People v. Collins

• Decision Date: 19 November 1992
• Docket Number: No. 72060,72060
• Citation: 180 Ill.Dec. 60,153 Ill.2d 130,606 N.E.2d 1137
• Parties: , 180 Ill.Dec. 60 The PEOPLE of the State of Illinois, Appellee, v. Roger COLLINS et al., Appellants.
• Court: Illinois Supreme Court

Page 1137

606 N.E.2d 1137

153 Ill.2d 130, 180 Ill.Dec. 60

The PEOPLE of the State of Illinois, Appellee, v. Roger COLLINS et al., Appellants.

No. 72060.

Supreme Court of Illinois.

Nov. 19, 1992.

Julius Lucius Echeles, Chicago, for appellants.

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

Justice CLARK delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendants Roger Collins and William Bracey were convicted of armed robbery (Ill.Rev.Stat.1979, ch. 38, par. 18-2), aggravated kidnapping (Ill.Rev.Stat.1979, ch. 38, par. 10-2(a)(3)), and murder (Ill.Rev.Stat.1979, ch. 38, par. 9-1(a)(1)). Pursuant to section 9-1(d) of the Criminal Code of 1961 (Ill.Rev.Stat.1979, ch. 38, par. 9-1(d)), the State requested a death penalty hearing, which was heard by the same jury. The jury found that there were no mitigating factors sufficient to preclude a sentence of death (Ill.Rev.Stat.1979, ch. 38, par. 9-1(g)); therefore, the court sentenced the defendants to death.

On direct appeal to this court (73 Ill.2d R. 603), the convictions and sentences were affirmed. (People v. Collins (1985), 106 Ill.2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267 (Collins I ).) A petition for rehearing in this court was denied, and the United States Supreme Court denied the defendants' petition for writ of certiorari.

On May 2, 1986, the defendants filed a joint petition under the Post-Conviction Hearing Act (Ill.Rev.Stat.1985, ch. 38, par. 122-1 et seq.). The State filed a motion to dismiss the petition, to which the defendants filed a response. On March 21, 1991, the trial judge dismissed the petition without an evidentiary hearing. Review of the post-conviction petition for relief raises one issue: Did the trial court err in denying the post-conviction petition?

The facts relating to the underlying crimes will not be set out in their entirety, as a comprehensive review of the evidence is contained in Collins I and the defendants do not maintain that their convictions were not supported by the evidence. Rather, relevant facts will be discussed as they are germane to the issues on review.

The defendants first argue that they were deprived of a fair trial and an impartial jury by the presence on the jury of the wife of an appellate court judge who had sentenced one of the defendants in an earlier conviction when the judge was sitting on the circuit court.

During voir dire, one of the venirepersons, Dorothy Downing, stated that she was the wife of an Illinois appellate judge sitting in the first district. She also stated that her husband had formerly been a judge on the circuit court of Cook County. When questioned by the trial judge in this matter, Downing stated that the fact that her husband was an appellate judge would have no effect upon her consideration of the defendants' case and that she could be fair and impartial. She was accepted by both counsel as a juror.

No objection was raised to Downing's presence on the jury during trial. However, on direct appeal to this court, the defendants argued that her presence on the jury was per se prejudicial, requiring that their convictions be set aside. This court concluded that the defendants had waived the issue for purposes of review.

When a defendant has previously taken a direct appeal, all matters which were raised or which could have been raised on that direct appeal are res judicata in his subsequent post-conviction proceeding. (People v. Neal (1990), 142 Ill.2d 140, 146, 154 Ill.Dec. 587, 568 N.E.2d 808.) "Determinations of the reviewing court on the prior direct appeal are res judicata as to issues actually decided and issues that could have been presented on direct appeal and that were not are deemed waived." (People v. Albanese (1988), 125 Ill.2d 100, 105, 125 Ill.Dec. 838, 531 N.E.2d 17.) Although a dissent filed in Collins I made essentially the same argument that the defendants are now presenting to this court (see Collins, 106 Ill.2d at 289, 87 Ill.Dec. 910, 478 N.E.2d 267 (Clark, C.J., dissenting, joined by Simon, J.)), we recognize that the majority found the question of Downing's presence on the jury to have been waived by the defendants. Therefore, the issue is res judicata.

Defendants next allege that the prosecution improperly used peremptory challenges to systematically exclude prospective black jurors from sitting on the jury. In Batson v. Kentucky (1986), 476 U.S. 79, 97-98, 106 S.Ct. 1712, 1723-24, 90 L.Ed.2d 69, 88-89, the United States Supreme Court held that a prosecutor's use of the peremptory challenge to exclude blacks from a jury trying a black defendant may be the basis for an equal protection challenge. Following its opinion in Batson, the Court held that its rule applies to cases pending on direct review at the time Batson was decided. (Griffith v. Kentucky (1987), 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649.) The Batson opinion did not, however, apply to cases on collateral review. (Allen v. Hardy (1986), 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199.) Since this case was not pending on direct appeal at the time Batson was decided, Batson is inapplicable. People v. Davis (1987), 119 Ill.2d 61, 64, 115 Ill.Dec. 553, 518 N.E.2d 78.

The standard under which the defendants' claim is to be reviewed is that found in the Supreme Court's opinion in Swain v. Alabama (1965), 380 U.S. 202, 227, 85 S.Ct. 824, 839, 13 L.Ed.2d 759, 776 ("[T]he defendant must, to pose the issue, show the prosecutor's systematic use of peremptory challenges against Negroes over a period of time"). Although the holding in Swain was based on fourteenth amendment guarantees, this court has held that "the authority of Swain was not lessened because of the recognition of a sixth amendment fair-cross-section requirement in Taylor v. Louisiana (1975), 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690." People v. Williams (1983), 97 Ill.2d 252, 278, 73 Ill.Dec. 360, 454 N.E.2d 220. In their post-conviction petition, the defendants did not raise any claim of the case-by-case exclusion of blacks required by Swain nor have they submitted any affidavits or made any sort of showing of this practice. The mere allegation of an equal protection challenge without more is insufficient to warrant an evidentiary hearing on the issue. Accordingly, we conclude that the defendants have failed to provide any basis upon which post-conviction relief can be granted on this issue.

The defendants next argue that they were denied effective assistance of counsel. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, established the standard by which claims of ineffective assistance of counsel are to be measured. A defendant must show (1) counsel's performance was so seriously deficient as to fall below an objective standard of reasonableness under prevailing professional norms and (2) that the deficient performance so prejudiced the defense as to deny the defendant a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

In the present matter, the defendants first argue that counsel's failure to object at trial to the presence of Downing on the jury amounted to ineffective assistance of counsel. The defendants also argue that it was incompetent of counsel to reveal to the jury that Judge Downing sentenced Bracey to the penitentiary in 1970. Knowing that Bracey had an extensive criminal history, trial counsel had him testify as to the extent of his convictions on direct examination rather than have the information brought to the attention of the jury on cross-examination. In so doing, it was revealed to the jury that Judge Downing had sentenced Bracey to serving time in the penitentiary in 1970.

Both of these examples the defendants rely on as instances of counsel's ineffectiveness were considered and rejected by this court in Collins I. (Collins, 106 Ill.2d at 273, 87 Ill.Dec. 910, 478 N.E.2d 267.) With respect to the first argument, this court stated that both attorneys were in a better position than this court, based simply on a review of "a cold record," to assess Downing's demeanor in response to questions from the court about her ability to be a fair and impartial juror. As both attorneys accepted Downing as a juror, knowing her relationship to Judge Downing, this court was unable to determine that their decision was unreasonable. Likewise, this court considered the defendants' second claim under the Strickland standard of ineffective assistance of counsel and concluded that, while defense counsel's mention of Judge Downing in connection with one of Bracey's prior convictions was "an error in judgment," it was not so substantial an error that defense counsel failed to " 'function[ ] as the "counsel" guaranteed the defendant by the Sixth Amendment.' " (Collins, 106 Ill.2d at 273, 87 Ill.Dec. 910, 478 N.E.2d 267, quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.) Although we note that the dissent in Collins I concluded otherwise on both of these issues (see Collins, 106 Ill.2d at 288, 87 Ill.Dec. 910, 478 N.E.2d 267 (Clark, C.J., dissenting, joined by Simon, J.)), we abide by our original decision on the matter. Accordingly, we find that both these issues are res judicata for purposes of this petition.

The defendants next argue that the counsel was ineffective for failing to preserve facts concerning the racial make up of the jury. The defendants have offered no affidavits or made any sort of showing in support of their allegations, simply requesting that an evidentiary hearing be granted at which they could demonstrate the alleged error. Under the Post-Conviction Hearing Act, a defendant is not entitled to a hearing as a matter of right, but only where the allegation of a substantial violation of constitutional rights...