People v. Emerson, 71955

Decision Date19 November 1992
Docket NumberNo. 71955,71955
Citation180 Ill.Dec. 46,153 Ill.2d 100,606 N.E.2d 1123
Parties, 180 Ill.Dec. 46 The PEOPLE of the State of Illinois, Appellee, v. Dennis EMERSON, Appellant.
CourtIllinois Supreme Court

Prentice H. Marshall, Jr., Barbara M. DeCoster and Linton J. Childs, Sidley &amp Austin, Chicago (Andrew R. Klein, of Birmingham, Alabama, of counsel), for appellant.

Roland W. Burris, Atty. Gen., Springfield, and Jack O'Malley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Renee Goldfarb and Margaret M. Regan, Asst. State's Attys., of counsel), for the People.

Justice THOMAS J. MORAN delivered the opinion of the court:

The defendant, Dennis Emerson, appeals from an order of the circuit court of Cook County, dismissing, without an evidentiary hearing, his petition for post-conviction relief. Because the defendant was sentenced to death, the present appeal lies directly to this court. (134 Ill.2d R. 651(a).) We affirm the judgment of the circuit court.

The defendant's convictions stem from his participation in the armed robbery and murder of Delinda Byrd, and the armed robbery and attempted murder of Robert Ray. The incriminating evidence against the defendant was largely provided by Robert Ray, co-owner and operator of the Centaur Lounge, located in Chicago. Ray testified that in the early morning of August 13, 1979, defendant and his brother, Richard Jackson, arrived at his lounge. After Ray had let them in, the three sat down and talked in Ray's apartment, which was connected to the lounge. After Ray's girlfriend, Delinda Byrd, appeared, defendant unexpectedly stood up, pulled out a gun, and ordered Ray and Byrd to lie down on the floor. After defendant bound them both, he robbed them of their money, jewelry, guns and business proceeds. Subsequently, defendant proceeded to stab Ray and Byrd repeatedly with a half pair of scissors. Defendant then started a fire in the bedroom, and threw both Ray and Byrd into the burning room, securing the door shut from the outside with a clothes hanger. Ray eventually escaped; however, Byrd died from a loss of blood, attributable to the stab wounds. A more thorough review of the facts of this case, which is unnecessary for our purposes here, can be found in People v. Emerson (1987), 122 Ill.2d 411, 119 Ill.Dec. 250, 522 N.E.2d 1109.

Defendant's first trial resulted in a guilty verdict on October 6, 1980, but on appeal, his convictions were reversed. The cause was remanded to the trial court as a result of improper comments made by the assistant State's Attorney during trial and improperly admitted testimony, both errors which deprived defendant of a fair trial. (People v. Emerson (1983), 97 Ill.2d 487, 74 Ill.Dec. 11, 455 N.E.2d 41 (hereinafter Emerson I ).) On remand, defendant was again convicted in a jury trial of one count each of murder, attempted murder, and aggravated arson; and of two counts of armed robbery. The jury found that the defendant was eligible for the death penalty and that there were no mitigating factors sufficient to preclude the imposition of death. The circuit court then imposed the death sentence on defendant.

Subsequently, this court reversed defendant's conviction on the aggravated arson count, but affirmed all of the other counts, including the death sentence. (People v. Emerson (1987), 122 Ill.2d 411, 119 Ill.Dec. 250, 522 N.E.2d 1109 (hereinafter Emerson II ).) After the United States Supreme Court denied defendant's petition for writ of certiorari (Emerson v. Illinois (1988), 488 U.S. 900, 109 S.Ct. 246, 102 L.Ed.2d 235), he instituted the present action under the Post-Conviction Hearing Act (the Act) (Ill.Rev.Stat.1987, ch. 38, par. 122-1 et seq.), by filing a pro se petition for post-conviction relief on March 2, 1989. The State immediately moved to dismiss the petition. Subsequently, through present counsel, the defendant filed a supplemental petition. On March 1, 1991, the circuit court granted the State's motion to dismiss defendant's petition without an evidentiary hearing, relying on the doctrine of res judicata.

In his present appeal, the defendant asks that, as a result of the deprivation of his constitutional rights, he be granted a new trial, or in the alternative, either a new sentencing hearing, or discovery and an evidentiary hearing on the claims raised in his post-conviction petitions. We find that the sole issue for our consideration is whether the trial court erred in dismissing defendant's petition for post-conviction relief.

The principal constitutional claim underlying the defendant's petition for post-conviction relief, and now presented for our review, is that he was denied the effective assistance of counsel during both the guilt and sentencing phase of his trial. In addition, the defendant raises a number of challenges to the constitutionality of the Illinois death penalty statute (Ill.Rev.Stat.1987, ch. 38, par. 9-1). The State, however, argues that we should affirm the trial court by finding that further consideration of these issues has been barred by the doctrines of res judicata and waiver.

In support of his claim, defendant argues that "fundamental fairness" requires that this court consider his claims at this time. He points out that Illinois courts have articulated several specific exceptions to the application of res judicata to post-conviction claims, including an exception for claims supported by facts that were not before the reviewing court on direct appeal.

In his post-conviction petition, defendant alleged, with regard to the guilt phase of the trial, that his attorney (1) failed to interview defendant before trial; (2) failed to develop a meaningful and consistent theory of defense, as demonstrated by his failure to make an opening statement, to investigate and call witnesses, to conduct effective cross-examinations, and to object to improper cross-examination by the prosecution; (3) committed errors during closing argument, such as conceding defendant's guilt, and failing to object to improper comments made by the prosecution; and (4) openly expressed his antagonism toward defendant throughout the trial. With regard to the sentencing phase of his trial, defendant alleged that his attorney: (1) did not adequately prepare; (2) failed to describe this segment of the trial to the defendant; (3) did not ask defendant if any witnesses could testify on his behalf; (4) conducted no investigation concerning defendant's background; (5) failed to offer any evidence in mitigation; and (6) made no opening or closing arguments.

Moreover, he maintained that the facts surrounding his attorney's deficiencies were outside the record on direct appeal to this court. For example, the best evidence in support of his ineffectiveness claim is testimony and argument from defendant's first trial, where he alleged that he had been represented by counsel whose conduct was consistent with constitutional standards. Since the testimony and argument from the first trial was not before this court on direct appeal of defendant's second trial, defendant now argues that his claim here falls within the res judicata exception for evidence not presented to the court on direct appeal.

Finally, defendant contended that the death penalty statute is unconstitutional since: (1) it leads to the arbitrary and capricious imposition of the death penalty; (2) it fails to require pretrial notice that the State is seeking the death penalty, which violates the due process clauses of the Illinois and United States Constitutions; and (3) it places the burden on the defendant to prove the existence of mitigating factors sufficient to preclude imposition of the death penalty.

The purpose of a post-conviction petition was previously articulated by our court in People v. Ruiz (1989), 132 Ill.2d 1, 138 Ill.Dec. 201, 547 N.E.2d 170, as follows:

"An action for post-conviction relief represents a collateral attack on a prior judgment; it is not an appeal from the underlying conviction and sentence. [Citations.] To be entitled to post-conviction relief, a defendant must establish a substantial deprivation of Federal or State constitutional rights in the proceedings that produced the judgment under attack [citation]. Rulings on issues...

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