People v. Guest

• Decision Date: 18 May 1995
• Docket Number: No. 73572,73572
• Parties: , 211 Ill.Dec. 490 The PEOPLE of the State of Illinois, Appellee, v. Anthony GUEST, Appellant.
• Court: Illinois Supreme Court

Page 873

655 N.E.2d 873

166 Ill.2d 381, 211 Ill.Dec. 490

The PEOPLE of the State of Illinois, Appellee, v. Anthony GUEST, Appellant.

No. 73572.

Supreme Court of Illinois.

May 18, 1995.

Rehearing Denied Oct. 2, 1995.

[166 Ill.2d 387] [211 Ill.Dec. 493] Nancy Albert-Goldberg, and Marshall J. Hartman, both of Chicago, for appellant.

Roland W. Burris, Attorney General, Springfield, and Jack O'Malley, State's Attorney, Chicago (Arleen C. Anderson, Assistant Attorney General, Chicago, and Renee Goldfarb, James E. Fitzgerald and Janet C. Mahoney, Assistant State's Attorneys, of counsel), for the People.

Justice NICKELS delivered the opinion of the court:

This matter comes before the court on defendant's appeal from the dismissal of his post-conviction petition. After a bench trial in Cook County, defendant was found guilty of one count each of intentional murder, knowing murder, felony murder, attempted murder, and aggravated battery, and two counts of unlawful use of a weapon. The trial judge found defendant eligible for the death penalty and sentenced defendant to death. On direct appeal, this court vacated the knowing and felony murder convictions because they arose from the same death as the intentional murder conviction. (People v. Guest (1986), 115 Ill.2d 72, 103-04, 104 Ill.Dec. 698, 503 N.E.2d 255.) This court affirmed the remainder of defendant's convictions and the death sentence, and the United States Supreme Court denied defendant's petition for a writ of certiorari (Guest v. Illinois (1987), 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746).

On January 29, 1988, defendant filed a pro se petition for post-conviction relief. (See Ill.Rev.Stat.1987, ch. 38, par. 122-1.) The circuit court appointed counsel to aid defendant with the petition, and counsel filed a supplementary post-conviction petition. After the State filed a motion to dismiss, the circuit court dismissed the post-conviction petition without an evidentiary hearing. Defendant appeals dismissal of the post-conviction petition (134 Ill.2d R. 651(a)), seeking alternatively a new trial, a new sentencing hearing, or remand for an evidentiary hearing on his post-conviction petition.

FACTS

We first summarize the evidence introduced at trial which led to defendant's convictions and sentence. On February 5, 1981, defendant and a friend, John Marlow, entered a Jewel grocery store in Chicago. The security guard at the store, Ferrice King, saw defendant take some toothpaste and a toothbrush and put them in his pocket. King approached defendant, identified himself as a security guard, and told defendant to accompany him to King's office, which was located in the basement of the store. In the basement, King indicated that he was going to search defendant for the items that were taken. Defendant offered to return the items. Defendant reached into his pocket and pulled out a handgun.

In response, King told defendant he could keep the items and walked away from defendant. King walked into the employee's cafeteria, which is also located in the basement, with defendant following him. At that time, three employees--Joanne Bailey, Marlean Washington, and Gary Henderson--were present in the cafeteria. These three employees saw defendant with a gun, and some of them tried to flee. Defendant fired a shot but did not hit any of these employees. King then pulled out his own handgun, exchanged several shots with defendant, and was shot once in the shoulder by defendant and injured slightly. Defendant fled and escaped. A short time later, John Geever, another store employee, was found in the basement of the store with a gunshot wound and later died from this gunshot wound. None of the store employees had seen Geever during the After the shooting, King detained Marlow, the individual who accompanied defendant to the store. Marlow provided the police with information that established the identity of the gunman as defendant. On the day after the shooting, employees King, Bailey, Washington, and Henderson all identified defendant's picture from a photo array. Nearly a year later, defendant was located and charged with this murder. Defendant had been arrested on an unrelated charge in Missouri. King and Washington identified defendant from a lineup before trial, and King and Bailey identified defendant as the gunman at trial.

[211 Ill.Dec. 494] shooting, and none had seen how he was shot.

POST-CONVICTION PETITION

The purpose of a post-conviction proceeding is to determine if constitutional violations occurred at trial. A post-conviction proceeding is not an appeal of a defendant's convictions and sentence, and a defendant cannot merely allege that errors occurred at trial. Instead, a defendant bears the burden of establishing a substantial deprivation of his constitutional rights. (People v. Albanese (1988), 125 Ill.2d 100, 104-05, 125 Ill.Dec. 838, 531 N.E.2d 17.) In addition, the doctrines of res judicata and waiver limit the issues that may be raised in a post-conviction petition. People v. Thompkins (1994), 161 Ill.2d 148, 157-58, 204 Ill.Dec. 147, 641 N.E.2d 371.

In this case, the trial judge dismissed the petition without an evidentiary hearing. We note that a defendant is not entitled to an evidentiary hearing as a matter of right. (People v. James (1986), 111 Ill.2d 283, 291, 95 Ill.Dec. 486, 489 N.E.2d 1350.) A defendant is entitled to an evidentiary hearing only if the defendant has made a substantial showing, based on the record and supporting affidavits, that his constitutional rights were violated. (People v. Gaines (1984), 105 Ill.2d 79, 91-92, 85 Ill.Dec. 269, 473 N.E.2d 868.) The trial court's determination on this matter will not be disturbed unless manifestly erroneous. People v. Griffin (1985), 109 Ill.2d 293, 303, 93 Ill.Dec. 774, 487 N.E.2d 599.

On appeal to this court, defendant alleges that he is entitled to post-conviction relief based primarily on claims of ineffective assistance of trial counsel. These claims are based on defendant's sixth amendment right to counsel under the Federal Constitution. To be successful, defendant must satisfy the two prongs of the Strickland test. (See Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.) Under Strickland, a defendant must show (1) that his counsel's performance fell below an objective standard of reasonableness and (2) that counsel's deficient performance resulted in prejudice to defendant. If defendant fails to make a sufficient showing of either prong, this court need not consider the remaining prong. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699.

With respect to several of these claims of ineffective assistance of trial counsel, the State argues that defendant has waived these issues by failing to raise them on direct appeal. The State correctly notes that all of the facts needed to raise several of these claims were present in the record and available to defendant on direct appeal. Defendant has not introduced any new material in this proceeding to support these allegations of ineffective assistance of trial counsel.

Defendant acknowledges that he could have raised several of his contentions on direct appeal but argues that his appellate counsel was ineffective for failing to address the issue on direct appeal. This court has relaxed the waiver rule when the waiver arises from the ineffectiveness of appellate counsel. (See People v. Barnard (1984), 104 Ill.2d 218, 229-31, 83 Ill.Dec. 585, 470 N.E.2d 1005.) We further note appellate counsel can decline to raise an issue if he believes it to be without merit. To determine if appellate counsel could reasonably have decided not to allege trial counsel's ineffectiveness, we will focus on trial counsel's performance. People v. Caballero (1989), 126 Ill.2d 248, 271, 128 Ill.Dec. 1, 533 N.E.2d 1089.

In this appeal, defendant claims that his trial counsel was ineffective because trial counsel failed to: (1) present a viable theory of defense and, in effect, conceded defendant's

[211 Ill.Dec. 495] guilt; (2) investigate and challenge identification evidence that established defendant as the perpetrator; (3) investigate prosecution witnesses and potential alibi witnesses; (4) investigate certain physical evidence; (5) object to leading questions; and (6) investigate mitigating witnesses and adequately prepare for the sentencing hearing. Defendant also raises an issue with respect to the performance of post-conviction counsel. Defendant claims that his post-conviction counsel's performance was inadequate because (7) post-conviction counsel failed to interview certain witnesses and provide affidavits needed to support the post-conviction petition.

I. Trial Counsel's Defense Strategy

Defendant first argues that his trial counsel based the entire theory of defense on a misunderstanding of the felony murder rule. According to defendant, counsel believed defendant could be found guilty of felony murder only if defendant fired the shot that killed the victim. Defendant argues that counsel's strategy had no chance of success because defendant could also be found guilty of felony murder if the security guard, and no defendant, fired the shot that killed the victim. See People v. Chandler (1989), 129 Ill.2d 233, 135 Ill.Dec. 543, 543 N.E.2d 1290 (counsel was ineffective because counsel's theory of defense was based on a misunderstanding of the law of accountability and felony murder).

Defendant's allegation that his trial counsel misunderstood the felony murder rule is simply not supported by the record. At trial, counsel argued that the State failed to meet its burden of proving defendant guilty of murder or felony murder beyond a reasonable doubt. This strategy was based on the security guard's testimony that he heard defendant fire three shots. One of these shots hit a garbage can in the cafeteria, another shot hit the security guard in the shoulder, and the final shot was fired at the security...