dissenting:
In this appeal, defendant Glenn Wilson asks the court to reverse the circuit court’s order dismissing defendant’s amended post-conviction petition. As finally revised by court-appointed counsel, defendant’s petition asserts that his trial counsel neglected to investigate evidence of defendant’s mental and neurological deficiencies, and failed to present expert testimony concerning these deficiencies at trial and during defendant’s sentencing hearing. Defendant additionally claims that he received ineffective assistance of appellate counsel. Defendant maintains that his attorneys’ neglect violated defendant’s sixth amendment right to effective assistance of counsel. Defendant asserts that he made a “substantial showing” of these alleged constitutional violations and, therefore, that the trial court erred by dismissing his amended petition without conducting an evidentiary hearing.
Defendant also argues that the circuit court abused its discretion by refusing to appropriate funds for defendant to obtain additional expert analysis of his post-conviction claims. Finally, defendant insists that the circuit court erred by refusing to extend the deadline for the filing of defendant’s amended post-conviction petition, as well as the circuit court’s denial of the motions for funding and for extensions of time.
The majority affirmed the circuit court’s dismissal of defendant’s amended petition without an evidentiary hearing. I disagree with the majority’s disposition of two issues presented for review. I believe that defendant made a substantial showing of ineffective assistance of trial counsel. Trial counsel’s failure to present mitigating evidence, at defendant’s sentencing hearing, of defendant’s mental disabilities denied defendant his constitutional right to effective representation. Defendant has made the necessary showing to qualify for an evidentiary hearing on his post-conviction petition. I also conclude that the trial court abused its discretion by denying defendant’s request for additional funds. Accordingly, I dissent.
At this stage of the post-conviction proceedings, this court’s inquiry is narrowly focused. Our limited mission is to determine whether defendant is entitled to an evidentiary hearing on allegations raised in the post-conviction petition. People v. Coleman, 183 Ill. 2d 366, 381 (1998). In deciding whether defendant deserves an evidentiary hearing, the court accepts as true all well-pleaded facts in defendant’s petition and any attached affidavits (People v. Morgan, 187 Ill. 2d 500, 528 (1999)), and determines whether defendant has made a substantial showing of a deprivation of a constitutional right at trial (Coleman, 183 Ill. 2d at 381). Defendant makes a “substantial showing” when the allegations in the petition are supported by the trial record or by affidavits accompanying the petition. Morgan, 187 Ill. 2d at 528; Coleman, 183 Ill. 2d at 381; People v. Erickson, 161 Ill. 2d 82, 108 (1994) (McMorrow, J., dissenting) (“The proper question is whether the defendant’s allegations, when viewed in the light most favorable to the defendant, are sufficient to demonstrate that the defendant should receive an evidentiary hearing to prove his allegations”).
Defendant alleges in his petition that he suffers from a rage disorder which causes him to respond to excitement with uncontrollable anger. Defendant attached to his post-conviction petition the affidavits of psychologist Harry Gunn and neuropsychologist Jonathan Hess. Both Hess and Gunn examined defendant. They found that defendant had a history of violent, explosive behavior. Hess described defendant as subject to “episodic discontrol, or rage attacks.” The nature of this rage, which is triggered when defendant becomes “excited,” “is well beyond anything a person without episodic discontrol could imagine. A person in such a rage attack would be unable to control his behavior or to conform his behavior to the requirements of the law.” Hess hypothesized that defendant’s rage attacks were the product of defendant’s epilepsy, or other physical brain damage caused by numerous injuries to the head that defendant sustained since childhood.
Defendant argues that evidence of the rage disorder, and its likely organic origins in defendant’s brain, was available to defendant’s trial attorney before and during the trial of this case. Defendant argues that had trial counsel retained an expert to analyze defendant and his medical history, trial counsel could have introduced evidence at sentencing that defendant committed the murders while “under the influence of extreme mental or emotional disturbance” (720 ILCS 5/9 — 1(c)(2) (West 1998)), and thus defendant would have received a sentence of life imprisonment instead of a death sentence. Defendant concludes that his lawyer’s failure to investigate this defense, and failure to present evidence of the rage disorder at the sentencing hearing, deprived defendant of his sixth amendment right to counsel. U.S. Const., amend. VI; Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 343-44, 100 S. Ct. 1708, 1716 (1980).
As the majority notes, legal representation fails to satisfy the sixth amendment when the representation falls below an objective standard of reasonableness and when defendant can show a reasonable probability that, but for the counsel’s alleged errors, the result of the sentencing proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984); Morgan, 187 Ill. 2d at 548. Further, in light of the extreme importance of mitigation evidence at a capital sentencing hearing, courts require defense counsel to make a reasonable investigation to uncover mitigating facts, or at least articulate a plausible reason for the failure to conduct such an investigation. Morgan, 187 Ill. 2d at 541; People v. Perez, 148 Ill. 2d 168, 187-91 (1992).
If, as it must, the majority viewed the allegations of the amended petition in a light most favorable to defendant, it would have to conclude that trial counsel’s representation fell below the reasonableness standard. Evidence of defendant’s emotional and neurological disorders was readily available to defendant’s trial attorney before defendant’s sentencing hearing, but never adequately investigated.
Prior to sentencing, defendant retained Douglas Crossman, a mitigation expert, to gather evidence in support of mitigation. The written mitigation report prepared by Crossman included copies of psychological and medical examinations performed on defendant as an adolescent and as an adult. Collectively, these documents contained several references to epilepsy, and repeated episodes of unusually violent behavior. An interview with defendant’s mother revealed, for example, that he had suffered from “seizures” from childhood. An examination in 1974 stated that defendant was subject to “spells,” and other records from 1976 noted the fact that defendant suffered from temporal lobe epilepsy. In 1989, a social worker interviewing defendant after a suicide attempt indicated that defendant had ceased taking his Dilantin. Dilantin is prescribed to treat epilepsy. EEG’s conducted in 1974 showed abnormalities, albeit mild ones, in defendant’s brain function.
Concerning defendant’s conduct, these records also noted defendant’s “uncontrolled behavior” and spells of “tearing up the furniture” and “fighting.” One psychologist noted defendant’s “long history of violence and total lack of self control,” which the psychologist also described as an “explosive personality.”
Crossman gathered these records and reviewed them for the defense in preparation for the capital sentencing hearing. Defendant’s trial attorney examined Crossman as one of only two witnesses presented by the defense at the aggravation/mitigation stage of the hearing, and the trial court admitted the mitigation report into evidence. The theory behind defense counsel’s examination of Crossman at trial seemed to be that “society” failed to give defendant the psychiatric aid a troubled person like defendant needed. However, counsel never used the information, readily available in the report, to suggest that defendant acted under an extreme mental or emotional disturbance when the murders were committed in this case. Further, the mere fact that the trial court had defendant’s medical records before it was not the equivalent of expert testimony regarding defendant’s neurologically based personality disorder. The medical records furnished only the symptoms and possible causes of the behavior. The onus remained on trial counsel, however, to pursue the evidence regarding defendant’s behavior provided by the records and to obtain an expert opinion regarding the significance of the medical evidence. Counsel’s failure to investigate the medical defense suggested by the mitigation report deprived defendant of valuable mitigation evidence.
At this stage of the post-conviction proceedings, moreover, we do not interpret the attorney’s strategy at sentencing as a reasonable exercise of professional judgment. Although a trial lawyer may reasonably decide not to introduce mitigating evidence after thoroughly investigating that evidence (People v. Ruiz, 177 Ill. 2d 368, 385 (1997)), the record in this appeal shows that the trial attorney never made a preliminary investigation into the nature of defendant’s neurological disorders. To have never attempted the investigation is, according to prior decisions of this court, a serious lapse in trial counsel’s professional obligations. Perez, 148 Ill. 2d at 187-91. The evidence of defendant’s “discontrol” and the fact he suffered neurological infirmities — most likely epilepsy — was literally handed to counsel in the form of the mitigation report. It would have required little effort on counsel’s part to retain, or seek funds from the court to retain, a medical expert to decipher the significance of the information in defendant’s records and determine whether the bursts of anger exhibited by defendant had any organic origin. Counsel’s inactivity in this regard evidences a breach of his duty to investigate and present a mitigation defense. Ruiz, 177 Ill. 2d at 385.
Additionally, the facts of record yield a “substantial showing” of a violation of the second prong of the Strickland test. Had trial counsel presented expert evidence of defendant’s rage disorder, a reasonable probability exists that the trial judge would have concluded that the balance of aggravating and mitigating circumstances did not warrant imposition of the death sentence. Morgan, 187 Ill. 2d at 548. Expert evidence of defendant’s neurologically based difficulties would have significantly affected both the amount and nature of the mitigation evidence presented on defendant’s behalf. At the conclusion of the aggravation/mitigation hearing, the trial judge addressed the aggravating and mitigating factors adduced during the sentencing hearing. The judge’s summary of the aggravating evidence covers 6V2 pages of trial transcript. The judge’s remarks concerning the mitigation evidence was limited to one sentence: “As I have reviewed this evidence, I find almost no mitigating evidence.” Indeed, defendant presented only two witnesses, Douglas Cross-man, the mitigation expert, and Willie May Bryson, defendant’s mother. Bryson’s brief testimony was tailored to show that defendant was one of many children, and that he grew up in a family without the consistent presence of a father-figure. Her testimony was also apparently intended to support Crossman’s statements that, although defendant needed psychiatric care from a very early age, he did not receive it.
While I am aware that proof of a psychological problem in defendant does not automatically preclude imposition of the death penalty (People v. Wilson, 164 Ill. 2d 436, 460 (1994)), evidence of defendant’s rage disorder is directly probative of defendant’s mental state at the time he committed the murders in question, as well as other crimes introduced in aggravation. Proof that defendant would predictably lose control of his behavior in certain situations undermines the suggestion that defendant’s criminal acts were the product of deliberate, preconceived plans. It would also place defendant in a far more sympathetic light before the trier of fact. In previous decisions, this court has conceded that evidence of psychological and emotional disturbances figures prominently in the decision of whether to impose the death penalty. See Morgan, 187 Ill. 2d at 552; Perez, 148 Ill. 2d at 194-95; Ruiz, 177 Ill. 2d at 387.
I do not agree with the majority’s assessment that defendant failed to show he committed the murders “under the influence of a ‘rage attack.’ ”191 Ill. 2d at 375. I believe that the majority dismisses too easily defendant’s statements to the police that the shootings were “a spur of the moment thing” that “weren’t supposed to happen.” The very essence of Hess’ assessment of defendant is that, when in an excitable situation, defendant will lose control of himself in a manner not comprehensible to people who do not share the same condition. A reasonable inference may be drawn that the robbery constituted an instance of excitement that could have triggered a rage attack and prompted an action that, in defendant’s words, “[was not] supposed to happen.”
Moreover, the majority’s contention that defendant did not suffer a “rage attack” at the time of the murder ignores this court’s obligation to accept defendant’s factual assertions as true. He alleges, with affidavits in support, both an incident that was, by its nature, charged with excitement, and how his behavior is transformed by such an event. These allegations are more than adequate to satisfy the requirements established by this court to earn an evidentiary hearing. In sum, defendant has made a substantial showing that he was deprived of his sixth amendment right to counsel. On this basis, the judgment of the circuit court should be reversed, and the cause remanded for an evidentiary hearing on defendant’s amended post-conviction petition.
Finally, the necessity of an evidentiary hearing on defendant’s post-conviction petition requires this court to reexamine defendant’s request for additional funding for medical expert witnesses and medical tests. Specifically, defendant sought additional funding from the trial court so that defendant could obtain an ambulatory EEG and an examination by a neuropsychiatrist or a behavioral neurologist. Dr. Hess recommended the test and exam in his affidavit attached to defendant’s amended post-conviction petition.
Defendant cannot claim a constitutional right to investigative resources for his attorney, because defendant has no constitutional right to appointed counsel at the post-conviction stage. People v. Richardson, 189 Ill. 2d 401, 421 (2000). “Where no constitutional right is implicated, the decision to appoint an expert, or to authorize funds to hire an expert, rests within the sound discretion of the circuit court.” Richardson, 189 Ill. 2d at 422. Whether the trial court should have funded an additional medical work-up depends primarily on whether the trial court concludes that the proposed tests and exams would be of assistance to the court. People v. Hall, 157 Ill. 2d 324, 339-40 (1993).
In the present case, the trial court’s failure to grant defendant’s request for funds constituted an abuse of discretion. I have already described how the expert opinions tendered at the post-conviction stage illuminated the failings in defendant’s legal representation during the capital sentencing hearing. According to these same experts, the additional medical procedures would solidify the experts’ opinions. The requested funds would yield evidence directly relevant to the issue of counsel’s competence at the capital sentencing stage. Therefore, on remand, I would order the trial court to fund the supplementary tests and exams recommended by Dr. Hess.
CHIEF JUSTICE HARRISON and JUSTICE FREEMAN join in this dissent.