Find Legal Information

Docket No. 85982-Agenda 2-May 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CECIL SUTHERLAND, Appellant.

Opinion filed November 16, 2000.

JUSTICE HEIPLE delivered the opinion of the court:

Defendant, Cecil Sutherland, appeals from the denial of hispost-conviction petition after an evidentiary hearing in the circuitcourt of Jefferson County. Because defendant has been sentencedto death, his appeal lies directly to this court. 134 Ill. 2d R. 651(a).We reverse defendant's convictions and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was tried by a jury in 1989 for aggravatedkidnaping, aggravated criminal sexual assault, and three counts ofmurder. The following evidence was presented at his trial. On July2, 1987, an oil field worker discovered the nude body of 10-year-old Amy Schulz near an oil lease access road in rural JeffersonCounty. Amy's body was lying on its stomach covered with dirt.There were shoeprint impressions on her back. A large, openwound on the right side of her neck exposed her spinal cord.Several pubic hairs were found stuck in her rectal area. On theground near the body were automobile tire impressions and a shoeimpression similar to that on Amy's back. Her clothes were foundstrewn along the access road.

An autopsy of Amy's body revealed a wound to the neckextending from her throat to her right ear. Her right eye washemorrhaged, the base of her ear was torn away from the skin, andher lips were lacerated from compression against her teeth. Therewere linear abrasions to the outer lips of the vagina and evidenceof tearing of the rectal mucosa. Her body also had a fractured rib,torn liver, bruised esophagus, and hemorrhages in the vocal cordsand inside the skull. The medical examiner determined that Amy'sattacker had anally penetrated her, strangled her tounconsciousness, slit her throat, and stepped on her body to forceexsanguination. Based on her stomach's gastric contents, the timeof death was fixed between 9:30 and 11 p.m. on July 1, 1987.Evidence at trial indicated that Amy was last seen walking aloneon a road in Kell, Illinois, at approximately 9:10 to 9:15 p.m. onJuly 1.

Police determined that the tire prints found near the body wereconsistent with only two types of tires manufactured in NorthAmerica: the Cooper "Falls Persuader" and the Cooper "DeanPolaris." Police also ascertained that the shoe prints found on andnear the body were made by a boot sold by K mart called the"Texas Steer."

Several months after the crime, police were contacted by lawenforcement authorities at Glacier National Park in Montana,where defendant had been arrested for shooting at park rangers.Park authorities reported that defendant's car had a single CooperFalls Persuader tire on the right front wheel, and that a pair ofTexas Steer boots was found in his possession. Police alsodiscovered that, at the time of Amy's murder, defendant was livingin Dix, Illinois, a few miles from where the body was found.

Expert witnesses testified for the State at trial that the tireprints discovered near the body corresponded with the tread fromthe tire found on defendant's car in Montana. Expert testimonyalso indicated that: (1) 34 dog hairs found on Amy's clothing wereconsistent with hairs from defendant's black Labrador andinconsistent with hairs from Amy's family's dogs and herneighbors' dogs; (2) 29 fibers found on Amy's clothing could haveoriginated from the carpet or upholstery of defendant's vehicle;and (3) 19 fibers found in defendant's vehicle could haveoriginated from Amy's clothing. A forensic scientist also testifiedfor the State that the two pubic hairs recovered from Amy's rectalarea could have originated from defendant, but did not originatefrom 24 other suspects in the case or from any member of Amy'sfamily.

Defendant's sister-in-law testified that on the night of thecrime, defendant was at her house near Kell until 8 or 8:30 p.m.An expert for the defense testified that most of the clothing fibersrecovered from defendant's vehicle were inconsistent with fibersfrom Amy's clothing.

The jury convicted defendant on all charges, found himeligible for the death penalty, and determined that there were nomitigating factors sufficient to preclude a sentence of death. Thetrial court accordingly sentenced defendant to death.

On direct appeal, this court held that the prosecution at trialimproperly argued before the jury that the hair and fiber evidenceconclusively established that Amy Schultz had been in defendant'scar. People v. Sutherland, 155 Ill. 2d 1, 25 (1992). We noted thatexpert testimony at trial instead indicated merely that hair andfibers from the crime scene were "consistent with" those fromdefendant's car. Nevertheless, we held this error to be immaterialbecause the evidence at trial was not closely balanced. Sutherland,155 Ill. 2d at 25-26. We thus declined to order a new trial, andaffirmed defendant's convictions and death sentence in allrespects. Sutherland, 155 Ill. 2d at 31.

Defendant subsequently filed a post-conviction petition in thecircuit court raising a variety of claims. The court dismissed mostof the claims in the petition, but granted an evidentiary hearing onthe following allegations: (1) that defendant's trial counsel wasineffective in failing to discover and present evidence thatdefendant's purchase of "Texas Steer" boots and installation of theCooper "Falls Persuader" tire on his car both occurred after thedate of the crime; (2) that the conviction of Amy's step-grandfather for sexual abuse subsequent to her death constitutedevidence of defendant's actual innocence; and (3) that the verdictform signed by the jury at sentencing was defective.

At the evidentiary hearing, defendant's mother testified thatat the time of Amy Schulz's murder, defendant wore black lace-upboots that were nearly knee-high. In contrast, she testified, theTexas Steer boots recovered from defendant after his arrest inMontana were tan in color and "above-ankle." She stated thatdefendant bought the Texas Steer boots sometime in July afterAmy Schulz's murder, and that she had offered the receipt for thispurchase to defendant's counsel prior to defendant's original trial.She also testified that defendant changed the two front tires on hiscar before he left for Montana and after the date of Amy's murder.

The defense called a retired Chicago police officer whotestified that at least 75% of homicide victims and child sexualassault victims know their attackers. He testified that in his careeras a police investigator, he would typically look for suspects inmurder and child sexual assault cases among the victim's familyand friends and among the last persons to have seen the victimalive. He stated that his review of the evidence and the wounds inthe instant case had led him to the conclusion that the victimprobably knew her attacker.

William Willis, Amy Schulz's step-grandfather, testified thatat the time of Amy's death, he and his wife lived in a houseapproximately 100 yards from Amy's house. Because Amy'sparents worked and attended school, he and his wife often tookcare of Amy and her brothers. On the evening of July 1, 1987,Amy went to Willis' house to eat blackberries. She was aroundWillis' dog that evening. About 8:30 p.m., Amy asked Willis fora ride into Kell, approximately three-fourths of a mile from thehouse. Willis told her no because he had to go to work and had todo some shopping first. Amy then left, walking on foot towardKell. A few minutes later, Willis drove over the same road towardKell, and he waved to Amy as he passed her walking in the samedirection he was driving. That was the last time he saw Amy alive.

Willis acknowledged that he pled guilty in 1994 to aggravatedcriminal sexual abuse of a boy in the Boy Scout troop for which hevolunteered as a leader. Willis also acknowledged that thepresentence investigation report for that crime containedstatements from several other minor victims, including Amy's twobrothers, that he had sexually abused them. Willis acknowledgedthat at his sentencing hearing for the 1994 guilty plea, one of thesealleged victims testified that Willis had forced him to have oraland anal sex and that Willis threatened to kill him. Willis testified,however, that there were no allegations that he had ever usedweapons or engaged in kidnapping in any of these cases.

A mental health counselor and sex offender treatmentprovider then testified that, based on her research, pedophilesattracted to prepubescent females show a 22% crossover in alsomolesting males, and those attracted to males show a 62%crossover in also molesting females. She testified that she hadreviewed William Willis' medical and psychological evaluationsand had spoken with him briefly. In her opinion, there was a highprobability that Willis would cross over from sexually abusingyoung boys to abusing young girls. She also testified that Williswas prone to outbursts of anger and that when a victim resisted, heused more violent physical force, escalating from fondling to analrape.

Ronald Lawrence, a friend of defendant, testified that he hadchanged all of the tires on defendant's car two separate times afterAmy Schulz's death and before defendant left for Montana.Lawrence explained that he and defendant had to change tiresfrequently because the rock road leading to Lawrence's housecontained metal particles and railroad spikes. Lawrence testifiedthat he told police and the public defender after defendant's arrestthat he had changed the tires on defendant's car after the date ofAmy Schulz's murder. Lawrence stated that although he wascalled and did testify as a mitigation witness at defendant'ssentencing hearing, he was not called to testify at the guilt-innocence phase of the trial.

Michael Anthis, who investigated the murder of Amy Schulzas captain of detectives for the Jefferson County sheriff'sdepartment, testified that he interviewed Ronald Lawrence on July12, 1988. Anthis testified that, according to his own notes of thatinterview, Lawrence told him that defendant had been atLawrence's house near Iuka, Illinois, from 4 p.m. until 10:30 p.m.the night of July 1, 1987. Anthis testified that he did not providethese notes to either the prosecution or defense attorneys prior todefendant's trial and that he did not reduce his notes to a typedreport because he was aware that defendant had "offered up adifferent alibi than what Mr. Lawrence was stating."

James Henson testified that he was defendant's publicdefender for his trial. Henson testified that although he was awarethat authorities in Montana had returned defendant's Texas Steerboots to defendant's mother, Henson did not ask for or examinethe boots. Henson also testified that although defendant informedhim prior to trial that defendant had purchased the bootsapproximately two months after Amy Schulz's murder, Hensondid not emphasize the boots at trial because he did not think theywere important to the case. Henson further testified that beforedefendant's trial, he was aware of information, including astatement by defendant's mother, that the tires on defendant's carwere changed after Amy Schulz's death, but Henson did notinvestigate these reports and did not make any arguments at trialconcerning the timing of the tires' installation. Henson alsotestified that he did not pursue a trial strategy of casting suspicionon William Willis, Amy's step-grandfather, because he hadreceived a report from the State indicating that the hair and fiberspecimens found at the crime scene were inconsistent withsamples obtained from Willis.

Defendant testified that between July and October 1987, hebought approximately 14 different used tires. He stated that hisfamily lived on a farm and frequently bought used tires for avariety of purposes. In August 1987, he replaced all four of histires at Ronald Lawrence's house, and used these tires when hedrove to Montana. Defendant also testified that in July of 1987, hetypically wore either tennis shoes or over-the-calf engineer boots.In August 1987, before he drove to Montana, he purchased a pairof Texas Steer boots at K mart. Defendant stated that he providedall of this information to his public defender before his trial andoffered to provide corroboration of it, such as his receipt for theboots, but the information was not used at trial.

The parties agreed to forgo testimony or oral argument on thesufficiency of the verdict form at sentencing and instead submitonly written briefs on that issue. The circuit court subsequentlydenied the post-conviction petition in all respects, ruling thatdefendant had failed to establish a substantial deprivation of hisconstitutional rights.

ANALYSIS

Defendant contends that the circuit court erred in dismissingthe post-conviction petition because his trial counsel wasineffective in failing to present evidence concerning the boot andtire impressions found at the crime scene. Defendant argues thattrial counsel should have procured and presented evidence thatdefendant did not come into possession of the relevant boots andtire until after the crime was committed.

Findings entered by a trial court after an evidentiary hearingon a post-conviction petition will be reversed on appeal only ifmanifestly erroneous. People v. Coleman, 183 Ill. 2d 366, 386(1998). In order to establish a constitutional claim of ineffectiveassistance of counsel, a defendant must first show that counselmade errors so serious that counsel was not functioning as thecounsel guaranteed by the Constitution. Strickland v. Washington,466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064(1984). Second, defendant must demonstrate a reasonableprobability that, but for counsel's unprofessional errors, the resultof the proceeding would have been different. Strickland, 466 U.S.at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

Testimony presented at the post-conviction hearing indicatedthat, prior to defendant's trial, defense counsel was aware ofevidence that defendant did not own a pair of Texas Steer boots atthe time of Amy Schulz's murder. Specifically, trial counseltestified at the evidentiary hearing that defendant informed himprior to trial that defendant had purchased his Texas Steer bootstwo months after the crime occurred. Counsel also testified that hewas aware that defendant's mother had the boots in her possessionat the time of trial, but that he did not request to examine them.Additionally, defendant's mother testified that at the time of themurder, defendant typically wore a different kind of boots.

The testimony at the post-conviction hearing also indicatedthat defendant's trial counsel was aware prior to trial of evidencethat defendant had changed the tires on his car after the time ofAmy Schulz's death but before defendant drove to Montana.Specifically, there was substantial testimony presented at thehearing that counsel learned of this information from threedifferent sources: defendant, defendant's mother, and RonaldLawrence. Counsel himself acknowledged at the hearing that hewas aware of such evidence, but failed to investigate it or presentit at trial.

We hold that trial counsel was ineffective in failing toinvestigate and present evidence concerning the boots and tire.Because the State's evidence at trial consisted primarily of avariety of items introduced to associate defendant with the crimescene, an attack on the suggested links between defendant and theboots and tire could have played a prominent role in the defense.Trial counsel testified at the evidentiary hearing that his main trialstrategy was to discredit the expert testimony purportedly tyingdefendant to the crime. In light of this strategy, it was incumbenton counsel to utilize available means of casting doubt on thephysical evidence which the State relied upon. Although counselsought to convince the jury that the hair and fiber evidenceintroduced by the State was not conclusive proof of defendant'sguilt, he failed to present the jury with evidence discrediting twoof the most salient and significant items in the State's case.Counsel's performance thus fell below a reasonable level ofassistance.

We also find that counsel's ineffective performance causedsubstantial prejudice to defendant. Although the State presentednumerous items of evidence associating defendant with the crime,none of them was singularly compelling. If counsel had succeededin raising questions as to whether the boots and tires owned bydefendant played any role in the crime committed against AmySchulz, there is a reasonable probability that the jury also wouldhave doubted at least some of the other physical evidence whichthe State attempted to link to the crime, and hence quite possiblymay have acquitted defendant.

CONCLUSION

For the above reasons, we conclude that defendant'sconvictions must be reversed. In making this determination, we areparticularly mindful of our decision in the direct appeal of thiscase. In that opinion, we held that the prosecution at trialimproperly overstated the strength of the fiber-comparisonevidence in its arguments to the jury. Sutherland, 155 Ill. 2d at 25.Nevertheless, we held that this error did not warrant reversalbecause of the substantial evidence linking defendant to the crime.Sutherland, 155 Ill. 2d at 25. The combination, however, of thisimproper prosecutorial argument and trial counsel's ineffectiveassistance now lead us to conclude that the original trial wassufficiently compromised by error as to vitiate our confidence inits fairness. Because we find the evidence at defendant's originaltrial sufficient to support conviction, a second trial will not bebarred by constitutional principles of double jeopardy. In soholding, however, we make no conclusion as to defendant's guiltthat will be binding on retrial. See People v. Placek, 184 Ill. 2d370, 390 (1998). In light of our disposition, we need not addressdefendant's remaining contentions on appeal.

The judgment of the circuit court is reversed, and the cause isremanded to the circuit court for retrial.

Reversed and remanded.

JUSTICE MILLER, dissenting:

The defendant raises a number of contentions in this post-conviction appeal, but the majority considers only two matters,which concern allegations that defense counsel was ineffective forfailing to present certain evidence at trial. The post-convictionjudge rejected these claims after an evidentiary hearing, and thosedeterminations should be upheld on review unless they arecontrary to the manifest weight of the evidence. People v.Coleman, 183 Ill. 2d 366, 385 (1998). On the record before us, Ido not believe that the defendant has met this standard, andtherefore I would affirm the denial of relief under these portionsof the defendant's post-conviction petition.

The defendant first argues that trial counsel was ineffective infailing to challenge the State's contention that he had a preferencefor the brand of boots whose prints were discovered at the crimescene. The trial evidence showed that the footprints were made bya particular brand, called the "Texas Steer," sold at K-mart stores.The defendant, at the time of his arrest in Montana, was inpossession of a pair of Texas Steer boots. Although the latter pairof boots did not make the prints found at the crime scene, theprosecution argued that the defendant's subsequent ownership ofa pair of Texas Steer boots evinced his preference for the brand.The defendant argues, and the majority agrees, that trial counselshould have presented evidence to show that the defendant waswearing boots of a different style and brand around the time of thecommission of these offenses.

Unlike the majority, I do not believe that counsel's failure topresent the proposed evidence was prejudicial to the defendantunder the standard expressed in Strickland v. Washington, 466U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). A defendantcomplaining of ineffective assistance of counsel must show boththat counsel's performance was deficient and that the deficiencyprejudiced the defendant. Strickland, 466 U.S. at 687, 80 L. Ed. 2dat 693, 104 S. Ct. at 2064. Establishing prejudice requires adefendant to show "that there is a reasonable probability that, butfor counsel's unprofessional errors, the result of the proceedingwould have been different. A reasonable probability is aprobability sufficient to undermine confidence in the outcome."Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at2068. Assuming, without deciding, that counsel was deficient inthis regard, I do not believe that the defendant has established thathe was prejudiced by the asserted error.

The relative insignificance of the footprint evidence isapparent from the brief notice it received in this court's opinion ondirect appeal. The court's opinion mentioned the footprintevidence only once, during a summary of the testimony presentedat trial. According to the opinion, the evidence showed thatfootprints were found on the victim's back and on the groundnearby, and that the two sets of prints were "similar in design."People v. Sutherland, 155 Ill. 2d 1, 7 (1992). Notably, insummarizing the trial evidence the opinion did not also mentionthe defendant's subsequent possession of boots of the same brandthat made the prints, or the prosecution's theory that the defendanthad a preference for boots of that brand. At no other time did theopinion refer to the footprint evidence, and even omitted it fromlater discussions of the strength of the evidence of guilt in thiscase. Sutherland, 155 Ill. 2d at 17-18, 25.

At trial the State presented strong evidence, apart from thatinvolving the footprints, connecting the defendant to the presentoffenses. As this court noted on direct review, two pubic hairsremoved from the victim's rectum were consistent in all respectswith those from the defendant, but were dissimilar to those of thevictim's family members and 24 other suspects. Gold-coloredfibers found on various articles of the victim's clothing wereconsistent in all respects with the carpeting in the defendant'svehicle, but were dissimilar to the carpet samples from the child'senvironment. Also, a foreign fiber found in the victim's shirt wasconsistent in every respect with fibers from the seat of thedefendant's car, but was dissimilar to sample fibers from thechild's environment. Other evidence showed that fibers found onthe front passenger side of the defendant's vehicle were consistentwith fibers from the victim's shirt and shorts. Dog hairs found onthe victim's clothing were consistent in all characteristics with astandard from the defendant's dog, and other evidence showed thatdog hairs could be found throughout the defendant's car. Finally,tire impressions found at the crime scene could have been made bythe defendant's car. Sutherland, 155 Ill. 2d at 17-18.

The absence from this court's prior opinion of any discussionof the footprint evidence, beyond an abbreviated reference to thematching prints found at the crime scene, illustrates well itsrelative lack of importance to the prosecution's case at trial. Here,the evidence showed only that footprints found at the scene couldhave been made by a Texas Steer brand boot, and that thedefendant was later found to be in possession of a pair of boots ofthat particular brand. Relying on this evidence, the prosecutorargued that the defendant had a preference for the brand and couldhave been wearing them when he committed the present offenses.Although there existed evidence that defense counsel could havepresented to counter the State's theory regarding the defendant'spreference for Texas Steer boots, I do not believe that counsel'sfailure to introduce this testimony was prejudicial. Because thefootprint evidence played only a minor role in the defendant'strial, and because the remaining evidence provided strong proof ofthe defendant's guilt, I would conclude that the defendant was notprejudiced by counsel's failure to challenge more vigorously theState's theory about his preferred footwear.

In a separate contention, the defendant argues that trialcounsel was ineffective for failing to present certain evidenceabout the tires on his car. At trial, the State introduced testimonyshowing that tire impressions found at the crime scene were madeby either a Cooper "Falls Persuader" or a Cooper "Dean Polaris"tire, and that the tire found on the right front wheel of thedefendant's car at the time of the defendant's arrest several monthslater was a Cooper Falls Persuader tire. Investigators were not ableto determine whether the defendant's particular tire had made theimpressions.

In the present appeal, the majority agrees with the defendantthat trial counsel was ineffective for failing to introduce evidencethat the defendant changed the tires on his automobile perhapsonce, and possibly twice, in the period between the commission ofthe present offenses and the defendant's subsequent apprehensionin Montana. The evidence presented by the defendant at the post-conviction hearing was contradicted in several important respects,however, and I do not believe that counsel was ineffective forfailing to discover and introduce the testimony the defendant nowurges.

The evidence in question was introduced at the post-conviction hearing through the testimony of Ronald Lawrence, afriend of the defendant. Lawrence testified that he changed anumber of tires on the defendant's car during the period after thecommission of the offenses involved here and before the defendantleft Illinois for Montana. Lawrence also stated that he hadconveyed this same information to defense counsel and to thepolice some time before trial. In the original proceedings in thiscase, Lawrence had testified in behalf of the defendant only at thecapital sentencing hearing.

Officer David Leigh of the Illinois State Police testified thathe questioned Ronald Lawrence in October 1987, four monthsafter the present offenses were committed. At that time, Lawrencedid not mention changing any tires for the defendant. Leighquestioned Lawrence a number of years later, in 1996, afterLawrence had provided an affidavit stating that he had changed thedefendant's tires. On this occasion, Lawrence said that he hadmentioned the changing of the tires to defense counsel, a defenseinvestigator, and a captain with the Jefferson County sheriff'sdepartment. Leigh believed that Lawrence was being prompted byhis wife during the interview.

The defendant's trial lawyer, James Henson, testified at theevidentiary hearing that he had one note suggesting that defendantmight have purchased tires from someone. Henson denied havingany specific evidence to support this, however. A defenseinvestigator, Sherry Gutzler, testified that she did not recall thatLawrence had ever told her that he had changed tires for thedefendant. She stated that if he had, she would have attempted tofollow up on that lead, regarding it as important.

At the conclusion of the evidentiary hearing, the post-conviction judge rejected the defendant's claims that counsel wasineffective, including the allegation that counsel should haveintroduced evidence-specifically, Lawrence's testimony-to showthat the defendant had his tires changed at some point after thecommission of the present crimes and before his departure forMontana. Lawrence's testimony did not go unchallenged, and, onthis basis, the post-conviction judge could well have concludedthat there was reason to doubt the utility of the witness's testimonyat the guilt stage of the proceedings. In addition, there remainedstrong evidence of the defendant's guilt. As noted earlier, a post-conviction judge's determinations made after an evidentiaryhearing will be reversed only if they are contrary to the manifestweight of the evidence. People v. Coleman, 183 Ill. 2d 366, 385(1998). I do not see any reason to disturb the post-convictioncourt's decision on this issue.

Rather than grant the defendant relief on the two questionsdiscussed by the majority, I would uphold those portions of thepost-conviction court's judgment and would consider in thisappeal the remaining contentions raised by the defendant but notdiscussed in the present opinion.