counsel was ineffective innot objecting to the use of the residential burglary conviction as anaggravating factor during the aggravation/mitigation phase.Finally, defendant asserts that appellate counsel was ineffective forfailing to raise this issue on appeal.
We can easily reject defendant's assertion with respect to theuse of residential burglary as an aggravating factor during theeligibility phase. At the conclusion of the eligibility phase, the juryreturned two verdicts: one found defendant eligible for the deathpenalty based on multiple murders (see Ill. Rev. Stat. 1985, ch. 38,par. 9-1(b)(3) (now 720 ILCS 5/9-1(b)(3) (West 1998))), the otherfound defendant eligible for the death penalty because the murdersoccurred during a home invasion or residential burglary (see Ill.Rev. Stat. 1985, ch. 38, par. 9-1(b)(6)(c) (now codified, asamended, at 720 ILCS 5/9-1(b)(6)(c) (West 1998))). Defendantraises no challenge to the jury's finding with respect to hiseligibility for the death penalty based upon multiple murders. Thelaw is well established that, where a defendant is found eligible forthe death penalty based upon two or more aggravating factors, thefact that one of those factors may later be found improper does notaffect the separate valid aggravating factor. People v. Macri, 185Ill. 2d 1, 58 (1998). Because the eligibility factor based uponmultiple murders remains valid, even if appellate counsel hadraised this issue on direct appeal, no reasonable probability existsthat this court would have found that the outcome of theproceeding would have been different if trial counsel had objectedto this use of the residential burglary conviction.
Turning to the other facet of defendant's argument, we see noineffectiveness in not objecting to the State's use of defendant'sconviction of residential burglary as an aggravating factor duringthe aggravation-mitigation stage. Because evidence of adefendant's prior crimes is admissible, as an aggravating factor(People v. Hope, 168 Ill. 2d 1, 41-42 (1995)), no reasonableprobability exists that, had appellate counsel raised this issue ondirect appeal, this court would have found that trial counsel wasineffective.
Failure to Object to the Trial Court's Praise of the Jury
Defendant next asserts that trial counsel was ineffective forfailing to object and move for a mistrial after the trial court praisedthe jury following the jury's finding defendant guilty. Defendantalso contends that appellate counsel was ineffective for failing toraise this issue on direct appeal.
After the jury returned verdicts finding defendant guilty, thetrial court, responding to an earlier request of the jury, told thejurors that they could begin hearing evidence for defendant'ssentencing hearing the next day. Before dismissing the jurors, thecourt stated, "I think you have certainly done a great job. You'vebeen very diligent and we will see you tomorrow."
A trial court has the duty to refrain from conveying improperimpressions to the jury. People v. Brown, 172 Ill. 2d 1, 38 (1996).For such comments to be reversible error, the defendant mustdemonstrate that the comments constituted a material factor in thejury's decision. Brown, 172 Ill. 2d at 38-39.
Here, we do not believe that the trial court's comment wasintended as a praise of the jury's guilty verdict. The context of thestatement reveals that the trial court was expressing its gratitudeto the jury for deliberating for several hours and for performing itsjob. Given this context, and the substantial amount of aggravatingevidence presented during the sentencing hearing, even if appellatecounsel had raised this issue on appeal, no reasonable probabilityexists that this court would have found trial counsel ineffective forfailing to object or seek a mistrial.
New Evidence Supporting Defendant's Claim That He WasTortured
Defendant next asserts that he is entitled to an evidentiaryhearing to present new evidence to support his claim that hisconfession was the result of torture. Defendant's new evidencefalls into four categories: (1) the OPS report finding that"psychological techniques and planned torture" were "systemic"and "methodical" in Area 2 and that Burge actively participated inand supervised this torture; (2) appellate court decisions holdingthat Burge tortured Wilson and that Burge was properly fired forhis role in torturing Wilson; (3) the discovery of 60 additional actsof torture from Area 2; and (4) the conclusion, by an expert on thepsychological effects of torture, that defendant was tortured.
On direct review, this court addressed the voluntariness ofdefendant's confession and held that the trial court did not err infinding defendant's confession voluntary. See Patterson, 154 Ill.2d at 445-47. Consequently, defendant's claim is barred by resjudicata. See Hobley, 182 Ill. 2d at 449. We have recognized,however, that, in the interests of fundamental fairness, the doctrineof res judicata can be relaxed if the defendant presents substantialnew evidence. See Hobley, 182 Ill. 2d at 449; People v. Madej,177 Ill. 2d 116, 132 (1997); see also People v. Evans, 186 Ill. 2d83, 91 (1999).
For new evidence to be sufficient to warrant a new trial, itmust be of such conclusive character that it will probably changethe result upon retrial. Hobley, 182 Ill. 2d at 449; see also Molstad,101 Ill. 2d at 134. Furthermore, the evidence must be material andnot merely cumulative, and " 'it must have been discovered sincethe trial and be of such character that it could not have beendiscovered prior to trial by the exercise of due diligence.' "Molstad, 101 Ill. 2d at 134, quoting People v. Baker, 16 Ill. 2d364, 374 (1959).
We will first address the "newness" of defendant's newevidence. The OPS report clearly qualifies as new evidence, as itdid not exist until after defendant's trial. The same rationaleapplies to the appellate court opinions upon which defendantrelies.
The same rationale, however, does not apply to all of the 60other cases involving torture at Area 2. The record clearlyestablishes that defendant's counsel obtained a copy of theplaintiff's proffer before counsel sought to reopen defendant'smotion to suppress. Thus, it would appear that any torture claimsthat were detailed in plaintiff's proffer should not be considerednew evidence. We do not believe such a simplistic approach to beappropriate, however. Many of the claims detailed in the plaintiff'sproffer are remote in time from defendant's claims. The amount oftime separating the incidents is a relevant consideration whendetermining admissibility. See Hobley, 159 Ill. 2d at 312; Banks,192 Ill. App. 3d at 994; see also Wilson, 6 F.3d at 1238. Evenincidents that are remote in time can become relevant, however, ifthe party presenting the evidence can present evidence of otherincidents that occurred in the interim. Thus, a single incident yearsremoved has little relevance. However, a series of incidentsspanning several years can be relevant to establishing a claim ofa pattern and practice of torture. Consequently, we believe that theclaims detailed in the proffer should be considered new evidence,but only if defendant can establish the later discovery of othertorture allegations linking defendant's claims to those containedin the proffer.
With respect to the report of defendant's expert on thepsychological effects of torture, this is clearly an examination that,in the exercise of due diligence, could have been completed beforedefendant's trial. Significantly, the expert's conclusions do not reston any evidence that was not available before defendant's trial.Consequently, we are unable to conclude that the expert's opinionconstitutes new evidence.
We now examine the new evidence to determine itsmateriality and whether it is of such a substantial character that itwould probably change the result on retrial.
The first item is the OPS report. The OPS report is actuallytwo reports. The first, the Goldston report, concerns the "historyof allegations of misconduct by area two personnel." The second,the Sanders report, is an "analysis of the Wilson case." TheGoldston report answered two specific questions: (1) "Is thereevidence that personnel assigned to Area 2 are guilty as regards thepractice of systemic abuse of individuals in their custody?" and (2)"If such systemic abuse did occur, is there evidence that Area 2command personnel were aware of such abuse and condoned thesame?"
With respect to the first question, the Goldston reportconcludes that "abuse did occur and that it was systemic." Thereport also explains that the abuse "was not limited to the usualbeating, but went into such esoteric areas as psychologicaltechniques and planned torture." With respect to the secondquestion, the report concludes that "[p]articular commandmembers were aware of the systemic abuse and perpetuated iteither by actively participating in same or failing to take any actionto bring it to an end."
The data supporting the Goldston report identify 13 otherincidents of the use of a plastic bag or a typewriter cover tosuffocate the victims and 11 incidents in which a firearm was usedto threaten or strike the victim. Of the incidents in which specificpolice officers were identified, Burge was identified in 51% of thecases. He was also alleged to have had some contact with at leasttwo of the other cases as well.
The Sanders report finds, inter alia, that Burge activelyparticipated in the "mistreatment" of Wilson, burned Wilson witha radiator, repeatedly shocked him, and "engaged Andrew Wilsonin several unjustified physical altercations during which Mr.Wilson was handcuffed and incapable of providing anyresistance."
Defendant also relies upon two appellate court opinions, onefederal and one state. The federal opinion holds that a rational jurycould have found from the "frequency of the abuse, the number ofofficers involved in the torture of Wilson, and the number ofcomplaints from the black community" that the superintendent ofpolice knew that officers in Area 2 were "prone to beat upsuspected cop killers." Wilson, 6 F.3d at 1240. Additionally, thecourt held that evidence of similar acts of torture were relevant tothe question of whether the officers tortured Wilson. Wilson, 6F.3d at 1238.
The state opinion is an unpublished appellate court decisionin which the court affirmed the decision to fire Burge and tosuspend two other officers for their roles in torturing Wilson.O'Hara v. Police Board, Nos. 1-94-0999, 1-94-2462, 1-94-2475cons. (1995) (unpublished order under Supreme Court Rule 23).In particular, defendant explains that the circuit court had held thatthe police board did not err in hearing evidence from Jones andMumin relating to the abuse they suffered while arrestees at Area2. He then notes that the appellate court affirmed the trial court'sdecision.
The final new evidence that defendant relies upon are thenumerous other allegations of torture that defendant's attorney hasdiscovered. Defendant asserts that his counsel has discovered 60cases of torture and abuse that Burge either participated in orsupervised. He explains that Burge directly participated in 27 ofthese cases. Of these 27, 11 involved suffocation by plastic bag ortypewriter cover, 6 involved threats with a gun, and 23 involvedbeatings. Of the cases supervised by Burge, 14 involvedsuffocation, 2 involved threats with a gun, and 29 involvedbeatings. Pienta was identified in five cases. Three of thoseinvolved suffocation and three involved beatings. Eight casesinvolved McWeeney, who was usually identified as an officer whoappeared to take a statement from the victim after the torture hadbeen completed. Finally, four cases implicated Madigan and threeimplicated Pedersen.
The State does not directly challenge the accuracy ofdefendant's information. Instead, the State argues that, becausedefendant did not suffer a physical injury, evidence of otherallegations of beatings is inadmissible. Indeed, the State boldlyasserts that "[t]his court has consistently required a showing ofphysical injury in order to admit evidence of other allegations ofpolice brutality." The State supports this statement by citing toeight different decisions. A review of these decisions, however,reveals that they do not support the State's assertion.
Two of the cases relied upon by the State do not even addressthe admissibility of other allegations of police brutality. Instead,they confine their analysis to the question of whether the defendantdemonstrated that he suffered injury at the hands of the police andwhat effect that has. See People v. Woods, 184 Ill. 2d 130 (1998);People v. Wilson, 116 Ill. 2d 29 (1987). In three cases, this courtrejected the other evidence because it consisted of onlygeneralized allegations of coercive activity. See Orange, 168 Ill.2d at 150-51; People v. Mahaffey, 165 Ill. 2d 445, 464 (1995);People v. Jones, 156 Ill. 2d 225, 245 (1993). One case involved adefendant who asserted that the police had injured him, but theevidence offered by the defendant did not support his assertions.Because the defendant's facts did not support his own claims, theother allegations of brutality were irrelevant. See People v.Maxwell, 173 Ill. 2d 102, 120-21 (1996).
That leaves, as the State's final two cases upon which it relies,this court's decisions in the direct and post-conviction appeals ofMadison Hobley. Neither of these cases, however, supports theState's position. In Hobley's direct appeal, the defendant reliedupon Banks and asserted that evidence of prior allegations ofpolice brutality should be admissible. This court rejected hisclaim, not because he failed to demonstrate a physical injury, butbecause the evidence in the defendant's case shared none of thecharacteristics of the evidence in Banks that made itadmissible-only one of which was that the defendant suffered aphysical injury. Hobley, 159 Ill. 2d at 312. Moreover, when thiscourt addressed the defendant's claim again in his post-convictionappeal, this court emphasized that the defendant's new evidenceof other allegations of torture would not change the result onretrial because the defendant's consistent assertion has been thathe did not confess; thus, evidence that his confession was coercedwas irrelevant. Hobley, 182 Ill. 2d at 448-50.
Moreover, despite its assertions in its brief that this otherevidence is irrelevant, the State's actions reveal that the State findsevidence of the other torture allegations highly relevant. After thebriefs were filed, the State filed a motion seeking to stay theproceedings. The basis of the State's motion was that the circuitcourt was holding a hearing after the remand in Cannon, 293 Ill.App. 3d 634, and that this hearing would "address and resolve theissues relating to allegations of police torture in Area 2 which areidentical to those raised in the present appeal." The State thenexplained that "[t]he resolution of the issues in the Cannonhearing will have a direct impact on the issues raised in this case."Finally, the State asked this court to stay these proceedingsbecause "petitioner's claims are directly affected by theproceedings in the Cannon case." Given the admissions containedin the State's motion, the State's insistence that the other evidenceis irrelevant is dubious at best.
In sum, as we earlier explained, the fact that the defendant hassuffered a physical injury is only one of many factors to considerwhen determining whether evidence of prior allegations of policebrutality are admissible. The question of relevancy is adetermination to be made by the trial court after a consideration of,inter alia, the defendant's allegations of torture and their similarityto the prior allegations.
After reviewing the new evidence relied upon by defendant,we believe that it is material and that, as pleaded, would likelychange the result upon retrial. In particular, we note that defendanthas consistently claimed that he was tortured. In fact, he made thisclaim during his first court appearance. Moreover, defendant'sclaims are now and have always been strikingly similar to otherclaims involving the use of a typewriter cover to simulatesuffocation. Additionally, defendant describes the use of a gun asa threat and beatings that do not leave physical evidence. Further,the officers that defendant alleges were involved in his case areofficers that are identified in other allegations of torture. Finally,defendant's allegations are consistent with the OPS findings thattorture, as alleged by defendant, was systemic and methodical atArea 2 under the command of Burge.
Thus, we believe that defendant has presented sufficientevidence at the pleading stage to entitle him to a hearing. At thishearing, the trial court can evaluate defendant's testimony in lightof the OPS report and the relevant prior allegations of torture.Such a hearing will allow the trial court to determine whether (1)any of the officers who interrogated defendant may haveparticipated in systemic and methodical interrogation abusepresent at Area 2 and (2) those officers' credibility at thesuppression hearing might have been impeached as a result.Consequently, we remand this action to the trial court for a hearingto consider defendant's new evidence relating to other allegationsof police misconduct at Area 2.
Knowing Use of Marva Hall's "Perjured" Testimony
Defendant next claims that the State violated his state andfederal constitutional rights by using Hall's testimony, which theState knew was false. Defendant did not include this issue in hisoriginal or amended post-conviction petition. Consequently it iswaived. 725 ILCS 5/122-3 (West 1998); People v. Brisbon, 164Ill. 2d 236, 258 (1995).
Pienta's Volunteered Statement that Defendant Had Taken aPolygraph
Defendant next asserts that Pienta's volunteered statementthat defendant had taken a polygraph violated defendant's dueprocess rights to a fair trial. Defendant asserts that Kubalanza wasineffective for failing to raise this issue. After reviewing therecord, we agree with the State that defendant failed to raise thisissue in his original or amended post-conviction petition.Admittedly, defendant's amended post-conviction petition allegesthat this trial counsel was ineffective for failing to respondadequately to Pienta's volunteered statement. On appeal, however,defendant does not argue that his trial counsel was ineffective forhis response to Pienta's statement. Rather, he argues that Pienta'sstatement, by itself, denied defendant of due process. This is adifferent claim and one that was not raised in defendant's originalor amended post-conviction petition. Consequently, it is waived.725 ILCS 5/122-3 (West 1998).
State's Failure to Tender the Results of FingerprintComparisons
Defendant's final claim is that the State violated Brady v.Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963),by failing to tender to either trial or post-conviction counsel theresults of fingerprint comparisons of a fingerprint taken from acassette recorder found on the victims' porch.
Once again, defendant did not include this claim in hisoriginal or amended post-conviction petition. Consequently, theclaim is waived. 725 ILCS 5/122-3 (West 1998).
Motion to Remand
Before oral argument was held, defendant filed a motion toremand this cause to the trial court for a suppression hearing atwhich "all relevant evidence of torture and injury can bepresented." We ordered that motion taken with the case.
After reviewing the record, we conclude that the properremedy is not to grant defendant a new suppression hearing, butrather to grant defendant a hearing on the claim in his post-conviction petition. Consequently, we deny defendant's motion.
CONCLUSION
We reverse the trial court's judgment in part and remand thisaction to the circuit court for an evidentiary hearing on defendant'sclaims that (1) his attorney was ineffective for failing to presentevidence at trial that defendant's confession was involuntary; and(2) substantial new evidence supports defendant's claim that hisconfession was the result of police brutality. The trial court'sjudgment is affirmed with respect to defendant's other claims.
Affirmed in part and reversed in part; cause remanded.
JUSTICE HEIPLE, concurring in part and dissenting in part:
I agree with the majority that defendant is entitled to anevidentiary hearing on his claim that his trial counsel wasineffective for failing to present evidence at trial that defendant'sconfession was coerced, and on his claim that new evidencedemonstrates that his confession was the product of torture at thehands of police. I write separately however because I believedefendant is also entitled to an evidentiary hearing on his claimthat his counsel was ineffective for failing, during the hearing onthe motion to suppress defendant's confession, to make argumentswhich would have resulted in the admission of additional evidencein support of defendant's claims of torture by police.
FACTS
On April 19, 1986, Vincent Sanchez and Rafaela Sanchezwere found stabbed to death in their home in Chicago. The bodieswere discovered after Wayne Washington, a 13-year-old youthwho routinely performed odd jobs for the couple, alerted neighborsthat the rear door of the Sanchez home was open and that thekitchen floor was bloody. Neighbors subsequently called police.After the police officers discovered the bodies, they questionedWashington. He told police that he had seen Eric Caine and"DeEdward" "across from" the Sanchez residence. Police laterlocated DeEdward and brought him to the police station forWashington to identify.
Shortly thereafter, DeEdward's 16-year-old cousin, MarvaHall, came forward claiming to have information about themurders. At the time she spoke to police, Hall believed thatDeEdward had been arrested for the murders and was still in jail.In her statement, Hall claimed that defendant had told her that he,and not Hall's cousin who had also been questioned in connectionwith the murders, had killed the Sanchezes.
Several days later, defendant was arrested by police on anunrelated matter and was taken to the fourth district police stationin Chicago. Shortly thereafter, Detective James Pienta, who wasinvestigating the Sanchez murders, learned that defendant hadbeen taken into custody. Pienta then went to the fourth districtpolice station and transported defendant to Area Two ViolentCrimes headquarters, where defendant was questioned by twoofficers.
According to police, defendant initially denied knowledge ofthe Sanchez murders. Subsequently however, defendant told policeofficers that he, along with another man, had killed the Sanchezesduring the course of a robbery. The police reduced defendant'sconfession to writing, although defendant refused to sign it.
Defendant acknowledges that he told police that he hadcommitted the Sanchez murders. However, defendant contendsthat he did so only after he was tortured by police officers duringhis interrogation. Before his trial, defendant filed a motion tosuppress his confession on the ground that it was involuntary. Atthe hearing on the motion to suppress, defendant testified that hewas tortured for an extended period of time by a red-haired officer(later identified as Jon Burge), by Detective Pienta, and by others.According to defendant, the torture included repeated beatings,threats at gunpoint, and suffocation using a gray plastic typewritercover. In support of his claims, defendant attempted to introducephotographs which allegedly depicted an interior view of theinterview room where defendant was questioned. According to adefense offer of proof, the photographs would have shown certainmessages which defendant had etched, using a paper clip, into abench in the interview room when he was left alone after givinghis confession. These photographs, which were subsequentlyintroduced at sentencing, showed the following writings on thebench of the interview room:
"I lied about murders police threatened me withviolence slapped and suffocated me with plastic-nophone-no dad signed false statement to murders (Tonto)Aaron."
"Sign false statements to murder, Tonto on statementsis code word Aaron."
The phrase "Aaron lied" also appears etched on the door to theroom.
Defendant argued that these etched statements, made close intime to his confession, strongly supported his claims that hisconfession had been coerced by means of police torture. The trialcourt refused to consider defendant's written statements, however,ruling that they were inadmissible hearsay. This court affirmed thetrial court's ruling on defendant's direct appeal. Patterson, 154 Ill.2d at 451-54. In reaching our holding, this court considered andrejected defendant's arguments that the etchings were admissibleeither under the spontaneous declaration or prior consistentstatement exceptions to the hearsay rule. Patterson, 154 Ill. 2d at452-53. This court likewise rejected defendant's arguments thatthe statements were admissible under the curative admissibilityand completeness doctrines. Patterson, 154 Ill. 2d at 453-54.(4)
DISCUSSION
In his post-conviction petition, defendant contends that histrial counsel was ineffective for failing to argue for the admissionof the etchings on the grounds that hearsay is admissible atmotions to suppress and other pretrial hearings. Defendant arguesthat this position was amply supported by existing law at the timeof the suppression hearing, citing United States v. Matlock, 415U.S. 164, 172-75, 39 L. Ed. 2d 242, 250-52, 94 S. Ct. 988, 993-95(1974); Brinegar v. United States, 338 U.S. 160, 93 L. Ed. 1879,69 S. Ct. 1602 (1949); United States v. Bolin, 514 F.2d 554, 557(7th Cir. 1975); Fed. R. Evid. 104(a), 1101(d)(1); People v. Jones,75 Ill. App. 2d 332, 337-38 (1966); People v. Fugate, 77 Ill. App.3d 103, 105 (1979); and People v. Lesure, 271 Ill. App. 3d 679,680, 683 (1995). Defendant also contends that his attorney wasineffective for failing to argue that the etchings were admissible torebut the State's evidence that defendant did not complain ofinjury or protest his treatment to the paramedic, the assistantState's Attorneys, or the detectives. Defendant maintains that, hadhis counsel made these arguments, the results of the suppressionhearing would have been different.
In today's opinion, the majority correctly holds that theetchings would have been admissible, even if they were hearsay,in the context of a motion to suppress. The majority refuses togrant defendant an evidentiary hearing on his claim, however, onthe ground that defendant has failed to establish a reasonableprobability that, had the evidence been admitted, the results of thesuppression hearing would have been different. The majority statesthat the trial court refused to admit the etchings not only becausethe judge believed them to be hearsay, but also because the judgefound that defendant could not establish that the photographsaccurately depicted the etchings as they were when the defendantmade them, and because the etchings were not relevant to themotion to suppress. The majority holds that these findings indicatethat the judge would have given no weight to the etchings even ifthe photographs had been admitted and, therefore, the result of thesuppression hearing would have been the same.
The majority is incorrect. First, the majority misreads therecord when it states that the trial judge found that the etchingswere not relevant to the motion to suppress. A careful reading ofthe hearing transcript indicates that it was the testimony of thephotographer, not the photographs of the etchings themselves,which the judge found to be irrelevant. That finding, however, waspremised upon the judge's belief that the photographs of theetchings were inadmissible as hearsay. In that light, the judge'sruling makes perfect sense. If the photographs are indeedinadmissible hearsay, then the testimony by the photographerconcerning how, when, and where the photographs were takenwould indeed be irrelevant. However, because this court has nowrecognized that the photographs of the etchings were admissibleeven if hearsay, the judge's findings concerning the relevance ofthe photographer's testimony is shown to be error. Moreover, evenif the majority's reading of the record were correct and the judgehad found that photographs of the etchings were themselvesirrelevant to defendant's contention that he was tortured by police,such a finding would be clearly erroneous.
The majority further states that "the trial court *** specificallyfound that it did not believe that defendant had established that theetchings in the pictures were in the same condition as the etchingswere when defendant allegedly made them." Slip op. at 10. Indeed,after reiterating its erroneous position that the photographs wereinadmissible as hearsay, the court made the following comments:
"I believe another important aspect that is very disturbingis the point of time where the etchings originated when infact the investigator went and viewed these etchings.Certainly it would be rather difficult, if not impossible,but it would be difficult for the defense to show that theseetchings are exactly as they were on the date indicatedherein. There is a point of time, there is a certainpossibility of any possible changes that could have beenmade, which we would have no knowledge of but whichwould have transpired on this theory ***."
According to the majority, these statements demonstrate that thetrial court would have given no weight to the photographs even ifthey had been admitted.
The majority reads too much into the trial court's comments.Although the trial court raised the possibility the etchings had beentampered with and expressed skepticism concerning the ability ofthe defense to establish that the etchings had not been altered fromtheir original form before they were photographed, the courtstopped well short of finding that etchings had been tampered withor that the photographs were inaccurate. In any event, the trialcourt's initial erroneous rulings that the photographs wereinadmissible hearsay and that the testimony of the photographerwas irrelevant deprived the defense of any meaningful opportunityto establish the accuracy and authenticity of the photographs.Under the circumstances of this case, therefore, I do not believethat this court can confidently state that the trial court would havegiven no weight to photographs which appear to show messageswritten by defendant immediately after he was allegedly torturedby police. On the contrary, these etchings, if authentic, would behighly probative of the veracity of defendant's claims of torture.Accordingly, I would hold that the allegations of defendant'spetition, taken as true, establish a reasonable probability thatdefendant's confession would have been suppressed if defensecounsel had made the proper legal arguments for the admission ofthe photographs. Defendant is therefore entitled to an evidentiaryhearing on this claim.
CONCLUSION
For the foregoing reasons, I concur in the majority's holdinggranting defendant evidentiary hearings on the two claimsidentified in the majority's opinion. I dissent, however, from themajority's refusal to grant an evidentiary hearing on defendant'sadditional claim that he received ineffective assistance of counselat the hearing on his motion to suppress his confession.
1. 1The record does not reveal why defendant's case was transferred toJudge Morrissey.
2. 2The proffer was a document summarizing other claims of torture bypeople interrogated at Area 2.
3. 3Although defendant ascribes these statements to himself, the recorddoes not reveal whether defendant or a codefendant was the speaker.For purposes of this appeal, we will accept defendant's representationthat he was the speaker.
4. 4At this stage, defendant makes no argument concerning thecorrectness of this court's ruling on direct appeal, and as such, that issueis not properly before the court at this time.