{ "id": 3283365, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DOMINGO PEREZ, Appellant", "name_abbreviation": "People v. Perez", "decision_date": "1992-03-26", "docket_number": "No. 67676", "first_page": "168", "last_page": "196", "citations": [ { "type": "official", "cite": "148 Ill. 2d 168" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "108 Ill. 2d 70", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130235 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/108/0070-01" ] }, { "cite": "474 U.S. 1110", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6541316, 6541291, 6541132, 6541234, 6541084 ], "opinion_index": 0, "case_paths": [ "/us/474/1110-05", "/us/474/1110-04", "/us/474/1110-02", "/us/474/1110-03", "/us/474/1110-01" ] }, { "cite": "88 L. Ed. 2d 931", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "106 S. Ct. 898", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 8, "year": 1990, "pin_cites": [ { "page": "687-88, 689" }, { "page": "693-94, 95" }, { "page": "2064-65, 2066" }, { "page": "695" }, { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "135 Ill. 2d 78", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256644 ], "weight": 2, "pin_cites": [ { "page": "116-17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0078-01" ] }, { "cite": "144 Ill. 2d 242", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592120 ], "year": 1987, "pin_cites": [ { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0242-01" ] }, { "cite": "483 U.S. 776", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 28169 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/483/0776-01" ] }, { "cite": "126 Ill. 2d 248", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5557518 ], "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/126/0248-01" ] }, { "cite": "935 F.2d 850", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10539560 ], "pin_cites": [ { "page": "857" } ], "opinion_index": 0, "case_paths": [ "/f2d/935/0850-01" ] }, { "cite": "867 F.2d 351", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10525342 ], "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/f2d/867/0351-01" ] }, { "cite": "928 F.2d 1006", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1138340 ], "weight": 2, "pin_cites": [ { "page": "1018" } ], "opinion_index": 0, "case_paths": [ "/f2d/928/1006-01" ] }, { "cite": "846 F.2d 642", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1788495 ], "weight": 2, "pin_cites": [ { "page": "652" } ], "opinion_index": 0, "case_paths": [ "/f2d/846/0642-01" ] }, { "cite": "855 F.2d 631", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10531161 ], "opinion_index": 0, "case_paths": [ "/f2d/855/0631-01" ] }, { "cite": "762 F.2d 886", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 366200 ], "opinion_index": 0, "case_paths": [ "/f2d/762/0886-01" ] }, { "cite": "58 N.Y.U. L. Rev. 299", "category": "journals:journal", "reporter": "N.Y.U. L. Rev.", "year": 1983, "pin_cites": [ { "page": "322" } ], "opinion_index": 0 }, { "cite": "455 U.S. 104", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11304091 ], "weight": 3, "pin_cites": [ { "page": "112" }, { "page": "9" }, { "page": "875" } ], "opinion_index": 0, "case_paths": [ "/us/455/0104-01" ] } ], "analysis": { "cardinality": 1589, "char_count": 49555, "ocr_confidence": 0.788, "pagerank": { "raw": 2.6572734028013717e-07, "percentile": 0.8245814717383138 }, "sha256": "9baa73381480632a075229c8448f279bb0b98d3067b90d6f69139d691f2290e1", "simhash": "1:aa818ae66b2f767f", "word_count": 7848 }, "last_updated": "2023-07-14T18:46:12.559919+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DOMINGO PEREZ, Appellant." ], "opinions": [ { "text": "JUSTICE CUNNINGHAM\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Will County, Domingo Perez, an inmate in the Illinois correctional system, was convicted of the murder of a fellow inmate, Richard Cook. Pursuant to section 9 \u2014 1(d) of the Criminal Code of 1961 (111. Rev. Stat. 1979, ch. 38, par. 9 \u2014 1(d)), the State requested a death penalty hearing, which was held before the same jury that convicted defendant. The jury first found a statutory aggravating factor (111. Rev. Stat. 1979, ch. 38, par. 9 \u2014 1(b)(2)) and then concluded there were no mitigating factors sufficient to preclude a sentence of death (111. Rev. Stat. 1979, ch. 38, par. 9 \u2014 1(g)). Accordingly, the circuit court sentenced defendant to death. On direct appeal to this court (111. Const. 1970, art. VI, \u00a74(b); 87 Ill. 2d R. 603), defendant\u2019s conviction and death sentence were affirmed. (People v. Perez (1985), 108 Ill. 2d 70.) A petition for rehearing in this court was denied, and the Supreme Court denied defendant\u2019s petition for writ of certiorari. Perez v. Illinois (1986), 474 U.S. 1110, 88 L. Ed. 2d 931, 106 S. Ct. 898.\nDefendant thereafter filed a petition under the Post-Conviction Hearing Act (111. Rev. Stat. 1983, ch. 38, par. 122 \u2014 1 et seq.), and the circuit court appointed counsel to represent defendant. Post-conviction counsel filed an amended petition which alleged the following: (1) defendant received ineffective assistance of counsel at the trial and appellate levels; (2) the Illinois death penalty statute is unconstitutional; and (3) this court failed \u201cto apply principals [sic] of State law to [defendant\u2019s] case which it has applied to other similarly situated defendants.\u201d\nThe State filed a motion to dismiss and an answer to defendant\u2019s amended petition. Defendant responded by filing a memorandum in opposition to the State\u2019s motion to dismiss and a supplemental post-conviction petition. After the State filed its answer, the circuit court entered an order denying the State\u2019s motion. The court\u2019s order also dismissed some of the allegations in defendant\u2019s petition, but reserved some for an evidentiary hearing. An evidentiary hearing was held, and the post-conviction court denied defendant relief. Defendant\u2019s appeal from this denial was transferred to this court for direct review pursuant to Supreme Court Rule 651 (134 Ill. 2d R. 651).\nOn appeal, defendant argues: (1) he received ineffective assistance of counsel due to his counsel\u2019s failure to investigate mitigation evidence about his family and his failure to introduce mitigating evidence he possessed; (2) his death sentence is unreasonably disparate from the life sentence of his more culpable codefendant; (3) this court\u2019s application of waiver on defendant\u2019s direct appeal was inconsistent with other decisions of this court, resulting in violations of due process, equal protection, and the eighth amendment; (4) he was denied effective assistance of counsel at sentencing by counsel\u2019s errors and procedural omissions and on appeal by counsel\u2019s failure to argue ineffective assistance of trial counsel based on those errors; and (5) the imposition of the death penalty upon a mentally retarded person such as himself is cruel and unusual punishment. We find it unnecessary to address each of defendant\u2019s issues, as one allegation of ineffective assistance of counsel stands out and requires us to vacate defendant\u2019s sentence and remand the cause for a new sentencing hearing: the failure of defendant\u2019s trial counsel to investigate and provide evidence of mitigation at the sentencing hearing.\nAt the post-conviction hearing, defendant\u2019s trial attorney, Daniel Doyle, testified regarding his efforts to garner and present mitigating evidence on behalf of defendant at the second phase of defendant\u2019s death penalty hearing. Doyle knew the State would seek the death penalty and that there was a likelihood the trial would proceed to a sentencing hearing involving aggravating and mitigating factors. In October 1982, Doyle looked through defendant\u2019s master file at Stateville prison and asked him about his background. Defendant refused to provide Doyle any information about his family or background at this time. Defendant would not reveal his place of birth, or any information about his parents. Defendant did tell Doyle that he had no brothers or sisters, no relatives, no friends, no visitors, and had no communication with anyone outside the prison. During this questioning, defendant would not speak to Doyle in English. Instead, defendant spoke to Doyle in Spanish through an interpreter. Doyle did not send his court-appointed investigator to search defendant\u2019s background for any possible mitigating evidence.\nIn November 1982, Doyle again questioned defendant about his family. Defendant still refused to reveal any information. Doyle asked defendant about his family several other times and received the same response. Doyle testified that he had no information concerning defendant\u2019s family, and specifically denied knowing defendant\u2019s parents\u2019 names, whether defendant had any brothers or sisters, or defendant\u2019s previous addresses. The only thing Doyle knew about defendant\u2019s background was that he had lived somewhere in Chicago.\nDefendant\u2019s trial began June 1, 1983, and ended June 9, 1983. At the trial\u2019s conclusion, Doyle asked the court for \u201csufficient time\u201d to prepare for the sentencing phase. The court set the sentencing date for June 15, 1983. Sometime after June 9, but before June 15 (Doyle\u2019s billing record reflects it was June 11, 1983), defendant gave Doyle some information about his background. Defendant wanted the information admitted at the sentencing hearing, but did not want to testify. Doyle used the information to prepare an affidavit. Defendant stated in the affidavit that he had two brothers and one sister, and was the oldest in the family. Defendant further stated that when he was a teenager, his mother and father got into a fight one night when he was asleep, and while he was gone the next day, everyone moved away. No one told defendant what happened or why until much later. Defendant was on his own at this time and met a priest from the neighborhood who helped him get into a halfway house called \u201cLaFamilia.\u201d Defendant later found his father and lived with him for awhile before defendant entered Stateville prison. Since defendant had been in prison, no member of his family had come to visit him, or written him, except for his brother Eddie who contacted defendant in May 1983. Doyle testified that this was the first time he was aware of any of the information contained in the affidavit, except for defendant\u2019s birthdate.\nOn June 14, 1983, defendant gave Doyle information about \u201cLa Casa Nostra,\u201d a shelter at which defendant had lived. Defendant also told Doyle about a community clinic called \u201cEl Rincon,\u201d and a priest defendant knew. Defendant wanted Doyle to \u201clook into\u201d these places, and described the area in Chicago using street names. Defendant also gave Doyle some phone numbers he thought Doyle could use to contact these places and the priest. Doyle called the numbers defendant gave him, but obtained no useful information. Doyle never went, or sent the investigator, to Chicago to look for the priest or the area described by defendant. Doyle also did not request any more time from the court to investigate this new evidence.\nDoyle acknowledged that defendant\u2019s conviction record from 1979 listed defendant\u2019s last known address as 1922 W. Division in Chicago. Doyle could not recall whether he had known about this address during the trial.\nDefendant, who was not fluent in English, declined to testify on his own behalf at the sentencing hearing. Doyle believed defendant would not testify because he was very embarrassed about his family\u2019s abandoning him and not coming to see him in prison. Doyle did attempt to introduce defendant\u2019s affidavit, even though he thought the court would not admit it, because he thought he had no other options available. As expected, the court refused to admit the affidavit into evidence.\nDespite defendant\u2019s unwillingness to provide any background information, and Doyle\u2019s testimony that he had no such information, Doyle did have defendant\u2019s school records, which contained information about defendant\u2019s childhood and family. Included in these records were two scholastic aptitude reports compiled by qualified school psychologists.\nThe first scholastic aptitude report, compiled in 1967 when defendant was eight years old, contained defendant\u2019s address and telephone number. The report also revealed that defendant was the oldest of three children and that defendant\u2019s parents were separated. Defendant\u2019s mother, Olga Perez (Mrs. Perez), stated in the report that defendant\u2019s father displayed \u201clittle concern for his family *** [and s]he never [heard] from him.\u201d\nThe 1967 report also contained results of intelligence tests given to defendant, which revealed a verbal scale IQ of 60, a performance scale IQ of 72, and a full scale IQ of 62. Since defendant\u2019s full scale IQ fell below 70, he was classified on the Wechsler Intelligence Scale as \u201cmentally deficient.\u201d (D. Wechsler, Manual for the Wechsler Intelligence Scale for Children \u2014 Revised 26 (1974).) School test data revealed defendant to be in the bottom 5% of school children his age and rated his chances of difficulty as \u201chigh\u201d in first grade work. Defendant\u2019s teacher reported that defendant was \u201can almost constant troublemaker\u201d and his work level and output were \u201cvery low.\u201d Defendant rarely followed classroom routine, and refused to participate in reading and writing exercises. Defendant also tripped other children, grabbed their crayons, broke things and threw things on the floor. The reporting school psychologist observed: \u201cdefendant seemed rather tense and anxious. He was very slow in responding and had poor verbal ability and a short attention span.\u201d When reading material was presented to defendant, he \u201clooked around and acted in a negative, distractible manner. He could recognize no words from a preprimer list.\u201d The psychologist concluded that defendant\u2019s disruptive classroom behavior resulted from his inability to do the classwork. She recommended placement of defendant in a program for mentally handicapped children (EMH program).\nThe second scholastic aptitude report, compiled in 1971 when defendant was 11 years old, contained an address and telephone number for the Perez family, which were different than the ones listed in the 1967 report. In this second report, Mrs. Perez indicated that she had been separated from her husband for over two years and had not heard from him during that time. The five members of defendant\u2019s family lived in a four-room apartment. Mrs. Perez managed through funds from the Department of Public Aid in the form of Aid to Families with Dependent Children (ADC). Defendant willingly helped with household chores, and had no friends of his own age.\nIn addition to the earlier intelligence test results from the 1967 report, the 1971 report contained new intelligence tests results. These new results revealed a verbal scale IQ of 70, a performance scale IQ of 90, and a full scale IQ of 77, which placed defendant in a category known as \u201cborderline,\u201d between \u201cmentally deficient\u201d and \u201clow average (dull).\u201d (D. Wechsler, Manual for the Wechsler Intelligence Scale for Children \u2014 Revised 26 (1974).) The psychologist reported:\n\u201cAlthough [defendant] appeared to cooperate to the best of his ability, he was slow to respond and at times required some encouragement. This boy appears to have considerable difficulty with tasks involving conceptualization.\u201d\nThe psychologist recommended defendant\u2019s continued participation in an EMH program, noting in particular defendant\u2019s low verbal scale score. and the fact that defendant had already benefited from the program. There was no indication in this report that defendant was a disruptive force in the EMH classroom.\nAlthough Doyle had these school progress records, and had in fact used them as exhibits during an earlier proceeding to determine whether defendant understood English, Doyle did not introduce the records at defendant\u2019s death penalty hearing. Doyle acknowledged there was mitigating information in the records, but thought he failed to introduce them because defendant did not want any information about himself or his family used in the proceedings. Doyle could not say that defendant told him not to use the school records.\nDoyle later testified that he could not recall why he had not sought the record\u2019s admission, but speculated that he must have concluded that the characterization in the 1967 report of defendant as a \u201ctroublemaker\u201d when he was eight years old outweighed the mitigating information that report provided. Doyle could not explain why he failed to introduce the 1971 report, which, unlike the 1967 report, did not contain the information that defendant was a troublemaker. Concerning the results of the WISC standardized tests revealing defendant to be mentally deficient, Doyle could not say he understood what they were at the time of the death penalty hearing, and did not present the results to anyone to interpret for him.\nDoyle did introduce at sentencing a copy of a psychological report written shortly after defendant\u2019s incarceration in the Department of Corrections for an armed robbery conviction. The report, evincing an examination conducted by a Department of Corrections psychologist, Dennis Becraft, did contain some mitigating evidence:\n.\u201c[Defendant] impresses as somewhat emotionally disturbed and alcohol dependent as a result of attempting to escape this disturbance. The emotional problems revolve around rejection by his family which was disintegrated, leaving him with no support or knowledge of their whereabouts.\u201d\nThe report, however, contained much more that was damaging to defendant\u2019s case. For example, Becraft observed: \u201c[defendant is] aggressive, criminally-oriented, and a member of the Latin Kings organization. He is likely to become quickly institutionalized with high likelihood of recidivism.\u201d (Emphasis added.) Becraft perceived defendant as \u201cbasically uncommunicative\u201d and noted that defendant \u201cwas often attending poorly to the interview.\u201d Becreaft\u2019s report also noted that defendant felt he had damaged his brain through drug abuse, and concluded defendant was \u201clikely to adjust inadequately to incarceration due to gang activities.\u201d (Emphasis added.)\nDoyle called Becraft to testify at the sentencing hearing, but did not examine him concerning the report\u2019s contents. Instead, Doyle only used Becraft to lay the foundation for the report. The State, however, cross-examined Becraft about the aggravating evidence in the report.\nFollowing post-conviction counsel\u2019s questioning of Doyle, the court conducted its own limited questioning of Doyle. The court noted that Doyle had once moved orally to withdraw as counsel for defendant because of a disagreement with defendant. The following exchange was then initiated by the court:\n\u201cTHE COURT: [Was] there ever a time when you made, a motion saying that Mr. Perez wouldn\u2019t cooperate with you and wouldn\u2019t give you information, wouldn\u2019t participate in his defense, and did you ever make any kind of motion like that?\nMR. DOYLE: I can\u2019t recall, Judge, honestly.\nTHE COURT: Okay. Do you recall whether or not there was ever a motion, a competency type of motion having to do with his competency to assist in his defense due to these communications problems that you were having with him, where he was reticent and wouldn\u2019t tell you things and wouldn\u2019t come forward with any information, any motion like that?\nMR. DOYLE: There was the hearing that was held, I believe it was in May, about understanding the English language. That is when a lot of that came out. I think it was May. I am not sure about the date, though.\nTHE COURT: All right, okay. But there was no formal, there was no type of competency hearing where there was anything having to do with his mental ability to cooperate with you, like where you would have a couple of psychiatrists or psychologists appointed to examine him?\nMR. DOYLE: No, there was never any psychiatrist for that reason.\nTHE COURT: All right. Okay. That is all the questions the Court has.\u201d\nThe next witness to testify was Harold Barnes, a protective services investigator for the Illinois Department of Children and Family Services. Barnes had been enlisted by post-conviction counsel to investigate defendant\u2019s background. Barnes initiated his investigation by speaking extensively with defendant, after which Barnes contacted Mrs. Perez, and his brothers and sister. He also reviewed prison and school records. Barnes testified that the procedures he employed were those customarily followed in his profession.\nBarnes learned that defendant\u2019s family consisted of his mother, father, two brothers, and a sister. Defendant\u2019s father was a factory worker throughout most of his life, and his mother was a homemaker. Defendant\u2019s father dominated the Perezes\u2019 chaotic home life. Defendant\u2019s brother Eddie told Barnes:\n\u201c[Their father] was actively involved in drug selling. He brought drugs into the house. We\u2019re talking about either it was cocaine or heroin. In fact he free based in the house. He bought marijuana. He bought handguns, we\u2019re talking about rifles, shotguns, small handguns. He sold them. Both drugs and guns. My father was a role model. He was much more a role model to my older brother (Domingo) than anything else. My father was into drugs, and Domingo got into drugs as well. Domingo began using drugs because it was there (in the house). He knew my father was selling drugs and initially that\u2019s how he got into using marijuana. My father was also an alcoholic. He used to come in drunk and tear up the house. He was very abusive, a very abusive man. Our every day to day life was living in fear not knowing every day that he would come in, whether or not he was drunk or not and whether or not he\u2019d be abusive. My father was very abusive to my mother. We (Domingo, Eddie, and Juana) tried to stop him several times, but of course we were no match for this man. We\u2019d just get slapped across the face and get punched. He\u2019d rip off electrical cords, actually off an appliance and he\u2019d start hitting us with-them. He\u2019d throw things at us. Once he grabbed my sister and knocked her against the wall and cut her open. This is the type of man that he was, coming into the house like that. My father was physically abusive to all of us. We wouldn\u2019t laugh around the house when my father was there because if we\u2019d laugh, we might get it depending on his moods. There used to be times when my father would yell at Carlos and I\u2019d laugh about it and I\u2019d get whipped. I mean whipped. Not just slapped. I mean whipped. This was the kind of life we were living on a day to day basis. I don\u2019t know how much money he spent on furniture either. He has torn up so much furniture it\u2019s unbelievable, coming into the house and just tearing everything apart. I mean he\u2019d take out his knife and just start tearing, tearing everything.\u201d\nMrs. Perez told Barnes that, as a child, defendant had difficulty in school. However, defendant did make progress when a teacher at a \u201cspecial school\u201d took an interest in him. In 1975, Mrs. Perez fled with her children to New York to escape defendant\u2019s abusive father. Mrs. Perez was concerned about the influence her husband was having on defendant. Mrs. Perez returned to Chicago with her younger children after approximately four to six months. Defendant and his grandmother returned to Chicago two months later. Defendant\u2019s father was not informed of their whereabouts.\nMrs. Perez noticed that defendant had changed once he was in New York and away from his father. When defendant returned to Chicago, he got a job at a grocery store and regularly contributed toward maintenance of the family. Defendant\u2019s family accepted him as a productive member. His job afforded him a degree of confidence, self-esteem and hopes of success. For the first time in defendant\u2019s life, he was achieving, and he responded in a very positive manner. At this time, defendant was 16 years old. He had dropped out of high school in his freshman year.\nAccording to Barnes, defendant was eventually dismissed from his job because of his inadequate reading skills. Defendant could not read the labels on grocery items. Around the same time, defendant witnessed the shooting death of a close friend. These two things, the loss of his job and friend, greatly affected defendant. Defendant could not find another job and, after awhile, became resigned to the fact that he was not going to find work. Defendant began to stay out late at night, smoking marijuana and drinking. He came into contact with members of the Latin Kings street gang.\nAnother factor contributed to defendant\u2019s change of behavior. Defendant\u2019s grandmother became increasingly antagonistic toward him, primarily because he was not bringing in any money. At her mother\u2019s urging, Mrs. Perez decided to abandon defendant because she feared he would contact his father and inform him of the family\u2019s whereabouts. She also felt defendant was a bad influence on the younger children. The family thus moved out of their residence one day when defendant was away. Defendant knew nothing of the family\u2019s departure until he returned to the empty residence. Mrs. Perez severed all ties with defendant. In fact, Mrs. Perez took steps to make sure defendant would not find her, going so far as to ask Father John Kathrein, a priest at her children\u2019s previous school, not to tell defendant where she and her family were.\nAfter she abandoned defendant, Mrs. Perez learned, through a contact in the neighborhood, that her son was living wherever he could find shelter. Kathrein helped defendant get into a halfway house called \u201cLa Casa Nostra.\u201d About three months after defendant had been abandoned, he persuaded Kathrein to contact his mother by telephone and plead his case. According to Barnes, defendant begged Kathrein to phone his mother and tell her that he was sorry, would behave himself, and would not get into any trouble if she would allow him to return home. Mrs. Perez refused to have any contact with defendant and subsequently learned that defendant was no longer \u201changing around\u201d the neighborhood. Mrs. Perez lost all contact with defendant.\nWhen defendant realized that he would not be able to locate his family, he moved out of the halfway house and moved in with his father, with whom he had reestablished contact. Defendant\u2019s reconciliation with his father was short-lived. On December 20, 1978, Mr. Perez ejected defendant from his house and told him not to return. On that day, defendant \u201cran into\u201d a friend, Freddy Ramos, went to an \u201cEl\u201d station, and committed an armed robbery. Defendant was armed with scissors, and Ramos had \u201csome kind of pipe.\u201d Defendant said he committed the robbery \u201cto get money to find some place to live and to buy marijuana.\u201d Defendant and Ramos were immediately apprehended by a police officer who witnessed the robbery. Defendant was approximately 18 years old at the time of the robbery, and 19 years old in 1979 when he entered the correctional system. Defendant has been incarcerated ever since.\nBarnes further testified that defendant denied he had been an initiated member of the Latin Kings prior to incarceration. However, defendant admitted he knew members of the Latin Kings who were inmates at State-ville Correctional Center, and he associated with them, hoping for some degree of protection. After approximately one year in prison, defendant decided to join the Latin Kings, purportedly for protection. Defendant\u2019s behavior began to markedly deteriorate after eight months of incarceration. For the next five years, defendant had no contacts outside of the prison community. It was during this period of time that defendant participated in the murder of rival gang member Richard Cook.\nIn 1983, after defendant had been charged with Cook\u2019s murder, defendant\u2019s brother, Eddie Perez, began to look for defendant. Eddie and a co-worker theorized that defendant might have been arrested. Acting upon that assumption, the two located defendant at the Menard Correctional Center. After Eddie found defendant, family members began to visit him, write him letters, and speak to him by telephone.\nBarnes testified that the intervention of a social worker might have altered the course of events after defendant was incarcerated by giving him someone to relate to \u201cother than being forced into [the] society of the Latin Kings.\u201d Barnes described defendant as a \u201cdependent personality, a person who has responded to the few overtures that have been presented to him.\u201d\nBarnes acknowledged that he had spoken extensively with defendant during the course of his investigation and had been able to contact Mrs. Perez because post-conviction counsel had given him her phone number and address. Starting with Mrs. Perez, Barnes had then contacted the other family members. Although defendant gave Barnes some background information, Barnes said it was necessary to talk to the members of defendant\u2019s family. According to Barnes, defendant could not recall many things, and perhaps did not want to discuss certain things with him.\nNext to testify at the post-conviction hearing was Andrea Lyon, an attorney with the Cook County public defender\u2019s office, and an expert on death penalty litigation. Lyon was called as a witness on defendant\u2019s behalf. Lyon, a member of the National Criminal Defense College, had personally tried about 30 capital cases, 12 of which went to death penalty hearings. None of Lyon\u2019s clients received the death penalty. Lyon also teaches classes on the death penalty, conducts death penalty seminars in Illinois and throughout the country, has written the Illinois Death Penalty Defense manual, and has published articles in magazines concerning the death penalty.\nAccording to Lyon, many attorneys fail to conduct adequate investigations for potentially mitigating evidence. Lyon believes no attorney should try a capital case alone. An attorney defending a capital case should start his or her investigation into mitigation the same day the case is received, and all available records should be examined at the outset. Next, the attorney should talk to persons mentioned in the records. Lyon considered consultation with the client \u201cextremely important.\u201d Experts such as neurologists, psychiatrists, sociologists and social workers should be consulted, where indicated, with a view to \u201cputting together all [the] pieces into some kind of psychological or sociological picture [of defendant].\u201d\nLyon said it is a very common problem in death penalty cases to have an uncooperative client. Some clients refuse to talk to their attorneys because they are afraid; others refuse to talk in order to protect family or friends. In such an instance, Lyon testified, the attorney should gather as much specific information as possible from other sources, and approach the client with the information. Even if a client does not want his family involved, his lawyer should go and find the family anyway. Lyon stated her belief that an attorney has \u201ca duty both legally and morally *** to test the system\u201d and adduce mitigating evidence notwithstanding his or her client\u2019s instructions to the contrary. In certain cases, the services of an expert may be useful to help understand a recalcitrant client and to obtain information. The expert may succeed where the attorney cannot.\nFollowing Lyon\u2019s testimony, the circuit court heard arguments from both sides and took the matter under advisement. On July 21, 1988, the court rendered its decision.\nThe circuit court directed its comments to Doyle\u2019s representation of defendant at the second phase of the death penalty proceeding, the focus of the evidentiary hearing:\n\u201cThe crux of the problem has to do with the evidence in mitigation or lack of evidence in mitigation that was put in the case. And there is no question from the record that there was very little evidence put into the record before this jury that was mitigating, and so that the result was that Mr. Perez, convicted of murder and the jury having properly found the proper aggravating factor, there being very little in mitigation, Mr. Perez wound up sentenced to death.\u201d\nNotwithstanding a dearth of mitigating evidence at the sentencing phase of trial (Becraft\u2019s report was the only evidence Doyle presented that was admitted; the State even argued there was no mitigating evidence), the court attributed the lack of mitigating evidence to defendant\u2019s recalcitrance, rather than defense counsel\u2019s ineffectiveness. The court noted that defendant had \u201cinsisted that his family, that his background, that his rather difficult childhood not be used in any way in [the] proceedings.\u201d The court also found defendant\u2019s lack of cooperation to be \u201ca very important factor\u201d in the case. The court decided Doyle was not ineffective in failing to pursue or introduce evidence of defendant\u2019s family background in light of the obstacles he faced. The court also believed that Doyle was under no obligation to send the investigator to search defendant\u2019s background for any mitigating evidence. Concerning defendant\u2019s school records, the court noted that while they were available, did contain some mitigating evidence, and probably should have been introduced, the failure to introduce them did not affect the reliability of the verdict. The court concluded:\n\u201c[W]hile the Court is of the opinion that [defendant] did not have perhaps a perfect trial, the Court believes that much of it was due to his own fault, and the Court believes that there is nothing in the area of ineffective assistance of counsel that rises to the level of depriving him of his Sixth Amendment right to counsel.\u201d\nWe disagree with the trial court\u2019s conclusion, and find two errors on Doyle\u2019s part which require us to vacate defendant\u2019s sentence and remand for a new sentencing hearing: (1) Doyle\u2019s failure to investigate and present to the jury evidence of defendant\u2019s mental history; and (2) Doyle\u2019s failure to make even a minimal search into defendant\u2019s background with the information he possessed.\nThe test for ineffective assistance of counsel was provided in the Supreme Court decision Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. This court, in People v. Franklin (1990), 135 Ill. 2d 78, discussed the test for ineffective assistance of counsel and set forth what a defendant must show to prevail on such a claim:\n\u201c(1) that his counsel\u2019s performance was so deficient as to fall below an objective standard of reasonableness under \u2018prevailing professional norms\u2019; and (2) that the deficient performance so prejudiced the defense as to deny the defendant a fair trial. [Citation.] To establish the deficiency of counsel\u2019s performance, the defendant must overcome the \u2018strong presumption\u2019 that his counsel\u2019s representation fell within the \u2018wide range of reasonable professional assistance.\u2019 [Citation.] As such, \u2018strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.\u2019 \u201d (Emphasis added.) Franklin, 135 Ill. 2d at 116-17, quoting Strickland, 466 U.S. at 687-88, 689, 80 L. Ed. 2d at 693-94, 95, 104 S. Ct. at 2064-65, 2066.\nFailure to present mitigating evidence at a capital sentencing hearing does not in itself prove that a defense attorney was ineffective. (People v. Jones (1991), 144 Ill. 2d 242, 278; Burger v. Kemp (1987), 483 U.S. 776, 97 L. Ed. 2d 638, 107 S. Ct. 3114.) In certain cases, mitigating evidence may be so flawed or potentially damaging to the defendant that competent counsel would make a strategic choice not to present it. In such cases, \u201cwe must presume that it was these drawbacks, and not merely lack of diligence, which was behind counsel\u2019s decision.\u201d (People v. Caballero (1989), 126 Ill. 2d 248, 275.) In this case, however, we find that it was Doyle\u2019s lack of diligence, rather than any drawback or strategy, which prevented him from introducing important mitigating evidence.\nI\nWhether Counsel\u2019s Actions Fell Below an Objective Standard of Reasonableness Under Prevailing Professional Norms\nA\nFailure to Investigate and Present to the Sentencing Jury Evidence of Defendant\u2019s Mental History\nDoyle had in his possession at the time of the sentencing hearing defendant\u2019s school records, which revealed that defendant was mentally deficient and was placed in special classes for the educably mentally handicapped. Yet, Doyle failed to present this important mitigating evidence to the sentencing jury. We find no reasonable explanation for Doyle\u2019s actions, and conclude that his failure to present the evidence to the sentencing jury was not the product of a thorough investigation, but rather of ignorance of the information, and thus not a strategic decision.\nAt the post-conviction hearing, Doyle testified that he failed to use defendant\u2019s school records at the sentencing hearing because defendant would not allow him to use any information about his family or background in the proceedings. The State argues that this testimony reveals a reasonable decision on Doyle\u2019s part not to use the school records. This testimony, however, is inconsistent with other testimony Doyle gave at the post-conviction hearing and with his actions at the sentencing hearing. Specifically, Doyle testified that defendant eventually did give him information about his family which he wanted admitted at the sentencing hearing in the form of an affidavit. Defendant also gave Doyle information about a shelter, a clinic, and a priest, and gave him phone numbers and street names for Doyle to \u201clook into.\u201d This clearly indicates that defendant had allowed Doyle to use information about his background and family at the sentencing hearing. Furthermore, Doyle argued for the admission of defendant\u2019s affidavit, which contained information about defendant\u2019s family and background, and introduced Becraft\u2019s report which also contained such information. It thus cannot be said that Doyle failed to use the information contained in the school records concerning defendant\u2019s mental history because defendant instructed him not to use any information about his family or background.\nDoyle later testified that he could not explain why he had not used the school records, but stated that if he had to guess, it was because the records labeled defendant a \u201ctroublemaker.\u201d The State argues this testimony shows Doyle made a reasonable strategic decision not to introduce the school records. We disagree for several reasons. While the 1967 report stated that defendant was a troublemaker, it also explained why he was a troublemaker: defendant was unable to perform work at his grade level because of his mental handicap. Moreover, the 1971 report did not state that defendant was a troublemaker in class, but did contain the results of defendant\u2019s intelligence tests as well as other mitigating evidence. Doyle could not explain why he failed to introduce the 1971 report. Additionally, if Doyle had read both reports together, he would have known that while defendant may have been a troublemaker in regular school classes in 1967 due to his mental handicap, once he was placed in the EMH program, he \u201ccooperated to the best of his ability.\u201d\nWe further discount Doyle\u2019s \u201ctroublemaker\u201d rationale for not using the school records because Doyle did introduce Becraft\u2019s report at the sentencing hearing, a report which contained a much greater amount of aggravating evidence (\u201c[defendant is] aggressive, criminally oriented, *** likely to become quickly institutionalized with high likelihood of recidivism *** and likely to adjust inadequately to incarceration due to gang activities\u201d) than the 1967 school records, which only described defendant as a \u201ctroublemaker.\u201d And, as previously noted, the 1971 report did not even contain this information about defendant\u2019s classroom behavior. We fail to see any reasonable strategic choice by Doyle in using Becraft\u2019s report for its minimal mitigating evidence, rather than using the school reports for information concerning defendant\u2019s mental history.\nWe conclude that Doyle was unaware of the school reports\u2019 contents at the time of the sentencing hearing, and thus failed to properly investigate and use the information contained in the school records. Several other factors have led us to this conclusion. First, Doyle testified that he could not say whether he understood the meaning of the intelligence test results in the school reports at the time of the sentencing hearing, and did not have anyone interpret them for him. Doyle also claimed he knew nothing about defendant\u2019s family until defendant gave him information for the affidavit, even though the school records contained quite a bit of family information. Finally, Doyle testified that he argued for the admission of defendant\u2019s affidavit at the sentencing hearing for the mitigating information it contained, even though he knew it would not be admitted, because he had no other option at that time. Obviously, Doyle did not consider the school reports an option.\nWe also find troubling the fact that Doyle did not seek any independent expert testing of defendant when he should have been aware of defendant\u2019s mental deficiency. This failure to seek expert assistance is especially troubling in light of the fact that Doyle was having communication problems with defendant. As Lyon testified, experts may be needed in cases of recalcitrant defendants to determine why they will not cooperate with their attorney. Doyle took no steps to understand this problem.\nBecause Doyle failed to investigate defendant\u2019s mental history, his decision not to present such evidence to the sentencing jury cannot be deemed a strategic decision. Our decision is supported by a line of Federal cases in which counsels\u2019 failure to investigate and present defendants\u2019 mental histories was found to fall below objective standards of reasonableness and constitute ineffective assistance of counsel.\nIn Brewer v. Aiken (7th Cir. 1991), 935 F.2d 850, 857, the court held:\n\u201cIn our opinion, defense counsel\u2019s failure to investigate the mental history of a defendant with low intelligence demonstrates conclusively that he did not \u2018make a significant effort, based on reasonable investigation and logical argument, to ably present the defendant\u2019s fate to the jury and to focus the attention of the jury on any mitigating factors.\u2019 \u201d (Quoting Kubat v. Thieret (7th Cir. 1989), 867 F.2d 351, 369.)\nThe court in Aiken further noted that counsel\u2019s failure to investigate and present evidence of the defendant\u2019s mental history was even more serious in light of a court-appointed psychologist\u2019s testimony that the defendant had a dependent personality and was easily led by others. The same is true here, as Barnes testified that defendant had a dependent personality and responded to the few overtures presented to him, and evidence existed that defendant\u2019s codefendant, Hector Rivera, was a leader in the Latin Kings organization and most likely ordered the killing of Cook. Doyle did not introduce any of this evidence.\nAnother decision, Cunningham v. Zant (11th Cir. 1991), 928 F.2d 1006, dealt with counsel\u2019s failure to present evidence of a defendant\u2019s mild mental retardation to the jury. There, the court held:\n\u201cTrial counsel did not recall that the Central State Hospital personnel had diagnosed Cunningham to be mildly mentally retarded. Accordingly, their decision not to present such evidence cannot be deemed tactical.\u201d (Cunningham, 928 F.2d at 1018.)\nHere, Doyle could not recall whether he understood the meaning of defendant\u2019s test scores at the time of the sentencing hearing and did not have anyone interpret them for him. Thus, his decision not to present such evidence to the jury cannot be deemed tactical.\nIn Stephens v. Kemp (11th Cir. 1988), 846 F.2d 642, the court stated: \u201c[T]rial counsel\u2019s failure to investigate, present and argue to the jury at sentencing any evidence of appellant\u2019s mental history and condition constituted error \u2018so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed the defendant by the Sixth Amendment.\u2019 [Citation.]\u201d (Stephens, 846 F.2d at 652.) And, in Evans v. Lewis (9th Cir. 1988), 855 F.2d 631, the court found counsel\u2019s failure to investigate defendant\u2019s mental health, when he had evidence of mental illness, an important factor in finding the ineffective assistance of counsel.\nWe conclude that Doyle\u2019s failure to investigate and present to the jury defendant\u2019s mental history fell below objective standards of reasonableness under prevailing professional norms.\nB\nFailure to Investigate Defendant\u2019s Background\nWe next address Doyle\u2019s failure to investigate defendant\u2019s background with the information Doyle possessed, and conclude that this failure also fell below an objective standard of reasonableness trader prevailing professional norms. Doyle claimed that he failed to investigate defendant\u2019s background because defendant would not give him any information. As a result, Doyle believed he had no information about defendant to investigate. Doyle specifically denied knowing any information about defendant\u2019s mother or father, or knowing whether defendant had any brothers or' sisters until defendant gave him the information during the preparation of the affidavit just prior to sentencing. However, Doyle did have defendant\u2019s school records which contained family information such as his mother\u2019s name, his sister\u2019s name, his brother\u2019s name, addresses and telephone numbers from the time the reports were compiled, the fact that the family was on ADC, the names of defendant\u2019s schools, his teachers\u2019 initials, and the names of the qualified school psychologists who prepared the reports. The reports also stated that defendant\u2019s father had abandoned the family and shown little concern for their welfare. In addition to the school records, Doyle had defendant\u2019s 1979 conviction record, which contained his last known address prior to incarceration, and defendant\u2019s birth certificate, which contained, both his mother\u2019s and father\u2019s names. Doyle, however, failed to investigate any of this information or send his court-appointed investigator to investigate any of this for mitigating information.\nWe are unable to discern any strategy developed by Doyle which would entail not investigating the only information he had concerning defendant\u2019s background. We find that Doyle\u2019s failure to investigate was the result of ignorance of the family information contained in the various records he possessed. Doyle thus did not make a thorough investigation of defendant\u2019s background for mitigating evidence. In concluding this, we acknowledge that Doyle was in a difficult situation due to defendant\u2019s recalcitrance. However, as Lyon testified, a recalcitrant defendant is a very common problem in capital cases, and there are ways to solve this problem. In such a situation, an attorney could search for as much information about a defendant as he can and confront the defendant with it (see Mitchell v. Kemp (11th Cir. 1985), 762 F.2d 886 (where defendant told counsel not to use his family and court found it important that counsel ignored this and contacted defendant\u2019s father anyway)) or have an expert examine the defendant and attempt to understand his recalcitrance. Doyle did none of this, despite defendant\u2019s history of mental deficiency and Becraft\u2019s report indicating defendant\u2019s family had abandoned him, which should have alerted Doyle to possible reasons behind defendant\u2019s unwillingness to provide information.\nWe further note that Doyle\u2019s failure to investigate defendant\u2019s background with the information he possessed is more troubling in light of the fact that defendant opened up a bit prior to the sentencing hearing and did in fact give Doyle information to investigate. \u201c[E]very advocate and counselor should be aware that the emotional and psychological stress accompanying the intense confrontational drama of a capital trial distorts reactions and affects decisions. It is not unusual for clients in all kinds of cases to be unshakeably adamant in their views at first, only to change their minds later, when time and trust in counsel cause them to perceive matters differently.\u201d (Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 322 (1983).) A thorough investigation by Doyle of the information available to him previously could have facilitated an investigation into the information defendant did eventually provide. Instead, Doyle simply made a few telephone calls, found nothing helpful, and gave up. Doyle did not travel to Chicago, or even send his investigator, to look into the information. Doyle also did not inform the court of his situation, or request a continuance to investigate the new information.\nWe conclude that defendant has satisfied the first prong of the Strickland analysis by showing Doyle\u2019s failure to investigate and present defendant\u2019s mental history to the jury, and Doyle\u2019s failure to investigate defendant\u2019s background with the information he had.\nII\nWhether Counsel\u2019s Deficient Performance So Prejudiced the Defense as to Deny Defendant a Fair Sentencing Hearing\nWe must now determine whether the second prong of the Strickland analysis is met, that is, whether Doyle\u2019s deficient performance so prejudiced the defense as to deny defendant a fair sentencing hearing. We conclude that it did.\nMitigating evidence is extremely important under the Illinois capital sentencing scheme. Once an aggravating factor is found sufficient to impose the death penalty, there must be mitigating evidence sufficient to preclude the imposition of the death penalty. The jury\u2019s decision must be unanimous, meaning that defense counsel need only convince one juror that enough mitigating evidence exists to preclude the imposition of the death penalty. (111. Rev. Stat. 1979, ch. 38, pars. 9 \u2014 1(b)(2), (g).) The minimal amount of mitigating evidence presented at defendant\u2019s sentencing hearing was contained in Be-craft\u2019s report, which also contained a much greater amount of aggravating evidence. Yet, a great deal of mitigating evidence existed which Doyle failed to investigate and introduce.\nThe resulting prejudice to defendant is clear. Had Doyle known of and understood the information con-tamed in the school report, and investigated defendant\u2019s mental history, he could have introduced a great deal of mitigating evidence. At the same time, Doyle would not have had to introduce Becraft\u2019s report. Such an investigation could also have indicated to Doyle that perhaps he needed an expert to examine defendant and help Doyle communicate better with defendant. Moreover, a thorough investigation of the family information contained in the school reports and other information could very well have assisted Doyle in investigating the information defendant finally gave him just prior to sentencing. These errors, especially when considered together, raise a serious doubt as to the reliability of defendant\u2019s sentencing.\nWhile the State argues that the mitigating evidence Doyle might have introduced could just as well be considered aggravating, we find that the mitigating nature of the evidence far outweighs the negatives contained in the evidence. The State, in particular, notes defendant\u2019s poor school performance, his prior drug use, and the fact that his family took active steps to avoid him. However, defendant\u2019s poor school performance is explained greatly by his mental handicap, and his prior drug use was, to a great extent, the result of living with his abusive father, who bought, sold, and used drugs in the Perez household. The fact that defendant\u2019s family abandoned him was a direct result of his mental handicap, drug use, and the family\u2019s fear of his abusive father. We thus believe there is the reasonable probability that had the jury known of the evidence Doyle failed to investigate and present, the jury \u201cwould have concluded that the balance of aggravating and mitigating circumstances did not warrant death.\u201d Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 204 S. Ct. at 2069.\nWe conclude that defendant did not receive the individualized sentencing determination that the Constitution requires. (Eddings v. Oklahoma (1982), 455 U.S. 104, 112, 71 L. Ed. 2d 1, 9, 102 S. Ct. 869, 875.) We therefore vacate defendant\u2019s capital sentence and remand the cause to the circuit court for a new sentencing hearing. This decision in no way affects the finding of defendant\u2019s guilt; therefore, we affirm defendant\u2019s conviction.\nConviction affirmed; sentence vacated; cause remanded.\nJUSTICES BILANDIC and HEIPLE took no part in the consideration or decision of this case.", "type": "majority", "author": "JUSTICE CUNNINGHAM" } ], "attorneys": [ "Steven Clark, Assistant Defender, of the Office of the State Appellate Defender, of Chicago, and Monica C. Fitzgerald, law student, for appellant.", "Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Terence M. Madsen and Richard S. London, Assistant Attorneys General, of Chicago, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 67676.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DOMINGO PEREZ, Appellant.\nOpinion filed March 26, 1992.\n\u2014 Rehearing denied June 1, 1992.\nBILANDIC and HEIPLE, JJ., took no part.\nSteven Clark, Assistant Defender, of the Office of the State Appellate Defender, of Chicago, and Monica C. Fitzgerald, law student, for appellant.\nNeil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Terence M. Madsen and Richard S. London, Assistant Attorneys General, of Chicago, of counsel), for the People." }, "file_name": "0168-01", "first_page_order": 178, "last_page_order": 206 }