People v. Johnson, 80009

CourtSupreme Court of Illinois
Citation700 N.E.2d 996,233 Ill.Dec. 288,183 Ill.2d 176
Docket NumberNo. 80009,80009
Parties, 233 Ill.Dec. 288 The PEOPLE of the State of Illinois, Appellee, v. Andrew JOHNSON, Appellant.
Decision Date18 June 1998

Page 996

700 N.E.2d 996
183 Ill.2d 176, 233 Ill.Dec. 288
The PEOPLE of the State of Illinois, Appellee,
Andrew JOHNSON, Appellant.
No. 80009.
Supreme Court of Illinois.
June 18, 1998.
Rehearing Denied Oct. 5, 1998.

Page 1000

[183 Ill.2d 183] [233 Ill.Dec. 292] Mary Elizabeth Kopko, Chicago, Ronald D. Haze, Chicago, for Andrew Johnson.

[183 Ill.2d 184] Jim Ryan, Attorney General, Criminal Appeals Div., Chicago, Richard A. Devine State's Attorney of Cook County, Chicago, Michelle Katz, Asst. State's Attorney, Chicago, for the People.

Justice NICKELS delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Andrew Johnson, was found guilty of three counts each of murder and armed robbery, and two counts of attempted murder. Defendant waived a jury for the sentencing hearing. The trial court found defendant eligible for the death penalty and sentenced defendant to death for the murder. In addition, the trial court sentenced defendant to two consecutive 30-year terms of imprisonment for the attempted murders. On direct appeal, this court affirmed defendant's convictions and death sentence (People v. Johnson, 149 Ill.2d 118, 171 Ill.Dec. 401, 594 N.E.2d 253 (1992)) and the United States Supreme Court denied defendant's petition for a writ of certiorari (Johnson v. Illinois, 506 U.S. 1056, 113 S.Ct. 986, 122 L.Ed.2d 138 (1993)). Defendant, with the assistance of counsel, then filed a petition for post-conviction relief in the circuit court of Cook County (see 725 ILCS 5/122-1 (West 1994)). The trial court dismissed defendant's post-conviction petition without an evidentiary hearing. Defendant appeals the dismissal of the post-conviction petition (134 Ill.2d R. 651(a)), seeking a reversal of his conviction or, in the alternative, remand for an evidentiary hearing. For the reasons that follow, we affirm.


The evidence supporting the convictions and sentences was thoroughly discussed on direct appeal (People v. Johnson, 149 Ill.2d 118, 171 Ill.Dec. 401, 594 N.E.2d 253 (1992)), and only a summary is necessary here. On January 20, 1985, defendant, [183 Ill.2d 185] Andrew Johnson,

Page 1001

[233 Ill.Dec. 293] and two companions, Terry Sanders and Mike Hill, arrived at the home of the murder victim, William Feuling. Feuling invited the three men into his apartment because Sanders was employed at Feuling's family-owned convenience store. At the time, Feuling was being visited by two friends, Art Kozak and Brian Walkowiak. Some time after settling into the apartment and accepting a beer, defendant drew his gun and directed that Feuling and his friends be tied up and gagged.

After the three men were bound, defendant pistol-whipped Feuling in the face and demanded money. The intruders then removed money from the pockets of the three men. Defendant then moved to Kozak, smashed an egg in his face and began to laugh. Defendant demanded more money from Kozak, and when he learned Kozak had none defendant stated Kozak would "have to die." Nevertheless, defendant temporarily spared Kozak after taking Kozak's gold watch. Defendant returned to Fueling and dragged him throughout the apartment demanding the daily receipts from the convenience store. When Feuling could not produce the money, defendant held Feuling up by the arm and stabbed and slashed him repeatedly with a butcher knife about the neck and torso, laughing as he did so. Feuling died as a result of the knife wounds.

Defendant then commanded his two companions to each kill one of Feuling's friends. Defendant gave the butcher knife to Sanders, who first stabbed Kozak in the stomach and then attempted to slit Kozak's throat. Sanders then smashed Kozak in the head with a hammer. After the assault on Kozak, Walkowiak lunged for the door in an attempt to escape. Defendant shot at Walkowiak, striking him in the shoulder. Despite the gunshot wound, Walkowiak continued to run. Believing that both Fueling and Kozak were dead, the three intruders pursued [183 Ill.2d 186] Walkowiak out the door. However, Walkowiak was able to escape with the assistance of a passing motorist. Subsequently, defendant and Hill approached another individual, Oscar Smith, and attempted to take Smith's car at gunpoint. Defendant and Smith struggled as defendant tried to force Smith into his car. After losing his gun in the struggle with Smith, defendant fled the scene.

A blue nylon parka was discovered in the stairwell of Fueling's apartment building. Defendant's identification card from Joliet Correctional Center was found in the coat pocket. In addition, police recovered defendant's fingerprints from a beer can located on a coffee table in Fueling's living room. On the day after the incident, Kozak and Walkowiak independently identified defendant's picture from a photo array. Before trial, Kozak, Walkowiak, and Oscar Smith all selected defendant from a lineup. In addition, all three men identified defendant at trial.


A post-conviction proceeding is not an appeal of a defendant's underlying judgment, but rather a collateral proceeding enabling the defendant to challenge a conviction or sentence for violations of constitutional rights. People v. Tenner, 175 Ill.2d 372, 377, 222 Ill.Dec. 325, 677 N.E.2d 859 (1997); People v. Ashford, 168 Ill.2d 494, 500, 214 Ill.Dec. 237, 660 N.E.2d 944 (1995). To be entitled to post-conviction relief, a defendant must establish a substantial deprivation of federal or state constitutional rights. Tenner, 175 Ill.2d at 378, 222 Ill.Dec. 325, 677 N.E.2d 859; People v. Guest, 166 Ill.2d 381, 389, 211 Ill.Dec. 490, 655 N.E.2d 873 (1995). In addition, determinations of the reviewing court on direct appeal are res judicata as to issues actually decided and issues that could have been raised in the earlier proceeding, but were not, are deemed waived. People v. Coleman, 168 Ill.2d 509, 522, 214 Ill.Dec. 212, 660 N.E.2d 919 (1995).

In this case, the trial judge dismissed defendant's post-conviction petition without an evidentiary hearing, concluding that all of the claims had been waived or [183 Ill.2d 187] resolved on direct appeal. We observe that a defendant is not entitled to an evidentiary hearing unless the allegations of his petition, supported by the trial record or accompanying affidavits where appropriate, make a substantial showing that defendant's constitutional rights have been violated. People v.

Page 1002

[233 Ill.Dec. 294] Maxwell, 173 Ill.2d 102, 107, 219 Ill.Dec. 1, 670 N.E.2d 679 (1996); People v. Gaines, 105 Ill.2d 79, 91-92, 85 Ill.Dec. 269, 473 N.E.2d 868 (1984). In addition, the trial court's ruling on a post-conviction petition will not be disturbed unless manifestly erroneous. People v. Henderson, 171 Ill.2d 124, 131, 215 Ill.Dec. 147, 662 N.E.2d 1287 (1996); People v. Griffin, 109 Ill.2d 293, 303, 93 Ill.Dec. 774, 487 N.E.2d 599 (1985).

On appeal to this court, defendant raises numerous contentions in opposition to the trial court's decision to dismiss his post-conviction petition without an evidentiary hearing. Defendant's principal arguments are based primarily on the alleged ineffective assistance of trial counsel. Although defendant focuses on the performance of his trial counsel, he also claims that his attorney on direct appeal was ineffective for failing to raise certain claims. We observe that the same standards govern the evaluation of the performance of both trial and appellate counsel. People v. Whitehead, 169 Ill.2d 355, 381, 215 Ill.Dec. 164, 662 N.E.2d 1304 (1996). Because these two issues overlap, we will focus on trial counsel's performance. See Tenner, 175 Ill.2d at 378, 222 Ill.Dec. 325, 677 N.E.2d 859; Guest, 166 Ill.2d at 390, 211 Ill.Dec. 490, 655 N.E.2d 873. Obviously, if the underlying claim lacks merit, defendant suffered no prejudice due to appellate counsel's failure to raise the issue on direct appeal. Coleman, 168 Ill.2d at 523, 214 Ill.Dec. 212, 660 N.E.2d 919.


In this appeal, defendant raises numerous issues that essentially claim that his trial counsel was ineffective because he failed to: (1) request a Batson hearing; (2) present testimony of an alibi witness; (3) request a fitness hearing; (4) argue that defendant lacked the capacity to form the requisite intent to commit murder; (5) argue that defendant lacked the capacity to waive his [183 Ill.2d 188] right to a jury at sentencing; and (6) investigate and present available mitigating evidence. Defendant also claims that his death sentence is (7) unconstitutional because he was sentenced without the benefit of mitigating evidence his counsel failed to discover. Finally, defendant claims (8) the Illinois death penalty statute is unconstitutional.

Effectiveness of Counsel During Guilt Phase

Defendant raises a series of contentions which focus on his counsel's performance before and during trial. These claims are based on a defendant's constitutional guarantee to the assistance of counsel (U.S. Const., amends. VI, XIV), which encompasses the right to the effective assistance of counsel (Cuyler v. Sullivan, 446 U.S. 335, 343-44, 100 S.Ct. 1708, 1715-16, 64 L.Ed.2d 333, 343-44 (1980)). To be successful on his claims, defendant must satisfy the two-prong Strickland test. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a defendant must show that (1) his counsel's performance fell below an objective standard of reasonableness; and (2) counsel's deficient performance resulted in prejudice to defendant. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65, 80 L.Ed.2d at 693-94; People v. Albanese, 104 Ill.2d 504, 525-26, 85 Ill.Dec. 441, 473 N.E.2d 1246 (1984). A strong presumption exists that defense counsel's performance falls within the "wide range of reasonable professional assistance" and, thus, is not deficient. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95. In addition, to...

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