People v. Todd
Case Date: 12/31/1969
Court: Supreme Court
Docket No: 80124
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NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the following slip opinion is being made available prior to the Court's final action in this matter, it cannot be considered the final decision of the Court. The official copy of the following opinion will be published by the Supreme Court's Reporter of Decisions in the Official Reports advance sheets following final action by the Court. Docket No. 80124--Agenda 3--May 1997. THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBERT TODD, Appellant. Opinion filed September 25, 1997. JUSTICE MILLER delivered the opinion of the court: The defendant, Robert Todd, brings this appeal from an order of the circuit court of Clinton County denying his amended petition for post-conviction relief. Because the defendant received the death sentence for the underlying first degree murder conviction, the present appeal lies directly to this court. 134 Ill. 2d R. 651(a). Following a bench trial in the circuit court of Clinton County, the defendant was convicted of the first degree murder and attempted aggravated criminal sexual assault of Sandy Shelton. The trial judge, in a bench proceeding, sentenced the defendant to death for the first degree murder conviction. On appeal, this court affirmed the defendant's convictions and death sentence. People v. Todd, 154 Ill. 2d 57 (1992). The United States Supreme Court denied the defendant's petition for a writ of certiorari. Todd v. Illinois, 510 U.S. 944, 126 L. Ed. 2d 331, 114 S. Ct. 381 (1993). The defendant instituted the present action on May 2, 1994, by filing a pro se petition for post- conviction relief in the circuit court of Clinton County. Counsel was later appointed to assist the defendant, and the defendant subsequently filed an amended post- conviction petition, raising a number of allegations of constitutional error in the original proceedings. The State moved to dismiss the petition without an evidentiary hearing. The circuit judge granted the defendant an evidentiary hearing on two of the issues raised in the amended post-conviction petition; the judge believed that the remaining claims either were waived or had been determined by this court on direct appeal. Following the evidentiary hearing, the circuit judge denied the defendant's amended petition. For the reasons set forth below, we affirm the judgment of the circuit court. The evidence of the defendant's offenses was described in our opinion on direct appeal, and only a brief summary of the trial testimony is necessary here. The defendant and the victim were seen together at two bars, one in Carlyle and one in Beckemeyer, late on July 11, 1989, and early the following morning. At the second bar, in Beckemeyer, a bartender provided the defendant with a marker so that he could write on the wall, a practice customers were encouraged to take part in. There, the victim purchased a six-pack of beer, and she and the defendant then left together. Scott Nielson, who had been a cellmate with the defendant in the Clinton County jail, testified to a statement made to him by the defendant about the present offenses. According to Nielson, the defendant said that he met a woman in a bar, where they had a beer, and that they then went to another bar, where they danced and had a couple of drinks. The defendant signed his name under the woman's name on the wall of one of the bars. They later bought some beer and went to the woman's house, in Beckemeyer. The defendant told Nielson that the woman put a Bob Seger tape in a tape player. After the two drank for awhile, the defendant made advances toward the woman, and she rebuffed him. The defendant then got up, used the bathroom, and got another can of beer from the kitchen. The defendant returned and made more overtures, which the woman again declined, pushing him away. According to Nielson, the defendant said that he then slapped the woman and blacked out. His next memory was of being at a convenience store later that morning. Two persons saw the defendant's car between 2:30 and 3 a.m. on July 12 at the building in Carlyle where the defendant was renting an apartment. The car drove up to the building quickly, went over the curb, and stopped on the grass. The driver, whom the witnesses were unable to identify, made several trips inside the building, returning to his car with armloads of things, and then drove off. Other testimony showed that the Pana police department received a telephone call at 8:25 a.m. on July 12 reporting that a woman who drove a Cordoba automobile had been murdered in Beckemeyer. An employee at a convenience store in Pana testified that the defendant came into the store around 8:15 and asked for change so that he could make a telephone call. A pay phone was located outside the store, and the police station was across the street. The victim's daughter discovered her mother's body around 11 a.m. on July 12. The victim was lying on the floor and was naked. A shirt was wrapped tightly around her neck. The victim's daughter noticed a strong odor of natural gas, and found that the burners on the gas stove were turned on. Candles were burning in several rooms of the house. The cause of the victim's death was later determined to be strangulation; she had also been stabbed five times in the side. Vegetable oil had been spread on the victim, and drops of wax had been placed over that. One hundred dollars in cash was found in the pocket of the victim's jeans, which were lying near her body. Tests for the presence of semen and sperm were negative. In addition, a number of hairs were found on the victim, but none of them could be linked to the defendant; most of the hairs were from the victim herself. Other forensic testimony, however, established that the defendant's fingerprint and bare footprint and several shoeprints were found in the victim's house. Also, wax consistent with that found on the victim's body was discovered in the defendant's shower. In addition, a Bob Seger tape was later found in the victim's tape player, corroborating Nielson's account of the defendant's statement to him. The defendant's name was found under the victim's name on the wall of the bar where the defendant had requested a marker and where the defendant and the victim had been seen together. Also, the victim drove a Cordoba, as the caller to the Pana police department had stated. At the conclusion of the trial, the judge found the defendant guilty of first degree murder and attempted aggravated criminal sexual assault. A capital sentencing hearing was subsequently conducted. At the hearing, the State established the defendant's eligibility for the death penalty on the basis of two aggravating circumstances: first degree murder in the course of robbery, and first degree murder in the course of attempted aggravated criminal sexual assault. At the second stage of the sentencing hearing, the State presented aggravating evidence from several witnesses. The defendant's former wife testified that the defendant had a bad temper and was occasionally violent. A former employer testified that the defendant was fired from his job at a facility for mentally retarded persons because he had used excessive force with two patients. A young woman described her encounter with the defendant a day before the offenses, when the defendant, whom she had not previously met, stopped to help her with her car and then attempted to touch and kiss her. The woman also testified that she declined the defendant's invitation to go to his apartment. The defense presented mitigating testimony from a number of the defendant's family members and friends. We will discuss the evidence introduced at the sentencing hearing in greater detail later in this opinion. I The Post-Conviction Hearing Act (725 ILCS 5/122--1 through 122--7 (West 1994)) permits an offender to challenge a conviction or sentence for violations of federal or state constitutional rights. People v. Sanchez, 169 Ill. 2d 472, 480 (1996); People v. Thompkins, 161 Ill. 2d 148, 157 (1994). An action for post-conviction relief is a collateral proceeding, not an appeal from the underlying criminal judgment. People v. Brisbon, 164 Ill. 2d 236, 242 (1995); People v. Free, 122 Ill. 2d 367, 377 (1988). "The function of a post-conviction proceeding is not to relitigate the defendant's guilt or innocence but to determine whether he was denied constitutional rights. [Citation.]" People v. Shaw, 49 Ill. 2d 309, 311 (1971). To obtain post- conviction relief, a defendant must establish a substantial deprivation of federal or state constitutional rights in the proceedings that produced the judgment being challenged. 725 ILCS 5/122--1 (West 1994); People v. Guest, 166 Ill. 2d 381, 389 (1995). Considerations of res judicata and waiver limit the scope of post-conviction review "to constitutional matters which have not been, and could not have been, previously adjudicated." People v. Winsett, 153 Ill. 2d 335, 346 (1992). Accordingly, rulings on issues that were previously raised at trial or on direct appeal are res judicata, and issues that could have been raised in the earlier proceedings, but were not, will normally be deemed waived. People v. Coleman, 168 Ill. 2d 509, 522 (1995); People v. Ruiz, 132 Ill. 2d 1, 9 (1989). Principles of fundamental fairness, however, will support relaxation of the res judicata and waiver doctrines when appropriate. People v. Neal, 142 Ill. 2d 140, 146 (1990). With these considerations in mind, we now turn to the issues raised by the defendant in this appeal from the circuit court's denial of post-conviction relief. The defendant first argues that trial counsel was ineffective for giving him incorrect advice about waiving a jury for trial and sentencing. In the proceedings below, the circuit judge rejected these claims after an evidentiary hearing. At the hearing, the parties presented conflicting evidence on this portion of the defendant's post-conviction petition. The defendant testified that on May 9, 1990, he was summoned to the Clinton County jail from the Washington County jail, in Nashville, where he had been staying. Early that afternoon, he met with his attorney, Maurice Killion, in a judge's chambers in the Clinton County courthouse. The defendant said that the meeting was brief, lasting only a minute to a minute and a half. According to the defendant, Killion said that the defendant would have to testify if he chose a jury trial, and that he should waive a jury because counsel had not been allowed sufficient time to prepare for a jury trial and because a jury would not believe Killion, for he was black. In addition, Killion said that the defendant would receive a sentence of 35 years' imprisonment if he agreed to waive a jury but that he would be executed within 30 days if a jury found him guilty. The defense presented other witnesses at the evidentiary hearing who described the defendant's preparations for a jury trial. A minister who had regularly visited the defendant in jail said that he gave the defendant a haircut on the morning of May 9, 1990, the day when the waivers were accepted, and that the defendant did not say then that he would not have a jury trial. The defendant's mother, Sally Todd, who visited the defendant frequently while he was jail awaiting trial, testified that he never said, prior to May 9, that he was going to waive a jury. The defendant's trial attorney, Maurice Killion, testified at the evidentiary hearing that he and the defendant discussed the jury waivers a number of times prior to May 9, 1990, the day when the waivers were executed. According to Killion, he met with the defendant in a judge's chambers in the courthouse for an hour to an hour and a half early in the afternoon of May 9. Killion testified that he recommended that the defendant waive a jury because a jury would want to hear the defendant testify, yet the defendant was reluctant to do so; because photographs from the crime scene were gruesome and would be upsetting to jurors; and because the trial judge might be lenient in the wake of a jury waiver. Killion denied telling the defendant to waive a jury for any of the reasons mentioned by the defendant in his testimony at the evidentiary hearing. Killion was impeached at the hearing with his testimony from a deposition, in which he said repeatedly that he was unable to remember what he and the defendant had discussed regarding the jury waiver. At the post- conviction hearing, Killion explained that he was deposed after only several hours' sleep the night before and that he had not known in advance what particular aspects of the case would be the focus of the deposition. Assistant State's Attorney Robert Matoush testified at the evidentiary hearing that on May 9, 1990, Killion and the defendant met together in a room in the courthouse for one or two hours and that the defendant entered his jury waivers later that afternoon. Matoush denied that the defendant was ever offered a 35-year prison term in exchange for the jury waivers. According to Matoush, the prosecution offered only to forgo seeking the death penalty if the defendant pleaded guilty to first degree murder. At the conclusion of the evidentiary hearing, the judge rejected the defendant's challenge to the jury waivers. The judge concluded that the defendant and trial counsel were together for a period of time considerably longer than the brief period alleged by the defendant. The judge believed that the oral admonitions given to the defendant at the time of the jury waivers were thorough, and the judge found nothing in the record to show a lack of knowledge or an absence of voluntariness on the part of the defendant in making the waivers. The judge also noted that the defendant did not voice any complaints at the sentencing hearing, notwithstanding his assertion that he had been promised a 35-year sentence. The judge also believed that trial counsel's reasons for preferring a bench trial were not unreasonable, and the judge found that it was not surprising that Killion's recollection would have improved with the passage of time, and through subsequent efforts at recalling these events. A defendant's right to a jury at trial is guaranteed by both the federal and state constitutions (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, sec. 8, 13); the right to a jury at a capital sentencing hearing is statutory in origin (Ill. Rev. Stat. 1989, ch. 38, par. 9--1(d); People v. Maxwell, 148 Ill. 2d 116, 142 (1992); People v. Erickson, 117 Ill. 2d 271, 289 (1987)). Waiver of either right must be knowing, intelligent, and voluntary. People v. Strickland, 154 Ill. 2d 489, 517 (1992); People v. Buggs, 112 Ill. 2d 284, 292-93 (1986); People v. Albanese, 104 Ill. 2d 504, 534-36 (1984). There is no prescribed formula that must be used by a judge before accepting a defendant's jury waiver, whether for trial (People v. Smith, 106 Ill. 2d 327, 334 (1985); People v. Frey, 103 Ill. 2d 327, 332 (1984)) or for a death penalty hearing (Buggs, 112 Ill. 2d at 292; Albanese, 104 Ill. 2d at 535-36). The judge hearing the defendant's post- conviction petition rejected the defendant's allegations that he was improperly induced to waive juries for both trial and sentencing. This finding is not against the manifest weight of the evidence. The post-conviction judge found that the meeting between the defendant and trial counsel on May 9, prior to the jury waivers, lasted considerably longer than the brief period claimed by the defendant. In addition, the judge found that trial counsel's reasons for recommending the jury waivers were not unreasonable. Any doubt whether the defendant's jury waivers were knowing and voluntary is dispelled by a consideration of the admonitions given to the defendant by the judge who accepted the waivers. On direct appeal, this court rejected two challenges to the comprehensiveness of the admonitions used to advise the defendant of his right to a jury for the capital sentencing hearing. People v. Todd, 154 Ill. 2d 57, 72 (1992). The lengthy series of admonitions is reproduced below: "THE COURT: Mr. Todd, I have been handed a document entitled Waiver of Jury and where you waive your right to trial by jury in each of the 5 Bills of Indictment and consent to then a trial by the Court. Appears to be signed by Robert B. Todd. Did you sign this here today? ROBERT TODD, DEFENDANT: Yes, sir. THE COURT: Any threats or use of force used against you to get you to sign this? ROBERT TODD, DEFENDANT: No, sir. THE COURT: Any promises made to you to get you to sign this? ROBERT TODD, DEFENDANT: No, sir. THE COURT: You understand what this is doing? ROBERT TODD, DEFENDANT: Yes, sir. THE COURT: What you were doing before with the jury trial, the State had to convince 12 people beyond a reasonable doubt that you were guilty of the charges, and now all they have got to do is convince the Judge. Do you understand that? ROBERT TODD, DEFENDANT: Yes, sir. THE COURT: That's what you want to do? ROBERT TODD, DEFENDANT: Yes, sir. THE COURT: Let the record show the Defendant knowingly and voluntarily waives trial by jury. Need to contact Judge Huber as to date for Bench Trial? MR. MIDDENDORF [State's Attorney]: Your honor, we are assuming, at this point, that the trial would remain set for the 14th of May. I will contact Judge Huber today with Mr. Killion [defense counsel] and see whether or not Judge Huber elects to make any changes. THE COURT: I will just set it for Bench Trial then at this time for May 14th. So your case will be set for trial before the Court on May 14th at 9 o'clock a.m. Mr. Todd, I have been provided with a document entitled Waiver of Trial by Jury for Sentencing Hearing. This appears to bear the signature of Robert Todd. Did you sign this document? ROBERT TODD, DEFENDANT: Yes, sir. THE COURT: Any threats or use of force used against you to get you to sign this? ROBERT TODD, DEFENDANT: No, sir. THE COURT: Any promises made to you? ROBERT TODD, DEFENDANT: No, sir. THE COURT: I am going to ask you again back on the waiver of the trial, the jury trial and as far as this waiver, did you execute these after fully consulting with your lawyer? ROBERT TODD, DEFENDANT: Yes, sir. THE COURT: You understand, that the- -I indicated the State is requesting the death penalty be imposed in this case? ROBERT TODD, DEFENDANT: Yes, sir. THE COURT: And so you are entitled to a jury on that, and there would have to be unanimous finding. All 12 would have to find that one of the factors existed is the factor [sic]. Basically the State's proceeding on that. There was another felony involved? MR. MIDDENDORF: Yes, sir. There have been 2 separate theories proposed. One is that the crime of Attempt Criminal Sexual Assault and the other being--excuse me, of Robbery. Charged in separate counts of the Indictment. THE COURT: So they would have to present that and have a unanimous finding of those 12 jurors of one of--one or more of those factors existed. Now then, without a jury it will just be up to a judge to decide that. You understand that? ROBERT TODD, DEFENDANT: Yes, sir. THE COURT: And then if that jury unanimously found that some of those factors existed, then they would consider matters in aggravation and mitigation which would be prior history, significant history of prior criminal activity. This is in mitigation, in your favor. Murder was committed when you were under the influence of extreme mental or emotional disturbance. Murdered individual was participant in homicidal conduct, consented to it. That you acted on compulsion or threat of menace or imminent infliction of death or great bodily harm. That you were not personally present during commission of the act or acts that caused the death. So now, in connection with those factors, they would have to again unanimously decide to impose the death penalty. So here you'd have 12 people that they have all got to agree on, and you are giving up that. Do you understand that? ROBERT TODD, DEFENDANT: Yes, sir. THE COURT: So basically, then it's your desire that just one person, a judge, decides your guilt or innocence. One person, just one judge decides whether or not the factors, aggravating factors, exist such that the death penalty could be imposed? If that's so found, then only one person, just one judge, would decide whether or not there were any mitigating factors or whether the death sentence could be imposed. So just one person is going to decide your entire facts. Do you understand? ROBERT TODD, DEFENDANT: Yes, sir. THE COURT: As opposed to 12. Do you understand that? ROBERT TODD, DEFENDANT: Yes, sir. THE COURT: You have no questions at all? ROBERT TODD, DEFENDANT: No, sir. THE COURT: No qualms or hesitations? ROBERT TODD, DEFENDANT: No, sir. THE COURT: You are telling the Court today this is what you freely and voluntarily--this is what you want to do? ROBERT TODD, DEFENDANT: Yes, sir. THE COURT: You don't need any more time to talk with your lawyer? ROBERT TODD, DEFENDANT: No, sir. THE COURT: Very well. Let the record further show that the Defendant, after being interrogated, knowingly and voluntarily executes a Waiver of Trial by Jury for the Sentencing Hearing. Such a waiver will be so entered. Do you have any questions at all? ROBERT TODD, DEFENDANT: No, sir." We believe that the preceding admonitions were sufficient to insure that the defendant's jury waivers were knowing, intelligent, and voluntary. Notably, in responding to the judge's questions, the defendant at no time referred to the promise of a 35-year sentence, the threat that he would have to testify if he elected to be tried and sentenced by a jury, or the other comments allegedly made by trial counsel to induce him to waive juries for trial and sentencing. The judge below rejected the defendant's allegations, and we conclude that defense counsel was not ineffective in his representation of the defendant regarding this aspect of the proceedings. The defendant next challenges a provision in the form he used to waive a jury for sentencing. Paragraph nine of the waiver form stated: "My attorney has explained to me, and I fully understand, that if the court accepts my waiver of jury trial for sentencing, that I cannot thereafter at any time, change my mind, and I will be forever barred from requesting that a jury determine sentencing in this case if I am convicted of the offense of first degree murder." The defendant argues that the preceding paragraph incorrectly suggested that his decision to waive a jury would be irrevocable. We note that a defendant entering a jury waiver may later file a motion seeking to withdraw the waiver; the decision whether to grant or deny the motion is generally reserved to the trial court's discretion. People v. Hall, 114 Ill. 2d 376, 414 (1986). Trial counsel had prepared the waiver form used in this case, and the defendant contends that trial counsel rendered ineffective assistance by including the provision in the form. The State responds that this particular attack on the jury waiver comes too late because the issue is apparent from the record and could have been raised by the defendant on appeal from his convictions and sentence. On direct appeal, the defendant did raise two challenges to the comprehensiveness of the admonitions given to him prior to his waiver of a sentencing jury. As we have stated, this court rejected the defendant's arguments, finding no error in the court's admonitions to the defendant. People v. Todd, 154 Ill. 2d 57, 72 (1992). Clearly, the defendant at that time could have also challenged the presence of paragraph nine in the waiver form, which was a part of the record in the case. The defendant makes the additional argument, however, that appellate counsel was ineffective for failing to challenge on direct appeal the competency of trial counsel. Because this is the defendant's first opportunity to challenge appellate counsel's performance, we find it necessary to address the merits of this issue. See People v. Tenner, 175 Ill. 2d 372, 386 (1997). We do not believe that the infirmity alleged in paragraph nine denied the defendant his right to competent counsel. The constitutional guarantee to the assistance of counsel (U.S. Const., amends. VI, XIV) encompasses the right to the effective assistance of counsel (Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 343-44, 100 S. Ct. 1708, 1716 (1980)), both at trial and on a first appeal as of right (Evitts v. Lucey, 469 U.S. 387, 396-97, 83 L. Ed. 2d 821, 830-31, 105 S. Ct. 830, 836-37 (1985). In Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1986), the Supreme Court articulated a two-part test for resolving claims of ineffective assistance of counsel. To prevail on a claim of ineffective assistance, a defendant must establish both that counsel's performance was deficient and that the deficiency was prejudicial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. To demonstrate prejudice resulting from an asserted deficiency in counsel's performance, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Assuming that trial counsel was deficient for including this provision in the jury waiver, the relevant question under the prejudice component of the Strickland standard is "whether there exists a reasonable likelihood that the defendant would not have waived his jury right in the absence of the alleged error." People v. Maxwell, 148 Ill. 2d 116, 142 (1992). We conclude that inclusion of the challenged paragraph could not have affected the defendant's election to waive a sentencing jury in this case. It must be recognized that the provision in paragraph nine would have advised the reader that the consequences of a jury waiver were more onerous than they actually are. By suggesting that withdrawal of the waiver was always and forever barred, paragraph nine of the form imposed a disincentive to the decision to surrender the right to a jury. Thus, if the provision had had any effect on the reader, it would have been to make waiver of the right less likely, not more likely. The defendant, however, persisted in his desire to waive a jury for sentencing, even in the face of the statement that his decision would be irrevocable. Given these circumstances, we must therefore conclude that paragraph nine of the waiver form did not affect the defendant's decision to give up the right to a jury, and this claim of ineffective assistance must therefore fail. The defendant also briefly argues that the written waiver was defective because it did not specifically refer to the eligibility stage of the sentencing hearing. The defendant notes that trial counsel in his deposition and at the hearing was somewhat vague about when that stage occurred, at one point saying that it was when the grand jury indicted the defendant for a capital offense; counsel also correctly stated that it occurred after a finding of guilt in a capital case. Although this issue could have been raised on direct appeal, we will consider the claim on its merits, for the defendant makes the additional assertion that appellate counsel was ineffective for failing to challenge trial counsel's representation. We do not believe that the written waiver was required to mention specifically the eligibility stage of the sentencing hearing. We note that the death penalty statute refers to the waiver of a jury for the separate sentencing proceeding, without speaking of separate waivers for the two stages of the hearing. See Ill. Rev. Stat. 1989, ch. 38, par. 9--1(d). The admonitions provided by the judge who accepted the defendant's waivers sufficiently explained the process of capital sentencing, and we find no infirmity in the waiver on this ground. The defendant, in his final argument pertaining to the jury waiver, contends that he later informed counsel that he wanted to withdraw the waivers but that his attorney refused to do so, telling him that the waivers were irrevocable. The defendant contends that counsel was ineffective for giving him that advice. The sole reason assigned by the defendant for his desire to withdraw the waivers is that he did not trust the trial judge in this case. The defendant's statement was contradicted by trial counsel, who, at the hearing on the post-conviction petition, denied that the defendant sought to withdraw the jury waivers. Killion further testified that if the defendant had asked him to withdraw the jury waivers, he would have filed a motion to do so. In denying the defendant's post-conviction petition, the judge below did not specifically address this contention, though apparently he rejected the defendant's testimony on this point. Assuming that the defendant wished to withdraw the jury waivers, we do not consider it likely that the trial judge would have granted the motion. "The question of whether a jury waiver may be withdrawn rests within the discretion of the trial court unless the circumstances indicate the defendant was unaware of the consequences of the waiver." People v. Hall, 114 Ill. 2d 376, 414 (1986). The only reason assigned for the defendant's change of heart is his assertion that he did not trust the trial judge. We agree with the State that it is unlikely that the trial judge would have allowed a motion to withdraw the waiver on that ground. Counsel's failure to file the requisite motion therefore could not have been prejudicial to the defendant, and we must therefore reject the defendant's contention that trial counsel was ineffective for not moving to withdraw the jury waivers. II The defendant next argues that trial counsel was ineffective for not investigating and presenting additional mitigating evidence that was available at the time of the sentencing hearing. In support of this contention the defendant submitted, as part of his amended post-conviction petition, a report from a psychologist who had examined the defendant, a report from a mitigation specialist who had conducted an investigation into the defendant's personal history, and affidavits from some 28 family members, neighbors, and friends offering mitigating evidence. Both the psychologist and the mitigation specialist testified at the post-conviction hearing below. Before addressing the merits of this contention, we will review the evidence presented by defense counsel at the capital sentencing hearing and the evidence now offered by the defendant in support of his ineffective-assistance claim. At the defendant's capital sentencing hearing, defense counsel introduced mitigating testimony from a variety of witnesses. A mitigation specialist, Arlene Messner Peters, had conducted an investigation of the defendant's personal history, and she testified at the sentencing hearing, summarizing her findings. Also, her report on the defendant was admitted into evidence. At the sentencing hearing, Peters testified that the defendant's mother was a strict disciplinarian and would often strike the defendant. On one occasion, she threw a knife at the defendant but missed him, hitting an aquarium instead. On several occasions, the mother would become angry if the defendant and his two younger sisters had not cleaned up dirty dishes by the time she returned home; their mother would then throw the food and dishes on the floor and order the children to clean up the mess. The defendant stuttered as a young child and was often picked on by other children as a result. He also did poorly in school. The family's house was small and cramped, and the defendant's sleeping area was in the kitchen. The defendant was particularly close to his sister Laurie, who is several years younger than the defendant. Messner further related that, after graduating from high school, the defendant attended a Bible college for a year and worked in a variety of jobs. Later, he joined the army, serving for 1 |