¶1dissenting:
¶2Whether Wiley’s attorney provided effective assistance at the sentencing hearing is not the dispositive issue on this appeal. Regardless of the effectiveness of the lawyer’s representation, the proceedings which culminated in Wiley’s sentence of death were fatally flawed because they did not comport with the new rules enacted by our court governing the conduct of cases in which the State is seeking the death penalty. For the reasons set forth in my dissenting opinion in People v. Hickey, 204 Ill. 2d 585, 631-36 (2001) (Harrison, C.J., dissenting), the procedures contained in those rules are indispensable for achieving an accurate determination of innocence or guilt and are applicable to all capital cases now coming before us. Because Wiley was tried, convicted and sentenced without the benefit of the new rules, his convictions and death sentence should be vacated, and the cause should be remanded to the circuit court for a new trial.
¶3Even if Wiley were not entitled to the benefit of the new rules, his sentence of death could not stand no matter what an evidentiary hearing on his post-conviction petition might reveal. That is so for two reasons. First, as I noted when this case was before us on direct review (People v. Wiley, 165 Ill. 2d 259, 303-05 (1995) (Harrison, J., concurring in part & dissenting in part)) and as I reiterated in my dissent when we initially considered the appeal from the circuit court’s order dismissing Wiley’s post-conviction petition, the State failed to prove beyond a reasonable doubt that Wiley was guilty of armed robbery. Because the armed robbery convictions were the sole predicate for Wiley’s death sentence, the death sentence is invalid as a matter of law.
¶4Second, for the reasons set forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law is void and unenforceable because it violates the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2). Until defendants are permitted to avail themselves of our new rules and until we see how those rules work in practice, there is no basis for altering that conclusion. Wiley’s sentence of death should therefore be vacated, and he should be sentenced to a term of imprisonment. Ill. Rev. Stat. 1985, ch. 38, par. 9 — l(j). Because he was convicted of murdering more than one victim, the term of imprisonment must be natural life. Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1)(c).
¶5also dissenting:
¶6To prevail on a claim of ineffective assistance of counsel in the context of a death sentencing hearing, a defendant must show prejudice, i.e., that there is a reasonable probability that absent his counsel’s deficient conduct, the court or sentencing jury would have concluded that the balance of aggravating and mitigating evidence did not warrant death. People v. Hall, 157 Ill. 2d 324, 337 (1993). I disagree with the majority that defendant in this case made a substantial showing that he was prejudiced by his counsel’s deficient conduct at defendant’s sentencing hearing. I therefore dissent.
¶7Defendant claimed that his trial counsel failed to discuss any mitigation strategy with him. Defendant further alleged that his trial counsel knew defendant suffered from extreme emotional and mental distress at the time of the offense because defendant’s mother was critically ill and his wife recently had left him, taking their infant son with her. Defendant also asserted that his trial counsel failed to contact several family members who would have provided testimony more favorable than that of Jerry Wiley. The evidence submitted by defendant in support of his claim included an affidavit from his daughter, Gwen Brown, stating that Gwen’s mother told Gwen that she and defendant got along well, but that defendant often was in and out of jail. Gwen did not have much contact with defendant when she was a baby because defendant was in jail. When defendant was not in jail, he would visit Gwen. Gwen never saw a violent side to defendant. Gwen stated that defendant always was happy, “sometimes too happy.” Gwen said that defendant always had a job when he was not in jail. With regard to the illness of defendant’s mother, Gwen said that “[w]hen my grandmother got ill, my dad tried to handle it. We talked about it.”
¶8Defendant also submitted the affidavits of his sisters, Rosie Rhodes and Juanita Jones. Rhodes stated that she and defendant had different fathers, and that defendant’s father used to drink heavily. Rhodes did not know why defendant’s father “ended up in an institution.” Defendant’s mother treated her children well, especially the boys. Defendant got along with his stepfather. Defendant was shot when he was 13 years old, and around that time, his mother found out that he and his friends were breaking into parking meters. Rhodes stated that defendant “pretty much” kept a job, that defendant liked to drink and would get “high” off of drinking, and that she never saw defendant violent. Rhodes said that when their mother became sick with pancreatic cancer, “he [defendant] was hurt …. [Defendant] pretty much kept his feelings in. Sometimes, he would lay on the bed with her and cry.”
¶9Jones testified that she and defendant had the same father and were treated “different” in a small way from their other siblings by their mother and stepfather. Jones also testified that she had a stroke and had difficulty remembering, and that defendant was good to her when she was in the hospital.
¶10Defendant also attached notes from his case file with the Cook County public defender in support of his claim of ineffective assistance of counsel. Included were notes from an interview with defendant’s ex-wife, who said that defendant needed psychiatric help because he gets angry when he drinks and is like Jekyll and Hyde. The notes also show that defendant’s mother told counsel that defendant’s father died in a mental institution. Defendant also submitted the report of Dr. Gunn stating that when defendant “experiences losses (as with his wife and son) he loses control and even conscious awareness of what is taking place. His rage bursts out and his control system fails.” Dr. Gunn noted defendant’s cocaine and alcohol use, and that defendant reported blackouts and many head injuries, and should be screened for traumatic brain injury.
¶11The evidence in aggravation revealed defendant’s criminal history dating back to 1964. In 1964, defendant was convicted of unlawful use of a weapon and aggravated battery when he was caught shooting at a boy with a sawed-off shotgun. That same year, he also was convicted of attempt robbery. In 1970, defendant served five years’ probation for burglary. In 1973, defendant received five years’ felony probation for unlawful use of a weapon. In that incident, defendant raised a shotgun, rested it on the roof of an automobile, fired in the direction of a man and shot out a store window. When police officers ordered defendant to put the gun down, defendant refused, but was apprehended when another man crept up behind defendant and grabbed the shotgun.
¶12Defendant next served a sentence of one to four years’ imprisonment for a 1976 robbery conviction following his arrest for the armed robbery of a grocery store. In 1978, defendant was convicted of aggravated battery and armed violence and was sentenced to concurrent terms of seven years and five years of imprisonment. That conviction was based upon an incident where defendant hit a 73-year-old woman numerous times on the face with a gun, wrestled the woman to the floor when she tried to get away from him, then put his knee to her chest and started choking her.
¶13Defendant thereafter received a two-year sentence of imprisonment in 1983 for unlawful use of a weapon, following an incident where defendant was found crouched on a street corner with a gun extended in his hand. The murders giving rise to the instant charges occurred in 1985. In addition, while in Cook County jail awaiting trial on the charges in this case, defendant received four disciplinary violations.
¶14Given defendant’s extensive criminal history, I do not believe that any of the mitigating evidence offered by defendant would have outweighed the aggravating evidence. This court frequently has refused to find prejudice due to ineffective assistance of counsel in cases involving violent crimes where a defendant’s extensive criminal history was so great that it would have been highly improbable that proposed mitigation evidence would have outweighed the aggravating evidence. See People v. Jones, 144 Ill. 2d 242 (1991); People v. Neal, 142 Ill. 2d 140 (1990); People v. Owens, 129 Ill. 2d 303 (1989).
¶15Here, the testimony of defendant’s daughter and sister that they had never seen defendant violent would not have been sufficient to counter defendant’s lengthy and violent criminal history. In addition, although the testimony of defendant’s family members would have shown that defendant was upset by his mother’s illness, their testimony does not establish that defendant suffered an extreme emotional or mental disturbance as a result of her illness. Further, while the report of Dr. Gunn suggests a brain injury, blackouts and a loss of conscious awareness of what is taking place when defendant experiences losses, I note that defendant did not claim that he had no memory of the murders in this case, and in fact was in control of his mental faculties enough to continually change his story to the police when confronted with evidence that he was lying. I further note that defendant also had presented stipulated evidence at his sentencing hearing that Cheryl Winke, a psychologist with the Department of Corrections, would have testified that defendant did not exhibit any psychopathology and appeared to function within the normal range of intelligence. Consequently, I do not believe that Dr. Gunn’s report would have been sufficient to overcome the aggravating factors in this case.
¶16I also believe this case is distinguishable from People v. Orange, 168 Ill. 2d 138 (1995), and People v. Thompkins, 161 Ill. 2d 148 (1994), cited by the majority in support of their finding that defendant was entitled to an evidentiary hearing. 205 Ill. 2d at 235-36, 238. In Orange, we noted that the defendant had a limited criminal history and his prior adjudications had occurred more than 15 years earlier when the defendant was a juvenile. Orange, 168 Ill. 2d at 171. The defendant’s affiants would have provided testimony concerning defendant’s ability to maintain employment over the past 14 years, as well as testimony concerning defendant’s violent upbringing, his ability to maintain caring relationships with family members, and his trustworthiness in the eyes of his employers. Orange, 168 Ill. 2d at 171. We concluded that it was not unreasonable that such mitigating evidence might have provided the court “with a portrait of the defendant that may have influenced the choice of sentence.” Orange, 168 Ill. 2d at 171.
¶17Similarly, in Thompkins, 161 Ill. 2d at 165, defense counsel argued at defendant’s death penalty hearing that defendant should not be sentenced to death because he had not been clearly identified as the gunman. In support of his post-conviction petition, the defendant submitted affidavits from his parents, siblings, children and friends stating that they would have testified on defendant’s behalf had they been asked to do so. Thompkins, 161 Ill. 2d at 166. This court found that the defendant was entitled to an evidentiary hearing on his claim of ineffective assistance of counsel, noting that the mitigating evidence would have complemented defense counsel’s strategy at the defendant’s sentencing hearing, and that “[flavorabie testimony by the defendant’s family members would have fortified counsel’s contention that the evidence of the defendant’s role in the offenses was subject to doubt.” Thompkins, 161 Ill. 2d at 167.
¶18Here, in contrast, there was evidence supporting a finding that the defendant shot the victims, despite his denials. This fact, coupled with defendant’s lengthy and violent criminal history, likely would outweigh favorable testimony from defendant’s family members. I also am not convinced that the materials submitted by defendant in mitigation established a mental health history that would have outweighed the aggravating factors. Therefore, I would affirm the trial court’s order dismissing defendant’s post-conviction petition without an evidentiary hearing.
¶19JUSTICE McMORROW joins in this dissent.