People v. Del Vecchio

• Decision Date: 19 June 1989
• Docket Number: No. 64475,64475
• Parties: , 135 Ill.Dec. 816 The PEOPLE of the State of Illinois, Appellee, v. George W. DEL VECCHIO, Appellant.
• Court: Illinois Supreme Court

Page 312

544 N.E.2d 312

129 Ill.2d 265, 135 Ill.Dec. 816

The PEOPLE of the State of Illinois, Appellee, v. George W. DEL VECCHIO, Appellant.

No. 64475.

Supreme Court of Illinois.

June 19, 1989.

Rehearing Denied Sept. 29, 1989.

James B. Haddad, Chicago, for appellant.

Neil F. Hartigan, Atty. Gen., Springfield, and Richard M. Daley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Kenneth T. McCurry and Kevin Sweeney, Asst. State's Attys., and Sara Dillery Hynes, Special Asst. State's Atty., of counsel), for People.

Justice RYAN delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, George W. Del Vecchio, was convicted of murder, burglary, rape and deviate sexual assault. At the conclusion of the sentencing hearing, the jury found that there existed one or more factors in aggravation set forth in section 9-1(b) of the Criminal Code of 1961 (Ill.Rev.Stat.1977, ch. 38, par. 9-1(b)) and that there were no mitigating factors sufficient to preclude a sentence of death. The sentence of death was imposed. The defendant was also sentenced to 15 years' imprisonment for rape, 6 years' for deviate sexual assault, and 7 years' for burglary. On direct appeal to this court (Ill. Const.1970, art. VI, § 4(b); 107 Ill.2d R. 603), the convictions and sentences were affirmed. (People v. Del Vecchio (1985), 105 Ill.2d 414, 86 Ill.Dec. 461, 475 N.E.2d 840 (hereinafter referred to as Del Vecchio I ).) The United States Supreme Court denied the defendant's petition for writ of certiorari. (Del Vecchio v. Illinois (1985), 474 U.S. 883, 106 S.Ct. 204, 88 L.Ed.2d 173.) Defendant then filed a petition under the Post-Conviction Hearing Act (Ill.Rev.Stat.1985, ch. 38, par. 122-1 et seq.), and counsel was appointed. Without an evidentiary hearing, the circuit court granted the State's motion to dismiss the petition. This appeal concerns the correctness of that dismissal.

Defendant was convicted for the December 22, 1977, murder of six-year-old Tony Canzoneri, the rape and deviate sexual assault of Canzoneri's mother and the burglary of their home. The facts relating to the underlying crimes were discussed at length in the first appeal (Del Vecchio I, 105 Ill.2d 414, 86 Ill.Dec. 461, 475 N.E.2d 840), and we will discuss only the facts relevant to the issues on this review.

Del Vecchio's first claim in his post-conviction petition is that there should be a new trial because the 1979 trial judge, Judge Louis B. Garippo (the trial judge for the 1977 murder of Tony Canzoneri), had a conflict of interest stemming from his involvement in a 1965 case in which Del Vecchio was convicted of the murder of Fred Christiansen. One of the aggravating factors introduced at the penalty hearing in our case was the 1965 murder of Fred Christiansen, of which the defendant was convicted at the age of 16.

The record reflects that in 1979, defendant's defense attorneys learned, during the trial, that Garippo had been present at the defendant's 1965 plea of guilty in the Christiansen murder case. They knew that Judge Garippo had been an assistant State's Attorney, but they were unaware that he had been chief of the criminal division at that time. Defendant's attorneys prepared a motion for mistrial but, knowing only of the judge's limited involvement, they did not file it, believing that at that late stage in the proceeding the judge would not disqualify himself simply because he had witnessed the 1965 proceedings.

Briefly, the facts surrounding the 1965 conviction are as follows. On February 2, 1965, Del Vecchio was interrogated in connection with the murder of Fred Christiansen. At that time he confessed to the crime. An assistant State's Attorney took a written statement and later prepared a report for his supervisors on the investigation, interrogation and confession. One of the supervisors was Louis Garippo, then the chief of the State's Attorney's criminal division. The Christiansen murder received a good deal of publicity because it represented a new and alarming phenomenon: a robbery spree and a killing by a young person under the influence of drugs. At the time of the murder Del Vecchio was 16 years old and would turn 17 on March 1, 1965, at which age he could be tried as an adult. In mid-February Del Vecchio's attorney went to Garippo and requested an expedited indictment so that Del Vecchio could be sentenced as a youth. Garippo agreed and a grand jury indicted Del Vecchio. On February 24, 1965, Del Vecchio pleaded guilty and was sentenced that day.

The defendant acknowledges that in 1965, upon interrogation, he confessed to the crime and that after the decision to expedite the indictment the State's Attorney's office made no significant decisions in the case. However, he now claims that he was denied a fair trial in 1979 on the murder charge involved in the case before us because of Garippo's involvement with the 1965 prosecution. He speculates that perhaps Judge Garippo regretted his 1965 decision to expedite the indictment. That decision allowed Del Vecchio to be sentenced as a youth, which presumably helped him obtain an earlier release from prison, and as a result of this early release he was able to perform the subsequent crimes.

Before addressing the issue of judicial disqualification it is important to note that in 1979, Del Vecchio was tried before a jury and that he had a jury sentencing hearing. The jury made the findings that Del Vecchio was death-eligible and the jury determined that the aggravating factors making defendant eligible for the death sentence were present and that there were no mitigating factors sufficient to preclude the imposition of the death penalty. The judge had virtually no role in these decisions.

In a post-conviction proceeding, the petitioner has the burden of proof and must establish a substantial deprivation of rights under the United States Constitution or the Constitution of Illinois before he is entitled to any relief. (People v. Silagy (1987), 116 Ill.2d 357, 365, 107 Ill.Dec. 677, 507 N.E.2d 830; People v. Harper (1969), 43 Ill.2d 368, 372, 253 N.E.2d 451.) "Dismissal of nonmeritorious petitions on motion is certainly within contemplation of the Act [citation], and necessary to the orderly and expeditious disposition of these petitions." People v. Collins (1968), 39 Ill.2d 286, 288, 235 N.E.2d 570.

The United States Supreme Court has recognized that the issue of judicial disqualification does not necessarily involve a question of constitutional validity. The Supreme Court has stated that "matters of kinship, personal bias, state policy, remoteness of interest would seem generally to be matters merely of legislative discretion. [Citation.] But it certainly violates the 14th Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him in his case." (Tumey v. Ohio (1927), 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749, 754; see Aetna Life Insurance Co. v. Lavoie (1986), 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823; Ward v. Village of Monroeville (1972), 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267.) Another guiding principle on the issue of judicial bias is whether the case involves a possible temptation such that the average person, acting as judge, could not hold the balance nice, clear and true between the State and the accused. (Tumey v. Ohio (1927), 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749, 758.) Recently, the Supreme Court recognized that only under the most extreme cases would disqualification on the basis of bias or prejudice be constitutionally required. Aetna Life Insurance Co. v. Lavoie (1986), 475 U.S. 813, 821, 106 S.Ct. 1580, 1585, 89 L.Ed.2d 823, 832.

Certainly, Judge Garippo had no pecuniary interest in the matter. However, the defendant points to a number of rulings during the course of the 1979 proceedings that were supposedly prejudicial to him and which indicate Judge Garippo's bias. These rulings cannot be raised now as error because a proceeding under the Post-Conviction Hearing Act is not an appeal, but is a collateral attack on the judgment. (People v. James (1986), 111 Ill.2d 283, 290, 95 Ill.Dec. 486, 489 N.E.2d 1350.) The judgment of the reviewing court on appeal is res judicata as to all issues decided, and any claim that could have been presented on direct appeal is, if not presented, thereafter barred under the doctrine of waiver. People v. Silagy (1987), 116 Ill.2d 357, 365, 107 Ill.Dec. 677, 507 N.E.2d 830.

One of the rulings now claimed to have been prejudicial was the judge's refusal to rule on a pretrial motion that the 1965 evidence was irrelevant to rebut a possible defense of insanity in the 1979 case. Judge Garippo did not rule on the motion, claiming he did not have enough information before trial. In the post-conviction petition the defendant argues Garippo ordered the psychiatrists to prepare written reports for him before trial and, therefore, he must have had plenty of information on which to base a ruling. Another claimed indication of prejudice is that Judge Garippo stated that Del Vecchio was more worthy of the death penalty than John Gacy, whose case was also on the judge's trial call. (See People v. Gacy (1984), 103 Ill.2d 1, 82 Ill.Dec. 391, 468 N.E.2d 1171.) In an affidavit attached to the State's motion to dismiss the post-conviction petition, Judge Garippo stated that he was not a strong proponent of the death penalty, but that of the three death penalty cases on his docket in 1979-80, based on the psychiatric reports available to him, Gacy was the least likely candidate for the death penalty.

Either of these matters could have been raised on direct appeal. The statement objected to by Del Vecchio was made in 1979 and was made in the presence of his two...