{ "id": 3236844, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOHNNY NEAL, JR., Appellant", "name_abbreviation": "People v. Neal", "decision_date": "1990-12-20", "docket_number": "No. 68897", "first_page": "140", "last_page": "152", "citations": [ { "type": "official", "cite": "142 Ill. 2d 140" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "111 Ill. 2d 180", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166556 ], "weight": 7, "pin_cites": [ { "page": "196-97" }, { "page": "198" }, { "page": "199" }, { "page": "199" }, { "page": "199" }, { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0180-01" ] }, { "cite": "476 U.S. 1165", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12444, 12982, 12847 ], "opinion_index": 0, "case_paths": [ "/us/476/1165-02", "/us/476/1165-03", "/us/476/1165-01" ] }, { "cite": "90 L. Ed. 2d 733", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "106 S. Ct. 2292", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "98 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3121957 ], "year": 1988, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0382-01" ] }, { "cite": "168 Ill. App. 3d 199", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3514130 ], "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0199-01" ] }, { "cite": "123 Ill. 2d 368", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5551002 ], "year": 1985, "pin_cites": [ { "page": "375-76" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0368-01" ] }, { "cite": "109 Ill. 2d 19", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126739 ], "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0019-01" ] }, { "cite": "105 Ill. 2d 79", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141216 ], "pin_cites": [ { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0079-01" ] }, { "cite": "116 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5543128 ], "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/116/0357-01" ] }, { "cite": "126 Ill. 2d 248", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5557518 ], "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/126/0248-01" ] }, { "cite": "132 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5588867 ], "pin_cites": [ { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/132/0001-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "131 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569445 ], "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0128-01" ] } ], "analysis": { "cardinality": 956, "char_count": 20687, "ocr_confidence": 0.745, "pagerank": { "raw": 3.604346089332916e-07, "percentile": 0.887892305690409 }, "sha256": "9fe38dffacb1471961089128ab311614065a20e5e1f4465077983a98b80262d9", "simhash": "1:e91cd4b66ba2c27e", "word_count": 3364 }, "last_updated": "2023-07-14T20:01:40.347119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOHNNY NEAL, JR., Appellant." ], "opinions": [ { "text": "JUSTICE CALVO\ndelivered the opinion of the court:\nThe petitioner, Johnny Neal, Jr., appeals from an order of the circuit court of Lake County denying, without an evidentiary hearing, his petition for post-conviction relief. Because the petitioner was sentenced to death for an underlying murder conviction, the present appeal lies directly to this court (107 Ill. 2d R. 651(a)).\nPetitioner was convicted of the murder and armed robbery of 63-year-old Lillian Waid. According to the trial evidence \u2014 an important part of which consisted of petitioner\u2019s confession \u2014 petitioner and his wife knew Mrs. Waid and went to her home on the evening of the murder to procure motor oil for petitioner\u2019s car. When Mrs. Waid was not looking, petitioner took a set of keys from her kitchen with the intention of later using them to enter her residence and rob her. Petitioner and his wife then left, and while driving to a nearby bar their car developed engine trouble. Petitioner continued on to the bar, instructed his wife to go inside while he fixed the car, then ran back to Mrs. Waid\u2019s residence, carrying with him a knife and a 17-inch lead pipe filled with concrete.\nMrs. Waid saw petitioner as he approached, and she asked him what was wrong. Petitioner responded that his car had developed engine trouble and he asked for a ride. After petitioner was admitted to the residence, he displayed the knife and pipe, informing Mrs. Waid that he intended to rob her. As he pushed her toward the bedroom, demanding her money, she pleaded with him not to- hurt her. Once inside the bedroom, Mrs. Waid opened, and reached into, a black file cabinet, apparently-looking for money. Petitioner claimed he thought she was reaching for a gun, so he hit her in the head with the pipe. She fell to the floor. Thereafter, petitioner struck her several more times in the head. He said that he \u201cblacked out\u201d after striking her a few times and that he had \u201ca bad headache.\u201d After he had finished hitting Mrs. Waid, petitioner apparently stabbed her twice with the knife.\nAn autopsy later revealed 17 blunt trauma lacerations to Mrs. Waid\u2019s head and multiple fractures of her skull. Two stab wounds, which penetrated Mrs. Waid\u2019s heart and lung, were inflicted after her death. The cause of death was multiple blunt trauma to the head.\nWhen petitioner found no money \u2014 or gun \u2014 in the file cabinet, he ransacked the house. He took Mrs. Waid\u2019s purse, which contained $25, went to the garage, and removed his bloody shirt. Wearing a tee shirt, he drove Mrs. Waid\u2019s car to the bar where he had left his wife. En route, he threw from the window a pair of gloves he had used during the murder and robbery. At the bar, he had a few drinks with his wife, after which they both returned to their apartment. After his wife had fallen asleep, petitioner drove back to the location where he had left Mrs. Waid\u2019s car. Retrieving his bloody shirt, Mrs. Waid\u2019s purse, the knife and the pipe from the back of Mrs. Waid\u2019s car, he placed the lot in a plastic garbage bag, put the bag in his car, then drove Mrs. Waid\u2019s car to the Saloon tavern. He left the car unlocked with the keys in it, hoping it would be stolen. Petitioner hitchhiked back to his car and drove it to Lake Michigan. He threw the garbage bag into the lake, then returned home.\nBased upon this evidence, a jury found petitioner guilty of murder and armed robbery. The same jury first found petitioner eligible for the death penalty under sections 9 \u2014 1(b)(6)(a) through (b)(6)(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 9 \u2014 1(b)(6)(a) through (b)(6)(c)); then, after hearing evidence in aggravation and mitigation in the second phase of sentencing, determined that there were no mitigating factors sufficient to preclude the imposition of the death sentence (Ill. Rev. Stat. 1981, ch. 38, par. 9 \u2014 1(g)). Pursuant to the jury\u2019s determination, the court sentenced petitioner to death for the murder of Mrs. Waid, and sentenced him to 60 years\u2019 imprisonment for armed robbery. Petitioner\u2019s convictions and death sentence were affirmed on direct appeal (People v. Neal (1985), 111 Ill. 2d 180), and the United States Supreme Court denied review (Neal v. Illinois (1986), 476 U.S. 1165, 90 L. Ed. 2d 733, 106 S. Ct. 2292).\nPetitioner then instituted the present action under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 \u2014 1 et seq.), filing a pro se petition for post-conviction relief on January 20, 1987. At petitioner\u2019s request, counsel was appointed to represent him. Counsel filed an amended petition for post-conviction relief on June 18, 1987, and on the same day filed a motion for appointment of experts \u201cfor the purpose of a forensic psychological analysis\u201d of petitioner. A second amended petition was filed July 2,1987.\nPetitioner raised several claims for relief in his petitions; however, he has abandoned all but two in this appeal. He now contends, as he did below, that (1) he was deprived of the effective assistance of trial counsel by his attorney\u2019s failure to investigate or present available evidence in mitigation at his death penalty hearing, and (2) he was deprived of effective assistance of counsel by his attorney\u2019s failure to object to the prosecutor\u2019s closing argument at the death penalty hearing wherein the prosecutor improperly stated his personal opinion that petitioner should be sentenced to death and invoked his prior experience and expertise in capital cases. Additionally, petitioner now claims on appeal that the trial court erred \u201cin dismissing the post-conviction petition without having first allowed [petitioner\u2019s] request for appointment of a psychological expert where the record contains substantial indications that trial defense counsel was ineffective due to her failure to develop and present mitigating evidence of [petitioner\u2019s] mental condition.\u201d\nOn July 31, 1987, the State filed a motion to dismiss. A supplemental motion to dismiss followed on September 4,1987. Memoranda of law were filed by both sides.\nOn May 11, 1989, the court entered an order by which it \u201cdenied\u201d post-conviction relief. In so doing, the court stated:\n\u201cDefendant alleges that his attorney failed to call favorable character witnesses, and failed to present evidence of his \u2018excellent\u2019 work record at the hearing on aggravation and mitigation at the death penalty phase of his trial.\nThe information that the defendant alleges should have been presented by his attorney was in fact presented to the court in the form of a pre-sentence report. Therefore, the decision not to present dual evidence was a trial tactic and not to be used as grounds for a claim of ineffective assistance of counsel. [Citation.]\u201d\nAlthough the court did not specifically address petitioner\u2019s contention regarding counsel\u2019s failure to object to prosecutorial argument at sentencing, the court\u2019s comments below appear to deal cumulatively with petitioner\u2019s arguments:\n\u201cThe actions of the defendant\u2019s trial attorney, reviewed both as to each individual allegation of ineffectiveness and viewed as a totality, were within the legal boundaries of effective assistance of counsel and were not legally deficient. Nor is there any showing, accept [sic] pure speculation, that any actions which, while not legally deficient, could have been done differently, caused prejudice to the defendant.\u201d (Emphasis in original.)\nThe court never ruled on petitioner\u2019s request for appointment of an expert for psychological analysis, and counsel for petitioner did not request such a ruling. Notice of appeal was filed May 30, 1989, and the office of the State Appellate Defender was appointed to represent petitioner on appeal.\nWe affirm the circuit court\u2019s denial of post-conviction relief. Although we cannot, and need not (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387; People v. Wiedman (1988), 168 Ill. App. 3d 199, 209), accept in toto the circuit court\u2019s reasoning, we believe its disposition is correct.\nWhere, as here, a petitioner has previously taken a direct appeal from a judgment of conviction, the judgment of the reviewing court is res judicata as to all issues actually decided by the court, and all other issues which could have been presented to the reviewing court, if not presented, are waived. (People v. Stewart (1988), 123 Ill. 2d 368, 375-76; People v. Jones (1985), 109 Ill. 2d 19, 23.) In a proper case, where fundamental fairness so requires, strict application of the doctrine of res judicata may be relaxed. (People v. Gaines (1984), 105 Ill. 2d 79, 91.) We do not believe relaxation of the doctrine is warranted in this case.\nIn his direct appeal, petitioner raised variations of the issues which he now brings before this court. As he concedes in his reply brief, petitioner, in his direct appeal, argued that the prosecutorial comments at issue here had deprived him of a fair sentencing hearing. This court held the questions had been waived because of trial counsel\u2019s failure to object, but then went on to hold that petitioner had not been denied a fair sentencing hearing because the prosecution\u2019s evidence was \u201coverwhelming.\u201d (Neal, 111 Ill. 2d at 196-97.) Petitioner did not claim that trial counsel had been ineffective because she failed to object, even though counsel\u2019s omission was evident from the record. Petitioner did claim in his previous appeal that trial counsel was ineffective because she failed to present sufficient mitigating evidence at petitioner\u2019s capital sentencing hearing. Petitioner noted that the omitted evidence was contained in a presentence investigative report which had been prepared for the court for sentencing on the armed robbery conviction, after petitioner had been sentenced on the murder conviction. (Neal, 111 Ill. 2d at 198.) This court held, first, that there was no prejudice to petitioner by reason of the alleged error because the information in the presentence report was introduced at the sentencing hearing and, second, that, even if there was error, petitioner had \u201cfailed to show a reasonable probability that, absent the assumed error, the jury would have concluded that the death penalty was not warranted.\u201d (Neal, 111 Ill. 2d at 199.) Thus, this court has determined that mitigating evidence contained in the presentence report, even if omitted at the capital sentencing hearing, would not have changed the outcome. That determination is res judicata and cannot be relitigated here.\nThis court\u2019s statement in petitioner\u2019s direct appeal notwithstanding, not all of the mitigating evidence in the presentence report was introduced at petitioner\u2019s capital sentencing hearing. For example, although some of petitioner\u2019s more recent employment history was presented, a comprehensive history is not in evidence. Moreover, although petitioner claimed \u2014 in his interview with the author of the report \u2014 to have been physically abused by his mother, no such testimony was presented at his capital sentencing hearing. As this court noted on direct appeal (Neal, 111 Ill. 2d at 199), petitioner declined to testify at the sentencing hearing, contrary to the advice of his attorney. Petitioner\u2019s claims of error notwithstanding, this court, having thoroughly reviewed the contents of the presentence report, concluded that petitioner had failed to show a reasonable probability of a different result, even assuming a \u201cfactual basis for [his] complaint.\u201d Neal, 111 Ill. 2d at 199.\nPetitioner now comes before us again, claiming this time that trial counsel failed to \u201cinvestigate or present\u201d \u2014 as opposed to merely \u201cpresent\u201d (his former contention) \u2014 available evidence in mitigation. In this appeal, petitioner claims explicitly that he was denied effective assistance of counsel \u2014 and implicitly, a \u201creliable\u201d sentencing hearing \u2014 because his attorney failed to object to certain remarks of the prosecutor; in his previous appeal he claimed the remarks denied him a \u201cfair\u201d sentencing hearing. These issues look vaguely familiar. Of course, it is well-settled that \u201c[a] petitioner cannot obtain relief under the Post-Conviction Hearing Act by \u2018rephrasing previously addressed issues in constitutional terms\u2019 in his petition.\u201d (People v. Silagy (1987), 116 Ill. 2d 357, 371, quoting Gaines, 105 111. 2d at 90.) We need not address this aspect of the petition, however, because it is readily apparent that, in view of this court\u2019s rulings regarding prejudice in his direct appeal (Neal, 111 Ill. 2d at 199), petitioner has not, as required, set forth \u201cwell-pleaded\u201d facts which, given the procedural posture of this case, would require an evidentiary hearing (see People v. Caballero (1989), 126 Ill. 2d 248, 259); nor has he established \u201ca substantial deprivation of Federal or State constitutional rights\u201d which would entitle him to post-conviction relief (People v. Ruiz (1989), 132 Ill. 2d 1, 9).\nPetitioner, by petition and affidavit, claims that trial counsel \u201cfailed to investigate, discuss with [him] or present [certain mitigating] evidence at the death penalty hearing.\u201d Petitioner again claims that trial counsel was ineffective, in that she failed to investigate evidence that he was abused as a child. In support of this claim, he appended to his petition a copy of a police report wherein Ms. Marlene Bereni stated that petitioner was an abused child. In addition, petitioner asserts that counsel was remiss in not investigating, discussing with petitioner, and presenting evidence of his \u201cgood record\u201d in the Lake County jail, where petitioner was incarcerated for 41/2 months prior to trial, and evidence of his \u201cgood relations with co-workers and the quality of [his] work at the E.S. & E. railroad.\u201d Petitioner claims he had worked there 5V2 years. In addition to his own affidavit, petitioner procured the affidavits of two E.S. & E. co-workers while this matter was pending in the circuit court, and the affidavit of a jailer while this appeal was pending. One of the two co-workers, Edward Graves, stated: \u201c[Petitioner] was a likeable person and a very good worker. I never experienced any arguments or trouble associated with him.\u201d Clarence Dube, another co-worker, stated that petitioner was \u201ca good person and a good worker\u201d who, as union steward, had once represented Dube in a disagreement with a yardmaster at the railroad. Lieutenant Charles DeFlippo, a jailer at the Lake County jail, executed an affidavit wherein he stated: \u201cTo the best of my recollection, [petitioner] was a model prisoner who, while incarcerated at the jail, caused no disciplinary problems whatsoever for either the staff or other prisoners.\u201d DeFlippo\u2019s affidavit, as previously mentioned, was procured after the circuit court denied post-conviction relief and was, therefore, not a factor in the court\u2019s ruling. Petitioner was apparently unable to obtain an affidavit from Ms. Bereni \u2014 or anyone else for that matter \u2014 to substantiate his claim that he was abused as a child.\nThus, in addition to the testimony at sentencing and the material in petitioner\u2019s presentence investigative report, which this court previously found insufficient to warrant a different result, petitioner has now obtained two affidavits which attest that petitioner was generally a \u201cgood person and good worker\u201d in the 1970s and the affidavit of a jailer which shows that petitioner was not so unruly as to be remembered as a troublemaker. Although petitioner claims trial counsel failed to investigate favorable mitigating evidence, this is the extent of the evidence petitioner and post-conviction counsel have been able to produce. We simply do not believe this evidence warranted an evidentiary hearing or a departure from this court\u2019s ruling on direct appeal.\nIn contradistinction to petitioner\u2019s mitigating evidence, the State possessed a veritable arsenal of aggravating evidence, including, first and foremost, the circumstances of the offense itself. Petitioner brutally murdered a 63-year-old woman who had befriended him. While he was in her home earlier in the day, at which time she gave him some oil for his automobile, petitioner took Mrs. Waid\u2019s keys, intending to return later and rob her. Petitioner did in fact return later with a knife and a pipe filled with concrete. After he employed subterfuge to gain entry to her home, petitioner informed Mrs. Waid that he intended to rob her, at which time she pleaded with him not to hurt her. She was apparently looking for money in a drawer in an effort to comply with petitioner\u2019s demands, when petitioner struck her on the head with the pipe not once, not twice, but 17 times, causing her death. At one point, petitioner shifted the pipe from his left hand to his right hand in order to get more leverage. After he had bludgeoned her to death, petitioner stabbed Mrs. Waid\u2019s lifeless body twice for good measure. The armed robbery netted petitioner $25. He went to great lengths to conceal his commission of the crime. Petitioner was a convicted felon who was on probation at the time he murdered Mrs. Waid. Petitioner had, in the past, demonstrated violent tendencies on one occasion with his first wife. During a period of marital discord and separation, petitioner broke down the door of his wife\u2019s apartment, started to rip her clothing away, then hit her in the side of her face with his fist, breaking a bone in the roof of her mouth and knocking out some of her teeth.\nIn light of this aggravating evidence, evidence that two co-workers thought petitioner was a good person and that a jailer said petitioner stayed out of trouble while in jail seems rather insignificant indeed. The information alleged in and appended to the post-conviction petition was insufficient to demonstrate prejudice and require a departure from this court\u2019s holding in petitioner\u2019s direct appeal. Since petitioner has not overcome the prejudice prong of the test announced in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, both of his claims of ineffective assistance of counsel must fail.\nBefore concluding, we briefly address petitioner\u2019s contention that the circuit court erred in dismissing the post-conviction petition without having first allowed petitioner\u2019s request for appointment of a psychological expert. On September 23, 1987, both petitioner\u2019s post-conviction counsel and an assistant State\u2019s Attorney appeared before the circuit judge. At that time, petitioner\u2019s attorney agreed to proceed on the State\u2019s motion to dismiss even though he had not obtained a ruling on petitioner\u2019s motion for appointment of experts \u201cfor the purpose of a forensic psychological analysis.\u201d It does not appear of record that petitioner ever sought and obtained such a ruling in the circuit court. As we have recently noted, and hope to soon impress upon practitioners within this State, a movant has the responsibility to obtain a ruling on his motion if he wishes to raise a question pertaining thereto on appeal, and where a party, as here, acquiesces in proceeding in a given manner, he is not in a position to claim he was prejudiced thereby (People v. Schmitt (1989), 131 Ill. 2d 128, 137). Petitioner indicated he was prepared to proceed on the State\u2019s motion to dismiss, knowing full well he had not obtained a ruling on his motion for appointment of an expert. He acquiesced in a procedure which could, and did, result in a dispositive ruling on his petition, without having first obtained a ruling on his motion for an expert. He cannot now claim error.\nFor the reasons stated, the judgment of the circuit court is affirmed. The clerk of this court is directed to enter an order fixing Wednesday, March 13, 1991, as the date on which the sentence of death entered by the circuit court shall be executed. The defendant shall be executed by lethal injection in the manner provided by section 119 \u2014 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 119 \u2014 5). A certified copy of the mandate in this case shall be furnished by the clerk of this court to the Director of Corrections, to the warden of Stateville Correctional Center, and to the warden of the institution wherein the defendant is confined.\nAffirmed.", "type": "majority", "author": "JUSTICE CALVO" } ], "attorneys": [ "Charles M. Schiedel, Deputy Defender, of Springfield, and Charles W. Hoffman, Assistant Defender, of Chicago, both of the Office of the State Appellate Defender, for appellant.", "Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Terence M. Madsen, Assistant Attorney General, of Chicago, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 68897.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOHNNY NEAL, JR., Appellant.\nOpinion filed December 20, 1990.\nRehearing denied April 1, 1991.\nCharles M. Schiedel, Deputy Defender, of Springfield, and Charles W. Hoffman, Assistant Defender, of Chicago, both of the Office of the State Appellate Defender, for appellant.\nNeil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Terence M. Madsen, Assistant Attorney General, of Chicago, of counsel), for the People." }, "file_name": "0140-01", "first_page_order": 150, "last_page_order": 162 }