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Docket No. 82374-Agenda 2-March 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. SAMUEL MORGAN, Appellant.

Opinion filed September 23, 1999.

JUSTICE McMORROW delivered the opinion of the court:

Defendant, Samuel Morgan, was charged with two counts of murder and with aggravated kidnaping and rape. Following a jury trial in the circuit court of Cook County, defendant was found guilty of all charges. Defendant waived his right to a jury for the sentencing phase of the proceedings, and the circuit court found defendant eligible for the death penalty on the basis that he was convicted of murdering two individuals. Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(3). The court then determined that no factors in mitigation were presented to preclude imposition of the death penalty and sentenced defendant to death for the murders. The circuit court also imposed concurrent extended prison terms (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-2(a)) of 60 years for the rape and 30 years for the aggravated kidnaping. On direct appeal, this court affirmed defendant's convictions on all charges, and affirmed his sentence of death. This court also vacated the extended-term sentences imposed for rape and aggravated kidnaping and, pursuant to Supreme Court Rule 615, reduced defendant's sentence for rape to 30 years and his aggravated kidnaping sentence to 15 years. People v. Morgan, 112 Ill. 2d 111 (1986). The United States Supreme Court subsequently denied defendant's petition for writ of certiorari. Morgan v. Illinois, 479 U.S. 1101, 94 L. Ed. 2d 180, 107 S. Ct. 1329 (1987).

Defendant thereafter filed a petition pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1994)), challenging his convictions and death sentence. The circuit court dismissed all claims presented in defendant's post-conviction petition without an evidentiary hearing, with one exception. The court granted an evidentiary hearing on defendant's allegation that his trial counsel, Lawrence Levin, was ineffective because he failed to investigate and present certain mitigation evidence at sentencing. Following the evidentiary hearing, the circuit court denied defendant relief on this claim as well. This appeal followed.

BACKGROUND

This court previously detailed the evidence presented at defendant's trial in our opinion on direct appeal. See People v. Morgan, 112 Ill. 2d 111 (1986). Therefore, we reiterate only those facts which are germane to the issues raised in this appeal. We set forth in some detail the facts relating to defendant's sentencing hearing and the evidence presented in the post-conviction proceedings.

Defendant was charged with the murders of William Motley and Kenneth Merkson, and the aggravated kidnaping and rape of Phyllis Gregson. On the afternoon of January 27, 1982, defendant visited his long-time friend, Elijah Prater, at Prater's apartment at 1627 West Lawrence Avenue in Chicago. Accompanying defendant to Prater's apartment were Motley and Merkson, two friends of defendant. The evidence presented at trial showed that, after the trio arrived at Prater's apartment, all four men used various drugs and alcohol. Another friend of Prater, Phyllis Gregson, arrived at Prater's apartment sometime after 8 p.m.

The four men and Gregson spent the night at Prater's apartment. At approximately 11:30 a.m. on January 28, Motley, Gregson and defendant were in the apartment's front room. The evidence showed that Motley was sitting on a couch, talking on the telephone, and looking through a small, black telephone book. As he was making phone calls, Motley had a .357 Magnum handgun tucked under his leg. Defendant was sitting on a chair with a shotgun across his lap. Prater and Merkson were in the kitchen.

At that point, defendant instructed Gregson to remove her clothing and dance for him. Gregson refused, and Motley, who was still sitting on the couch, made an unknown comment to defendant. Defendant, who was between six and seven feet away from Motley, aimed the shotgun at him and fired. Motley landed on the floor with a fatal shotgun wound to the chest. Defendant then removed the handgun from Motley's body and placed the gun in his own waistband.

Defendant thereafter went into the kitchen and told Prater and Merkson to come into the front room and clean up Motley's body. Merkson removed money, marijuana, and the black telephone book from Motley and gave them to defendant. Defendant looked at the names in the book, asked if anyone knew the listed individuals, and then placed the book in his pocket. Defendant said that he wanted to get Motley's body out of the apartment and told Prater and Merkson to pull the drawer out of a bedroom dresser to determine if the body would fit inside. Although Motley's body was bent and tied with a rope, the dresser drawer would not accommodate the body. Prater and Merkson then stuffed Motley's tied body into a laundry bag and wrapped it inside a mattress. Defendant then instructed Gregson to clean Motley's blood from the floor, which she did.

At approximately 11:45 a.m., defendant sent Prater to a liquor store to buy something to drink, told Prater to put gas in Prater's car, and instructed him to park the car at the rear of the apartment building. Prater ran the errands and returned to the apartment approximately 15 minutes later. Upon Prater's return, Gregson was washing dishes in the kitchen, and defendant was sitting in the dining room with the shotgun in his lap and the handgun tucked into the waistband of his pants. Merkson was walking around the apartment making jokes. Prater gave defendant the liquor he purchased and the men took a few drinks. Merkson continued to make jokes until defendant told him to stop joking and to remove Motley's body from the apartment. Merkson and Prater then moved Motley's body, wrapped inside the mattress, to the center of the room. When Merkson made another remark, defendant chased Merkson into the front room, where they started to argue. After hitting Merkson in the head with the butt of the handgun, defendant again instructed Merkson and Prater to remove the body from the apartment. Merkson made another remark to defendant and defendant told Merkson to get down on his knees and face the floor. Prater testified that he saw defendant point the handgun at Merkson's head from a distance of four to five feet. Prater then turned to face the wall. Prater heard a shot and turned back to see Merkson's body on the floor and defendant, holding the handgun, standing beside it. Gregson also testified that as she emerged from the kitchen she saw the handgun in defendant's hand as he stood near Merkson's body. Defendant ordered Gregson to clean up Merkson's blood, and instructed Prater to get the body out of the apartment. As Prater began to tie up Merkson's body with his belt, defendant came up behind Prater and began shooting at him. Prater testified that he felt a bullet pass by his head. Prater then ran through the kitchen and out the back door of the apartment.

Defendant, who was now alone with Gregson in the apartment, ordered her into the bathroom. Gregson complied, and locked the bathroom door behind her. After the passage of between 5 and 10 minutes, defendant ordered her out of the bathroom. When she emerged, she saw defendant was still in possession of the handgun, although she did not observe the shotgun. Defendant took Gregson by the arm and they left the apartment together at approximately 1:30 p.m.

In the meantime, Prater's downstairs neighbor, Frank Blume, had called the police. Blume, who had heard several loud shattering sounds coming from Prater's apartment during the morning, testified that the last loud blast, which occurred at about 1:15 p.m., caused a hole in the ceiling in Blume's front hallway. The police arrived shortly after 1:30 p.m., and, upon entering Prater's apartment, discovered the bodies of Motley and Merkson. From the apartment the police recovered a loaded shotgun, a fingerprint from a dresser drawer later identified as defendant's, and a bullet from the floor. The police also recovered a bullet from Blume's apartment.

Gregson testified that after leaving Prater's apartment, defendant, who was still armed with the handgun, ordered her into his car and drove her to the South Shore Motel, where he checked in under the alias of Joseph Thurston. Defendant, who had Gregson by the arm, then led her to a motel room, where he began to undress her. Although Gregson told defendant that she did not want to have sex with him, defendant completed removing her clothes, pushed her onto the bed, and had sexual intercourse with her. Thereafter, defendant, who was still armed with the handgun, escorted Gregson by the arm to his car. A motel employee testified that he observed defendant pointing a gun to Gregson's head. Defendant, upon seeing the employee, aimed the gun at him and began chasing him. As the employee ran towards the motel lobby, defendant ceased the chase, again took Gregson by the arm, and pushed her headfirst into his car. Soon thereafter, defendant stopped the car and told Gregson to get out. After warning her not to tell anyone what had happened, defendant drove off at a rapid rate of speed. Defendant was arrested the next day, January 29, 1982. Later that same day, Prater contacted the police and informed them that defendant was responsible for the deaths of Merkson and Motley. Prater's statements to the police were subsequently confirmed by Gregson.

At trial, expert testimony showed that the handgun recovered from defendant at the time of his arrest had fired the bullets recovered at the apartment building. A plastic bag defendant dropped prior to his arrest contained a black notebook, which Prater and Gregson described at trial as being the one Merkson gave defendant from Motley's body.

A jury found defendant guilty of all charges on May 3, 1983. Defendant waived a sentencing jury, and the trial court judge conducted defendant's capital sentencing hearing on June 14, 1983. At the eligibility phase of the sentencing hearing, the State introduced into evidence a certified copy of defendant's birth certificate showing that he was over 18 years of age at the time of the murders, and argued that defendant was eligible for the death sentence on the basis that he had been convicted of murdering two individuals. Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(3). Defense counsel presented no evidence regarding defendant's eligibility, but argued that because the Illinois death penalty statute was unconstitutional, "the proceedings *** in terms of the death penalty hearing should not be held." Based upon the evidence offered, the trial court judge concluded that defendant was eligible for the death penalty.

The trial court judge then heard evidence relevant to aggravation and mitigation. In his opening remarks, the prosecutor focused upon defendant's "consistent history of unprovoked violence," and argued that, for most of his adult life, defendant "has been involved in violent confrontations with people, most of them innocent people."

Defense counsel, in his opening statement, engaged in a religious appeal to the judge. Counsel stated: "What I can bring forth before this court, at this time, is the knowledge and wisdom of Catholicism, the Pope, the archbishops." Although counsel admitted that "there can be no question that [defendant] has been found guilty of a crime," counsel argued that by seeking the death penalty, the State "is proposing to this court *** that this court shall act in the stead of a God, that this court, with its supervising powers, shall become the almighty and terminate a man's life." Concerning mitigation evidence, counsel stated that he would "let the evidence speak for itself, insofar as mitigation is concerned," and he promised the trial court judge that "[y]ou will hear from [defendant]. You will hear from kin of [defendant]. You will hear regarding medical testimony as to the problems medically that the defendant has had and still suffers from."

During the State's case in aggravation, the State introduced defendant's criminal history, which dated back to 1965, and presented the testimony of five witnesses. The State's first witness was Earnest Powell, who testified that as he was walking to his car one evening in November 1965, he was approached by defendant, who had a gun. Defendant told Powell to get out of his car, whereupon Powell's wallet and car were stolen. Defendant was convicted of armed robbery and sentenced to three months' imprisonment and five years' probation.

While defendant was on probation for the armed robbery of Powell, defendant was arrested in May 1967 for the aggravated battery of Joseph Smoot. Smoot testified that he was playing softball at Washington Park when defendant, whom Smoot had never met, hit Smoot in the back of his head with a baseball bat. Defendant pled guilty to aggravated battery and was sentenced to three to five years' imprisonment. Defendant was also sentenced to a concurrent term of three to five years' imprisonment for jumping bail in connection with this offense. Finally, defendant was sentenced to an additional concurrent term of three to eight years' imprisonment for violating the provisions of his original probation for the previous armed robbery conviction.

In October 1967, defendant was convicted of aggravated battery, intimidation and mob action in connection with a race riot at Cook County jail. James Czernek, who had been incarcerated at Cook County jail, testified that defendant, who was an organizer of the race riot, had instructed all white prisoners to kneel on the floor in the middle of the jail's day room. Defendant then struck Czernek in the throat with a stick. For these offenses, defendant was sentenced to a term of three to five years' imprisonment, to run concurrently with the other sentences mentioned above.

Chicago Police Officer John Gallagher also testified in aggravation. He stated that in October 1976 he investigated an armed robbery at defendant's apartment and learned that defendant had shot two females with a sawed-off shotgun. However, on cross-examination, Gallagher acknowledged that the State subsequently moved to strike, with leave to reinstate, the aggravated battery and unlawful use of weapons charges against defendant stemming from the incident.

The State's final witness in aggravation was Chicago Police Officer Paul Zacharias. In November 1981, he stopped defendant's car for failure to display a state vehicle registration sticker. When defendant failed to produce a valid driver's license, he was placed under arrest. As Officer Zacharias attempted to handcuff defendant, Zacharias' partner observed a scale and two bags containing a white powdered substance on the front seat of defendant's car. Defendant punched Officer Zacharias in the face with his fist and also hit and shoved the officer's partner. Defendant then returned to his car and sped off, with the officers in pursuit. Defendant thereafter left his vehicle, and the officers gave chase on foot. Ultimately, defendant was apprehended and placed under arrest for possession of a controlled substance, possession with intent to deliver, and battery. The case was still pending at the time of the hearing in aggravation in the case at bar.

The mitigation case presented by defense counsel consisted of two witnesses, whose testimony comprised 10 pages of transcript. Defendant's girlfriend, Rosemary Thomas, related that she met defendant in 1972, and they lived together from 1974 until the time of defendant's arrest in this matter. Thomas testified that defendant played with her two small children, baked cookies with them, helped them with their homework, and instructed them not to argue with one another. She also stated that defendant provided her with moral support when she experienced difficult times. Thomas testified that she benefitted from her time together with defendant, and that she and her children loved him.

Defense counsel next called defendant's mother, Josephine Rogers, who testified that she loved defendant. Then, the following exchange, which were the only references developed by the defense relating to defendant's brain damage, took place between Rogers and defense counsel Levin:

"Q. Now, Miss Rogers, when [defendant] was a young man, approximately eight years of age, did he get hurt or was he involved in an incident?

A. Yeah, he got hurt. He started having seizures at the age of eight years old. He's got a spot on his brains now, and he should be receiving medical care now which [sic] he's grown, and I can't make him go.

Q. When he doesn't take medical care or when he doesn't receive his medicine, does he sometimes do things that he's not responsible for?

* * *

A. He-when he doesn't take his medicine, he have these seizures, and he's a complete blank. You know, he don't know what he's doing.

Q. Since eight years old until today's date, has he had problems as a result of the spot on his brain?

A. I don't understand what you mean, problems?

Q. Well, as his mother, you are aware or you know that unless he takes his medication, he does have problems functioning?

A. Right.

Q. You've heard, Mrs. Rogers, the fact that we've been here-every day during the jury trial-and you heard the things that the jury found [defendant] doing. Does that in anyway diminish the love for your son, Ma'am?

A. No way."

After the completion of Rogers' testimony, defense counsel requested that the court grant a continuance to the next day because there were "certain other witnesses" that counsel stated that he wanted to call. The trial court judge denied this request, noting that the date for the sentencing hearing had been agreed to by both sides and the hearing was taking place over one month after defendant had been found guilty by the jury. Defense counsel then stated that because the court had not allowed a continuance, defendant had asked him to bring specific matters to the attention of the judge. In connection with defendant's request, counsel drew the court's attention to the contents of a 1978 presentence investigation report regarding defendant, and elaborated that "defendant has been receiving medication and had prior instances involving a spot on the brain which was supposed to have been traceable to an injury which occurred when he was eight years old. There is information that the defendant was treated and had been utilizing particular medication while during his incarceration."

In closing argument at the aggravation-mitigation stage of the sentencing proceedings, the prosecutor commented to the court that defendant presented "two angles" of mitigation: "that the defendant is a loved person, that his mother loves him, that his girlfriend loves him, children love him *** [and] [s]econdly that the defendant suffered some medical incident when he was eight years old that causes him to have blank spots." The prosecutor, focusing upon defense counsel's promise during opening arguments that medical evidence would be presented regarding defendant's medical problems, observed that the court had "not heard any medical testimony" other than "certain referrals in the presentence investigation," and that there was no evidence presented "as to whether this medical condition would, in any way, mitigate or take away from the defendant's conscious behavior when he performed certain acts."

Defense counsel, in his closing argument at the aggravation-mitigation stage of the sentencing proceedings, acknowledged the "heinous nature of the events which took place," and then again engaged in a primarily religious appeal to the judge to spare defendant's life, stating: "If human beings, such as yourself, feel it appropriate to rectify the wrong and [mete] out a punishment, which is an eventuality of punishment, which is meted out by somebody else who is far more knowledgeable than you or I, who is the person who decides. The giver of life then-then I would suggest that this court has taken a step towards immortality which should not be done."

In speaking of the mitigation evidence presented in support of defendant, counsel stated: "I would submit to this court when somebody has suggested that there is no mitigation, there is no right, that there is no love, they're wrong. Mothers love their children. Wives love their husbands. Fathers love their children. But love is espoused by somebody much bigger than somebody who is not here today." Counsel then concluded that "[m]itigation many times is not something that can be directly spelled out by the mouth, by the words. Mitigation is not something which individuals come before this Court and say, I apologize, I forgive, I have sinned. Mitigation is the process of individuals. Mitigation is the love that is shown by individuals. Mitigation, in fact, Judge, is the being of human beings."

On June 14, 1983, the trial judge, finding no mitigating factors sufficient to preclude the imposition of the death penalty, sentenced defendant to death on the murder charges and to concurrent extended prison terms of 60 and 30 years for rape and aggravated kidnaping. As part of his sentencing decision, the trial court judge stated that he took into consideration the factors of defendant's background, as well as the circumstances of the crime. Concerning defendant's background, the judge stated that it was "one of all criminal conduct and activity," except for the facts related by defendant's girlfriend. As to the circumstances of the crime, the judge observed that "[t]here wasn't any rhyme, there wasn't any reason" to the "senseless killings." The trial court judge stated that "I might say that this could be the part that could be very distasteful to this court or to this judge," and that "I'm not a great proponent of the death penalty," but "I have a job to do, and I'm going to do my job. I see no other sentence."

Subsequent to this court's consideration of defendant's direct appeal (People v. Morgan, 112 Ill. 2d 111 (1986)) and the United State's Supreme Court's denial of defendant's petition for writ of certiorari (Morgan v. Illinois, 479 U.S. 1101, 94 L. Ed. 2d 180, 107 S. Ct. 1329 (1987)), defendant, through the Cook County public defender's office, filed a petition for post-conviction relief in January 1988. The post-conviction petition alleged that defendant's constitutional rights were violated during his trial, sentencing, and direct appeal. Between July 1988 and April 1993, defendant underwent a series of neurological, psychological, neuropsychological and social history evaluations. In March 1993, the State filed a motion to dismiss defendant's post-conviction petition. Defendant, again through the public defender's office, filed an amended petition for post-conviction relief in July 1993. The State filed an amended motion to dismiss in October 1993. In August 1994, the public defender's office was granted leave to withdraw as defendant's post-conviction counsel, and defendant's present counsel was appointed. On July 3, 1995, present counsel filed a second amended petition for post-conviction relief. A supplement to the second amended petition for post-conviction relief, as well as a second amended motion to dismiss, were also filed.

Defendant's second amended petition raises numerous claims of ineffective assistance of counsel at trial, sentencing, and on direct appeal, in violation of defendant's rights under the fourth, fifth, sixth, eighth, and fourteenth amendments to the United States Constitution (U.S. Const., amends. IV, V, VI, VIII, XIV), as well as his rights under article I, sections 2 and 11, of the Illinois Constitution (Ill. Const. 1970, art. I,