People v. Munson, 88799.

• Court: Supreme Court of Illinois
• Citation: 276 Ill.Dec. 260,206 Ill.2d 104,794 N.E.2d 155
• Docket Number: No. 88799.,88799.
• Parties: The PEOPLE of the State of Illinois, Appellee, v. James MUNSON, Appellant.
• Decision Date: 20 June 2002

794 N.E.2d 155
206 Ill.2d 104
276 Ill.Dec. 260

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

No. 88799.

Supreme Court of Illinois.

June 20, 2002.

Rehearing Denied August 29, 2002.

794 N.E.2d 160

Charles M. Schiedel, Deputy Defender, Kathryn Saltmarsh, Assistant Defender, Office of the State Appellate Defender, Springfield, for appellant, and James Munson, Pontiac, appellant pro se

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

Justice GARMAN delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, James Munson, was convicted of the first degree murder of Marvin Cheeks, armed robbery, aggravated kidnapping, and arson of the property of Cheeks. Defendant waived a jury for sentencing and, following a bifurcated sentencing hearing, was sentenced to death by the trial court on the first degree murder conviction and to concurrent prison terms on the other convictions. The trial court denied defendant's post-trial motions. This court affirmed defendant's convictions and death sentence on direct appeal (People v. Munson, 171 Ill.2d 158, 215 Ill.Dec. 125, 662 N.E.2d 1265 (1996)), and the United States Supreme Court denied certiorari (Munson v. Illinois, 519 U.S. 880, 117 S.Ct. 205, 136 L.Ed.2d 141 (1996)). Defendant filed a post-conviction petition, which was dismissed by the trial court on the State's motion. Defendant's appeal lies directly to this court. 134 Ill.2d R. 651(a).

BACKGROUND

The facts of this case are set forth in this court's opinion on direct review and will be repeated here only as necessary to address defendant's arguments in this appeal. In December 1995, defendant filed a pro se petition for post-conviction relief and requested appointment of counsel. Post-conviction counsel filed an amended post-conviction petition and a supplement to the petition. Defendant filed a pro se supplemental petition. The various petitions made many allegations, some of which have been abandoned in this appeal. The amended post-conviction petition advanced five claims for relief: (1) trial counsel was ineffective in failing to properly investigate and present mitigating evidence

794 N.E.2d 161

at the capital sentencing hearing; (2) defendant was denied equal protection or, in the alternative, effective assistance of appellate counsel, regarding a failure to raise a challenge pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State's use of a peremptory challenge to venireperson Sandra McElwee; (3) appellate counsel was ineffective for failing to raise the issue of prosecutorial misconduct; (4) defendant was denied due process when the trial court erroneously found defendant's possession of a handgun when he was arrested to be an aggravating factor at sentencing, or in the alternative, trial counsel was ineffective for failing to produce police reports that would have corroborated defendant's claim as to his intent in possessing the gun; and (5) defendant's sentence is unconstitutionally disparate to that of his codefendant, Darryl Clemons

Post-conviction counsel further alleged in the supplement to the post-conviction petition that (1) defendant's arrest was illegal; (2) trial counsel was ineffective for (a) failing to investigate and present independent ballistics testing and forensic analysis of the alleged murder weapon, (b) failing to file motions to quash defendant's arrest and adequately prepare for the suppression motion counsel did file, (c) failing to present any defense evidence or a coherent theory of defense at trial, and (d) presenting a "rambling[,] incoherent[,] offensive" closing argument that conceded defendant's guilt and attacked the victim; (3) appellate counsel was ineffective for (a) not obtaining portions of the record relating to Batson discussions concerning juror McElwee and the availability of Kenneth Burks as a witness, (b) failing to raise the admissibility of the recovered weapon, (c) failing to raise the trial court's improper restriction of cross-examination regarding a witness' expectation of a reward, and (c) failing to raise the issue of disproportionality of defendant's sentence; (4) the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) in failing to disclose criminal records of certain witnesses and the existence of a reward offered by the victim's family for information leading to the victim's killer; (5) the State presented perjured testimony or failed to correct testimony it knew to be false of two witnesses; (6) defendant's constitutional rights were violated where the prosecutor (a) repeatedly commented in closing argument on defendant's failure to testify at trial, and (b) made repeated improper statements in closing argument; and (7) defendant's constitutional rights were violated where he did not knowingly and intelligently waive his right to a sentencing jury due to trial counsel's misinforming and actively misleading him.

The trial court granted the State's motion to dismiss, finding defendant's claims to be barred by waiver and res judicata.

ANALYSIS

I. Standard of Review

The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2000)) provides a remedy by which defendants may challenge their convictions or sentences for violations of federal or state constitutional law. People v. Towns, 182 Ill.2d 491, 502, 231 Ill.Dec. 557, 696 N.E.2d 1128 (1998); People v. Tenner, 175 Ill.2d 372, 377, 222 Ill.Dec. 325, 677 N.E.2d 859 (1997). A post-conviction action is a collateral proceeding, and not an appeal from the underlying judgment. People v. Williams, 186 Ill.2d 55, 62, 237 Ill.Dec. 112, 708 N.E.2d 1152 (1999), quoting People v. Ruiz, 132 Ill.2d 1, 9, 138 Ill.Dec. 201, 547 N.E.2d 170 (1989). The purpose of the proceeding is to allow inquiry into constitutional issues relating to the conviction or

794 N.E.2d 162

sentence that were not, and could not have been, determined on direct appeal. People v. Griffin, 178 Ill.2d 65, 72-73, 227 Ill.Dec. 338, 687 N.E.2d 820 (1997); People v. Mahaffey, 165 Ill.2d 445, 452, 209 Ill.Dec. 246, 651 N.E.2d 174 (1995). Thus, res judicata bars consideration of issues that were raised and decided on direct appeal, and issues that could have been presented on direct appeal, but were not, are considered waived. Towns, 182 Ill.2d at 502-03, 231 Ill.Dec. 557, 696 N.E.2d 1128. A defendant is not entitled to an evidentiary hearing on a post-conviction petition as a matter of right. People v. Hobley, 182 Ill.2d 404, 427-28, 231 Ill.Dec. 321, 696 N.E.2d 313 (1998). Rather, an evidentiary hearing is warranted only when the allegations of the post-conviction petition, supported when necessary by the trial record or accompanying affidavits, make a substantial showing that the defendant's constitutional rights have been violated. Hobley, 182 Ill.2d at 428, 231 Ill.Dec. 321, 696 N.E.2d 313; Towns, 182 Ill.2d at 503, 231 Ill.Dec. 557, 696 N.E.2d 1128. In determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits must be taken as true. Towns, 182 Ill.2d at 503, 231 Ill.Dec. 557, 696 N.E.2d 1128. A circuit court's dismissal of a post-conviction petition without a hearing will be reviewed de novo. People v. Coleman, 183 Ill.2d 366, 388-89, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998)

II. Batson Claim

On appeal, defendant alleges that appellate counsel was ineffective for failing to raise a Batson claim as to the prosecutor's use of a peremptory challenge to venireperson Sandra McElwee. At trial, the State used peremptory challenges to exclude from the jury McElwee and two other venirepersons, Robert Canady and Ola Love. At the close of jury selection, trial counsel moved for a mistrial, arguing that the prosecution had improperly used three of its four peremptory challenges to exclude Canady, Love and McElwee, in violation of Batson. The trial court found a prima facie case of racial discrimination as to the exclusion of Canady and Love. As to McElwee, although trial counsel argued that she was clearly black, the trial court expressed doubt, noting her light complexion and her name. In response to questioning from the trial court, the prosecutor stated that her notes reflected that McElwee was a Caucasian female. The trial court found this perception to be reasonable and concluded that the prosecutor had advanced a race-neutral explanation for excluding McElwee. The trial court denied trial counsel's motion to subpoena McElwee to testify concerning her race. On direct appeal, appellate counsel raised a Batson issue as to venirepersons Canady and Love, but not as to McElwee.

Batson established a three-step analysis to determine whether or not the State used its peremptory challenges to remove venirepersons on the basis of race. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Munson, 171 Ill.2d at 174, 215 Ill.Dec. 125, 662 N.E.2d 1265; People v. Hudson, 157 Ill.2d 401, 425, 193 Ill.Dec. 128, 626 N.E.2d 161 (1993). Second, if the defendant has made a prima facie showing, the burden then shifts to the State to provide a race-neutral explanation for excluding each venireperson in question. A race-neutral explanation is one based upon something other than the race of the venireperson. In assessing an explanation, the trial court focuses on the facial validity of the prosecutor's explanation. The explanation need not be persuasive, or even plausible. A legitimate reason is not a reason that makes sense, but rather is a

794 N.E.2d 163

reason that does not deny equal protection. Absent an inherent...