People v. Harris, 88468.

• Court: Supreme Court of Illinois
• Citation: 206 Ill.2d 1,276 Ill.Dec. 419,794 N.E.2d 314
• Docket Number: No. 88468.,88468.
• Parties: The PEOPLE of the State of Illinois, Appellee, v. James HARRIS, Appellant.
• Decision Date: 19 December 2002

794 N.E.2d 314
206 Ill.2d 1
276 Ill.Dec. 419

The PEOPLE of the State of Illinois, Appellee,
v.
James HARRIS, Appellant

No. 88468.

Supreme Court of Illinois.

December 19, 2002.

794 N.E.2d 319

Martin S. Carlson, Office of the State Appellate Defender, Chicago, Anne E. Carlson, Northbrook, for appellant

James E. Ryan, Attorney General, Springfield, Richard A. Devine, State's Attorney, Chicago (William L. Browers, Assistant Attorney General, Chicago, Renee G. Goldfarb and Sally L. Dilgart, Assistant State's Attorneys, of counsel), for the People.

794 N.E.2d 320

Chief Justice McMORROW delivered the opinion of the court

Defendant James Harris petitioned the circuit court of Cook County for relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1996)). The circuit court dismissed defendant's amended petition without an evidentiary hearing. Defendant appeals directly to this court. 134 Ill.2d R. 651(a). For the reasons set forth below, we affirm in part, reverse in part, and remand for an evidentiary hearing on certain claims raised by defendant.

BACKGROUND

On direct review, this court recited the details of defendant's crimes. See People v. Harris, 129 Ill.2d 123, 135 Ill.Dec. 861, 544 N.E.2d 357 (1989) (Harris I); People v. Harris, 164 Ill.2d 322, 207 Ill.Dec. 400, 647 N.E.2d 893 (1994) (Harris II). We need not repeat those details here. In 1984, following a jury trial in the circuit court of Cook County, defendant was convicted of the murder of Jesse James, Sr., the owner of a tavern on the south side of Chicago, and the attempted murder of Theresa Woods, who worked as a waitress at the tavern. Defendant also was convicted of one count of aggravated battery and two counts of attempted robbery in connection with this incident, which occurred on February 10, 1983. Defendant received the death penalty for the murder conviction and sentences of imprisonment for the remaining felonies.

During the pendency of his appeal, the United States Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and this court remanded for a hearing, in light of Batson, on defendant's claim of discrimination in the exercise of peremptory challenges. Following this hearing, the circuit court denied relief. On direct appeal in Harris I, this court again remanded, determining that additional proceedings were required for resolution of the Batson issue. The court also found that during the sentencing hearing, the circuit court had improperly considered evidence of a 1969 "murder" for which defendant was never convicted. We vacated defendant's death sentence, and conditionally vacated his convictions and nondeath sentences subject to reinstatement. Harris I, 129 Ill.2d at 189, 135 Ill.Dec. 861, 544 N.E.2d 357. On remand from Harris I, the circuit court resolved the Batson issue adversely to defendant and reinstated his convictions. The case was then assigned to a different judge for a new sentencing hearing. Following this hearing, the circuit court again sentenced defendant to death for the murder conviction. On appeal, this court affirmed in Harris II.

On June 27, 1995, defendant filed a pro se petition for post-conviction relief. Subsequently, through appointed counsel, defendant filed an amended petition and a supplement to the amended petition. The amended post-conviction petition raised eight claims for relief. We set forth only those claims that are raised by defendant in this appeal.

First, the amended post-conviction petition alleged that defendant was denied his right to effective assistance of counsel under the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV) when, during his initial Batson hearing, his attorneys failed to establish the race of two venirepersons who were excused by the State. The petition asserted that, because of this allegedly defective performance, defendant's subsequent Batson appeal was reviewed as to only 15 excused venirepersons rather than the 17 that the petition alleges were excused by the State.

794 N.E.2d 321

Second, the amended post-conviction petition alleged that defendant was denied his right to the effective assistance of counsel under the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV) with regard to his counsel's handling of his pretrial motion to suppress evidence. Defendant alleged errors on the part of his trial counsel, post-trial counsel and appellate counsel with regard to this issue. According to the petition, defendant's trial counsel failed to impeach one of the State's witnesses during the pretrial hearing on the motion to suppress and failed to ask during trial that the motion to suppress be reopened on the ground that this same witness materially changed his testimony at trial. Defendant alleges that his post-trial counsel failed to point to these alleged deficiencies in trial counsel's performance as a basis for granting a new trial. Defendant alleges in addition that, "[t]o the extent that this issue arguably could have been raised on appeal, Mr. Harris was also denied the effective assistance of appellate counsel."

The amended petition also set forth a claim alleging that defendant was denied his right to the effective assistance of counsel under the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV) during the eligibility phase of his second capital sentencing hearing. According to the petition, defense counsel failed to call as a witness former Chicago police officer Phyllis Ham Garth, whose testimony defendant claims would have raised a reasonable doubt as to whether he acted with the mental state required to render him death eligible.

In addition, the amended post-conviction petition alleged that defendant was denied due process of law when the State knowingly presented false aggravation evidence at the second capital sentencing hearing and failed to turn over to defense counsel medical reports that would have shown the evidence to have been false. According to the amended petition, John Szumigala, who testified in aggravation at the hearing, exaggerated the extent of the injuries he suffered as the victim of a 1971 robbery for which defendant was convicted.

In a related claim, the amended post-conviction petition alleged that defendant was denied his right to the effective assistance of counsel at his second capital sentencing hearing when his attorneys failed to rebut the testimony of John Szumigala in aggravation. The focus of this claim is that defense counsel failed to investigate and present a readily available defense to the State's primary evidence in aggravation.

Finally, the amended post-conviction petition alleged that defendant was denied the effective assistance of appellate counsel when his attorney failed to raise a meritorious issue on direct appeal concerning the use of victim impact evidence from a prior unrelated offense. According to the petition, the evidence in question was victim impact testimony given by John Szumigala during defendant's second capital sentencing hearing.

In support of the allegations in his petition, defendant attached affidavits of the two venire members whose race had not been established at the first Batson hearing. Edward Shealy, one of these venirepersons, stated in his affidavit that he is African American, and Christine Riley Brown, the other venireperson, stated that she is Latino American. Also attached were affidavits of investigators Jonathan Lyon, Appolon Beaudouin, Jr., and Edward Torres, as well as a copy of a Cook County circuit court record, all of which indicated that Brown appeared to be African American. Defendant also attached

794 N.E.2d 322

an affidavit of Michael Levitin, one of his attorneys at the Batson hearing, stating that he had made no strategic decision not to present affidavits or other documentary evidence to establish the race of Shealy or Brown

Defendant's amended post-conviction petition was also supported by a separate affidavit of attorney Michael Levitin, who was also defendant's post-trial counsel. In his affidavit, Levitin stated that he made no strategic decision to exclude from his post-trial motions any issues regarding trial counsel's ineffectiveness in handling defendant's pretrial motion to suppress evidence. Also attached was an affidavit of attorney James Chadd, defendant's counsel in his first appeal to this court. Chadd stated in his affidavit that he made no strategic decision to exclude from his appellate brief the issue of trial counsel's handling of defendant's motion to suppress.

In addition, defendant attached to his amended post-conviction petition a copy of a police report signed by former Chicago Police Officer Phyllis Ham (now Garth) recounting her interview with Theresa Woods following the incident on February 10, 1983, in which Jesse James, Sr., was killed. Defendant also attached a separate affidavit of investigator Jonathan Lyon recounting conversations with Officer Garth in which Garth confirmed Woods' statements to her and the accuracy of Garth's report.

Defendant's amended post-conviction petition was also supported by a copy of the medical records from the hospital where John Szumigala was treated after the 1971 robbery. The injuries reflected in these records do not appear to be as severe as those described by Szumigala at the sentencing hearing. Defendant also attached an opinion letter from a physician stating that the medical records do not "bear out the allegations of Mr. Szumigala's permanent injury," which the physician stated "would certainly have appeared by the time he was discharged from the hospital." In addition, defendant attached a copy of Szumigala's 1971 testimony in the trial on the robbery charge, which differs somewhat from the testimony Szumigala gave at the sentencing hearing in 1992. Also attached was an...