People v. Mack

• Decision Date: 19 October 1995
• Docket Number: No. 75412,75412
• Citation: 658 N.E.2d 437,212 Ill.Dec. 955,167 Ill.2d 525
• Parties: , 212 Ill.Dec. 955 The PEOPLE of the State of Illinois, Appellant, v. Larry MACK, Appellee.
• Court: Illinois Supreme Court

Page 437

658 N.E.2d 437

167 Ill.2d 525, 212 Ill.Dec. 955

The PEOPLE of the State of Illinois, Appellant, v. Larry MACK, Appellee.

No. 75412.

Supreme Court of Illinois.

Oct. 19, 1995.

Rehearing Denied Dec. 4, 1995.

Roland W. Burris, Attorney General, Springfield, and Jack O'Malley, State's Attorney, Chicago (Terence M. Madsen and Arleen Anderson, Assistant Attorneys General, Chicago, and Sally L. Dilgart, Renee G. Goldfarb, Marie Quinlivan Czech and Rebecca Davidson, Assistant State's Attorneys, of counsel), for the People.

John L. Stainthorp, Chicago, for appellee.

Paul A. Logli, Rockford, for amicus curiae Illinois State's Attorneys Association.

Justice NICKELS delivered the opinion of the court:

The State appeals from an order of the circuit court of Cook County granting the petition of defendant, Larry Mack, for relief under the Post-Conviction Hearing Act (Ill.Rev.Stat.1989, ch. 38, par. 122-1 et seq.). The circuit court vacated defendant's death sentence and ordered a new sentencing hearing on the basis that the sentencing jury failed to return a legally sufficient verdict finding the existence of an aggravating factor making defendant eligible for the death penalty. Because the post-conviction proceedings involve a judgment imposing the death penalty, the State's appeal lies directly to this court. (134 Ill.2d R. 651.) For the reasons set forth below, we affirm.

BACKGROUND

Defendant was found guilty of murder (Ill.Rev.Stat.1979, ch. 38, par. 9-1(a)) and armed robbery (Ill.Rev.Stat.1979, ch. 38, par. 18-2) following a bench trial in the circuit court of Cook County. After a bifurcated death penalty hearing conducted before a jury, defendant was sentenced to death. The following evidence was adduced at trial and sentencing. According to an eyewitness (whose testimony was partially corroborated by photographs from security cameras) on November 23, 1979, defendant entered a bank located at 500 West 119th Street in Chicago and walked up to the bank's security guard, Joseph Kolar. Defendant pointed a gun at Kolar, and when Kolar tried to push the gun away defendant fired a shot, which struck Kolar's right arm. At that point, defendant grabbed Kolar by the back of his shirt collar, walked him over to a window, and pushed him to the ground. Defendant then straddled Kolar and shot him in the chest. Kolar died as a result of the second gunshot. While defendant was straddling Kolar, two accomplices entered the bank, climbed over a barrier to the teller cages, and stuffed money into bags. All three were apprehended by Chicago police officers immediately after they left the bank.

After defendant was found guilty at the bench trial, a jury was empaneled for a bifurcated death penalty hearing. At the first stage of the hearing, the State sought to establish defendant's eligibility for the death penalty solely on the basis of the statutory aggravating factor set forth in section 9-1(b)(6) of the Criminal Code of 1961, which provided as follows during the relevant time frame:

"(b) Aggravating Factors. A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of murder may be sentenced to death if:

* * * * * *

6. the murdered individual was killed in the course of another felony if:

(a) the murdered individual was actually killed by the defendant and not by another party to the crime or simply as a consequence of the crime; and

(b) the defendant killed the murdered individual intentionally or with the knowledge that the acts which caused the death created a strong probability of death or great bodily harm to the murdered individual or another; and (c) the other felony was one of the following: armed robbery * * *." (Emphasis added.) Ill.Rev.Stat.1979, ch. 38, par. 9-1(b)(6).

The verdict form supplied to and returned by the jury in connection with this aggravating factor stated, "We, the jury, unanimously find beyond a reasonable doubt that the following aggravating factor exists in relation to this Murder: Larry Mack killed Joseph Kolar in the course of an Armed Robbery." The verdict failed to specify that defendant acted with the requisite mental state of intent or knowledge as required under section 9-1(b)(6)(b) of the Criminal Code.

Defendant appealed directly to this court, which originally affirmed his convictions and sentence. (People v. Mack (1984), 105 Ill.2d 103, 85 Ill.Dec. 281, 473 N.E.2d 880.) However, the United States Supreme Court ordered reconsideration in light of its decisions in Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, and Griffith v. Kentucky (1987), 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649; (Mack v. Illinois (1987), 479 U.S. 1074, 107 S.Ct. 1266, 94 L.Ed.2d 127.) Thereafter, this court remanded the cause to the circuit court for a hearing pursuant to Batson on whether the State exercised peremptory challenges in a racially discriminatory manner. On remand, the circuit court concluded that no Batson violation occurred, and this court subsequently affirmed. People v. Mack (1989), 128 Ill.2d 231, 131 Ill.Dec. 551, 538 N.E.2d 1107.

In his direct appeal, defendant did not challenge the sufficiency of the jury's eligibility-stage verdict. However, on July 31, 1990, defendant filed a six-count petition under the Post-Conviction Hearing Act (Ill.Rev.Stat.1989, ch. 38, par. 122-1 et seq.) in the circuit court of Cook County. In count I, defendant claimed that his death sentence was improper because, while the jury found that defendant killed Joseph Kolar during the course of an armed robbery, the jury's verdict did not specify that defendant acted with the requisite mental state. Defendant claimed that his death sentence was unconstitutional in the absence of a proper jury determination that a statutory aggravating factor existed. Defendant also claimed that the failure of his counsel on direct appeal to raise this issue deprived him of his constitutional right to effective assistance of counsel. The circuit court entered judgment in defendant's favor on this claim, vacating his death sentence and ordering that a new sentencing hearing be conducted. This appeal by the State followed.

ANALYSIS

I

The State initially argues that review of defendant's claim under the Post-Conviction Hearing Act is procedurally barred because the claim could have been raised on direct appeal. It is well established that the scope of post-conviction review is limited to constitutional matters which have not been, and could not have been, previously adjudicated. (People v. Brisbon (1995), 164 Ill.2d 236, 245, 207 Ill.Dec. 442, 647 N.E.2d 935; People v. Winsett (1992), 153 Ill.2d 335, 346, 180 Ill.Dec. 109, 606 N.E.2d 1186.) Thus, determinations of the reviewing court on direct appeal are res judicata as to issues actually decided, and issues that could have been raised on direct appeal but were not are waived. People v. Mahaffey (1995), 165 Ill.2d 445, 452, 209 Ill.Dec. 246, 651 N.E.2d 174; People v. Thomas (1995), 164 Ill.2d 410, 416, 207 Ill.Dec. 490, 647 N.E.2d 983; People v. Collins (1992), 153 Ill.2d 130, 135, 180 Ill.Dec. 60, 606 N.E.2d 1137; People v. Neal (1990), 142 Ill.2d 140, 146, 154 Ill.Dec. 587, 568 N.E.2d 808.

The alleged defect in the eligibility-stage verdict is evident from the trial record and could have been raised in defendant's direct appeal. However, defendant specifically alleged in his post-conviction petition that appellate counsel's failure to raise this issue represents ineffective assistance of appellate counsel. A criminal defendant is guaranteed the effective assistance of appellate counsel as of right (Evitts v. Lucey (1985), 469 U.S. 387, 393-97, 105 S.Ct. 830, 834-37, 83 L.Ed.2d 821, 828-30; People v. Flores (1992), 153 Ill.2d 264, 277, 180 Ill.Dec. 1, 606 N.E.2d 1078), and a claim of ineffective assistance of counsel on appeal is cognizable under the Post-Conviction Hearing Act (see The State does not dispute these general principles, but insists that they offer no solace to defendant because he has not established ineffective assistance of appellate counsel under the applicable standard set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Strickland formulated a two-prong test requiring the defendant to show: (1) that counsel's performance was deficient or fell below an objective standard of reasonableness; and (2) that defendant suffered prejudice as a result of counsel's deficient performance. (Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; see Winsett, 153 Ill.2d at 347, 180 Ill.Dec. 109, 606 N.E.2d 1186.) As applied to claims involving the failure of appellate counsel to raise a particular issue, the defendant must show that "the failure to raise that issue was objectively unreasonable, as well as a reasonable probability that, but for this failure, his sentence or conviction would have been reversed." (People v. Caballero (1989), 126 Ill.2d 248, 270, 128 Ill.Dec. 1, 533 N.E.2d 1089.) The State maintains that defendant can show neither deficient performance nor resultant prejudice within the meaning of Strickland based on appellate counsel's failure to raise the "defective verdict" issue.

                [212 Ill.Dec. 959] e.g., People v. Bell (1991), 209 Ill.App.3d 438, 443, 154 Ill.Dec. 238, 568 N.E.2d 238).   This court has thus held that the doctrine of waiver should [167 Ill.2d 532] not bar consideration of an issue where the alleged waiver stems from incompetency of appellate counsel.  See People v. Guest (1995), 166 Ill.2d 381, 211 Ill.Dec. 490, 655 N.E.2d 873;  People v. Salazar (1994), 162 Ill.2d 513, 520-21, 205 Ill.Dec. 407, 643 N.E.2d 698;  Winsett, 153 Ill.2d at 346, 180 Ill.Dec. 109, 606 N.E.2d 1186;  Flores, 153 Ill.2d at 282, 180 Ill.Dec. 1, 606 N.E.2d 1078;  People v. Ruiz (1989), 132 Ill.2d 1, 10, 138 Ill.Dec. 201, 547 N.E.2d 170;   People v. Brisbon (1995), 164 Ill.2d 236, 255, 207 Ill.Dec. 442,

...