People v. Thomas

• Decision Date: 17 February 1995
• Docket Number: No. 75548,75548
• Citation: 647 N.E.2d 983,164 Ill.2d 410,207 Ill.Dec. 490
• Parties: , 207 Ill.Dec. 490 The PEOPLE of the State of Illinois, Appellee, v. Walter L. THOMAS, Appellant.
• Court: Illinois Supreme Court

Page 983

647 N.E.2d 983

164 Ill.2d 410, 207 Ill.Dec. 490

The PEOPLE of the State of Illinois, Appellee, v. Walter L. THOMAS, Appellant.

No. 75548.

Supreme Court of Illinois.

Feb. 17, 1995.

As Modified on Denial of Rehearing April 3, 1995.

Michael Duffy, Mark Latham and Terry M. Hackett, of Gardner, Carton & Douglas, Chicago, and Noreen A. Healy, law student, for appellant.

Roland W. Burris, Atty. Gen., Springfield, and James E. Ryan, State's Atty., Wheaton (Rosalyn B. Kaplan, Solicitor Gen., and Arleen C. Anderson and Penelope Gainer, Asst. Attys. Gen., Chicago, of counsel), for the People.

Justice NICKELS delivered the opinion of the court:

Defendant was convicted by a Du Page County jury of murder, burglary, arson, and aggravated arson. That same jury found defendant eligible for the death penalty and sentenced him to death. This court affirmed defendant's convictions and sentences on direct appeal (People v. Thomas (1990), 137 Ill.2d 500, 148 Ill.Dec. 751, 561 N.E.2d 57) and the United States Supreme Court declined review (Thomas v. Illinois (1991), 498 U.S. 1127, 111 S.Ct. 1092, 112 L.Ed.2d 1196). Defendant, with the assistance of counsel, then sought post-conviction relief in the circuit court of Du Page County. (Ill.Rev.Stat.1991, ch. 38, par. 122-1.) The trial court dismissed defendant's post-conviction claims on the State's motion and defendant appeals directly to this court. (134 Ill.2d R. 651(a).) Defendant requests this court to remand this cause for an evidentiary hearing. We affirm.

FACTS

The victim, Sophie Darlene Dudek, was found in her garage by the Aurora police department during their investigation of a fire in the garage. The victim had been stabbed in the neck and back and had been set on fire.

Defendant's employer, Donnie Moore, informed the police that defendant was the leader of a cleaning crew that had cleaned Dudek's building on the day of the murder. Moore also told the police that defendant, a black man, was wearing a gray hooded sweat shirt on that day. A witness had seen a black man wearing a gray hooded sweat shirt walking in front of Dudek's garage several minutes before he saw smoke coming from the garage.

Police interrogated defendant about the murder and defendant twice orally confessed and signed a written confession. According to these confessions, defendant was in Dudek's garage to steal a bottle of perfume that Dudek kept in her garage. However, the bottle fell to the ground and Dudek entered the garage. As defendant attempted to flee, Dudek grabbed him from behind. Defendant removed a knife from his pocket and stabbed Dudek repeatedly. Defendant then poured perfume throughout the garage and on Dudek's body and set it on fire to conceal the murder.

POST-CONVICTION PETITION

After defendant's convictions and sentences were affirmed, defendant filed an amended petition for post-conviction relief in the circuit court of Du Page County on July 21, 1992. Attached to the petition were, inter alia, the deposition of defense trial counsel, defendant's grade school and juvenile criminal records that contained psychological reports, recent psychological evaluations and affidavits from friends and relatives.

The State moved to dismiss defendant's petition and a hearing was held. The trial court dismissed the petition without a full evidentiary hearing and defendant appealed directly to this court.

ISSUES

Defendant raises eight issues on appeal and argues that the trial court erred in failing to grant an evidentiary hearing on the following issues: (1) trial counsel's effectiveness at the guilt-innocence phase of trial, (2) trial counsel's effectiveness at sentencing, (3) the constitutionality of Illinois' death penalty statute and defense counsel's errors at sentencing, (4) the prosecution's racial remarks during sentencing, (5) denial of defendant's right to confront witnesses against him, (6) defense counsel's per se ineffectiveness due to her lack of experience in capital cases, (7) the misreading of jury verdict forms, and (8) the denial of a fair sentencing hearing.

ANALYSIS

Before we address the issues presented for review, we note the following concerning review of a dismissal of a post-conviction petition. The defendant has the burden at a post-conviction hearing to establish a substantial deprivation of his rights under the United States Constitution or the Constitution of Illinois. (People v. Griffin (1985), 109 Ill.2d 293, 303, 93 Ill.Dec. 774, 487 N.E.2d 599.) The trial court's determination on this matter will not be disturbed unless manifestly erroneous. (Griffin, 109 Ill.2d at 303, 93 Ill.Dec. 774, 487 N.E.2d 599.) A defendant is not entitled to an evidentiary hearing as a matter of right. (Ill.Rev.Stat.1991, ch. 38, par. 122-6; People v. James (1986), 111 Ill.2d 283, 291, 95 Ill.Dec. 486, 489 N.E.2d 1350.) Instead, an evidentiary hearing should be conducted where a substantial showing of a violation of constitutional rights has been made, supported by the record or affidavits. (People v. Gaines (1984), 105 Ill.2d 79, 91-92, 85 Ill.Dec. 269, 473 N.E.2d 868.) We further note that issues already decided by a reviewing court are res judicata as to those issues, and any issue that could have been presented on direct appeal, but was not, is waived. People v. Silagy (1987), 116 Ill.2d 357, 365, 107 Ill.Dec. 677, 507 N.E.2d 830.

I Counsel's Effectiveness at Trial

Defendant's first allegation concerns the effectiveness of trial defense counsel during the guilt/innocence phase of his trial. Defendant argues that counsel was ineffective in failing to (1) recognize the racial aspects of the case, (2) object to the State's characterization of stains on defendant's clothing as blood, (3) impeach a State witness with proof of the witness' previous arrests, and (4) request a mistrial after a witness testified that defendant confessed to his mother. None of these contentions have merit.

1. Racial Aspects

Defendant first contends that trial defense counsel was ineffective in failing to recognize the racial aspects of his case. Defendant, a black man, was convicted of killing a white woman by an all-white jury. Defense counsel stated in her deposition that she was not concerned with the racial aspect of defendant's case because she did not consider the case to have any racial overtones. Defense counsel did not believe that racial implications are present in any case when a black man is accused of killing a white woman, absent additional facts. However, at trial, defense counsel did question 8 of the 12 jurors about their views on race. Defendant argues that defense counsel's failure to recognize the racial aspect of his case as a fundamental issue with the case caused the entire defense strategy to be flawed at the guilt-innocence phase of trial. Defendant further argues that defense counsel was ineffective in failing to attempt to prevent the lack of minorities in the venire and for failing to formulate a strategy to attempt to minimize potential racial bias against him.

The standard for ineffective-assistance-of-counsel claims is well known. In order for defendant to succeed on such claim, he must show (1) that his counsel's performance fell below an objective standard of competence and (2) that but for counsel's unprofessional errors, the result would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. Hall (1993), 157 Ill.2d 324, 337, 193 Ill.Dec. 98, 626 N.E.2d 131.) At issue in a post-conviction proceeding dismissed without an evidentiary hearing is whether defendant has made a substantial showing that his sixth amendment right to effective assistance of counsel has been violated. On this issue, the trial court found: "The defense was not oblivious to the racial issue if it could be developed. It was not, however, present in the case."

Defendant, however, relies on United States Supreme Court decisions that recognize that racial implications may be present when a violent crime is committed by a member of one race against a member of another. (See Rosales-Lopez v. United States (1981), 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22; Ham v. South Carolina (1973), 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46.) Defendant also notes that defense counsel failed to question four of the jurors about their attitudes toward race.

Before we address this argument, however, we address the State's claim that defendant has waived this issue for review because he failed to raise it on direct appeal. (People v. Stewart (1988), 123 Ill.2d 368, 372, 123 Ill.Dec. 927, 528 N.E.2d 631.) The State also notes that defendant's trial and appellate counsel were not the same counsel. See People v. Ford (1981), 99 Ill.App.3d 973, 976, 55 Ill.Dec. 365, 426 N.E.2d 340.

Concerning waiver, this court has recently stated:

"Failure to raise a claim which could have been addressed on direct appeal is a procedural default which results in a bar to consideration of the claim's merits in a post-conviction proceeding. [Citation.] * * *

* * * * * *

* * * [T]he mere fact that support for a claim is contained in papers not in the trial record is largely immaterial. Reason to relax the bar occurs only when what is offered in the papers also explains why the claim it supports could not have been raised on direct appeal.

For example, the default may not preclude an ineffective-assistance claim for what trial counsel allegedly ought to have done in presenting a defense. [Citations.] An ineffective-assistance claim based on what the record on direct appeal discloses counsel did, in fact, do is, of course, subject to the usual procedural default rule. [citation.] But a claim based on what ought to have been done may depend on proof of matters which could not have been included in the record precisely because of the allegedly deficient representation." People v. Erickson (1994), 161 Ill.2d 82, 87-88, 204 Ill.Dec. 231, 641 N.E.2d 455.

Def...