People v. Whitehead

• Decision Date: 15 February 1996
• Docket Number: Nos. 71791,77379,s. 71791
• Citation: 662 N.E.2d 1304,215 Ill.Dec. 164,169 Ill.2d 355
• Court: Illinois Supreme Court
• Parties: , 215 Ill.Dec. 164 The PEOPLE of the State of Illinois, Appellee, v. John E. WHITEHEAD, Appellant.

Page 1304

662 N.E.2d 1304

169 Ill.2d 355, 215 Ill.Dec. 164

The PEOPLE of the State of Illinois, Appellee, v. John E. WHITEHEAD, Appellant.

Nos. 71791, 77379.

Supreme Court of Illinois.

Feb. 15, 1996.

Rehearing Denied April 1, 1996.

[215 Ill.Dec. 168] Appeal from Circuit Court Grundy County, No. TR82CF49; Louis J. Peronia, Trial Judge.

Vincent D. Pinelli, Patrick J. Cullinan and John C. Greenlees, Chicago, for John E. Whitehead.

Roland W. Burris and James E. Ryan, Attys. Gen., Springfield (Rosalyn B. Kaplan and Barbara A. Preiner, Solicitors Gen., and Terence M. Madsen, Michael M. Glick, Steven J. Zick and Arleen C. Anderson, Asst. Attorneys General, Chicago, of counsel), for the People.

Justice FREEMAN delivered the opinion of the court:

Following a jury trial in the circuit court of Grundy County, defendant, John E. Whitehead, was convicted of murder and aggravated kidnapping (Ill.Rev.Stat.1981, ch. 38, pars. 9-1, 10-2) and sentenced to death and a term of 30 years' imprisonment. On direct appeal, this court affirmed defendant's convictions and sentences. (People v. Whitehead (1987), 116 Ill.2d 425, 108 Ill.Dec. 376, 508 N.E.2d 687.) The United States Supreme Court later denied a petition for a writ of certiorari (Whitehead v. Illinois (1987), 484 U.S. 933, 108 S.Ct. 307, 98 L.Ed.2d 266) and a petition for rehearing (Whitehead v. Illinois (1988), 484 U.S. 1021, 108 S.Ct. 737, 98 L.Ed.2d 685). Over a period of years, defendant filed several amended petitions under the Post-Conviction Hearing Act (Act) (Ill.Rev.Stat.1981, ch. 38, par. 122-1 et seq.) in the circuit court of Grundy County. Subsequent to the trial court's dismissal of the second-amended petition, defendant filed notice of direct appeal to this court. During the pendency of that appeal, the trial court dismissed a third-amended petition and defendant again filed notice of direct appeal to this court. We have consolidated the appeals. (134 Ill.2d R. 366(a).) For reasons which follow, we affirm.

FACTS

The factual details surrounding the murder and aggravated kidnapping of five-year-old Vickie Wrobel are recounted in Whitehead, 116 Ill.2d 425, 108 Ill.Dec. 376, 508 N.E.2d 687. The State's evidence against defendant included eight statements by defendant, oral, written and tape-recorded, in which he admitted kidnapping, sexually assaulting and killing the Wrobel child. Defendant's statements were in turn corroborated by a multitude of physical and circumstantial evidence. We present only those facts necessary to resolve issues relevant to this post-conviction appeal.

STANDARD OF REVIEW

On review of matters decided under the Post-Conviction Hearing Act, determinations of the trial court will not be disturbed unless manifestly erroneous. See People v. Silagy (1987), 116 Ill.2d 357, 365, 107 Ill.Dec. 677, 507 N.E.2d 830.

PROCEDURAL BACKGROUND

On May 25, 1988, defendant filed a pro se petition under the Post-Conviction Hearing Act in the circuit court. With the assistance of appointed counsel, defendant later filed an amended petition and a second-amended post-conviction petition and an addition. The second-amended petition claimed a violation of the right to the effective assistance of counsel (U.S. Const., amend. VI; Ill. Const.1970, art. I, § 8) in that trial counsel: mishandled the defenses of insanity, intoxication and reasonable doubt; failed to adequately preserve a record of error; failed to vigorously argue, present or investigate available evidence in support of a reasonable doubt defense; failed to object to improper prosecutorial remarks; and was provided no capable assistance to investigate or develop mitigation evidence for sentencing. The addition to the petition claimed that separate appellate counsel was ineffective for failing to raise on direct appeal the ineffective assistance of trial counsel. Defendant's affidavit and the affidavit of Wayne M. McFarland, his trial counsel, were attached to the second-amended petition.

On February 7, 1991, the trial court dismissed the second-amended petition and addition, without an evidentiary hearing, finding that the claim of trial counsel's ineffectiveness was waived for failure to raise it on direct appeal. The trial court additionally ruled that both trial and appellate counsel assisted effectively. Before entry of the judgment, defendant unsuccessfully requested that the ruling be stayed to allow him to file an amended pleading with the assistance of the Capital Resource Center, a recently created branch of the Illinois State Appellate Defender's office. Post-conviction counsel indicated that they had just become aware of the Center's existence and that it provides investigative services and mitigation and capital defense expertise. Defendant subsequently filed a motion for reconsideration, asserting that the trial court had limited the investigative resources available to post-conviction counsel by declining to rule that they might obtain reimbursement of their costs; asserting that the second-amended petition was incomplete; and requesting 120 days to utilize the resources of the Capital Resource Center to supplement the petition. The trial court denied the motion for reconsideration. On April 24, 1991, defendant filed notice of appeal from the dismissal of the second-amended petition with addition and the denial of the motion for reconsideration. 134 Ill.2d Rules 603, 651(a).

On November 13, 1991, defendant filed a third-amended post-conviction petition in the circuit court of Grundy County with the assistance of the Capital Resource Center. The third-amended petition claimed a violation of the sixth amendment right to an impartial jury (U.S. Const., amend. VI) because several jurors had become upset and complained to the clerk of the circuit court during the trial that their names and addresses had been published in the local newspaper, and the jury had also witnessed an emotional outburst by the victim's mother from the witness stand. The petition also claimed a violation of due process (U.S. Const., amend. XIV) because one juror revealed that, before evidence was presented at trial, he had conceptualized defendant as being equipoised on a gradated scale extending between unequivocal guilt and unequivocal innocence. The petition also repeated the second-amended petition's claims of trial and appellate counsel's ineffective assistance. Defendant supplemented his previous claim concerning trial counsel's ineffectiveness with the additional claim that trial counsel's handling of the insanity defense resulted in defendant's inability to testify in support of the reasonable doubt defense. Defendant also supplemented his arguments against procedural default of the claims. The affidavits of various individuals with legal and mitigation expertise were attached to the third-amended petition.

On November 13, 1991, defendant filed a motion in this court requesting a stay of the appeal, pending disposition of the third-amended petition. On November 19, 1991, this court stayed the appeal, and later extended the stay to April 19, 1992. A further extension was later denied. On June 8, 1992, defendant filed his initial appellate brief. The State responded by brief on September 14, 1992. On December 1, 1992, defendant filed a reply brief.

On May 15, 1992, the State answered the third-amended petition. In September 1992, the trial court set the matter for hearing when the State did not move to dismiss. The trial court later granted leave to file a motion to dismiss. In addition to arguing primarily the merits, the motion stated that the due process and right to impartial jury claims in the third-amended petition were waived by defendant's failure to raise them on direct appeal or in prior post-conviction petitions. Defendant responded that the prior post-conviction pleadings were dismissed for procedural default, their merits not having been addressed. Accordingly, the petition's dismissal should not form the basis for waiver of additional issues. Moreover, defendant contended that he was not reasonably and adequately assisted in preparing the second-amended petition (see People v. Wright (1992), 149 Ill.2d 36, 64, 171 Ill.Dec. 424, 594 N.E.2d 276; People v. Owens (1990), 139 Ill.2d 351, 364, 151 Ill.Dec. 522, 564 N.E.2d 1184), as demonstrated by comparing the petitions and their support as well as by appointed counsel's requests to file a third-amended petition utilizing the assistance of the Capital Resource Center. Defendant additionally pointed out that successive petitions have been allowed where prior proceedings were fundamentally deficient.

On December 12, 1992, the trial court dismissed the third-amended petition finding that most of the claims, including that of trial counsel's ineffective assistance and the violations of the right to impartial jury and due process, were waived for failure to raise them on direct appeal. The trial court found that the claim of appellate counsel's ineffective assistance was sufficient to warrant an evidentiary hearing and that there had been no previous opportunity to raise that claim. The trial court additionally entered findings that previous post-conviction pleadings had been dismissed on procedural grounds and that defendant had asserted that his representation in those proceedings was inadequate. On April 29, 1994, after a hearing concerned with the effective assistance of appellate counsel, the trial court denied the petition. On June 13, 1994, defendant filed notice of appeal from the denial of the third-amended petition, and on August 22, 1994, we consolidated the appeals (134 Ill.2d R. 366(a)).

At this juncture, we note that the Post-Conviction Hearing Act allows for amendment of a post-conviction petition (see Ill.Rev.Stat.1981, ch. 38, par. 122-5), yet contemplates the filing of one post-conviction petition (see Ill.Rev.Stat.1981, ch. 38, par. 122-3; see also People v. Flores (1992), 153 Ill.2d 264, 274, 180 Ill.Dec. 1, 606...