dissenting:
I do not agree with the majority that defendant is entitled to a new sentencing hearing. The post-conviction trial court determined that, given “the viciousness of the crime” and “defendant’s long criminal history,” there was no reasonable probability that the outcome of defendant’s sentencing hearing would have been different had counsel presented the mitigating evidence at issue. The trial court’s determination is not manifestly erroneous. Therefore, I respectfully dissent.
There is no reasonable probability that, had counsel presented the mitigating evidence at sentencing, the trial court would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. See Strickland v. Washington, 466 U.S. 668, 695, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2069 (1984). Defendant’s sentencing hearing was replete with aggravating evidence. The State introduced defendant’s extensive criminal history. Defendant was convicted of armed robbery in 1965. While on probation for that armed robbery, defendant committed aggravated battery by attacking a man who was playing softball at a park by hitting the man on the back of the head with a baseball bat. A few years later, defendant was convicted of aggravated battery, intimidation, and mob action after organizing a race riot in Cook County jail, where he was incarcerated. This riot occurred when defendant and another inmate armed themselves with sticks and buckets of scalding hot water and ordered all white inmates to get down on their knees. Defendant told the white inmates that he was going to hang them. On another occasion, defendant was charged with aggravated battery and unlawful use of a weapon after shooting two females with a sawed-off shotgun. At the time of defendant’s sentencing hearing in this case, yet another case was pending against defendant involving charges of possession of a controlled substance, possession with intent to deliver, and battery.
Moreover, the facts of this case show that defendant is a domineering and remorseless murderer who knew exactly what he was doing as he committed these crimes. Defendant, William Motley, and Kenneth Merkson visited defendant’s friend of 12 years, Elijah Prater, at Prater’s apartment. Prater’s girlfriend, Phyllis Gregson, subsequently arrived at the apartment. Defendant told Greg-son to remove her shirt and dance. Gregson refused. At this point, Motley made a comment. In response, defendant aimed his shotgun at Motley’s chest and fired, causing the left side of Motley’s chest to be blown away. Defendant removed Motley’s .357 Magnum gun from his dead body and told Prater and Merkson to “clean up the body.” Merkson removed a black telephone book from Motley’s clothes and gave it to defendant. Defendant looked at the names in the book, asked if anyone knew any of the listed individuals, and then placed the book in his pocket.
Defendant told Prater and Merkson to pull the drawers out of a dresser to determine whether the dead body would fit inside it. Because the body was too large, Prater and Merkson stuffed it into a laundry bag, pulled a mattress out of the closet, and wrapped the mattress around the body. Defendant ordered Gregson to clean the blood off the floor. Approximately one hour later, defendant sent Prater to the liquor store and told Prater to fill up defendant’s car with gas and park it at the rear of the apartment building.
When Prater returned, defendant was sitting in the dining room with the shotgun in his lap and the .357 Magnum in the waistband of his pants. Merkson was walking around the apartment making jokes. Defendant told Merkson to stop making jokes and to get Motley’s body out of the apartment. As Merkson and Prater were moving Motley’s body, Merkson made another “crack.” Defendant chased Merkson into the front room of the apartment, repeatedly hit Merkson in the head with the .357 Magnum, and then said, “Now let’s get the body out of here.” When Merkson made another comment, defendant told him to get down on his knees and face the floor. Merkson got down on his knees, and defendant pointed the .357 Magnum at Merkson’s head and shot him. Defendant then said to Prater, “It’s just us now and you got to get up the body.” As Prater began to tie up Merkson’s body, defendant began shooting at Prater. Prater escaped as defendant continued to shoot at him.
In the meantime, defendant had ordered Gregson into the bathroom. After shooting at Prater, defendant ordered Gregson to come out of the bathroom. When Gregson opened the door, defendant grabbed her arm and said, “You’re going with me.” Defendant and Greg-son drove to a motel, where defendant checked into the motel under an alias. Once inside the motel room, defendant raped Gregson. After the rape, defendant said that he was hungry and “let’s go get something to eat.” As defendant and Gregson were walking to defendant’s car, a motel employee observed defendant holding a gun to Gregson’s head. When defendant saw the employee, he aimed his gun at the employee and began to chase him. As the employee ran toward the motel lobby, defendant stopped chasing him and took Gregson by the arm and pushed her into his car. Defendant later released Greg-son and warned her that he would find her if she told anyone about the crimes. Defendant was arrested the next day after Prater contacted the police.
The senseless and heartless nature of defendant’s crimes reveals a cold-blooded murderer who attempted to conceal his crimes by killing or threatening all witnesses. Given the extent of the aggravating evidence in this case, there is no reasonable likelihood that the result of defendant’s sentencing hearing would have been different had the trial court heard the evidence that was revealed during the post-conviction proceedings.
This court has, on numerous occasions, rejected defendants’ claims that they were prejudiced by their attorneys’ failure to present certain mitigating evidence at the defendants’ capital sentencing hearings, where the aggravating evidence was overwhelming. See, e.g., People v. Evans, 186 Ill. 2d 83, 102 (1999) (affirming trial court’s dismissal of post-conviction petition without evidentiary hearing); People v. Johnson, 183 Ill. 2d 176, 205 (1998) (affirming trial court’s dismissal of post-conviction petition without evidentiary hearing); People v. Coleman, 183 Ill. 2d 366, 406-07 (1998) (affirming in relevant part trial court’s dismissal of post-conviction petition without evidentiary hearing); People v. Mahaffey, 165 Ill. 2d 445, 466 (1995) (affirming trial court’s dismissal of post-conviction petition without evidentiary hearing); People v. Caballero, 152 Ill. 2d 347, 366-67 (1992) (affirming trial court’s denial of post-conviction petition following evidentiary hearing); People v. Jones, 144 Ill. 2d 242, 278-80 (1991) (affirming trial court’s denial of post-conviction petition following evidentiary hearing).
In People v. Coleman, 183 Ill. 2d 366 (1998), for example, the defendant’s post-conviction petition contained an evaluation from a clinical psychologist which stated that as a result of the defendant’s abusive background and early use of drugs, the defendant has low average intelligence, suffers from extreme emotional disturbance, and is prone to impulsive behavior. The aggravating evidence, however, established that the defendant methodically planned an armed robbery of a drug house and shot one of the victims as she was begging the defendant for her life; that the defendant had a long history of violent criminal behavior; and that the defendant’s statements to others about the murders at issue revealed a “chilling” lack of remorse for these crimes. This court held that this aggravating evidence outweighed the mitigating evidence presented in the post-conviction petition. Coleman, 183 Ill. 2d at 401-02, 405-06.
Similarly, in People v. Johnson, 183 Ill. 2d 176 (1998), the defendant’s post-conviction petition contained evidence regarding the defendant’s dysfunctional family life, as well as an evaluation from a psychologist which stated that the defendant suffered from mild mental retardation and a schizotypal personality disorder. Nevertheless, this court found that the defendant failed to show the requisite prejudice under Strickland. The aggravating evidence established that the defendant planned and directed the armed robbery of three people in a private home. During the robbery, the defendant taunted the victims while they were bound and gagged. The defendant then savagely stabbed to death one of the victims, laughing as he did so. The defendant shot one of the victims as the victim escaped. The evidence also revealed that the defendant had a long history of criminal behavior. Johnson, 183 Ill. 2d at 201-08.
Likewise, here, the aggravating evidence far outweighs the mitigating evidence. Given defendant’s extensive criminal history, as well as the heinous nature of the crimes in this case, defendant has failed to establish the requisite prejudice under Strickland.
As a final matter, I stress the procedural posture of this case. The question presented in this appeal is not whether defendant is entitled to an evidentiary hearing on the allegations contained in his post-conviction petition. In such a circumstance, a court must accept the well-pleaded facts in the petition and any accompanying affidavits as true, to determine whether those allegations make a substantial showing that the defendant’s constitutional rights have been violated. People v. Towns, 182 Ill. 2d 491, 503 (1998). This is, in effect, a preliminary stage to determine whether the defendant is entitled to an evidentiary hearing.
Here, however, the trial court has already held an evidentiary hearing on defendant’s allegation that his trial counsel was ineffective for failing to present mitigating evidence at defendant’s capital sentencing hearing. After hearing all of the evidence at the hearing, the trial judge denied defendant’s post-conviction petition. A trial court’s determination following a post-conviction evidentiary hearing will not be disturbed unless the determination is manifestly erroneous. Coleman, 183 Ill. 2d at 385. The term “manifest error” means error which is “clearly evident, plain, and indisputable.” See People v. Ruiz, 177 Ill. 2d 368, 384-85 (1997). Considering the overwhelming aggravating circumstances in this case, I simply cannot agree with the majority that the trial court was “evidently, plainly, and indisputably” wrong in denying defendant’s post-conviction claim. I agree with the trial court that there is no reasonable probability that the outcome of defendant’s sentencing hearing would have been different had the mitigating evidence at issue been presented.
JUSTICE HEIPLE joins in this dissent.