People v. Maxwell

• Decision Date: 20 June 1996
• Docket Number: No. 77419,77419
• Citation: 173 Ill.2d 102,670 N.E.2d 679,219 Ill.Dec. 1
• Parties: , 219 Ill.Dec. 1 The PEOPLE of the State of Illinois, Appellee, v. Andrew MAXWELL, Appellant.
• Court: Illinois Supreme Court

Page 679

670 N.E.2d 679

173 Ill.2d 102, 219 Ill.Dec. 1

The PEOPLE of the State of Illinois, Appellee, v. Andrew MAXWELL, Appellant.

No. 77419.

Supreme Court of Illinois.

June 20, 1996.

Rehearing Denied Sept. 30, 1996.

David T. Rothal, Chicago, and David J. Keefe, Waukegan, for appellant.

James E. Ryan, Attorney General, Springfield, and Jack O'Malley, State's Attorney, Chicago (Arleen C. Anderson, Assistant Attorney General, Chicago, and Renee Goldfarb and Carol L. Gaines, Assistant State's Attorneys, of counsel), for the People.

Justice HARRISON delivered the opinion of the court:

The defendant, Andrew Maxwell, appeals (134 Ill.2d R. 651(a)) the judgment of the circuit court of Cook County dismissing without an evidentiary hearing his amended petition for post-conviction relief, brought pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1992)). Following a jury trial the defendant was convicted of murder and attempted armed robbery committed on October 26, 1986. He waived his right to a jury for purposes of his capital sentencing hearing, and the trial court imposed a sentence of death on the conviction for murder and a term of 15 years on the conviction for attempted armed robbery. In his direct appeal (People v. Maxwell, 148 Ill.2d 116, 170 Ill.Dec. 280, 592 N.E.2d 960 (1992)), this court affirmed his convictions and sentences. Thereafter the United States Supreme Court denied his petition for a writ of certiorari (Maxwell v. Illinois, 506 U.S. 977, 113 S.Ct. 471, 121 L.Ed.2d 377 (1992)). Challenging the dismissal of his amended petition without an evidentiary hearing, defendant presents 22 issues for our review. For the reasons that follow, we affirm. Because the facts of this case are set forth adequately in the opinion concerning defendant's direct appeal, we state here only those facts necessary to the disposition of his post-conviction appeal.

A proceeding brought pursuant to the Post-Conviction Hearing Act is not an appeal per se but, rather, a collateral attack on a judgment. People v. Caballero, 126 Ill.2d 248, 258, 128 Ill.Dec. 1, 533 N.E.2d 1089 (1989). The purpose of the proceeding is to allow inquiry into constitutional issues related to the original conviction that have not or could not have been adjudicated. People v. Whitehead, 169 Ill.2d 355, 370, 215 Ill.Dec. 164, 662 N.E.2d 1304 (1996). It is the defendant's burden to show a substantial deprivation of his constitutional rights. (Whitehead, 169 Ill.2d at 370, 215 Ill.Dec. 164, 662 N.E.2d 1304), and determinations made by the circuit court will not be disturbed unless they are manifestly erroneous (People v. Silagy, 116 Ill.2d 357, 365, 107 Ill.Dec. 677, 507 N.E.2d 830 (1987)). The defendant is not entitled to an evidentiary hearing unless the allegations of his petition, supported where appropriate by the trial record or accompanying affidavits, make a substantial showing that his rights have been so violated. Caballero, 126 Ill.2d at 259, 128 Ill.Dec. 1, 533 N.E.2d 1089. In determining whether an evidentiary hearing should be granted, all well-pleaded facts in the petition and in any accompanying affidavits are to be taken as true. Caballero, 126 Ill.2d at 259, 128 Ill.Dec. 1, 533 N.E.2d 1089.

Initially defendant contends that he was denied his constitutional right to the effective assistance of counsel at the second phase of the sentencing proceeding because counsel failed "to investigate and present available evidence in mitigation." Specifically, defendant asserts that trial counsel conducted virtually no investigation into his background, failing (1) to investigate his developmental history; (2) to discover and present to the court not only his school records, which would have revealed his intellectual and developmental deficits, but also his medical records as well as records of childhood psychological tests; (3) to obtain a professional drug and alcohol evaluation with which to gauge the extent of his problem with substance abuse; (4) to discover the alcoholism and attendant denial that pervaded his family, which would have been revealed and explained had counsel obtained a comprehensive social history; (5) to obtain any kind of current psychological or psychiatric evaluation; and (6) to interview the defendant himself sufficiently. The defendant's voluminous amended post-conviction petition, which includes numerous supporting reports and affidavits attached as exhibits, sets forth these claims in detail.

In his amended petition defendant alleges that because trial counsel failed to obtain his school records, counsel did not know of the determination by his school that he was, in defendant's words, "educably mentally handicapped" and that, as a result, counsel could not make an informed decision as to how this information would affect sentencing. In the same way, defendant alleges, counsel did not know of defendant's "borderline mentally retarded I.Q." Similarly, counsel's failure to obtain a drug and alcohol evaluation of defendant meant that his attorneys were not fully aware of the extent of his problems. Counsel's failure to interview defendant's father and his sisters, Monalisa Maxwell and Martha Brown, and to investigate or evaluate drug and alcohol usage in his immediate family prevented counsel from understanding defendant's drug dependency, his intellectual and developmental deficiencies, and his family's denial of those problems; as a consequence, defendant alleges, counsel lacked a strategy for mitigation. Defendant alleges finally with respect to this first claim of his amended petition:

"Assuming arguendo that trial counsel was not inadequate for concluding, based on her limited investigation, that [defendant] had not had significant intellectual, physical and developmental deficits, trial counsel was put on notice of these problems by the Presentence Report which had been filed March 11, 1988. [Ex. 17] [sic ] Counsel was incompetent for failing to pursue this evidence."

The defendant includes as an exhibit in support of this claim the affidavit of Louis Hemmerich, Ph.D., a clinical psychologist who tested him on March 14, 1993. The affidavit includes the report of his psychological evaluation. In it the defendant is reported to have stated that he had been held back in the third grade because of a lack of academic progress and that he had been in special education classes during most of his formal education. The defendant also reported having had psychiatric counseling, in Dr. Hemmerich's words, "for a brief period of time, about six months, when he was in the third or fourth grade." He described the defendant's Full Scale score on the Wechsler Adult Intelligence Scale-Revised as being within the borderline mentally retarded range of intellectual ability. The pattern of scores obtained on this administration of the intelligence test suggests, Dr. Hemmerich concluded, that defendant suffers from a verbal information processing learning disability. In his summary he assessed the test results as indicating that defendant was functioning "within the borderline mentally retarded range to the low average range of intellectual ability."

Dr. Hemmerich stated further that defendant

"reported a serious history of alcohol and drug abuse. He stated that he began smoking marijuana at the age of twelve. At that time, his sisters would encourage him to smoke a joint with them since they enjoyed watching him 'get silly.' He reportedly began drinking alcohol at approximately the age of 14. At the age of 16, he began using cocaine. During this period of time, he also took codeine, up to three ounces of syrup and three pills at a time. By the age of 17, he admitted to drinking 1/2 pint of whiskey and smoking a nickel bag of marijuana each night. Later that year, he stated that he would smoke marijuana laced with cocaine. He stated that he had a hard time functioning without using drugs and alcohol, and reportedly used substances on a daily basis."

Dr. Hemmerich concluded that the amount of drugs and alcohol reportedly consumed, as well as the withdrawal symptoms defendant reported, suggest that he was physiologically addicted to drugs and alcohol. The psychologist reported further that defendant

"stated that he had never participated in any drug or alcohol treatment program. He stated, 'I never admitted I had a problem.' He stated that he has experienced numerous legal difficulties due to drug and alcohol abuse. He has been arrested a number of times over the years for illegal activities which he stated that he engaged in [sic ] order to support his drug and alcohol habits."

In ruling upon the State's motion to dismiss the amended petition without an evidentiary hearing, the circuit court, having examined the petition and exhibits, remarked as follows:

"We have had an opportunity on several occasions, I might add, to review all of the material that has been submitted to us. Obviously, we are very familiar with the case, having heard the case, the case at the trial level, and having presided over all of the proceedings therein, not only on the trial but also the preliminary motions, and also obviously the sentencing proceedings. We have reviewed the post-conviction petition. * * *

* * * We * * * feel, and we have reviewed this thoroughly, that the provisions, the two-pronged test in Strickland; i.e., whether counsel's performance at the sentencing proceeding fell below what is commonly accepted standard and maybe more importantly at least in the Court's mind, but for that error, whether the results would be different, and we most respectfully come down on the side of the State because we feel it would not have, and the motion to dismiss the post-conviction petition will be granted."

Available to the trial judge prior to sentencing was the presentence investigation report, to which defendant refers in his amended petition. About the physical and mental health of the defendant, who...