People v. Hall

• Decision Date: 23 September 1993
• Docket Number: No. 71751,71751
• Citation: 193 Ill.Dec. 98,626 N.E.2d 131,157 Ill.2d 324
• Parties: , 193 Ill.Dec. 98 The PEOPLE of the State of Illinois, Appellee, v. Anthony HALL, Appellant.
• Court: Illinois Supreme Court

Page 131

626 N.E.2d 131

157 Ill.2d 324, 193 Ill.Dec. 98

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

No. 71751.

Supreme Court of Illinois.

Sept. 23, 1993.

Rehearing Denied Jan. 31, 1994.

[157 Ill.2d 329] [193 Ill.Dec. 99] Marc R. Kadish, Chicago (William Beattie, Jordan Cramer, John Lavey, Martha Niles, Patrick Blegen, Ellen Grigorian and Pamela Wolf, law students), for appellant.

Roland W. Burris, Attorney General, Springfield (Rosalyn B. Kaplan, Solicitor General, and Terence M. Madsen and Bradley P. Halloran, Assistant Attorneys General, Chicago, of counsel), for the People.

Justice FREEMAN delivered the opinion of the court:

Defendant, Anthony Hall, petitioned the circuit court of McLean County for post-conviction relief pursuant to the Post-Conviction Hearing Act (Ill.Rev.Stat.1989, ch. 38, par. 122--1 et seq.). The trial judge denied the petition, and defendant appeals to this court (134 Ill.2d R. 651(a)). We affirm.

BACKGROUND

We described the circumstances of the crime in the direct appeal and will not repeat them here. Following a bench trial, defendant was convicted of murder and was sentenced to death. This court affirmed defendant's conviction and sentence on direct appeal, and the United States Supreme Court denied certiorari. People v. Hall (1986), 114 Ill.2d 376, 102 Ill.Dec. 322, 499 N.E.2d 1335, cert. denied (1987), 480 U.S. 951, 107 S.Ct. 1618, 94 L.Ed.2d 802.

The record shows that on October 5, 1989, defendant filed his second-amended petition for post-conviction relief. Defendant claimed, inter alia, that he was denied his right to the effective assistance of counsel.

In related motions, defendant moved that the trial judge: appoint a mitigation expert and an expert witness; recuse himself and transfer the petition to another circuit court; and allow defendant to depose his appointed trial counsel, Livingston County Public Defender David Ahlemeyer and McLean County Public Defender Steven Skelton. The trial judge denied these motions.

On January 5 and April 27, 1990, the trial judge held an evidentiary hearing on defendant's post-conviction petition. In a memorandum order dated March 6, 1991, the trial judge denied the petition.

OPINION

A proceeding brought under the Post-Conviction Hearing Act (Act) (Ill.Rev.Stat.1989, ch. 38, par. 122--1 et seq.) is not an appeal; rather, it is a collateral attack on a judgment of conviction. The purpose of the proceeding is to resolve allegations that constitutional violations occurred at trial, when those allegations have not been, and could not have been, adjudicated previously. (People v. Eddmonds (1991), 143 Ill.2d 501, 510, 161 Ill.Dec. 306, 578 N.E.2d 952.) The petitioner carries the burden to establish a substantial deprivation of constitutional rights. This court will not disturb the trial court's determinations absent manifest error. People v. Griffin (1985), 109 Ill.2d 293, 303, 93 Ill.Dec. 774, 487 N.E.2d 599.

On appeal, defendant contends that he was denied his constitutional rights (U.S. Const., amends. VI, VIII, XIV) because: (1) the trial judge refused to recuse himself from the post-conviction proceeding; (2) his trial counsel failed to provide effective assistance during the death sentencing hearing; (3) the trial judge refused to appoint an expert witness and a mitigation expert, and subsequently did not allow that expert witness to testify at the post-conviction hearing; and (4) disallowed defendant from deposing Ahlemeyer and Skelton.

Recusal From Post-Conviction Proceeding

Defendant first contends that the trial judge should have recused himself from the post-conviction proceeding. There is no absolute right to a substitution of judge at a post-conviction proceeding. (People v. House (1990), 202 Ill.App.3d 893, 910, 148 Ill.Dec. 627, 560 N.E.2d 1224, citing People v. Wilson (1967), 37 Ill.2d 617, 230 N.E.2d 194.) Rather, the same judge who presided over the defendant's trial should hear his post-conviction petition, unless it is shown that the defendant would be substantially prejudiced. People v. Mamolella (1969), 42 Ill.2d 69, 73, 245 N.E.2d 485; People v. Neal (1984), 123 Ill.App.3d 148, 152, 78 Ill.Dec. 695, 462 N.E.2d 814; see People v. Day (1987), 152 Ill.App.3d 416, 421, 105 Ill.Dec. 694, 504 N.E.2d 979. In the present case, the trial judge appointed defendant's choice of defense counsel for the post-conviction proceeding. In the motion to recuse and at the hearing on the motion, defendant's post-conviction counsel conceded that he had no evidence that the judge was biased or unfair. Indeed, counsel noted that his appointment was a sign of the trial judge's fairness. Counsel stated that he filed the recusal motion only to preserve the issue for possible, future litigation. Counsel did not offer any facts showing that the trial judge was actually prejudiced against him.

Before this court, defendant concedes his lack of evidence of the trial judge's bias or unfairness. However, defendant contends that, as a matter of due process, "a judge must not only recuse himself or herself from a case where actual prejudice does exist, but also where his or her hearing the case would give the appearance of partiality."

Of course, a basic requirement of due process is a fair trial in a fair tribunal, and fairness requires an absence of actual bias in the trial of the case. But further, our legal system has always sought to prevent even the probability of unfairness. As a result, due process may sometimes require a trial judge who has no actual bias to recuse himself or herself from a case where that judge's hearing the case would create the appearance of partiality. In re Murchison (1955), 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942, 946.

Defendant points to several circumstances which, he contends, give the appearance of partiality to the trial judge hearing the post-conviction petition. These circumstances surround a single event. Immediately prior to opening statements in defendant's trial, defendant requested to proceed pro se and asked for a continuance to prepare his defense. The trial judge brought defendant, defense counsel, and a court reporter into a conference room adjoining the courtroom and outside of the presence of the jury. The trial judge, defense counsel, and defendant were discussing defendant's representation when defendant struck his appointed trial counsel, McLean County Public Defender Steven Skelton, on the head with a chair and struck the trial judge on the head with his fist. Hall, 114 Ill.2d at 389-90, 102 Ill.Dec. 322, 499 N.E.2d 1335.

In Wilks v. Israel (7th Cir.1980), 627 F.2d 32, the United States Court of Appeals for the Seventh Circuit was presented with the same issue with similar facts. The court concluded as follows:

"A petitioner's deliberate attack on the trial judge calculated to disrupt the proceedings will not force a judge out of a case. Mayberry v. Pennsylvania, 400 U.S. 455, 463, 91 S.Ct. 499, 504, 27 L.Ed.2d 532 (1971). To permit such an attack to cause a new trial before a new judge would encourage unruly courtroom behavior and attacks on the trial judge and would greatly disrupt judicial administration." Wilks, 627 F.2d at 37.

Accord 48A C.J.S. Judges § 110, at 739 (1981).

This conclusion accords with the basic policy that we explained in the direct appeal:

"We cannot presume a failure of impartiality of a trial judge even under extreme provocation. Judges are called upon to preside over the trial of onerous causes and persons. By definition, however, a trial judge is required to ignore provocations and pressures, whether public or from individuals. * * * To hold that the law requires a substitution of judges under circumstances similar or comparable to those here would invite misconduct toward judges and lawyers, and a practice would develop that the grosser the misconduct the better the chances to avoid trial with an undesired judge or lawyer." Hall, 114 Ill.2d at 407, 102 Ill.Dec. 322, 499 N.E.2d 1335.

When presented with such facts, rather than adopt a per se rule, a reviewing court should "examine the trial to ensure that the trial judge, despite good cause for adverse feelings toward a defendant, has conducted a fair trial." (Wilks, 627 F.2d at 37 n. 6.) We now address defendant's contentions in terms of whether the trial judge conducted a fair post-conviction proceeding.

Defendant first contends that the fact of the attack, alone, gives the appearance of partiality to the trial judge hearing the post-conviction petition. We disagree. In the first appeal, we rejected defendant's contention that, based on the attack, the trial judge should have recused himself from the trial. We held that the judge's conduct at trial was entirely proper. (Hall, 114 Ill.2d at 405-07, 102 Ill.Dec. 322, 499 N.E.2d 1335.) That holding is res judicata, and the issue cannot be relitigated by recharacterizing it. (People v. Spreitzer (1991), 143 Ill.2d 210, 223-24, 157 Ill.Dec. 467, 572 N.E.2d 931 (and cases cited therein).) Defendant admittedly does not have any additional facts to support a claim of partiality in the context of the post-conviction petition. Thus, we cannot say that the trial judge should have recused himself on this basis.

Defendant next contends that the trial judge should not have heard the post-conviction petition because the trial judge sentenced defendant to death. Defendant notes that the trial judge, in denying the recusal motion, remarked that he was "uncomfortable" with the death penalty. Defendant further notes that it was in his case that the trial judge imposed a death sentence for the first time in his judicial career. Thus, defendant reasons, the trial judge's violent encounter with defendant, in addition to the fact that the judge sentenced defendant to death, give the appearance of partiality to the trial judge hearing the post-conviction petition.

We disagree. The trial judge ordinarily is in the best...