People v. Richardson, 83579.

• Court: Supreme Court of Illinois
• Citation: 245 Ill.Dec. 109,727 N.E.2d 362,189 Ill.2d 401
• Docket Number: No. 83579.,83579.
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Floyd RICHARDSON, Appellant.
• Decision Date: 17 February 2000

727 N.E.2d 362
189 Ill.2d 401
245 Ill.Dec. 109

The PEOPLE of the State of Illinois, Appellee,
v.
Floyd RICHARDSON, Appellant

No. 83579.

Supreme Court of Illinois.

February 17, 2000.

Rehearing Denied April 3, 2000.

727 N.E.2d 366

Thomas Peters, Julie B. Aimen, Chicago, for Appellant

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

Justice FREEMAN delivered the opinion of the court:

Defendant, Floyd Richardson, petitioned the circuit court of Cook County for post-conviction relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 (West 1998)). The circuit court dismissed defendant's petition without an evidentiary hearing. Defendant appeals directly to this court. 134 Ill.2d R. 651(a). We affirm.

BACKGROUND

In defendant's direct appeal, this court recited the details of his crimes. See People v. Richardson, 123 Ill.2d 322, 123 Ill. Dec. 908, 528 N.E.2d 612 (1988). We need not repeat those details here. Defendant was charged with, inter alia, the intentional,

727 N.E.2d 367

knowing, and felony murder (Ill.Rev. Stat.1981, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)) and the armed robbery (Ill. Rev. Stat.1981, ch. 38, par. 18-2) of the victim, George Vrabel. The victim was a grocery store clerk whom defendant fatally shot while robbing the store. At the close of the evidence, the jury returned general verdicts of guilty of murder and armed robbery

Defendant waived a sentencing jury. At the first stage of the death sentencing hearing, the trial judge determined that defendant was eligible for the death penalty because he murdered the victim in the course of committing another felony, i.e., armed robbery. See Ill.Rev.Stat.1981, ch. 38, par. 9-1(b)(6). At the close of the second stage of the death sentencing hearing, the circuit court sentenced defendant to death on the murder conviction and to a concurrent, extended prison term of 60 years on the armed robbery conviction.

Defendant's sentence was stayed pending direct appeal to this court. Ill. Const. 1970, art. VI, § 4(b); 134 Ill.2d Rs. 603, 609(a). This court affirmed defendant's convictions and sentences. People v. Richardson, 123 Ill.2d 322, 123 Ill.Dec. 908, 528 N.E.2d 612 (1988). The United States Supreme Court denied defendant's petition for a writ of certiorari. Richardson v. Illinois, 489 U.S. 1100, 109 S.Ct. 1577, 103 L.Ed.2d 943 (1989).

On January 7, 1991, defendant filed in the circuit court a petition for post-conviction relief. On March 4, 1997, the circuit court granted the State's motion to dismiss the petition without an evidentiary hearing. We will discuss additional relevant facts in the context of the issues raised on appeal.

DISCUSSION

A proceeding brought under the Post-Conviction Hearing Act (Act) is not an appeal of a defendant's underlying judgment. Rather, it is a collateral attack on the judgment. The purpose of the proceeding is to resolve allegations that constitutional violations occurred at trial, when those allegations have not been, and could not have been, adjudicated previously. To be entitled to post-conviction relief, the petitioner bears the burden of establishing a substantial deprivation of constitutional rights. Also, determinations of the reviewing court on the prior direct appeal are res judicata as to issues actually decided; issues that could have been presented on direct appeal but were not are deemed waived. People v. Evans, 186 Ill.2d 83, 89, 237 Ill.Dec. 118, 708 N.E.2d 1158 (1999); People v. Tenner, 175 Ill.2d 372, 377-78, 222 Ill.Dec. 325, 677 N.E.2d 859 (1997).

The petitioner in a post-conviction proceeding is not entitled to an evidentiary hearing as of right. Rather, the Act permits summary dismissal of a nonmeritorious petition. The allegations in the petition, supported where appropriate by the trial record or accompanying affidavits, must show a substantial violation of constitutional rights. Evans, 186 Ill.2d at 89, 237 Ill.Dec. 118, 708 N.E.2d 1158; People v. Caballero, 126 Ill.2d 248, 259, 128 Ill.Dec. 1, 533 N.E.2d 1089 (1989). For the purpose of determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits, in light of the original trial record, are to be taken as true. Evans, 186 Ill.2d at 89, 237 Ill.Dec. 118, 708 N.E.2d 1158; People v. Coleman, 183 Ill.2d 366, 380-82, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998). The circuit court's dismissal of a post-conviction petition is reviewed de novo. Coleman, 183 Ill.2d at 387-89, 233 Ill.Dec. 789, 701 N.E.2d 1063.

On appeal, defendant contends that he was denied his constitutional rights at trial due to the: (1) prosecution's discriminatory use of its peremptory challenges during voir dire to exclude African-American venirepersons from the jury; (2) ineffective assistance of counsel at trial and on direct review; and (3) circuit court's denial of additional funds for expert witnesses.

727 N.E.2d 368

I. Batson Claim

Defendant claims that the prosecution denied his constitutional rights by its discriminatory use of peremptory challenges during voir dire at his trial. When defendant was tried in 1984, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and its Illinois offspring expressed the controlling law.

In Swain, the United States Supreme Court held that a criminal defendant could not claim an equal protection violation based on a prosecutor's racially discriminatory use of peremptory challenges to exclude African-Americans from the jury in that particular trial. Rather, a defendant would prevail on such a claim if the defendant could show that a prosecutor in a county was systematically excluding persons from juries for racially motivated reasons "in case after case." Swain, 380 U.S. at 223, 85 S.Ct. at 837, 13 L.Ed.2d at 774. This court repeatedly declared Swain to be controlling in Illinois. E.g., People v. Lyles, 106 Ill.2d 373, 392-95, 87 Ill.Dec. 934, 478 N.E.2d 291 (1985); People v. Williams, 97 Ill.2d 252, 273-80, 73 Ill.Dec. 360, 454 N.E.2d 220 (1983).

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Court reaffirmed the principle that the State denies an African-American defendant the equal protection of the laws when it tries the defendant before a jury from which members of the defendant's race have been purposely excluded. Batson, 476 U.S. at 85, 106 S.Ct. at 1716, 90 L.Ed.2d at 79-80. Batson held that a defendant could establish a case of racial discrimination in the selection of his jury solely on evidence concerning the prosecutor's use of peremptory challenges at defendant's own trial. Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87; see People v. Andrews, 146 Ill.2d 413, 423, 167 Ill.Dec. 996, 588 N.E.2d 1126 (1992). Because defendant's case was pending on direct review when Batson was decided, Batson was applicable retroactively to defendant's trial. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).

However, Batson requires "a defendant's timely objection to a prosecutor's challenges." (Emphasis added.) Batson, 476 U.S. at 99, 106 S.Ct. at 1725, 90 L.Ed.2d at 89-90. A defendant who fails to raise a Batson objection before the jury is sworn waives the issue. People v. Fair, 159 Ill.2d 51, 71, 201 Ill.Dec. 23, 636 N.E.2d 455 (1994). This rule applied under the old rule of Swain (e.g., People v. Gaines, 88 Ill.2d 342, 359, 58 Ill.Dec. 795, 430 N.E.2d 1046 (1981)) and applies to cases pending on appeal when Batson was decided (e.g., People v. Evans, 125 Ill.2d 50, 61-62, 125 Ill.Dec. 790, 530 N.E.2d 1360 (1988); accord People v. Holder, 153 Ill.App.3d 884, 886, 106 Ill.Dec. 700, 506 N.E.2d 407 (1987)). Thus, a defendant who failed to object to the prosecution's use of peremptory challenges under the old rule of Swain cannot receive on appeal the benefit of the new rule announced in Batson. People v. Pecor, 153 Ill.2d 109, 125-26, 180 Ill.Dec. 50, 606 N.E.2d 1127 (1992); accord Teague v. Lane, 489 U.S. 288, 297, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334, 347 (1989) (under Illinois law, failure to raise Swain claim at trial and on direct review waives Batson-type claim in state post-conviction proceeding).

In this case, defendant concedes, as our review of the record confirms, that his trial counsel did not object during voir dire to the prosecution's use of its peremptory challenges or include this issue in the post-trial motion. We note that while defendant's direct appeal was being briefed, this court remanded several pending cases to trial courts for Batson hearings, where the Batson issue was timely raised at trial. People v. Hooper, 118 Ill.2d 244, 249, 107 Ill.Dec. 250, 506 N.E.2d 1305 (1987) (Ryan, J., concurring) (describing court as remanding "all cases on review in which the Batson issue is viable" to circuit courts for Batson hearings); see, e.g., Evans, 125

727 N.E.2d 369

Ill.2d at 59-60, 125 Ill.Dec. 790, 530 N.E.2d 1360. Defendant has waived this claim

II. Ineffective Assistance of Counsel

Defendant next claims that he was denied his constitutional right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const.1970, art. I, § 8. Defendant contends that: (A) appellate counsel failed to raise a Batson objection, and (B) trial counsel failed to investigate and introduce evidence at the death sentencing hearing.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the familiar Strickland test. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The test is composed of two prongs: deficiency and prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; see People v. Brisbon, 164 Ill.2d 236, 245-46, 207 Ill.Dec. 442, 647 N.E.2d 935 (1995).

First, the...