NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket No. 79217--Agenda 3--November 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PERRY OLINGER,
Appellant.
Opinion filed April 17, 1997.
JUSTICE BILANDIC delivered the opinion of the court:
Following a jury trial in the circuit court of Whiteside
County, the defendant, Perry Olinger, was found guilty of the
murders of three individuals and sentenced to death. This court
affirmed defendant's convictions and death sentence on direct
appeal. People v. Olinger, 112 Ill. 2d 324 (1986). Defendant
subsequently filed a second-amended petition for post-conviction
relief, which the circuit court dismissed without conducting an
evidentiary hearing. He appeals to this court from the dismissal of
his post-conviction petition. 134 Ill. 2d R. 651(a).
FACTS
During the morning of May 25, 1982, James Adams was found dead
in his home in Rock Falls, Illinois. Later that same morning,
Gordon Stevens and Debra Bushman were found dead in their home in
nearby Sterling, Illinois. After a five-month investigation by
various law enforcement agencies, defendant and a codefendant,
William Duncan, were charged by indictment with the three
homicides, and with armed robbery, armed violence and conspiracy.
Defendant and Duncan were tried simultaneously before the same
jury. The jury found them both guilty as charged. Defendant and
Duncan each waived his right to a jury for sentencing. In separate
sentencing hearings, the circuit court sentenced defendant to death
and Duncan to life imprisonment.
This court ultimately reversed Duncan's convictions and
remanded his case for a new trial, holding that Duncan's trial
should have been severed from defendant's trial. People v. Duncan,
124 Ill. 2d 400 (1988), on remand from Illinois v. Duncan, 484 U.S.
806, 98 L. Ed. 2d 18, 108 S. Ct. 53 (1987), vacating People v.
Duncan, 115 Ill. 2d 429 (1987). As noted, this court affirmed
defendant's convictions and sentence on direct appeal. This case is
now before us following the circuit court's dismissal of
defendant's post-conviction petition.
Trial Evidence
The evidence presented at defendant's trial is detailed in
this court's opinion on direct appeal. People v. Olinger, 112 Ill.
2d 324 (1986). The evidence showed that Tina Taber discovered the
body of her boyfriend, James Adams, lying on his kitchen floor
surrounded by a large pool of blood and blood spatters at
approximately 10:15 a.m. on May 25, 1982. Taber also found Duncan
asleep on a couch in the adjoining living room. Duncan did not
respond when Taber called him, so Taber shook Duncan awake. Duncan
did not appear to understand when Taber told him that Adams was
hurt. Duncan was wearing the same clothes he had on the night
before, and there was no blood on him. Taber and Duncan waited for
the police to arrive. An autopsy revealed that Adams was the victim
of a deep knife wound to his neck and five blows to the head. The
weapon used to kill Adams was never recovered.
Duncan testified in his own defense that he had slept through
the attack on Adams. He stated that he had drunk at least 10 beers
between 5 p.m. on May 24 and 3:30 a.m. on May 25, had taken a
substantial amount of cocaine and marijuana between midnight and
5:30 a.m. on May 25, had not slept for three days and had taken a
sinequan capsule around 6 a.m. on May 25. He then fell asleep on
the couch. The next thing he remembered was being awakened by
Taber.
At approximately 11:30 a.m. on May 25, 1982, a friend of Debra
Bushman's discovered the body of Gordon Stevens in the house that
he shared with Bushman. The friend found the front door ajar,
although it customarily was kept locked. She entered, saw Stevens'
body and called police. Upon arriving at the scene, the police
discovered Debra Bushman's body lying in a hallway. There were no
signs of forced entry into the house. Autopsies revealed that
Stevens and Bushman each died from a single gunshot wound to the
head, inflicted at close range with the same .22 magnum pistol.
The State's evidence against defendant was as follows. It was
undisputed that defendant knew victims Adams and Stevens. Defendant
told police that his association with Adams and Stevens had been
"like a triangle"; they each helped the others to sell drugs when
they had some available.
With regard to the Adams homicide, the State presented
evidence that Adams both used and sold drugs extensively. Early in
the morning of May 24, 1982, Adams returned from a trip where he
and the codefendant Duncan purchased a large quantity of drugs.
Adams immediately placed several telephone calls informing
potential buyers that he had cocaine for sale. Testimony of Adams'
customers established that Adams sold cocaine beginning at 9 a.m.
and continuing throughout the day on May 24. They reported seeing
defendant at Adams' house, as well as several other people.
Defendant told police that he went to Adams' house three
different times on May 24--specifically, from 10 to 11 a.m.;
between 1 to 2 p.m.; and from 11:30 p.m. on May 24 until about 4:30
a.m. on May 25. Defendant stated that, during his second visit, he
obtained some cocaine and used it. During his third visit,
defendant obtained more cocaine from Adams on credit, giving Adams
a high-powered rifle as collateral.
Other testimony established that, at about 1 a.m. in the
morning of May 25, Adams left his house and went to Randolph
Stralow's house, taking his cocaine and money with him. Duncan, who
was staying with Adams, remained at Adams' house, as did defendant
and his girlfriend, Rhonda Odquist. Defendant and Duncan consumed
cocaine there for several hours. During this time, Duncan called
Adams at Stralow's house four times, asking him when he would
return. According to Duncan and Odquist, defendant and Odquist left
Adams' house at around 5 a.m. Stralow testified that Adams left
Stralow's home with his cocaine and money at about 7 a.m. on May
25. An acquaintance of Adams testified that she saw Adams' van
turning into his driveway at 7:15 a.m. on May 25. As stated, Adams'
body was discovered at 10:15 a.m. on May 25. Defendant's palmprint
was lifted from the stove in the kitchen where Adams' body was
found.
The State also presented evidence that defendant, who was
unemployed, had a large amount of cash after the murders. Patty
Doyle testified that she saw defendant with a rolled-up "wad" of
bills on the afternoon of May 25. She did not know how much money
was there. A gas station attendant testified that defendant paid
his bill with a single $100 bill one or two days after the murders.
On June 3, four $100 bills were recovered from beneath the floor
mat in defendant's pick-up truck.
Randolph Stralow testified that Adams left Stralow's home with
his cocaine and $1,800 at about 7 a.m. Stralow stated that he knew
the amount of money Adams had because he had watched him count it
out in stacks of hundreds; Adams mostly had $20 bills, but he
"could have" had some $10 and $100 bills. An investigation of the
Adams crime scene on the morning of May 25 revealed no money or
wallet on Adams or in his house. Tina Taber testified that, three
or four days after finding Adams' body, she found Adams' cocaine
hidden in his garage. Patty Doyle testified that when she saw
defendant one week after the murders, defendant told her that "Jim
[Adams] said all the coke was left at [Stralow's]."
Defendant's mother testified for the defense that she co-
signed a bank loan for defendant in the amount of $3,431, which
proceeds he received in early May 1982.
With regard to the murders of Stevens and Bushman, the State
presented evidence that defendant was seen talking to Stevens in a
bar during the early evening hours of May 24, 1982. Dale Ulve
testified that defendant and Stevens invited Ulve to stop by
Stevens' house later that night, telling him that they would have
cocaine available for him to use.
The .22 magnum pistol used to kill Stevens and Bushman was
never recovered; however, the State linked this weapon to the
burglary of Dennis Burris' farmhouse on May 22, 1982. Burris
testified that several firearms, including a .22 magnum pistol, had
been stolen from his farmhouse. Burris further related that, prior
to the burglary, he had shot and killed a dog with the .22 magnum
pistol. The dog's body was exhumed and, according to the State's
firearms expert, the bullets found in the dog were fired from the
same gun as the bullets found in Stevens and Bushman.
Three men admitted their participation in the Burris burglary-
-defendant, Darrell Onken and Edward Stalder. Defendant's admission
to his participation in the burglary was presented to the jury
through the testimony of the law enforcement officials to whom he
gave his statement.
Darrell Onken testified for the State regarding the Burris
burglary. Onken stated that, during the afternoon of May 22, he was
drinking at a local tavern. Defendant introduced him to "Mike,"
whose real name, Onken later learned, was Edward Stalder. Defendant
mentioned that he had no money. The three men decided to commit a
burglary. Ultimately, they drove to the Burris residence, where
Onken acted as a lookout while Stalder and defendant went into the
house. Stalder and defendant returned with a burlap sack. Onken did
not see what was in the sack, did not receive any proceeds from the
burglary and did not know what, if anything, the other two
participants received.
Defense witnesses testified regarding activity that they
observed at the Stevens/Bushman residence on the morning of May 25.
A neighbor who lived across the street from Stevens and Bushman
testified that he saw a man drive up to the Stevens house and walk
to the door at approximately 9:15 a.m. He watched the man enter the
house, but did not notice him leave. This man had dark hair and was
driving a fairly new, light-colored car. Another neighbor who lived
across the street related that he saw a car pull into the driveway
of the Stevens house at about 9:30 a.m. He saw a man get out of the
car and run toward the house. This man had light-brown, shoulder-
length hair and the car was dark green. The neighbors' descriptions
do not fit defendant, who had red hair and drove a pick-up truck.
The most significant evidence offered by the State to connect
defendant to the three murders was the testimony of Edward Stalder.
Because Stalder's testimony is central to the first claim addressed
on appeal, we present that testimony in detail. Stalder testified
that, in April of 1982, he left his home in another state and moved
into his friend William Mooney's house in Whiteside County,
Illinois. A man named Kevin Anderson and Mooney's wife were also
living there at the time.
Stalder met defendant for the first time on May 15, when
defendant visited the Mooney house. Stalder had some cocaine in his
possession, which he shared with defendant. Stalder explained that
he generally consumed his cocaine by shooting it up with a needle.
Later that night, Stalder and defendant discovered that they were
out of needles. In a search for needles, Stalder and defendant
drove to Adams' house in Rock Falls. They were directed to the
Stevens/Bushman residence in Sterling. There, Stalder met Stevens
and Bushman for the first time, and then all four shared Stalder's
cocaine. Defendant ultimately dropped Stalder off at the Mooney
house the next evening, May 16.
Stalder did not see defendant again until he met him in a
tavern in Morrison, Illinois, during the afternoon of May 22.
There, Stalder was introduced to Onken. Stalder, defendant and
Onken talked about "everybody being short on money and figuring out
some way to get some." According to Stalder, while he and defendant
were alone, defendant asked Stalder to join him in "taking over
control of the drug traffic in the area." Defendant suggested that
he and Stalder steal drugs from "Jim Adams and a Bill" and "make
sure there wasn't [sic] any witnesses left." Stalder understood
"Bill" to be William Duncan. Stalder stated that he declined this
offer.
Stalder, defendant and Onken proceeded to the Burris
farmhouse. Stalder and defendant burglarized the farmhouse while
Onken stood watch outside. Stalder stated that they stole several
firearms including a .22 magnum pistol, a .38-caliber pistol and
two black-powder pistols. Stalder claimed that he took the .38 and
the two black-powder pistols, but that defendant kept the .22
magnum. As stated above, this .22 magnum pistol was later
determined to be the weapon used to kill Stevens and Bushman.
Stalder further testified that, later during the night, after
Onken was gone, defendant again tried to convince him to "go in
with him on taking over the drug traffic." Stalder again told
defendant that he was not interested.
Stalder next related that after defendant dropped him off at
the Mooney house on the evening of May 23, he remained there until
May 25. Stalder stated that he heard about the murders and, two or
three days later, he moved into Bob Edmunds' home in Morrison. He
and Edmunds traveled to Iowa, where Stalder gave the two black-
powder pistols to a person with instructions to sell them or
dispose of them. They then returned to Morrison. On June 8 or 9,
1982, Stalder and Edmunds again traveled to Iowa along with Bill
Mooney and others. The group was pulled over outside of Newton,
Iowa, for a traffic offense. Stalder was arrested for possession of
a weapon. Stalder testified that he was carrying "a .38" and "a .45
with filed serial numbers" at the time of his arrest.
Stalder acknowledged that he had been convicted of a federal
weapons charge and was presently in federal custody. Stalder also
stated that he was given immunity for burglarizing the Burris
residence in exchange for his testimony.
On cross-examination, Stalder was asked if he had ever
previously been convicted of any crimes. Stalder testified that he
had been convicted of burglary and drug offenses in Florida and of
a drug offense in Nebraska. He also stated that he had been charged
in Iowa for weapons and drug offenses, and that the charges had
been dropped. Stalder further stated that he had been charged with
a parole violation in Florida, which had been dropped because he
was doing five years in federal custody.
The jury found both defendant and Duncan guilty of the three
murders and related charges. Separate sentencing proceedings
commenced. Defendant waived his right to a jury for sentencing. The
circuit court determined that defendant was eligible for the death
penalty and, after considering evidence in aggravation and
mitigation, sentenced him to death.
Post-Conviction Proceedings
Defendant's second-amended post-conviction petition, with
accompanying exhibits, was filed on August 19, 1994. The State
filed a motion to dismiss the petition. After briefing and
argument, the circuit court granted the State's motion to dismiss
with respect to all claims of the post-conviction petition, except
one. The post-conviction petition alleged that a juror named Myrna
Brown had written a letter to a local newspaper several years after
defendant's conviction in which she espoused the view that criminal
defendants should be presumed guilty until they prove themselves
innocent. The circuit court allowed a discovery deposition to be
taken of juror Brown to determine whether, at the time of
defendant's trial, she followed her oath as a juror. Following this
deposition, the circuit court ruled that juror Brown had done so.
The court therefore dismissed this last claim of the post-
conviction petition.
Defendant also filed several discovery motions in the circuit
court during the course of post-conviction proceedings. The circuit
court denied all these requests.
Defendant's post-conviction petition identifies additional
evidence, which was not presented at his trial. This evidence is
discussed in the analysis portion of the opinion.
ANALYSIS
We initially note the proper scope of our review. Defendant's
petition for post-conviction relief was filed pursuant to the Post-
Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West
1994)). To obtain relief under the Act's provisions, a defendant
must establish that a substantial deprivation of his constitutional
rights occurred in his trial or sentencing hearing. 725 ILCS 5/122-
-1 (West 1994).
A defendant is not entitled to an evidentiary hearing on a
post-conviction petition as a matter of right; rather, an
evidentiary hearing is required only when the allegations of the
petition, supported by the record or accompanying affidavits, make
a substantial showing of a violation of a constitutional right.
People v. Del Vecchio, 129 Ill. 2d 265, 279 (1989). For the purpose
of determining whether to grant an evidentiary hearing, all well-
pleaded facts in the petition and any accompanying affidavits are
taken as true. People v. Brisbon, 164 Ill. 2d 236, 245 (1995).
With some very narrow exceptions, the judgment of the
reviewing court on a previous appeal is res judicata as to all
issues actually decided, and any issue that could have been
presented, but was not, is waived. People v. Ruiz, 132 Ill. 2d 1,
9 (1989).
I. State's Knowing Use of Perjured Testimony and Related Claim
Defendant contends that his constitutional right to due
process of law was violated at his jury trial because the State
elicited false testimony from Edward Stalder regarding promises
made to him in return for his testimony against defendant.
Specifically, defendant claims that Stalder was permitted to
testify that he was given immunity only from prosecution for the
Burris burglary in exchange for his testimony, when in fact Stalder
obtained a multijurisdictional deal, which included the dismissal
of a number of other charges pending against him. Defendant
attached items to his post-conviction petition which, he argues,
demonstrate that Stalder testified falsely regarding the extent of
the consideration he received in exchange for his testimony.
The first item attached to defendant's post-conviction
petition is the signed affidavit of Nick Critelli, an attorney who
represented Stalder. This affidavit, dated August 14, 1994, states
in relevant part:
"I am Nick Critelli, an attorney at law having been
admitted to practice in the State of Iowa and the State
of New York. ***
On or about the 8th day of July, 1982 I was
appointed by the United States District Court for the
Southern District of Iowa to represent one Edward
Stalder, an individual who was to plead to an indictment
charging a violation of 18 USC 922(k) and 924(a) and 18
USC app. 1202(a)(1) before that Court.
During the representation, I and my associate Mr.
James Sherburne were informed by the United States
District Attorney assigned to the case, Mr. Joe Beck that
Mr. Stalder was a suspect in a burglary in Illinois and
had information that would assist the Illinois
authorities in a homicide investigation. Mr. Stalder had
previously talked with the Illinois authorities but had
not at that point reached an agreement with them
regarding his testimony. Mr. Beck and I discussed the
matter and reached an understanding that if Mr. Stalder
cooperated with the Illinois authorities, he would
receive favorable treatment in the pending federal case.
I do not recall how we received the name of the Illinois
State's Attorney, Mr. Gary Spencer, if I called Mr.
Spencer first or if he called us, however we did make
contact and began negotiations. Our plan was that in
exchange for testimony in the homicide case, Mr. Stalder
would receive absolute immunity on the Illinois burglary
from Mr. Spencer, Mr. Beck would accept a plea to one
count of the federal indictment and dismiss the other,
and Florida and Nebraska would dismiss their pending
actions against Mr. Stalder. Because of the seriousness
of the homicide case and the materiality of Mr. Stalder's
anticipated testimony, the various prosecuting
authorities were understandably co-operative. Florida and
Nebraska were not interested in continuing their matters
as long as Mr. Stalder was doing federal time on the
federal charge. We were able to work out a global
settlement of all pending charges against Mr. Stalder."
(Emphasis added.)
The affidavit further relates that the State's Attorney of
Whiteside County traveled to Des Moines, Iowa, and on July 16,
1982, he signed a written agreement with Stalder, giving Stalder
immunity for the Burris burglary in exchange for his cooperation.
The affidavit also states that on July 29, 1982, Stalder entered
into a plea agreement with the federal government in which he pled
guilty to one count of the federal indictment against him and in
exchange the second count of the indictment was dismissed.
Subsequently, authorities in Florida and Nebraska dismissed their
charges against Stalder as well.
A second item attached to defendant's post-conviction petition
is an investigative report kept by the Illinois Department of Law
Enforcement. According to this report, the State's investigation
into the homicides was ongoing when Stalder was arrested in Newton,
Iowa, in early June of 1982. The report indicates that one of the
weapons that had been stolen from the Burris farmhouse was found in
Stalder's possession. At that time, a separate weapon taken in the
Burris burglary was suspected of being used to murder Stevens and
Bushman. The report states that, on June 27, 1982, Illinois
authorities traveled to Iowa and met with Stalder and his attorney
at the police station, where they interviewed Stalder concerning
the Burris burglary and the homicides. Stalder's attorney told
authorities that his client had important information about some
homicides and would cooperate with them if they would grant, in
writing, to Stalder the following:
"1. Dismissal of possible burglary warrant in
Illinois (Burris burglary)
2. Dismissal of Iowa (Newton P.D.) gun charges (see
separate report)
a. Possession of concealed weapon, 2 counts
b. Operating motorcycle without license
c. No lights on cycle
d. Possibly other drug charges (hashish oil)
3. Federal charges (ATF)
a. Possession of a firearm after being a
convicted felon
b. Interstate transport of a weapon with
serial number removed (Stalder states he was
possibly going to cooperate with federal officers
anyway for consideration on these charges, on a
separate, non-connecting incident. He, Stalder,
would do this on a package deal)
4. Release from probation from Florida (20 years)
through Nebraska control[.]"
The report concludes with the statement that police authorities
informed Stalder and his attorney that they would contact the
appropriate "police, probation, prosecuting, and federal agencies
to see what, if anything, could be worked out."
The rule is well-established that the State's knowing use of
perjured testimony to obtain a criminal conviction constitutes a
violation of due process of law. People v. Jimerson, 166 Ill. 2d
211, 223 (1995). A conviction obtained by the knowing use of
perjured testimony must be set aside if there is any reasonable
likelihood that the false testimony could have affected the jury's
verdict. United States v. Bagley, 473 U.S. 667, 678-80, 87 L. Ed.
2d 481, 492, 105 S. Ct. 3375, 3381-82 (1985).
These same principles obtain where the State, although not
soliciting the false testimony, allows it to go uncorrected when it
appears. Napue v. Illinois, 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S.
Ct. 1173 (1959); People v. McKinney, 31 Ill. 2d 246, 251 (1964). It
is equally well established that the above principles apply even
where the witness' false testimony goes only to that witness'
credibility. Napue, 360 U.S. at 269, 3 L. Ed. 2d at 1221, 79 S. Ct.
at 1177. This is because the "jury's estimate of the truthfulness
and reliability of a given witness may well be determinative of
guilt or innocence, and it is upon such subtle factors as the
possible interest of the witness in testifying falsely that a
defendant's life or liberty may depend." Napue, 360 U.S. at 269, 3
L. Ed. 2d at 1221, 79 S. Ct. at 1177.
Applying these principles here, we conclude that defendant is
entitled to an evidentiary hearing on this claim. Defendant charges
that the State elicited testimony from Stalder that he was only
given immunity from prosecution for the Burris burglary in exchange
for his testimony, when in fact the State knew that Stalder had
obtained a multijurisdictional deal which included the dismissal of
a number of other charges pending against him. Defendant asserts
that, despite this knowledge, the State allowed Stalder's false
testimony to go uncorrected, in violation of his right to due
process.
This claim is supported by the record. The record of
defendant's jury trial discloses that Stalder testified that the
only promise made to him in exchange for his testimony against
defendant was that he was given immunity for burglarizing the
Burris residence. The following colloquy occurred at the conclusion
of Stalder's direct examination:
"[Q.] *** Mr. Stalder, I would like to know whether
or not on occasions prior to your appearance in Court
today you have discussed the same subject matter that you
have testified about today with members of the law
enforcement community?
A. Yes, I have.
Q. Specifically, I'd like to know whether or not you
have discussed the nature and the subject matter of your
testimony today with the State's Attorney of Whiteside
County, a gentleman named Gary Spencer?
A. Yes, I have.
Q. And is it true, sir, that as a result of your
discussions with him that an agreement has been reached
between yourself and Mr. Spencer in his role as State's
Attorney?
A. Yes, there was.
Q. I would like you to indicate for the ladies and
gentlemen what your understanding is of the agreement
that exists? [sic]
A. The only agreement that exists is that the
charges, as far as the burglary at the Burris residence
are concerned, are to be dropped. That's the only
agreement.
THE COURT: Against this witness?
A. Against me. That's right, sir.
Q. And in return for the dropping of the charges,
were you informed as to what would be expected of you?
A. I was to give a true and factual statement and
testimony, if necessary--be against any persons that I
knew that might have had any connection with that same
burglary and their conversations or whatever." (Emphasis
added.)
This was the full extent of Stalder's testimony concerning the
consideration he obtained as a result of his cooperation with
Illinois authorities. We find that a fair appraisal of this record
requires the conclusion that Stalder framed his testimony in such
terms as to impart to the jury the message that the only
consideration he received for testifying was immunity from the
Burris burglary. Once Stalder framed his testimony in this manner,
the State was under an obligation to correct any falsity. This case
is therefore distinguishable from People v. Pecoraro, No. 78457,
slip op. at 10-12 (February 6, 1997), where we explained that the
State has an obligation to correct false testimony, not an
obligation "in the first instance to impeach its own witnesses with
all evidence bearing on their credibility."
In contrast to Stalder's trial testimony, the affidavit of
Stalder's attorney, which we must accept as true for purposes of
deciding whether to grant an evidentiary hearing (Brisbon, 164 Ill.
2d at 245), unambiguously declares that Stalder obtained a
multijurisdictional deal as a direct result of his cooperation with
Illinois authorities concerning this case. The affidavit of
Stalder's attorney states that he reached an understanding with a
United States District Attorney "that if Mr. Stalder cooperated
with the Illinois authorities, he would receive favorable treatment
in [his] pending federal case." Stalder's attorney further averred
that he negotiated with the State's Attorney of Whiteside County on
Stalder's behalf. The affidavit next states: "Our plan was that in
exchange for testimony in the homicide case, Mr. Stalder would
receive absolute immunity on the Illinois burglary from [the
State's Attorney of Whiteside County], [the United States District
Attorney] would accept a plea to one count of the federal
indictment and dismiss the other, and Florida and Nebraska would
dismiss their pending actions against Mr. Stalder. Because of the
seriousness of the homicide case and the materiality of Mr.
Stalder's anticipated testimony, the various prosecuting
authorities were understandably co-operative. *** We were able to
work out a global settlement of all pending charges against Mr.
Stalder." (Emphasis added.) We conclude that the attorney's
affidavit makes a substantial showing that Stalder did in fact
receive a multijurisdictional deal in exchange for his testimony
implicating defendant in the homicides and that Stalder therefore
committed perjury when he testified to the contrary.
In addition, we are persuaded that defendant has also made a
substantial showing that Illinois authorities knew of this
multijurisdictional deal, but nonetheless allowed Stalder's false
testimony to go uncorrected. In order to establish a violation of
due process, the prosecutor actually trying the case need not have
known that the testimony was false; rather, knowledge on the part
of any representative or agent of the prosecution is enough. People
v. Brown, 169 Ill. 2d 94, 103 (1995) (and cases cited therein);
accord Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92
S. Ct. 763 (1972). Here, Stalder's attorney's affidavit states that
he was in contact with the State's Attorney of Whiteside County
regarding his negotiation of Stalder's multijurisdictional deal,
and that the State's Attorney of Whiteside County then traveled to
Des Moines, Iowa, and consummated his part of the deal on July 16,
1982. The attorney's affidavit is bolstered by the investigative
report kept by the Illinois Department of Law Enforcement, also
attached to defendant's post-conviction petition. This report
indicates that Illinois authorities had knowledge that Stalder was
facing charges in several different jurisdictions and was willing
to cooperate with Illinois authorities regarding their homicide
investigation in exchange for "a package deal." This report
concludes with the statement that Illinois and other police
authorities told Stalder they would contact the prosecuting
agencies to see what could be worked out. We conclude that the
affidavit sufficiently indicates that the prosecutor's office had
knowledge that Stalder received a multijurisdictional deal.
Defendant is therefore entitled to an evidentiary hearing on this
claim.
The State responds that any failure on its part to correct
Stalder's testimony constitutes harmless error. According to the
State, evidence of a multijurisdictional deal would have been
"merely cumulative" because the jury was informed that Stalder had
received immunity from prosecution for the Burris burglary and that
he had been charged with numerous crimes in the past. The State
thus maintains that defendant is not entitled to an evidentiary
hearing because Stalder's "lack of credibility and potential motive
to fabricate" were already conveyed to the jury.
A conviction obtained by the knowing use of perjured testimony
must be set aside if there is any reasonable likelihood that the
false testimony could have affected the jury's verdict. Bagley, 473
U.S. at 678-80, 87 L. Ed. 2d at 492, 105 S. Ct. at 3381-82. This
standard is equivalent to the harmless error standard recently
applied by this court in People v. McNeal, No. 78736, slip op. at
12-13 (January 30, 1997), and People v. Jimerson, 166 Ill. 2d 211,
228-29 (1995). See Bagley, 473 U.S. at 679 n.9, 87 L. Ed. 2d at 492
n.9, 105 S. Ct. at 3382 n.9. In considering the particular facts
and circumstances of this case, we are not able to conclude that
evidence that Stalder obtained a multijurisdictional deal in
exchange for his testimony against defendant would not have
affected the jury's verdict. Such information would show that
Stalder had a powerful motive to testify falsely--i.e., his own
self-interest in obtaining the dismissal of several charges pending
against him in a number of jurisdictions. Had the jury been
informed of such information, it may well have concluded that
Stalder was unworthy of belief because he had an overwhelming
incentive to fabricate testimony.
More importantly, the testimony of Edward Stalder was critical
to the State's case against defendant. The State's evidence traced
the murder weapon of Stevens and Bushman to the Burris burglary.
Three men admitted their participation in this burglary--defendant,
Onken and Stalder. However, Stalder's testimony was the only
evidence placing the murder weapon in defendant's hands. In
addition, Stalder provided the only evidence which attributed a
motive to defendant for the killings. Stalder claimed that
defendant had attempted to recruit him in a plan to take over the
local drug business by stealing drugs from the victim Adams and the
codefendant Duncan, and leave no witnesses. Maintaining Stalder's
credibility was therefore crucial to the State's case against
defendant. Accordingly, our evaluation of the record as a whole
compels us to conclude that any error in this regard may not be
considered harmless. The fact that the jury was apprised of
Stalder's immunity for the Burris burglary and his criminal
convictions does not alter our conclusion. This information did
inform the jury that Stalder had some motive to testify falsely.
Nonetheless, the motive of which the jury was informed pales in
comparison to the motive Stalder actually had if he indeed received
the multijurisdictional deal attested to in his counsel's
affidavit. See People v. Sawyer, 48 Ill. 2d 127 (1971) (evidentiary
hearing ordered where prosecutor failed to disclose prior narcotics
conviction of State's star witness).
The State also argues that we should find this issue waived
because it could have been raised on direct appeal. We do not agree
that waiver is appropriate here. Initially, we note that neither
the attorney's affidavit on which defendant relies nor the
investigative report were made part of the record on direct appeal.
Also, the record of defendant's trial leaves no doubt that the jury
was under the impression that the only deal received by Stalder for
his testimony was immunity for the Burris burglary. Under these
circumstances, we find that principles of fundamental fairness are
implicated and require a relaxation of the strict waiver rule. See
Jimerson, 166 Ill. 2d at 230 (similarly declining to apply the
waiver rule); People v. Cihlar, 111 Ill. 2d 212, 218 (1986) (same).
In a related argument, defendant submits that the State, at
defendant's trial, failed to turn over to the defense all evidence
material to Stalder's impeachment as required by Giglio v. United
States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972), and
Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194
(1963). These decisions establish that a defendant is deprived of
his constitutional right to due process of law where the
prosecution fails to turn over material impeachment evidence to the
defense. See United States v. Bagley, 473 U.S. 667, 676, 87 L. Ed.
2d 481, 490, 105 S. Ct. 3375, 3380 (1985). Evidence is material in
this context "only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different." Bagley, 473 U.S. at 682, 87
L. Ed. 2d at 494, 105 S. Ct. at 3383. "A `reasonable probability'
is a probability sufficient to undermine confidence in the
outcome." Bagley, 473 U.S. at 682, 87 L. Ed. 2d at 494, 105 S. Ct.
at 3383. We find that this issue is so closely tied to the issue
discussed above, regarding the prosecutor's failure to correct
Stalder's allegedly perjurious testimony, that it too should be
considered at the evidentiary hearing to be held on whether Stalder
received a multijurisdictional deal. Without an evidentiary
hearing, we cannot determine whether defendant's constitutional
right to due process of law has been violated.
II. Juror Bias
Defendant next asserts that his constitutional right to an
impartial jury was violated because a juror at his trial, Myrna
Brown, was biased in favor of conviction and was not able to render
a fair and impartial verdict. He argues that he is entitled to a
new trial or an evidentiary hearing as a result. In support of this
contention, defendant attaches two items to his post-conviction
petition which, he maintains, demonstrate that the juror
deliberately concealed her true feelings concerning the presumption
of innocence in criminal cases during voir dire.
During voir dire examination before defendant's jury trial in
1983, juror Brown asserted several times that she understood the
presumption of innocence, that she would require the State to prove
defendant guilty beyond a reasonable doubt and that she could
render a fair and impartial verdict. Also, the following colloquy
took place between defendant's trial counsel and the juror:
"Q. And, would you expect Perry to prove himself
innocent?
A. That's your job.
Q. No. Do you expect me to prove Perry innocent?
A. If he is, you will.
Q. Well, do you think Perry has a burden, any burden
of proof?
A. No. All he has to do is tell the truth.
Q. If the defendant doesn't take the stand, will you
hold that against him?
A. No. That's his right."
The first item attached to defendant's post-conviction
petition is a letter that the juror wrote to the editor of a local
newspaper in 1989, nearly six years after defendant's trial. The
letter stated in pertinent part:
"A person accused of a crime is `innocent until
proven guilty.' I think this should be changed to read
`guilty until proven innocent.' The lawyers would have a
lot more work to do and this should be proven so there
was absolutely no doubt about the person's innocence."
The second item is an affidavit, allegedly signed by juror Brown in
1991. The affidavit states that, at the time of defendant's trial,
Brown believed that "a person accused of a crime should be
considered guilty until proven innocent" and that "the defendant
Perry Olinger should have proven that he did not commit the crimes
of which he was accused." These items do not entitle defendant to
a new trial or an evidentiary hearing, for the reasons set forth
below.
Both the United States and Illinois Constitutions guarantee an
accused a jury that is impartial (People v. Henderson, 142 Ill. 2d
258, 291-92 (1990); People v. Holman, 132 Ill. 2d 128, 157 (1989);
see People v. Leger, 149 Ill. 2d 355, 385 (1992)), which means "a
jury capable and willing to decide the case solely on the evidence
before it" (Smith v. Phillips, 455 U.S. 209, 217, 71 L. Ed. 2d 78,
86, 102 S. Ct. 940, 946 (1982)). This court in Pekelder v.
Edgewater Automotive Co., 68 Ill. 2d 136 (1977), promulgated a two-
part standard to be applied in determining whether a defendant is
entitled to a new trial due to false statements made by jurors
during voir dire examination. A new trial is required if the movant
establishes that (1) a juror answered falsely on voir dire and (2)
prejudice resulted therefrom. Pekelder, 68 Ill. 2d at 139; see
People v. Porter, 111 Ill. 2d 386, 403 (1986) (same test applies in
criminal cases); cf. McDonough Power Equipment, Inc. v. Greenwood,
464 U.S. 548, 556, 78 L. Ed. 2d 663, 671, 104 S. Ct. 845, 850
(1984) (similarly holding that, to obtain a new trial, a party must
demonstrate that "a juror failed to answer honestly a material
question on voir dire" and that "a correct response would have
provided a valid basis for a challenge for cause"); State v.
Messelt, 185 Wis. 2d 255, 269, 518 N.W.2d 232, 238 (1994). This
test is an exception to the general rule that jurors may not
impeach their own verdict. Department of Public Works & Buildings
v. Christensen, 25 Ill. 2d 273, 279 (1962); see Gacy v. Welborn,
994 F.2d 305, 313 (7th Cir. 1993).
Defendant has failed to establish both parts of the test.
Defendant claims that the letter and affidavit reveal that the
juror lied on voir dire regarding the presumption of innocence. We
do not agree. On voir dire, the juror stated that she understood
the presumption of innocence, that she would require the State to
prove defendant guilty beyond a reasonable doubt and that she could
render a fair and impartial verdict. The letter and affidavit, on
the other hand, merely set forth the juror's personal opinions on
how the criminal justice system could be improved. The letter
states that the presumption of innocence "should be" changed, while
the affidavit states that defendant "should have" proven that he
did not commit the crimes of which he was accused. These
viewpoints, expressed several years after the defendant's trial, do
not demonstrate any falsity in the juror's voir dire testimony.
Notably, the juror never asserts that she applied her viewpoints in
defendant's case. Nor does she state that she did not understand
the presumption of innocence, that she did not require the State to
prove defendant guilty beyond a reasonable doubt or that she was
not able to render a fair and impartial verdict. Consequently,
defendant has failed to demonstrate that the juror lied during her
voir dire examination. Having failed to establish that the juror
answered falsely on voir dire, defendant cannot establish the
second part of the test, that prejudice resulted to him from a
falsity. Defendant is therefore not entitled to a new trial or an
evidentiary hearing on this claim.
We note, moreover, that a discovery deposition of juror Brown
buttresses our denial of this claim. The circuit court ordered that
Brown's discovery deposition be taken to determine whether, at the
time of defendant's trial, she followed her oath as a juror. Both
counsel for defendant and the State fully participated. At the
deposition, Brown testified that she wrote her letter to the editor
solely in reaction to another letter printed in the newspaper a
short time before. She never connected defendant's trial with the
letter, as the trial had occurred many years earlier. When
questioned regarding her views at the time of defendant's trial,
Brown stated that she had no trouble with the principles that the
burden of proof is "purely upon the prosecution" and that defendant
was considered "innocent until proven guilty." As to the affidavit
attached to defendant's post-conviction petition, Brown testified
that she was not familiar with it and did not sign it. Following
this deposition, the circuit court ruled that both Brown's voir
dire testimony and her deposition revealed that she had afforded
defendant his presumption of innocence and had placed the burden of
proof on the State. The circuit court therefore dismissed
defendant's claim of juror bias. The circuit court's ruling is
supported by the record. For the reasons stated, we likewise
conclude that defendant is not entitled to post-conviction relief
on this ground.
III. Ineffective Assistance of Counsel
Defendant raises several claims of ineffective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674,
104 S. Ct. 2052 (1984), established a stringent, two-prong standard
for evaluating such claims. A defendant must first demonstrate that
his defense counsel's performance was deficient, in that "counsel
made errors so serious that counsel was not functioning as the
`counsel' guaranteed the defendant by the Sixth Amendment."
Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at
2063. As to this prong, a defendant must overcome the strong
presumption that the challenged action or inaction of counsel was
the product of sound trial strategy and not of incompetence. People
v. Barrow, 133 Ill. 2d 226, 247 (1989). Secondly, a defendant must
demonstrate that, but for defense counsel's deficient performance,
the result of the proceeding would have been different. Strickland,
466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Both
prongs of the Strickland test must be satisfied before a defendant
can prevail on a claim of ineffective assistance of counsel.
A. Failure to Call Codefendant Duncan to Testify
Defendant initially contends that his trial counsel was
ineffective for failing to call codefendant Duncan to testify or to
cross-examine him when he testified in his own defense. Defendant
points to two areas of inquiry which, he maintains, should have
been brought before the jury. Both were statements contained in
discovery materials tendered to defense counsel before trial, but
were not made part of the record on direct appeal. Defendant argues
that the admission of these statements into evidence through
Duncan's testimony would have buttressed his defense and undercut
the testimony of the State's witnesses.
The first statement was contained in an application for an
eavesdropping device tendered to the circuit court on May 26, 1982,
by a State's Attorney and a detective. The application recited that
police had spoken with Duncan regarding a telephone conversation he
claimed to have had with Kevin Anderson the day before the murders.
According to the application, Duncan stated to police that Anderson
had a drug dispute with both victims Adams and Stevens. Moreover,
Anderson told Duncan that Anderson had a person "there with him for
the purpose of hurting people" and that Anderson and "the unnamed
person were coming to Adams' house the next day in the morning to
straighten the situation out."
Anderson's purported statement to Duncan is hearsay. Hearsay
evidence is an out-of-court statement offered to prove the truth of
the matter asserted, and it is generally inadmissible due to its
lack of reliability unless it falls within an exception to the
hearsay rule. People v. Lawler, 142 Ill. 2d 548, 557 (1991).
Defendant submits that Anderson's statement was admissible as
substantive evidence under the statement-against-penal-interest
exception to the hearsay rule, citing Chambers v. Mississippi, 410
U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), and its progeny.
These decisions establish that an out-of-court declaration against
the declarant's penal interest that the declarant committed the
crime, and not the defendant on trial, may be admitted where
justice requires and where there are sufficient indicia of
trustworthiness of such statement. People v. Bowel, 111 Ill. 2d 58,
66 (1986) (and the cases cited therein). The Chambers Court
considered four factors in making this determination: (1) whether
the statement was made spontaneously to a close acquaintance
shortly after the crime occurred; (2) whether the statement was
corroborated by other evidence; (3) whether the statement was self-
incriminating and against the declarant's interest; and (4) whether
there was adequate opportunity for cross-examination of the
declarant. Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93
S. Ct. at 1048-49. These factors are merely guidelines, however,
and admissibility ultimately depends on whether the statement was
made under circumstances that provide considerable assurance of its
reliability by objective indicia of trustworthiness. Pecoraro, slip
op. at 6.
The statement at issue here was not made under circumstances
providing a sufficient indicia of its trustworthiness. The only
factor of the Chambers test met was that the statement tended to
incriminate Anderson. None of the other factors were met. First,
the statement was not made to a close acquaintance shortly after
the crime occurred. Not only does the record fail to reveal the
relationship between Duncan and Anderson, but Anderson allegedly
made this statement to Duncan before the homicides. Neither was the
statement corroborated by other evidence. Defendant submits that
the following evidence at his trial is corroborating: that Edward
Stalder moved in with Kevin Anderson and Bill Mooney in April of
1982, and that Stalder had a history of criminal conduct and drug-
related activity. Defendant is suggesting that Stalder was the
"unnamed" person referred to in Anderson's statement. We are
compelled to point out that there is nothing in Anderson's
statement regarding the identity of the unnamed person. Without
more, we may just as easily assume that the unnamed person was
defendant. We thus find that the second factor was not met. The
fourth factor, whether there was adequate opportunity to cross-
examine the declarant, was also not met. Here, there was no
opportunity to cross-examine Anderson because he was not called as
a witness in defendant's case.
Defendant has not presented any other indicia of reliability
to support the admissibility of Anderson's statement. We conclude
that Anderson's statement is not rendered admissible by the
presence of the third factor alone. See People v. Keene, 169 Ill.
2d 1, 29-30 (1995) (sole presence of this factor did not render
statement admissible). Therefore, the statement does not qualify to
be admitted as substantive evidence under this exception to the
hearsay rule.
Defendant also argues that Anderson's statement was
substantively admissible under two other exceptions to the hearsay
rule. He asserts that the statement was admissible to show that
Anderson acted in conformance with his statement, citing People v.
Grabbe, 148 Ill. App. 3d 678, 688-89 (1986), and People v. Reddock,
13 Ill. App. 3d 296, 303-05 (1973). Grabbe and Reddock are
distinguishable. The hearsay statements involved in those cases
were made by homicide victims to show that they acted in
conformance with their stated intent. Defendant has cited no case
where this exception was applied in the manner he is suggesting,
and we are aware of none. We therefore conclude that this exception
is not applicable here.
Defendant last submits that Anderson's statement was
admissible under the residual exception to the hearsay rule
contained in Rule 804(b)(5) of the Federal Rules of Evidence (Fed.
R. Evid. 804(b)(5)). This court has specifically declined to adopt
this exception. People v. Redd, 135 Ill. 2d 252, 313 (1990).
Consequently, this exception is not applicable in defendant's case.
In conclusion, Anderson's statement was not substantively
admissible at defendant's trial under any exception to the hearsay
rule. As a result, defendant's trial counsel would not have been
able to admit this statement through the testimony of Duncan. This
claim of ineffective assistance of counsel therefore fails because
defendant has shown no deficiency in his counsel's performance.
We note, moreover, that we agree with the State that there is
no guarantee that Duncan would have relayed Anderson's statement on
the witness stand. But even if Duncan had done so, the jury was not
likely to have given it much weight. Duncan was a codefendant at
defendant's trial. Duncan gave this statement to police a short
time after the murders. The jury could well have concluded that
Duncan was implicating Anderson at that time in an attempt to
deflect suspicion from himself.
The second statement referred to by defendant was contained in
a police report. The report recited that Merle Merkle told police
that Duncan told her that he saw a glimpse of the killer as he
walked out the door and that this person was not at Adams' house
when Merkle was there. Defendant claims his trial counsel should
have questioned Duncan on whether he made this statement.
Defendant has not shown that he was prejudiced by his
counsel's failure to question Duncan regarding this alleged
statement. The statement at issue amounts to a prior inconsistent
statement by Duncan. A prior inconsistent statement is admissible
solely for impeachment purposes; it is not admissible as
substantive evidence of the truth of the matter asserted. People v.
Bryant, 94 Ill. 2d 514, 522 (1983). At best, then, this prior
inconsistent statement by Duncan could have been used to impeach
Duncan's trial testimony that he slept through Adams' slaying. This
impeachment of Duncan would not have benefitted defendant. To the
contrary, impeachment of Duncan on this basis would have lent
support to the State's theory that defendant and Duncan conspired
together at Adams' house to murder Adams. Therefore, this claim of
ineffective assistance of counsel was properly dismissed for
failure to meet the prejudice prong of Strickland.
B. Failure to Investigate and Impeach Edward Stalder
Defendant contends that his trial counsel was ineffective
because he failed to properly cross-examine Edward Stalder
regarding possible deals given him in return for his testimony.
This claim is related to the first issue addressed in this opinion,
namely, whether the prosecution failed to correct Stalder's
allegedly perjurious testimony regarding the consideration he
obtained for testifying. Defendant points to the affidavit of
Stalder's attorney and to the investigative report kept by the
Illinois Department of Law Enforcement, both discussed in detail
above, and asserts that these materials demonstrate that his trial
counsel made no effort to adequately investigate or review these
matters, or to use this information to impeach Stalder. He argues
that he is entitled to a new trial or an evidentiary hearing on
this claim.
We do not agree with defendant that his trial counsel's
performance in this regard was so deficient that he "was not
functioning as the `counsel' guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104
S. Ct. at 2064. A review of the record reveals that, on December
17, 1982, prior to defendant's trial, his trial counsel filed a
discovery motion "for disclosure of impeaching information" of the
State's witnesses. Therein, he requested that the State disclose,
inter alia, all information regarding the following:
"Any and all consideration or promises of
consideration given to or on behalf of the witness or
expected or hoped for by the witness. By `consideration'
defendant refers to absolutely anything, whether
bargained for or not, which arguably could be of value or
use to a witness ***, including but not limited to ***
leniency, favorable treatment or recommendations or other
assistance with respect to any pending or potential
criminal, parole, probation, pardon *** or other dispute
with [the] People or with any other authority ***; and
anything else which arguably could reveal an interest,
motive or bias in the witness in favor of the People or
against the defense or act as an inducement to testify or
to color testimony."
Counsel supported this request with a 17-page memorandum of law.
The record further reveals that the trial court allowed this
discovery motion on February 28, 1983.
The investigative report attached to defendant's post-
conviction petition appears to have been tendered to the defense by
the State in response to this discovery request. Defendant
acknowledges that his trial counsel received this report before his
trial. This report indicated that Stalder was willing to cooperate
with Illinois authorities in exchange for a multijurisdictional
deal, but it did not state that Stalder received such a deal.
Defendant argues that his trial counsel should have used this
report to impeach Stalder or should have investigated the matter
further on his own to determine if Stalder had indeed received such
a deal. We do not agree with this assertion. The record shows that
the State was under a court order to disclose any information that
it had regarding Stalder's receipt of a deal. The only information
that the State provided, however, was that Stalder desired a
particular arrangement, not that he was given it. Under the
particular facts and circumstances of this case, we fail to see
what more trial counsel should have done. In our view, trial
counsel was entitled to rely on the State's response to his
discovery request and assume that the State had accurately
disclosed to him all the impeaching information within the
knowledge of the State's agents. The affidavit of Stalder's
attorney makes a substantial showing that the State was not
forthcoming with all of the impeachment information relevant to
Stalder. This affidavit, however, does not suggest that the
performance of defendant's trial counsel was constitutionally
deficient. We therefore reject this claim of ineffective assistance
of counsel.
C. Failure to Undermine State's Fingerprint Evidence
Defendant submits that his trial counsel was ineffective
because he failed to pursue the argument that law enforcement
officials did not investigate all possible leads from unidentified
fingerprints lifted from the Adams crime scene. He argues that, had
his trial counsel pursued this strategy of questioning whether
police performed an adequate investigation, counsel could have
raised a reasonable doubt of defendant's guilt.
Defendant has failed to meet the prejudice prong of the
Strickland test. He merely posits that some of the unidentified
fingerprints "could have belonged to a person *** responsible for
the murder." This pure speculation falls far short of the
demonstration of actual prejudice required by Strickland.
D. Failure to Present Evidence That Other Persons Were at Adams'
House
Defendant contends that his trial counsel was ineffective
because he failed to present evidence suggesting that other persons
were present at Adams' house around 2:30 to 3 a.m. on the morning
of May 25, 1982. He argues that his trial counsel should have used
this evidence to impeach Duncan's testimony that only Duncan,
defendant and defendant's girlfriend were present at that time.
In support of this argument, defendant points to two police
reports, which were tendered to the defense prior to trial. One
police report indicates that a neighbor of Adams named David Downey
thought he saw a car in Adams' driveway at about 3 a.m. in the
morning of May 25, but Downey could not remember for sure because
he was "pretty well drunk." The second police report contained an
interview of a man named Joseph Browning. Browning stated that he
saw a gold car outside Adams' house at about 2:30 a.m. on May 25.
Browning, however, also indicated that he met defendant in the
county jail a short time before giving his police interview.
Initially, we note that defendant has failed to overcome the
strong presumption that his counsel's decision in this regard was
a matter of sound trial strategy. Barrow, 133 Ill. 2d at 247.
Defendant's trial counsel presented an alibi defense for defendant
through the testimony of his girlfriend, Rhonda Odquist. Odquist
testified that no other persons were present at Adams' house after
Adams left at 1 a.m. on May 25, except herself, Duncan and
defendant. If counsel had presented the testimony suggested above,
he would not only have called Duncan's testimony into question, but
Odquist's as well. Counsel cannot be found constitutionally
ineffective for failing to present testimony that would have
undermined defendant's own witness.
The circuit court dismissed this claim on the ground that no
prejudice resulted to defendant from his trial counsel's decision
not to present Downey or Browning as witnesses. We agree. At best,
their testimony could have established that a car and two other
people were at Adams' house around 2:30 to 3 a.m. on May 25. The
evidence at trial, however, established that Adams was murdered
sometime between 7:15 a.m. and 10:15 a.m. on that day. The result
of the trial would not have been different based on their
testimony.
E. Failure to Object to a Statement the Prosecutor Made in
Closing Argument
Defendant contends that his trial counsel was ineffective
because he failed to object to the prosecutor's misstatement of the
evidence during closing argument. At trial, Dennis Burris testified
for the State that defendant had visited his house sometime in
April 1982 and had seen Burris' gun collection. Burris stated that
defendant commented that he had "a nice collection." As earlier
noted, other evidence established that, on May 22, 1982, defendant,
along with Edward Stalder and another person, burglarized Burris'
house and stole several firearms, one of which was later identified
as the weapon used to kill Stevens and Bushman. In closing
argument, the prosecutor stated:
"Mr. Burris *** told you *** Perry Olinger was at his
house *** and saw those nice guns up in that gun case.
One of the guns he saw, ladies and gentlemen, was the H&R
Model 649 Magnum .22 pistol, just like this one. Perry
liked it. He commented on it to Mr. Burris." (Emphasis
added.)
Defendant asserts that his trial counsel should have objected to
the emphasized portion of this comment because the prosecutor went
far beyond Burris' actual testimony in an effort to tie the murder
weapon more closely to defendant, to his great prejudice.
This argument is waived because it was apparent from a direct
examination of the record and should have been raised on direct
appeal. Ruiz, 132 Ill. 2d at 9. Defendant maintains, however, that
his appellate counsel was ineffective for failing to raise this
issue on direct appeal. A defendant who contends that appellate
counsel was ineffective for failing to raise a particular issue on
appeal "must show that `the failure to raise that issue was
objectively unreasonable' and that, `but for this failure, his
sentence or conviction would have been reversed.' " People v.
Flores, 153 Ill. 2d 264, 283 (1992), quoting People v. Caballero,
126 Ill. 2d 248, 270 (1989). The circuit court held that defendant
failed to show sufficient prejudice. We agree. Even assuming,
arguendo, that the comment was improper, we are not able to say
that defendant's conviction would have been reversed, but for his
appellate counsel's failure to raise the issue on direct appeal.
This comment by the prosecutor was isolated and the jury was
instructed that closing arguments are not evidence.
In the alternative, defendant contends that the prosecutor's
comment on the evidence, above, was prosecutorial misconduct so
serious as to constitute a violation of his right to due process of
law. We reject this assertion. The pertinent inquiry for reviewing
such claims is whether the prosecutor's comment " `so infected the
trial with unfairness as to make the resulting conviction a denial
of due process.' " Darden v. Wainwright, 477 U.S. 168, 181, 91 L.
Ed. 2d 144, 157, 106 S. Ct. 2464, 2471 (1986), quoting Donnelly v.
De Christoforo, 416 U.S. 637, 643, 40 L. Ed. 2d 431, 437, 94 S. Ct.
1868, 1871 (1974). The comment pointed to here simply does not rise
to that level of unfairness. Cf. Darden, 477 U.S. at 182, 91 L. Ed.
2d at 157-58, 106 S. Ct. at 2472; Williams v. Chrans, 945 F.2d 926,
949-50 (7th Cir. 1991).
F. Deficient Cross-Examination
Defendant charges that his counsel was ineffective for failing
to cross-examine a witness regarding a blood-like substance found
in defendant's truck. Richard Cass, a crime scene technician,
testified for the State that, on June 3, 1982, he examined
defendant's pick-up truck. On cross-examination, defendant's trial
counsel asked Cass to list all the personal items that he retrieved
from the truck. Cass responded in relevant part:
"Swabbing of blood-like substance from passenger door
window frame. Swabbing of blood-like substance from
interior passenger door. Swabbing of blood-like substance
from steering wheel and driver's door grip. A plastic jar
of one half gram dietary supplement bearing blood-like
stain."
Defendant maintains that his counsel should have continued his
cross-examination of Cass in order to destroy any link between the
blood-like stains in his truck and the bloody crime scene of the
Adams homicide. He asserts that this was possible because there is
nothing in the State's discovery materials to suggest that any test
of the blood-like substance was ever conducted.
Defendant waived this issue by failing to raise it on direct
appeal. Ruiz, 132 Ill. 2d at 9. He contends, however, that his
appellate counsel was ineffective as a result. The circuit court
rejected this claim for lack of prejudice. We must agree, for we
cannot say that but for appellate counsel's failure to raise this
issue on direct appeal, defendant's conviction would have been
reversed. Flores, 153 Ill. 2d at 283.
G. Defendant's Exculpatory Statement
Defendant contends that his trial counsel was ineffective
because he failed to competently argue that the jury should have
been allowed to consider defendant's grand jury testimony that
Edward Stalder, not defendant, retained possession of the .22
magnum pistol used to kill Stevens and Bushman. Defendant submits
that his trial counsel should have argued that this statement was
admissible under the completeness doctrine.
On direct appeal, defendant's appellate counsel argued that
the circuit court's failure to allow this portion of defendant's
grand jury statement into evidence gave the jury the mistaken
impression that he admitted keeping the murder weapon. This court
found the issue waived because it was not raised at trial. People
v. Olinger, 112 Ill. 2d 324, 338 (1986). Defendant now asserts that
his appellate counsel was ineffective for failing to argue on
direct appeal that his trial counsel was ineffective in his
presentation of this issue to the trial court.
The circuit court dismissed this claim, ruling that
defendant's grand jury statement would not have been admissible in
any event. We agree. Under the "completion doctrine," when a
portion of a conversation is related by a witness, the opposing
party has a right to bring out the remainder of that conversation
to prevent the trier of fact from being misled. People v. Ward, 154
Ill. 2d 272, 311 (1992). A defendant, however, "has no right to
introduce portions of a statement which are not necessary to enable
the jury to properly evaluate the portions introduced by the
State." Olinger, 112 Ill. 2d at 338.
Here, the State introduced into evidence the defendant's
statement that he admitted burglarizing the Burris residence along
with Stalder and Onken. Defendant's position is that, in response,
he was entitled to introduce into evidence his exculpatory
statement that Stalder kept the .22 magnum pistol stolen in that
burglary, which pistol was later determined to be the murder
weapon. We are not persuaded that this latter statement was
necessary to prevent the jurors from being misled by the former
statement. Rather, the latter statement would have only served to
place defendant's own exculpatory version of events before the jury
without his having to take the stand and face impeachment. As this
court explained on defendant's direct appeal, a defendant has no
such right. Olinger, 112 Ill. 2d at 337-38. We therefore reject
this claim for lack of prejudice.
H. Sentencing Phase
Defendant next alleges that his trial counsel was ineffective
for failing to investigate and call numerous witnesses in
mitigation at the sentencing phase. He attached to his post-
conviction petition the affidavits of 18 persons who averred that
they would have been willing to testify in defendant's behalf at
sentencing.
The failure to present mitigating evidence at a capital
sentencing hearing does not in and of itself demonstrate that a
defense attorney was ineffective. People v. Steidl, 142 Ill. 2d
204, 248-49 (1991). Rather, a defendant must show that defense
counsel's failure to investigate and call witnesses fell below an
objective standard of reasonableness under prevailing professional
norms, and that, but for defense counsel's deficient performance,
there is a reasonable probability that the result of the proceeding
would have been different. People v. Perez, 148 Ill. 2d 168, 191,
195 (1992).
A brief review of defendant's capital sentencing hearing is
necessary for a proper evaluation of this claim. Following the jury
trial, defendant waived his right to a jury for sentencing. A
stipulation was entered that defendant was 35 years of age. The
circuit court determined that defendant was eligible for the death
penalty on two bases: multiple murders (Ill. Rev. Stat. 1983, ch.
38, par. 9--1(b)(3)) and murder in the course of another felony
(Ill. Rev. Stat. 1983, ch. 38, par. 9--1(b)(6)).
The State presented the following evidence in aggravation. In
1973 defendant was convicted of unlawful possession of dynamite and
sentenced to two to eight years in prison. In 1975 defendant was
convicted of burglary and sentenced to a one- to three-year prison
term. In 1981 defendant was convicted of criminal damage to
property for shooting and killing four of his neighbor's horses
when they ran through his yard. Lastly, David Willman testified
regarding charges that were still pending against defendant at the
time of sentencing. Willman testified that, on May 16, 1982, he and
defendant engaged in a fist fight after Willman refused to lend
defendant money. Defendant cut Willman's thumb with a knife.
Defendant left but reappeared and fired shots at Willman. Willman
and defendant engaged in another fight in which defendant knocked
out three of Willman's teeth by hitting him with a pistol.
Defendant then forced Willman into his pick-up truck, drove to a
bridge and ordered Willman to jump off the bridge. Willman refused.
In mitigation, defendant presented the testimony of eight
character witnesses, including defendant's mother. These witnesses
variously described defendant as a person who would help someone
out if he could; who was nice; normal; a good worker and helpful;
and a friend. Defendant was also described as "a perfect
gentleman." Moreover, defendant's girlfriend testified that Willman
started the fight with defendant that caused his injuries.
Defendant's mother related that defendant had served four years in
the military and received an honorable discharge.
The circuit court ruled that defendant's military service was
evidence in mitigation, but that there was not sufficient
mitigating evidence to preclude the death penalty. The circuit
court then sentenced defendant to death.
Defendant has failed to demonstrate that the result of his
capital sentencing hearing would have been different if his defense
counsel had presented these additional witnesses. As stated, at the
sentencing hearing, defense counsel presented a total of eight
witnesses in mitigation, including defendant's mother. These
witnesses related that defendant was a person who would help
someone out if he could; who was nice; normal; a good worker and
helpful; and a friend. One witness called defendant "a perfect
gentleman." Additional testimony along these lines would have been
merely cumulative and would not have altered the decision of the
sentencing judge. Moreover, defendant, in his post-conviction
petition, has pointed to no allegedly mitigating evidence that
would have changed the outcome of his sentencing hearing. Absent
such a showing, collateral relief is properly denied. Stewart v.
Gramley, 74 F.3d 132, 135-37 (7th Cir. 1996).
IV. Post-Conviction Discovery Requests
During the post-conviction proceedings below, defendant
requested that he be permitted discovery in order to analyze the
following items: fingerprint evidence collected by the State from
the Adams crime scene; the blood-like substance found in his truck;
and the four $100 bills found in his truck. Defendant asserts that,
if permitted discovery of these items, he may be able to place
other possible suspects at the Adams crime scene, show that the
blood-like substance in his truck did not belong to the victim,
Adams, and, finally, show that the four $100 bills were proceeds
from his bank loan. The circuit court denied all these requests.
Defendant alleges reversible error in the circuit court's denial.
The circuit court has inherent discretionary authority to
order discovery in post-conviction proceedings. People ex rel.
Daley v. Fitzgerald, 123 Ill. 2d 175, 183 (1988). Circuit courts
should exercise this inherent authority with caution, however,
because post-conviction proceedings afford only limited review and
"because there would exist in those proceedings a potential for
abuse of the discovery process." Daley, 123 Ill. 2d at 183.
The circuit court correctly denied the discovery requests. The
requests amount to a fishing expedition in an attempt to create
some doubt of defendant's guilt. Post-conviction proceedings are
limited to providing a forum for the litigation of constitutional
claims that were not presented in the original proceedings. Daley,
123 Ill. 2d at 182. Defendant's discovery requests go beyond this
limited scope and, as a result, were properly denied.
CONCLUSION
For the reasons stated above, the judgment of the circuit
court is affirmed in part and reversed in part. The circuit court's
rulings are all affirmed, with two exceptions. We reverse the
circuit court's dismissal without an evidentiary hearing of two
claims presented in defendant's post-conviction petition. Defendant
is entitled to an evidentiary hearing on the issue that the State
knowingly used perjured testimony against him at his trial.
Defendant is also entitled to an evidentiary hearing on the related
issue that the State failed to turn over to the defense all
evidence material to Edward Stalder's impeachment. This cause is
therefore remanded to the circuit court for further proceedings.
Affirmed in part and reversed in part;
cause remanded.