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Docket No. 84261-Agenda 5-September 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 
DERRICK KING, Appellant.

Opinion filed August 10, 2000.

JUSTICE MILLER delivered the opinion of the court:

The defendant, Derrick King, initiated this action for post-conviction relief in the circuit court of Cook County. The circuitcourt denied the defendant's amended petition without anevidentiary hearing. Because the defendant received the deathpenalty for his underlying murder conviction, the present appeallies directly to this court. 134 Ill. 2d R. 651(a).

In 1981 the defendant was convicted of murder and armedrobbery and was sentenced to death for the murder conviction. Theoffenses occurred when the defendant shot and killed the cashierat a small store in Chicago during a robbery. On direct appeal, thiscourt affirmed the defendant's convictions and death sentence.People v. King, 109 Ill. 2d 514 (1986). The United States SupremeCourt denied the defendant's petition for a writ of certiorari. Kingv. Illinois, 479 U.S. 872, 93 L. Ed. 2d 173, 107 S. Ct. 449 (1986).The defendant then filed, pro se, a petition for post-convictionrelief in the circuit court of Cook County. Counsel was appointedto represent the defendant in the proceedings. After a period ofdelay, the defendant received the appointment of new counsel,who later filed an amended post-conviction petition. Anotherperiod of delay ensued, and a different lawyer was then appointedto represent the defendant in the present proceedings. The circuitcourt later granted the State's motion for dismissal of thedefendant's amended post-conviction petition. The defendantbrings this appeal from the order of the circuit court dismissing theamended petition. 134 Ill. 2d R. 651(a).

The Post-Conviction Hearing Act (725 ILCS 5/122-1 through122-7 (West 1996)) provides a means by which a defendant maychallenge his conviction or sentence for violations of federal orstate constitutional rights. People v. Tenner, 175 Ill. 2d 372, 377(1997). An action seeking post-conviction relief is a collateralproceeding, not an appeal from the underlying judgment. Peoplev. Evans, 186 Ill. 2d 83, 89 (1999); People v. Mahaffey, 165 Ill. 2d445, 452 (1995). To be entitled to post-conviction relief, adefendant must establish a substantial deprivation of federal orstate constitutional rights in the proceedings that resulted in theconviction or sentence being challenged. People v. Morgan, 187Ill. 2d 500, 528 (1999). Considerations of res judicata and waiverlimit the scope of post-conviction review "to constitutional matterswhich have not been, and could not have been, previouslyadjudicated." People v. Winsett, 153 Ill. 2d 335, 346 (1992). As ageneral matter, then, issues that were raised on appeal from theunderlying judgment of conviction, or that could have been raisedbut were not, will not be considered in a post-convictionproceeding. People v. West, 187 Ill. 2d 418, 425 (1999); People v.Coleman, 168 Ill. 2d 509, 522 (1995). Guided by principles offundamental fairness, however, a court will relax the customarydoctrines of waiver and res judicata when appropriate. People v.Neal, 142 Ill. 2d 140, 146 (1990).

The defendant raised numerous claims in the post-convictionproceedings below; defense counsel has culled through thesematters and has selected five questions for our consideration here.The defendant first argues that the post-conviction judge erred inrefusing to allow counsel to file an addendum to the amendedpost-conviction petition. The defendant's second set of lawyershad submitted an amended petition, omitting some issuesoriginally raised by the defendant in the pro se petition whileadding several other issues. The addendum drafted by thedefendant's new lawyer sought to reintroduce issues that had beencontained in the defendant's original, pro se petition but had beenleft out of the amended petition.

It was well within the post-conviction court's discretion todecide whether or not to grant leave to counsel to file theaddendum to the amended post-conviction petition. See People v.Sanchez, 169 Ill. 2d 472, 502-03 (1996) (denial of motion to fileadditional documentation in support of post-conviction petition;motion made several weeks after parties presented arguments onState's motion to dismiss petition). We recognize that thedefendant's current lawyer came into the case at a relatively latestage in the proceedings below, and that she is the third lawyer orset of lawyers to represent the defendant in this matter. The post-conviction court was concerned, however, that allowing counselto file the addendum would only add further delay to these alreadylengthy proceedings. Counsel filed the motion to submit theaddendum two years after the amended petition was filed and oneyear after the motion to dismiss was filed. On this record, wecannot say that the post-conviction judge abused his discretion indeclining to permit counsel to file the addendum to the amendedpost-conviction petition.

The defendant next raises an issue relating to his fitness at thepost-conviction proceedings. The defendant argues that the post-conviction court erred in dismissing the amended post-convictionpetition without having conducted a hearing on the defendant'sfitness or having found the defendant competent to assist counsel.In an order entered May 14, 1993, the circuit court granted thedefendant's motion for a stay of the proceedings pending adetermination of the defendant's mental status and a psychiatricexamination of the defendant. The record does not contain anyindication that the court later found the defendant fit in the matter,and the defendant now argues that he was denied both due processand the reasonable assistance of counsel in the post-convictionproceedings because there was no formal judicial determination ofhis fitness. The defendant further contends that, in the absence ofa fitness examination and a judicial determination of fitness, theprejudicial effect of the court's denial of leave to file theaddendum to the amended post-conviction petition was manifest;the defendant asserts that he might not have been able to assist hissecond set of lawyers in the preparation of the amended petition.

The record, however, shows that the examination ordered bythe court was conducted, and that the psychiatrist who examinedthe defendant found him to be fit. While this case was pendingbefore this court, we allowed a motion by the State to supplementthe record with a copy of the report made by a psychiatrist atPontiac Correctional Center, where the defendant wasincarcerated. In the report, dated August 21, 1993, the examiningpsychiatrist concluded that the defendant was fit and competent.Although there is nothing of record to show whether or in whatmanner the post-conviction court disposed of this question, webelieve that the report provides persuasive evidence of thedefendant's fitness. Too, there was no showing before the post-conviction court, in denying counsel's motion to file theaddendum, that the defendant had been unable to assist counsel inthe preparation of the amended petition. Together, thesecircumstances demonstrate to us that the omission of a fitnessorder from the record fails to suggest either that the defendant wasdenied due process or that he was impeded in the assistance hecould provide to counsel.

We note, moreover, that the defendant's current lawyerapparently did not perceive any problem with the defendant's levelof functioning during the period she represented him in theproceedings below; significantly, counsel raised no question onher own regarding the defendant's competency, and, as she statesin her brief, she was not aware of the prior request for a fitnesshearing until she reviewed the record while preparing for thisappeal. As we explain later in this opinion, the cause must beremanded to the circuit court for further proceeding on otherissues; if counsel believes that there then exists a further questionregarding the defendant's fitness, counsel is free to raise thequestion at that time.

The defendant next argues that the cause must be remandedfor an evidentiary hearing on his contention challenging the State'suse of peremptory challenges to exclude blacks during juryselection. The defendant's trial took place in 1981. This courtissued its opinion in the case in January 1986, and rehearing wasdenied in April 1986. The United States Supreme Court decidedBatson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712(1986), several weeks later, and before the defendant's petition forcertiorari came before that court for consideration. The presentcase was therefore pending on direct review when Batson wasdecided, and Batson would be applicable to this case. See Griffithv. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708(1987).

In support of this contention, the defendant relies on anaffidavit that was prepared by one of his trial lawyers. In theaffidavit, dated August 12, 1985, some four years after trial,counsel stated that the defendant's jury consisted of 11 whites andone black, that the prosecution exercised seven peremptorychallenges in the case, and that all seven challenges used by theState were to black jurors. The affidavit does not describe theethnicity of the alternate jurors or the composition of the jury pool.

The substantive issue has been waived by counsel's failure toraise an appropriate objection during jury selection, either underthe reasoning later adopted in Batson, or under the then-existinglaw expressed in Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d759, 85 S. Ct. 824 (1965). Both Batson and Swain required thedefense to make timely objections to the prosecutor's exclusion ofjurors (see Batson, 476 U.S. at 99, 90 L. Ed. 2d at 89-90, 106 S.Ct. at 1724-25; People v. Richardson, 189 Ill. 2d 401, 409-10(2000)), and no objection was raised in this case. Accordingly,trial counsel waived the issue by failing to make an objection andestablish a record on which the issue could be resolved.

The defendant makes the further argument, however, that trialcounsel and appellate counsel were ineffective for failing topreserve the issue for purposes of appeal. To establish ineffectiveassistance of counsel, the defendant must show both a deficiencyin counsel's performance and prejudice resulting from thatdeficiency. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed.2d 674, 693, 104 S. Ct. 2052, 2064 (1984). We must reject thiscontention as well. First, appellate counsel cannot be faulted forfailing to argue on appeal an issue that trial counsel had alreadywaived. Richardson, 189 Ill. 2d at 412-13. Moreover, on thisrecord, trial counsel also cannot be deemed ineffective for failingto preserve the issue. Under the law in effect at the time ofcounsel's affidavit, it was the defendant's burden to show thesystematic exclusion of jurors in case after case. Swain, 380 U.S.at 226, 13 L. Ed. 2d at 776, 85 S. Ct. at 839. Counsel's affidavitpertains only to the present proceeding, and does not provide anybasis on which one could conclude that the prosecution had actedin violation of Swain. Nor do we believe that trial counsel may beconsidered ineffective for failing to anticipate the ruling in Batson.Conduct of a lawyer will not be deemed deficient for his or herfailure to make an argument that has no basis in the law. SeePeople v. Hobley, 159 Ill. 2d 272, 305 (1994).

The defendant notes, however, that counsel on direct appealhad taken an active role in challenging race-based jury selectionprocesses in a number of cases, and the defendant maintains thatcounsel therefore should have been particularly sensitive to thepreservation of this issue. We do not believe that appellatecounsel's special expertise in this area of the law affords thedefendant any help here, for counsel's familiarity with the issueactually argues against the defendant's position. Counsel couldhave simply believed that the present case did not give rise to avalid question regarding the prosecution's use of peremptorychallenges during jury selection, especially in view of trialcounsel's failure to preserve the issue.

The defendant next presents an argument relating toallegations that the defendant was mistreated while undergoingquestioning by police in this case. The defendant in this case wasinterrogated at Area 2 headquarters by Detective Robert Dwyer,while Sergeant Jon Burge was also present. On direct review, thiscourt upheld that trial court's determination that the defendant'sconfession was given voluntarily and was not the product ofphysical coercion. People v. King, 109 Ill. 2d 514, 523-26 (1986).In his brief before this court, the defendant argues that trial counselwas ineffective for failing to introduce at trial testimony by awitness who would have supported the defense theory that thedefendant's confession was coerced. The issue is broader than that,however, for what the defendant really seeks is a freshexamination of the circumstances in which he gave a confessionstatement to authorities. Attached as exhibits to the defendant'samended post-conviction petition are a number of documentspurporting to establish a history of police misconduct at Area 2headquarters. These include a report from the Federal Bureau ofInvestigation regarding mistreatment by a defendant in anothercase, a report by the Chicago police department's office ofprofessional standards (OPS), the complaint in a federal actionagainst Burge and others, and the decision by the Chicago policeboard dismissing Burge from his employment as a Chicago policeofficer.

This court has addressed a similar issue in People v.Patterson, No. 82711 (August 10, 2000). In that case, defendantalso raised a number of arguments regarding counsel's failure topresent evidence that the confession in that case was the productof coercion. The defendant in Patterson also argued that newevidence supported the defense theory of coercion. The newevidence presented by the defendant in that case consisted of theOPS report cited by the present defendant, appellate courtdecisions holding that Burge had tortured another suspect and wasfired for that misconduct, the discovery of 60 additional incidentsof torture occurring at Area 2, and a report by an expert concludingthat the defendant in Patterson had been tortured. This courtconcluded that an evidentiary hearing was warranted on thedefendant's allegations. Patterson, slip op. at 32-38. We believethat a similar hearing should be conducted in this case on thedefendant's allegations of police misconduct.

In light of the new evidence included in the amended post-conviction petition, most notably the report by the OPS, webelieve that an evidentiary hearing should be conducted on thisportion of the defendant's post-conviction petition. After theparties filed their briefs, but before oral argument was held in thiscase, the defendant submitted a motion seeking a remand to thecircuit court for purposes of conducting a new suppression hearingin this case. Given our decision to remand the cause for anevidentiary hearing, we deny the defendant's motion.

In his final post-conviction challenge, the defendant arguesthat trial counsel was ineffective for failing to investigate andpresent certain mitigating evidence at the capital sentencinghearing conducted in this case.

At the second stage of the defendant's sentencing hearing, theState presented evidence regarding the defendant's prior offenses.In mitigation, defense counsel presented only two witnesses, andtheir testimony spans fewer than 16 pages of the transcript. Thefirst defense witness was one of the defendant's aunts, GenevaJackson, who testified in general terms about the defendant'schildhood. Jackson was one of the defendant's mother's sisters,and she stated that the defendant, while a youth, lived with her andother relatives for varying periods of time. The witness explainedthat the defendant was not able to live at home because thedefendant's mother was not stable. The witness said further thatthe defendant's mother used drugs and alcohol. The seconddefense witness was the defendant's mother, whose testimony waseven briefer than her sister's. She stated that she loved her son,that the defendant's biological father was dead, that she wasdivorced from her second husband, and that the defendant hadlived with a number of her sisters for extended periods of time. Inclosing argument, counsel argued that three mitigatingcircumstances had been established in this case: that the defendantwas young when he committed the offense, that he did not have asubstantial criminal record, and that he came from a troubledbackground. Defense counsel also devoted a substantial part of hisclosing argument to an attack on the death penalty law,questioning its deterrent value and challenging its morality.

The amended post-conviction petition alleges that trialcounsel was ineffective for failing to investigate and presentsubstantial evidence in mitigation that would have supported thedefense theory at the sentencing hearing. Accompanying thedefendant's amended post-conviction petition were a number ofaffidavits describing additional evidence in mitigation that defensecounsel could have presented at sentencing. These witnessesincluded a mitigation specialist, Cynthia Hines, who submitted areport documenting the defendant's troubled childhood. Otherwitnesses included a number of family members and otherrelatives, who further described the defendant's troubledchildhood, his close relationship with his grandmother, who diedwhen the defendant was 13, and his history of drug and alcoholabuse. These witnesses stated in their affidavits that defensecounsel did not contact them prior to sentencing or ask themwhether they would testify in the defendant's behalf at the hearing.The defendant's former stepfather, Clifford Rhymes, stated in hisaffidavit that he asked defense counsel whether he could testify forthe defendant at the hearing, and counsel replied that his testimonywould not be necessary. We note that the defendant's trialconcluded on June 12, 1981; the sentencing hearing did not beginuntil July 28, 1981. Thus, defense counsel still had more thanmonth after trial to complete their preparations for the sentencinghearing.

Our cases have previously recognized that evidence of adifficult childhood is not inherently mitigating. People v. Madej,177 Ill. 2d 116, 140 (1997); People v. Sanchez, 169 Ill. 2d 472,491-92 (1996). Similarly, there is nothing inherently mitigatingabout evidence regarding a defendant's history of drug and alcoholabuse. Madej, 177 Ill. 2d at 138-39; People v. Shatner, 174 Ill. 2d133, 160 (1996). Accordingly, counsel is not automaticallyineffective for failing to present evidence of that nature. In thiscase, however, defense counsel presented evidence about thedefendant's background and argued to the sentencing judge thatthe defendant's difficult and tumultuous upbringing was amitigating circumstance. Counsel apparently neglected, however,to investigate and present evidence that would have addedsubstance to that argument and would have provided greater detailabout the defendant's childhood and upbringing. The evidencepresented by counsel showed only the broad outlines of this theoryof mitigation, and counsel apparently presented only a smallamount of the available evidence in support of this contention.Given the allegations raised in the defendant's amended post-conviction petition and the information accompanying the petition,we believe that an evidentiary hearing is warranted on this issue.People v. Ruiz, 132 Ill. 2d 1, 24-28 (1989); see People v. Morgan,187 Ill. 2d 500 (1999) (ordering new sentencing hearing, followingevidentiary hearing on allegations); People v. Perez, 148 Ill. 2d168 (1992) (same).

For the reasons stated, the judgment of the circuit court ofCook County is affirmed in part and reversed in part, and the causeis remanded to that court for further proceedings.

Affirmed in part and reversed in part;

cause remanded.