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 circuit

court denied the defendant’s amended petition without an

evidentiary hearing. Because the defendant received the death

penalty for his underlying murder conviction, the present appeal

lies directly to this court. 134 Ill. 2d R. 651(a).

	In 1981 the defendant was convicted of murder and armed

robbery and was sentenced to death for the murder conviction. The

offenses occurred when the defendant shot and killed the cashier

at a small store in Chicago during a robbery. On direct appeal, this

court affirmed the defendant’s convictions and death sentence.

People v. King, 109 Ill. 2d 514 (1986). The United States Supreme Court denied the defendant’s petition for a writ of certiorari. King v. 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-conviction relief in the circuit court of Cook County. Counsel was appointed

to represent the defendant in the proceedings. After a period of

delay, the defendant received the appointment of new counsel, who

later filed an amended post-conviction petition. Another period of

delay ensued, and a different lawyer was then appointed to

represent the defendant in the present proceedings. The circuit

court later granted the State’s motion for dismissal of the

defendant’s amended post-conviction petition. The defendant

brings this appeal from the order of the circuit court dismissing the

amended petition. 134 Ill. 2d R. 651(a).

	The Post-Conviction Hearing Act (725 ILCS 5/122–1 through

122–7 (West 1996)) provides a means by which a defendant may

challenge his conviction or sentence for violations of federal or

state constitutional rights. People v. Tenner, 175 Ill. 2d 372, 377 (1997). An action seeking post-conviction relief is a collateral

proceeding, not an appeal from the underlying judgment. People v. Evans, 186 Ill. 2d 83, 89 (1999); People v. Mahaffey, 165 Ill. 2d 445, 452 (1995). To be entitled to post-conviction relief, a

defendant must establish a substantial deprivation of federal or

state constitutional rights in the proceedings that resulted in the

conviction or sentence being challenged. People v. Morgan, 187 Ill. 2d 500, 528 (1999). 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). As a general matter, then, issues that were raised on appeal from the

underlying judgment of conviction, or that could have been raised

but were not, will not be considered in a post-conviction

proceeding. People v. West, 187 Ill. 2d 418, 425 (1999); People v. Coleman, 168 Ill. 2d 509, 522 (1995). Guided by principles of fundamental fairness, however, a court will relax the customary

doctrines of waiver and res judicata when appropriate. People v. Neal, 142 Ill. 2d 140, 146 (1990).

	The defendant raised numerous claims in the post-conviction

proceedings below; defense counsel has culled through these

matters and has selected five questions for our consideration here.

The defendant first argues that the post-conviction judge erred in

refusing to allow counsel to file an addendum to the amended post-

conviction petition. The defendant'’s second set of lawyers had

submitted an amended petition, omitting some issues originally

raised by the defendant in the pro se petition while adding several other issues. The addendum drafted by the defendant'’s new lawyer

sought to reintroduce issues that had been contained in the

defendant'’s original, pro se petition but had been left out of the amended petition.

	It was well within the post-conviction court'’s discretion to

decide whether or not to grant leave to counsel to file the

addendum to the amended post-conviction petition. See People v. Sanchez, 169 Ill. 2d 472, 502-03 (1996) (denial of motion to file additional documentation in support of post-conviction petition;

motion made several weeks after parties presented arguments on

State'’s motion to dismiss petition). We recognize that the

defendant'’s current lawyer came into the case at a relatively late

stage in the proceedings below, and that she is the third lawyer or set of lawyers to represent the defendant in this matter. The post-

conviction court was concerned, however, that allowing counsel to

file the addendum would only add further delay to these already

lengthy proceedings. Counsel filed the motion to submit the

addendum two years after the amended petition was filed and one

year after the motion to dismiss was filed. On this record, we

cannot say that the post-conviction judge abused his discretion in

declining to permit counsel to file the addendum to the amended

post-conviction petition.

	The defendant next raises an issue relating to his fitness at the

post-conviction proceedings. The defendant argues that the post-

conviction court erred in dismissing the amended post-conviction

petition without having conducted a hearing on the defendant'’s

fitness or having found the defendant competent to assist counsel.

In an order entered May 14, 1993, the circuit court granted the

defendant'’s motion for a stay of the proceedings pending a

determination of the defendant'’s mental status and a psychiatric

examination of the defendant. The record does not contain any

indication that the court later found the defendant fit in the matter,

and the defendant now argues that he was denied both due process

and the reasonable assistance of counsel in the post-conviction

proceedings because there was no formal judicial determination of

his fitness. The defendant further contends that, in the absence of

a fitness examination and a judicial determination of fitness, the

prejudicial effect of the court'’s denial of leave to file the addendum

to the amended post-conviction petition was manifest; the

defendant asserts that he might not have been able to assist his

second set of lawyers in the preparation of the amended petition.

	The record, however, shows that the examination ordered by

the court was conducted, and that the psychiatrist who examined

the defendant found him to be fit. While this case was pending

before this court, we allowed a motion by the State to supplement

the record with a copy of the report made by a psychiatrist at

Pontiac Correctional Center, where the defendant was

incarcerated. In the report, dated August 21, 1993, the examining

psychiatrist concluded that the defendant was fit and competent.

Although there is nothing of record to show whether or in what

manner the post-conviction court disposed of this question, we believe that the report provides persuasive evidence of the

defendant'’s fitness. Too, there was no showing before the post-

conviction court, in denying counsel'’s motion to file the addendum,

that the defendant had been unable to assist counsel in the

preparation of the amended petition. Together, these circumstances

demonstrate to us that the omission of a fitness order from the

record fails to suggest either that the defendant was denied due

process or that he was impeded in the assistance he could provide

to counsel.

	We note, moreover, that the defendant'’s current lawyer

apparently did not perceive any problem with the defendant'’s level

of functioning during the period she represented him in the

proceedings below; significantly, counsel raised no question on her

own regarding the defendant'’s competency, and, as she states in

her brief, she was not aware of the prior request for a fitness

hearing until she reviewed the record while preparing for this

appeal. As we explain later in this opinion, the cause must be

remanded to the circuit court for further proceeding on other

issues; if counsel believes that there then exists a further question

regarding the defendant'’s fitness, counsel is free to raise the

question at that time.

	The defendant next argues that the cause must be remanded

for an evidentiary hearing on his contention challenging the State'’s

use of peremptory challenges to exclude blacks during jury

selection. The defendant'’s trial took place in 1981. This court

issued its opinion in the case in January 1986, and rehearing was

denied in April 1986. The United States Supreme Court decided

Batson 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 for certiorari came before that court for consideration. The present case was therefore pending on direct review when Batson was decided, and Batson would be applicable to this case. See Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987).

	In support of this contention, the defendant relies on an

affidavit that was prepared by one of his trial lawyers. In the

affidavit, dated August 12, 1985, some four years after trial,

counsel stated that the defendant'’s jury consisted of 11 whites and one black, that the prosecution exercised seven peremptory

challenges in the case, and that all seven challenges used by the

State were to black jurors. The affidavit does not describe the

ethnicity of the alternate jurors or the composition of the jury pool.

	The substantive issue has been waived by counsel'’s failure to

raise an appropriate objection during jury selection, either under

the reasoning later adopted in Batson, or under the then-existing law expressed in Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965). Both Batson and Swain required the defense to make timely objections to the prosecutor'’s exclusion of

jurors (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 and

establish a record on which the issue could be resolved.

	The defendant makes the further argument, however, that trial

counsel and appellate counsel were ineffective for failing to

preserve the issue for purposes of appeal. To establish ineffective

assistance of counsel, the defendant must show both a deficiency

in counsel'’s performance and prejudice resulting from that

deficiency. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). We must reject this

contention as well. First, appellate counsel cannot be faulted for

failing to argue on appeal an issue that trial counsel had already

waived. Richardson, 189 Ill. 2d at 412-13. Moreover, on this record, trial counsel also cannot be deemed ineffective for failing

to preserve the issue. Under the law in effect at the time of

counsel'’s affidavit, it was the defendant'’s burden to show the

systematic 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 affidavit

pertains only to the present proceeding, and does not provide any

basis on which one could conclude that the prosecution had acted

in violation of Swain. Nor do we believe that trial counsel may be considered ineffective for failing to anticipate the ruling in Batson. Conduct of a lawyer will not be deemed deficient for his or her failure to make an argument that has no basis in the law. See

People v. Hobley, 159 Ill. 2d 272, 305 (1994).

	The defendant notes, however, that counsel on direct appeal

had taken an active role in challenging race-based jury selection

processes in a number of cases, and the defendant maintains that

counsel therefore should have been particularly sensitive to the

preservation of this issue. We do not believe that appellate

counsel'’s special expertise in this area of the law affords the

defendant any help here, for counsel'’s familiarity with the issue

actually argues against the defendant'’s position. Counsel could

have simply believed that the present case did not give rise to a

valid question regarding the prosecution'’s use of peremptory

challenges during jury selection, especially in view of trial counsel'’s

failure to preserve the issue.

	The defendant next presents an argument relating to

allegations that the defendant was mistreated while undergoing

questioning by police in this case. The defendant in this case was

interrogated at Area 2 headquarters by Detective Robert Dwyer,

while Sergeant Jon Burge was also present. On direct review, this

court upheld that trial court'’s determination that the defendant'’s

confession was given voluntarily and was not the product of

physical coercion. People v. King, 109 Ill. 2d 514, 523-26 (1986). In his brief before this court, the defendant argues that trial counsel

was ineffective for failing to introduce at trial testimony by a

witness who would have supported the defense theory that the

defendant'’s confession was coerced. The issue is broader than that,

however, for what the defendant really seeks is a fresh examination

of the circumstances in which he gave a confession statement to

authorities. Attached as exhibits to the defendant'’s amended post-

conviction petition are a number of documents purporting to

establish a history of police misconduct at Area 2 headquarters.

These include a report from the Federal Bureau of Investigation

regarding mistreatment by a defendant in another case, a report by

the Chicago police department'’s office of professional standards

(OPS), the complaint in a federal action against Burge and others,

and the decision by the Chicago police board dismissing Burge

from his employment as a Chicago police officer.

	This court has addressed a similar issue in People v. Patterson, No. 82711 [adopted Ma(August 10, 2000). rch 13, 2000; not yet filed]. In that case, defendant also raised

a number of arguments regarding counsel'’s failure to present evidence that the confession in that case was the product of

coercion. The defendant in Patterson also argued that new evidence supported the defense theory of coercion. The new

evidence presented by the defendant in that case consisted of the

OPS report cited by the present defendant, appellate court

decisions holding that Burge had tortured another suspect and was

fired for that misconduct, the discovery of 60 additional incidents

of torture occurring at Area 2, and a report by an expert

concluding that the defendant in Patterson had been tortured. This court concluded that an evidentiary hearing was warranted on the

defendant’s allegations. Slip op. at 30-36Patterson, slip op. at 32-38. We believe that a similar hearing should be conducted in this case on the

defendant’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, we believe

that an evidentiary hearing should be conducted on this portion of

the defendant’s post-conviction petition. After the parties filed their

briefs, but before oral argument was held in this case, the defendant

submitted a motion seeking a remand to the circuit court for

purposes of conducting a new suppression hearing in this case.

Given our decision to remand the cause for an evidentiary hearing,

we deny the defendant’s motion.

	In his final post-conviction challenge, the defendant argues

that trial counsel was ineffective for failing to investigate and

present certain mitigating evidence at the capital sentencing hearing

conducted in this case.

	At the second stage of the defendant’s sentencing hearing, the

State presented evidence regarding the defendant’s prior offenses.

In mitigation, defense counsel presented only two witnesses, and

their testimony spans fewer than 16 pages of the transcript. The

first defense witness was one of the defendant’s aunts, Geneva

Jackson, who testified in general terms about the defendant’s

childhood. Jackson was one of the defendant’s mother’s sisters,

and she stated that the defendant, while a youth, lived with her and

other relatives for varying periods of time. The witness explained

that the defendant was not able to live at home because the

defendant’s mother was not stable. The witness said further that

the defendant’s mother used drugs and alcohol. The second defense witness was the defendant’s mother, whose testimony was

even briefer than her sister’s. She stated that she loved her son, that

the defendant’s biological father was dead, that she was divorced

from her second husband, and that the defendant had lived with a

number of her sisters for extended periods of time. In closing

argument, counsel argued that three mitigating circumstances had

been established in this case: that the defendant was young when

he committed the offense, that he did not have a substantial

criminal record, and that he came from a troubled background.

Defense counsel also devoted a substantial part of his closing

argument to an attack on the death penalty law, questioning its

deterrent value and challenging its morality.

	The amended post-conviction petition alleges that trial counsel

was ineffective for failing to investigate and present substantial

evidence in mitigation that would have supported the defense

theory at the sentencing hearing. Accompanying the defendant’s

amended post-conviction petition were a number of affidavits

describing additional evidence in mitigation that defense counsel

could have presented at sentencing. These witnesses included a

mitigation specialist, Cynthia Hines, who submitted a report

documenting the defendant’s troubled childhood. Other witnesses

included a number of family members and other relatives, who

further described the defendant’s troubled childhood, his close

relationship with his grandmother, who died when the defendant

was 13, and his history of drug and alcohol abuse. These witnesses

stated in their affidavits that defense counsel did not contact them

prior to sentencing or ask them whether they would testify in the

defendant’s behalf at the hearing. The defendant’s former

stepfather, Clifford Rhymes, stated in his affidavit that he asked

defense counsel whether he could testify for the defendant at the

hearing, and counsel replied that his testimony would not be

necessary. We note that the defendant’s trial concluded on June 12,

1981; the sentencing hearing did not begin until July 28, 1981.

Thus, defense counsel still had more than month after trial to

complete their preparations for the sentencing hearing.

	Our cases have previously recognized that evidence of a

difficult 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 mitigating

about evidence regarding a defendant’s history of drug and alcohol

abuse. Madej, 177 Ill. 2d at 138-39; People v. Shatner, 174 Ill. 2d 133, 160 (1996). Accordingly, counsel is not automatically

ineffective for failing to present evidence of that nature. In this

case, however, defense counsel presented evidence about the

defendant’s background and argued to the sentencing judge that

the defendant’s difficult and tumultuous upbringing was a

mitigating circumstance. Counsel apparently neglected, however,

to investigate and present evidence that would have added

substance to that argument and would have provided greater detail

about the defendant’s childhood and upbringing. The evidence

presented by counsel showed only the broad outlines of this theory

of mitigation, and counsel apparently presented only a small

amount 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, following

evidentiary hearing on allegations); People v. Perez, 148 Ill. 2d 168 (1992) (same).

	For the reasons stated, the judgment of the circuit court of

Cook County is affirmed in part and reversed in part, and the cause

is remanded to that court for further proceedings.

Affirmed in part and reversed in part;

cause remanded.