{ "id": 3125912, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CHARLES HATTERY, Appellant", "name_abbreviation": "People v. Hattery", "decision_date": "1985-11-21", "docket_number": "No. 58789", "first_page": "449", "last_page": "473", "citations": [ { "type": "official", "cite": "109 Ill. 2d 449" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "95 S. Ct. 506", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "42 L. Ed. 2d 302", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "419 U.S. 1026", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6448256, 6447623, 6447982, 6448752, 6447857, 6448054, 6447734, 6448856, 6448156 ], "opinion_index": 0, "case_paths": [ "/us/419/1026-07", "/us/419/1026-01", "/us/419/1026-04", "/us/419/1026-08", "/us/419/1026-03", "/us/419/1026-05", "/us/419/1026-02", "/us/419/1026-09", "/us/419/1026-06" ] }, { "cite": "57 Ill. 2d 239", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5407197 ], "year": 1974, "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0239-01" ] }, { "cite": "86 Ill. 2d 78", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469878 ], "year": 1974, "pin_cites": [ { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/86/0078-01" ] }, { "cite": "101 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160338 ], "year": 1981, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0209-01" ] }, { "cite": "61 Ill. 2d 383", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2965894 ], "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0383-01" ] }, { "cite": "52 Ill. 2d 544", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5395339 ], "pin_cites": [ { "page": "553-54" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0544-01" ] }, { "cite": "106 Ill. 2d 373", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3139376 ], "year": 1972, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0373-01" ] }, { "cite": "36 Ill. 2d 467", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378532 ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0467-01" ] }, { "cite": "401 U.S. 560", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11714156 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/401/0560-01" ] }, { "cite": "50 Ill. 2d 313", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2912076 ], "opinion_index": 0, "case_paths": [ "/ill-2d/50/0313-01" ] }, { "cite": "41 Ill. App. 3d 425", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2491670 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0425-01" ] }, { "cite": "271 N.W.2d 305", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1976, "opinion_index": 0 }, { "cite": "85 Mich. App. 527", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2185592 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/mich-app/85/0527-01" ] }, { "cite": "326 N.W.2d 537", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1978, "opinion_index": 0 }, { "cite": "119 Mich. App. 445", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2235579 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/mich-app/119/0445-01" ] }, { "cite": "343 N.W.2d 858", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10674509 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nw2d/343/0858-01" ] }, { "cite": "622 F.2d 504", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 478257 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/f2d/622/0504-01" ] }, { "cite": "102 S. Ct. 656", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "70 L. Ed. 2d 630", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "454 U.S. 1091", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6493088, 6493571, 6492999, 6493197, 6493360, 6493489, 6493655, 6493723, 6493279 ], "opinion_index": 0, "case_paths": [ "/us/454/1091-02", "/us/454/1091-07", "/us/454/1091-01", "/us/454/1091-03", "/us/454/1091-05", "/us/454/1091-06", "/us/454/1091-08", "/us/454/1091-09", "/us/454/1091-04" ] }, { "cite": "647 F.2d 642", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1224413 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/f2d/647/0642-01" ] }, { "cite": "105 S. Ct. 1776", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "84 L. Ed. 2d 835", "category": "reporters:federal", "reporter": "L. 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App.", "case_ids": [ 2235579 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/mich-app/119/0445-01" ] }, { "cite": "343 N.W.2d 858", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10674509 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/nw2d/343/0858-01" ] }, { "cite": "622 F.2d 504", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 478257 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/f2d/622/0504-01" ] }, { "cite": "720 F.2d 1190", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1904088 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/f2d/720/1190-01" ] }, { "cite": "466 U.S. 648", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204502 ], "weight": 9, "pin_cites": [ { "page": "658" }, { "page": "667" }, { "page": "2046" }, { "page": "658" }, { "page": "667" }, { "page": "2047" }, { "page": "660-61" }, { "page": "668-69" }, { "page": "2047-48" } ], "opinion_index": 1, "case_paths": [ "/us/466/0648-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "pin_cites": [ { "page": "692" }, { "page": "696" }, { "page": "2067" }, { "page": "692" }, { "page": "696" }, { "page": "2067" } ], "opinion_index": 1, "case_paths": [ "/us/466/0668-01" ] } ], "analysis": { "cardinality": 1450, "char_count": 39084, "ocr_confidence": 0.743, "pagerank": { "raw": 1.3827994404312857e-06, "percentile": 0.9904876693583294 }, "sha256": "c120e4aa18d1ba5f015caedd3f94c3b67d03dac3ed8b7559aa6f465030af6722", "simhash": "1:b0b971f25e2c54c6", "word_count": 6435 }, "last_updated": "2023-07-14T21:33:34.159568+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CHARLES HATTERY, Appellant." ], "opinions": [ { "text": "JUSTICE MORAN\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Cook County, defendant, Charles Hattery, was convicted of the murders of Trenette Anderson and her two children, Reshonda and Albert, Jr. (A codefendant, Rufus Mister, was found not guilty in a bench trial conducted simultaneously with defendant\u2019s jury trial.) Pursuant to section 9\u20141(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9\u20141(d)), the State requested a death penalty hearing, which was heard by the same jury. The jury found that the necessary aggravating factors existed, and that' there were no mitigating circumstances sufficient to preclude imposition of the death penalty. The court thereupon sentenced defendant to death on the murder convictions. Defendant brings a direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill. 2d R. 603), alleging numerous errors in all stages of the proceedings.\nThe record discloses that on December 4, 1982, at about 1 a.m., Albert Anderson left his Chicago apartment and walked to a nearby store to purchase a pack of cigarettes. The store was closed. While walking home, he met the defendant, and \u201cSmooth,\u201d whom Anderson identified as Rufus Mister. Mister immediately began arguing with Anderson about drugs. Mister claimed that he had supplied Anderson with drugs before, and wanted him to reciprocate. Anderson, in an effort to calm Mister, said he was willing to discuss the matter and invited the men to his apartment.\nUpon arriving at the apartment, they were met by Anderson\u2019s wife, Trenette. The couple\u2019s two children, Reshonda, age 7 months, and Albert, Jr., who was 22 months old, were asleep in the bedroom. Anderson testified that Mister again started \u201chollering about drugs.\u201d Anderson offered to give him money, but Mister insisted that Anderson help him find drugs. He agreed to accompany Mister to the home of \u201cFluky,\u201d a local drug supplier. Mister told defendant to stay in the apartment with Trenette and the two children. Anderson also overheard Mister tell defendant that if he did not return in five minutes, defendant \u201cknows what to do.\u201d Anderson and Mister then left the apartment.\nThe men\u2019s initial effort to obtain drugs was unsuccessful, and Mister insisted that they continue to search for drugs. Anderson testified that they arrived back at his apartment at about 6 a.m. They were accompanied by Mister\u2019s girlfriend, Kathy Robinson, and two other women, whom Anderson identified only as Penny and Pearl. Anderson knocked at the back door several times. When no one answered, Mister kicked the door down. They walked through the kitchen into the living room. Anderson noticed that there was blood on the living room floor. They then walked into the bedroom, where they found Trenette\u2019s body on the bed. Anderson observed that her night gown was pulled up over her breasts and that her wrist had been cut. The body of his son, Albert, Jr., also was on the bed. Pearl walked over to the crib and picked up Reshonda. As she did so, the baby\u2019s head fell backwards. Anderson stated, \u201c[0]h, my God, no, not my kids too.\u201d He then placed Reshonda\u2019s dead body on the bed next to the body of her mother.\nIn a statement taken by an assistant State\u2019s Attorney and transcribed by a court reporter, defendant, age 22, said that Mister ordered him to stay behind in the apartment while Mister and Anderson searched for drags. Mister told him that if he did not return in five minutes, defendant was to kill Anderson\u2019s wife and two children. Mister threatened to harm defendant and his family if defendant did not comply with Mister\u2019s orders. After they left, defendant set his digital watch and proceeded to keep track of the time. When five minutes passed, he told Trenette that he planned to kill her. Trenette screamed and ran toward a door. Defendant pulled his knife, and as he attempted to grab Trenette, he cut her wrist. When he caught Trenette he strangled her, and then undressed her. As he was about to carry her body into the bedroom Albert, Jr., who had been awakened by the noise, walked into the living room. Defendant grabbed the boy, choked him, and placed his body on the bed. He then carried Trenette\u2019s body into the bedroom and placed it on the bed next to Albert, Jr. Defendant walked over to the crib where Reshonda was sleeping and strangled her. He left Reshonda\u2019s body in the crib. He remained in the apartment for another half hour, until about 4 a.m. Defendant later disposed of the knife in a garbage dumpster.\nJohn Salyers, a Chicago police officer, testified that upon arriving at the Anderson apartment at about 6:30 a.m., he observed Mister standing in front of the building in the company of police officers. Salyers and two other officers walked to the back door, where they noticed that the door appeared to have been forced open. They walked through the kitchen to the living room. From there Salyers observed Anderson in the bedroom holding a knife. Salyers drew his revolver. As he did so, Anderson looked up, and then began to make jabbing motions with the knife toward his own chest. Salyers ordered Anderson to drop the knife. He handcuffed Anderson and placed him in the kitchen. Salyers then returned to the bedroom, where he saw the body of one adult female and the bodies of two children on the bed. He later determined that the victims were Trenette, Reshonda and Albert, Jr. Trenette\u2019s body was partially nude. Salyers also found blood stains on the living room floor. An evidence technician was called to take photographs. Anderson and Mister were then transported to the police station.\nDr. Robert Stein, chief medical examiner of Cook County, testified that he performed autopsies on the bodies of the three victims on December 6, 1982. His examination of Trenette revealed contusions and abrasions about the neck, a puncture mark on the left breast, and incised wounds on the right wrist and upper right arm. He testified that the cause of Trenette\u2019s death was strangulation. Dr. Stein also found abrasions and contusions about the necks of Albert, Jr., and Reshonda. He testified that the cause of death of both children was strangulation.\nDale Sayset, special agent, Illinois Department of Law Enforcement, testified at trial that he received a telephone call from Troy Hattery, defendant\u2019s father, on January 18, 1983. Hattery told Sayset that he believed defendant was a witness to a triple homicide involving a woman and two children. The following day Sayset again spoke with defendant\u2019s father. The father agreed to arrange a meeting between defendant, who was in Texas, and Sayset. That same day Sayset learned that defendant was wanted for questioning in connection with the Anderson homicides and that there was an outstanding warrant for defendant\u2019s arrest on an unrelated aggravated-battery charge. The next day, on January 20, 1983, Sayset and another agent met defendant\u2019s father at O\u2019Hare airport. Defendant\u2019s mother and sister also were present. When defendant\u2019s flight arrived shortly after 10:30 a.m., Sayset introduced himself to defendant, advised him that he was under arrest for aggravated battery and read him the Miranda warnings. Defendant was then transported to the State\u2019s Attorney\u2019s office. Sayset testified that he did not question defendant about the homicides.\nTimothy McMahon, who was an assistant State\u2019s Attorney, testified that he and another assistant began questioning defendant about noon on January 20. After defendant was advised of his constitutional rights, he initially told McMahon that he did not see the killings. He said that he was in the bathroom at the apartment when the killings occurred. When he exited the bathroom, defendant discovered that Mister was gone and that Trenette was dead. After a few minutes defendant fled the apartment. Defendant also related that he was a member of the Black Gangster Disciples and that he was the bodyguard of a person named Nimrod, a leader of a north side faction of the Disciples.\nMcMahon testified that he then confronted defendant with certain inconsistencies between defendant\u2019s initial story and the police reports. In response, defendant gave another version of what happened. In the second version, defendant stated that when he exited the bathroom he saw Mister strangling Trenette.\nThereafter, defendant was transported to the Chicago police department crime laboratory by Officer Chris Grogman. A short time later, Grogman was informed by a department laboratory technician that defendant wished to speak to him. As Grogman walked into the room where defendant was being held, defendant stated, \u201cI did it, I\u2019m sorry I caused you any trouble.\u201d Grogman told defendant that they would discuss the killings at the Area Six police headquarters. After arriving at Area Six headquarters and being advised of his constitutional rights, defendant told Grogman that he had killed Trenette and her two children.\nAt about 10 p.m., on January 20, 1983, defendant met with Assistant State\u2019s Attorney William Merritt. Defendant gave an oral statement to Merritt regarding his involvement in the killings. He then agreed to give a statement, confessing to the killings, in the presence of a court reporter.\nDefendant\u2019s first assignment of error concerns the conduct of his appointed trial counsel. He argues that the trial strategy employed by his trial counsel amounted to the functional equivalent of a guilty plea without the procedural due process safeguards required by Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709, and by our Rule 402 (87 Ill. 2d R. 402). Defendant further maintains that defense counsel\u2019s actions were totally inconsistent with his plea of not guilty and thus constituted a per se denial of the right to effective assistance of counsel guaranteed by the sixth amendment to the United States Constitution (U.S. Const., amend. VI).\nThe record indicates that defendant pleaded not guilty to the murder charges. At trial he was represented by two assistant public defenders. The prosecution, in its opening statement to the jury, outlined the allegations against defendant. The prosecution\u2019s opening statement described in detail the events of December 4, 1982, and in particular how defendant allegedly strangled Trenette Anderson and her two children. Immediately thereafter, one of defendant\u2019s trial attorneys made the following opening statement to the jury:\n\u201cLadies and gentlemen of the jury, he [defendant] did it. He did everything [the prosecution] just told you. He did it to save the lives of his own family, his mother and his sisters, because he knew that this man [Rufus Mister] would have killed them or had them murdered if he refused his orders. This man is a leader of the Diciples [sic] Street Gang. He and another man named Nimrod forced, ordered this man, Charles Hattery, to do what you heard [the prosecution] say he did.\nWe are not asking you to find Charles Hattery not guilty. At the end of your deliberations, you will find him guilty of murder. We are asking you to consider the evi dence that you hear today and in the next few days to explain why he did the horrible thing that he did. Once you have found him guilty, we will proceed and you will find him eligible for the death penalty. The question, and the only question facing you, will be whether to impose the death penalty on Charles Hattery for trying to save the life of his family. Thank you.\u201d (Emphasis added.)\nDuring the guilt-innocence phase of the trial, defense counsel advanced no theory of defense. They presented no evidence of their own, and chose not to make a closing statement to the jury. Instead, defense counsel attempted to develop on cross-examination the theory that defendant was compelled by Rufus Mister to kill the victims. Compulsion is not a defense to an offense punishable by death (see Ill. Rev. Stat. 1981, ch. 38, par. 7\u201411), but can, if the threat of death or bodily harm is imminent, constitute a mitigating circumstance sufficient to preclude the imposition of the death penalty. (See Ill. Rev. Stat. 1981, ch. 38, par. 9\u20141(c)(4).) In an effort to prove their compulsion theory, defense counsel elicited from prosecution witnesses the fact that defendant and Rufus Mister were members of the Black Gangster Disciples Street Gang; that defendant was a bodyguard to a Disciples\u2019 leader named Nimrod; that Mister was about to be appointed a general in the Disciples\u2019 organization by Nimrod; and that Mister threatened to harm defendant and his family if defendant refused to comply with Mister\u2019s orders to kill Trenette Anderson and her two children.\nDefendant\u2019s attorneys also elicited from prosecution witnesses the fact that defendant, at the request of his parents, returned voluntarily from Texas and met with police after he learned that there was a warrant for his arrest, and that he had spoken to his family before confessing to police.\nSeveral times during the guilt-innocence phase of the trial, defendant\u2019s attorneys conceded that defendant was truthful when he confessed to the murders. Moreover, defense counsel, on more than one occasion, told the jury that the trial was a \u201cdeath penalty case.\u201d The following colloquy took place between the trial judge and defense counsel in the presence of the jury:\n\u201c[DEFENSE COUNSEL]: I would ask leave at this time, since this is a death penalty case, and the rule of\u2014\nTHE COURT: No, it is not a death penalty case. It is a finding of guilt, okay.\n[DEFENSE COUNSEL]: May I have a sidebar, your Honor?\nTHE COURT: Despite [defense counsel\u2019s] opening statement.\u201d (Emphasis added.)\nThe State during closing argument emphasized the fact that defense counsel had conceded defendant\u2019s guilt. The prosecutor stated:\n\u201cSome of you might have been surprised yesterday a little bit when the Defense got up and said to you we agree that he did it, especially in light that this is a trial and in order to have a trial the defendant has to plead not guilty. You may be wondering why, why would a defendant come into court, take a trial and say I did it. It doesn\u2019t make sense unless of course someone is trying to con you, unless of course it is a trial tactic. He could have plead guilty and had a sentencing hearing but instead he took a trial and said I did it but they made me do it. *** Don\u2019t be fooled by them admitting it that they are telling you the truth, that if he says I committed these crimes then he must be telling the truth about the reason he did it.\u201d\nAlthough the sixth amendment guarantees criminal defendants the right to the effective assistance of counsel (McMann v. Richardson (1970), 397 U.S. 759, 771 n.14, 25 L. Ed. 2d 763, 773 n.14, 90 S. Ct. 1441, 1449 n.14), courts ordinarily will not second-guess defense counsel\u2019s judgment and trial strategy. It is recognized that the independence of defense counsel is essential to a fair trial. Moreover, it is also recognized that no two defense attorneys will necessarily agree on the same strategy for a particular case. Therefore, when evaluating ineffectiveness claims, courts \u201cmust indulge a strong presumption that counsel\u2019s conduct falls within the wide range of reasonable professional assistance ***.\u201d Strickland v. Washington (1984), 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694, 104 S. Ct. 2052, 2066.\nThe court in Strickland announced a two-part test for judging ineffectiveness claims. Under that test, a defendant must first show that his counsel\u2019s performance \u201cfell below an objective standard of reasonableness.\u201d (466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2065.) Defendant also must show that \u201cthere is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.\nHowever, the court in Strickland also noted that there are some circumstances so likely to prejudice the accused that such prejudice need not be shown, but instead will be presumed. (466 U.S. 668, 692, 80 L. Ed. 2d 674, 696, 104 S. Ct. 2052, 2067.) In a companion case, United States v. Cronic (1984), 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039), the court emphasized that the sixth amendment requires, at a bare minimum, that defense counsel act as a true advocate for the accused. Where \u201ccounsel entirely fails to subject the prosecution\u2019s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.\u201d (466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047.) The court in Cronic explained:\n\u201c[T]he adversarial process protected by the Sixth Amendment requires that the accused have \u2018counsel acting in the role of an advocate\u2019 [citation]. The right to the effective assistance of counsel is thus the right of the accused to require the prosecution\u2019s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted \u2014 even if defense counsel may have made demonstrable errors \u2014 the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.\u201d (466 U.S. 648, 656-57, 80 L. Ed. 2d 657, 666, 104 S. Ct. 2039, 2045-46.)\nIn Francis v. Spraggins (11th Cir. 1983), 720 F.2d 1190, cert. denied (1985), 470 U.S. _, 84 L. Ed. 2d 835, 105 S. Ct. 1776, the petitioner was convicted of murder and rape in a Georgia court and sentenced to death on the murder conviction. Defense counsel conceded petitioner\u2019s guilt in his argument to the jury at the close of the guilt-innocence phase of petitioner\u2019s bifurcated trial. Subsequently petitioner filed a petition for a writ of habeas corpus in United States district court. The United States court of appeals affirmed the district court\u2019s award of a writ of habeas corpus on the ground that counsel\u2019s concession of his client\u2019s guilt constituted ineffective assistance of counsel. The court stated:\n\u201cWhere a capital defendant, by his testimony as well as his plea, seeks a verdict of not guilty, counsel, though faced with strong evidence against his client, may not concede the issue of guilt merely to avoid a somewhat hypocritical presentation during the sentencing phase and thereby maintain his credibility before the jury. Even though an adverse verdict would have the effect of precluding further argument on the issue of guilt, counsel does not have license to anticipate that effect and to concede the issue during the guilt/innocence phase simply because an adverse verdict appears likely.\u201d 720 F.2d 1190, 1194.\nSimilarly, in Wiley v. Sowders (6th Cir. 1981), 647 F.2d 642, cert. denied (1981), 454 U.S. 1091, 70 L. Ed. 2d 630, 102 S. Ct. 656, the court upheld the award of a writ of habeas corpus where, during petitioner\u2019s State criminal trial for theft, burglary and being a persistent felony offender, his defense counsel admitted petitioner\u2019s guilt. The court in Wiley concluded that defense counsel\u2019s concession of guilt constituted ineffective assistance of counsel because it nullified petitioner\u2019s right to have the issue of guilt or innocence presented to the jury as an adversarial issue. The court explained:\n\u201cUnquestionably, the constitutional right of a criminal defendant to plead \u2018not guilty,\u2019 *** entails the obligation of his attorney to structure the trial of the case around his client\u2019s plea. *** In those rare cases where counsel advises his client that the latter\u2019s guilt should be admitted, the client\u2019s knowing consent to such trial strategy must appear outside the presence of the jury on the trial record in the manner consistent with Boykin [v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709].\nAlthough statements made by attorneys in closing arguments are not evidence, nevertheless, for all practical purposes, counsel\u2019s admission of guilt on behalf of his client denied to petitioner his constitutional right to have his guilt or innocence decided by the jury. Petitioner, in pleading not guilty, was entitled to have the issue of his guilt or innocence presented to the jury as an adversarial issue. Counsel\u2019s complete concession of petitioner\u2019s guilt nullified the adversarial quality of this fundamental issue.\u201d (647 F. 2d 642, 650.)\nIn similar cases, courts have held that the admission of an accused\u2019s guilt by his defense attorney violates the defendant\u2019s sixth amendment right to the effective assistance of counsel. See Mullins v. Evans (10th Cir. 1980), 622 F.2d 504; State v. Wiplinger (Minn. 1984), 343 N.W.2d 858; People v. Fisher (1982), 119 Mich. App. 445, 326 N.W.2d 537; People v. Schultz (1978), 85 Mich. App. 527, 271 N.W.2d 305; People v. Carter (1976), 41 Ill. App. 3d 425. Cf. People v. Redmond (1972), 50 Ill. 2d 313 (defense counsel\u2019s closing argument in which he admitted defendant\u2019s guilt constituted denial of due process).\nAfter considering the actions of the defense counsel in the present case we are convinced that the prosecution\u2019s case was not subjected to the \u201cmeaningful adversarial testing\u201d required by the sixth amendment. (United States v. Cronic (1984), 466 U.S. 648, 656, 80 L. Ed. 2d 657, 666, 104 S. Ct. 2039, 2045.) The concession of defendant\u2019s guilt by his attorneys was unequivocal. In the opening statement, one of defendant\u2019s attorneys told the jury, \u201cWe are not asking you to find Charles Hattery not guilty. *** [Y]ou will find him guilty of murder.\u201d Defense counsel told the jury that defendant did a \u201chorrible thing,\u201d and then stated: \u201cOnce you have found him guilty, *** you will find him eligible for the death penalty.\u201d Then defense counsel stated that the only issue to be decided was whether defendant should receive the death penalty. The comments by defense counsel during the guilt-innocence phase that the trial was a \u201cdeath penalty\u201d case further impressed upon the jury the false notion that the guilt or innocence of the defendant was not at issue but, rather, had already been decided.\nDefense counsel\u2019s trial strategy \u2014 which attempted to show that defendant was guilty of murder but undeserving of the death penalty \u2014 was totally at odds with defendant\u2019s earlier plea of not guilty. There is no evidence that defendant consented to his attorneys\u2019 strategy, and such consent will not be presumed from a silent record. (Cf. Boykin v. Alabama (1969), 395 U.S. 238, 244, 23 L. Ed. 2d 274, 280, 89 S. Ct. 1709, 1712-13.) As such, counsel\u2019s actions deprived defendant of the right of having the issue of his guilt or innocence presented to the jury as an adversarial issue.\nThe State argues that defense counsel\u2019s actions were sound strategic decisions because the evidence of defendant\u2019s guilt was overwhelming. We disagree. Although counsel\u2019s strategy may have been reasonable in light of the evidence \u2014 a point we need not consider \u2014 it was an impermissible one. \u201c[E]ven when no theory of defense is available, if the decision to stand trial has been made, counsel must hold the prosecution to its heavy burden of proof beyond reasonable doubt.\u201d (United States v. Cronic (1984), 466 U.S. 648, 656 n.19, 80 L. Ed. 2d 657, 666 n.19, 104 S. Ct. 2039, 2045-46 n.19.) Counsel may not concede his client\u2019s guilt in the hope of obtaining a more lenient sentence where a plea of not guilty has been entered, unless the record adequately shows that defendant knowingly and intelligently consented to his counsel\u2019s strategy. We therefore hold that defendant was denied the effective assistance of counsel in violation of the sixth amendment. Because we reverse defendant\u2019s murder convictions, we only address those other issues which might appear on remand.\nDefendant next contends that the trial court should have suppressed the statements he gave to police and prosecutors, alleging that the statements were the product of an illegal arrest. He argues that the complaint, which was the basis of the arrest warrant for aggravated battery, did not supply the issuing judge with sufficient information to support a finding of probable cause. (See, e.g., Whiteley v. Warden of Wyoming State Penitentiary (1971), 401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031; People v. Waitts (1967), 36 Ill. 2d 467.) As such, he argues that the aggravated-battery warrant was invalid.\nThe record reveals that defendant filed a motion to suppress the statements prior to trial. A hearing was held on defendant\u2019s motion on July 14, 1983. At that hearing, defense counsel called two witnesses: Troy Hattery, defendant\u2019s father, and Dale Sayset, a special agent with the Illinois Department of Law Enforcement. The substance of their testimony concerned the father\u2019s arrangements to have defendant meet with police and defendant\u2019s subsequent arrest at O\u2019Hare airport on January 20, 1983. None of the evidence introduced at the suppression hearing by defense counsel had any bearing on the validity of the aggravated-battery warrant. Defense counsel also did not contest the validity of the arrest warrant in his argument on the motion. The record discloses that the whole focus of the suppression hearing was whether defendant\u2019s arrest for aggravated battery was a pretext to question defendant about the murders.\nOn a motion to suppress based on a lack of probable cause to arrest, the initial burden of going forward with the evidence is on the defendant. (People v. Lyles (1985), 106 Ill. 2d 373, 387; People v. Black (1972), 52 Ill. 2d 544, 553-54.) The record shows that defendant did not present any evidence whatsoever regarding the validity of the aggravated-battery warrant. The defense thus failed to carry its burden of going forward with the evidence and its initial burden of proof. The State\u2019s failure to present evidence on the issue of probable cause to arrest for aggravated battery was obviously the result of defendant\u2019s failure to meet his initial burden. (Cf. In re Lamb (1975), 61 Ill. 2d 383, 387.) Under the circumstances, we hold that defendant has waived the issue.\nDefendant also argues that the trial court erred in refusing to suppress his statements as the product of a pretext arrest. The gist of defendant\u2019s argument is that police arrested him on the aggravated-battery warrant as a subterfuge to interrogate him about the Anderson homicides. He maintains that the conduct complained of violated the fourth amendment to the United States Constitution (U.S. Const., amend. IV) and article I, section 6, of our State Constitution\u2019s bill of rights. Ill. Const. 1970, art. I, sec. 6.\nDefendant attempted to show at the suppression hearing that the statements given to police and prosecutors were the product of the alleged pretext arrest. In support of the motion, defendant called two witnesses. Special Agent Dale Sayset testified that he received a telephone call from Troy Hattery, defendant\u2019s father, on January 18, 1983. Hattery told Sayset that he believed defendant was a witness to a triple homicide involving a woman and two children. Sayset told Hattery that he would look into the matter and call him back. The next day, January 19, 1983, Sayset called defendant\u2019s father. The latter agreed to arrange a meeting between defendant, who was in Texas, and Sayset. Later that day, Say-set spoke to a Chicago police detective. He was told by the detective that defendant was wanted for questioning in connection with a triple homicide and also that there was an outstanding warrant for defendant\u2019s arrest on the aggravated-battery charge. Sayset picked up the warrant from Chicago police.\nOn January 20, 1983, Sayset and another agent met defendant\u2019s father, mother and sister at O\u2019Hare airport. Defendant\u2019s father directed the agents to the airline gate where defendant\u2019s flight was due to arrive. When defendant\u2019s flight arrived shortly after 10:30 a.m., Say-set introduced himself to defendant, advised him that he was under arrest for aggravated battery, and read him the Miranda warnings. Sayset then transported defendant to the Cook County State\u2019s Attorney\u2019s office. He testified that he did not question defendant about the homicides.\nThe testimony of defendant\u2019s father was substantially the same as Sayset\u2019s. He also testified that he received a telephone call from defendant on January 19, 1983. During that call, the father told defendant that he should return to Chicago because there was a warrant for his arrest. He did not tell defendant what the arrest warrant charged.\nAt the close of the evidence, the trial court denied the motion to suppress. After considering all the evidence which was presented to the trial court, we agree that the motion to suppress should have been denied. The only evidence introduced at the suppression hearing indicated that defendant\u2019s father arranged to have Say-set meet defendant at O\u2019Hare airport; that prior to the meeting Sayset learned that there was an outstanding warrant for defendant\u2019s arrest; that defendant was wanted for questioning with regard to the Anderson homicides; and that upon meeting defendant Sayset arrested him for aggravated battery. The evidence, without more, was insufficient to show that defendant was arrested on a subterfuge warrant. A trial court\u2019s ruling on a motion to suppress will not be disturbed unless it is manifestly erroneous. (People v. Hoskins (1984), 101 Ill. 2d 209, 212; People v. Holloway (1981), 86 Ill. 2d 78, 91; People v. Williams (1974), 57 Ill. 2d 239, 246, cert. denied (1974), 419 U.S. 1026, 42 L. Ed. 2d 302, 95 S. Ct. 506.) Based on the evidence presented 'to the trial court, we cannot say that its ruling on this issue was manifestly erroneous.\nFor the reasons stated, defendant\u2019s convictions for murder are reversed and his death sentence is vacated. The cause is remanded to the circuit court of Cook County for a new trial.\nJudgment reversed; sentence vacated; cause remanded.", "type": "majority", "author": "JUSTICE MORAN" }, { "text": "JUSTICE MILLER,\ndissenting:\nAccepting both the defendant\u2019s alternative arguments against the trial strategy followed here, the majority presumes that the defendant was prejudiced by the strategy and that his consent to it must appear on the record. I do not believe that either conclusion is required, and accordingly I dissent.\nThe right to the effective assistance of counsel \u201cis recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.\u201d (United States v. Cronic (1984), 466 U.S. 648, 658, 80 L. Ed. 2d 657, 667, 104 S. Ct. 2039, 2046.) Ordinarily, then, a defendant must show that he has been prejudiced by counsel\u2019s deficient performance, though there are \u201ccircumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.\u201d (466 U.S. 648, 658, 80 L. Ed. 2d 657, 667, 104 S. Ct. 2039, 2047.) When the adversarial process breaks down \u2014 when, for example, counsel is denied, or utterly fails to contest the State\u2019s case, or, because of attendant circumstances, finds it impossible to provide adequate representation \u2014 then prejudice may be presumed. (See 466 U.S. 648, 660-61, 80 L. Ed. 2d 657, 668-69, 104 S. Ct. 2039, 2047-48.) The likelihood of prejudice in those cases is so great \u201cthat case by case inquiry into prejudice is not worth the cost.\u201d (Strickland v. Washington (1984), 466 U.S. 668, 692, 80 L. Ed. 2d 674, 696, 104 S. Ct. 2052, 2067.) Generally, too, the impairment is something for which the government is responsible and therefore can prevent. (466 U.S. 668, 692, 80 L. Ed. 2d 674, 696, 104 S. Ct. 2052, 2067.) In neither Cronic nor Strickland, however, did the Supreme Court presume prejudice. In Cronic, a prosecution for mail fraud stemming from a check-kiting scheme, the Supreme Court rejected the inference by the court of appeals that counsel had been ineffective; that inference had been based on several circumstances, including the length of time counsel had had to prepare for the case, counsel\u2019s youthfulness, and his principal expertise in a different area of law. In Strickland the court held that, in the circumstances there, counsel\u2019s failure to present at a capital sentencing hearing additional character or psychological evidence regarding the defendant was neither a deficiency in performance nor a matter resulting in actual prejudice to the defendant.\nI do not believe that this case implicates any of the concerns identified by the Supreme Court as warranting a presumption of prejudice. The adversarial process did not break down here. Defense counsel\u2019s strategy was not a matter that the prosecutor or trial judge devised. The primary issue in the proceedings was not whether the defendant was guilty of offenses punishable by death, but whether he should be sentenced to death. In this regard, I would note that on appeal here the defendant has not challenged the sufficiency of the evidence of his guilt. That evidence was overwhelming \u2014 it included the defendant\u2019s confessions to these gruesome crimes \u2014 and trial counsel may well have concluded that the strategy used here was a reasonable course to follow.\nGoing to trial preserved for the defendant matters that a guilty plea necessarily would have waived. One of the most significant of those was the ruling on his suppression motion, and the majority\u2019s treatment of that issue demonstrates the value of preserving it for review. Moreover, although compulsion is not a defense to the crimes charged here (see Ill. Rev. Stat. 1981, ch. 38, par. 7\u20141), it may, as a mitigating circumstance, preclude a sentence of death (see Ill. Rev. Stat. 1981, ch. 38, par. 9\u20141(c)(4)), and defense counsel used the trial to develop a theory of compulsion in a way that would not have been practicable at a sentencing hearing. The defendant was tried jointly with Rufus Mister, the person who, counsel argued, compelled the defendant to commit the murders. The presence of the codefendant, charged on a theory of accountability for the same crimes, was used to strengthen the defendant\u2019s claim of compulsion. Also, through cross-examination of the State\u2019s witnesses at trial, defense counsel brought out information tending to support the theory that defendant's role in the crimes was compelled by Mister.\nIn several ways, then, the jury was educated, as it were, on the defendant\u2019s evidence in mitigation through information and impressions that could not have been duplicated at a sentencing hearing. Counsel may have believed, though, that the surest way to preserve credibility before the jury for his later argument, that the death sentence should not be imposed, was to acknowledge that the defendant had committed offenses for which a sentence of death could be imposed. What occurred here was analogous to the common practice in jury trials of acknowledging guilt of one offense to avoid conviction for another. To a similar end, counsel may have reasonably believed here that the strategy adopted at the trial and sentencing hearing was more likely to prevent a sentence of death than any other course of defense.\nMoreover, this choice of strategy was not inconsistent with anything that the defendant himself did or said at trial. In this regard I would note that in a number of the cases cited by the majority, acknowledgments of guilt by counsel were, indeed, contradicted by the defendants. See Francis v. Spraggins (11th Cir. 1983), 720 F.2d 1190 (defendant testified, denying that he committed the crime or that he made statements to the police, but counsel later conceded defendant\u2019s guilt to jury, asking for a sentence other than death); People v. Fisher (1982), 119 Mich. App. 445, 326 N.W.2d 537 (defendant testified in support of his insanity defense, but in closing counsel asked instead for finding of guilty but mentally ill); State v. Wiplinger (Minn. 1984), 343 N.W.2d 858 (counsel, in cross-examination of State\u2019s witnesses, effectively conceded defendant\u2019s identity as person involved in offense; defendant interrupted the trial and voiced his objection to that); cf. Mullins v. Evans (10th Cir. 1980), 622 F.2d 504 (fearful that defendant\u2019s parole eligibility date under trial judge\u2019s sentence for conviction for lesser offense would be later than under mandatory life term for conviction for greater offense, counsel \u201cthrew the fight\u201d and did whatever was possible to ensure conviction for greater offense; trial found to be a sham, and therefore defendant\u2019s acquiescence to strategy was unimportant).\nFinally, the proceedings here were not tantamount to a guilty plea, and the defendant was not required to be admonished of his trial rights, in the manner of our Rule 402 (87 Ill. 2d R. 402), when defense counsel\u2019s strategy became evident. Unlike People v. Smith (1974), 59 Ill. 2d 236, and People v. Stepheny (1974), 56 Ill. 2d 237, defense counsel did not make an agreement with the prosecutor regarding the outcome of the case or stipulate to the sufficiency of the evidence of the defendant\u2019s guilt. Instead, defense counsel required the State to put on its witnesses, remaining free to challenge the sufficiency of the State\u2019s evidence, and counsel did so, moving for a directed verdict at the close of the State\u2019s case. Moreover, counsel moved to suppress the defendant\u2019s confession. See People v. Sampson (1985), 130 Ill. App. 3d 438, and People v. Fair (1975), 29 Ill. App. 3d 939 (in stipulated bench trials, presentation of factual or legal defense, including motion to suppress confession, renders unnecessary admonitions regarding trial rights).\nBecause the adversarial process did not break down here, I believe that an inquiry into prejudice is worth the cost. I would not presume that the defendant was prejudiced by trial counsel\u2019s choice of strategies, nor would I presume that the choice was made without the defendant\u2019s consent. Instead, I would require in this case that the defendant establish that the strategy was adopted without his consent or, failing that, that he was prejudiced by trial counsel\u2019s representation.\nWhether the trial strategy should have been permitted is not the question here; the question is whether the strategy was without the defendant\u2019s consent or was prejudicial to him. The defendant should not be permitted now to question the trial strategy, which allowed him to preserve pretrial issues for appeal, test the legal sufficiency of the State\u2019s case, and offer mitigating evidence in the guilt- or-innocence phase, while at the same time attempting to maintain his credibility with the jury, without a showing on his part of his lack of consent to the strategy, or of prejudice to him.", "type": "dissent", "author": "JUSTICE MILLER," } ], "attorneys": [ "James B. Haddad, of Chicago (Alan M. Freedman and Bruce H. Bornstein, of Freedman & Bornstein, of counsel), for appellant.", "Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State\u2019s Attorney, of Chicago (Joan S. Cherry, Kevin Sweeney and Karyn Stratton, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 58789.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CHARLES HATTERY, Appellant.\nOpinion filed November 21, 1985.\nRehearing denied February 4, 1986.\nMILLER, J., dissenting.\nJames B. Haddad, of Chicago (Alan M. Freedman and Bruce H. Bornstein, of Freedman & Bornstein, of counsel), for appellant.\nNeil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State\u2019s Attorney, of Chicago (Joan S. Cherry, Kevin Sweeney and Karyn Stratton, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0449-01", "first_page_order": 461, "last_page_order": 485 }