People v. Hickey

• Decision Date: 27 September 2001
• Docket Number: No. 87286.,87286.
• Citation: 792 N.E.2d 232,204 Ill.2d 585,275 Ill.Dec. 1
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Arthur Dale HICKEY, Appellant.
• Court: Illinois Supreme Court

792 N.E.2d 232

204 Ill.2d 585

275 Ill.Dec. 1

The PEOPLE of the State of Illinois, Appellee, v. Arthur Dale HICKEY, Appellant.

No. 87286.

Supreme Court of Illinois.

September 27, 2001.

Rehearing Denied December 3, 2001.

Gary Ravitz and Eric S. Palles, of Ravitz & Palles, P.C., and Marshall Hartman and Frank W. Ralph, of the Office of the State Appellate Defender, Chicago, for appellant.

James E. Ryan, Attorney General, Springfield, and James W. Glasgow, State's Attorney, Joliet (Joel D. Bertocchi, Solicitor General, and William L. Browers and Colleen M. Griffin, Assistant Attorneys General, Chicago, of counsel), for the People.

Justice THOMAS delivered the opinion of the court:

Defendant, Arthur Dale Hickey, appeals an order of the circuit court of Will County dismissing his amended post-conviction petition without an evidentiary hearing and denying defendant's requests to review and to test certain evidence. Because defendant was sentenced to death for his underlying murder conviction, his appeal lies directly with this court. See 134 Ill.2d R. 651(a). For the reasons that follow, we affirm the trial court's orders.

BACKGROUND

This court has previously set forth the evidence presented at defendant's trial in our opinion on defendant's direct appeal. See People v. Hickey, 178 Ill.2d 256, 227 Ill.Dec. 428, 687 N.E.2d 910 (1997). Therefore, we discuss only those facts and evidence necessary to the disposition of this appeal. Defendant's convictions arose from the murder of Jeff Stephens and the sexual assault and attempted murder of Jeff's wife, Heather, on November 25, 1991. That morning, Jeff got up between 5 and 5:30 a.m. to go to work. He went downstairs to take the garbage out to the end of the driveway for pickup. Shortly thereafter, Heather heard yelling outside the house, followed by a gunshot. Heather got up and began putting on her bathrobe. As she was putting on her bathrobe, a man wearing a ski mask and holding a gun came into the bedroom, forced Heather onto the bed and tied her wrists to the bedposts. The man sexually assaulted Heather, then later shot her in the side of her face. Heather said that she tried not to look at her assailant while he was assaulting her because she was frightened.

Heather was never able to identify anyone as her attacker, although she initially told the police that her attacker was in his 20s, was between 5 feet and 5 feet, 4 inches tall, weighed 130 pounds, had medium length, stringy blond hair and no facial hair. At the time, defendant was 40 years old, 5 feet 6 inches tall, weighed 180 to 190 pounds, had a full mustache, and dark hair on his head with some grey in it. A composite sketch of the perpetrator was prepared based upon Heather's description. The officer that prepared the composite sketch testified that Heather was in a great deal of pain and was being treated for a gunshot wound at the time that she gave the description.

Heather viewed numerous photo lineups and mug shots following the assault, but never was able to identify her assailant. Defendant's photo was included in some of the photo lineups shown to Heather. Although Heather told the officer she thought she would be able to identify the perpetrator if she saw him, she also testified at trial that she was not certain of the man's hair color and was not certain whether he had facial hair. She explained that it was dark in the bedroom, she was under stress, and she was not wearing her glasses. Without her glasses, Heather could see up close but not far away.

Heather was taken to Riverside Medical Center in Kankakee, Illinois. A registered nurse collected samples from Heather for a rape kit, including vaginal smears on slides and swabs. The nurse also collected additional vaginal and rectal swabs. The samples, as well as Heather's underwear and Jeff's sweatshirt, were sent to the Illinois State Police's Joliet, Illinois, crime lab. The rape kit and Heather's underwear then were sent to the State Police's Metro East crime lab. There, blood and semen were detected on Heather's underwear, and semen was detected on certain vaginal and rectal swabs. After the samples from the rape kit and Heather's underwear tested positive for the presence of semen, they were sent to the State Police crime lab in Springfield, Illinois, for DNA testing.

David Metzger, a forensic scientist employed by the Springfield crime lab in the DNA unit, extracted DNA from the evidence received, including a blood sample from Heather, a vaginal swab, a swatch from Heather's underwear, a rectal swab and a swatch from Jeff Stephens' sweatshirt. During his testing of the DNA, however, Metzger mistakenly exposed the DNA evidence too long to restriction enzyme, which damaged the DNA extractions to the point where they no longer were useable.

Metzger then requested additional samples and obtained Heather's underwear and the additional swabs containing semen. Metzger extracted DNA from the samples and produced four developed autoradiograms, or autorads, which indicated that the suspect DNA was inconsistent with Jeff Stephens' DNA. The suspect DNA could not be matched with anyone involved in the case at the time.

However, in April 1993, while defendant was incarcerated for the criminal sexual assault of his stepdaughter, a preliminary correlation was made between defendant's DNA and the DNA of the perpetrator in the Stephens case by State Police indexing personnel. Accordingly, blood samples were obtained from defendant pursuant to a search warrant and were sent to Metzger. Metzger ran a series of autorads with defendant's DNA. He then ran a series of autorads on defendant's DNA and the DNA from the suspect in the Stephens case, producing nine autorads. All nine autorads showed a match between defendant's DNA and that of the perpetrator in the Stephens case. The frequency of such a match was 1 in 15 billion people.

Thereafter, defendant was charged with the crimes. Following a jury trial, defendant was convicted of first degree murder, attempted first degree murder, aggravated battery with a firearm, aggravated criminal sexual assault and home invasion. At a separate sentencing hearing, the same jury found defendant eligible for the death penalty and found that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. Accordingly, defendant was sentenced to death for the murder and was sentenced to concurrent prison terms of 60 years for the remaining offenses. On direct appeal, this court affirmed defendant's convictions and sentences. People v. Hickey, 178 Ill.2d 256, 227 Ill.Dec. 428, 687 N.E.2d 910 (1997). The United States Supreme Court denied defendant's petition for writ of certiorari. Hickey v. Illinois, 524 U.S. 955, 118 S.Ct. 2375, 141 L.Ed.2d 742 (1998).

Defendant then filed a pro se petition for post-conviction relief and a motion for appointment of counsel. After counsel was appointed, defendant's attorneys filed a motion to preserve DNA evidence, which was granted. Defense counsel also served subpoenas on the Will County sheriff and the State Police. Counsel filed an amended petition for post-conviction relief and filed a motion to produce DNA evidence. The State filed a motion to dismiss the amended post-conviction petition on the ground that the matters raised therein either were matters of record or did not raise issues of constitutional magnitude. Defendant then filed a second amended post-conviction petition. The trial court denied defendant's discovery motion, quashed his subpoenas, and dismissed his second amended post-conviction petition without an evidentiary hearing. The trial court later denied defendant's motion to reconsider. The instant appeal followed. 134 Ill.2d R. 651(a).

ANALYSIS

The Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-7 (West 1998)) provides a defendant with a means through which he can challenge his conviction or sentence for violations of federal or state constitutional rights. People v. Tenner, 175 Ill.2d 372, 377, 222 Ill.Dec. 325, 677 N.E.2d 859 (1997). An action seeking post-conviction relief is a collateral proceeding and not an appeal from the earlier judgment. People v. Williams, 186 Ill.2d 55, 62, 237 Ill.Dec. 112, 708 N.E.2d 1152 (1999). To be entitled to post-conviction relief, a defendant must demonstrate a substantial deprivation of federal or state constitutional rights in the proceedings that produced the challenged conviction or sentence. People v. Morgan, 187 Ill.2d 500, 528, 241 Ill.Dec. 552, 719 N.E.2d 681 (1999). The scope of post-conviction relief is limited, through considerations of waiver and res judicata, "to constitutional matters which have not been, and could not have been, previously adjudicated." People v. Winsett, 153 Ill.2d 335, 346, 180 Ill.Dec. 109, 606 N.E.2d 1186 (1992). Accordingly, issues that a defendant raised in his appeal of the underlying judgment of conviction, or issues that could have been raised but were not, generally will not be considered in a post-conviction proceeding. People v. West, 187 Ill.2d 418, 425, 241 Ill.Dec. 535, 719 N.E.2d 664 (1999).

A defendant is not entitled to an evidentiary hearing on his post-conviction petition as a matter of right. People v. Whitehead, 169 Ill.2d 355, 370-71, 215 Ill. Dec. 164, 662 N.E.2d 1304 (1996). An evidentiary hearing on a post-conviction petition is warranted only where the allegations of the post-conviction petition, supported by the trial record or accompanying affidavits where appropriate, make a substantial showing that a defendant's constitutional rights have been violated. Morgan, 187 Ill.2d at 528, 241 Ill.Dec. 552, 719 N.E.2d 681. All well-pleaded facts in the petition and accompanying affidavits, if any, are taken as true for the purpose of determining whether to grant an evidentiary hearing. People v. Brisbon, 164 Ill.2d 236, 244-45, 207 Ill.Dec. 442, 647 N.E.2d 935 (1995). This court reviews a circuit court's determination...