People v. Erickson

• Decision Date: 28 July 1994
• Docket Number: No. 72667,72667
• Citation: 641 N.E.2d 455,204 Ill.Dec. 231,161 Ill.2d 82
• Parties: , 204 Ill.Dec. 231 The PEOPLE of the State of Illinois, Appellee, v. Paul S. ERICKSON, Appellant.
• Court: Illinois Supreme Court

Page 455

641 N.E.2d 455

161 Ill.2d 82, 204 Ill.Dec. 231

The PEOPLE of the State of Illinois, Appellee, v. Paul S. ERICKSON, Appellant.

No. 72667.

Supreme Court of Illinois.

July 28, 1994.

Rehearing Denied Oct. 3, 1994.

Rita A. Fry, Public Defender (Kyle Wesendorf, Asst. Public Defender, of counsel), and Christina M. Tchen and Rawn Howard Reinhard, Chicago, 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 G. Goldfarb, Kenneth McCurry and Michael Golden, Asst. State's Attys., of counsel), Chicago, for the People.

Justice FREEMAN delivered the opinion of the court:

After waiving the jury that had convicted him, defendant was sentenced to death for raping Elizabeth Launer, murdering her, and concealing the homicide. This court affirmed the convictions and sentence on direct appeal. (People v. Erickson (1987), 117 Ill.2d 271, 111 Ill.Dec. 924, 513 N.E.2d 367.) After the United States Supreme Court declined review (Erickson v. Illinois (1988), 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216), defendant pursued, unsuccessfully, post-conviction relief (Ill.Rev.Stat.1989, ch. 38, par. 122--1) in the circuit court of Cook County. Defendant appeals the dismissal of his petition for that relief (134 Ill.2d R. 651(a)), seeking, alternatively, remand for an evidentiary hearing on it or a new sentencing hearing.

We affirm.

As this court's earlier opinion summarizes the circumstances of the convictions and sentence, only the facts necessary to understand the issues raised are noted.

THE TESTIMONY OF JOHN WELICZKO

After learning of the charges against their son, defendant's parents sought out, for themselves, the professional counseling services of John Weliczko. (See Erickson, 117 Ill.2d at 285, 111 Ill.Dec. 924, 513 N.E.2d 367.) Weliczko eventually extended his services to the defense, testifying as the sole witness on defendant's behalf during the sentencing phase of the trial.

It was intended that Weliczko would give his opinion as a mental health expert that a psychological condition explained defendant's criminal behavior. (See Ill.Rev.Stat.1989, ch. 38, par. 9--1(c)(2); Erickson, 117 Ill.2d at 285, 301, 111 Ill.Dec. 924, 513 N.E.2d 367.) Weliczko did testify as to what might have accounted for defendant's acts. But he did so as a lay person, the trial judge having refused to qualify him as an expert. See Erickson, 117 Ill.2d at 285, 301, 111 Ill.Dec. 924, 513 N.E.2d 367. There was good reason for this. In relating his credentials, Weliczko had stated that he held a masters degree in psychology from Harvard University and a doctorate in the field from the University of Chicago. Weliczko, in fact, was not trained in psychology.

Cross-examined about his background, Weliczko admitted the Harvard masters degree was in theology. As for the doctorate, it was a ministry degree in pastoral counseling and psychology. Further, the degree-granting institution was not the University of Chicago but the Chicago Theological Seminary, an entity affiliated with the university.

Weliczko did manage to offer that he practiced psychotherapy, and, therefore, was, like a licensed psychologist, recognized to be a mental health care provider. He stated that, like a psychologist, a psychotherapist could evaluate a person and arrive at "somewhat the same conclusions" about the person's mental health. For those reasons, it appears, the trial judge considered Weliczko's opinion, albeit as a lay person, and accepted into evidence his written "psychological" evaluation of defendant. See Erickson, 117 Ill.2d at 301, 111 Ill.Dec. 924, 513 N.E.2d 367.

Defendant now complains Weliczko's testimony denied him a fair death penalty hearing. He cites guarantees of the sixth, eighth, and fourteenth amendments of the United States Constitution (U.S. Const., amends. VI, VIII, XIV) as well as unspecified protections of the Illinois Constitution. Defendant also directs attention to decisions decrying the use of perjured testimony. See, e.g., People v. Cornille (1983), 95 Ill.2d 497, 69 Ill.Dec. 945, 448 N.E.2d 857 (allowing post-conviction relief where the State's expert witness lied about his academic scholarship and achievements).

The misrepresentation of professional credentials would be a serious concern but for the fact that Weliczko was retained by, and testified for, the defense, not the State. But the claim is even more fundamentally flawed: whatever effect Weliczko's testimony might have had was apparent when his credentials were challenged on cross-examination. The opportunity to take issue with Weliczko's testimony was therefore on direct appeal, not in a collateral attack in a post-conviction proceeding.

Failure to raise a claim which could have been addressed on direct appeal is a procedural default which results in a bar to consideration of the claim's merits in a post-conviction proceeding. (People v. Albanese (1988), 125 Ill.2d 100, 104-05, 125 Ill.Dec. 838, 531 N.E.2d 17.) Excused in limited circumstances (see People v. Flores (1992), 153 Ill.2d 264, 274, 180 Ill.Dec. 1, 606 N.E.2d 1078), the result of a procedural default forces acknowledgment of a conviction's finality, an elemental concern in any such proceeding (see People v. Free (1988), 122 Ill.2d 367, 378, 119 Ill.Dec. 325, 522 N.E.2d 1184).

Defendant attempts to skirt the procedural bar under an exception which looks to matters which were not a part of the record on direct appeal. He points to a copy of Weliczko's transcript from the Chicago Theological Seminary and an affidavit of an official at Gordon College in Wenham, Massachusetts, which shows Weliczko earned a degree in philosophy there.

Defendant concedes the State debunked Weliczko's assertion that he was a psychologist. But he insists a different injurious "perjury" is shown by the affidavit and documents: that is, Weliczko lied about actually holding a degree in the field of psychology.

The argument glosses over the reason why the procedural bar properly may be relaxed given matters outside the trial record. The bar normally reaches to all matters that could have been--not merely were not--earlier raised. Thus, the mere fact that support for a claim is contained in papers not in the trial record is largely immaterial. Reason to relax the bar occurs only when what is offered in the papers also explains why the claim it supports could not have been raised on direct appeal.

For example, the default may not preclude an ineffective-assistance claim for what trial counsel allegedly ought to have done in presenting a defense. (See generally People v. Hall (1993), 157 Ill.2d 324, 336-37, 193 Ill.Dec. 98, 626 N.E.2d 131; People v. Kokoraleis (1994), 159 Ill.2d 325, 202 Ill.Dec. 279, 637 N.E.2d 1015; People v. Owens (1989) There is nothing in the content of the affidavit and documents here offering more than what is evident from the record itself. The issue of prejudice resulting from Weliczko's testimony could have been raised on direct appeal based on the testimony elicited during the sentencing hearing. Weliczko had admitted that his academic background was in theology and ministry and that, in fact, he was not a psychologist. The admissions were fixed in the record as a result of the cross-examination. The affidavit and documents reveal no more than Weliczko's own testimony. Finding no reason to excuse the procedural default, defendant's claim must be dismissed.

                [204 Ill.Dec. 235] 129 Ill.2d 303, 308-09, 135 Ill.Dec. 780, 544 N.E.2d 276;  see also Perry v. Fairman (7th Cir.1983), 702 F.2d 119, 122 (collecting Illinois appellate cases).)   An ineffective-assistance claim based on what the record on direct appeal discloses counsel did, in fact, do is, of course, subject to the usual procedural default rule.  (See People v. Kokoraleis (1994), 159 Ill.2d 325, 202 Ill.Dec. 279, 637 N.E.2d 1015.)   But a claim based on what ought to have been done may depend on proof of matters which could not have been included in the record precisely because of the allegedly deficient representation.  But see People v. Jones (1985), 109 Ill.2d 19, 23, 92 Ill.Dec. 552, 485 N.E.2d 363 (barring consideration of a claim of counsel's ineffectiveness for not presenting evidence which was included in the trial record)
                

ASSISTANCE OF COUNSEL AT THE SENTENCING PHASE

Defendant claims his counsel's representation was so deficient at the sentencing phase of trial that the process failed. Although its basis is not identified, such a claim is rooted in protections of the sixth and fourteenth amendments of the United States Constitution. (See U.S. Const., amends. VI, XIV; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.) It should be noted that counsel who represented defendant at sentencing did not represent him on direct appeal or in the post-conviction proceeding.

Defendant asserts several grounds independently support his claim. Two relate directly to Weliczko's testimony. Defendant first points to the failure to verify Weliczko's credentials. He then argues that proffering Weliczko's testimony actually undermined the defense strategy.

Neither point may now be considered. Again, defendant's opportunity to raise those arguments was on direct appeal. Any inadequacy there may have been with counsel's representation with respect to Weliczko was evident when Weliczko was cross-examined. Defendant failed to take issue with that representation on direct appeal and so is procedurally barred from doing so here (People v. Albanese, 125 Ill.2d at 104-05, 125 Ill.Dec. 838, 531 N.E.2d 17) absent some exception. We find none.

Defendant next asserts counsel failed to independently investigate and present other mitigating evidence, including a competent psychological profile. Defendant argues that that evidence would show he had endured a childhood of psychological, emotional, and sexual abuse and that he...